Clark v. New York State Office of the State Comptroller et al

Filing 192

MEMORANDUM-DECISION and ORDER - That the Union defendants' 141 Motion for Summary Judgment is GRANTED. That the State defendants' 145 Motion for Summary Judgment is GRANTED. That Wapner's 151 Motion for Summary Judgment is GRANTED. That Clark's complaint (Dkt. No. 1) is DISMISSED. That Clark's motions for sanctions (Dkt. Nos. 142, 143) are DENIED. That the Clerk close this case. Signed by Chief Judge Gary L. Sharpe on 3/3/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
DONNA CLARK,
Plaintiff,

1:09-cv-716
(GLS/CFH)

v.
NEW YORK STATE OFFICE OF
THE STATE COMPTROLLER
et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Donna Clark
Pro Se
43 Raymo Street
Albany, NY 12209
FOR THE DEFENDANTS:
New York State Office of the State
Comptroller, Jeanine Dominique,
Paul Moller, James Normile, Gary
Degener, Robert McCauslin,
Thomas DiNapoli, Ceilia Gonzalez,
Melanie MacPherson,
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224
John Wapner
Furman, Kornfeld Law Firm
61 Broadway, 26th Floor

KELLY L. MUNKWITZ
Assistant Attorney General

KATHRYN C. COLLINS, ESQ.
NEIL S. KORNFELD, ESQ.

New York, NY 10006
Civil Services Employees Association,
Mark Unser, Denise Lawyer, Daniel
Donahue
Civil Service Employees Association,
Inc.
143 Washington Avenue
P.O. Box 7125, Capitol Station
Albany, NY 12224

DAREN J. RYLEWICZ, ESQ.

Gary L. Sharpe
District Court Judge

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Donna Clark commenced this action against
defendants,1 asserting claims pursuant to the Family and Medical Leave
Act (FMLA),2 Title VII of the Civil Rights Act,3 Titles I and V of the
Americans with Disabilities Act (ADA),4 42 U.S.C. §§ 1983 and 1985 for

1

Defendants include the New York State Office of the State Comptroller (OSC),
Jeanine Dominique, Paul Moller, James Normile, Gary Degener, Robert McCauslin, Thomas
DiNapoli, Celia Gonzalez, and Melanie MacPherson (collectively, the “State defendants”); Mark
Unser, Denise Lawyer, Daniel Donahue, and the Civil Service Employees Association (CSEA,
and collectively, the “Union defendants”); and John Wapner.
2

See 29 U.S.C. §§ 2601-2654.

3

See 42 U.S.C. §§ 2000e-2000e-17.

4

See 42 U.S.C. §§ 12201-12213.

alleged violations of the First, Fourth,5 and Fourteenth Amendments of the
United States Constitution, the New York State Human Rights Law
(NYSHRL),6 and the Age Discrimination in Employment Act (ADEA).7
(Compl., Dkt. No. 1.) Pending are defendants’ motions for summary
judgment, (Dkt. Nos. 141, 145, 151), and Clark’s motions for sanctions,
(Dkt. Nos. 142, 143). For the reasons that follow, defendants’ motions are
granted and Clark’s motions are denied.
II. Background8
5

Clark’s Fourth Amendment claim appears to be brought only against Wapner.
(Compl. ¶¶ 128, 155.)
6

See N.Y. Exec. Law §§ 290-301.

7

See 29 U.S.C. §§ 621-634.

8

Defendants submitted statements of material facts in support of their motions for
summary judgment. (Dkt. No. 141, Attach. 2; Dkt. No. 145, Attach. 36; Dkt. No. 151, Attach.
1.) While Clark responded, (Dkt. Nos. 167, 183, 183 at 21-22), she did not do so in
compliance with Local Rule 7.1(a)(3). For instance, many of Clark’s denials do not, as Rule
7.3 requires, set forth a specific citation to the record where the factual issue arises, but
instead accompany an instruction to “see record evidence” or “see total record evidence,”
contain no citation whatsoever, or generally cite an entire document—often, an entire
deposition transcript. (See, e.g., Dkt. No. 167 ¶¶ 5-6, 9-10, 12, 18, 39, 43, 45, 47; Dkt. No.
183 ¶¶ 17, 21, 41, 42, 44, 51, 53, 58, 62-66; Dkt. No. 183 at 21-22 ¶¶ 1-2.) Moreover, Clark
failed to respond to the entirety of the Union defendants’ statement of material fact because
she was “simply out of time,” (Dkt. No. 167 at 16), despite being granted four extensions of
time to file her response to defendants’ motions, (Dkt. Nos. 150, 158, 174, 180). Further, in
support of her response, Clark filed thousands of pages of exhibits, spanning over twenty
docket entries, (Dkt. Nos. 162-67, 169-72, 175, 178, 181-88), in no particular order and with
titles such as “Exhibit(s) Zonderman made me sick,” (Dkt. No. 162, Attach. 7), and “Exhibit(s)
Unser talking about Kent attack against Clark then he said, he wasn’t there,” (Dkt. No. 170,
Attach. 3). Thus, though cognizant of the special solicitude afforded to pro se plaintiffs, the
court notes that Rule 56 “does not impose an obligation on a district court to perform an
independent review of the record to find proof of a factual dispute.” Amnesty Am. v. Town of

3

A.

Factual History
Clark, a half Sicilian, Christian woman over forty years of age, was

employed by the Office of the New York State Comptroller (OSC) as a
Calculation Clerk I from June 30, 2005 to March 1, 2007. (Union Defs.’
Statement of Material Facts (SMF) ¶¶ 1, 2, Dkt. No. 141, Attach. 2; State
Defs.’ SMF ¶ 1, Dkt. No. 145, Attach. 36.) Her job duties generally
included delivering mail, sorting through documents, working on the
computer, ordering and delivering folders, maintaining lists, searching for
folders, and distributing work to supervisors. (Compl. ¶ 29.) She also was
a member of CSEA.9 (Union Defs.’ SMF ¶ 34.) Clark allegedly suffers
from several maladies, including post-traumatic stress syndrome, chronic

W. Hartford, 288 F.3d 467, 470 (2d Cir. 2002); see Arroyo–Horne v. City of N.Y., No. 07 CV
5213, 2011 WL 864682, at *4 n.3 (E.D.N.Y. Mar. 9, 2011) (noting that a court must “construe[]
[a pro se plaintiff’s] claims liberally,” but also that it is not under an obligation to “scour the
record to assess whether a genuine issue of material fact exists” (citations omitted)).
Nevertheless, the court has thoroughly reviewed the record and considered Clark’s disputed
facts. In the absence of a clear citation to the record, however, the court has deemed
admitted defendants’ statements of material facts to the extent that they are properly
supported.
9

It is clear from the record that Clark’s relationships with CSEA Local 652 president,
Unser, and CSEA Local 652’s Labor Relation Specialist (LRS), Lawyer, were strained, at best.
(Union Defs.’ SMF ¶¶ 26, 32.) In her opposition, Clark refers to Unser as “a sociopathic,
power-hungry, abuser.” (Dkt. No. 189 at 4.) Unser was also an employee of OSC and had
expressed concern to management about Clark’s behavior. (Union Defs.’ SMF ¶ 27; Dkt. No.
145, Attach. 16 ¶ 6.) In February 2007, Clark sought to file a complaint against Unser, and
also accused Lawyer of having a conflict of interest and being unable to represent Clark. (Id.
¶¶ 32-36.)

