McNeil v. NYS Office of Substance Alcoholism & Substance Abuse Services et al

Filing 76

ORDER REGARDING REPORT AND RECOMMENDATIONS, For the foregoing reasons, the court SUSTAINS IN PART and OVERRULES IN PART Plaintiff's objections and ADOPTS IN PART the R&R. Defendants' Motion to Dismiss (Dkt. 52) is GRANTED IN P ART and DENIED IN PART. Plaintiff's Motion to Amend (Dkt. 42) is DENIED WITHOUT PREJUDICE. Plaintiff is GRANTED one final opportunity to file a revised proposed Second Amended Complaint. Plaintiff's deadline to file a revised proposed Second Amended Complaint is May 15, 2017. The Clerk of Court is respectfully DIRECTED to mail a copy of this Memorandum & Order to Plaintiff. So Ordered by Judge Nicholas G. Garaufis on 3/31/2017. (c/m to pro se plaintiff) (Lee, Tiffeny)

0/F

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

LUREEN MCNEIL,
Plaintiff,

MEMORAIVDUM & ORDER

14-CV-2379(NGG)
(CLP)

-againstNEW YORK STATE OFFICE OF SUBSTANCE
ALCOHOLISM AND SUBSTANCE ABUSE

SERVICES,etal.
Defendants.
-X

NICHOLAS G. GARAUFIS,United States District Judge.

On April 11,2014,Plaintiff Lureen McNeil, proceeding pro se, commenced this action
against Defendants New York State Office of Alcoholism and Substance Abuse Services
("OASAS"),a state agency; Arlene Gonzalez-Sanchez, individually and in her official capacity
as Commissioner of OASAS;and Karen Carpenter-Palumbo, individually and in her official

capacity as the former Commissioner of OASAS (collectively "Defendants"), alleging that
Defendants discriminated against Plaintiff on the basis of her race in violation of Title VII ofthe
Civil Rights Act of 1964, as codified,42 U.S.C. §§ 2000e, et seq. (See Compl.(Dkt. 1).) On

August 4,2014, Plaintiff amended her Complaint(the "Amended Complaint"). (See First Am.

Compl.("FAC")(Dkt. 6).) On March 7,2016, Defendants moved to dismiss the Amended
Complaint pursuant to Federal Rule of Civil Procedure 12(c)(Defs.' Mot. to Dismiss("Defs.

Mot.")(Dkt. 52)).^ Plaintiff opposed the motion (see Pl.'s Mem.in Opp'n ("PI. Opp'n)
(Dkt. 56))and separately moved to amend her complaint for a second time(Mot. to Amend
Compl.("PI. Mot.")(Dkt. 42)). Defendants opposed Plaintiffs Motion to Amend. (Defs.'

'
Defendants answered the Amended Complaint on November 5,2015. (Ans.(Dkt. 35).)
1

Reply in Supp. ofDefs. Mot.& Opp'n to PL's Mot. to Amend ("Defs. Reply & Opp'n")
(Dkt. 58).)

By Order dated November 16, 2016,the court referred Defendants' Motion to Dismiss
and Plaintiffs Motion to Amend to Magistrate Judge Cheryl L. Pollak for a Report and

Recommendation("R&R")pursuant to 28 U.S.C. § 636(b)(1)(B)and Federal Rule of Civil

Procedure 72(b)(1). (Order Referring R&R(Dkt. 69).) On March 9,2017,Judge Pollak issued
an R&R,recommending that Defendants' Motion to Dismiss be granted in part and denied in

part and that Plaintiffs Motion to Amend be granted in part and denied in part. (R&R(Dkt. 74)
at 1-2.) Plaintifffiled a timely objection to the R&R,indicating that she wishes to add additional
factual allegations and a demand for injunctive reliefto her proposed Second Amended
Complaint. (Resp. to R&R(Dkt. 75).)

For the following reasons. Plaintiffs objections are SUSTAINED IN PART and
OVERRULED IN PART and the R&R is ADOPTED IN PART. Defendants' Motion to Dismiss

the Amended Complaint is GRANTED IN PART and DENIED IN PART. Because Plaintiff has
advised the court of her intention to make further changes to her proposed Second Amended

Complaint, Plaintiffs Motion to Amend is DENIED WITHOUT PREJUDICE WITH LEAVE
TO REFILE. The court will not entertain repeated piecemeal amendments to Plaintiffs

Complaint. Accordingly, Plaintiff is afforded one last opportunity to revise her proposed
Complaint and move for leave to amend. If Plaintifffiles a new motion to amend. Defendants
will have an opportunity to file a response and argue that any new proposed amendments are
futile.

I.

BACKGROUND

A. Factual Bac^round
Plaintiff is a "BlaGk-American woman who has been employed by[OASAS]for nearly

27 years." (Compl.^ 2.) The court assumes familiarity with the facts ofthis case, as alleged in
Plaintiffs proposed Second Amended Complaint(the "Proposed SAC")and £is set forth in detail
in Judge Pollak's R&R.(S^ Proposed Second Am.Compl.("SAC")(Dkt. 42-1); R&R at 2-9.)
B. Procedural History

On March 7,2016, Defendants moved to dismiss the Amended Complaint, alleging that:

(1)Plaintiffs Title VII claims are barred by the applicable statute of limitations;(2)Plaintiff
cannot bring Title VII claims against Gonzalez-Sanchez and Carpenter-Palumbo because
individuals cannot be sued under Title VII; and (3)although Plaintiff does not formally allege a

cause of action under the New York State Human Rights Law (the "NYSHRL"),any such claims

are barred by the Eleventh Amendment.^ (Defs.' Mem.in Supp. of Mot. to Dismiss("Defs.
Mem.")(Dkt. 53).)

