The opinion of the court was delivered by: CURTIN
Plaintiff Georgiana Jungels, an Associate Professor at the State University of New York College at Buffalo ("SUNYCB"), filed this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, on July 31, 1987, alleging discrimination on the basis of age by SUNYCB, the State University of New York ("SUNY"), the State of New York, and various individual defendants. Item 1. On June 14, 1988, she filed an amended complaint, setting forth additional claims of age and sex discrimination and retaliation under (1) Title VII; (2) the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; (3) 42 U.S.C. § 1983; and (4) New York Human Rights Law (Executive Law § 290 et seq.). Item 15. Following extended discovery and settlement discussions, a tentative trial date was set for February 12, 1996. Item 44. With the court's consent (Item 44), the plaintiff filed a second amended complaint on November 15, 1995. Item 45. This complaint added certain further claims under New York State common law and the New York State Constitution. Id. at 16.
On January 5, 1996, the court issued an order setting a trial date of February 5, 1996. Item 47. On January 22, the defendants filed a motion to dismiss certain of the plaintiff's claims, accompanied by an extensive memorandum of law. Items 50 and 51. On January 25, 1996, the court informed the parties that it would not be possible to move ahead with the trial until April. The plaintiff was given until February 12, 1996, to respond to the defendants' motion to dismiss. She did so. Items 52-54. The defendants submitted a reply memorandum. Item 56. Oral argument was held on February 26, 1996.
Plaintiff Georgiana Jungels took up an appointment as an Assistant Professor at SUNYCB, in the Art Education Department, on or about September 1, 1974. She was promoted to the rank of Associate Professor as of September 1, 1980 and was granted tenure as of September 1, 1981. In the ensuing years, relationships between Dr. Jungels and certain SUNYCB officials deteriorated. Dr. Jungels filed various union grievances, and a series of charges of age and sex discrimination and retaliation with the Equal Employment Opportunity Commission ("EEOC"). She filed this lawsuit on July 31, 1987. On December 11, 1989, she was placed on leave without pay. She was reinstated on or about September 14, 1992, but was again suspended on September 28, 1992. On September 2, 1993, she was notified that she had been terminated.
In their motion to dismiss, the defendants raise a number of legal questions, the resolution of which will narrow the issues to be determined at trial. The plaintiff has requested that the motion be struck in its entirety, based upon the defendants' failure to bring an appropriate motion at any earlier time in this litigation. Item 54. The filing of a motion to dismiss only one week prior to trial is, she maintains, prejudicial Id P 4. While the court has sympathy with the plaintiff's position, it would be helpful to resolve the questions raised by the defendants at this time, so that the issues to be determined at trial are more clearly defined.
1. Title VII Claims Against Individual Defendants
The defendants first argue that all claims under Title VII against the individual defendants should be dismissed, because employers' agents may not be held personally liable under Title VII. Item 51, pp. 2-3. They cite Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995). The plaintiff maintains that in Tomka, the Second Circuit's discussion was limited to claims of hostile work environment sex discrimination, and its ruling on the question of personal liability should not be extended to other Title VII cases. Item 52, pp. 5-6. She argues further that in the event that the court decides that the individual defendants cannot be held liable under Title VII, they should remain charged in their official capacities as agents of the institutional defendants. Id. at 6-7.
It is clear that on the issue of personal liability of employers' agents under Title VII, the Second Circuit's reasoning in Tomka applies not only to hostile environment sex discrimination cases, but to all Title VII actions. See Tomka v. Seiler Corp., 66 F.3d at 1313-17. "Individual defendants with supervisory control over a plaintiff may not be held personally liable under Title VII." Id. at 1313. All claims under Title VII against defendants Johnstone, Wiesen, Accurso, Feal, Deihl, Jones, and Rogers in their capacities as individuals must therefore be dismissed.
"The proper method for a plaintiff to recover under Title VII is by suing the employer, either by naming the supervisory employees as agents of the employer or by naming the employer directly." Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991). Here, the defendants do not challenge the application of the plaintiff's Title VII claims to SUNY and SUNYCB as her employers. Item 51, p. 3. There is no need, therefore, to retain the named individuals as Title VII defendants in their capacities as agents of the institutional defendants, as the plaintiff suggests.
2. ADEA Claims Against Individual Defendants
The defendants maintain that all claims under the ADEA against the individual defendants should be dismissed, arguing that the Second Circuit's reasoning in Tomka should be extended to ADEA claims. Item 51, pp. 4-5. They point out that the design and objectives of Title VII and the ADEA are similar, that under both statutes only "employers" are subject to civil liability, and that both use essentially the same definition of "employer." Id. at 4.
They note also that although the Second Circuit has not ruled on the issue of personal liability of employers' agents under the ADEA, other circuits, and at least one court in this circuit, have rejected it. Id. at 5 (citing Birkbeck v. Marvel Lighting Corp., 30 F.3d 507 (4th Cir.), cert. denied, 130 L. Ed. 2d 600, U.S. , 115 S. Ct. 666 (1994); Miller v. Maxwell's International Inc., 991 F.2d 583, 587-88 (9th Cir. 1993), cert. denied, U.S. , 114 S. Ct. 1049 (1994); Smith v. Lomax, 45 F.3d 402, 403-04 (11th Cir. 1995); and Falbaum v. Pomerantz, 891 F. Supp. 986, 989 (S.D.N.Y. 1995)). In response, the plaintiff cites only a single case, Bostick v. Rappleyea, 629 F. Supp. 1328, 1334 (N.D.N.Y. 1985), aff'd, 907 F.2d 144 (2d Cir. 1990), which applied a more liberal interpretation of the term "employer" under Title VII.
