Gentleman v. State University of New York - Stony Brook et al

Filing 35

MEMORANDUM OF DECISION & ORDER granting in part and denying in part 20 Motion to Dismiss for Lack of Jurisdiction; Based on the foregoing, the Court directs the following: (1) Consistent with this opinion, the Court grants the Plaintiff leave to fi le a Third Amended Complaint within 20 days after the entry of this Order; (2) The Court grants the Defendants motion to dismiss the fourth and fifth causes of action based on § 1983 due process violations and § 1983 retaliation, respective ly. Accordingly, this action is dismissed in its entirety as against the individual Defendants and the official title of this action shall be amended as follows: see Decision. (3) The Court also provisionally grants the Defendants motion to dismiss t he first cause of action against SUNY based on disability discrimination under the Rehabilitation Act. If the Plaintiffs purported Third Amended Complaint again fails to include plausible allegations that SUNY or its Department of Materials Science a nd Engineering received federal funding at the times in question, as required by the statute, then the Defendants may renew their request that the first cause of action be dismissed; and (4) The Court denies the Defendants motion to dismiss the secon d and third causes of action against SUNY based on retaliatory discharge under the Rehabilitation Act and common law breach of contract, respectively. This case is respectfully referred to United States Magistrate Judge A. Kathleen Tomlinson for the completion of discovery. Chandrani Roy, Jason Trelewicz, Michael Dudley and Alexander Orlov terminated. SEE ATTACHED DECISION for details. So Ordered by Judge Arthur D. Spatt on 11/21/2016. (Coleman, Laurie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MOLLY M. GENTLEMAN,
Plaintiff,
-againstSTATE UNIVERSITY OF NEW YORK – STONY BROOK,
MICHAEL DUDLEY, CHANDRANI ROY, JASON TRELEWICZ,
and ALEXANDER ORLOV,

Memorandum of
Decision & Order
16-cv-2012 (ADS)(AKT)

Defendants.
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APPEARANCES:
Locksley O. Wade, Esq.
Attorney for the Plaintiff
11 Broadway, Suite 615
New York, NY 10004
Office of the New York State Attorney General
Attorneys for the Defendants
200 Old Country Road, Suite 240
Mineola, NY 11501
By: Ralph Pernick, Assistant Attorney General
SPATT, District Judge:
On April 25, 2016, the Plaintiff Molly M. Gentleman (the “Plaintiff”) commenced this
employment discrimination action against her former employer, the State University of New York at
Stony Brook (“SUNY”) and several individual SUNY employees, namely, the Defendants Michael
Dudley (“Dudley”); Chandrani Roy (“Roy”); Jason Trelewicz (“Trelewicz”); and Alexander Orlov
(“Orlov,” together with SUNY, Dudley, Roy, and Trelewicz, the “Defendants”), alleging violations of
the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Due Process Clause of
the federal Constitution under 42 U.S.C. § 1983.
On May 1, 2016, the Plaintiff filed an amended complaint as of right, which is now the
operative pleading in this case.

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Presently before the Court is a motion by the Defendants to dismiss the amended complaint
under Federal Rule of Civil Procedure (“FED. R. CIV. P.”) 12(b)(1) on the ground that the Court lacks
subject matter jurisdiction over the Plaintiff’s claims, or, alternatively, under FED. R. CIV. P. 12(b)(6)
on the ground that the amended complaint fails to state a claim for relief.
For the reasons that follow, the motion to dismiss is granted in part and denied in part.
I.

BACKGROUND

The following facts are drawn from the parties’ pleadings and are construed in favor of the
Plaintiff. In its discretion, the Court has also considered a June 11, 2012 letter agreement (the
“Appointment Letter”), which was cosigned by the Plaintiff and a SUNY official, regarding certain
material terms of the Plaintiff’s employment. See Global Network Communs., Inc. v. City of New York, 458
F.3d 150, 157 (2d Cir. 2006) (recognizing the district courts’ authority in resolving a Rule 12(b)(6)
motion to consider “a contract or other legal document containing obligations upon which the
plaintiff’s complaint stands or falls, but which . . . was not attached to the complaint”). As discussed
more fully below, in the Court’s view, the viability of the Plaintiff’s § 1983 procedural due process
claim largely “stands or falls” in accord with the alleged property interests defined by that document.
In her early adult life, the Plaintiff was diagnosed with bipolar disorder, namely, the alleged
disability forming the basis of her discrimination claims in this action.
On June 11, 2012, by way of the Appointment Letter, SUNY offered the Plaintiff a position as
an Assistant Professor in the Department of Materials Science and Engineering. As clearly stated in
the Appointment Letter, the Plaintiff’s position was to be a “term appointment,” running from
September 1, 2012 to August 31, 2015.
On June 20, 2012, pursuant to the instructions contained in the Appointment Letter, the
Plaintiff signed and dated the document, thereby accepting the term position.

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The Defendants Dudley and Roy, who are alleged to be management-level SUNY employees,
were on notice of the Plaintiff’s bipolar disorder since the fall of 2012, when her employment
commenced.
At an unspecified time, the Plaintiff allegedly requested a reasonable workplace
accommodation that would allow her to “continue with her research without disruption.” Although
neither the nature of the requested accommodation nor any of the related circumstances is alleged in
the amended complaint, Dudley and Roy allegedly ignored and/or denied her request.
Trelewicz and Orlov are alleged to be non-supervisory SUNY employees. On previous
occasions, the Plaintiff allegedly made verbal and written complaints of sexist and harassing
behavior by Trelewicz and Orolv. However, again, the amended complaint fails to allege any facts
regarding the circumstances surrounding these complaints.
On April 24, 2013, the Plaintiff participated in a casual conversation with Trelewicz and
Orlov, during which time they made allegedly disturbing comments about the Boston Marathon
bombing, which had taken place approximately nine days earlier. In an “attempt[ ] to deflect the
darkness [of] the conversation,” the Plaintiff allegedly “inject[ed] light humor in the topic.”
The amended complaint does not describe how the Plaintiff tried to inject humor into this
situation. However, Trelewicz and Orlov allegedly reported the Plaintiff’s statements to Dudley,
who, in turn, on May 24, 2013, reported them to the SUNY police. Apparently, Dudley’s report to
the SUNY police included references to the Plaintiff being “frustrated by stress related to work” and
“suffering from a mental disorder that was likely to cause self-harm and harm to others.” Dudley also
allegedly reported to the SUNY police that the Plaintiff had “made comments about ‘getting a gun
and shooting it.’ ”
On May 28, 2013, the Plaintiff was escorted out of her laboratory and interviewed by SUNY
police officers in connection with an alleged terror threat.

