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granting motion to dismiss because pro se plaintiff alleged that "I feel there were positions available" without indicating an available position for which he was not hired, even when construing plaintiff's complaint liberally
Summary of this case from Mann v. GerenOpinion
No. 00 Civ. 4964 (WK) (RLE)
July 24, 2002
Johnny Johnson, Memphis, TN, Plaintiff Pro Se.
Kathryn Spann, Assistant Attorney, New York, NY, for Defendant.
REPORT AND RECOMMENDATION
I. INTRODUCTION
On July 7, 2000, pro se plaintiff, Johnny Johnson ("Johnson") filed a complaint against the City University of New York ("CUNY") alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"). Johnson claims he was not hired and subsequently told there were no openings for a researcher position in CUNY's Office of Institutional Research and Analysis because of his race and age.
Johnson's complaint was officially docketed on July 7, 2000. It was, however, filed with the Pro Se Office on June 1, 2000. Because it was stamped "received" bearing the earlier date, the Court considers it timely filed. Johnson v. Nat'l Football League, 1999 WL 892938, at *2 (S.D.N.Y. Oct. 18, 1999) (citing Tolliver v. Sullivan County, 841 F.2d 41, 42 (2d Cir. 1988)).
On December 20, 2001, CUNY filed a motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. CUNY argues that it is immune from suit under the ADEA, and that Johnson has otherwise failed to state a cause of action. For the reasons which follow, I respectfully recommend that CUNY's motion to dismiss be GRANTED.
II. BACKGROUND
Johnson is an African American male born in 1938. Plaintiffs Complaint at 4. He contends that in September 1999 he applied for a position as a Researcher at CUNY's Office of Institutional Research and Analysis ("OIR"). Id. Additionally, Johnson asserts he contacted OIR to inquire about the position he believed he had applied for and was told there were no available positions at that time. Id.
Johnson filed a charge with the Equal Employment Opportunity Commission ("EEOC") and New York State Division of Human Rights on February 4, 2000, alleging discrimination based on his race and age. Defendant's Memorandum of Law in Support of Motion to Dismiss ("Def. Mem.") at Exh. A. After the EEOC issued a Right to Sue letter on February 29, 2000, Johnson filed the instant action on July 7, 2000, alleging that CUNY discriminated against him when it denied him an interview. This case was then referred to the undersigned on September 8, 2000. On May 21, 2001, this Court ordered Johnson to show cause why his claims should not be dismissed for failure to serve under Rule 4(m) of the Federal Rules of Civil Procedure, then issued a Report and Recommendation on August 30, 2001, recommending that the claim be dismissed. Johnson objected to the Report and Recommendation, asserting that he had served defendant. Judge Knapp issued an Order on November 8, 2001, declining to adopt the Report and Recommendation in light of evidence that Johnson had made good faith efforts to effect service upon CUNY. On November 19, 2001, the court clerk received a process receipt and return of service from the United States Marshal's Office indicating that CUNY had been served on November 6, 2001.
On December 20, 2001, CUNY filed a motion to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. First, CUNY claims that because OIR is a senior college at CUNY, it is considered an arm of the state for purposes of sovereign immunity. CUNY argues that the Court, therefore, has no jurisdiction to hear the ADEA claim because the ADEA does not abrogate sovereign immunity. Second, CUNY argues that Johnson has not sufficiently stated a claim through factual allegations, even under the more liberal standard recently decided by the Supreme Court in Swierkiewicz v. Sorema, 122 S.Ct. 992 (2002). Defendant's Reply Memorandum in Further Support of the Motion to Dismiss ("Def Rep.") at 2. CUNY contends that Johnson has failed to provide factual support for his claim, such as showing that he actually applied for the position. Id. at 3. Furthermore, CUNY argues that Johnson's statements are conclusory, and can be distinguished from the facts in Swierkiewicz. See Swierkiewicz, 122 S.Ct. at 999.
III. DISCUSSION
A. Sovereign Immunity under the Eleventh Amendment
Under the Eleventh Amendment, a state may claim immunity from suits initiated in federal court by its own citizens. Hans v. Louisiana, 134 U.S. 1, 4 (1890). The principles underlying state sovereign immunity are not absolute, however, and in the spirit of federalism, are intended to balance the powers of the federal government under the Constitution with the separate powers of the states. See Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 105 (1984). Therefore, the Supreme Court has recognized three exceptions to the Eleventh Amendment where a citizen can file suit against a state in federal court.
