Roth v. Farmingdale Public School District

Filing 49

ORDER granting in part and denying in part 28 Motion to Dismiss for Failure to State a Claim. For the reasons set forth herein, the Court grants in part and denies in part defendant's motion to dismiss the complaint. In an abundance of cauti on, the Court grants plaintiff leave to replead his Title VII, ADA, ADEA, and slander claims. In so doing, plaintiff must attempt to provide grounds for equitable tolling, and must allege how the events and incidents plaintiff describes in his compla int were taken on the basis of, or related to, plaintiff's protected status under Title VII, the ADEA, or the ADA. In repleading his state law slander claim, plaintiff must allege the time, place, and manner of the allegedly false statements, as well as to whom the statements were made. Any amended complaint shall be filed no later than thirty (30) days from the date of this Order. Plaintiff is cautioned that an amended complaint completely replaces the original, and therefore all allegatio ns and claims against all of the defendants that plaintiff wishes to pursue must be included in the amended complaint. Failure to do so will result in dismissal of the Title VII, ADEA, ADA, and slander claims with prejudice. Ordered by Judge Joseph F. Bianco on 2/26/2016. (Dolecki, Lauren)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 14-CV-6668 (JFB)(ARL)
_____________________

JEFF S. ROTH,
Plaintiff,

VERSUS
FARMINGDALE PUBLIC SCHOOL DISTRICT,
Defendant.
___________________
MEMORANDUM AND ORDER
February 26, 2016
___________________

JOSEPH F. BIANCO, District Judge:
Jeff Roth (“Roth” or “plaintiff”),
proceeding pro se and in forma pauperis,
filed this action against the Farmingdale
Union Free School District1 (“District” or
“defendant”) on June 20, 2011, alleging that
the District violated Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e to
2000e-17; the Age Discrimination in
Employment Act of 1967 (“ADEA”), 29
U.S.C. §§ 621-34; and the Americans with
Disabilities Act of 1990 (“ADA”), 42 U.S.C.
§§ 12112-12117. Specifically, plaintiff
alleges that defendant discriminated and
retaliated against him by failing to hire him.
Plaintiff also alleges that defendant violated

1

Incorrectly sued herein as the Farmingdale Public
School District.

his rights to free speech and due process,
and alleges slander by defendant.
Defendant moves to dismiss the
complaint, pursuant to Rules 8(a) and
12(b)(6) of the Federal Rules of Civil
Procedure, on the grounds that (1) the
allegations that defendant discriminated
against plaintiff on the basis of gender and
disability are barred for failure to exhaust
administrative remedies; (2) plaintiff’s
ADEA claim is barred by the statute of
limitations because he failed to file a timely
administrative charge with respect to his
employment application, and also fails to
state a claim; (3) plaintiff fails to state a
Title VII retaliation claim; (4) plaintiff fails
to state a First Amendment claim; and (5)
plaintiff fails to state a due process claim.
Defendant also argues that, because the
federal claims should be dismissed, the

Court should decline to exercise jurisdiction
over the remaining state law claims.

to be true and, for purposes of the pending
12(b)(6) motion to dismiss, will construe
them in a light most favorable to plaintiff,
the non-moving party.

As discussed below, defendant’s motion
to dismiss is granted in part and denied in
part. Plaintiff’s Title VII and ADA claims
alleging discrimination are barred for failure
to exhaust administrative remedies, and
plaintiff’s ADEA claim is barred by the
statute of limitations. Plaintiff also fails to
state a cause of action with respect to his
Title VII retaliation claim. However, in an
abundance of caution, the Court grants
plaintiff leave to replead these claims. In so
doing, plaintiff must attempt to provide
grounds for equitable tolling and must allege
how the events and incidents plaintiff
describes in his complaint were taken on the
basis of plaintiff’s protected status under
Title VII, the ADEA, or the ADA, such that
a plausible discrimination or retaliation
claim exists. Plaintiff is also granted leave to
replead his state law slander claim so as to
give him the opportunity to allege the time,
place, and manner of the allegedly false
statements, as well as to whom the
statements were made. Defendant’s motion
to dismiss is denied as to plaintiff’s First
Amendment and Due Process claims.
I.

Plaintiff has never been employed by the
defendant, but rather, alleges that he was
“discriminated on a number of employment
opportunities.” (Am. Compl. at ¶ 8.)
Specifically, plaintiff challenges the
defendant’s decision to provisionally
appoint Joseph Hassett to the position of
Audiovisual Technician from December
2010 – July 2011. (Id. at 7.) Plaintiff
interviewed, but was not selected for, the
provisional appointment. (See id.) Plaintiff
was told that the District hired a more
qualified candidate for the provisional hire
position. (Id. at 7, 15.)
Plaintiff alleges that he attended his first
Board of Education (“Board”) meeting in
January 2011, at which he requested that the
Board “table the provisional appointment.”
(Id. at 15.) In July 2011, an eligible list of
candidates for the audiovisual technician
position was established. (Id. at 7.) The
District was required to appoint one of three
individuals certified by the civil service
commission with the three highest scores on
the examination who were willing to accept
the appointment. N.Y. Civ. Serv. Law. §
61(1). Plaintiff was not “reachable,” or one
of the individuals with the highest scores on
the list. (Am. Compl. at 7, 15.) Plaintiff
contends that the defendant hired Mr.
Hasset, even though there was an individual,
Carlo Mastrandrea, who had a score above
Hasset’s on the competitive list. (Id. at 15.)

