The opinion of the court was delivered by: Wexler, District Judge.
In the above referenced case, plaintiff Sidney Grossman ("plaintiff"),
seeks to enjoin the New York State Employees Retirement System
("NYSERS"), the Suffolk County District Attorney's Office ("District
Attorney") and their officers, agents and employees from forcing him to
either change pension plans or give up his job. He brings this action
under the Age Discrimination in Employment Act, 29 U.S.C. § 623
("ADEA"), the Equal Protection Clause of the Fourteenth Amendment, and
the New York State Human Rights Law, New York Executive Law § 296.
NYSERS moves to dismiss the complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) and District Attorney joins this motion as to the
dismissal of the pendent state claim.
Grossman, a 64 year old Detective Lieutenant, has worked for Suffolk
County since 1967 and is presently employed by the District Attorney.
Grossman alleges that in November 1988 he was told by a representative of
NYSERS that he would be terminated unless he would change his pension
plan from the plan provided under New York Retirement and Social Security
Law § 89-d to the less advantageous plan provided under New York
Retirement and Social Security Law § 75-g. He further alleges that
individuals under the age of 62 are not required to make this change.
It is well settled that a complaint should not be dismissed "unless it
appears beyond doubt that plaintiff can prove no set of facts in support
of his claim which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80, (1957). Moreover,
on a motion to dismiss, the allegations in the plaintiff's complaint must
be accepted as true. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079,
1081, 31 L.Ed.2d 263 (1972).
Defendant, NYSERS moves to dismiss this complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6) on four grounds: (1) the complaint is
barred by the Eleventh Amendment to the United States Constitution; (2)
NYSERS is not an employer within the meaning of the ADEA; (3) NYSERS is
not a person within the meaning of 42 U.S.C. § 1983; and (4) the
pendent state claim is barred by New York Executive Law § 297(9). The
District Attorney joins this motion to the extent it seeks the dismissal
of the pendent state claim.
A. Eleventh Amendment Grounds
The Eleventh Amendment bars federal courts from hearing "any suit in
law or equity, commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of any Foreign
State." U.S. Const. amend. XI; Missouri v. Fiske, 290 U.S. 18, 27, 54
S.Ct. 18, 21, 78 L.Ed. 145 (1933). NYSERS first argues that plaintiff's
claims against it are barred because the Eleventh Amendment deprives this
Court of jurisdiction over the State in a suit brought by a citizen of
that State. Edelman v. Jordan, 415 U.S. 651, 662-63, 677-78, 94 S.Ct.
1362-63, 39 L.Ed.2d 662 (1974); Employees v. Department of Public Health
& Welfare, 411 U.S. 279, 280, 93 S.Ct. 1614, 1616, 36 L.Ed.2d 251
(1973). It is uncontested that NYSERS is the State of New York for
purposes of the Eleventh Amendment, see Russell v. Dunston, 896 F.2d 664,
665 (2nd Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 50, 112 L.Ed.2d 26
(1990); Trotman v. Palisades Interstate Park Com'n, 557 F.2d 35, 38 (2nd
Cir. 1977), and that the state has not consented to be sued in federal
It is well-settled that "neither pendent jurisdiction nor any other
basis of jurisdiction may override the Eleventh Amendment. A federal
court must examine each claim in a case to see if the court's
jurisdiction over that claim is barred by the Eleventh Amendment." County
of Oneida v. Oneida Indian Nation, 470 U.S. 226, 251, 105 S.Ct. 1245,
1260, 84 L.Ed.2d 169 (1985) (quoting Pennhurst State School and Hosp. v.
Halderman, 465 U.S. 89, 121, 104 S.Ct. 900, 919, 79 L.Ed.2d 67 (1984)).
Accordingly, plaintiff's pendent state claim under New York Executive Law
§ 296 is barred by the Eleventh Amendment as against NYSERS.*fn2
2. Fourteenth Amendment Claim
The Eleventh Amendment also bars plaintiff's Fourteenth Amendment
against the state defendant. Although Grossman seeks an injunction
against NYSERS, its officers, agents and employees, he has not named any
state defendant other than NYSERS itself. In Ex parte Young, 209 U.S. 123,
28 S.Ct. 441, 52 L.Ed. 714 (1908), the Supreme Court held that a
plaintiff seeking prospective relief from a state must name as a defendant
a state official rather than a state or a state agency. See Pennhurst,
465 U.S. at 102, 104 -05, 104 S.Ct. at 909, 910. Grossman has not availed
himself of this Ex parte Young "fiction" in framing his complaint, and
therefore his Fourteenth Amendment claim against the state ...