Lener v. Hempstead Public Schools et al

Filing 31

ORDER granting 21 Motion for Summary Judgment. For the reasons set forth herein, the Court grants defendants motion for summary judgment on the 42 U.S.C. § 1983 claims in its entirety, but the Court will allow plaintiff to file an amended complaint asserting claims under the ADA. Therefore, defendant Brown is dismissed from this action. The amended complaint shall be due within fourteen (14) days. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/23/2014. (Chipev, George)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 12-CV-3340 (JFB)(SIL)
_____________________

SUSAN LENER,
Plaintiff,
VERSUS

HEMPSTEAD PUBLIC SCHOOLS AND JULIUS BROWN,
Defendants.
___________________
MEMORANDUM AND ORDER
September 23, 2014
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff Susan Lener (“Lener” or
“plaintiff”) brings this 42 U.S.C. § 1983
action against defendants Hempstead Public
Schools (“the District”)1 and Julius Brown
(“Brown”), alleging unlawful discrimination
on the basis of race, religion, and disability,
in violation of the Equal Protection Clause
of the United States Constitution.2 Plaintiff
alleges that defendants discriminated against
her when they (1) issued letters and negative
performance evaluations based on her poor
attendance and punctuality; (2) refused to
allow her to work during the summer of

2011; and (3) issued her a reprimand
regarding an alleged incident with a
student.3
Defendants now move for summary
judgment pursuant to Federal Rule of Civil
Procedure 56, arguing that (1) plaintiff
cannot establish a prima facie case of
unlawful discrimination based on race or
religion, much less show pretext, because
she suffered no adverse employment actions
and none of the events at issue occurred
under circumstances giving rise to an
inference of discrimination; (2) the claim of
disability discrimination under the Equal
Protection Clause fails as a matter of law;

1

The District’s correct legal name is the Hempstead
Union Free School District.
2

In her complaint, plaintiff asserted a claim for
unlawful discrimination in violation of N.Y. Exec.
Law §§ 290 et seq. (“NYSHRL”). In a stipulation so
ordered by this Court on August 22, 2012, plaintiff
withdrew the claim without prejudice to reasserting it
after complying with New York’s notice of claim
provisions. (Stipulation, Docket No. 7.) Plaintiff
never reasserted the NYSHRL claim.

3

Defendants’ motion addresses other allegedly
adverse employment actions, including the lack of
pay for volunteering to learn a computer program.
(See Def. Mem., at 6–8; Compl. ¶ 21.) In her
opposition, however, plaintiff only addresses these
three incidents. Accordingly, the Court concludes
that plaintiff is not relying on other allegedly adverse
employment actions, and shall only focus on the
incidents discussed in the opposition.

ADA. Plaintiff has submitted evidence to
support those claims, including, inter alia:
(1) an alleged statement by Brown that “a
person absent ten days or more with
documentation would get a needs
improvement in the area of attendance, and
in any of those collateral areas that are
affected by attendance”; (2) Brown’s alleged
threat to plaintiff in 2009 that, if she needed
a “504 accommodation,” she “shouldn’t be
working in Hempstead” and “had to look for
another job”; (3) the Principal’s testimony
that he did not remember plaintiff having
attendance issues before 2011; and (4) the
June 10, 2011 negative evaluation, which
plaintiff asserts was based solely on her
absences while she was on sick leave. The
Court concludes that the evidence in the
record, when construed most favorably to
plaintiff, is sufficient to create a genuine
issue of fact as to plaintiff’s proposed ADA
claims, and such claims are not futile.
Moreover, the District suffers no prejudice
from the amendments, because the issues
regarding these claims were explored fully
in discovery in the context of the § 1983
claims. Accordingly, the Court will permit
plaintiff to file an amended complaint
containing ADA claims for disability
discrimination and failure to accommodate,
as related to the aforementioned events.

(3) the District is not liable under Monell;
and (4) there is no evidence that Brown
discriminated against plaintiff.
For the reasons set forth herein, the
Court grants the motion for summary
judgment on the Section 1983 claims in its
entirety. First, with respect to the § 1983
claims based upon race and religion, there
simply is insufficient evidence in the record
from which a rational jury could find that
any adverse action was based upon
plaintiff’s race or religion. Second,
plaintiff’s attempt to bring a disability
discrimination claim and a failure to
accommodate claim under § 1983, rather
than under the Americans with Disabilities
Act (“ADA”), 42 U.S.C. §§ 12101 et seq.,
fails as a matter of law. To the extent that
plaintiff attempts to re-cast these claims as
“class
of
one”
and/or
“selective
enforcement” claims, those claims also
cannot survive summary judgment.
However, given the Court’s ruling that
the disability-related claims were not
cognizable under § 1983, the Court allowed
plaintiff to argue that she should be given
the opportunity to amend her complaint to
re-assert such claims under the ADA.
Defendants submitted a supplemental
memorandum, arguing that summary
judgment would be warranted on any such
proposed claims. Having reviewed the
supplemental submissions, the Court, for the
reasons set forth herein, concludes that the
amendment should be allowed because such
claims are not futile; instead, they are
plausible claims that, construing the
evidence most favorably to plaintiff, would
survive summary judgment. Specifically,
plaintiff asserts that the negative evaluation
(resulting from absences arising from her
medical condition), the subsequent denial of
the opportunity to work four days during the
summer of 2011, and the failure to provide a
reasonable accommodation, violated the

I.

BACKGROUND

A. Factual Background
The Court takes the following facts from
the parties’ affidavits, depositions, exhibits,
and Rule 56.1 Statements of Fact. The Court
construes the facts in the light most
favorable to the nonmoving party. See
Capobianco v. City of New York, 422 F.3d
47, 50 (2d Cir. 2005). Although the Rule
56.1 statements contain specific citations to
the record, the Court cites to the statements
rather than to the underlying citations.
Unless otherwise noted, where a Rule 56.1
2

Specifically, Lener testified that, after
meetings regarding a “504 accommodation”
for her diagnosis, Brown commented that if
plaintiff needed such an accommodation,
she “shouldn’t be working in Hempstead,”
and “had to look for another job.” (Pl. 56.1
¶¶ 16.1–16.4) Brown denies making this
statement. (Def. 56.1 ¶ 31.) Plaintiff also did
not request an accommodation after taking
approximately two months off during the
2010–2011 academic year. (Id. ¶ 17.) She
testified that she did not do so because she
“was worried about [her] job considering
Mr. Brown was still in a supervisory
capacity in the district.” (Pl. 56.1 ¶ 17.1.)

statement is cited, that fact is undisputed or
the opposing party has not pointed to any
contradictory evidence in the record.
Plaintiff, a Caucasian female who has
been employed by the District as a guidance
counselor since 1990, is the only Jewish
guidance counselor at Alverta B. Gray
Schultz Middle School. (Def. 56.1 ¶¶ 12–13;
Pl. 56.1 ¶¶ 13.2, 64.) Brown, a Black male,
was the Principal of that school from 2004
to 2007; then Assistant Superintendent for
Secondary Education; and, at the time
plaintiff filed her complaint, the Assistant
Superintendent for Personnel. (Def. 56.1
¶ 3.) Since January 2013, Brown has been
the Deputy Superintendent. (Pl. 56.1 ¶ 45.)

