The opinion of the court was delivered by: MCCURN
In this class action suit, plaintiffs allege that defendants New York State Office of Mental Retardation and Developmental Disabilities ("OMRDD") and New York State Department of Civil Service ("DCS") (collectively "defendants") discriminated against them on the basis of their age in violation of the Age Discrimination in Employment Act, as amended, 29 U.S.C. §§ 621-634 ("ADEA" or the "Act"), and the New York Human Rights Law, New York Executive Law §§ 290-298 (the "HRL"). Jurisdiction is premised upon 28 U.S.C. §§ 1331 & 1367(a) and venue is proper pursuant to 28 U.S.C. § 1391(b). Presently before the court is defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
Subsequent to the filing of this motion, the court, sua sponte, raised the issue of its subject matter jurisdiction to entertain this action. See, e.g., Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 107 (2d Cir. 1997) (a challenge to subject matter jurisdiction cannot be waived and may be raised sua sponte at any time); Fed. R. Civ. P. 12(h)(3). The court raised the issue of its subject matter jurisdiction as a result of the Supreme Court's decision in Seminole Indian Tribe of Florida v. Florida, 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996) ("Seminole Tribe "), which called into question whether Congress abrogated the states' Eleventh Amendment immunity pursuant to a legitimate exercise of power when enacting or amending legislation such as the ADEA. See Seminole Tribe, 116 S. Ct. at 1133 (Court held suit was barred by the Eleventh Amendment and therefore must be dismissed for lack of subject matter jurisdiction). The parties submitted supplemental briefs addressing this issue. Having considered the arguments of the parties and the relevant law, the court concludes that it maintains subject matter jurisdiction to consider the merits of plaintiffs' claims pursuant to the ADEA. With respect to plaintiffs' state law claims, however, the court concludes that it does not maintain subject matter jurisdiction. In addition, having reached the merits of defendants' summary judgment motion pursuant to the ADEA, the court denies the motion for the reasons set forth herein.
In 1989, defendant OMRDD undertook a staff reduction-in-force ("RIF"). See Affidavit of Arthur Y. Webb, attached to docket document number ("Dkt.") 36, ("Webb Aff.") at PP 6-7. The RIF included, inter alia, the elimination of the Chiefs of Service ("Chiefs"), an entire level of management at OMRDD. See id. at PP 6, 11. The RIF, according to defendants, was precipitated by New York State's severe budgetary crisis during fiscal year 1989-1990. Id. at PP 2-4. As a result of the RIF, all 46 Chiefs, each one of whom was over the age of 40, were terminated, demoted, forced to retire, or resigned from their employment. See Joint Affidavit of John L. Mete and Merrill J. Gottlieb, Dkt. 46, ("Mete and Gottlieb Aff.") at P 13; Affidavit of Robert A. Siegfried, Dkt. 52, ("Siegfried Aff.") at exhibit "A." The Chiefs who continued employment with OMRDD were demoted with a corresponding diminution of salary and responsibility. See Mete and Gottlieb Aff. at PP 13-14.
In addition to eliminating the Chiefs, the RIF affected other employees as well. See Webb Aff. at P 10; Mete and Gottlieb Aff. at P 15. However, the Chiefs were the only management level employees at OMRDD who were targeted for total elimination. See Mete and Gottlieb Aff. at P 15. There were a total of 163 employees affected by the RIF and 122, or 74.8%, were over the age of 40. See Affidavit of David F. Greenberg, PhD., Dkt. 46, ("Greenberg Aff.") at P 3. OMRDD's over age 40 employee population at the time of the RIF, however, was 46.5%. See Mete and Gottlieb Aff. at P 15; Greenberg Aff. at PP 5-6.
Defendants assert that the decision to eliminate the Chiefs arises from as far back as a 1981 task force study. Plaintiffs counter that defendants are attempting to ride the coattails of prior documentation by rewriting its significance to the RIF and further, dispute defendants' interpretation of the study. See Mete and Gottlieb Aff. at P 24. The task force, which was comprised of members from OMRDD, DCS and the Division of Budget, concluded that the Chiefs appeared to have inappropriate and inadequate responsibilities, functions and workloads for their level of compensation. See Affidavit of William McChesney, Dkt. 36, ("McChesney Aff.") at PP 2-7, 15. The task force recommended that the Chiefs' positions and compensation be altered to better reflect their responsibilities. See Id. at PP 23-24.
