Epstein v. County of Suffolk et al
Filing
29
MEMORANDUM & ORDER granting 20 Motion to Dismiss for Failure to State a Claim: Defendants motion to dismiss is GRANTED in its entirety. (Docket Entry 20.) Plaintiffs due process claim is DISMISSED WITHOUT PREJUDICE for lack of subject matter juri sdiction, and the remaining claims are DISMISSED WITH PREJUDICE. The Clerk of the Court is respectfully directed to enter judgment in favor of Defendants and to mark this matter CLOSED. SO Ordered by Judge Joanna Seybert on 8/11/2016. (Tirado, Chelsea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
STEVEN EPSTEIN,
Plaintiff,
-against-
MEMORANDUM & ORDER
14-CV-0937(JS)(ARL)
COUNTY OF SUFFOLK and SUFFOLK
COUNTY COMMUNITY COLLEGE,
Defendants.
-----------------------------------X
APPEARANCES
For Plaintiff:
Steven A. Morelli, Esq.
The Law Offices of Steven A. Morelli, P.C.
990 Stewart Avenue, Suite 130
Garden City, NY 11530
Jonathan A. Tand, Esq.
Tand & Associates
990 Stewart Avenue, Suite 130
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, formerly a tenured professor
of Suffolk County Community College (“SCCC”), filed an Amended
Complaint on September 25, 2015, alleging that his former employers
discriminated against him because of his age and disability.
Defendants have filed a motion to dismiss for lack of subject
matter jurisdiction and for failure to state a claim.
(Docket
Entry 20.)
For the following reasons, Defendants’ motion is
GRANTED.
BACKGROUND
The
Court
assumes
familiarity
with
the
facts
and
procedural history of this case, which are chronicled in the
Court’s prior decision.
See generally Epstein v. Cty. of Suffolk,
No. 14-CV-0937, 2015 WL 5038344 (E.D.N.Y. Aug. 26, 2015).
The
salient details are discussed below.
During his ten-year career with SCCC, Plaintiff served
as a tenured professor and a coordinator of SCCC’s honors program.
(Am. Compl., Docket Entry 18, ¶¶ 21, 23.)
After his appointment
as honors coordinator, Plaintiff voiced concerns to the SCCC
administration that various school-wide practices diminished the
quality of the honors program and disproportionately impacted
minority students.
these
concerns,
(Am. Compl. ¶¶ 24–25, 27.)
Defendants
allegedly
removed
In response to
Plaintiff
as
an
honors coordinator and denied his request to accommodate his
medical disability.
Plaintiff
(Am. Compl. ¶¶ 36–37, 44.)
allegedly
suffers
from
achalasia,
severe
drowsiness, insomnia, and extremely high blood pressure, “the
medication for which also contributes to sleep disorders and
fatigue.”
(Am. Compl. ¶ 55.)
Achalasia is a digestive disorder
that affects a person’s ability to swallow food.
¶ 55.)
(Am. Compl.
Because of his achalasia, Plaintiff has “severe problems
2
falling asleep, sleeping undisturbed, and . . . remaining awake
when driving long distances.”
(Am. Compl. ¶ 56.)
In fact, he
“must sleep semi-upright to avoid night time acid reflux.”
Compl. ¶ 55.)
(Am.
Because Plaintiff is “too tired to safely drive” to
SCCC campus, (Am. Compl. ¶ 42), Plaintiff requested to “teach most
of his course load and hold office hours remotely, via distance
learnin.” (Am. Compl. ¶ 45).
accommodation.
Defendants denied the requested
(Am. Compl. ¶ 44.)
Following this, Plaintiff filed two complaints with the
New York State Division of Human Rights (“NYSDHR”): one alleging
age
and
disability
retaliation.
discrimination
(Am. Compl. ¶ 5.)
and
the
other
alleging
The NYSDHR denied the first
complaint on evidentiary grounds and the second for administrative
convenience because Plaintiff wished to pursue his case in federal
court.
(Am. Compl. ¶ 5.)
The Equal Employment Opportunity
Commission adopted the NYSDHR’s findings and issued a Notice of
Right to Sue.
(Am. Compl. ¶ 6.)
Plaintiff then filed this lawsuit.
He alleges that
Defendants violated the Americans with Disabilities Act (“ADA”),
42
U.S.C.