BACKGROUND

A. Factual Background
The following facts are taken from the
amended complaint filed on July 8, 2015
(“Am. Compl.”),2 as well as the underlying
New York State Division of Human Rights
complaint (“DHR Compl.”), and are not
findings of fact by the Court. Instead, the
Court will assume the facts in the complaint

Plaintiff claims that, on February 20,
2012, he sent three letters to every member
of the Board and the Superintendent of
Business, Paul Defindini. (Id. at 8.) Plaintiff
subsequently spoke on the telephone to
Shari Eivers, the Board’s president, which

Plaintiff’s amended complaint attached his initial
complaint, filed November 7, 2014, as well as several
additional documents. The Court cites to the
pagination in the amended complaint.
2

2

Ms. Eivers memorialized in a March 30,
2012 letter. (Id. at 8, 32-34) Plaintiff claims
that they discussed “the harassment and
intimidation he was receiving.” (Id. at 8.)
Plaintiff then arranged a meeting with the
Board’s trustees John Capobianco and Rick
Morrison, and Ms. Eivers, at which plaintiff
relayed the information in the March 30,
2012 letter, as well as “his advocacy for
solar photovoltaic systems and LED stage
lighting to be included in the Energy
Performance contract.” (Id.) Plaintiff also
discussed “security technology inadequacies
of the district” and “what he felt was a
complacent attitude toward security in the
budget, and informed them of alternative
options to state implementing the security
technology.” (Id.)

was only interested in attending Board
meetings. (Id.)
Plaintiff alleges that, when he went to
vote on August 20, 2013, and November 5,
2013, he was “followed, asked what his
purpose was for being in the building,
verbally and physically intimidated and
literally hurried out of the building by a
custodian not a security guard.” (Id. at 9.)
On October 22, 2013, plaintiff alleges
that he attended a PTA meeting “to discuss a
security vulnerability resulting from an
October 11, 2013 burglary and arrest of two
former students.” (Id.) Plaintiff claims that
“a custodian who was misinformed of
Jeffrey Roth’s right to be in the building for
public events or business was being an
instigator even though Jeffrey Roth reported
to security when entering the building.” (Id.)
Plaintiff claims that he inquired about
purchasing tickets for the fall musical when
he was leaving the building, and
subsequently received a letter from
Superintendent John Lorentz, which claimed
that plaintiff unlawfully entered the building
and entered unauthorized areas. (Id.) At a
November 8, 2013 football game, plaintiff
claims that a custodian “cursed and
provoked Jeffrey Roth into a physical
altercation while threatening to call the
police.” (Id.) Plaintiff alleges that, on
November 9, 2013, the incident was
reported to the “Nassau county Problem

Plaintiff claims that, on May 16, 2013,
an “incident occurred in the main lobby of
the High School before the Orchestra String
concert,” at which he was “cornered, baited,
taunted, and laughed at.” (Id. at 9.) Plaintiff
claims that he was removed from the
concert, and that he was also removed from
an open Board meeting in May 2013, by the
Board, whose members claimed that the
meeting was “invitation only.” (Id. at 18.)
Plaintiff claims that, in September 2013,
the Board had the Nassau County police
inform him that he was not allowed to attend
public events or board meetings. (Id.)
Plaintiff alleges that he informed the officers
of the Committee on Open Government’s
Advisory Opinion,3 and explained that he

plaintiff. (Id.) The Board did not provide any
information relating to plaintiff’s allegations. (Id.)
The advisory opinion concluded that, if a quorum of
the Board gathered as “active participants acting in
their capacities as Board members,” such a gathering
would constitute a meeting within the coverage of the
Open Meetings Law, but if the Board members were
gathered as part of a “parental or community
audience, and did not function as a body,” the
gathering would not constitute a meeting subject to
the Open Meetings Law. (Id. at 12.)

3

On October 8, 2013, the New York State
Department of State Committee on Open
Government issued an advisory opinion to plaintiff
regarding the application of the Open Meetings Law
to a special recognition ceremony at which a quorum
of the Board and various students and staff were
present, and which plaintiff was informed was open
by “invitation only.” (Id. at 10.) The advisory opinion
was based solely upon the facts as presented by

3

Orientated Policing Unit Officer Lamonaca
who had been cc’ed on all correspondence
since the May 16, 2013 incident.” (Id.)
Plaintiff claims that it was determined by his
“community advisors to no longer attend
public events for fear of his safety, to only
attend board of education meetings where
his advocacy is recorded within the minutes
and to report the matter to the Commission
of Human Rights.” (Id.)

a week later, Superintendent Lorentz had
him removed from another Board meeting,
claiming it was “invitation only.” (Id. at ¶
6.) Plaintiff alleged that the situation had
“escalated” to the point that he was being
told that he could not “attend public
assemblies such as music or athletic events.”
(Id. at ¶ 7.)
Plaintiff alleges that, in October 2014, he
was issued a letter banning him from public
Board meetings for one month. (Am.
Compl. at 18.) Plaintiff claims that when he
arrived at a Board meeting, a security guard
attempted to remove him, plaintiff requested
that the police be called, plaintiff spoke to
the police, and then plaintiff left “without
incident.” (Id.) Plaintiff claims that, in
November 2014, he received a letter from
the Board suspending him from Board
meetings and any public events for three
months. (Id. at 19.) Plaintiff also claims that
the letter threatened his arrest. (Id.)

On December 16, 2013, plaintiff filed a
complaint with the New York State Division
of Human Rights (“DHR”), alleging that he
was discriminated against on the basis of his
“age, arrest record, and marital status.”
(DHR Compl., Ex. C. to Torrey Aff.)
Specifically, plaintiff claimed that he was
“42 years of age and single” and “was
arrested in 1996 for a DUI. Because of this,
I have been subjected to unlawful
discriminatory actions.” (Id. at ¶ 1.) Plaintiff
further claimed that, although he passed the
civil service test and applied for an Audio
Technician position in 2011, “a younger and
less qualified person was hired.” (Id. at ¶ 2.)
Plaintiff claimed that in May 2012, at a
meeting with members of the Board, he
asked why someone with less experience
was hired, and Eivers made a comment
about his age and marital status. (Id. at ¶ 5.)
Plaintiff also alleged that he began attending
Board meetings in 2010, at which he
advocated for “better security and
surveillance systems to be installed at the
school” as well as solar panels and energy
efficient stage lighting. (Id. at ¶ 3.) Plaintiff
also claimed in December 2012, “after
Sandy Hook,” he “became vocal at the
meetings because of various security aspects
which the respondent had become
complacent with.” (Id. at ¶ 4.) Plaintiff
further claimed that, in May 2013, Ms.
Eivers had him removed from a public
concert because he was supporting a
different candidate for Board president, and

B. Procedural History
Plaintiff filed the complaint in this action
on November 10, 2014, and an amended
complaint on July 8, 2015. Defendant filed a
motion to dismiss on August 12, 2015.
Plaintiff filed an opposition on September
18, 2015, and defendant filed a reply to on
October 2, 2015. The Court has fully
considered the arguments and submissions
of the parties.
II.

