The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:
Pro se plaintiffs Dhiri Trivedi ("Trivedi"), Hrishikesh Bhattacharjee ("Bhattacharjee"), Douga Ba ("Ba"), Pa B. F. Drammeh ("Drammeh"), and Hamadou Seck ("Seck") (collectively, "Plaintiffs"), former court interpreters for the New York Unified Court System Office of Court Administration ("OCA"), bring these actions pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. ("Title VII"), and the Age Discrimination in Employment Act of 1964, 29 U.S.C. §§ 621, et seq. ("ADEA") against their former employer, OCA. Ba, Drammeh and Seck also assert Title VII and ADEA claims against their union, District Council 37 Local 1070 ("DC 37"). Drammeh, Seck, and Trivedi assert claims pursuant to the New York City Human Rights Law, N.Y. City Admin. §§ 8-101, et seq. ("NYCHRL"). Additionally, Ba, Drammeh, and Trivedi assert claims pursuant to the New York State Human Rights Law, N.Y. Exec. Law §§ 290, et seq. ("NYSHRL"). Trivedi asserts a claim pursuant to the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12112, et seq. ("ADA"). Finally, Bhattacharjee and Trivedi now seek to amend their complaints to include claims pursuant to 42 U.S.C. § 1983 ("Section 1983").
OCA terminated Plaintiffs from their positions as court interpreters and translators after they failed a required English proficiency examination. Plaintiffs allege that OCA developed and administered its examinations in a discriminatory manner on the basis of race and national origin. Ba, Drammeh, and Seck also allege that DC 37 provided them with inadequate representation in connection with OCA's proficiency examination and was complicit with OCA's violations of their civil rights.
OCA moved to dismiss Plaintiffs' complaints pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. DC 37 moved to dismiss the complaints in which it is named pursuant to 12(b)(6), or, in the alternative, for summary judgment pursuant to Rule 56. On August 5, 2011, Magistrate Judge Frank Maas issued a Report and Recommendation ("R&R") recommending that the Court grant in part and deny in part OCA's motions and grant DC 37's motions in their entirety. OCA, Trivedi, and Bhattacharjee filed timely objections. The Court has reviewed the R&R, as well as the objections. For the reasons that follow, the Court adopts Magistrate Judge Maas's recommendations, and grants in part and denies in part OCA's motions and grants DC 37's motions in their entirety.
OCA uses three methods to certify and test the qualifications of full and part-time court employed interpreters depending on the language the interpreter translates. Spanish interpreters are subject to a lengthy two-part exam, consisting of multiple choice and oral portions. Interpreters of the eleven most prominent languages other than Spanish also take a two-part exam. Interpreters of other languages have to pass a multiple choice English proficiency test, and depending on the language, sometimes an oral exam. OCA continues to develop and implement oral examinations in these additional languages.
Plaintiffs were all employed full-time as court interpreters with OCA. Ba and Seck are African-American males who worked as both French and Wolof interpreters. Drammeh is an African-American male who worked as a Wolof, Mandingo, and Soninke interpreter. Bhattacharjee is a Bangladeshi male who worked as a Bengali interpreter. Trivedi is a woman from India who worked as a Hindi, Urdi, and Gujarati translator and interpreter.
In early 2008, Plaintiffs were notified by OCA that they would be required to take and pass a new type of English proficiency exam as a condition of their continued employment. After learning of this, Ba, Drammeh and Seck conveyed their concerns about the exam to DC 37. DC 37 persuaded them to take the test. Each Plaintiff took and failed one or both parts of the test, and any re-tests that were administered. The Plaintiffs were fired as a result of their test results.
Ba, Drammeh and Seck contend that OCA administered the new exam to only interpreters of African descent. Bhattacharjee and Trivedi complain about the testing conditions, and Bhattacharjee also contends that the passing score for Bengali interpreters was much higher than for other languages.
After being fired, Ba, Drammeh, and Seck each filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging that OCA and DC 37 discriminated against them on the basis of their race and national origin. Bhattacharjee filed an EEOC charge alleging national origin discrimination and retaliation. Trivedi filed an EEOC charge claiming only retaliation. In all cases, the EEOC found no basis to find a violation of federal law; but it issued each Plaintiff a right-to-sue letter.
In September 2010, Plaintiffs commended their respective actions. On January 14, 2011 and February 8, 2011, DC 37 and OCA, respectively, filed motions to dismiss the complaints of Ba, Drammeh, and Seck. On March 22, 2011 and April 1, 2001, OCA filed motions to dismiss Trivedi and Bhattacharjee's complaints, respectively. Each Plaintiff filed opposition papers; OCA and DC 37 filed reply papers.
This Court referred Plaintiffs' cases to Magistrate Judge Maas for general pretrial matters and dispositive motions. On August 5, 2011, Magistrate Judge Maas issued a R&R.
III. Magistrate Judge Maas's R&R
In his R&R, Magistrate Judge Maas recommended that the Court grant in part and deny in part OCA's motions and grant DC 37's motions in their entirety.
1. ADEA, ADA, Section 1983, NYSHRL and NYCHRL
Magistrate Judge Maas concluded that Plaintiffs' claims raised under the ADEA, ADA, Section 1983,*fn2 NYSHRL and NYCHRL against OCA are barred by sovereign immunity under the Eleventh Amendment.
Pursuant to the Eleventh Amendment to the United States Constitution, a state and its agencies generally are immune from suit in federal court. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54-56 (1996). Magistrate Judge Maas found that OCA, as the administrative arm of the New York State Unified Court System, is a public entity that is not amenable to suit under the Eleventh Amendment. (R&R 14 (citing Gollup v. Spitzer, 568 F. 3d 355, 365-68 (2d Cir. ...