Roth v. Farmingdale Public School District

Filing 84

ORDER granting 71 Motion for Summary Judgment. For the reasons stated herein, the Court grants defendant's motion for summary judgment (ECF No. 71) as to plaintiff's federal Title VII, ADA, ADEA, First Amendment, and Fourteenth Amendment claims, and declines to exercise jurisdiction over plaintiff's remaining New York State law claims. The Clerk of the Court shall enter judgment accordingly and close this case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 1/30/2017. (Zbrozek, Alex)

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
January 30, 2017
___________________

JOSEPH F. BIANCO, District Judge:
Jeff S. Roth (“Roth” or “plaintiff”),
proceeding pro se and in forma pauperis,
filed a Second Amended Complaint (“SAC”)
against the Farmingdale Union Free School
District 1 (“District” or “defendant”) on
March 28, 2016, alleging that the District
violated Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. § 2000e; the
Age Discrimination in Employment Act of
1967 (“ADEA”), 29 U.S.C. §§ 621 et
seq.; the Americans with Disabilities Act of
1990 (“ADA”), 42 U.S.C. §§ 12112 et seq.;
and the First and Fourteenth Amendments of
the United States Constitution. Plaintiff also
asserts various New York State law claims.
Specifically, plaintiff alleges that defendant
1

Defendant is incorrectly sued herein as the
“Farmingdale Public School District.”

discriminated and retaliated against him by
failing to hire him, and that defendant
violated plaintiff’s rights to Free Speech and
Due Process. Plaintiff also claims that
defendant slandered him and violated New
York’s Open Meetings Law and Freedom of
Information Law.
By Memorandum and Order dated
February 26, 2016 (the “Memorandum and
Order”), the Court granted in part and denied
in part defendant’s motion to dismiss
plaintiff’s First Amended Complaint
(“FAC”). Roth v. Farmingdale Pub. Sch.
Dist., No. 14-CV-6668 (JFB) (ARL), 2016
WL 767986 (E.D.N.Y. Feb. 26, 2016). The
Court found that: (1) plaintiff’s Title VII and
ADA claims alleging discrimination were

barred for failure to exhaust administrative
remedies; (2) plaintiff’s ADEA claim was
barred by the statute of limitations;
and (3) plaintiff failed to state a cause of
action with respect to his Title VII retaliation
claim. Id. at *1. However, in an abundance
of caution, the Court granted plaintiff leave
to re-plead those claims. Id. The Court
specifically directed plaintiff to provide
grounds for equitable tolling and to allege
how the events and incidents described in the
FAC were taken on the basis of plaintiff’s
protected status under Title VII, the ADEA,
and the ADA, such that a plausible
discrimination or retaliation claim exists. Id.
The Court also dismissed the state slander
claim, but granted plaintiff leave to re-plead
so as to allege the time, place, and manner of
the purportedly false statements, as well as to
whom the statements were made. Id. Finally,
the Court denied defendant’s motion to
dismiss plaintiff’s First and Fourteenth
Amendment claims after concluding that
plaintiff had stated plausible causes of
action. 2 Id. at *9-11.

ADEA claim is (a) barred by the statute of
limitations or, alternatively, (b) fails to state
a claim; (4) plaintiff failed to state a Title VII
retaliation claim; (5) plaintiff failed to state a
First Amendment claim; (6) plaintiff failed to
state a Fourteenth Amendment Due Process
claim; and (7) plaintiff failed to state his New
York State law claims. 3
For the reasons set forth below,
defendant’s motion is granted.
As a
threshold matter, the Court determines that
plaintiff failed to comply with the
Memorandum and Order because he has not
sufficiently demonstrated, either in the SAC
or in his opposition to the instant motion, that
equitable tolling exempts his Title VII,
ADEA, and ADA discrimination claims from
the exhaustion and limitations bars to
justiciability.
In addition, the Court
determines that there are no material issues of
fact that support plaintiff’s Title VII
retaliation claim, or his Free Speech and Due
Process claims. Finally, the Court, in its
discretion, declines to exercise supplemental
jurisdiction over plaintiff’s New York claims
and dismisses them without prejudice to refiling in state court.

Plaintiff subsequently filed the SAC, and
defendant now moves for summary judgment
pursuant to Rule 56 of the Federal Rules
of Civil Procedure on the following
grounds: (1) plaintiff failed to re-plead his
Title VII, ADEA, ADA, and slander claims;
(2) plaintiff failed to exhaust his Title VII and
ADA discrimination claims; (3) plaintiff’s

I. BACKGROUND
A. Facts
The following facts are taken from
defendant’s Rule 56.1 statement 4 (“Def.’s

2

4

The Court also construed the FAC as not alleging a
cause of action under the New York Open Meetings
Law, but granted plaintiff leave to assert such a claim
in the SAC. Id. at *11 n.8.

Rather than submitting a Rule 56.1 Statement of
Facts, plaintiff filed a “Rebuttal to Defendant’s 108
Points” (“Pl.’s Opp’n,” ECF No. 80) that does not
comport with Local Civil Rule 56.1. Contrary to the
Rule, that document does not contain any citations to
underlying evidence and is instead part of an omnibus
submission that includes various newspaper articles,
assorted correspondence, and documents apparently
obtained via a New York Freedom of Information Law
request. Although defendant served plaintiff with the
“Notice to Pro Se Litigant Opposing Motion for
Summary Judgment” as required by Local Rule 56.2

3

Since this is a motion for summary judgment, the
Court will assume that plaintiff has properly pled his
claims and will apply the standard of review set forth
infra to determine whether there are triable issues of
fact. See Linares v. McLaughlin, 423 F. App’x 84, 85
(2d Cir. 2011).

2

56.1,” ECF No. 74), as well as the parties’
affidavits and exhibits. Unless otherwise
noted, the facts are either undisputed or
uncontroverted by admissible evidence.
Upon consideration of the motion for
summary judgment, the Court shall construe
the facts in the light most favorable to
plaintiff as the nonmoving party, and will
resolve all factual ambiguities in his favor.
See Capobianco v. New York, 422 F.3d 47, 50
n.1 (2d Cir. 2001).

Pritzker and Zakian recommended that
another
candidate,
Joseph
Hassett
(“Hassett”), be appointed to the provisional
position of Audio Visual Technician. (Def.’s
56.1 ¶ 4.) Pandolfo, Pritzker, and Zakian
have attested that they did not know of or
consider plaintiff’s age, marital status, or
arrest
record
when
making
their
5
recommendation. (Def.’s 56.1 ¶ 4; Gibson
Aff. Exs. MM, NN, OO.)
Shortly thereafter, in or about 2011, a
Civil Service Examination was administered
to fill permanently the District Audio Visual
Technician position, and both plaintiff and
Hassett applied. (Def.’s 56.1 ¶ 6; Gibson Aff.
Ex. LL.) Following the examination, Hassett
finished tied for seventh out of the fourteen
applicants, and plaintiff finished tied for
twelfth. (Def.’s 56.1 ¶ 10.) The District
offered a probationary appointment for the
position of Audio Visual Technician to
Hassett, who accepted and was appointed

1. Plaintiff’s Employment Application

with the District
In 2010, plaintiff applied for a provisional
Audio Visual Technician position with the
District, a job that required minimum
qualifications established by the Nassau
County Civil Service Commission. (Def.’s
56.1 ¶¶ 1-2; Aff. of Susan M. Gibson
(“Gibson Aff.”), ECF No. 72, Ex. LL.)
Plaintiff was initially interviewed by Barbara
Pandolfo (“Pandolfo”), Jeffrey Pritzker
(“Pritzker”), and Glen Zakian (“Zakian”),
and he had a second-round interview with
Pritzker. (Def.’s 56.1 ¶ 3.) After the
interview process was complete, Pandolfo,
(see ECF No. 75), plaintiff has failed to submit any
other evidence. Moreover, plaintiff did not respond to
several of the numbered paragraphs in defendant’s
56.1, and many of his replies are non-responsive to
defendant’s statements.

(exercising court’s discretion to overlook the parties’
failure to submit statements pursuant to Local Civil
Rule 56.1). Accordingly, in the exercise of its broad
discretion and given plaintiff’s pro se status, the Court
will overlook these defects and will deem admitted
only those facts in defendants’ Rule 56.1 Statement
that are supported by admissible evidence and not
controverted by other admissible evidence in the
record. See Jessamy, 292 F. Supp. 2d at 504.

Generally, a party’s “‘failure to respond or contest the
facts set forth by the [moving party] in [its] Rule 56.1
statement as being undisputed constitutes an
admission of those facts, and those facts are accepted
as being undisputed.’” Jessamy v. City of New
Rochelle, 292 F. Supp. 2d 498, 504 (S.D.N.Y. 2003)
(quoting NAS Elecs., Inc. v. Transtech Elecs. PTE Ltd.,
262 F. Supp. 2d 134, 139 (S.D.N.Y. 2003)). However,
“[a] district court has broad discretion to determine
whether to overlook a party’s failure to comply with
local court rules.” Holtz v. Rockefeller & Co., Inc.,
258 F.3d 62, 73 (2d Cir. 2001) (citations omitted); see
also Gilani v. GNOC Corp., No. 04-CV-2935 (ILG),
2006 WL 1120602, at *2 (E.D.N.Y. Apr. 26, 2006)

5

Plaintiff does not dispute this in his opposition, but
merely states, inter alia, that “at the time the
interview[s] were being conducted it was known that
the district was going to be transferring the audiovisual
department from under Pandolfo Director of Libraries
to the newly hired Director of Technology.” (Pl.’s
Opp’n at 14.) This is not responsive to defendant’s
56.1 and, thus, does not create a material issue of fact
for trial.

