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Blige v. City University of New York

United States District Court, S.D. New York

March 21, 2017

WILLIE BLIGE, Plaintiff,
v.
CITY UNIVERSITY OF NEW YORK, DENISE DYCE, PASQUALE MORENA, JOHN SIDERAKIS, CARMELO BATISTA, and ROBERT CURRY Defendant.

          MEMORANDUM DECISION AND ORDER

          GEORGE B. DANIELS, United States District Judge.

         Pro se Plaintiff Willie Blige filed this action against his former employer, the City University of New York ("CUNY"), Denise Dyce, Pasquale Morena, John Siderakis, Carmelo Batista, and Robert Curry (the "Individual Defendants") on November 10, 2015. (Compl., ECF No. 1.) Plaintiff seeks $700, 000 in damages. (PI. Am. Compl, ECF No. 6.) He alleges that Defendants discriminated against him on the basis of race, color, sex, military status, and arrest record in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII") and age in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. ("ADEA"). Plaintiff alleges discriminatory termination, unequal terms and conditions of his employment, unfair labor practice, and slander based on his identity as an African American male over forty years of age. (PL Am. Compl., at 1-3.) Defendants filed a motion to dismiss the Complaint in its entirety for failure to state a claim and for lack of subject-matter jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1) on July 18, 2016. (CUNY Defs.' Mot. to Dismiss[1] ("CUNY Defs.' Mot."), ECF No. 26, at 1; Def. Morena Mot. to Dismiss ("Morena Def. Mot."), ECF No. 39, at 1.)

         This matter was referred to Magistrate Judge Katharine Parker. (ECF No. 10.) Before this Court is Magistrate Judge Parker's Report and Recommendation, ("Report, " ECF No. 48), recommending that this Court dismiss Plaintiffs ADEA and state law claims against CUNY and its agents for lack of jurisdiction under the Eleventh Amendment, and dismiss Plaintiffs remaining claims for failure to state a claim for relief pursuant to Rule 12(b)(6). (Id. at 2.)[2] The Report contains no clear error of law and this Court adopts the Report in full.

         I. LEGAL STANDARD

         This Court may accept, reject or modify, in whole or in part, the findings and recommendations set forth within the Report. See 28 U.S.C. § 636(b)(1)(C). When no objections to a Report are made, the Court may adopt the Report if "there is no clear error on the face of the record." Adee Motor Cars, LLC v. Amato, 388 F.Supp.2d 250, 253 (S.D.N.Y. 2005) (citation omitted).

         The pleadings of parties appearing pro se are generally accorded leniency and should be construed "to raise the strongest arguments that they suggest." See Belpasso v. Port Auth. of N.Y. & N.J., 400 F.App'x 600, 601 (2d Cir. 2010) (quoting McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) ("Even after Twombly...we remain obligated to construe a pro se complaint liberally.").

         Magistrate Judge Parker advised the parties that failure to file timely objections to the Report would constitute a waiver of those objections on appeal. (Report, at 29); see also 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b). No party has filed objections.

         II. SOVEREIGN IMMUNITY UNDER THE ELEVENTH AMENDMENT

         The Report properly held that Plaintiffs ADEA and state law claims should be dismissed pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction because, as an agency of the State of New York, CUNY is immune from suit under the Eleventh Amendment.[3] (Report, at 13-15.) The Second Circuit has held that CUNY senior colleges are an "arm of the state" entitled to sovereign immunity under the Eleventh Amendment, as they are "ultimately accountable to, and dependent upon, the state." Clissuras v. City Univ. of N.Y., 359 F.3d 79, 83 (2d Cir. 2004); see also Becker v. City Univ. of N.Y., 94 F.Supp.2d 487, 490 (S.D.N.Y.2000). The Report correctly held that CUNY's protection under the Eleventh Amendment is not precluded by any exceptions to the doctrine.[4] (Report, at 14-15.) The Individual Defendants, [5] Denise Dyce, John Siderakis, Carmelo Batista, and Robert Curry, are also immune from suit under the Eleventh Amendment, as sovereign immunity extends to claims against state officials for acts committed in their official capacities. Darcy v. Lippman, 356 F.App'x 434, 436-37 (2d Cir. 2009); Ross v. State of N.Y., No. 15-cv-3286, 2016 WL 626561, at *3 (S.D.N.Y. Feb. 16, 2016).

         Furthermore, the Report properly recommends dismissal of Plaintiffs Title VII and ADEA claims against the Individual Defendants in their personal capacities, as neither Title VII nor the ADEA provide for individual liability against the agents of an employer, including individuals who hold supervisory responsibilities. (Report, at 16); see also Darcy, 356 F.App'x at 436-37 (noting that Title VII and the ADEA do not create causes of action against individual supervisors).

         Accordingly, this Court accepts Magistrate Judge Parker's recommendation that Plaintiffs ADEA and state law claims be dismissed pursuant to Rule 12(b)(1) as a matter of law with prejudice. (Report, at 15.)

         III. PLAINTIFF'S DISCRIMINATION CLAIMS BASED ON AGE, RACE AND COLOR

         In assessing Plaintiffs claims based on age, race, and color, the Report properly held that Plaintiff failed to exhaust all administrative remedies prior to asserting claims under Title VII and the ADEA in a federal court. See Little john v. N.Y.C.,795 F.3d 297, 322 (2d Cir. 2015) (quoting Williams v. N.Y.C. Hous. Auth.,458 F.3d 67, 69 (2d Cir. 2006)) ("Before bringing a Title VII suit in federal court, an individual must first present 'the claims forming the basis of a suit ... in a complaint to the EEOC or the equivalent state agency.'"). In Plaintiffs New York State Division of Human Rights ("NYSDHR") complaint, which was cross-filed with the EEOC, there are no statements that can be read to be reasonably related to allegations of discrimination based on age, race or color. (Report, at 17.) Having found that Plaintiff failed to exhaust his administrative ...


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