Celotto v. New York State Department of Transportation et Al.

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , MOTION to Dismiss for Lack of Jurisdiction

W.D.N.Y.March 16, 2017

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK _____________________________________ TIFFANY J. CELOTTO, Plaintiff, -vs- NEW YORK STATE DEPARTMENT OF TRANSPORTATION, and JOHN RYAN, in his individual capacity, Defendants. Defendant, the New York State Department of Transportation, by its attorney, Eric T. Schneiderman, Attorney General of the State of New York, Kim S. Murphy, Assistant Attorney General, of counsel, hereby gives notice that, at a time and date to be determined by the Court, it will move and apply to the Court for an order dismissing the amended complaint against it pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Good cause for granting the motion exists for the reasons set forth in the accompanying memorandum of law. DATED: Buffalo, New York March 16, 2017 ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendant NEW YORK STATE DEPARTMENT OF TRANSPORTATION BY: s/Kim S. Murphy KIM S. MURPHY Assistant Attorney General of Counsel NOTICE OF MOTION TO DISMISS THE COMPLAINT 16-CV-1038 Case 1:16-cv-01038-LJV Document 9 Filed 03/16/17 Page 1 of 3 350 Main Street, Suite 300A Buffalo, New York 14202 Telephone: (716) 853-8477 Kim.Murphy@ag.ny.gov Case 1:16-cv-01038-LJV Document 9 Filed 03/16/17 Page 2 of 3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK _________________________________ TIFFANY J. CELOTTO, Plaintiff, 16-CV-1038 -vs- NEW YORK STATE DEPARTMENT OF TRANSPORTATION, and JOHN RYAN, in his individual capacity, Defendants. _______________________________ CERTIFICATE OF SERVICE I hereby certify that on March 16, 2017, I electronically filed the foregoing Notice of Motion to Dismiss with the Clerk of the District Court using its CM/ECF system, which would then electronically notify the CM/ECF participants in this case. DATED: Buffalo, New York ERIC T. SCHNEIDERMAN March 16, 2017 Attorney General of the State of New York Attorney for Defendant NEW YORK STATE DEPARTMENT OF TRANSPORTATION BY: s/ Kim S. Murphy KIM S. MURPHY Assistant Attorney General of Counsel Main Place Tower 350 Main Street, Suite 300A Buffalo, New York 14202 Telephone: (716) 853-8477 Kim.Murphy@ag.ny.gov Case 1:16-cv-01038-LJV Document 9 Filed 03/16/17 Page 3 of 3 `UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK _________________________________________ TIFFANY J. CELOTTO, Plaintiff, 16-CV-1038 vs. NEW YORK STATE DEPARTMENT OF TRANSPORTATION, and JOHN RYAN, in his individual capacity, Defendants. __________________________________________ MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS BY DEFENDANT THE NEW YORK STATE DEPARTMENT OF TRANSPORTATION ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendant NEW YORK STATE DEPARTMENT OF TRANSPORTATION BY: s/ Kim S. Murphy KIM S. MURPHY Assistant Attorney General of Counsel Main Place Tower, Suite 300A 350 Main Street Buffalo, New York 14202 (716)853-8477 Kim.Murphy@ag.ny.gov Case 1:16-cv-01038-LJV Document 9-1 Filed 03/16/17 Page 1 of 20 Preliminary Statement Plaintiff Tiffany J. Celotto brings this action for alleged violations during her employment with defendant the New York State Department of Transportation (“DOT”). Plaintiff herein also names her DOT supervisor John Ryan, in his individual capacity, as a defendant. Co-defendant Ryan is separately represented. Complaint Docket No. 1, ¶¶ 5-9. Although the complaint purports to set forth four causes of action, only the first and second are asserted against the DOT. In the first cause of action, plaintiff alleges a violation of § 504 of the Rehabilitation Act, 29 U.S.C. § 794 ( “Rehabilitation Act”), for employment discrimination as a result of her pregnancy.1 Complaint Docket No. 1, First Cause of Action, ¶¶ 125-128. In the second cause of action, plaintiff alleges a violation of the Fair Labor Standards Act, 29 U.S.C. § 207(r) (“FLSA”), for retaliation for requesting adequate space and time to express breast milk. Complaint Docket No. 1, Second Cause of Action, ¶¶ 129-138. Plaintiff herein seeks compensatory damages and attorney’s fees along with declaratory and injunctive relief concerning DOT’s breast pumping policy and calculation of maternity leave. Complaint Docket No. 1, Prayer for Relief. This memorandum of law is submitted on behalf of DOT in support of its