Hamzik v. Office for People with Developmental Disabilities et al

Filing 53

MEMORANDUM-DECISION & ORDER that Defendants' motion to dismiss (Dkt. No. 24) is GRANTED; Plaintiff's cross-motion for leave to file a second amended complaint (Dkt. No. 40) is DENIED as futile; All of plaintiff's federal causes of action are DISMISSED with prejudice; and The remaining state law causes of action are DISMISSED without prejudice. The Clerk of the Court is directed to enter judgment accordingly. Signed by Judge David N. Hurd on 5/15/2012. (see)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
------------------------------------JOHN J. HAMZIK,
Plaintiff,
-v-

3:11-CV-73

OFFICE FOR PEOPLE WITH DEVELOPMENTAL
DISABILITIES; BROOME DEVELOPMENTAL
CENTER; COLEEN FADDEN, Director of
Personnel (BDC), in her official and individual
capacities; RICHARD E. LEE, JR., Assistant Director
of Personnel (BDC), in his official and individual
capacities; SONYA ROBINSON, Personnel
Administrator, Personnel Department (BDC), in her
official and individual capacities; DAVID HALL,
Assistant Worker's Compensation Administrator
(BDC), in his official and individual capacities; MARK
SALKO, Developmental Aide III (BDC), in his official
and individual capacities; JEFF KELSEY,
Developmental Aide II House Director (Glenwood
House), in his official and individual capacities; and
JAMES DRANKOWSKI, Developmental Aide I, in his
official and individual capacities,
Defendants.
------------------------------------APPEARANCES:

OF COUNSEL:

JOHN J. HAMZIK
Plaintiff, Pro Se
19 Lewis Street
Johnson City, NY 13790
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Attorney for Defendants
The Capitol
Albany, NY 12224
DAVID N. HURD
United States District Judge

GREGORY J. RODRIGUEZ, ESQ.
Ass't Attorney General

MEMORANDUM–DECISION and ORDER
I. INTRODUCTION
Plaintiff John J. Hamzik ("plaintiff" or "Hamzik") initiated this action on January 20,
2011. On March 17, 2011, he filed an amended complaint against defendants Office for
People with Developmental Disabilities ("OPWDD"); Broome Developmental Center
("BDC")1; Coleen Fadden, Director of Personnel at BDC ("Fadden"); Richard E. Lee, Jr.,
Assistant Director of Personnel at BDC ("Lee"); Sonya Robinson, Personnel Administrator at
BDC ("Robinson"); David Hall, Assistant Worker's Compensation Administrator at BDC
("Hall"); Mark Salko, Developmental Aide III at BDC ("Salko"); Jeff Kelsey, Developmental
Aide II at Glenwood House ("Kelsey"); and James Drankowski, Developmental Aide I
("Drankowski") (collectively "defendants").
Plaintiff brings numerous causes of action alleging violations of federal and state law.2
Specifically, plaintiff brings equal protection, due process, and retaliation claims pursuant to
42 U.S.C. § 1983; discrimination claims pursuant to 42 U.S.C. § 2000e ("Title VII"); claims
alleging violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.
§§ 621–634, and Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C.

1

As the BDC is part of, and controlled by, the OPW DD, these entities will be consolidated and
referred to collectively as OPW DD.
2
Although plaintiff delineates eighteen causes of action with headings, there appears to be no fewer
than forty-two total claim s asserted throughout the sixty-one-page am ended com plaint. For exam ple, under
the heading "FIRST CAUSE OF ACTION DISCRIMINATION DUE TO SEX," plaintiff brings an equal
protection claim via 42 U.S.C. § 1983, a discrim ination claim pursuant to 42 U.S.C. § 2000e, and a state law
claim under New York Hum an Rights Law § 296. Am . Com pl., 31.

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§§ 12101–123003; and pendent state law claims. Plaintiff seeks declaratory, injunctive, and
monetary relief.
On May 9, 2011, defendants filed a motion to dismiss the amended complaint
pursuant to Federal Rules of Civil Procedure 12(b)(1) and/or 12(b)(6) ("Rule ___"). Plaintiff
responded to this motion, and defendants replied.4 On October 25, 2011, Hamzik filed a
cross-motion seeking leave to file a second amended complaint pursuant to Rule 15(a)(2).
This motion has also been fully briefed. The motions were considered on submit.
II. FACTUAL BACKGROUND
The following pertinent facts, taken from the proposed second amended complaint
and documents incorporated by reference therein, are accepted as true for purposes of the
motion to dismiss. BDC is operated by the state of New York, through OPWDD, and is
comprised of several residential units located in Binghamton, New York. The individually
named defendants are all employees at BDC. Plaintiff, a white male in his mid-fifties, began
working as a part-time developmental aide at BDC on June 8, 2006.
In December 2009 Robinson offered Hamzik a transfer from his part-time position at
Glenwood House to a full-time position in the 5A Unit with a start date of January 14, 2010.
Hamzik accepted. The following day Robinson advised plaintiff that his start date had been
moved to January 28, 2010, in order to allow Anita Elbrecht ("Elbrecht"), a female part-time
developmental aide with less seniority than Hamzik, to start a full-time position in the 5A Unit
on January 14, 2010. Plaintiff filed a grievance pursuant to the applicable collective
3

Plaintiff also attem pts to bring claim s under "Title V" of the ADA. However, there is no Title V in the
ADA. Therefore, all of plaintiff's ADA claim s are assum ed to be brought pursuant to Title I.
4

