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finding that while "a plaintiff cannot amend her complaint through an opposition to a motion to dismiss," the court "should read the facts alleged in a pro se plaintiff's complaint for whatever claims may properly be based on such facts"
Summary of this case from Ash v. City of N.Y.Opinion
10 CV 9691 (VB)
05-30-2012
LAURA FINCH, Plaintiff, v. NEW YORK STATE, NEW YORK STATE OFFICE OF CHILDREN & FAMILY SERVICES, et al., Defendants.
MEMORANDUM DECISION :
Plaintiff Laura Finch, proceeding pro se, brings this action asserting claims of employment discrimination against defendants New York State, New York State Office of Children and Family Services ("OCFS"), Gladys Carrion as Commissioner of OCFS, William Hasselbach, Bobby Ray Smith, Gregory Joyner, Muhammad Shaikh, Robert Sommerville (a/k/a Brad Sommerville), the Office of the State Comptroller, and the New York State Civil Service Commission. Now pending is defendants' motion to dismiss. (Doc. #25.) For the following reasons, the motion is GRANTED as to plaintiff's claims against defendants New York State, OCFS, the Office of the State Comptroller, and the New York State Civil Service Commission; and plaintiff's claims pursuant to the ADA and the ADEA; Section 1983 against the state defendants and the individual defendants in their official capacities; Section 1985; Title VII; the New York State and New York City Human Rights Laws; the New York Civil Service Law; the New York Civil Rights Law; and the New York Labor Law. The Court also dismisses plaintiff's breach of contract claim. The motion is DENIED as to plaintiff's claim pursuant to Section 1983 based on the First and Fourteenth Amendments against the individual defendants in their individual capacities.
The Court refers to defendants New York State, OCFS, the Office of the State Comptroller, and the New York State Civil Service Commission collectively as the "state defendants."
The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 as to plaintiff's federal claims and 28 U.S.C. § 1367(a) as to plaintiff's state law claims.
BACKGROUND
For purposes of ruling on defendants' motion to dismiss, the Court accepts all allegations of the complaint as true.
Plaintiff Laura Finch was born in 1956 and, at all relevant times, was a nurse working at the Goshen OCFS Medical Unit. In 1998, plaintiff left her position because of an occupational injury. In September 2002, plaintiff was medically requalified under Section 71 of the New York Civil Service Law and was offered a position in the New York State Office of Mental Retardation and Developmental Disabilities.
In February 2004, plaintiff began working as a registered nurse for OCFS through an outside agency. She continued to work through the outside agency until January 2007.
While working for the outside agency, plaintiff applied to work directly for OCFS, but was informed by Senior Personal Administrator Mary E. Faust that she was not eligible for the Nurse II position because she had a pending misdemeanor conviction, which plaintiff had appealed. According to the complaint, Faust told plaintiff she would be hired immediately if the conviction were vacated. In August 2006, plaintiff learned Faust's statement was wrong as a matter of law and commenced an action in the New York Court of Claims. In October 2007, plaintiff and New York State entered into a stipulation and binding agreement resolving the case. Plaintiff was informed that following the lifting of hiring freeze, she would be hired.
In November 2007, according to the complaint, defendants demanded plaintiff be terminated by the outside agency because she had failed to disclose her misdemeanor conviction.
The complaint states this happened in November 2008. The context of this allegation indicates it likely happened in 2007, not 2008.
In March 2008, plaintiff was hired directly by the OCFS in the position of Nurse II. After being hired, plaintiff complained that her salary was too low given her prior employment. Plaintiff alleges she was told by defendant Shaikh, who was her supervisor, that "they" were trying to get rid of older employees who had vested benefits. Plaintiff further alleges defendant Sommerville told her that defendant Commission Carrion was not looking to hire older employees. Plaintiff was then told by Director Rascoe that her hire had been delayed because of the hiring freeze and that Sommerville was "misinformed." Plaintiff alleges, without specifically identifying anyone, that male employees who were reinstated after taking disability leave were provided with their full seniority and pay raises.
Plaintiff alleges she was terminated for complaining about a hostile work environment. She claims she was subject to sexual harassment by Shaikh, which defendants Smith, Joyner, and Sommerville knew about and did not stop. Plaintiff includes in the complaint a litany of incidents of sexual harassment some of which involve harassment plaintiff was subject to and some of which she heard second- or third-hand. Plaintiff alleges the conduct was reported to Smith who took no action.
In June and July 2008, plaintiff alleges she was informed by two doctors at the facility that they were asked by defendants Shaikh, Joyner, and Somerville to produce "baseless" letters of misconduct.
On June 23, 2008, Shaikh came to plaintiff's station and yelled at her for having moved equipment. Plaintiff alleges she felt threatened and intimidated. This same day, according to the complaint, Shaikh submitted false memoranda attributing conduct to plaintiff.
