Epstein v. County of Suffolk et al

Filing 16

MEMORANDUM & ORDER granting 6 Motion to Dismiss for Failure to State a Claim; For the foregoing reasons, Defendants' motion to dismiss is GRANTED. Specifically, Plaintiff's ADA and ADEA claims against the individual Defendants, as well as Plaintiff's First Amendment retaliation claims are DISMISSED WITH PREJUDICE. Plaintiff's claims for discrimination under the ADA and ADEA, as well as Plaintiff's Equal Protection Clause, Due Process Clause, hostile work environment claims, and Section 1983 claim against the County are DISMISSED WITHOUT PREJUDICE and WITH LEAVE TO REPLEAD. If Plaintiff wishes to file an Amended Complaint he must do so within thirty (30) days of the date of this ORDER. If Plaintiff fails to file an Amended Complaint the ADA, ADEA, Equal Protection Clause, Due Process Clause, hostile work environment claims, and Section 1983 claim against the County will be DISMISSED WITH PREJUDICE. So Ordered by Judge Joanna Seybert on 8/26/2015. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
STEPHEN EPSTEIN,
Plaintiff,

MEMORANDUM & ORDER
14-CV-0937(JS)(ARL)

-againstCOUNTY OF SUFFOLK, SUFFOLK COUNTY
COMMUNITY COLLEGE, PINA BRITTON,
CARLA MAZZARELLI, and JEFFREY
TEMPERA, in their individual
capacities,

Defendants.
-----------------------------------X
APPEARANCES
For Plaintiffs:
Steven A. Morelli, Esq.
Anabia Hasan, Esq.
The Law Offices of Steven A. Morelli, P.C.
1461 Franklin Avenue
Garden City, NY 11530
For Defendants:

Elaine M. Barraga, Esq.
Leonard G. Kapsalis, Esq.
Suffolk County Attorney’s Office
100 Veterans Memorial Highway
P.O. Box 6100
Hauppauge, NY 11788

SEYBERT, District Judge:
Plaintiff

Steven

Epstein

(“Epstein”

or

“Plaintiff”)

commenced this action on February 12, 2014, against defendants
County of Suffolk (the “County”), Suffolk County Community College
(“SCCC”),

and

Pina

Britton

(“Britton”),

Carla

Mazzarelli

(“Mazzarelli”), and Jeffrey Tempera (“Tempara”) (collectively the
“Individual Defendants,” and together with the County and SCCC,
“Defendants”), alleging constitutional violations pursuant to 42

U.S.C. § 1983, the Americans with Disabilities Act (“ADA”), and 42
U.S.C. § 12101 et seq., the Age Discrimination in Employment Act
of 1967 (“ADEA”), and 29 U.S.C. § 621 et seq.

(Compl. ¶ 1.)

Currently pending before the Court is Defendants’ motion
to dismiss the Complaint for lack of subject matter jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(1), and for
failure

to

state

a

Procedure 12(b)(6).

claim

pursuant

to

Federal

Rule

of

Civil

For the following reasons, Defendants’ motion

is GRANTED.
BACKGROUND1
Plaintiff joined the staff of the communications faculty
at SCCC in 2003.

(Compl. ¶ 20.)

In 2005, Plaintiff was asked to

serve as co-advisor to the Phi Theta Kappa Honor Society and to
direct the Honors Program at the Grant Campus of SCCC.
¶ 23.)

(Compl.

In 2006, Plaintiff was granted tenure, and in 2007, he was

promoted to Associate Professor.
After

his

(Compl. ¶ 22.)

appointment,

Plaintiff

began

to

notice

discrepancies in Defendants’ implementation of its policies and
procedures. (Compl. ¶ 25.) Plaintiff claims that Defendants would
routinely permit unqualified students to enroll in honors courses,
allow students to use non-honors courses to qualify for an honors
diploma, and would permit students who enrolled in the honors

The facts, as stated herein, are taken from the Complaint, and
for the purpose of deciding this motion, are regarded as true.
1

2

program to be excused from taking a “College Seminar,” a collegewide requirement, while still being permitted to graduate. (Compl.
¶ 25.)

Plaintiff vocalized his concerns that this practice

diminished the quality of SCCC’s honors program and its academic
reputation.

(Compl. ¶ 25.)

Plaintiff also vocalized his opposition to the unequal
distribution of resources among the three campuses, which he
claimed disproportionately impacted minority students.
¶ 26.)
which

(Compl.

Plaintiff contended that SCCC favored the Selden campus,
was

predominately

Riverhead campuses.2

Caucasian,

over

the

Brentwood

and

(Compl. ¶ 26.)

Plaintiff also protested the use of advertisements,
which he claimed had racist overtones and failed to feature
minority

students

in

speaking

roles.

(Compl.

¶

28.)

On

January 27, 2013, Plaintiff reiterated his concerns regarding the
demographic
Defendants’

makeup

of

admission

minority students.

the

Honors

criteria

Program,

maintaining

disproportionately

that

impacted

(Compl. ¶ 29.)

In March 2013, Plaintiff filed a complaint with the Board
of Academic Standards Committee (the “Board”) requesting that they

Plaintiff alleges that examples of such favoritism included,
Defendants’ policy requiring students to travel to the Selden
campus for honors events, and requiring faculty from the
Brentwood and Riverhead campuses to travel to the Selden campus
for faculty development. (Compl. ¶ 27.)
2

3

investigate Defendants’ failure to follow its internal policies by
permitting

unqualified

(Compl. ¶ 30.)

students

to

enroll

in

honors

courses.

That same month, in March 2013, Plaintiff was

charged with violating the Family Educational Rights and Policy
Act (“FERPA”).3

(Compl. ¶ 31.)

Plaintiff claims that Defendants’

allegations were carried out in retaliation to Plaintiff’s First
Amendment rights.

(Compl. ¶ 32.)

Plaintiff

claims

that

Defendants

instituted

a

discriminatory and retaliatory campaign against him during the
2011-2012 school years, based upon his age, disability, and in
retaliation for his protected speech. (Compl. ¶ 33.) For example,
Plaintiff alleges that in the spring of 2012, despite his repeated
requests, Defendants refused to place Plaintiff on the faculty
list for receipt of a summer stipend to run SCCC’s honors program.
(Compl. ¶ 34.)