This action was subsequently reassigned after Senior Judge McAvoy recused him self on July 14,

2011.
- 3 -

bargaining agreement. With the assistance of a union representative, an agreement was
reached through which Hamzik would either be transferred to the full-time position before
Elbrecht or they would be transferred on the same date.
Nonetheless, Elbrecht was transferred one week ahead of Hamzik at the direction of
Fadden, Lee, and Robinson. This transfer took place while plaintiff was on vacation. Plaintiff
began working full-time in the 5A Unit on January 28, 2010. Lee refused to adjust plaintiff's
personnel file to reflect an earlier starting date and similarly denied his request for
compensation for the full-time pay he missed as a result of the belated transfer. Plaintiff
subsequently filed another grievance regarding this alleged loss of seniority status.
On January 30 and 31, 2010, plaintiff suffered injuries to his back while working in the
5A Unit. On February 2, 2010, he approached Kelsey, the House Director at Glenwood
House, and asked to be reassigned to that facility. Plaintiff desired a transfer back to
Glenwood House because such an assignment was less physically demanding on his back
and arthritic knee. Kelsey advised that plaintiff's former position had already been filled by
David Knebis ("Knebis"), a developmental aide who is significantly younger than plaintiff and
had less seniority at BDC. Kelsey had not posted this vacancy in accordance with the
collective bargaining agreement and told plaintiff that he "can give it to whom I want!"
Proposed Second Am. Compl., ¶ 57. Plaintiff then complained to Robinson, who advised
that in order to return to his former position, or any other position at BDC, he must bid on it
when it is posted as available.
On February 12, 2010, plaintiff filed a grievance alleging Kelsey had "illegally gifted"
his former position to Knebis. Id. ¶ 131. Four days later Kelsey "attempted to intimidate and
harass the Plaintiff" by calling him twice and threatening to write him up for insubordination.
- 4 -

Id. ¶¶ 133–37. Plaintiff immediately reported these threats to Lee as well as to a union
representative and the grievance chairman, Michael Stroeman. Plaintiff never heard from
Kelsey again. Also on February 16, 2010, plaintiff received a phone call from Drankowski,
who claimed that Hamzik's grievance against Kelsey caused BDC to rescind an offer of fulltime employment to his girlfriend, Tammy Mitchell ("Tammy"). Kelsey had reportedly falsified
personnel documents to help Tammy obtain a full-time position and, due to plaintiff's
grievance, Tammy's appointment was now being investigated along with other appointments
made by Kelsey.
Also in early 2010, Lee, Hall, and Salko granted a three-month extension of "light
duty" to Kristen Mitchell ("Kristen")—a female developmental aide in her twenties—after she
experienced complications during her pregnancy. Id. ¶ 102. However, defendants refused to
provide plaintiff, who was temporarily disabled at the time, with any more than sixty days of
light duty.
On June 10, 2010, plaintiff transferred to the Prospect 2 House, where he agreed to
work for a binding period of six months. On that same day, defendants posted five vacant
positions at the Glenwood House. Fadden refused to permit plaintiff to bid on any of these
positions as he was "locked-in" to his assignment at the Prospect 2 House. Id. ¶ 18. At the
same time, however, Fadden allowed a younger African-American developmental aide,
Matthew Darden ("Darden"), to bid on one of the open Glenwood House positions even
though he was "locked into" a similar six-month assignment. Id. ¶ 20. Darden had also been
"gifted" a full-time position in the 4E Unit by Salko without bidding on the position as is
required by the collective bargaining agreement. Id. ¶ 79.

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On July 4, 2010,5 plaintiff sustained a work-related injury to his left knee and received
worker's compensation for approximately six weeks. As a result of this injury, Hamzik again
requested a transfer to Glenwood House. Fadden denied this request and again refused to
allow plaintiff out of his six-month commitment at Prospect 2 House. Although not
specifically stated in his complaint, plaintiff apparently remains employed at the BDC.
Plaintiff filed one formal charge with the Equal Employment Opportunity Commission
("EEOC") during the relevant time period. On April 6, 2010, he filed a charge alleging gender
discrimination in violation of Title VII. See Fadden Aff., May 9, 2011, Ex. G, 17.6 Plaintiff
specifically complained of the incident involving his and Elbrecht's transfers in January 2010
and only checked the box for "sex" discrimination. Id. On May 26, 2010, plaintiff sent a letter
to EEOC investigator Maureen Kielt ("Kielt") asserting that arbitration would be futile and
"enclosing additional claims" against defendants that had not been included in the EEOC
charge. Proposed Second Am. Compl., Ex. 1, 2. The letter outlined only one additional
claim; to wit, the alleged gender discrimination related to the preferential treatment afforded
to Kristen.
On August 8, 2010, Lee sent Kielt a written response to plaintiff's EEOC charge. This
letter only addressed the claim, outlined in the EEOC charge, alleging gender discrimination
and loss of seniority status related to Elbrecht's transfer. See Proposed Second Am. Compl.,
Ex. 7, 36. On September 14, 2010, Hamzik sent another letter to Kielt in which he wrote: "I
5

In both the am ended com plaint and the proposed second am ended com plaint, plaintiff alleges that
this injury occurred on July 4, 2011. However, this m ust necessarily be a typographical error since the
am ended com plaint was filed on March 17, 2011, and he discusses his six-m onth assignm ent to the Prospect
2 House, which occurred in 2010, in the sam e portion of the pleading. It is therefore assum ed that this injury
occurred on July 4, 2010.
6

