Koberger v. Cletus

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

JAMIE L. KOBERGER,

Plaintiff,

vs. 1:24-CV-1496

(MAD/PJE)

RICHARD CLETUS, BRENDA LUKASIEWICZ,

RICHARD LOVELY, and KRISTEN MELNICK,

Defendants.

____________________________________________

APPEARANCES: OF COUNSEL:

JAMIE L. KOBERGER

Albany, New York

Plaintiff Pro Se

OFFICE OF THE NEW YORK STATE MATTHEW J. GALLAGHER, AAG

ATTORNEY GENERAL

The Capitol

Albany, New York 12224

Attorney for Defendants

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On December 9, 2024, Plaintiff Jaime L. Koberger commenced this action, pro se, against

her current supervisors at the New York State Department of Taxation and Finance (the

"Department of Taxation and Finance" or "Department"): Defendants Richard Cletus, Brenda

Lukasiewicz, Richard Lovely, and Kristen Melnick. See Dkt. No. 1 at 2-3. Plaintiff alleges

discrimination and retaliation claims under Titles I and V of the Americans with Disabilities Act

("ADA"), 42 U.S.C. § 12101 et seq. See Dkt. No. 14 at 1, 4. Specifically, Plaintiff contends

Defendants discriminated against her on the basis of her disability by denying her a reasonable

accommodation and bullying her. See id. at 6. Plaintiff also alleges that Defendants retaliated

against her by removing her entire staff from her supervision, excluding her from gatherings, and

"ambush[ing]" her during a one-on-one meeting by including another employee. See id. at 7-8,

11.

On February 6, 2025, Plaintiff filed an Amended Complaint. See Dkt. No. 14. On March

5, 2025, Defendants filed a motion to dismiss the Amended Complaint for lack of subject matter

jurisdiction and failure to state a claim. See Dkt. No. 19. Plaintiff responded in opposition to

Defendants' motion on March 24, 2025. See Dkt. No. 21. On April 2, 2025, Defendants filed a

reply in further support of their motion. See Dkt. No. 23.

II. BACKGROUND

Plaintiff contends in the Amended Complaint that she suffers from irritable bowel

syndrome, generalized anxiety disorder, major depression, and chronic pain. See Dkt. No. 14 at

3. She alleges that on June 21, 2023, she informed her supervisors, Defendants Cletus and

Melnick, of her disabilities during her interview at the Department of Taxation and Finance and

reminded Defendant Melnick on three other occasions in August 2023. See id at 6. Plaintiff

contends she requested a reasonable accommodation of telecommuting privileges during her

interview, to which Defendant Cletus "assured [her] that would not be a problem." Id.

Plaintiff alleges that in November 2023, Defendant Melnick entrusted Plaintiff with a

hiring decision. See id. Plaintiff asserts that despite making an informed decision by

interviewing candidates, Defendant Melnick disagreed with Plaintiff's choice and bullied her. See

id. at 6-7. Plaintiff claims that Defendants Melnick and Lukasiewicz questioned her "judgment,

character, and experience" by soliciting negative comments from other managers about her

chosen candidate. Id. at 7. Plaintiff contends the bullying continued when Defendant Melnick

asked Plaintiff to complete a self-assessment—she was the only employee asked to complete

one—and they refused to complete a performance evaluation for Plaintiff as directed by Human

Resources. See id. at 8. Plaintiff states Defendants also removed staff members from her line of

supervision with no justification, prohibited Plaintiff from making hiring decisions, reduced

Plaintiff's workload, and denied Plaintiff telecommuting privileges. See id. at 8-9, 11, 15.

Plaintiff alleges Defendant Lovely was condescending by saying that Plaintiff "was using

big words like 'berate'" in her emails and questioning if Plaintiff knew what the word meant. Id.

at 9. Plaintiff contends Defendant Lovely purposefully excluded Plaintiff from meetings and had

Plaintiff report to lower-level staff to isolate and embarrass her. See id.

Plaintiff asserts that Defendants Cletus and Lukasiewicz also retaliated against her by

isolating and ostracizing her and excluding her from meetings and projects. See id. at 10-11.

