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STONE v. McGOWAN

March 2, 2004.

ROBERT W. STONE, Plaintiff, -v- JAMES McGOWAN, in his official capacity as COMMISSIONER of the NEW YORK STATE DEPARTMENT OF LABOR, STEVEN ROSE, in his official capacity as COMMISSIONER of the OSWEGO COUNTY DEPARTMENT OF SOCIAL SERVICES and as COMMISSIONER of the OSWEGO COUNTY DEPARTMENT OF EMPLOYMENT AND TRAINING, DARRELL G. KEHOE as TOWN SUPERVISOR OF THE TOWN OF SANDY CREEK and RONALD WOOD as TOWN HIGHWAY SUPERINTENDENT of the TOWN OF SANDY CREEK Defendants


The opinion of the court was delivered by: NORMAN MORDUE, District Judge Page 2

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

  Plaintiff, a former recipient of public assistance pursuant to New York State Social Services Law, sues under 42 U.S.C. § 1983 and the federal Fair Labor Standards Act, codified at 29 U.S.C. § 201 et seq. ("FLSA"),*fn1 alleging that defendants — the Commissioner of the New York State Department of Labor ("DOL"), the Commissioner of the Oswego County Department of Social Services and the Oswego County Department of Employment and Training, and both the Supervisor and Highway Superintendent for the Town of Sandy Creek — have violated his rights under the FLSA. According to plaintiff, DOL has enacted regulations which serve to prevent public assistance recipients from receiving compensation for work completed pursuant to Work Experience Programs administered by local social services districts>. Plaintiff asserts that Oswego County's administration of a Work Experience Program, whereby he performed highway maintenance duties for the Town of Sandy Creek, resulted in failure to compensate him at the prevailing minimum wage for each hour worked. In his complaint, plaintiff sought class certification, a declaratory judgment that defendants Page 3 violated the FLSA, unpaid compensation as well as liquidated damages pursuant to the FLSA, preliminary and permanent injunctive relief, and attorneys fees. Plaintiff's claim under 42 U.S.C. § 1983 is lodged only against defendant McGowan in his official capacity as Commissioner of DOL.

  This Court previously denied Plaintiff's motion for class certification to join other "similarly situated" past and present Work Experience Program participants in this action on the ground that since plaintiff was precluded from asserting a claim under 42 U.S.C. § 1983 against defendant McGowan, his individual claims against the Commissioner of the Oswego County Department of Social Services and those against defendants Kehoe and Wood in the Town of Sandy Creek "predominate over, indeed obliterate, all other issues in this lawsuit, thus destroying the requirements of typicality, commonality and full and fair protection of the proposed class pursuant to Rule 23." Stone v. McGowan, Civil Action No.: 99-CV-1941, slip op. at 8 (N.D.N.Y. August 30, 2000).*fn2 Presently before the Page 4 Court are motions to dismiss pursuant to Fed.R.Civ.P. 12 by defendants McGowan and Rose. Plaintiff opposes these motions.

 II. STATUTORY AND REGULATORY BACKGROUND

  Pursuant to Article 5 of the New York Social Services Law, New York State provides basic programs which provide cash and vouchers for public assistance to needy individuals and families. Sweeping welfare reform efforts in 1997 led to requirements that public assistance recipients be furnished education, training, employment opportunities, and necessary services in order to secure unsubsidized employment that will assist them in achieving economic independence. See N.Y. Soc. Serv. Law § 331(1). In furtherance of this goal, New York's legislature directed local (county) social services districts> to establish Work Experience Programs ("WEPs") to include performance of work by public assistance recipients in federal, county, city, village or town offices and agencies. See N.Y. Soc. Serv. Law § 336-c. As a condition of continued receipt of public assistance benefits, social service districts> may require individuals to participate in WEPs, see N.Y. Soc. Serv. Law § 336, unless otherwise exempt based on illness, age, disability or other adverse circumstances. See N.Y. Soc. Serv. Law §§ 332 & 332-b.

  Under the Welfare Reform Act of 1997, DOL supervises local social services districts> in administration of WEPs by establishing rules, regulations and policies for the local districts>. See N.Y. Labor Law § 21; N.Y. Soc. Serv. Law § 337.*fn3 Pursuant to the Act, social services districts> determine the number of hours a public assistance recipient Page 5 must work in a WEP and assign individuals to specific work activities. See N.Y. Soc. Serv. Law § 336-c. The Act requires social services districts> to use the higher of either the federal or state minimum wage rate to compute the maximum hours of participation for welfare recipients' WEP assignments. See N.Y.S.oc. Serv. Law § 336-c(2)(b). *fn4 Participants in WEPs do not receive wages nor do hours worked result in increased public assistance benefits; the statute's reference to minimum wage rates is intended merely to limit the number of working hours for public assistance recipients. See Brukhman v. Giuliani, 94 N.Y.2d 387, 391 (2000) (recalculation of welfare recipients' claim under pre-amendment prevailing wage rate of Social Service Law Section 336-c*fn5 would not affect plaintiffs' monetary benefits, but would result in fewer working hours for participating recipients of public aid).

  DOL promulgated rules and regulations providing guidance to social services districts> in their administration of public assistance and WEPs. To wit, DOL prescribed: Page 6

 
(a) Social services districts> may provide, and may require applicants for and recipients of public assistance to participate in a variety of activities including but not limited to the following:
. . .
(4) work experience in the public sector or non-profit sector, (including work associated with refurbishing publicly assisted housing) if sufficient private sector employment is not available as determined by the social services official. The maximum number of hours a recipient or applicant may be required to engage in this activity is limited to the number which equals the amount of assistance payable with respect to the public assistance household of such individual (inclusive of the value of food stamps received by the public assistance household of such individual, if any) divided by the higher of (i) federal minimum wage, or (ii) the State minimum wage. The limitation of the number of hours of work experience to which a participant may be assigned is a calculation of allowable hours in a work activity and does not mean that such participant is receiving a wage for the performance of such activities. The participant is not working off the grant, but is engaged in work activities as an element of his/her plan to become self-sufficient: . . .
12 N.Y. Comp. Codes R. & Regs. Title 12, § 1300.9 (emphasis added).

 III. DISCUSSION

 A. Relevant Legal Standards

  Defendants McGowan and Rose move to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(6) for failure to state a claim and Fed.R.Civ.P. 12(c) for judgment on the pleadings in their favor. The standard for granting a Fed.R.Civ.P. 12(c) motion for judgment on the pleadings is identical to that of a Fed.R.Civ.P. 12(b)(6) motion for failure to state a claim. Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001) (citing Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Page 7 Cir. 1998); Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994); Ad-Hoc Comm. of Baruch Black & Hispanic Alumni Ass'n v. Bernard M. Baruch Coll., 835 F.2d 980, 982 (2d Cir. 1987)). "In both postures, the district court must accept all allegations in the complaint as true and draw all inferences in the non-moving party's favor." Id. (citation omitted). The court will not dismiss the case "unless it is satisfied that the complaint cannot state any set of facts that would entitle him to relief." Id.

  When a defendant moves to dismiss for lack of subject matter jurisdiction, however, a different standard is applied. In considering a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), federal courts "need not accept as true contested jurisdictional allegations." Jarvis v. Cardillo, Civil Case No. 98-5793, 1999 WL 187205, at * 2 (S.D.N.Y. Apr. 5, 1999). Rather, a court may resolve disputed jurisdictional facts by referring to evidence outside the pleadings. See Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000); Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 932 (2d Cir. 1998). As the party "seeking to invoke the subject matter jurisdiction of ...


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