The pagination corresponds to the page num bers as assigned on CM/ECF. This convention will be
used for all citations to exhibits.
- 6 -

have noticed that my second set of claims have not been fettered into this inquiry."
Proposed Second Am. Compl., Ex. 2, 10. Plaintiff identified his "second set of claims" as
those outlined in the May 26, 2010, letter. Id. He then set out a "third set of claims" related
to, inter alia, Kelsey's appointment of Knebis to his former position in Glenwood House and
Salko's appointment of Darden to a position in the 4E Unit. Id. at 12.
On October 6, 2010, plaintiff sent Kielt another letter in which he referenced a recent
"Step-Two grievance hearing" between himself, union representatives, and agents of the
state of New York. Proposed Second Am. Compl., Ex. 6, 34. This letter only discussed the
claim relating to Elbrecht's transfer to the 5A Unit. Plaintiff was issued a "Notice of the Right
to Sue Letter" on October 22, 2010, after the EEOC found no evidence on which to base a
gender discrimination claim against defendants. Proposed Second Am. Compl., Ex. 11, 40.
III. DISCUSSION
Where a plaintiff seeks to amend his complaint while a motion to dismiss is pending, a
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 amended
complaint." Roller Bearing Co. of Am., Inc. v. Am. Software, Inc., 570 F. Supp. 2d 376, 384
(D. Conn. 2008). As Hamzik does not seek to add new defendants in the proposed second
amended complaint, and since defendants had sufficient opportunity to respond to the
proposed second amended complaint, the merits of the motion to dismiss will be considered
in light of the proposed second amended complaint.7 Indeed, if the proposed second

7

Defendants essentially rely on the argum ents m ade in their original m otion to dism iss. See Def.'s
Mem . in Opp'n to Pl.'s Mot., 4 ("For the sake of judicial econom y, defendants refer the Court to said pending
m otion [to dism iss] and subm it that for all of the sam e reasons fully addressed and briefed therein, plaintiff's
proposed second am ended com plaint sim ilarly cannot withstand a m otion to dism iss pursuant to Rule
(continued...)
- 7 -

amended complaint cannot survive the motion to dismiss, then plaintiff's cross-motion to
amend will be denied as futile. See Dougherty v. Town of N. Hempstead Bd. of Zoning
Appeals, 282 F.3d 83, 88 (2d Cir. 2002).8
Defendants argue that: (1) the complaint fails to comply with the pleading
requirements of Rule 8; (2) certain claims for money damages against OPWDD and its
employees in their official capacities are barred by the Eleventh Amendment; (3) all claims
that were not included in Hamzik's EEOC charge must be dismissed; and (4) the remaining
claims fail to state a claim upon which relief may be granted.
A. Motion to Dismiss—Legal Standard
To survive a Rule 12(b)(6) motion to dismiss, the "[f]actual allegations must be
enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007). Although a complaint need only contain "a
short and plain statement of the claim showing that the pleader is entitled to relief" (Fed. R.
Civ. P. 8(a)(2)), more than mere conclusions are required. Indeed, "[w]hile legal conclusions
can provide the framework of a complaint, they must be supported by factual allegations."
Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 1950 (2009). Dismissal is appropriate
only where plaintiff has failed to provide some basis for the allegations that support the
elements of her claims. See Twombly, 550 U.S. at 570, 127 S. Ct. at 1974 (requiring "only

7

(...continued)
12(b)(6)."). It is noted, however, that contrary to defendants' assertion, Ham zik has added new causes of
action; to wit, state law claim s for tortious interference with contractual relations in the Third and Fourth
causes of action. Because these state law claim s have no bearing on the outcom e of this m otion,
defendants' failure to address these additional claim s is irrelevant.
8

As the proposed second am ended com plaint is thus the operative docum ent for purposes of the
m otion to dism iss, and in the interest of brevity, all references to "the com plaint" herein shall be understood
as references to the proposed second am ended com plaint.
- 8 -

enough facts to state a claim to relief that is plausible on its face").
When considering a motion to dismiss, the complaint is to be construed liberally, and
all reasonable inferences must be drawn in the plaintiff's favor. Chambers v. Time Warner,
Inc., 282 F.3d 147, 152 (2d Cir. 2002). These pleading requirements apply to pro se
plaintiffs as well as plaintiffs represented by counsel. Wynder v. McMahon, 360 F.3d 73, 79
n.11 (2d Cir. 2004). However, particular deference should be given to a pro se litigant's
complaint when applying the above standard. Erickson v. Pardus, 551 U.S. 89, 94, 127 S.
Ct. 2197, 2200 (2007). Finally, a district court may consider documents attached to the
complaint as exhibits or incorporated by reference therein. DiFolco v. MSNBC Cable L.L.C.,
622 F.3d 104, 111 (2d Cir. 2010).
B. Compliance with Rule 8
Defendants argue that the complaint must be dismissed because it fails to conform to
the pleading requirements of Rule 8(a)(2) and (d)(1). Defendants specifically note that the
complaint contains numerous legal arguments, citations to case law, and responses to
affidavits that had been attached to defendants' initial motion to dismiss.
As noted above, a complaint must contain "a short and plain statement of the claim
showing that the pleader is entitled to relief." Fed. R. Civ. Pro. 8(a)(2). Although no technical
form is required, "[e]ach allegation must be simple, concise, and direct." Id. 8(d)(1). The
primary purpose of Rule 8's pleading requirements is to provide the defendants with
"adequate notice." Wynder, 360 F.3d at 79. Adequate notice is "that which will enable the
adverse party to answer and prepare for trial, allow the application of res judicata, and
identify the nature of the case so that it may be assigned the proper form of trial." Id.
(internal quotation marks omitted).
- 9 -

