Malave-Sykes v. Geodis SCO USA LLC

Filing 13

ORDER and REPORT-RECOMMENDATION: ORDERED that Plaintiff's amended application to proceed in forma pauperies (Dkt. No 7 ) is GRANTED; and it is further respectfully RECOMMENDED that the Court DISMISS WITH LEAVE TO REPLEAD Plaintiff's Compla int (Dkt. No 1 ) because it fails to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further ORDERED that the Clerk of the Court shall file a copy of this Order and Report-Recommendation on Plaint iff, along with copies of the unpublished decisions cited herein. NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Objections to R&R due by 1/21/2025, Case Review Deadline 1/24/2025), Motions terminated: 7 MOTION for Leave to Proceed in forma pauperis filed by Joshua Malave-Sykes.Signed by Magistrate Judge Miroslav Lovric on 1/7/2025. (Copy served via regular mail)(ham)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
JOSHUA MALAVE-SYKES,
Plaintiff,
3:24-CV-1358
(GTS/ML)

v.
GEODIS SCO USA LLC,
Defendant.
_____________________________________________
APPEARANCES:

OF COUNSEL:

JOSHUA MALAVE-SYKES
Plaintiff, Pro Se
15 Delaware Avenue, Apt #245
Endicott, New York 13760
FISHER & PHILLIPS
Counsel for the Defendant
400 Connell Drive, Suite 4000
Berkeley Heights, New Jersey 07922

PHILLIP BAUKNIGHT, ESQ.

MIROSLAV LOVRIC, United States Magistrate Judge
ORDER and REPORT-RECOMMENDATION
The Clerk has sent a complaint in the above captioned action with an amended motion for
leave to proceed in forma pauperis (“IFP”) filed by pro se plaintiff Joshua Malave-Sykes
(“Plaintiff”) to the Court for review. (Dkt. Nos. 1, 7.) For the reasons discussed below, I (1)
grant Plaintiff’s amended IFP application (Dkt. No. 7), and (2) recommend that Plaintiff’s
Complaint (Dkt. No. 1) be dismissed in its entirety with leave to amend.

I.

BACKGROUND
On November 7, 2024, Plaintiff commenced this action by filing a pro se Complaint

against Defendant alleging violations of Title VII of the Civil Rights Act of 1964 and the
Americans with Disabilities Act of 1990 (“ADA”). (Dkt. No. 1.)
More specifically, the Complaint alleges that Defendant discriminated against Plaintiff—
a Black disabled man1—by wrongfully terminating Plaintiff’s employment “based on [the]
hearsay false accusation of two (2) female co-workers” that the females felt uncomfortable
around Plaintiff. (Dkt. No. 1 at 1.) Plaintiff alleges that the two female coworkers made the
false allegations because Plaintiff put them on notice that their performance was substandard.
(Dkt. No. 1 at 2.) Plaintiff alleges that he was in good standing, had been training for a new
position with Defendant before the allegations, and Defendant “demonstrated pure malice and
petty vindictiveness in refusing to provide [P]laintiff with his legal[ly] entitled letter of
Termination as afforded by New York State Department of Labor laws.” (Dkt. No. 1 at 4.)
Plaintiff alleges that Defendant allowed “prevalent drug usage daily on the premises and
many outstanding OSHA violations” which endangered Plaintiff, so he made a report to the
Occupational Safety and Health Administration (“OSHA”) dated March 27, 2023. (Dkt. No. 1 at
5.)
Plaintiff alleges that because he
received excellent job performance evaluations . . . it can only be rational
analyzed the company has discriminated against plaintiff on the basis of
his race, gender and disability and taking on face value the baseless false
accusations of the 2 female co-workers and failing to acknowledge
plaintiff emphatically excellent work ethic and good conduct standing
spotless disciplinary records to adhere to these 2 disgruntle female coworkers.
1

Plaintiff alleges that he is disabled “based on symptoms of depression and speech
impairment.” (Dkt. No. 1 at 2.)
2

(Dkt. No. 1 at 6 [errors in original].) Plaintiff alleges that Defendant threatened to fire any
employee who engaged in contact or communication with Plaintiff, which demonstrated
“retaliatory tactics and the fostering of a hostile work environment.” (Dkt. No. 1 at 7.)
The Complaint alleges that another employee, Todd Scmherorn who is a white man, was
also fired after being falsely accused of making racial slurs against the same two female
employees that lodged allegations against Plaintiff. (Dkt. No. 1 at 7.) Plaintiff alleges that Mr.
Scmherorn “is the biological father of 2 bi-racial children affirmatively contradict[ing] this
assertion of being a racist.” (Dkt. No. 1 at 8.)
Plaintiff alleges that Defendant failed to comply with its own policies contained in the
Employee Handbook. (Dkt. No. 1 at 9.)
The Complaint asserts the following three claims: (1) a claim of wrongful termination of
employment based on race, disability, and gender in violation of 42 U.S.C. § 2000e; (2) a claim
that Defendant engaged in retaliatory conduct against Plaintiff for filing employment inquires in
violation of 42 U.S.C. § 12203; (3) a claim that Defendant discriminated against Plaintiff on the
basis of disability, race, and gender in violation of 42 U.S.C. § 212101, et seq. (Dkt. No. 1 at 811.)
As relief Plaintiff seeks, among other things, declaratory relief, compensatory damages,
and punitive damages. (Dkt. No. 1 at 11-13.)
Attached to the Complaint is a Determination and Notice of Rights from the United
States Equal Employment Opportunity Commission dated August 6, 2024, notifying Plaintiff
that his lawsuit must be filed within ninety dates of his receipt of the notice. (Dkt. No. 1, Attach.
2 at 2.)

3

II.

PLAINTIFF’S AMENDED APPLICATION TO PROCEED IN FORMA
PAUPERIS
When a civil action is commenced in a federal district court, the statutory filing fee,

currently set at $405, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized,
however, to permit a litigant to proceed in forma pauperis status if a party “is unable to pay” the
standard fee for commencing an action. 28 U.S.C. § 1915(a)(1).2 After reviewing Plaintiff’s
amended in forma pauperis application (Dkt. No. 7), the Court finds that Plaintiff meets this
standard. Therefore, Plaintiff’s amended application to proceed in forma pauperis is granted.3
III.

LEGAL STANDARD FOR REVIEW OF THE COMPLAINT
“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the

court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is
frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).
In determining whether an action is frivolous, the court must consider whether the
complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325
(1989). Dismissal of frivolous actions is appropriate to prevent abuses of court process as well
as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge,

2

The language of that section is ambiguous because it suggests an intent to limit
availability of in forma pauperis status to prison inmates. See 28 U.S.C. § 1915(a)(1)
(authorizing the commencement of an action without prepayment of fees “by a person who
submits an affidavit that includes a statement of all assets such prisoner possesses”). The courts
have construed that section, however, as making in forma pauperis status available to any litigant
who can meet the governing financial criteria. Hayes v. United States, 71 Fed. Cl. 366, 367 (Fed.
Cl. 2006); Fridman v. City of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y. 2002).
3

Plaintiff is reminded that, although his application to proceed in forma pauperis has been
granted, he is still required to pay fees that he may incur in this action, including copying and/or
witness fees.
4

505 F.2d 802, 804 (8th Cir. 1974); see Fitzgerald v. First East Seventh Street Tenants Corp., 221
F.3d 362, 364 (2d Cir. 2000) (a district court “may dismiss a frivolous complaint sua sponte even
when the plaintiff has paid the required filing fee[.]”); see also Pflaum v. Town of Stuyvesant,
Columbia Cnty., N.Y., 11-CV-0335, 2016 WL 865296, at *1, n.2 (N.D.N.Y. Mar. 2, 2016)
(Suddaby, C.J.) (finding that the Court had the power to address and dismiss additional theories
of the plaintiff’s retaliation claim sua sponte because those theories were so lacking in arguable
merit as to be frivolous).
In order to state a claim upon which relief can be granted, a complaint must contain, inter
alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). The requirement that a plaintiff “show” that he or she is entitled to relief
means that a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis
added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 [2007]). “Determining whether a
complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial
experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged–but it has not
shown–that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal citation and
punctuation omitted).
“In reviewing a complaint . . . the court must accept the material facts alleged in the
complaint as true and construe all reasonable inferences in the plaintiff’s favor.” Hernandez v.
Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court
must accept as true all of the allegations contained in a complaint is inapplicable to legal

5

conclusions. Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d
66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam)
(reading the plaintiff’s pro se complaint “broadly, as we must” and holding that the complaint
sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua
sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties .
. . have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).
IV.

ANALYSIS
In addressing the sufficiency of a plaintiff’s complaint, the court must construe his

pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).
Having reviewed Plaintiff’s Complaint with this principle in mind, I recommend that it be
dismissed for failure to state a claim upon which relief may be granted.
A.

Wrongful Termination

To allege a prima facie showing of wrongful termination, a plaintiff must allege that “he
(1) is a member of a protected class; (2) was performing his duties satisfactorily; (3) was
discharged; and that (4) his discharge occurred under circumstances giving rise to an inference of
discrimination on the basis of his membership in the protected class.” Graham v. Long Island
R.R., 230 F.3d 34, 38 (2d Cir. 2000). Successful claims of wrongful termination must present a
causal connection between some discriminatory reason and the termination. See Quarless v.
Brooklyn Botanic Garden Corp., 611 F. App'x 28, 29 (2d Cir. 2015) (citing Hicks v. Baines, 593
F.3d 159, 164 (2d Cir. 2010)).

6

Here, Plaintiff’s claim of wrongful termination based on race, disability, and gender fails
to allege facts plausibly suggesting that he was terminated under circumstances giving rise to an
inference of discrimination on the basis of his membership in the protected classes. Instead, the
Complaint alleges that because Plaintiff received good job performance evaluations, his
termination must have been discriminatory on the basis of his race, gender, and disability. (Dkt.
No. 1 at 6.) The law is clear, though, that a Title VII plaintiff must allege more than that.
“Simply being a member of a protected class, without something more to link that status to the
action in question, is not enough to raise a reasonable inference of discriminatory animus.” Cole
v. Board of Trustees of Northern Ill. Univ., 838 F.3d 888, 900 (7th Cir. 2016); see also Canady v.
Union 1199/SEIU, 527 F. Supp. 3d 515, 516 (W.D.N.Y. 2021) (“simply falling into a protected
category is not enough”); Perry v. County of Westchester, 06-CV-3000, 2008 WL 11438085, at
*17 (S.D.N.Y. Mar. 31, 2008) (“Plaintiff's membership in a protected class in and of itself does
not establish discriminatory animus”); see also Karunakaran v. Borough of Manhattan Cmty.
Coll., 18-CV-10723, 2022 WL 902370, at *3 (S.D.N.Y. Mar. 28, 2022) (quoting Littlejohn v. Cit
of New York, 795 F.3d 297, 311 (2d Cir. 2015)) (“Although a plaintiff is not required to plead
facts proving each element of a prima facie case of discrimination at the pleading stage, her
allegations must provide ‘plausible support’ for a ‘minimal inference’ that the employer was
motivated by discriminatory intent.”).
Beyond Plaintiff’s conclusory allegation that he was terminated as a result of
discrimination, he does not allege any specific facts plausibly suggesting that the termination was
related to discrimination on the basis of his race, disability, or gender. Karunakaran, 2022 WL
902370, at *3.

7

To the extent that Plaintiff sought to allege a discrimination claim based on disparate
treatment, I recommend that claim be dismissed because Plaintiff’s allegations are conclusory.
“To establish an inference of discrimination, a plaintiff must allege that ‘she was
similarly situated in all material respects to the individuals with whom she seeks to compare
herself.’” Brown v. Daikin Am. Inc., 756 F.3d 219, 230 (2d Cir. 2014) (quoting Graham v. Long
Island R.R., 230 F.3d 34, 39 (2d Cir. 2000)). The judgment rests on “whether the plaintiff and
those he maintains were similarly situated were subject to the same workplace standards.”
Brown, 756 F.3d at 230 (quoting Graham, 230 F.3d at 40). “The plaintiff's and comparator’s
circumstances must bear a ‘reasonably close resemblance,’ but need not be ‘identical.’” Id.
(quoting Graham, 230 F.3d at 40). Absent direct evidence of discrimination, “a plaintiff must
plausibly allege facts that would support a finding that she suffered an adverse employment
action and ‘has at least minimal support for the proposition that the employer was motivated by
discriminatory intent,’” to survive a motion to dismiss a Title VII claim. Thomson v. Odyssey
House, 14-CV-3857, 2015 WL 5561209, at *14 (E.D.N.Y. Sept. 21, 2015) (emphasis in original)
(quoting Littlejohn, 795 F.3d at 311).
Here, Plaintiff fails to allege facts plausibly suggesting others were treated differently
than him. See Karunakaran, 2022 WL 902370, at *4 (dismissing the plaintiff's Title VII
discrimination claim where the amended complaint did not identify or describe an alleged
comparator or describe specific examples of disparate treatment). More specifically, the
Complaint appears to allege that Defendant took the same action—termination—against Mr.
Scmherorn, a white employee, when faced with similar allegations as were lodged against
Plaintiff. (Dkt. No. 1 at 7.) This allegation suggests that, regardless of an employee’s race,

8

Defendant takes he same action—termination—in response to allegations of inappropriate
workplace conduct.
Moreover, it is unclear whether Plaintiff and Mr. Scherorn were “similarly situated in all
material respects.” Plaintiff alleges that Mr. Scmherorn was a “Junior Production Manager.”
(Dkt. No. 1 at 7.) Plaintiff alleges that he was hired as an “inventory associate” (Dkt. No. 1 at 3)
but was fired while training to become either an assistant production manager (Dkt. No. 1 at 2)
or a production manager (Dkt. No. 1 at 4).
For each of these reasons, I recommend that Plaintiff’s discriminatory termination claim
be dismissed for failure to state a claim upon which relief may be granted.
B.

Retaliation

42 U.S.C. § 12203(a) provides that “[n]o person shall discriminate against any individual
because such individual has opposed any act or practice made unlawful by this chapter or
because such individual made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this chapter.” For an ADA retaliation claim, a
plaintiff must plead the following: “(1) participation in a protected activity; (2) that the defendant
knew of the protected activity; (3) an adverse . . . action; and (4) a causal connection between the
protected activity and the adverse . . . action.” Perez v. City of New York, 843 F. App'x 406, 407
(2d Cir. 2021) (quoting Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010)).
“Protected activity is action taken to protest or oppose statutorily prohibited
discrimination.” Shannon v. Credit Agricole Sec. (USA), Inc., 17-CV-0667, 2021 WL 1063183,
at *9 (S.D.N.Y. Mar. 19, 2021) (quoting Natofsky v. City of New York, 921 F.3d 337, 354 (2d
Cir. 2019)).

9

Here, the Complaint fails to allege facts plausibly suggesting that Plaintiff engaged in any
protected activity. Instead, the Complaint appears to allege that Plaintiff (1) warned Defendant’s
employees Sherry Olk and Jenna Rivera that their work productivity was poor (Dkt. No. 1 at 2),
and (2) made a complaint to OSHA about various unsafe working conditions Plaintiff endured
while employed by Defendant (Dkt. No. 1 at 5-6). However, neither of these alleged actions
sufficiently allege that Plaintiff “has opposed any act or practice made unlawful by” the ADA.
See Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000) (“The term ‘protected activity’
refers to action taken to protest or oppose statutorily prohibited discrimination.”), superseded by
statute on other grounds identified in Zeng v. New York City Housing Auth., 22-CV-0138, 2023
WL 4553416 (2d Cir. July 17, 2023); Weinstein v. Miller, 21-CV-4543, 2021 WL 3038370, at *7
(S.D.N.Y. July 15, 2021) (dismissing the plaintiff's complaint where she failed to allege facts
“suggesting that she made [a] complaint of disability discrimination or that any Defendant
discriminated or retaliated against her because of any such complaint.”); Smith v. City of New
York, 15-CV-4493, 2016 WL 4574924, at *10 (S.D.N.Y. Sept. 1, 2016) (finding that the
plaintiff's “objection to being subjected to the disrobement policy does not constitute a protected
activity because [the plaintiff] cannot show an objectively reasonable basis for believing that the
policy violates the ADA.”).
As a result, I recommend that Plaintiff’s retaliation claim be dismissed for failure to state
a claim upon which relief may be granted.
In the alternative, I recommend that to the extent that Plaintiff seeks monetary damages,
his retaliation claim be dismissed because Title V “does not provide for punitive or
compensatory damages under the ADA.” Jones v. Volunteers of Am. Greater New York, 20-CV5581, 2022 WL 768681, at *6 n.8 (S.D.N.Y. Mar. 14, 2022) (citing Spiegel v. Schulmann, 604

10

F.3d 72, 79 (2d Cir. 2010); Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1269-70 (9th Cir.
2009) (holding “punitive and compensatory damages are not available for ADA retaliation
claims.”); Kramer v. Banc of America Securities, LLC, 355 F.3d 961 (7th Cir. 2004), cert.
denied, 542 U.S. 932 (2004) (holding that a plaintiff can only recover equitable relief for a
retaliation claim under the ADA); Shipman v. New York State Office of Persons with
Developmental Disabilities, 11-CV-2780, 2012 WL 897790, at *9 (S.D.N.Y. Mar. 12, 2012)
(even in the retaliation context, “individuals cannot be held liable for money damages under the
ADA in either their personal or official capacities.”), report and recommendation adopted 2012
WL 3704837, at *3 (S.D.N.Y. Mar. 26, 2012) (money damages unavailable under the ADA)).
C.

Discrimination Claim

Although Plaintiff cites “42 USC Section 212101, Et Seq.” as the basis of this claim, he
also refers to the ADA and thus, the undersigned liberally construed this claim as one pursuant to
42 U.S.C. § 12112(a).4
Section 12112 of the ADA provides:
No covered entity shall discriminate against a qualified individual with a
disability because of the disability of such individual in regard to job
application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms,
conditions, and privileges of employment.
42 U.S.C. § 12112(a).
A plaintiff challenging disability-based discrimination under the ADA must establish a
prima facie case, which consists of a showing that: “(1) his employer is subject to the ADA; (2)
he was disabled within the meaning of the ADA; (3) he was otherwise qualified to perform the
essential functions of his job, with or without reasonable accommodation; and (4) he suffered

4

Title 42 U.S.C. section 212101 does not exist.
11

adverse employment action because of his disability.” Woolf v. Strada, 949 F.3d 89, 93 (2d Cir.
2020).
The Complaint fails to assert a claim upon which relief may be granted for two reasons.
First, the Complaint fails to allege facts plausibly suggesting that Plaintiff was disabled
within the meaning of the ADA. “The term ‘disability’ means, with respect to an individual—
(A) a physical or mental impairment that substantially limits one or more major life activities of
such individual; (B) a record of such an impairment; or (C) being regarded as having such an
impairment.” 42 U.S.C. § 12102(1). Plaintiff alleges that he is disabled “based on symptoms of
depression and speech impairment.” (Dkt. No. 1 at 2.) Plaintiff fails to allege facts plausibly
suggesting that these disabilities impact a major life activity—such as caring for oneself,
performing manual tasks, seeing, hearing, eating, or sleeping—or a major bodily function.
Second, the Complaint fails to allege facts plausibly suggesting that Plaintiff suffered an
adverse employment action because of his disability. The Complaint identifies Plaintiff as a
disabled person but does not allege any facts plausibly suggesting that an adverse action was
taken against Plaintiff with any causal connection to his disability. (See generally Dkt. No. 1.)
For each of these reasons, I recommend that Plaintiff’s disability discrimination claim be
dismissed.5
V.

OPPORTUNITY TO AMEND
Generally, a court should not dismiss claims contained in a complaint filed by a pro se

litigant without granting leave to amend at least once “when a liberal reading of the complaint
5

To the extent that the Complaint is liberally construed as asserting a discrimination claim
based on Plaintiff’s race and gender, I recommend that it be dismissed for failure to state a claim
upon which relief may be granted. As set forth above in Part IV.A. of this Order and ReportRecommendation, the Complaint fails to assert facts plausibly suggesting that Plaintiff was
discriminated against on the basis of his race or gender.
12

gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05
(2d Cir. 1991); see also Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when
justice so requires.”). An opportunity to amend is not required, however, where “the problem
with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.”
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding
L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact
sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated
differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is
not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d
129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1
(N.D.N.Y. Sept. 22, 1997) (Pooler, J.).6
Although I have serious doubts about whether Plaintiff can replead to assert actionable
claims, given that this is the Court’s first review of Plaintiff's pleading, out of an abundance of
caution and in light of Plaintiff’s status as a pro se litigant, I recommend that he be permitted
leave to amend.
If Plaintiff chooses to file an amended complaint, he should note that the law in this
circuit clearly provides that “‘complaints relying on the civil rights statutes are insufficient
unless they contain some specific allegations of fact indicating a deprivation of rights, instead of
a litany of general conclusions that shock but have no meaning.’” Hunt v. Budd, 895 F. Supp.

