# Bergnes v. New York State Unified Court System/Office of Court Administration

> District Court, S.D. New York · June 28, 2023

URL: https://www.frixlaw.com/law-library/cases/10352174

## Case

- **Court:** District Court, S.D. New York
- **Decided:** June 28, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10352174

## How later opinions describe it (automated extraction)

- concluding that district court properly considered whether defendants had sovereign immunity, thus depriving the court of subject matter jurisdiction
- affirming district court’s dismissal on Eleventh Amendment grounds and holding that “[s]ince [plaintiff] never asked the district court for leave to amend her Second Amended Complaint in order to add a state official as a defendant (and never identified the person she would sue
- affirming district court’s holding that NYSHRL claims against New York State was barred by sovereign immunity

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

NEW YORK COMMUNITIES FOR CHANGE
and LINDA BERGNES, et al.,
Plaintiffs,
v. No. 22-CV-4298 (RA)

OPINION & ORDER

NEW YORK STATE UNIFIED COURT
SYSTEM/OFFICE OF COURT
ADMINISTRATION,
Defendant.

RONNIE ABRAMS, United States District Judge:
Plaintiffs—the non-profit organization New York Communities for Change (“NYCC”) and
twenty-nine court interpreters employed in the New York State court system (the “Interpreter
Plaintiffs”) (collectively, “Plaintiffs”)—bring this action against the New York State Unified Court
System/Office of Court Administration (“Defendant”), a New York State agency, alleging
discriminatory pay practices on the basis of national origin in violation of the Equal Protection
Clause of the Fourteenth Amendment and the New York State Human Rights Law. Defendant has
moved to dismiss the First Amended Complaint (the “Complaint”) pursuant to Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6).
Under well-established principles of state sovereign immunity, a federal court may not hear
a suit brought by any person against a state absent a valid congressional abrogation of immunity
or the state’s consent. See, e.g., Allen v. Cooper, 140 S. Ct. 994, 1000–01 (2020). Because those
conditions are not present here, Plaintiffs’ claims are barred by New York’s sovereign immunity
under the Eleventh Amendment, and the Complaint must be dismissed in its entirety.
FACTUAL BACKGROUND
Plaintiff NYCC is a non-profit social justice organization engaged in housing, climate
justice, civil rights, and employment organizing. Compl. ¶ 3. The Interpreter Plaintiffs are each
employed as court interpreters for the New York State Unified Court System to assist court users

who speak Spanish, Mandarin, Cantonese, or Polish, or who are deaf, id. ¶¶ 4–32. Twenty-two of
the Interpreter Plaintiffs are “of Hispanic national origin,” two are “of Chinese national origin,”
one is “of Haitian and Dominican national origin,” and one is “of Polish national origin;” the
national origins of the remaining three Plaintiffs are not identified in the Complaint. Id. Defendant
New York State Unified Court System is an administrative arm of the Office of Court
Administration, id. ¶ 33, and employs “approximately 246 full- and part-time court interpreters in
20 foreign languages and American Sign Language,” id. ¶ 41.
Plaintiffs allege that New York State court interpreters, who are predominantly non-native
English speakers, are significantly underpaid in comparison with other courtroom personnel in the
New York court system—in particular, court reporters—and that those pay disparities constitute

unlawful discrimination on the basis of national origin. According to the Complaint, court
interpreters are “highly skilled professionals,” who, among other things:
must master both working languages’ cultural context and be able to prepare for
specialized topics rapidly and routinely, . . . [and] interact with people with high
levels of education and corresponding high levels of formal speech (e.g., judges,
attorneys, and expert witnesses) as well as people with little to no formal education
and corresponding highly informal ways of speaking.

Id. ¶¶ 94, 64. Plaintiffs allege that “[c]ourt interpreting is a more demanding profession than court
reporting due to the difference between the phonetic-bound translation performed by court
reporters as compared with the culture-bound translation performed by court interpreters as well
as the necessity of working in two languages rather than one.” Id. ¶ 47. Moreover, Plaintiffs point
to the lower passing rate among “Spanish court interpreters” compared with court reporter
candidates on the United Court System’s civil service exam as indicating that “court interpreting
is a more challenging profession than court reporting.” Id. ¶ 59. The Complaint alleges that
“industry surveys show that at least 76% of interpreters surveyed are […] college graduates, post-