2. Attendance and Punctuality Issues
Lener’s employment file includes fifteen
letters dating from 2002 through 2010 that
address plaintiff’s attendance, punctuality,
and absenteeism.4 (Def. 56.1 ¶ 19; see
Attendance Letters, Def. Ex. K.) She was
not permitted to work during the summer in
2009 and 2010 because of her attendance
during those school years. (Def. 56.1 ¶ 24.)
Those denials are not the basis of plaintiff’s
discrimination claims.

1. Disability Accommodations
Plaintiff has depression and attention
deficit hyperactivity disorder (“ADHD”).
(Def. 56.1 ¶ 14.) Her psychiatrist, Dr. Marc
Reitman (“Dr. Reitman”), informed
defendants of these conditions on May 28,
2009. (Pl. 56.1 ¶ 14.1.) In a letter, Dr.
Reitman wrote: “The combination of these
two disorders have led to difficulties with
attendance at work at times,” because “[h]er
symptoms of sleep disturbance make it
extremely challenging to awaken in the
morning on time and arrive at work at the
expected hour,” particularly “due to the
medication changes and the impact on her
symptoms.” (2009 Reitman Letter, Def. Ex.
J.) Dr. Reitman also requested that plaintiff
be allowed accommodations at work. (Id.)

Instead, plaintiff takes issue with the
District’s actions during the 2010–2011
year, when she took two months off without
requesting a leave of absence and was “just
out.” (Def. 56.1 ¶ 33; see Deposition of
Susan Lener (“Lener Dep.”), Def. Ex. C, at
88–89 (stating that she did not take a leave
of absence but used sick days for about two
months in spring 2011); 2010–2011
Evaluation, Def. Ex. L (indicating that
plaintiff took thirty-nine sick days during the
academic year).) Lener testified that she was
absent because of her depression, which

Plaintiff, however, never communicated
a request for an accommodation for her
ADHD. (Def. 56.1 ¶ 15; see Pl. Responses
to First Request for Production, at Response
No. 8, Def. Ex. F.) She also never asked for
an accommodation for her depression after
its diagnosis in 2008. (Def. 56.1 ¶ 16.) She
claims she did not request accommodations
because Brown said that plaintiff may lose
her job if she did so. (Pl. 56.1 ¶ 15.1.)

4

The alleged adverse employment actions related to
the disability discrimination claim concern the 2010–
2011 academic year and the summer thereafter, not
the attendance letters—all of which were provided to
plaintiff before the 2010–2011 academic year.
3

causes her to suffer from sleep disorders,
melancholy, anxiety, and mood changes. (Pl.
56.1 ¶ 19.3.) Dr. Reitman wrote letters to the
District on April 1, 2011, and May 20, 2011,
requesting that Lener’s absence be allowed
because of her treatment and changes in her
medication. (Reitman 2011 Letters, Pl. Exs.
G, I; Def. Exs. P, Q.) Plaintiff also was
absent an additional seventeen days without
providing a reason. (Def. 56.1 ¶ 34.) Thus,
she concedes that not all of her absences
have been because of her ADHD or
depression. (Pl. 56.1 ¶ 38.) She also was
absent for Jewish holidays and other medical
issues.5 (Id. ¶ 38.1.)

Dep.”) at 25, Pl. Ex. E.) Plaintiff complains
that, as a result, she was (at first) denied the
opportunity to work along with other
guidance counselors over the summer of
2011, as well. (Def. 56.1 ¶ 22.) According to
Brown, plaintiff’s attendance issues justified
the denial. (Pl. 56.1 ¶ 22.2.) Brown even
asked Principal Williams, “With her
attendance pattern, do you really want to do
this?” (Id. ¶ 22.3) After appealing, Lener
ultimately was authorized to work during the
summer, but she only worked six of the ten
days because of the delay in authorization.
(Id. ¶ 23.) Plaintiff asserts that this denial of
work was an adverse employment action.

Subsequently, plaintiff received a
negative evaluation of “Unsatisfactory”
from Principal Henry Williams for the
2010–2011 year because of her absenteeism,
despite meriting satisfactory marks in the
other evaluation categories.6 (Def. 56.1 ¶ 35;
Pl. 56.1 ¶ 35.1; see Evaluation, Def. Ex. L.)
Plaintiff claims that this mark stemmed from
Brown’s policy that “a person absent ten
days or more with documentation would get
a needs improvement in the area of
attendance and in any of those collateral
areas that are [a]ffected by attendance.”7
(Deposition of Julius Brown (“Brown

Although plaintiff claims that she was
threatened with a hearing because of her
absences (Pl. 56.1 ¶ 20.1), the District never
issued any charges and specifications
against her pursuant to New York Education
Law § 3020 (Def. 56.1 ¶ 21).
3.

Incident with Student

On May 14, 2009, plaintiff was in her
office with a sixth grade special education
student when he attempted to sit on the arm
of her chair. (Pl. 56.1 ¶ 55.) Plaintiff told the
student that he was not supposed to be
sitting on the chair. (Id. ¶ 56.) After the
incident, plaintiff met with Assistant
Principal Eldorado Burke-McNair, a Black
woman, and given a letter regarding the
issue even though plaintiff explained what
had happened. (Id. ¶ 57.) In June 2009,
Williams told plaintiff that the memorandum
would be removed from her file because it
was meritless. (Id. ¶¶ 60, 62.) Plaintiff
contends that Brown has purposefully kept
the letter in the file. (Id. ¶ 61.) She also
claims that her performance has been
affected from increased stress and anxiety
stemming from her coworkers’ knowledge
about the alleged incident. (Id. ¶ 63.)

5

Plaintiff testified that coworkers made comments
about her because she took off certain Jewish
holidays. (Def. 56.1 ¶ 28.) She also testified that
coworkers said, “You don’t get your work done, you
don’t come to meetings so you don’t know what’s
going on, should other people have to do you[r] work
when I was doing my work.” (Id. ¶ 29.)
6

In preparing the evaluation, Williams did not review
Dr. Reitman’s notes, although he knew plaintiff was
absent because of “something medical.” (Pl. 56.1
¶ 35.10; Deposition of Henry Williams (“Williams
Dep.”), Pl. Ex. D, at 36, 50–51.) He also did not
know that plaintiff had attendance issues before that
academic year. (Id. ¶ 37.)
7

Brown’s policy, on its face, does not distinguish
between absences taken for legitimate reasons and
absences taken without any reason.

There is no evidence that, as a result of
her absenteeism or any other reason,
4

II.

plaintiff has been terminated from her
position with the District, that plaintiff has
been denied any pay raises, or that plaintiff
has been denied any other work
opportunities other than the alleged four
days of summer 2011 work detailed supra.
4.

Pursuant to Federal Rule of Civil
Procedure 56(a), a court may grant a motion
for summary judgment only if “the movant
shows that there is no genuine dispute as to
any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ.
P. 56(a); Gonzalez v. City of Schenectady,
728 F.3d 149, 154 (2d Cir. 2013). The
moving party bears the burden of showing
that he is entitled to summary judgment. See
Huminski v. Corsones, 396 F.3d 53, 69 (2d
Cir. 2005). “A party asserting that a fact
cannot be or is genuinely disputed must
support the assertion by: (A) citing to
particular parts of materials in the record,
including
depositions,
documents,
electronically stored information, affidavits
or declarations, stipulations (including those
made for purposes of the motion only),
admissions, interrogatory answers, or other
materials; or (B) showing that the materials
cited do not establish the absence or
presence of a genuine dispute, or that an
adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). The court “‘is not to weigh the
evidence but is instead required to view the
evidence in the light most favorable to the
party opposing summary judgment, to draw
all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.’” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)
(summary judgment is unwarranted if “the
evidence is such that a reasonable jury could
return a verdict for the nonmoving party”).