4

pain, amnestic disorder due to trauma, post-concussive syndrome,
cognitive deficits, photophobia, hip and lumbar injuries, headaches, word
retrieval problems, and tangential speech patterns. (Compl. ¶ 23; State
Defs.’ SMF ¶ 5.) Medical evidence in the record also indicates that Clark
has a diagnosis and history of “schizoaffective disorder.”10 (Dkt. No. 141,
Attach. 4 at 40, 42, 47, 48.)
1.

Accommodations Requests

At three different points during her employment, Clark requested
certain accommodations. First, in 2005, following an incident in which she
was assaulted and robbed near the OSC building, Clark requested parking
privileges in the garage. (State Defs.’ SMF ¶¶ 6, 9.) She was granted
garage parking privileges, but they were intended to be short-term. (Id.
¶ 10; Dkt. No. 145, Attach. 18 ¶ 3.a.; Dkt. No. 145, Attach. 19 at 1.) At the
end of July 2006, Clark was advised that she needed to make other
parking arrangements by the end of August. (Dkt. No. 145, Attach. 19 at
1.) She then submitted a request for disability parking, but after the OSC
nurse asked Clark to provide her with documentation of her PTSD and

10

The court notes that Clark disputes both the diagnosis and its relevance to this
litigation. (Dkt. No. 167 ¶ 5.)

5

agoraphobia, Clark refused to do so, and in October 2006, Clark was
denied medical parking. (Id. at 2-5.)
Second, in December 2006, Clark requested a soft chair due to
spinal injuries. (Dkt. No. 145, Attach. 21 at 2.) Although the nurse
responded to Clark’s request and asked that Clark provide medical
documentation, Clark first responded that she was “all set,” and then later
provided a note from her doctor, but ultimately declined to fill out the
reasonable accommodation request. (State Defs.’ SMF ¶¶ 27-29; Dkt. No.
145, Attach. 21 at 3, 5-6.) Third, in January 2007, Clark complained that
the light above her work station was too bright and requested a filter. (Dkt.
No. 145, Attach. 18 ¶ 3.d.) A workstation assessment was completed, and
the nurse directed that the light be changed and a filter added. (Id.; Dkt.
No. 145, Attach. 22 at 1-4.) In her complaint, Clark claims that, instead of
a light cover, bright pink light lamps were installed, causing her to sustain
“burns to [her] face, eyes, and chest area and permanent visision loss,”
because she believed that the lamps were “Germicidal Light Lamps,” which
emit radiation and “are not meant to be placed directly over a human
being[] for exposure.” (Compl. ¶¶ 44-49.)

6

2.

FMLA Leave and Subsequent Events

Clark went on approved FMLA leave from October 26, 2006 through
December 3, 2006. (State Defs.’ SMF ¶ 20; Dkt. No. 145, Attach. 34 at
21.) In her deposition, Clark explained that she went on FMLA leave
because she had not been feeling well, was extremely tired, was having
constant nightmares and panic attacks, and was traumatized by “a
gentleman that seemed to arrive each morning at the same time [she] did.”
(Dkt. No. 145, Attach. 34 at 19-20.) Prior to Clark’s FMLA leave, a pilot
program was implemented in another section of the bureau, by which
clerks would no longer deliver folders; when Clark went on FMLA leave,
OSC decided to pilot that program in her section.11 (State Defs.’ SMF
¶¶ 24-26.) Clark claims that when she returned from FMLA leave, some of
her job duties, which included ordering and delivering folders, were
eliminated. (Dkt. No. 145, Attach. 34 at 51.)
Not long after Clark returned from her FMLA leave, several of her
coworkers began lodging complaints about her increasingly strange and
disruptive behavior, which continued despite her supervisors meeting with

11

Although Clark purports to deny this, she predominately disputes which section of the
bureau the program was piloted in prior to her FMLA leave. (Dkt. No. 183 ¶¶ 24-25.)

7

her to discuss appropriate office behavior. (State Defs.’ SMF ¶¶ 30, 36,
39.) Some of the complaints included that Clark screamed profanities over
the telephone, was sending personal information about her coworkers by
email to her home, and would eavesdrop on their conversations, take what
was said out of context, and then complain about it. (Id. ¶¶ 40, 42, 44; Dkt.
No. 145, Attach. 16 ¶¶ 11(b), 11(c), 11(g).)
During this time, Clark alleges that her coworker, defendant Paul
Moller, “while engaged in conversation said loud enough for [her] to hear,
as [she] sat in [her] cubicle, . . . ‘All Italians are stupid.’” (Compl. ¶ 67;
Dkt. No. 145, Attach. 34 at 63-64.) Clark claims that she advised
defendant Robert McCauslin, a manager, about Moller’s ethnic slurs.
(Compl. ¶ 71; State Defs.’ SMF ¶ 51.) After reporting the slurs to
McCauslin, Clark claims that she witnessed McCauslin and Moller
laughing, and gesturing “‘F*** Y**,’” in Italian.” (Compl. ¶¶ 73-74; Dkt. No.
145, Attach. 34 at 63-64; State Defs.’ SMF ¶¶ 52-53.) McCauslin and
another manager, David Burmaster, then met with Clark and discussed the
incident, at which meeting Burmaster explained that Moller’s wife was
Italian. (Compl. ¶¶ 76-78; State Defs.’ SMF ¶ 51.) After this incident, an
email was circulated to employees advising them of the importance of
8

being considerate and respectful of their colleagues’ pride in their heritage.
(Dkt. No. 145, Attach. 17 ¶ 23.)
Between December 2006 and February 2007, Clark’s supervisors
met with human resources on several occasions to discuss how to manage
Clark’s increasingly disruptive behavior. (State Defs.’ SMF ¶ 47.) On
February 26, 2007, Mary Kent, one of Clark’s coworkers, screamed at
Clark, who was standing next to Kent’s cubicle, “‘You are a f**king nut. . . .
You are scaring people. You are a nut.’” (Id. ¶¶ 49-50.) Soon thereafter,
Clark met with defendant Jeanine Dominique, the Assistant Director of
Labor Relations within OSC’s Division of Human Resources and
Administration, during which meeting Dominique grew concerned with
Clark’s erratic demeanor. (Id. ¶ 48; Dkt. No. 145, Attach. 16 ¶ 2.)
3.