In 1985, after years of deliberations, DCS approved the recommendations of the task force and created the new title of "Developmental Service Manager" to replace the title of Chief. See Affidavit of Barbara A. Hawes, attached to Dkt. 36, ("Hawes Aff.") at P 3. The Developmental Service Manager performed the identical functions of the Chiefs. See Mete and Gottlieb Aff. at P 10 fn. 1. The Chiefs' positions were then earmarked by the Division of Budget and DCS. See id. The effect of the earmark was that no vacated Chief position could be filled without first being reclassified. See id.
In 1989, the State of New York experienced a severe financial crisis. See Webb Aff. at P 2. This crisis, according to defendants, necessitated that the RIF be implemented. See id. ; Hawes Aff. at P 6. According to Commissioner Webb, three general objectives were followed when selecting the positions that would be affected by the RIF: (1) enhance the overall efficiency of OMRDD; (2) reduce the number of unnecessary positions and functions; and (3) match up available resources with consumer needs. See Webb Aff. at P 5.
After consulting with senior staff members and directors of the various developmental disabilities offices ("Directors"), and in consideration of the organizational restructuring of OMRDD, Commissioner Webb determined that the Chiefs should be eliminated as part of the RIF. See id. at PP 6, 10-11. The decision to eliminate the Chiefs was, according to defendants, made pursuant to an agency-wide assessment which concluded that the Chiefs' functions were outmoded and incompatible with OMRDD's future plans. See id.
The individuals who participated in the RIF and its implementation were: Arthur Y. Webb, OMRDD's Commissioner at the time of the RIF; Elin M. Howe, then Executive Deputy Commissioner; Barbara Hawes, Deputy Commissioner for Program Operations; and Thomas A. Maul, Deputy Commissioner for Administration and Revenue Management. See Webb Aff. at P 6; Hawes Aff. at P 6; Defendants' Reply Memorandum, Dkt. 51, ("Def. Reply Mem.") at 6. The development and implementation of the RIF also involved the Director where each Chief was employed. See Webb Aff. at P 6.
Prior to the RIF, no study was conducted to determine the impact on over age 40 employees. See Webb Aff. at PP 12-13; Mete and Gottlieb Aff. at P 16(b) and (c). In addition, there were no guidelines advanced to ensure that age was not a determining factor in selecting which employees would be affected by the RIF. See id. After the RIF, the functions and duties of the Chiefs were either redistributed at the discretion of each Director among the existing OMRDD employees or, if outmoded, their functions and duties were eliminated. See Hawes Aff. at PP 5-6; Mete and Gottlieb Aff. at P 17.
Before reaching the merits of defendants' motion, the court must address its subject matter jurisdiction. The court's jurisdiction ultimately turns on whether defendants enjoy immunity pursuant to the Eleventh Amendment to the United States Constitution. See, e.g., Seminole Tribe, 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252.
A. Jurisdiction and the Eleventh Amendment
The Eleventh Amendment provides:
U.S. Const. amend. XI. While the literal text of the Amendment only seems to divest federal courts of jurisdiction in diversity cases, the Supreme Court has interpreted this Amendment to also preclude federal courts from hearing cases against a state by its own citizens. See Hans v. Louisiana, 134 U.S. 1, 13, 10 S. Ct. 504, 506, 33 L. Ed. 842 (1890); see also Blatchford v. Native Village of Noatak, 501 U.S. 775, 779, 111 S. Ct. 2578, 2581, 115 L. Ed. 2d 686 (1991). The Amendment applies with equal force to agencies and subdivisions of the states inasmuch as the state is the real party in interest. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101, 104 S. Ct. 900, 908, 79 L. Ed. 2d 67 (1984).
Thus, as a general rule, the Eleventh Amendment provides that a state is immune from suit in federal court.