Plaintiff also claims that in May of 2012, he was

denied a promotion under the pretext the he did not provide
sufficient service to the college, despite the fact that he was
(1) the only individual at the college who held coordinating
positions;

(2)

expectations;

grew
and

(3)

each

of

his

routinely

assigned

presented

programs
before

the

beyond
SUNY

Plaintiff claims his actions were in full compliance with
FERPA, because he did not publish any student names or
identifying information and solely communicated the information
to members of SCCC governance in charge of making policy
recommendations to the administration. (Compl. ¶ 31.)
3

4

chancellor, members of the Board of Trustees, and the Dean’s
council

regarding

campuses.

the

college

(Compl. ¶ 35.)

programs

at

all

three

college

Plaintiff maintains that in the summer

of 2012, he was denied the position as coordinator of the honors
program and the accompanying summer stipend, which he had received
since 2005. Plaintiff claims that younger individuals were allowed
to retain their positions and receive their stipend.

(Compl.

¶ 36.)
Plaintiff alleges that in August of 2012, he was stripped
of all duties as the coordinator of the Grant Campus Honors
program, the College-Wide Early College Program, and the College
Wide Stay on Long Island Scholarship Program.

(Compl. ¶ 37.)

Defendants assert that the position was being eliminated due to
budgetary concerns.

(Compl. ¶ 37.)

Plaintiff alleges that SCCC

began recruiting and advertising for the position before it was
“eliminated,” and appointed a younger individual to the position.
(Compl. ¶ 37.)

When Plaintiff sought reinstatement of his former

position in the fall of 2012, Defendants failed to address his
request.

(Compl. ¶ 37.)

Finally, in October 2012, defendant

Britton, an Assistant Dean, lodged a bullying complaint against
Plaintiff.

(Compl. ¶ 39.)

Plaintiff claims that Britton’s

complaint was in retaliation for the complaints Plaintiff made
regarding the tri-campus equity and its impact on minority students
enrolled at SCCC.

(Compl. ¶ 39.)
5

In September of 2012, Plaintiff underwent an operation
to relive Achalasia, a digestive disorder which makes it difficult
and painful to swallow.

(Compl. ¶ 42.)

As a result of the

operation, Plaintiff must sleep in a reclining position which
“often makes it difficult to obtain restful sleep.” (Compl. ¶ 42.)
Because of his condition, Plaintiff asked to teach a reduced course
load and receive a corresponding reduction in his salary.
¶ 43.)

(Compl.

Although Plaintiff provided medical documentation in

support of his condition, Defendants ultimately failed to provide
the requested accommodation.
I.

(Compl. ¶¶ 45-49.)

Plaintiff’s First Complaint to the N.Y.S. Div. of Human Rights
On April 10, 2013, Plaintiff filed a complaint

(the

“2013 DHR Complaint”) with the New York State Division of Human
Rights (“DHR”), alleging that he was discriminated against based
upon his age and disability.

(Compl. ¶ 5.)

The April 2013 DHR

Complaint alleged that the Defendants discriminated against him by
failing to accommodate his medical disability. (Exhibits to Defs.’
Br. (“Defs.’ Exs.”), Docket Entry 6-2, at 294.)

Plaintiff alleged

that he was disabled due to heart disease and an unspecified
digestive order that caused him not to be able to get “adequate
sleep.”

(Defs.’

As the Exhibits
Exhibit A’s and 2
the Exhibits, the
Filing System are
4

Exs.

at

29.)

Plaintiff,

who

resides

in

are not correctly identified (e.g., there are 2
Exhibit B’s, etc.), therefore when citing to
page numbers generated by the Electronic Case
used instead of the exhibit letter.
6

Westchester County and works as an Associate Professor at SCCC’s
Michael J. Grant Campus (“Grant Campus”) in Brentwood, NY, claimed
he requested an accommodation to teach via “distance education,”
so he would not have to be present on campus because “he often
drive[s] to and from campus while fatigued.”

(Defs.’ Br., Docket

Entry 7, at 2; Defs.’ Exs. at 29.)
The April 2013 DHR Complaint also alleged discrimination
based on age.

Specifically, the April 2013 DHR Complaint asserts

that on August 12, 2012, Plaintiff was removed from his position
as Honors Coordinator at the Grant Campus due to his age.
Exs. 30.)

(Defs.’

Plaintiff’s claim was based on his belief that his

“removal was due to age discrimination so that the position could
be filled by a younger person.”

(Defs.’ Exs. at 30.)

After an investigation, the DHR issued a Determination
and Order After Investigation (the “April Determination”), finding
“NO PROBABLE CAUSE” to believe that Plaintiff was discriminated
against because of his alleged disability or age.
33.)

(Defs.’ Exs. at

The April Determination found that Plaintiff resided fifty-

one miles from his place of employment and is subject to a twohour drive.

(Defs.’ Exs. at 33.)

The DHR found that the

“accommodation sought by the [Plaintiff] to telecommute and avoid
the long commuting drive places the employer under no obligation
to meet the personal preferences of a disabled employee.”
Exs. at 33.)

(Defs.’

The DHR concluded that “[d]ifficulties commuting to
7

a job need not be accommodated.

There is no evidence that driving

is an essential function of the [Plaintiff’s] job. The [Defendant]
is

not

obligated

to

accommodate

the

[Plaintiff’s]

request.”

(Defs.’ Exs. at 34.)
As to Plaintiff’s age discrimination claim, the DHR
concluded that Plaintiff’s assertion that “he was removed as the
Honors Program Coordinator, because of his age” is not supported
by the evidence.
Plaintiff’s

(Defs.’ Exs. at 33.)

replacement

was

The DHR found that while

younger

than

Plaintiff,

eight

candidates were suggested to replace Plaintiff and the position
was offered to three of the eight suggested candidates, two of
whom were close in age to Plaintiff.5
II.

(Defs.’ Exs. at 34.)

Plaintiff’s Second Complaint to DHR
On or about August 8, 2013, Plaintiff filed a second

complaint with the HDR alleging discrimination.
36.)
SCCC

(Defs.’ Exs. at

Plaintiff’s second DHR Complaint alleged, inter alia, that
administrators

Plaintiff

in

an

engaged

effort

disability accommodation.

to

in

a

harassment

intimidate

him

campaign
for

(Defs.’ Exs. at 43.)

against

requesting

a

The retaliatory

campaign included charges and investigations against Plaintiff for

Both of the candidates that were close in age to Plaintiff,
declined the appointment. (Defs.’ Exs. at 34.) “As a result,
the position was offered to the candidate that holds the
position at the present time who happens to be younger than the
[Plaintiff].” (Defs.’ Exs. at 34.)
5

8

bullying and violations of the Family Educational Rights and
Privacy Act (“FERPA”).

(Defs.’ Exs. at 43.)

In a Determination

and Order of Dismissal for Administrative Convenience, the DHR
dismissed the August Complaint because Plaintiff indicated that he
wished to pursue the matter in Federal Court.
47.)

(Defs.’ Exs. at

On November 15, 2014, the Equal Employment Opportunity

Commission issued a right-to-sue letter.

(Defs.’ Exs. at 50.)

