Bertuzzi v. Copiague Union Free School District et al

Filing 48

ORDER ADOPTING REPORT AND RECOMMENDATIONS: For the foregoing reasons, the Report is adopted with the following modifications: the date July 18, 2016 replaces the erroneous date (October 1, 2014) in the last sentence in the last paragraph of section I II.C.4, and in the Conclusion; the finding that Defendant Budion is a school officer is stricken; and the finding that the letter purportedly sent to the District by Plaintiff on September 16, 2016 substantially complied with §3813, is stricken. Defendants motion to dismiss, DE 30 , is granted in part and denied in part.4 So Ordered by Judge Sandra J. Feuerstein on 7/15/2020. (Cubano, Jazmin)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ROSARY BERTUZZI,
Plaintiff,

FILED 
CLERK 

7/15/2020 2:59 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

ORDER
17-CV-4256 (SJF)(AKT)
- againstCOPIAGUE UNION FREE SCHOOL DISTRICT,
BOARD OF EDUCATION OF COPIAGUE UNION
FREE SCHOOL DISTRICT, DR. KATHLEEN BANNON,
TODD ANDREWS, and MICHELLE BUDION,
Individually and as Aiders and Abettors,
Defendants.
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FEUERSTEIN, District Judge:
Plaintiff Rosary Bertuzzi (“Bertuzzi” or “Plaintiff”) commenced this action against
Defendants Copiague Union Free School District, Board of Education of Copiague Union Free
School District, Dr. Kathleen Bannon (“Bannon”), Todd Andrews (“Andrews”) and Michelle
Budion (“Budion”) (collectively “Defendants”) claiming violations of, inter alia, the Americans
with Disabilities Act (“ADA”), 42 U.S.C. §12101 et seq., the New York States Human Rights
Law (“NYSHRL”), N.Y. EXEC. LAW §290, et seq., and asserting constitutional claims pursuant
to 42 U.S.C. § 1983. Defendants have moved to dismiss the amended complaint. See Motion,
Docket Entry (“DE”) [30].
Pending before the Court are the parties’ objections to the Report and Recommendation
of the Honorable A. Kathleen Tomlinson, United States Magistrate Judge, dated March 9, 2020
(the “Report”), see DE [38], recommending, inter alia, that (1) the motion to dismiss be denied
as to (a) Count I under the ADA for discrimination, failure to accommodate, and retaliation, (b)
Counts V and VIII under the NYSHRL for discrimination, failure to accommodate, and
retaliation, (c) Count VI under the NYSHRL for aiding and abetting; (2) the ADA and NYSHRL

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claims are subject to the time-bars related to (a) ADA claims occurring before January 22, 2016;
(b) all NYSHRL claims occurring before October 1, 2014; and (3) the motion to dismiss be
granted as to (a) Joseph Agosta, (b) Counts II, III, IV, VII, and X, and (c) the hostile work
environment claims in Counts I and V. For the reasons set forth below, Magistrate Judge
Tomlinson’s Report is adopted as modified.
I. STANDARD OF REVIEW
Any party may serve and file written objections to a report and recommendation of a
magistrate judge within fourteen (14) days after being served with a copy thereof. 28 U.S.C. '
636(b)(1); FED. R. CIV. P. 72(b)(2). Any portion of such a report and recommendation to which
a timely objection has been made is reviewed de novo. 28 U.S.C. ' 636(b)(1); FED. R. CIV. P.
72(b)(3). The Court is not required, however, to review the factual findings or legal conclusions
of the magistrate judge as to which no proper objections are interposed. See Thomas v. Arn, 474
U.S. 140, 150, 106 S. Ct. 466, 88 L. Ed. 2 435 (1985). In addition, general objections or
“objections that are merely perfunctory responses argued in an attempt to engage the district
court in a rehashing of the same arguments set forth in the original papers will not suffice to
invoke de novo review.” Owusu v. New York State Ins., 655 F. Supp. 2d 308, 312-13 (S.D.N.Y.
2009) (internal quotation marks, alteration, and citation omitted); see also Thomas v. City of New
York, Nos. 14-CV-7513, 16-CV-4224, 2019 WL 3491486, at *4 (E.D.N.Y. July 31, 2019)
(“[o]bjections seeking to relitigate arguments rejected by the magistrate judge do not constitute
proper objections, and, as a result, are subject to clear error review.”); Trivedi v. New York State
Unified Court Sys. Office of Court Admin., 818 F. Supp. 2d 712, 726 (S.D.N.Y. 2011) (“[W]hen

