The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court are two motions: defendant's motion to dismiss the Complaint (Docket No. 2*fn1 ) and plaintiff's motion for leave to amend the Complaint (Docket No. 7*fn2 ). Prior to the parties consenting to proceed before the undersigned as Magistrate Judge (Docket No. 13, Feb. 16, 2009), the Court issued briefing schedules for both motions (Docket Nos. 3, 5, 10 (for defendant's motion, amended at the request of plaintiff, see Docket Nos. 4, 8), 9 (for plaintiff's motion)). After consenting, a new schedule was entered (Docket No. 14), with all responses to both pending motions (or supplementation of responses already submitted) due on or before March 16, 2009, and any reply to either motion due on or before March 31, 2009, and both motions then were deemed submitted without oral argument on March 31, 2009. On March 26, 2009, the Court deemed the motions submitted without further reply papers (Docket No. 16).
This is an Age Discrimination in Employment Act (or "ADEA") action, under 29 U.S.C. §§ 621-34. Plaintiff, proceeding pro se, alleges that he was born in 1940 and was 65 years old when he was discriminated against by defendant employer in 2006 while working in the Division of Athletics at the State University of New York at Buffalo as a staff associate (Docket No. 1, Compl.). Plaintiff claims that there was a pattern of age discrimination in his assignments and work environment designed to make plaintiff consider retirement (id.). In January 2006, plaintiff received a job assignment he believed was not commensurate with the responsibility appropriate for his title. In a meeting with athletic director Warde Manuel, plaintiff asked to return to an assignment with business operations (which was consistent with his education and experience) but he was told that business operations had been computerized and that plaintiff's learning curve would be "too steep" for him to perform the job (id.). Plaintiff complains that he has not had a performance evaluation in ten years, limiting his ability to receive salary increases or promotions. He concludes that defendant created an unpleasant work environment in order to force him to retire. (Id.)
Plaintiff then filed a complaint with the New York State Division of Human Rights on July 18, 2006, and the Equal Employment Opportunity Commission issued him a right to sue letter on the same date (id.).
Defendant's Motion to Dismiss
Defendant filed the first pending motion to dismiss (pursuant to Fed. R. Civ. P. 12(b)(1)) (Docket No. 2), arguing that it was immune under the Eleventh Amendment from suit under the Age Discrimination in Employment Act(Docket No. 2, Def. Memo. at 2d unnumbered page), either as a suit against New York State itself or against the State University of New York as a separate entity. As to the latter status, defendant contends that the State University is an entity within the New York State government, essentially the state for Eleventh Amendment purposes (id. at 2d to 3d unnumbered pages). Defendant concludes that this Court lacks subject matter jurisdiction of this Complaint against defendant under the ADEA (id.; Docket No. 12, Def. Atty. Decl. ¶ 5).
Plaintiff responds generally, citing the standard for dismissal for failure to state a claim under Rule 12(b)(6) (emphasis added) (see Docket No. 11, Pl. Opp. Mem. at 2d unnumbered page). Defendant notes in its counsel's further declaration that plaintiff does not address the Eleventh Amendment immunity arguments advanced by defendant in its motion (Docket No. 12, Def. Atty. Decl. ¶ 4).
Plaintiff's Motion for Leave to Amend the Complaint
Plaintiff then moved for leave to amend the Complaint (Docket No. 7) to allege harassment, the latest incident occurring on August 7, 2008 (id., Pl. Memo. at 1st unnumbered page). Plaintiff claims that he sought to be excused from a meeting due to a health situation in his family and was apparently granted leave but plaintiff claims that nevertheless he was singled out for not attending that meeting (id. at 1st to 2d unnumbered pages). He does not state how he was harassed and did not attach proposed amendment language with his motion. Plaintiff's proposed amendment also does not address defendant's Eleventh Amendment sovereign immunity arguments.
Defendant opposes plaintiff's motion because the proposed amendment would be futile given defendant's pending motion to dismiss (Docket No. 15, Def. Atty. Decl. ¶¶ 9-10). "Since nothing about the proposed amendment to plaintiff's Complaint addresses this fundamental issue [defendant's claimed Eleventh Amendment immunity], it is futile to amend the complaint, as it should be dismissed in any event," defendant argues (id. ¶ 12, see id. ¶ 13). Alternatively, defendant asks that this Court reserve decision on plaintiff's motion to amend until it has decided defendant's motion to dismiss (id. ¶ 14).