Filed: Oct. 11, 2011
Latest Update: Feb. 22, 2020
Summary: 10-1981-cv Skalafuris v. City of New York UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUM
Summary: 10-1981-cv Skalafuris v. City of New York UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMM..
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10-1981-cv
Skalafuris v. City of New York
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 11th day of October, two thousand eleven.
PRESENT:
Dennis Jacobs,
Chief Judge,
Robert D. Sack,
Reena Raggi,
Circuit Judges.
_________________________________________
Angelo J. Skalafuris,
Plaintiff-Appellant,
v. 10-1981-cv
City of New York, New York City College
of Technology,
Defendants-Appellees.
_________________________________________
APPEARING FOR APPELLANT: ANGELO J. SKALAFURIS, PRO
SE, MOUNT VERNON, NY.
APPEARING FOR APPELLEES: PATRICK J. WALSH, ASSISTANT SOLICITOR
GENERAL; NEW YORK, NY (Eric T.
Schneiderman, Attorney General
of the State of New York;
Barbara D. Underwood, Solicitor
General; Michael S. Belohlavek,
Senior Counsel, on brief).
1 Appeal from a judgment of the United States District
2 Court for the Southern District of New York (Scheindlin,
3 J.).
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
5 AND DECREED that the judgment of the district court is
6 AFFIRMED.
7 Appellant Angelo J. Skalafuris, pro se, appeals from
8 the District Court’s dismissal of his age-discrimination
9 complaint. The District Court concluded that his claim
10 under New York State Human Rights Law, N.Y. Exec. Law
11 §§ 290–301, was barred by the election-of-remedies
12 limitation of that statute, id. § 297(9), and that his claim
13 under the Age Discrimination in Employment Act, 29 U.S.C. §§
14 621–34 (“ADEA”), was barred by Eleventh Amendment sovereign
15 immunity. We assume the parties’ familiarity with the
16 underlying facts, procedural history of the case, and issues
17 on appeal.
18 This Court’s review of a district court’s grant of a
2
1 motion to dismiss pursuant to Rule 12(b)(6) of the Federal
2 Rules of Civil Procedure is de novo. Poulin v. Balise Auto
3 Sales, Inc., 647 F.3d 36, 39 (2d Cir. 2011). With regard to
4 a district court’s dismissal of a complaint for lack of
5 subject-matter jurisdiction pursuant to Rule 12(b)(1), as
6 well as a dismissal predicated on sovereign immunity, we
7 review factual findings for clear error and legal
8 conclusions de novo. Filler v. Hanvit Bank,
378 F.3d 213,
9 216 (2d Cir. 2004); Makarova v. United States,
201 F.3d 110,
10 113 (2d Cir. 2000).
11 Upon such review, we conclude that Skalafuris’s
12 arguments on appeal are without merit for substantially the
13 reasons articulated by the District Court in its
14 well-reasoned decision. See Skalafuris v. City of N.Y., No.
15 09 Civ 5693(SAS),
2010 WL 1050299 (S.D.N.Y. Mar. 22, 2010).
16 New York’s Human Rights Law provides an election-of-
17 remedies limitation, which bars a person who has “filed a
18 complaint hereunder [with the New York State Division of
19 Human Rights] or with any local commission on human rights”
20 from filing a lawsuit for the same cause of action. N.Y.
21 Exec. Law § 297(9). The election-of-remedies provision
22 applies to actions in federal court as well as state court.
23 York v. Assoc. of Bar of City of N.Y.,
286 F.3d 122, 127 (2d
24 Cir. 2002); see also McGullam v. Cedar Graphics, Inc., 609
3
1 F.3d 70, 74 n.3 (2d Cir. 2010) (“‘[A] state law depriving
2 its courts of jurisdiction over a state law claim also
3 operates to divest a federal court of jurisdiction to decide
4 the claim.’”) (quoting Moodie v. Fed. Reserve Bank of N.Y.,
5
58 F.3d 879, 884 (2d Cir. 1995)).
6 Skalafuris contends that he “involuntarily” submitted
7 his Human Rights Law claim to the Human Rights Division as a
8 prerequisite to bringing his ADEA suit. See Tewksbury v.