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a party makes only conclusory or general objections . . . the Court will review the Report strictly
for clear error. . . Objections to a Report must be specific and clearly aimed at particular findings
in the magistrate judge’s proposal.” (internal quotation marks and citation omitted; alterations in
original)), aff’d sub nom Seck v. Office of Court Admin., 582 F. App’x 47 (2d Cir. 2014). Any
portion of a report and recommendation to which no specific timely objection is made, or to
which only general, conclusory or perfunctory objections are made, is reviewed only for clear
error. Owusu, 655 F. Supp. 2d at 312-13.
II. DISCUSSION
A. Parties’ Objections
Plaintiffs object to the Report, see Plaintiff’s Objections to Report (“Pl. Obj.”), DE [45],
arguing, inter alia, that Magistrate Judge Tomlinson erred in (1) recommending dismissal of the
hostile work environment claim because the Report (a) impermissibly assesses issues of fact, (b)
ignores “critical and necessary facts” that she was subjected to harassment that was physically
threatening, id. at 3, and (c) greatly overstates the level of severity or pervasiveness necessary to
defeat a motion to dismiss; (2) classifying the events as discrete, completed acts instead of a
continuing violation, id. at 5-6; (3) determining that Plaintiff failed to adequately allege temporal
proximity and/or causality between her request for a reasonable accommodation and threat of
legal action and the increase in observations during the 2015-16 school year, id. at 10; (4)
suggesting that a formal notice of claim is required as to the NYSHRL claims, id. at 11; (5)
applying the one-year statute of limitations pursuant to N.Y. EDUC. LAW §3813(2-b) to NYSHRL
claims, id. at 12-13; (6) applying a one-year statute of limitations to the aiding and abetting claim

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against Budion because (a) she is not an officer of the school district and therefore a three-year
statute of limitations period applies and (b) whether she is subject to §3813(2-b) is an issue of
fact requiring discovery, id. at 13-14; (7) recommending dismissal of her equal protection claim
because (a) the Magistrate Judge failed to consider unlawful retaliation as the basis of her claim,
id. at 15, (b) the ADA claims survived and an equal protection claim is a parallel cause of action
to an employment discrimination claim, id. at 16, and (c) Plaintiff effectively pleaded
comparators, id ; (8) dismissing the procedural due process claim (a) despite Defendants’ failure
to engage in an interactive process as mandated by Federal law, id. at 17, (b) for failure to state a
plausible adverse employment action despite Defendant Andrews’ act of unilaterally and
involuntarily placing her on Family Medical Leave Act so she would use her accrued sick time,
id. at 18, (c) for failing to allege a sufficient property interest as it relates to Defendants’ failure
to engage in an interactive process despite her property interest as a tenured teacher in New York
State, id. at 20, and (d) for failing to bring an Article 78 proceeding in state court because this
Court has jurisdiction, id. at 24-25; (9) recommending dismissal of Plaintiff’s hostile work
environment claim in light of her plausible claims of constructive discharge, id. at 29; (10)
dismissing her substantive due process claim by failing to address her allegations that
Defendants’ failure to accommodate led her to “live in constant fear due to the fact that she had
to put herself in great danger on a daily basis,” id. at 29; (11) dismissing her Monell claim in
light of her adequately pled constitutional claims, id. at 31; and (12) finding that she cannot state
a private right of action for violation of her free speech rights because as a public employee, she
was expressing her need for accommodation “to enforce the rights of other disabled teachers.”

