Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Smith v. Oneida Employment Services

March 29, 2009

MARCUS W. SMITH, PLAINTIFF,
v.
ONEIDA EMPLOYMENT SERVICES; ONEIDA NATION ENTERPRISES, LLC; RAY HALBRITTER, AS CEO OF ONEIDA EMPLOYMENT SERVICES AND AS MEMBER/MANAGING MEMBER OF ONEIDA NATION ENTERPRISES, LLC; ROBERT C. LARSON, AS AN AIDER AND ABETTOR; AND MARK MANCINI, AS AN AIDER AND ABETTOR, DEFENDANTS.



The opinion of the court was delivered by: Scullin, Senior Judge

I. INTRODUCTION

Currently before the Court is Defendants' motion to dismiss Plaintiff's complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure and for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

II. BACKGROUND

Plaintiff began his employment with the Oneida Indian Nation of New York (the "Nation") or its subsidiaries on or about May 1, 1990. See Complaint at ¶ 21. Plaintiff continued to work "for the new companies and or LLC until his termination in December of 2006." See id. at ¶ 22.

On or about August 10, 2007, Plaintiff filed a charge of racial and ethnic discrimination and retaliation against the Nation with the Equal Employment Opportunity Commission ("EEOC") and the New York State Division of Human Rights. See Complaint at ¶ 5. On August 31, 2007, the EEOC declined to investigate this claim because the employer of record was an Indian Tribe. See id. at ¶ 6. The EEOC's right-to-sue letter advised Plaintiff that he needed to file a suit within ninety days of August 31, 2007, or lose his right to sue. See id.

Rather than file suit, Plaintiff filed another charge of racial and ethnic discrimination and retaliation with the EEOC and the New York State Division of Human Rights on September 9, 2007; this time he brought the charge against Oneida Nation Enterprises, LLC. See id. at ¶ 7. On November 14, 2007, the EEOC declined to investigate further, and Plaintiff received a right-tosue letter advising him that he needed to file a suit within ninety days of the receipt of that letter or lose his right to sue. See id. at ¶ 8.

Plaintiff commenced this action on February 8, 2008. See Dkt. No. 1. In his complaint, he asserted the following six causes of action: (1) a Title VII claim against Defendants Oneida Employment Services ("OES"), Oneida Nation Enterprises, LLC, and Ray Halbritter for discrimination based on his race and ethnicity; (2) a New York Human Rights Law claim against Defendants for discrimination based on his race and ethnicity; (3) a New York Human Rights Law claim against Defendants Larsen and Mancini, as aiders and abettors, for discrimination based on his race and ethnicity; (4) a Title VII claim against Defendants OES, Oneida Nation Enterprises, LLC, and Ray Halbritter for retaliation; (5) a New York Human Rights Law claim against Defendants OES, Oneida Nation Enterprises, LLC, and Ray Halbritter for retaliation; and (6) a New York Human Rights Law claim against Defendants Larsen and Mancini, as aiders and abettors, for retaliation. See, generally, Complaint.

On March 2, 2008, Defendants filed the motion to dismiss which is currently before the Court. See Dkt. No. 10. Plaintiff filed his response in opposition to that motion on March 23, 2008. See Dkt. No. 11. Defendants filed their reply in further support of their motion on March 29, 2008. See Dkt. No. 12. The following is the Court's written disposition of the pending motion.

III. DISCUSSION

A court must consider a motion for lack of subject matter jurisdiction before it considers any other motion and must dismiss an action when it concludes that such jurisdiction is lacking. See World Touch Gaming, Inc. v. Massena Mgmt., LLC, 117 F. Supp. 2d 271, 274 (N.D.N.Y. 2000) (noting that "a finding of lack of jurisdiction . . . render[s] other objections and defenses moot") (citations omitted). The burden is on the party asserting subject matter jurisdiction to prove that jurisdiction exists. See id. (citations omitted).

Furthermore, "'"[p]arties cannot confer subject matter jurisdiction where the Constitution and Congress have not. The absence of such jurisdiction is not waivable[.]"'" Frazier v. Turning Stone Casino, 254 F. Supp. 2d 295, 302 (N.D.N.Y. 2003) (quotation omitted). For purposes of federal-question jurisdiction, "'a "suit arises under the law that creates the cause of action."'" Id. (quotation omitted).

Finally, when opposing a motion to dismiss for lack of subject matter jurisdiction, "the party cannot 'rest on [the] mere assertion that factual issues exist.'" World Touch Gaming, Inc., 117 F. Supp. 2d at 274 (quotation omitted). Furthermore, "[t]he proof of jurisdictional facts must be competent . . . and guidance regarding the proof can be taken from Fed. R. Civ. P. 56 . . . ."

Id. (internal citations omitted).

In this case, Defendants base their motion to dismiss on their tribal sovereign immunity. See Defendants' Memorandum of Law at 5 (citation omitted). It is well-established that "'Indian tribes possess sovereign immunity from suit in state and Federal courts[.]'" Zeth v. Johnson, 309 A.D.2d 1247, 1247 (4th Dep't 2003) (quotation and other citation omitted). Moreover, "'[t]he doctrine of tribal immunity "extends to individual tribal officials acting in their representative capacity and within the scope of their authority[,]"'" id. (quotation omitted), and to tribal agencies, see Hagen v. Sisseton-Wahpeton Cmty. Coll., 205 F.3d 1040, 1043 (8th Cir. 2000) (citation omitted); Frazier, 254 F. Supp. 2d at 305 (noting that "the doctrine of tribal sovereign immunity bars suits for ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.