EEOC Proceedings

The Equal Employment Opportunity
Commission (“EEOC”) received plaintiff’s
charge, which raised claims under Title VII
of the Civil Rights Act of 1964 and the
ADA, on April 23, 2012. (EEOC Charge,
Def. Ex. N.) The EEOC issued plaintiff a
right-to-sue letter on July 11, 2012. (Notice
of Right-to-Sue Letter, Def. Ex. O.)
B.

STANDARD OF REVIEW

Procedural Background

Plaintiff filed this action in the Supreme
Court of the State of New York, County of
Nassau, on May 23, 2012. The action was
removed to this Court on July 5, 2012. On
August 22, 2012, this Court so ordered a
stipulation dismissing plaintiff’s state law
claim without prejudice. Defendants then
answered the complaint on August 3, 2012.
On January 7, 2014, defendants moved
for summary judgment. Plaintiff opposed on
March 18, 2014. Defendants replied on
March 28, 2014. The Court held oral
argument on May 6, 2014. During oral
argument, the Court requested supplemental
briefing regarding the possibility of plaintiff
amending the complaint to assert an ADA
claim. On May 6, 2014, plaintiff informed
the Court that plaintiff had filed her EEOC
charge on April 18, 2012, and received a
right-to-sue letter on September 26, 2012.
Defendants then filed a supplemental brief
opposing the amendment on May 19, 2014.
Plaintiff responded on June 2, 2014, and
defendants replied on June 5, 2014. The
matter is fully submitted, and the Court has
considered all of the parties’ submissions.

Once the moving party has met its
burden, the opposing party “‘must do more
than simply show that there is some
metaphysical doubt as to the material
facts . . . . [T]he nonmoving party must
5

Nonetheless, “summary judgment
remains available for the dismissal of
discrimination claims in cases
lacking genuine issues of material
fact.” McLee v. Chrysler Corp., 109
F.3d 130, 135 (2d Cir. 1997); see
also Abdu-Brisson v. Delta Air
Lines, Inc., 239 F.3d 456, 466 (2d
Cir. 2001) (“It is now beyond cavil
that summary judgment may be
appropriate even in the fact-intensive
context of discrimination cases.”).

come forward with specific facts showing
that there is a genuine issue for trial.’”
Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (alteration and emphasis in
original) (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574,
586–87 (1986)). As the Supreme Court
stated in Anderson, “[i]f the evidence is
merely colorable, or is not significantly
probative, summary judgment may be
granted.” 477 U.S. at 249–50 (citations
omitted). Indeed, “the mere existence of
some alleged factual dispute between the
parties alone will not defeat an otherwise
properly supported motion for summary
judgment.” Id. at 247–48 (emphasis in
original). Thus, the nonmoving party may
not rest upon mere conclusory allegations or
denials but must set forth “‘concrete
particulars’” showing that a trial is needed.
R.G. Grp., Inc. v. Horn & Hardart Co., 751
F.2d 69, 77 (2d Cir. 1984) (quoting SEC v.
Research Automation Corp., 585 F.2d 31, 33
(2d Cir. 1978)). Accordingly, it is
insufficient for a party opposing summary
judgment “‘merely to assert a conclusion
without supplying supporting arguments or
facts.’” BellSouth Telecomms., Inc. v. W.R.
Grace & Co., 77 F.3d 603, 615 (2d Cir.
1996) (quoting Research Automation Corp.,
585 F.2d at 33).

Schiano v. Quality Payroll Sys., 445 F.3d
597, 603 (2d Cir. 2006) (quoting Holtz v.
Rockefeller & Co., 258 F.3d 62, 69 (2d Cir.
2001)).
III.
A.

DISCUSSION

Race and Religion Discrimination

Defendants
argue
that
summary
judgment is warranted on the race and
religion discrimination claim under 42
U.S.C. § 1983 because plaintiff cannot
establish a prima facie case of
discrimination. Defendants also argue that,
even assuming plaintiff established a prima
facie case, she has failed to come forward
with evidence from which a reasonable jury
could conclude that defendants’ legitimate
reason for any actions taken against
plaintiff—her attendance—was a pretext for
discrimination. For the reasons discussed
below, the Court concludes that these claims
cannot survive summary judgment.

The Second Circuit has provided
additional guidance regarding summary
judgment motions in discrimination cases:
We have sometimes noted that an
extra measure of caution is merited
in affirming summary judgment in a
discrimination action because direct
evidence of discriminatory intent is
rare and such intent often must be
inferred
from
circumstantial
evidence found in affidavits and
depositions. See, e.g., Gallo v.
Prudential Residential Servs., 22
F.3d 1219, 1224 (2d Cir. 1994).

1. Legal Standard
Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000 et seq. (“Title VII”)
prohibits discrimination against an employee
based on her gender, race, or national origin.
See 42 U.S.C. § 2000e-2(a). Claims of
discrimination brought under Section 1983
are analyzed using the same framework as
claims brought under Title VII, and the
6

legitimate, non-discriminatory reason for the
employment decision.” Stratton, 132 F.3d at
879; see also Reeves v. Sanderson Plumbing
Prods. Inc., 530 U.S. 133, 142–43 (2000).
“The purpose of this step is to force the
defendant to give an explanation for its
conduct, in order to prevent employers from
simply remaining silent while the plaintiff
founders on the difficulty of proving
discriminatory intent.” Stratton, 132 F.3d at
879 (citation and internal quotation marks
omitted). Third, if the employer articulates a
nondiscriminatory reason for its actions, the
presumption of discrimination is rebutted
and it “simply drops out of the picture.” St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
510-11 (1993); see also James v. N.Y.
Racing Ass’n, 233 F.3d 149, 154 (2d Cir.
2000). The burden then shifts back to the
plaintiff to show, without the benefit of any
presumptions, that a reasonable jury could
conclude that more likely than not the
employer’s actions were motivated, at least
in part, by a discriminatory reason. See
James, 233 F.3d at 154; Connell v. Consol.
Edison Co. of N.Y., Inc., 109 F. Supp. 2d
202, 207 (S.D.N.Y. 2000).

outcome in each instance will be the same as
the outcome under Title VII. Zagaja v. Vill.
of Freeport, No. 10-cv-3660(JFB)(WDW),
2012 WL 5989657, at *15 n.6 (E.D.N.Y.
Nov. 20, 2012) (citing, inter alia, Kearny v.
Cnty. of Rockland ex rel. Vanderhoef, 185 F.
App’x 68, 70 (2d Cir. 2006) (holding that
plaintiff’s “equal protection claim pursuant
to 42 U.S.C. § 1983 for age-based
employment discrimination fails for the
same reasons that her ADEA and NYSHRL
claims fail” under McDonnell Douglas
analysis)). As relevant here, plaintiff claims
that defendants discriminated against her on
the basis of her race and religion.
The “ultimate issue” in any employment
discrimination case is whether the plaintiff
has met her burden of proving that the
adverse employment action was motivated,
at least in part, by an “impermissible
reason,” i.e., that there was discriminatory
intent. Fields v. N.Y. State Office of Mental
Retardation & Developmental Disabilities,
115 F.3d 116, 119 (2d Cir. 1997). In the
absence of direct evidence of discrimination,
a plaintiff in an employment discrimination
case must satisfy the three-step McDonnell
Douglas test.