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However, according to the amended complaint, after interviewing the Plaintiff, the SUNY
police dismissed Dudley’s report as false. They also allegedly encouraged the Plaintiff to contact the
New York State Division of Human Rights (“NYSDHR”), because “in their view, she [had been] the
victim of a false report and workplace discrimination because of her disability.”
On an unspecified date, non-party Yacov Shamash, who is alleged to be the Dean of SUNY
(“Dean Shamash”), received a “false report of student[ ] complaints” about the Plaintiff. The nature
of these supposed complaints is not alleged. However, Dean Shamash allegedly forwarded the report
to the tenure committee at SUNY without first discussing it with the Plaintiff – an alleged violation
of standard procedures. According to the amended complaint, Dean Shamash did this at the behest
of Dudley, Roy, Trelewicz, and Orlov.
On November 14, 2014, SUNY decided not to renew the Plaintiff’s employment contract,
effectively terminating her employment upon the conclusion of her predetermined term. This
decision was made despite the Plaintiff having allegedly received written confirmation that her
employment was, in fact, being renewed. However, no facts or evidence relating to this alleged
writing are included in the amended complaint.
It is further alleged that several “senior” SUNY employees informed the Plaintiff that her job
performance had been “very good.” However, allegedly, Dudley and Dean Shamash unilaterally
decided to terminate the Plaintiff’s employment without soliciting faculty input – again a violation
of standard procedures.

The Plaintiff also alleges that the timing of this decision somehow

prevented her from voicing her concerns to the full faculty. However, again, the amended complaint
fails to set forth any specific facts in this regard.
II.

RELEVANT PROCEDURAL HISTORY

Based on these allegations, the Plaintiff asserted causes of action sounding in: (1) disability
discrimination under the ADA; (2) discriminatory retaliation under the ADA; (3) § 1983 due process
violations; and (4) § 1983 retaliation.

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As noted above, on June 10, 2016, the Defendants filed a motion to dismiss the amended
complaint in its entirety. The Defendants articulated numerous bases for dismissal, namely: (1) the
Second Circuit, interpreting Supreme Court precedent, has held that principles of sovereign
immunity bar disability discrimination and retaliation suits under the ADA against State agencies,
such as SUNY; (2) the Plaintiff’s expectation that her employment contract would be renewed does
not constitute a protectable property interest sufficient to sustain a due process claim; (3) even if the
Plaintiff had a property interest in continued employment by SUNY, the amended complaint fails to
plausibly identify any procedural violations on the part of the Defendants; (4) even if the Plaintiff
had a property interest, and even if she plausibly alleged that the Defendants denied her due process,
the existence of a meaningful post-deprivation remedy, namely, a New York State Article 78
proceeding, precludes recovery under federal antidiscrimination laws; and (5) the Plaintiff’s § 1983
retaliation claim is not based upon any plausible protected activity.
On June 19, 2016, the Plaintiff filed an opposing legal memorandum, together with a
purported second amended complaint (“SAC”). The SAC is materially indistinguishable from the
amended complaint, except that the Plaintiff’s claims based on violations of the ADA are replaced by
identical claims under the Rehabilitation Act, 29 U.S.C. § 794 et seq. Also, in the SAC, the Plaintiff
asserts a cause of action based on common law breach of contract.
The Defendants request that the Court reject the SAC, as the proposed amendments still fail
to pass Rule 12(b)(6) muster.
III.
A.

DISCUSSION

Preliminary Issue: Whether the Court Should Accept the Second Amended Complaint
As an initial matter, the Plaintiff’s assertion is not correct that the SAC was properly filed “as

of right” within 21 days of the Defendants’ dispositive motion. Under Rule 15, a party may amend his
pleading “once as a matter of course at any time before a responsive pleading is served.”

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FED. R. CIV. P. 15(a)(1)(B) (emphasis supplied). Relying on this rule, the Plaintiff already filed the
amended complaint as of right on May 1, 2016, approximately one week after commencing the action.
Therefore, since “Rule 15(a) allows for only one amendment as of right,” the “Plaintiff may
not . . . amend as of right for the second time even though the [Defendants] moved to dismiss the
amended complaint.” Sullivan v. Schweikhard, No. 95-cv-276, 1996 U.S. Dist. LEXIS 14664, at *20
(S.D.N.Y. Sept. 30, 1996) (Report and Recommendation) (citing Washington v. New York City Bd. of
Estimate, 709 F.2d 792, 795 (2d Cir. 1985)), adopted, 968 F. Supp. 910 (S.D.N.Y. 1997); see Gaming Mktg.
Solutions, Inc. v. Cross, 528 F. Supp. 2d 403, 406 n.5 (S.D.N.Y. 2007) (“Permitting only one amendment
as of right is a ‘sound limitation’ because ‘[a]n unrestricted right to amend as of course easily might
become a source of abuse either by encouraging shabby pleading techniques or by providing a
potential source of harassment’ and ‘at some point the opposing party should be allowed to rely on
his adversary’s pleading so that he is able to prepare an adequate responsive pleading’ ” (quoting
6 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1480)).
Accordingly, the Court will construe the Plaintiff’s SAC as a motion for leave to amend under
FED. R. CIV. P. 15.
“Rule 15(a) gives the Court extensive discretion to decide whether to grant leave to amend
after the time for amendment as of course has passed.” Gaming Mktg. Solutions, Inc., 528 F. Supp. 2d at
406 (citation omitted). In general, such requests should be freely granted unless the proposed
amendment would be futile. See Grullon v. City of New Haven, 720 F.3d 133, 139-40 (2d Cir. 2013)
(citations omitted).
Where, as here, the Plaintiff seeks to further amend his complaint while a motion to dismiss
is pending, the Court “has a variety of ways in which it may deal with the pending motion to
dismiss, from denying the motion as moot to considering the merits of the motion in light of the