graduates or doctoral graduates.” Id. ¶ 47.
Nonetheless, Plaintiffs allege, New York State court interpreters are paid significantly less
than court reporters. “Despite similarities in the nature of the job and skills required” between
court reporters and court interpreters, “a non-supervisory court interpreter in the [New York State
court system] earns 26% less than a non-supervisory court reporter at the entry level and 35% less
at the top of the salary range.” Id. ¶ 46. By comparison, court interpreters in the federal courts are
better paid than court reporters, and in the federal courts “maximum salaries for interpreters is 49%
higher than top salaries for reporters.” Id. In the New York court system, by contrast, court
interpreters “make 35% less than Court Reporters in maximum compensation.” Id. ¶ 47.
Plaintiffs allege that the pay discrepancies are “based on a discriminatory attitude towards

court interpreters—because they provide a service which is not in English, and because those they
serve are non-English speakers or people with disabilities.” Id. ¶ 93. According to the Complaint,
court interpreters are subjected to demeaning treatment during their employment: Plaintiffs allege,
for example, that “in May 2021, a judge referred to the court interpreters as ‘chattel,’” and that
while court reporters and court clerks have desks inside courtrooms and in an office, interpreters
are not provided desk space. Id. In addition, “many staff interpreters are not provided with court
telephone lines and must use their own cellphones for court business and operations without
receiving reimbursement for their expenses.” Id. The Complaint also cites a “2020 report on racial
bias in the New York State Unified Court System” which described a sign on a desk outside a
courtroom that read “Interpreter Sits Here” and was “accompanied by an illustration of a Mexican
person sleeping … under a sombrero.” Id. ¶ 95. Another court sign allegedly read “No Interpreters
Allowed,” and a court notice board included a “caricature of an interpreter as part of ‘Misfit
Island,’ meant as an offensive reference to the Island of Misfit Toys.” Id.

Plaintiffs allege that the burdens of such workplace discrimination and discrepancies in
pay do not fall on the interpreters alone. Rather, they allege that, as a result of such treatment,
“non-English speaking court users are denied full and equal access to the court system.” Id. ¶ 1.
According to the Complaint, one-sixth of New York City households contain no English-proficient
adults over the age of 14, indicating that “a huge group of people … depend[] on the court system’s
ability to hire and maintain a large staff of qualified court interpreters.” Id. ¶ 84. Nonetheless, “the
number of staff interpreters employed by [Defendant] has dropped steadily, from 335 in 2009 …
to 246 in 2014.” Id. ¶ 85. The personnel decline has allegedly dramatically increased wait times,
such that “attorneys and their clients sometime have to wait hours, or longer, for an interpreter to
arrive,” and “postponements of cases … because of a lack of interpretation services are not

uncommon.” Id. ¶ 85.
PROCEDURAL BACKGROUND
Interpreter Plaintiffs brought this action on May 25, 2022, alleging violations of Title VI
of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq.; the New York State Human Rights
Law, N.Y. Exec. Law §§ 296(1) and (2) (“NYSHRL”); and New York City Human Rights Law,
N.Y.C. Admin. Code §§ 8-107(1)(a) and (4)(a)(1)(a). Dkt. 1, Compl. ¶¶ 92–94. On August 24,
2022, Defendant moved to dismiss. On October 5, 2022, Plaintiffs filed the First Amended
Complaint, adding NYCC as a Plaintiff, removing their claims under Title VI and the New York
City Human Rights Law, and adding two causes of action alleging violations of the Equal
Protection Clause of the Fourteenth Amendment. Dkt. 19, Compl. ¶¶ 98, 100.1 In the instant
Complaint, Plaintiffs seek backpay for wages and benefits, emotional distress damages, and an
order “[a]djusting the salaries of the Interpreter Plaintiffs and members of their class to a pay level
commensurate with the knowledge, skills, and abilities which they bring to the job.” Id. at 42.

Defendant moved to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6), arguing that NYCC lacks standing and that the Interpreter Plaintiffs fail to state a claim
under the Equal Protection Clause and the NYSHRL. Defendant did not initially argue, however,
that Plaintiffs’ claims are barred by sovereign immunity under the Eleventh Amendment.2 On May
18, 2023, after Defendant’s motion was fully briefed, the Court issued an order directing the parties
to file supplemental letter briefs addressing whether Plaintiffs’ claims are barred by Eleventh
Amendment immunity. In its letter filed on May 26, 2023, Defendant argued for the first time that
Plaintiffs’ claims are in fact barred pursuant to the Eleventh Amendment. Dkt. 33. In their letter

1 In particular, the Complaint asserts that Plaintiffs bring this action pursuant to the NYSHRL and
42 U.S.C. § 1983. See Compl. ¶ 2 (stating that “[t]his Court’s jurisdiction is invoked pursuant to 28 USC §
1331 and 42 USC § 1983”). In their opposition to the motion to dismiss, however, Plaintiffs assert that
“NYCC’s claim … is not pled as a Section 1983 claim,” Opp. at 37, and that the “legal basis for seeking
court relief is the Equal Protection clause of the Fourteenth Amendment, and the New York State Human
Rights Law,” id. at 1, citing cases brought under the Equal Protection Clause or 42 U.S.C. § 1981. At oral
argument, Plaintiffs’ counsel asserted that this case is brought directly under the Fourteenth Amendment,
but also noted that it “could be” brought under Section 1983 as well.