Plaintiff contends Defendant Lukasiewicz was "conde[scending], embarrassing, intimidating, and

bullying" her by "ambushing" her with another employee at a one-on-one meeting. Id. at 11-12.

On February 27 and May 7, 2024, Plaintiff was allegedly excluded from gatherings in the office

involving food because of her disabilities. See id. at 12-13.

Plaintiff's requests for relief include the following: "(a) declaratory judgment finding that

the Defendant(s) violated the [ADA]; (b) front pay; (c) compensatory damages[;] . . . (d) court

and associated fees; (e) and such other and further relief as the court deems just and equitable."

Id. at 5.

III. DISCUSSION

Defendants have moved to dismiss Plaintiff's Amended Complaint under Rules 12(b)(1)

and 12(b)(6). See Dkt. No. 19. The Court will first address the arguments concerning

jurisdictional deficiencies under Rules 12(b)(1). See Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir.

2008) ("Determining the existence of subject matter jurisdiction is a threshold inquiry").

A. Subject Matter Jurisdiction

Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a defendant to move to

dismiss a complaint for lack of subject matter jurisdiction. See FED. R. CIV. P. 12(b)(1). Under

Rule 12(b)(1), "[a] case is properly dismissed for lack of subject matter jurisdiction . . . when the

district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United

States, 201 F.3d 110, 113 (2d Cir. 2000). "When a party moves to dismiss a complaint pursuant

to Rule 12(b)(1), 'the movant is deemed to be challenging the factual basis for the court's subject

matter jurisdiction.'" Hoover v. HSBC Mortg. Corp., 9 F. Supp. 3d 223, 235 (N.D.N.Y. 2014)

(quoting Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583 (Fed. Cir. 1993)). "For the

purposes of such a motion, 'the allegations in the complaint are not controlling, . . . and only

uncontroverted factual allegations are accepted as true. . . .'" Id. (quotation omitted). "[W]hen . . .

subject matter jurisdiction is challenged under Rule 12(b)(1), evidentiary matter [outside the

pleadings] may be presented" to support or oppose the motion. Kamen v. Am. Tel. & Tel. Co.,

791 F.2d 1006, 1011 (2d Cir. 1986); see also Makarova, 201 F.3d at 113.

A pro se litigant must be afforded "'special solicitude' by interpreting a complaint filed pro

se 'to raise the strongest claims that it suggests.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see

also Hardaway v. Hartford Pub. Works Dep't, 879 F.3d 486, 489 (2d Cir. 2018) (quoting Hill v.

Curcione, 657 F.3d 116, 122 (2d Cir. 2011)). A pro se complaint, while potentially "'inartfully

pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'"

Ceara v. Deacon, 916 F.3d 208, 213 (2d Cir. 2019) (quotation omitted).

1. Individual Liability

As an initial matter, Defendants acknowledge in their motion to dismiss that Plaintiff

never formally alleged a claim under the Rehabilitation Act ("RA"); however, the statute is briefly

referenced in one sentence of Plaintiff's Amended Complaint. See Dkt. No. 19-2 at 18; see also

Dkt. No. 14 at 6 ("Furthermore, as New York receives federal funding this claim is also covered

under the Rehabilitation Act of 1973, and therefore sovereign immunity does not apply"). "As the

standards for actions under the[] . . . ADA and the Rehabilitation Act are generally equivalent,"

the claims are often analyzed together.1 Dean v. Univ. at Buffalo Sch. of Med. & Biomedical

Scis., 804 F.3d 178, 187 (2d Cir. 2015). In light of Plaintiff's pro se status, the Court will

construe Plaintiff's complaint as raising ADA and RA claims. See Hardaway, 879 F.3d at 489.

The Second Circuit has held that discrimination and retaliation claims cannot be brought

against individual employees. See Yerdon v. Poitras, 120 F.4th 1150, 1155, 1157 (2d Cir. 2024)

("Title I does not permit plaintiffs to bring damages claims against individual employees");

Spiegel v. Schulmann, 604 F.3d 72, 79 (2d Cir. 2010) ("[I]n the context of employment

discrimination, [Title V] of the ADA . . . cannot provide for individual liability"); see also Arcuri

v. Schoch, No. 6:15-CV-0798, 2015 WL 5652336, *5 (N.D.N.Y. Sept. 24, 2015). Indeed, "'[i]t is

well-established that there is no individual liability under the ADA or the [RA], whether the

individual is sued in their official or individual capacity.'" Lawrence v. Shattick, No. 8:24-CV-

656, 2025 WL 542587, *7 (N.D.N.Y. Feb. 19, 2025) (quoting Goe v. Zucker, 43 F.4th 19, 35 (2d

Cir. 2022)) (additional quotation and quotation marks omitted).