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amended complaint.” Schwartzco Enters. LLC v. TMH Mgmt., LLC, 60 F. Supp. 3d 331, 338 (E.D.N.Y. 2014)
(Spatt, J.) (quotation marks and citation omitted).
This Court has previously reasoned that, if the proposed amended complaint does not seek
to add new Defendants, and the non-movant has had a sufficient opportunity to respond to the new
pleading, then the merits of the pending motion to dismiss ought to be considered in light of the
proposed amended complaint. See id. (citing Haag v. MVP Health Care, 866 F. Supp. 2d 137, 140
(N.D.N.Y 2012)); see also Conforti Sunbelt Rentals, Inc., No. 15-cv-5045, 2016 U.S. Dist. LEXIS 107646, at
*20 (E.D.N.Y. Aug. 15, 2016) (Spatt, J.) (applying Schwartzco’s reasoning “for the purpose of
procedural efficiency”).
Applying similar reasoning here, in its discretion, the Court will construe the Defendants’
motion to dismiss as if it were directed at the SAC, so that if the SAC cannot survive Rule 12(b)
scrutiny, the Plaintiff’s motion to further amend her pleading will be denied as futile. See id. at 338-39
(quotation marks and citation omitted).
B.

As to the Defendants’ Motion to Dismiss under FED. R. CIV. P. 12(b)(1)
First, relying on the Supreme Court’s decision in Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S.

356, 121 S. Ct. 955, 259 L. Ed. 2d 866 (2001), and its progeny, the Defendants assert that principles of
sovereign immunity shield them from liability for alleged disability discrimination and retaliation
under the ADA. Thus, they contend that, absent a waiver of sovereign immunity, the Court lacks
subject matter jurisdiction over the Plaintiff’s claims under the ADA, and therefore, dismissal is
warranted under FED. R. CIV. P. 12(b)(1).
However, as noted above, in the SAC, the Plaintiff replaced her ADA claims with identical
claims based on violations of the federal Rehabilitation Act. In opposing dismissal, the Plaintiff
argues that, unlike claims under the ADA, New York State has waived its sovereign immunity for

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claims brought under the Rehabilitation Act, and therefore, federal subject matter jurisdiction
exists. The Court agrees.
Section 504 of the Rehabilitation Act prohibits programs receiving federal funding from
discriminating against an individual on the basis of a disability. See 29 U.S.C. § 794(a). Since
Congress enacted this statute pursuant to its authority under the Spending Clause, a State-run
program’s receipt of federal funds may be conditioned on the State’s waiver of its sovereign
immunity. See Garcia v. SUNY Health Sciences Ctr. of Brooklyn, 280 F.3d 98, 113 (2d Cir. 2001). Thus, in
Title 42, Chapter 21 of the United States Code, entitled “Civil rights remedies equalization,”
Congress expressly stated its “intent to condition acceptance of federal funds on a state’s waiver of
its Eleventh Amendment immunity” for violations of Section 504 of the Rehabilitation Act. See id.
(citing 42 U.S.C. § 2000d-7).
Based on this explicit Congressional abrogation of sovereign immunity, prior to 2001, “New
York was under the reasonable belief that it had no immunity” for violations of the Rehabilitation
Act. Forziano v. Indep. Grp. Home Living Program, No. 13-cv-0370, 2014 U.S. Dist. LEXIS 41358, at *20
(E.D.N.Y. Mar. 26, 2014), aff’d, 613 F. App’x 15 (2d Cir. 2015). Relevant here, because the institutions
comprising the SUNY educational system, including SUNY Stony Brook, constitute “an integral
part of the government of the State [of New York],” it logically follows that, before 2001, SUNY
could also be deemed to have labored under the reasonable belief that sovereign immunity provided
no shelter from Rehabilitation Act claims. See, e.g., Dube v. State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir.
1990) (observing that “[f]or Eleventh Amendment purposes, SUNY [Stony Brook] is an integral part
of the government of the State [of New York] and when it is sued the State is the real party” in
interest; further observing that, “SUNY [had] clearly not consented to suit [under § 1983] in a federal
forum” and therefore “no relief, either legal or equitable, [was] available against SUNY”); see also
Garcia, 280 F.3d at 107 (reaffirming Dube’s characterization of SUNY schools) .

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However, in its 2001 decision in Bd. of Trs. v. Garrett, the Supreme Court invalidated
Congress’s abrogation of sovereign immunity for disability claims previously codified in
42 U.S.C. § 2000d-7. Therefore, after Garrett, in the absence of a clear Congressional mandate, the
States were presumed to be immune against disability claims under the Rehabilitation Act – unless,
of course, they could be shown to have intentionally waived that immunity at the time of the
complained-of conduct.
So how could a State be shown to have intentionally waived its sovereign immunity against
disability claims under the Rehabilitation Act? One way, according to the Second Circuit, was to
show that, prior to the Supreme Court’s decision in Garrett, a State possessed a “colorable basis” to
suspect that Congress’s abrogation of sovereign immunity may be invalid, but nevertheless
continued to accept federal funds under the statute. See Garcia, 280 F.3d at 114 n.4.
For present purposes, the Court need not address whether New York possessed a “colorable
basis” to question the validity of Congress’ abrogation of sovereign immunity before 2001. Rather, in
the wake of Garrett, and as it relates to allegedly discriminatory conduct occurring after that decision,
courts in this Circuit agree that “New York’s continued acceptance of federal funds under § 504 [of
the Rehabilitation Act] . . . constitutes a knowing waiver of sovereign immunity under that
provision.” Marino v. City Univ. of N.Y., 18 F. Supp. 3d 320, 331 (E.D.N.Y. 2014) (collecting cases).
In this case, accepting the Plaintiff’s allegations of disability discrimination and retaliation as
true, any actionable conduct occurred after 2012, which is after the decisions in Garcia and Garrett
and “thus at a time when [SUNY]’s continued receipt of federal funds constituted a valid waiver of
New York’s residual state sovereign immunity.” Id. at 332. Accordingly, the Plaintiff’s claims under
Section 504 of the Rehabilitation Act are not barred by principles of sovereign immunity, and the
Defendants’ motion to dismiss these claims for lack of subject matter jurisdiction is denied.