§
12101,
et
seq.
as
amended
in
2008;
the
Age
Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621,
et seq.; and the United States Constitution under 42 U.S.C. § 1983.
(Am. Compl. ¶ 1.)
Defendants filed a motion to dismiss, which the
3
Court granted with leave to replead.
(See, Aug. 26, 2015 Mem. &
Order, Docket Entry 16.)
DISCUSSION
As a preliminary matter, the Court notes that Plaintiff
is withdrawing his retaliation claim under state law.
(See Pl.’s
Br., Docket Entry 22, at 2.)
I.
Legal Standard
A.
Rule 12(b)(1)
To assert an employment discrimination claim in federal
court, a would-be litigant must first exhaust his administrative
remedies by filing a timely complaint with the EEOC.
See Holtz v.
Rockefeller & Co., Inc., 258 F.3d 62, 82–83 (2d Cir. 2001); Agosta
v. Suffolk Cty., 981 F. Supp. 2d 167, 172 (E.D.N.Y. 2013).
This
exhaustion requirement “give[s] the [EEOC] the opportunity to
investigate, mediate and take remedial action.”
Stewart v. United
States I.N.S., 762 F.2d 193, 198 (2d Cir. 1985).
Accordingly,
“‘claims that were not asserted before the EEOC may be pursued in
a subsequent federal court action if they are reasonably related
to those that were filed with the agency.’”
Jute v. Hamilton
Sundstrand Corp., 420 F.3d 166, 177 (2d Cir. 2005) (quoting Legnani
v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d
Cir. 2001) (per curiam)).
Conduct is reasonably related if it
“‘would fall within the scope of the EEOC investigation which can
reasonably be expected to grow out of the charge that was made.’”
4
Id. (quoting Fitzgerald v. Henderson, 251 F.3d 345, 359–60 (2d
Cir. 2001)); see also Deravin v. Kerik, 335 F.3d 195, 201 (2d
Cir. 2003) (permitting a “loose pleading” standard because “EEOC
charges frequently are filled out by employees without the benefit
of counsel” (internal quotation marks and citation omitted)).
In
sum, a federal court lacks subject matter jurisdiction if a
plaintiff’s allegations were not filed with the EEOC or not
“‘reasonably related’ to the allegations in the complaint that was
filed with the EEOC.”
Owens v. N.Y. City Hous. Auth., 934 F.2d
405, 410 (2d Cir. 1991).
B.
Rule 12(b)(6)
When reviewing a motion to dismiss, the Court construes
“the complaint liberally, accepting all factual allegations in the
complaint as true, and drawing all reasonable inferences in the
plaintiff’s favor.”
Chambers v. Time Warner, Inc., 282 F.3d 147,
152 (2d Cir. 2002).
The complaint must plead “enough facts to
state a claim to relief that is plausible on its face,” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L.
Ed. 2d 929 (2007), and allow the Court “to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173
L. Ed. 2d 868 (2009).
Although the plaintiff need not provide
“detailed factual allegations” to support his claims, Twombly, 550
U.S. at 555–56, 127 S. Ct. at 1964, Rule 12(b)(6) demands “more
5
than
an
unadorned,
accusation.”
the-defendant-unlawfully-harmed-me
Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949.
In conducting this analysis, the Court may consider “any
written instrument attached to [the complaint] as an exhibit,
materials incorporated in it by reference, and documents that,
although
not
incorporated
complaint.”
(internal
by
reference,
are
integral
to
the
Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004)
quotation
marks
and
citations
omitted);
see
also
Chambers, 282 F.3d at 153 (noting that a document is “integral” if
the complaint “relies heavily upon its terms and effect” (internal
quotation marks and citation omitted)); accord Muhammad v. N.Y.
City Trans. Auth., 450 F. Supp. 2d 198, 204–05 (E.D.N.Y. 2006)
(finding
that
a
state
agency’s
determination
is
a
“public
record[ ], of which this Court may take judicial notice” (citing
Moll v. Telesector Res. Grp., Inc., No. 04-CV-0805, 2005 WL
2405999, at *4 (W.D.N.Y. Sept. 29, 2005))).
Thus, the Court will
consider the NYSDHR’s determinations “without converting this
argument into a motion for summary judgment.”
See Muhammad, 450
F. Supp. 2d at 205.
The Court also recognizes that employment discrimination
claims
are
evaluated
under
the
well-worn,
burden-shifting
framework established by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802–05 (1973).