STANDARD OF REVIEW

In reviewing a motion to dismiss
pursuant to Rule 12(b)(6), the Court must
accept the factual allegations set forth in the
complaint as true and draw all reasonable
inferences in favor of the plaintiff. See
Cleveland v. Caplaw Enters., 448 F.3d 518,
521 (2d Cir. 2006); Nechis v. Oxford Health
Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005).
4

“In order to survive a motion to dismiss
under Rule 12(b)(6), a complaint must
allege a plausible set of facts sufficient ‘to
raise a right to relief above the speculative
level.’” Operating Local 649 Annuity Trust
Fund v. Smith Barney Fund Mgmt. LLC, 595
F.3d 86, 91 (2d Cir. 2010) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555
(2007)). This standard does not require
“heightened fact pleading of specifics, but
only enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550
U.S. at 570.

liberally.” McCluskey v. New York State
Unified Ct. Sys., No. 10-CV-2144
(JFB)(ETB), 2010 WL 2558624, at *2
(E.D.N.Y. June 17, 2010) (citing Sealed
Plaintiff v. Sealed Defendant, 537 F.3d 185,
191 (2d Cir. 2008)); McEachin v.
McGuinnis, 357 F.3d 197, 200 (2d Cir.
2004)). A pro se plaintiff’s complaint,
while liberally interpreted, still must “‘state
a claim to relief that is plausible on its
face.’” Mancuso v. Hynes, 379 F. App’x 60,
61 (2d Cir. 2010) (quoting Iqbal, 556 U.S. at
678); see also Harris v. Mills, 572 F.3d 66,
72 (2d Cir. 2009) (applying Twombly and
Iqbal to pro se complaint).

The Supreme Court clarified the
appropriate pleading standard in Ashcroft v.
Iqbal, setting forth a two-pronged approach
for courts deciding a motion to dismiss. 556
U.S. 662 (2009). The Court instructed
district courts to first “identify[ ] pleadings
that, because they are no more than
conclusions, are not entitled to the
assumption of truth.” Id. at 679. Though
“legal conclusions can provide the
framework of a complaint, they must be
supported by factual allegations.” Id.
Second, if a complaint contains “wellpleaded factual allegations, a court should
assume their veracity and then determine
whether they plausibly give rise to an
entitlement to relief.” Id. “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. The
plausibility standard is not akin to a
‘probability requirement,’ but it asks for
more than a sheer possibility that a
defendant has acted unlawfully.” Id. at 678
(internal citations omitted) (quoting and
citing Twombly, 550 U.S. at 556-57).

The Court notes that in adjudicating a
Rule 12(b)(6) motion, it is entitled to
consider: “(1) facts alleged in the complaint
and documents attached to it or incorporated
in it by reference, (2) documents ‘integral’
to the complaint and relied upon in it, even
if not attached or incorporated by reference,
(3) documents or information contained in
defendant’s motion papers if plaintiff has
knowledge or possession of the material and
relied on it in framing the complaint, (4)
public disclosure documents required by law
to be, and that have been, filed with the
Securities and Exchange Commission, and
(5) facts of which judicial notice may
properly be taken under Rule 201 of the
Federal Rules of Evidence.” In re Merrill
Lynch & Co., 273 F. Supp. 2d 351, 356-57
(S.D.N.Y. 2003) (internal citations omitted),
aff’d in part and reversed in part on other
grounds sub nom. Lentell v. Merrill Lynch &
Co., 396 F.3d 161 (2d Cir. 2005); see also
Cortec Indus., Inc. v. Sum Holding L.P., 949
F.2d 42, 48 (2d Cir. 1991) (“[T]he district
court . . . could have viewed [the
documents] on the motion to dismiss
because there was undisputed notice to
plaintiffs of their contents and they were
integral to plaintiffs’ claim.”).

Where, as here, the plaintiff is
proceeding pro se, “[c]ourts are obligated to
construe the [plaintiff’s] pleadings . . .
5

III.

DISCUSSION
A.

within the scope of the EEOC investigation
which can reasonably be expected to grow
out of the charge that was made.’” Id.
(quoting Fitzgerald v. Henderson, 251 F.3d
345, 359-69 (2d Cir. 2001)).4 In determining
whether a claim is “reasonably related” to
the EEOC charge, “‘the focus should be on
the factual allegations made in the [EEOC]
charge itself’” and on whether those
allegations “gave the [EEOC] ‘adequate
notice to investigate’” the claims asserted in
court. Williams v. N.Y.C. Hous. Auth., 458
F.3d 67, 70 (2d Cir. 2006) (quoting Deravin
v. Kerik, 335 F.3d 195, 201-02 (2d Cir.
2003)).

Failure to Exhaust

Defendant argues that plaintiff’s Title
VII and ADA claims alleging gender and
disability discrimination are barred due to
plaintiff’s failure to exhaust administrative
remedies. Specifically, defendant argues that
plaintiff never raised claims of gender or
disability discrimination in his DHR charge,
and such allegations are unrelated to any
claims asserted in the administrative
proceeding. Thus, defendant argues that the
Title VII claim based on gender and the
ADA claim are unexhausted and should be
dismissed. As set forth below, the Court
agrees.