Shortly before Defendants served their initial brief in support oftheir Motion to Dismiss

the Amended Complaint, Plaintiff moved to amend the Complaint for a second time. (See Defs.'
Ltr.(Dkt. 43).) Plaintiff has filed a proposed Second Amended Complaint, seeking to:(1)add
new factual allegations;(2)name two additional defendants, Mary Ann DiChristopher,

individually and in her official capacity as Associate Commissioner of OASAS,and Ramon
Rodriguez, individually and in his official capacity as the former Director of New York City
Operations of OASAS (together with Gonzalez-Sanchez and Carpenter-Palumbo,the "Individual

^ Defendants argue in the preliminary statement to their Reply that the NYSHRL claims against Caipenter-Palumbo
and Gonzalez-Sanchez are barred by the applicable statute of limitations. (See Defs. Reply & Opp'n at 1.) But, as
the R&R notes. Defendants do not further discuss the statute of limitations under the NYSHRL. (See R&R at 58

n.13.) Because the R&R declines to address this issue and the Defendants have not objected to the R&R,the court

likewise declines to consider that potential defense.

Defendants"); and (3)remove certain claims and add new causes of action. (See SAC.)

Plaintiffs Amended Complaint asserts Title VII claims against OASAS,Gonzalez-Sanchez, and
Carpenter-Palumbo. (See generally FAC.) Plaintiffs Proposed SAC removes the Title VII
claims against the Individual Defendants but seeks to add the following causes ofaction:(1)a
claim for retaliation, in addition to discrimination, against OASAS,in violation of Title VII;(2)a

claim for discrimination and retaliation against OASAS and the Individual Defendants in their
official and personal capacities as aiders and abettors under the NYSHRL;(3)a claim ofrace
discrimination and retaliation in violation of42 U.S.C. § 1981 against OASAS and the

Individual Defendants in their individual and official capacities; and (4)claims ofequal

protection and due process violations under 42 U.S.C. § 1983 against the Individual Defendants.^
(SAC nil 148-170.)

In response to Plaintiffs Motion to Amend,Defendants argue that Plaintiffs new
allegations are conclusory and fail to assert plausible claims under Title VII, NYSHRL,and

Section 1983. (Defs. Reply & Opp'n at 9-12.) Defendants,therefore, maintain that Plaintiffs
amendments are futile and leave to amend should be denied. (Id. at 12.)

By Order dated November 16,2016, the court referred Defendants' Motion to Dismiss
and Plaintiffs Motion to Amend to Magistrate Judge Cheryl L. Pollak for an R&R. (Order

Referring R&R.) On March 9,2017, Judge Pollak issued an R&R,recommending that
Defendants' Motion to Dismiss the Amended Complaint be granted in part and denied in part
and that Plaintiffs Motion to Amend be granted in part and denied in part. (R&R at 1-2.)
Plaintiff timely filed a response to the R&R,asking the court to confirm the R&R but

noting that:(1)Plaintiff disagrees with the R&R's conclusion that Gonzalez-Sanchez "has not

^ Judge Pollak also interpreted the Proposed SAC to include hostile work environment claims under Title VII and
the NYSHRL. (See R&R at 36-43.)

been personally involved with the discrimination and retaliation" against Plaintiff and requests
leave to add new allegations against Gonzalez-Sanchez to her Complaint; and (2)in addition to
money damages, Plaintiff"ask[ed] the court to grant other reliefthat may be necessary and
proper" and seeks leave to further amend her Complaint to request that the court require
Defendants to "restore [her] to the position that[she] would have been in if[Defendants] had not
discriminated and retaliated against [her]" and declare that "[D]efendants' treatment of[her] was
unlawful." (Resp. to R&R at 1,) Defendants did not submit any objections to the R&R.
11.

LEGAL STANDARD

In reviewing an R&R regarding a dispositive matter from a magistrate judge, the district

court"may adopt those portions ofthe Report to which no objections have been made and which
are not facially erroneous." La Torres v. Walker. 216 F. Supp. 2d 157, 159(S.D.N.Y. 2000); see

Porter v. Potter. 219 F. App'x 112,113(2d Cir. 2007)(summary order)("[Fjailure to object
timely to a magistrate's report operates as a waiver of any further judicial review ofthe
magistrate's decision."); Gesualdi v. Mack Excavation & Trailer Serv.. Inc.. No. 09-CV-2502
(KAM)
(JO),2010 WL 985294, at *1 (E.D.N.Y. Mar. 15,2010)("Where no objection to the
[R&R]has been filed,the district court need only satisfy itself that there is no clear error on the
face ofthe record." (internal quotation marks and citation omitted)). The district court must
review de novo "those portions ofthe report...to which objection is made." 28 U.S.C.