To meet this burden, the plaintiff may
rely on evidence presented to establish her
prima facie case as well as additional
evidence. Such additional evidence may
include direct or circumstantial evidence of
discrimination. Desert Palace, Inc. v. Costa,
539 U.S. 90, 99–101 (2003). It is not
sufficient, however, for a plaintiff merely to
show that she satisfies “McDonnell
Douglas’s minimal requirements of a prima
facie case” and to put forward “evidence
from which a factfinder could find that the
employer’s explanation . . . was false.”
James, 233 F.3d at 157. Instead, the
question is whether there is sufficient
evidence in the record from which a
reasonable trier of fact could find in favor of
plaintiff on the ultimate issue, that is,
whether the record contains sufficient

First, the plaintiff must establish a prima
facie case of unlawful discrimination by
showing that (1) she is a member of a
protected class (2) who performed her job
satisfactorily (3) but suffered an adverse
employment action (4) under circumstances
giving rise to an inference of discrimination
(or retaliation). See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 & n.13
(1973) (noting that elements of a prima facie
case
vary
depending
on
factual
circumstances); Stratton v. Dep’t for the
Aging for N.Y.C., 132 F.3d 869, 879 (2d Cir.
1997). Second, if the plaintiff establishes a
prima facie case, “a rebuttable presumption
of discrimination arises and the burden then
shifts to the defendant to articulate a
7

evidence to support an inference of
discrimination. See id.; Connell, 109 F.
Supp. 2d at 207–08.

that a reasonable jury could conclude she
was subjected to disparate treatment vis-àvis other, similarly situated guidance
counselors on the basis of her race and
religion because (1) although plaintiff was
issued letters and a negative evaluation as a
result of her absences, the District treated
differently Judith Bramble, a Black and nonJewish “similarly situated fellow guidance
counselor” with an allegedly similar
attendance record in 2010–2011; and (2)
only plaintiff—the sole Jewish guidance
counselor—was denied the ability to earn
extra income during the summer of 2011.
(Opp’n, at 12–13.) Plaintiff also argues that
an inference of discrimination can be drawn
because Brown told her that she was dressed
“inappropriately” one day, even though
other non-Caucasian, non-Jewish coworkers
wore the same attire. (Id. at 12–13 (citing Pl.
56.1 ¶ 53).) Third, plaintiff contends that
certain “harassing comments and actions”
support her claims: (1) Betty Cross, a Black
member of the Board of Education, told
plaintiff, “I don’t understand you people”
when plaintiff informed Cross that she
would be unable to attend a certain event
(id. at 14 (citing Pl. 56.1 ¶¶ 26, 26.2)); (2)
the District “forced Plaintiff to bring in a
note from her grandmother’s rabbi to prove
that she missed work to go to temple on a
Jewish holiday,” and coworkers mocked her
absence for that reason and commented that
she was not actually in temple but just took
the day off (id.); and (3) Brown “threatened
Plaintiff with termination if she requested”
any 504 accommodation (id. at 16–17).

As the Second Circuit observed in
James, “the way to tell whether a plaintiff’s
case is sufficient to sustain a verdict is to
analyze the particular evidence to determine
whether it reasonably supports an inference
of the facts plaintiff must prove[—]
particularly discrimination.” 233 F.3d at
157; see also Norton v. Sam’s Club, 145
F.3d 114, 118 (2d Cir. 1998) (“The thick
accretion of cases interpreting this burdenshifting framework should not obscure the
simple principle that lies at the core of antidiscrimination cases. In these, as in most
other cases, the plaintiff has the ultimate
burden of persuasion.”).
2. Analysis8
Defendants do not dispute that plaintiff
is a member of a protected class because she
is Jewish. (Def. Mem., at 4.) They dispute
whether she performed her duties
satisfactorily, whether any of the alleged
incidents are adverse employment actions,
and whether any of those incidents occurred
in circumstances giving rise to an inference
of unlawful discrimination. Defendants also
argue that, assuming plaintiff has established
a prima facie case, she cannot rebut
defendants’ non-discriminatory, legitimate
reason for their actions: plaintiff’s
attendance issues. See Rosa v. Nat’l
Westminster Bank, 842 F. Supp. 679, 693
(E.D.N.Y.), aff’d, 41 F.3d 1501 (2d Cir.
1994) (finding that defendant articulated
valid, legitimate, non-discriminatory reasons
for failing to promote plaintiff, including
poor punctuality and attendance—“failures
in basic job requirements”). Plaintiff argues

Even assuming arguendo that the 2010–
2011 negative evaluation, the initial refusal
to allow plaintiff to work in the summer of
2011, the reprimand regarding the alleged
student incident, and the letters regarding
attendance are adverse employment actions,9

8

Although the Court focuses on whether plaintiff has
articulated a prima facie case of discrimination based
on race and religion, the Court also discusses pretext.

9

A plaintiff suffers an adverse employment action
when she experiences a “materially adverse change in
8

and construing the evidence most favorably
to plaintiff, the Court concludes that Lener
has not produced sufficient evidence to
establish a prima facie case of race and
religion discrimination with respect to any
of these actions, much less show pretext.

Bhd. of Teamsters v. United States, 431 U.S.
324, 335 n.15 (1977); Mandell v. Cnty. of
Suffolk, 316 F.3d 368, 379 (2d Cir. 2003).
The law does not require employees to be
similarly situated in all respects, but rather
requires that they be similarly situated in all
material respects. See McGuinness v.
Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001)
(“A plaintiff is not obligated to show
disparate treatment of an identically situated
employee.”); accord Shumway v. United
Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir.
1997). The Second Circuit has further
defined what the term “all material respects”
means in this context:

First, the fact that plaintiff is a member
of a protected class, while her supposedly
similarly situated coworkers are members of
another protected class, is not sufficient in
itself to establish a reasonable inference of
discrimination. A plaintiff can raise an
inference of discrimination by showing
disparate treatment: that a similarly situated
employee outside the protected group
received more favorable treatment. See Int’l

What constitutes “all material
respects” . . . varies somewhat from
case to case and, as we recognized in
Norville, must be judged based on
(1) whether the plaintiff and those he
maintains were similarly situated
were subject to the same workplace
standards and (2) whether the
conduct for which the employer
imposed
discipline
was
of
comparable seriousness. . . . Hence,
the standard for comparing conduct
requires
a
reasonably
close
resemblance of the facts and
circumstances of plaintiff’s and
comparator’s cases, rather than a
showing that both cases are
identical. . . . The determination that
two acts are of comparable
seriousness requires—in addition to
an examination of the acts—an
examination of the context and
surrounding circumstances in which
those acts are evaluated.