2. Application
Plaintiff’s DHR complaint indicated that
he was discriminated against based on his
age, arrest record, and marital status. The
DHR complaint is devoid of any reference
to gender, sex, or disability discrimination,
and the Court finds that claims that
defendant’s actions were motivated by
discrimination on the basis of gender, sex,
and disability are not “reasonably related” to
his claims that defendant discriminated
against him on the basis of his age, marital
status, or arrest record.5 See Petty v. City of

1. Legal Standard
Generally, to bring a Title VII
discrimination claim in federal district court,
a plaintiff must first exhaust his
administrative remedies by “filing a timely
charge with the EEOC or with ‘a State or
local agency with authority to grant or seek
relief from such practice.’” Holtz v.
Rockefeller & Co., 258 F.3d 62, 82-83 (2d
Cir. 2001) (quoting 42 U.S.C. § 2000e-5(e)).
The same procedures apply for ADA
employment discrimination claims. See 42
U.S.C. § 12117(a) (ADA employment
discrimination procedures shall include
those set forth at 42 U.S.C. § 2000e-5(e)).
However, “‘claims that were not asserted
before the EEOC [or an appropriate State or
local agency] 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)). “Reasonably
related conduct is that which ‘would fall

4

Two other kinds of claims may be considered
“reasonably related”: those alleging “‘an employer’s
retaliation for filing an EEOC charge’” and those
alleging “‘further incidents of discrimination carried
out in precisely the same manner alleged in the
EEOC charge.’” Carter v. New Venture Gear, Inc.,
310 F. App’x 454, 458 (2d Cir. 2009) (quoting Butts
v. N.Y.C. Dep’t of Hous. Pres. & Dev., 990 F.2d
1397, 1402-03 (2d Cir. 1993), superseded by statute
on other grounds). Neither is at issue in this case.
5

Although plaintiff has not specifically alleged in his
amended complaint that he was discriminated against
on the basis of marital status or arrest record, the
Court notes that such claims would not be cognizable
under Title VII. “Federal law does not protect
individuals against discrimination based on criminal

6

New York, No. 10-CV-8581 (KPF), 2014
WL 6674446, at *10 (S.D.N.Y. Nov. 25,
2014) (finding claims of race and disability
discrimination were not reasonably related
to allegations of discrimination based on
arrest record that were raised in
administrative complaint); DiProjetto v.
Morris Protective Serv., 306 F. App’x 687,
688 (2d Cir. 2009) (finding claims of race,
gender, and disability discrimination were
not reasonably related to allegations of
national origin discrimination raised in
EEOC charge). Accordingly, plaintiff has
failed to exhaust his administrative remedies
with respect to the Title VII claim based on
gender or sex and the ADA claim. The
Court, therefore, dismisses these claims for
failure to exhaust. In order to properly
exhaust his administrative remedies with
respect to these claims, plaintiff would have
needed to file an administrative charge
within 300 days of the conduct at issue. See
Goodwin v. Solil Mgmt. LLC, 10-CV-5546
(KBF), 2012 WL 1883473, at *4 (S.D.N.Y.
May 22, 2012); 42 U.S.C. § 2000e-5(e)(1);
42 U.S.C. § 12117. More than 300 days
have passed since that date, and plaintiff has
not alleged any basis for equitable tolling.
See, e.g., Epps v. City of Pittsburgh, 33 F.
Supp. 2d 409, 413 (W.D. Pa. 1998) (finding

no grounds for equitable tolling where no
charge was filed with EEOC).
3. Failure to State a Claim
The Court also concludes that, even
assuming arguendo that plaintiff’s claims
for gender and disability discrimination are
timely, they are not plausible and, thus,
cannot survive a motion to dismiss. In
particular, although plaintiff checked off the
boxes on the complaint form for gender/sex
and disability discrimination, the amended
complaint is completely devoid of any
factual allegations showing how the
defendant’s failure to hire plaintiff was
motivated by plaintiff’s gender, sex, or
disability.
Plaintiff fails to allege anywhere in his
amended
complaint
that
he
was
discriminated against on the basis of his
gender or sex, apart from checking off the
box indicating such discrimination at the
beginning of the complaint. Such allegations
are, therefore, insufficient to state a claim of
discrimination, even where the plaintiff is
pro se. See, e.g., Gear v. Dep’t of Educ., 07CV-11102 (NRB), 2010 WL 5297850, at *5
(S.D.N.Y. Dec. 21, 2010) (pro se plaintiff’s
“single, conclusory allegation that [the
union] would have acted differently if she
were white” was insufficient to state a
plausible claim for relief where the
“allegation [was] unaccompanied by any
facts regarding [the union’s] statements,
actions, or policies that would support a
plausible inference of discriminatory animus
or disparate impact”); see also Martinez v.
City of New York, 338 F. App’x 71, 73 (2d
Cir. 2009) (summary order) (dismissing pro
se appellant’s complaint that “he was
improperly fined three days’ pay based on
his supervisor’s bias against AfricanAmericans” because the “complaint
acknowledged the Defendants’ non-

history.” Witharana v. NYC Taxi Limousine Comm’n,
No. 13-CV-4338 (ENV)(MDG), 2013 WL 5241987,
at *2 (E.D.N.Y. Sept. 17, 2013); see also Parks v.
New York City Dep’t of Corr., 253 F. App’x 141, 143
(2d Cir. 2007) (holding that “the District Court
correctly concluded that Title VII does not cover
alleged discrimination on the basis of an employee’s
arrest record.”) Further, “Title VII does not protect
against discrimination on the basis of marital status
alone,” though a claim of marital status
discrimination is cognizable under N.Y. Executive
Law § 296. Fertig v. HRA Med. Assistance Program,
No. 10-CV-8191 (RPP), 2011 WL 1795235, at *3
(S.D.N.Y. May 6, 2011); see also Singh v. New York
State Dep’t of Taxation & Fin., 911 F. Supp. 2d 223,
233 n.3 (W.D.N.Y. 2012) (noting that marital status
is not a protected class under Title VII).