Defendants are correct that the complaint is not a simple and concise document.
Further, it contains legal arguments and conclusions that are not proper to include in a
complaint. However, the factual allegations woven into the complaint, the documents
incorporated by reference therein, and the attached exhibits provide defendants with
adequate notice of the various claims brought against them. Plaintiff sufficiently identifies the
defendants' conduct that allegedly violated the law. Therefore, the complaint accomplishes
the primary purpose of Rule 8's pleading requirements.
C. Eleventh Amendment Immunity
Defendants argue that all claims for money damages against OPWDD and the
individual defendants in their official capacities brought pursuant to § 1983, the ADEA, Title I
of the ADA, and New York Human Rights Law § 296 are barred by the Eleventh Amendment.
It is well-established that the Eleventh Amendment bars actions against states and
state agencies. Gollomp v. Spitzer, 568 F.3d 355, 365–66 (2d Cir. 2009). Eleventh
Amendment immunity precludes a plaintiff from seeking any relief against states and state
agencies—including monetary and injunctive relief. Cory v. White, 457 U.S. 85, 90–91, 102
S. Ct. 2325, 2329 (1982). This immunity "extends beyond the states themselves to state
agents and state instrumentalities that are, effectively, arms of a state." Gollomp, 568 F.3d
at 366 (internal quotation marks omitted). The Eleventh Amendment also bars claims for
money damages against state officials acting in their official capacities. Kentucky v. Graham,
473 U.S. 159, 167–68, 105 S. Ct. 3099, 3106 (1985). However, suits against state officials in
their official capacities for prospective injunctive relief to stop ongoing violations of federal
law are permitted. Ex parte Young, 209 U.S. 123, 159–60, 28 S. Ct. 441, 453–54 (1908).
Eleventh Amendment immunity can only by lost if Congress unequivocally abrogates
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the state's immunity or the state expressly consents to suit. Gollomp, 568 F.3d at 365–66. It
is well-settled that Congress did not abrogate state immunity through § 1983. Quern v.
Jordan, 440 U.S. 332, 343–45, 99 S. Ct. 1139, 1146–47 (1979); Dube v. State Univ. of N.Y.,
900 F.2d 587, 594 (2d Cir. 1990). Neither did the ADEA or Title I of the ADA validly abrogate
the states' sovereign immunity. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91–92, 120 S. Ct.
631, 650 (2000) (ADEA); Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 374, 121 S. Ct.
955, 967–68 (2001) (Title I of the ADA). Similarly, "[n]othing in the HRL provides any basis
for finding that New York State has waived Eleventh Amendment immunity thereunder."
Pazamickas v. N.Y. Office of Mental Retardation & Dev. Disabilities, 963 F. Supp. 190, 196
(N.D.N.Y. 1997) (McAvoy, C.J.).
Hamzik argues that the OPWDD effectively waived its Eleventh Amendment immunity
by entering into a stipulation in a completely unrelated action in the Southern District of New
York in 2002. However, the stipulation, filed in Duryea v. New York State Office of Mental
Retardation and Development Disabilities (No. 95 Civ. 8789), never discussed the state's
sovereign immunity, § 1983, the ADEA, or the ADA. See Rodriguez Decl., Ex. A, 6–18.
Further, although the stipulation arose from a claim brought pursuant to, inter alia, the New
York Human Rights Law, there is nothing in the stipulation that constitutes an unequivocal
abrogation of immunity or consent to future suit.
Plaintiff also cites Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 124 S. Ct. 899 (2004),
in support of his argument that the Eleventh Amendment does not bar these claims. The
Hawkins Court held that the Eleventh Amendment did not bar the enforcement of a state's
obligations under a valid consent decree that had been entered into in federal court. Id. at
439, 124 S. Ct. at 904. Defendants never entered into a consent decree with Hamzik, and
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he does not seek to enforce such a decree. Hawkins is therefore inapplicable to the current
action. Hamzik cites several other cases in which plaintiffs recovered money damages from
state entities for violations of Title VII. However, these cases have absolutely no bearing on
the state's immunity from claims brought under § 1983, the ADEA, the ADA, or New York
Human Rights Law. Further, it is well settled that Congress, through the enactment of Title
VII, abrogated immunity with respect to discrimination claims. See Fitzpatrick v. Bitzer, 427
U.S. 445, 456, 96 S. Ct. 2666, 2671 (1976).
In sum, defendants have not waived their Eleventh Amendment immunity nor have
they consented to be sued. Accordingly, all § 1983, ADEA, ADA, and New York Human
Rights Law claims against OPWDD—an arm of the state—will be dismissed. Further, all
§ 1983, ADEA, ADA, and New York Human Rights Law claims for monetary damages
against the individual defendants in their official capacities will also be dismissed.
D. Failure to Exhaust Administrative Remedies9
Defendants argue that all Title VII, ADEA, and ADA discrimination claims concerning
incidents not raised in plaintiff's formal EEOC charge must be dismissed for failure to
exhaust administrative remedies. Plaintiff claims that he adequately exhausted
administrative remedies by filing the EEOC charge on April 6, 2010, and sending letters to
EEOC investigator Kielt thereafter.
Before commencing an action in federal court alleging violations of Title VII, the