Involuntary Leave

After her meeting with Clark, Dominique met with management,
including defendant Melanie MacPherson (Whinnery), defendant James
Normile, McCauslin, Burmaster, and defendant Gary Degener. (State
Defs.’ SMF ¶ 52.) At that meeting, management noted that many of
Clark’s co-workers had expressed concern with her behavior, and
suggested that Dominique meet with them separately. (Id.) Dominique
9

then met separately with several of Clark’s coworkers, including, among
others, Moller, Unser, and Kent; Dominique was struck by the consistency
in their stories and in their fear of Clark. (Id. ¶¶ 52-53.) On February 28,
2007, Normile, Whinnery, a member of the OSC Legal department, and
Dominique then determined that Clark would be placed on involuntary
leave pursuant to § 72.5 of the Civil Service Law12 due to her increasingly
troubling behavior and the seemingly genuine fear among her coworkers.
(Id. ¶ 54; Dkt. No. 145, Attach. 16 ¶ 14.) Clark was then provided with
notice of her leave. (State Defs.’ SMF ¶ 55.)
On March 12, 2007, Dominique wrote to the Department of Civil
Service’s Employee Health Services (EHS) and requested that Clark be
evaluated to determine if any physical or mental conditions prevented her
from performing her job duties. (Dkt. No. 145, Attach. 5; Dkt. No. 145,

12

Section 72.5 of the Civil Service Law states, in pertinent part:

When in the judgment of an appointing authority an employee is
unable to perform the duties of his or her position by reason of a disability . .
. the appointing authority may require such employee to undergo a medical
examination to be conducted by a medical officer selected by the civil service
department or municipal commission having jurisdiction.
If, upon such medical examination, such medical officer shall certify that such
employee is not physically or mentally fit to perform the duties of his or her
position, the appointing authority shall notify such employee that he or she
may be placed on leave of absence.

10

Attach. 16 ¶ 16.) In her letter, Dominique provided EHS with a list of
troubling behavior that Clark exhibited. (Dkt. No. 145, Attach. 5 at 1-3.)
Clark was provided copies of the letter and informed that her evaluation
was scheduled for March 21, 2007. (Dkt. No. 145, Attach. 6; Dkt. No. 145,
Attach. 16 ¶ 16.) Clark was evaluated by the EHS psychological
consultant, defendant Dr. John Wapner, and EHS psychiatric consultant,
Dr. Marcos Nieves. (Dkt. No. 145, Attach. 7.) Wapner then provided EHS
with a report regarding his findings, which concluded that Clark “seems
pre-occupied with her co-workers and would be unable to focus on her
work” and that she “is unable to perform her job duties.” (Dkt. No. 151,
Attach. 4 at 4.) EHS’s Medical Director, Dr. Richard Ciulla, then wrote to
OSC and informed it that EHS determined that Clark was unfit to perform
the essential duties of her job. (Dkt. No. 145, Attach. 7.) By letter dated
April 16, 2007, Clark was informed of EHS’s determination, and Clark
appealed.13 (State Defs.’ SMF ¶ 58; Dkt. No. 145, Attach. 8.)
4.

Section 72 Hearing

Clark’s § 72 hearing began on January 10, 2008 and continued over

13

Pursuant to § 72.5 of the Civil Service Law, an employee is allowed ten working days
to object to the imposition of involuntary leave and to request a hearing.

11

seventeen days throughout 2008.14 (Dkt. No. 145, Attach. 18 ¶ 4.) On the
last day of the hearing, while cross-examining an EHS doctor, Clark
repeatedly announced “[i]t’s over” and “[y]ou’re bought, Zonderman.”15
(Dkt. No. 145, Attach. 30 at 3-4.) Despite additional days remaining in the
hearing schedule, OSC moved to have the hearing officially closed due to
Clark’s refusal to proceed; the hearing officer granted that motion. (Dkt.
No. 145, Attach. 30.)
Additional briefs were submitted by the parties, and ultimately, in a
thirty-five-page decision, the hearing officer found that OSC had probable
cause to believe that Clark’s continued presence on the job represented a
potential danger to persons or property or would severely interfere with
operations when it placed her on involuntary leave. (Dkt. No. 145, Attach.

14

CSEA did not represent Clark in the hearing. (Union Defs.’ SMF ¶¶ 38-39.) Once
she was placed on involuntary leave, Clark contacted LRS Rich Blair and informed him that
she was going to appeal the decision to place her on involuntary leave. (Id. ¶ 38; Dkt. No.
141, Attach. 6 at 3 ¶ 5.) Blair stated that, in order for Clark to obtain CSEA Legal Department
representation, Clark would need to forward all relevant information to Blair. (Dkt. No. 141,
Attach. 6 at 3 ¶ 5; Dkt. No. 141, Attach. 6 at 7.) Blair, however, never received any information
from Clark. (Dkt. No. 141, Attach. 6 at 3 ¶¶ 6-7; Dkt. No. 141, Attach. 6 at 7.) Nevertheless,
CSEA then-Deputy Counsel Steven Crain, emailed Clark and advised her to send him the
relevant information for her appeal, including medical documentation. (Dkt. No. 141, Attach. 6
at 13.) Despite CSEA’s attempts, Clark never sent any documentation, refused to cooperate,
and was generally combative in her email communications. (Id. at 9-13.)
15

Paul Zonderman was the hearing officer for Clark’s § 72 hearing. (Union Defs.’ SMF

¶ 16.)

12

31 at 35.) The hearing officer further found that Clark was physically and
mentally unfit to perform her duties when she was placed on involuntary
leave, and recommended that Clark remain on involuntary leave pursuant
to § 72.1 of the Civil Service Law. (Id.) By Final Determination, dated
June 4, 2009, OSC notified Clark that it was adopting the hearing officer’s
findings and recommendations. (Dkt. No. 141, Attach. 5 at 72-73.)
B.