III. Federal Complaint
Plaintiff commenced this action on February 12, 2014,
alleging claims for: (1) retaliation under the First Amendment of
the United States Constitution; (2) discrimination based on his
and disability under the ADA, the ADEA, and the Equal Protection
Clause of the United States Constitution pursuant to 42 U.S.C §
1983; (3) hostile work environment under the ADA, the ADEA, and
the Equal Protection Clause of the United States Constitution
pursuant to 42 U.S.C § 1983; (4) retaliation under the ADA, the
ADEA, the Equal Protection Clause of the United States Constitution
pursuant to 42 U.S.C § 1983, and New York State Executive Law
(“NYSEL”) § 290 et seq.; (5) participation, aiding, abetting,
inciting,

compelling,

retaliatory

treatment

and
by

coercion

of

defendants

the

discrimination

Britton,

Mazzarelli

and
and

Tempera under the ADA, the ADEA, the First Amendment, and the Equal
Protection Clause of the United States Constitution pursuant to 42
U.S.C § 1983, and NYSEL § 290 et seq.
9

(Compl. §§ 51-56.)

DISCUSSION
The Court will first set forth the applicable legal
standards before turning to Defendants’ motion more specifically.
I.

Legal Standards
A.

Rule 12(b)(1)
“A case is properly dismissed for lack of subject matter

jurisdiction under Rule 12(b)(1) when the district court lacks the
statutory or constitutional power to adjudicate it.”
United States, 201 F.3d 110, 113 (2d Cir. 2000).

Makarova v.

In resolving a

motion to dismiss for lack of subject matter jurisdiction, the
Court

may

consider

affidavits

and

other

material

pleading to resolve jurisdictional questions.

beyond

the

See Morrison v.

Nat’l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008).

The

Court must accept as true the factual allegations contained in the
Complaint, but it will not draw argumentative inferences in favor
of Plaintiff because subject matter jurisdiction must be shown
affirmatively.

See id.; Atlanta Mut. Ins. Co. v. Balfour Maclaine

Int’l Ltd., 968 F.2d 196, 198 (2d Cir. 1998); Shipping Fin. Servs.
Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998).

The plaintiff

bears the burden of establishing subject matter jurisdiction by a
preponderance of the evidence.
B.

Morrision, 547 F.3d at 170.

Rule 12(b)(6)
In deciding a Rule 12(b)(6) motion to dismiss, the Court

applies a “plausibility standard,” which is guided by “[t]wo
10

working principles.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 12 S.

Ct. 1937, 173 L. Ed. 2d 868 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007));
accord Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009).

First,

although the Court must accept all allegations as true, this
“tenet”

is

“inapplicable

to

legal

conclusions;”

thus,

“[t]hreadbare recitals of the elements of a cause of action
supported by mere conclusory statements, do not suffice.”
556 U.S. at 678; accord Harris, 572 F.3d at 72.

Iqbal,

Second, only

complaints that state a “plausible claim for relief” can survive
a Rule 12(b)(6) motion to dismiss.

Iqbal, 556 U.S. at 679.

Determining whether a complaint does so is “a context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense.”

Id.; accord Harris, 572 F.3d at 72.

Furthermore, in deciding a motion to dismiss, the Court
is confined to “the allegations contained within the four corners
of [the] complaint.”

Pani v. Empire Blue Cross Blue Shield, 152

F.3d 67, 71 (2d Cir. 1998).

However, this has been interpreted

broadly to include any document attached to the complaint, any
statements

or

documents

incorporated

in

the

complaint

by

reference, any document on which the complaint heavily relies, and
anything of which judicial notice may be taken.

See Chambers v.

Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002) (citations

11

omitted); Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir,
1991).
II.

Liability Against the Individual Defendants
As a preliminary matter, Defendants correctly note that

individuals are not subject to liability under either the ADA or
ADEA, (Defs.’ Br., Docket Entry 6, at 5-6); see Jiggets v. Diez,
No.

02-CV-8959,

2009

WL

749575,

*1

n.1

(S.D.N.Y.

Apr.

2,

2009)(holding that that there is no individual liability under the
ADA); Spiegel v. Schulmann, No. 03-CV-5088,, 2006 WL 3483922, *20
(E.D.N.Y. Nov. 30, 2006) (“It is well settled that an individual
may not be held personally liable under the ADA”) (internal
citation and quotation omitted); Guerra v. Jones, 421 F. App’x 15,
17 (2d Cir. 2004) (“[D]ismissal of the Title VII and ADEA claims
against the individual [d]efendants was appropriate as neither
statute subjects individual, even those with supervisory liability
over

the

plaintiff,

to

personal

liability.”).

Accordingly,

Plaintiff’s ADA and ADEA claims against Britton, Mazzarelli, and
Tempera are DISMISSED WITH PREJUDICE.
III.

ADA Claims
A.

Pleading Standard Under the ADA
Claims under the ADA, such as the one Plaintiff raises

here, are subject to the same burden-shifting framework under
McDonnell Douglas as Title VII claims. See, e.g., Heyman v. Queens
Vill. Comm. for Mental Health, 198 F.3d 68, 72 (2d Cir. 1999); see
12

also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.
1917, 36 L. Ed. 2d 668 (1973). That framework requires a plaintiff
to first establish a prima facie case of discrimination, after
which

the

burden

shifts

to

the

defendant

to

articulate

a

legitimate, nondiscriminatory reason for the adverse employment
action.
B.

Plaintiff’s ADA Discrimination Claim
Plaintiff

alleges

that

Defendant

SCCC

discriminated

against him on the basis of disability or perceived disability.
However, as discussed below, Plaintiff’s claim must be dismissed
because he did not plausibly allege that he is disabled or that
SCCC regarded him as being disabled.
The ADA prohibits discrimination against a “qualified
individual on the basis of disability” in the “terms, condition,
and privileges of employment.”

42 U.S.C. § 12112(a).

To state a

claim for discrimination under the ADA, a plaintiff must allege
that: “(1) the defendant is covered by the ADA; (2) plaintiff
suffers from or is regarded as suffering from a disability within
the meaning of the ADA; (3) plaintiff was qualified to perform the
essential

functions

of

the

job,

with

our

without

reasonable

accommodation; and (4) plaintiff suffered an adverse employment
action

because

of

[her]

disability

or

perceived

disability.”

Capobianco v. City of N.Y., 422 F.3d 47, 56 (2d Cir. 2005).