3

intention to create an adversarial relationship
with [plaintiff]” or to “interfer[e] with
[plaintiff’s] right to discuss issues at Board
meetings,” but said that plaintiff’s “actions
ha[d] resulted in complaints and appear[ed]
to be in derogation of law,” and that it was
“important that [plaintiff] recognize the[se]
concerns [because] [f]ailure to comply with
these directives may result in legal action.”
(Id.)

on or about October 13, 2011.
(Def.’s
56.1 ¶¶ 12-13; Gibson Aff. Ex. LL.)
2. Plaintiff’s

2007-2013 Interactions
with District Employees and Board of
Education Members

Plaintiff became a member of the District
Facilities Advisory Committee in or about
2007 and began attending District Board
of Education meetings in 2011. (Def.’s
56.1 ¶¶ 15-16.) In May 2012, plaintiff had a
meeting with then-District Board of
Education President Shari Bardash-Eivers
(“Bardash-Eivers”) and other Board of
Education trustees at the Farmingdale Public
Library, where they discussed audiovisual
and information technology issues in the
District. (Def.’s 56.1 ¶ 17; Gibson Aff. Ex.
PP.) On or about May 16, 2013, BardashEivers received an email from a District
employee informing her that plaintiff had
appeared at the District High School during a
student music rehearsal and asked students
and District employees questions about ideas
for new technology and equipment. (Def.’s
56.1 ¶ 19; Gibson Aff. Ex. PP.) Shortly
thereafter, plaintiff attempted to enter the
High School auditorium during a student
concert, and when security personnel told
plaintiff to leave, he refused.
(Def.’s
56.1 ¶¶ 20-21; Gibson Aff. Exs. I, PP.)

Nevertheless, on or about May 29, 2013,
plaintiff entered an invitation-only Student
Award Ceremony to which he had not been
invited and was asked to leave. (Def.’s
56.1 ¶ 23; Gibson Aff. Exs. W, QQ.) On or
about May 30, 2013, plaintiff left three
voicemails on District Board of Education
Member Michael Goldberg’s (“Goldberg”)
personal cell phone, and at the end of the
second voicemail, plaintiff said: “[G]ive me
a call when you have a chance, don’t be on a
gag order from the District that’s retarded.”
(Def.’s 56.1 ¶ 24; Gibson Aff. Ex. R). In the
third voicemail, plaintiff told Goldberg about
the May 23, 2013 letter from Lorentz, but
asked if Goldberg would continue speaking
with plaintiff despite Lorentz’s direction that
plaintiff only communicate with the District
via Lorentz’s office. (Def.’s 56.1 ¶ 25.)
Subsequently, on or about June 14, 2013,
plaintiff approached Bardash-Eivers at a post
office to discuss the reasons why he should
have received the position of Audio Visual
Technician in 2010. (Def.’s 56.1 ¶ 26;
Gibson Aff. Ex. I.) Plaintiff told BardashEivers that Lorentz was “condescending and
cocky and ha[d] it out for” plaintiff, and that
“Lorentz need[ed] to go sooner than later.”
(Id.) Following that interaction, BardashEivers filed a police report concerning
plaintiff. (Id.) Further, on or about June 17,
2013, Bardash-Eivers responded to an e-mail
plaintiff had sent her and instructed him to

On or about May 23, 2013, District
Superintendent of Schools John Lorentz
(“Lorentz”) sent plaintiff a letter directing
plaintiff to send all communications to the
District to Lorentz’s office. (Def.’s 56.1 ¶ 22;
Gibson Aff. Ex. BB.) The purpose of
that correspondence was “to address
concerns . . . regarding representations made
by [plaintiff], [plaintiff’s] interactions with
students and staff, and [plaintiff’s] presence
in District schools.” (Gibson Aff. Ex. BB.)
The letter stated that it was “not [Lorentz’s]
4

avoid personal contact with her and other
District Board Members. (Def.’s 56.1 ¶ 27;
Gibson Aff. Exs. I, CC.) In addition, after
plaintiff sent a letter to Lorentz and the
District Board of Education regarding that email exchange, Bardash-Eivers sent a letter to
plaintiff on or about July 3, 2013 stating that
his “communications with [her] and District
staff ha[d] become increasingly combative”;
that plaintiff had “personally confronted
[Bardash-Eivers] in a combative manner,
which [she] found to be unwarranted and
upsetting”;
and
that
“all
[future]
communications from [plaintiff] must be
transmitted through the Superintendent or his
office.” (Def.’s 56.1 ¶ 28; Gibson Aff. Exs.
I, DD.)

“retaliating” against him. (Def.’s 56.1 ¶ 30;
Gibson Aff. Ex. W). On or about July 10,
2013, Bardash-Eivers sent another letter to
plaintiff again instructing him to no longer
contact District Board of Education members
personally, and to only make inquiries
through Lorentz’s office. (Def.’s 56.1 ¶ 31;
Gibson Aff. Exs. I, EE.) However, on July
11, 2013, plaintiff left a voicemail on
Goldberg’s cell phone stating that he was not
“going to be allowing this type of black
propaganda and/or character assassination”
to continue. (Def.’s 56.1 ¶ 32; Gibson Aff.
Ex. R.) Plaintiff also said that his “invisible
network” had supported Goldberg in the last
District Board of Education election, and that
he would “knock out” some other members
during the next election. (Id.) The next day,
plaintiff left another voicemail for Goldberg
saying that he was “done with the idiocracy”
and had run out of patience.
(Def.’s
56.1 ¶ 33; Gibson Aff. Ex. R.)

Notwithstanding this directive, plaintiff
left Bardash-Eivers a voicemail on or about
July 9, 2013. (Def.’s 56.1 ¶ 29; Gibson Aff.
Ex. I.) Bardash-Eivers attested that plaintiff
said that he had received her July 3, 2013
letter and that he

On or about August 22, 2013, Plaintiff
sent an e-mail to Goldberg and District Board
of Education Vice President John
Capobianco (“Capobianco”) stating that he
had received a phone call from a
representative of the New York State Board
of Education, 6 who said that plaintiff’s emails to District Board Members were
harassing. (Def.’s 56.1 ¶ 35; Gibson Aff.
Exs. K, R.) On or about August 28, 2013,
plaintiff told a Security Aide at a District
Board of Education meeting that Plaintiff had
a problem with Lorentz. (Def.’s 56.1 ¶ 36;
Gibson Aff. Ex. Y.)

[was] going to end this little character
assassination,
questioning
[his]
intentions, because [his] intentions
[were] to improve [District] schools
for when [his] children get into
[District] schools . . . [T]his character
assassination and black propaganda
and all this other nonsense, there
w[ould] be a meeting of the minds
that happens to diffuse this situation
. . . [T]hat [was] a fact because
[plaintiff’s] family and [his] network
and [his] invisible network within the
community [were] tired of it . . . .

Further, on or about September 3, 2013,
plaintiff called Lorentz’s secretary several
times, and she subsequently filed a police
report. (Def.’s 56.1 ¶ 38; Gibson Aff. Ex. J.)
The
next
day,
District
Assistant

(Gibson Aff. Ex. I.) That same day, plaintiff
also sent a letter to Lorentz and the District
Board of Education accusing the District of
6

Defendant claims that no such organization exists.
(Def.’s 56.1 ¶ 35 n.3.)

5

Superintendent of Business Paul Defendini
(“Defendini”) reported plaintiff’s behavior to
Nassau County Police Officer Paul
Lamonaca. (Def.’s 56.1 ¶ 39; Gibson Aff.
Ex. M.) In that letter, Defendini said that “the
[D]istrict had] grown increasingly concerned
over the past year regarding a resident. There
ha[d] been numerous interactions between
this resident, Jeffrey Roth, and Board of
Education trustees, Administrators, teachers,
security aides and secretaries,” and it was the
District’s “contention that [plaintiff] pose[d]
a threat to [its] students and employees.”
(Gibson Aff. Ex. M.) On or about September
18, 2013, plaintiff attended a public District
Board of Education meeting, and other
participants complained about his behavior.
(Def.’s 56.1 ¶ 41; Gibson Aff. Exs. I, K, R,
V.) Bardash-Eivers attested that, during that
meeting, plaintiff was disruptive and said that
he “ha[d] been coming to meetings for five
years busting balls” and “was going to knock
Lorentz’s teeth out.” (Def.’s 56.1 ¶¶ 41-42;
Gibson Aff. Ex. I.) 7

Gibson Aff. Ex. R.) In addition, on or about
October 22, 2013, plaintiff attended a District
Parent Teacher Association (“PTA”)
meeting, where he made references to the
Columbine and Sandy Hook school
shootings, leading to complaints from other
meeting participants. (Def.’s 56.1 ¶ 51;
Gibson Aff. Ex. N.)
Further, on or about November 8, 2013,
plaintiff entered the custodial office of the
District High School and had an altercation
with the custodial staff. (Def.’s 56.1 ¶ 54;
Gibson Aff. Ex. O.) The next day, plaintiff
appeared at Capobianco’s private residence
and told Capobianco’s brother that the
District was “all screwed up.” (Def.’s
56.1 ¶ 55; Gibson Aff. Ex. K.) That same
day, plaintiff also entered the District High
School during a student music rehearsal and
was asked to leave. (Def.’s 56.1 ¶ 56; Gibson
Aff. Ex. M.)
Following these incidents, Lorentz sent
plaintiff a letter on or about November 14,
2013 regarding his visits to District property.
(Def.’s 56.1 ¶ 57; Gibson Aff. Ex. FF.) That
letter advised plaintiff that

On or about September 27, 2013, plaintiff
approached District employee Joseph
Glascott (“Glascott”), and after Glascott
informed Defendini of that interaction,
Defendini filed a police report.
(Def.’s
56.1 ¶ 43; Gibson Aff. Ex. M.) Subsequently,
on or October 8, 2013, plaintiff left several
voicemails for Capobianco and sent an e-mail
to Capobianco and Goldberg.
(Def.’s
56.1 ¶¶ 46-48; Gibson Aff. Exs. K, R.) A few
weeks later, plaintiff left another voicemail
for Goldberg stating that he had performed an
unaccompanied security inspection of the
District High School. (Def.’s 56.1 ¶ 50;

per the District’s Code of Conduct,
[plaintiff was] prohibited from
entering any District school building
and/or area unless [he had] an
appointment with an Administrator, a
staff member, or [was] attending a
meeting or event which [was] open to
the public. . . . [I]n the event [plaintiff]
enter[ed] and/or remain[ed] in school
buildings
or
areas
without

7

In his rebuttal, plaintiff argues: “If this occurred then
why was the district’s surveillance cameras in the
cafeteria footage archived to prove their case. Where
it is highly suspect Jeff Roth made this statement to a
district employee after the series of correspondence
which started taking place in May 2013. . . . One would

question why a police report was not filed or included
for this alleged incident.” (Pl.’s Opp’n at 17.) As
discussed further infra, these speculative statements
lack record support and do not create material issues
of fact.