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C.

As to the Defendants’ Motion to Dismiss under FED. R. CIV. P. 12(b)(6)
1.

The Standard of Review

Under FED. R. CIV. P. 12(b)(6), a party may move to dismiss a cause of action that “fail[s] to
state a claim upon which relief can be granted.” “To survive a motion to dismiss, the complaint must
plead ‘enough facts to state a claim to relief that is plausible on its face,’ Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), and ‘allow[ ] the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged,’ Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).” Otis-Wisher v. Medtronic, Inc., 14-cv-3491, 2015 U.S. App.
LEXIS 9565, at *2 (2d Cir. June 9, 2015).
2.

The Plaintiff’s Rehabilitation Act Claims against SUNY

The Plaintiff’s first and second causes of action, respectively, allege disability discrimination
and retaliation under the Rehabilitation Act. In particular, the first cause of action alleges that
SUNY unlawfully terminated the Plaintiff because of her disability. The second cause of action
alleges that the Plaintiff was terminated as retaliation for her “attempting to engage in an interactive
process, opposing disability discrimination and exercising her rights as allowed under the
Rehabilitation Act.”
a.

The First Cause of Action: Disability Discrimination under the
Rehabilitation Act

As noted above, Section 504 of the Rehabilitation Act provides, in relevant part, that “[n]o
otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial assistance . . .” 29 U.S.C. § 794(a).
Thus, as this Court has previously recognized, “in order to state a prima facie claim based on
discrimination under the Rehabilitation Act, the Plaintiff must plausibly allege that: (i) she is
disabled within the meaning of the Rehabilitation Act; (ii) she was otherwise qualified for her

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position; (iii) she was [terminated] solely because of her disability; and (iv) [SUNY] receives federal
funding.” Wilson v. Southampton Hosp., No. 14-cv-5884, 2015 U.S. Dist. LEXIS 116179, at *30-*31
(E.D.N.Y. Aug. 28, 2015) (Spatt, J.) (citations omitted).
In this case, only the third and fourth elements of the standard are in dispute. In particular,
the Defendants contend that the SAC fails to plausibly allege that: (1) SUNY’s decision not to renew
the Plaintiff’s employment agreement was motivated “solely” by her disability; and (2) SUNY
received federal funding, so that the provisions of the Rehabilitation Act apply in this case.
First, it is noted that courts, including this one, have resisted the “overly rigid” theory that a
claim under the Rehabilitation Act should be dismissed strictly because the plaintiff “failed to
specifically plead that her disability was the ‘sole’ cause of the alleged discriminatory treatment.”
Wilson, 2015 U.S. Dist. LEXIS 116179, at *32.
For example, in Alfano v. Bridgeport Airport Servs., 373 F. Supp. 2d 1, 4 (D. Conn. 2005), the court
held that, although the plaintiff’s complaint had failed to use the word “solely,” it nevertheless
satisfied the liberal pleading standard of FED. R. CIV. P. 8 by “broadly alleg[ing] that ‘Defendants
terminated Plaintiff’s employment due to his actual, of record and/or perceived disability.” In this
regard, relying on the Supreme Court’s decision in Conley v. Gibson, 355 U.S. 41, 48, 78 S. Ct. 99,
2 L. Ed. 2d 80 (1957), the court noted that “the Federal Rules reject the approach that pleading is a
game of skill in which one misstep by counsel may be decisive to the outcome and accept the
principle that the purpose of pleading is to facilitate a proper decision on the merits.” Alfano, 373
F. Supp. 2d at 5. Therefore, the court in Alfano concluded that the complaint had sufficiently placed
the defendants “on notice of the nature of the claim against them,” so that the plaintiff was entitled
to develop evidence, consistent with his allegations, that the defendants terminated him “solely”
because of his disability. Id. at 4.

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In the Court’s view, the same result is warranted here.

As was true in Wilson,

notwithstanding the Plaintiff’s failure in this case to use the word “solely” in describing the
motivation behind her termination, the SAC does not plausibly identify any cause for the
complained of discrimination other than her alleged disability. See Wilson, 2015 U.S. Dist. LEXIS
116179, at *32-33 (citing Logan v. Matveevskii, 57 F. Supp. 3d 234, 254 (S.D.N.Y. 2014), for the
proposition that the plaintiff in that case “d[id] not appear to be claiming that he was denied a
reasonable accommodation for any reason other than his disability”).
On the contrary, the SAC clearly and repeatedly alleges that the Plaintiff’s Rehabilitation Act
claims against SUNY are rooted in unlawful discrimination based on her alleged disability. See, e.g.,
SAC ¶ 3 (“Plaintiff brings this action . . . for unlawful workplace discrimination based on her
disability”); id. ¶ 10 (alleging that her request for a reasonable accommodation was denied after she
complained that Dudley made “comments about her being unable to meet the requirements of her
position because of her disability”); id. ¶ 14 (alleging that the police report made by the individual
Defendants attributed the Plaintiff’s conduct to her “suffering from a mental disorder that was likely
to cause self-harm and harm to others”); id. ¶ 18 (alleging that SUNY’s decision not to renew her
employment contract was based on the individual Defendants’ report that the Plaintiff was
dangerous “because of her disability”); id. ¶ 19 (alleging that she was terminated due to the “stigma
associated with her disability); id. ¶ 22 (alleging that SUNY violated the Rehabilitation Act “by
terminating [her] employment because she is a person with a disability and/or perceived as a person
with a disability”).
Although certain allegations also seem to suggest that Trelewicz and Orlov acted in a hostile
manner toward women – see, e.g., SAC ¶ 10 (alleging that the Plaintiff’s request for a reasonable
accommodation was denied “after making verbal and written harassment complaints against
Trelewicz and Alex Orlov for sexism and harassing behavior”); id. ¶ 13 (alleging that, during their

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April 24, 2013 conversation, Trelewicz and Orlov “expressed their anger about the hiring and sharing
of office space with a new woman-employee”) – in the Court’s view, on the whole, the SAC cannot
plausibly be read as stating a claim for gender-based discrimination.
The Court reaches a similar conclusion with respect to whether the SAC plausibly alleges
that SUNY or its Department of Materials Science and Engineering received federal funding at the
times in question, as is required by the statute. See 29 U.S.C. § 794(a) (extending protection only to
disabled individuals who are excluded from the participation in, denied the benefits of, or subjected
to discrimination under “any program or activity receiving Federal financial assistance”).
Concededly, it is noted that the SAC makes no explicit reference to whether SUNY, directly
or indirectly, receives federal funds or assistance.

