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holding that "VESID's sovereign immunity under the Eleventh Amendment has not been abrogated for purposes of the ADA. . . . Nor has New York State waived it."
Summary of this case from Sherman v. HarrisOpinion
No. 06-5693-cv.
December 18, 2007.
Appeal from a judgment of the United States District Court for the Eastern District of New York (Block, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED.
Cornel Nicolae, pro se, Flushing, NY, for Plaintiff-Appellant.
Diana R.H. Winters, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, and Michael S. Belohlavek, Senior Counsel, on the brief) for Andrew M. Cuomo, Attorney General of the State of New York, New York, NY, for Defendant-Appellee.
PRESENT: Hon. DENNIS JACOBS, Chief Judge, Hon. GUIDO CALABRESI, Hon. REENA RAGGI, Circuit Judges.
SUMMARY ORDER
Cornel Nicolae ("Nicolae") appeals from a November 13, 2006 judgment entered by the United States District Court for the Eastern District of New York (Block, J.) granting the defendant's motion for summary judgment and dismissing the complaint. We assume the parties' familiarity with the underlying facts, the procedural history, and the issues on appeal.
ADA and ADEA Claims. The district court properly dismissed Nicolae's ADA and ADEA claims against New York State's Office of Vocational and Educational Services for Individuals with Disabilities ("VESID") for lack of subject matter jurisdiction. VESID's sovereign immunity under the Eleventh Amendment has not been abrogated for purposes of the ADA, see Univ. of Ala. v. Garrett, 531 U.S. 356, 374, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001), or the ADEA, see Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). Nor has New York state waived it.
Title VII Claim. We review a distinct court's grant of summary judgment de novo, construing the evidence in the light most favorable to the non-moving party. See Miller v. Wolpoff Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). The district court properly granted summary judgment to VESID because there are no genuine issues of material fact. Our review of the record convinces us that the district court was correct in its assessment that "VESID has amassed an overwhelming record demonstrating that Nicolae failed to find employment because he was difficult, uncooperative, and because, ultimately, he quit the job search process altogether — not because of his age, religion, or national origin." Nicolae v. Office of Vocational Educ. Servs. for Individuals and Disabilities, No. 04-CV3512, 2006 WL 3254484 at *3 (E.D.N.Y. Nov. 9, 2006). Nicolae failed to submit probative evidence to counter that record. "[C]onclusory statements or mere allegations [are] not sufficient to defeat a summary judgment motion." Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002); see also Fed.R.Civ.P. 56(e).
We have considered Nicolae's remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.