6

authorization, [plaintiff] may be
considered a trespasser and law
enforcement authorities may be
called upon to intervene.

the consequences for failing to comply with
the boundaries set by the District and/or its
rules and regulations (e.g. ban [plaintiff]
from District property) and if [plaintiff]
failed to comply, follow through with the
consequences.” (Id.)

(Gibson Aff. Ex. FF.) However, on or about
November 25, 2013, plaintiff entered the
District’s Howitt Middle School and
demanded a meeting with Lorentz. (Def.’s
56.1 ¶ 59; Gibson Aff. Ex. L.) Lorentz and
Defendini met with plaintiff, who asked that
the District accept a donation from him and
his “imaginary network” and hire him as an
employee. (Def.’s 56.1 ¶ 60; Gibson Aff.
Exs. M, W.)

3. Plaintiff’s New York State Human

Rights Complaint
On December 16, 2013, plaintiff filed a
complaint with the New York State Division
of Human Rights (“DHR”) and the Equal
Employment Opportunity Commission
(“EEOC”) alleging that he was denied an
employment opportunity with the District
because of his age, arrest record, and marital
status. 8 (Def.’s 56.1 ¶ 95; Gibson Aff. Ex.
A.) Specifically, plaintiff alleged that (1) he
was “was arrested in 1996 for a DUI,” and
“[b]ecause of this, [he had] been
subjected to unlawful discriminatory
actions”; (2) “[b]ased on information and
belief, a younger and less qualified person
was hired” for the District Audio Visual
Technician position; and (3) Bardash-Eivers
“made a comment about [plaintiff’s] age and
marital status” during a May 2012 meeting.
(Gibson Aff. Ex. A.)

As a result of these interactions with
District administrators, employees, and
Board of Education Members, the District
reported plaintiff’s behavior to the Federal
Bureau of Investigation (“FBI”) in or about
2013, and the FBI began to monitor plaintiff.
(Def.’s 56.1 ¶¶ 62-63; Gibson Aff. Ex. Z.)
FBI Special Agent Steven Troy (“Special
Agent Troy”) attended at least three District
Board of Education meetings during the
2014-2015 school year and attested that
plaintiff “displayed threatening, intimidating
and incongruous behavior.” (Gibson Aff. Ex.
Z.) Special Agent Troy observed that
plaintiff “paced about the room, loudly
shouted and attempted to incite others against
the Board of Education,” and plaintiff “also
entered
school
buildings
without
authorization, when school was not in
session, with no children of his own in
attendance and no scheduled business, and
photographed the building’s infrastructure.”
(Id.) Special Agent Troy attested that
“[b]ased upon [plaintiff’s] conduct, the FBI
recommended that the District set boundaries
with regard to [plaintiff’s] behavior,” and he
“recommended the District warn [plaintiff] of

On June 6, 2014, the DHR dismissed
plaintiff’s complaint in its entirety for lack of
probable cause. (Def.’s 56.1 ¶ 100; Gibson
Aff. Ex. B.) The EEOC adopted the findings
of the DHR on September 2, 2014 and sent

8

Defendant’s 56.1 states that plaintiff filed the DHR
complaint on December 11, 2013 (Def.’s 56.1 ¶ 95),

but the complaint is file-stamped December 16, 2013
(Gibson Aff. Ex. A).

7

plaintiff a “Right to Sue” letter.
56.1 ¶ 101; Gibson Aff. Ex. B.)

(Def.’s

statements, the District evacuated its
Administration Building and filed a police
report. (Id.)

4. Plaintiff’s

Post-DHR Complaint
Interactions with District Employees
and Board of Education Members

On or about August 26, 2014, plaintiff
left Lorentz a voicemail stating that he had
lost his temper after receiving the August 19,
2014 letter. (Def.’s 56.1 ¶ 77; Gibson Aff.
Ex. W.) The next day, plaintiff attended a
District Board of Education meeting and told
Lorentz that “God [was] trying to send
[Lorentz] a message.” (Def.’s 56.1 ¶ 78;
Gibson Aff. Ex. W.) As a result, the District
sent plaintiff a letter dated September 18,
2014, informing him that he was prohibited
from entering District property and having
contact with District personnel and Board of
Education Members for one month, and
advising plaintiff that failure to comply
would require the District to treat plaintiff as
a trespasser and notify law enforcement.
(Def.’s 56.1 ¶ 81; Gibson Aff. Ex. HH.)

In January, March, June, and July 2014,
plaintiff left several voicemails for
Capobianco regarding, inter alia, recent
school shootings, his DHR complaint, and
plaintiff’s visits to District property. (Def.’s
56.1 ¶¶ 64-67, 69-73; Gibson Aff. Ex. K.) On
or about April 10, 2014, plaintiff called
Defendini’s secretary and told her that he
wanted to “bust [Lorentz’s] bald head.”
(Def.’s 56.1 ¶ 68; Gibson Aff. Ex. Q.)
Further, on or about July 27, 2014, plaintiff
showed up at Capobianco’s private residence
to discuss District-related security issues.
(Def.’s 56.1 ¶ 74; Gibson Aff. Ex. K.)
In response to this behavior, Lorentz sent
plaintiff a letter on or about August 19, 2014
stating that if plaintiff continued “to threaten
staff, confront, harass or annoy Board
Members, and fail[ed] to comply with the
District’s Code of Conduct, the Board may be
compelled to take action against [plaintiff],
e.g. prohibiting [plaintiff] from entering any
of the District’s buildings or grounds of
such buildings for a period of
time . . . .” (Def.’s 56.1 ¶ 75; Gibson Aff. Ex.
GG.) Subsequently, on or about August 20,
2014, Lorentz and Defendini contacted
plaintiff
to
discuss
plaintiff’s
communications with District staff, and
during that conversation, plaintiff said that
“you don’t know what I’m capable of”; “you
will hear the lion roar”; and “you will feel the
wrath of Roth.” (Def.’s 56.1 ¶ 76; Gibson
Aff. Exs. M, W.) As a result of plaintiff’s

Despite this ban, plaintiff attended a
Board of Education meeting on District
property on or about October 8, 2014, and on
or about October 27, 2014, plaintiff entered
Howitt Middle School. (Def.’s 56.1 ¶¶ 8283; Gibson Aff. Ex. O.) Consequently, by
letter dated November 7, 2014, the District
again prohibited plaintiff from entering
District property and having contact with
District personnel and Board of Education
Members for three months. 9
(Def.’s
56.1 ¶ 85; Gibson Aff. Ex. II.)
In March 2015, plaintiff attended another
District Board of Education meeting and sent
an e-mail to all Board Members. (Def.’s
56.1 ¶¶ 87-88; Gibson Aff. Exs. I, K, R, V,
W, Z.) As a result, on or about March 11,
2015, the District sent plaintiff a third letter

9

Defendant’s 56.1 states that this second ban was for
one month (Def.’s 56.1 ¶ 85); however, the November
7, 2014 letter sent to plaintiff states that it would last

until February 7, 2015 (Gibson Aff. Ex. II), i.e. for
three months.

8

prohibiting him entering District property
and having contact with District personnel
and Board of Education Members until June
30, 2016. (Def.’s 56.1 ¶ 89; Gibson Aff. Ex.
JJ.) However, on or about April 14, 2015,
plaintiff left Lorentz four voicemails stating
that plaintiff was going to “show up to the
Board meeting” and “send Lorentz out to
lunch permanently if he didn’t call [plaintiff]
back . . . .” (Def.’s 56.1 ¶ 90; Gibson Aff. Ex.
W.) Further, on or about June 28, 2015,
plaintiff was arrested for trespassing at
Howitt Middle School. (Def.’s 56.1 ¶ 93;
Gibson Aff. Exs. M, W.)

Department, which states that Calasso
encountered plaintiff on June 28, 2015 at
around 7:15 p.m. at Howitt Middle School,
where Calasso worked as a security guard.
(Id. at 57.) Calasso said that he advised
plaintiff to leave the property immediately.
(Id.) Plaintiff has further submitted largely
illegible PowerPoint presentation slides that
appear to pertain to various District projects
(id. at 59-108); minutes from an August 31,
2016 District Board of Education meeting
(id. at 111-110); and various letters plaintiff
sent to District officials (id. at 121-137).
Finally, plaintiff’s opposition includes
affidavits and accompanying exhibits
submitted to the DHR in response to
plaintiff’s complaint. (Id. at 138-217.)

Because of these incidents, Lorentz asked
the Nassau County District Attorney’s Office
to secure a temporary order of protection,
which was issued on July 13, 2015 by the
Honorable Judge Harris of the Nassau
County District Court. (Def.’s 56.1 ¶ 94;
Gibson Aff. Exs. W, KK.)