On June 27, 2008, at a meeting with Joyner, plaintiff told Joyner about wasteful medical expenditures involving double ordering from the pharmacy and accumulation of drugs in supply closets. Plaintiff also complained about scheduling issues and was told that Shaikh controls schedules. Plaintiff alleges that following this meeting, she was reassigned to the medical unit which isolated her.
On September 23, 2008, defendants started an investigation into plaintiff's conduct, and she was terminated thereafter. Plaintiff does not include in the complaint the date she was terminated.
In her complaint, plaintiff asserts claims pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"); the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"); 42 U.S.C. §§ 1983 and 1985 for violations of plaintiff's rights under the First, Fifth, and Fourteenth Amendments to the Constitution; the New York State Human Rights Law ("NYSHRL"); the New York City Human Rights Law ("NYCHRL"); Section 75-b of the New York Civil Service Law; and Section 40 of the New York Civil Rights Law. Plaintiff also brings a breach of contract claim. The complaint can also be read to include claims under Title VII of the Civil Rights Act of 1964 and the New York Labor Law.
DISCUSSION
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) "challenges the court's statutory or constitutional power to adjudicate the case before it." 2A James W. Moore et al., Moore's Federal Practice, ¶ 12.07, at 12-49 (2d ed. 1994). "A complaint is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Once the question of jurisdiction is raised, the burden of establishing subject matter jurisdiction rests on the party asserting jurisdiction. See Thomson v. Gaskill, 315 U.S. 442, 446, (1942). "[F]ederal courts are courts of limited jurisdiction and lack the power to disregard such limits as have been imposed by the Constitution or Congress." Durant, Nichols, Houston, Hodgson, & Cortese-Costa, P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 2009).
The function of a motion to dismiss pursuant to Rule 12(b)(6) is "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Ryder Energy Distrib. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984). When deciding a motion to dismiss, the Court must accept all well-pleaded allegations as true and draw all reasonable inferences in favor of the pleader. Hishon v. King, 467 U.S. 69, 73 (1984). The complaint must contain the grounds upon which the claim rests through factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff is obliged to amplify a claim with some factual allegations to allow the court to draw the reasonable inference that the defendant is liable for the alleged conduct. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009). To determine which allegations it may consider, the Court first identifies conclusory pleadings that are not entitled to the assumption of truth. Id. at 1949-50 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.").
Because plaintiff brings this action pro se, the Court construes her complaint "broadly" and as raising "the strongest argument that it suggests." Weixel v. Bd. of Educ. of City of N.Y., 287 F.3d 138, 146 (2d Cir. 2002). This is despite the fact that plaintiff admits to having received assistance from several attorneys in drafting her opposition to the motion to dismiss.
I. Claims Under the ADA and ADEA
Defendants move to dismiss plaintiff's claims under the ADA and ADEA as barred by the Eleventh Amendment. Plaintiff concedes this point but argues that the complaint supports a claim under Title II of the ADA which would permit her to obtain prospective injunctive relief which is not barred by the Eleventh Amendment.
The Eleventh Amendment precludes suits against states and state agencies unless the state expressly waives its immunity or Congress abrogates that immunity. See Seminole Tribe v. Florida, 517 U.S. 44, 73 (1996). The Supreme Court has explicitly held that Congress did not abrogate sovereign immunity with respect to Title I of the ADA, see Bd. of Trustees v. Garrett, 531 U.S. 356 (2001), or the ADEA. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 92 (2000). State defendants are either the state itself or state agencies. Thus, plaintiff cannot bring ADA or ADEA claims against these defendants, and these claims must be dismissed.
In addition, individuals can not be held liable for money damages under Title I of the ADA or the ADEA. See Spiegel v. Schulmann, 604 F.3d 72, 79-80 (2d Cir. 2010) (holding no individual liability for retaliation under Title I of the ADA); Redman v. N.Y.S. Dep't of Corr. Servs., 2011 U.S. Dist. LEXIS 129931, at *5 (S.D.N.Y. Oct. 12, 2011); Guerra v. Jones, 421 Fed. Appx. 15, 17 (2d Cir. 2011) (finding as to the ADEA); Gibbs v. City of New Haven, 544 F. Supp. 2d 119, 125 (D. Conn. 2008) ("The ADEA precludes holding individuals liable even where they create the alleged discrimination."). Accordingly, plaintiff cannot bring claims under Title I of the ADA or the ADEA against defendants Gladys Carrion, William Hasselbach, Bobby Ray Smith, Gregory Joyner, Muhammad Shaikh, or Robert Sommerville in their individual or official capacities.
In response to defendants' motion, plaintiff contends the complaint supports a claim for (a) injunctive and equitable relief against defendants under Title I of the ADA and (b) relief under Title II of the ADA. The Court will address these arguments seriatim.
