Opinion
00 Civ. 8119 (WK) (RLE)
September 3, 2002
Pro se Plaintiff: Johnny Johnson Memphis, TN.
Defense Counsel: Kathryn Spann, Assistant Attorney Office of the Attorney General, New York, New York.
REPORT AND RECOMMENDATION
I. INTRODUCTION
October 23, 2000, pro se plaintiff Johnny Johnson ("Johnson") filed a complaint against Baruch College ("Baruch"), alleging employment discrimination in violation of 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, 29 U.S.C. § 621 et seq. ("ADEA"). Johnson claims that he was not interviewed or hired for an assistant professor position in Baruch College's School of Public Affairs because of his race and age.
Defendant points out that the appropriate defendant is the City University of New York. Defendant's Memorandum of Law in Support of its Motion to Dismiss ("Def. Mem.") at 1. However, naming "Baruch College" is not fatal to plaintiffs claim. Bician v. Hunter College of City Univ. of New York, 457 N.Y.S.2d 387, 388, 116 Misc.2d 978, 979 (Ct.Cl. 1982) (caption naming "'Hunter College of CUNY' instead of 'CUNY' is a minor, nonjurisdictional irregularity importing no prejudice to CUNY — see CPLR 2001."
Johnson's complaint was officially docketed on October 23, 2000. It was, however, filed with the Pro Se Office on June 6, 2000. Because it was stamped "received" bearing the earlier date, the Court considers it timely filed. Johnson v. Nat'l Football League, 1999 WL 892938, at *2 (S.D.N.Y. Oct. 18, 1999) (citing Tolliver v. Sullivan County, 841 F.2d 41, 42 (2d Cir. 1988)).
On December 21, 2001, Baruch filed a motion to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for lack of jurisdiction and failure to state a cause of action. Baruch argues that it is immune from suit under the ADEA, and that Johnson has otherwise failed to state a cause of action. For the reasons which follow, I respectfully recommend that Baruch's motion to dismiss be GRANTED as to Johnson's ADEA claim, and DENIED as to his Title VII claim.
II. BACKGROUND
Johnson is an African American male born in 1938. Plaintiffs Amended Complaint ("Am. Cmplt.") at ¶ 7. According to Johnson, he applied for a position as an assistant professor in Baruch College's School of Public Affairs in September 1998. Am. Cmplt. at ¶ 8; Plaintiffs Memorandum of Law in Opposition to Defendant's Motion to Dismiss ("P1. Mem.") at Exh. A, Position Announcement. Johnson's application included information about his education, qualifications and past experience. P1. Mem. at Exhs. C-F. Johnson did not receive an interview. Am. Cmplt. at ¶ 8.
According to Johnson, he filed a charge with the New York State Division of Human Rights in September 1998 and with the Equal Employment Opportunity Commission ("EEOC") in December 1998, alleging discrimination based on his race and age. Id. at ¶¶ 9, 10. After the EEOC issued a Right to Sue letter on March 28, 2000, Johnson filed the instant action on October 23, 2000, alleging that Baruch discriminated against him when it denied him an interview. Defendant's Declaration in Support of its Motion to Dismiss ("Def. Decl.") at Exh. A. On the same day, the Honorable Michael B. Mukasey ordered plaintiff to amend his complaint because his original complaint merely alleged discrimination and "fail[ed] to identify discriminatory conduct or circumstances giving rise to an inference of discrimination."
The charge included in the record names Fordham University. Am. Cmplt. at Exh. "EEOC Charge"; Defendant's Declaration in Support of Its Motion to Dismiss at Exh. A. The Court assumes that the wrong charge was inadvertently submitted but that an appropriate charge was filed against Baruch.
On December 29, 2000, Johnson filed an amended complaint with the Court, alleging race and age discrimination under Title VII and the ADEA. Am. Cmplt. at ¶¶ 7, 8. On February 21, 2001, this case was reassigned to the Honorable Whitman Knapp, and on April 13, 2001, the case was referred to the undersigned. On May 23, 2001, this Court ordered Johnson to show cause why his claims should not be dismissed for failure to serve under Rule 4(m) of the Federal Rules of Civil Procedure by June 8, 2001. This Court issued a Report and Recommendation on August 30, 2001, recommending that the case be dismissed. Johnson objected, asserting that he had served Baruch on August 14, 2001. Plaintiffs Objections to Magistrate Judge Ronald L. Ellis's Report and Recommendation dated September 12, 2001. On November 8, 2001, Judge Knapp issued an Order declining to adopt the Report and Recommendation because of evidence that Baruch had been served with the complaint.