Further, it is noted that, under similar

circumstances, some courts have dismissed Rehabilitation Act claims on the ground that they do not
state a claim for relief. See S.S. v. Whitesboro Cent. Sch. Dist., No. 11-cv-0036, 2012 U.S. Dist. LEXIS 11727,
at *21-*22 & n.4 (N.D.N.Y Jan. 31, 2012) (collecting cases); Maccharulo v. Gould, 643 F. Supp. 2d 587,
602 (S.D.N.Y. 2009) (dismissing claim under the Rehabilitation Act because the complaint failed to
allege that the defendants received federal funding); Murphy v. Beavex, Inc., No. 06-cv-1109, 2007 U.S.
Dist. LEXIS 17069, at *1-*2 (D. Conn. Mar. 12, 2007) (granting motion to dismiss where the plaintiff
failed to “allege that [the defendant] [was] subject to the Rehabilitation Act by virtue of receiving
some form of federal funding”); David v. Chu, No. 85-cv-5464, 1986 U.S. Dist. LEXIS 29237, at *4
(S.D.N.Y. Feb. 18, 1986) (dismissing complaint as frivolous where “there [was] no allegation that any
of the defendants receive federal funding rendering them subject to claims under the Rehabilitation
Act”).
However, under the facts and circumstances of this case, the Court finds that a more flexible
approach is warranted. Initially, the Second Circuit has repeatedly noted that SUNY is so integral to
the State’s government that, when it is sued, New York is the real party in interest. See Dube, 900

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F.2d at 594; Garcia, 280 F.3d at 107. For present purposes, this is relevant because, as noted above,
courts have recognized that New York, and by extension, SUNY, may be exposed to suit under the
Rehabilitation Act precisely because it accepts federal funding. See Marino, 18 F. Supp. 3d at 331.
Therefore, given this information, together with the fact that the Defendants do not
affirmatively deny receiving federal funding, “[a]lthough it is not alleged in the Complaint, the Court
finds it safe to assume that [SUNY] receives some federal financial assistance.” Collins v. City of New
York, 156 F. Supp. 3d 448, 458 n.7 (S.D.N.Y. 2016).
Accordingly, the Plaintiff’s first cause of action based on disability discrimination under the
Rehabilitation Act is provisionally dismissed for failure to allege the federal-funding element of the
appropriate legal standard. However, the Plaintiff will be given 20 days from entry of this Order to
cure this deficiency through an amended complaint.
Finally, it is noted that the Defendants appear to contend, alternatively, that the Plaintiff’s
first cause of action fails because the NYSDHR already investigated her disability discrimination
claim and found it to lack merit. This proposition could be liberally construed as raising a collateral
estoppel question – that is, whether the Plaintiff’s federal disability discrimination claims are
precluded by the NYSDHR’s “no probable cause” determination. However, the Defendants’
argument is vastly underdeveloped, having been raised by way of a single sentence in their reply
without any citation to relevant legal authority. In the Court’s view, this showing is insufficient to
warrant the relief sought.
b.

The Second Cause of Action: Retaliation under the Rehabilitation Act

As noted above, the Plaintiff’s retaliation claim alleges that that she was unlawfully
terminated in retaliation for: (1) “attempting to engage in an interactive process,” namely, seeking a
reasonable workplace accommodation; and (2) “opposing disability discrimination,” namely, lodging

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complaints against Dudley for stating that the Plaintiff could not meet the requirements of her
position because of her disability.
In their opening legal memorandum, which was submitted prior to the filing of the SAC, the
Defendants substantially repeated their sovereign immunity argument, contending only that the
Plaintiff’s retaliation claim should be dismissed because SUNY is not subject to suit under the ADA.
However, as discussed more fully above, this argument was rendered moot by the SAC, which
replaced the ADA claims with similar claims under the Rehabilitation Act.
In reply, the Defendants maintained that the retaliation claim should be dismissed.
However, as set forth below, their new arguments also lack merit.
Initially, it is noted that the Defendants failed to address the Plaintiff’s allegation that she
engaged in protected activity by complaining about Dudley’s discriminatory remarks. There is no
question that such complaints, if proven, would constitute protected activity under the statute. See,
e.g., Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir 1990).
Further, the Defendants concede that requesting a reasonable accommodation is a protected
activity. However, they argue that the SAC nevertheless fails to state a plausible claim for relief
because SUNY’s alleged denial of the Plaintiff’s request for a reasonable accommodation cannot
constitute a retaliatory adverse employment action. See Defs. Reply at 6 (“Although making a
request for a reasonable accommodation is protected activity, the denial of the accommodation
cannot be both the substantive violation and the adverse action essential for a retaliation claim”).
However, this argument misses the mark.
Contrary to the Defendants’ contention, the adverse employment action alleged in the SAC is
not the denial of a reasonable accommodation. Rather, it is the non-renewal of the Plaintiff’s
employment contract, see SAC ¶ 26 (alleging, as the basis for her retaliation claim, that she was
“wrongfully terminated by SUNY” after “attempting to engage in the interactive process”), and there

15

can be no dispute that “[t]ermination is indeed the archetypal example of an adverse employment
action,” Ragin v. E. Ramapo Cent. Sch. Dist.¸ No. 05-cv-6496, 2010 U.S. Dist. LEXIS 32576, at *70
(S.D.N.Y. Mar. 31, 2010), aff’d, 2011 U.S. App. LEXIS 6588 (2d Cir. Mar. 31, 2011).
Accordingly, to the extent it seeks to dismiss the Plaintiff’s second cause of action based on
retaliation under the Rehabilitation Act, the Defendants’ motion is denied.
3.