The Supreme Court has explicitly recognized that the Eleventh Amendment does not bar a suit under Title I of the ADA seeking prospective injunctive relief against an individual in his official capacity under the exception to sovereign immunity set forth in Ex parte Young, 209 U.S. 123 (1908). Bd. of Trustees v. Garrett, 531 U.S. at 374 n.9. In the employment context, claims for reinstatement are actionable when made against a state official with the power to reinstate the plaintiff. See State Emps. Bargaining Agent Coal v. Rowland, 494 F.3d 71, 96 (2d Cir. 2007) ("[C]laims for reinstatement to previous employment satisfy the Ex parte Young exception to the Eleventh Amendment's sovereign immunity bar.").
The facts, as currently alleged, do not support a claim for injunctive relief. First, in the "relief requested" section of the complaint, plaintiff only seeks monetary damages; she does not ask for injunctive or equitable relief. Second, it is not clear in the complaint that plaintiff has named as a defendant an individual who has the authority to reinstate her to her previous position as required under State Emps. Bargaining Agent Coal v. Rowland. The Court dismisses plaintiff's claim under Title I of the ADA.
With regard to plaintiff's claim under Title II of the ADA, such a claim is clearly not presently pleaded in the complaint. Nonetheless, the Court will analyze a potential claim before determining whether plaintiff will be permitted to plead it in an amended complaint. Title II permits claims related to public services, programs, and activities. See Tennessee v. Lane, 541 U.S. 509, 516-17 (2004). In enacting Title II, Congress abrogated the states' sovereign immunity. See Garcia v. SUNY Health Sci. Center of Brooklyn, 280 F.3d 98, 112 (2d Cir. 2001) (permitting claims against state where plaintiff can show Title II violation was "motivated by discriminatory animus or ill will due to disability."); see also Castells v. Fisher, 2007 U.S. Dist. LEXIS 30188, at *13 (E.D.N.Y. Mar. 23, 2007) (relying upon United States v. Georgia, 546 U.S. 151 (2006), and finding Title II only abrogates sovereign immunity as to claims related to "fundamental rights" of which government employment is not one). Courts within this Circuit are split as to whether Title II covers employment discrimination against a governmental employer. See Mary Jo C. v. N.Y. State & Local Ret. Sys., 2011 U.S. Dist. LEXIS 49567, at *35-36 (E.D.N.Y. May 5, 2011) (listing cases on both sides). The Court need not resolve this issue because, even if Title II did extend to employment discrimination claims, plaintiff has not alleged that she qualifies under Title II.
Title II of the ADA provides: "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. A "qualified individual" is "an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). A "disability" is defined as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(2)(A), (C). The Supreme Court has observed that a "disability exists only where an impairment 'substantially limits' a major life activity, not where it 'might,' 'could,' or 'would' be substantially limiting if mitigating measures were not taken." Sutton v. United Air Lines, 527 U.S. 471, 482 (1999).
Plaintiff alleges she left her employment from 1998 until 2002 because of an injury. She also alleges she was medically qualified to work as of 2002. These are the only allegations to support the contention that plaintiff was disabled, and they are insufficient. Plaintiff does not present factual allegations that a major life activity was substantially limited, and plaintiff's Title II claim is not properly supported by the complaint. Therefore, the Court will not read such a claim into the complaint at this time. This conclusion is without prejudice to plaintiff's adding relevant allegations to an amended complaint.
If plaintiff amends her complaint to add a claim pursuant to Title II, and defendants then move to dismiss such claim, the Court will address whether Title II can support a claim for employment discrimination.
II. Claims Pursuant to 42 U.S.C. § 1983
A. Eleventh Amendment Immunity
Defendants next move to dismiss plaintiff's Section 1983 claims on the grounds of Eleventh Amendment immunity. Section 1983 does not override the Eleventh Amendment, and a suit against a state or its agency under Section 1983 for damages is barred by the Eleventh Amendment. Quern v. Jordan, 440 U.S. 332, 345 (1979); see also Dube v. State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir. 1990) ("Although Congress is empowered under section five of the Fourteenth Amendment to override Eleventh Amendment immunity and to enforce by appropriate legislation the substantive provisions of the Fourth Amendment . . . it is well settled that 42 U.S.C. § 1983 does not constitute an exercise of that authority."). Eleventh Amendment immunity also bars Section 1983 claims asserted against individuals in their official capacity. See Berman Enters. v. Jorling, 3 F.3d 602, 606 (2d Cir. 1993). As such, plaintiff's Section 1983 claims against the state defendants and the individual defendants in their official capacities are dismissed with prejudice. This includes plaintiff's claims based on the First, Fifth, and Fourteenth Amendments.
