McGregor v. Goord, No. 97-CV-0816.

CourtUnited States District Courts. 2nd Circuit. United States District Court of Northern District of New York
Writing for the CourtMcavoy
PartiesDavid McGREGOR, Plaintiff, v. Glenn S. GOORD, Individually and in his official capacity as Commissioner of the Department of Correctional Services, Thomas E. Testo, Alfred F. Accornero and Captain Rock, Individually and in their official capacities, Defendants.
Docket NumberNo. 97-CV-0816.
Decision Date17 August 1998
18 F.Supp.2d 204
David McGREGOR, Plaintiff,
v.
Glenn S. GOORD, Individually and in his official capacity as Commissioner of the Department of Correctional Services, Thomas E. Testo, Alfred F. Accornero and Captain Rock, Individually and in their official capacities, Defendants.
No. 97-CV-0816.
United States District Court, N.D. New York.
August 17, 1998.

Page 205

Rowley, Forrest Law Firm, Albany, NY (Brian J. O'Donnell, of counsel), for Plaintiff.

Office of Attorney General, Department of Law, Albany, NY (Eric D. Handelman, Asst. Attorney General, of counsel), for Defendants.

MEMORANDUM, DECISION & ORDER

MCAVOY, Chief Judge.


Plaintiff David McGregor brings this action under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., alleging defendants violated his rights to leave thereunder. Defendants now move to dismiss the Complaint, pursuant to Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction. Defendants argue they are immune from suit under the Eleventh Amendment to the United States Constitution.

I. BACKGROUND

A. Facts

Defendants do not dispute plaintiff's allegations for the purposes of the motion. Plaintiff was employed by the New York State Department of Correctional Services ("DOCS") as a corrections officer until his termination on November 19, 1996. (Pl. Compl. ¶ 4). Defendants are DOCS employees. During the relevant period of his employment, plaintiff and his wife were expecting a child. (Id. ¶ 11). Plaintiff notified DOCS that he would need to take leave on a number of days to accompany his wife to prenatal medical appointments and Lamaze classes beginning in mid-October, 1996. (Id. ¶ 12). After taking such leave on November 12, 1996, plaintiff was notified that he was being charged "absent without leave" for missing work that day. (Id. ¶ 16). On November 15, 1996, defendant Alfred Accornero suspended plaintiff from his position, and plaintiff shortly thereafter was discharged. (Id. ¶¶ 21-23).

B. Procedural History

On June 9, 1997, plaintiff filed the present Complaint alleging that defendants "interfered with, restrained and denied the plaintiff's use or attempt to use rights provided under" the FMLA. (Pl.Compl. ¶ 24). Plaintiff further alleges that he was wrongfully discharged as a result of his use, or attempted use, of those rights. (Id. ¶ 25). Defendants appeared by way of Answer filed August 8, 1997.

On May 28, 1998, defendants filed the present motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(h)(3).

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II. DISCUSSION

A. Standard for Motion to Dismiss for Lack of Subject Matter Jurisdiction

Under Federal Rule of Civil Procedure 12(h)(3), the Court must grant defendants' Rule 12(b)(1) motion to dismiss if plaintiff fails to carry his burden to show that the Court may properly exercise subject matter jurisdiction. In Re Joint E. & So. Dist. Asbestos Litigation, 14 F.3d 726, 730 (2d Cir.1993). "`Without jurisdiction the court cannot proceed at all in any case. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.'" Steel Co. v. Citizens for a Better Environment, ___ U.S. ___, ___, 118 S.Ct. 1003, 1012, 140 L.Ed.2d 210 (1998) (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868)).

B. Defendants' Motion

1. The Eleventh Amendment

The Eleventh Amendment to the United States Constitution provides as follows:

[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI. This language not only prohibits suits against states brought by citizens of other states in federal court, but, implicitly, suits against a state in federal court brought by its own citizens. See Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Hans v. Louisiana, 134 U.S. 1, 10, 10 S.Ct. 504, 33 L.Ed. 842 (1890). The first question accordingly is whether the present suit is brought against the state.