In light of the Second Circuit's reasoning in Tomka, and the weight of authority finding no personal liability for employers' agents under the ADEA, the court is persuaded that the individual defendants in this case may not be held personally liable under the ADEA. All claims under the ADEA against defendants Johnstone, Wiesen, Accurso, Feal, Deihl, Jones, and Rogers in their individual capacities must therefore be dismissed.
3. Subject Matter Jurisdiction Over State Law Claims
The defendants next argue that under the Eleventh Amendment, this court lacks jurisdiction to adjudicate the plaintiff's New York State Human Rights Law (HRL) claims and her state law claims based upon allegations of breach of contract and fraud. To the extent that the claims are leveled against the State, they maintain, they are directly precluded by the Eleventh Amendment. To the extent that they are leveled against the individual defendants, the relief sought can be afforded only by the State itself, or would have a direct impact on the State. The claims against the individual defendants are, in effect, claims against the State, and are therefore barred. Item 51, pp. 5-8.
The plaintiff responds (1) that the State waived its jurisdiction over her HRL claims when the New York State Division of Human Rights (NYSDHR) agreed, at the request of the EEOC, to allow the EEOC to take responsibility for investigating her complaints of discrimination; (2) that the State has been on notice since March 1985, or shortly thereafter, that the HRL complaints were being pursued through federal, not State, channels, including this action, and it should be estopped from asserting Eleventh Amendment immunity at this late stage, based on laches; (3) that prospective relief against the State is not barred under the Eleventh Amendment; (4) that even if the Eleventh Amendment bars HRL claims against SUNY, the HRL charges against the individual defendants in their individual capacities should stand; and (5) that there is an issue of fact as to whether, for purposes of the Eleventh Amendment, SUNY is identical to the State, since less than half of the funding for SUNY is derived from State funds. Item 52, pp. 8-11.
The Supreme Court has interpreted the Eleventh Amendment as barring suits in federal court by citizens against their own states, absent either waiver of immunity and consent to suit by the state, or abrogation of constitutional immunity by Congress. See Welch v. Texas Department of Highways and Public Transportation, 483 U.S. 468, 472, 97 L. Ed. 2d 389, 107 S. Ct. 2941 (1987); Atascadero State Hospital v. Scanlon, 473 U.S. 234, 237-40, 87 L. Ed. 2d 171, 105 S. Ct. 3142 (1985); Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 97-100, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1983). Generally, a suit against a state official is regarded as one against the state itself, when the relief sought nominally against the official would operate against state. Pennhurst State School and Hospital v. Halderman, 465 U.S. at 101. Notwithstanding the Eleventh Amendment, a state official acting in his official capacity may be sued in federal court to enjoin conduct that violates the federal constitution. Id. at 102-03; see also, Dube v. State University of New York, 900 F.2d 587, 595 (2d Cir. 1990), cert. denied, 501 U.S. 1211 (1991). However, a federal court may not grant relief, whether prospective or retroactive, against state officials on the basis of state law violations. Pennhurst State School and Hospital v. Halderman, 465 U.S. at 106; Dube v. State University of New York, 900 F.2d at 595.
For purposes of the Eleventh Amendment, "SUNY 'is an integral part of the government of the State [of New York] and when it is sued the State is the real party.'" Dube v. State University of New York, 900 F.2d at 594 (quoting State University of New York v. Syracuse University, 285 A.D. 59, 61, 135 N.Y.S.2d 539, 542 (3d Dept. 1954)). The same has been held to be true for various SUNY colleges. Fox v. Board of Trustees of the State University of New York, 649 F. Supp. 1393, 1397 (N.D.N.Y. 1986), rev'd on other grounds, 841 F.2d 1207 (2d Cir. 1988), rev'd, 492 U.S. 469, 106 L. Ed. 2d 388, 109 S. Ct. 3028 (1989). Therefore, absent consent to suit in federal court on the part of the State, this court has no jurisdiction over the plaintiff's state law claims against SUNY and SUNYCB.
A federal court should find that a state has consented to suit in federal court and waived its protection under the Eleventh Amendment "only where stated 'by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.'" Edelman v. Jordan, 415 U.S. 651, 673, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974) (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 53 L. Ed. 742, 29 S. Ct. 458 (1909)). There is no basis for finding such a waiver in the text of the HRL. Arroyo v. New York State Insurance Department, 1993 U.S. Dist. LEXIS 8851, 1993 WL 248210 (S.D.N.Y.); Moche v. City University of New York, 781 F. Supp. 160, 167-69 (E.D.N.Y. 1992), aff'd, 999 F.2d 538 (2d Cir. 1993); Cassells v. University Hospital at Stony Brook, 740 F. Supp. 143, 147-48 (E.D.N.Y. 1990). Furthermore, the plaintiff offers no case law support for her contentions that (1) the State waived its jurisdiction over her HRL claims when the NYSDHR allowed the EEOC to take responsibility for investigating her complaints, and (2) the State should be estopped from asserting its Eleventh Amendment defense at this time. The court finds no merit to those contentions. The plaintiff's claims under the HRL against SUNY and SUNYCB, and against the individual defendants in their official capacities, must therefore be dismissed.
Similarly, the plaintiff's state law tort and breach of contract claims, and her state law due process claim based upon breach of contract, against the State defendants (and against the individual defendants acting in their official capacities), must be dismissed. See Mascheroni v. Board of ...