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Id. at 32. Defendants have responded to all of Plaintiff’s objections. See Defendants’ Response
to Plaintiff’s Objections, DE [47].
Defendants object to the Report, see Defendants’ Objections (“Defs’ Obj.”), DE [41], to
the extent that it (1) recommends that Plaintiff’s NYSHRL claims prior to October 1, 2014
should be time barred, arguing that the date appears to be a typographical error and the Report
should be modified to state that the claims prior to July 18, 2016 should be time barred, id. at 4;
(2) recommends denying the motion to dismiss the aiding and abetting claim against Bannon and
Budion as it relies upon time-barred acts, id.; (3) found that Plaintiff satisfied the condition
precedent of filing a notice of claim as to the NYSHRL claims, id. at 5; (4) denied the motion to
dismiss any ADA claims occurring after November 17, 2016 as Plaintiff failed to file a separate
EEOC charge, , id. at 9; and (5) considered time-barred acts when determining that the ADA
discrimination claims were plausibly pled. Id. at 10. Plaintiff has submitted a response to
Defendants’ objections. See Plaintiff’s Responses to Defendants’ Objections, DE [46].
B. Objections related to ADA Claims
Plaintiff’s objections to the Report’s determinations that (1) the employment actions were
discrete acts and not subject to the continuing violation exception, and (2) the amended
complaint failed to plausibly plead conduct establishing a claim for hostile work environment,
consist of restated arguments raised previously in her opposition papers. Having reviewed these
recommendations for clear error, and finding none, the objections are overruled. She also
claims that, as to the hostile work environment determination, the Report’s finding that Plaintiff
“alleges episodic acts which were not physically threatening or sufficiently severe or pervasive,”

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Report at 29, was in error as the Magistrate Judge failed to consider “threats of physical harm
Plaintiff encountered daily” that were the direct result [of] Defendants’ willful failure to
accommodate.” Pl. Obj. at 3-4 (emphasis supplied). She does not allege that any Defendant
took any affirmative act that threatened her with physical harm; rather she apparently suggests
that Defendants’ failure to accommodate her disability led her to experience fear of physical
harm while she performed her work. She provides no case law supporting the notion that such a
situation implicates actionable conduct by a defendant. Even assuming, arguendo, that her
manifested fear is attributable to Defendants such that it may be considered in analyzing a claim
for hostile work environment, the Court has reviewed the allegations in the amended complaint
cited by Plaintiff and finds no plausible allegations in support of this theory. This objection is
also overruled.
Defendants object to the Report’s finding that Plaintiff was not required to file an
additional EEOC complaint “for acts occurring after November 17, 2016 to the extent such acts
are reasonably related” to the EEOC charge filed on that date, arguing that a separate EEOC
charge was required for any discrete act of discrimination occurring after November 17, 2016.
The objection is overruled. The Report merely indicates that post-filing acts that are reasonably
related need not be first presented in a separate charge, but makes no determination at this stage
of the proceedings as to which acts will ultimately meet this requirement. See generally Joseph v.
Price Costco, 100 F. App’x 857, 857-58 (2d Cir. 2004) (recognizing three situations in which a
plaintiff may assert a claim “that was not specifically pleaded in his administrative complaint
because it is ‘reasonably related’ to [her] EEOC claims: (1) claims that are within the scope of

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the EEOC investigation that is likely to grow out of the charge; (2) claims of retaliation for filing
the EEOC charge; and (3) further incidents that occur after the filing of the EEOC charge”).
C. Objections related to NYSHRL Claims
1. Satisfaction of Condition Precedent
Plaintiff, arguing §3813 of the New York Education Law does not apply to NYSHRL
claims, objects to “any recommendation which determines that a formal notice of claim is . . .
required.” Pl. Obj. at 11. This objection is overruled. The notice requirement of §3813(1) is a
condition precedent to commencement of an action for any cause whatever against a school
district or board of education. See Peritz v. Nassau Cnty. Bd. of Coop. Educ Servs., No.16-CV5478, 2019 WL 2410816, at *2 (E.D.N.Y. June 7, 2019); Nelson v. Mt. Vernon City Sch. Dist., No.
15-CV-8276, 2017 WL 1102668, at *3 (S.D.N.Y. Mar. 23, 2017) . As the Report found, while claims

governed by §3813(1), unlike claims under §3813(2), are not subject to a formal “notice of
claim” requirement, the statute clearly requires that prior to suit, a “written verified claim upon
which such action or special proceeding is founded was presented to the governing body of said
district or school within three months after the accrual of such claim.” N.Y. Educ. Law
§3813(1).
Defendants object to the Report’s finding that a letter purportedly sent by Plaintiff to the
District on September 16, 2016 “substantially complied with §3813,” Report at 41, in light of the
failure of Plaintiff to specifically allege these facts in the Amended Complaint, a failure that the
Report acknowledges. See id. at 42 (pointing out that “the September 16, 2016 letter is omitted
altogether from the Amended Complaint”). In opposition to the motion, Plaintiff simply states