Procedural History
On or about December 3, 2007, Clark filed a charge of discrimination

with the Equal Employment Opportunity Commission (EEOC). (Compl.
¶ 4; Dkt. No. 141, Attach. 4 at 29-30.) In April 2009, after closing its case,
the EEOC issued right-to-sue letters to Clark notifying her of the right to file
a civil action under Title VII. (Dkt. No. 1 at 28-31.) Consequently, on June
23, 2009, Clark commenced this action against defendants.16 Soon
thereafter, all defendants filed motions to dismiss. (Dkt. Nos. 26, 30, 36.)
With respect to the State defendants, the court granted the motion as to
Clark’s Title VII claims against the individual State defendants and Clark’s

16

After filing the present action, Clark commenced another action in this court on June
23, 2009, in which she asserted substantially the same claims that she asserts here. See
Clark v. Dominique, No. 1:10-cv-1073. In that case, all of Clark’s claims were dismissed. See
Clark v. Dominque, 798 F. Supp. 2d 390 (N.D.N.Y. 2011).

13

ADEA claim, but denied the motion with respect to the remaining claims.
(Dkt. No. 53 at 5-7.) With respect to Wapner, the court dismissed all of
Clark’s claims, except for her § 1983 claims. (Id. at 6-7.) Finally, the court
denied the Union defendants’ motion in its entirety. (Id. at 6-8.)
III. Standard of Review
The standard of review pursuant to Fed. R. Civ. P. 56 is well
established and will not be repeated here. For a full discussion of the
standard, the court refers the parties to its decision in Wagner v. Swarts,
827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d sub nom. Wagner v.
Sprague, 489 F. App’x 500 (2d Cir. 2012).
IV. Discussion17
A.

State Defendants
Remaining against the State defendants are Clark’s claims under the

ADA, Title VII, FMLA, § 1983 for violations of her First and Fourteenth
Amendment rights, and NYSHRL.

17

The court notes that Clark’s virtually incomprehensible memorandum of law is fortytwo pages in length, directly in contravention of of L.R. 7.1(a)(1), which limits memoranda of
law to twenty-five pages, absent court approval. (Dkt. No. 189.)

14

1.

ADA

Clark asserts claims pursuant to Titles I and V of the ADA. (Compl.
¶ 1.) As an initial matter, the State defendants argue that all ADA claims
asserted against the individual defendants must be dismissed because the
ADA does not provide for individual liability, as it only authorizes
“employer” liability. (Dkt. No. 145, Attach. 37 at 10.) The court concurs,
and Clark’s ADA claims against the individual State defendants are
dismissed. See Herzog v. McLane Northeast, Inc., 999 F. Supp. 274, 277
(N.D.N.Y. 1998).
The State defendants also argue, as an initial matter, that Clark’s
claims pursuant to Title I of the ADA must be dismissed against OSC
because OSC, as an arm of the state, is entitled to Eleventh Amendment
immunity. (Dkt. No. 145, Attach. 37 at 10.) As the Supreme Court has
spoken definitively on this issue, the court agrees. See Bd. of Trs. of the
Univ. of Ala. v. Garrett, 531 U.S. 356, 368-74 (2001) (holding that
Congress did not validly abrogate the states’ Eleventh Amendment
immunity for Title I claims seeking monetary damages); see also Shepherd
v. N.Y.S., Office of Mental Health, No. 10CV837A, 2013 WL 636178, at *4
(W.D.N.Y. Jan. 29, 2013).
15

The State defendants, however, misconstrue Clark’s claim under
Title V of the ADA as a claim pursuant to § 504 of the Rehabilitation Act.
(Dkt. No. 145, Attach. 37 at 10-13.) Clark’s complaint clearly cites “Title V,
Section 503 of the Act, 42 U.S.C. 12203,” which is the anti-retaliation
provision of the ADA. (Compl. ¶ 1.) The court assumes the State
defendants’ construction of this claim was in error. Despite this error, the
State defendants’ argument that they are entitled to Eleventh Amendment
immunity with respect to Clark’s Title I claim applies with equal force to
Clark’s Title V claim. Indeed, several district courts in this Circuit have held
that sovereign immunity also applies to retaliation claims brought under
Title V of the ADA. See, e.g., Johnson v. N.Y.S. Dep’t. of Corr. Servs., No.
11-CV-079S, 2012 WL 4033485, at *4 (W.D.N.Y. Sept. 12, 2012) (noting
that, if “‘a state is immune from underlying discrimination, then it follows
that the state must be immune from claims alleging retaliation for
protesting against discrimination’” (quoting Chiesa v. N.Y.S. Dep’t of Labor,
638 F. Supp. 2d 316, 323 (N.D.N.Y. 2009)); Emmons v. City Univ. of N.Y.,
715 F. Supp. 2d 394, 408 (E.D.N.Y. 2010) (“Sovereign immunity also
extends to claims of retaliation brought pursuant to Title V of the ADA.”).
The court is persuaded by the reasoning of those decisions, and,
16

accordingly, dismisses Clark’s Title V claim against OSC.
2.

Title VII

Clark’s Title VII claim against OSC is based on “[t]he acts of the
defendants in discriminating against [her] because of her religion, sex, age,
and national origin and ethnicity.” (Compl. ¶ 184.) Although OSC admits
that the nature of Clark’s Title VII claim is unclear, it construes it as one
alleging a hostile work environment,18 and argues that it is entitled to
summary judgment on this claim because the offensive comments
allegedly made are insufficiently severe or pervasive to reach the level of a
hostile work environment. (Dkt. No. 145, Attach. 37 at 14-16.)
Where a discrimination claim is predicated on the existence of a
hostile work environment, the plaintiff must demonstrate that the conduct in
question: “(1) is objectively severe or pervasive—that is, creates an
environment that a reasonable person would find hostile or abusive; (2)
creates an environment that the plaintiff subjectively perceives as hostile or
abusive; and (3) creates such an environment because of the plaintiff’s . . .

18

Indeed, in her complaint, Clark notes that working at OSC was a “hostile work
environment.” (Id. ¶ 78.) In her deposition, Clark also expressed confusion about her Title VII
claim. (Dkt. No. 145, Attach. 34 at 204-05.) She also admits that the facts she claims
establish her Title VII claim are virtually identical to the facts she claims support her FMLA
claim. (Id.)

