    19-862
    Bleichert v. N.Y. State Education Department


                            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 ASUMMARY ORDER@). A PARTY CITING TO 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 10th day of December, two thousand nineteen.

    PRESENT:
                DENNIS JACOBS,
                SUSAN L. CARNEY,
                MICHAEL H. PARK,
                      Circuit Judges.
    _____________________________________

    Lisa M. Bleichert,

                                Plaintiff-Appellant,

                       v.                                                  No. 19-862

    New York State Education Department,
    Office of Human Resources,

                      Defendants-Appellees.
    _____________________________________


    FOR PLAINTIFF-APPELLANT:                           LISA M. BLEICHERT, pro se,
                                                       Saratoga Springs, New York, NY.

    FOR DEFENDANTS-APPELLEES:                          JENNIFER L. CLARK, Assistant Solicitor
                                                       General of Counsel (Andrea Oser, Deputy
                                                       Solicitor General, on the brief), for Letitia
                                                       James, N.Y. Attorney General, Albany, NY.

       Appeal from a judgment of the United States District Court for the Northern District of New

York (Suddaby, C.J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court dated March 6, 2019, is AFFIRMED.

       Lisa Bleichert, pro se, sued the New York State Education Department (“NYSED”), Office

of Human Resources, under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.

§§ 621–634, and the New York State Human Rights Law (“NYSHRL”), N.Y. Exec Law §§ 290–

301. She alleged that the NYSED discriminated and retaliated against her based on her age, and

that her supervisors harassed and bullied her. The District Court dismissed the complaint for lack

of subject matter jurisdiction, ruling that Bleichert’s ADEA claims were barred by the Eleventh

Amendment, and that her NYSHRL claims were barred by New York’s election of remedies

statute, N.Y. Exec. Law § 279(a), because Bleichert previously pursued administrative relief on her

grievances before the New York State Division of Human Rights (“NYSDHR”). Bleichert now

appeals. We assume the parties’ familiarity with the underlying facts, procedural history of the

case, and issues on appeal, to which we refer only as necessary to explain our decision to affirm the

District Court’s dismissal of Bleichert’s complaint.

       This Court reviews de novo a judgment of dismissal, whether it was based on lack of subject-

matter jurisdiction under Fed. R. Civ. P. 12(b)(1) or on failure to state a claim under Fed. R. Civ.

P. 12(b)(6). Washington v. Barr, 925 F.3d 109, 113 (2d Cir. 2019). In considering whether a

governmental entity is entitled to Eleventh Amendment sovereign immunity, this Court reviews the
district court’s relevant factual findings for clear error and its legal conclusions de novo. Leitner

v. Westchester Cmty. Coll., 779 F.3d 130, 134 (2d Cir. 2015).

   I.      ADEA Claims

        “The Eleventh Amendment generally bars suits in federal court by private individuals

against non-consenting states.” Id. This immunity “encompasses not just actions in which a state

is actually named as a defendant, but also certain actions against state agents and instrumentalities,

including actions for the recovery of money from the state.” Id.

        The ADEA makes it unlawful “for an employer, including a State, ‘to fail or refuse to hire

or to discharge any individual or otherwise discriminate against any individual . . . because of such

individual’s age.”’ Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 66 (2000) (alteration in original)

(quoting 29 U.S.C. § 623(a)(1)). In Kimel, the Supreme Court addressed whether the ADEA

contained “a clear statement of Congress’ intent to abrogate the States’ Eleventh Amendment

immunity” against suit and, if so, whether the ADEA was a “proper exercise of Congress’

constitutional authority.” Id. at 66–67. The Court concluded that, although the ADEA does

contain “a clear statement of Congress’ intent to abrogate the States’ immunity,” that “abrogation

exceeded Congress’ authority under § 5 of the Fourteenth Amendment.” Id. at 67. “The ADEA’s

purported abrogation of the States’ sovereign immunity is accordingly invalid,” id. at 91, it

concluded. Consequently, the Eleventh Amendment precludes an individual from bringing a claim

against a state or state agency under the ADEA, and federal courts do not have subject matter

jurisdiction over such claims. McGinty v. New York, 251 F.3d 84, 95 (2d Cir. 2001) (holding that

plaintiffs failed to meet the “stringent test” for finding that the State of New York waived sovereign

immunity as to ADEA claims).
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         Bleichert does not challenge the District Court’s holding that the NYSED is an “arm of the

state” and that, as such, it is entitled to sovereign immunity. She acknowledges that the Eleventh

Amendment may prevent an employee from suing the state. Appellant Br. at 15. She argues,

however, that the Supreme Court has held that “federal courts can enjoin state officials from

violating federal law,” id., and asserts (apparently in connection with her legal position) that various

supervisors at NYSED violated her “[c]ivil [s]ervice” rights by “willfully work[ing] in cooperation

under the direction of [the Director of OHRM] to defeat, deceive, and obstruct my getting a

promotion, as well as conspiring to get me fired.” Id. But Bleichert sued only for damages, not

injunctive relief, and the Eleventh Amendment bars damages claims brought against individual

defendants in their official capacities. See Kentucky v. Graham, 473 U.S. 159, 169 (1985).