This general rule does not mean, however, that a state may never be sued in federal court. A state may consent to jurisdiction or waive its immunity by "express language" or by "overwhelming implication." See Edelman v. Jordan, 415 U.S. 651, 673, 94 S. Ct. 1347, 1361, 39 L. Ed. 2d 662 (1974). Additionally, Congress may abrogate a state's immunity to suit in federal court pursuant to a valid exercise of power. See Green v. Mansour, 474 U.S. 64, 68, 106 S. Ct. 423, 425-426, 88 L. Ed. 2d 371 (1985). Here, defendants have not consented to jurisdiction, nor have they waived their immunity from suit. Therefore, the court has subject matter jurisdiction only if Congress properly abrogated defendants immunity when enacting the ADEA or its amendments.
In Seminole Tribe, the Supreme Court clarified and reiterated a two-prong inquiry for determining whether Congress properly abrogated the states' immunity. See Seminole Tribe 116 S. Ct. at 1123. First, has Congress "'unequivocally expressed its intent to abrogate the immunity?'" and second, has Congress "acted 'pursuant to a valid exercise of power?'" Id. (quoting Green v. Mansour, 474 U.S. at 68, 106 S. Ct. at 426). Accordingly, the court will utilize this inquiry to determine whether Congress properly abrogated the states' immunity when it enacted the ADEA and the amendments thereto.
In determining whether Congress intended to abrogate the states' immunity, the court must find that Congress has clearly expressed its "intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself." Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 243, 105 S. Ct. 3142, 3148, 87 L. Ed. 2d 171 (1985); see Seminole Tribe, 116 S. Ct. at 1123 ("Congress may abrogate the States' constitutionally secured immunity from suit in federal court only be making its intention unmistakably clear in the language of the statute." (citing Dellmuth v. Muth, 491 U.S. 223, 227-228, 109 S. Ct. 2397, 2399-2400, 105 L. Ed. 2d 181 (1989) (internal quotations omitted)). In Seminole Tribe, the Court found the first prong of the test satisfied when Congress enacted the Indian Gaming Regulatory Act of 1988 (codified as amended at 25 U.S.C. §§ 270, et seq.) because Congress provided an "'unmistakably clear' statement of its intent to abrogate." 116 S. Ct. at 1123-1124. In so finding, the Court noted that nearly every other court that was confronted with the issue found that Congress had provided a clear statement of its intent to abrogate. See id. Significantly, the Court focused on the fact that the act contained "numerous references to the 'State' in the text of [the Indian Gaming Regulatory Act] making it indubitable that Congress intended through the Act to abrogate the States' sovereign immunity from suit." Id. at 1124.
Congress enacted the ADEA in 1967 to, inter alia, promote the employment of older persons based upon merit and to prohibit arbitrary age discrimination. See, e.g., Equal Employment Opportunity Comm'n v. Elrod, 674 F.2d 601, 604 (7th Cir. 1982) ("Elrod "). When originally enacted, the Act applied only to private sector employers and thus there was no issue with respect to whether Congress intended to abrogate the states' immunity. Id. In 1974, Congress amended the ADEA to include the states and their subdivisions within its scope. Id. In the 1974 Amendments, the definition of employer was expanded to include "a State or political subdivision of a State or any instrumentality of a State." 29 U.S.C. § 630(b)(2); Fair Labor Standards Act ("FLSA") Amendments of 1974, Pub. L. No. 93-259, § 28, 88 Stat. 74 (amending 29 U.S.C. § 630). This language evinces an unmistakably clear intent on the part of Congress to abrogate the states' immunity. There is no other reasonable interpretation of § 630. Moreover, other courts addressing this issue have reached the same conclusion. See Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 695 (3d Cir. 1996) ("The statute simply leaves no room to dispute whether states and state agencies are included among the class of potential defendants when sued under the ADEA for their actions as 'employers.'"); Davidson v. Board of Governors, 920 F.2d 441, 443 (7th Cir.1990) (Congress "could not have made its desire to override the states' sovereign immunity clearer."); Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694, 701 (1st Cir. 1983) ("The ADEA's express authorization for the maintenance of suits against state employers comprises adequate evidence to demonstrate the congressional will that Eleventh Amendment immunity be abrogated."); cf. Gregory v. Ashcroft, 501 U.S. 452, 467, 111 S. Ct. 2395, 2404, 115 L. Ed. 2d 410 (1991) ("The ADEA plainly covers all state employees except those excluded by one of the exceptions."); Equal Employment Opportunity Comm'n v. Wyoming, 460 U.S. 226, 233, 103 S. Ct. 1054, 1059, 75 L. Ed. 2d 18 (1983) ("Wyoming ") ("In 1974, Congress extended the substantive prohibitions of the [ADEA] . . . to . . . State Governments."). Accordingly, the court concludes that the first prong of the inquiry is answered in the affirmative with respect to the amendments to the ADEA because Congress clearly expressed its intent to abrogate the states' immunity.