17

protected characteristic.” Robinson v. Harvard Prot. Servs., 495 F. App’x
140, 141 (2d Cir. 2012) (internal quotation marks omitted). In determining
whether a hostile work environment claim has been established, “courts
should examin[e] the totality of the circumstances, including: the frequency
of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with the victim’s [job] performance.” Rivera v.
Rochester Genesee Reg’l Transp. Auth., 702 F.3d 685, 693 (2d Cir. 2012)
(internal quotation marks and citation omitted).
In support of her Title VII claim, Clark primarily argues that she was
the victim of ethnic slurs in the workplace. For example, Clark claims that,
“[i]n January 2007 . . . Moller, a coworker and union member stated . . . to
me, ‘All Italians are stupid.’” (Compl. ¶ 64; Dkt. No. 145, Attach. 34 at 6364.) She further claims that, “[o]n several occasions . . . Moller posted
demeaning signs addressed to and directed at me, over a basket where I
delivered mail. A sign stating: ‘How stupid can you get,’ was once placed
there. Other signs included, ‘What’s it all about Alfie???’” (Compl. ¶ 66;
Dkt. No. 145, Attach. 34 at 62-63; Dkt. No. 189 at 1-2.) Clark also alleges
that, “[o]n February 1, 2007, . . . Moller while engaged in conversation said
18

loud enough for me to hear, as I sat in my cubicle, ‘What do you expect?
All Italians are stupid.’” (Compl. ¶ 67; Dkt. No. 145, Attach. 34 at 63-64.)
After reporting the slurs, Clark claims that she witnessed McCauslin and
Moller laughing, and gesturing “‘F*** Y**’”, in Italian.” (Id. Compl. ¶¶ 73-74;
Dkt. No. 145, Attach. 34 at 63-64.) After this incident, an email was
circulated to employees advising them of the importance of being
considerate and respectful of their colleagues’ pride in their heritage. (Dkt.
No. 145, Attach. 7 ¶ 23.) After reviewing the record, the court is not
satisfied that these two isolated incidents of ethnic slurs rise to the level of
a severe and pervasive hostile work environment based on Clark’s
ethnicity, or any other protected characteristic.
Aside from the incidents of “ethnic slurs,” Clark only alleges a series
of events that she claims constitute “harassment,” including a 2007
incident in which Mary Kent screamed obscenities at her and repeatedly
called her a “nut.” (Compl. ¶ 93; Dkt. No. 189 at 2, 7, 13, 15.) The other
incidents of harassment of which Clark complains simply are not related to
a protected characteristic, and therefore do not satisfy the third element
required to prove a hostile work environment in violation of Title VII. See
Robinson, 495 F. App’x at 141. Accordingly, OSC is entitled to summary
19

judgment on Clark’s Title VII claims.
3.

FMLA

The State defendants argue that they are entitled to summary
judgment on Clark’s FMLA claims. (Dkt. No. 145, Attach. 37 at 16-18.)
Specifically, they contend that Clark cannot prove an inference of
retaliatory intent, or, alternatively, that OSC has established nondiscriminatory reasons for any alleged adverse employment action. (Id. at
17-18.) The court agrees.
FMLA retaliation claims are analyzed under the familiar burdenshifting framework established by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Potenza v. City of
N.Y., 365 F.3d 165, 168 (2d Cir. 2004). To establish a prima facie case of
FMLA retaliation, a plaintiff must establish that: (1) “[s]he exercised rights
protected under the FMLA,” (2) “[s]he was qualified for h[er] position,” (3)
“[s]he suffered an adverse employment action,” and (4) “the adverse
employment action occurred under circumstances giving rise to an
inference of retaliatory intent.” Id.
A presumption of retaliation is created if the plaintiff satisfies her
initial burden, and the burden of production then shifts to the defendant to
20

state a legitimate, non-discriminatory reason for the adverse employment
action. See Tomici v. N.Y.C. Dep’t of Educ., 910 F. Supp. 2d 472, 490
(E.D.N.Y. 2012) (citing, inter alia, Farias v. Instructional Sys., 259 F.3d 91,
98 (2d Cir. 2001)). “The employer’s burden is merely one of production,
not persuasion.” Id. (internal quotation marks and citations omitted). If the
defendant meets its burden of production, “the presumption of
discrimination drops out” and the burden then shifts back to the plaintiff “to
establish by a preponderance of the evidence that the employer’s stated
reason was merely a pretext for discrimination.” Id. (internal quotation
marks and citations omitted).
Here, Clark went on approved FMLA leave from October 26, 2006
through December 3, 2006. (State Defs.’ SMF ¶ 20; Dkt. No. 145, Attach.
34 at 21.) Clark claims that when she returned, many of her job duties,
which included ordering and delivering folders, were eliminated. (Dkt. No.
145, Attach. 34 at 51.)19 Additionally, on March 1, 2007, Clark was placed
on involuntary leave pursuant to § 72.5 of the Civil Service Law. (State
Defs.’ SMF ¶ 54.) With respect to Clark’s job duties, the State defendants
19

Clark also claims that, upon her return from FMLA leave, there was a lot of hostility
toward her from her co-workers because she didn’t have as much work to do as she did before
she went on FMLA leave. (Dkt. No. 145, Attach. 34 at 54-58.)

21

contend that Clark has failed to demonstrate an inference of a retaliatory
intent because this new system was in place prior to Clark’s FMLA leave.
(Dkt. No. 145, Attach. 37 at 17-18.) Clark, however, disputes that this new
system was in place prior to her FMLA leave. (Dkt. No. 189 at 24.) With
respect to Clark’s involuntary leave, the State defendants further assert
that Clark cannot establish an inference of retaliatory intent because there
was nearly a three-month gap between her return from FMLA leave and
her placement on involuntary leave, and, in any event, they have
established non-discriminatory reasons for placing her on leave. (Dkt. No.
145, Attach. 37 at 17-18.)
Assuming, without deciding, that Clark has met her prima facie
burden,20 the court is satisfied that the State defendants have established
non-discriminatory reasons for the adverse employment actions, and that
Clark has not proven pretext. Indeed, with respect to Clark’s job duties,
Clark has only showed a temporal nexus between the adverse action and
her FMLA leave, while the State defendants have offered a declaration

20

The court notes that Clark’s evidence in support of a prima facie case is weak at
best. Her burden at this first step, however, is minimal. See Schnabel v. Abramson, 232 F.3d
83, 87 (2d Cir. 2000) (noting that “the burden of proof that must be met to establish a prima
facie case is minimal”) (internal alterations and quotation marks omitted).