§ 636(b)(1). However,to obtain this de novo review, an objecting party "must point out the
specific portions ofthe[R&R]to which they object." U.S. Flour Corp. v. Certified Bakerv. Inc.,

No. lO-CV-2522(JS)
(WDW),2012 WL 728227, at *2(E.D.N.Y. Mar. 6,2012); see also Fed.
R. Civ. P. 72(b)(2)("[A] party may serve and file specific written objections to the [R&R]."). If
a party "makes only conclusory or general objections, or simply reiterates his original arguments,

the Court reviews the[R&R]only for clear error." Pall Corp. v. Entegris. Inc.. 249 F.R.D. 48, 51
5

(E.D.N.Y. 2008)(citations omitted'): see also Mario v.P&C Food Mkts.. Inc., 313 F.3d 758,766
(2d Cir. 2002)(holding that plaintiffs objection to an R&R was "not specific enough" to

"constitute an adequate objection under... Fed. R. Civ. P. 72(b)"). Furthermore,"[a]n objection
to [an R&R]in its entirety does not constitute a specific written objection within the meaning of
Rule 72(b)." Healing Power. Inc. v. Ace Conf1 Exports. Ltd.. No.07-CV-4175(NGG)
(RLM),2008 WL 4693246, at *1 (E.D.N.Y. Oct. 17, 2008). "A decision is 'clearly erroneous'

when the Court is,'upon review ofthe entire record, left with the definite and firm conviction
that a mistake has been committed.'" DiPilato v. 7-Eleven. Inc.. 662 F. Supp. 2d 333,339-40
(S.D.N.Y. 2009)(quoting United States v. Snow.462 F.3d 55,72(2d Cir. 2006)).
III.

DISCUSSION

A. Plaintiffs Motion Seeking Leave to Amend to Add New Factual Allegations

Judge Pollak recommends that Plaintiff be granted leave to add factual allegations to her
Complaint. (R&R at 13.) No party has objected to this portion ofthe R&R,and the time to do
so has passed. See Fed. R. Civ. P. 72(b)(2). Finding no clear error, the court adopts this portion
ofthe R&R.

Porter, 219 F. App'x at 113.

Should Plaintiff choose to file a new proposed SAC,she is free to add any new

factual allegations that she wishes.'*
B. Judge Pollak's Recommendations Concerning Defendants' Motion To Dismiss
The Amended Complaint & Plaintiffs Other Proposed Amendments
Because Plaintiffs Proposed SAC "continues to assert claims that may be subject to
dismissal for the same reasons that the claims in the Amended Complaint were subject to

As a general matter, Judge Pollak recommends that this court find that further amendment ofPlaintiffs Complaint
will not cause undue prejudice or delay. (R&R at 13-16.) The court agrees with Judge Pollak's recommendation
but nonetheless denies Plaintiffs Motion to Amend without prejudice. The court filnds that Plaintiffshould be
afiforded another opportunity to revise and submit a consolidated proposed Second Amended Complaint so that the

parties can avoid fu^er piecemeal amendments.

challenge," Judge Pollak first addresses the Defendants' Motion to Dismiss "insofar as the
arguments raised are relevant to whether [PjlaintifPs amendments would be futile and subject to

dismissal." (R&R at 17.) In doing so, she analyzes the viability ofPlaintiffs claims in three

steps:(1)she examines whether Plaintiffs claims are barred by the Eleventh Amendment;(2)for
those claims that are not barred by the Eleventh Amendment,she analyzes whether Plaintiffs
factual allegations state a plausible claim to relief as to each cause ofaction; and(3)she
examines whether Plaintiffs Title VII claims are barred by the statute of limitations. This
Memorandum & Order is organized in the same manner.
1. Eleventh Amendment Immunity

Judge Pollak's recommendations concerning the application of Eleventh Amendment

immunity rest on the assumption that Defendant is only seeking monetary relief in this action.
(See generallv R&R.) In her response to the R&R,Plaintiff appears to disagree with this
interpretation ofthe Proposed SAC,however. (See Ltr.-Resp. to R&R at 1.)

My complaint asks the court to grant other relief that may be
necessary and proper. That could include requiring defendants to
restore me to the position that I would have been in [absent unlawful
discrimination] . . . I would like the chance to add this to my
complaint.

(Id.). Upon review ofPlaintiffs Proposed SAC,the court finds that Judge Pollak's
determination that the SAC alleges only a demand for monetary relief is sound. A catch-all

request for "such other and further relief as this Court deems necessary and proper"(SAC at 33)
does not constitute a demand for injunctive relief. The court will therefore analyze the R&R
consistent with this reading ofthe SAC.

Moreover,Plaintiffs belated request to modify her Complaint to seek injunctive relief is
not a proper "objection" to the R&R.