1 "The primary difference between the two statutes is that the RA requires the plaintiff to plead

that the defendant receives federal funding, and the ADA does not." M.G. v. New York State Off.

of Mental Health, 572 F. Supp. 3d 1, 15 n.8 (S.D.N.Y. 2021).

Defendants argue Plaintiff's ADA and RA claims must be dismissed because they are

asserted against individual employees of the Department of Taxation and Finance. See Dkt. No.

19-2 at 10. The Court agrees. Accordingly, because ADA and RA claims cannot be brought

against individual employees, Plaintiff's Amended Complaint must be dismissed as against the

individual Defendants.

2. Sovereign Immunity

Plaintiff did not name the Department of Taxation and Finance as a party in this case. See

Dkt. No. 14 at 2-3. In the case captions of Plaintiff's original and amended complaints, she named

the Department of Taxation and Finance. See Dkt. No. 1 at 1; see also Dkt. No. 14 at 1. Plaintiff

also named the Department in the civil cover sheet attached to her original complaint. See Dkt.

No. 1-3 at 1. However, she does not list the Department as a party in either complaint, nor does

she mention the Department in the body of her complaints. Construing the Amended Complaint

"to raise the strongest argument it suggests," and in light of Plaintiff's pro se status, the Court

assumes for the sake of this Memorandum-Decision and Order that Plaintiff intended to name the

Department as a Defendant or name the individual Defendants in their official capacity as

employees of the Department of Taxation and Finance.2 Hardaway, 879 F.3d at 489. "When a

defendant is sued in his official capacity, [courts] treat the suit as one against the entity of which

an officer is an agent." Gonzalez v. Hartnett, No. 5:21-CV-01379, 2022 WL 16848204, *5

(N.D.N.Y. Nov. 9, 2022) (additional citation and quotation marks omitted); see also Kentucky v.

2 Courts in this district have construed a pro se complaint as being brought against a defendant in

their official capacity where the complaint does not specify. See Lewis v. Stanton, No. 9:13-CV-

1 172, 2014 WL 3106566, *4 (N.D.N.Y. July 7, 2014); Yang v. Eastman Sch. of Music, No. 21-

CV-1482, 2022 WL 1040418, *2 (2d Cir. Apr. 7, 2022).

Graham, 473 U.S. 159, 166 (1985) ("A plaintiff seeking to recover . . . in an official-capacity suit

must look to the government entity itself"). Such claims are barred by the Eleventh Amendment.

The Eleventh Amendment 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 of another State, or by Citizens or Subjects of any Foreign

State." Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001) (quoting U.S. CONSTIT.

AMEND. XI). "Although by its terms, the Amendment applies only to suits against a State by

citizens of another State, [Supreme Court] cases have extended the Amendment's applicability to

suits by citizens against their own States." Id. (citation omitted). "The reach of this immunity

extends to a state's constituent agencies and to state officials working on behalf of the state; i.e.,

individuals sued in their official capacities." Publicola v. Lomenzo, No. 1:21-CV-1303, 2022 WL

1027099, *9 (N.D.N.Y. Apr. 5, 2022); see also Graham, 473 U.S. at 167 ("The only immunities

that can be claimed in an official-capacity action are forms of sovereign immunity that the entity .

. . may possess, such as the Eleventh Amendment"). Here, even if Plaintiff named the Defendants

in their official capacities, the claims are barred from suit under the Eleventh Amendment. See

Gonzalez, 2022 WL 16848204, at *5.

a. Titles I and V of the ADA

"Section 5 of the Fourteenth Amendment grants Congress authority to abrogate state

sovereign immunity." T.W. v. New York State Bd. of L. Examiners, 110 F.4th 71, 81 (2d Cir.