13

Defendants do not dispute that Plaintiff adequately
alleged that SCCC is covered by the ADA, or that Plaintiff was
qualified to perform the essential functions of a professor.
Rather,

Defendants

argue

that

dismissal

is

warranted

because

Plaintiff failed to adequately allege that he is disabled or that
Defendants regarded him as disabled.
Plaintiff claims that he is disabled within the meaning
of the ADA (Compl. ¶ 10), and describes his disability as “being
required to sleep in a reclining position which often makes it
difficult to obtain restful sleep.”
ADA,

the

term

impairment

“disability”

that

means

substantially

(Compl. § 42.)
“(A)

limits

a

one

Under the

physical
or

more

or

mental

major

life

activities of such individual; (B) a record of such an impairment;
or (C) being regarded as having such an impairment . . . .”
U.S.C. § 12102(1).

42

To be substantially limited from performing a

major life activity, a plaintiff must have an impairment that
“prevents

or

severely

restricts

the

individual

from

doing

activities that are of central importance to most people’s daily
lives.”

Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S.

184, 185, 122 S. Ct. 681, 685, 151 L. Ed. 2d 615 (2002).

Moreover,

“[t]he impairment’s impact must also be permanent or long term.”
Id.;

see also Williams v. Salvation Army, 108 F. Supp. 2d 303,

312-13 (S.D.N.Y. 2000) (“temporary, non-chronic impairments of
short duration, with little or no long term or permanent impact,
14

are

usually

not

disabilities”)

(internal

quotation

marks

and

citations omitted); 29 C.F.R. § 1630.2(j)(1)(i)-(ii) (A major life
activity
perform

is
an

substantially
activity

that

population could perform.

limited
an

when

average

an

individual

person

in

the

cannot
general

“An impairment need not prevent, or

significantly or severely restrict, the individual from performing
a major life activity in order to be considered substantially
limiting.

Nonetheless, not every impairment will constitute a

disability . . . .”). Finally, determining whether or not a person
suffers a disability under the ADA “is an individualized inquiry”
that does not rest on the mere diagnosis of an impairment.

Sutton

v. United Airlines, 527 U.S. 471, 472, 119 S. Ct. 2139, 2142, 144
L. Ed. 2d 450 (1999). Instead, courts must make an “individualized
assessment.”

29 C.F.R. § 1630.2(j)(1)(iv); see also, Reeves v.

Johnson Controls World Servs., Inc., 140 F.3d 144, 151 (2d Cir.
1998) (noting that disability determination is to be made on an
“individualized case-by-case basis”).
Plaintiff

alleges

that

he

was

disabled

because

an

operation he had “to relieve Achalasia,” (a digestive disorder)
required him to “sleep in a reclining position which often ma[de]
it difficult to obtain restful sleep.”

(Compl. ¶ 42.)

Although

sleep is a major life activity, as defined by the ADA, whether a
person is legally disabled because of an inability to fall asleep
depends upon the severity of their condition.
15

See Reilly v.

Revlon,

Inc.,

620

F.

Supp.

2d

524,

540

(S.D.N.Y.

2009).

Plaintiff’s claim that it was difficult for him get a restful
night’s

sleep

does
limits

substantially

not
a

adequately
major

describe

life

a

condition

activity.

that

Moreover,

the

Complaint is devoid of additional facts addressing the severity of
Plaintiff’s

condition.

Plaintiff’s

ADA

claim

is

therefore

DISMISSED WITHOUT PREJUDICE.
IV.

ADEA Claim
A.

Pleading Standard Under the ADEA
ADEA

claims

are

analyzed

under

the

burden-shifting

paradigm established by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668
(1973).

See Sutera v. Schering Corp., 73 F.3d 13, 16, 16 n.2 (2d

Cir. 1995) (stating that courts apply the McDonnell Douglas burdenshifting framework to claims under the ADEA and the NYHRL).

Under

McDonnell Douglas, the plaintiff bears the initial burden of
establishing a prima facie case of discrimination or retaliation.
411

U.S.

at

804.

To

establish

a

prima

facie

case

of

discrimination, a plaintiff “must show (1) that she was within the
protected age group, (2) that she was qualified for the position,
(3) that she experienced adverse employment action, and (4) that
such

action

occurred

under

inference of discrimination.

circumstances

giving

rise

to

an

Gorzynski v. Jetblue Airways Corp.,

596 F.3d 93, 107 (2d Cir. 2010) (citation omitted); Bucalo v.
16

Shelter Island Union Free Sch. Dist., 691 F.3d 119, 129 (2d Cir.
2012).
The Supreme Court has held, however, that a plaintiff
need not plead the elements of a prima facie case in his or her
complaint.

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510, 122 S.

Ct. 992, 997, 152 L. Ed. 2d 1 (2002) (“The prima facie case under
McDonnell Douglas . . . is an evidentiary standard, not a pleading
requirement.”).

Rather, a complaint need only contain a “‘short

and plain statement of the claim showing that the pleader is
entitled to relief,’” and “‘giv[ing] the defendant fair notice of
what the plaintiff’s claim is and the grounds upon what it rests.’”
Id. at 512 (quoting FED. R. CIV. P. 8(a)(2); accord Conley v. Gibson,
355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)).
reconciling

Swierkiewicz

with

Twombly

and

Iqbal,

Thus,

although

“a

complaint need not establish a prima facie case of employment
discrimination to survive a motion to dismiss . . . , the claim
must be facially plausible and must give fair notice to defendants
of the basis for the claim.” Barbosa v. Continuum Health Partners,
Inc., 716 F. Supp. 2d 210, 215 (S.D.N.Y. 2010) (internal quotation
marks and citation omitted); accord King v. U.S. Sec. Assocs.,
Inc., No. 11-CV-4457, 2012 WL 4122025, at *4 (S.D.N.Y. 2010).

“A

claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
17

Iqbal,

556 U.S. at 678 (citation omitted); accord Turkmen v. Ashcroft,
589 F.3d 542, 546 (2d Cir. 2009).

“For this conclusion to be

drawn, a plaintiff must allege facts that allow the court in
substance to infer elements of a prima facie case.”

King, 2012 WL

4122025, at *5 (collecting cases).
B.

Plaintiff’s ADEA Discrimination Claim
Defendants

argue

that

the

Plaintiff’s

ADEA

discrimination claim should be dismissed because: (1) Plaintiff
fails to state his age in the Complaint, thus failing to establish
that he is a member of a protected class; (2) Plaintiff fails to
set forth any specific details which led to the adverse employment
action; and (3) Plaintiff’s allegation that “a younger individual”
was

appointed

to

the

coordinator

position,

is

sufficient to support a claim of age discrimination.

not,

alone,

(Defs.’ Br.

at 12.)
The Court agrees that Plaintiff has failed to allege
that he is a member of a protected class, because the Complaint is
devoid of any suggestion as to Plaintiff’s age.

Additionally,

Plaintiff’s allegation that “a younger individual” (Compl. ¶ 37)
was appointed to the coordinator position is insufficient to
support an inference of age discrimination.

