Szlosek v. NYS Office of the Attorney General

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

DONNA E. SZLOSEK,

Plaintiff,

OPINION& ORDER

– against –

24 Civ. 897 (ER)

NEW YORK STATEOFFICE OF THE

ATTORNEY GENERAL,

Defendant.

RAMOS, D.J.:

Donna Szlosek, who proceeds pro se, brought this action against her former

employer, the New York State Office of the Attorney General (“OAG”), alleging that she

was discriminated against based on her age and disability during her employment. Now

before the Court is the OAG’s motion to dismiss. For the reasons set forth below, the

motion is GRANTED.

I. BACKGROUND

A. Factual Background

The Court accepts the factual allegations in the complaint as true for purposes of

the instant motion. In re Parmalat Securities Litigation, 477 F. Supp. 2d 602, 607

(S.D.N.Y. 2007).

Szlosek was employed by the OAG as a paralegal from May 2019 to April 5,

2023, and she claims that her co-workers began bullying hershortly after she started at

the job. Doc. 1 at 5. She claims that her supervisor, Wendy Dorival, told her that other

paralegals did not like her because she was old, and that the paralegals would intimidate

her, throw things at her, and kick her in the back “to the entertainment and viewing” of

Dorival. Id. She also alleges that the OAG withheld work and mandatory training from

her. Id.

Szlosek asserts that she was denied accommodations for her spine condition after

she provided letters from two doctors describing her “condition and limits.” Id. at 5, 6.

For example, she was given a broken chair with a falling back and opening where her

spine needed support. Id. at 5.1 Further, Szlosek was assigned to make multiple trips per

day to courts and government agencies, despite the fact that she had difficulty walking,

even in extreme weather. Id. She was allegedly required to lift heavy boxes and was

subjected to verbal abuse, including being called an “old wrinkled hag,” and was told she

needed psychiatric help when she became emotional in response. Id. at 6. Szlosek

claims that Mary Clauncy, a Human Resourcesrepresentative, harassed her several times

a week and threatened her job when she was out on sick leave after her spine surgery. Id.

at 5. She also alleges that the OAG triedto cancel her long-term disability insurance and

health insurance after her spine surgery and wanted her to return to workfive days a

week in person, even though other employees were required to work in person only one

day per week. Id. Szlosek was terminated on April 5, 2023. Id. She alleges the OAG

fired her because she was not able to return to the work within the time frame the OAG

required due to her slow recovery from her spine surgery. Id.

B. Procedural Background

Szlosek filed a charge with the U.S. Equal Employment Opportunity Commission

(“EEOC”)in approximately August 2023 and received a notice of right to sue on

November 14, 2023. Doc. 1 at 6. Szlosek subsequently filed this complaint on February

6, 2024. Doc. 1 at 7. Szlosek asserts claims of age discrimination pursuant to the Age

1In her Amended Charge of Discrimination filed with the New York State Division of Human Rights and

EEOC, Szlosek alleges that she was “refused the simplest of accommodations for [her] disability.” Doc. 1-

1 at 2. For example, she claims she submitted a request for a chair that provided more support to Mary

Clauncy, who handles accommodations. Clauncy informed her that it is not easy for the office to get

special chairs and that she would have to deal with what she had. Szlosek therefore purchased a cushion

with her own funds that was stolen when she was not at her desk. Doc. 1-1 at 2. The Court offers no

opinion as to whether Szlosek could bring successful failure to accommodate claims pursuant to Section

504 under the Rehabilitation Act, which applies to government entities that have waived Eleventh

Amendment immunity through the receipt of federal funds. See Degrafinreid v. Ricks, 417 F. Supp. 2d

403, 413–15 (S.D.N.Y.), on reconsideration, 452 F. Supp. 2d 328 (S.D.N.Y. 2006).

Discrimination in Employment Act (“ADEA”),and disability discrimination under Title I

of the Americans with Disability Act (“ADA”). She also alleges that the OAG violated

the New York State Human Rights Law (“NYSHR”) and New York City Human Rights

Law (“NYCHR”).

On January 31, 2025, the OAG moved to dismiss the complaint pursuant to

Federal Rule of Civil Procedure 12(b)(1), arguing that it is entitled to sovereign immunity

under the Eleventh Amendment to the U.S. Constitution. Doc. 34. Szlosek filed an

opposition on February 25, 2025, in which she requested the Court grant her leave to

amend the complaint. Doc. 38. The OAG replied to Szlosek’s response on March 6,

2025, further requesting that the Court to grant the motion to dismiss, with prejudice.

