United States District Court, Eastern District of New York
November 20, 1991
SIDNEY GROSSMAN, PLAINTIFF,
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.
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.
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
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
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 must also be
dismissed.*fn3 Santiago v. New York State Department of Correctional
Services, 945 F.2d 25 at 32, 56 Fair Empl.Prac.Cas. (BNA), 1442 (2nd
3. ADEA Claim
Plaintiff's final basis for relief against the state defendant is his
allegation that NYSERS violated the ADEA. Against this claim, the
Eleventh Amendment fails as a defense.
The Eleventh Amendment does not bar federal actions against a state
under an act passed by Congress pursuant to its powers to enforce the
prohibitions of the Fourteenth
Amendment if Congress clearly evinced its intent that the states are to
be liable for violations of that act. Atascadero, 473 U.S. at 238, 242,
105 S.Ct. at 3145, 3147; Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96
S.Ct. 2666, 2671, 49 L.Ed.2d 614 (1976). The majority of courts examining
the issue have held that the ADEA satisfies the preceding conditions and
that the Eleventh Amendment therefore does not bar suits made under it.
Santiago, at 31 (dicta); Davidson v. Bd. of Gov. of State Colleges &
Univ., 920 F.2d 441, 442-43 (7th Cir. 1990); Ramirez v. Puerto Rico Fire
Service, 715 F.2d 694, 700 (1st Cir. 1983); Barrett v. Suffolk Transp.
Services, Inc., 600 F. Supp. 81, 84 (E.D.N.Y. 1984). But see Black v.
Goodman, 736 F. Supp. 1042, 1045 (D.Mont. 1990). This Court adopts the
reasoning of the First and Seventh Circuits and holds that the Eleventh
Amendment does not bar plaintiff's claim under the ADEA.
B. NYSERS as an Employer under the ADEA
NYSERS next argues that Grossman's ADEA claim against it must be
dismissed because NYSERS is not plaintiff's employer. The ADEA prohibits
employers from age-based discrimination in certain areas of employment
and in 29 U.S.C. § 630 it defines "employer" as including "a State or
political subdivision of a State and any agency or instrumentality of a
State or a political subdivision of a State. . . ." NYSERS counters that
the foregoing definition applies only where there is an employee-employer
relationship pursuant to the "economic reality" test of Hyland v. New
Haven Radiology Associates, P.C., 794 F.2d 793 (2nd Cir. 1986) and that
Grossman's employer is the District Attorney, not New York State.*fn4
The Fair Labor Standards Act of 1938, 29 U.S.C. § 203(a), (d),
(e)(1) (1982) ("FLSA"), Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e(a), (b), (f) 1982 ("Title VII") and the ADEA have
nearly identical definitions of "employer." Since all three statutes seek
to eradicate discrimination in various
forms, cases construing the definitional provisions of one are persuasive
authority when interpreting the others. Hyland, 794 F.2d at 796. See
Lorillard v. Pons, 434 U.S. 575, 584, 98 S.Ct. 866, 872, 55 L.Ed.2d 40
(1978); Laugesen v. Anaconda Company, 510 F.2d 307, 311 (6th Cir. 1975).
In Spirt v. Teachers Insurance & Annuity Association, 691 F.2d 1054,
(2nd Cir. 1982), vacated and remanded on other grounds 463 U.S. 1223, 103
S.Ct. 3565, 3566, 77 L.Ed.2d 1406 (1983), modified, 735 F.2d 23 (2d
Cir.), cert. denied, 469 U.S. 881, 105 S.Ct. 247, 83 L.Ed.2d 185 (1984),
a tenured college professor brought suit under Title VII against her
employer, Long Island University ("LIU") and two nonprofit corporations
that managed LIU's retirement plans for its tenured faculty, the Teachers
Insurance and Annuity Association ("TIAA") and the College Retirement
Equities Fund ("CREF"). The Second Circuit affirmed the district court's
injunctions against LIU and CREF regarding the use of sex-distinct
mortality tables and entered an identical injunction against TIAA.
In holding that TIAA and CREF were "employers" within the meaning of
Title VII, Spirt states that "the term 'employer,' as it is used in Title
VII, is sufficiently broad to encompass any party who significantly
affects access of any individual to employment opportunities, regardless
of whether that party may technically be described as an 'employer' of an
aggrieved individual as that term has generally been defined at common
law." Id. at 1063, (quoting Vanguard Justice Society, Inc. v. Hughes,
471 F. Supp. 670, 696 (D.Md. 1979)). See Los Angeles Dept. of Water &
Power v. Manhart, 435 U.S. 702, 718 n. 33, 98 S.Ct. 1370, 1380 n. 33, 55
L.Ed.2d 657 (1978) ("We do not suggest, of course, that an employer can
avoid his responsibilities by delegating discriminatory programs to
corporate shells. Title VII applies to "any agent' of a covered
employer. . . .") Further, Spirt notes that TIAA and CREF's sole purpose
for existing is to enable universities
to delegate their responsibility to provide retirement benefits for their
employees, that tenured professors had to participate in the TIAA-CREF
plans, and that LIU shares in the administrative responsibilities
resulting from their employees' participation in the plans.*fn5 Spirt,
691 F.2d at 1063.
Similarly, Grossman alleges that he is required to participate in
retirement plans set up by NYSERS, an agency created by the New York
Retirement and Social Security Law solely to administer the retirement
plans of certain state and local public employees. Further, he alleges
that a representative of NYSERS informed him, on the basis of his age,
that he had to either change his retirement plan to one which provides
reduced benefits or accept termination from his job.
The ADEA is a remedial statute "and must be given a liberal
interpretation in order to effectuate its purpose," Hyland, 794 F.2d at
796; Zimmerman v. North American Signal Co., 704 F.2d 347, 353 (7th Cir.
1983), the prohibition of age discrimination by employers against their
employees. Hyland, 794 F.2d at 796; Levine v. Fairleigh Dickenson
University, 646 F.2d 825, 828 (3d Cir. 1981). Under these circumstances
the Court holds that NYSERS is Grossman's "employer" under the ADEA and
can be enjoined from violating that act.
C. State Agency Is Not a Person under 42 U.S.C. § 1983
NYSERS' final ground for dismissal is its contention that a suit
against it cannot be maintained because it is not a "person" within the
meaning of 42 U.S.C. § 1983. No doubt NYSERS is correct in this
assertion, see Will v. Michigan Department of State Police, et al.,
491 U.S. 58, 71, 109 S.Ct. 2304, 2311, 105 L.Ed.2d 45 (1989), but
Grossman has never alleged a § 1983 violation nor has NYSERS argued
that Will has any relevance to a case brought under the ADEA. Defendant's
motion on § 1983 grounds is therefore denied.
D. Pendent State Claims as to Defendant District Attorney
As discussed above, New York Executive Law § 297(9) bars plaintiff
from seeking a judicial resolution of his § 296 claim because he
previously elected to bring his claim before an administrative forum, the
New York State Division of Human Rights. For this reason, the pendent
state claim against the District Attorney is dismissed.
Accordingly, for the foregoing reasons, defendant NYSERS' motion to
dismiss is granted as to plaintiffs claim brought under the Fourteenth
Amendment and his pendent claim brought under New York Executive Law
§ 296 and denied as to the claim brought under the ADEA. Defendant
District Attorney's motion to dismiss the pendent state claim is