See e.g. Fagan v.

N.Y. State Electric & Gas Corp., 186 F.3d 127, 134 (2d Cir. 1999)
(“The replacement of an older worker with a younger worker or
workers does not itself prove unlawful discrimination.”; Foster v.
18

Humane Soc’y of Rochester and Monroe Cnty., Inc., 724 F. Supp. 2d
382, 391 (W.D.N.Y. 2010) (finding that an allegation that the
plaintiff was replaced by a woman in her early thirties, “is not
enough to give rise to an age discrimination claim.”); Gundlach v.
Int’l Bus. Machines Corp., No. 11-CV-0846, 2012 WL 1520919, at *6
(S.D.N.Y. May 1, 2012), aff’d on other grounds, 594 F. App’x 8 (2d
Cir. 2014) (finding that an allegation that the plaintiff’s work
was divided among other personnel, at least one of whom was
considerably younger than the plaintiff, after his employment was
terminated was insufficient to state a plausible claim of age
discrimination); Nance v. City of New York, No. 09-CV-2786, 2011
WL 2837491, at *4 (E.D.N.Y. July 14, 2011) (“[A]n allegation that
plaintiff was replaced by a younger employee is not sufficient,
without more, to survive a motion to dismiss.”).

Accordingly, the

Court finds that Plaintiff’s ADEA discrimination claim is hereby
DISMISSED WITHOUT PREJUDICE.
V.

Constitutional Claims
The Plaintiff assets causes of action in the Complaint

pursuant to 42 U.S.C. § 1983 for violations of the First and
Fourteenth Amendments.
A.

Liability Under Monell
Because Plaintiff’s constitutional claims are brought

under 42 U.S.C. § 1983, and because a municipality is a named
defendant, the Court must consider whether the allegations in the
19

Complaint are sufficient to satisfy Monell’s requirements.

See

Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 69192, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611 (1978); Roe v. City of
Waterbury, 542 F.3d 31, 36 (2d Cir. 2008).
To

prevail

on

a

Section

1983

claim

against

a

municipality, a plaintiff must show “that ‘action pursuant to
official

municipal

policy’

caused

the

alleged

constitutional

injury.”

Cash v. Cnty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011)

(quoting Connick v. Thompson, 131 S. Ct. 1350, 1359, 179 L. Ed. 2d
417

(2011)).

“[L]ocal

constitutional

governments

deprivations

visited

.

.

.

may

pursuant

be

to

sued

for

governmental

‘custom’ even though such a custom has not received formal approval
through the body’s official decisionmaking channels.”

Monell, 436

U.S. at 690-91, 98 S. Ct. at 2036 (citation omitted).
To establish the existence of a municipal policy or
custom, the plaintiff must allege: (1) the existence of a formal
policy which is officially endorsed by the municipality; (2)
actions taken or decisions made by municipal officials with final
decision-making authority, which caused the alleged violation of
plaintiff’s

civil

rights;

(3)

a

practice

so

persistent

and

widespread that it constitutes a custom of which constructive
knowledge and acquiescence can be implied on the part of the policy
making officials; or (4) a failure by policymakers to properly
train or supervise their subordinates, amounting to deliberate
20

indifference to the rights of those who come in contact with the
municipal employees.

Moray v. City of Yonkers, 924 F. Supp. 8, 12

(S.D.N.Y. 1996) (citations omitted).
Here,

the

Complaint

fails

to

allege

that

decisions

effecting Plaintiff’s employment were based on a county policy or
custom of discrimination based on age or disability.

See Sarus v.

Rotundo, 831 F.2d 397, 400 (2d Cir. 1987) (“[t]o recover against
the municipality, it must be demonstrated that the official policy
in question constitutes the moving force of the constitutional
violation”)

(internal

Plaintiff’s

quotation

opposition

marks

memorandum

and

citation

argues

that

omitted).

“Defendants

collectively violated his constitutional rights by engaging in a
custom

or

disability

practice
and

age.”

predicated
(Pl.’s

upon

Br.,

his

Docket

protected
Entry

However, this statement alone is insufficient.

12,

speech,
at

10.)

These facts are

asserted in Plaintiff’s Memorandum of Law, not in the Complaint,
and as such cannot be properly considered by the Court in deciding
the Motion to Dismiss.
2896990,

at

*5

See Paul v. Baily, No. 09-CV-5784, 2013 WL

(S.D.N.Y.

June

13,

2013)

(“[A]s

a

general

rule, . . . courts should not consider factual allegations made
for the first time in opposition papers.”); Friedman v. MiraMed
Revenue Grp., LLC, No. 12-CV-5328, 2012 WL 5992163, at *3 (S.D.N.Y.
Nov. 19, 2012) (“[T]he [c]ourt declines to consider the additional
facts set forth in plaintiff’s opposition papers that are not in
21

his complaint.”); Kalin v. Xanboo, 526 F. Supp. 2d 392, 398-99
(S.D.N.Y.

2007)

(holding

that

a

court’s

analysis

under

Rule

12(b)(6) “is limited to information contained within the four
corners of the complaint” and that “[w]hen material outside the
pleadings is presented in response to a motion to dismiss, the
court must either exclude the additional material and decide the
motion on the complaint alone or convert the motion to one for
summary

judgment”

omitted)).

(internal

quotation

marks

and

citations

Thus, because Plaintiff has failed to allege the

existence of a municipal policy or custom sufficient to impose
municipal liability in the Complaint, Plaintiff’s Section 1983
claim against the County is DISMISSED WITHOUT PREJUDICE.
B.

First Amendment Retaliation
Plaintiff brings his First Amendment retaliation claim,

pursuant to 42 U.S.C. § 1983.

“Section 1983 provides a private

right of action against any person who, acting under color of state
law, causes another person to be subjected to the deprivation of
rights under the Constitution or federal law.”
186 F.3d 252, 264 (2d Cir. 1999).

Blyden v. Mancusi,

Section 1983 “‘is not itself a

source of substantive rights, but a method for vindicating federal
rights elsewhere conferred by those part of the United States
Constitution and federal statutes that it describes.’”

Nasca v.

Cnty. of Suffolk, 933 F. Supp. 2d 437, 442 (E.D.N.Y. 2013) (quoting

22

Baker v. McCollan, 443 U.S. 137, 145 n.3, 99 S. Ct. 2689, 2695, 61
L. Ed. 2d 433 (1979)).
Defendants claim that Plaintiff has failed to make out
a prima facie First Amendment retaliation claim.
6-9.)

To

make

out

a

prima

facie

case

of

(Defs.’ Br. at
First

Amendment

retaliation, a public employee must put forth evidence showing
that:

“‘(1)

he

engaged

in

constitutionally

protected

speech

because he spoke as a citizen on a matter of public concern; (2)
he suffered an adverse employment action; and (3) the speech was
a

‘motivating

factor’

in

the

adverse

employment

decision.’”

