The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
This case again raises the interesting issue of whether an
employee of a state public entity may bring an employment
discrimination claim against the state entity. This action
arises out of claims by Craig Winokur ("Winokur" or the
"plaintiff") against the Office of Court Administration ("OCA")
and David Janosek ("Janosek"). The plaintiff alleges that OCA
and Janosek failed to make reasonable accommodations for his
disability, namely ulcerative colitis, and wrongfully terminated
him because of his disability. The plaintiff alleges further
that the actions of OCA and Janosek violated the Americans with
Disabilities Act (the "ADA") 42 U.S.C. § 12101 — 12213,
42 U.S.C. § 1983 ("Section 1983") and the New York State Human
Rights Law (the "NYSHRL") New York Executive Law § 290 et seq.
Presently before the Court is a motion by OCA and Janosek for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure ("Rule 12(c)").
The following facts are taken from the complaint. The
plaintiff was employed as a court officer with the Nassau County
Family Court (the "Family Court") for twelve years. OCA is an
agency of the State of New York and an employer under the ADA
and the NYSHRL. Janosek was the supervisor of the plaintiff at
the Family Court.
The supervisors of the plaintiff gave him excellent
evaluations over the course of his employment with the Family
Court. During his tenure with the Family Court, the plaintiff
was diagnosed with ulcerative colitis (the alleged disability),
which, he asserts, substantially limits his major life
activities. The condition of ulcerative colitis made it
extremely difficult for the plaintiff to arrive at work on time
The complaint further alleges that OCA refused to accommodate
the disability of the plaintiff. In particular, OCA did not
excuse his occasional lateness although most of the tardiness
involved no more than fifteen minutes. The occasional tardiness
was not a hardship to OCA because two court officers were in
most of the courtrooms during the day. In addition, OCA refused
to accommodate the request of the plaintiff for a line-share
agreement, which would permit the plaintiff to work two to three
days a week. The plaintiff alleges that such an accommodation
would have reduced his stress, which in turn would have
alleviated the symptoms of his disability and allowed him to
arrive at work on time.
In an attempt to terminate him due to his disability, the
plaintiff alleges that OCA harassed him with charges of
tardiness and petty infractions for things commonly committed by
other court officers. As to these petty infractions, OCA charged
the plaintiff with writing in a journal while seated in the back
of a courtroom even though court was not in session. OCA also
charged the plaintiff with failing to lock a courtroom. Although
the plaintiff was charged with these petty infractions, he
asserts that other court officers were not accused of such
OCA also gave the plaintiff an overall rating of one, which
was completely inconsistent with his previous high marks in all
the categories of his evaluations. In this regard, he alleges
that at least two judges have stated that the plaintiff was a
good worker and got the job done. The complaint alleges that
Janosek was one of the moving forces behind the wrongful
termination of the plaintiff in that he caused the
plaintiff to be disciplined and charged with such petty
On May 3, 1999, the plaintiff commenced this action. The
complaint pleads three causes of action: (1) theories of
liability under the ADA, 42 U.S.C. § 12101 — 12213; (2)
theories of liability under Section 1983; and (3) theories of
liability under the NYSHRL. Presently before the Court is a
motion by OCA and Janosek for judgment on the pleadings pursuant
to Rule 12(c). OCA and Janosek raise the following arguments:
(1) the ADA claim is barred by the Eleventh Amendment of the
United States Constitution; (2) the claim under Section 1983
fails to state a claim upon which relief can be granted because
the alleged violation of the ADA cannot be asserted in federal
court and, alternatively, OCA and Janosek are not "persons"
under Section 1983; and (3) in the absence of subject matter
jurisdiction over the federal claims, the Court should decline
to exercise supplemental jurisdiction under
28 U.S.C. § 1367(c)(3).
A. Subject Matter Jurisdiction
Although OCA and Janosek bring this motion under Rule 12(c),
they contend that this Court lacks subject matter jurisdiction
to hear the claims under the ADA and Section 1983 on the grounds
that they are barred by the Eleventh Amendment. A motion
challenging subject matter jurisdiction is properly brought
under Rule 12(b)(1) of the Federal Rules of Civil Procedure
("Rule 12(b)(1)"). The Court will address the issue of
jurisdiction before deciding the merits of the motion under
Rule 12(c). See Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n,
896 F.2d 674, 678 (2d Cir. 1990) (stating a motion challenging
subject matter jurisdiction should be considered before deciding
a motion to dismiss for failure to state a claim upon which
relief can be granted).
