ADA Decisions, Toby Pilman, Plaintiff v New York City Housing Authority et al, Defendants., U.S. District Court, S.D. New York, 3 ADD ¶3-123, (Nov. 14, 1996)

OPINION AND ORDER

Sidney H. Stein, U.S. District Judge: Defendants New York City Department of Personnel and the New York City Civil Service Commissioner (“City Defendants”), have moved for an order pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) dismissing the complaint against them for lack of subject matter jurisdiction and for failure to state a claim.

The litigation, brought by pro se plaintiff Toby Pilman, alleges that she was improperly terminated by her former employer, defendant New York City Housing Authority, due to an alleged disability and because she filed a racial discrimination charge against one of her supervisors, all in violation of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §12101 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq.

The ADA and Title VII both prohibit discrimination by an employer. An “employer” is defined in Title VII as “a person engaged in an industry affecting commerce who has 15 or more employees … and any agent of such a person.” 42 U.S.C. §2000e(b). The ADA contains a similar definition. See 42 U.S.C. §12111(5)(A).

[Employment Relationship]

The question of whether an employment relationship exists in fact is determined primarily by whether the hiring party controls the manner and means by which work is performed; that test, known as “the control test,” involves such issues as who provides benefits, transfers, promotes, disciplines, establishes work schedules and directs work to be performed. See Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751, 109 S.Ct. 2166, 2178, 104 L.Ed.2d 811 (1989); Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 326, 112 S.Ct 1344, 1350, 117 L.Ed.2d 581 (1992) (Fair Labor Standards Act); Frankel v. Bally, Inc., [60 epd ¶42,053] 987 F.2d 86, 90 (2d Cir. 1993) (Age Discrimination in Employment Act).

In this case, it is conceded by defendant New York City Housing Authority that plaintiff was one of its employees. The Housing Authority—not the City Defendants—had control over plaintiff's compensation and all terms, conditions and privileges of her employment. N.Y. Public Housing Law §32(1). As a public authority, the Housing Authority has complete control over the hiring and firing of its employees, including hiring, transferring, promoting, disciplining, and directing work assignments. Collins v. Manhattan and Bronx Surface Operating Authority, 62 N.Y.2d 361, 368, 465 N.E.2d 811, 814, 477 N.Y.S.2d 91, 94 (1984), Nickels v. N.Y.C. Housing Authority, 163 Misc.2d 611, 614 n.1 (S.Ct. N.Y. Co. 1994) (rev'd on other grounds, 208 A.D.2d 203 (1st Dept. 1995)). The City Defendants did not control the terms of plaintiff's employment and are therefore not employers for purposes of the ADA or Title VII.

In response, plaintiff contends that the City Defendants were co-employers with the Housing Authority, but there is no factual support for that bald assertion. Accordingly,

IT IS HEREBY ORDERED that the motion of the City Defendants to dismiss the complaint as against those two entities is granted.