Frisenda v. Inc. Vill. of Malverne, 775 F. Supp. 2d 486, 503
(E.D.N.Y. 2011) (quoting Skehan v. Vill. of Mamaroneck, 465 F.3d
96, 106 (2d Cir, 2006), overruled on other grounds by Appel v.
Spriridon, 531 F.3d 138, 140 (2d Cir. 2008)). Defendants may still
escape liability, however, “‘if they can demonstrate that either
(1) the defendant would have taken the same adverse action against
the plaintiff regardless of the plaintiff’s speech; or (2) the
plaintiff’s expression was likely to disrupt the government’s
activities and that the harm, . . . outweighs the value of the
plaintiff’s expression.’”
Plaintiff
protected

speech

Id. (quoting Skehan, 465 F.3d at 106).

claims
by:

(1)

he

engaged

making

in

statements

constitutionally
concerning

the

disparity of resources afforded to the three college campuses; (2)
making statements about the use of college advertisements, which
23

Plaintiff maintained had racist overtones; and (3) vocalizing
concerns about the demographic makeup of SCCC’s honors program and
its admissions criteria.

(Pl.’s Br. at 13.)

Defendants dispute

that Plaintiff’s speech was constitutionally protected.
At
Complaint

the

is

outset,

replete

with

the

Court

naked

notes

assertions

that

Plaintiff’s

that

Defendants’

complained-of conduct was inflicted in retaliation for his public
statements.

These conclusory allegations of causation will simply

not support a First Amendment retaliation claim.

See Geiger v.

Town of Greece, No. 07-CV-6066, 2007 WL 4232717, at *9 (W.D.N.Y.
Sep. 4, 2007) (causation not adequately pled by “purely conclusory”
allegations).

Nevertheless, assuming arguendo that Plaintiff had

alleged sufficient facts, Plaintiff’s claim would still fail.
As to the nature of his speech, Plaintiff has failed to
satisfactorily allege that he was speaking as a citizen on a matter
of public concern. First, Plaintiff’s duties as a professor and/or
as Coordinator of the Honors Program did not require him to
evaluate his students and the students within the Honor’s Program,
which is what Plaintiff’s speech concerned.

See Garcetti v.

Ceballos, 547 U.S. 410, 421, 126 S. Ct. 1951, 1959-60, 164 L. Ed.
2d 689 (2006) (assistant district attorney was not speaking as a
citizen when his expressions were made “pursuant to his duties”).
Although, speech can be “pursuant to” public employees’ official
duties “even though it is not required by, or included in, the
24

employee’s job description, or in response to a request by the
employer,”

Weintraub v. Bd. of Educ. of City Sch. Dist. of City

of N.Y., 593 F.3d 196, 203 (2d Cir. 2010) (internal quotation marks
and citation omitted), the speech in this case--objections to the
college permitting unqualified students to enroll in its Honors
Program, and speech concerning SCCC’s advertising, admissions, and
campus budget policies having a disparate impact on minority
students--were inherent to Plaintiff’s role as a professor, a
“means to fulfill” his responsibilities, and “undertaken in the
course of performing” his job.

Id. (internal quotation marks and

citation omitted); see also Garcetti, 547 U.S. at 422 (contrasting
the assistant district attorney’s case with a schoolteacher “whose
letter to the newspaper had no official significance and bore
similarities to letters submitted by numerous citizens every day.”
Second, Plaintiff’s speech did not relate to an issue of
public concern in the sense that it was of some general societal
interest.

“To constitute speech on a matter of public concern, an

employee’s expression must ‘be fairly considered as relating to
any

matter

community.’”

of

political,

social,

or

other

concern

to

the

Jackler v. Byrne, 658 F.3d 225, 236 (2d Cir. 2011)

(quoting Connick v. Myers, 461 U.S. 138, 146, 103 S. Ct. 1684,
1690, 75 L. Ed. 2d 708 (1983)); see Cioffi v. Averill Park Cent.
Sch. Dist. Bd. of Educ., 44 F.3d 158, 163 (2d Cir. 2006) (whether
speech related to a matter of public concern depends on the
25

“‘content, form, and context of a given statement, as revealed by
the whole record’” (quoting Connick, 461 U.S. at 147-48)).

This

can be a broad test; for example, “a topic is a matter of public
concern

for

First

Amendment

purposes

if

it

is

‘of

general

interest,’ or ‘of legitimate news interest,’ or ‘of value and
concern to the public at the time’ of the speech.”

Jackler, 658

F.3d at 236 (quoting City of San Diego v. Roe, 543 U.S. 77, 8384, 125 S. Ct. 521, 525-26, 160 L. Ed. 2d 410 (2004)).

Here,

Plaintiff’s speech pertained to programs and services provided by
SCCC to its students and faculty, including the Honors Program and
faculty development courses.
level of public concern.

Such speech does not rise to the

Cf. Cioffi, 444 F.3d at 165 (“abundant

press coverage” of a hazing incident helped show that plaintiff’s
letter concerning the incident was speech on a matter of public
concern); cf. also, Reuland v. Hynes, 460 F.3d 409, 418 (2d Cir.
2006) (statement made in an interview to New York Magazine related
to matter of public concern).
In sum, Plaintiff fails to adequately allege that his
speech was protected, and thus, fails to state a claim for First
Amendment retaliation.

Accordingly, Plaintiff’s First Amendment

retaliation claims as against SCCC and the individual Defendants
are DISMISSED WITH PREJUDICE.

26

C.

Equal Protection
Plaintiff maintains that Defendants violated his right

to

equal

protection

by

engaging

in

disparate

treatment

and

harassment based on his age, disability, and in retaliation for
his protected speech.

(Pl.’s Br. at 16.)

Defendants argue that

Plaintiff has failed to allege a violation of the Equal Protection
Clause because: (1) Plaintiff is not a member of a protected class;
(2) Plaintiff is a public employee and, therefore, barred from
asserting a class-of-one theory for Equal Protection purposes; and
(3) Plaintiff has failed to allege that there are others who are
similarly situated.

(Defs.’ Br. at 15-16.)

“The Equal Protection Clause of the Fourteenth Amendment
requires

the

government

to

treat

similarly

situated

persons

alike.”

Missere v. Gross, 826 F. Supp. 2d 542, 560 (S.D.N.Y.

2011).

Here, because as discussed above, Plaintiff has not

adequately pleaded that he is disabled, and does not allege that
he is a member of any other protected class, he may only proceed
under one of two equal protection theories: selective enforcement
of “class of one.”
omitted).