6

See also Carris v. First Student, Inc., 132 F. Supp. 3d 321, 340-41 n.1 (N.D.N.Y. 2015)
(Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171
F.3d 794, 796 (2d Cir. 1999)—that the Court should grant leave to amend “unless the court can
rule out any possibility, however unlikely it might be, that an amended complaint would be
successful in stating a claim”—is likely not an accurate recitation of the governing law after Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev’d on other grounds, 682 F. App’x 30.
13

35, 38 (N.D.N.Y. 1995) (McAvoy, J.) (quoting Barr v. Abrams, 810 F.2d 358, 363 (2d Cir.
1987)); accord Pourzancvakil v. Humphry, 94-CV-1594, 1995 WL 316935, at *7 (N.D.N.Y.
May 22, 1995) (Pooler, J.). Therefore, in any amended complaint, Plaintiff must clearly set forth
facts that give rise to the claims, including the dates, times, and places of the alleged underlying
acts, and each individual who committed each alleged wrongful act. In addition, the revised
pleading should allege facts demonstrating the specific involvement of any of the named
defendants in the constitutional deprivations alleged in sufficient detail to establish that they
were tangibly connected to those deprivations. Bass v. Jackson, 790 F.2d 260, 263 (2d Cir.
1986). Finally, Plaintiff is informed that any such amended complaint will replace the existing
complaint, and must be a wholly integrated and complete pleading that does not rely upon or
incorporate by reference any pleading or document previously filed with the Court. See Shields
v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an
amended complaint ordinarily supersedes the original and renders it of no legal effect.”).
ACCORDINGLY, it is
ORDERED that Plaintiff’s amended application to proceed in forma pauperis (Dkt. No.
7) is GRANTED; and it is further respectfully
RECOMMENDED that the Court DISMISS WITH LEAVE TO REPLEAD
Plaintiff’s Complaint (Dkt. No. 1) because it fails to state a claim upon which relief may be
granted pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further
ORDERED that the Clerk of the Court shall file a copy of this Order and ReportRecommendation on Plaintiff, along with copies of the unpublished decisions cited herein in
accordance with the Second Circuit’s decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009)
(per curiam).

14

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within
which to file written objections to the foregoing report.7 Such objections shall be filed with the
Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN
DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1) (Supp. 2013);
Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v.
Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).

Dated: January ___,
7 2025
Binghamton, New York

7

If you are proceeding pro se and served with this report, recommendation, and order by
mail, three additional days will be added to the fourteen-day period, meaning that you have
seventeen days from the date that the report, recommendation, and order was mailed to you to
serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a
Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day
that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
15

Pflaum v. Town of Stuyvesant, Columbia Cty., N.Y., Not Reported in Fed. Supp. (2016)

2016 WL 865296
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
William PFLAUM, Individually and as a Citizen,
Resident and Taxpayer of Town of Stuyvesant, Plaintiff,
v.
TOWN OF STUYVESANT, COLUMBIA CTY.,
N.Y.; and Valerie Bertram, Individually and as
Supervisor of Town of Stuyvesant, Defendants.
1:11-CV-0335 (GTS/DJS)
|
Signed 03/02/2016
Attorneys and Law Firms
WILLIAM PFLAUM, Plaintiff, Pro Se 1 , 3 Rybka Road, Box
40, Stuyvesant Falls, NY 12174.
BRYAN D. RICHMOND, ESQ., THOMAS J. MORTATI,
ESQ., BURKE, SCOLAMIERO, MORTATI & HURD, LLP,
Attorneys for Defendants, 9 Washington Square, Suite 201,
P.O. Box 15085, Albany, NY 12212-5085.

DECISION and ORDER
GLENN T. SUDDABY, Chief United States District Judge
*1 Currently before the Court, in this civil rights action
filed by William Pflaum (“Plaintiff”) against the Town of
Stuyvesant (“Town”) and Valerie Bertram, Town Supervisor
(“Bertram”) (collectively, “Defendants”), is Defendants'
motion for summary judgment pursuant to Fed. R. Civ. P. 56.
(Dkt. No. 59.) For the reasons set forth below, Defendants'
motion is granted.
I. RELEVANT BACKGROUND
A. Plaintiff's Complaint
As a result of the Court's prior decisions (Dkt. Nos. 17,
26), Plaintiff's sole remaining claim in this action is his
First Amendment retaliation claim. More specifically, as
articulated in his Complaint (which was drafted by Plaintiff,
pro se, and therefore must be construed with special
solicitude), that claim alleges three separate ways he was
retaliated against for publicly criticizing Town officials. 2

First, Plaintiff alleges that, in retaliation for filing charges
of ethical violations against Defendant Bertram, she (a)
“collaborated with and supported” the Town's Fire Chief
to deny and/or threaten to deny fire protection to Plaintiff,
(b) “supported and encouraged” various Town employees
to “illegal[ly] revo[ke] ... Plaintiff's permit to operate his
business,” and (c) “supported and encouraged” the Town
Assessor's “campaign to intimidate Plaintiff by linking [his]
political speech [with his] real estate assessment.” (Dkt. No.
1, ¶¶ 20-23, 116 [Pl.'s Compl.].)
Second, Plaintiff alleges that, in retaliation for writing
columns on his Internet blog regarding corruption among the
Town's public officials, the Town filed false criminal charges
against him. (Id., ¶ 116.)
Third, and finally, Plaintiff alleges that, in retaliation for
criticizing Bertram, the Town Assessor, and the Town, the
Town Assessor used his authority to raise taxes in order to
intimidate Plaintiff into silence. (Id., ¶¶ 23, 39, 47, 116.)
B. Defendants' Motion for Summary Judgment
*2 In their motion for summary judgment, Defendants
request the dismissal of Plaintiff's Complaint in its entirety.
(Dkt. No. 59.) In support of their motion, Defendants make
the following four arguments. First, Defendants argue that
there was no adverse action against Plaintiff in that there
was no actual chilling of Plaintiff's First Amendment speech
or any other damages. (Dkt. No. 61, at 3-8 [Defs.' Mem. of
Law].)
Second, Defendants argue that, in any event, any such adverse
action was not motivated or substantially caused by Plaintiff's
First Amendment speech. (Id. at 5-6.)
Third, in the alternative, Defendants argue that Bertram was
not personally involved in any deprivation of fire protection
services to Plaintiff. (Id. at 5, 8-10.)
Fourth, and finally, Defendants argue that Bertram is entitled
to qualified immunity. (Id.)
C. Plaintiff's Opposition Memorandum of Law
Generally construed, Plaintiff makes five arguments in
opposition to Defendants' motion. First, Plaintiff argues that
he engaged in protected speech by creating an Internet blog
on which he publicly criticized Town officials and exposed

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their illegal activities. (Dkt. No. 65, at 3 [Pl.'s Opp'n Mem.
of Law].)

statement of material facts should be deemed admitted. (Dkt.
No. 74, at 2-6 [Defs.' Reply Mem. of Law].)

Second, Plaintiff argues that Town officials took adverse
action against him by issuing noise violations against him
with respect to loud dog barking on his property, retaining
special prosecutors to pursue civil suits and criminal charges
against him, encouraging harassment and extra-judicial
threats against him, and treating him differently from other
residents. (Id. at 4-5.) As a result, Plaintiff argues that he
suffered a chilling effect on his blogging as well as monetary
damages due to the expense required to oppose the Town's
retaliatory activities. (Id. at 6-8.)

*3 Second, Defendants argue that the record is devoid of any
admissible evidence that Bertram was personally involved in
an alleged deprivation of fire protection services with regard
to Plaintiff's residence. (Id. at 6-7.) Furthermore, Defendants
argue that Plaintiff cannot demonstrate that any adverse action
was taken because he was never actually deprived of fire
protection services and his subjective belief that the fire
department may not respond to a fire at his residence is
insufficient to create a genuine dispute of fact. (Id. at 7-8.)

Third, Plaintiff argues that the timing of these adverse actions,
i.e., that they began after he created his blog, establishes
the causal connection between his protected speech and the
adverse actions. (Id. at 5.)
Fourth, Plaintiff argues that Bertram is not entitled to qualified
immunity because it was not objectively reasonable to believe
that her actions did not violate Plaintiff's First Amendment
rights. (Id. at 5-6.) According to Plaintiff, these actions
consisted of (1) threatening to fire the Town's Dog Control
Officer if he did not serve Plaintiff with a criminal charge
related to dog barking, and (2) retaining special prosecutors
to pursue this charge against Plaintiff without first obtaining
the Town's approval. (Id. at 9.)
Fifth, Plaintiff argues that municipal liability extends to
the Town because of the actions of Bertram, the Town's
supervisor, and her position as a policymaker. (Id. at 8-9.)
Finally, the Court notes that Plaintiff spends considerable
time in his opposition papers arguing the merits of issues not
raised by Defendants in their motion. For example, Plaintiff
discusses the Town's denial of his FOIL requests, the Town's
failure to respond appropriately to alleged vandalism of his
property, and the sufficiency of the evidence that led to the
issuance of noise violations related to dog barking. (See
generally id., at 3-4, 6-9; Dkt. No. 67, ¶¶ 4, 14, 25, 27, 36,
56-107 [Pl.'s Decl.].)
D. Defendants' Reply Memorandum of Law
In reply to Plaintiff's opposition memorandum of law,
Defendants make two arguments. First, Defendants argue
that, because Plaintiff has not complied with Local Rule 7.1(a)
(3) in his response to their statement of material facts, their

E. Statement of Material Facts
1. Plaintiff's Failure to Comply
with N.D.N.Y. Local Rule 7.1
Before reciting the material facts of this case, the Court
must address Plaintiff's response to Defendant's Rule 7.1
Statement of Material Facts. Local Rule 7.1(a)(3) of the Local
Rules of Practice for this Court requires a party moving for
summary judgment to submit a statement of material facts
supported by specific citations to the record where those facts
are established. N.D.N.Y. L.R. 7.1(a)(3). The non-moving
party's subsequent response must mirror the moving party's
statement of material facts by (1) admitting and/or denying
each of the moving party's factual assertions in matching
numbered paragraphs and (2) supporting any denials with
specific citations to the record where the factual issues
arise. Id. Importantly, “[t]he Court shall deem admitted any
properly supported facts set forth in the [moving party's]
Statement of Material Facts that the [non-moving] party does
not specifically controvert.” Id.
This Court's “Local Rule requirements are not empty
formalities.” Bombard v. Gen. Motors Corp., 238 F. Supp.
2d 464, 467 (N.D.N.Y. 2002) (Munson, J.) (stating that
“[t]he courts of the Northern District have adhered to a strict
application of Local Rule 7.1[a][3]'s requirement on summary
judgment motions”); accord, Cross v. Potter, 09-CV-1293,
2013 WL 1149525, at *3 (N.D.N.Y. Mar. 19, 2013) (McAvoy,
J.). Indeed, the underlying purpose of this rule “is to assist
the court in framing the issues and determining whether
there exist any triable issues of fact that would preclude the
entry of summary judgment.” Youngblood v. Glasser, 10CV-1430, 2012 WL 4051846, at *4 (N.D.N.Y. Aug. 22, 2012)
(Peebles, M.J.); see also N.Y. Teamsters Conference Pension

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& Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 649 (2d
Cir. 2005) (noting that “Rules governing summary judgment
practice are essential tools for district courts, permitting them
to efficiently decide summary judgment motions by relieving
them of the onerous task of 'hunt[ing] through voluminous
records without guidance from the parties'”) (quoting Holtz v.
Rockefeller & Co., 258 F.3d 62, 74 [2d Cir. 2001]).
In the present case, Plaintiff has failed to respond
appropriately to Defendants' Rule 7.1 Statement of Material
Facts. Specifically, Plaintiff has failed to admit and/or deny
each of Defendants' factual assertions in matching numbered
paragraphs. Indeed, Defendants' Rule 7.1 Statement contains
71 paragraphs of factual assertions, while Plaintiff's 7.1
Response contains only 11 paragraphs. (Compare Dkt. No.
62 [Defs.' Rule 7.1 Statement] with Dkt. No. 66 [Pl.'s Rule
7.1 Response].) Moreover, many of Plaintiff's responses
are conclusory in nature and/or contain legal arguments.
The Court notes that, when he responded to Defendants'
motion, Plaintiff was represented by counsel. Accordingly,
the Court will accept the factual assertions in Defendants'
7.1 Statement as true to the extent that the evidence in the
record supports these facts. See Davis v. Cumberland Farms,
Inc., 10-CV-0480, 2013 WL 375477, at *4 (N.D.N.Y. Jan.
29, 2013) (Scullin, J.) (accepting the defendant's statement
of material facts as true where plaintiff neither admitted nor
denied defendant's factual assertions); Aktas v. JMC Dev. Co.,
Inc., 877 F. Supp. 2d 1, 5 n.3 (N.D.N.Y. 2012) (D'Agostino,
J.) (accepting the third-party defendants' statement of material
facts as true because the defendant/third-party plaintiff failed
to respond to it in accordance with Local Rule 7.1[a][3] ).

2. Undisputed Material Facts
*4 For purposes of this motion, the undisputed material
facts are as follows. Gerald Ennis has served as the Zoning
Enforcement Officer for the Town of Stuyvesant continuously
since 2003. (Dkt. No. 62, ¶ 43 [Defs.' Rule 7.1 Statement].)
In this capacity, Mr. Ennis issued Plaintiff a Class 2 Home
Occupation Permit in August, 2009. (Id., ¶ 44.) Under
this permit, “[n]o unusual appearances, noise, vibration,
smoke, dust, odors, heat, glare or electrical disturbances
that exceed those normally produced by a resident shall
be permitted.” (Id., ¶ 45.) Following the issuance of this
permit, Mr. Ennis received numerous noise complaints from
Plaintiff's neighbors in regard to increasingly loud barking
from dogs on Plaintiff's property. (Id., ¶¶ 46-47.) Following an
investigation into these complaints, Mr. Ennis concluded that

Plaintiff's “home dog kennel which housed up to 50 dogs at a
time was producing noise levels that exceeded those normally
produced by a resident and, accordingly, [Plaintiff] was in
violation of his Permit.” (Id., ¶ 48.)
On December 7, 2009, Mr. Ennis issued Plaintiff a notice
of violation, which informed Plaintiff that the Town had
received several complaints about the noise coming from
his property and directed Plaintiff to remedy the violation
by December 23, 2009. (Id., ¶ 49.) Subsequently, Plaintiff
contacted Mr. Ennis and requested that his phone number
be given to those who had complained with instructions that
they contact Plaintiff directly when there are noise issues
so he can rectify any problems. (Id., ¶ 50.) However, after
a few months had passed, Plaintiff stopped answering his
neighbors' phone calls; and, as a result, his neighbors made
new complaints to Mr. Ennis. (Id., ¶ 51.) After receiving
these complaints and personally observing the loud noise
emanating from Plaintiff's property, Mr. Ennis issued a second
notice of violation to Plaintiff on April 26, 2010. (Id., ¶¶
52-53.) In response, Plaintiff advised Mr. Ennis that he would
erect a sound barrier to remedy the issue. (Id., ¶ 54.)
According to Mr. Ennis, he waited “some time” for Plaintiff
to erect, or apply for a permit to construct, a sound barrier
but neither action was taken. (Id., ¶¶ 55-56.) After continuing
to receive noise complaints, Mr. Ennis issued a third notice
of violation to Plaintiff on August 9, 2010. (Id., ¶ 56.) On
the same day, Mr. Ennis met with Bertram and the Town
Attorney to discuss the noise issue on Plaintiff's property. (Id.,
¶ 57.) The Town Attorney advised Bertram that Mr. Ennis had
the authority to revoke Plaintiff's home occupation permit if
he determined that Plaintiff was in violation of the permit's
conditions. (Id., ¶ 37.) As a result, Bertram advised Mr. Ennis
that he may revoke Plaintiff's permit if he determined that the
permit's conditions had been violated. (Id., ¶ 38.) Later that
same day (August 9, 2010), Mr. Ennis made the decision to
revoke Plaintiff's permit and notified Plaintiff of that fact. (Id.,
¶¶ 39, 59.) Neither Plaintiff's statements concerning various
issues in the Town nor his postings on various Internet sites
had any bearing on the decision to revoke Plaintiff's permit.
(Id., ¶¶ 40, 61.)
Plaintiff testified at his deposition that the basis for his claim
that he was deprived of fire protection services is that, “in
2011, or perhaps late 2010,” a local fire department chief,
Steve Montie, posted an online statement that Plaintiff should
move out of town. (Id., ¶ 14.) Plaintiff testified that the post
was made in response to one of his earlier posts on a local

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town Internet forum; in Plaintiff's post, he had complained
of alleged ethical violations committed by Bertram. (Id., ¶¶
15-16.) The alleged post by Mr. Montie states in its entirety
as follows:
William,
How much more of this are you going to do ? ? ? ? You
are wasting more tax payer dollars than its worth. Man up
correct your problems and move on, or better yet move
out.
S
(Id., ¶ 19.) The author of this post is not identified by name
but only by the email address [e-mail];
and, as indicated above, the post is signed only as “S.” (Id.,
¶ 18.)
*5 Plaintiff testified that the statements in the alleged post
amounted to a threatened denial of fire department services
because “the fire chief told me I should move out of town,
which makes me wonder if there was a fire at my house
would he come.” (Id., ¶ 20.) However, Plaintiff testified that
no one has ever told him that the fire department would not
respond if there was a fire at his house. (Id., ¶ 22.) In addition,
Plaintiff testified that there are two distinct fire departments in
the Town, Stuyvesant Company 1 and Stuyvesant Company
2, which divide their responses to emergency calls in the
Town geographically. (Id., ¶ 23.) Steve Montie is the Chief
of Stuyvesant Company 1 and a different chief controls
Company 2. (Id., ¶ 25.) Plaintiff's property is located in
the geographic area covered by Company 2. (Id., ¶ 24.)
According to Bertram, she did not “in any way direct any fire
department to deprive or threaten to deprive [Plaintiff] of fire
services.” (Id., ¶ 33.)
Finally, Plaintiff testified that there was “never” a time that he
did not publicize or speak out against some issues based upon
any actions by the Town and the alleged efforts to silence him
did not work. (Id., ¶ 26.) In fact, following the alleged actions
by the Town, Plaintiff did more blogging and increased
his “political activities against the Town.” (Id., ¶ 27.) With
respect to his business, Plaintiff testified that, despite losing
his business permit in August, 2010, he continued to operate
his business uninterrupted without a permit as he had before
it was issued in 2009. (Id., ¶ 29.) Accordingly, there was
no interruption to Plaintiff's business as a result of his home
business permit being revoked. (Id., ¶¶ 28, 30.)

II. STANDARD GOVERNING A MOTION FOR
SUMMARY JUDGMENT
Under Fed. R. Civ. P. 56, summary judgment is warranted
if “the movant shows that there is no genuine dispute as to
any material fact and that the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). A dispute of
fact is “genuine” if “the [record] evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). As a result, “[c]onclusory allegations, conjecture and
speculation ... are insufficient to create a genuine issue of
fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998)
(citation omitted); see also Fed. R. Civ. P. 56(e)(2). As the
Supreme Court has famously explained, “[the non-moving
party] must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86
(1986). As for the materiality requirement, a dispute of fact is
“material” if it “might affect the outcome of the suit under the
governing law.” Anderson, 477 U.S. at 248. “Factual disputes
that are irrelevant or unnecessary will not be counted.” Id.
In determining whether a genuine issue of material fact
exists, the Court must resolve all ambiguities and draw all
reasonable inferences against the movign party. Anderson,
477 U.S. at 255. In addition, “[the moving party] bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the
... [record] which it believes demonstrate[s] the absence of
any genuine issue of material fact.” Celotex v. Catrett, 477
U.S. 317, 323-24 (1986); see also Fed. R. Civ. P. 56(c),
(e). However, when the moving party has met this initial
burden of establishing the absence of any genuine issue
of material fact, the nonmoving party must come forward
with specific facts showing a genuine dispute of material
fact for trial. Fed. R. Civ. P. 56(c), (e). Where the nonmovant fails to deny the factual assertions contained in the
movant's Rule 7.1 Statement of Material Facts in matching
numbered paragraphs supported by a citation to admissible
record evidence (as required by Local Rule 7.1[a][3] of the
Court's Local Rules of Practice), the court may not rely solely
on the movant's Rule 7.1 Statement; rather, the court must be
satisfied that the citations to evidence in the record support
the movant's assertions. See Giannullo v. City of N.Y., 322
F.3d 139, 143, n.5 (2d Cir. 2003) (holding that not verifying in
the record the assertions in the motion for summary judgment
“would derogate the truth-finding functions of the judicial
process by substituting convenience for facts”).