Rivera v. Federlin. No.08-CV-7293(PAC),2011 WL

6014012, at *3(S.D.N.Y. Dec. 2,2011)(finding that"new factual allegation[s]" raised for the

first time in an objection are not valid "objection[s]" and "will not be considered by the Court");
Forman v. Artuz. 211 F. Supp. 2d 415,418-19 n. 8(S.D.N.Y. 2000)(stating that "factual

assertions" may not be "properly raised" for the first time in an objection). Because Plaintiff
does not assert a valid objection, the court review this portion ofthe R&R for clear error,
a. Claims Barred bv the Eleventh Amendment

Judge Pollak recommends that this court find that the following claims are barred by the
Eleventh Amendment and therefore leave to amend to add these claims should be denied as

futile:(1)Plaintiffs proposed NYSHRL claims against OASAS and the Individual Defendants
in their official capacities;(2)Plaintiffs proposed Section 1981 claims against OASAS and the
Individual Defendants in their official capacities; and(3)Plaintiffs proposed Section 1983

claims against the Individual Defendants in their official capacities. (R&R at 29-30.) Finding no
clear error, the court adopts this portion of the R&R.
It is well-established that under the Eleventh Amendment,state agencies, like OASAS,

and state agents sued in their official capacity are, as a general rule,immune from suits brought
by private parties in federal court. See Woods v. Rondout Vallev Central Sch. Dist. Bd. of

Educ.. 466 F.3d 232,236(2d Cir. 2006). While there are certain exceptions to this rule,^ private
parties are prohibited under the Eleventh Amendment from bringing the following claims against
state agencies and/or state agents in their official capacities:(1)claims under the NYSHRL,see
Baez V. New York,629 F. App'x 116, 118(2d Cir. 2015)(summary order); Goonewardena v.
N.Y. State Workers' Comn. Bd.. No. 09-CV-8244(LTS)
(HBP),2011 WL 4822553, at *4

(S.D.N.Y. Oct. 5,2011);(2)Section 1981 claims, see Wang v. Office ofProf1 Med. Conduct.
N.Y.. 354 F. App'x 459,460(2d Cir. 2009)(summary order); Sulehria v. New York.

^ Private plaintiffs may bring Title VII claims against state agencies and state agents. See Fitzpatrick v. Bitzer.
427 U.S. 445,457(1976); Davis v. State Univ. of N.Y.. 802 F.2d 638,640 n.l (2d Cir. 1986).
8

No, 13-CV-6990(AGN),2014 WL 4716084, at *4(S.D.N.Y. Sept. 19, 2014); Buckley v. New
York. 959 F. Supp. 2d 282,294(RD.N.Y. 2013); and(3)Section 1983 claims seeking monetary

relief or non-prospective injunctive relief,^Edelman v. Jordan. 415 U.S.651,677(1974);
Braithwaite v. Kingsboro Psychiatric Ctr.. No.07-CV-127(NOG),2010 WL 3398962, at *2
(E.D.N.Y. Aug. 26,2010).

Accordingly,if Plaintiff seeks leave to add any of the following claims to her

Amended Complaint,leave to amend would be denied as futile insofar as Plaintiff seeks
exclusively monetary relief:

• NYSHRL claims against OASAS;^
• NYSHRL claims against the Individual Defendants in their official
capacities;

• Section 1981 claims against OASAS;

• Section 1981 claims against Individual Defendants in their official capacities;
and

• Section 1983 claims against the Individual Defendants in their official
capacities.
Because the issue was not briefed by the parties or at issue in the R&R,the court declines

to decide whether leave to amend to add any of these claims would be granted if Plaintiff
adds a demand for injunctive relief to her Amended Complaint. If Plaintiff files a new

proposed SAC with a demand for injunctive relief, Defendants may address this question
in their response to the new motion to amend.

^ Plaintiffnoted in her opposition to Defendants' Motion to Dismiss that she "does not dispute the dismissal of her
claim against... OASAS imder the NYSGHRL." (PI. Opp'n at 12 n.3.)

b. Claims Which Are Not Barred By The Eleventh Amendment

i.

Title VII Claims Against OASAS; NYSHRL and Section 1983 Claims
Against the Individual Defendants in Their Personal Capacities

Judge Pollak recommends that the court find that the following claims are not barred by
Eleventh Amendment immunity:(1)Plaintiffs Title VII claim against OASAS and (2)
Plaintiffs NYSHRL and Section 1983 claims against the Individual Defendants in their

individual capacities. (R&R at 30.) No party has objected to this portion ofthe R&R,and the
time to do so has passed. S^ Fed. R. Civ. P. 72(b)(2). Finding no clear error, the court adopts
this portion ofthe R&R.

As noted earlier in this Memorandum & Order, private plaintiffs may bring Title VII
claims against state agencies, like OASAS. See Fitzpatrick v. Bitzer. 427 U.S. 445,457(1976);

Davis V. State Univ. ofN.Y.. 802 F.2d 638,640 n.l (2d Cir. 1986). Moreover, Plaintiffs
NYSHRL and Section 1983 claims against the Individual Defendants in their individual

capacities are not barred because "[t]he Eleventh Amendment...provides no immunity for state
officials sued in their personal capacities." Dube v. State Univ. ofN.Y.. 900 F.2d 587, 595
(2d Cir. 1990)(emphasis added).