To the extent plaintiff's Section 1983 claims against the individual defendants are based on violations of the ADA or the ADEA, such claims are not recognized under the law. A plaintiff cannot bring claims under the ADA or the ADEA against individuals through Section 1983. See Bartlett v. N.Y.S. Bd. of Law Examiners, 970 F. Supp. 1094, 1144-45 (S.D.N.Y. 1997) (Sotomayor, J.) ("Congress would not have intended that plaintiffs seek redress for violations of their ADA . . . rights through the vehicle of section 1983."), aff'd in part and vacated in part on other grounds, 156 F.3d 321 (2d Cir. 1998), vacated on other grounds, 527 U.S. 1031 (1999). Because Congress provided a statute to enforce an individual's rights to be free from discrimination based on disability and age, Section 1983 cannot provide an alternative remedy.
B. Effect of DHR Finding on Section 1983 Claims
Contrary to defendants' arguments, plaintiff's filing of her state law claims before the New York State Division of Human Rights ("DHR") does not automatically preclude her federal law claims, even if such claims are asserted under analogous legal theories. An unreviewed state administrating ruling, which the DHR's decision is, cannot serve as a predicate for issue preclusion preventing review of a cause of action under federal law. See DeCintio v. Westchester Cty. Medical Ctr., 821 F.2d 111, 114-15 (2d Cir. 1987); Smith v. City of New York, 2008 U.S. Dist. LEXIS 37067, *20 n.6 (S.D.N.Y. May 6, 2008).
In some circumstances, however, collateral estoppel may bar the litigation of a Section 1983 claim which has previously been raised in a state administrative proceeding. The Supreme Court has held that "when a state agency acting in a judicial capacity resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, federal courts must give the agency's factfinding the same preclusive effect to which it would be entitled in the State's courts." University of Tennessee v. Elliott, 478 U.S. 788, 799 (1986). Relevant Second Circuit authority indicates federal claims are only precluded by a previous state administrative determination under collateral estoppel when the plaintiff is fully aware of the nature and ramifications of the state administrative process, has the opportunity to present evidence and testimony, and is able to develop the evidentiary record fully. See Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706, 735-36 (2d Cir. 2001) (applying factors to determine whether plaintiff's claims are collaterally estopped by state administrative determination); DeCintio v. Westchester Cty. Medical Ctr., 821 F.2d at 117; see also Boguslavsky v. Kaplan, 159 F.3d 715, 719-20 (2d Cir. 1998) (applying collateral estoppel when: "(1) the identical issue was raised in a previous proceeding; (2) the issue was actually litigated and decided in the previous proceeding; (3) the party had a full and fair opportunity to litigate the issue; and (4) the resolution of the issue was necessary to support a valid and final judgment on the merits"). The proponent of preclusion bears the burden of proving identity of issue, while the adverse party bears the burden of proving that he lacked a full and fair opportunity to litigate the issue. Kosakow, 274 F.3d at 730. In determining whether plaintiff had a full and fair opportunity to litigate her claims, the Court considers "the size of the claim, the forum of the prior litigation, the use of initiative, the extent of the litigation, the competence and experience of counsel, the availability of new evidence, indications of a compromise verdict, differences in the applicable law and foreseeability of future litigation." Schwartz v. Public Adm'r of Cty. of Bronx, 24 N.Y.2d 65, 72 (1969).
Plaintiff's verified complaint filed with the DHR asserted claims, as relevant here, for gender, age, and disability discrimination; sexual harassment; and retaliation for having lodged complaints regarding salaries and sexual harassment.
In this case, there is no indication in the DHR's determination and order that plaintiff, appearing before the DHR pro se, was aware of the importance of the proceeding or knew she could conduct discovery. The DHR record is silent as to the nature and scope of its investigation, and the Court does not have the parties' submissions before it so that it may know the exact nature of the dispute before the DHR. Furthermore, it does not appear that plaintiff's administrative proceeding was pursued pursuant to New York Civil Service Law § 75, which is the statutory vehicle upon which the plaintiff in DeCintio v. Westchester Cty Medical Ctr. relied. The DHR decision in this case states: "After investigation, and following opportunity for review of related information and evidence by the named parties . . . ." The Court, however, cannot conclude based on this statement and the full text of the decision that plaintiff had a full and fair opportunity to litigate the relevant issues before the DHR. Therefore, plaintiff's Section 1983 claims are not barred by collateral estoppel. The Section 1983 claims which survive are plaintiff's First Amendment claim and her claims under the Due Process Clause and the Equal Protection Clause.
III. Claims Pursuant to 42 U.S.C. § 1985
Defendants move to dismiss any civil rights conspiracy claim asserted under Section 1985, even though no such claim was separately delineated in the complaint. The complaint does not allege the involvement in a conspiracy of any party not named as a defendant.
To state a conspiracy claim under 42 U.S.C. § 1985(3), plaintiff must allege "(1) a conspiracy, (2) for the purpose of depriving any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws, (3) an act in furtherance of the conspiracy, and (4) whereby a person is injured in his person or property or deprived of a right or privilege of a citizen." Iqbal v. Hasty, 490 F.3d 143, 176 (2d Cir. 2007); Farbstein v. Hicksville Pub. Library, 254 Fed. Appx. 50, 51 (2d Cir. 2007). Further, plaintiff must demonstrate the conspiracy was motivated by some class-based animus. Hasty, 490 F.3d at 176.