motion to dismiss the complaint against it. Specifically, DOT seeks an order dismissing: (1) the first cause of action pursuant to under Fed.R.Civ.P. 12(b)(6) for failure to state a cause of action as plaintiff has alleged neither a prima facie case of disability discrimination under the “regarded as” definition of disability nor adverse action; and (2) the second cause of action pursuant to the 1Notably, plaintiff did not bring this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as amended by the Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k), which is the statute designed to protect pregnant women from workplace discrimination. Although plaintiff also complains of a “sexually hostile work environment” after her return to work from maternity leave (Complaint, Docket No. 1, ¶ 103), such claim is not Case 1:16-cv-01038-LJV Document 9-1 Filed 03/16/17 Page 2 of 20 2 FLSA under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction as barred by the Eleventh Amendment, except to the extent of prospective injunctive relief, which request should be dismissed as moot. Statement of Facts The relevant facts for purposes of this motion construed most favorably to plaintiff as taken from the complaint are summarized as follows. Plaintiff began employment with the DOT on October 23, 2013 and thereafter notified defendants that she was pregnant in June 2014. Complaint Docket No. 1, ¶ 11, 13. She then unsuccessfully attempted to give her supervisor defendant John Ryan a note from her doctor that she needed to be placed on light duty. Complaint, Docket No. 1, ¶ 11-16. Plaintiff alleges that thereafter Ryan started treating her differently and cites to purported examples of heavy duty work assignments even though light duty existed and derogatory comments about her pregnancy. Complaint, Docket No. 1, ¶ 16-28. Plaintiff went on maternity leave on November 16, 2014 and gave birth to a son on December 1, 2014. Complaint, Docket No. 1, ¶ 29, 31. She returned to work on February 17, 2015 without any medical restrictions. Complaint, Docket No. 1, ¶ 33, 37. Plaintiff complains that Ryan incorrectly applied her maternity leave time (in contrast to disability leave time) so that she needed to return to work one month early and pay back $6000 in wages. Complaint, Docket No. 1, ¶ 37. Upon her return to work, plaintiff notified Ryan of her intention to pump breast milk at work. He allegedly responded that it was not his problem and told her get out of his office so covered by the Rehabilitation Act or FSLA but instead would be a Title VII claim. Case 1:16-cv-01038-LJV Document 9-1 Filed 03/16/17 Page 3 of 20 3 she never brought the subject up with him again. Complaint, Docket No. 1, ¶ 40-43. According to plaintiff, DOT has no policy about federal workplace lactation rights and afforded her no appropriate breast pumping location and denied her appropriate pumping breaks. Plaintiff concededly waited until June 4, 2016 to first complain to DOT’s administrative services director and thereafter to Human Resources in Albany on June 8, 2016. Complaint, Docket No. 1, ¶ 112, 118. This was two years after she notified Ryan she was pregnant and one year and four months after she returned to work from her maternity leave. Plaintiff also concedes that she only complained about alleged incidents occurring after return from her maternity leave, namely Ryan’s miscalculation of her maternity leave, the lack of appropriate breast milk pumping locations and sexual harassment. Id. She raises no allegations that she complained about any work place conditions during her pregnancy such as Ryan’s alleged refusal to give her light duty assignments or his treatment of her. Argument LEGAL STANDARDS FOR GRANTING THE MOTION TO DISMISS Plaintiff’s Rehabilitation Act claim does not set forth a cognizable cause of action as the complaint fails to assert a prima facie case that DOT regarded her as having an actual or perceived qualifying disability or subjected her to an adverse employment action based on a perceived disability. “To survive a motion to dismiss [for failure to state a cause of action], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2005). Case 1:16-cv-01038-LJV Document 9-1 Filed 03/16/17 Page 4 of 20 4 The Supreme Court clarified the appropriate pleading standard in Ashcroft v. Iqbal, setting forth a two-pronged approach for courts deciding a motion to dismiss. 