Accordingly,Plaintiff may properly bring her Title VII claim against OASAS.
Furthermore,should Plaintiff seek leave to further amend her Complaint to add claims

'
Defendants argue in their Motion to Dismiss that Plaintiff cannot bring Title VII claims against Gonzalez-Sanchez
and Carpenter-Palumbo because individuals cannot be sued under Title VII. Plaintiff notes in her opposition to
Defendants' Motion that she "does not dispute the dismissal of her claims against the [I]ndividual [D]efendants
under Title VII." (PI. Opp'n at 12 n.3.) Judge Pollak recommends,therefore, that this court find that Defendants'
argument in favor of dismissal is moot. (R&R at 24.) She further recommends that "[t]o the extent that [PJlaintiffs
Amended Complaint attempted to bring Title VII claims against the individual defendant Commissioners in either
their official or personal capacities, all ofthose claims are subject to dismissal." (Id at 24 n.6.) No party has
objected to this portion ofthe R&R,and the time to do so has passed. Finding no clear error, the court adopts this
portion ofthe R&R. It is settled law that "individuals are not subject to liability under Title VII." Wrighten v.
Glowski. 232 F.3d 119, 120(2d Cir. 2000)(per curiam). Accordingly, while it appears Plaintiff has withdrawn
these claims. Defendants' Motion to Dismiss is granted insofar as Plaintiff still seeks to bring Title VII claims
against Gonzalez-Sanchez and Carpenter-Palumbo.
10

against the Individual Defendants in their individual capacities under the NYSHRL and
Section 1983,leave to amend would not be denied as futile on Eleventh Amendment
grounds.

a.

Section 1981 Claims Against The Individual Defendants In Their Personal
Capacities

Judge Pollak fiirther recoimnends that Plaintiffs motion for leave to amend to add

Section 1981 claims against the Individual Defendants in their personal capacities be denied as
futile. (R&R at 27-28.) Judge Pollak explains that, pursuant to Jett v. Dallas Indep. Sch. Dist.
491 U.S. 701 (1989), race discrimination claims against state agencies or officials should be

brought under Section 1983,rather than Section 1981.^ (R&R at 27.) No party has objected to
this portion ofthe R&R,and the time to do so has passed. The court therefore reviews this
recommendation for clear error and,finding none, adopts this portion ofthe R&R.
Accordingly,if Plaintiff seeks leave to amend her Amended Complaint to add
Section 1981 claims against the Individual Defendants in their personal capacities, leave to
amend would be denied as futUe.
2. Failure to State a Claim

Having determined that Plaintiffs Title VII claim against OASAS,NYSHRL claims
against the Individual Defendants in their personal capacities, and Section 1983 claims against

the Individual Defendants in their personal capacities are legally cognizable. Judge Pollak next
analyzes whether Plaintiffs Proposed SAC "contains enough facts to state a claim to reliefthat

® The Supreme Court held in Jett that the "express cause of action for damages created by § 1983 constitutes the
exclusive federal remedy for violation ofthe rights guaranteed in § 1981 by state governmental units." 491 U.S.
at 733. Whether Jett was statutorily overruled by the 1991 amendment to subsection(c)of Section 1981(c), is an
unsettled question oflaw, which the Second Circuit has declined to address. See Howard v. City of N.Y..
602 F. App'x 545,546 n.l (2d Cir. 2015)
(summary order). In the absence ofa precedential holding regarding Jett*s

continuing validity, it is proper for this court to follow J^'s holding. See, e.g.. Goodwine v. City ofN.Y..
No. 15-CV-2868(JMF),2016 WL 3017398, at *4(S.D.N.Y. May 23, 2016).
11

is plausible on its face." See Ashcroft v. Iqbal, 556 U.S. 662,678(2009)(internal citations
omitted).
a. Title VII Claim Against OASAS

Judge Pollak recommends that this court find that Plaintiffs Proposed SAC contains

factual allegations, which,iftaken as true, state a prima facie case of discrimination on the basis
ofrace as well as plausible hostile work environment and retaliation claims under Title VII. (See
R&R at 33-33,42-43,45-46.) No party has objected to this portion ofthe R&R,and the time to
do so has passed. Finding no clear error, the court adopts this portion ofthe R&R.
Accordingly, if Plaintiff seeks leave to further amend her Complaint,it would be
proper for Plaintiff to include her Title VII claim against OASAS.
b. NYSHRL Claims Against The Individual Defendants In Their Personal
Capacities

I

NYSHRL Claims Against DiChristopher and Rodriguez

Judge Pollak recommends that this court find that Plaintiffs factual allegations in the
Proposed SAC,iftaken as true, state plausible claims against DiChristopher and Rodriguez
under the NYSHRL with respect to:(1)aiding and abetting discrimination(R&R at 35);(2)
creating a hostile work environment(R&R at 40-41); and(3)retaliating against Plaintiff after she

engaged in protected behavior(R&R at 46-47). No party has objected to these portions ofthe
R&R and,finding no clear error, the court adopts these portions ofthe R&R.
Accordingly,if Plaintiff seeks leave to further amend her Complaint to add

NYSHRL claims against DiChristopher and Rodriguez in their personal capacities and
includes those factual allegations included in the Proposed SAC,leave to amend to add
those claims would not be denied as futile.