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that she substantially complied with the notice requirement “by sending a detailed letter to the
District providing the underlying factual basis concerning her state and federal discrimination
and other claims.” Plaintiff’s Memorandum of Law in Opposition (“Pl. Opp.”) at 16, DE [35].
The letter, submitted by Plaintiff’s counsel, was purportedly “a formal and detailed five-page,
single spaced letter dated September 16, 2016 detailing the nature of [Plaintiff’s] State claims.”
Id. at 17.1 As the Court on a motion to dismiss is constrained to viewing the plausible
allegations of the complaint, it was error to consider the September 16, 2016 letter and
accordingly Defendants’ objection is sustained. See also Nelson, 2017 WL 1102668, at *3
(noting that “plaintiffs must plead compliance with §3813(1)’s requirements” (emphasis
supplied)).
Defendants further object to the Report’s recommendation regarding Plaintiff’s filing of a
complaint with the EEOC, arguing that “the mere filing of an EEOC charge does not, without
more, satisfy the notice of claim requirement.” Defs. Obj. at 6. In her amended complaint,
Plaintiff alleges that she filed a complaint with the EEOC and the New York State Division of
Human Rights on November 17, 2016, but attaches only the right-to-sue letter from the EEOC.
Am. Compl. ¶13, Ex. 1.

Defendants argue that without examination of the EEOC complaint

itself, it is impossible to determine whether that document contains detail sufficient to constitute

1

Plaintiff does not indicate to whom she sent the letter of September 16, 2016, but states that Defendant
Bannon, Superintendent of Schools “responded directly to plaintiff’s” letter. Pl. Opp. at 17. This
statement suggests that Plaintiff’s letter may have been addressed and sent to Bannon. If that were the
case, the letter would not satisfy §3813(1) as courts have consistently held that service of a notice of
claim upon a superintendent does not satisfy § 3813’s requirements.” Nelson, 2017 WL 1102668, at *3.

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notice to the school district under §3813(1). The allegations of the complaint suffice to
withstand the motion to dismiss and thus Defendants’ objections are overruled. Defendants’
concerns regarding the sufficiency of the notice may be addressed on summary judgment.
Assuming for current purposes that the EEOC filing was sufficient, any claim occurring more
than 90 days prior (earlier than August 19, 2016), will be time-barred.
2. Statute of Limitations
Plaintiff objects to the application of the one-year statute of limitations period set forth in
N.Y. EDUC. LAW §3813 (2-b), arguing that it is inapplicable to NYSHRL claims. This objection
is overruled; the Report correctly found that the shorter statute of limitations applies when the
suit is commenced pursuant to §3813(1) against, inter alia, a school district, board of education,
or school officer.
In applying the one-year statute of limitations, the Report concludes that “[i]n light of the
fact that Plaintiff commenced the instant action on July 18, 2017, any discriminatory acts arising
under the NYSHRL and brought against the District, the Board, Bannon, Andrews or Budion
which occurred prior to October 1, 2014 are time-barred.”

Report at 46. Defendants argue

that the October 1, 2014 date is a typographical error, object to the Report to that extent, and
maintain that the date should have been July 18, 2016. Plaintiff has not addressed this specific
objection. The Court agrees that the cited date was in error, sustains Defendants’ objection, and
modifies the Report to the extent that the date October 1, 2014 is replaced by July 18, 2016
wherever it appears.
Plaintiff further objects to application of the one-year statute of limitations to her claims

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against Budion, arguing that she is not “school officer” and thus the claim against her falls under
§3813(2), resulting in the application of a three-year statute of limitations. A “school officer” is
defined as:
a clerk, collector, or treasurer of any school district; a trustee; a
member of a board of education or other body in control of the
schools by whatever name known . . .; a superintendent of schools;
a district superintendent; a supervisor of attendance or attendance
officer; or other elective or appointive officer in a school district
whose duties generally relate to the administration of affairs
connected with the public school system.
N.Y. EDUC. LAW §2(13). The amended complaint identifies Budion as “the District Coordinator
of Foreign Language and English Language Learners.” Am. Compl. ¶¶6, 10; see also id. ¶38
(identifying Budion as “her supervisor, District Coordinator of Foreign Language”). Clearly,
this position is not expressly referenced within the statutory definition. The Report found that
“although not dispositive, where an individual holds a district-wide office, such a finding
militates in favor of a determination that the individual is a ‘school officer.’” Report at 44 n.9.
It relied upon a case in which the court, noting that it was addressing a question of first
impression, found that as a matter of law, “the Mathematics Chairperson is a district-wide office
‘whose duties generally relate to the administration of affairs connected with the public school
system.’” Benedith v. Malverne Union Free Sch. Dist., 38 F. Supp. 3d 286, 312 (E.D.N.Y. 2014)
(quoting N.Y. EDUC. LAW §3812(2)). Unlike the current case, however, the ruling in Benedith
came in the context of a motion for summary judgment in which the court found “[u]pon review
of the record” that the defendant was a school officer. Id. While Budion’s job title itself
suggests that her responsibilities extended beyond a single building and covered instruction for