7

discriminatory reason for the adverse action
and failed to allege facts which, if proved,
would establish that this reason for the
penalty was pretextual, and that the action
was, in fact, taken due to a discriminatory
animus”); Reyes v. Fairfield Props., 661 F.
Supp. 2d 249, 269 (E.D.N.Y. 2009) (“No
identification of particular events or facts
underlying the race-based discrimination
claims is set forth in the amended complaint,
and thus the claim is properly dismissed
under Rule 12(b)(6) of the Federal Rules of
Civil Procedure.”); Zheng v. Wong, No. 07CV-4768 (FB)(JO), 2009 WL 2601313, at
*7 (E.D.N.Y. Aug. 24, 2009) (dismissing
sex discrimination claim because complaint
contained no factual allegations to support
claim); Delgado v. Triborough Bridge &
Tunnel Auth., 485 F. Supp. 2d 453, 463
(S.D.N.Y. 2007) (“A complaint consisting
only of assertions, setting forth no specific
facts upon which a court could find a
plausible violation of Title VII, must be
dismissed for failure to state a claim under
Rule 12(b)(6).”).

to be so by her employer; (3) she was
otherwise qualified to perform the essential
functions of the job with or without
reasonable accommodation; (4) she suffered
an adverse employment action; and (5) the
adverse action was imposed because of her
disability.” Davis v. N.Y.C. Dep’t of Educ.,
804 F.3d 231, 235 (2d Cir. 2015). To defeat
a motion to dismiss, “‘a plaintiff need only
give plausible support to a minimal
inference of discriminatory motivation.’”
Dooley v. JetBlue Airways Corp., -- F.
App’x --, No. 15-CV-1356, 2015 WL
9261293, at *3 (2d Cir. Dec. 18, 2015)
(quoting Vega v. Hempstead Union Free
Sch. Dist., 801 F.3d 72, 84 (2d Cir. 2015).
The ADA Amendment Act of 2008
(“ADAAA”) defines “disability” as: “(A) a
physical or mental impairment that
substantially limits one or more major life
activities of such individual; (B) a record of
such an impairment; or (C) being regarded
as having such an impairment.” 42 U.S.C. §
12102(1).
Here, plaintiff has failed to plausibly
allege that he is disabled. The only reference
to any disability by plaintiff was his
allegation that “[t]he disability aspect of this
case relates to the Audio Visual Supervisor
Jeffrey Pritzker who since his hiring in the
90’s has spoken negative comments about
[plaintiff’s] moral character and mental
health.” (Am. Compl. at 16.) Plaintiff has
not alleged that he actually is disabled, nor
does he allege any facts for the Court to
determine whether he is disabled within the
meaning of the ADA. See, e.g., Dechberry v.
New York City Fire Dep’t, No. 14-CV-2130
(KAM)(SMG), 2015 WL 4878460, at *16
(E.D.N.Y. Aug. 14, 2015) (“Without any
factual specificity as to the alleged disability
claims and the major life activities affected,
the Complaint fails to plead that plaintiff
was disabled.”); Emmons v. City Univ. of
New York, 715 F. Supp. 2d 394, 409

Plaintiff also fails to state a claim for
disability discrimination. Under Title I of
the ADA, employers are prohibited from
discriminating “on the basis of disability in
regard to job application procedures, the
hiring, advancement, or discharge of
employees, employee compensation, job
training, and other terms, conditions, and
privileges of employment.” 42 U.S.C.
§ 12112(a).
Employers
must
make
“reasonable accommodations” for qualified
individuals with a disability, unless the
employer can show that such an
accommodation would impose an “undue
hardship.” 42 U.S.C. § 12112(b)(5)(A). To
establish a prima facie case of
discrimination under the ADA, a plaintiff
must show that: “(1) the employer is subject
to the ADA; (2) the plaintiff is disabled
within the meaning of the ADA or perceived
8

(E.D.N.Y. 2010) (plaintiff failed to plead
disability where complaint did not properly
“allege
any
substantial
physical
limitations”).

age in connection with his application for
the 2010 provisional appointment must be
dismissed because it is barred by the statute
of limitations and also fails to state a claim.
As set forth below, the Court finds that the
ADEA claim is barred by the statute of
limitations.

Further, plaintiff has not alleged that
Pritzker was in any way involved in the
decision not to hire plaintiff, or that the
District knew or believed him to be disabled,
and thus, did not hire him as a result. Thus,
plaintiff also fails to allege that he suffered
adverse employment action because of a
disability. See, e.g., Garnett-Bishop v. New
York Cmty. Bancorp, Inc., No. 12-CV-2285
(ADS)(ARL), 2014 WL 5822628, at *27
(E.D.N.Y. Nov. 6, 2014) (dismissing ADA
claim where plaintiff “fail[e]d to plead facts
sufficient to show any connection between
her
alleged
‘disability’
and
her
termination.”). Accordingly, plaintiff’s
claim for disability discrimination under the
ADA cannot survive the motion to dismiss.

1. Applicable Law
To assert an ADEA claim in federal
court, a plaintiff must file an administrative
charge alleging discrimination within 300
days of the alleged discriminatory conduct.
O’Grady v. Middle Country Sch. Dist. No.
11, 556 F. Supp. 2d 196, 199 (E.D.N.Y.
2008) (citing Ruhling v. Tribune Co., No.
04-CV-2430 (ARL), 2007 WL 28283, at *8
(E.D.N.Y. Jan. 3, 2007) (“Under Title VII
and the ADEA, a plaintiff must file an
administrative charge . . . within 300 days
after a claim accrues.”)). This statutory
filing period is “analogous to [ ] statute[s] of
limitations,” Van Zant v. KLM Royal Dutch
Airlines, 80 F.3d 708, 712 (2d Cir. 1996),
and, as such, “a failure to timely file a
charge acts as a bar to a plaintiff’s action.”
Butts v. N.Y.C. Dep’t of Hous. Pres. & Dev.,
No. 00-CV-6307 (KMK), 2007 WL 259937,
at *6 (S.D.N.Y. Jan. 29, 2007); see also
McPherson v. N.Y.C. Dep’t of Educ., 457
F.3d 211, 214 (2d Cir. 2006). “This period
begins to run for each discrete
discriminatory act when each such act
occurs.” O’Grady, 556 F. Supp. 2d at 199.

In an abundance of caution, however, the
Court will allow plaintiff to replead his Title
VII and ADA claims, and give him the
opportunity to provide a basis for equitable
tolling (if such a basis exists) for his failure
to exhaust at all with the EEOC on the ADA
claim. In the amended complaint, plaintiff
must explain why equitable principles
should excuse his failure to file an
administrative charge concerning the Title
VII and ADA claims within 300 days of the
alleged discriminatory conduct. Plaintiff
must also set forth additional allegations as
to how the events and incidents he describes
in his complaint were taken on the basis of,
or related to, his protected status under Title
VII or the ADA.