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III. ANALYSIS
A. Whether Plaintiff Suffered an Adverse Action
*6 After carefully considering the matter, the Court answers
this question in the negative for the reasons set forth in
Defendants' memorandum of law and reply memorandum of
law. (Dkt. No. 61, at 3-8 [Defs.' Mem. of Law]; Dkt. No. 74, at
6-8 [Defs.' Reply Mem. of Law].) To those reasons, the Court
adds the following two points.
As this Court noted in its prior decisions, in order to
state a claim for retaliation under the First Amendment, “a
plaintiff must prove (1) his conduct was protected by the
First Amendment, (2) the defendants' actions were motivated
or substantially caused by the exercise of that right, and
(3) defendants' actions effectively 'chilled' the exercise of
plaintiff's First Amendment right.” Pflaum, 937 F. Supp. 2d
at 303 (citing Dillon v. Morano, 497 F.3d 247, 251 [2d Cir.
2007]). “In cases 'involving criticism of public officials by
private citizens,' the Second Circuit has generally 'impose[d]
an actual chill requirement for First Amendment retaliation
claims[,]' i.e., a requirement that the plaintiff allege and
ultimately prove an 'actual chill' of his First Amendment
rights.” Hafez v. City of Schenectady, 894 F. Supp. 2d 207, 221
(N.D.N.Y. 2012) (D'Agostino, J.) (quoting Gill v. Pidlypchak,
389 F.3d 379, 381 [2d Cir. 2004]). “To establish this element,
it is not enough for the plaintiff simply to show that he
changed his behavior in some way; he must show that the
defendant intended to, and did, prevent or deter him from
exercising his rights under the First Amendment.” Hafez, 894
F. Supp. 2d at 221. “However, 'where the retaliation is alleged
to have caused an injury separate from any chilling effect,
such as a job loss or demotion, an allegation as to a chilling
effect is not necessary to state a claim.'” Id. (quoting Puckett v.
City of Glen Cove, 631 F. Supp. 2d 226, 239 [E.D.N.Y. 2009]);
see also Brink v. Muscente, 11-CV-4306, 2013 WL 5366371,
at *7 (S.D.N.Y. Sept. 25, 2013) (noting that, in private citizen
cases, “various forms of concrete harm have been substituted
for the 'actual chilling' requirement”).
First, it is clear from Plaintiff's deposition testimony that there
was no actual chilling of his protected speech as a result of
Defendants' actions. As discussed above, Plaintiff admitted
that he increased his political activities and continued to
publicize his opinions against the Town in the face of its
alleged efforts to silence him. “Where a party can show no
change in his behavior, he has quite plainly shown no chilling
of his First Amendment right to free speech.” Curley v. Vill.
of Suffern, 268 F.3d 65, 73 (2d Cir. 2001); see also Singer v.

Fulton Cty. Sheriff, 63 F.3d 110, 120 (2d Cir. 1995) (finding no
chilling effect where, after an arrest, the plaintiff continued to
publish his newspaper through which he criticized the village
government); Spear v. Town of W. Hartford, 954 F.2d 63,
67 (2d Cir. 1992) (finding no chilling effect where, after the
filing of a lawsuit, the plaintiff continued to write criticizing
editorials in the same manner as before the lawsuit).
Second, to the extent that Plaintiff argues that he perceived
the online post regarding the loss of fire protection as a real
threat, he is still required to show that his perception was
objectively reasonable, i.e., “that the defendant[s'] actions
had some actual, non-speculative chilling effect.” Colombo v.
O'Connell, 310 F.3d 115, 117 (2d Cir. 2002); see also Laird v.
Tatum, 408 U.S. 1, 13-14 (1972) (holding that “[a]llegations
of a subjective 'chill' are not an adequate substitute for a
claim of specific present objective harm or a threat of specific
future harm”). Plaintiff's subjective belief that the online
post constituted a real threat, without more, is insufficient to
demonstrate an actual chilling effect on his First Amendment
rights. Indeed, as discussed above in Point I.E.2. of this
Decision and Order, Plaintiff admitted that no one had told
him that the fire department would not respond if there was
a fire at his house. Moreover, a different fire chief than the
one who allegedly authored the online post is responsible for
responding to fire calls in the location of Plaintiff's residence.
B. Whether There Was a Causal Connection Between
Plaintiff's Speech and Any Adverse Action
*7 After carefully considering the matter, the Court answers
this question in the negative for the reasons set forth below.
To establish the second element of his First Amendment
retaliation claim, “plaintiff must provide specific proof of
defendants' improper motivation with either circumstantial or
direct evidence.” Media All., Inc. v. Mirch, 09-CV-0659, 2011
WL 3328532, at *5 (N.D.N.Y. Aug. 2, 2011) (D'Agostino,
J.) (citing Curley, 285 F.3d at 73). “Circumstantial evidence
includes close temporal proximity between plaintiff's speech
and the alleged retaliatory act.” Mirch, 2011 WL 3328532, at
*5.
“Regardless of the presence of retaliatory motive, however,
a defendant may be entitled to summary judgment if he
can show dual motivation, i.e., that even without the
improper motivation the alleged retaliatory action would have
occurred.” Scott v. Coughlin, 344 F.3d 282, 287-88 (2d Cir.
2003) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 287 [1977]). “Plaintiff has the initial burden

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of showing that an improper motive played a substantial part
in defendant's action. The burden then shifts to defendant to
show it would have taken exactly the same action absent the
improper motive.” Scott, 344 F.3d at 288.

1. Revocation of Plaintiff's Business Permit
In denying Defendants' underlying motion to dismiss
Plaintiff's First Amendment claim, this Court held that
Plaintiff had sufficiently alleged a concrete harm through
the loss of his business permit, and consequently, the loss
of business income, as a result of Defendants' alleged
retaliatory actions. Pflaum, 937 F. Supp. 2d at 308. Having
carefully reviewed the record, the Court finds that Plaintiff
has failed to create a genuine dispute of material fact
regarding Defendants' alleged improper motive. Specifically,
with respect to the revocation of his business permit, the
undisputed facts establish that the Town received complaints
regarding the noise emanating from Plaintiff's property.
Plaintiff was given two 3 noise violations over the course of
approximately one year and ample opportunity to rectify the
problem. (Dkt. No. 67, Attach. 5.) Because the noise problem
and complaints continued, Mr. Ennis revoked Plaintiff's
permit. 4 Even if Plaintiff were able to establish that an
improper motive played a part in this decision, it is clear
to the Court that, under these circumstances, the revocation
would have still occurred. Indeed, Plaintiff challenged the
decision to revoke his permit in appeals made to the Town's
Zoning Board of Appeals and in two actions filed in New
York State Supreme Court. (Dkt. No. 67, Attachs. 1 & 2.)
Although Plaintiff was successful in his state court actions,
those decisions were based, in part, upon the Town's failure to
follow proper procedure, rather than the merits of the Town's
decision. (Id.)

2. Criminal Charges
*8 Plaintiff has also failed to demonstrate an improper
motive with respect to his claim that he received false criminal
charges in retaliation for comments on his website about
corruption among public officials. Plaintiff relies on the
temporal proximity of these charges with a meeting he had
with Bertram and his filing of an Article 78 petition in New
York State Supreme Court. More specifically, Plaintiff argues
that he began an Internet blog on or about January 1, 2011,

and in that blog reported on what he perceived to be the illegal
activities of Town officials. (Dkt. No. 67, ¶ 15 [Pl.'s Decl.].)
For example, on January 1, 2011, Plaintiff wrote about the
alleged inflation of billable time by the Town Attorney that
was spent on work paid for by the Town. (Id. at 65:8-11.)
Around the same time, Plaintiff met with Bertram to discuss
his discovery of specific instances of corruption by public
officials, including the alleged inflation of billable work by
the Town Attorney. (Dkt. No. 59, Attach. 7, at 62:13-15;
64:9-15 [Pl.'s Dep. Tr.].) On January 15, 2011, a few days
after this meeting occurred, Plaintiff was issued a criminal
summons for the offense of “habitual loud barking,” in
violation of N.Y. Local Law § 1. (Id. at 61:19-22; Dkt. No.
68, Attach. 7 [Criminal Summons]; Dkt. No. 67, ¶ 15 [Pl.'s
Decl.].) Plaintiff testified at his deposition that the Town
Attorney went to great lengths to research the Local Law that
he was charged under and assisted one of Plaintiff's neighbors
in drafting an affidavit upon which the criminal summons
was based. (Dkt. No. 59, Attach. 7, at 65:17-21 [Pl.'s Dep.
Tr.]; Dkt. No. 67, ¶ 107 [Pl.'s Decl.].) Plaintiff argues that
he is the first Town resident to be charged under this section
of the Local Law. (Dkt. No. 67, ¶¶ 100, 106 [Pl.'s Decl.].)
Finally, Plaintiff argues that Bertram retained outside counsel
to pursue this charge against him, which was later dismissed.
(Dkt. No. 67, ¶¶ 5, 19, 21 [Pl.'s Decl.]; Dkt. No. 59, Attach.
7, at 57:16-18 [Pl.'s Dep. Tr.].)
Thereafter, in October 2011, Plaintiff filed an Article 78
petition in New York State Supreme Court challenging
the Town's denial of Plaintiff's FOIL requests. (Dkt. No.
59, Attach. 7, at 67:7-12 [Pl.'s Dep. Tr.].) Plaintiff sought
disclosure of the information in the FOIL requests to
substantiate his belief that Town officials were engaging
in illegal activities. (Dkt. No. 67, ¶¶ 43-44 [Pl.'s Decl.].)
One week after commencing that action, Plaintiff received a
second criminal summons for the same offense related to loud
dog barking. (Dkt. No. 68, Attach. 7 [Appearance Ticket];
Dkt. No. 59, Attach. 7, at 56:16-19; 67:7-12 [Pl.'s Dep. Tr.].)
Plaintiff testified that he had “almost no dogs” on his property
in October 2011. (Dkt. No. 59, Attach. 7, at 67:8-10 [Pl.'s Dep.
Tr.].) According to Plaintiff, that charge was neither dismissed
nor withdrawn, but “vanished.” (Id., at 57:19-58:9.)
While Plaintiff's allegations may plausibly suggest that an
improper motive played a role in the charges brought
against him, Defendants have submitted admissible record
evidence that establishes otherwise. (Dkt. No. 59, Attach. 17.)
Specifically, the criminal information in question is signed

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by one of Plaintiff's neighbors, Frederick Platt, and states, in
part, that “my complaint is that the dogs at Glencadia Dog
Camp exhibit ongoing habitual barking/howling at any given
time of day or night. This has been an issue since the Fall of
2009.” (Id.) Furthermore, an affidavit filed by Wes Powell, the
Town's Dog Control Officer, states that he received repeated
complaints from Mr. Platt throughout 2010, culminating in
the noise complaint that served as the basis for the criminal
charge. (Dkt. No. 59, Attach. 16, ¶¶ 3-5 [Powell Aff.].) Mr.
Powell states that the complaint was written by Mr. Platt in
his presence and that no Town official directed Mr. Powell to
serve Plaintiff with the criminal summons. (Id., ¶¶ 7-10.)
*9 Conversely, Plaintiff has not submitted any admissible
record evidence supporting his claim that the Town Attorney
(who is not a party) played any role in the charge being
filed against him or that he is the only resident to have
ever been charged under this section of the Local Law.
Similarly, Plaintiff's contention that the Town pressured Mr.
Platt to file a complaint against him (Dkt. No. 67, ¶ 7[Pl.'s
Decl.] ) is unsubstantiated. While the timing of the charge
may appear suspicious, the Town cannot control when its
residents decide to file a complaint and, in light of the record
evidence demonstrating that there was a preexisting noise
problem on Plaintiff's property, the complaint is unsurprising.
Moreover, the fact that Plaintiff believes the Town shored up
its criminal charge against him is of little, if any, materiality.
Finally, because the second charge seemingly “vanished,” no
documentation or evidence (other than the appearance ticket
itself) has been submitted with respect to that charge. In any
event, because the charge was never prosecuted, Plaintiff
has failed to support his claim that he suffered any harm.
Accordingly, the Court finds that Plaintiff has failed to meet
his burden in demonstrating an improper motive with respect
to this charge.

3. Town Assessor Gleason
Plaintiff claims that Town Assessor Howard Gleason (also not
a party) threatened to raise his property taxes for engaging in
political activities when Mr. Gleason hand delivered a letter to
Plaintiff before a public meeting. (Dkt. No. 69, Attach. 18, at
3 [Letter from Pl. to Gleason]; Dkt. No. 67, ¶ 29 [Pl.'s Decl.].)
The only evidence submitted with respect to this claim is
not the original letter from Mr. Gleason to Plaintiff but letter
correspondence from Plaintiff to Mr. Gleason. (Dkt. No. 69,
Attach. 18, at 3 [Letter from Pl. to Gleason].) Plaintiff's letter
to Mr. Gleason, dated October 5, 2010, states that Plaintiff

interpreted Mr. Gleason's attempt to speak with him about tax
filings before a town hall meeting as threatening in nature
due to the “timing and manner of the interaction.” (Id.)
This is because Plaintiff “had announced [his] intention to
call for a referendum frequently and in many forums prior
to appearing for the meeting.” (Id.) Furthermore, Plaintiff
requested that, in order to “avoid the impression that you
coordinate your tax-related activities with other people in
government in order to intimidate free speech, please do not
present important information to me in such an information
[sic] and unverifiable way.” (Id.)
However, Mr. Gleason's response to Plaintiff's letter suggests
that their interaction was not meant as a threat to
raise Plaintiff's taxes or “was in any way politically
motivated.” (Dkt. No. 69, Attach. 18, at 4 [Letter from Pl.
to Gleason].) More specifically, Mr. Gleason explains that
he needed to re-assess Plaintiff's property in light of the fact
that Plaintiff was now running a kennel (business) on his
property and decided to hand deliver his letter knowing that
Plaintiff would be present for the town hall meeting. (Id.)
Moreover, Mr. Gleason reassured Plaintiff that politics do not
dictate how he performs his job and promised that all future
communication will be transmitted through mail rather than
in-person. (Id.)
Plaintiff has failed to submit any additional evidence with
respect to his tax assessment, that his taxes were improperly
raised or that Mr. Gleason acted with a retaliatory animus. 5
Similarly, no evidence has been submitted to substantiate
Plaintiff's claim that Bertram encouraged Mr. Gleason to use
his authority as Town Assessor to intimidate Plaintiff. In sum,
Plaintiff has wholly failed to satisfy his burden demonstrating
that he suffered harm as a result of any action taken by Mr.
Gleason and that Mr. Gleason acted with an improper motive.
*10 For all of these reasons, the Court finds that Plaintiff
has failed to create a genuine dispute of material fact with
respect to his First Amendment claim. Because the Court has
reached this conclusion, it need not, and does not, consider the
merits of Defendant Bertram's alternative qualified immunity
argument.
ACCORDINGLY, it is
ORDERED that Defendants' motion for summary judgment
(Dkt. No. 59) is GRANTED. The Clerk of the Court is
directed to enter judgment in favor of the Defendants and
close this case.

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7

Pflaum v. Town of Stuyvesant, Columbia Cty., N.Y., Not Reported in Fed. Supp. (2016)

All Citations
Not Reported in Fed. Supp., 2016 WL 865296

Footnotes
1

Although Plaintiff is currently proceeding pro se, the Court notes that he had counsel when preparing his
response to Defendant's motion for summary judgment. Accordingly, no need exists to construe Plaintiff's
response with the special solicitude ordinarily afforded to pro se litigants.

2

The Court notes that, while it did not previously (i.e., in its prior decisions) liberally construe Plaintiff's
retaliation claim as arising under three separate theories, it does so now. The Court further notes that it
has the power to address these two additional theories for each of two alternative reasons: (1) because
Defendants moved for dismissal of Plaintiff's retaliation claim in its entirety, Plaintiff has had sufficient notice
and an opportunity to be heard with respect to the two theories in question; and (2) in any event, even if
Plaintiff cannot be said to have had such notice and an opportunity to be heard, he filed his Complaint pro
se and the Court finds the two theories to be so lacking in arguable merit as to be frivolous, see Fitzgerald
v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (recognizing that district court has
power to sua sponte dismiss pro se complaint based on frivolousness notwithstanding fact that plaintiff has
paid statutory filing fee).

3

As discussed above, Plaintiff was actually given three noise violations. However, because his permit was
revoked on the same day that he received the third violation, the Court will disregard the third violation for
purposes of this analysis.

4

The Court notes that Plaintiff spends considerable time in his opposition papers disputing the sufficiency of the
evidence and procedures that were followed that led to the issuance of noise violations. (See generally Dkt.
No. 67, ¶¶ 56-95 [Pl.'s Decl.].) However, this Court is not the proper forum for that dispute. Furthermore, to
the extent that the New York Supreme Court observed that there appeared “to have been a disproportionate
amount of time and money spent on [the noise violation] notice,” and that the records did not “reveal a real
issue with dog-barking,” those observations are not binding upon this Court. (Dkt. No. 67, Attach. 2, at 6.)
Setting aside the fact that the observations constitute dicta, Defendants have submitted admissible record
evidence demonstrating that Mr. Ennis acted upon complaints made to him by residents of the Town, which
Plaintiff has failed to properly dispute.

5

For example, with regard to this lack of additional evidence regarding retaliatory animus, Plaintiff has failed to
adduce admissible record evidence establishing that, even assuming Mr. Gleason knew of Plaintiff's intent to
engage in protected speech, the so-called “manner of the interaction” by Mr. Gleason (i.e., the hand delivery
of the letter) was in fact unusual for Mr. Gleason given the date of the letter and the date of the public
meeting. Moreover, Plaintiff has failed to adduce admissible record evidence that the so-called “timing ...
of the interaction” is significant, given his rather constant exercise of his First Amendment rights during the
time in question.

End of Document

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8

Perry v. County of Westchester, Not Reported in Fed. Supp. (2008)

2008 WL 11438085
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Ted PERRY, Plaintiff,
v.
COUNTY OF WESTCHESTER, Defendant.
Case No. 06-CV-3000 (KMK)
|
Signed 03/31/2008
Attorneys and Law Firms
Pamela D. Hayes, Esq., Law Office of Pamela D. Hayes, Esq.,
New York, New York, Counsel for Plaintiff.
Stuart E. Kahan, Esq., Oxman Tulis Kirkpatrick Whyatt &
Geiger, LLP, White Plains, New York, Counsel for Defendant.

OPINION AND ORDER
KENNETH M. KARAS, UNITED STATES DISTRICT
JUDGE
*1 On April 19, 2006, Plaintiff Ted Perry (“Plaintiff”)
filed this employment discrimination suit against Defendant
County of Westchester (“Defendant”). Before the Court
is Defendant's Motion for Summary Judgment, seeking
dismissal of Plaintiff's Complaint. For the reasons stated
herein, Defendant's Motion is GRANTED.