556 U.S. at 678. The Court instructed district courts to first identify pleadings that are merely conclusions, which are not entitled to the assumption of truth. Id. Consequently, courts must first disregard anything in the complaint that is merely a legal conclusion couched as a factual allegation. Bell Atlantic Corp. v. Twombly, 550 U.S. at 556. A claim only has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id.; Ashcroft, 556 U.S. at 679. “[W]here the well- pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not "show[n]" -- ‘that the pleader is entitled to relief.’” Id. Thus, if the court can only infer merely the possibility of misconduct from the well-pled facts, the complaint cannot survive a motion to dismiss. Id. See generally Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir.2010) (adopting and discussing the pleadings standard of Twombly and Iqbal). Additionally, this Court lacks jurisdiction to entertain the second cause of action under the FSLA. A case is “properly dismissed for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(l) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. U.S., 201F.3d110, 113 (2d Cir. 2000). “A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Id. In reviewing a motion to dismiss for lack of subject matter jurisdiction, a court may consider Case 1:16-cv-01038-LJV Document 9-1 Filed 03/16/17 Page 5 of 20 5 matters outside the pleadings. Id. As set forth below, it is respectfully submitted that plaintiff herein cannot meet these standards necessary to survive the instant motion to dismiss. POINT I THE REHABILITATION ACT CLAIM FAILS TO STATE A CAUSE OF ACTION. The first cause of action brought by plaintiff alleges a violation of Rehabilitation Act against DOT. Complaint, Docket No. 1, ¶ 125-128. The Rehabilitation Act protects "qualified individual[s] with a disability." 29 U.S.C. § 794(a). Section 504 of the Rehabilitation Act, 29 U.S.C. §794(a), provides in relevant part that “[n]o otherwise qualified individual with a disability…shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” As plaintiff so acknowledges (see Complaint, Docket No. 1, ¶ 126)2, because the Americans with Disabilities Act, 42 U.S.C. § 12111 et seq. (“ADA”) and the Rehabilitation Act are very similar, courts “look to case law interpreting one statute to assist us in interpreting the other." Francis v. City of Meriden, 129 F.3d 281, 284 n.4 (2d Cir. 1997). See also B.C. v. Mount Vernon Sch. Dist., 837 F.3d 152, 159 (2d Cir. 2016) (the Rehabilitation Act expressly incorporates, with certain qualifications not applicable here, the ADA’s definition [of disability])”. 2At ¶ 126 of the complaint, plaintiff also references Title I of the Americans with Disabilities Act, 42 U.S.C. § 12111 et seq. Yet, plaintiff does not and could not assert an ADA claim against DOT by virtue of the Supreme Court’s holding in Univ. of Alabama v. Garrett, 531 U.S. 356 (2001) which precluded such suits against state governments for employment discrimination. Case 1:16-cv-01038-LJV Document 9-1 Filed 03/16/17 Page 6 of 20 6 In order to establish a violation under the ADA in the employment context, plaintiff herein bears the initial burden of establishing a prima facie case." Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869 (2d Cir. 1998). To establish her prima facie case of discrimination under the ADA, plaintiff must show that: (1) her employer is subject to the ADA; (2) she is disabled within the meaning of the ADA or perceived to be so by her employer; (3) she was otherwise qualified to perform the essential functions of his job with or without reasonable accommodation; and (4) she suffered an adverse employment action because of her disability. Ryan v. Grae & Rybicki, P.C, 135 F.3d at 869-70. “Additionally, to establish a violation under the Rehabilitation Act, a plaintiff must show that the defendants receive federal funding.” Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003). DOT respectfully submits that plaintiff herein is not an individual with a qualifying disability so that her first cause of action fails to set forth a cognizable claim under the Rehabilitation Act. Moreover, plaintiff has not alleged a prima facie case that she suffered an adverse employment action because of her disability. For these reasons, her Rehabilitation Act claim should be dismissed as a matter of law. First, plaintiff’s Rehabilitation Act claim against DOT fails to indicate the requisite disability under any of the following three statutory definitions. The term disability under the ADA means: “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment...” 42 U.S.C. §12102(1); Widomski v. SUNY at Orange, 748 F.3d 471, 472 (2d Cir. 2014). Case 1:16-cv-01038-LJV Document 9-1 Filed 03/16/17 Page 7 of 20 7 Likewise, the Rehabilitation Act defines an individual with a disability as a person who: “(i) has a physical or mental impairment which for such individual constitutes or results in a substantial impediment to employment; and (ii) can benefit in terms of an employment outcome from vocational rehabilitation services…”. The Rehabilitation Act further expressly incorporates the “regarded as” definition of disability under the ADA, 42 U.S.C.§12102(1)(C). See 29 U.S.C. § 705(20)(C).3 As an initial matter, plaintiff herein expressly concedes that she was not disabled because of her pregnancy so that she does not and could not allege a qualifying disability under the first ADA definition. Complaint, Docket No. 1, ¶ 128. This concession is in accordance with the settled view is that pregnancy does not typically constitute a disability under the ADA. See Froehlich v. Holiday Organization, 2012 U.S. Dist. LEXIS 139610, at *19 (E.D.N.Y. 2012) (court rejects pregnancy as a qualifying disability noting that even plaintiff concedes that no court has concluded that pregnancy in and of itself is a disability); Sam-Sekur v. Whitmore Grp. Ltd., 2012 U.S. Dist. LEXIS 83586, at *25 (E.D.N.Y. 2012) (accord); Leahy v. Gap, Inc., 2008 U.S. Dist. LEXIS 58812, at *14 (E.D.N.Y. July 29, 2008) ("'[e]very court to consider the question of whether pregnancy in and of itself is a 'disability' within the meaning of the ADA has 3 The Rehabilitation Act at 29 U.S.C. § 705(20)(C) refers to the more stringent pre-2009 definition of perceived disability which is limited to only those physical or mental impairments that are perceived to substantially limit major life activities. See e.g. Ragusa v. Malverne Union Free Sch. Dist., 381 Fed. Appx. 85, 87 n.2 (2d Cir.2010) (citations omitted). Plaintiff here does not allege that her pregnancy substantially limited any major life activity and, therefore, could not assert a disability under the pre-2009 ADA definition. For "regarded as" claims arising under the ADA after January 1, 2009, a plaintiff is not required to show a perception that the alleged physical or mental impairment "is perceived to limit a major life activity." 42 U.S.C. § 12102(3)(A). DOT analyzes this matter under the more stringent post-2009 ADAAA standards. Case 1:16-cv-01038-LJV Document 9-1 Filed 03/16/17 Page 8 of 20 8 concluded that it is not.'" (quoting Green v. New York City Health and Hosp. Corp., 2008 U.S. Dist. LEXIS 2832, at *14-15 (S.D.N.Y. Jan. 15, 2008), aff'd 343 F. App'x 712 (2d Cir. 2009); see also Dantuono v. Davis Vision, Inc., 2009 U.S. Dist. LEXIS 122119, at *12 (E.D.N.Y. Dec. 29, 2009) (inability to lift more than ten pounds as a result of pregnancy was temporary, and therefore not a disability). Plaintiff instead relies upon the limited “regarded as” disabled definition and alleges that co-defendant Ryan “perceived her as disabled and treated her poorly because of her pregnancy and because of her medical restrictions.” Id. In order to set forth a cause of action under the ADA’s “regarded as” being disabled provision under the expanded definition in the ADA Amendments Act of 2008, effective January 1, 2009 (hereinafter “ADAAA”), plaintiff must sufficiently allege "that … she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." 42 U.S.C. § 12102(3)(A) (emphasis added). The applicable legal authority, however, prohibits transforming pregnancy - which is not considered an impairment under the ADA - to a qualifying disability by reliance upon the “regarded as” provision. To the contrary, the “regarded as” provision still requires the employer to commit an act prohibited by the ADA because it regarded the employee as having an actual or perceived impairment. Id. In fact, the EEOC’s interpretative guideline to Section 1630.2(h) expressly excludes pregnancy as an impairment for purposes for a qualifying disability including under the Case 1:16-cv-01038-LJV Document 9-1 Filed 03/16/17 Page 9 of 20 9 “regarded as” provision. 