N.Y.
City
of
Dep’t
of
Educ.,
6
808
F.
See, e.g., Smith v.
Supp.
2d
569,
580
(S.D.N.Y. 2011); see also Gorzynski v. JetBlue Airways Corp., 596
F.3d 93, 106 (2d Cir. 2010).
Under this framework, the plaintiff
bears the initial burden of demonstrating a prima facie case of
discrimination.
at 1824.
McDonnell Douglas, 411 U.S. at 802, 93 S. Ct.
The defendant then bears the burden of establishing a
“legitimate, non-discriminatory reason” for its actions.
Id.
If
the defendant makes such a showing, the plaintiff must then prove
that the defendant’s articulated reasons are pretextual.
Id.
At the pleadings stage, however, a plaintiff need not
plead a prima facie case of discrimination.
See Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 510, 122 S. Ct. 992, 997, 152 L. Ed.
2d 1 (2002) (finding that the McDonnell Douglas framework only
applied at the summary judgment phase because it is “an evidentiary
standard, not a pleading requirement”); Vega v. Hempstead Union
Free Sch. Dist., 801 F.3d 72, 84 (2d Cir. 2015).
Rather, a
complaint need only contain “‘a short and plain statement of the
claim
showing
that
the
pleader
is
entitled
to
relief.’”
Swierkiewicz, 534 U.S. at 512, 122 S. Ct. at 998 (quoting FED R.
CIV. P. 8(a)(2)); accord Rodriguez v. Verizon Telecom, No. 13-CV6969, 2014 WL 6807834, at *3 (S.D.N.Y. Dec. 3, 2014) (observing
that the prima facie elements of a discrimination claim provide an
outline
as
to
whether
the
plaintiff’s
(citation omitted)).
7
claims
are
plausible
II.
Discrimination under the ADA
First, Plaintiff alleges that SCCC violated the ADA by
failing to provide reasonable accommodations for his disability.
(Pl.’s Br. at 5–7.)
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 plead a failure-to-accommodate claim, a plaintiff must assert
that “‘(1) plaintiff is a person with a disability under the
meaning of the ADA; (2) an employer covered by the statute had
notice
of
his
disability;
(3) with
reasonable
accommodation,
plaintiff could perform the essential functions of the job at
issue;
and
(4) the
accommodations.’”
employer
has
refused
to
make
such
McMillan v. City of N.Y., 711 F.3d 120, 125–26
(2d Cir. 2013) (quoting McBride v. BIC Consumer Prods. Mfg. Co.,
583
F.3d
92,
97
(2d
Cir.
2009)).
“By
requiring
reasonable
accommodation, ‘Congress intended simply that disabled persons
have the same opportunities available to them as are available to
nondisabled persons.’”
Lovejoy-Wilson v. Noco Motor Fuel, Inc.,
263 F.3d 208, 218 (2d Cir. 2001) (quoting Wernick v. Fed. Reserve
Bank, 91 F.3d 379, 384 (2d Cir. 1996)).
recognize,
though,
that
“there
are
two
It is important to
requirements:
the
impairment must limit a major life activity and the limitation
must be substantial.”
Capobianco v. City of N.Y., 422 F.3d 47, 56
(2d Cir. 2005).
8
Plaintiff fails to satisfy the second requirement--that
he suffers from a substantial disability.
Although sleep is
“‘undoubtedly a major life activity,’” the Amended Complaint lacks
any inferences that Plaintiff’s difficulties “produce[d] the kind
of chronic, profound insomnia typically required to establish a
substantial limitation.”
See De La Noval v. Papa’s Dodge, No. 14-
CV-0460, 2015 WL 1402010, at *6 (D. Conn. Mar. 26, 2015) (quoting
Colwell v. Suffolk Cty. Police Dep’t, 158 F.3d 635, 643 (2d
Cir. 1998), superseded by statute on other grounds, ADA Amendments
Act of 2008, Pub. L. 110–325, 122 Stat. 3553 (2008), as recognized
in Ragusa v. Malverne Union Free Sch. Dist., 381 F. App’x 85, 88
(2d Cir. 2010) (unpublished))).
Plaintiff rephrases some language
from the original Complaint, but the end result is the same:
Plaintiff has trouble sleeping.