I. Background
A. Employment and Disciplinary History
The following facts are undisputed, except where indicated.
Plaintiff, an African-American man, began his employment
with Defendant in June 1988 as a seasonal laborer in the
Department of Parks Recreation and Conservation. (Def.'s
Revised Statement of Material Facts Pursuant to Local Civil
Rule 56.1(a) ¶¶ 1-2 (“Def.'s 56.1 Stmt”); Pl.'s Revised
Counter-Statement of Material Facts Pursuant to Local Rule
56.1(b) ¶¶ 1-2 (“Pl.'s 56.1 Stmt”).) Shortly thereafter, in
July 1988, Plaintiff was promoted to a full-time Maintenance
Laborer, Grade IV. (Def.'s 56.1 Stmt ¶ 3; Pl.'s 56.1 Stmt
¶ 3.) In 1992, Plaintiff was promoted to the position of

Maintenance Mechanic II, Grade VII. (Def.'s 56.1 Stmt ¶ 4;
Pl.'s 56.1 Stmt ¶ 4.)
Later, in 1993, Plaintiff's title was reclassified to the position
of Housekeeper, Grade VII. (Def.'s 56.1 Stmt ¶ 5; Pl.'s 56.1
Stmt ¶ 5.) The titles of two other employees – Roger Emery
(“Emery”) and John Ponce (“Ponce”), both of whom are
Caucasian – were also reclassified to Housekeeper, but, unlike
Plaintiff, these employees filed a union grievance regarding
this reclassification. (Def.'s 56.1 Stmt ¶¶ 6-7; Pl.'s 56.1 Stmt
¶¶ 6-7.) Emery and Ponce were successful in their grievance
and had their positions reclassified to Maintenance Mechanic.
(Def.'s 56.1 Stmt ¶ 8; Pl.'s 56.1 Stmt ¶ 8; Aff. of Stuart E.
Kahan, Ex. H (“Kahan Aff.”).)
In the fall of 1995, Plaintiff was suspended for approximately
sixty days without pay in connection with an altercation
between Plaintiff and a co-worker. (Def.'s 56.1 Stmt ¶¶ 9-12;
Pl.'s 56.1 Stmt ¶¶ 9-12; Kahan Aff., Ex. J.) Plaintiff was soon
thereafter reassigned to the Division of General Maintenance
in November 1995. (Def.'s 56.1 Stmt ¶ 13; Pl.'s 56.1 Stmt ¶
13.) Years later, in 2000, Plaintiff was reassigned to Croton
Point Park, and in 2001, Plaintiff was again reassigned to
the Bronx River Parkway Reservation, where he reported to
superintendent Robert Bates (“Bates”). (Def.'s 56.1 Stmt ¶¶
21-22; Pl.'s 56.1 Stmt ¶¶ 21-22.)
Plaintiff was issued a warning notice by Bates on May 14,
2002 for “refus[ing] to do the work assigned to him and
[for leaving the] work site without permission.” (Def.'s 56.1
Stmt ¶ 23; Pl.'s 56.1 Stmt ¶ 23.) On October 24, 2002, Bates
issued to Plaintiff another warning notice, citing Plaintiff
for “time abuse.” (Def.'s 56.1 Stmt ¶ 25; Pl.'s 56.1 Stmt ¶
25.) According to Plaintiff, on November 8, 2002, he missed
several hours of work to answer a jury summons in the
Bronx County Courthouse. (Def.'s 56.1 Stmt ¶ 26; Pl.'s 56.1
Stmt ¶ 26.) Plaintiff alleges that on the following work day,
November 12, 2002, Bates reprimanded Plaintiff for attending
jury duty and told him that his pay would be docked for the
time missed. (Def.'s 56.1 Stmt ¶ 27; Pl.'s 56.1 Stmt ¶ 27.) 1
Defendant claims that Plaintiff's time was never docked for
jury duty (Def.'s 56.1 Stmt ¶ 28), but Plaintiff insists that it
was (Decl. of Pl. Ted Perry in Opp'n to Def.'s Mot. for Summ.
J. ¶ 14 (“Pl.'s Decl.”) ). On November 25, 2002, Plaintiff was
issued another warning notice, this time for taking time off
on November 18, 2002, though he had already used up all
of his available time. (Kahan Aff., Ex. Y.) Plaintiff, however,
denies missing work on November 18, 2002, and insists
that this warning notice was actually for the time he missed

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1

Perry v. County of Westchester, Not Reported in Fed. Supp. (2008)

attending jury duty. (Pl.'s Decl. ¶ 14.) Yet more warning
notices were issued to Plaintiff on December 30, 2002, for
failing to produce a driver's license, and on January 24, 2003
and January 27, 2003, for calling in sick with no sick leave
balance. (Kahan Aff, Ex. AA, BB.)
*2 On May 2, 2003, Plaintiff injured his back while working,
which he did not report until May 5, 2003. (Def.'s 56.1 Stmt
¶¶ 34-35; Pl.'s 56.1 Stmt ¶¶ 34-35.) Also on May 5, Plaintiff
was issued a warning notice for inappropriate conduct and
insubordination. (Kahan Aff., Ex. DD.) That was the last day
Plaintiff went to work. Plaintiff was issued two more warning
notices, on May 8, 2003 and May 9, 2003, both for failing
to report to work and failing to call in. (Def.'s 56.1 Stmt ¶
37; Pl.'s 56.1 Stmt ¶ 37.) Thereafter, Plaintiff began collecting
worker's compensation and social security disability benefits.
(Def.'s 56.1 Stmt ¶ 39; Pl.'s 56.1 Stmt ¶ 39.) Defendant
officially terminated Plaintiff's employment on October 28,
2004. (Def.'s 56.1 Stmt ¶¶ 44-45; Pl.'s 56.1 Stmt ¶¶ 44-45.)
B. Plaintiff's Allegations of Discrimination
Plaintiff alleges that Defendant discriminated against him on
the basis of race in violation of Title VII of the Civil Rights
Act of 1964 and of the Civil Rights Act of 1866, 42 U.S.C.
§ 1981. Plaintiff claims that he was subjected to disparate
treatment and a hostile work environment when he was forced
to work out-of-title – while his Caucasian co-workers were
not – from 1995 through May 5, 2003, performing dangerous
and undesirable tasks that had no relationship to his job duties
and that ultimately resulted in his back injury. (Compl. 3-4,
7-8.) 2 Further, Plaintiff asserts that, from 1999 to 2003, he
was subjected to a hostile work environment when he was
disciplined for minor infractions, while Caucasian employees
were not disciplined for the same or worse behavior. (Id. 3.)
One incident highlighted by Plaintiff is alleged to have taken
place in November 2002, when Plaintiff claims to have had
his pay docked for attending jury duty. Plaintiff asserts that
Caucasian employees – in particular, Jason Aubry (“Aubry”)
– were never docked pay for attending court appearances. (Id.
4-5, 7.)
In sum, Plaintiff alleges that:

Plaintiff has continually been
disciplined and treated in a disparage
[sic] fashion, due to his race. He
was forced to work out of title since

1995 when he was required to perform
tasks which had no relationship
to his duties. He was docked for
performing legitimate duties, such
as jury duty, all the while white
employees were given time off to
go to court. He was disciplined,
while other white employees were
not disciplined for the same or worse
behavior. Said discrimination occurred
solely because of Plaintiff's race, and
amounted to a hostile environment.

(Id. 1-2.)
C. Procedural History
On October 5, 1999, Plaintiff filed a complaint alleging
harassment on account of his race with the Westchester
County Equal Employment Opportunity/Affirmative Action
Office (“EEO/AAO”). (Def.'s 56.1 Stmt ¶ 14; Pl.'s 56.1 Stmt
¶ 14.) In February 2000, the EEO/AAO determined that there
existed no evidence of racial discrimination or harassment,
and in May 2000, the EEO/AAO closed its file on Plaintiff's
complaint. (Def.'s 56.1 Stmt ¶¶ 15-16; Pl.'s 56.1 Stmt ¶¶
15-16.) Plaintiff filed a complaint dated June 2, 2000 with
the Equal Employment Opportunity Commission (“EEOC”),
alleging racial discrimination and retaliation premised on a
continuing violation spanning from August 2, 1999 to April
14, 2000. (Def.'s 56.1 Stmt ¶ 17; Pl.'s 56.1 Stmt ¶ 17.) In June
2001, the EEOC issued to Plaintiff a Dismissal and Notice of
Rights Letter, in which it “adopted the findings of the State
or Local Fair Employment Practices Agency that investigated
this charge.” (Def.'s 56.1 Stmt ¶ 19; Pl.'s 56.1 Stmt ¶ 19.)
Plaintiff never filed a lawsuit in connection with these claims.
(Def.'s 56.1 Stmt ¶ 20; Pl.'s 56.1 Stmt ¶ 20.)
*3 On August 11, 2003, Plaintiff filed another complaint
alleging discrimination with the New York State Department
of Human Rights (“NYSDHR”). (Def.'s 56.1 Stmt ¶ 40; Pl.'s
56.1 Stmt ¶ 40.) In this complaint, Plaintiff claimed that he
had been treated disparately by Defendant due to his race
from 1999 until May 5, 2003, and that he had been assigned
undesirable tasks at work since 1999. (Kahan Aff., Ex. GG.)
The NYSDHR determined on September 28, 2005, that there
existed no probable cause to support Plaintiff's allegations of
discrimination. (Def.'s 56.1 Stmt ¶ 42; Pl.'s 56.1 Stmt ¶ 42.)
On January 17, 2006, the EEOC issued to Plaintiff a Dismissal

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2

Perry v. County of Westchester, Not Reported in Fed. Supp. (2008)

and Notice of Rights letter. (Def.'s 56.1 Stmt ¶ 43; Pl.'s 56.1
Stmt ¶ 43.)
Plaintiff initiated the present lawsuit on April 19, 2006,
alleging: (i) employment discrimination in violation of Title
VII of the Civil Rights Act of 1964 as amended, 42 U.S.C.
§ 2000e-5(f) (Compl. 8); and (ii) racial discrimination in
violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981
(id. 6). Discovery closed on January 3, 2007. On February
26, 2007, Defendant filed a Motion for Summary Judgment
pursuant to Federal Rule of Civil Procedure 56(b), seeking
summary judgment in its favor on the following grounds:

(a) portions of plaintiff's complaint
are time barred pursuant to the
300 day limitations period set forth
[in] 42 U.S.C. § 2000e-5(e); (b)
plaintiff may not seek damages due
to his termination from employment
since plaintiff failed to exhaust
administrative remedies; (c) the
plaintiff has failed to make out a prima
facie case of racial discrimination via
disparate treatment since the plaintiff
cannot prove that he was subjected
to an adverse employment action or
that a reasonable inference of racial
discrimination can be reached based
upon defendant's actions; (d) assuming
that plaintiff has met the minimal
requirements for a prima facie case
of racial discrimination, the County
presented a race neutral reason for
its employment decisions regarding
[Plaintiff] and the plaintiff cannot
prove that the County's actions were
mere pretext; (e) the plaintiff's claim
based upon the existence of a hostile
work environment must be dismissed
because there is no evidence that
such an environment existed; and (f)
plaintiff's Section 1981 claim must be
dismissed.

(Def.'s Mem. of Law in Supp. of Def. County of Westchester's
Mot. for Summ. J. 1-2 (“Def.'s Mem.”).)

Plaintiff did not file opposition papers by the March 12, 2007
deadline set by Judge Colleen McMahon, to whom this case
was originally assigned. On June 28, 2007, Judge McMahon
issued an order, stating: “Plaintiff's opposition was due March
12, 2007. The court has not received any response. Plaintiff
has 30 days to file a response to the motion. If no response has
been filed, the motion will be deemed submitted and the court
will decide it without benefit of any response.” (Docket No.
27.) Plaintiff failed to file opposition papers within the thirtyday deadline set by Judge McMahon on June 28, 2007. On
August 6, 2007, the case was reassigned to this Court. Plaintiff
finally filed opposition papers on August 22, 2007 – without
explanation as to the delay or permission from the Court to
do so. The Court held oral argument on March 11, 2008.
For reasons stated herein, Defendant's Motion for Summary
Judgment is GRANTED.

II. Discussion
A. Standard of Review
Summary judgment may be granted when it is shown that
there is “no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986). The Court must view all evidence in
the light most favorable to the non-moving party and must
draw all reasonable inferences in the non-movant's favor.
See Tufariello v. Long Island R.R. Co., 458 F.3d 80, 85 (2d
Cir. 2006). A party seeking summary judgment bears the
burden of establishing that no genuine issue of material fact
exists. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 157
(1970); Segal v. City of New York, 459 F.3d 207, 211 (2d Cir.
2006). “Once the moving party has made a properly supported
showing sufficient to suggest the absence of any genuine issue
as to a material fact, the nonmoving party, in order to defeat
summary judgment, must come forward with evidence that
would be sufficient to support a jury verdict in his favor.”
Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14,
18 (2d Cir. 1995). “The motion ‘will not be defeated merely ...
on the basis of conjecture or surmise.’ ” Id. (quoting Bryant
v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) ); see also
McPherson v. N.Y. City Dep't of Educ., 457 F.3d 211, 215 n.4
(2d Cir. 2006) (“[S]peculation alone is insufficient to defeat
a motion for summary judgment.”); Caldarola v. Calabrese,
298 F.3d 156, 160 (2d Cir. 2002) (“[The non-movant] must do
more than simply show that there is some metaphysical doubt
as to the material facts.” (internal quotation marks omitted) ).

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3

Perry v. County of Westchester, Not Reported in Fed. Supp. (2008)

*4 The materiality of the facts considered by the Court
will be governed by substantive law. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). At summary judgment,
the Court is not charged with weighing the evidence and
determining its truth, but with determining whether there is
a genuine issue for trial. See Westinghouse Elec. Corp. v.
N.Y. City Transit Auth., 735 F. Supp. 1205, 1212 (S.D.N.Y.
1990); see also Castro v. Metro. Transp. Auth., No. 04CV-1445, 2006 WL 1418585, at *2 (S.D.N.Y. May 23, 2006).
A court's goal should be to “isolate and dispose of factually
unsupported claims.” Celotex, 477 U.S. at 323-24.
While courts are to be “particularly cautious” about granting
summary judgment to employers in cases where the
discriminatory intent of the employer is contested, Schwapp
v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997), “[i]t is
now beyond cavil that summary judgment may be appropriate
even in the fact-intensive context of discrimination cases,”
Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d
Cir. 2001). Though district courts must pay careful attention
to affidavits and depositions that may reveal circumstantial
proof of discrimination, see Gallo v. Prudential Residential
Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994), courts
are not to “treat discrimination differently from other ultimate
questions of fact.” Abdu-Brisson, 239 F.3d at 466 (quoting
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
148 (2000) ); see also Schiano v. Quality Payroll Sys., Inc.,
445 F.3d 597, 604 (2d Cir. 2006) (noting the caution with
which the Second Circuit reviews the grant of summary
judgment in discrimination cases “because direct evidence of
discriminatory intent is rare and such intent often must be
inferred from circumstantial evidence found in affidavits and
depositions[,]” but stating that “summary judgment remains
available for the dismissal of discrimination claims in cases
lacking genuine issues of material fact” (internal quotation
marks omitted) ).
B. Applicable Time Limitations
In its Motion for Summary Judgment, Defendant argues that
Plaintiff is not entitled to base his claim on any discrete acts
of alleged discrimination occurring before October 14, 2002
because such acts are more than 300 days before Plaintiff's
NYSDHR complaint was filed. 3 (Def.'s Mem. 3.) Further,
Defendant argues that acts of alleged discrimination that
served as the basis of Plaintiff's 1999 complaint with the
NYSDHR may not form the basis of Plaintiff's present claim
because Plaintiff failed to file suit on those acts within ninety

days of the EEOC's June 11, 2001 Notice of Rights letter. (Id.
5-6.)
To these arguments, Plaintiff responds that his present claims
are not dependent on any discrete acts occurring before those
time periods but insists that consideration of past acts is
appropriate in demonstrating the existence of a hostile work
environment and validating a theory of a continuing violation
based on disparate treatment and out-of-title work. (Pl.'s
Mem. of Law in Opp'n to Def. County of Westchester's Mot.
for Summ. J. Pursuant to Fed. R. of Civ. P. 56(b) 4 (“Pl.'s
Mem.”) (“These instances provide the Court with a history
of how the underlying cause of action came to pass and does
not specifically ask for action on events which started years
earlier. It merely demonstrates the theory of a continuing
violation.”).)
*5 The Supreme Court has made clear that discrete acts
occurring more than 300 days before Plaintiff filed his
complaint with the NYSDHR are not actionable. See Nat'l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)
(“[D]iscrete discriminatory acts are not actionable if time
barred, even when they are related to acts alleged in
timely filed charges. Each discrete discriminatory act starts
a new clock for filing charges alleging that act. The charge,
therefore, must be filed within the ... 300-day time period
after the discrete discriminatory act occurred.”). Recently, in
Ledbetter v. Goodyear Tire & Rubber Co., the Supreme Court
elaborated:

A new violation does not occur,
and a new charging period does
not commence upon the occurrence
of subsequent nondiscriminatory acts
that entail adverse effects resulting
from past discrimination. But of
course, if an employer engages in
a series of acts each of which is
intentionally discriminatory, then a
fresh violation takes place when each
act is committed.... [C]urrent effects
alone cannot breathe life into prior,
uncharged discrimination....

127 S. Ct. 2162, 2169 (2007)

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4

Perry v. County of Westchester, Not Reported in Fed. Supp. (2008)

Acts that were the subject of Plaintiff's 1999 EEO/AAO and
EEOC complaints are also not actionable because Plaintiff
failed to bring suit on those acts within ninety days from
receipt of the EEOC Notice of Rights letter. To the extent that
the second right-to-sue letter, dated January 2006, is based
on the same facts as the first, Plaintiff cannot complain about
those claims in this lawsuit. See Lo v. Pan Am. World Airways,
787 F.2d 827, 828 (2d Cir. 1986) (per curiam) (denying claims
where second EEOC complaint was based on same facts as
earlier lapsed right-to-sue letter). However, the June 2001
right-to-sue letter will not preclude the current suit “to the
extent that plaintiff's Complaint is based on allegations in the
second [EEOC complaint] which did not appear in the first
[EEOC complaint].” Dahbany-Miraglia v. Queensboro Cmty.
Coll., No. 03-CV-8052, 2004 WL 1192078, at *7 (S.D.N.Y.
May 27, 2004). Time-barred acts will only be considered
to the extent that they constitute “background evidence in
support of a timely claim.” Morgan, 536 U.S. at 113 (“The
existence of past acts and the employer's prior knowledge
of their occurrence, however, does not bar employees from
filing charges about related discrete acts so long as the acts are
independently discriminatory and charges addressing those
acts are themselves timely filed.”); see also Williams v. British
Airways, PLC, 06-CV-5085, 2007 WL 2907426, at *11 n.20
(E.D.N.Y. Sept. 27, 2007) (“[C]ertain incidents, even if timebarred, ‘may constitute relevant background evidence in a
proceeding in which the status of a current practice is at issue.’
” (quoting Morgan, 536 U.S. at 112) ).

the notion “that an employment practice committed with no
improper purpose and no discriminatory intent is rendered
unlawful nonetheless because it gives some effect to an
intentional discriminatory act that occurred outside the
charging period.” Ledbetter, 127 S. Ct. at 2172.

The continuing violation theory is a tolling mechanism that
rarely permits recovery for otherwise untimely violations.
See Santiago v. Newburgh Enlarged City Sch. Dist., 485 F.
Supp. 2d 327, 331 (S.D.N.Y. 2007) (“Very few acts qualify as
continuing violations, so as to trigger a continuous tolling of
the statute of limitations.”). A hostile work environment claim
is a type of continuing violation based on the “cumulative
affect of individual acts,” which together constitute “one
unlawful employment practice.” See Morgan, 536 U.S at
115. “It does not matter, for purposes of the [time limitation
in the] statute, that some of the component acts of the
hostile work environment fall outside the statutory time
period. Provided that an act contributing to the claim occurs
within the filing period, the entire time period of the hostile
environment may be considered by a court for the purposes
of determining liability.” Id. at 117; accord Santiago, 485
F. Supp. 2d at 331 (“[I]n a hostile work environment case,
acts outside the 300 day limit that contribute to an ongoing
hostile work environment are actionable under a continuing
violation theory.”). The Supreme Court, however, has rejected

9, 1999. 4 According to Plaintiff's counsel, these additional
submissions “clearly show Plaintiff was treated differently,
that everyone knew about it ... and [that] Plaintiff was held to
a different standard which was discriminatory and caused him
to suffer damages.” (Letter from Pamela D. Hayes, Esq., to the
Court, dated March 17, 2008.) Notably absent from Plaintiff's
counsel's recent submissions is an explanation as to why it has
taken until now to submit these items to the Court – over a
year after Plaintiff's full response to Defendant's Motion was
due.

