United States District Court, E.D. New York
July 8, 2005.
DENISE BLUMBERG, Plaintiff,
NASSAU HEALTH CARE CORPORATION doing business as Nassau University Medical Center, Defendants.
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
This is a motion by Nassau Health Care Corporation, doing
business as the Nassau University Medical Center ("NUMC" or the
"Defendant") to: (1) dismiss the claims of Denise Blumberg (the
"Plaintiff") brought under American with Disabilities Act (the
"ADA"); and (2) strike the Plaintiff's demand for punitive
damages. The Defendant contends that the Plaintiff is barred from
bringing an ADA claim against it because the NUMC is a public entity and state actor that is
immune to such suits under the Eleventh Amendment. For the
reasons that follow, the motion to dismiss is denied and the
motion to strike is granted.
The Plaintiff was hired by the Defendant as a Pediatric
Endocrinologist in February 1991 and was promoted to the position
of Director of Pediatric Endocrinology in February 1992. On
September 5, 2003, the Plaintiff was diagnosed with breast cancer
and needed to take time off for surgery and chemotherapy. In
October 2003, she submitted a catastrophic sick leave request,
which asked for sick leave until October 27, 2003, and that she
be able to work thereafter with the exception of the two days per
month when she would be receiving chemotherapy treatment. On
October 24, 2003, the Plaintiff was terminated without being
given a reason. The Plaintiff claims that her termination was
willful and motivated by disability-discriminatory animus.
The sole issue before the Court in this motion is whether the
Eleventh Amendment bars the Plaintiff from bringing an ADA claim
against the Defendant. The Plaintiff, in her memorandum of law in
opposition to the Defendant's motion to dismiss portions of the
complaint, conceded that punitive damages may not be sought here.
As such, the motion to strike the punitive damages claim is
granted. The Court will now discuss the question of whether the NUMC is entitled to
Eleventh Amendment immunity.
A. Rule 12(b)(1) Standard
The Eleventh Amendment bars "federal jurisdiction over suits
against nonconsenting States." Kimel v. Florida Bd. of Regents,
528 U.S. 62, 73, 120 S. Ct. 631, 640 (2000) (citing College
Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd.,
527 U.S. 666, 669-670, 119 S. Ct. 2219, 144 L. Ed.2d 605 (1999)).
Therefore, a motion to dismiss on the ground of state immunity is
a jurisdictional matter properly brought under Rule 12(b)(1) of
the Federal Rules of Civil Procedure.
When considering a motion for lack of subject matter
jurisdiction under Rule 12(b)(1), 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
(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).
B. The American's with Disabilities Act
The ADA is a comprehensive statute that prohibits the
discrimination of individuals with disabilities. "It forbids
discrimination against persons with disabilities in three major
areas of public life: employment, which is covered by Title I of
the statute; public services, programs, and activities, which are
the subject of Title II; and public accommodations, which are
covered by Title III. See Tennessee v. Lane, 541 U.S. 509,
516-17, 124 S. Ct. 1978, 158 L. Ed. 2d 820 (2004).
Although the provisions of Title I expressly cover employment,
courts have held that the language of Title II is broad enough to
also encompass claims of employment discrimination against public
entities. See Transp. Workers Union v. NY City Transit Auth.,
342 F. Supp. 2d 160, 173 (S.D.N.Y. 2004) ("Given th[e] broad
congressional mandate, it is certainly at least a plausible
reading of Title II that it covers employment discrimination.");
Bledsoe v. Palm Beach County Soil & Water Conservation Dist.,
133 F.3d 816, 820 (11th Cir. 1998); Coleman v. Town of Old
Saybrook, No. 03-1275, 2004 U.S. Dist. LEXIS 7442, at *8 (D.
Conn. 2004); see also Castellano v. City of New York,
142 F.3d 58, 70 (2d Cir. 1998) (assuming without deciding that
employees may allege a violation of Title II against their
employers). But see Zimmerman v. Oregon Dep't of Justice,
170 F.3d 1169 (9th Cir. 1999) (holding that Title II does not cover employment discrimination).
Whether Title II covers employment discrimination may seem
academic, but as will be discussed below, the distinction becomes
important when asserting claims against the State or one of its
agencies due to the Eleventh Amendment.