29 C.F.R. Pt. 1630 App. § 1630.8. Under the law of this Circuit, the EEOC's regulations are entitled to “great deference” in interpreting the ADA." Muller v. Costello, 187 F.3d 298, 312 [2d Cir. 1999]) (other citations omitted). Therefore, based upon such interpretation, plaintiff’s Rehabilitation Act claim fails to state a cause of action because pregnancy is not an actual or perceived impairment within the meaning of the act. Likewise, the Northern District in Marchioli v. Garland Co., Inc., 2011 U.S. Dist. LEXIS 54227, *19-20 (2011) so recognized in stating: As the EEOC has correctly opined, "[b]ecause pregnancy is not the result of a physiological disorder, it is not an impairment." EEOCCM § 902.2(c)(3), 2009 WL 4782107 (Nov. 21, 2009) (citations omitted); see also Spees v. James Marine, Inc., 617 F.3d 380, 396-97 (6th Cir. 2010). Although a plaintiff bringing a claim under the "regarded as" provision of the ADA no longer needs to establish that his employer regarded his "impairment" as substantially limiting a major life activity, the plaintiff must still allege that he suffers from or is regarded as suffering from a physical or mental impairment. See 42 U.S.C. § 12102(3)(A). "Pregnancy is not, by itself, a physical impairment." (collecting cases). This matter also is analogous to Sam-Sekur v. Whitmore Grp. Ltd., 2012 U.S. Dist. LEXIS 83586, at *25-26, where, like here, the Eastern District dismissed the plaintiff’s claim that her supervisor mistreated her when he learned of her pregnancy. Id. at *4-5, 25-26. The court also rejected plaintiff’s attempt to transform her pregnancy into a qualifying disability, which it clearly is not, by reliance upon the “regarded as” exception. Id. at 25-26. The court reasoned: Nor does plaintiff's pregnancy render her disabled under 42 U.S.C. § 12102(1)(C) because she has not sufficiently alleged that she was regarded as having such an impairment. Although an individual need not demonstrate that her impairment was perceived by others to limit a major life activity, an individual must still demonstrate that she has an impairment. Pregnancy by itself, Case 1:16-cv-01038-LJV Document 9-1 Filed 03/16/17 Page 10 of 20 10 however, is not generally considered an impairment (citations omitted). Moreover, as discussed supra, plaintiff has not alleged any physiological impairment as a result of her pregnancy that could conceivably fall within one of the extremely rare cases in which courts have found that conditions that arise out of pregnancy qualify as a disability.4 Further, rejecting pregnancy as a qualifying impairment for the “regarded as” provision “is in accordance with the statutory mandate that such provision does not apply to impairments that are transitory and minor. 42 U.S.C. § 12102(3)(B). Similarly, courts within this [C]ircuit, and the vast majority of courts elsewhere which have considered the question, have held that temporary disabilities do not trigger the protections of the ADA because individuals with temporary injuries are not disabled persons within the meaning of the act." Balgley v. NYC Health & Hosp. Corp., 2017 U.S. Dist. LEXIS 3584, at * 9 (S.D.N.Y. 2017); see also Sam-Sekur v. Whitmore Grp. Ltd., 2012 U.S. Dist. LEXIS 83586, at *18. Pregnancy is considered a transitory condition which does not meet the statutory definition of disability under any prong. See e.g. Dantuono v. Davis Vision, Inc., 2009 U.S. Dist. LEXIS 122119, at *12. Nor is it enough for plaintiff to demonstrate that DOT considered her to have a disability of any sort. “[R]ather, the plaintiff must show that the employer regarded the individual as disabled within the meaning of the ADA.” Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 646 (2d Cir. 1998). “[T]he mere fact that an employer is aware of an employee’s impairment is insufficient to demonstrate either that the employer regarded the employee as disabled or that perception caused the adverse employment action.” Cavallaro v. Corning, 93 F.Supp.2d 334, 345 (W.D.N.Y. 2000) (quotations omitted). At best, plaintiff has alleged that she 4 Plaintiff herein does not allege that she suffered any condition arising out of her pregnancy in Case 1:16-cv-01038-LJV Document 9-1 Filed 03/16/17 Page 11 of 20 11 made Ryan aware of her pregnancy and doctor’s note. Complaint, Docket No. 1, ¶ 16-17. Yet, according to plaintiff’s own allegations, neither Ryan nor any other DOT employee ever indicated that she could not perform her job while pregnant or considered her to have any impairment. To the contrary, Ryan’s alleged remarks to