On December 21, 2001, Baruch filed the instant motion. First, Baruch argues that it is a senior college of the City University of New York ("CUNY"), and therefore, an "arm of the state" for purposes of sovereign immunity. Because the ADEA does not abrogate sovereign immunity, Baruch concludes that the Court has no jurisdiction to hear Johnson's ADEA claim. Def. Mem. at 4-5. Second, Baruch argues that Johnson has not sufficiently stated a claim through factual allegations, even under the more liberal standard recently set forth by the Supreme Court in Swierkiewicz v. Sorema, 122 S.Ct. 992 (2002). Defendant's Reply Memorandum of Law in Support of its Motion to Dismiss ("Def. Rep.") at 4. Baruch argues that in failing to provide factual support for his claim, such as showing that he actually applied for the position, 14. at 2, Johnson has failed to provide fair notice of the grounds upon which his Title VII claim rests, and his claim is insufficient under the Swierkiewicz standard. Def. Rep. at 4-5. See Swierkiewicz, 122 S.Ct at 999.
III. DISCUSSION
A. Sovereign Immunity under the Eleventh Amendment
Under the Eleventh Amendment, a state may claim immunity from suits initiated in federal court by its own citizens. Hans v. Louisiana, 134 U.S. 1, 4 (1890). The principles underlying state sovereign immunity are not absolute, however, and in the spirit of federalism, are intended to balance the powers of the federal government under the Constitution with the separate powers of the states. See Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 105 (1984). Therefore, the Supreme Court has recognized three exceptions to the Eleventh Amendment where a citizen can file suit against a state in federal court.
First, a state may consent to be sued in federal court. Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 54 (1944). Second, Congress may authorize private suits against nonconsenting states through its enforcement powers under § 5 of the Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976). Although pursuant to this exception the Supreme Court has held that states may not assert sovereign immunity in a Title VII suit, Id., it has also determined that Congress did not have the power under § 5 to abrogate states' sovereign immunity under the ADEA. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 91 (2000) (citing Pennhurst, 465 U.S. at 99). Therefore, a state can assert immunity defenses in a private suit brought under the ADEA. Id.
Third, sovereign immunity does not attach itself to a lesser governmental entity unless it is an "arm of the state." Alden v. Maine, 527 U.S. 706, 756 (1999); Pikulin v. City Univ. of New York, 176 F.3d 598, 600 (2d Cir. 1999) (quoting Rosa v. Connelly, 889 F.2d 435, 437 (2d Cir, 1998)). A court's determination of whether a lesser entity defendant is an "arm of the state" for sovereign immunity purposes consists of a two-pronged analysis: (1) the extent to which the state would be satisfying the judgment against the defendant, Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 38 (2d Cir. 1977) (citing Edelman v. Jordan, 415 U.S. 651, 663 (1974)); and (2) the degree of supervision the state exercises over the defendant. Pikulin, 176 F.3d at 600.
Courts in this district which have considered the issue have held that CUNY "senior colleges" function as an "arm of the state" for purposes of sovereign immunity. Among the factors considered by the courts in making this assessment are: (1) the state's payment of judgments against CUNY senior colleges; (2) the state court's jurisdiction over claims brought against CUNY senior colleges; (3) the state's reimbursement of operating expenses; (4) the presentment of senior college's budget to the governor; (5) the governor's appointment of the majority of CUNY' s governing board; (6) the state's ownership of the "real property" of the senior colleges; and (7) CUNY's ability to use the state's eminent domain powers. Salerno v. City Univ. of New York, 2000 WL 1277324, at *3 (S.D.N.Y. Sept. 8, 2000); see, e.g, Becker v. City Univ. of New York, 94 F. Supp.2d 487, 491 (S.D.N.Y. 2000).
In claiming sovereign immunity as a defense, Baruch states that it is a "senior college," and is therefore entitled to sovereign immunity. Def. Mem. at 4; Pedrogo Declaration at Exh. A; see Weinbaum v. Cuomo, 219 A.D.2d 554, 555, n. 1 (N.Y.App.Div. 1995). appeal dismissed, 87 N.Y.2d 917, 641 N.Y.S.2d 595; Salerno, 2000 WL 1277324, at *3; Becker, 94 F. Supp.2d at 489; Bunch v. City Univ. of New York, 2000 WL 1457078, at *2 (Sept. 28, 2000). This Court agrees. As a senior college of the CUNY system, Baruch is protected by sovereign immunity, and this Court recommends that the ADEA claims against it be DISMISSED.
B. Standard of Review for Dismissal
In deciding a motion to dismiss, the Court must accept as true all factual allegations alleged in the complaint, Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993), and draw all reasonable inferences in favor of the plaintiff. Albright v. Oliver, 510 U.S. 266, 268 (1994); Weinstein v. Albright, 261 F.3d 127, 131 (2d Cir. 2001). At this stage, the court's responsibility is not to test the weight of the evidence, but rather to look at the "feasibility of the complaint." Cooper v. Parksy, 140 F.3d 433, 440 (2d Cir. 1998) (quoting Ryder Distribution Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984)). Furthermore, a 12 (b)(6) motion may only be granted when'" . . . it appears beyond doubt, even when the complaint is liberally construed, that the plaintiff can prove no set of facts which would entitle him to relief."' Securities Investor Protection Corp. v. BDO Seidman., LLP, 222 F.3d 63, 68 (2d Cir. 2000) (quoting Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997)).