B. Procedural History
Plaintiff commenced this action on
November 10, 2014 (ECF No. 1) and filed the
FAC on July 8, 2015 (ECF No. 25).
Defendant filed a motion to dismiss the FAC
on August 12, 2015 (ECF No. 28), which the
Court granted in part and denied in part on
February 26, 2016 (ECF No. 49). The Court
also gave plaintiff leave to re-plead those
claims that it had dismissed, and plaintiff
filed the SAC on March 28, 2016. (ECF No.
60.)

5. Plaintiff’s Facts

As discussed supra note 4, plaintiff’s
56.1 rebuttal does not comport with Local
Civil Rule 56.1 and does not cite any
underlying evidence. Moreover, many of
plaintiff’s responses are argumentative,
rather than factual, in nature. Nevertheless,
the Court has reviewed the materials plaintiff
submitted in opposition to the instant motion
and briefly summarizes them below.

On August 4, 2016, defendant moved for
summary judgment. (ECF No. 71.) Plaintiff
filed his opposition on September 3, 2016
(ECF No. 80), and the District filed its reply
on September 26, 2016 (ECF No. 82). The
Court has carefully considered the parties’
submissions.

Plaintiff’s omnibus opposition consists of
unorganized newspaper articles that concern,
inter alia, technology issues in the District,
salaries for New York state school district
superintendents, and various investigations
into Long Island school districts. (Pl.’s
Opp’n at 25-55.) In addition, plaintiff has
submitted the July 29, 2015 supporting
deposition of Vincent Calasso (“Calasso”)
given to the Nassau County Police

II. STANDARD OF REVIEW
The standard for summary judgment is
well-settled. Pursuant to Federal Rule of
Civil Procedure 56(a), a court may grant a
9

motion for summary judgment only if “the
movant shows that there is no genuine
dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Gonzalez v.
City of Schenectady, 728 F.3d 149, 154 (2d
Cir. 2013). The moving party bears the
burden of showing that it is entitled to
summary judgment. See Huminski v.
Corsones, 396 F.3d 53, 69 (2d Cir. 2005).
Rule 56(c)(1) provides that a

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

party asserting that a fact cannot be or
is genuinely disputed must support
the assertion by: (A) citing to
particular parts of materials in the
record,
including
depositions,
documents, electronically stored
information,
affidavits
or
declarations, stipulations (including
those made for purposes of the
motion
only),
admissions,
interrogatory answers, or other
materials; or (B) showing that the
materials cited do not establish the
absence or presence of a genuine
dispute, or that an adverse party
cannot produce admissible evidence
to support the fact.
Fed. R. Civ. P. 56(c)(1). The court “‘is not to
weigh the evidence but is instead required to
view the evidence in the light most favorable
to the party opposing summary judgment, to
draw all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.’” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)
(summary judgment is unwarranted if “the
evidence is such that a reasonable jury could
return a verdict for the nonmoving party”).

When considering a dispositive motion
made by or against a pro se litigant, the Court
is mindful that a pro se party’s pleadings
must be “liberally construed” in favor of that
party and are held to “less stringent standards
than formal pleadings drafted by lawyers.”
Hughes v. Rowe, 449 U.S. 5, 9 (1980)
(quoting Haines v. Kerner, 404 U.S. 519, 520
(1972)). The Second Circuit “liberally
construe[s] pleadings and briefs submitted by
10

pro se litigants, reading such submissions to
raise the strongest arguments they suggest.”
Bertin v. United States, 478 F.3d 489, 491 (2d
Cir. 2007) (citations omitted). Nevertheless,
“[p]roceeding pro se does not otherwise
relieve a litigant of the usual requirements of
summary judgment, and a pro se party’s bald
assertions unsupported by evidence, are
insufficient to overcome a motion for
summary judgment.” Rodriguez v. Hahn,
209 F. Supp. 2d 344, 348 (S.D.N.Y. 2002)
(citation omitted).

disability discrimination in his DHR
complaint, and that such allegations are
unrelated to any claims asserted in that
administrative proceeding. Thus, defendant
argues that the Title VII claim based on
gender and the ADA claim based on
disability are unexhausted, and that summary
judgment on those claims is warranted. As
set forth below, the Court agrees.
1. Applicable Law
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)).

III. DISCUSSION
For the reasons that follow, the Court
grants the District’s motion to dismiss the
federal claims in its entirety. As a threshold
matter, the Court determines, as a matter of a
law, that plaintiff’s Title VII and ADA claims
alleging gender and disability discrimination
are barred due to plaintiff’s failure to exhaust
administrative remedies, and that plaintiff’s
ADEA claim is barred by the statute of
limitations. Accordingly, the Court need not,
and does not, discuss whether there are
materials issues of fact concerning those
claims. In addition, the Court determines that
no rational fact-finder could find for plaintiff
on his Title VII retaliation claim, or his First
and Fourteenth Amendment claims. Finally,
the Court declines to exercise supplemental
jurisdiction over plaintiff’s state law claims.

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 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, 35960 (2d Cir. 2001)). 10 In determining whether

A. Failure to Exhaust
As it did on its motion to dismiss the
FAC, the District 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
10

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

11

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)).

DiProjetto v. Morris Protective Serv., 306 F.
App’x 687, 688 (2d Cir. 2009) (finding that
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 based on disability. As a
result, in the Memorandum and Order, the
Court dismissed those claims because
plaintiff did not file an administrative
complaint within 300 days of the conduct at
issue. Id. (citing 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).
However, in an abundance of caution, the
Court granted plaintiff leave to re-plead and
specifically directed him “to provide a basis
for equitable tolling (if such a basis exists) for
his failure to exhaust . . . .” Id. at *7. The
Court said that the SAC “must explain why
equitable
principles
should
excuse
[plaintiff’s] failure to file an administrative
charge concerning the Title VII and ADA
claims within 300 days of the alleged
discriminatory conduct.” Id.

2. Analysis
As discussed above, plaintiff’s DHR
complaint indicates that he was discriminated
against based on his age, arrest record, and
marital status. (Gibson Aff. Ex. A.) The
DHR complaint is devoid of any reference to
gender, sex, or disability discrimination, and
the Court previously determined in the
Memorandum and Order that discrimination
on the basis of gender, sex, and disability are
not “reasonably related” to plaintiff’s claims
that defendant discriminated against him on
the basis of his age, marital status, or arrest
record. 11 2016 WL 767986, at *6 (citing
Petty v. City of New York, No. 10-CV-8581
(KPF), 2014 WL 6674446, at *10 (S.D.N.Y.
Nov. 25, 2014) (finding that claims of race
and disability discrimination were not
reasonably related to allegations of
discrimination based on arrest record that
were raised in administrative complaint);

Equitable tolling “is granted when ‘rare
and exceptional circumstances’ prevented a

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.

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).

11
To the extent that plaintiff alleges in the SAC that
he was discriminated against on the basis of marital
status or arrest record, such claims are not cognizable
under Title VII. “Federal law does not protect
individuals against discrimination based on criminal
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

12

May 3, 2005) (holding that death of
plaintiff’s father was insufficient reason for
equitable tolling); Jenkins v. Potter, 271 F.
Supp. 2d 557, 564 (S.D.N.Y. 2003) (holding
union representative’s “wife’s terminal
illness” not sufficiently “extraordinary”
circumstance to justify equitable tolling);
Chalom v. Perkins, No. 97 Civ. 9505 (LAP),
1998 WL 851610, at *6 (S.D.N.Y. Dec. 9,
1998) (“Even if [plaintiff] did offer proof of
the mental grief she alludes to, it would not
reach the high standard that this circuit has
applied.”); Pauling v. Sec’y of Dep’t of
Interior, 960 F. Supp. 793, 804 n.6 (S.D.N.Y.
1997) (holding that plaintiff’s claim that he
was suffering from a “major depressive
episode” did not excuse his failure to exhaust
administrative remedies when the medical
evidence “indicat[ed] only that he was too ill
to work, not that he was too ill to comprehend
his rights and to file a complaint”); Decrosta
v. Runyon, Nos. 90-CV-1269, 90-CV-585,
1993 WL 117583, at *3 (N.D.N.Y. Apr. 14,
1993) (holding that equitable tolling was not
warranted, despite doctor’s statement that the
plaintiff was “suffering from a major
depressive disorder that was more serious
than a neurosis and his overall ability to
function in society was severely limited,”
when other testimony from doctors
demonstrated that plaintiff could care for
himself, comprehend problems with his
employment, and had retained an attorney
regarding his legal remedies).

plaintiff from filing on time.” Williams v.
Potter, No. 06 Civ. 8258 (LAP), 2007 WL
2375818, at *5 (S.D.N.Y. Aug. 14, 2007)
(quoting Smith v. McGinnis, 208 F.3d 13, 17
(2d Cir. 2000)). “When determining whether
equitable tolling is applicable, a district court
must consider whether the person seeking
application of the equitable tolling doctrine
(1) has ‘acted with reasonable diligence
during the time period she seeks to have
tolled,’ and (2) has proved that the
circumstances are so extraordinary that the
doctrine should apply.” Zerilli-Edelglass v.
N.Y. City Transit Auth., 333 F.3d 74, 80-81
(2d Cir. 2003) (quoting Chapman v.
ChoiceCare Long Island Term Disability
Plan, 288 F.3d 506, 512 (2d Cir. 2002)). The
doctrine is “highly case-specific,” and the
“burden
of
demonstrating
the
appropriateness of equitable tolling . . . lies
with the plaintiff.” Boos v. Runyon, 201 F.3d
178, 184-85 (2d Cir. 2000).
Only in a limited number of cases do
extraordinary circumstances exist such that
equitable tolling is warranted. See South v.
Saab Cars USA, Inc., 28 F.3d 9, 12 (2d Cir.
1994) (principles of equitable tolling do not
extend to what “is at best a garden variety
claim of excusable neglect” (citation
omitted)). Such cases include those where a
plaintiff’s mental or physical disability
prevented him from handling his legal affairs.
See, e.g., Tsai v. Rockefeller Univ., 137 F.
Supp. 2d 276, 281-83 (S.D.N.Y. 2001);
accord Canales v. Sullivan, 936 F.2d 755,
756 (2d Cir. 1991) (“[M]ental impairment
may warrant equitable tolling of the statute of
limitations under some circumstances.”).
Nevertheless, “few medical difficulties
actually qualify for equitable tolling.”
Kantor-Hopkins v. Cyberzone Health Club,
No. 06-CV-643 (DLI) (LB), 2007 WL
2687665, at *6 (E.D.N.Y. Sept. 10, 2007);
see, e.g., Ferrer v. Potter, No. 03 Civ. 9113
(AJP), 2005 WL 1022439, at *8 (S.D.N.Y.