the terms and conditions of employment.”
Richardson v. N.Y. State Dep’t of Corr. Servs., 180
F.3d 426, 446 (2d Cir. 1999) (quoting Torres v.
Pisano, 116 F.3d 625, 640 (2d Cir. 1997)). Typical
adverse employment actions may include termination
from a job, decrease in salary, material reduction in
benefits or responsibilities, or a less distinguished
title. See Galabya v. N.Y.C. Bd. of Educ., 202 F.3d
636, 640 (2d Cir. 2000); Crady v. Liberty Nat’l Bank
& Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)).
Changes in assignments or duties that do not
“radical[ly] change” the nature of work are not
typically adverse employment actions. Galabya, 202
F.3d at 640 (quoting Rodriguez v. Bd. of Educ., 620
F.2d 362, 366 (2d Cir. 1980)).
Negative evaluations without any accompanying
adverse consequences are not adverse employment
actions. E.g., Valenti v. Massapequa Union Free Sch.
Dist., Nos. 03-CV-1193 (JFB)(MLO), 04-CV-5271
(JFB)(MLO), 2006 WL 2570871, at *9 (E.D.N.Y.
Sept. 5, 2006); see also Castro v. N.Y.C. Bd. of Educ.,
No. 96 Civ. 6314(MBM), 1998 WL 108004, at *7
(S.D.N.Y. Mar. 12, 1998) (holding that negative
evaluations “unattended by a demotion, diminution of
wages, or other tangible loss do not materially alter
employment conditions”). Of course, there are times
when a negative evaluation does constitute an
adverse employment action, if it is accompanied by,
or results in, a change in conditions of employment.
At most, here, plaintiff suffered the loss of four days
of summer work (which do not appear to be
contractually guaranteed) as a result of the
evaluation. There is no evidence of more significant
negative impacts to plaintiff’s employment.

Graham v. Long Island R.R., 230 F.3d 34,
40–41 (2d Cir. 2000) (citations and
quotations omitted).
Here, no reasonable jury could conclude
that Bramble or the other counselors were
9

commit “the most serious of the infractions
for which [plaintiff] was discharged”).10

similarly situated to plaintiff. According to
Brown, despite being subject to the same
attendance standards as other employees,
Bramble was very sick in 2010–2011 and
had “leave of absences” and “a 504” on file.
(Brown Dep. at 61:20–64:3, Def. Ex. G.)
Bramble, unlike Lener, requested an
accommodation. (Id. at 64:3–5.) Thus, the
situation with Bramble was materially
different given the lack of a request for an
accommodation by plaintiff. Further,
although plaintiff claims that Bramble
sometimes was absent because she could not
get a cab to work, conducted funerals,
tended to matters in her church, or went to
foreign countries for missionary work
(Lener Dep. at 63:4–11, Def Ex. C), and that
Bramble was never counseled or negatively
evaluated as a result (Lener Aff. ¶ 9, Pl. Ex.
1), there is no evidence as to the dates of
those absences, or that those absences were
not approved by Bramble’s supervisors.
There also is no evidence that these
absences were as frequent as plaintiff’s.
Similarly, with respect to the other guidance
counselors who worked the full ten days
during the summer, plaintiff points to no
evidence that their attendance records were
similar to hers during the relevant time.
Plaintiff also does not challenge the
District’s refusal to allow her to work during
the summers of 2009 and 2010 because of
her attendance issues. Therefore, because
“plaintiff’s misconduct is objectively more
serious than that of [the] proposed
comparator[s], differential treatment by the
employer does not create an issue of fact
that will defeat a motion for summary
judgment.” Conway v. Microsoft Corp., 414
F. Supp. 2d 450, 464 (S.D.N.Y. 2006); see
also Tomasino v. Mount Sinai Med. Ctr. &
Hosp., No. 97 Civ. 5252, 2003 WL
1193726, at *14 (S.D.N.Y. Mar. 13, 2003)
(holding that the comparators were not
similarly situated because they did not

Second, even viewed in the light most
favorable to plaintiff, Brown’s comment
about plaintiff’s attire does not raise any
genuine issue of material fact or give rise to
an inference of discrimination. Plaintiff
testified, “After one of the New York teams
[the Mets] made a playoff or a pennant or
something, I wore the T-shirt, the jersey for
the team, and I was told [by Brown] in the
middle of the hallway that I was
inappropriately dressed when there were
other people walking through the hallways
that had team jerseys on as well.”11 (Lener
Dep. at 60:22–61:12.) There is no evidence
that Brown punished Lener for this attire. In
addition, no reasonable jury could conclude
that the “other people” were plaintiff’s coworkers and/or that Brown allowed them to
wear the attire because of their membership
in a particular class. Nor could a reasonable
jury objectively conclude that race or
religious discrimination motivated the
comment. Moreover, this incident occurred
in 2006, six years before the commencement
of this action. Thus, there is no basis to use
this alleged incident to show that
defendants’ proffered, legitimate nondiscriminatory reasons for any actions taken
against plaintiff were pretextual. See, e.g.,
Lee v. N.Y. State Dep’t of Health, No. 99
Civ. 4859, 2001 WL 34031217, at *19
(S.D.N.Y. Apr. 23, 2001) (finding that
remarks by an employer cannot establish
pretext when they are remote in time and are
10

To the extent plaintiff’s evidence could establish a
prima facie case, the Court concludes, for reasons
stated more fully infra, that plaintiff does not show
that defendants’ proffered reason for any adverse
action—excessive absenteeism—is a pretext for
discrimination based upon race or religion.

11

The Mets last won a pennant in 2006. Mets
Timeline, The Official Site of the New York Mets,
http://newyork.mets.mlb.com/nym/history/timeline5.j
sp (last visited September 12, 2014).
10

unrelated to the challenged
employment decision).

of isolated and stray remark insufficient,
without more, to raise an inference of
discrimination
and
defeat
summary
judgment”). In short, plaintiff cannot
rationally rely on Cross’s statement to
establish a prima facie case of
discrimination or show that defendants’ nondiscriminatory justification is pretextual.

adverse

Third, plaintiff testified that, fourteen
years before plaintiff commenced this
action, Cross “had seen me in the hall. I was
walking . . . to get a student and she stopped
me and she asked me if I was going to this
function for the then principal. I said I
wouldn’t be able to. She said to me I don’t
understand you people. We hire you to work
here and you don’t do anything.” (Lener
Dep. at 55:1–18, 57:24–58:5.) Plaintiff
contends that “you people” meant White and
Jewish people, because in Hempstead,
“[y]ou know when someone is referring to
you differently because of your race or
religion or because you are different than
other people there.” (Id. at 55:22–56:3.) The
alleged remark was made sixteen years ago
by someone who had no involvement in any
of the allegedly adverse employment actions
at issue. Thus, plaintiff’s subjective
understanding of Cross’s statement cannot
give rise to a genuine issue of material fact
as to an inference of discrimination. See
Price Waterhouse v. Hopkins, 490 U.S. 228,
277 (1989) (O’Connor, J., concurring)
(statements by nondecisionmakers, or
statements unrelated to the decisionmaking
process, are insufficient from which to infer
discriminatory intent), superseded by statute
on other grounds as recognized in Burrage
v. United States, 134 S. Ct. 881, 889 n.4
(2014); Venti v. EDS, 236 F. Supp. 2d 264,
277 (W.D.N.Y. 2002) (statement by
coworker that plaintiff was “too old” to be
pregnant did not support inference of
discrimination, since it was not connected to
employer’s decision to terminate plaintiff,
and speaker had no responsibility for or
input into the decision to terminate
plaintiff); Georgy v. O’Neill, No. 00 Civ.
0660, 2002 WL 449723, at *6 (E.D.N.Y.
Mar. 25, 2002) (alleged reference to national
origin by nondecisionmaker, six months
prior to plaintiff’s termination, is “the kind

The same is true with respect to the
comments by plaintiff’s coworkers, the
District’s request that plaintiff bring a note
from her rabbi when she missed work for a
Jewish holiday, and Browns’ alleged
statement regarding a 504 accommodation.
There is no evidence that the coworkers
could affect the conditions of plaintiffs’
employment, and their comments were made
between 2004 and 2008. (See Lener Dep. at
57:17–18.) The request for the note also
came “earlier in [her] tenure at the middle
school.” (Id. at 57:19–23.) Nothing indicates
that the comments had anything to do with
race or religion, that the request for a note
was not legitimate, or that Brown ever made
any statement regarding plaintiff’s race or
religion. To the extent plaintiff compares
herself with Bramble to show Brown’s
discriminatory animus, such comparison is
not probative for the reasons stated supra.
Thus, these facts are not probative of pretext
or the existence of any discrimination based
on race or religion.
Accordingly, because plaintiff has failed
to establish a prima facie case of
discrimination based on race or religion, and
also has failed to rebut defendants’ proffered
legitimate reason for any adverse
employment actions, the Court grants
summary judgment to defendants on the race
and religion discrimination claim under 42
U.S.C. § 1983.