12

il

NYSHRL Claim Against Carpenter-Palumbo

The R&R further recommends that this court find that Plaintiffs Proposed SAC does not
contain sufficient facts to support a plausible claim against Carpenter-Palumbo under the

NYSHRL.(R&R at 35, 40,46-47.) Because no one has objected to this conclusion in the R&R,
the court review it for clear error. Finding none,the court adopts this finding in the R&R.

Accordingly,if Plaintiff seeks leave to further amend her Complaint to add a
NYSHRL claim against Carpenter-Palumbo and includes only those factual allegations
included in the Proposed SAC,leave to amend would be denied as futile.
Hi.

NYSHRL Claim Against Gonzalez-Sanchez

The R&R similarly concludes that Plaintiffs Proposed SAC does not allege sufficient

facts to state a plausible claim against Gonzalez-Sanchez under the NYSHRL.(R&R at 35,40,
46-47.) Plaintiff objects to the R&R's findings on this point:

I respectfully disagree with the conclusion that Commissioner
Gonzalez-Sanchez has not been personally involved with the
discrimination and retaliation against me. In addition to the
allegations in the Second Amended Complaint, there are new
allegations about her recent treatment of me, which I made in a new
EEOC charge I filed in January 2017,and there are more since then.
I hope I will have an opportunity to add these new allegations
against Commissioner Gonzalez-Sanchez to my complaint at a later
time.

(Resp. to R&R at 1.) Because Plaintiffs objection is conclusory, it would normally only warrant
clear error review. S^ Pall. 249 F.R.D. at 51. Nonetheless, because Plaintiffis pro se. the court

will review the relevant portions ofthe R&R de novo. Plaintiffs objection is sustained in part
and overruled in part: the court finds that the Proposed SAC makes out plausible race
discrimination and hostile work environment claims against Gonzalez-Sanchez under the
NYSHRL but does not contain sufficient facts to sustain a retaliation claim against GonzalezSanchez.

13

1, Discrimination Claim

To establish a prima facie case for employment discrimination under NYSHRL,"a

plaintiff must show that(1)he is a member of a protected class;(2)he was qualified for the
position he held;(3)he suffered an adverse employment action; and(4)the adverse action took
place under circumstances giving rise to the inference of discrimination." Soloviev v. Goldstein,
104 F. Supp. 3d 232,247(E.D.N.Y. 2015)(internal citation omitted). In order to establish such
a claim against an individual defendant. Plaintiff must allege sufficient facts to show that the
individual "actually participate[d] in the conduct giving rise to a discrimination claim." See
Feingold v. New York. 366 F.3d 138, 157(2d Cir. 2004)(intemal citation omitted). Plaintiff

alleges that Gonzalez-Sanchez"removed Plaintiff from her New York City leadership role by

replacing her with Ramon Rodriguez(Hispanic)for no fair or objective reason."^ (SAC H 130.)
She further alleges that upon being demoted, Gonzalez-Sanchez sent an email to all staff at
OASAS,announcing that Plaintiff had been removed from her position. (Id H 126.) Plaintiff

alleges that the email was "perceived as being unprecedented and racist." (Id ^ 127.) The court

finds that the proposed SAC,read liberally given Plaintiffs pro se status, establishes a prima
facie claim of discrimination against Gonzalez-Sanchez.
Accordingly,if Plaintiff seeks leave to further amend her Complaint to add a

NYSHRL claim against Gonzalez-Sanchez for discrimination and includes those factual
allegations included in the Proposed SAC,leave to amend would not be denied as futile.
2. Retaliation Claim

In order to establish a prima facie claim ofretaliation, an employee must show "(1)
participation in a protected activity known to the defendant;(2)an employment action

^ Rodriguez assumed the position of Director ofNew York City Operations.(SAC ^ 125.)
14

disadvantaging the plaintiff; and (3)a causal connection between the protected activity and the
adverse employment action." Feineold. 366 F.3d at 156. In order to sufficiently make out her
retaliation claim, Plaintiff must show either that Gonzalez-Sanchez had "direct, personal
involvement" in the retaliation or that she "aided and abetted" the retaliation at issue. See

Zambrano-Lamhaouhi v. N.Y.C. Bd. ofEduc., 866 F. Supp. 2d 147, 162-63(E.D.N.Y. 2011)

(citing Feingold, 366 F.3d at 157-58). While Plaintiff has pleaded a series of actions that could
be seen as retaliation based on their proximity in time to her EEOC filing (see SAC

136-143),

Plaintiff has failed to allege that Gonzalez-Sanchez had any role in these acts. While Plaintiff

alleges that Gonzalez-Sanchez demoted her. Plaintiff has not tied this demotion to any protected

activity. (See SAC H 130). The Proposed SAC,as written, does not state a plausible claim under
the NYSHRL against Gonzalez-Sanchez for retaliation.
Accordingly,if Plaintiff seeks leave to amend her Complaint to add a NYSHRL
claim against Gonzalez-Sanchez for retaliation and includes only those factual allegations
included in the Proposed SAC,leave to amend would be denied as futile.
3. Hostile Work Environment

To make out a prima facie claim of hostile work environment under the NYSHRL,a
plaintiff"must show that the discriminatory harassment was sufficiently severe or pervasive to
alter the conditions ofthe victim's employment and create an abusive working environment, and
that a specific basis exists for imputing the objectionable conduct to the employer." Tolbert v.
Smith. 790 F.3d 427,439(2d Cir. 2015)(intemal quotation marks and citation omitted).