plaintiff instead show he clearly did not think her pregnancy was a disability. Id. at ¶ 17, 27. Plaintiff even worked until shortly before giving birth. Id. at ¶ 29, 31. Under such circumstances, plaintiff’s allegations are simply insufficient as a matter of law to show that DOT perceived her as impaired for purposes of the ADA and Rehabilitation Act. See Hinz v. Perry, 2016 U.S. App. LEXIS 11074, at *3 (2d Cir. 2016). Rather, plaintiff’s mere legal conclusion that DOT “regarded” her as disabled, which is couched as a factual allegation, should be disregarded by this Court. Bell Atlantic Corp. v. Twombly, 550 U.S. at 570. Nor does has plaintiff herein plead sufficient factual content to render her Rehabilitation Act claim plausible on its face, which could allow this Court to draw a reasonable inference that the DOT is liable and that act. Id. at 556; Ashcroft v. Iqbal, 556 U.S. at 679. Additionally, plaintiff herein never alleges that she even requested any reasonable accommodation nor made any complaint that Ryan allegedly had her lift heavy objects and exposed her to toxic chemicals while pregnant. Notwithstanding, the basis of plaintiff’s “regarded as” claim appears to be that Ryan ignored her doctor’s note by the duties he assigned her, which is akin to a request for a reasonable accommodation. See Complaint, Docket No. 1, ¶ 19-29. addition to her non-qualifying pregnancy, which could be considered a qualifying disability. Case 1:16-cv-01038-LJV Document 9-1 Filed 03/16/17 Page 12 of 20 12 The ADAAA, however, expressly excludes claims by a plaintiff who is “regarded as disabled” for alleged denial of reasonable accommodations. 42 U.S.C. § 12201(h) (a covered entity need not provide a reasonable accommodation to an individual who meets the definition of disability solely under the “regarded as” disabled provision). See also Hernandez v. Int’l Shoppes, LLC, 100 F.Supp.3d 232, 251 (E.D.N.Y. 2015) (citations omitted) (employers do not need to reasonably accommodate individuals who do not have an actual disability); Graham v. Three Vill. Cent. Sch. Dist., 2013 U.S. Dist. LEXIS 143264, at *32 (E.D.N.Y. 2013) (the ADAAA now makes clear that no failure to accommodate claim can be made, as a matter of law, for an individual who was "regarded as" disabled, rather than who was actually disabled). Second, the complaint also fails to set forth a prima facie showing of the fourth requirement that plaintiff suffered any adverse employment action because of her disability. Ryan v. Grae & Rybicki, P.C., 135 F.3d at 869-70. The only adverse action plaintiff alleges is that she had to return to work a month early and to repay the state $6000.00 in wages because Ryan allegedly applied her maternity leave. Complaint, Docket No. 1, ¶ 34, 128. Yet, plaintiff concededly returned to work without restrictions and thus was not disabled so she cannot claim disability discrimination. Id. at ¶ 33, 37. Therefore, by her own admission, plaintiff herein did not suffer this alleged adverse action because of any non-existent disability or perceived impairment as she was neither pregnant nor disabled when Ryan allegedly miscalculated her maternity leave. As this simply is not the type of complaint which the Rehabilitation Act was designed to protect, plaintiff’s legal conclusion again should be disregarded, and this cause of actin instead should be dismissed for Case 1:16-cv-01038-LJV Document 9-1 Filed 03/16/17 Page 13 of 20 13 her failure to show its plausibility on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. at 556; Ashcroft v. Iqbal, 556 U.S. at 679.5 Accordingly, the Rehabilitation Act claim against DOT should be dismissed for failure to state a cause of action as plaintiff’s failure to establish either the second or forth requirements of her prima facie case of disability discrimination by DOT. POINT II THIS COURT LACKS JURISDICTION OVER THE FLSA CLAIM AGAINST DOT. The second cause of action brought by plaintiff alleges a violation of the FLSA against DOT for retaliation for allegedly violating her workplace lactation rights under 29 U.S.C. § 207(r). Complaint, Docket No. 1, ¶ 129-138. This Court, however, lacks subject matter jurisdiction over the FLSA claim against DOT pursuant to the Eleventh Amendment, which mandates its dismissal. A federal claim against the State and its agencies is subject to dismissal pursuant to the Eleventh Amendment absent an exception to or waiver of the State’s sovereign immunity. