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Natarelli v. New York State Office of Vocational and Educational Services for Individuals with Disabilities

December 21, 2009

DONALD NATARELLI, PLAINTIFF,
v.
NEW YORK STATE OFFICE OF VOCATIONAL AND EDUCATIONAL SERVICES FOR INDIVIDUALS WITH DISABILITIES, DEFENDANT.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

MEMORANDUM DECISION and ORDER

Currently before the Court in this employment discrimination action, filed pro se by Donald Natarelli ("Plaintiff"), is a motion to dismiss for lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), filed by the New York State Office of Vocational and Educational Services for Individuals with Disabilities ("Defendant"). (Dkt. No. 58.) For the reasons set forth below, Defendant's motion is granted.

I. RELEVANT BACKGROUND

A. Plaintiff's Claims

Construed with the utmost of special solicitude, Plaintiff's Complaint alleges that employees of New York State Office of Vocational and Educational Services for Individuals with Disabilities ("VESID") discriminated against him based on his age and disability in wrongfully closing his case after approximately a year of working with him to develop or reach an individualized plan for employment. (See generally Dkt. No. 1, ¶¶ 4, 5, 6 & Attachment.)

More specifically, Plaintiff alleges that, between approximately December 2006 and October 2007, four employees of the VESID Office in Utica, New York, committed the following acts: (1) Senior Counselor Patrick Sheppard discriminated against Plaintiff based on his disability (which consisted of cancer, depression, and a generalized anxiety disorder) during two meetings with him, one of which occurred on December 21, 2006; (2) Counselor Joe Zamlowski discriminated against Plaintiff based on his age by informing him, during a session with him at the Herkimer Working Solutions Career Center before June 16, 2007, that his age would be a factor (among many employment factors) considered by "building principals" in deciding whether to hire him for an entry level job while he was completing additional training on the graduate level to obtain a teaching position; (3) Senior Counselor Judy Petroski discriminated against Plaintiff based on his age on June 16, 2007, by learning of what Counselor Joe Zamlowski had told Plaintiff and responding, "We'll give you that"; and (4) Regional Coordinator John Tracy treated his "reports . . . [of] age discrimination . . . with depraved indifference." (Id. at ¶¶ 5, 6 & Attachment.)

Based on these factual allegations, Plaintiff asserts a violation of his rights under (1) the Americans with Disabilities Act ("ADA "), (2) the Age Discrimination in Employment Act ("ADEA "), and (3) 42 U.S.C. § 1983 (and the Due Process Clause of the Fourteenth Amendment). (Id. at ¶¶ 5, 6 & Attachment.)*fn1 As relief for these asserted violations, Plaintiff seeks equitable relief, compensatory damages, punitive damages, and declaratory relief. (Id. at ¶ 7.)

B. Defendant's Motion

Generally, in support of its motion to dismiss, Defendant argues that the Court lacks subject-matter jurisdiction over Plaintiff's claims against VESID because VESID, as an agency of the State of New York, is protected from liability by the Eleventh Amendment under the circumstances (in which New York has not waived its sovereign immunity by consenting to suit, nor has Congress authorized such suit in the exercise of its power to enforce the Fourteenth Amendment). (See generally Dkt. No. 58, Attach. 1, at 2-4 [Def.'s Memo. of Law].)

Plaintiff's response to Defendant's motion was originally due on October 13, 2009. (Text Notice filed Sept. 30, 2009.) On September 30, 2009, the Court sua sponte extended this response deadline until October 19, 2009. (Text Notice filed Sept. 30, 2009.) On October 7, 2009, Plaintiff requested a second extension of this deadline. (Dkt. No. 63.) On October 15, 2009, the Court granted that request, extending the deadline until November 2, 2009. (Text Order filed Oct. 15, 2009.) On October 30, 2009, Plaintiff requested a third extension of this deadline. (Dkt. No. 66.) On November 3, 2009, the Court granted that request, extending the deadline until November 13, 2009, and advising Plaintiff that the extension was "FINAL." (Text Order filed Nov. 3, 2009.) On November 12, 2009, Plaintiff requested a fourth extension of this deadline. (Dkt. No. 67.) On November 16, 2009, the Court denied that request as without cause. (Text Order filed Nov. 16, 2009.) Despite having been granted three extensions of time in which to do so, Plaintiff failed to submit a timely response to Defendant's motion to dismiss. Rather, on December 9, 2009, he submitted that response--twenty-six (26) days after the expiration of the deadline, which again had been extended three times. (Dkt. No. 68.)

In his response, Plaintiff does not show good cause for a nunc pro tunc fourth extension of the deadline as required by Fed. R. Civ. P. 16(b)(4).*fn2 While special solicitude may serve to loosen procedural rules,*fn3 it never completely relieves a pro se litigant of the duty to comply with procedural rules.*fn4 This is especially true where, as here, (1) the plaintiff knew of the procedural rule he violated (e.g., through the repeated Text Orders requiring a timely response from him), and (2) disregarding that rule would prejudice both the Court and Defendant. The Court notes that, when Plaintiff submitted his response, the Court had already researched and drafted a Decision and Order on Defendant's motion, and was merely finalizing it. The Court notes also that accepting Plaintiff's response for consideration would necessitate a reply by Defendant, which would further prolong this aging action. Finally, the Court notes that this action is so old (having been filed on October 24, 2007) in part due to repeated extensions of special solicitude to Plaintiff.*fn5

For these reasons, the Court declines to consider Plaintiff's untimely response, under the circumstances.

II. RELEVANT LEGAL STANDARD

Generally, "[t]he Eleventh Amendment . . . bars federal jurisdiction over a suit brought against a state." Nicolae v. NYS Office of Vocational and Educ. Servs. for Individuals with Disabilities, 04-CV-3512, 2005 WL 1311730, at *1 (E.D.N.Y. May 26, 2005) (citing College Sav. Bank v. Fla. Prepaid Post-secondary Educ. Expense Bd., 527 U.S. 666, 669-70 [1999]), aff'd, No. 06-5693, 2007 WL 4462429 (2d. Cir. Dec. 18, 2007). "This bar extends not only to a state, but also to entities considered arms of the state." Nicolae, 2005 WL 1311730, at *1 (citing McGinty v. New York, 251 F.3d 84, 95 [2d Cir. 2001]). There are only two exceptions to Eleventh Amendment immunity: "(1) a State may waive its sovereign immunity by consenting to suit; and (2) Congress may authorize such a suit in the exercise of its ...


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