Bleichert may not sue these defendants in their personal capacities because the ADEA does not

provide a cause of action against individual supervisors; it contemplates only actions against

“employers”—here, the state. See 29 U.S.C. § 630(b). Accordingly, the District Court correctly

dismissed Bleichert’s ADEA claims for want of subject matter jurisdiction.

   II.      NYSHRL Claims

         The District Court construed Bleichert’s complaint to raise age discrimination claims under

the NYSHRL, which it also dismissed for lack of subject-matter jurisdiction based on the statutory

election of remedies provision established by N.Y. Exec. Law § 297(9). This provision bars a

person who has “filed a complaint hereunder [with the NYSDHR] or with any local commission on

human rights” from filing a lawsuit for the same cause of action unless the NYSDHR complaint

was dismissed on grounds of “administrative convenience[,] . . .untimeliness[,] . . . [or where] the

election of remedies is annulled.” Id. Section 297(9) bars actions brought in federal as well as
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state court. See York v. Ass’n of the Bar of the City of N.Y., 286 F.3d 122, 127 (2d Cir. 2002); see

also McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 74 n.3 (2d Cir. 2010) (“‘[A] state law

depriving its courts of jurisdiction over a state law claim also operates to divest a federal court of

jurisdiction to decide the claim.’” (alteration in original) (citation omitted)).      Thus, once an

individual has brought a claim before the NYSDHR, she may not pursue it again “as a plenary

action in another court.” York, 286 F.3d at 127. If a person brings a case before the NYSDHR,

and is dissatisfied with its resolution there, “she may appeal only to the Supreme Court of the State

of New York.” Id. (citing N.Y. Exec. Law § 298).

       Here, Bleichert asserts in her complaint not only that she filed an administrative complaint

before the NYSDHR in July 2017, but that she then pursued her claims in that venue. Proceedings

there included “a counseling session” and the provision of testimony by witnesses, she avers.

Compl. ¶¶ 62, 63, 69, 70, Bleichert v. N.Y. State Ed. Dept., Office of Human Resources, No. 18-cv-

611 (N.D.N.Y. Apr. 4, 2019), ECF No. 1. Her complaint acknowledges that the NYSDHR found

“no probable cause” on her claims, id. ¶ 71 (emphasis omitted). She also attaches the EEOC’s

“Dismissal and Notice of Rights” letter dated February 21, 2018, in which the EEOC advised that

it “ha[d] adopted the findings of the state or local fair employment practices agency that investigated

this charge.” Id. at 36. Her complaint does not assert that the NYSDHR dismissed her claims for

administrative convenience, untimeliness, or annulment of the election of remedies.

       Bleichert thus concedes that she filed an administrative complaint with the NYSDHR

charging age discrimination and retaliation, based on the same cause of action, and that she saw it

through to a conclusion. Accordingly, the District Court correctly ruled under N.Y. Exec.


                                                  5
Law § 297(9) that, because Bleichert elected to pursue her age discrimination remedies before the

state agency, it lacked jurisdiction to adjudicate Bleichert’s state law claims.

   III.      Motion to Supplement

          Bleichert now moves in this Court to supplement the record on appeal, requesting that this

Court consider approximately 50 pages of documents drawn from her NYSDHR case file that she

did not submit to the District Court and that were not attached to her complaint. She asserts that,

when she received the NYSDHR file, she found that “signatures [were] missing, dates had been

changed, personal employee information had been given and the evidence that was submitted by

[NY]SED had been altered,” and she argues that her case there was “not properly handled or

reviewed.” Mot. To Supplement the Record 1, Bleichert v. N.Y. State Ed. Dept., Office of Human

Resources, No. 19-862 (2d Cir. Aug. 9, 2019), Dkt No. 41. NYSED opposes the motion.

          Federal Rule of Appellate Procedure 10(a)(1) provides that the record on appeal consists of

“the original papers and exhibits filed in the district court[.]” Rule 10(e), entitled “Correction or

Modification of the Record,” provides in relevant part that, “[i]f anything material to either party is

omitted from or misstated in the record by error or accident, the omission or misstatement may be

corrected and a supplemental record may be certified . . . by the court of appeals.”     Fed. R. App.

P. 10(e)(2)(C).     Rule 10(e)(2) “requires an appellant to provide evidence of an erroneous or

accidental omission of material evidence in order for the record to be supplemented.” Leibowitz

v. Cornell Univ., 445 F.3d 586, 592 n.4 (2d Cir. 2006). This Court will consider extra-record

evidence only in “extraordinary circumstances.” Int’l Bus. Machs. Corp v. Edelstein, 526 F.2d

37, 45 (2d Cir. 1975); see also Loria v. Gorman, 306 F.3d 1271, 1280 n.2 (2d Cir. 2002)

(“Ordinarily, material not included in the record on appeal will not be considered.”).
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         None of these requirements for supplementing the record on appeal has been met here.

These documents go to the merits of Bleichert’s claims; they are not relevant to the District Court’s

holding that it did not have subject-matter jurisdiction to address either Bleichert’s ADEA or

NYSHRL claims. We thus see no basis for granting Bleichert’s motion.

                                              *   *   *

         We have considered Bleichert’s remaining arguments and conclude that they are without

merit.   For the foregoing reasons, we AFFIRM the judgment of the District Court and DENY the

motion to supplement.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk of Court




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