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984). In Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996), the Supreme Court ruled that Congress lacks power under the Commerce Clause to abrogate the States' sovereign immunity from suits commenced or 5 Again, plaintiff failed to bring this action pursuant to Title VII or the PDA. Additionally, plaintiff properly excludes any claim of a sexually hostile work environment from this action. Because her allegations of a “sexually hostile work environment” (emphasis added) are limited to after her return to work from maternity leave when she was no longer pregnant and not disabled (Complaint, Docket No. 1, ¶ 88, 94, 103, 112 and 118), such claim also is not covered Case 1:16-cv-01038-LJV Document 9-1 Filed 03/16/17 Page 14 of 20 14 prosecuted in the federal courts. Cf. Alden v. Maine, 527 U.S. 706, 712 (1999) (upon consideration of Seminole Tribe in Mills v. Maine, 118 F.3d 37 (1st Cir. 1997), Supreme Court dismisses FLSA claim against State of Maine in state court noting prior dismissal of same action in federal court for lack of subject matter jurisdiction on sovereign immunity grounds). Thus, New York State cannot be said to have waived its immunity from suit by virtue of this Supreme Court precedent. The Supreme Court’s opinion in Pennhurst plainly states that sovereign immunity bars a federal court from reviewing any state law claim against state agencies and officials, including plaintiff’s claims under the FSLA. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. at 106 and 112 (“it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law”). To the extent plaintiff seeks to impose a liability under federal law which must be paid from public funds in the State treasury, the Eleventh Amendment bars such a suit. Edelman v. Jordan, 415 U.S. 415 U.S. 651 (1974). Thus, it is well-settled that States and their agencies are immune from suit in federal court as to federal claims. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. at 100; Quern v. Jordan, 440 U.S. 332 (1979); Alabama v. Pugh, 438 U.S. 731 (1978); Edelman v. Jordan, 415 U.S. at 677. Nor can plaintiff herein escape this holding by citing the supplemental jurisdiction of this Court. The Court in Pennhurst specifically considered this argument and rejected it: "[N]either pendent jurisdiction nor any other basis of jurisdiction may override the Eleventh Amendment. A federal court must examine each by the Rehabilitation Act or FSLA but instead would be a Title VII claim. Case 1:16-cv-01038-LJV Document 9-1 Filed 03/16/17 Page 15 of 20 15 claim in a case to see if the court’s jurisdiction over that claim is barred by the Eleventh Amendment. We concluded above that a claim that state officials violated state law in carrying out their official responsibilities is a claim against the State that is protected by the Eleventh Amendment. We now hold that this principle applies as well to state law claims brought into federal court under pendent jurisdiction." Pennhurst, 465 U.S. at 121 (footnote and citation omitted). Nor should plaintiff’s request for injunctive relief survive. Under Ex parte Young, 209 U.S. 123, 129 (1908), there is a narrow exception to the application of sovereign immunity principles recognized to the extent that a state officer threatens to prospectively violate the Federal Constitution even if prospective relief may have an adverse impact on State coffers. See e.g. Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993); Matter of Giaquinto v. Commissioner of New York State Department of Health, 11 N.Y.3d 179, 187-88 (2008). Yet, as the Supreme Court clarified in Edelman v. Jordan, federal courts may not issue injunctions against State officials which would require an award of retroactive monetary relief. Edelman, 415 U.S. at 663, 677 (when a plaintiff sues a state official alleging violation of federal law, court may award an injunction directed to future conduct but not retroactive monetary relief). Moreover, as set forth in Point III below, plaintiff’s request for purported prospective injunctive relief cannot be maintained on mootness grounds. Consequently, the second cause of action against DOT should be dismissed pursuant to the Eleventh Amendment and doctrine of sovereign immunity. Accordingly, this Court lacks subject matter jurisdiction and, therefore, should dismiss the FLSA Act claim against