Under the intracorporate conspiracy doctrine, there cannot be a conspiracy among employees, agents, officials, and members of a single corporate entity. Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir. 1978); 49 WB, LLC v. Vill. of Haverstraw, 2012 U.S. Dist. LEXIS 16518, at *34 (S.D.N.Y. Feb. 2, 2012); Nassau County Emple. "L" v. County of Nassau, 345 F. Supp. 2d 293, 304 (E.D.N.Y. 2004). "This is particularly so where the officers and employees are alleged to be acting within the scope of their employment." Rini v. Zwirn, 886 F. Supp. 270, 291 (E.D.N.Y. 1995). The doctrine applies even when the individual actors are public employees. See Hartline v. Gallo, 2006 U.S. Dist. LEXIS 75849, at *30-31 (E.D.N.Y. Sept. 30, 2006), vacated on other grounds, 546 F.3d 95 (2d Cir. 2008); Rini, 886 F. Supp. at 292. The doctrine does not apply, however, when the individuals are acting in furtherance of personal interests wholly separate and apart from the entity. Nassau County Emple. "L", 345 F. Supp. 2d at 304-06.
The complaint does not allege a conspiracy involving non-parties or individuals who were not employees of OCFS. Therefore, this claim is dismissed with prejudice.
IV. Federal Constitutional Claims
A. Fifth Amendment Claim
Plaintiff asserts unspecified claims under the Fifth Amendment. The Fifth Amendment only applies to the federal government and cannot provide a cause of action for the plaintiff's claims of deprivation of due process of law by state actors. See Dusenbery v. United States, 534 U.S. 161, 167 (2002) ("The Due Process Clause of the Fifth Amendment prohibits the United States, as the Due Process Clause of the Fourteenth Amendment prohibits the States, from depriving any person of property without 'due process of law.'"); Public Utilities Comm'n v. Pollak, 343 U.S. 451 (1952). Thus, the Court dismisses plaintiff's Fifth Amendment claim.
B. First Amendment Claim
Count Six of the complaint alleges defendants violated plaintiff's rights under the First Amendment by terminating her as retaliation for her speech. Because a claim of a violation of plaintiff's constitutional rights is enforced through Section 1983 and the Eleventh Amendment bars actions under Section 1983, this claim cannot be asserted against the state defendants and the individual defendants in their official capacities. Defendants do not otherwise challenge this claim as against the individual defendants in their individual capacities, except as noted below. Therefore, the Court will permit plaintiff to pursue this claim as against the individual defendants in their individual capacities.
V. Title VII Claims
In her response to defendants' motion, plaintiff asserts claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 et seq., for retaliation, hostile work environment, and discrimination. In their reply papers, defendants challenge plaintiff's new theory on the grounds that a plaintiff cannot amend her complaint through an opposition to a motion to dismiss. See Pandozy v. Segan, 518 F. Supp. 2d 550, 554 n.1 (S.D.N.Y. 2007); O'Brien v. Nat'l Prop. Analysts Partners, 719 F. Supp. 222, 229 (S.D.N.Y. 1989) ("[I]t is axiomatic that the Complaint cannot be amended by the briefs in opposition to a motion to dismiss."). While this is true, the Court should read the facts alleged in a pro se plaintiff's complaint for whatever claims may properly be based on such facts. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). To determine whether Title VII claims may be asserted in an amended complaint and that amendment would not be futile, the Court will analyze the potential claims under Title VII.
A plaintiff claiming employment discrimination pursuant to Title VII and the ADEA must pursue administrative procedures before commencing a lawsuit. Fitzgerald v. Henderson, 251 F.3d 345, 359-360 (2d Cir. 2001); see also 42 U.S.C. § 2000e-5(e) and (f); 29 U.S.C. § 626(d). Exhaustion of the administrative remedies and receipt of a right-to-sue letter are preconditions to filing Title VII and ADEA claims in federal court. Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001). The exhaustion requirement exists to afford the administrative agency the opportunity to investigate, mediate, and take remedial action. Stewart v. United States Immigration & Naturalization Service, 762 F.2d 193, 198 (2d Cir. 1985).
A charge of discrimination must be filed under both Title VII and the ADEA within 300 days after the alleged unlawful practices occurred. See 42 U.S.C. § 2000e-5; AMTRAK v. Morgan, 536 U.S. 101, 110 (2002); Flaherty v. Metromail Corp., 235 F.3d 133, 137 n.1 (2d Cir. 2000). In Fitzgerald v. Henderson, 251 F.3d 345, the Court of Appeals reiterated a cause of action pursuant to a continuing violation theory serves as an exception to the 300-day deadline and permits a plaintiff to reach back to conduct occurring outside the limitations period. Id., 251 F.3d at 359. Such a theory must be premised upon continual and repeated violations of plaintiff's Title VII rights through repeated sexual harassment.