Here, plaintiff has failed to carry his
burden. His opposition does not rebut
defendant’s argument that equitable tolling is
inapplicable to plaintiff’s claims, and the
SAC merely states that:
It is Jeff Roth’s argument of why the
claim should be subject to equitable
tolling is that other cases which set
legal precedents were decided such
“Cyr v. Addison Rutland Supervisory
13

Union” or the Carin Mehler v. Rye
City School or the Mount Vernon
School District’s controversy with
their administrators contracts had yet
to occur.

complaint). Plaintiff’s seeming contention
that it was necessary for him to wait for
additional conduct by the District pertaining
to tax expenditures—conduct that bears no
relation to his discrimination claims—is
meritless.

It is Jeff Roth’s argument that it could
be argued that the timing was delayed
in order to wait for he knew other
examples to occur in the future which
would support Jeff Roth’s complaint
and need for education reform to
bring to the public’s knowledge of
how their school tax money is being
wasted and in some instances their
community being defrauded. 12

Accordingly, because plaintiff failed to
administratively exhaust his Title VII and
ADA discrimination claims and has not
adduced facts showing why equitable tolling
should apply, those claims are barred from
judicial review as a matter of law, and
defendant is entitled to summary judgment. 15
B. Statute of Limitations

(SAC at 6.)

Defendant again argues that plaintiff’s
ADEA claim alleging discrimination on the
basis of age in connection with his
application for the Audio Visual Technician
position should be dismissed because it is
barred by the statute of limitations. As set
forth below, the Court agrees.

These assertions do not demonstrate the
appropriateness of equitable tolling, and after
conducting an independent review of the
record, the Court concludes that no such
justification exists.13 In particular, the Court
notes that plaintiff filed his DHR complaint
despite his disability, 14 and thus, there is no
basis for concluding that plaintiff’s disability
prevented him from raising gender and
disability-based discrimination claims in that
administrative proceeding. See Thomas v.
Burmax Co., No. 12-CV-6363 (JFB) (ARL),
2013 WL 6681616, at *5 (E.D.N.Y. Dec. 18,
2013) (holding that plaintiff could not claim
disability-based equitable tolling where the
disability did not prevent filing of EEOC

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. 04CV-2430 (ARL), 2007 WL 28283, at *8

12

The Court has excerpted the SAC verbatim and has
not noted spelling or grammatical errors. Although
these statements are included under the “Count l:
Violation of the First Amendment to the United States
Constitution” heading, the Court will consider them in
the context of plaintiff’s Title VII and ADA
discrimination claims for purposes of the instant
motion.

Supervisory Union, 955 F. Supp. 2d 290 (D. Vt. 2013),
which does not address equitable tolling.
14

In the SAC, plaintiff states that he suffers from
“PTSD Panic Anxiety Disorder.” (SAC at 8.)

15

Consequently, the Court need not, and does not,
discuss whether there are material issues of fact
pertaining to those claims.

13

The Court was able to identify only of the cases that
plaintiff appears to cite, Cyr v. Addison Rutland

14

(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 a statute 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. 00CV-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.

plaintiff leave to re-plead his ADEA claim so
as to allege equitable tolling. 16 Id.
In the SAC, plaintiff argues that:
It is Jeff Roth’s contention that the
statute of limitation on the timeliness
of disclosing his disability of PTSD
Panic Anxiety Disorder in the Nassau
Commission of Human Rights
original complaint was that then it
would discredit the seriousness of the
constitutional
rights
violations
whereas then the commission not
seriously consider investigating his
complaint.
It is Jeff Roth’s contention that the
statute of limitation on the timeliness
of disclosing in his complaint original
complaint when filed was his belief
the district or one of their employees
would reference his disability proving
the slanderous defamation emanating
from the district. . . .

2. Analysis
Plaintiff filed his DHR complaint on
December 16, 2013. Thus, the 300-day
window commenced on February 19, 2013.
However, plaintiff contended in his DHR
complaint that he was discriminated against
in 2011, when a “younger and less qualified
person” was hired for the District’s audio
technician position. (Gibson Aff. Ex. A.)
Accordingly, the Court concluded in the
Memorandum and Order that “[a]n allegation
of discrimination in 2011 (or perhaps even
earlier in December 2010 as indicated
elsewhere in the [FAC]), is plainly outside of
the 300-day actionable window, and thus,
untimely.”
2016 WL 767986, at *8.
Nevertheless, the Court again granted

It is Jeff Roth’s contention that the
statute of limitation on the timeliness
of disclosing in his complaint original
complaint when filed due to the fact
that his disability was not properly
documents at the time of filing. Jeff
Roth currently has a disability appeal
which was filed May 2015 with the
Social Security Administration. 17

16

The Court also noted that because “[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) (citing 29
U.S.C. § 631(a)), aff’d, 354 F. App’x 559 (2d Cir.
2009), plaintiff’s ADEA claim must pertain to conduct

that occurred in 2011, when he turned forty-years old,
or later. 2016 WL 767986, at *8.
17

The Court has excerpted the SAC verbatim and has
not noted spelling or grammatical errors. Although
these statements are included under the “Count 5: The
Violation of ADA Americans with Disabilities and
Arrest Record” heading, the Court will consider them
in the context of plaintiff’s ADEA claim for purposes
of the instant motion.

15

(SAC at 8.) Plaintiff’s opposition does not
address defendant’s argument that equitable
tolling does not save his ADEA claim from
the limitations bar.

and physical disabilities actually prevented
him from filing a timely charge of
discrimination with the EEOC”). Plaintiff’s
argument that “disclosing his disability of
PTSD Panic Anxiety Disorder in the Nassau
Commission of Human Rights original
complaint . . . would [have] discredit[ed] the
seriousness of the constitutional rights
violations” is baseless and does not constitute
an “extraordinary circumstance” sufficient to
warrant equitable tolling.

Under the equitable principles set forth
above, plaintiff has again failed to carry his
burden of establishing entitlement to
equitable tolling, and the Court finds no basis
for applying that doctrine in the record.
Reading the SAC liberally, plaintiff appears
to argue that his disability prevented him
from timely filing the DHR complaint.
However, as previously noted, “few medical
difficulties actually qualify for equitable
tolling.”
Kantor-Hopkins, 2007 WL
2687665, at *6; see, e.g., Decrosta, 1993 WL
117583, at *3 (holding that equitable tolling
was not warranted, despite doctor’s statement
that the plaintiff was “suffering from a major
depressive disorder that was more serious
than a neurosis and his overall ability to
function in society was severely limited,”
when other testimony from doctors
demonstrated that plaintiff could care for
himself, comprehend problems with his
employment, and had retained an attorney
regarding his legal remedies). Plaintiff does
not contend, and there is nothing in the record
that shows, that his disability impaired his
ability to file an administrative charge prior
to February 19, 2013. See Thomas, 2013 WL
6681616, at *5 (holding that although
plaintiff alleged that “he suffered from
depression and post-traumatic stress disorder,
could not care for himself, and struggled
‘each day to just get by’ since his termination . . . the Court [could not] conclude that
plaintiff’s circumstances following his
termination were so extraordinary that they
warrant equitable tolling.
Simply put,
plaintiff has failed to show how his mental

Therefore, the Court holds that the statute
of limitations bars plaintiff’s ADEA claim,
and that no basis for equitable tolling has
been shown; thus, defendant is entitled to
summary judgment. 18
C. Title VII Retaliation
Defendant argues that plaintiff’s Title VII
retaliation claim fails as a matter of law
because there are no facts showing that
plaintiff engaged in protected activity or
opposed an employment practice made
unlawful by Title VII, or that defendant was
aware of such activity. As set forth below,
the Court agrees.
1. Applicable Law
The Court evaluates a Title VII retaliation
claim under the three-step, burden-shifting
framework used for an adverse employment
claim, as established by McDonnell Douglas
Corporation. v. Green, 411 U.S. 792 (1973).
First, a plaintiff must establish a prima facie
case of retaliation by demonstrating that
“(1) the employee was engaged in protected
activity; (2) the employer was aware of that
activity; (3) the employee suffered an adverse
employment action; and (4) there was a

18

Consequently, the Court need not, and does not,
discuss whether there are material issues of fact
pertaining to those claims.

16

Ry. Co. v. White, 548 U.S. 53, 68 (2006)
(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.

causal connection between the protected
activity and the adverse employment action.”
Gregory v. Daly, 243 F.3d 687, 700 (2d Cir.
2001) (quoting Reed v. A.W. Lawrence &
Co., 95 F.3d 1170, 1178 (2d Cir. 1996)). In
determining whether a plaintiff has satisfied
this initial burden, the Court’s role in
evaluating a summary judgment request is
“to determine only whether proffered
admissible evidence would be sufficient to
permit a rational finder of fact to infer a
retaliatory motive.”
Jute v. Hamilton
Sundstrand Corp., 420 F.3d 166, 173 (2d Cir.
2005).