2024) (citation omitted). "Congress' enactment of Title I of the ADA . . . does not allow private

citizens to sue states and their agencies in federal court[.]" Dollinger v. New York State Ins. Fund,

No. 3:14-CV-908, 2015 WL 8491013, *3 (N.D.N.Y. Dec. 10, 2015) (citing Garrett, 531 U.S. at

374). Additionally, "claims brought pursuant to Title V of the ADA which governs retaliation,

are barred by the Eleventh Amendment." Id. (citations omitted); see also Yerdon, 120 F.4th at

1155 (holding that claims against individuals acting in their official capacities are barred by

sovereign immunity).

Defendants argue that because Plaintiff's claims arise under Titles I and V of the ADA,

they are barred by the Eleventh Amendment and should be dismissed. See Dkt. No. 19-2 at 10.

The Court agrees. In Plaintiff's response to the motion, as acknowledged by Defendants in their

reply, Plaintiff does not address the Eleventh Amendment issue. See Dkt. Nos. 21, 23. Because

private citizens cannot sue states or their agents in federal court for alleged Title I or Title V ADA

violations, those claims must be dismissed. See Dollinger, 2015 WL 8491013, at *3; Yerdon, 120

F.4th at 1155.

In her Amended Complaint, Plaintiff refers to Ninth and Tenth Circuit decisions to assert

that Defendants waived sovereign immunity. See Dkt. No. 14 at 6. The case law provided by

Plaintiff is from different circuits; therefore, the cases are not binding on this Court. However,

Plaintiff's citations are not completely baseless.

In the first case, the Ninth Circuit held that "the Eleventh Amendment does not bar claims

against . . . State[s] brought under Title II of the ADA." Lovell v. Chandler, 303 F.3d 1039, 1051

(9th Cir. 2002). That is a consistent holding with the law in the Second Circuit, see T.W., 110

F.4th at 87-88; however, Title II does not apply in this case as that section of the ADA pertains to

discrimination in the provision of public services. "[E]mployment discrimination claims [can]not

be brought under Title II." Mary Jo C. v. New York State & Loc. Ret. Sys., 707 F.3d 144, 171 (2d

Cir. 2013); see also Yerdon, 120 F.4th at 1153 (holding that disputes involving allegations of

employment discrimination "are clearly governed by Title I of the ADA"). The Second Circuit

has explicitly held that "[a] public employee may not bring a Title II claim against his or her

employer[.]" Mary Jo C., 707 F.3d at 171, 168-69 ("[T]he structure of the ADA, including

differences between Title I and Title II, [indicates] that Congress did not intend to extend Title II

to employment discrimination claims, at least not those that are covered by Title I") (citation

omitted). Therefore, Plaintiff's reliance on the Ninth Circuit case is inapposite.3

Likewise, the Tenth Circuit case cited by Plaintiff concluded that "'a State waives its

sovereign immunity by voluntarily invoking the jurisdiction of the federal courts.'" Estes v.

Wyoming Dep't of Transp., 302 F.3d 1200, 1206 (10th Cir. 2002) (quoting Coll. Sav. Bank v. Fla.

Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 681 n.3 (1999)); see also In re Charter

Oak Assocs., 361 F.3d 760, 767 (2d Cir. 2004). In this case, the Department of Taxation and

Finance did not voluntarily bring the case from "state court to federal court", and, as such, the

case referenced by Plaintiff is not applicable. See Dkt. No. 14; Estes, 302 F.3d at 1206. Based on

the foregoing, the Title I and V claims in Plaintiff's Amended Complaint must be dismissed for

lack of subject-matter jurisdiction.

b. Rehabilitation Act

"'Because the Rehabilitation Act was enacted pursuant to the Spending Clause of Article I,

Congress can require states to waive their sovereign immunity [for Rehabilitation Act claims] as a

condition of accepting federal funds.'" Quadir v. New York State Dep't of Lab., 39 F. Supp. 3d

528, 537 (S.D.N.Y. 2014) (quotation omitted). However, "waiver based on participation in a

3 The Court notes that some district courts have permitted a plaintiff to assert employment

discrimination claims under Title II of the ADA. See Smith v. State Univ. of New York, No. 1:00-