After receiving a right-to-sue letter, a plaintiff has ninety days to commence suit. The ninety-day deadline to commence a lawsuit after the receipt of a right-to-sue notice is strictly construed, and "the court cannot extend the limitations period by even one day," Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984); Rivera v. Emerging Health Info. Tech., 2011 U.S. Dist. LEXIS 128550, at *4 (S.D.N.Y. Nov. 7, 2011). Courts have proceeded to dismiss cases where the complaint was filed only one or two days late. See, e.g., Pryor v. Nat'l Grid, 2011 U.S. Dist. LEXIS 82852 (S.D.N.Y. July 28, 2011) (two days late); Sanchez v. Nat'l Cleaning Co., 11 F. Supp. 2d 453, 455 (S.D.N.Y. 1998) (two days late); Moscowitz v. Brown, 850 F. Supp. 1185, 1192 (S.D.N.Y. 1994) (one day late), abrogated on other grounds, Lauture v. Int'l Bus. Machs. Corp., 216 F.3d 258 (2d Cir. 2000); see also Zerilli-Edelglass v. New York City Transit Authority, 333 F.3d 74 (2d Cir. 2003) (affirming dismissal where pro se complaint was filed six days late). This deadline is strictly construed even against a pro se plaintiff. Pryor, 2011 U.S. Dist. LEXIS 82852, at *6 ("Although pro se litigants are usually offered leniency, when it comes to statutory filing deadlines courts have consistently held that even pro se plaintiffs must be held to strict compliance."). The triggering event for the ninety days is the receipt of the EEOC notice by the plaintiff, not the issuance of it by the EEOC. Courts presume that a plaintiff receives the notice three days after it is mailed, which is presumed to be the day it is issued; though this presumption may be rebutted by admissible evidence. Sherlock v. Montefiore Medical Ctr., 84 F.3d 522, 525 (2d Cir. 1996); see also Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 148 n.1 (1984).
Plaintiff alleges she received her right-to-sue letter on September 28, 2010. Ninety days later was December 27, 2010. The complaint in this action was filed on December 29, 2010. Therefore, it was untimely, and plaintiff's Title VII claims are barred. Amendment to include these claims is denied as futile. VI. Claims Under the New York State and New York City Human Rights Laws
Defendants contend that plaintiff's election to assert her New York State Human Rights Law ("NYSHRL") and New York City Human Rights Law ("NYCHRL") claims before the DHR and then her subsequent failure to seek review of the DHR's determination divests the Court of jurisdiction to hear these claims now.
A. Election of Remedies
Under both statutes, an individual who files a complaint with the DHR is barred from filing a lawsuit in state or federal court for the same cause of action. See N.Y. Exec. Law § 297(9) ("Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages . . . unless such person had filed a complaint hereunder or with any local commission on human rights."); York v. Ass'n of the Bar, 286 F.3d 122, 127 (2d Cir. 2002) (applying same analysis to both laws). Once a plaintiff has chosen to pursue her claims before the DHR, the federal district court is barred from hearing her case. See id., 286 F.3d at 127 ("HRL . . . claims, once brought before the [DHR], may not be brought again as a plenary action in another court."); McNulty v. N.Y.C. Dep't of Fin., 45 F. Supp. 2d 296, 303 (S.D.N.Y. 1999) ("Having elected to pursue redress for those grievances before the [NYSDHR], Plaintiff is now foreclosed from bringing . . . [her Human Rights Law] claims before this Court."). This jurisdictional bar is applicable to both state and federal courts as "a state law depriving its courts of jurisdiction over a state law claim also operates to divest a federal court of jurisdiction to decide the claim." Moodie v. Fed. Reserve Bank of N.Y., 58 F.3d 879, 884 (2d Cir. 1995).
Plaintiff elected her remedy by filing a verified complaint with the DHR, which found there was no probable cause to support her claims. Because the DHR issued a ruling on the merits of these claims, plaintiff is procedurally barred from asserting them before this Court, and they are dismissed.
B. Eleventh Amendment Immunity
Plaintiff's claims under the NYSHRL and the NYCHRL are also barred by the Eleventh Amendment. As courts have previously recognized, sovereign immunity bars claims against state agencies pursuant to the NYSHRL and NYCHRL. See Sacay v. Research Found. of the City Univ. of N.Y., 193 F. Supp. 2d 611, 624-25 (E.D.N.Y. 2002); Fry v. McCall, 945 F. Supp. 655, 661 (S.D.N.Y. 1996) (finding that the New York State Civil Service Law did not waive Eleventh Amendment immunity); see also Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004) ("[W]e have found no evidence that the State has consented to suit in federal court under the NYCHRL."). As the state has not waived its immunity as to either the NYSHRL or the NYCHRL, these claims are barred.