Turning to the second prong of the inquiry, the court must examine whether Congress, in abrogating the states' sovereign immunity when amending the ADEA, did so under a valid exercise of its power. See Seminole Tribe, 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252. Prior to Seminole Tribe, two sources of power to abrogate the states' sovereign immunity were recognized under the Constitution: the Fourteenth Amendment and the Interstate Commerce Clause. 517 U.S. 44, 116 S. Ct. at 1125; see Fitzpatrick v. Bitzer, 427 U.S. 445, 452-456, 96 S. Ct. 2666, 2669-2671, 49 L. Ed. 2d 614 (1976) (Court held that through the Fourteenth Amendment federal power extended to intrude upon the province of the Eleventh Amendment and, therefore, § 5 of the Fourteenth Amendment permitted Congress to abrogate the immunity from suit guaranteed by that Amendment); Pennsylvania v. Union Gas Co., 491 U.S. 1, 19-20, 109 S. Ct. 2273, 2284, 105 L. Ed. 2d 1 (1989) ("Union Gas ") (plurality of Court found that the Commerce Clause granted Congress the power to abrogate state sovereign immunity because the power to regulate interstate commerce would be "incomplete without the authority to render States liable in damages."). However, the Court in Seminole Tribe eliminated the Commerce Clause as a valid exercise of power for Congress to abrogate the states' sovereign immunity when it expressly overruled the plurality decision in Union Gas. Seminole Tribe, 116 S. Ct. at 1128. Accordingly, the only remaining authority for Congress to abrogate the states' immunity is through § 5 of the Fourteenth Amendment. See Fitzpatrick v. Bitzer, 427 U.S. at 452-456, 96 S. Ct. 2669-2671.
Thus, the court's inquiry here is narrowed to whether Congress enacted the amendments to the ADEA pursuant to a valid exercise of its power under § 5 of the Fourteenth Amendment. The Supreme Court has not confronted this issue. See Wyoming, 460 U.S. at 243, 103 S. Ct. at 1064 (Court expressly left open the issue of whether the ADEA was also a valid exercise of power under the Fourteenth Amendment). Circuit Courts of Appeals, however, have confronted the issue-- both prior to and subsequent to Seminole Tribe -- and, in general, have concluded that the ADEA was amended pursuant to Congress' Fourteenth Amendment powers. See Hurd v. Pittsburg State University, 109 F.3d 1540 (10th Cir. 1997); Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690 (3d Cir. 1996); Bell v. Purdue University, 975 F.2d 422 (7th Cir. 1992); Santiago v. New York State Dep't of Correctional Servs. 945 F.2d 25, 31 (2d Cir. 1991) (in dicta, court set forth that "acting under § 5 [of the Fourteenth Amendment], Congress has repeatedly enacted legislation that has clearly stated Congress' intention to abrogate states' immunity," citing the ADEA as one example); Ramirez v. Puerto Rico Fire Srvc., 715 F.2d 694 (1st Cir. 1983); Arritt v. Grisell, 567 F.2d 1267 (4th Cir. 1977). Moreover, numerous district courts that have addressed this issue since Seminole Tribe have reached the same conclusion, including at least one district court within the Second Circuit. See Hodgson v. University of Texas Medical Branch at Galveston, 953 F. Supp. 168 (S.D. Tex. 1997); Teichgraeber v. Memorial Union Corp. of Emporia State Univ., 946 F. Supp. 900 (D. Kan. 1996); Ullman v. The Rector & Visitors of Univ. of Va., 1997 U.S. Dist. LEXIS 3172, No. Civ. A. 96-0002- C, 1997 WL 134557 (W.D. Va. Mar. 12, 1997): Young v. University of Kan. Med. Ctr., 1997 U.S. Dist. LEXIS 4090, No. Civ. A. 96-2390- KHV, 1997 WL 150051 (D. Kan. Feb. 26, 1997); see also Pietraszewski v. Buffalo State College, 1997 U.S. Dist. LEXIS 11194, No. 