Id. (internal quotation marks and citation

In order to adequately allege a selective enforcement

claim, a plaintiff must allege: “(1) [he was] treated differently
from

other

similarly

situated

individuals

and

(2)

this

differential treatment was based on impermissible consideration
such as race, religion, intent to inhibit or punish the exercise
27

of constitutional rights, or malicious or bad faith intent to
injure a person.”

MacPherson v. Town of Southampton, 738 F. Supp.

2d 353, 370 (E.D.N.Y. 2010) (internal quotation marks and citation
omitted).

Alternatively,

where

a

plaintiff

does

not

plead

selective treatment based upon impermissible considerations, he
can also allege a class-of-one equal protection claim.
371.

Id. at

“In order to adequately allege an equal protection claim on

a ‘class of one’ theory, a plaintiff must demonstrate that: (1) he
was

‘intentionally

treated

differently

from

others

similarly

situated,’ and (2) ‘that there is no rational basis for the
difference in treatment.’”

Vaher v. Town of Orangetown, N.Y., 916

F. Supp. 2d 404, 433 (S.D.N.Y. 2013) (quoting Vill. of Willowbrook
v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 1074, 145 L. Ed. 2d
1060 (2000)).

Courts in this Circuit are split regarding the

definition of “similarly situated” in selective enforcement and
class-of-one cases.

Some courts have held that the definitions

are the same in both cases, and the 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

legitimate

the

differential

government

circumstances

and

policy;

difference

in

treatment
and

(ii)

treatment

on

the

the
are

basis

of

a

similarity

in

sufficient

to

exclude the possibility that the defendant acted on the basis of
a mistake.”

Roman Catholic Diocese of Rockville Centre, N.Y. v.
28

Inc. Vill. of Old Westbury, No. 09-CV-5195, 2012 WL 1392365, at
*12

(E.D.N.Y.

Apr.

23,

2012)

(internal

citations omitted (collecting cases).

quotation

marks

and

Other courts have applied

a somewhat less stringent standard in selective enforcement cases,
requiring “plaintiffs to show that plaintiff and comparators were
‘similarly situated in all material respects,’ or that ‘a prudent
person, looking objectively at the incidents, would think them
roughly equivalent.’”

Missere, 826 F. Supp. 2d at 561 (quoting

Vassallo v. Lando, 591 F. Supp. 2d 172, 184 (E.D.N.Y. 2008); Yajure
v. DiMarzo, 130 F. Supp. 2d 568, 572 (S.D.N.Y. 2001)).
Defendants are correct that the Equal Protection Clause
does not apply to public employees, like Plaintiff, who are
asserting a class-of-one theory of discrimination.
argument is foreclosed in this case.

Thus, such an

See Gentile v. Nulty, 769 F.

Supp. 2d 573, 578-81 (S.D.N.Y. 2011).
Additionally, even applying the less stringent standard,
Plaintiff
situated.”

has

failed

to

adequately

allege

others

“similarly

Plaintiff’s Complaint only discusses actions taken

with respect to Plaintiff, but there is no discussion whatsoever
of any similarities between Plaintiff and others.

See Vaher, 916

F. Supp. 2d at 434 (dismissing an equal protection claim because
plaintiff did “not allege that he was treated differently from any
identified individuals, let alone individuals who he claims were
similarly situated to him in any respect” (emphasis in original)).
29

The Court will not read between the lines of the Complaint and
deem Plaintiff similarly situated to others.

Plaintiff’s equal

protection claim is therefore DISMISSED WITHOUT PREJUDICE.
D.

Due Process
Plaintiff

contends

that

he

maintained

a

property

interest in his position as Coordinator of the Honors Program
because

of

his

tenured

faculty

position,

and

was

deprived

procedural due process when the position was eliminated without a
hearing.

(Pl.’s Br. at 17.)
The

Fourteenth

The Court disagrees.
Amendment’s

Due

Process

Clause

“guarantees procedural fairness when a state action deprives a
citizen of a protected interest in life, liberty, or property.”
Wiesner v. Rosenberger, No. 98-CV-1512, 1998 WL 695927, at *3
(S.D.N.Y. Oct. 8, 1998).

To invoke the Due Process Clause, a

plaintiff must seek to “protect something more than an ordinary
contractual right,” S & D Maint. Co. v. Goldin, 844 F.2d 962, 966
(2d Cir. 1988), or a “‘unilateral expectation,’” Looney v. Black,
702 F.3d 701, 706 (2d Cir. 2012) (quoting Bd. of Regents of State
Colleges v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L.
Ed. 2d 548 (1972)).
It

is

well

established

that

a

tenured

teacher

“a

protected property interest in [his] position which entitle[s him]
to due process prior to removal” by a school district.

Gipson v.

Hempstead Union Free Sch. Dist., No. 09-CV-5466, 2010 WL 4942650,
30

at *3 (E.D.N.Y. Nov. 18, 2010).

However, “‘personnel decisions

short of termination do not constitute a deprivation of a property
interest’ cognizable under the Fourteenth Amendment.”

Mirabilio

v. Reg’l Sch. Dist. 16, No. 11-CV-1468, 2013 WL 5436825, at *2 (D.
Conn. Sept. 27, 2013) aff’d, 761 F.3d 212 (2d Cir. 2014) (quoting
Wargat v. Long, 590 F. Supp. 1213, 1215 (D. Conn. 1984)); accord
Bernheim v. Litt, 79 F.3d 318, 322-23 (2d Cir. 1996) (“the concept
of tenure in the teaching profession ‘does not entitle a teacher
to a specific class or proscribe assignment to proper duties of a
teacher other than classroom teaching of a specific subject.’”
(quoting Adlerstein v. Board of Educ. of N.Y. City, 64 N.Y.2d 90,
99, 474 N.E.2d 209, 212–13, 485 N.Y.S.2d 1, 5 (1984))); Guida v.
Police Dep’t of City of New York, No. 96-CV-0355, 1997 WL 269508,
at *2 (S.D.N.Y. May 20, 1997).

Thus, although Plaintiff has a

property interest in his position as a tenured professor, his
property

interest

did

not

extend

to

the

honors

coordinator

position, which the school had authority to eliminate without
holding a hearing.

Therefore, Plaintiff’s procedural due process

claim is DISMISSED WITHOUT PREJUDICE.
E.

Hostile Work Environment
“A hostile work environment arises ‘when the workplace

is

permeated

with

discriminatory

intimidation,

ridicule,

and

insult, that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working
31

environment.’”

El v. N.Y. State Psychiatric Inst., No. 13-CV-

6628, 2014 WL 4229964, at *5 (S.D.N.Y. Aug. 19, 2014) (brackets
omitted) (quoting Amtrack v. Morgan, 536 U.S. 101, 116, 122 S. Ct.
2061, 2074, 153 L. Ed. 2d 106 (2002)).