*6 To the extent Plaintiff is able to establish that there
existed a hostile work environment during his employment
with Defendant, recovery may be premised even on untimely
acts as long as they – in conjunction with timely acts – created
a hostile work environment. The Court notes, however, that
even if the past acts contributed to a hostile work environment
under a continuing violation theory, those acts would not
be actionable to the extent that they formed the basis of
Plaintiff's 1999 complaint. Plaintiff's opportunity to file suit
on those alleged violations has long since passed and no
tolling doctrine will revive them at this point. With respect
to Plaintiff's disparate treatment claim based on adverse
employment actions, Plaintiff can only rely on discrete acts
of alleged discrimination occurring within the 300-day period
preceding Plaintiff's August 11, 2003 EEOC complaint. See
Morgan, 536 U.S. at 113.
C. Plaintiff's Request to Supplement the Record
On March 13, 2008, after March 11 oral argument, Plaintiff's
counsel submitted to the Court an application to supplement
the record with a new affidavit from Plaintiff and with what
appears to be the minutes of a meeting held on November

“Under Fed. R. Civ. P. 6(b)(2), the Court has discretion to
allow plaintiff to submit new evidence if the Court determines
that plaintiff's failure to submit such evidence in a timely
fashion ‘was the result of excusable neglect.’ ” Davidson v.
Scully, 148 F. Supp. 2d 249, 251 (S.D.N.Y. 2001) (quoting
Davidson v. Keenan, 740 F.2d 129, 132 (2d Cir. 1984)
). “The determination whether neglect is ‘excusable’ in a
particular case rests with the sound discretion of the district
court.” Keenan, 740 F.2d at 132. In making the equitable

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determination of whether failure to make a more timely
submission of new evidence constitutes excusable neglect, the
factors that the Court may consider include: “ ‘the danger of
prejudice’ to the non-moving party, ‘the length of the delay
and its potential impact on judicial proceedings, the reason
for the delay, including whether it was within the reasonable
control of the movant, and whether the movant acted in good
faith.’ ” Scully, 148 F. Supp. 2d at 251-52 (quoting Pioneer
Inv. Servs. Co. v. Brunswick Assoc. Ltd. P'ship, 507 U.S. 380,
395 (1993) ).
Here, the Court has little trouble finding that Plaintiff (or,
really his counsel) has failed to meet the excusable neglect
burden. The information Plaintiff seeks to add was available
to him long ago (over a year) and obviously any firsthand testimony he offers has always been available to him.
Moreover, Defendant is plainly prejudiced by the late use
of this information as it likely would have been the subject
of rigorous inquiry during Plaintiff's deposition and other
discovery. Nor is there good faith. Plaintiff's counsel only
tendered these new offerings when it was clear that her initial
representations were exposed as wholly unsupported by the
record as it existed at the time the Motion was fully briefed.
Thus, the Court finds the extraordinary delay here to be
inexcusable. Therefore, Plaintiff's request to supplement the
record with the March 13 submissions is denied.
D. Plaintiff's Claims of Employment Discrimination
*7 Plaintiff claims he was the victim of employment
discrimination. To establish a claim of racial discrimination,
Plaintiff must show that either: “(1) an adverse employment
action under circumstances giving rise to an inference of
discrimination based on race; or (2) harassment on the basis of
race that amounts to a hostile work environment.” Williams,
2007 WL 2907426, at *11 (citing Feingold v. New York, 366
F.3d 138, 149 (2d Cir. 2004) ). Plaintiff asserts claims of racial
discrimination based on each of these theories, so the Court
will consider them in turn.

1. Disparate Treatment Claim & the
McDonnell Douglas Framework
Title VII of the Civil Rights Act of 1964 makes it an “unlawful
employment practice for an employer ... to discriminate
against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of
such individual's race....” 42 U.S.C. § 2000e-2(a)(1). The

Supreme Court's opinion in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), “established an allocation of
the burden of production and an order for the presentation of
proof in Title VII discriminatory-treatment cases.” St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). First, the
plaintiff must establish, by a preponderance of the evidence,
a prima facie case of racial discrimination. Id. Plaintiff's
burden in establishing a prima facie case is “de minimis.”
See Douglas v. Dist. Council 37 Mun. Employees' Educ. Fund
Trust, 207 F. Supp. 2d 282, 289 (S.D.N.Y. 2002). However,
a party's bald assertions, without more, are insufficient to
overcome a motion for summary judgment. See Carey v.
Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Meiri v. Dacon,
759 F.2d 989, 998 (2d Cir. 1985) (“To allow a party to
defeat a motion for summary judgment by offering purely
conclusory allegation of discrimination, absent any concrete
particulars, would necessitate a trial in all Title VII cases.”);
Fair v. Weiburg, No. 02-CV-9218, 2006 WL 2801999, at *3
(S.D.N.Y. Sept. 28, 2006) (“To avoid summary judgment ...
the non-moving party must offer ‘some hard evidence’ of its
version of the facts, not merely rely on conclusory allegations
or speculation.”); During v. City Univ. of N.Y., No. 01CV-9584, 2005 WL 2276875, at *4, *8-9 (S.D.N.Y. Sept. 19,
2005) (granting summary judgment on discrimination claim
where only evidence was conclusory allegations of plaintiff).
The establishment of a prima facie case gives rise to a
presumption of discrimination. Tex. Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 254 (1981). At that point, the
burden of production (not persuasion) shifts to the defendant
“to provide a legitimate, nondiscriminatory reason for [its]
decision.” Reg'l Econ. Cmty. Action Program, Inc. v. City
of Middletown, 294 F.3d 35, 49 (2d Cir. 2002) (hereinafter
RECAP) (citing Reeves, 530 U.S. at 142 and Heyman v.
Queens Vill. Comm. for Mental Health for Jamaica Cmty.
Adolescent Program, Inc., 198 F.3d 68, 72 (2d. Cir. 1999)
). A defendant's burden in this regard is not high; indeed,
a defendant need not prove that it was actually motivated
by these legitimate reasons. See Deravin v. Kerik, No. 00CV-7487, 2007 WL 1029895, at *6 (S.D.N.Y. Apr. 2, 2007)
(citing Burdine, 450 U.S. at 254).
If the defendant makes a satisfactory showing, the
presumption of discrimination disappears and the burden
shifts back to the plaintiff. See id. The plaintiff must then
“prove that the defendant[ ] intentionally discriminated
against [him] on a prohibited ground.” RECAP, 294 F.3d at
49. In other words, the plaintiff must show that defendant's
“articulated, legitimate, non-discriminatory reasons were

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pretextual.” Id. (internal quotation marks omitted); accord
Feingold, 366 F.3d at 152 (“If the defendant has stated a
neutral reason for the adverse action, ‘to defeat summary
judgment ... the plaintiff's admissible evidence must show
circumstances that would be sufficient to permit a rational
finder of fact to infer that the defendant's employment
decision was more likely than not based in whole or in part
on discrimination.’ ” (quoting Stern v. Trs. of Columbia Univ.,
131 F.3d 305, 312 (2d Cir. 1997) ) ); Deravin, 2007 WL
1029895, at *6 (“The plaintiff ‘may succeed in this either
directly by persuading the court that a discriminatory reason
more likely motivated the employer or indirectly by showing
that the employer's proffered explanation is unworthy of
credence.’ ” (quoting Burdine, 450 U.S. at 254) ).
*8 Under McDonnell Douglas and its progeny, the plaintiff
has the ultimate burden of proving discrimination, regardless
of whether the defendant offers evidence of a legitimate
reason for the adverse employment action at issue. See St.
Mary's Honor Ctr., 509 U.S. at 507; Burdine, 450 U.S. at
253; Calabro v. Westchester BMW, Inc., 398 F. Supp. 2d 281,
292 (S.D.N.Y. 2005) (holding that plaintiff ultimately has
the burden of proving employer's discriminatory animus to
survive summary judgment).

a. Prima Facie Case
A plaintiff may establish a prima facie case of disparate
treatment by demonstrating: “1) that he belonged to a
protected class; 2) that he was qualified for the position
he held; 3) that he suffered an adverse employment action;
and 4) that the adverse employment action occurred under
circumstances giving rise to an inference of discriminatory
intent.” Feingold, 366 F.3d at 152.
Because Plaintiff is an African-American man, he belongs
to a protected class and thereby satisfies the first prong of
his prima facie case. Defendant is willing to assume, as is
the Court, that Plaintiff was qualified for the position he
held while working for Defendant, satisfying the second
prong. (Def.'s Mem. 9.) Defendant argues that it is entitled
to summary judgment on Plaintiff's discrimination claim
because Plaintiff failed to satisfy the third and fourth prongs
of his prima facie case.

i. Adverse Employment Action

An adverse employment action is a “ ‘materially adverse
change’ in the terms and conditions of employment. To be
‘materially adverse’ a change in working conditions must be
more disruptive than a mere inconvenience or an alteration of
job responsibilities.” Galabya v. N.Y. City Bd. of Educ., 202
F.3d 636, 640 (2d Cir. 2000) (internal citations and quotation
marks omitted). The Second Circuit has “defined adverse
employment action broadly to include ‘discharge, refusal to
hire, refusal to promote, demotion, reduction in pay, and
reprimand.’ ” Lovejoy-Wilson v. Noco Motor Fuel, Inc., 263
F.3d 208, 223 (2d Cir. 2001) (quoting Morris v. Lindau, 196
F.3d 102, 110 (2d Cir. 1999) ); accord Feingold, 366 F.3d
at 152 (“Examples of materially adverse employment actions
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.” (internal quotation marks omitted) ).
Plaintiff argues that the following constitute adverse
employment actions: (1) the alleged docking of Plaintiff's pay
for attending jury duty on November 8, 2002 (Pl.'s Mem. 11);
and (2) the out-of-title work Plaintiff was allegedly forced to
perform, particularly on May 2, 2003, which led to his back
and neck injury and significant loss of earning potential (id.
9-11). 5 Defendant argues that neither of these constitutes an
adverse employment action. (Def.'s Mem. 10, 12-15.)
*9 Plaintiff alleges that he was docked pay for the several
hours of work he missed on November 8, 2002, when he
answered a jury summons in Bronx County. (Pl.'s Mem. 11;
Compl. 4.) On November 25, 2002, Bates issued to Plaintiff
a warning notice, in which Bates wrote: “Mr. Perry has used
up all his time and continues to take off. On November 18,
2002 [he] used 3 ½ hrs. [leave without pay]. This is warning
no. 2.” (Kahan Aff., Ex. Y.)
Defendant argues that Plaintiff was never docked pay for
attending jury duty on November 8, 2002, but that he was
docked 3.30 hours of pay for being absent on November
18, 2002. In support of this position, Defendant submitted
Plaintiff's leave history, which shows that Plaintiff was not
docked any time on November 8, 2002, and that he was
docked 3.30 hours on November 18, 2002. (Kahan Aff.,
Ex. W.) Defendant also offered affidavits from Joan Vassari,
Defendant's director of personnel, and Bates, Plaintiff's thensupervisor, both of whom swear that Plaintiff was never
docked pay for attending jury duty. (Aff. of Joan Vassari ¶ 13
(“Vassari Aff.”); Aff. of Robert Bates ¶ 8 (“Bates Aff.”); Dep.

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of Joan Vassari 11 (“Vassari Dep.”) (“[An employee] would
never be docked for jury duty.”).)
The only evidence in the record that supports Plaintiff's
claim that he was docked pay for attending jury duty on
November 8, 2002, is his own deposition testimony and his
own declaration, in which Plaintiff claims that Bates told him
that he would be docked for attending jury duty. (Dep. of Ted
Perry 81-82 (“Pl.'s Dep.”); Pl.'s Decl. ¶ 14.) Plaintiff swears
that he was not absent from work on November 18, 2002,
arguing instead that the time he took off for jury service was
not docked from his paycheck until the following pay period
on November 18, 2002. Plaintiff claims that the November
25, 2002, warning notice was actually for the time Plaintiff
missed on November 8, 2002. (Pl.'s Decl. ¶ 14.)
Thus, with regard to whether Plaintiff was docked pay for jury
duty, the Court has before it conflicting evidence, giving rise
to a factual question suited for a jury. Therefore, construing
the evidence in the non-movant's favor, the Court assumes
for purposes of this Motion that Plaintiff was docked pay for
attending jury duty.
Assuming therefore that Plaintiff's pay was docked for his
jury duty service, the next question is whether such a docking
of pay qualifies as an adverse employment action; in other
words, whether it constitutes a “materially adverse change in
the terms and conditions of employment.” See Galabya, 202
F.3d at 640 (internal quotation marks omitted). For purposes
of this Motion, the Court is willing to assume that it does. See
Cunningham v. Consol. Edison Inc., No. 03-CV-3522, 2006
WL 842914, at *17 (E.D.N.Y. Mar. 28, 2006) (“[D]ocking
of an employee's pay is an adverse employment action.”);
see also Hicks v. Baines, 99-CV-315, 2006 WL 1994808, at
* (W.D.N.Y. July 14, 2006) (“The only specific allegations
that arguably evince an adverse employment action are the
docking of two hours of [one plaintiff's] pay ... and the
docking of 15 minutes of [the other plaintiff's] pay....”).
Therefore, Plaintiff satisfies the third prong of his prima facie
case with respect to the jury duty issue.
Plaintiff argues that he also suffered an adverse employment
action when he was forced to work outside of his Housekeeper
title – often performing the duties meant for employees with
higher pay grades – beginning in 1995. 6 (Pl.'s Mem. 12.)
New York State Civil Service Law § 61(2) prohibits out-oftitle work by declaring that “[n]o person shall be appointed,
promoted or employed under any title not appropriate to the
duties to be performed and, except upon assignment by proper

authority during the continuance of a temporary emergency
situation, no person shall be assigned to perform the duties
of any position unless he has been duly appointed, promoted,
transferred or reinstated to such position....” New York courts
have further defined out-of-title work to encompass situations
“when an employee has been assigned ... to perform the duties
of a higher grade, without a concomitant increase in pay,
frequently, recurrently and for long periods of time.” Sprague
v. Governor's Office of Employee Relations, 786 N.Y.S.2d
634, 635 (App. Div. 2004) (internal quotation marks omitted)
(ellipses in original). 7 However, “not all additional duties
constitute out-of-title work, and the mere fact that there may
be some overlap between two particular positions does not
mandate a finding that a petitioner is being compelled to
perform out-of-title work.” Woodward v. Governor's Office of
Employee Relations, 718 N.Y.S.2d 465, 467 (App. Div. 2001).
*10 Plaintiff claims that his working out-of-title eventually
led to a back injury when, on May 2, 2003, he was ordered
to move several concrete bumpers. (Compl. 3-4; Pl.'s Decl.
¶ 17.) This injury resulted in a partial permanent disability
and loss of Plaintiff's earning potential, which, according to
Plaintiff, constituted an adverse employment action. (Pl.'s
Mem. 9-11; Compl. 7.)
Defendant disputes Plaintiff's claim that he was working outof-title or that he was performing the work of a higher salary
grade employee. (Def.'s Mem. 13.) Defendant cites Healy v.
County of Nassau, 796 N.Y.S.2d 377, 379 (App. Div. 2005),
for the proposition that “work is not considered ‘out-of-title’
where it is related to, similar in nature to, or a reasonable
outgrowth of, the ‘in-title’ work.” According to Defendant,
the job assignments that Plaintiff was asked to complete either
fell under his title of Housekeeper or were “reasonably related
to” the Housekeeper job description (Def.'s Mem. 14.), and,
in either case, were based on the needs of the Department (id.
19).
The Court finds a genuine issue of material fact as to
whether the assignments given to Plaintiff – particularly
the May 2, 2003 assignment – were out-of-title, in-title, or
reasonably related to in-title work. In order for Plaintiff to
establish that allegedly out-of-title assignments, particularly
the assignment to move concrete bumpers, constituted an
adverse employment action, Plaintiff must demonstrate that
such assignments resulted in a “ ‘materially adverse change’
in the terms and conditions of [his] employment.” Galabya,
202 F.3d at 640. If what Plaintiff claims is true – that he was
assigned duties outside of his Housekeeper title that somehow

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were typically performed by employees in a higher pay grade
– then Plaintiff will have satisfied his minimal burden of
demonstrating that he suffered an adverse employment action,
at least with regard to out-of-title work performed within the
300-day-period preceding the filing of Plaintiff's NYSDHR
complaint. See Santiago, 485 F. Supp. 2d at 335-36 (referring
to employer's refusal to compensate employee's performance
of out-of-title duties as discrete act). Defendant has failed
to adequately demonstrate that there exists no genuine issue
of material fact with regard to whether Plaintiff's pay was
concomitant with the duties he was assigned. Therefore, for
purposes of this Motion, the Court assumes that Plaintiff
suffered an adverse employment action by being assigned outof-title work usually performed by employees with a higher
pay grade.

ii. Inference of Discriminatory Intent
To establish his prima facie case, and thereby shift the
burden of production to Defendant, Plaintiff must establish
an inference of discrimination. Though not required, this is
most commonly done by demonstrating that other similarly
situated persons, not of Plaintiff's protected class, were treated
more favorably than he was in the workplace. See AbduBrisson, 239 F.3d at 467-68. Indeed, Plaintiff has chosen
this approach to make his case. To be similarly situated,
these persons must have been subject to the same standards
governing performance evaluation and discipline and must
have engaged in conduct similar to Plaintiff's. See Norville
v. Staten Island Univ. Hosp., 196 F.3d 89, 96 (2d Cir.
1999); see also McGuinness v. Lincoln Hall, 263 F.3d 49,
54 (2d Cir. 2001) (“[W]here a plaintiff seeks to establish
the minimal prima facie case by making reference to the
disparate treatment of other employees, those employees
must have a situation sufficiently similar to plaintiff's to
support at least a minimal inference that the difference of
treatment may be attributable to discrimination.”). Evidence
of disparate treatment, however, cannot be based on
conclusory allegations. See Finney v. Planned Parenthood
of N.Y. City, Inc., No. 02-CV-7942, 2003 WL 22928730, at
*4 (S.D.N.Y. Dec. 10, 2003) (granting summary judgment
where only evidence of disparate treatment was plaintiff's
own conclusory allegations); Griffin v. Ambika Corp., 103
F. Supp. 2d 297, 308 (S.D.N.Y. 2000) (“Statements that
are devoid of any specifics, but replete with conclusions,
are insufficient to defeat a properly supported motion for
summary judgment.” (internal quotation marks omitted) ).