97-CV-0129E(F), 1997 WL 436763, (W.D.N.Y. Aug. 1, 1997); but see Bechtel v. New York State Banking Dep't, 1997 U.S. Dist. LEXIS 16428, No. 92- CV-182S, 1997 WL 667784, (W.D.N.Y. Oct. 14, 1997) (ADEA claim dismissed for lack of subject matter jurisdiction); Humenansky v. Board of Regents of the Univ. of Minn., 958 F. Supp. 439 (D. Minn. 1997) (ADEA claim against state university dismissed as barred by Eleventh Amendment); MacPherson v. Univ. of Montevallo, 938 F. Supp. 785 (N.D. Ala. 1996) (same); see, e.g., Farkas v. New York State Dep't of Health, 554 F. Supp. 24 (N.D.N.Y. 1982) (in a pre-Seminole Tribe case, court held 1974 Amendments to the ADEA were not enacted pursuant to Fourteenth Amendment power). Defendants have acknowledged this formidable authority but respond with a several arguments. The court has carefully considered each of these arguments and addresses the significant points raised by defendants.
First, defendants urge the court to find that Congress did not amend the ADEA pursuant to the Fourteenth Amendment because the legislative history to the 1974 Amendments does not reveal that Congress was acting pursuant to its Fourteenth Amendment power. See Defendants' Supplemental Memorandum, Dkt. 59, ("Def. Supp. Mem.") at 10 ("Thus, all of the ADEA's history derives from Congress' exercise of its Commerce Clause power; this history contains no reference to the Fourteenth Amendment.") at 11-12 ("to conclude that the 1974 Amendments to the ADEA reflect an exercise of Congress' Fourteenth Amendment power, this Court must ignore what Congress expressly stated (interstate commerce concerns) and infer something it did not state (equal protection concerns)"). Defendants also argue that the amendments could not have been passed pursuant to the Fourteenth Amendment because "the ADEA does not protect rights secured by the equal protection clause." Def. Supp. Mem. at 14. Finally, defendants argue that the amendments to the ADEA were passed as part of the amendments to the FLSA, which were passed pursuant to the Commerce Clause, and therefore the amendments to the ADEA also must have been passed pursuant to the Commerce Clause. See Def. Supp. Mem. at 9-10.
Defendants' arguments do not sway this court to rebuff the compelling line of authority that holds that the amendments to the ADEA were a legitimate exercise of Congress' power under § 5 of the Fourteenth Amendment. Regarding the legislative history to the 1974 Amendments, the court first turns to defendants' argument that the history contains no reference to the Fourteenth Amendment and therefore Congress could not have been acting pursuant to the Fourteenth Amendment. This argument is countered by the Supreme Court's finding that Congress need not explicitly refer to the power under which it enacts legislation. See Wyoming, 460 U.S. at 243, 103 S. Ct. at 1064. (Congress need not "anywhere recite the words 'section 5' or 'Fourteenth Amendment' or 'equal protection,' for 'the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise.'" (citing Fullilove v. Klutznick, 448 U.S. 448, 476-478, 100 S. Ct. 2758, 2773-2774, 65 L. Ed. 2d 902 (1980) (Burger, C.J.); Woods v. Miller, 333 U.S. 138, 144, 68 S. Ct. 421, 424, 92 L. Ed. 596 (1948)). Thus, the fact that Congress did not expressly refer to § 5 or the Fourteenth Amendment is not determinative of the powers under which it acted. See Ramirez, 715 F.2d at 698 ("the omission of any ritualistic incantation of powers by the Congress is not determinative, for there is no requirement that the statute incorporate buzz words such as 'Fourteenth Amendment' or 'section 5' or 'equal protection.'"); see also ...