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GROSSMAN v. SUFFOLK COUNTY DIST. ATTORNEY'S OFFICE

November 20, 1991

SIDNEY GROSSMAN, PLAINTIFF,
v.
THE SUFFOLK COUNTY DISTRICT ATTORNEY'S OFFICE AND THE NEW YORK STATE EMPLOYEES RETIREMENT SYSTEM, DEFENDANTS.



The opinion of the court was delivered by: Wexler, District Judge.

MEMORANDUM AND ORDER

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.

I. BACKGROUND

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.

II. MOTION TO DISMISS

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. 1347, 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 court.*fn1

1. Pendent State Claim

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 claim

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 ...


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