C. The Eleventh Amendment
The Eleventh Amendment provides, "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,
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, 687-70,
121 L. Ed. 2d 605 (1993).
In 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), the
Supreme Court concluded that an action against a State seeking
money damages under Title I of the ADA was barred by the
Eleventh Amendment. Id. The Supreme Court in Garrett did not address
the issue of whether a State was immune under Title II of the
ADA. Id. at 360, 121 S. Ct. 955, 148 L. Ed. 2d 866. However,
the Second Circuit has addressed that issue in stating that "a
private suit for money damages under Title II of the ADA may . . .
be maintained against a state if the plaintiff can establish that the Title II
violation was motivated by either discriminatory animus or ill
will due to disability." Garcia v. SUNY Health Sciences Center
of Brooklyn, 280 F.3d 98, 112 (2d Cir. 2001); see also Lane,
541 U.S. at 516-17, 124 S. Ct. 1978, 158 L. Ed. 2d 820;
Henrietta D. v. Bloomberg, 331 F.3d 261, 288 (2d Cir. 2003).
Therefore, a claim under Title II of the ADA may be maintained
against a State, but a State is immune from a suit brought under
In this case, the Plaintiff's complaint does not specify under
what title of the ADA she is proceeding. However, the complaint
does allege that her termination was willful and motivated by
disability-discriminatory animus. This is sufficient to state a
claim against the Defendant under Title II regardless of whether
it is considered part of the State or not. Since the Plaintiff
appears to also be asserting a violation of Title I of the ADA,
the Court must decide whether the NUMC is considered part of the
State for purposes of Eleventh Amendment Immunity.
The Eleventh Amendment only applies to States and its agencies.
It is well-settled that Immunity from suit under the
Eleventh Amendment "does not apply to suits against counties, municipal
corporations, and other political subdivisions. . . ." Mancuso
v. New York State Thruway Authority, 86 F.3d 289, 292 (2d Cir.
1996). In order to establish immunity, the entity claiming it
must "demonstrate that it is more like `an arm of the State,'
such as a state agency, than like `a municipal corporation or other political subdivision.'" Id. (quoting Mt. Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280,
97 S. Ct. 568, 572, 50 L. Ed.2d 471 (1977)).
In deciding the issue of immunity, the Second Circuit looks at
six factors, which were derived from the Supreme Court decision
in Lake Country Estates, Inc. v. Tahoe Regional Planning
Agency, 440 U.S. 391, 99 S. Ct. 1171, 59 L. Ed.2d 401 (1979).
The six factors include:
(1) how the entity is referred to in the documents
that created it; (2) how the governing members of the
entity are appointed; (3) how the entity is funded;
(4) whether the entity's function is traditionally
one of local or state government; (5) whether the
state has a veto power over the entity's actions; and
(6) whether the entity's obligations are binding upon
Mancuso, 86 F.3d at 293. While considering these six factors,
courts are mindful that the "Eleventh Amendment's core concern"
is whether the State treasury is obligated to pay the funds of
the entity. Hess v. Port Authority Trans-Hudson Corp.,
513 U.S. 30, 51, 115 S. Ct. 394, 406 (1994). With these factors and
principles in mind, the Court will examine New York State's
statutory basis for the Defendant's existence to determine
whether it is "an arm of the state."
The NUMC is a public benefit corporation created by the New
York State legislature to provide health care services and health
facilities for the benefit of the residents of the State of New
York and the County of Nassau. See N.Y. Pub. Auth. Law §
3401-18 (McKinney's 2005). Under New York law, a public benefit
corporation is "a corporation organized to construct or operate a
public improvement wholly or partly within the state, the profits from which inure
to the benefit of this or other states, or to the people
thereof." N.Y. Gen. Constr. Law § 66(4).
When the NUMC was created, it acquired the Nassau County
Medical Center and all of its employees, services, and facilities
were transferred to the newly created public benefit corporation.
N.Y. Pub. Auth. Law § 3403. Prior to this transfer, the Nassau
County Medical Center was a municipal corporation and it was
well-settled that it did not enjoy Eleventh Amendment Immunity.