C. Claims Outside New York City
Finally, plaintiff cannot bring a cause of action under the NYCHRL for conduct which took place outside of New York City. See Wahlstrom v. Metro-North Commuter R.R. Co., 89 F. Supp. 2d 506, 527 (S.D.N.Y. 2000) ("[T]he [City Human Rights Law] only applies where the actual impact of the discriminatory conduct or decision is felt within the five boroughs, even if a discriminatory decision is made by an employer's New York City office."). The allegations of the complaint all involve actions which happened in Goshen, New York, in Orange County. Therefore, they are not actionable under New York City law.
VII. Claims Under New York Civil Service Law
Count Eleven of the complaint asserts a claim under Section 75-b(2)(a)(ii) of the New York Civil Service Law. Defendants move to dismiss this claim on the grounds that it is barred by the Eleventh Amendment and cannot be asserted against an individual.
Section 75-b provides: "A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee's employment because the employee discloses to a governmental body information . . . which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action." N.Y. Civ. Serv. Law § 75-b(2)(a)(ii). Courts have previously found that Section 75-b does not serve as a waiver of the state's sovereign immunity. See Fry v. McCall, 945 F. Supp. 655, 661 (S.D.N.Y. 1996); Kirwin v. N.Y.S. Office of Mental Health, 665 F. Supp. 1034, 1038 (E.D.N.Y. 1987). Accordingly, this claim is dismissed as to the state defendants and the individuals in their official capacities.
In addition, Section 75-b does not provide for a cause of action against individuals. See Fry v. McCall, 945 F. Supp. at 666 ("The only courts that have considered this question have found that individual employees may not be sued under section 75-b."); Kirwin v. N.Y.S. Office of Mental Health, 665 F. Supp. at 1039. Such claim is dismissed in its entirety as to all defendants.
VIII. Claims Under New York Civil Rights Law
Defendants seek to dismiss plaintiff's claims under the New York Civil Rights Law because, they contend, there is no evidence that plaintiff ever served a copy of her complaint upon the New York Attorney General as required by Section 40-d of the New York Civil Rights Law. In her complaint, plaintiff alleges that she did do so. In a declaration submitted with defendants' motion, Latish Gilbert stated that service can only be made at the Attorney General's Office in Manhattan. In her opposition, plaintiff claims the complaint was served at the Attorney General's Office in Poughkeepsie.
Section 40-d of the Civil Rights Law provides: "[a]t or before the commencement of any action under this section, notice thereof shall be served upon the attorney general." The failure to serve the Attorney General at or before the commencement of an action under Section 40-c is fatal to the plaintiff's claim and requires dismissal of those causes of action. See Sundaram v. Brookhaven Nat'l Labs., 424 F. Supp. 2d 545, 571 (E.D.N.Y. 2006) ("[T]he plaintiff's claims for violations of section 40-c of the New York Civil Rights Law must be dismissed because he failed to give the necessary notice to the Attorney General of New York before making those claims."); Shepard v. Frontier Commc'n Servs., Inc., 92 F. Supp. 2d 279, 287 (S.D.N.Y. 2000) (granting summary judgment in favor of the defendant on the plaintiff's New York Human Rights Law claim where she failed to allege that she notified the Attorney General before bringing suit).
Unlike the plaintiffs in other cases in which courts have addressed this issue, plaintiff here has alleged she supplied notice to the Attorney General. Defendants' response is in the form of a declaration from a clerk, who does not appear to be an attorney, stating that notice may only be provided to the Manhattan office of the Attorney General. The Court has found no statute or case interpreting Section 40-d in such a manner. Section 40-d requires that "notice [of the commencement of an action] shall be served upon the attorney general." A person reading this section would not conclude that notice has to be performed (a) in a specific manner - i.e., through the complaint form, or (b) to a specific office of the Attorney General. The allegation of the complaint is sufficient for the Court to conclude plaintiff served notice upon the Attorney General as required by Section 40-d.
The Court observes that the Discrimination Complaint Form available at the New York Attorney General's website instructs the complainant to return the form by mail to the Civil Rights Bureau's office in Manhattan. See "Discrimination Complaint Form," available at http://www.oag.state.ny.us/sites/default/files/pdfs/bureaus/civil_rights/CRB%20complaint%20form%20%283-07%29.pdf (last accessed May 29, 2012). The Court does not read this instruction as creating a requirement in securing service.
Nonetheless, these claims are dismissed because they are barred by the Eleventh Amendment. See Almendral v. N.Y.S. Office of Mental Health, 743 F.2d 963, 968-69 (2d Cir. 1984); Richardson v. N.Y.S. Dep't of Correctional Servs., 1998 U.S. Dist. LEXIS 7598, at *2-3 (W.D.N.Y. Apr. 29, 1998).