11

Protection Clause.”); accord O’Leary v.
Town of Huntington, No. 11 Civ.
3754(JFB), 2012 WL 3842567, at *14
(E.D.N.Y. Sept. 5, 2012). Therefore, to the
extent Lener’s claim of disability
discrimination is premised upon the
substantive rights provided by the ADA, the
claim is not actionable under § 1983. See,
e.g., Fierro, 994 F. Supp. 2d at 590; EC ex
rel. RC v. Cnty. of Suffolk, 882 F. Supp. 2d
323, 355 (E.D.N.Y. 2012) (“ADA has its
own right of enforcement and, consequently,
an ADA action may not be brought pursuant
to 42 U.S.C. § 1983.”); Pape v. Bd. of Educ.
of the Wappingers Cent. Sch. Dist., No. 07
Civ. 8828(KMK), 2009 WL 3151200, at *6
(S.D.N.Y. Sept. 29, 2009) (granting motion
to dismiss § 1983 claim on ground that
“[t]he broad discriminatory claims alleged
by Plaintiffs are, at best, the type of alleged
discrimination that . . . the ADA [is]
designed to protect against, not the Equal
Protection Clause” (internal quotation marks
omitted)). This provides an independent
basis for dismissing the Section 1983 claims
to the extent that they are based purely on
rights secured by the ADA.

B. Disability Discrimination and the
Equal Protection Clause
Defendants argue that the disability
discrimination claim under Section 1983
must be dismissed as a matter of law
because the Equal Protection Clause does
not apply to claims brought by public
employees under a class of one theory.
Plaintiff, citing to cases dated 2002 and
earlier,
argues
that
her
disability
discrimination claim is cognizable and
survives summary judgment. As set forth
below, the Court concludes that defendants
are entitled to summary judgment on the
disability discrimination-based § 1983 claim
as a matter of law.
As a threshold matter, it is well settled
that a plaintiff asserting discrimination
claims under a federal statute, such as Title
VII, may bring a concurrent Section 1983
action, such as an alleged denial of equal
protection, “so long as the § 1983 claim is
based on a distinct violation of a
constitutional right.” Gierlinger v. N.Y. State
Police, 15 F.3d 32, 34 (2d Cir. 1994). Thus,
for example, even though a race
discrimination claim (such as is brought
here) could be brought under Title VII, it
also can be asserted under § 1983. However,
as the Second Circuit has made clear, “[a]
§ 1983 action may not . . . be brought to
vindicate rights conferred only by a statute
that contains its own structure for private
enforcement.” Patterson v. Cnty. of Oneida,
375 F.3d 206, 225 (2d Cir. 2004). Freedom
from discrimination on the basis of disability
is a right secured by statute, see ADA, 42
U.S.C. §§ 12031 et seq., not by the
Constitution. Fierro v. N.Y.C. Dep’t of
Educ., 994 F. Supp. 2d 581, 590 (S.D.N.Y.
2014); see Bd. of Trs. of Univ. of Ala. v.
Garrett, 531 U.S. 356, 368 (2001) (“If
special accommodations for the disabled are
to be required, they have to come from
positive law and not through the Equal

Nevertheless, a plaintiff may bring a
§ 1983 claim premised upon substantive
rights distinct from the employment
discrimination statutes, such as the ADA.
Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d
134, 143 (2d Cir. 1993); see also Patterson,
375 F.3d at 225. Here, plaintiff also claims
defendants treated her differently from other
similarly situated individuals, and thus
violated her equal protection rights.
Disability and/or perceived disability are not
suspect or quasi-suspect classifications.
O’Leary, 2012 WL 3842567, at *13 n.10
(collecting cases). Nevertheless, “[a]lthough
the prototypical equal protection claim
involves discrimination against people based
on their membership in a vulnerable class,
courts have long recognized that the equal
protection guarantee also extends to
12

individuals who allege no specific class
membership but are nonetheless subjected to
invidious discrimination at the hands of
government officials.” Sharpe v. City of New
York, No. 11 Civ. 5495(BMC), 2013 WL
2356063, at *3 n.5 (E.D.N.Y. May 29, 2013)
(internal quotation marks and citations
omitted). In her opposition, plaintiff
apparently styles her § 1983 claim as a
“selective enforcement” equal protection
claim, not a “class of one” claim (see Opp’n,
at 18), but she does not affirmatively
disclaim the “class of one” theory. In any
event, under either theory, plaintiff’s
disability-based equal protection claim must
fail for the reasons discussed below.

has not demonstrated she was similarly
situated to any of her colleagues.
In any event, the Equal Protection
Clause does not apply to public employees,
like plaintiff, asserting a “class of one
theory.” Enquist v. Or. Dep’t. of Agric., 553
U.S. 591, 603 (2008) (deciding that “the
class-of-one theory of equal protection has
no application in the public employment
context”); Appel v. Spiridon, 531 F.3d 138,
139–40 (2d Cir. 2008) (following Engquist,
“the Equal Protection Clause does not apply
to a public employee asserting a violation of
the [Equal Protection] Clause based on a
‘class of one’ theory of liability”); see also
Ponterio v. Kaye, 328 F. App’x 671, 672–73
(2d Cir. 2009); Conyers v. Rossides, 558
F.3d 137, 152 (2d Cir. 2009); Fierro, 994 F.
Supp. 2d at 591–92. Accordingly,
defendants are entitled to summary
judgment on this claim to the extent it is
brought under a “class of one” theory.13

1. Class of One Theory
In a “class of one” case, the plaintiff
uses “the existence of persons in similar
circumstances who received more favorable
treatment than the plaintiff . . . to provide an
inference that the plaintiff was intentionally
singled out for reasons that so lack any
reasonable nexus with a legitimate
governmental policy that an improper
purpose—whether personal or otherwise—is
all but certain.” Prestopnik v. Whelan, 249
F. App’x 210, 212–13 (2d Cir. 2007). There
must be “an extremely high degree of
similarity” between the class of one plaintiff
and “alleged comparators in order to
succeed on an equal protection claim.”
Sloup v. Loeffler, 745 F. Supp. 2d 115, 128
(E.D.N.Y. 2010) [hereinafter Sloup II]
(citations and internal quotation marks
omitted).12 Here, as detailed supra, plaintiff

demonstrate that he or she is prima facie identical to
the comparators.” Pina v. Lantz, 495 F. Supp. 2d 290,
304 (D. Conn. 2007).
13

