The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff Linda Thomas ("Thomas"), a former employee of defendant New York State Department of Transportation (the "DOT") brings this action pursuant to the Age Discrimination in Employment Act ("ADEA"), and the New York State Human Rights Law claiming that she was discriminated against by the defendant on the basis of her age. Specifically, plaintiff alleges that she was denied promotions, was forced to perform work above her pay level without just compensation, and ultimately, was fired from her employment because of her age.
Defendant DOT denies plaintiffs allegations, and moves to dismiss plaintiff's ADEA and New York State Human Rights Law claims on grounds that the DOT is immune from suit pursuant to the Eleventh Amendment to the Constitution. Defendant Mary Kay Morsch ("Morsch") moves to dismiss plaintiff's ADEA claims on ground that she may not be held individually liable under the ADEA.
Plaintiff opposes defendants' motion and seeks to amend the Complaint to add causes of action under the Rehabilitation Act of 1973, and 42 U.S.C. § 1983, and to add a defendant. Defendants oppose plaintiff's motion to amend on grounds that the proposed claims fail to state valid causes of action. For the reasons set forth below, I grant defendant's motion to dismiss, and grant in-part and deny-in part plaintiff's motion to amend.
I. Defendants' Motion to Dismiss
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for dismissal of the Complaint where the Court lacks subject matter jurisdiction over the dispute. Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of the Complaint where the plaintiff has failed to state a claim upon which relief can be granted. When evaluating a Rule 12(b)(6) motion, the court must ascertain, after presuming all factual allegations in the pleading to be true and viewing them in the light most favorable to the plaintiff, whether or not the plaintiff has stated any valid ground for relief. Ferran v. Town of Nassau, 11 F.3rd 21, 22 (2d Cir. 1993), cert. denied, 513 U.S. 1014 (1994). The court may grant a Rule 12(b)(6) motion only where "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
Plaintiff claims that the defendants discriminated against her in violation of the Age Discrimination in Employment Act. However, because the DOT is an agency of the State of New York, plaintiff's claim is barred by the Eleventh Amendment to the Constitution, which bars suits by individuals against states for alleged deprivations of civil liberties, unless the state has waived its immunity from such a suit. Will v. Michigan Department of State Police, 491 U.S. 58, 66 (1989). New York has not waived its immunity from suit in this case, nor does 42 U.S.C. § 1983 override the immunity afforded the states by the Eleventh Amendment. Will, 491 U.S. at 66. Thus, plaintiff's claims against the Department of Transportation or any employee acting in his or her official capacity are barred by the State's absolute immunity from such a suit. Moreover, because the ADEA does not provide for personal liability, plaintiff's claims against defendant Morsch must be dismissed. Martin v. Chemical Bank, 129 F.3d 114 (2nd Circ., 1997).
C. New York State Human Rights Law Claims
Plaintiff alleges that the DOT violated the New York Human Rights Law by discriminating against her on the basis of her age. Because New York State has not consented to a suit against it pursuant to the Human Rights Law in federal court, plaintiff's action is against the DOT and Morsch acting in her official capacity is barred by the Eleventh Amendment. Jungels ...