2. Application
Plaintiff filed his DHR complaint on
December 16, 2013. Thus, the 300 day
window commenced on February 19, 2013.
However, plaintiff contends that he was
discriminated against in 2011, when a
“younger and less qualified person” was
hired for the District’s audio technician

B. ADEA Claim
Defendant argues that plaintiff’s ADEA
claim alleging discrimination on the basis of
9

position. (DHR Compl. ¶ 2.) An allegation
of discrimination in 2011 (or perhaps even
earlier in December 2010 as indicated
elsewhere in the amended complaint), is
plainly outside of the 300-day actionable
window, and thus, untimely. Moreover,
plaintiff has made no argument in any of his
filings to the Court indicating that the claim
should be subject to equitable tolling.
Accordingly, the Court dismisses plaintiff’s
ADEA claim for untimeliness. In an
abundance of caution, however, the Court
will allow plaintiff to replead his ADEA
claim, and give him the opportunity to
provide a basis for equitable tolling (if such
a basis exists). In the amended complaint,
plaintiff must explain why equitable
principles should excuse the untimeliness.

C. Title VII Retaliation
Defendant argues that plaintiff’s Title
VII retaliation claim should be dismissed
because plaintiff has not alleged that he
engaged in protected activity or opposed an
employment practice made unlawful by
Title VII, nor has he alleged that the
defendant was aware of such activity. As set
forth below, the Court finds that plaintiff has
failed to state a Title VII retaliation claim.
1. Legal Standard
“To state a claim for retaliation in
violation of Title VII, a plaintiff must plead
facts that would tend to show that: (1) [he]
participated in a protected activity known to
the defendant; (2) the defendant took an
employment action disadvantaging [him];
and (3) there exists a causal connection
between the protected activity and the
adverse action.” Patane v. Clark, 508 F.3d
106, 115 (2d Cir. 2007) (citing Feingold v.
New York, 366 F.3d 138, 156 (2d Cir.
2004)). Title VII protects not only those
employees who opposed employment
practices made unlawful by the statute but
also those who have “‘a good faith,
reasonable belief that the underlying
challenged actions of the employer violated
the law’” even if those actions did not.
McMenemy v. City of Rochester, 241 F.3d
279, 283 (2d Cir. 2001) (quoting Wimmer v.
Suffolk Co. Police Dep’t, 176 F.3d 125, 134
(2d Cir. 1999)). Finally, the Supreme Court
has defined an “adverse employment action”
in the Title VII retaliation context (distinct
from and broader than the standard in the
Title VII discrimination context) to mean an
action that is “materially adverse” and that
“well might have dissuaded a reasonable
worker from making or supporting a charge
of discrimination.” Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)

However, “[a] federal cause of action for
age related employment discrimination
under the ADEA is statutorily available only
to individuals over forty years of age at the
time of the alleged discriminatory action.”
Manko v. Deutsche Bank, No. 02-CV-10180
(TPG), 2004 WL 574659, at *7 (S.D.N.Y.
Mar. 22, 2004) aff’d, 354 F. App’x 559 (2d
Cir. 2009) (citing 29 U.S.C. § 631(a)).
Plaintiff alleged that he was born in 1971
and was more than forty years old when
defendant discriminated against him. (Am.
Compl. ¶ 7.) However, plaintiff was only
thirty-nine years old in December 2010,
when Hasset was appointed to the
provisional hire position. Thus, any ADEA
claim for age discrimination based in the
December 2010 provisional appointment
fails to state a claim upon which relief can
be granted. Accordingly, to the extent that
plaintiff repleads his ADEA claim to
provide a basis for equitable tolling, it must
be in connection with discrimination that
occurred when he was at least forty years
old.
10

(internal citations omitted). The Supreme
Court has noted that “the significance of any
given act of retaliation will often depend
upon the particular circumstances.” Id. at
69.

only a general conclusory statement that the
defendant retaliated against the plaintiff, and
that fails to provide any factual detail
describing the specific acts of retaliation,
when it occurred and which employee of the
defendant had knowledge of the plaintiff’s
protected activity or actually engaged in the
claimed retaliation, is insufficient to
withstand a motion to dismiss.”)

2. Application
Plaintiff indicated on his complaint that
the discriminatory conduct of which he
complained included retaliation. (Am.
Compl. at ¶ 4.) However, plaintiff does not
allege that he engaged in any protected
activity, or that any such activity was known
by the defendant. The only mention of any
activities engaged in before plaintiff applied
for the provisional appointment was his
allegation in his DHR complaint that he
advocated for better security and
surveillance systems, solar panels, and
energy efficient stage lighting to be installed
in 2010. (DHR Compl. at ¶ 2.) Such actions
do not constitute protected activity under
Title VII. Plaintiff has not alleged that he
“‘had a good faith, reasonable belief that he
was opposing an employment practice made
unlawful by Title VII.’” Kessler v.
Weschester Cnty. Dep’t of Soc. Servs., 461
F.3d 199, 210 (2d. Cir. 2006) (quoting
McMenemy v. City of Rochester, 241 F.3d
279, 285 (2d Cir. 2001)). Thus, plaintiff’s
allegations are insufficient to state a claim of
retaliation, even where the plaintiff is
proceeding pro se. See, e.g., Smith v. City of
New York, No. 12-CV-3250 (JMF), 2013
WL 1903856, at *5 (S.D.N.Y. May 8, 2013)
(granting motion to dismiss pro se plaintiff’s
complaint where she “checked off the box
on the form complaint provided by the Clerk
of Court indicating that she suffered
retaliation” but “provide[d] absolutely no
factual support for that claim”); Majeed v.
ADF Companies, No. 11-CV-5459 (SJF)
(ETB), 2013 WL 654416, at *11 (E.D.N.Y.
Feb. 20, 2013) (“A complaint that makes