Even if plaintiff could bring a “class of one” claim,
the claim would fail because, as detailed supra, there
is no evidence that plaintiff was treated differently
from any similarly situated individual because of her
disability. “[T]o succeed on a class-of-one claim, a
plaintiff must establish that (i) no rational person
could regard the circumstances of the plaintiff to
differ from those of a comparator to a degree that
would justify the differential treatment on the basis of
a legitimate government policy; and (ii) the similarity
in circumstances and difference in treatment are
sufficient to exclude the possibility that the
defendants acted on the basis of a mistake.” Ruston v.
Town Bd. for Town of Skaneateles, 610 F.3d 55, 59–
60 (2d Cir. 2010) (internal quotation marks omitted).
The uncontroverted evidence regarding Bramble’s
differing circumstances, and the other guidance
counselors’ lack of attendance issues, preclude any
inference that these individuals were sufficiently
similar to plaintiff. This particularly is true given
plaintiff’s history of attendance issues preceding the
2010–2011 year, and the fact that thirteen out of the

12

The standard for “similarly situated” for a class of
one claim is more stringent than for a selective
enforcement claim. Sloup II, 745 F. Supp. 2d at 130.
As one court has explained, “the Second Circuit has
left no doubt that [a class of one] plaintiff must meet
a high threshold to move beyond summary judgment.
Specifically, for a plaintiff to demonstrate that he or
she was treated differently from similarly situated
individuals in an irrational manner, in violation of the
Fourteenth Amendment, the plaintiff must
13

2. Selective Enforcement Theory

from which a reasonable jury could find that
any decisionmaker acted with spite or
malice towards plaintiff.

To prevail on a selective enforcement
claim, a plaintiff must show “(1) that she
was treated differently from others similarly
situated, and (2) that such differential
treatment was based on impermissible
considerations such as race, religion, intent
to inhibit or punish the exercise of
constitutional rights, or malicious or bad
faith intent to injure a person.” Fierro, 994
F. Supp. 2d at 592 (citation and internal
quotation marks omitted); accord Sloup II,
745 F. Supp. 2d at 130–31. At the summary
judgment stage, the plaintiff must present
evidence comparing herself to individuals
that are “similarly situated in all material
respects.” Sloup v. Loeffler, No. 05-CV1766 (JFB)(AKT), 2008 WL 3978208, at
*18 (E.D.N.Y. Aug. 21, 2008) (internal
quotation marks and citation omitted)
[hereinafter Sloup I]. In analyzing the
second prong, courts must distinguish
between a “motivation to punish [in order]
to secure compliance with agency
objectives,” and “spite, or malice, or a desire
to ‘get’ [someone] for reasons wholly
unrelated to any legitimate state objective.”
Bizzarro v. Miranda, 394 F.3d 82, 87 (2d
Cir. 2005) (quoting Esmail v. Macrane, 53
F.3d 176, 180 (7th Cir. 1995)).

Accordingly, defendants are entitled to
summary judgment on the § 1983 disability
discrimination claim as a matter of law.14
C. ADA Amendment
In her original complaint, plaintiff did
not assert any claims for failure to
accommodate or disability discrimination
under the ADA. However, during oral
argument, the Court stated that it would
consider allowing plaintiff to amend her
complaint to assert a cause of action under
the ADA (although the deadline for
amendments to the pleadings has expired)
and requested supplemental briefing on the
issue. For the following reasons, the Court
shall allow plaintiff to amend her complaint.
Generally, Federal Rule of Civil
Procedure 15(a) (“Rule 15”) applies to
motions to amend the pleadings. Under Rule
15(a), leave to amend “shall be freely
granted when justice so requires.” Motions
for leave to amend should be denied only for
reasons such as undue delay, bad faith,
futility of the amendment or prejudice to the
other party.15 See Foman v. Davis, 371 U.S.

Courts are divided on whether selective
enforcement claims remain available in the
public employment context post-Enquist.
See Fierro, 994 F. Supp. 2d at 592
(collecting cases). In any event, for the
reasons detailed supra, plaintiff has failed to
raise a genuine dispute of material fact as to
whether any other guidance counselor,
disabled or otherwise, was treated more
favorably than plaintiff despite having the
same attendance issues and performance
evaluations. Moreover, there is no evidence

14

Because summary judgment is warranted on the
above grounds, the Court need not address whether
plaintiff can show the existence of a municipal policy
or custom underlying any constitutional violation, or
Brown’s lack of involvement. In other words, when a
plaintiff lacks any underlying claim of a deprivation
of a constitutional right, the claim of municipal
liability on the part of the municipal defendant must
be dismissed as well. See Segal v. City of New York,
459 F.3d 207, 219 (2d Cir. 2006) (“Because the
district court properly found no underlying
constitutional violation, its decision not to address the
municipal defendants’ liability under Monell was
entirely correct.”).
15

Federal Rule of Civil Procedure (16)(b) applies to
motions to amend the pleadings for cases that have
progressed beyond the deadline set for amendments

fifteen letters addressing plaintiff’s attendance were
written before Dr. Reitman’s 2009 letter.
14

178, 182 (1962); Aetna Cas. & Sur. Co. v.
Aniero Concrete Co., 404 F.3d 566, 603–04
(2d Cir. 2005); see also Lucente v. Int’l Bus.
Machs. Corp., 310 F.3d 243, 258 (2d Cir.
2002) (“One appropriate basis for denying
leave to amend is that the proposed
amendment is futile.”). Generally, a
proposed amendment interposed in response
to a motion to dismiss will be deemed futile
if it would be subject to dismissal for failure
to state a claim. Milanese v. Rust-Oleum
Corp., 244 F.3d 104, 110 (2d Cir. 2001)
(citing Riccuiti v. N.Y.C. Transit Auth., 941
F.2d 119, 123 (2d Cir. 1991)). The standard
governing the propriety of an amendment

positions. In the latter situation, even
if the amended complaint would
state a valid claim on its face, the
court may deny the amendment as
futile when the evidence in support
of the plaintiff’s proposed new claim
creates no triable issue of fact and
the defendant would be entitled to
judgment as a matter of law under
[Rule] 56(c).
Id.
1. Prejudice
The Court finds that the proposed
amendment will not prejudice defendants.
As indicated by plaintiff’s written
submission, she would bring claims for
failure to accommodate and for the denied
work days during the summer of 2011, not
for other alleged misconduct. (See Pl. Supp.,
at 12.) These allegations are the subject of
the § 1983 claims and have been thoroughly
explored during discovery. Thus, allowing
the proposed amendment would result in
minimal (if any) further discovery. In
addition, Brown cannot be prejudiced at all
by the proposed amendment. Regardless of
the sufficiency of the amendment, Brown
cannot be held personally liable, because the
ADA “does not permit the imposition of
liability on individuals in their individual or
representative capacities.” Turowski v.
Triarc Cos., Inc., 761 F. Supp. 2d 107, 111
(S.D.N.Y. 2011).