2. Analysis
Here, plaintiff has failed to establish a
prima facie case of retaliation. Specifically,
plaintiff does not argue—and there are no
facts that show—that he engaged in any
protected activity, or that any such activity
was known by the District. The only mention
of plaintiff’s conduct before he applied for
the Audio Visual Technician position is his
allegation in the DHR complaint that he
advocated for better security and surveillance
systems, solar panels, and energy efficient
stage lighting to be installed in 2010.
(Gibson Aff. Ex. A.) Such actions do not
constitute protected activity under Title VII
because plaintiff has not demonstrated 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, 241 F.3d at 285). Thus, even in
light of plaintiff’s pro se status and drawing
all inferences in his favor, the Court identifies
nothing in the record that would allow a
rational juror to find for plaintiff on his Title
VII retaliation claim. See, e.g., Campbell v.
N.Y. City Transit Auth., 93 F. Supp. 3d 148,
175-79 (E.D.N.Y. 2015), aff’d, No. 15-1103CV, 2016 WL 6069229 (2d Cir. Oct. 17,
2016) (granting summary judgment because
pro se plaintiff failed to establish prima facie
retaliation case); Sherman v. Nat’l Grid, 993
F. Supp. 2d 219, 227-28 (N.D.N.Y. 2014)
(granting summary judgment to defendant on
Title VII retaliation claim notwithstanding
“special solicitude” shown to pro se
plaintiff).

The burden then shifts to the defendant to
articulate a legitimate, non-discriminatory
reason for the employment action, and if the
defendant carries that burden, it shifts back to
plaintiff to demonstrate by competent
evidence that the reasons proffered by the
defendant were a pretext for retaliatory
animus based upon protected Title VII
activity. See Sista v. CDC Ixis North
America, Inc., 445 F.3d 161, 169 (2d Cir.
2006).
The Court notes that 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
17

1. Applicable Law

Accordingly, defendant is entitled to
summary judgment on the Title VII
retaliation claim.

“To recover on a [F]irst [A]mendment
claim under § 1983, a plaintiff must
demonstrate that his conduct is deserving of
[F]irst [A]mendment protection and that the
defendants’ conduct of harassment was
motivated by or substantially caused by his
exercise of free speech.”
Donahue v.
Windsor Locks Bd. of Fire Comm’rs, 834
F.2d 54, 58 (2d Cir. 1987) (citation omitted);
see also Curley v. Vill. of Suffern, 268 F.3d
65, 73 (2d Cir. 2001) (“To prevail on this free
speech claim, plaintiff must prove: (1) he has
an interest protected by the First
Amendment; (2) defendants’ actions were
motivated or substantially caused by his
exercise of that right; and (3) defendants’
actions effectively chilled the exercise of his
First Amendment right.”).

D. First Amendment Claim
In the SAC, plaintiff challenges his
exclusion from District property because that
ban “impermissibly burdened [plaintiff’s]
ability to express himself, attend adult
education classes, obtain information, and
participate in the political process, and has
thereby violated the First Amendment.”
(SAC at 5.) In addition, plaintiff states that
he “engage[d] in protected activity where he
possessed firsthand knowledge of public
concern and the enclosed letters to local
politicians, government entities, and
discussions with district’s board of education
members . . . .” (Id.)

“Freedom of speech, however, is not an
unfettered right for any U.S. citizen. Speech
that constitutes a true threat of violence, by
being a ‘serious expression of an intent to
cause present or future harm,’ may be
prohibited.” D.F. ex rel. Finkle v. Bd. of
Educ. of Syosset Cent. Sch. Dist., 386 F.
Supp. 2d 119, 125 (E.D.N.Y. 2005) (quoting
Porter v. Ascension Parish Sch. Bd., 393 F.3d
608, 616 (5th Cir. 2004)), aff’d sub nom. D.F.
v. Bd. of Educ. of Syosset Cent. Sch. Dist.,
180 F. App’x 232 (2d Cir. 2006). This
prohibition is intended to “protect[]
individuals from the fear of violence, the
disruption that fear engenders, and the
possibility that the threatened violence will
occur.” R.A.V. v. City of St. Paul, Minn., 505
U.S. 377, 388 (1992). Thus, “[t]he speaker
need not actually intend to carry out the
threat.” Virginia v. Black, 538 U.S. 343, 35960 (2003).

In the instant motion, defendant argues
that “plaintiff’s speech was not protected
because he was continually threatening and
harassing [Board of Education] members and
District administrators at the time his
suspension occurred,” and that defendant
banned plaintiff for that behavior, rather than
on account of protected conduct. (Def.’s
Mem. of Law in Supp. of Mot. for Summ. J.
(“Def.’s Br.”), ECF No. 73, at 18-19.) As set
forth below, the uncontroverted evidence
shows that plaintiff’s speech was threatening
and therefore not entitled to constitutional
protection, and there is no evidence in the
record from which a rational jury could find
that the District’s decision to ban plaintiff
was motivated by plaintiff’s constitutionallyprotected activities. Consequently, there are
no triable issues of fact with respect to
plaintiff’s First Amendment claim.

18

education meetings criticizing and
expressing his educated opinion of
the
districts
inadequacies
in
technology compared to other
education technology projects he
completed, the previous board
retaliated against him.

2. Analysis
In the Memorandum and Order, the Court
concluded that plaintiff had stated a plausible
Free Speech claim and noted parenthetically
that “[t]o 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 . . . [s]uch
a factual dispute . . . cannot be resolved on a
motion to dismiss.” 2016 WL 767986, at *10
n.6. Upon review of the evidence, the Court
now concludes that there are no triable issues
of material fact regarding whether plaintiff
engaged in protected conduct, or whether
defendant’s actions were motivated by
plaintiff’s exercise of his Free Speech rights.
See Linares, 423 F. App’x at 85 (observing
that “different standards apply to Rule
12(b)(6) motions to dismiss and Rule 56
motions for summary judgment”). On the
contrary, the uncontroverted evidence
demonstrates that plaintiff’s threatening
behavior, which occurred over approximately
sixteen months despite repeated warnings by
District officials, led to his ouster from
District property. Further, the only finding a
rational jury could reach (even when
construing the evidence most favorably to
plaintiff) is that the ban was motivated by
defendant’s legitimate concern for the safety
of District administrators, employees,
students, and Board of Education members.

(Pl.’s Opp’n at 2.) Plaintiff also claims that
the “[D]istrict had a complacent attitude
toward security technology,” and that “[t]his
was one of the many inadequacies and noncompliance security issues Jeff Roth would
state publically at the board of education
meetings.” (Id. at 3.) Thus, plaintiff appears
to contend that defendant banned him from
District property in retaliation for his
outspokenness regarding its education and
safety technology.
However, the uncontroverted facts show
that the District did not first prohibit plaintiff
from entering District buildings and grounds
until September 18, 2014 (see Gibson Aff.
Ex. HH), several years after plaintiff, by his
own admission, began attending District
Board of Education meetings in 2011, where
he “state[d] his opinion and suggestions
during the public speaking portion” (SAC at
4; see also Def.’s 56.1 ¶¶ 15-16). In addition,
plaintiff does not contest that he met with
Bardash-Eivers and other District officials in
May 2012 to discuss audiovisual and
information technology issues in the District.
(Def.’s 56.1 ¶ 17; Gibson Aff. Ex. PP.) Thus,
the record is clear that plaintiff vocalized his
opinions and suggestions on District
technology issues well before defendant
instituted the contested ban.

In his opposition, plaintiff argues that the
disagreement between Jeff Roth and
the district did not cumulate until in
May 2013, when publically he was
making his advocacy for technology
improvements known instead of it
being discussed internally within the
Facility Advisory Committee. Once
Jeff Roth began exercising his
freedom of speech at public board of

Moreover, the evidence before this
Court—much of which plaintiff has failed to
refute by responding to portions of
defendant’s 56.1 statement or adducing
contrary facts—evinces a long course of
19

Capobianco’s home (id. ¶¶ 55, 74); and told
Lorentz and Defendini that they would feel
the “wrath of Roth” (id. ¶ 76). This conduct
led District officials and employees to file
multiple police reports (see, e.g., id. ¶¶ 26,
38, 39); report plaintiff to the FBI (id. ¶¶ 6263); evacuate the District Administration
Building (id. ¶ 76); and send plaintiff five
warning letters (id. ¶¶ 22, 28, 31, 57, 75).
Defendant took all of these prophylactic steps
prior to first restricting plaintiff from entering
District property on September 18, 2014,
well more than a year after Lorentz’s initial
letter to plaintiff on May 23, 2013 directing
him to limit his communications to Lorentz’s
office.
However, the uncontroverted
evidence shows that, despite that ban and
successive embargos, plaintiff continued to
enter District buildings and grounds and
accost District administrators and employees,
leading to his arrest for trespassing and an
order of protection against him. (Id. ¶¶ 9394.)

contumacious and combative conduct by
plaintiff. Specifically, plaintiff has not
denied that: Lorentz sent him a May 23, 2013
letter directing plaintiff to send all
communications to the District to Lorentz’s
office because of “concerns . . . regarding
representations
made
by
[plaintiff],
[plaintiff’s] interactions with students and
staff, and [plaintiff’s] presence in District
schools” (Def.’s 56.1 ¶ 22; Gibson Aff. Ex.
BB); despite that letter, plaintiff attended an
invitation-only Student Award Ceremony on
May 29, 2013 and left several voicemails for
Goldberg the next day (Def.’s 56.1 ¶¶ 23-25);
on or about June 14, 2013, plaintiff
confronted Bardash-Eivers at a post office
and voiced his displeasure with Lorentz,
causing Bardash-Eivers to file a police report
and to direct plaintiff to send all Districtrelated communications to Lorentz’s office
because his “communications with [her] and
District staff ha[d] become increasingly
combative” (Def.’s 56.1 ¶¶ 26-28; Gibson
Aff. Ex. DD); and that plaintiff nevertheless
left subsequrnt voicemails for BardashEivers and Goldberg (Def.’s 56.1 ¶¶ 29, 3233).