Doc. 39.

II. LEGAL STANDARDS

A. Rule 12(b)(1) Motion to Dismiss: Subject Matter Jurisdiction

Pursuant to Rule 12(b)(1), the Court must dismiss a case for lack of subject matter

jurisdiction if the Court “lacks the statutory or constitutional power to adjudicate it.”

Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The party asserting subject

matter jurisdiction carries the burden of establishing, by a preponderance of the evidence,

that jurisdiction exists. Morrison v. National Australia Bank Ltd., 547 F.3d 167, 170 (2d

Cir. 2008) (quoting Makarova, 201 F.3d at 113). On a Rule 12(b)(1) motion challenging

the district court’s subject matter jurisdiction, evidence outside of the pleadings may be

considered by the court to resolve the disputed jurisdictional fact issues. Zappia Middle

East Construction Company v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000)

(internal citation omitted); see also Morrison, 547 F.3d at 170 (citing Makarova, 201

F.3d at 113). When evaluating a motion to dismiss for lack of subject matter jurisdiction,

the court accepts all material factual allegations in the complaint as true but does not

necessarily draw inferences from the complaint favorable to the plaintiff. J.S. ex rel. N.S.

v. Attica Central School, 386 F.3d 107, 110 (2d Cir. 2004) (citing Shipping Financial

Services Corporationv. Drakos, 140F.3d 129, 131 (2d Cir. 1998)).

B. Pro Se Litigants

The courts should interpret pro se litigants’pleadings and other filings to raise the

strongest claims they suggest. Sharikov v. Philips Medical System MR, Inc., 103 F.4th

159, 166(2d Cir. 2024). In general, “[a] pro se complaint ‘should not be dismissed

without the Court granting leave to amend at least once when a liberal reading of the

complaint gives any indication that a valid claim might be stated.’” Chavis v. Chappius,

618 F.3d 162, 170 (2d Cir. 2010)(alterations adopted)(quoting Branum v. Clark, 927

F.2d 698, 705 (2d Cir. 1991)). However, notwithstanding the liberal pleading standards

afforded pro se litigants, federal courts are courts of limited jurisdiction and may not

preside over cases if they lack subjectmatter jurisdiction. Lewis v. City of New York, 762

F. Supp. 3d 290, 301 (S.D.N.Y. 2025)(quoting Torres v. Blackstone Group, No. 18 Civ.

6434 (RA), 2019 WL 4194496, at *2 (S.D.N.Y. Sept. 3, 2019) (internal quotation marks

omitted), aff’d, 836 F. App’x 49 (2d Cir. 2020)).

III. DISCUSSION

The OAG argues that this court has no jurisdiction overSzlosek’s claims because

it enjoys the sovereign immunity under the Eleventh Amendment.

A. Eleventh Amendment Immunity

In general, the Eleventh Amendment bars private individuals from suing

nonconsenting States in federal court. Clissuras v. City University of New York, 359 F.3d

79, 81 (2d Cir. 2004). It is well-settled that New York state has not consentedto be sued

under ADA nor ADEA in a federal court. See Quadir v. New York State Department of

Labor, 39 F. Supp. 3d 528, 537 (S.D.N.Y. 2014) (“The New York Legislature has never

waived its sovereign immunity from liability under Titles I and V of the ADA.”); Darcy

v. Lippman, 356 F. App’x 434, 436(2d Cir. 2009) (noting that there is no suggestion that

New York state had consented to be sued under ADEA in a federal court).

The Eleventh Amendment also bars individuals from bringing NYSHRL and

NYCHRL claims in federal court. New York state has not waived its Eleventh

Amendment immunity for NYSHRL suits in federal courts. Quadir, 39 F. Supp. 3d at

537. There is also no evidence that the State has consented to suit in federal court under

the NYCHRL, and the City of New York does not have the power to abrogate the

immunity of the State. Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004).

However,under the Eleventh Amendment, a federal court may entertain a suit

against a nonconsenting State on two conditions: first, Congress must have enacted

unequivocal statutory language abrogating the States’ immunity from the suit; and

second, some constitutional provision must grant Congress the authority to encroach

States’ sovereignty. Allen v. Cooper, 589 U.S. 248, 248 (2020).