9

Defendants invoke Rule 12(b)(1) in their argum ent for dism issal of discrim ination claim s not
included in the EEOC charge. However, "the failure to exhaust adm inistrative rem edies is a precondition to
bringing a [suit] in federal court, rather than a jurisdictional requirem ent." Francis v. City of New York, 235
F.3d 763, 768 (2d Cir. 2000). Therefore, this argum ent is properly raised as a failure to state a claim under
Rule 12(b)(6) rather than as a lack of subject m atter jurisdiction under Rule 12(b)(1). See Fichera v. State
Univ. of N.Y., No. 5:04-CV-78, 2007 W L 2874450, at *3 (N.D.N.Y. Sept. 27, 2007) (Mordue, C.J.).
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ADEA, and the ADA, a plaintiff must first file a timely charge with the EEOC. 42 U.S.C.
§ 12117 (incorporating into the ADA the exhaustion requirement of Title VII, codified at 42
U.S.C. § 2000e-5); Ximines v. George Wingate High Sch., 516 F.3d 156, 158 (2d Cir. 2008)
(ADEA); Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 69 (2d Cir. 2006) (per curiam) (Title
VII). The purpose of the exhaustion requirement "is to provide an opportunity for the
resolution of discrimination complaints by means of 'conciliation, conference, and
persuasion.'" Wrenn v. Sec'y, Dep't of Veteran Affairs, 918 F.2d 1073, 1078 (2d Cir. 1990)
(quoting 29 C.F.R. § 626(d)). It also gives the agency "the opportunity to investigate,
mediate, and take remedial action." Stewart v. U.S. Immigration & Naturalization Serv., 762
F.2d 193, 198 (2d Cir. 1985).
Claims not raised in an EEOC charge may nonetheless be asserted in federal court
where the claims: (1) concern conduct that falls within the scope of the EEOC investigation
that can reasonably be expected to grow out of the charge; (2) allege retaliation for filing the
charge; or (3) concern further incidents of discrimination carried out in precisely the same
manner alleged in the charge. Terry v. Ashcroft, 336 F.3d 128, 151 (2d Cir. 2003). These
narrow exceptions are "based on the recognition that EEOC charges frequently are filled out
by employees without the benefit of counsel and that their primary purpose is to alert the
EEOC to the discrimination that a plaintiff claims [he] is suffering." Deravin v. Kerik, 335 F.3d
195, 201 (2d Cir. 2003) (internal quotation marks omitted). When considering whether
claims are reasonably related to those in the EEOC charge, "the focus should be on the
factual allegations made in the charge itself, describing the discriminatory conduct about
which a plaintiff is grieving." Id. (internal quotation marks and alteration omitted).
The only claim identified in the EEOC charge alleged sex discrimination related to the
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fact that Elbrecht was transferred to a full-time position in the 5A Unit before Hamzik in
January 2010. Plaintiff's subsequent claims are not reasonably related to this claim, they do
not concern incidents of sex discrimination carried out in the same manner, and plaintiff does
not allege that the defendants retaliated against him for filing the EEOC charge. The
subsequent claims involve different types of alleged discrimination arising from completely
separate conduct by different defendants who were not named in the EEOC charge. The
charge did not alert the EEOC to plaintiff's claims of age discrimination related to the
appointment of Knebis to his former position, Kelsey's alleged retaliation for plaintiff's
grievance against him, the purported preferential treatment afforded to Kristen, the alleged
race and age discrimination related to Darden's appointment to the 4E Unit, or defendants'
repeated refusal to provide plaintiff with reasonable accommodations for his alleged
disability.
Plaintiff's assertion that he satisfied the exhaustion requirement by sending
supplemental letters to Kielt is unpersuasive. Indeed, "[c]ourts have rejected the argument
that allegations made to EEOC officers but not included in the actual charge should be
deemed 'reasonably related' to the charge." Fleming v. Verizon N.Y., Inc., 419 F. Supp. 2d
455, 462 (S.D.N.Y. 2005). Further, because only the charge is forwarded to the employer,
"courts will not consider" claims presented in separate documents when determining whether
administrative remedies have been exhausted. Sussle v. Sirina Prot. Sys. Corp., 269 F.
Supp. 2d 285, 315 (S.D.N.Y. 2003); see also Novitsky v. Am. Consulting Eng'rs, LLC, 196
F.3d 699, 702 (7th Cir. 1999) (plaintiff failed to exhaust administrative remedies where the
EEOC charge did not include the claim, even though the claim was described in an EEOC
intake questionnaire); cf. Morris v. David Lerner Assocs., 680 F. Supp. 2d 430, 437 (E.D.N.Y.
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2010) (allegations in letter physically attached to the EEOC charge were reasonably related
to subsequent claims brought in federal court as evidenced by EEOC's explicit reference to
these allegations in the right to sue letter).
Hamzik did not attach any additional documents to the EEOC charge or incorporate
any additional documents by reference therein.10 He sent the first supplemental letter to Kielt
over seven weeks after filing the EEOC charge. His second letter was sent over three
months thereafter and acknowledged that the investigation did not address the additional
claim identified in the first letter.11 Plaintiff's third letter referenced a recent hearing at which
the only issues discussed related to the claim involving Elbrecht. In short, there is nothing to
suggest the EEOC ever incorporated any of the additional claims alleged in plaintiff's
supplemental letters into the ongoing investigation and negotiations. There was never an
opportunity to resolve these additional claims of discrimination through conciliation,
conference, and/or persuasion. Similarly, OPWDD was not afforded the opportunity to
investigate, mediate, and take remedial action with respect to these claims. Therefore, the
purposes of the exhaustion requirement were not served.
In sum, plaintiff failed to exhaust administrative remedies for all ADEA and ADA
claims. The only Title VII claim for which plaintiff exhausted administrative remedies is the