In response to these facts put forth by
defendant, plaintiff asserts that “[t]he attempt
to decide who is telling the truth or who is
remembering the versions of events more
accurately, with only relying on words
written in the thousands of documents would
be an illusionary justice,” and that this case
“deserves to be contemplated before a jury of
Long Island public school tax payers.” (Pl.’s
Opp’n at 2.) He further argues that if

In addition, defendant has provided a
plethora of correspondence and affidavit
testimony concerning defendant’s behavior
at District Board of Education meetings and
repeated phone calls to and in-person
interactions with District officials. Those
uncontroverted
materials
demonstrate
repetitive menacing behavior on the part of
plaintiff, who, inter alia, stated at a District
Board of Education meeting that he “was
going to knock Lorentz’s teeth out” (Def.’s
56.1 ¶¶ 41-42); referenced the Columbine
and Sandy Hook school shootings at a PTA
meeting (id. ¶ 51); had an altercation with
custodial staff at a District High School
(id. ¶ 54); threatened to “bust [Lorentz’s]
bald head” (id. ¶ 68); twice appeared at

plaintiff is permitted to cross examine
the alleged witnesses who were
directed to sign affidavits the
defendant crafted, it would be clear
who is distorting the truth. It is Jeff
Roth’s allegation that district
employees had a reasonable fear of
retaliation if they did not sign the
affidavits as directed and this will be
20

clearly
revealed
examination.

upon

mails, and an order of protection), the Court
determines that no rational juror could find
that defendant engaged in protected conduct,
or that defendant’s decision to exclude
plaintiff from District property was
motivated by plaintiff’s exercise of his Free
Speech rights.

cross

It is Jeff Roth’s allegation that the
certain employees signed the
affidavits in order to protect their
continued abuse of overtime, which
was confirmed from the salary
decrease of the audio visual
supervisor.

With respect to the first prong, as
previously noted, threats of violence are not
secured by the First Amendment. See, e.g.,
R.A.V., 505 U.S. at 388; D.F. ex rel. Finkle,
386 F. Supp. 2d at 125. Moreover, the
Supreme Court and the Second Circuit have
specifically recognized that menacing
conduct in a school setting does not enjoy
constitutional aegis. See Morse v. Frederick,
551 U.S. 393, 425 (2007) (Alito, J.,
concurring) (“[D]ue to the special features of
the school environment, school officials must
have greater authority to intervene before
speech leads to violence.”); Cuff ex rel. B.C.
v. Valley Cent. Sch. Dist., 677 F.3d 109, 115
(2d Cir. 2012) (“School administrators also
have to be concerned about the confidence of
parents in a school system’s ability to shield
their children from frightening behavior and
to provide for the safety of their children
while in school.”). Accordingly, other courts
have correctly dismissed First Amendment
claims based on conduct by school officials
taken in response to threatening statements.
See, e.g., Lovern v. Edwards, 190 F.3d 648,
655-56 (4th Cir. 1999) (holding that
“[s]chool officials have the authority to
control students and school personnel on
school property, and also have the authority
and responsibility for assuring that parents
and third parties conduct themselves
appropriately while on school property,” and
finding that banning parent from school
property was not unconstitutional because of
parent’s “continuing pattern of verbal abuse
and threatening behavior towards school
officials”); Milo v. City of N.Y., 59 F. Supp.
3d 513, 527 (E.D.N.Y. 2014) (holding that

(Id. at 2-3.) Finally, plaintiff states that
“[t]here is an issue of credibility where these
are ‘he said she said’ scenarios questioning
who has more credibility with irrational logic
such as the district not producing actual
recordings of the ‘disturbing threatening
behavior’ at the public board meetings after
three ‘suspensions’.” (Id. at 8.)
These arguments, which lack any
evidentiary support, are unavailing because
“‘[t]he assertion that trial will bring forth
evidence is not sufficient to defeat summary
judgment.’” Gunn v. United Parcel Serv.,
Inc., No. 14-CV-6951 (JFB) (SIL), 2016 WL
4523913, at *10 (E.D.N.Y. Aug. 22, 2016)
quoting Portee v. Deutsche Bank, No. 03 Civ.
9380 (PKC), 2006 WL 559448, at *8
(S.D.N.Y. Mar. 8, 2006)); see also Ying Ring
Gan v. City of New York, 996 F.2d 522, 532
(2d Cir. 1993) (“If facts essential to support
opposition to the summary judgment motion
are not available, the nonmoving party may
seek a continuance under Rule 56(f) to permit
affidavits to be obtained or discovery to be
had, but may not rely simply on conclusory
statements or on contentions that the
affidavits supporting the motion are not
credible.”); Rodriguez, 209 F. Supp. 2d at
348 (“[A] pro se party’s bald assertions
unsupported by evidence, are insufficient to
overcome a motion for summary
judgment.”). Based on the uncontroverted
facts set forth above (which include letters, e21

Bay Shore Union Free Sch. Dist., 170 F.
Supp. 3d 420, 433 (E.D.N.Y. 2016), aff’d,
No. 16-1000, 2016 WL 7402658 (2d Cir.
Dec. 20, 2016). In Jones, the plaintiff sued a
school district for, inter alia, banning him
“from attending or speaking at a December
14, 2011 meeting of the District’s Board of
Education.” Id. at 425. The plaintiff claimed
that the prohibition was due to his advocacy
for minority students, but the school district
claimed that he “was prohibited from
attending the meeting because of the prior
practice of restricting [his] presence on
campus, and the serious safety concerns
raised by his desire to appear on campus and
have access to students.” Id. The court held
that the plaintiff did “not put forth sufficient
evidence to raise a triable issue of fact
regarding whether Defendants’ actions were
motivated or substantially caused by
Plaintiff’s exercise of his right,” and noted
that school officials were “willing to meet
with Plaintiff to discuss the establishment of
a minority parents’ association.” Id. at 433.
Moreover, the court observed that there was
a “longstanding directive banning Plaintiff
from District property” due to prior
inappropriate contact with students that predated the school’s decision to exclude the
plaintiff from the Board of Education
meeting. Id. In affirming the district court,
the Second Circuit held that “[n]o rational
jury could conclude that the defendants were
motivated by retaliatory animus rather than
by legitimate concerns about student safety.”
2016 WL 7402658, at *2.

teacher’s “exclamation to school staff, inside
a school filled with students and teachers,
that ‘if [she] had a trench coat and a shotgun,
it would be Columbine all over again,’” was
not constitutionally protected); D.F. ex rel.
Finkle, 386 F. Supp. 2d at 125 (holding that
student’s “story, with its graphic depictions
of the murder of specifically named students
and sex between named students” was not
constitutionally protected).
In the instant case, as summarized above,
there is uncontroverted evidence that plaintiff
engaged in repeated acts of threatening
behavior, conduct that is not shielded by the
First Amendment, and the Court is mindful
that New York “school boards [] exercise
ultimate authority for access to students,
school buildings and school property . . . .”
See Lloyd v. Grella, 83 N.Y.2d 537, 547
(1994). It is not the judiciary’s prerogative
“to second-guess with hindsight the judgment
of school administrators . . . .” DeFabio v. E.
Hampton Union Free Sch. Dist., 658 F. Supp.
2d 461, 481 (E.D.N.Y. 2009), aff’d, 623 F.3d
71 (2d Cir. 2010); see also Wood v.
Strickland, 420 U.S. 308, 326 (1975) (“It is
not the role of the federal courts to set aside
decisions of school administrators which the
court may view as lacking a basis in wisdom
or compassion.”). Thus, based on the record
before this Court, no rational juror could find
that the District improperly viewed plaintiff’s
conduct as a danger to District officials, staff,
and students.
Moreover, plaintiff cannot show that
defendant banned him from District property
in response to his Free Speech activities
concerning education technology. On the
contrary, “the undisputed facts demonstrate
the existence of a longstanding directive” that
plaintiff
refrain
from
combative
confrontations with District officials and
Board of Education members. See Jones v.

Similarly, there is a substantial body of
uncontroverted evidence demonstrating that
the District banned plaintiff from its property
due to his “continuing pattern of verbal abuse
and threatening behavior towards school
officials,” and not on account of his advocacy
for education technology or any other issue.
See Lovern, 190 F.3d at 656. Cf. Johnson v.
22

Perry, 140 F. Supp. 3d 222, 227 (D. Conn.
2015), appeal docketed, No. 15-3671 (2d Cir.
Nov. 13, 2015) (denying summary judgment
because “whether plaintiff posed a danger to
staff and children at the school is a disputed
fact,” and “[e]qually disputed is whether
defendant banned plaintiff from school
property based on a disagreement with the
message plaintiff was conveying”); Cyr, 60
F. Supp. 3d at 547 n.8 (denying summary
judgment because of, inter alia, disputed
facts regarding whether ban from school
property was based on threatening behavior
or protected speech).

Eivers’ subsequent July 10, 2013 letter also
mentioned “several years of [plaintiff’s] emails, phone calls, and rants” (Gibson Aff.
Ex. EE), and Lorentz’s August 19, 2014
communication indicated that plaintiff had
“threaten[ed] staff, confront[ed], harass[ed]
or annoy[ed] Board Members, and fail[ed] to
comply with the District’s Code of Conduct
. . . .” (Gibson Aff. Ex. GG.) The District
sent plaintiff all of this correspondence over
a fifteen-month period prior to prohibiting
him from District property in September
2014, giving him ample notice that it was his
alarming and disruptive conduct, and not his
constitutionally-protected advocacy, that led
to that ban and the subsequent embargos. See
Jones, 170 F. Supp. 3d at 433. Given that the
uncontroverted evidence shows that plaintiff
repeatedly flouted those directives by leaving
voicemails for District officials and Board of
Education members, and by entering District
schools without authorization, defendant
exercised remarkable forbearance in
continuing to permit plaintiff to attend Board
of Education meetings during that period.

