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July 8, 2005.

NASSAU HEALTH CARE CORPORATION doing business as Nassau University Medical Center, Defendants.

The opinion of the court was delivered by: ARTHUR SPATT, District Judge


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 ...

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