(Compare Compl., Docket Entry 1,
¶ 42 (sleeping in a “reclining position”) with Am. Compl. ¶ 42
(sleeping in a “semi-upright position”).)
As the Court previously
held, “Plaintiff’s claim that it was difficult for him to get a
restful night’s sleep does not adequately describe a condition
that substantially limits a major life activity.”
Epstein, 2015
WL 5038344, at *6.
Moreover, Plaintiff requested to work remotely because
he is “too tired to safely drive” to SCCC’s campus.
¶ 42.)
(Am. Compl.
His remaining issue, then, would be driving to work, and
“Plaintiff concurs that the courts in this Circuit have held that
9
driving in itself is not a major life activity.”
(Pl.’s Br. at 6
(citing Anderson v. Nat’l Grid, PLC, 93 F. Supp. 3d 120 (E.D.N.Y.
2015)).)
Admittedly,
paragraphs
asserts
forty-two
that
“his
and
Plaintiff’s
fifty-six
achalasia
(and
opposition
of
the
other
brief,
Amended
citing
Complaint,
conditions)
cause
impairments that he experiences throughout the day and that his
work
life
would
learning.”
be
improved
if
he
could
teach
via
distance
(Pl’s Br. at 6 (citing Am. Compl. ¶¶ 42, 56).)
But
the Amended Complaint says no such thing, so the Court will not
consider these new allegations.
See Friedl v. City of N.Y., 210
F.3d 79, 83–84 (2d Cir. 2000) (finding that a district court errs
when it “relies on factual allegations contained in legal briefs
or memoranda”).
But even if Plaintiff’s disability was substantial, the
Second Circuit has held that there must be a “causal link between
the specific condition which limits a major life activity and the
accommodation requested.”
Felix v. N.Y. City Trans. Auth., 324
F.3d 102, 104 (2d Cir. 2003).
No such showing has been made here.
In Felix, for example, a subway station employee suffered trauma
after learning that a fellow employee was killed because of a
firebombing incident at work.
Id. at 103.
The employee feared
for her own life and later developed a variety of symptoms,
including insomnia.
Id. at 103–04.
Because of her trauma, she
requested not to work in the subway. Id. at 104. When her employer
10
denied this accommodation, she filed an ADA claim.
Id.
The
district court granted summary judgment in favor of the employer,
and the Second Circuit affirmed. Id. In reaching this conclusion,
the Second Circuit noted that plaintiff never argued that “she was
unable to work in the subway because such work aggravated her
insomnia; she told [her employer] that she could not work in the
subway because she was ‘terrified of being alone and closed in.’”
Id. at 106–07.
So too here.
Critically, the Amended Complaint
does not assert that teaching at SCC triggers Plaintiff’s sleeprelated disorders.
In other words, Plaintiff will ostensibly
suffer from his achalasia whether he teaches at home or on campus.
Thus, Plaintiff’s ADA claim is DISMISSED WITH PREJUDICE.
III. Age Discrimination Under the ADEA
Evidence
is
discrimination claim.
similarly
lacking
on
Plaintiff’s
The ADEA prohibits discrimination against
employees over forty years old because of their age.
§ 623(a)(1).
ADEA
29 U.S.C.
The purpose of the statute is to prevent an employer
from “rely[ing] on age as a proxy for an employee’s remaining
characteristics,
such
as
productivity.”
Hazen
Paper
Co.
v.
Biggins, 507 U.S. 604, 611, 113 S. Ct. 1701, 1706, 123 L. Ed.
2d 338 (1993).
A plaintiff establishes a prima facie case of age
discrimination under the ADEA by showing “(1) that []he was within
the protected age group, (2) that []he was qualified for the
position, (3) that []he experienced adverse employment action, and
11
(4) that such action occurred under circumstances giving rise to
an inference of discrimination.”
Gorzynski, 596 F.3d at 107.
Essentially, age must be “the ‘but-for’ cause of the challenged
employer decision.”
Gross v. FBL Fin. Servs., 557 U.S. 167, 178,
129 S. Ct. 2343, 2351, 174 L. Ed. 2d 119 (2009).
The Court finds that Plaintiff has failed to identify
another similarly situated employee who received better treatment.
The Amended Complaint offers only bald assertions that younger
individuals replaced older workers or received accommodations that
older workers did not receive.