9 Ottaway Newspapers,
192 F.3d 322, 328–29 (2d Cir. 1999).
10 However, Skalafuris could have, but did not, request that
11 the New York Division of Human Rights dismiss his complaint
12 so that his Human Rights Law claim could have been pursued
13 in court. See N.Y. Exec. Law § 297(9). The ADEA does not
14 require that a litigant complete the administrative process,
15 so long as the charges were pending for at least 60 days
16 prior to commencement of suit. See 29 U.S.C. §§ 626(d)
17 (pending with the Equal Employment Opportunity Commission),
18 633(b) (pending with the relevant state agency or
19 department); accord McPherson v. N.Y.C. Dep’t of Educ., 457
20 F.3d 211, 215 (2d Cir. 2006). Moreover, the ADEA does not
21 alter the jurisdiction of state agencies with respect to
22 claims arising under state law. See 29 U.S.C. § 633(a).
23 Skalafuris’s ADEA claim is barred by sovereign
24 immunity. The “senior colleges” of City University of New
4
1 York are arms of the state for purposes of sovereign
2 immunity, Clissuras v. City Univ. of New York, 359 F.3d 79,
3 82 (2d Cir. 2004) (per curiam), and the New York City
4 College of Technology is by definition a “senior college,”
5 N.Y. Educ. Law § 6202(5). The New York City College of
6 Technology as well as the City University of New York are,
7 therefore, entitled to sovereign immunity here unless
8 Congress has properly exercised its authority under Section
9 Five of the Fourteenth Amendment to abrogate the colleges’
10 sovereign immunity or unless the defendants waived immunity.
11 In Kimel v. Fla. Bd. of Regents, the Supreme Court
12 considered whether Congress properly abrogated state
13 sovereign immunity under the ADEA and concluded that
14 Congress’s attempt to do so was not a valid exercise of its
15 powers under Section Five of the Fourteenth Amendment. 528
16 U.S. 62, 82-83, 86, 91-92 (2000). So, the States’ sovereign
17 immunity in the area of age discrimination remains intact.
18 Skalafuris attempts to save his ADEA claim by arguing that
19 the Fourteenth Amendment is “superior” to the Eleventh
20 Amendment because it was enacted later in time. The
21 “Supreme Court[’s] Eleventh Amendment jurisprudence,”
22 however, “leaves no room for the notion that the later
23 amendment simply erased the earlier,” Santiago v. N.Y.S.
24 Dep’t of Corr. Servs.,
945 F.2d 25, 28 (2d Cir. 1991); and
5
1 Kimel, 528 U.S. at 82-92, makes clear that the States’
2 sovereign immunity was not abrogated by the ADEA, even
3 though it was purportedly enacted pursuant to Congress’s
4 authority under the Fourteenth Amendment.
5 Skalafuris argues that the City University of New York
6 and New York City College of Technology waived their
7 immunity to suit by accepting federal funds. “Although
8 Congress may, pursuant to its spending power, extract a
9 constructive waiver of . . . [sovereign] immunity by placing
10 conditions on the grant of funds . . . , waiver based on
11 participation in a federal program will be found only if
12 stated in ‘“express language or by such overwhelming
13 implications from the text as [will] leave no room for any
14 other reasonable construction.”’” McGinty v. New York, 251
15 F.3d 84, 95 (2d Cir. 2001) (quoting Fla. Dep't of Health &
16 Rehabilitative Servs. v. Fla. Nursing Home Ass'n,
450 U.S.
17 147, 150 (1981) (per curiam)) (quoting Edelman v. Jordan,
18
415 U.S. 651, 673 (1974)). Skalafuris has identified no
19 such condition on any federal funds received by these state
20 institutions nor are we aware of any. Accordingly,
21 Skalafuris has not adequately averred a waiver of sovereign
22 immunity sufficient to permit his ADEA claim to proceed.
23 Finally, we reject Skalafuris’s remaining contentions
24 on appeal as they are without merit.
6
1 For the foregoing reasons, the judgment of the district
2 court is hereby AFFIRMED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
7