When considering a Rule 12(b)(1) motion, the court may
consider affidavits and other materials beyond the pleadings to
resolve the jurisdictional question. Robinson v. Gov't of
Malaysia, 269 F.3d 133, 141 n. 6 (2d Cir. 2001); Antares
Aircraft, L.P. v. Fed. Republic of Nigeria, 948 F.2d 90, 96 (2d
Cir. 1991), vacated on other grounds, 505 U.S. 1215, 112 S.Ct.
3020, 120 L.Ed.2d 892 (1992); Exch. Nat'l Bank of Chicago v.
Touche Ross & Co., 544 F.2d 1126, 1130 (2d Cir. 1976). Under
Rule 12(b)(1), the court must accept as true all material
factual allegations in the complaint, but will not draw
inferences favorable to the party asserting jurisdiction.
Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d
Cir. 1998); Atl. Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd.,
968 F.2d 196, 198 (2d Cir. 1992). Hearsay statements contained
in affidavits may not be considered. Kamen v. Am. Tel. & Tel.
Co., 791 F.2d 1006, 1011 (2d Cir. 1986).
With his memorandum of law in opposition to the motion for
judgment on the pleadings, the plaintiff submits an affidavit
executed on May 11, 2001 (the "Plaintiff's Affidavit") detailing
specific acts of discrimination allegedly committed by Janosek
during the course of the plaintiff's employment with the Family
Court. The Court may consider the non-hearsay statements in the
Plaintiffs Affidavit to the extent they are relevant on the
issue of subject matter jurisdiction in this matter.
2. The Eleventh Amendment
The Eleventh Amendment provides that: The Judicial power of
the United States shall not be construed to extend to 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. A State is thus immune from suits in
federal court brought by its own citizens, see Bd. of Trs. of
the Univ. of Alabama v. Garrett, 531 U.S. 356, 363, 121 S.Ct.
955, 961, 148 L.Ed.2d 866 (2001), and such immunity extends to
officers acting on behalf of the State. Puerto Rico Aqueduct
and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144-47,
113 S.Ct. 684, 687-89, 121 L.Ed.2d 605 (1993).
There are only three exceptions to this general rule. First, a
State may waive its Eleventh Amendment defense. Coll. Sav. Bank
v. Florida Prepaid Postsecondary Educ. Expense Bd.,
527 U.S. 666, 670, 119 S.Ct. 2219, 2223, 144 L.Ed.2d 605 (1999) (citing
Clark v. Barnard, 108 U.S. 436, 447-48, 2 S.Ct. 878, 27 L.Ed.
780 (1883)). Second,. Congress may abrogate the sovereign
immunity of the States by acting pursuant to a grant of
constitutional authority. Kimel v. Florida Bd. of Regents,
528 U.S. 62, 80, 120 S.Ct. 631, 644, 145 L.Ed.2d 522 (2000). Third,
under the Ex parte Young doctrine, the Eleventh Amendment does
not bar a "suit against a state official when that suit seeks
. . . prospective injunctive relief." Seminole Tribe of Florida
v. Florida, 517 U.S. 44, 73, 116 S.Ct. 1114, 1132, 134 L.Ed.2d
252 (1996). With this background in mind, the Court now analyzes
the issue of subject matter jurisdiction.
Title I of the ADA ("Title I") contains a general prohibition
of discrimination against qualified individuals with
disabilities in matters of job application, hiring, advancement,
discharge, compensation, training and any other terms and
conditions of employment. 42 U.S.C. § 12112(a). Title I applies
to the States. Garrett, 531 U.S. at 374, 121 S.Ct. at 968.
The Supreme Court has held that a claim brought under Title I
of the ADA against States for monetary damages is barred by the
Eleventh Amendment. Garrett, 531 U.S. at 360, 121 S.Ct. at
960. In his complaint, the plaintiff seeks monetary damages from
OCA. Accordingly, ...