United States District Court, S.D. New York
MEMORANDUM DECISION AND ORDER
B. DANIELS, United States District Judge.
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 ("CUNY Defs.' Mot."), ECF
No. 26, at 1; Def. Morena Mot. to Dismiss ("Morena Def.
Mot."), ECF No. 39, at 1.)
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
The Report contains no clear error of law and this Court
adopts the Report in full.
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).
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.").
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
SOVEREIGN IMMUNITY UNDER THE ELEVENTH AMENDMENT
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. (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. (Report, at 14-15.) The
Individual Defendants,  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).
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
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.)
PLAINTIFF'S DISCRIMINATION CLAIMS BASED ON AGE, RACE AND
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 ...