10

Nor does Ham zik allege that the EEOC intake interviewer m istakenly failed to include all of the
claim s he intended to assert in the charge. This renders m ost of the cases he cites in support of his
exhaustion argum ent inapplicable as these cases involved charges that were insufficient due to m istakes
m ade by the EEOC interviewer. See Early v. Bankers Life & Cas. Co., 959 F.2d 75, 80 (7th Cir. 1992);
Steffen v. Meridian Life Ins. Co., 859 F.2d 534, 543–44 (7th Cir. 1988); Angotti v. Kenyon & Kenyon, 929 F.
Supp. 651, 654 (S.D.N.Y. 1996); Sickinger v. Mega Sys., Inc., 951 F. Supp. 153, 158 (N.D. Ind. 1996).
11

It is noted that when plaintiff sent his second letter on Septem ber 14, 2010, he could have filed a
new, and tim ely, EEOC charge regarding any discrim inatory conduct dating back to Novem ber 18, 2009. See
42 U.S.C. § 2000e-5; 42 U.S.C. § 12117(a) (an aggrieved em ployee m ust file a charge with the EEOC within
300 days of the alleged discrim ination).
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alleged discrimination related to Elbrecht's transfer to the 5A Unit. Accordingly, defendants'
motion to dismiss all ADEA, ADA, and Title VII claims—except for the one Title VII claim
described in the EEOC charge—will be granted.
E. Remaining Title VII Claim
The remaining Title VII claim is brought against OPWDD, Lee, and Robinson
concerning the transfer of Elbrecht to the 5A Unit.12 Hamzik alleges that allowing Elbrecht, a
female, to transfer to a full-time position in the 5A Unit one week before him amounted to sex
discrimination.
In order to ultimately prevail on a Title VII sex discrimination claim, a plaintiff must
show: (1) he is a member of a protected class; (2) he was qualified for his job; (3) he
suffered an adverse employment action; and (4) the circumstances surrounding the adverse
action give rise to an inference of discrimination. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973). At the pleading stage, however, a plaintiff's
complaint need only contain "a short and plain statement of the claim showing that the
pleader is entitled to relief." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S. Ct. 992,
998 (2002) (quoting Fed. R. Civ. P. 8(a)(2)). Therefore, the complaint must simply "give the
defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Id.
(internal quotation marks omitted).
Hamzik fails to state a Title VII sex discrimination claim because the complaint is
devoid of any allegations from which it can be reasonably inferred that the defendants' action
was taken because of his sex. There is simply nothing in the complaint to suggest that the
12

It is well established that there is no individual liability under Title VII. Briggs v. N.Y. Dep't of
Transp., 233 F. Supp. 2d 367, 373 (N.D.N.Y. 2002). Therefore, this claim m ay only be asserted against
OPW DD.
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decision to allow Elbrecht to begin a full-time position at the 5A Unit one week before Hamzik
was motivated by plaintiff's sex. Plaintiff does not allege that defendants made remarks to or
about him reflecting discriminatory animus. Similarly, there are no allegations suggesting a
history of sex discrimination or that these defendants favored female employees over male
employees generally or made any comments evidencing such a prejudice. Plaintiff's
conclusory assertion that defendants discriminated against him by allowing a woman to start
her job one week before he started a similar job is insufficient to state a plausible
discrimination claim. See Salaam v. Syracuse Model Neighborhood Facility, No. 5:11-CV948, 2012 WL 893487, at *5 (N.D.N.Y. Mar. 15, 2012) (D'Agostino, D.J.) (granting
defendants' motion to dismiss where "[p]laintiff has only provided conclusory statements that
she was terminated because of her race, which is insufficient to give rise to an inference of
discrimination based on her membership in a protected class" (internal quotation marks
omitted)).
Additionally, plaintiff fails to allege a sufficient adverse employment action. In order to
support a Title VII claim, the alleged action "must cause a materially adverse change in the
terms and conditions of employment, and not just mere inconvenience." Patane v. Clark,
508 F.3d 106, 112 (2d Cir. 2007) (per curiam) (internal quotation marks, alteration, and
citation omitted). "Examples of materially adverse changes include termination of
employment, a demotion evidenced by a decrease in wage or salary, a less distinguished
title, a material loss of benefits, significantly diminished material responsibilities, or other
indices unique to a particular situation." Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597,
609 (2d Cir. 2006) (internal quotation marks omitted).
Hamzik remains employed at BDC, he has not been demoted in terms of title or
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salary, and his responsibilities have not been diminished. Plaintiff offers only speculative
allegations that his delayed transfer to a full-time position in the 5A Unit caused a loss of one
week's seniority.13 Even assuming it did, this is not a significant adverse change upon which
to base a Title VII claim. See Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir.
2000) (four-month delay in employee's reassignment to a position within the school district
did not constitute an adverse employment action); Warren v. N. Shore Univ. Hosp., 268 F.
App'x 95, 98 (2d Cir. 2008) (summary order) (delay in plaintiff's transfer to a position in
another department at the hospital was not an adverse employment action).
Accordingly, defendants' motion to dismiss the remaining Title VII claim will be
granted.
F. Equal Protection Claims
Liberally construing the complaint, Hamzik brings equal protection claims related to
four separate incidents: (1) the transfer of Elbrecht to the 5A Unit approved by Lee and
Robinson; (2) the extension of "light duty" to Kristen granted by Lee, Hall, and Salko; (3)
Kelsey's appointment of Knebis to plaintiff's former position at Glenwood House; and (4)
Salko's appointment of Darden to a full-time position in the 4E Unit.
To adequately allege a violation of the Equal Protection Clause of the Fourteenth
Amendment, "a plaintiff must demonstrate that he was treated differently than others similarly
situated as a result of intentional or purposeful discrimination." Phillips v. Girdich, 408 F.3d
124, 129 (2d Cir. 2005). Plaintiff must also show that this disparate treatment "cannot
survive the appropriate level of scrutiny" applicable to the alleged discrimination. Id.
13