22

from one of her managers, Normile, that shows that OSC management
was simply piloting a new system for ordering and delivering folders to the
examiners. (Dkt. No. 145, Attach. 17 ¶ 19); see Rosario v. Western Reg’l
Off Track Betting, No. 08-CV-6546T, 2013 WL 4094510, at *7 (W.D.N.Y.
Aug. 13, 2013) (“[T]emporal proximity alone is insufficient to carry a
plaintiff’s burden of proof beyond the prima facie stage.” (quoting Meggison
v. Paychex, Inc., 679 F. Supp. 2d 379, 390 (W.D.N.Y. 2010))). The State
defendants also have shown that Clark’s job duties were changed to keep
her closer to her cubicle due to the documented hostility between Clark
and some of her coworkers. (Dkt. No. 145, Attach. 17 ¶¶ 20-22.)
Similarly, the State defendants have shown that Clark was placed on
involuntary leave because of her erratic and disruptive behavior, not
because of her FMLA leave, from which Clark had returned three months
prior to being placed on involuntary leave. (Id. ¶¶ 4-18); see Rosario, 2013
WL 4094510, at *7 (holding that, even if the plaintiff could state a prima
facie case of unlawful retaliation, the defendant proffered legitimate, nondiscriminatory reasons for termination, including the facts that coworkers
complained about the plaintiff’s behavior and the plaintiff’s actions
disrupted business operations). Accordingly, because the State
23

defendants have established non-discriminatory reasons for Clark’s
change in job duties and involuntary leave, they are entitled to summary
judgment with respect to Clark’s FMLA claims.
4.

Section 1983 Claims

The State defendants argue that Clark’s § 1983 claims, alleging
violations of her First and Fourteenth Amendment rights, must be
dismissed. (Dkt. No. 145, Attach. 37 at 18-20.) The court agrees.
As an initial matter, the State defendants argue, and the court
agrees, that to the extent that Clark attempts to assert § 1983 claims
against OSC—an arm of the state—or the individual State defendants in
their official capacities, such claims are barred by the Eleventh
Amendment. (Id. at 18-19); see Dube v. State Univ. of N.Y., 900 F.2d 587,
594-95 (2d Cir. 1990) (recognizing that § 1983 does not abrogate the
states’ Eleventh Amendment immunity); Brown v. N.Y. State Dep’t of Corr.
Servs., 583 F. Supp. 2d 404, 411 (W.D.N.Y. 2008). Accordingly, Clark’s
§ 1983 claims against OSC and the individual State defendants in their
official capacities are dismissed.
To the extent that Clark seeks to pursue § 1983 claims against the
individual defendants in their individual capacities, such claims also fail.
24

First, with respect to Clark’s Fourteenth Amendment due process claim,
which is based on her involuntary leave and the subsequent § 72 hearing,
(Compl. ¶ 188), there can be no due process violation “so long as the State
provides a meaningful postdeprivation remedy.” Hellenic Am.
Neighborhood Action Comm. (HANAC) v. City of N.Y., 101 F.3d 877, 880
(2d Cir. 1996) (citation omitted). In New York State, C.P.L.R. article 78
proceedings provide an avenue of postdeprivation redress that satisfies
due process requirements. See Vargas v. City of N.Y., 377 F.3d 200, 208
(2d Cir. 2004) (“[A]n Article 78 proceeding . . . provides a meaningful
remedy where violations of due process by a . . . governmental entity are
alleged.” (citation omitted)); HANAC, 101 F.3d at 881 (“An Article 78
proceeding is adequate for due process purposes even though the
petitioner may not be able to recover the same relief that [s]he could in a
§ 1983 suit.” (citation omitted)). “[I]t matters not whether a plaintiff actually
avails [her]self of the state court post-deprivation process. So long as that
process is available, a due process claim must be dismissed.” Longo v.
Suffolk Cnty. Police Dep’t, 429 F. Supp. 2d 553, 560 (E.D.N.Y. 2006)
(citations omitted).
Although Clark now claims that she “demanded . . . an Article 78
25

[proceeding],” (Dkt. No. 189 at 16), the court has already found that Clark
“failed, without legitimate exception, to pursue an Article 78 proceeding.”
Clark, 798 F. Supp. 2d at 401. In that case, the court noted that Clark
admitted that she never availed herself of Article 78’s auspices, but
asserted that “an [A]rticle 78 appeal would be futile as [her] constitutional
rights have been violated and her property was taken away with[out] the
due process of law,” that “[a]n Article 78 would be an action in futility,” and
that she “is not required to pursue any remedies she believes are
ineffective.” Id. (internal quotation marks and citations omitted). As this
court has already concluded, “Clark’s bald, conclusory assertions of futility
do not excuse her failure to exhaust State remedies.” Id. at 402. Thus,
Clark’s due process claims against the individual State defendants must
also be dismissed.
Next, with respect to Clark’s First Amendment claim, though difficult
to comprehend, the court is satisfied that Clark has failed, in any of her
submissions, to explain how any of the State defendants violated her First
Amendment rights. To prevail on her free exercise claim, Clark must
“show that a state action sufficiently burdened h[er] exercise of religion.”
Genas v. State of N.Y. Dep't of Corr. Servs., 75 F.3d 825, 831 (2d Cir.
26

1996) (citing Sherbert v. Verner, 374 U.S. 398, 403 (1963)). At a
minimum, an employee must allege that the state action discriminated
“against some or all religious beliefs or regulates or prohibits conduct
because it is undertaken for religious reasons.” Church of the Lukumi
Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 532 (1993).
Here, Clark alleges that, by “requiring [her] to undergo testing and
examination which violates her religious beliefs in order to maintain her
employment” violated her First Amendment rights. (Compl. ¶ 185.) She
further claims that her “adherence to [her] religious beliefs, including
Christian prayers, [her] being subjected to psychometric testing which
violated [her] religious beliefs of confessing sins to anyone but God
weighed against [her] during the proceedings.”21 (Id. ¶ 156.) After
reviewing the record, Clark has not put forth any explanation regarding the
substance of her religious beliefs or provided any evidence as to how any

21

In her opposition, Clark contends that Wapner’s examination “asked questions that
violate her religious beliefs,” and during the examination, Wapner “showed [her] pornographic
pictures, wherein a woman was lying on a bed with her private body parts exposed, and a man
standing next to a table with books on it.” (Dkt. No. 189 at 36.) Clark also claims that there
“was a picture on the wall, and a round table with books on it,” and that “Wapner violated Clark
with these pictures that were later referred to a[s] the TAT test.” (Id.) Clark simply has failed
to explain how the examination discriminated against her Christian religious beliefs. Further,
Clark consented to this examination by signing a consent form, which listed the type of test
she would undergo. (Dkt. No. 151, Attach. 8 at 2.)