The Plaintiff’s Breach of Contract Claim Against SUNY

The Plaintiff’s third cause of action alleges that SUNY breached its employment agreement
with the Plaintiff by terminating her “after [they] had reached an agreement on her continued
employment.” See SAC ¶ 31; see also id. ¶ 17 (alleging that the Plaintiff received “a written renewal of
her employment”). However, despite apparently seeking to dismiss the SAC in its entirety, the
Defendants failed to set forth any substantive argument regarding this claim.
Accordingly, to the extent the Defendants purport to seek dismissal of the Plaintiff’s third
cause of action based on breach of contract, their motion is denied.
4.

The Plaintiff’s § 1983 Claims against the Individual Defendants

Finally, the Plaintiff’s fourth and fifth causes of action, respectively, allege § 1983 due process
and retaliation claims against the individual Defendants.
a.

The Fourth Cause of Action: § 1983 Procedural Due Process

The fourth cause of action alleges that Dudley, Roy, Trelewicz, and Orlov, as state actors,
deprived the Plaintiff of her right to due process by “deny[ing] her right to . . . redress her complaint
under clearly establish[ed] laws outlawing workplace discrimination . . .”
Although this description is somewhat vague, it appears that two discrete events leading up
to the ultimate decision not to renew the Plaintiff’s employment contract form the basis of her
Constitutional claim.
First, Dudley, Roy, Trelewicz, and Orlov – allegedly acting with a discriminatory motive –
induced Dean Shamash to present students’ complaints about the Plaintiff to the tenure committee
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without giving the Plaintiff an opportunity to be heard in her own defense. The Plaintiff contends
that this conduct gives rise to a due process claim because it violated procedures entitling her to
“face her accusers.”
Second, based on the false police report submitted by Dudley, Roy, Trelewicz, and Orlov –
which itself was allegedly based on discriminatory animus – Dean Shamash and Dudley unilaterally
decided not to renew the Plaintiff’s employment contract without first seeking the full faculty’s
input. Again, the Plaintiff contends that this conduct gives rise to a due process claim because it
violated procedures entitling her to “voic[e] her concerns to the full faculty.”
The Court will now turn to the parties’ substantive contentions.
i.

As to Whether the Plaintiff Plausibly Alleged a Constitutionally
Protected Property Right

The Defendants argue principally that the Plaintiff’s mere expectation that her employment
contract would be renewed does not constitute a protectable property interest sufficient to sustain a
due process claim. The Court disagrees.
“Section 1983 provides a civil claim for damages against any person who, acting under color
of state law, deprives another of a right, privilege, or immunity secured by the Constitution or the
laws of the United States.” A.F.C. Enters. v. N.Y. City Sch. Constr. Auth., No. 98-cv-4534, 1999 U.S. Dist.
LEXIS 23401, at *21-*22 (E.D.N.Y. June 24, 1999) (citing 42 U.S.C. § 1983). Relevant here:
In order to state a [§ 1983] claim for deprivation of property or liberty without due process of
law, “a plaintiff must ‘first identify a property [or liberty] right, second show that the state
deprived him of that right, and third show that the deprivation was effected without due
process.’ ” Local 342, L.I. Pub. Serv. Employees v. Town Bd. of Huntington, 31 F.3d 1191, 1194 (2d Cir.
1994) (quoting Mehta v. Surles, 905 F.2d 595, 598 (2d Cir. 1990) (per curiam)). Thus, the
threshold inquiry is whether the plaintiff has demonstrated the existence of a
constitutionally protected property or liberty interest. See Board of Regents v. Roth, 408 U.S.
564, 569-71, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972); Walentas v. Lipper, 862 F.2d 414, 418 (2d Cir.
1988). Absent such an interest, no process is “due.” See General Elec. Co. v. New York State Dep’t of
Labor, 936 F.2d 1448, 1453 (2d Cir. 1991).
Id. at 22-*23.

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Although the federal Constitution protects property interests, it does not create them. See
Rehman v. State Univ. of N.Y., 596 F. Supp. 2d 643, 656 (E.D.N.Y. 2009) (Spatt, J.). Rather, “[p]roperty
interests ‘are created and their dimensions are defined by existing rules or understandings that stem
from an independent source such as state law – rules or understandings that secure certain benefits
and that support claims of entitlement to those benefits.’ ” Id. (quoting Roth, 408 U.S. at 577).
In this regard, this Court’s prior opinion in Rehman v. State Univ. of New York – the facts of
which are remarkably similar to those at issue here – is instructive. As in this case, by way of a
written agreement, the plaintiff in Rehman was offered a term position as an Assistant Professor at
SUNY Stony Brook. Despite allegedly receiving positive feedback about the quality of his job
performance, the plaintiff alleged that he was discriminated against by his supervisors on the basis of
his ethnicity and religion. Eventually, this alleged mistreatment culminated in the non-renewal of
his employment, a decision allegedly based partly on false statements contained in an unfavorable
performance evaluation. As in this case, the plaintiff in Rehman commenced an action against SUNY
and several administrators alleging violations of State and federal antidiscrimination laws; breach of
contract; and a § 1983 procedural due process claim.
In analyzing the due process claim under Rule 12(b)(6), this Court wrote the following:
[T]he plaintiff’s employment was dictated by the appointment letter of March 29, 2002,
which by its express terms was a term appointment from August 1, 2002 to July 31, 2003.
Although the plaintiff’s term was renewed for the period from August 1, 2003 through July
31, 2007, he had no right to renewal or a constitutionally protected property interest in his
expectation of renewal. In addition, the plaintiff points to no specific SUNY Stony Brook
policy or practice sufficient to create an implied understanding that his contract would be
continually renewed. See Donato [v. Plainview-Old Bethpage Cent. Sch. Dist.], 96 F.3d [623] 629 [2d
Cir. 1996] (citing Perry v. Sindermann, 408 U.S. 593, 603, 92 S. Ct. 2694, 2700, 33 L. Ed. 2d 570
(1972) (adherence to a pattern of conduct could create an expectation of continued
employment)); Ezekwo v. New York City Health Hospitals Corp., 940 F.2d 775, 783 (2d Cir. 1991)
(finding a property interest in Chief Resident position where hospital adopted an
established policy of awarding the position to all third year residents on a rotating basis).
Rehman, 596 F. Supp. 2d at 657 .