It is unclear how the date of his transfer to the 5A Unit would im pact his seniority level. Plaintiff's
em ploym ent at BDC began on June 8, 2006, and there is nothing to suggest that any date other than this
original starting date determ ines seniority status.
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Conclusory allegations of disparate treatment or plaintiff's personal opinion that such
treatment was motivated by discriminatory intent is not enough to prevail on an equal
protection claim. Nash v. McGinnis, 585 F. Supp. 2d 455, 462 (W.D.N.Y. 2008).
1. Elbrecht's Transfer
Assuming Hamzik has adequately alleged that defendants Lee and Robinson treated
him differently than others similarly situated by allowing Elbrecht, a female, to begin a fulltime position in the 5A Unit one week before him, his equal protection claim related to this
event still fails. As detailed above, there is nothing in the complaint from which to draw a
reasonable inference that Elbrecht's transfer was based on her, or plaintiff's, sex. His
conclusory allegation and personal opinion that Lee and Robinson's approval of Elbrecht's
transfer was motivated by discriminatory intent is insufficient to state a claim. See id.
2. Kristen's Light Duty
Plaintiff's assertion that he is similarly situated to Kristen, a young woman suffering
from complications in her pregnancy, is unpersuasive. To be "similarly situated," the
individual with whom Hamzik attempts to compare himself "must be similarly situated in all
material respects." Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997).
Plaintiff, a fifty-three-year-old man with a "temporary back injury," offers nothing but a
conclusory allegation that he and Kristen are similarly situated because "they are both
considered temporarily disabled." Proposed Second Am. Compl., ¶¶ 105–06. Further,
plaintiff does not allege any facts to suggest that he was denied, and Kristen was granted, an
extension of light duty because he is an older man and she is a young woman.
In short, Hamzik fails to state a plausible equal protection claim, based on his age,
sex, or disability, related to Lee, Hall, and Salko's decision to extend Kristen's light duty
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assignment by three months.
3. Knebis's Appointment
Plaintiff alleges that defendant Kelsey "illegally gifted" his former position at Glenwood
House to Knebis, a man in his twenties. Proposed Second Am. Compl., ¶ 173. Plaintiff
concludes that this was a violation of his equal protection rights.
Initially, it is unclear how Kelsey could have discriminated against plaintiff based on
the factual allegations in the complaint. Plaintiff had voluntarily left his position at Glenwood
House to take a full-time position in the 5A Unit. After suffering a work-related injury in the
5A Unit, plaintiff sought to return to his position at Glenwood House. However, Kelsey had
already given this position to Knebis. Plaintiff does not allege that he was forced out of his
position at Glenwood House to make room for Knebis. Nor can Kelsey be accused of
discrimination simply because he filled a vacant position. Plaintiff was not competing with
Knebis for a position at Glenwood House at the time of Knebis's appointment.
Even if Kelsey did violate the procedures outlined in the collective bargaining
agreement by appointing Knebis to plaintiff's former position without first posting the vacancy,
there is absolutely nothing in the complaint to suggest that he did so in an effort to
discriminate against plaintiff because of his age. There are no allegations that Kelsey made
derogatory remarks about plaintiff's age or took age into consideration when he decided to
give Knebis plaintiff's former position. Again, plaintiff's personal opinion that this conduct
was motivated by discriminatory intent is insufficient to state a plausible equal protection
claim.
4. Darden's Appointment
Plaintiff alleges that defendants Salko and Fadden discriminated against him based
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on his age and race by: (1) allowing Darden, a younger African–American man, to bid on an
open position at Glenwood House while prohibiting plaintiff from bidding on such a position;
and (2) appointing Darden to a full-time position in the 4E Unit without requiring him to bid on
the position as required by the collective bargaining agreement.
Plaintiff has arguably established that he and Darden were similarly situated because
they were both "locked into" similar six-month employment commitments when positions
opened up at Glenwood House. Proposed Second Am. Compl., ¶ 20. However, there is
nothing to suggest Fadden acted with discriminatory animus towards plaintiff's race or age
when he permitted Darden, but not plaintiff, to bid on an open position. Similarly, plaintiff
offers only his conclusory allegation that Salko's decision to appoint Darden to a position in
the 4E Unit was motivated by age or racial bias.
In sum, plaintiff's equal protection claims fail because there are no factual allegations
in the liberally construed complaint from which to infer that any of the above described
conduct was taken as a result of purposeful discrimination. Accordingly, defendants' motion
to dismiss the equal protection claims will be granted.
G. Due Process Claim
Hamzik alleges that defendant Kelsey "violated his 5th Amendment right to due
process by attempting to interfere with his grievance" when he made two "harassing and
intimidating" phone calls four days after plaintiff filed a grievance against him. Proposed