In

order to establish a claim against an individual defendant, plaintiffs must show that the

While a hostile working environment is typically shown "when the incidents of harassment occur either in concert
or with a regularity that can reasonably be termed pervasive," it"can also be established through evidence ofa
single incident ofharassment that is 'extraordinarily severe.'" See Fincher v. Depositorv Trust and Clearing Corp..
604 F.3d 712, 724(2d Cir. 2010)(internal citations omitted).
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individual "participated in creating a hostile work environment."

Feingold, 366 F.3d at 158.

Plaintiff alleges that Gonzalez-Sanchez sent a racist email to all OASAS staff members,
announcing that Plaintiff had been removed from her position. (SAC

126,127.) This

allegation, iftaken as true, establishes that Gonzalez-Sanchez contributed to creating a hostile
work environment.

Accordingly,if Plaintiff seeks leave to further amend her Complaint to add a hostile
work environment against Gonzalez-Sanchez and includes those factual allegations
included in the Proposed SAC,leave to amend would not be denied as futile.
c. Section 1983 Claims Against The Individual Defendants In Their Personal
Capacities

i.

Section 1983 Claim Against DiChristopher and Rodriguez
1, Due Process

Judge Pollak recommends that the court find that the Proposed SAC establishes a

plausible due process claim under Section 1983 against DiChristopher and Rodriguez. (R&R
at 57.) No party has objected to these portions ofthe R&R.
The court fmds that Plaintiffs Proposed SAC does not state a due process claim against

any ofthe Individual Defendants and therefore respectfully declines to adopt Judge Pollak's
recommendation on this point. In order to survive a motion to dismiss,"a due process claim
under section 1983 must allege the deprivation of a constitutionally protected interest."
Abramsonv. Pataki. 278 F.3d 93,99(2d Cir. 2002).

In order to have an interest protectable under the Constitution, a
person must have a legitimate claim of entitlement to it. ... An
abstract need, desire or unilateral expectation is not enough. . ..
Employees at will have no protectable property interest in their
continued employment.... But a protectable property interest may
arise in a situation where an employee may be removed only for
cause.... Indeed, in this circuit, a person may possess a protected
interest in public employment if contractual or statutory provisions
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guarantee continued employment absent 'sufficient cause' for
discharge or he can prove a de facto system oftenure.
Id.(internal citations omitted). Plaintiff has failed to allege any property interest in her position
and therefore has not made out a prima facie due process claim.

Accordingly,if Plaintiff seeks leave to further amend her Complaint to add a due
process claim against the Individual Defendants pursuant to Section 1983 and includes only
those factual allegations included in the Proposed SAC,leave to amend would be denied as
futile.

2. First Amendment Retaliation Claim

Judge Pollak further recommends that the court find that Plaintiffs Proposed SAC
establishes plausible retaliation claims under Section 1983 against DiChristopher and Rodriguez.
(R&R at 57-58.) No party has objected to these portions ofthe R&R;therefore, the court

reviews this portion ofthe R&R for clear error. Finding none,the court adopts this portion ofthe
R&R.

Accordingly,if Plaintiff seeks leave to further amend her Complaint to add a First
Amendment retaliation claim against DiChristopher and Rodriguez pursuant to Section
1983 and includes those factual allegations included in the Proposed SAC,leave to amend
would not be denied as futile.

3. Equal Protection

Judge Pollak further recommends that the court find that Plaintiffs Proposed SAC

establishes plausible equal protection claims under Section 1983 against DiChristopher and
Rodriguez. (R&R at 57-58.) No party has objected to these portions ofthe R&R;therefore, the
court reviews this portion ofthe R&R for clear error. Finding none,the court adopts this portion
ofthe R&R.

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Accordingly,if Plaintiff seeks leave to further amend her Complaint to add an equal

protection claim against DiChristopher and Rodriguez pursuant to Section 1983,and
includes those factual allegations included in the Proposed SAC,leave to amend would not
be denied as futile.

il

Section 1983 Claim Against Carpenter-Palumbo

Judge Pollak further recommends that the court find that the Proposed SAC fails to allege
sufficient facts to show that Carpenter-Palumbo was "personally involved" in the alleged
constitutional violations that occurred in this case(R&R at 56), as required to sustain a Section

1983 claim against an individual defendant. S^ Rasnardo v. Carlone. 770 F.3d 97,115(2d
Cir. 2014)("If a defendant has not personallv violated a plaintiffs constitutional rights, the
plaintiff cannot succeed on a § 1983 action against the defendant."). Because no party has

objected to this conclusion in the R&R,the court review it for clear error. Finding none,the
court adopts this portion ofthe R&R.

Accordingly,if Plaintiff seeks leave to further amend her Complaint to add a

Section 1983 claim against Carpenter-Palumbo and includes only those factual allegations
included in the Proposed SAC,leave to amend would be denied as futile.
Hi.

