     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


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 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.

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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




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