Second Am. Compl., ¶ 227. Plaintiff does not complain about the sufficiency of the
employment grievance procedure. Nor does he allege that Kelsey's behavior impacted the
procedure or prevented him from the benefit of the grievance process. Moreover, an
employment grievance process is not a fundamental liberty interest protected by the due
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process clause. See Smith v. Hogan, No. 3:10-CV-1025, 2011 WL 4433879, at *8 (D. Conn.
Sept. 22, 2011) ("Complying with health codes, informal employment grievance hearings,
and at-will employment are not fundamental and deeply rooted liberties comparable to the
right to marry, the right to have and raise children, or the right to bodily integrity.").
These factual allegations are better suited for a retaliation claim. Accordingly,
defendants' motion to dismiss the due process claim will be granted.
H. Retaliation Claim
Hamzik claims that Kelsey's two harassing phone calls on February 16, 2010, were
made in retaliation for the grievance he filed against Kelsey four days prior. Hamzik further
alleges that Kelsey threatened to "write up the Plaintiff" unless he withdrew the grievance.
Proposed Second Am. Compl., ¶ 138.
In order to state a retaliation claim in the public employment context, a plaintiff must
allege that: (1) he engaged in speech as a citizen on a matter of public concern; (2) he
suffered an adverse employment action; and (3) his speech was a motivating factor in the
adverse employment decision. Ruotolo v. City of New York, 514 F.3d 184, 188 (2d. Cir.
2008). "An employee who complains solely about his own dissatisfaction with the conditions
of his own employment is speaking 'upon matters only of personal interest.'" Sousa v.
Roque, 578 F.3d 164, 174 (2d Cir. 2009) (quoting Connick v. Myers, 461 U.S. 138, 147, 103
S. Ct. 1684, 1690 (1983)), cert. denied, 132 S. Ct. 104 (2011).
The content of, and motivation for, Hamzik's internal grievance against Kelsey related
to his personal complaint regarding the appointment of Knebis to his former position at
Glenwood House. He was not speaking as a private citizen about a matter of public concern,
but rather as an aggrieved public employee about a personal employment issue. The
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complaint thus fails to establish the first prong of a retaliation claim.
Even if Hamzik was attempting to speak out on a matter of public concern regarding
Kelsey's alleged pattern of appointing public employees without first posting vacant positions
as required by the collective bargaining agreement, the retaliation claim must fail for lack of
any adverse employment action taken against plaintiff. As noted above, Hamzik remains
employed at the BDC and was never demoted in title, salary, or assignment based on his
grievance against Kelsey. Moreover, plaintiff effectively utilized other avenues of relief to
address this matter. It is undisputed that immediately after receiving the phone calls from
Kelsey plaintiff notified defendant Lee, a union representative, and the grievance committee
chairman. He never heard from Kelsey again, and no disciplinary action was taken against
him.
Accordingly, defendants' motion to dismiss the retaliation claim will be granted.
I. Remaining State Law Claims
As all of the federal claims will be dismissed, the only claims that remain are the state
law claims. Pursuant to 28 U.S.C. § 1367(c)(3), supplemental jurisdiction over any remaining
state claims is declined.
IV. CONCLUSION
As the defendants did not waive their Eleventh Amendment immunity, all § 1983,
ADEA, ADA, and New York Human Rights Law claims against OPWDD will be dismissed.
Similarly, all ADEA and ADA claims will be dismissed as Hamzik failed to exhaust available
administrative remedies. The only Title VII claim for which plaintiff exhausted administrative
remedies is the alleged discrimination related to Elbrecht's transfer to the 5A Unit. Therefore,
all other Title VII claims will be dismissed.
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The proposed second amended complaint fails to state a plausible Title VII claim
concerning Elbrecht's transfer to a full-time position in the 5A Unit in January 2010.
Specifically, there are no allegations from which it can reasonably be inferred that the
circumstances surrounding the transfer give rise to an inference of discrimination or that
Hamzik suffered an adverse employment action. Plaintiff's equal protection claims also fail
because there are no factual allegations from which to infer that any of the defendants'
allegedly violative conduct was taken as a result of purposeful discrimination. Plaintiff's due
process claim must be dismissed as well because an employment grievance process is not a
fundamental liberty interest. Finally, the proposed second amended complaint fails to allege
a plausible retaliation claim because plaintiff was not engaged in speech related to a matter
of public concern and did not suffer an adverse employment action.
Therefore, it is
ORDERED that
1. Defendants' motion to dismiss (Dkt. No. 24) is GRANTED;
2. Plaintiff's cross-motion for leave to file a second amended complaint (Dkt. No. 40)
is DENIED as futile;
3. All of plaintiff's federal causes of action are DISMISSED with prejudice; and
4. The remaining state law causes of action are DISMISSED without prejudice.
IT IS SO ORDERED.
The Clerk of the Court is directed to enter judgment accordingly.

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Dated: May 15, 2012
Utica, New York.

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