Prior to Swierkiewicz, a plaintiff in this Circuit alleging employment discrimination under Title VII and the ADEA, was required to plead evidence of a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 782, 802 (1973); Tarshis v. Reise Org., 211 F.3d 30, 35-36 (2d Cir. 2000), abrogated by Swierkiewicz, 122 S.Ct. 992. Although the burden was minimal, a motion to dismiss was granted if the plaintiff made only "bald assertions," id., and "bare allegations" without factual support. Gregory v. Daly, 243 F.3d 687, 692 (2d Cir. 2001). In Swierkiewicz, the Supreme Court held that the requirement to plead a prima facie case was inappropriate, and that a plaintiff need only provide information which "'give[s] the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests." 122 S.Ct. at 998 (quoting Conley v. Gibson, 335 U.S. 41, 47 (1957)); see also Aguilar v. New York Convention Ctr. Operating Co., 2002 WL 844397, at *2 (S.D.N.Y. May 2, 2002). The complaint should contain a "short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. Civ. P. 8(a). The Court further stated that the McDonnell Douglas standard was "an evidentiary standard, not a pleading requirement," applicable at the summary judgment stage. Swierkiewicz, 122 S.Ct. at 994.
While complaints satisfying the Swierkiewicz standard have included "details [of] discriminatory conduct[,] . . . relevant dates, and.., the nationalities of at least some of the relevant persons involved . . . [,]" During v. City Univ. of New York, 2002 WL 1159675, at *3 (S.D.N.Y. May 31, 2002), "nothing in the Court's opinion remotely suggested that [this detail] was required." Aguilar, 2002 WL 844397, at *2 (S.D.N.Y. May 2, 2002); see also Madera v. Metropolitan Life, 2002 WL 1453827, at *7 (S.D.N.Y. July 3, 2002).
Furthermore, where a plaintiff is pro se and is alleging civil rights violations, the court should proceed with caution and review claims liberally. Weinstein, 261 F.2d at 132; see also Shah v. New York State Dep't of Civil Serv., 168 F.3d 610, 614 (2d Cir. 1999). The court should apply "less stringent standards than formal pleadings drafted by lawyers," Haines v. Kerner, 404 U.S. 519, 520 (1972), and look beyond the "four corners of the complaint" to all the pleadings before the court, including the plaintiffs opposition papers. Pagan v. New York State Div. of Parole, 2002 WL 398682, at *3 (S.D.N.Y. Mar. 13, 2002); Amaker v. Haponik, 2000 WL 343772, at *1 (S.D.N.Y. Mar. 31, 2000); see also Burgess v. Goord, 1999 WL 33458, at *1 n. 1 (S.D.N.Y. Jan. 26, 1999).
C. Title VII
Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer.. . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2 (a)(1) (West 1994). Within this provision, it is unlawful to "fail or refuse to hire" an individual based on the above categories. 14.
A review of the pleadings under the Swierkiewicz standard indicates that Johnson has provided a short and plain statement which provides notice to the defendant that he is asserting a claim of employment discrimination based on his race in violation of Title VII. See Swierkiewicz, 122 S.Ct. at 998. As an African American, Johnson is a member of a protected class. He claims that he "applied for an open position at Baruch College[,]" and that he was not extended an interview "due to [his] race. . . ." Am Cmplt. at ¶ 8. Therefore, this Court finds that Johnson has sufficiently stated a cause of action under Title VII to survive Baruch's motion to dismiss.
Although Baruch points out factual inconsistencies in Johnson's pleadings, at this stage, the Court is required to accept all facts provided by plaintiff as true. Leatherman, 507 U.S. at 164. Additionally, it is not clear at this stage that plaintiff cannot prove a set of facts that would entitle him to relief. Securities Investor Protection Corp., 222 F.3d at 68. Baruch may respond to Johnson's factual inconsistencies with discovery, a 12(e) motion for a more definite statement or, should the claim lack merit, a Rule 56 motion for summary judgment. Swierkiewicz, 122 S.Ct. at 998-999.
IV. CONCLUSION
For the reasons previously stated, the undersigned recommends that Baruch's motion to dismiss the amended complaint be GRANTED as to Johnson's ADEA claim, and DENIED as to his Title VII claim.
Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable Whitman Knapp, 40 Foley Square, Room 1201, and to the chambers of the undersigned, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Am, 474 U.S. 140, 150 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989) (per curiam); 28 U.S.C. § 636 (b)(1) (West Supp. 1995); Fed.R.Civ.P. 72, 6(a), 6(e).