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In this case, the Plaintiff’s employment was dictated by the Appointment Letter, the terms of
which make clear that her position would be a term appointment from September 1, 2012 to August
31, 2015.
As in Rehman, the Court finds that, based on the Appointment Letter alone, the Plaintiff had
no right to renewal or a constitutionally protected property interest in her expectation that renewal
might be forthcoming. See Spanierman v. Hughes, 576 F. Supp. 2d 292, 301 (D. Conn. 2008) (noting that
a § 1983 plaintiff must plausibly allege that she possessed “more than just a ‘unilateral expectation’ ”
that her employment contract would be renewed” (quoting Furlong v. Shalala, 156 F.3d 384, 393 (2d
Cir. 1998)). Further, as in Rehman, the Plaintiff in this case has failed to plausibly allege that any
specific SUNY policy or practice created an implied understanding that her contract would be
renewed at the end of the term.
On the contrary, the Appointment Letter expressly incorporates by reference, and makes the
Plaintiff’s appointment subject to the Policies of the SUNY Board of Trustees. Regarding term
appointments, these policies state unequivocally that “[n]o term appointment, of itself, shall be
deemed to create any manner of legal right, interest or expectancy in any other appointment or
renewal.” See SUNY Policies of the Bd. of Trs., Title D, § 4.
However, unlike in Rehman, the Plaintiff in this case specifically alleges that she received
written confirmation that her term would be renewed – a critical fact that the Court must accept as
true for purposes of this motion. In the Court’s view, notwithstanding any rights and expectations
arising from the Appointment Letter, the existence of a separate written commitment by SUNY that
the Plaintiff’s employment would be renewed, if proven, may constitute “an independent source” of
understanding – a contractual right – “that support[s] [the Plaintiff’s] claims of entitlement to” a
constitutionally protected benefit. See Rehman, 596 F. Supp. 2d at 656; see also Petrella v. Siegel, 843
F.2d 87, 89 (2d Cir. 1988) (“[I]t is well settled that when a government employee has tenure or a

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contract right to continued employment, that right constitutes ‘property’ that is protected by the
fourteenth amendment’s due process clause”) (emphasis supplied).
Accordingly, to the extent the Defendants seek to dismiss the Plaintiff’s § 1983 procedural
due process claim on the ground that the Plaintiff failed to plausibly allege a protectable property
interest, their motion is denied.
ii.

As to Whether the Plaintiff Plausibly Alleged a Violation of Her
Property Interest

The Defendants further argue that, even if the Plaintiff had a constitutionally-protected
property interest in continued employment by SUNY, the SAC fails to plausibly allege that she was
deprived of this interest without due process of law. For substantially the same reasons as outlined
above, the Court again disagrees.
Stated simply, if, in fact, the Plaintiff’s term of employment was renewed by way of a written
agreement, then it is beyond dispute that the Fourteenth Amendment entitled her to a hearing at
which she could, in a sense, “face her accusers” and “voice her concerns” prior to being terminated.
See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985) (noting
that an “essential principle of due process is that the deprivation of . . . property ‘be preceded by
notice and opportunity for hearing appropriate to the nature of the case’ ” (quoting Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S. Ct. 652, 94 L. Ed. 865 (1950)); Petrella, 843 F.2d at 89
(noting that, “[r]egardless of possible state law remedies, interference with [a contract right to
continued employment] without due process is a violation of the fourteenth amendment subject to
redress under 42 U.S.C. § 1983”); Haiyan v. Hamden Pub. Schs., No. 10-cv-767, 2011 U.S. Dist. LEXIS
76708, at *31 (D. Conn. July 15, 2011) (“An employee who possesses a property right in continued
employment must be afforded a pre-termination opportunity to respond to the charges against her
coupled with a post-termination administrative procedure”).

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Accordingly, to the extent the Defendants seek to dismiss the Plaintiff’s § 1983 procedural
due process claim on the ground that the Plaintiff failed to plausibly allege a deprivation of her
property right to continued employment, their motion is denied.
iii.

As to Whether a Sufficient Post-Deprivation Remedy Existed
under State Law

Finally, the Defendants contend that, even if the Plaintiff possessed a constitutionallyprotected property interest; and even if she plausibly alleged that the Defendants denied her due
process, the existence of a meaningful post-deprivation remedy, namely, a New York State Article 78
proceeding, precludes her recovery under federal antidiscrimination laws.
Initially, the Plaintiff failed to address this argument and therefore may be deemed to have
conceded the point. See Scott v. JPMorgan Chase & Co., No. 13-cv-646, 2014 U.S. Dist. LEXIS 11691, at
*31-*33 (S.D.N.Y. Jan. 30, 2014) (collecting cases), aff’d, 2015 U.S. App. LEXIS 4182 (2d Cir. Mar. 17,
2015); Wasserman v. Maimonides Med. Ctr., 970 F. Supp. 183, 192 (E.D.N.Y. 1997) (noting, with respect to
the plaintiff’s federal due process and equal protection claims, that he “apparently concedes that the
claim fails, as evidenced by his lack of opposition to the defendants’ motion to dismiss his
Constitutional claim”). On that basis alone, the Court could dismiss the § 1983 due process claim.
However, dismissal is also warranted because, as the Defendants persuasively argue, the
Plaintiff’s Constitutional claim is barred by the adequate post-deprivation process that was available
to her under New York State law.
“When reviewing alleged procedural due process violations, the Supreme Court has
distinguished between (1) claims based on established state procedures and (2) claims based on
random, unauthorized acts by state employees.” Federico v. Bd. of Educ. of the Pub. Sch., 955 F. Supp. 194,
201 (S.D.N.Y. 1997); see Ahmed v. Town of Oyster Bay, 7 F. Supp. 3d 245, 254 (E.D.N.Y. 2014).
It is well-settled that where, as here, the allegedly random, unauthorized acts of State
employees deprived an individual of a property right, no due process claim will exist “so long as the