2 On December 30, 2022—a day after their response was due—Plaintiffs filed a 44-page brief in
opposition to the motion to dismiss without seeking permission to exceed the 25-page limit pursuant to
Rule 4 of this Court’s Individual Rules & Practices in Civil Cases. In its reply brief, Defendant argues that
the Court should therefore deem the motion to dismiss unopposed, or in the alternative, consider only the
portions of Plaintiffs’ brief within the page limit. Def. Reply at 7. Given that the Court’s decision on the
motion to dismiss does not rely on the arguments made in the additional pages of Plaintiffs’ brief, that
request is denied. See Nat'l Grid Corp. v. Brand Energy Servs., No. 13 Civ. (DRH) (ARL), 2017 WL
1194499, at *10 n.7 (E.D.N.Y. Mar. 30, 2017) (denying defendants’ request to strike excess pages from
plaintiff's memorandum where Court decided motion on grounds not raised in excess pages); see also Catz
v. Precision Glob. Consulting, No. 19-CV-7499 (ER), 2021 WL 1600097, at *5 (S.D.N.Y. Apr. 23, 2021)
(denying defendants’ motion to strike plaintiff’s overlong brief where defendants were not prejudiced). To
the extent Plaintiffs seek to amend their Complaint, however, they are reminded that they must comply with
this Court’s rules going forward.
filed on the same day, Plaintiffs urged that the Eleventh Amendment “should not bar this lawsuit,”
and asserted that if state sovereign immunity “has any application, it would be as a bar to back pay
and [] emotional distress damages.” Dkt. 34.
STANDARD OF REVIEW

“Determining the existence of subject matter jurisdiction is a threshold inquiry[,] and a
claim is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the
district court lacks the statutory or constitutional power to adjudicate it.” Morrison v. Nat’l Austl.
Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008). The principle of state sovereign immunity limits a
federal court’s jurisdiction over suits against states. See Alden v. Maine, 527 U.S. 706, 730 (1999).
As such, the Second Circuit has held that “[w]hether a federal court has subject matter jurisdiction
[pursuant to the Eleventh Amendment] is a question that may be raised at any time by the court
sua sponte.” McGinty v. New York, 251 F.3d 84, 90 (2d Cir. 2001) (concluding that district court
properly considered whether defendants had sovereign immunity, thus depriving the court of
subject matter jurisdiction); see Atl. Healthcare Benefits Tr. V. Googins, 2 F.3d 1, 4 (2d Cir. 1993)

(“Although the parties do not address the Eleventh Amendment in their briefs, we raise it sua
sponte because it affects our subject matter jurisdiction.”). Absent a state’s waiver of its sovereign
immunity or congressional abrogation, a district court “lack[s] subject matter jurisdiction” to
consider claims against states. Close v. New York, 125 F.3d 31, 38–39 (2d Cir. 1997).
DISCUSSION
I. Plaintiffs’ Claims Are Precluded by the Eleventh Amendment
Suits against state governments in federal court are generally prohibited by the Eleventh
Amendment. See Richardson v. New York State Dep’t of Corr. Serv., 180 F.3d 426, 447–48 (2d
Cir. 1999). That prohibition applies regardless of whether a plaintiff seeks injunctive or monetary
relief, see Tornheim v. New York State Senate, 115 F. App’x 482, 483 (2d Cir. 2004) (citing
Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam)), and it extends to suits against arms and
agents of the state “such as state agencies,” Walker v. City of Waterbury, 253 F. App’x 58, 60 (2d
Cir. 2007). Eleventh Amendment immunity is not absolute, however, and a state government or

agency “may be divested of immunity and haled into federal court in one of two ways: (1) Congress
may abrogate the sovereign immunity through a statutory enactment […] or (2) a state may waive
its immunity and agree to be sued in federal court.” Richardson, 180 F.3d at 448 (2d Cir. 1999)
(internal citations omitted).
Here, Congress has not abrogated Eleventh Amendment immunity with respect to any of
Plaintiffs’ possible causes of action, nor has New York State waived its immunity with respect to
the same. The Supreme Court has made clear that Congress did not intend to override states’
sovereign immunity on Section 1983 claims, see Quern v. Jordan, 440 U.S. 332, 340–42
(1979); Dube v. State Univ. of New York, 900 F.2d 587, 594 (2d Cir. 1990), and “it is well-
established that New York has not consented to § 1983 suits in federal court,” Mamot v. Bd. Of