Cf. Nance v. City of N.Y., 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.”).
But Plaintiff has not linked any employment decisions to inferences
of age discrimination.
used in ADEA cases.
Instead, he merely invokes terms of art
(See Am. Compl. ¶ 70 (“But for Plaintiff’s
age, he would have been accommodated.”).)
That is not enough.
Therefore, Plaintiff’s ADEA claim is DISMISSED WITH PREJUDICE.
IV.
Constitutional Claims
Plaintiff
(1) municipal
also
liability,
asserts
(2) due
four
process,
environment, and (4) equal protection.
them are unsuccessful.
12
constitutional
claims:
(3) hostile
work
As discussed below, all of
A.
Municipal Liability under Section 1983
Although Plaintiff contends that Defendants acted under
a policy to discriminate against him, nothing in the Amended
Complaint supports that conclusion. To plead a claim for municipal
liability, a plaintiff must show “an injury to a constitutionally
protected right . . . that . . . ‘was caused by a policy or custom
of the municipality or by a municipal official responsible for
establishing final policy.’”
Hartline v. Gallo, 546 F.3d 95, 103
(2d Cir. 2008) (quoting Skehan v. Vill. of Mamaroneck, 465 F.3d 96,
108-09 (2d Cir. 2006), overruled on other grounds by Appel v.
Spiridon, 531 F.3d 138 (2d Cir. 2008)); see also Monell v. Dep’t
of Soc. Servs. of City of N.Y., 436 U.S. 658, 690-91, 98 S.
Ct. 2018, 2035-36, 56 L. Ed. 2d 611 (1978).
Although a policy or
custom need not be explicitly stated, Kern v. City of Rochester,
93 F.3d 38, 44 (2d Cir. 1996) (citing Sorlucco v. N.Y. City Police
Dep’t, 971 F.2d 864, 870 (2d Cir. 1992)), isolated incidents will
not suffice.
See City of Okla. City v. Tuttle, 471 U.S. 808, 823-
24, 105 S. Ct. 2427, 2436, 85 L. Ed. 2d 791 (1985).
Indeed, the
“discriminatory practice must be so manifest as to imply the
constructive
acquiescence
of
senior
policy-making
officials.”
Sorlucco, 971 F.2d at 871 (citations omitted).
Here, the Amended Complaint contains no specific facts
demonstrating that Defendants had an official policy in place to
discriminate against employees like Plaintiff.
13
(See Am. Compl.
¶¶ 84–90.)
To be sure, Plaintiff alleges that SCCC diminished the
quality of the honors program and disproportionately impacted
minority students through the use of unethical policies.
Br. at 10.)
a
policy
(Pl.’s
But Plaintiff has not connected these allegations to
or
custom.
Rather,
Plaintiff
offers
conclusory
allegations that Defendants held a custom of “preferring younger
individuals to Plaintiff” and “failing to accommodate disabled
persons.”
(Am. Compl. ¶ 76(i)–(ii).)
What is more, Plaintiff has
not provided any evidence of other employees affected by this
supposed widespread discrimination.
See Murray v. Admin. for
Children’s Servs., 476 F. Supp. 2d 436, 442 (S.D.N.Y. 2007) (“The
Amended Complaint does not allege other similar instances of
malicious prosecution that could raise an inference that the
[defendant]
maintains
a
policy
or
custom
of
deliberate
indifference to these types of unconstitutional deprivations.”).
Thus, Plaintiff’s municipal liability claim is DISMISSED WITH
PREJUDICE.
B.
Due Process
Nor has Plaintiff plausibly alleged that he was denied
due process.
he
had
a
coordinator.
In the original Complaint, Plaintiff maintained that
property
interest
in
his
position
as
See Epstein, 2015 WL 5038344, at *11.
an
honors
This Court
disagreed, finding that any “property interest did not extend to
the honors coordinator position, which the school had authority to
14
eliminate without holding a hearing.”
Id.
The Amended Complaint
has offered no reasons to change this outcome.
And any new due process claims, including one based on
a property interest in Plaintiff’s position as a tenured professor,
are improperly before the Court because Plaintiff failed to exhaust
his administrative remedies.
(See Am. Compl. ¶¶ 79–82.)
The
Amended Complaint, for the first time, discusses how SCCC denied
Plaintiff a hearing when it terminated him as a tenured professor.