IX. Breach of Contract Claim
Count Fourteen of the complaint alleges defendants breached their October 2007 agreement regarding her previous state court lawsuit. The Eleventh Amendment bars such a claim, and it is dismissed. See Tessler v. Paterson, 768 F. Supp. 2d 661, 671 (S.D.N.Y. 2011) (dismissing breach of contract claim as barred by the Eleventh Amendment).
X. Claims Pursuant to the New York Labor Law
Although they were not separately itemized as individual claims in the complaint, plaintiff asserted that she was pursuing claims under Sections 740 and 741 of the New York Labor Law. Defendants seek dismissal of these claims on the ground that they do not apply to plaintiff's circumstances.
Section 740 prohibits an employer from taking any retaliatory action against an employee who:
(a) discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety, or which constitutes health care fraud; (b) provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any such violation of a law, rule or regulation by such employer; or (c) objects to, or refuses to participate in any such activity, policy or practice in violation of a law, rule or regulation.New York Labor Law § 740(2). Section 740 does not cover public employers who are instead covered by Section 75-b of the Civil Service Law. See Markovic v. New York City Sch. Constr. Auth., 2002 U.S. Dist. LEXIS 214, at *12 (S.D.N.Y. Jan. 7, 2002) ("§ 740 does not apply to 'public employers'; public employers are covered, instead, by New York Civil Service Law § 75-b."); Balduzzi v. City of Syracuse, 1997 U.S. Dist. LEXIS 1317, at *11 (N.D.N.Y Feb. 4, 1997) ("Labor Law § 740 pertains only to employees in the private sector and that its public employee counterpart is New York Civil Service Law § 75-b."). It is undisputed that plaintiff was a public employee. Because she has asserted a claim under Section 75-b, even if such claim was dismissed because of sovereign immunity, her claim under Section 740 must also be dismissed.
Section 741 of the Labor Law prohibits an employer from retaliating against an employee who "discloses or threatens to disclose to a supervisor, or to a public body an activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care." New York Labor Law § 741(2)(a). "Improper quality of patient care" refers to "with respect to patient care, any practice, procedure, action or failure to act of an employer which violates any law, rule, regulation or declaratory ruling adopted pursuant to law, where such violation relates to matters which may present a substantial and specific danger to public health or safety or a significant threat to the health of a specific patient." Id. § 741(1)(d). Defendants maintain the allegations concerning any whistleblowing activity by plaintiff did not address "improper quality of patient care." Plaintiff states in her opposition to the motion that her comments concern dangerous situations.
According to the complaint, plaintiff complained about wasteful spending, excessive ordering, and the storage concerns. The Court does not understand any of these complaints to relate to a substantial or specific danger to public health or to a specific patient. The Section 741 claim is accordingly dismissed.
XI. Claims Against Defendants Office of the State Comptroller and the New York State Civil Service Commission
Defendants Office of the State Comptroller and the New York State Civil Service Commission move to dismiss on the grounds that the complaint fails to state a claim against either party. Plaintiff contends these two parties are necessary parties to ensure complete relief is afforded.
There are insufficient allegations to support any liability against these two defendants. In addition, plaintiff's arguments that these defendants are necessary to afford complete relief is unsupported by the allegations or relevant law. Therefore, the claims against these defendants are dismissed.
CONCLUSION
For the foregoing reasons, the motion to dismiss is GRANTED as to plaintiff's claims against defendants New York State, OCFS, the Office of the State Comptroller, and the New York State Civil Service Commission and plaintiff's claims pursuant to the ADA and the ADEA; Section 1983 against the state defendants and the individual defendants in their official capacities; Section 1985; Title VII; the New York State and New York City Human Rights Laws; the New York Civil Service Law; the New York Civil Rights Law; and the New York Labor Law. The Court also dismisses plaintiff's breach of contract claim.
The motion is DENIED as to plaintiff's claim pursuant to Section 1983 based on the First and Fourteenth Amendments against the individual defendants in their individual capacities.
Plaintiff may file an amended complaint by no later than June 29, 2012, asserting claims under Title I of the ADA by specifically identifying and naming as a defendant an individual who possesses the authority to reinstate her and Title II of the ADA if she can allege she is a "qualified individual with a disability." All the state law claims are dismissed with prejudice.
The Clerk is instructed to terminate the pending motion and to terminate New York State, OCFS, the Office of the State Comptroller, and the New York State Civil Service Commission as defendants in this action.
A case management conference will be scheduled following the closing of the pleadings. Should defendants seek to move to dismiss plaintiff's amended complaint, if filed, they should contact the Court by letter before doing so, as the Court will hold a conference at that time. Dated: May 30, 2012
White Plains, NY
SO ORDERED:
/s/_________
Vincent L. Briccetti
United States District Judge