CV-1454, 2003 WL 1937208, *8 (N.D.N.Y. Apr. 23, 2003); Magee v. Nassau Cnty. Med. Ctr., 27

F. Supp. 2d 154, 159 (E.D.N.Y. 1998); Transp. Workers Union of Am., Loc. 100, AFL-CIO v.

New York City Transit Auth., 342 F. Supp. 2d 160, 159 (S.D.N.Y. 2004). However, the Court is

bound by the Second Circuit's most recent decision in Yerdon which holds that allegations of

employment discrimination are governed by Title I, and not Title II. See Yerdon, 120 F.4th at

1154-55.

federal program will be found only if stated in 'express language or by such overwhelming

implications from the text as [will] leave no room for any other reasonable construction.'"

Skalafuris v. City of N.Y., 444 Fed. Appx. 466, 468 (2d Cir. 2011); see also McGinty v. New York,

251 F.3d 84, 95 (2d Cir. 2001); Bleichert v. New York State Educ. Dep't, 793 Fed. Appx. 32, 33-

34 (2d Cir. 2019). "[M]ere participation by a state in a federal program providing financial

assistance does not establish the state's consent to be sued in federal court." McGinty, 251 F.3d at

95 (citing Edelman v. Jordan, 415 U.S. 651, 673 (1974)).

As noted above, in the caption of her Amended Complaint, Plaintiff lists the "NYS

Department of Taxation and Finance" as a Defendant. While Plaintiff may have been attempting

to name the NYS Department of Taxation and Finance as a Defendant, in this action, she has

failed to do so properly. As Defendants note, no summons was issued for the NYS Department of

Taxation and Finance, and, therefore, they have not been served with a summons and complaint

in this matter.

Had Plaintiff properly included the NYS Department of Taxation and Finance, any claim

brought pursuant to the Rehabilitation Act would not be precluded by sovereign immunity.

Courts have consistently found that New York has waived its sovereign immunity for claims

brought pursuant to the Rehabilitation Act. See Quadir, 39 F. Supp. 3d at 537 ("Since the

Rehabilitation Act does include such a requirement and New York does accept federal funds,

'New York has waived its sovereign immunity with respect to [Rehabilitation Act] claims'")

(quotation omitted); see also Bennett v. N.Y.S. Thruway Auth., No. 6:22-CV-337, 2024 WL

1053222, *8 (N.D.N.Y. Mar. 11, 2024) (citation omitted); Rosenfield v. N.Y.S. Div. Of Veterans'

Affairs, No. 1:18-CV-1299, 2019 WL 4621962, *9 (N.D.N.Y. Sept. 24, 2019) (citing cases

holding that New York has waived its immunity for claims brought under Section 504 of the

Rehabilitation Act). As such, the Court will permit Plaintiff one final opportunity to amend her

complaint to bring a claim under the Rehabilitation Act against the NYS Department of Taxation

and Finance. Should Plaintiff file this complaint, it must be a complete pleading that supersedes

the Amended Complaint in all respects. Plaintiff is also instructed that a copy of this Second

Amended Complaint must be served on the NYS Department of Taxation and Finance, along with

a summons, in accordance with relevant state and federal laws. Plaintiff shall file any Second

Amended Complaint within thirty days of the date of this Memorandum-Decision and Order.

IV. CONCLUSION

For the reasons stated herein, the Court hereby

ORDERS that Defendants' motion to dismiss (Dkt. No. 19) is GRANTED; and the Court

further

ORDERS that Plaintiff's Amended Complaint (Dkt. No. 14) is DISMISSED in its

entirety without prejudice; and the Court further

ORDERS that Plaintiff may file a Second Amended Complaint within thirty (30) days of

the date of the Memorandum-Decision and Order against the NYS Department of Taxation and

Finance; and the Court further

ORDERS that, if Plaintiff fails to file a Second Amended Complaint within thirty (30)

days of the date of this Memorandum-Decision and Order, the Clerk of the Court shall enter

judgment in Defendants' favor and close this case without further order from the Court; and the

Court further

ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision

and Order on the parties in accordance with the Local Rules.

IT IS SO ORDERED.

Dated: August 5, 2025 J) A D , □

Albany, New York f/f bheg CF L-Gpez

Mae A. D'Agostino”

U.S. District Judge

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