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state provides a meaningful postdeprivation remedy.” Id. (quoting Hellenic Am. Neighborhood Action
Comm. v. City of New York, 101 F.3d 877, 880 (2d Cir. 1996)).
Further, in such situations, it is equally well-settled that a special proceeding under Article
78 of the CPLR is a “perfectly adequate” post-deprivation remedy for aggrieved individuals. See id. at
201-02 (collecting Second Circuit authorities for the proposition that “[o]ur Court of Appeals has
held on numerous occasions that an Article 78 proceeding is a ‘perfectly adequate postdeprivation
remedy in [ ] situations’ involving deprivations of liberty or property interests where such
deprivations result from random and arbitrary acts of state employees”); see also Polito v. City of New
York, No. 15-cv-2301, 2016 U.S. Dist. LEXIS 88171, at *16 (E.D.N.Y. July 7, 2016) (citing “cases
involving random and unauthorized conduct” where “the Second Circuit ha[d] consistently found
that the availability of a postdeprivation Article 78 proceeding provide[d] a plaintiff with a
meaningful opportunity to challenge agency action sufficient to ensure due process”); Claudio v.
Mattituck-Cutchogue Union Free Sch. Dist., 955 F. Supp. 2d 118, 128 (E.D.N.Y. 2013) (noting that Article 78
“provides a dismissed municipal employee with an avenue for challenging his termination as
arbitrary and capricious and contrary to law . . . The availability of an adequate post-deprivation
procedure for reviewing the propriety of the dismissal means that there has been no constitutional
violation”).
This remains true “even though the petitioner may not be able to recover the same relief [in
an Article 78 proceeding] that he could in a § 1983 suit.” Federico, 955 F. Supp. at 202 (quoting
Hellenic Am. Neighborhood Action Comm., 101 F.3d at 881).
In this case, the Plaintiff does not allege that she ever attempted to bring an Article 78
proceeding in State court. Nor did she plausibly allege any basis for concluding that such a remedy
was unavailable or inadequate.

Under these circumstances, namely, where “the plaintiff had

available adequate process, [she] cannot be said to have been ‘deprived of due process simply

22

because [she] failed to avail [herself] of the opportunity.’ ” See Claudio, 955 F. Supp. at 129 (quoting
Hellenic Am. Neighborhood Action Comm., 101 F.3d at 881).
Accordingly, to the extent the Defendants seek to dismiss the Plaintiff’s § 1983 procedural
due process claim on the ground that any right to federal relief is precluded by the existence of an
adequate post-deprivation remedy under State law, their motion is granted.
b.

The Fifth Cause of Action: § 1983 Retaliation

The fifth cause of action alleges that Dudley and Roy unlawfully terminated the Plaintiff’s
employment as retaliation for her “attempt[ ] to engage[ ] in her right to due process under clearly
establish[ed] laws outlawing workplace discrimination . . .”
In the Court’s view, this claim is a somewhat unclear amalgamation of the Plaintiff’s other
causes of action sounding in Rehabilitation Act violations against SUNY and § 1983 procedural due
process violations against the individual Defendants. In particular, it is not clear whether the
Plaintiff is alleging that the protected activity giving rise to her § 1983 retaliation claim is: (1) her
attempt to secure pre-termination process, such as a hearing and opportunity to be heard, from
SUNY; or (2) her attempt to obtain entitlements under the Rehabilitation Act, namely, a reasonable
accommodation, and/or her opposition to allegedly discriminatory remarks.
With respect to the first assumption, her claim fails because, as discussed more fully above,
there is no plausible allegation that the Plaintiff did, in actuality, take any steps to secure the postdeprivation process available to her in the form of an Article 78 proceeding, despite the apparent
adequacy and availability of that remedy.
With respect to the second assumption, the Court finds this claim to be impermissibly
duplicative of the Plaintiff’s second cause of action, which is based on retaliation under the
Rehabilitation Act. In this regard, it is noted that the only party against whom the Plaintiff may
seek redress for an alleged retaliatory discharge based on violations of the Rehabilitation Act is
SUNY. Any similar claims against Dudley and Roy are legally insufficient because the statute does
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not provide for individual liability. See Oslzly v. Rosenblatt, No. 14-cv-3638, 2016 U.S. Dist. LEXIS 5647,
at *6-*7 (E.D.N.Y. Jan. 15, 2016) (dismissing claims on the ground that the Rehabilitation Act “does
not permit liability against individual defendants”). The Plaintiff may not contravene this rule
simply by invoking § 1983 as an alternative basis for relief.
In either case, except as already discussed in this opinion, the SAC fails, as a matter of law, to
allege sufficient facts to make it plausible that the Plaintiff engaged in protected activity for which
the individual Defendants can be said to have unlawfully retaliated.
Therefore, to the extent that the Defendants seek to dismiss the Plaintiff’s § 1983 retaliation
claim on the ground that it fails to plausibly allege a protected activity, their motion is granted.
IV.

CONCLUSION

Based on the foregoing, the Court directs the following:
(1) Consistent with this opinion, the Court grants the Plaintiff leave to file a Third Amended
Complaint within 20 days after the entry of this Order;
(2) The Court grants the Defendants’ motion to dismiss the fourth and fifth causes of action
based on § 1983 due process violations and § 1983 retaliation, respectively. Accordingly, this
action is dismissed in its entirety as against the individual Defendants and the official title of
this action shall be amended as follows:
-------------------------------------------------------------------------------x
MOLLY M. GENTLEMAN,
Plaintiff,
-againstSTATE UNIVERSITY OF NEW YORK – STONY BROOK,
Defendant.
-------------------------------------------------------------------------------x
(3) The Court also provisionally grants the Defendants’ motion to dismiss the first cause of
action against SUNY based on disability discrimination under the Rehabilitation Act. If the
Plaintiff’s purported Third Amended Complaint again fails to include plausible allegations
that SUNY or its Department of Materials Science and Engineering received federal funding
at the times in question, as required by the statute, then the Defendants may renew their
request that the first cause of action be dismissed; and

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(4) The Court denies the Defendants’ motion to dismiss the second and third causes of action
against SUNY based on retaliatory discharge under the Rehabilitation Act and common law
breach of contract, respectively.
This case is respectfully referred to United States Magistrate Judge A. Kathleen Tomlinson
for the completion of discovery.
It is SO ORDERED:
Dated: Central Islip, New York
November 21, 2016

/s/ Arthur D. Spatt____________________________________________
ARTHUR D. SPATT
United States District Judge

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