*11 Defendant argues that even if Plaintiff did suffer
adverse employment actions, Plaintiff failed to establish that
such actions took place under circumstances giving rise to
an inference of discriminatory intent. (Def.'s Mem. 16-18.)
Plaintiff relies on the alleged disparate treatment between
him and his Caucasian co-workers (in particular, Aubry,
Emery and Ponce) to support his claim that he suffered
adverse employment actions under circumstances giving rise
to an inference of discriminatory intent. (Pl.'s Mem. 12-13.)
More specifically, Plaintiff claims that he was constantly
disciplined and forced to do undesirable out-of-title work,
while his Caucasian co-workers were not. According to
Plaintiff, this disparate treatment demonstrates that the
adverse employment actions he suffered were motivated by
racial discrimination.
In 1993, Emery, Ponce and Plaintiff had their positions
reclassified to that of Housekeeper – the position Plaintiff
still held when his employment with Defendant ended. After
filing a grievance, Emery and Ponce had their positions
reclassified to Maintenance Mechanic, which, according to
Plaintiff, left them “open to higher salaries and promotion
opportunities.” (Pl.'s Decl. ¶¶ 7-8.) Plaintiff claims that he
was not allowed to grieve his reassignment. (Id. ¶ 8.) Plaintiff
makes this argument with no proof whatsoever.
As previously noted, after oral argument, Plaintiff submitted
to the Court an application to supplement the record with
what appears to be the minutes from a meeting that took place
in November 1999. According to Plaintiff, this document
demonstrates that “Defendant treated Plaintiff differently
from the white County employees (Mr. Em[e]ry and Mr.
Ponce), thereby showing that Defendant ... was fully aware
that Plaintiff's title was supposed to have been changed
and was not.” (Letter from Pamela D. Hayes, Esq., to the
Court, dated Mar. 17, 2008.) Despite Plaintiff's urging, this
document cannot be used to create an issue of fact because
the meeting minutes are inadmissible hearsay. See Patterson
v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004);
Witkowich v. Gonzales, 05-CV-7756, 2008 WL 701280, at
*10 n.11 (S.D.N.Y. Feb. 25, 2008) (“[I]nadmissible hearsay ...
[cannot] be used to defeat summary judgment.”). Further, as
discussed above, Plaintiff has failed to demonstrate to the
Court that excusable neglect was to blame for this document
not being added to the record earlier. Cf. Scully, 148 F.
Supp. 2d at 251-52 (plaintiff was permitted to supplement the
summary judgment record because the new evidence was not
previously available, plaintiff exercised good faith, and only
minimal delays would result). Moreover, even if admissible,

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these minutes do Plaintiff no good, for they fail to rebut
Defendant's argument that Plaintiff was always free to grieve
his assignment, but never did. Plaintiff claims he was unaware
of this option, a claim contradicted by the minutes themselves,
but Plaintiff still fails to tender any evidence that Defendant
engaged in any conduct blocking Plaintiff's efforts to grieve
his assigned title.
Without this inadmissible and tardy information, Plaintiff has
no admissible evidence showing that Defendant prohibited
him from grieving his reassignment, that Defendant had an
affirmative obligation to notify Plaintiff of his right to grieve
his reassignment or to help him do it, or that Defendant helped
Emery and Ponce to grieve their status. Moreover, this alleged
act of discrimination was a discrete act occurring several years
before Plaintiff initiated legal action. Therefore, the Court will
not entertain Plaintiff's argument that discriminatory intent
can be inferred from Emery and Ponce being reclassified to
the Maintenance Mechanic position after filing grievances.
Plaintiff also focuses on what he sees as the disparate
treatment between him and Aubry. Plaintiff claims that he
was docked for attending jury duty, but that when Aubry
had to appear in court on several occasions, he was given
time off and never had his pay docked. (Compl. 4-5; Pl.'s
Dep. 117 (“Jason used to go to jail for long periods of
time and come back and have his job and nothing said or
nothing done.”).) 8 Also, Plaintiff alleges that Aubry was
permitted to drive County vehicles without a license – even
though one was required for his position – but that Plaintiff
was disciplined for failing to produce a driver's license –
even though his position did not require that he have such
a license. (Compl. 5; Pl.'s Mem. 13; Kahan Aff., Ex. AA.)
Indeed, according to Plaintiff, he was disciplined for not
having a license, while Defendant actually helped Aubry
obtain his license. (Pl.'s Mem. 13.) Further, Plaintiff claims
that he was constantly disciplined for minor infractions, while
Aubry committed much more serious infractions and was not
similarly disciplined or docked pay. (Id. 13; Compl. 4-5; Pl.'s
Decl. ¶ 19; Kahan Aff., Ex. GG (“In contrast to Mr. Aubry, I
have been written up for numerous incidents, none of which
are as grave as the incidents involving Mr. Aubry.”).)
*12 Plaintiff offers no evidence to support his argument
that Aubry went undisciplined while committing infractions
similar to or worse than those committed by Plaintiff.
Plaintiff was disciplined many times during the course of
his employment with Defendant, mostly for infractions such
as time abuse and insubordination, and he offers no proof

that those were improperly imposed sanctions. (Def.'s 56.1
Stmt ¶¶ 9-12, 23, 25, 29-33, 36-37.) Moreover, Defendant
submitted unrefuted evidence demonstrating that Aubry was
in fact disciplined for time abuse, at least during 2003 and
2004. (Kahan Aff., Exs. LL-NN.) In fact, the evidence shows
that, because of his excessive absenteeism, Aubry was denied
salary increments on August 13, 2003, November 10, 2003,
and February 19, 2004, and that he was denied an unpaid
leave of absence on February 2, 2004. (Id., Ex. MM.) Further,
an Amended Notice of Charges dated April 15, 2004, was
issued to Aubry, detailing 169 charges and specifications
brought against him by Defendant for time abuse spanning
from January 16, 2003, through April 5, 2004. (Id., Ex. LL.)
Aubry resigned before the charges could be resolved. (Id.)
According to Plaintiff, this evidence does nothing to disprove
his claim of disparate treatment since “nothing was done to
Mr. Aubry while Plaintiff was on the job.” (Pl.'s Mem. 13.)
Although the Court agrees with Plaintiff that the record
contains evidence of discipline of Aubry (who was employed
by Defendant for far less time than Plaintiff) that largely
post-dates Plaintiff's employment and, therefore, it does little
to disprove Plaintiff's claim of disparate treatment, it is not
Defendant's burden to disprove an unsupported claim of
disparate treatment. Plaintiff has the ultimate burden under
the McDonnell Douglas framework, St. Mary's Honor Ctr.,
509 U.S. at 507, and he cannot satisfy his burden by making
bare and conclusory assertions that he and Aubry were
similarly situated but that they were treated differently. 9 A
conclusory allegation without support in the record will not
give rise to an inference of discriminatory intent nor will it
defeat a motion for summary judgment.
Aubry, who was a Maintenance Laborer, was required to
have a driver's license. Based on the Housekeeper job
specifications, it appears that Plaintiff was not. 10 (Kahan
Aff., Ex. I.) On December 30, 2002, however, Plaintiff was
issued a warning notice by Bates for failure to produce a
license. (Id., Ex. AA (“Mr. Perry could be asked to drive
at any time and should have his license with him.”).) The
record shows that on June 17, 2002, Aubry was notified
by Commissioner Stanley G. Motley that his probationary
appointment would be terminated if he failed to produce a
driver's license by July 22, 2002. (Pl.'s Exs. in Opp'n Pursuant
to Local Rule 56.1(a) 21 (“Pl.'s Ex.”).) In response to this
notification, Aubry wrote a letter to Motley on July 8, 2002,
indicating that he was in the process of getting his license
back, but that he may not have it back from the Department of
Motor Vehicles (“DMV”) within the time limit specified. (Id.)

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Motley replied to Aubry on July 10, 2002, stating that “[the
County] will try to expedite the return of your driver's license
through the Department of Motor Vehicles. I[n] the event we
can not please be assured that you will still be an employee
in good standing since you have met the legal requirements
and are just awaiting the return of your paperwork from the
State of New York.” (Id.)
*13 Again, Plaintiff has not pointed to any evidence in the
record from which the Court could conclude that Plaintiff
and Aubry were similarly situated with regard to the driver's
license issue. The record demonstrates that Aubry was
threatened with termination (by someone other than Bates) if
he did not produce a driver's license by a certain date. The
record also suggests that Defendant did not offer to “help”
Aubry until it was satisfied that Aubry had done all that he
could to obtain his driver's license and that he was waiting
on paperwork from the DMV. Plaintiff offers no evidence
suggesting that, at the time he was issued a warning notice,
he, like Aubry, had done all that could to obtain his license
but was waiting on documentation from the DMV. Further,
Plaintiff and Aubry did not hold the same positions. Though it
is not entirely clear from the record why Plaintiff was issued a
warning notice for failure to produce a driver's license, there
is nothing in the record suggesting that the reason was racial
discrimination. And, Plaintiff's bare belief that Defendant was
“messing” with him is not evidence of anything. See Powell
v. Consol. Edison Co., 97-CV-2439, 2001 WL 262583, at *12
(S.D.N.Y. Mar. 13, 2001) (“[P]laintiff's subjective belief that a
supervisor had an improper motive is not evidence at all....”).
From this feeble evidence, no reasonable jury could find that
Plaintiff and Aubry were similarly situated but were treated
disparately under circumstances giving rise to an inference of
discriminatory intent.
Plaintiff argues that he was forced to work out-of-title, while
his similarly-situated Caucasian co-workers were not. Some
of his complained of out-of-title duties included digging
ditches, performing firefighter duties, and moving concrete
parking lot bumpers, none of which expressly appear on the
illustrative list of possible Housekeeper duties. (Compl. 3-4;
Kahan Aff., Ex. I.) 11 Even if the Court accepts Plaintiff's
argument that he was given assignments outside of his
Housekeeper title, Plaintiff has offered no evidence from
which the Court could infer that such assignments were
given on account of Plaintiff's race as opposed to any other
reason (such as department need or even personal dislike of
Plaintiff). It is noteworthy that in regard to this claim, Plaintiff
has submitted no evidence of disparate treatment.

Defendant has submitted an affidavit from Bates, in which
he stated that “[t]he decisions regarding jobs to be performed
depended upon the needs of the department and who is
available.... Perry's job assignments were no more difficult,
demanding or dangerous than assignments given to other ...
employees. That Perry did not like some of [ ]his job
assignments is true, but Perry was not singled out for
particular jobs.” (Bates Aff. ¶¶ 3-4.) Plaintiff testified that
during a meeting while Plaintiff was at Bronx River Parkway,
Bates said that “any shit detail that was going to be done,
[Plaintiff] would be doing it.” (Pl.'s Dep. 45.) Plaintiff also
testified that, while at Bronx River Parkway, he worked as
part of a crew – albeit “not the popular crew.” (Id. 44.)
Plaintiff cannot defeat Defendant's Summary Judgment
Motion with these statements. By themselves, these alleged
comments show only that Bates might have disliked Plaintiff
(and others in the group), not that he discriminated against
him. Thus, it is even more apparent that Plaintiff has failed
to demonstrate that any of the work he was assigned –
including the assignment that allegedly led to his back
injury on May 2, 2003 – was assigned to him because of
his race. In a conclusory fashion, Plaintiff claims that he
was made to perform dangerous and demanding out-of-title
work, while Caucasian co-workers were not. (Pl.'s Mem.
9.) Plaintiff has not made any specific allegations asserting,
nor has he provided any admissible evidence suggesting,
that Plaintiff was given assignments more dangerous or
demanding than similarly-situated Caucasian co-workers. 12
See Meiri, 759 F.2d at 998 (“To allow a party to defeat a
motion for summary judgment by offering purely conclusory
allegations of discrimination, absent any concrete particulars,
would necessitate a trial in all Title VII cases.”); Jones,
2008 WL 495498, at *11 (finding plaintiff failed to establish
prima facie case of discrimination because plaintiff offered
no specific information or evidence to substantiate his
conclusory allegation that “white [co-workers] with less
seniority and experience were provided summer employment
while he was not”); Marro v. Nicholson, No. 06-CV-6644,
2008 WL 699506, at *10 (E.D.N.Y. Mar. 12, 2008) (holding
vague and conclusory statements that similarly situated
employees were treated differently failed to give rise to issue
of material fact regarding disparate treatment); Randolph v.
CIBC World Markets, No. 01-CV-11589, 2005 WL 704804,
at *13 (S.D.N.Y. Mar. 29, 2005) (“Although [plaintiff] has
made the general allegation that he was treated more harshly
than white ... employees who committed similar violations ...,
there is no other evidence in the record to support this

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11

Perry v. County of Westchester, Not Reported in Fed. Supp. (2008)

assertion. Conclusory allegations of this sort are insufficient
to survive a motion for summary judgment.”).
*14 As set forth above, Plaintiff has failed to establish a
prima facie case of racial discrimination based on disparate
treatment because he has not offered admissible evidence
suggesting that he suffered adverse employment actions
under circumstances giving rise to an inference of racial
discrimination.

2. Hostile Work Environment Claim
Plaintiff also brings a hostile work environment claim. “The
question of whether a work environment is sufficiently hostile
to violate Title VII is one of fact. On a motion for summary
judgment, the question for the court is whether a reasonable
factfinder could conclude, considering all the circumstances,
that the harassment is of such quality or quantity that a
reasonable employee would find the conditions of [his]
employment altered for the worse.” Schiano, 445 F.3d at 600
(internal quotation marks and citations omitted).

In order to prevail on a hostile work
environment claim, a plaintiff must
first show that the harassment was
sufficiently severe or pervasive to
alter the conditions of the victim's
employment and create an abusive
working environment. Second, the
plaintiff must demonstrate a specific
basis for imputing the conduct creating
the hostile work environment to the
employer.

Feingold, 366 F.3d at 149-50 (internal citations and quotation
marks omitted).
The first prong involves an objective and a subjective
component: “the misconduct shown must be severe or
pervasive enough to create an objectively hostile or abusive
work environment, and the victim must also subjectively
perceive that environment to be abusive.” Id. (internal
quotation marks omitted). In determining whether a work
environment is “hostile” or “abusive,” courts are to look at
the totality of the circumstances, as guided by the following
factors: “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 an employee's work performance.” Harris
v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993), abrogated
on other grounds by, Burlington Indust., Inc. v. Ellerth,
524 U.S. 742 (1998). Thus, to satisfy the first prong, a
plaintiff “ ‘must demonstrate either that a single incident
was extraordinarily severe, or that a series of incidents
were ‘sufficiently continuous and concerted’ to have altered
the conditions of [his] working environment.’ ” Alfano v.
Costello, 294 F.3d 365, 374 (2d Cir. 2002) (quoting Cruz v.
Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) ). Though
a single incident may be severe enough to materially alter
employment conditions, see Patterson, 375 F.3d at 227, in
general the actions taken by the defendant “must be more than
‘episodic; they must be sufficiently continuous and concerted
in order to be deemed pervasive.’ ” Alfano, 294 F.3d at 375
(quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d
Cir. 1997) ); see also Carrero v. N.Y. City Hous. Auth., 890
F.2d 569, 577 (2d Cir. 1989) (holding “incidents must be more
than episodic”). “Where reasonable jurors could disagree as to
whether alleged incidents of racial insensitivity or harassment
would have adversely altered the working conditions of a
reasonable employee, the issue of whether a hostile work
environment existed may not properly be decided as a matter
of law.” Patterson, 375 F.3d at 227.
*15 The existence of a hostile environment alone is
insufficient to make out a Title VII claim, however.
Plaintiff must also show there is some reason to impute
the discriminatory conduct of the employees that created
the hostile work environment to the employer. See Perry,
115 F.3d at 149. Employers are not generally liable for the
harassing behavior of a plaintiff's co-workers; to make an
employer liable for a hostile work environment claim, the
harassment must generally come from a supervisor with
authority over a plaintiff. See Mack v. Otis Elevator Co.,
326 F.3d 116, 123 (2d Cir. 2003) (“[I]t is only when a
supervisor with immediate (or successively higher) authority
over the employee has engaged in the complained of conduct,
that the employer may be subject to vicarious liability.
Employers are not, by contrast, vicariously liable for hostile
work environment created by a mere co-worker of the
victim.” (internal citations and quotation marks omitted) ).
Finally, Plaintiff must prove that the hostile conduct occurred
because of his membership in a protected class. To make
such a showing, a plaintiff must introduce evidence of hostile
conduct that a reasonable juror could find was a result of the

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Perry v. County of Westchester, Not Reported in Fed. Supp. (2008)

plaintiff's membership in a protected class. See Brennan v.
Metro. Opera Ass'n, 192 F.3d 310, 318 (2d Cir. 1999).
Plaintiff argues that the accumulation of the following
incidents – which occurred from 1995 through May 2003 –
demonstrate that he was treated differently than his Caucasian
co-workers and constitute a hostile work environment: 13 (1)
After filing a grievance, Emery and Ponce were reclassified
from the Housekeeper title to the Maintenance Mechanic title,
and Plaintiff was not (Pl.'s Mem. 15); (2) Plaintiff was told he
would be fired if he did not do what he was told, regardless
of whether the assignment was in- or out-of-title (id.; Compl.
5; Pl.’s Dep. 112); (3) Plaintiff was the only person docked
pay for going to jury duty (Pl.'s Mem. 15); (4) Plaintiff was
written up for excessive absenteeism on May 8 and 9, 2003,
even though his supervisor knew that he was out because
of the May 2, 2003 injury (id.); (5) Plaintiff had to drive
Aubry around, even though Aubry was required to have a
license (id.; Pl.'s Dep. 113); (6) Plaintiff was not allowed to
wear safety equipment like his Caucasian co-workers (Pl.'s
Mem. 15); (7) Plaintiff was subjected to “Kunta Kinte” jokes
(id. 15-16); 14 and (8) Plaintiff was disciplined for minor
infractions while his Caucasian co-workers were not (Compl.
3). Plaintiff acknowledges that he was not generally subjected
to racial epithets or insults, but insists that, because he was
the only African-American person in his group, no outright
insults were necessary. (Pl.'s Mem. 16.)
*16 Plaintiff does not suggest, and the Court does not find,
that any one of these alleged incidents was severe enough
by itself to alter the conditions of Plaintiff's employment and
thereby constitute hostile work environment. 15 Therefore,
the Court considers these incidents in the aggregate to
determine whether, under the totality of the circumstances,
Plaintiff was subjected to a hostile work environment during
his employment with Defendant. For present purposes, with
regard to timeliness, the Court will assume – without deciding
– that these acts are all properly before the Court as part of
Plaintiff's hostile work environment claim, unless otherwise
noted.
The first issue for the Court is whether Plaintiff was subjected
to an objectively hostile environment during his employment
with Defendant. Feingold, 366 F.3d at 150. In making this
determination, the Harris factors guide the Court's “totality of
the circumstances” analysis. See Harris, 510 U.S. at 23. The
conduct complained of spans a period of approximately eight
years, which is a considerable amount of time considering
the fact that most of the incidents complained of are isolated

occurrences. The fact that the incidents are spread out over
a long period of time tends to weigh against a finding that
Plaintiff's work environment was altered for the worse. See
Williams, 2007 WL 2907426, at *11 (“The incidents that
plaintiff points to were isolated in nature and took place over a
number of years.... Taken together, the incidents described are
separated in time and space and do not demonstrate a change
in work environment.”).
Nonetheless, keeping in mind that it is not for the Court
to act as a “ ‘hierophant of social graces,’ ” see Schiano,
445 F.3d at 605 (quoting Holtz v. Rockefeller Co., 258 F.3d
62, 75 (2d Cir. 2001) ), the Court is unwilling to say that
no reasonable jury could find that the incidents listed above
were severe enough in the aggregate to alter the conditions of
Plaintiff's employment, though the Court has serious doubts.
Indeed, the Second Circuit has cautioned that “hostile work
environment claims present ‘mixed question[s] of law and
fact’ that are ‘especially well-suited for jury determination.’
” Id. (quoting Richardson v. N.Y. State Dep't of Corr. Serv.,
180 F.3d 426, 437 (2d Cir. 1999) ) (alteration in original).
Only when “application of the law to th[e] undisputed facts
will reasonably support only one ultimate conclusion” is
summary judgment appropriate. Richardson, 180 F.3d at 438.
Because reasonable minds may differ on the issue of whether
the conduct complained of altered Plaintiff's employment for
the worse, the Court will not grant summary judgment to
Defendant on the objective element of Plaintiff's hostile work
environment case.
With regard to whether Plaintiff subjectively believed that
his work environment with Defendant was hostile, Plaintiff
has pled that he was caused to “undergo an intimidat[ing],
hostile and offensive work environment causing [him]
monetary damages and emotional injuries and numerous
other injuries.” (Compl. 8.) At this stage, Defendant does not
challenge Plaintiff's claim that he found the work environment
subjectively hostile, so the Court will assume, for purposes of
this Motion, that this element is satisfied.
Plaintiff must show a basis upon which to impute the
discriminatory conduct of the employees that created the
hostile work environment to the employer. See Perry, 115
F.3d at 149. Because most of the complained-of conduct was
alleged to have been committed by Bates, Plaintiff's direct
supervisor, Defendant can be held vicariously liable for any
resulting hostile work environment. See Mack, 326 F.3d at
123.