is different where . . . the crossmotion [to amend] is made in
response to a [Rule] 56 motion for
summary judgment, and the parties
have fully briefed the issue [of]
whether the proposed amended
complaint could raise a genuine issue
of fact and have presented all
relevant evidence in support of their
to the pleadings. By limiting the time for
amendments, the rule is designed to offer a measure
of certainty in pretrial proceedings, ensuring that at
some point both the parties and the pleadings will be
fixed. U.S. Underwriters Ins. Co. v. Ziering, No. 06CV-1130 (JFB)(WDW), 2010 WL 3419666, at *3
(E.D.N.Y. Aug. 27, 2010) (quoting Parker v.
Columbia Pictures Indus., 204 F.3d 326, 339–40 (2d
Cir. 2000)). Under Rule 16(b), a party may obtain a
modification of the scheduling order only “upon a
showing of good cause.” According to the Second
Circuit, “the primary consideration” in determining
whether good cause has been shown “is whether the
moving party can demonstrate diligence.” Kassner v.
2nd Avenue Delicatessen Inc., 496 F.3d 229, 244 (2d
Cir. 2007). Although Rule 16(b) technically applies
in this instance, the Court only considers whether
plaintiff satisfies Rule 15(a), because the Court raised
the possibility of the amendment itself, and
defendants have not asserted that the amendment
should be denied for failure to comply with Rule
16(b). Moreover, as discussed infra, adding ADA
claims would not be so prejudicial to defendants to
warrant denial of the proposed amendment.

2. Futility
Although defendants argue that plaintiff
cannot set forth a prima face case of ADA
discrimination or establish that defendants
failed
to
grant
her
reasonable
accommodations, the Court concludes that
the claims under the ADA would not be
futile, because plaintiff has submitted
evidence which, when construed most
favorably to plaintiff, is sufficient to raise
15

genuine issues of fact as to whether, inter
alia, (1) plaintiff suffered from a mental
impairment that substantially limits a major
life activity; (2) plaintiff was qualified to
perform the essential functions of her job in
the summer of 2011; (3) plaintiff was
subjected to an adverse employment action
because of her disability; (4) the proffered
legitimate business reason was pretext for
disability discrimination; and (5) plaintiff
was denied a reasonable accommodation for
her disability.16

cannot sleep through the night and her body
is completely debilitated; (2) Dr. Reitman
stated that plaintiff has been under his care
for eight years, her symptoms have
worsened, and she needs accommodations;
and (3) plaintiff’s attendance issues
themselves support an inference that her
symptoms frequently manifested and
prevented her from going to work. Further,
although defendants point to plaintiff’s
numerous absences during the 2010–2011
academic year to justify denying her work
during the summer, see Ramirez v. N.Y.C.
Bd. of Educ., 481 F. Supp. 2d 209, 221–22
(E.D.N.Y. 2007) (addressing excessive
absenteeism in context of ADA claim), there
are genuine issues of fact that preclude
summary judgment on the issue of whether
this proffered non-discriminatory reason is
pretextual in light of, inter alia, the
following: (1) Brown’s testimony that even
persons absent ten days or more with
documentation
would
be
given
unsatisfactory evaluations in the area of
attendance; (2) the dispute over whether
Brown told plaintiff she should not be
working in the District if she needed a 504
accommodation;
(3)
the
Principal’s
testimony that he did not remember
attendance issues before 2011; and (4) the
June 10, 2011 negative evaluation, which
plaintiff asserts was based solely on her
absences while she was on sick leave.
Therefore, given such disputed issues of
fact, the Court concludes that the disability
discrimination claim based on the denial of
work in the summer of 2011 would not be
futile.

This Court set forth the standard for
disability discrimination claims in O’Connor
v. Huntington Union Free School District,
No. 11-CV-1275 (JFB)(ARL), 2014 WL
1233038 (E.D.N.Y. Mar. 25, 2014).
Defendants argue that plaintiff cannot
establish that she has a disability as defined
by the ADA, that she is qualified to perform
the essential functions of her job when she is
absent, or that she suffered an adverse
employment action because of the disability.
The Court finds that there are genuine
disputes of material fact on these issues. For
instance, although “the suffering of
occasional episodes of a long term or lifetime impairment will not render the
individual disabled because the physical
manifestation of the impairment is of
insufficient duration,” Chen v. Citigroup
Inv., Inc., No. 03 CV 6612(GBD), 2004 WL
2848539, at *3 (S.D.N.Y. Dec. 9, 2004), a
reasonable jury could find that plaintiff’s
condition is of sufficient duration because
(1) plaintiff testified that sometimes she
16

Defendants argue, as a threshold matter, that
plaintiff’s ADA claim was filed prematurely—that is,
less than 180 days after filing the EEOC charge.
However, although plaintiff filed the lawsuit within
that period, she did not specifically assert the ADA
claim in the initial complaint, which is the basis for
the Court’s current consideration as to whether the
amendment should be allowed at this juncture. Thus,
the argument regarding the 180-day waiting period is
without merit.

This Court set forth the standard for
failure to accommodate claims in Graham v.
Three Village Central School District, No.
11-CV-5182, 2013 WL 5445736 (E.D.N.Y.
Sept. 30, 2013). Defendants argue that the
claim is futile because plaintiff never sought
a reasonable accommodation, no evidence
corroborates plaintiff’s claim about Brown’s
16

IV.

statement to her, and plaintiff’s requested
accommodation of arriving later and leaving
later was unreasonable. The Court again
finds that there are genuine disputes of
material fact on these issues. “[T]he ADA
imposes
liability
for,
inter
alia,
discriminatory refusal to undertake a
feasible accommodation, not mere refusal to
explore possible accommodations where, in
the end, no accommodation was possible.”
McBride v. BIC Consumer Prods. Mfg. Co.,
Inc., 583 F.3d 92, 100 (2d Cir. 2009).
Accordingly, “an employer’s failure to
engage in a sufficient interactive process
does not form the basis of a claim under the
ADA and evidence thereof does not allow a
plaintiff to avoid summary judgment unless
she also establishes that, at least with the aid
of some identified accommodation, she was
qualified for the position at issue.” In this
case, if all plaintiff’s evidence is credited
and construed most favorably to her, a
reasonable jury could conclude that (1)
Brown made the statement regarding an
accommodation, and plaintiff reasonably
avoided asking for one thereafter because
she feared for her position; and (2) the
District could reasonably accommodate
plaintiff’s request, depending on the time of
day that she would arrive, the impact on
other guidance counselors’ case load,
students’
schedules,
and
other
responsibilities. In that regard, there also is a
material dispute about whether any such
accommodation would preclude plaintiff
from performing the essential duties of her
job. Therefore, given these disputed issues
of material fact, the Court concludes that the
failure to accommodate claim also would
not be futile.

CONCLUSION

For the foregoing reasons, the Court
grants defendants’ motion for summary
judgment on the 42 U.S.C. § 1983 claims in
its entirety, but the Court will allow plaintiff
to file an amended complaint asserting
claims under the ADA. Therefore, defendant
Brown is dismissed from this action. The
amended complaint shall be due within
fourteen (14) days.
SO ORDERED.

________________________
JOSEPH F. BIANCO
United States District Judge
Dated: September 23, 2014
Central Islip, NY
***
Plaintiff is represented by Steven Morelli
and Paul Bartels, The Law Offices of Steven
A. Morelli, P.C., 1461 Franklin Ave.,
Garden City, NY 11530. Defendants are
represented by Austin Graff, The Scher Law
Firm, LLP, One Old Country Road, Suite
385, Carle Place, NY 11514.

Accordingly, because the proposed
amendment would not be futile or
prejudicial, the Court shall allow plaintiff to
assert claims under the ADA.

17