Hamad v. Nassau County Med. Ctr., 191 F. Supp.2d 286, 305
Under the cloak of public benefit corporation, NUMC enjoys the
ability to acquire property by condemnation, and exemption from
taxes and certain fees. N.Y. Pub. Auth. Law §§ 3404 & 3414. The
NUMC is governed by fifteen directors, eight of whom are
appointed by the Governor of New York, and it is subject to the
New York Civil Service Law. N.Y. Pub. Auth. Law §§ 3402 & 3403.
However, the NUMC, and not the State or Nassau County, is solely
responsible for the payment of any municipal bonds that it is
authorized to issue. Likewise, under Sec. 3409(a) of the New York
Public Authority Law, the bonds or notes of the Defendant are not
considered a debt of the State. Also, the law explicitly permits
the NUMC to "sue or be sued." Id. § 3404(1).
In Mancuso, the Second Circuit held that a similar New York
public benefit corporation, namely the New York State Thruway
Authority, was not an "arm of the state." Mancuso, 86 F.3d at 297. In that case the Second
Circuit found that the Thruway Authority was structured to be
self sustaining. Id. at 296. The State was not liable for the
Thruway Authority's notes or bonds, and the N.Y. Const. Art. X, §
5 "expressly provides that the state shall not be liable for the
obligations of public corporations. . . ." The court also noted
that a judgment against the Thruway Authority would not have the
practical effect of requiring payments from the New York
treasury, as there was no evidence that the Thruway Authority
would have difficulty satisfying a judgment. Id.
The Court finds that the structure of the NUMC is very similar
to the Thruway Authority. In analyzing its statutory
authorization, it appears that the NUMC is not a "traditional
state agency," and more like a public entity that is for the most
part self-funded. Except for the Governor's appointment of eight
of its directors, the State exercises no control over the NUMC.
Unlike the Thruway Authority, the Court finds that the NUMC is
not even closely associated with the state. Rather, the NUMC is
closely associated with its predecessor, the Nassau County
Medical Center, which was a municipal corporation that was not
entitled to Eleventh Amendment Immunity. Indeed, from the
evidence provided, the Court finds that the State has given the
NUMC an existence quite independent from the State, much like its
predecessor the Nassau County Medical Center, and that it
exercises minimal authority over the NUMC. The Defendant contends that it is entitled to immunity because
courts have held that the NUMC is a "state actor," citing
Hamad, 191 F. Supp. 2d at 297, and Magee v. Nassau County Med.
Ctr., 27 F. Supp. 2d 154, 159 (E.D.N.Y. 1998). However, the mere
fact that the NUMC is a state actor is not dispositive or even
helpful to the issue. In fact, municipalities and counties are
considered "state actors" for certain purposes, but are not
agencies of the state entitled to Eleventh Amendment Immunity.
See Mt. Healthy, 429 U.S. at 280, 97 S. Ct. 568,
50 L. Ed. 2d 471.
The Defendant also asserts, without mentioning any of the
factors stated above, that it is entitled to Eleventh Amendment
Immunity because the "Eastern District of New York has already
found that the [NUMC] is a New York State agency, Gutt v.
Nassau Health Care Corporation, Index No. 04 cv 0057, at *2
(E.D.N.Y. 2005)." Def.'s Reply Mem. at 1. In support of this
assertion the Defendant attached a transcript of an oral argument
in the Gutt case, apparently on a motion to dismiss on the
basis of Eleventh Amendment Immunity. An examination of the
transcript reveals that the Defendant's bold assertion has no
merit. In the Gutt case, the Plaintiff stipulated to
withdrawing certain claims before the court issued its decision
on the issue because counsel for the Plaintiff believed that the
NUMC was a state agency entitled to immunity. Although the court
stated that section 3401 "indicates" that the NUMC is a state
agency, this Court is unable to determine whether that statement
was the court's determination or simply a rhetorical question
posed to one of the parties. Assuming the court in Gutt had determined that the NUMC is a
state agency, this Court is by no means bound by that court's
decision. Indeed, from the information provided by the Defendant
in this motion, it is quite clear that the NUMC is not a state
agency entitled to Eleventh Amendment Immunity. Accordingly, the
NUMC's motion to dismiss based on Eleventh Amendment Immunity is
Based on the foregoing, it is hereby
ORDERED, that the Defendant's motion to strike the
Plaintiff's punitive damages claim is GRANTED; and it is
ORDERED, that the Defendant's motion to dismiss the complaint
based on Eleventh Amendment Immunity is DENIED.
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