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March 14, 2002


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


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 every morning.

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 similar infractions.

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 infractions.

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

1. Standard

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.

3. As to the ADA and OCA

a. Title I of the ADA

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, ...

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