First, a state may consent to be sued in federal court. Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 54 (1944). Second, Congress may authorize private suits against non-consenting states through its enforcement powers under § 5 of the Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976). Although pursuant to this exception, the Supreme Court has held that states may not assert sovereign immunity in a Title VII suit, id., it has also determined that Congress did not have the power under § 5 to abrogate states' sovereign immunity under the ADEA. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 91 (2000) (citing Pennhurst, 465 U.S. at 99). Therefore, a state can assert immunity defenses in a private suit brought under the ADEA. Id.
Third, sovereign immunity does not attach itself to "lesser entities" of the state unless they can show they are an "arm of the state." Alden v. Maine, 527 U.S. 706, 756 (1999); Pikulin v. City Univ. of New York, 176 F.3d 598, 600 (2d Cir. 1999) (quoting Rosa v. Connelly, 889 F.2d 435, 437 (2d Cir, 1998)). A court's determination of whether a lesser entity defendant is an "arm of the state" for sovereign immunity purposes consists of a two-prong analysis: (1) the extent to which the state would be satisfying the judgment against the defendant, Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 38 (2d Cir. 1977) (citing Edelman v. Jordan, 415 U.S. 651, 663 (1974)); and (2) the degree of supervision the state exercises over the defendant. Pikulin, 176 F.3d at 600.
Courts in this district which have considered the issue have held that CUNY "senior colleges" function as an "arm of the state" for purposes of sovereign immunity. Among the factors considered by the courts in making this assessment are: (1) the state's payment of judgments against CUNY senior colleges; (2) the state court's jurisdiction over claims brought against CUNY senior colleges; (3) the state's reimbursement of operating expenses; (4) presentment of senior college's budget to governor; (5) the governor's appointment of the majority of CUNY's governing board; (6) the state's ownership of the "real property" of the senior colleges; and (7) CUNY's ability to use the state's eminent domain powers. Salerno v. City Univ. of New York, 2000 WL 1277324, at *3 (S.D.N.Y. Sept. 8, 2000); see, e.g, Becker v. City Univ. of New York, 94 F. Supp.2d 487, 491 (S.D.N.Y. 2000).
In claiming sovereign immunity as a defense, CUNY relies on its assertion that the OIR is part of the "central administration" which, like a "senior college," is entitled to sovereign immunity. Memorandum of Law in Support of the Motion to Dismiss by the City University of New York ("Def. Mem.") at 5; Claude J. Cheek Declaration at ¶ 3; see Salerno, 2000 WL 1277324, at *3; Becker, 94 F. Supp.2d at 489; Bunch v. City Univ. of New York, 2000 WL 1457078, at *2 (Sept. 28, 2000). This Court agrees. The factors which make "senior colleges" an "arm of the state," apply to the central administration of the university. OIR is thus protected by sovereign immunity, and this Court recommends that the ADEA claims against CUNY be DISMISSED.
B. Standard of Review for Dismissal
In deciding a motion to dismiss, the Court must accept as true all factual allegations alleged in the complaint, Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993), and draw all reasonable inferences in favor of the plaintiff. Albright v. Oliver, 510 U.S. 266, 268 (1994); Weinstein v. Albright, 261 F.3d 127, 131 (2d Cir. 2001). At this stage, the court's responsibility is not to test the weight of the evidence, but rather to look at the "feasibility of the complaint." Cooper v. Parksy, 140 F.3d 433, 440 (2d Cir. 1998) (quoting Ryder Distribution Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984)).
Prior to Swierkiewicz, a plaintiff in this Circuit alleging employment discrimination under Title VII and the ADEA, was required to plead evidence of a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Tarshis v. Reise Org., 211 F.3d 30, 35-36 (2d Cir. 2000), abrogated by Swierkiewicz, 122 S.Ct. 992. Although the burden was minimal, a motion to dismiss was granted if the plaintiff made only "bald assertions," id and "bare allegations" without factual support. Gregory v. Daly, 243 F.3d 687, 692 (2d Cir. 2001). In Swierkiewicz, the Supreme Court held that the requirement to plead a prima facie case was inappropriate, and that a plaintiff need only provide information which "'give[s] the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.'" 122 S.Ct. at 998 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see also Aguilar v. New York Convention Ctr. Operating Co., 2002 WL 844397, at *2 (S.D.N.Y. May 2, 2002). The complaint should contain a "short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a).