(Am. Compl. ¶ 82.)
NYSDHR.
This information was not presented to the
(See Barraga Aff. Ex. D, Second NYSDHR Charge, Docket
Entry 20-5, at 10 (discussing that Plaintiff was denied due process
for
his
removal
professor).)
as
an
honors
coordinator,
not
as
a
tenured
In other words, these allegations did not provide
adequate notice to the NYSDHR or the EEOC “to investigate, mediate
and take remedial action” before Plaintiff filed a federal lawsuit.
See Stewart, 762 F.2d at 198.
Accordingly, this later-articulated
claim of due process is not reasonably related to the previous
allegations made in the NYSDHR charges.
Thus, Plaintiff’s due
process claim is DISMISSED WITHOUT PREJUDICE for lack of subject
matter jurisdiction.
See Hernandez v. Conriv Realty Assocs., 182
F.3d 121, 123 (2d Cir. 1999) (“Article III deprives federal courts
of the power to dismiss a case with prejudice where federal subject
matter jurisdiction does not exist.”).
15
C.
Hostile Work Environment
Next, Plaintiff has not adequately plead his hostile
work environment claim.
To do so, a plaintiff must produce
evidence that the alleged 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
sex,’” or another protected characteristic.
See Conklin v. Cty.
of Suffolk, 859 F. Supp. 2d 415, 425 (E.D.N.Y. 2012) (quoting
Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007)).
work
environment
is
hostile
depends
on
the
Whether a
totality
of
the
circumstances, including “‘the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or
humiliating,
or
a
mere
offensive
utterance;
and
whether
it
unreasonably interferes with an employee’s work performance.’”
Kaytor v. Elec. Boat Corp., 609 F.3d 537, 547 (2d Cir. 2010)
(alterations omitted) (quoting Harris v. Forklift Sys., Inc., 510
U.S. 17, 23, 114 S. Ct. 367, 369, 126 L. Ed. 2d 295 (1993)).
Courts
in
this
Circuit
have
plaintiff’s burden is “remarkably high.”
recognized
that
a
See, e.g., DelaPaz v.
N.Y. City Police Dep’t, No. 01-CV-5416, 2003 WL 21878780, at *3
(S.D.N.Y. Aug. 8, 2003) (observing that “the Second Circuit erected
a remarkably high hurdle with respect to the level and frequency
16
of offensive conduct that must be present in order to sustain” a
hostile work environment claim).
True enough, a court is more
likely to find a hostile work environment when there is evidence
of sexual assaults, unwanted physical contact, obscene language,
and unwelcome sexual solicitations.
See Redd v. N.Y. Div. of
Parole, 678 F.3d 166, 177 (2d Cir. 2012).
But the Amended Complaint fails to indicate the type of
severe and pervasive harassment required under this Circuit’s
precedent.
Essentially, Plaintiff alleges that he was denied
stipends and threatened with discipline.
90.)
(See Am. Compl. ¶¶ 84–
In light of the Second Circuit’s “remarkably high” standard,
those allegations do not suffice.
at *3.
See DelaPaz, 2003 WL 21878780
Thus, Plaintiff’s hostile work environment claim is
DISMISSED WITH PREJUDICE.
D.
Equal Protection
Finally, Plaintiff has failed to plausibly allege his
Equal Protection claim.
First, “the Equal Protection Clause does
not apply to public employees, like Plaintiff, who are asserting
a
class-of-one
theory
WL 5038344, at *11.
of
discrimination.”
Epstein,
2015
Second, although Plaintiff references two
college professors who were granted his requested accommodation,
the Amended Complaint does not show that those professors were
similarly situated to him.
(Am. Compl. ¶ 93.)
Thus, Plaintiff’s
Equal Protection claim is DISMISSED WITH PREJUDICE.
17
CONCLUSION
Defendants’
motion
entirety.
(Docket Entry 20.)
DISMISSED
WITHOUT
jurisdiction,
PREJUDICE.
and
PREJUDICE
the
to
dismiss
is
GRANTED
in
its
Plaintiff’s due process claim is
for
remaining
lack
claims
of
subject
are
matter
DISMISSED
WITH
The Clerk of the Court is respectfully directed to
enter judgment in favor of Defendants and to mark this matter
CLOSED.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:
August
11 , 2016
Central Islip, New York
18
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