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multiple subject matters for the District, the title alone, does not address potentially relevant facts
such as, inter alia, whether the position was appointed or elected, or whether the duties
“generally relate to the administration of affairs connected with the public school system.”
While the facts may ultimately support a finding as a matter of law that Budion was a school
officer, such a finding is premature on this motion. Plaintiff’s objection is sustained.
D. Objections related to § 1983 Claims
Plaintiff raises various objections to the recommendation that her § 1983 claims alleging
violations of constitutional rights to equal protection and due process be dismissed. The bulk of
those arguments were not properly placed before the Magistrate Judge, and introduction of new
arguments as objections is not appropriate.2 See Pirog v. Colvin, No.15-CV-438, 2016 WL
5476006, at *5 (S.D.N.Y. Sept. 28, 2016) (citing cases).
As to the due process claims, Plaintiff’s opposition papers, totaling about one and ¼
pages in length, argued only that Defendants’ failure to engage in an interactive process
“violated both her procedural and substantive due process rights.” Pl. Opp. at 29-30. In her
objections, Plaintiff now faults the Magistrate Judge for failing to anticipate and address
arguments she failed to raise. For example, as to her procedural due process claim, Plaintiff
objects that the Report failed to consider Andrews’ decision to place her on FMLA leave. Pl.

2

Plaintiff has not provided any reason for failing to make these arguments previously, nor do the
arguments raise an intervening change in the law. See, e.g., Wells Fargo N.A., v. Sinnott, No. 2:07-CV169, 2010 WL 297830, at *2 (D. Vermont Jan. 19, 2010) (suggesting factors for deciding whether to
address legal argument raised for the first time in objections).

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Obj. at 19. Similarly, she faults the Report for failing to recognize a substantive due process
claim based on her argument that she lived in “constant fear due to the fact that she had to put
herself in great danger on a daily basis.” Id. at 29.3 She simply did not raise either issue in
opposition and has not offered any reason why she was prevented from doing so.
Despite the scant opposition provided by Plaintiff, the Magistrate Judge thoroughly
addressed all of her potential constitutional claims. Plaintiff’s objections to the Report’s
recommendations regarding her claims under §1983 have been considered and overruled.
E. Remaining Objections
This Court has conducted a de novo review of the Report and considered both Plaintiff’s
and Defendants’ remaining objections and responses thereto that were not specifically addressed
above. Upon completion of that review, the remaining objections are overruled and the Report
adopted.
IV. CONCLUSION
For the foregoing reasons, the Report is adopted with the following modifications:
•

the date July 18, 2016 replaces the erroneous date (October 1, 2014) in the last sentence
in the last paragraph of section III.C.4, and in the Conclusion;

•

the finding that Defendant Budion is a school officer is stricken; and

•

the finding that the letter purportedly sent to the District by Plaintiff on September 16,
2016 “substantially complied with §3813,” is stricken.

The Court notes that this argument appears only in Plaintiff’s papers and not in the cited paragraphs of
the Amended Complaint. In any event, notwithstanding the Report’s conclusion that Plaintiff had
abandoned her substantive due process claim in light of her failure to meaningfully oppose the motion,
this Court finds no allegations in the amended complaint that plausibly allege acts so extreme as to shock
the conscience.
3

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Defendants’ motion to dismiss, DE [30], is granted in part and denied in part.4
SO ORDERED.

/s/ Sandra J. Feuerstein
Sandra J. Feuerstein
United States District Judge
Dated: Central Islip, New York
July 15, 2020

4

Agosta, the principal of the school in which Plaintiff taught, is identified as a defendant with aider and
abettor liability in the amended complaint, see ¶6, but is not named in the caption and is not listed as a
defendant in Count VI or any other Count. To allay any uncertainty, the Report’s recommendation that
any claim against Agosta be dismissed is adopted.

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