Regents, 367 F. App’x 191, 192 (2d Cir. 2010) (citing Trotman v. Palisades Interstate Park
Comm’n, 557 F.2d 35, 38–40 (2d Cir.1977)) (affirming dismissal of Section 1983 claims against
New York State agencies on Eleventh Amendment grounds). Congress also did not abrogate
states’ sovereign immunity for 42 U.S.C. § 1981 suits, nor has New York waived immunity for
those claims. See Dimps v. Taconic Correctional Facility, 802 F. App’x 601, 603 (2d Cir. 2020).3
Insofar as Plaintiffs seek to bring claims directly under the Equal Protection Clause, the Second
Circuit has “squarely held that Section 1 [of the Fourteenth Amendment] claims for damages are

3 Any Section 1981 claim fails for the additional reason that Section 1983 “constitutes the exclusive
federal remedy for violation of the rights guaranteed in § 1981 by state governmental units.” Duplan v. City
of New York, 888 F.3d 612, 619 (2d Cir. 2018).
barred by the Eleventh Amendment,” and that a plaintiff bringing a claim for injunctive relief
pursuant to Section 1 “must name as defendant a state official rather than the state or a state agency
directly.” Santiago v. N.Y. Dep’t of Corr. Servs., 945 F.2d 25, 32 (2d Cir.1991). Finally, “New
York State has not consented to be sued in federal court under the [New York State Human Rights

Law].” Baez v. New York, 629 F. App’x 116, 118 (2d Cir. 2015) (affirming district court’s holding
that NYSHRL claims against New York State was barred by sovereign immunity); see Purdie v.
City Univ. of N.Y., No. 13–CV–6423, 2015 WL 129552, at *4 (S.D.N.Y. Jan. 8, 2015) (same).
None of Plaintiffs’ causes of action, therefore, can proceed against any “state agents and
state instrumentalities” where New York “is the real, substantial party in interest.” Henny v. New
York State, 842 F. Supp. 2d 530, 544 (S.D.N.Y. 2012). The Complaint names just one Defendant,
the New York State Unified Court System, which is “unquestionably an ‘arm of the State’” of New
York. Gollomp v. Spitzer, 568 F.3d 355, 368 (2d Cir.2009) (quoting Woods v. Rondout Valley
Cent. Sch. Dist. Bd. Of Educ., 466 F.3d 232, 236 (2d Cir.2006)); Canales–Jacobs, 640 F.Supp.2d
at 488 (“The Unified Court System of the State of New York is the Judicial Branch of New York

State Government … The Office of Court Administration is the administrative office for the
Unified Court System.”) (citing N.Y. Judiciary Law § 212(1)(b)). As such, federal courts have
repeatedly barred claims against the Unified Court System and the Office of Court Administration.
See, e.g., Kelly v. New York State Unified Ct. Sys., 2022 WL 1210665, at *2 (2d Cir. Apr. 25,
2022); Segal v. New York State Unified Ct. Sys., No. 21-CV-2545 (LTS), 2021 WL 1841768, at
*3 (S.D.N.Y. May 7, 2021); Zahl v. Kosovsky, No. 08-CV-8308 (LTS), 2011 WL 779784, at *1
(S.D.N.Y. Mar. 3, 2011), aff’d, 471 F. App’x 34 (2d Cir. 2012).
Notwithstanding these well-established principles of state sovereign immunity, Plaintiffs
argue in their May 26th supplemental letter that this suit is not barred by the Eleventh Amendment.
They premise that assertion largely on Fitzpatrick v. Bitzer, 427 U.S. 445, 452–56 (1976), where
the Supreme Court explained that Congress may pass legislation pursuant to its enforcement power
under Section 5 of the Fourteenth Amendment that would permit suits against states for retroactive
damages. Indeed, Congress has validly abrogated state sovereign immunity pursuant to Section 5