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Perry v. County of Westchester, Not Reported in Fed. Supp. (2008)

*17 Finally, Plaintiff must demonstrate that the hostile
conduct occurred because of his membership in a protected
class. See Brennan, 192 F.3d at 318. “Although the incidents
comprising a hostile work environment claim need not make
reference to any trait or condition on the basis of which
the discrimination has occurred ... they must occur under
circumstances in which ... the incidents can reasonably be
interpreted as having taken place on the basis of that trait
or condition.” Williams, 2007 WL 2907426, at *10 (internal
quotation marks omitted) (ellipses in original). Plaintiff points
to no admissible evidence in the record suggesting that his
race played a role in the way he was treated during his
employment with Defendant. Instead, Plaintiff relies on his
own conclusory statements that: (1) race must have been
a motivating factor because Plaintiff was the only African
American employee in the group (Pl.'s Mem. 16); and (2)
he was treated differently from his Caucasian co-workers
(Compl. 1-2, 3-5, 7; Pl.'s Mem. 15). The problem, however,
is that Plaintiff's membership in a protected class in and of
itself does not establish discriminatory intent. See Ghent v.
Moore, 519 F. Supp. 2d 328, 338 (W.D.N.Y. 2007) (“Without
other evidence of discrimination, [the fact that plaintiff was
the only African-American employee] alone is not probative
of unlawful discrimination.”); Bennett v. Watson Wyatt &
Co., 136 F. Supp. 2d 236, 252 (S.D.N.Y. 2006) (“It is
not enough simply to be a member of a protected class.
To invoke the protections of Title VII, an employee must
have actually suffered discrimination.”). Further, as discussed
above, Plaintiff has offered no evidence demonstrating
that these Caucasian co-workers were similarly-situated to
and actually treated differently than Plaintiff. See Hill v.
Rayboy-Brauestein, 467 F. Supp. 2d 336, 360 (S.D.N.Y.
2006) (“When a person only makes general allegations that
African-Americans are treated differently in the workplace,
those allegations are insufficient to support a hostile work
environment claim.”); see also Marro, 2008 WL 699506, at
*10; Randolph, 2005 WL 704804, at *13.
The Second Circuit has said that “[i]n a hostile work
environment case, it may well be a proper exercise of the
district court's broad discretion to allow the plaintiff to build
[his] case partly by adducing incidents for which the link to
any discriminatory motive may, in the first instance, appear
tenuous or nonexistent.” Schiano, 445 F.3d at 605. However,
the Second Circuit has stood firm on its position that district
courts are not to “treat discrimination differently from other
ultimate questions of fact.” Abdu-Brisson, 239 F.3d at 466;
accord Schiano, 445, F.3d at 603 (“[S]ummary judgment
remains available for the dismissal of discrimination claims

in cases lacking genuine issues of material fact.” (internal
quotation marks omitted) ). On the record before the Court,
no reasonable jury could find that Plaintiff was subjected to a
hostile work environment on account of his membership in a
protected class. Therefore, Defendant's Motion for Summary
Judgment dismissing Plaintiff's hostile work environment
claim is granted.

3. Section 1981 Claim
The McDonnell Douglas burden-shifting framework also
applies to 42 U.S.C. § 1981 claims. See Evans-Gadsden v.
Bernstein Litowitz Berger & Grossman, LLP, 491 F. Supp. 2d
386, 402 (S.D.N.Y. 2007). “To establish the requisite prima
facie case for a violation of [Section 1981], a plaintiff must
establish: (1) that [he] is a member of a racial minority; (2) that
the Defendant intended to discriminate against Plaintiff on the
basis of [his] race; and (3) that the Defendant discriminated
in connection with one of the statute's enumerated activities.”
Id. (citing Brown v. City of Oneonta, 221 F.3d 329, 339 (2d
Cir. 1999) ).
An individual may be held liable under Section 1981 where
the plaintiff demonstrates “some affirmative link to causally
connect the [defendant] with the discriminatory action.”
Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75
(2d Cir. 2000) (internal quotation marks omitted). Although
the elements of a Section 1981 claim and a Title VII claim
are distinct, discriminatory intent is a necessary element
of a Section 1981 claim. See Patterson, 375 F.3d at 226
(“[A] plaintiff pursuing a claimed violation of § 1981 ...
must show that the discrimination was intentional.”). Thus,
a failure to establish sufficient evidence of discriminatory
intent to survive summary judgment on a Title VII claim
is fatal to a similar claim of racial discrimination under
Section 1981. See Gonzalez v. City of New York, 354 F.
Supp. 2d 327, 330 n.2 (S.D.N.Y. 2005) (“Although claims
under 42 U.S.C. § 1981 ... involve different elements than
those involved in Title VII claims, they share in common
with Title VII claims the essential element of intentional
unlawful discrimination. Therefore, the Court's determination
that certain of Plaintiffs' Title VII claims do not survive
summary judgment due to the inadequacy of evidence
regarding discriminatory intent also results in dismissal of
Plaintiffs' § 1981 ... claims.” (internal quotation marks and
citations omitted) ); Patterson, 375 F.3d at 225 (holding
that reasons supporting summary judgment for defendants on
Title VII claims also merited dismissal of plaintiff's Section

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14

Perry v. County of Westchester, Not Reported in Fed. Supp. (2008)

1981 claims). As described in the previous section, Plaintiff
has failed to show intentionally discriminatory conduct on
the part of Defendant, and therefore, summary judgment on
Plaintiff's Section 1981 claim is granted.

for Summary Judgment is GRANTED. The Clerk of Court is
respectfully directed to terminate all pending motions (Dkt.
Nos. 23, 45), to enter judgment for Defendant, and to close
this case.
SO ORDERED.

III. Conclusion

All Citations

*18 For the reasons stated herein, Plaintiff's application to
supplement the record is DENIED, and Defendant's Motion

Not Reported in Fed. Supp., 2008 WL 11438085

Footnotes
1

Defendant's Employee Handbook provides the following:
If you are required to serve as a juror or to appear in court pursuant to a subpoena or court order, you will
be granted a leave with pay for such required attendance. Any fees received for such attendance, other
than travel and meals, must be paid to the County. This leave with pay does not apply when your own
personal interests are the subject of the court activity.
(Kahan Aff., Ex. Z.)

2

The Court will cite to Plaintiff's Complaint by page number rather than paragraph number in an attempt to
alleviate the confusion resulting from Plaintiff's reuse of paragraph numbers within the document.

3

“[I]n a case of an unlawful employment practice with respect to which the person aggrieved has initially
instituted proceedings with a State or local agency with authority to grant or seek relief from such practice ...,
such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged
unlawful employment practice occurred....” 42 U.S.C. § 2000e-5(e)(1).

4

Plaintiff offered these tardy additions to the record, after he failed to provide the record evidence he claimed
would prove that a supervisor had referred to Plaintiff as “Kunta Kinte.” Obviously, the Court found Plaintiff's
assertion of this claim in response to Defendant's Summary Judgment Motion, which was not backed up
by any evidence in the record (despite representations to the contrary), to be potentially material, if not
dispositive, in resolving the Motion. Accordingly, the Court asked counsel for Plaintiff to show where in the
record there was support for this assertion. Plaintiff never did provide any evidence in the record as it existed
when he responded (several months late) to Defendant's Motion. Instead, Plaintiff sought to augment the
record with the March 13 submissions.

5

Defendant reads Plaintiff's submissions to assert that the various warning notices Plaintiff was issued for time
abuse and failure to produce a driver's license were adverse employment actions in support of this claim.
The Court disagrees with this reading. Instead, it is evident to the Court, based on its reading of Plaintiff's
various submissions, that Plaintiff relies on these warning notices not as adverse employment actions, but
as evidence of discriminatory intent and in support of his hostile work environment claim.

6

Plaintiff offers no specific allegations – let alone evidence – to support this claim. First of all, Plaintiff never
identifies which title would be the appropriate recipient of such duties, nor does he identify the salary grade
appropriate to these duties. Despite these significant infirmities in Plaintiff's claim and because the outcome

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15

Perry v. County of Westchester, Not Reported in Fed. Supp. (2008)

herein is the same either way, the Court will assume – for purposes of this Motion – that the complained-of
assignments would normally be given to an employee with a higher salary-grade title.
7

Interestingly, Plaintiff does not here claim a failure to compensate for higher grade work he allegedly was
assigned, but claims that the out-of-grade work he was assigned both was highly undesirable (which one
would imagine would be lower-grade work) and led to his injuries in May 2003.

8

In his Complaint, Plaintiff also states “the other white employees were given time off without being docked
when they had to perform citizenship duties.” (Compl. 7.) Without any specific allegations or evidence to
support this statement, it cannot be relied upon to establish the fourth prong of Plaintiff's prima facie case. See
Jones v. W. Suffolk Boces, No. 03-CV-3252, 2008 WL 495498, at *11 (E.D.N.Y. Feb. 20, 2008) (finding as
insufficient to satisfy fourth prong of prima facie case plaintiff's conclusory allegation that “white [employees]
with less seniority and experience were provided summer employment while [plaintiff] was not”).

9

On December 14, 2006, Magistrate Judge George A. Yanthis ordered that Defendant turn over to Plaintiff in
discovery Aubry's leave history from 2001 through 2004. (Dkt. No. 15.) Exhibit 34 to Plaintiff's Local Civ. R.
56.1 Statement indicates that these records were in fact provided to Plaintiff. Interestingly, however, Plaintiff
decided not to include Aubry's leave history in the present record. Based solely on the record before it,
the Court has no way of knowing whether Aubry was excessively absent while Plaintiff was employed by
Defendant or, more importantly, whether his pay was ever docked as a result. The Court cannot assume
either of these things to be the case based solely on Plaintiff's bare assertions.

10

The Court notes, however, that there is evidence in the record to suggest that, in May 2002, Plaintiff was
told that some work assignments would require him to drive. (Kahan Aff., Ex. V.) During his deposition,
Plaintiff testified to his belief that his supervisors would make him drive because “they w[ere] just messing
with [him].” (Pl.'s Dep. 60.)

11

Plaintiff elaborated more fully on this issue in his complaint before the NYSDHR:
Since Mr. Bates became my supervisor, I have been assigned tasks that no one else wants to do. These
tasks are the most physically demanding and dangerous assignments. For example, I have been assigned
to dig holes without a back hoe or assistance, and I have been required to move concrete parking lot
bumpers despite the fact that I have a documented back injury. I have been sent to do weed-whacking jobs
without chaps, safety glasses and ear protection. The aforementioned examples are not an exhaustive
list of undesirable duties I have been assigned since 1999. It should be noted that when co-workers are
assigned to work with me, they view the assignments as a form of punishment. I am being punished
everyday especially since almost all the work I perform is out of my job title.
(Kahan Aff., Ex. GG.) Again, it is entirely unclear from Plaintiff's allegations and submissions the title for which
Plaintiff believes these duties are appropriate.

12

One of the alleged out-of-title assignments that Plaintiff complains of was when he was allegedly asked
to perform “firefighter duties.” (Compl. ¶ 1.) However, in an undated letter written by Donald Kranker, a
Maintenance Laborer and Shop Steward, he complains of an August 23, 2002 firefighting assignment that
was given to him, Plaintiff, Jason Aubry and one other employee. (See Pl.'s Ex. 29.) Thus, at least with
respect to the firefighting assignment, the record not only fails to show that Plaintiff was singled out for the
assignment, but actually demonstrates that Caucasian co-workers were given the same assignment; in fact,
Jason Aubry – who happens to be the employee Plaintiff focuses on to demonstrate disparate treatment
– was one of the employees sent to perform firefighting duties with Plaintiff. Therefore, there is no basis
whatsoever for Plaintiff to claim that he was assigned firefighter duties based on his race.

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16

Perry v. County of Westchester, Not Reported in Fed. Supp. (2008)

13

In his Complaint, Plaintiff alleged that the hostile work environment spanned from 1999 to 2003. (Compl. 3.)

14

In his opposition brief, Plaintiff asserted – as evidence that he was subjected to a hostile work environment
– that he endured comments about “Kunta Kinte.” (Pl.'s Mem. 15-16.) In support of this allegation, Plaintiff
offered the Court an unhelpful and erroneous citation – without page number – to Plaintiff's Exhibit 3, which
is an approximately 50-page excerpt from Plaintiff's deposition testimony. Yet, there was no reference to this
comment in Plaintiff's deposition. In fact, nothing Plaintiff provided in opposition to the Summary Judgment
Motion contained any evidence that Plaintiff was subjected to such comments.
During oral argument, the Court asked Plaintiff's counsel what in the record supported the allegation that
Plaintiff was subjected to “Kunta Kinte” comments. Plaintiff's counsel represented to the Court that Plaintiff
testified during his deposition that he was referred to as “Kunta Kinte” by his supervisor. Defendant's counsel
indicated that he had a recollection of such testimony. Plaintiff's counsel further represented that she would
send the relevant pages from Plaintiff's deposition transcript to the Court the following day, which she failed
to do.
Instead, on March 12, 2008, Defendant's counsel sent to the Court Plaintiff's entire deposition transcript
and a letter, in which he represented: “I have found no reference to the ‘Kunta Kinte’ comment referenced
by plaintiff's counsel. I was in error when I stated that such a comment was made by Mr. Perry at his
deposition.” (Letter from Stuart E. Kahan, Esq., to the Court, dated Mar. 11, 2008.)
On March 14, 2008, the Court received from Plaintiff's counsel via overnight mail: (1) a letter dated March
13, 2008, in which she admitted, “[t]here is no reference to [the “Kunta Kinte” comment] in the deposition
transcript,” and (2) an application to supplement the record with a new affidavit from Plaintiff and what appears
to be the minutes of a meeting held on November 9, 1999. (Letter from Pamela D. Hayes, Esq., to the Court,
dated Mar. 13, 2008.) In his putative supplemental affidavit, Plaintiff states that he was referred to as “Kunta
Kinte” by a supervisor identified only as “Mike,” without any details regarding when or where this allegedly
occurred.
This affidavit is suspicious. First, Plaintiff never made this allegation in either claim he made to the EEOC, nor
included it in his Complaint. Second, it is plainly lacking in details – including the full identity of the speaker
and the date. In any event, the Court will not accept this affidavit, as it is way out of time from a party that
has already demonstrated, through his counsel, a profound disregard for deadlines and process in this case.
Cf. Scully, 148 F. Supp. 2d at 251-52 (allowing plaintiff to oppose defendant's summary judgment with new
evidence for limited purposes because plaintiff could not have submitted new evidence earlier and plaintiff
demonstrated good faith).

15

Again, this excludes the alleged “Kunta Kinte” reference.

End of Document

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17

Karunakaran v. Borough of Manhattan Community College, Not Reported in Fed. Supp....

2022 WL 902370
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Chitra KARUNAKARAN, Plaintiff,
v.
BOROUGH OF MANHATTAN COMMUNITY
COLLEGE, City University of New York, Antonio
Perez, Karin Wilks, Sangeeta Bishop, Rifat Salam,
Antionette McKain, Robert Diaz, Ian Wentworth,
Michael Hutmaker, and Marva Craig, Defendants.
18 Civ. 10723 (ER)
|
Signed 03/28/2022
Attorneys and Law Firms
Chitra Karunakaran, New York, NY, Pro Se.
Jack Kevin Shaffer, IRS Office of Chief Counsel, New York,
NY, for Defendants Antonio Perez, Sangeeta Bishop, Rifat
Salam, Antionette McKain, Robert Diaz, Ian Wentworth,
Borough of Manhattan Community College, City University
of New York, Karin Wilks, Michael Hutmaker, Marva Craig.

OPINION AND ORDER
Ramos, D.J.:
*1 Chitra Karunakaran, who was a Professor at the Borough
of Manhattan Community College (“BMCC”), which is part
of the City University of New York (“CUNY”), brings this
action against CUNY, BMCC, and several current and former
employees of BMCC 1 (collectively, the “Defendants”),
for violation of Title VII of the Civil Rights Act of
1964 (“Title VII”), the Age Discrimination in Employment
Act (“ADEA”), the New York State Human Rights Law
(“NYSHRL”), and the New York City Human Rights Law
(“NYCHRL”). See Doc. 62. In particular, Karunakaran
alleges that Defendants discriminated against her on the basis
of her race, national origin, and age, and retaliated against her.
See id.
Karunakaran, proceeding pro se, first filed her complaint
on November 15, 2018. See Doc. 2. On September 6,
2019, after retaining counsel, Karunakaran filed an amended
complaint (“First Amended Complaint” or “FAC”). See Doc.

7. Defendants moved to dismiss the FAC on May 7, 2020.
See Doc. 45. On February 12, 2021, the Court granted
Defendants’ motion, dismissing Karunakaran's federal claims
without prejudice to replead, and declining to exercise
supplemental jurisdiction over Karunakaran's NYSHRL and
NYCHRL claims. See Doc. 55. On March 26 and 27,
2021, Karunakaran's counsel filed letter motions seeking to
withdraw. See Docs. 57-58. The Court granted counsel's
requests to withdraw. See Doc. 59.
On April 30, 2021, Karunakaran, again proceeding pro se,
filed a second amended complaint (“SAC”). See Doc. 62.
Defendants now move to dismiss the SAC pursuant to Federal
Rule of Civil Procedure 12(b)(6). For the reasons discussed
below, the motion is GRANTED.
I. BACKGROUND
Karunakaran, a 75-year-old Indian woman, was employed by
CUNY at BMCC for approximately 20 years as a professor
of psychology and sociology. Doc. 62 ¶¶ 13, 37. Karunakaran
alleges that on February 27, 2018, a student (the “Student”) in
her class became verbally and physically aggressive towards
her and disrupted class. Id. ¶ 41. Specifically, Karunakaran
alleges that the Student told her, “You suck. You don't
know anything.” Id. ¶ 42. According to Karunakaran, the
Student repeated these comments on two other occasions.
Id. Karunakaran argues that the Student's behavior was
racially motivated because, when she had previously taught
the Student in online classes, the Student had not been
disruptive. Id. Karunakaran also argues that the Student relied
on “prevailing racialized stereotypes ... about Asians” and
assumed Karunakaran would remain silent “in the face of her
mocking verbal abuse” and would not confront her or call
security. Id. at 23.
Karunakaran alleges she complained to Defendants about
the Student's behavior, and, in particular, that in emails to
Defendants, she offered to speak with the Student, suggested
that the Student take her class online, and requested that
BMCC's Office of Student Affairs remove the Student
from her class. Id. ¶¶ 42, 43. According to Karunakaran,
Defendants did not respond to her emails and did not
otherwise intervene to address the Student's behavior. Id.
Specifically, Karunakaran alleges Defendant Ian Wentworth,
who at the time worked in the Office of Student Affairs, took
no action in response to the Student's behavior and in so doing
allowed the behavior to re-occur. Id. ¶ 43.

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1

Karunakaran v. Borough of Manhattan Community College, Not Reported in Fed. Supp....

*2 On March 18, 2018, Karunakaran filed a complaint, titled
“A Hostile Work Environment,” with Defendant Antonio
Perez, who was at the time President of BMCC. Id. ¶¶
18, 49; Doc. 2 at 19. In her complaint, Karunakaran
alleged that BMCC maintained a “covert, ad hoc/post hoc
mode of organizational dysfunction resulting in a generally
unchallenged racialized, ageist hostile work environment for
contingent academic labor.” Doc. 2 at 19.
Karunakaran alleges that on March 27, 2018, the Student,
after learning she had failed the midterm, tried to grab papers
and other materials from her and ran from her office. Doc.
62 ¶ 45. Karunakaran alleges she continued to complain to
Defendants about the Student's conduct but, as before, they
took no action. Id. ¶ 46. Karunakaran argues that Defendants,
in “completely disregarding their job responsibilities ... and
at no point attempting to remedy the ongoing and dangerous
situation caused by [the] Student,” discriminated against her
on the basis of her race, national origin, and age. Id. ¶ 47.
Karunakaran also alleges that she participated in various
whistleblowing and union activities throughout her tenure, id.
¶¶ 40, 52, and lists a number of examples of these activities.
Id. at 50. Specifically, Karunakaran alleges that she emailed
Perez to encourage him to program every department printer
to print double-sided; she asked Perez why online classes
could not be taught through “Peer faculty mentoring;” she
asked Defendant Sangeeta Bishop whether she could serve on
an equity and inclusion task force but was told that adjunct
professors were not included; she asked whether faculty
needed to include attendance information in their syllabi; she
complained about Defendants’ failure to manage the Student's
conduct; and she asked why hard copies of mail had not been
delivered to BMCC's uptown campus. Id. at 50-51.
On May 11, 2018, Karunakaran was denied reappointment
for the Fall 2018 semester. Id. ¶¶ 39, 51. Karunakaran argues
this denial resulted from discrimination and retaliation on
the basis of her race, national origin, and age. Id. ¶ 40.
Karunakaran alleges that she was replaced by a younger
professor with “less age-defined seniority ... [and] possibly
without a doctorate....” Id. at 39-40.
On August 13, 2018, Karunakaran filed a charge of
discrimination with the New York State Division of Human
Rights. Id. ¶ 3. The charge was subsequently sent to the
Equal Employment Opportunity Commission (“EEOC”), and
on August 21, 2018, the EEOC issued a Right to Sue letter.
Id. ¶ 4.