Therefore, plaintiff has failed to allege
any facts that provide a basis for a plausible
retaliation claim under Title VII. However,
in an abundance of caution, the Court will
provide plaintiff with an opportunity to
replead with respect to the retaliation claim
in order to set forth additional allegations as
to how he engaged in protected activity
known to defendant that caused defendant to
take adverse employment action.
D. First Amendment Claim
1. Legal Standard
“To state a claim for First Amendment
retaliation under § 1983, a plaintiff must
allege: ‘(1) that the speech or conduct at
issue was protected, (2) that the defendant
took adverse action against the plaintiff, and
(3) that there was a causal connection
between the protected speech and the
adverse action.’” Holmes v. Poskanzer, 342
F. App’x 651, 653 (2d Cir. 2009) (quoting
Gill v. Pidlypchak, 389 F.3d 379, 380 (2d
Cir. 2004)); see also Perri v. Bloomberg,
No. 11-CV-2646 (CBA)(LB), 2012 WL
3307013, at *2 (E.D.N.Y. Aug. 13, 2012).
2. Application
Plaintiff alleges that the Board
suspended him on three occasions “from
public open meetings in an attempt to censor
his right of freedom of speech.” (Am.
11

Compl. at 1.) Plaintiff also alleges that
defendant’s “administration and board of
education [ ] are harassing [him] in an
attempt at censorship of [his] freedom of
speech.” (Id. at 5.) He claims that “[a]t
board of education meetings, [he] would
discuss and put on record facts that they do
not want the public to be aware of.” (Id.)
Plaintiff also claims that he wished to attend
Board meetings to exercise his “right to
freedom of speech as a tax payer who
wishes to place on record matters of public
concern relating to [his] hometown school
district from which [he] graduated from.”
(Id. at 18.) Plaintiff further stated in his
opposition that the “district violated [his]
freedom of speech in an attempt to censor
[his] opinions and advocacy at public board
of education meetings.” (Pl.’s Opp’n at 2.)

988712, at *6 (D. Conn. Mar. 30, 2007)
(“Had [plaintiff] alleged that he was denied
access to a public meeting . . . there would
be no question that he properly stated a
constitutional violation.”) Thus, plaintiff has
adequately pled that access to public Board
meetings was protected under the First
Amendment. Further, plaintiff has alleged
that defendant took adverse action against
him by suspending him from Board
meetings, and that this suspension was based
on his prior advocacy for certain
technological and security changes within
the school, as well as his support for an
alternate candidate for president of the
Board. Thus, plaintiff’s allegations that he
was suspended from public school board
meetings on three occasions are sufficient to
withstand a motion to dismiss.6

Plaintiff alleges that he was engaged in
“advocacy for the community members who
disagree with the districts [sic] educational
technology, security technology, and energy
performance contracts plans,” including
advocating for the district to “start
implementing the plans for a district wide
solar arrays on each building.” (Am. Compl.
at 17.) Plaintiff also contends that “[a]fter
Sandy Hook in December 2012, on behalf of
the community [he] became vocal at
meetings because of various security aspects
which the respondent had become
complacent with.” (DHR Compl. at ¶ 4.)
Plaintiff also alleges that he was removed
from a public concert and Board meeting in
May 2013 because he was supporting a
different candidate for president of the
Board. (Id. at ¶ 6.)

E. Due Process Claim
1. Legal Standard
In order to assert a violation of
procedural due process rights, a plaintiff
must “first identify a property right, second
show that the state has deprived him of that
right, and third show that the deprivation
was effected without due process.” Local
342, Long Island Pub. Serv. Emps., UMD,
ILA, AFL-CIO v. Town Bd. of Huntington,
31 F.3d 1191, 1194 (2d Cir. 1994) (citation
and emphasis omitted). Thus, a claimed
violation of procedural due process involves
a two-step analysis: (1) the court examines
whether the State deprived plaintiff of a
6

To the extent that defendant argues that plaintiff
was banned from school property due to threats of
violence, which are not protected by the First
Amendment, plaintiff has alleged that he was banned
for different reasons – namely, his advocacy for
technological changes and supporting an alternate
candidate for Board president. Such a factual dispute
as to why plaintiff was in fact barred from District
property cannot be resolved on a motion to dismiss.

An allegation that an individual has been
denied access to a public meeting is
sufficient to state a First Amendment claim.
See Patriots Way, LLC v. Marconi, No.
CIV.3:06-CV-1302(PCD),
2007
WL
12

constitutionally protected interest, and (2) if
so, the court determines whether the
procedures surrounding that deprivation
were constitutionally adequate. See Shakur
v. Selsky, 391 F.3d 106, 118 (2d Cir. 2004).
“A liberty interest may arise from the
Constitution itself, by reason of guarantees
implicit in the word ‘liberty,’ or it may arise
from an expectation or interest created by
state laws or policies.” Wilkinson v. Austin,
545 U.S. 209, 221 (2005)

Educ., 42 F.3d 719, 724 (2d Cir. 1994)
(finding board of education member did not
have a protected liberty interest in visiting
schools, and thus, that a temporary ban on
his visits to the schools did not violate his
due process rights). Thus, to the extent that
plaintiff asserts a liberty interest in accessing
the District’s property, plaintiff fails to state
a claim for violation of his due process
rights.
However, to the extent that plaintiff
alleges that the defendant denied him of due
process by depriving him of his First
Amendment rights without sufficient
process, by not allowing him an avenue to
refute his suspension from public meetings,
such a claim can survive the defendant’s
motion to dismiss. See, e.g., Cyr v. Addison
Rutland Supervisory Union, 955 F. Supp. 2d
290, 296 (D. Vt. 2013) (holding plaintiff
could “continue to assert that the [defendant
school], by issuing the notice against
trespass, deprived him of First Amendment
rights without sufficient process. However,
he cannot assert that he possesses a liberty
interest – independent of the First
Amendment – in accessing school
property.”)7