DOT. POINT III Case 1:16-cv-01038-LJV Document 9-1 Filed 03/16/17 Page 16 of 20 16 PLAINTIFF'S REQUEST FOR INJUNCTIVE RELIEF SHOULD BE DENIED AS MOOT. Plaintiff herein seeks injunctive relief requesting DOT to make changes with respect to a nursing mother’s lactation rights. Complaint Docket No. 1, Prayer for Relief §§ b-j. Yet, plaintiff stopped breastfeeding two years ago, and her son was born on December 1, 2014 so it is not plausible to think she would resume breastfeeding. Complaint Docket No. 1, ¶ 90. Consequently, plaintiff’s claim for any injunctive relief has been rendered moot. In Haley v. Pataki, 60 F.3d 137, 140 - 41 (2nd Cir 1995) (citations omitted), the Second Circuit reiterated the well-settled principle that an action becomes moot when “the parties lack of legally cognizable interest in the outcome ... it is axiomatic that there must be a continuing controversy capable of redress by this Court.” Similarly, in Haley, the Governor was enjoined from withholding salaries of legislative employees pending a battle over the State budget. The Second Circuit held that the Governor’s compliance with the terms of the injunction requiring the employees to be paid mooted the action. Id. at 140. The Second Circuit further held that the limited “capable of repetition, yet evading review” exception to the mootness doctrine was inapplicable even though it was probable that a battle over the budget would occur the following year. Id. Rather, the Second Circuit reasoned that the mere “theoretical possibility” that the scenario will arise again is not sufficient to warrant application of the exception. Id. at 141. Further, the Second Circuit cautioned that the “capable of repetition, yet evading review” exception to the mootness doctrine “applies only in exceptional situations.” Id. at 141 (citations omitted). In the absence of a class action, as here, this exception is limited to situations where Case 1:16-cv-01038-LJV Document 9-1 Filed 03/16/17 Page 17 of 20 17 “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Id. (citations omitted). Plaintiff sets forth no allegations that she is pregnant again and intending to breastfeed. T herefore, plaintiff here has failed to satisfy the “capable of recurring” prong of the mootness exception as discussed by the Second Circuit in Haley. Accordingly, plaintiff's claim for injunctive relief with respect should be denied as moot. Conclusion For the foregoing reasons, DOT’s motion to dismiss should be granted, and this Court should dismiss: the first cause of action pursuant to under Fed.R.Civ.P. 12(b)(6) for failure to state a cause of action as plaintiff has alleged neither a prima facie case of disability discrimination under the “regarded as” definition of disability nor adverse action; and the second cause of action pursuant to the FLSA under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction as barred by the Eleventh Amendment, except to the extent of prospective injunctive relief, which request should be dismissed as moot. DATED: Buffalo, New York March 16, 2017 ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendant The New York State Department of Transportation BY: s/ Kim S. Murphy KIM S. MURPHY Assistant Attorney General, of Counsel Main Place Tower, Suite 300A 350 Main Street Buffalo, New York 14202 Case 1:16-cv-01038-LJV Document 9-1 Filed 03/16/17 Page 18 of 20 18 (716) 853-8477 Kim.Murphy@ag.ny.gov Case 1:16-cv-01038-LJV Document 9-1 Filed 03/16/17 Page 19 of 20 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK _________________________________ TIFFANY J. CELOTTO, Plaintiff, 16-CV-1038 -vs- NEW YORK STATE DEPARTMENT OF TRANSPORTATION, and JOHN RYAN, in his individual capacity, Defendants. ____________________________________ CERTIFICATE OF SERVICE I hereby certify that on March 16, 2017, I electronically filed the foregoing Memorandum of Law with the Clerk of the District Court using its CM/ECF system, which would then electronically notify the CM/ECF participants in this case. DATED: Buffalo, New York ERIC T. SCHNEIDERMAN March 16, 2017 Attorney General of the State of New York Attorney for Defendant NEW YORK STATE DEPARTMENT OF TRANSPORTATION BY: s/ Kim S. Murphy KIM S. MURPHY Assistant Attorney General of Counsel Main Place Tower 350 Main Street, Suite 300A Buffalo, New York 14202 Telephone: (716) 853-8477 Kim.Murphy@ag.ny.gov Case 1:16-cv-01038-LJV Document 9-1 Filed 03/16/17 Page 20 of 20