27

of the defendants’ conduct burdened her exercise of religion. Importantly,
Clark fails to proffer any basis from which to infer that any of the
defendants discriminated against her based on her or their religious
beliefs. Accordingly, Clark’s First Amendment claims are also dismissed.
B.

Union Defendants
Clark also asserted ADA, ADEA, Title VII, and NYSHRL claims

against the Union defendants. (Compl. ¶ 1.) Additionally, Clark purports to
assert § 1983 claims against the Union defendants for violation of her First
and Fourteenth Amendment rights. (Id.)
1.

ADA, ADEA, and Title VII

Among other things, the Union defendants contend that Clark’s ADA,
ADEA, and Title VII claims must be dismissed because Clark failed to
demonstrate a discriminatory motive. (Dkt. No. 141, Attach. 7 at 9-12.)
The court agrees.
Discrimination by unions is prohibited by Title VII, which makes it “an
unlawful employment practice for a labor organization . . . to exclude or to
expel from its membership, or otherwise to discriminate against, any
individual because of his race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e–2(c)(1); see Yerdon v. Henry, 91 F.3d 370, 375 (2d Cir.
28

1996) (finding that a labor union could be liable under Title VII). A Title VII
claim brought against a union, however, is evaluated differently than such
a claim against an employer. To succeed on her claim, Clark first must
show that “the union breached its duty of fair representation to [her].”
Oparji v. United Fed’n of Teachers, 418 F. Supp. 2d 139, 147 (E.D.N.Y.
2006). A union breaches its duty of fair representation when (a) “its
conduct toward a member . . . is arbitrary, discriminatory, or in bad faith,”
Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 44 (1998), and (b) the
alleged misconduct injures the plaintiff, Spellacy v. Airline Pilots
Assoc.-Int’l, 156 F.3d 120, 130 (2d Cir. 1998). If Clark establishes a
breach of the duty of fair representation, she then “must show some
indication that the union’s actions were motivated by unlawful
discrimination or retaliation.” Oparji, 418 F. Supp. 2d at 146. The analysis
is virtually the same for alleged violations of the ADA and ADEA. See
Gerena v. Local 670 Stationary Eng’rs & Bldg. Servs. Union, No. 12-Civ7484, 2013 WL 3486976, at *4 (S.D.N.Y. July 10, 2013); Kazolias v. IBEW
LU 363, No. 09 Civ. 7222, 2012 WL 6641533, at *28 (S.D.N.Y. Dec. 11,
2012).
Here, even if the court assumes, without deciding, that the Union
29

defendants breached their duty of fair representation, Clark has failed to
prove that they acted with a discriminatory motive. First, with respect to
her Title VII and ADEA claim, while Clark conclusorily alleges that she was
discriminated against with respect to her religion, sex, age, national origin
and ethnicity, (Compl. ¶¶ 184, 191), she has come forth with absolutely no
evidence to suggest that the Union defendants discriminated against her
on any of these bases. Moreover, the complaint itself is devoid of any
factual allegations elucidating how the Union defendants discriminated
against Clark on any of these bases.
Further, with respect to Clark’s ADA claim, while Clark alleges that
“CSEA stated that until I can proof that I no longer have PTSD, they will not
represent me,” (Compl. ¶ 28), that she was “harassed . . . because [she is]
a person with disabilities,” (id. ¶ 80), and that CSEA “refused to represent
[her] based upon [her] . . . reasonable accommodation requests,” (id.
¶¶ 131-33), she has again come forth with no evidence supporting these
allegations. Indeed, with respect to Clark’s reasonable accommodation
requests, as discussed above, see supra Part II.A.1, all of her requests
were either addressed by OSC or abandoned by Clark.
Accordingly, because Clark has failed to establish a discriminatory
30

motive, her Title VII, ADA, and ADEA claims against the Union defendants
are dismissed.
2.

Section 1983 Claims

The Union defendants next argue that Clark’s § 1983 claims must be
dismissed. (Dkt. No. 141, Attach. 7 at 17.) Specifically, they contend that
CSEA is not a “person” under § 1983 and, therefore, is not amenable to
suit. Id. The court agrees.
It is axiomatic that, in order to state a claim pursuant to 42 U.S.C.
§ 1983, a plaintiff must allege: “(1) that some person has deprived him of a
federal right, and (2) that the person who has deprived him of that right
acted under color of state . . . law.” Velez v. Levy, 401 F.3d 75, 84 (2d Cir.
2005) (quoting Gomez v. Toledo, 446 U.S. 635, 640 (1980) (internal
quotations omitted); see Pflaum v. Town of Stuyvesant, No. 1:11-CV-0335,
2014 WL 295759, at *5 (N.D.N.Y. Jan. 27, 2014). In affirming a lower court
decision, the Second Circuit has agreed that the “[CSEA] is not a ‘person’
as is required for suits brought pursuant to § 1983.” Rivas v. N.Y. State
Lottery, 53 F. App’x 176, 177 (2d Cir. 2002) (citing Fitzpatrick v. Wert, 432
F. Supp. 601, 602 (W.D.N.Y. 1977) and Monell v. Dep’t of Soc. Servs., 532
F.2d 259, 262-63 (2d Cir. 1996)). Accordingly, Clark’s § 1983 claims
31

against CSEA are dismissed.22
C.

Wapner
The only claims remaining against Wapner are Clark’s § 1983 claims

for violation of her First, Fourth, and Fourteenth Amendment Rights.23
(Compl. ¶¶ 1, 185-87,188; Dkt. No. 53 at 6-7.) Wapner contends that he is
entitled to summary judgment on all of Clark’s claims. (Dkt. No. 152.)
Specifically, he argues, and the court agrees, that each of Clark’s claims
fail on their merits. (Id. at 9-13.)
First, for the reasons discussed above, see supra Part IV.A.4, Clark’s
First and Fourteenth Amendment claims fail. Second, with respect to her
22

To the extent that Clark asserts § 1983 claims against the individual CSEA
defendants, Unser, Lawyer, and Donahue, alleging violations of her First and Fourteenth
Amendment rights, the court concludes that these claims also fail for the reasons articulated
above, see supra Part IV.A.4.
23

In his memorandum of law, Wapner notes that Clark appears to have alleged some
type of conspiracy claim, by which Wapner received “11.52 years of service credit that he did
not pay for and was not entitled to, to keep [Clark] out of work.” (Compl. ¶ 146; Dkt. No. 152
at 7-9.) This claim is unavailing. In order to prove a § 1983 conspiracy claim, a plaintiff must
allege: “(1) an agreement between a state actor and a private party; (2) to act in concert to
inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing
damages.” Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002). Presumably,
the alleged agreement between Wapner and OSC is demonstrated by Wapner being granted
11.52 years of service credit. (Dkt. No. 189 at 35-36.) Clark, however, has submitted no
evidence to show that Wapner was awarded pension credits as a result of finding Clark unfit to
work. Instead, Wapner has submitted evidence demonstrating that the credits were awarded
to him on the date of his retirement—three years prior to Wapner’s examination of Clark—and
that he ceased accruing pension credits in 1994, thirteen years before his examination of
Clark. (Dkt. No. 151, Attach. 7 at 2.) Accordingly, because there is no evidence of an
agreement between Wapner and OSC to deprive Clark of a constitutional right, Clark’s
conspiracy claim is dismissed.

