BERNARD V. IDLISAN, Plaintiff,
NYS DEPARTMENT OF TAXATION AND FINANCE, OHRM PERSONNEL UNIT RECRUITER, Defendants.
BERNARD B. IDLISAN, Brooklyn, NY, Plaintiff pro se.
OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL ADELE TAYLOR SCOTT, AAG, The Capitol, Albany, New York, Attorneys for Defendants.
MEMORANDUM-DECISION AND ORDER
MAE A. D'AGOSTINO, District Judge.
Plaintiff commenced this action on December 5, 2012, alleging employment discrimination through which Defendant allegedly intentionally inflicted emotional distress upon Plaintiff. See Dkt. No. 1 at 3-4.
Currently before the Court is Defendant's motion for judgment on the pleadings. See Dkt. No. 19-1 at 1. Defendant asserts that (1) Plaintiff's claim under Title I of the Americans with Disabilities Act of 1990 ("ADA") is barred by the Eleventh Amendment; (2) Plaintiff's claim of discrimination based on his past criminal convictions is not actionable in federal court; (3) Plaintiff's claim for damages for emotional distress should be dismissed because Plaintiff does not allege any specific actions that would qualify as extreme and outrageous conduct; (4) Plaintiff has failed to state a plausible Title VII claim; and (5) the Court should decline to exercise pendent jurisdiction over Plaintiff's state law claims. See id. at 7-15.
On May 9, 2011, Plaintiff applied to work in Taxation and Finance. See Dkt. No. 1 at 5. Plaintiff's nation of origin is the Philippines and he lists his race as Asian. See id. at 3-4. Plaintiff has prior criminal convictions of grand larceny and bail jumping. See Dkt. No. 1-1 at 4. In addition, Plaintiff suffers from severe triple vessel heart disease. See id. at 3. This disability qualifies Plaintiff for employment consideration under Sections 55-a and 55-b of the New York State Civil Service Law. A physician has certified that Plaintiff was job ready and likely to succeed in performing clerical duties. See id. at 34-35. Plaintiff has experience doing clerical work, and received scores of ninety and eighty on his civil service exams. See id. at 14.
After applying to work in Defendant's department and receiving no response, Plaintiff sent a follow-up letter on August 1, 2011. See Dkt. No. 1 at 7. On March 5, 2012, after Plaintiff still did not receive a response, he filed a formal discrimination complaint with the New York State Division of Human Rights ("Human Rights"). See id. Plaintiff then received a letter from Defendant on April 9, 2012, acknowledging that Defendant received Plaintiff's application and that he meets the qualifications for various clerical positions. See id. at 5. Defendant explained that clerical positions were not in high demand and that most of the available positions were in Albany, New York, while Plaintiff's address was in Brooklyn, New York. See id. Plaintiff sent a rebuttal, and then received a determination and order after investigation from Human Rights. See Dkt. No. 1-1 at 28. The investigation found that Defendant did not hire any entry level clerks in 2011, and hired five clerks in Albany, New York in 2012. See id. at 28-29. The investigation also found that Defendant did not consider Plaintiff for a position in Albany because he resides in Brooklyn and never indicated a desire to move to Albany. See id. Human Rights made a final determination that there was no probable cause to believe that Defendant had engaged in unlawful discrimination. See id. at 28. Plaintiff sent the Equal Employment Opportunity Commission ("EEOC") a request for a review of Human Rights' final determination on August 29, 2012. See id. at 30. On October 23, 2012, EEOC informed Plaintiff that it adopted Human Rights' findings and was closing its file on Plaintiff's claim; EEOC also informed Plaintiff that he may file a lawsuit. See id. at 33.
Plaintiff claims that he should have been hired for a clerical position in Albany regardless of his address, since he applied for positions in Albany. See Dkt. No. 1 at 7. Plaintiff alleges that Taxation and Finance, as well as an unnamed recruiter, did not consider him for employment because of his national origin, race, conviction record, and his disability. See Dkt. No. 1-1 at 17. Plaintiff requests a job from Defendant, or in the alternative, $50, 000.00. See Dkt. No. 1 at 4. Plaintiff claims that Defendant intentionally inflicted emotional distress upon him, which aggravated his medical condition. See id.
A. Standard of Review
A judgment on the pleadings "is appropriate where material facts are undisputed and where a judgment on the merits is possible merely by considering the contents of the pleadings." Carter v. City of Syracuse Sch. Dist., No. 5:10-CV-690, 2012 WL 930798, *5 (N.D.N.Y. Mar. 19, 2012) (citation omitted). The same standard that is used in evaluating a motion to dismiss for failure to state a claim is applied when evaluating a motion for a judgment on the pleadings. See Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999). A motion to dismiss tests the legal sufficiency of the party's claim for relief. See Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation omitted). In considering the legal sufficiency, a court must accept as true all wellpleaded facts in the pleading and draw all reasonable inferences in the pleader's favor. See ASTI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption of truth, however, does not extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
To survive a motion to dismiss, a party need only plead "a short and plain statement of the claim, " see Fed.R.Civ.P. 8(a)(2), with sufficient factual "heft to sho[w] that the pleader is entitled to relief[, ]'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted). Under this standard, the pleading's "[f]actual allegations must be enough to raise a right of relief above the speculative level." Id. at 555 (citation omitted). "Where a complaint pleads facts that are merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of "entitlement to relief."'" Id. (quoting [ Twombly, 550 U.S.] at 557, 127 S.Ct. 1955). Ultimately, "when the allegations in a complaint, however true, could not raise a claim of ...