To state a claim for

hostile work environment,
a plaintiff must plead facts that would tend
to show that the complained of conduct: (1)
“is objectively severe or pervasive--that is,
. . . creates an environment that a reasonable
person would find hostile or abusive;” (2)
creates an environment “that the plaintiff
subjectively perceives as hostile or abusive;”
and (3) “creates such an environment because
of
the
plaintiff’s
[protected
characteristic].”
Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (ellipsis in
original) (quoting Gregory v. Daly, 243 F.3d 687, 691-92 (2d Cir.
2001)). “[A] work environment’s hostility should be assessed based
on the ‘totality of the circumstances.’”

Id. at 113 (quoting

Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S. Ct. 367,
371, 126 L. Ed. 2d 295 (1993)).

In assessing the totality of the

circumstances, the court should consider: “(1) the frequency of
the discriminatory conduct; (2) its severity; (3) whether it is
threatening and humiliating, or a mere offensive utterance; and
(4) whether it unreasonably interferes with an employee’s work
performance.”

Id.

(internal

quotation

omitted).

32

marks

and

citation

In

support

of

his

hostile

work

environment

claim,

Plaintiff asserts that Defendants engaged in an “orchestrated
program of harassment and differential treatment predicated upon
[his] age, disability and in retaliation for [his] protected
speech.”

(Compl. ¶ 33.)

This assertion is conclusory, however,

and the Complaint lacks any further detail about the nature and
frequency of the conduct which created the allegedly hostile work
environment.

See Alfano v. Costello, 294 F.3d 365, 379-80 (2d

Cir. 2002). Accordingly, Defendants’ motion to dismiss the hostile
work environment claim is GRANTED and the claim is DISMISSED
WITHOUT PREJUDICE.
VI.

Exhaustion of Administrative Remedies
Defendants

argue

that

Plaintiff’s

claims

against

Defendant Britton for discriminatory and retaliatory conduct,
“were not part of the DHR Charges and are therefore, not properly
brought before this Court.”

(Defs.’ Br. at 19.)

Defendants’ also

assert that Plaintiff’s claims that he vocalized opposition to
various SCCC practices were not presented to the DHR in either of
his claims.

(Defs.’ Br. at 19.)

A plaintiff bringing claims under the ADA must exhaust
certain administrative remedies before initiating suit in the
district court.

See Curto v. Edmundson, 392 F.3d 502, 503 (2d

Cir. 2004), cert. denied 545 U.S. 1133, 125 S. Ct. 2944, 162 L.
Ed. 2d 875 (2005).

“[A] plaintiff typically may raise in a
33

district

court

included

in

or

complaint
are

only

those

‘reasonably

contained in [his] EEOC charge.”

claims

related

to’

that
the

either

were

allegations

Holtz v. Rockefeller & Co., 258

F.3d 62, 83 (2d Cir. 2001) (quoting Butts v. City of N.Y. Dep’t of
Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir 1993), superseded
by statute on other grounds as stated in, Hawkins v. 1115 Legal
Serv. Care, 163 F.3d 684, 693 (2d Cir. 1998)); see generally
Francis v. City of New York, 235 F.3d 763, 767-68 (2d Cir. 2000)
(exhaustion requirement is not jurisdictional, but subject to
waiver, estoppel, and equitable tolling)). A claim is “‘reasonably
related if the conduct complained of would fall within the scope
of the EEOC investigation which can reasonably be expected to grow
out of the charge that was made.’”

Deravin v. Kerik, 335 F.3d

195, 200-01 (2d Cir. 2003) (quoting Fitzgerald v. Henderson, 251
F.3d 345, 359-60 (2d Cir. 2001)).
Plaintiff’s claims of discriminatory and retaliatory
conduct against Defendant Britton were not part of the DHR charges
and are therefore not properly before this Court.
Exs. at 23-30, 36-44.)

(See Defs.’

Additionally, Plaintiff’s current pleading

alleges that he continuously vocalized his opposition to various
SCCC practices dating back to 2005, and only reiterated them in
2013.

(Compl. ¶¶ 25-30.)

This information was not presented to

the DHR in either of Plaintiff’s claims for the relevant time
period.
34

Due to Plaintiff’s failure to provide any allegations
that would suggest discrimination on the part of Defendant Britton
or

Plaintiff’s

claim

that

he

vocalized

opposition

to

SCCC’s

practices in 2005, the EEOC and DHR were denied adequate notice to
investigate

discrimination

on

these

bases.

Accordingly,

Defendants’ motion to dismiss insofar as it seeks dismissal of
Plaintiff’s

discrimination

and

retaliation

claims

against

Defendant Britton for failure to exhaust administrative remedies
is GRANTED.

These claims are DISMISSED WITH PREJUDICE.

VII. State Law Claims
Finally, the Court declines supplemental jurisdiction as
to Plaintiff’s remaining state law claims.

Under Carnegie-Mellon

Univ. v. Cohill, 484 U.S. 343, 350, 108 S. Ct. 614, 619, 98 L. Ed.
2d 720 (1988), a federal court should generally decline to exercise
supplemental jurisdiction over state law claims if, as is the case
here, the Complaint asserts federal question jurisdiction but not
diversity jurisdiction, and the Complaint’s federal claims are
dismissed in the litigation’s early stages.

See also 28 U.S.C.

§ 1367(c)(3); Tops Mkts., Inc. v. Quality Mkts., Inc., 142 F.3d
90, 103 (2d Cir. 1998) (“[W]hen all federal claims are eliminated
in the early stages of litigation, the balance of factors generally
favors declining to exercise pendent jurisdiction over remaining
state law claims and dismissing them without prejudice.” (emphasis
in original)).
35

Accordingly, Plaintiff’s New York State Human Rights Law
claims are DISMISSED WITHOUT PREJUDICE.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss
is GRANTED.

Specifically, Plaintiff’s ADA and ADEA claims against

the individual Defendants, as well as Plaintiff’s First Amendment
retaliation claims are DISMISSED WITH PREJUDICE.

Plaintiff’s

claims for discrimination under the ADA and ADEA, as well as
Plaintiff’s Equal Protection Clause, Due Process Clause, hostile
work environment claims, and Section 1983 claim against the County
are DISMISSED WITHOUT PREJUDICE and WITH LEAVE TO REPLEAD.

If

Plaintiff wishes to file an Amended Complaint he must do so within
thirty (30) days of the date of this ORDER. If Plaintiff fails to
file an Amended Complaint the ADA, ADEA, Equal Protection Clause,
Due Process Clause, hostile work environment claims, and Section
1983 claim against the County will be DISMISSED WITH PREJUDICE.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

August
26 , 2015
Central Islip, NY

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