In Biondolillo v. Livingston Correctional Facility, 2023 WL 2612508 (W.D.N.Y. March 23, 2023), the court, inter alia, granted plaintiff’s motion for reconsideration and reinstated plaintiff’s claim of pregnancy discrimination asserted under the New York State Human Rights Law.
The crux of the court’s decision is its determination that plaintiff clearly alleged, in her complaint, that she was pursuing the individual defendant in her individual, rather than official capacity:
In her complaint, Plaintiff brought a NYSHRL pregnancy discrimination claim against Defendant Tamara Kennedy. ECF No. 1. On summary judgment, Defendants argued that the claim must be dismissed because damages actions against a state official or employee in federal court are barred by the Eleventh Amendment absent a waiver of sovereign immunity. ECF No. 54-4 at 9. Defendants’ argument was premised upon an interpretation of Plaintiff’s complaint that she had brought the claim against Kennedy in her official capacity, as an agent of her employer– DOCCS. Id. In her Motion for Reconsideration, Plaintiff maintains that the claim was brought against Kennedy in her individual capacity and therefore is not barred by the Eleventh Amendment. ECF No. 64-1 at 4.
For the reasons set forth below, the Court finds the claim was brought against Kennedy in her individual capacity and an Eleventh Amendment defense to Plaintiff’s claim is inapplicable. Because Plaintiff’s NYSHRL pregnancy discrimination claim is adequately alleged for the reasons stated in Section I of the Court’s Decision and Order dated February 16, 2023, Plaintiff’s NYSHRL pregnancy discrimination claim is reinstated.
The issue is whether Plaintiff’s complaint “clearly identifies” in which capacity Defendant Tamara Kennedy is sued. “[A] plaintiff who has not clearly identified in her complaint the capacity in which the defendant is sued should not have the complaint automatically construed as focusing on one capacity to the exclusion of the other.” Frank v. Relin, 1 F.3d 1317, 1326 (2d Cir. 1993). When the face of a complaint fails to state clearly whether a state employee is sued in his or her official capacity or individual capacity, or both, courts look to “[t]he course of proceedings” to determine “the nature of the liability to be imposed.” Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985). Generally, “a party who is unclear in argument as to the capacity in which the defendant can be pursued should not lightly be deemed to have withdrawn a claim that was expressly stated.” Frank, 1 F.3d at 1326.
Here, two portions of Plaintiff’s complaint are particularly relevant.
First, Plaintiff states:
“Defendant Tamara Kennedy, upon Plaintiff’s knowledge and belief, is a resident of New York. At the time of the incident, Ms. Kennedy was employed as a Nurse Administrator by Defendant Livingston Correctional. One of the main responsibilities for her position is to supervising [sic] the nursing staff, including Ms. Biondolillo. As a result of her status as an agent of her employer, all relevant times, Defendant Kennedy met the definition of ‘employer’ and/or ‘covered employer’ under all relevant statutes.”
Second, Plaintiff later states, with respect to Plaintiff’s NYSHRL pregnancy discrimination claim: “Defendants discriminated against Plaintiff and Class Members on the basis of pregnancy and/or pregnancy-related conditions by subjecting such women to disparate and less favorable terms, conditions, and privileges of employment, and adverse treatment relative to persons not so affected. Such actions include, but are not limited to, wrongful termination as a result of pregnancy and pregnancy-related medical conditions.”
In the first portion of her complaint, Plaintiff indicates that Kennedy is sued in her official capacity “as an agent of her employer,” but is silent as to whether Kennedy is sued in her individual capacity, as well. Id. at 3. In the second portion, Plaintiff groups all Defendants together and states that “Defendants discriminated against Plaintiff[.]” Id. at 14. Plaintiff does not expressly state whether Kennedy is sued in her individual capacity in this respect. Thus, the Court finds that Plaintiff’s complaint “fails to state clearly” whether Kennedy was sued in her individual capacity with respect to Plaintiff’s NYSHRL pregnancy discrimination claim and must now look to “ ‘[t]he course of proceedings’ ” to determine “the nature of the liability to be imposed.”
In Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment, Plaintiff appears to specify more clearly in which capacity she intended to sue Kennedy, stating that: “[i]ndividual liability lies under the NYSHRL where (as here) the individual in question actually participated in the conduct giving rise to the discrimination claim. This portion of Plaintiff’s Opposition is Plaintiff’s only specific reference to an intent to bring a NYSHRL pregnancy discrimination claim against Kennedy in her individual capacity. The Court recognizes that “a party who is unclear in argument as to the capacity in which the defendant can be pursued should not lightly be deemed to have withdrawn a claim that was expressly stated.” Frank, 1 F.3d at 1326. Accordingly, the Court construes Plaintiff’s NYSHRL pregnancy discrimination claim to be brought against Kennedy in her individual capacity.
Accordingly, the court concluded that since defendants’ Eleventh Amendment defense is in applicable, and plaintiff has adequately alleged a pregnancy discrimination claim under Title VII of the Civil Rights Act of 1964, NYSHRL pregnancy discrimination claim may proceed.