The May 23, 2013 letter from Lorentz
specifically “address[ed] concerns . . . regarding representations made by [plaintiff],
[plaintiff’s] interactions with students and
staff, and [plaintiff’s] presence in District
schools.” (Gibson Aff. Ex. BB.) Moreover,
the letter stated that it was “not [Lorentz’s]
intention to create an adversarial relationship
with [plaintiff]” or to “interfer[e] with
[plaintiff’s] right to discuss issues at Board
meetings . . . .” (Id. (emphasis added).) Thus,
like Jones, it is clear that the District had no
intention of restricting plaintiff’s protected
speech in support of education technology,
school security, or any other legitimate issue,
but was rather motivated to warn plaintiff
because of his distressing behavior.

Accordingly, even when viewing the
evidence most favorably to plaintiff, the
Court determines that there are no triable
issues of fact regarding plaintiff’s First
Amendment claim because plaintiff did not
engage in protected conduct, and no rational
jury could find that defendant’s actions were
motivated or substantially caused by such
conduct. 19

Similarly, Bardash-Eivers’ July 3, 2013
correspondence stated that plaintiff’s
“communications with [her] and District staff
ha[d] become increasingly combative,” and
that plaintiff had “personally confronted
[Bardash-Eivers] in a combative manner,
which [she] found to be unwarranted and
upsetting.” (Gibson Aff. Ex. DD.) Bardash19

Consequently, the Court need not reach defendant’s
argument that plaintiff cannot assert a First
Amendment claim against the District under 42
U.S.C. § 1983 because he failed to adduce evidence of

a municipal “policy or custom” that led to the
constitutional injury at issue. Monell v. Dep’t of Soc.
Servs. of City of New York, 436 U.S. 658, 694-95
(1978).

23

E. Due Process Claim

Comm. v. City of N.Y., 101 F.3d 877, 880-82
(2d Cir. 1996))), aff’d, 643 F. App’x 7 (2d
Cir. 2016), cert. denied, 2017 WL 69274
(U.S. Jan. 9, 2017); see also Hudson v.
Palmer, 468 U.S. 517, 533 (1984). 20

1. Applicable Law
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, AFLCIO 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 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) (citations omitted).

2. Analysis
Plaintiff alleges in the SAC that “[b]y
issuing no-trespass orders in a way that
creates a high risk of the erroneous
deprivation of rights, and by issuing a notrespass order that deprived Jeff Roth of his
rights without any meaningful opportunity to
be heard to refute the order, the defendant has
contravened the Fourteenth Amendment’s
guarantee of procedural due process.” (SAC
at 6.)
Defendant argues that because
“[a]ccess to school grounds . . . is not a
protected liberty or property interest under
New York State law,” plaintiff cannot sustain
a Due Process claim. (Def.’s Br. at 22.)
As the Court noted in the Memorandum
and Order, 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

With respect to the second prong,
ordinarily no pre-deprivation process is
required so long as there exists an adequate
post-deprivation remedy. See Attallah v. N.Y.
Coll. of Osteopathic Med., 94 F. Supp. 3d
448, 458 (E.D.N.Y. 2015) (“In sum, because
an adequate post-deprivation remedy exists
for review of plaintiff’s expulsion, there can
be no Fourteenth Amendment violation to
support a Section 1983 claim.” (citing, inter
alia, Hellenic Am. Neighborhood Action
20

Although “the availability of post-deprivation
procedures will not, ipso facto, satisfy due process”
where established state procedures led to the
deprivation at issue, there is nothing in the record that
shows, and plaintiff does not argue, that the District

was “‘in a position to provide for predeprivation
process.’” Hellenic, 101 F.3d at 880 (quoting Hudson,
468 U.S. at 534); see also Attallah, 643 F. App’x at 10
n.2.

24

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 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’s Fourteenth
Amendment fails as a matter of law. 21

of an Article 78 proceeding bars seeking
relief under Section 1983 when there is an
adequate state post-deprivation procedure to
remedy a random or arbitrary deprivation of
property or liberty.” Attallah, 94 F. Supp. 3d
at 455.
In Jones, the Second Circuit
specifically recognized that the plaintiff
“could have brought an Article 78 proceeding
to challenge [his] temporary ban” from
school district meetings. 2016 WL 7402658,
at *2 n.2 (citing N.Y. Pub. Off. Law § 107)
(holding that “[t]he presence of ‘a
meaningful postdeprivation remedy’ for a
deprivation not pursuant to ‘established state
procedure’ means that the Due Process
Clause was not violated” (citing Hellenic,
101 F.3d at 880)). In the instant case, similar
to Jones, plaintiff could have challenged the
District’s decision to prohibit him from its
building and grounds by commencing an
Article 78 proceeding in New York State
court. 22

Insofar as plaintiff raises a “stigma-plus”
claim (SAC at 2) based on reputational harm
inflicted by the ban from District property,
“plaintiff must also demonstrate that his
interests were deprived without due process
of law . . .” Attallah, 94 F. Supp. 3d at 455;
see also Segal v. City of New York, 459 F.3d
207, 213 (2d Cir. 2006) (“Stated differently,
the availability of adequate process defeats a
stigma-plus claim.” (citing DiBlasio v.
Novello, 344 F.3d 292, 302 (2d Cir. 2003)).
Here, a meaningful post-deprivation remedy
existed under Article 78 of the New York
Civil Practice Laws and Rules (“Article 78”).
See Attallah, 94 F. Supp. 3d at 455 (“In this
case, the Court finds that plaintiff had an
adequate post-deprivation remedy via a
proceeding under Article 78.”). It is wellsettled that “an Article 78 proceeding is
adequate for due process purposes even
though the petitioner may not be able to
recover the same relief that he could in
a § 1983 suit.” Hellenic, 101 F.3d at 881.
Thus, “[g]enerally speaking, the availability

Thus, plaintiff’s Due Process claim fails
as a matter of law because he has not
identified a constitutionally protected
interest, and a constitutionally adequate postdeprivation procedure enabled plaintiff to
challenge defendant’s conduct under New
York law.
F. State Law Claims
Finally, in addition to his federal claims,
plaintiff also asserts state causes of action for
slander and violations of the New York Open
Meetings and Freedom of Information Laws.
Defendant argue that, upon dismissal of the
federal claims, the Court should decline to

21

22

Further, to the extent that plaintiff’s Due Process
claim is grounded in a deprivation of his First
Amendment rights, see Cyr, 955 F. Supp. 2d at 296,
the Court has already determined supra that no such
violation occurred.

Indeed, plaintiff appears to be aware of Article 78
because he previously filed an Article 78 petition to
challenge his employment termination by another
school district. See Matter of Roth v. Manhasset
Union Free Sch. Dist., 875 N.Y.S.2d 182 (2d Dep’t
2009).

25

fairness to litigants are not violated by
refusing to entertain matters of state law, it
should decline supplemental jurisdiction and
allow the plaintiff to decide whether or not to
pursue the matter in state court.”).

exercise supplemental jurisdiction over the
state law claims. In his opposition, plaintiff
does not challenge this argument.
Having determined that the federal
claims against the District do not survive
summary judgment, the Court concludes, in
its discretion, that retaining jurisdiction over
the state law claims is unwarranted. See 28
U.S.C. § 1367(c)(3); United Mine Workers of
Am. v. Gibbs, 383 U.S. 715, 726 (1966). “In
the interest of comity, the Second Circuit
instructs
that
‘absent
exceptional
circumstances,’ where federal claims can be
disposed of pursuant to Rule 12(b)(6) or
summary judgment grounds, courts should
‘abstain
from
exercising
pendent
jurisdiction.’”
Birch v. Pioneer Credit
Recovery, Inc., No. 06-CV-6497T, 2007 WL
1703914, at *5 (W.D.N.Y. June 8, 2007)
(quoting Walker v. Time Life Films, Inc., 784
F.2d 44, 53 (2d Cir. 1986)).

Thus, pursuant to 28 U.S.C. § 1367(c)(3),
the Court declines to retain jurisdiction over
the remaining state law claims given the
absence of any federal claims that survive
summary judgment, and it dismisses
plaintiff’s state law claims without prejudice
to re-filing in state court.
IV. CONCLUSION
For the foregoing reasons, the Court
grants defendant’s motion for summary
judgment (ECF No. 71) as to plaintiff’s
federal Title VII, ADA, ADEA, First
Amendment, and Fourteenth Amendment
claims, and declines to exercise jurisdiction
over plaintiff’s remaining New York State
law claims. The Clerk of the Court shall enter
judgment accordingly and close this case.
The Court certifies, pursuant to 28 U.S.C. §
1915(a)(3), that any appeal from this
Memorandum and Order would not be taken
in good faith; therefore, in forma pauperis
status is denied for purposes of an appeal.
See Coppedge v. United States, 369 U.S. 438,
444-45 (1962).

Therefore, in the instant case, the Court
“‘decline[s] to exercise supplemental
jurisdiction’” over plaintiff's state law claim
because “it ‘has dismissed all claims over
which it has original jurisdiction.’” Kolari v.
N.Y.-Presbyterian Hosp., 455 F.3d 118, 122
(2d Cir. 2006) (quoting 28 U.S.C. §
1367(c)(3)); see also Cave v. E. Meadow
Union Free Sch. Dist., 514 F.3d 240, 250 (2d
Cir. 2008) (“We have already found that the
district court lacks subject matter jurisdiction
over appellants’ federal claims. It would thus
be clearly inappropriate for the district court
to retain jurisdiction over the state law claims
when there is no basis for supplemental
jurisdiction.”); Karmel v. Claiborne, Inc.,
No. 99 Civ. 3608, 2002 WL 1561126, at *4
(S.D.N.Y. July 15, 2002) (“Where a court is
reluctant
to
exercise
supplemental
jurisdiction because of one of the reasons put
forth by § 1367(c), or when the interests of
judicial economy, convenience, comity and

SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge
Dated: January 30, 2017
Central Islip, New York
***
26

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

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