Plaintiff names as defendants neither the State of New York nor DOCS. He does, however, bring official capacity claims against the individual defendants, all of whom are DOCS employees. In the case of such "official capacity" claims, the state is the real party in interest. See Farid v. Smith, 850 F.2d 917, 921 (2d Cir.1988); see also Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) ("a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself."). Moreover, DOCS, as a state agency, is entitled to assert Eleventh Amendment immunity. Santiago v. New York State Dep't of Correctional Services, 945 F.2d 25, 28 n. 1 (2d Cir.1991), cert. denied, 502 U.S. 1094, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992). Accordingly, to the extent plaintiff brings suit against defendants in their official capacities, this is a suit against the State within the meaning of the Eleventh Amendment.

Eleventh Amendment immunity, however, is not absolute. As the Second Circuit recently discussed in Close v. State of New York, 125 F.3d 31 (2d Cir.1997), there are two ways in which a state may be divested of its immunity under the Eleventh Amendment. First, "Congress may abrogate a state's sovereign immunity through a statutory enactment." Id. (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 452-56, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976)). Second, "a state may waive its immunity and agree to be sued in federal court." Id. (citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)). In this case, neither party has alleged that the State of New York has in any way waived its immunity from suits arising under the FMLA. As such, the Court only addresses plaintiff's argument that Congress abrogated Eleventh Amendment immunity under the FMLA.

2. Abrogation under the Eleventh Amendment

The United States Supreme Court, in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), considered the issue of Congress' power to abrogate the states' Eleventh Amendment immunity. In Seminole, the Court specifically held that Congress had no authority to abrogate immunity under the Eleventh Amendment when acting pursuant to the Indian or Interstate Commerce Clauses; rather, the power to abrogate exists only under section 5, the enforcement provision, of the Fourteenth Amendment. Id. at 65-66, 116 S.Ct. 1114. In so holding, the Seminole Court

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overruled Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989), which held that acts taken by Congress pursuant to the Interstate Commerce Clause could, if sufficiently clear, abrogate Eleventh Amendment immunity. Id. at 19-20, 109 S.Ct. 2273. Seminole also set out precisely what Congress must do to abrogate Eleventh Amendment immunity.

Two requirements must be met. Seminole, 517 U.S. at 54, 116 S.Ct. 1114; Close, 125 F.3d at 36. First, Congress must have intended to abrogate immunity by providing "`a clear legislative statement'" of its intent, "`making its intention unmistakably clear in the language of the statute.'" Seminole, 517 U.S. at 54, 116 S.Ct. 1114 (quoting Blatchford v. Native Village of Noatak and Circle Village, 501 U.S. 775, 786, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991) and Dellmuth v. Muth, 491 U.S. 223, 227-28, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989)). Second, Congress must have attempted to abrogate this immunity "`pursuant to a valid exercise of power.'" Id. (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985)). In other words, Congress must have enacted the statute at issue using its enforcement powers under section 5 of the Fourteenth Amendment. Seminole, 517 U.S. at 62-63, 116 S.Ct. 1114.

a. Legislative Intent

The FMLA expressly states that "[a]n action to recover the damages or equitable relief prescribed ... may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction ..." 29 U.S.C. § 2617(a)(2). The FMLA further incorporates the definition of "public agency" as it appears in the Fair Labor Standards Act ("FLSA") at 29 U.S.C. § 203(x). See 29 U.S.C. § 2611(4)(A)(iii). The FLSA defines "public agency" as including a State or any agency of a State. 29 U.S.C. § 203(x). The Second Circuit, addressing the FLSA, has held that this language functions as a clear statement of congressional intent to abrogate the states' immunity from suit under the Eleventh Amendment. See Close, 125 F.3d at 36. Accordingly, this Court, faced with the identical language, is compelled to reach the same conclusion. We thus turn to the second prong of the Seminole test: to wit, whether Congress acted pursuant to a valid exercise of power.

b. Congress' Power under Section 5 of the Fourteenth Amendment

To determine whether legislation is properly enacted pursuant to Congress' power under section 5 of the...