Section 1983 Claim Against Gonzalez-Sanchez

Judge Pollak similarly recommends that the court find that the Proposed SAC fails to
allege sufficient facts to show that Gonzalez-Sanchez was "personally involved" in the alleged
constitutional deprivations at issue here. (R&R at 56.) Plaintiff objects to the "conclusion that
Commissioner Gonzalez-Sanchez has not been personally involved with the discrimination and

retaliation against [Plaintiff]." (Resp. to R&R at 1.) Because Plaintiffs objection is conclusory,
it would normally only warrant clear error review. S^ Pall, 249 F.R.D. at 51. Nonetheless,

because Plaintiffis proceeding pro se. the court reviews the relevant portions ofthe R&R^
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novo. Plaintiffs objection is sustained in part and overruled in part: the court finds that the

Proposed SAC does not state a prima facie due process or retaliation claim under Section 1983
but does make out a plausible equal protection claim against Gonzalez-Sanchez.
1. Due Process

For the reasons stated supra in Section IILB.2.c.i.l, the court finds that Plaintiffs

Proposed SAC does not state a due process violation as to any ofthe Individual Defendants.
Accordingly,if Plaintiff seeks leave to further amend her Complaint to add a due
process claim against the Individual Defendants pursuant to Section 1983 and includes only
those factual allegations included in the Proposed SAC,leave to amend would be denied as
futile.

2. First Amendment Retaliation Claim

The court finds that the factual allegations in Plaintiffs Proposed SAC fail to establish
that Gonzalez-Sanchez retaliated against Plaintiff because Plaintiff exercised her First

Amendment rights. Specifically, Plaintiff has not established that a "causal connection" exists
between her speech—e^g.,Plaintiffs complaints about discriminatory conduct towards her—and
Gonzalez-Sanchez's demotion ofPlaintiff S^ Diesel v. Town of Lewisboro, 232 F.3d 92, 107

(2d Cir. 2000)(holding that a plaintiff must establish that "there was a causal connection
between the protected speech and the adverse employment action").

Accordingly,if Plaintiff seeks leave to further amend her Complaint to add a First
Amendment retaliation claim against Gonzalez-Sanchez pursuant to Section 1983 and

includes only those factual allegations included in the Proposed SAC,leave to amend would
be denied as futile.

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3. Equal Protection

The court finds that Plaintiffs Proposed SAC establishes a prima facie equal protection
claim against Gonzalez-Sanchez. To establish a prima facie equal protection claim, a plaintiff
must demonstrate "(1)that he belonged to a protected class;(2)that he was qualified for the
position he held;(3)that he suffered an adverse employment action; and(4)that the adverse

employment action occurred under circumstances giving rise to an inference of discriminatory
intent." Sassaman v. Gamache.566 F.3d 307,312(2d Cir. 2009)(outlining elements of Title

VII claim);

Feingold. 366 F.3d at 159(holding where "color of state law is established, an

equal protection claim "parallels [a] Title VII [employment discrimination] claim"). Plaintiff
alleges that Gonzalez-Sanchez"removed Plaintifffrom her New York City leadership role by

replacing her with Ramon Rodriguez(Hispanic)for no fair or objective reason." (SAC H 130.)
She further alleges that, upon being demoted, Gonzalez-Sanchez sent a racist email to all staff at
OASAS,announcing that Plaintiff had been removed from her position. (Id,^ 126.) The court

finds that the Proposed SAC,read liberally given Plaintiffs pro se status, establishes a prima

facie equal protection claim against Gonzalez-Sanchez under Section 1983.^*
Accordingly,if Plaintiff seeks leave to further amend her Complaint to add an equal
protection claim against Gonzalez-Sanchez pursuant to Section 1983 and includes those
factual allegations included in the Proposed SAC,leave to amend would not be denied as
futile.

"Read liberally, the Proposed SAC establishes that the deprivations she alleges were under "color of state law"
because Gonzalez-Sanchez was acting in her role as Commissioner of OASAS when she demoted Plaintiff. See
Feingold. 366 F.Sd at 159.

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3. Statute of Limitations

Judge Pollak recommends that Defendants' Motion to Dismiss the Title VII claims as

barred by the 300-day filing period "be denied due to disputed issues offact concerning whether
the discrimination, hostile work environment, and retaliation alleged constitute a continuing

violation." (R&R at 68.) No party has objected to this portion ofthe R&R,and the time to do so
has passed. Finding no clear error, the court adopts this portion ofthe R&R.
Accordingly,Defendants' motion to dismiss the Title VII claims as time-barred is
denied.
IV.

CONCLUSION

For the foregoing reasons, the court SUSTAINS IN PART and OVERRULES IN PART
Plaintiff's objections and ADOPTS IN PART the R&R. Defendants' Motion to Dismiss
(Dkt. 52)is GRANTED IN PART and DENIED IN PART. Plaintiffs Motion to Amend

(Dkt. 42)is DENIED WITHOUT PREJUDICE. Plaintiff is GRANTED one fmal opportunity
file a revised proposed Second Amended Complaint. Plaintiff's deadline to file a revised
proposed Second Amended Complaint is May 15, 2017.

The Clerk of Court is respectfully DIRECTED to mail a copy ofthis Memorandum &
Order to Plaintiff.
SO ORDERED.

s/Nicholas G. Garaufis
Dated: Brooklyn, New York

NICHOLAS G. GARAUFL

March 3/ ,2017

United States District Judge

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