For Title I of the ADA, the Supreme Court has determined that Congress does not

have the authority to abrogate the States’ Eleventh Amendment immunity upon the

powers enumerated in Article Ior § 5 of the Fourteenth Amendment. Therefore, suits in

federal court by state employees to recover money damages by reason of the State's

failure to comply with Title I of the ADA are barred by the Eleventh Amendment.

Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 360 (2001).

Similarly, the Supreme Court has concluded that while the ADEA provision demonstrates

Congress’ intent to abrogate the States' constitutionally secured immunity from suit in

federal court, the ADEA’s purported abrogation of such immunity is not a valid exercise

of Congress’ power under § 5 of the Fourteenth Amendment. Kimel v. Florida Board of

Regents, 528 U.S. 62, 91 (2000). Therefore, neither the ADA nor the ADEA satisfies the

exception to sovereign immunity.

The narrow exception to state sovereign immunity in Ex Parte Young, 209 U.S.

123, 184 (1908), applies to suits seeking prospective injunctive relief against state

officials acting in violation of federal law. However, since Szlosek is seeking money

damages as relief, this exception also does not apply.

Moreover, “the immunity recognized by the Eleventh Amendment extends

beyond the states themselves to state agents and state instrumentalities that are,

effectively, arms of a state.” Woods v. Rondout Valley Central School District Board of

Education, 466 F.3d 232, 236 (2d Cir. 2006) (internal quotation marks omitted). Thus,

“under the doctrine of sovereign immunity, an individual may not sue a state, its

agencies, or its officials in federal court, absent that state’s consent or an express

statutory waiver of immunity.” Leon v. Rockland Psychiatric Center, 232 F. Supp. 3d

420, 429 (S.D.N.Y. 2017). The OAG, as an agency of New York State, is entitled to

sovereign immunity. Therefore, the Court grants the motion to dismiss for lack of subject

matter jurisdiction.2

B. Leave to Amend

The Federal Rules of Civil Procedure provide that “leave [to amend a pleading]

shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a); see also Gumer v.

Shearson, Hammill & Co., 516 F.2d 283, 287 (2d Cir. 1974). According to the Supreme

Court, only “undue delay, bad faith, or dilatory motive on the part of the movant,

repeated failure to cure deficiencies by amendments previously allowed, undue prejudice

to the opposing party . . . [or] futility of the amendment” will serve to prevent an

amendment prior to trial. Foman v. Davis, 371 U.S. 178, 182 (1962). A court may deny

leave to amend a complaint when amendment would be futile. Tocker v. Philip Morris

Companies, Inc., 470 F.3d 481, 491 (2d Cir. 2006). The party opposing the amendment

has the burden of establishing its futility. Blaskiewicz v. County of Suffolk, 29 F. Supp.

2d 134, 137 (E.D.N.Y. 1998) (internal citations omitted).

2 In addition to the OAG’s invocation of Eleventh Amendment immunity, the Court may also dismiss the

case pursuant Fed. R. Civ. P. 12(h)(3), which provides that “If the court determines at any time that it lacks

subject-matter jurisdiction, the court must dismiss the action,” as well as 28 U.S.C. § 1915(e)(2)(B)(iii),

which states that “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court

shall dismiss the case at any time if the court determines that . . . the action or appeal . . . seeks monetary

relief against a defendant who is immune from such relief.” Indeed, “[t]he Eleventh Amendment, where

applicable, deprives a federal court of jurisdiction.” DeMeo v. Koenigsmann, No. 11 Civ. 7099 HBP, 2015

WL 1283660, at *10 (S.D.N.Y. Mar. 20, 2015) (quoting In re 995 Fifth Ave. Associates, L.P., 963 F.2d

503, 506 (2d Cir. 1992)).

Accepting the allegations in Szlosek’s complaint as true, and drawing all

reasonable inferences in her favor, the Court finds that allowing Szlosek to amend her

complaint would be futile. The OAG enjoys sovereign immunity and none of

Szlosek’s supplemental allegations qualifies as an exception. New York state has not

waived sovereign immunity for claims pursuant to the ADA, ADEA, NYSHRL or

NYCHRL. The Court finds that it is not possible for Szlosek to cure this deficiency.

Thus, any amendment would be futile.

IV. CONCLUSION

For the reasons set forth above, the Court GRANTS the motion, with prejudice.

The Clerk of Court is respectfully directed to terminate the motion, Doc. 33, and

close the case.

It is SO ORDERED.

Dated: June 25, 2025 A \ CL 2. ax

New York, New York '

EDGARDO RAMOS, U.S.D.J.