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14 practice notes
  • Garrett v. Univ. Alabama, Nos. 98-6069
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    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
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    ...the issue have reached the same result. Driesse v. Florida Bd. of Regents, 26 F. Supp. 2d 1328 (M.D. Fla. 1998); McGregor v. Goord, 18 F. Supp. 2d 204 (N.D.N.Y. 1998); Thomson v. Ohio State Univ. Hosp., 5 F. Supp. 2d 574 (S.D. Ohio 3. In Dellmuth, the Supreme Court concluded that three prov......
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    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
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    ...Eleventh Amendment immunity); Driesse v. Fla. Bd. of Regents, 26 F. Supp. 2d 1328, 1334 (M.D. Fla. 1998) (same); McGregor v. Goord, 18 F. Supp. 2d 204, 209 (N.D.N.Y. 1998) (same for FMLA provision regarding leave to care for an ailing family member); Thomson v. Ohio State Univ. Hosp., 5 F. ......
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    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
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    ...S.Ct. 2219, 2222, ___ L.Ed.2d ___ (1999); Driesse v. Florida Bd. of Regents, 26 F.Supp.2d 1328, 1331 (M.D.Fla.1998); McGregor v. Goord, 18 F.Supp.2d 204, 205 (N.D.N.Y.1998); Thomson, 5 F.Supp.2d at 576; Biddlecome v. University of Tex., No. 96-1872, 1997 WL 124220, at *2 (S.D.Tex. Mar.13, 1......
  • Kilcullen v. New York State Dept. of Transp., No. 96-CV-2023 (LEK/RWS).
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    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
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    ...Vehicles, 987 F.Supp. 451 (E.D.N.C.1997); Nihiser v. Ohio E.P.A., 979 F.Supp. 1168, 1170-76 (S.D.Ohio 1997); cf. McGregor v. Goord, 18 F.Supp.2d 204, 209 (N.D.N.Y.1998) (McAvoy, C.J.) (concluding that Family and Medical Leave Act, 29 U.S.C. §§ 2601, et seq., was not a proper exercise of Con......
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14 cases
  • Garrett v. Univ. Alabama, Nos. 98-6069
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 26, 1999
    ...the issue have reached the same result. Driesse v. Florida Bd. of Regents, 26 F. Supp. 2d 1328 (M.D. Fla. 1998); McGregor v. Goord, 18 F. Supp. 2d 204 (N.D.N.Y. 1998); Thomson v. Ohio State Univ. Hosp., 5 F. Supp. 2d 574 (S.D. Ohio 3. In Dellmuth, the Supreme Court concluded that three prov......
  • Hibbs v. Dept. of Human Resouces, PLAINTIFF-APPELLANT
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 11, 2001
    ...Eleventh Amendment immunity); Driesse v. Fla. Bd. of Regents, 26 F. Supp. 2d 1328, 1334 (M.D. Fla. 1998) (same); McGregor v. Goord, 18 F. Supp. 2d 204, 209 (N.D.N.Y. 1998) (same for FMLA provision regarding leave to care for an ailing family member); Thomson v. Ohio State Univ. Hosp., 5 F. ......
  • Kilvitis v. County of Luzerne, No. 3:CV-98-1824.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • June 25, 1999
    ...S.Ct. 2219, 2222, ___ L.Ed.2d ___ (1999); Driesse v. Florida Bd. of Regents, 26 F.Supp.2d 1328, 1331 (M.D.Fla.1998); McGregor v. Goord, 18 F.Supp.2d 204, 205 (N.D.N.Y.1998); Thomson, 5 F.Supp.2d at 576; Biddlecome v. University of Tex., No. 96-1872, 1997 WL 124220, at *2 (S.D.Tex. Mar.13, 1......
  • Kilcullen v. New York State Dept. of Transp., No. 96-CV-2023 (LEK/RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • January 19, 1999
    ...Vehicles, 987 F.Supp. 451 (E.D.N.C.1997); Nihiser v. Ohio E.P.A., 979 F.Supp. 1168, 1170-76 (S.D.Ohio 1997); cf. McGregor v. Goord, 18 F.Supp.2d 204, 209 (N.D.N.Y.1998) (McAvoy, C.J.) (concluding that Family and Medical Leave Act, 29 U.S.C. §§ 2601, et seq., was not a proper exercise of Con......
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