32

Fourth Amendment claim, Clark alleges that Wapner’s psychological
examination “subjected [her] to unlawful search and seizure” and
constituted a “violent intrusion of [her] body and mind.” (Compl. ¶¶ 128,
155; Dkt. No. 189 at 32.) The court is unaware of any cases in this Circuit
that discuss whether a psychological examination is an unreasonable
search and seizure under the Fourth Amendment. However, the Seventh
Circuit has held that a psychological examination was not an unreasonable
search and seizure when an employee of the Indiana Department of
Corrections was told that, in order to keep her job, she would have to
submit to a psychological examination. See Greenawalt v. Indiana Dep’t of
Corr., 397 F.3d 587, 590 (7th Cir. 2005) (Posner, J.) (“[W]e do not think
that the Fourth Amendment should be interpreted to reach the putting of
questions to a person, even when the questions are skillfully designed to
elicit what most people would regard as highly personal private
information.”) The court is persuaded by Judge Posner’s analysis in
Greenawalt, and accordingly, holds that Clark was not subjected to an
unreasonable search or seizure. See also Coleman v. Dist. of Columbia,
828 F. Supp. 2d 87, 93 (D.D.C. 2011). Thus, Clark’s Fourth Amendment
claim is also dismissed.
33

D.

State Law Claims
Clark’s only remaining claims are her NYSHRL claims against the

State and Union defendants. (Compl. ¶¶ 1, 189-90.) Having dismissed all
of Clark’s federal claims, however, the court declines to exercise
supplemental jurisdiction over the state law claims. “In the absence of
original federal jurisdiction, the decision of whether to exercise jurisdiction
over pendent state law claims is within the court’s discretion.” Butler v.
LaBarge, No. 9:09-CV-1106, 2010 WL 3907258, at *3 (N.D.N.Y. Sept. 30,
2010) (citing Kolari v. N.Y. Presbyterian Hosp., 455 F.3d 118, 121-22 (2d
Cir. 2006)). When all federal claims have been eliminated before trial, the
balance of factors in deciding whether to exercise jurisdiction over
remaining state law claims leans toward dismissal. Kolari, 455 F.3d at
122. Accordingly, the court declines jurisdiction over any state law claims.
E.

Motion For Sanctions
After the Union defendants filed their motion for summary judgment,

Clark filed two nearly identical motions requesting that the Union
defendants be sanctioned pursuant to Local Rule 8.1 for filing various
exhibits, which Clark claims violate her privacy. (Dkt. Nos. 142, 143.)
Although it is unclear to which exhibits Clark objects, she does appear to
34

object to the Union defendants’ submission of certain medical records and
employment history. (Dkt. No. 143 at 2.) The Union defendants
responded and stated that, in accordance with N.D.N.Y. L.R. 8.1, they took
care to redact certain documents and that Clark’s medical conditions have
been put squarely in issue. (Dkt. No. 144 at 1.) Although the court has
discretion to sanction parties for violating the local rules, see N.D.N.Y. L.R.
1.1(d); Morales v. N.Y. State Dep’t of Labor, 865 F. Supp. 2d 220, 256-57
(N.D.N.Y. 2012), the court has reviewed the Union defendants’
submissions and finds no basis on which to impose sanctions.
Accordingly, Clark’s motions for sanctions, (Dkt. Nos. 142, 143), are
denied.
F.

Amendment
Upon a thorough review of Clark’s response, it appears that she also

requests leave to amend her complaint. (Dkt. No. 189 at 42.)
Where a scheduling order has been entered, as there has here, (Dkt.
No. 59), the lenient standard under Fed. R. Civ. P. 15(a), which provides
that leave to amend “shall be freely given,” must be balanced against the
requirement under Rule 16(b) that the court’s scheduling order “shall not
be modified except upon a showing of good cause,” Fed. R. Civ. P. 16(b).
35

See Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003). “[A]
finding of ‘good cause’ depends on the diligence of the moving party.”
Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000)
(citations omitted).
Here, a uniform pretrial scheduling order was entered in this case on
November 17, 2010. (Dkt. No. 59.) Although the scheduling order was
amended several times throughout the course of this litigation, (Dkt. Nos.
69, 73, 78, 103, 105, 130), the original January 9, 2011 deadline for
amendment of pleadings was never altered. At this point—over three
years after the initial scheduling order was entered and nearly one year
after the last amendment to the scheduling order was made—Clark’s
hollow request to amend her complaint is denied, as she has failed to show
good cause. Furthermore, permitting Clark to amend at this very late stage
in the litigation—after the close of discovery, the filing of two sets of
dispositive motions, (Dkt. Nos. 26, 30, 36, 105, 141, 145, 151), and over
four years of tortured litigation—would result in substantial prejudice to
defendants. See Greenshields Sec., Inc. v. Lau, 825 F.2d 647, 653 n.6
(2d Cir. 1987) (noting that, regarding the Fed. R. Civ. P. 15(a)(2) standard,
“[a] motion to amend should be denied only for such reasons as undue
36

delay, bad faith, futility of the amendment, and perhaps most important, the
resulting prejudice to the opposing party.” (internal quotation marks and
citation omitted)). Accordingly, Clark’s request to amend her complaint is
denied.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the Union defendants’ motion for summary judgment
(Dkt. No. 141) is GRANTED; and it is further
ORDERED that the State defendants’ motion for summary judgment
(Dkt. No. 145) is GRANTED; and it is further
ORDERED that Wapner’s motion for summary judgment (Dkt. No.
151) is GRANTED; and it is further
ORDERED that Clark’s complaint (Dkt. No. 1.) is DISMISSED; and it
is further
ORDERED that Clark’s motions for sanctions (Dkt. Nos. 142, 143)
are DENIED; and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this Memorandum-

37

Decision and Order to the parties by regular and certified mail.
IT IS SO ORDERED.
March 3, 2014
Albany, New York

38