Furthermore, where a plaintiff is pro se and is alleging civil rights violations, the court should proceed with caution and review claims liberally. Weinstein, 261 F.2d at 132; see also Shah v. New York State Dep't of Civil Serv., 168 F.3d 610, 614 (2d Cir. 1999). The court should apply "less stringent standards than formal pleadings drafted by lawyers," Haines v. Kerner, 404 U.S. 519, 520 (1972), and look beyond the "four corners of the complaint" to all the pleadings before the court, including the plaintiffs opposition papers. Pagan v. New York State Div. of Parole, 2002 WL 398682, at *3 (S.D.N.Y. Mar. 13, 2002); Amaker v. Haponik, 2000 WL 343772, at *1 (S.D.N.Y. Mar. 31, 2000); see also Burgess v. Goord, 1999 WL 33458, at *1 n. 1 (S.D.N.Y. Jan. 26, 1999).
C. Title VII and the ADEA
Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1) (West 1994). Within this provision, it is unlawful to "fail or refuse to hire" an individual based on the above categories. Id. The ADEA makes it "unlawful for an employer to fail or refuse to hire . . . or otherwise discriminate against any individual . . . because of such individual's age" if the person has reached the age of forty. 29 U.S.C.A. §§ 623(a)(1) and 631(a) (West 2002).
As an African American born in 1938, Johnson is a member of protected classes under Title VII and the ADEA. However, Johnson's statement in his complaint that "I feel there were positions available" does not sufficiently allege a cognizable claim under either of these statutes for the Court to deny CUNY's motion to dismiss. Even construing Johnson's claim liberally, as the Court is required to do with a pro se litigant, the Court finds that Johnson fails to plead a short and plain statement necessary to put CUNY on notice of his claim. Johnson's complaint alleges "failure to hire," Complaint at 3, but it also states that "there were no positions available at [OIR] at that time." Id. at 4. Although he claims employment discrimination based on a failure to hire, he fails to indicate for which available position CUNY failed to hire him. Because a plaintiffs "failure to apply and be rejected for a specific position . . . is fatal to . . . failure to promote . . . claims[,]" Brown v. Coach Stores, 163 F.3d 706, 709 (2d Cir. 1998), this Court finds that Johnson has not provided CUNY with "fair notice of . . . the grounds upon which [his claim] rests." Swierkiewicz, 122 S.Ct. at 998. Therefore, this Court recommends that CUNY's motion to dismiss be GRANTED.
D. Dismissal with Prejudice
Dismissal with prejudice is a "harsh remedy to be used only in extreme situations." Valentine v. Museum of Modern Art, 29 F.3d 47, 49 (2d Cir. 1994) (citing Bobel v. Rensselaer Polytechnic Inst., 916 F.2d 759, 764 (2d Cir. 1990), cert. denied, 499 U.S. 943 (1991)). Although courts may order dismissal with prejudice in order to "deter those who might be tempted to such conduct in the absence of such a deterrent," Nat'l Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 643 (1976), this mechanism is used mostly in cases where a plaintiff has either violated a court order or refused to appear for a court proceeding. A dismissal with prejudice may also be granted in situations where the plaintiff has been given the opportunity to amend pleadings in order to comply with the law, but is "wholly unable to remedy the defect in its pleadings." Jeannette Coquette Co., Inc. v. Hartford Fire Ins. Co., 1995 WL 363864, at *5 (S.D.N.Y. June 19, 1995). When a plaintiff is pro se, however, a court must warn the plaintiff that non-compliance with the order can result in dismissal with prejudice. Bobel, 916 F.2d at 764.
In the instant case, Johnson was not forewarned that the lack of factual support for his claim would result in a dismissal with prejudice. Additionally, Johnson's failure to sufficiently plead has not created a situation that merits this "extreme remedy." See Valentine, 29 F.2d at 49. Therefore, this Court recommends that Johnson's claim be DISMISSED WITHOUT PREJUDICE.
IV. CONCLUSION
For the reasons stated above, the undersigned recommends that CUNY's motion to dismiss the amended complaint be GRANTED.