with respect to other statues, including the statute at issue in Fitzpatrick—namely, Title VII of the
Civil Rights Act of 1964. Id. But Fitzpatrick does nothing to support Plaintiffs’ assertion that
Eleventh Amendment immunity is absent here, as Congress has not abrogated state sovereign
immunity for any of the possible causes of action at issue. See infra at 7–8.
Finally, in an attempt to maintain their claims for injunctive relief, Plaintiffs rely in their
supplemental letter on Ex parte Young, 209 U.S. 123 (1908), which provides a well-known
exception to state sovereign immunity such that “a plaintiff may sue a state official acting in his
official capacity—notwithstanding the Eleventh Amendment—for prospective, injunctive relief
from violations of federal law.” In re Deposit Ins. Agency, 482 F.3d 612, 617 (2d Cir.2007). But
such claims must name a state official who has “some connection with the enforcement of the act”

as a defendant, not the state or state agency alone, as is the case here. Loren v. Levy, No. 00-CV-
7687 (DC), 2003 WL 1702004, at *11 (S.D.N.Y. Mar. 31, 2003), aff'd, 120 F. App'x 393 (2d Cir.
2005) (quoting Ex parte Young, 209 U.S. at 157). Because Plaintiffs have “sued the [Unified Court
System] in lieu of individual officers,” the doctrine of Ex parte Young “allowing prospective
injunctive relief … does not apply.” Kelly, 2022 WL 1210665, at *2; see Santiago, 945 F.2d at 32
(affirming dismissal of claim for equitable relief where plaintiff had “not used this Ex parte Young
‘fiction’” in bringing his suit).
In sum, Plaintiffs’ assertion that their claims are not barred by the Eleventh Amendment is
meritless. Because the Court lacks jurisdiction to entertain Plaintiffs’ claims both for monetary
and injunctive relief, the Complaint must be dismissed.4
II. Leave to Amend

Rule 15(a)(2) provides that courts “should freely give leave [to amend] when justice so
requires.” Fed. R. Civ. P. 15(a)(2). While this is a “permissive standard,” see Loreley Fin. (Jersey)
No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 190 (2d Cir. 2015), it is ultimately “within the
sound discretion of the court whether to grant leave to amend,” John Hancock Mut. Life Ins. Co.
v. Amerford Int’l Corp., 22 F.3d 458, 462 (2d Cir. 1994). Where “the proposed amendment would
be futile,” courts within this district will deny leave to amend. See Brown v. Kellogg Sales Co.,
No. 20-CV-7283 (ALC), 2022 WL 992627, at *6 (S.D.N.Y. Mar. 31, 2022); Agerbrink v. Model
Serv. LLC, 155 F. Supp. 3d 448, 452 (S.D.N.Y. 2016).
Plaintiffs have not formally sought leave to amend to add a state official as a defendant. It
would thus be well within the Court’s discretion to deny Plaintiff such leave. See Palmer v. New

York State Off. of Ct. Admin., 526 F. App’x 97, 99 (2d Cir. 2013) (affirming district court’s
dismissal on Eleventh Amendment grounds and holding that “[s]ince [plaintiff] never asked the
district court for leave to amend her Second Amended Complaint in order to add a state official as
a defendant (and never identified the person she would sue), the district court did not abuse its
discretion in denying leave to do so”). “Ordinarily,” however, “a plaintiff should be granted leave
to amend at least once after having the benefit of a court’s reasoning in dismissing the complaint.”

4 Defendant’s failure to raise the issue of Eleventh Amendment in its motion to dismiss does not
constitute a waiver, see Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 449 (2d Cir.
1999) (state agency “did not waive its Eleventh Amendment immunity by failing to raise the defense”
before moving for summary judgment), and the Court properly “raise[s] it sua sponte because it affects [its]
subject matter jurisdiction,” Atl. Healthcare Benefits Tr. 2 F.3d at 4.
Obra Pia Ltd. v. Seagrape Inv’rs LLC, 2021 WL 1978545, at *3 (S.D.N.Y. May 18, 2021). This
is especially true on the Court’s first ruling on a motion to dismiss. See Loreley, 797 F.3d at 190
(“Without the benefit of a ruling, many a plaintiff will not see the necessity of amendment or be
in a position to weigh the practicality and possible means of curing specific deficiencies.”).
Accordingly, the Court will grant Plaintiffs one final opportunity to amend the Complaint.
CONCLUSION
For the foregoing reasons, the Complaint is dismissed in its entirety. Plaintiffs shall have
one additional opportunity to amend the Complaint within thirty days, provided they have a good
faith basis to do so. The Clerk of Court is respectfully directed to terminate the motion pending
at Dkt. 22.
SO ORDERED.
Vy
Dated: June 28, 2023 // /
New York, New York J KO (
Ronnie Abrams
United States District Judge

1]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10352174. Public record. Not legal advice.