2. Application
Plaintiff alleges that his due process
rights were violated when the Board
“allowed no recourse to refute [his]
suspension” from “public open meetings.”
(Am. Compl. at 1.) Defendant has moved to
dismiss, arguing that “[a]ccess to school
grounds, however, is not a protected liberty
or property interest under New York State
law.” (Def.’s Mem. of Law at 20.)
Defendant is correct that, under New
York law, a plaintiff does not have a
constitutionally protected liberty interest in
accessing school property. See, e.g., Hone v.
Cortland City Sch. Dist., 985 F. Supp. 262,
272 (N.D.N.Y. 1997) (“Looking to New
York State law, the Court can find no
support for the proposition that Plaintiff
enjoyed any right of access to school
property.”); Pearlman v. Cooperstown Cent.
Sch. Dist., No. 3:01-CV-504 (TJM), 2003
WL 23723827, at *3 (N.D.N.Y. June 11,
2003) (“Plaintiff does not, however, cite to
any state law or authority granting him
unfettered access to school property, either
as a citizen or a parent. Indeed, the New
York Court of Appeals has held that local
school districts have great discretion in
determining who shall have access to school
property and school students.”); Silano v.
Sag Harbor Union Free School Dist. Bd. of

7

To the extent that plaintiff raises a new due process
allegation in his opposition that the defendant
damaged his reputation, such a claim is not
cognizable. See, e.g., Silano v. Sag Harbor Union
Free Sch. Dist. Bd. of Educ., 42 F.3d 719, 724 (2d
Cir. 1994) (“Damage to reputation alone, even by a
government entity, does not implicate a liberty
interest protected by the Due Process Clause. Our
cases have interpreted Paul to require the
modification or termination of some legal right or
status before damage to reputation rises to the level
of a constitutional deprivation.” (citing Paul v. Davis,
424 U.S. 693, 701, 706 (1976)); Hone, 985 F. Supp.
at 272 (“[A]ny damage to Plaintiff’s reputation alone,
even by a governmental entity, does not implicate an
interest protected by the Due Process Clause.”)

13

also alleges in his opposition that “[t]hose
within my community and family are i[n]
disbelief that the district could abuse their
authority and have me perceived to be a
“Domestic Terrorist” that would be capable
of engaging in an act of school violence.
This is another form of the district’s slander,
defamation
of
my character,
and
discriminatory treatment.” (Pl.’s Opp’n at
2.) Neither of these allegations alleges the
time, place, or manner of the false statement,
nor do they specify to whom the statements
were made. Without specifying to whom
and in what context the allegedly
defamatory statements were made, the Court
cannot determine whether plaintiff has a
viable claim for slander under New York
law. See Tagliaferri, 2015 WL 5918204, at
*4. Thus, plaintiff’s defamation claim is
insufficiently pled and must be dismissed.
However, in an abundance of caution, the
Court will allow plaintiff to replead his
slander claims so as to give him the
opportunity to allege the time, place, and
manner of the allegedly false statements, as
well as to whom the statements were made.8

F. State Law Claims
In addition to his federal claims, plaintiff
also alleges slander by defendant. (Am.
Compl. at ¶¶ 4, 8.) “The elements of a cause
of action for slander under New York law
are (i) a defamatory statement of fact, (ii)
that is false, (iii) published to a third party,
(iv) ‘of and concerning’ the plaintiff, (v)
made with the applicable level of fault on
the part of the speaker, (vi) either causing
special harm or constituting slander per se,
and (vii) not protected by privilege.” Albert
v. Loksen, 239 F.3d 256, 265-66 (2d Cir.
2001). “In an action for libel or slander, the
particular words complained of shall be set
forth in the complaint.” N.Y. C.P.L.R. §
3016(a). “‘The complaint also must allege
the time, place and manner of the false
statement and . . . specify to whom it was
made.’” Tagliaferri v. Szulik, No. 15-CV2685 (LGS), 2015 WL 5918204, at *4
(S.D.N.Y. Oct. 9, 2015) (quoting Dillon v.
City of New York, 704 N.Y.S.2d 1, 5 (N.Y.
App. Div. 1999); see also O’Brien v.
Alexander, 898 F. Supp. 162, 172 (S.D.N.Y.
1995) (“The second amended complaint,
however, fails to identify what allegedly
defamatory statements were repeated and it
fails to allege which false statements were
uttered by whom. Hence, these paragraphs
are insufficiently pled and must be
dismissed as well.”) (internal citations
omitted).

IV.

CONCLUSION

For the foregoing reasons, the Court
grants in part and denies in part defendant’s
motion to dismiss the complaint. In an
abundance of caution, the Court grants
plaintiff leave to replead his Title VII, ADA,
ADEA, and slander claims. In so doing,
plaintiff must attempt to provide grounds for

Although plaintiff makes general
allegations
throughout
his
amended
complaint that defendant engaged in
slanderous practices, (see, e.g., Am. Compl.
at ¶ 8 and 17), the only specific claim that he
makes in his amended complaint is in
connection with his allegations of slander
are that: he “was accused of being
disgruntled, unstable and a deviant
borderline criminal.” (Id. at 16.) Plaintiff

8

To the extent that defendant suggests that plaintiff
may be asserting a claim for violation of the Open
Meetings Law, the Court construes plaintiff’s
amended complaint not to allege any such cause of
action, but simply as including the Committee on
Open Government’s advisory opinion to support
plaintiff’s other claims. However, if plaintiff wishes
to assert such a claim, he may do so in a second
amended complaint in a clear and concise manner so
that the Court can evaluate it.

14

equitable tolling, and must allege how the
events and incidents plaintiff describes in his
complaint were taken on the basis of, or
related to, plaintiff’s protected status under
Title VII, the ADEA, or the ADA. In
repleading his state law slander claim,
plaintiff must allege the time, place, and
manner of the allegedly false statements, as
well as to whom the statements were made.
Any amended complaint shall be filed no
later than thirty (30) days from the date of
this Order. Plaintiff is cautioned that an
amended complaint completely replaces the
original, and therefore all allegations and
claims against all of the defendants that
plaintiff wishes to pursue must be included
in the amended complaint. Failure to do so
will result in dismissal of the Title VII,
ADEA, ADA, and slander claims with
prejudice.
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge
Dated: February 26, 2016
Central Islip, New York
*

*

*

Plaintiff is proceeding pro se, 20 Frank
Ave., Farmingdale, NY 11735. Defendant is
represented by Susan M. Gibson and Julie
A. Torrey, Ingerman Smith, LLP, 150 Motor
Parkway, Suite 400, Hauppauge, NY 11788.

15