As stated above, Karunakaran filed a pro se complaint in this
Court on November 15, 2018. Doc. 2. With the assistance
of counsel, she filed an FAC on September 6, 2019. Doc.
7. Defendants moved to dismiss the FAC on May 7, 2020,
and the Court granted Defendants’ motion on February
12, 2021, dismissing Karunakaran's federal claims without
prejudice to replead, and declining to exercise supplemental
jurisdiction over Karunakaran's NYSHRL and NYCHRL
claims. See Docs. 45, 55. On April 30, 2021, Karunakaran
—again proceeding pro se—filed the instant complaint.,
alleging substantially the same facts she alleged in her FAC.
II. LEGAL STANDARD
When ruling on a motion to dismiss pursuant to Rule 12(b)
(6), district courts are required to accept as true all factual
allegations in the complaint and to draw all reasonable
inferences in the plaintiff's favor. Walker v. Schult, 717 F.3d
119, 124 (2d Cir. 2013). However, this requirement does
not apply to legal conclusions, bare assertions, or conclusory
allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678, 681 (2009)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In order to satisfy the pleading standard set forth in Rule 8,
a complaint must contain sufficient factual matter to state
a claim for relief that is plausible on its face. Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 570). Accordingly,
a plaintiff is required to support her claims with sufficient
factual allegations to show “more than a sheer possibility that
a defendant has acted unlawfully.” Id. “Where a complaint
pleads facts that are merely consistent with a defendant's
liability, it stops short of the line between possibility and
plausibility of entitlement to relief.” Id. (quoting Twombly,
550 U.S. at 557) (internal quotation marks omitted).
*3 “Because [Karunakaran] is a pro se litigant, we read h[er]
supporting papers liberally, and will interpret them to raise the
strongest arguments that they suggest.” Burgos v. Hopkins,
14 F.3d 787, 790 (2d Cir. 1994). When a plaintiff's claims
involve civil rights violations, the Court applies this standard
“with particular force.” Jackson v. NYS Dep't of Lab., 709
F. Supp. 2d 218, 224 (S.D.N.Y. 2010) (citing McEachin v.
McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004)). “However,
even pro se plaintiffs asserting civil right claims cannot
withstand a motion to dismiss unless their pleadings contain
factual allegations sufficient to raise a ‘right to relief above
the speculative level.’ ” Id. (quoting Twombly, 550 U.S. at
555). Lastly, “[a] district court deciding a motion to dismiss
may consider factual allegations made by a pro se party in his
papers opposing the motion.” Walker, 717 F.3d at 122 n.1.

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2

Karunakaran v. Borough of Manhattan Community College, Not Reported in Fed. Supp....

III. DISCUSSION
a. Title VII and ADEA Claims
i. Discrimination
Karunakaran alleges that Defendants discriminated against
her when they failed to address the Student's behavior
and when they denied her reappointment. Doc. 62 ¶¶ 47,
55. Karunakaran also alleges Defendants treated her less
favorably than similarly situated co-workers. Id. ¶ 55.
Discrimination claims under Title VII or the ADEA are
analyzed under the three-step burden-shifting framework set
forth by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). See Kovaco v. RockbestosSurprenant Cable Corp., 834 F.3d 128, 136 (2d Cir. 2016).
Under the McDonnell framework, a plaintiff first must
establish a prima facie case of discrimination. McDonnell,
411 U.S. at 802. Once the plaintiff establishes a prima facie
case, the burden shifts to the defendant to offer a legitimate,
nondiscriminatory reason for its actions. Id. at 802-03. If the
defendant satisfies its burden, the burden shifts back to the
plaintiff to demonstrate that the proffered reason is pretextual.
Id. at 804. Ultimately, the plaintiff will be required to prove
that the defendant acted with discriminatory motivation. See
Littlejohn v. City of New York, 795 F.3d 297, 307 (2d Cir.
2015). At the pleading stage, however, the facts alleged must
merely “give plausible support to the reduced requirements
that arise under McDonnell Douglas in the initial phase of ...
litigation.” Id. at 311. Thus, the question on a motion to
dismiss is whether the plaintiff has adequately pleaded a
prima facie case.
To establish a prima facie case of discrimination under
either Title VII or the ADEA, a plaintiff must show that
(1) she belonged to a protected class, (2) she was qualified
for the position, (3) she suffered an adverse employment
action, and (4) the adverse employment action occurred under
circumstances giving rise to an inference of discriminatory
intent. See Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d. Cir.
2003). Although a plaintiff is not required to plead facts
proving each element of a prima facie case of discrimination
at the pleading stage, her allegations must provide “plausible
support” for a “minimal inference” that the employer was
motivated by discriminatory intent.” Littlejohn, 795 F.3d at
311. Further, those allegations must be fact-specific. See

Grimes v. Fremont General Corp., 785 F. Supp. 2d 269, 296
(S.D.N.Y. 2011). Conclusory or naked allegations will not do.
See id.
Here, as was the case in her first amended complaint,
Karunakaran fails to plead allegations that support a minimal
inference of discriminatory motivation. As Defendants point
out, Karunakaran's SAC “suffers from the same flaws” as
her FAC. See Doc. 69 at 10. Again, beyond conclusory
statements that she was denied reappointment as a result
of discrimination, Karunakaran does not allege any specific
facts showing that the denial was related to discrimination
on the basis of her race, national origin, or age. See, e.g.,
Marcus v. Leviton Mfg. Co., 661 F. App'x 29, 32-33 (2d Cir.
2016) (“plaintiff must supply sufficient factual material, and
not just legal conclusions, to push the misconduct alleged
in the pleading beyond he realm of the ‘conceivable’ to the
‘plausible’ ”).
*4 Beyond this, Karunakaran again does not provide any
information about similarly situated employees. When a
plaintiff seeks to meet her prima facie case by reference
to the disparate treatment of an allegedly similarly situated
employee, “the plaintiff must show that she shared sufficient
employment characteristics with that comparator so that
they could be considered similarly situated.” McGuinness v.
Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001). A plaintiff
need not show that a comparator was an “identically situated
employee,” just that she was “similarly situated in all material
respects.” Id. at 53-4 (quoting Shumway v. United Parcel
Service, 118 F.3d 60, 64 (2d Cir. 1997)) (emphasis in
original). Further, such employee “must have a situation
sufficiently similar to plaintiff's to support at least a minimal
inference that the difference of treatment may be attributable
to discrimination.” Kearney v. ABN AMRO, Inc., 738 F.
Supp. 2d. 419, 426 (S.D.N.Y. Sept. 15, 2010) (quoting
McGuinness, 263 F. 3d at 54) (internal quotation marks
omitted). Employment characteristics which can support
a finding that two employees are “similarly situated”
include “similarities in education, seniority, performance,
and specific work duties,” DeJesus v. Starr Technical Risks
Agency, Inc., 03 Civ. 1298 (RJH), 2004 WL 2181403, at *9
(S.D.N.Y. Sept. 27, 2004), and similar requirements for skill,
effort, and responsibility for jobs performed “under similar
working conditions.” DeJohn v. Wal-Mart Stores E., LP, 09
Civ. 01315 (GTS), 2013 WL 1180863, at *6 (N.D.N.Y. Mar.
20, 2013).

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3

Karunakaran v. Borough of Manhattan Community College, Not Reported in Fed. Supp....

In the Court's order granting Defendants’ first motion
to dismiss, the Court noted that Karunakaran's general
allegations that she was treated less favorably than certain
similarly situated employees were insufficient “without ...
additional details about specific events and without ...
additional facts that [she] was similarly situated in all material
respects to those comparator employees.” Doc. 55 at 9-10.
While given another opportunity to do so, Karunakaran again
does not provide these specifics. Karunakaran merely realleges, upon information and belief, that she was replaced
by a younger professor. She does not identify or otherwise
describe this professor, nor does she provide any facts alleging
that she and this professor were similarly situated in any
material respect or that she was treated less well than this
professor.
In addition, in a purported attempt to remedy the deficiencies
in her FAC, Karunakaran explains that all her former coworkers are her comparators: “All faculty regardless of
appointment, are comparators.” Doc. 62 at 17. But, again,
she does not explain how she was similarly situated to all
faculty members. That they teach the same students, as
Karunakaran alleges, is not enough. See id. Nor does she
offer specific examples of disparate treatment with respect to
these co-workers. While Karunakaran generally alleges that
her similarly-situated co-workers were not terminated, id. ¶
55, she does not provide any further details.
Karunakaran also alleges that another professor in the
psychology department at times let her students leave after
only one hour of class, even though the class was meant to
run for two and a half hours. Doc. 62 at 59-60. Karunakaran
does not identify or describe this alleged comparator, nor
does she explain how this professor's choice to let her
students leave class early in any way supports an inference
of discrimination against her; notably, Karunakaran does not
allege that she would not have been allowed to make the
same choice. At bottom, none of these allegations can support
even a minimal inference that Karunakaran experienced a
difference in treatment attributable to discrimination. See
Henry v. NYC Health & Hosp. Corp., 18 F. Supp. 3d 396,
409 (S.D.N.Y. 2014) (dismissing discrimination claims where
complaint fails to identify, let alone describe, any purported
comparator).
As to her claim that Defendants discriminated against her by
failing to address the Student's behavior, Karunakaran does
not show how this failure is in any way connected to her race,
national origin, or age.

*5 Because, as Defendants argue, Karunakaran does
not submit any allegations to support an inference that
Defendants’ failure to address the Student's behavior and
denial of her reappointment were at all motivated by her race,
national origin, or age, her federal discrimination claims are
dismissed.

ii. Retaliation Claims
Karunakaran alleges Defendants retaliated against her
for her participation in a protected activity. Doc. 62
at 14. Specifically, she alleges Defendants denied her
reappointment because of her “persistent participation in
lawful union activity” and because of her “whistleblower
queries.” Id. ¶ 40.
Like her discrimination claims, Karunakaran's retaliation
claims also are analyzed under the McDonnell framework. 2
Under that framework, a plaintiff first must establish a prima
facie case of retaliation. McDonnell, 411 U.S. at 802. Once
the plaintiff establishes a prima facie case, the burden shifts
to the defendant to offer a legitimate, nonretaliatory reason
for its actions. Id. at 802–03; Kirkland v. Cablevision Sys.,
760 F.3d 223, 225 (2d Cir. 2014). If the defendant satisfies its
burden, the burden shifts back to the plaintiff to demonstrate
that the proffered reason is pretextual. McDonnell, 411 U.S.
at 804; Kirkland, 760 F.3d at 225.
To state a prima facie case of retaliation under § 1981,
a plaintiff must establish (1) participation in a protected
activity; (2) defendant's knowledge of the protected activity;
(3) an adverse employment action; and (4) a causal
connection between the protected activity and the adverse
employment action. Dickens v. Hudson Sheraton Corp., LLC,
167 F. Supp. 3d 499, 522 (S.D.N.Y. 2016), aff'd, 689 F. App'x
670 (2d Cir. 2017).
Here, Karunakaran cannot plausibly allege a protected
activity. “A protected activity is one that ‘protest[s] or
oppose[s] statutorily prohibited discrimination.’ ” Kouakou v.
Fideliscare New York, 920 F. Supp. 2d 391, 400 (quoting Cruz
v. Coach Stores, Inc., 202 F.3d 560, 566); Brands-Kousaros
v. Banco Di Napoli S.P.A., No. 97 Civ. 1673 (DLC), 1997
WL 790748, at *5 (S.D.N.Y. Dec. 23, 1997) (“the protected
activity alleged must involve some sort of complaint about
a type of discrimination that [a statute] forbids.”). While a
protected activity generally involves the filing of a formal

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4

Karunakaran v. Borough of Manhattan Community College, Not Reported in Fed. Supp....

complaint of discrimination with an administrative agency,
see Kotcher v. Rosa & Sullivan Appliance Ctr., 957 F.2d 59,
65 (2d Cir. 1992), “both formal and informal complaints [are]
protected activity....” Schaper v. Bronx Lebanon Hosp. Ctr.,
408 F. Supp. 3d 379, 391 (S.D.N.Y. 2019) (citing Hubbard
v. Total Commc'ns, Inc., 347 F. App'x 679, 680–81 (2d Cir.
2009)).
Protected complaints generally include “making complaints
to management ..., protesting against discrimination by
industry or by society in general, and expressing support
of co-workers who have filed formal charges.” Soliman v.
Deutsche Bank AG, No. 03 Civ. 104 (CBM), 2004 WL
1124689, at *12 (S.D.N.Y. May 20, 2004) (citing Cruz, 202
F.3d at 566); see also Sumner v. U.S. Postal Serv., 899
F.2d 203, 209 (2d Cir. 1990). An informal complaint may
be “nothing more than a simple ‘objection voiced to the
employer,’ ... but at the very least, ‘there must be some form of
professional indicia of a complaint made against an unlawful
activity.’ ” Soliman, 2004 WL 1124689, at *12 (internal
citations omitted).
*6 Though Karunakaran repeatedly refers to “union
activities” and “whistleblowing” she does not, as Defendants
point out, provide any allegations that her union activities or
whistleblowing concerned or were related to some statutorilyprohibited discrimination. In particular, Karunakaran alleges
that she emailed Perez to encourage him to program every
department printer to print double-sided; she asked Perez
why online classes could not be taught through “Peer faculty
mentoring;” she asked Defendant Sangeeta Bishop whether
she could serve on an equity and inclusion task force but
was told that adjunct professors were not included; she asked
whether faculty needed to include attendance information in
their syllabi; and she asked why hard copies of mail had
not been delivered to BMCC's uptown campus. 3 Doc. 62 at
50-51. None of these suggestions or questions is a complaint,
protest, or objection and, in any event, Karunakaran does
not show how any of these activities relates to an unlawful
activity, let alone statutorily-prohibited discrimination. As

Karunakaran cannot allege a protected activity, her federal
retaliation claim is dismissed.

b. NYSHRL and NYCHRL Claims
A district court may decline to exercise supplemental
jurisdiction over state and city law claims when “the district
court has dismissed all claims over which it has original
jurisdiction.” 28 U.S.C. § 1367(c)(3); see also In re Merrill
Lynch Ltd. P'ships Litig., 154 F.3d 56, 61 (2d Cir. 1998)
(“[W]hen the federal claims are dismissed the ‘state claims
should be dismissed as well.’ ” (quoting United Mine
Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966))). Once
a district court's discretion is triggered under § 1367(c)
(3), it balances the traditional “values of judicial economy,
convenience, fairness, and comity” in deciding whether
to exercise jurisdiction. Kolari v. New York-Presbyterian
Hospital, 455 F.3d 118, 122 (2d Cir. 2006) (quoting CarnegieMellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). The
Supreme Court has noted that in a case where all federal
claims are eliminated before trial, “the balance of factors ...
will point toward declining to exercise jurisdiction over the
remaining state-law claims.” Id. (quoting Cohill, 484 18 U.S.
at 350 n.7). Having dismissed all of Karunakaran's federal
claims under Rule 12(b)(6), the Court declines to exercise
supplemental jurisdiction over, and dismisses, her state and
city law claims.
IV. CONCLUSION
For the reasons set forth above, the Defendants’ motion to
dismiss the SAC is GRANTED with prejudice.
It is SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 902370

Footnotes
1

Antonio Perez, Karin Wilks, Sangeeta Bishop, Rifat Salam, Antoinette McKain, Robert Diaz, Ian Wentworth,
Michael Hutmaker, and Marva Craig.

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5

Karunakaran v. Borough of Manhattan Community College, Not Reported in Fed. Supp....

2

Title VII and the ADEA contain nearly identical provisions forbidding retaliation. Kessler v. Westchester Cnty.
Dep't of Soc. Servs., 461 F.3d 199, 205 (2d Cir. 2006). Retaliation claims under Title VII and the ADEA
therefore are analyzed under the same framework. Dickens v. Hudson Sheraton Corp., LLC, 167 F. Supp.
3d 499, 522 (S.D.N.Y. 2016), aff'd, 689 F. App'x 670 (2d Cir. 2017); see also Terry, 336 F.3d at 141 (applying
the same standards and burdens to claims of retaliation brought under both Title VII and the ADEA).

3

Karunakaran also repeats her allegation—in her FAC—that she engaged in protected activity when she
complained to Defendants about the Student's behavior, but the Court in its order granting Defendants’ first
motion to dismiss found none of those complaints—her informal complaints to Defendants as well as her
formal March 18 complaint—amounted to protected activities because they did not concern unlawful activity.
See Doc. 55 at 11.

End of Document

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6

Thomson v. Odyssey House, 652 Fed.Appx. 44 (2016)

652 Fed.Appx. 44
This case was not selected for
publication in West's Federal Reporter.
RULINGS BY SUMMARY ORDER DO NOT HAVE
PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY
1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1
AND THIS COURT'S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING A
SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
United States Court of Appeals, Second Circuit.

[2] employee failed to plead causal link between alleged
disability and termination, as required to state claim for
discrimination in violation of ADA; and
[3] employee's failure to notify employer of alleged disability
precluded recovery on reasonable accommodation claim.
Affirmed.
Procedural Posture(s): On Appeal; Motion to Dismiss.
West Headnotes (3)
[1]

Civil Rights

Particular cases

Excessive scrutiny was not an actionable adverse
employment action, for purposes of bringing
retaliation claim under § 1981. 42 U.S.C.A. §
1981.

Georgina THOMSON, Plaintiff–Appellant,
Sheila Clark, Plaintiff,
v.
ODYSSEY HOUSE, Defendant–Appellee,
Vance Herbert, Darrin Brown, Gail

[2]

Harrison, Does 1–10, Defendants. *

...

22 Cases that cite this headnote
Civil Rights

Particular cases

15–3363
|
June 16, 2016
*** Start Section
...
Synopsis
Background: Former employee brought action against
employer for unlawful retaliation and violation of the
Americans with Disabilities Act (ADA). The United States
District Court for the Eastern District of New York, Brodie,
J., 2015 WL 5561209, dismissed the complaint for failure to
state a claim. Employee appealed.

Holdings: The Court of Appeals held that:
[1] excessive scrutiny was not an actionable adverse
employment action;

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1

Shannon v. Credit Agricole Securities (USA), Inc., Not Reported in Fed. Supp. (2021)

2021 WL 1063183
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Parker SHANNON, Plaintiff,
v.
CREDIT AGRICOLE SECURITIES
(USA), INC., Defendant.
17-cv-00667 (AJN)
|
Signed 03/19/2021
Attorneys and Law Firms
Erica Sanders, Phillips & Associates, PLLC, White Plains,
NY, Benjamin Davis Weisenberg, The Ottinger Firm, P.C.,
New York, NY, for Plaintiff.
David Justin Baron, Hogan Lovells US LLP, Tyler Thomas
Hendry, Barbara M. Roth, Herbert Smith Freehills New York
LLP, New York, NY, for Defendant.

MEMORANDUM OPINION & ORDER
ALISON J. NATHAN, District Judge:
*1 Plaintiff brings claims under the Americans with
Disabilities Act against his former employer for allegedly
terminating him because of his cancer diagnosis. Defendant
moves for summary judgment on the grounds that Plaintiff's
ADA claims fail as a matter of law and because they are
time-barred. For the reasons that follow, Defendant's motion
is GRANTED.
I. BACKGROUND
A. Facts
The facts in this section are drawn from Defendant's Rule
56.1 statement and are undisputed unless otherwise stated. As
explained in section II.A. of this Opinion, the Court will not
consider a fact to be “in dispute” if Plaintiff has provided only
(a) a conclusory citation to evidentiary or procedural rules
without any explanation or justification for the objection or
(b) a citation purportedly to the record that provides the Court

no reasonable means to locate the document and without any
explanation of what the document is.
Defendant Credit Agricole Securities, Inc. (“CAS”) is a New
York corporation and a U.S. Broker dealer. Dkt. No. 107 at 4.
CLSA Limited (“CLSA”) is a Hong Kong-based entity, with
offices in multiple Asian countries, New York, and London.
Id. at 5. Plaintiff was hired by one or both companies in 2007
(the parties dispute which one) as a salesman and a specialist
with regards to Korea and Taiwan. Id. at 20. Id. Plaintiff's
duties generally included researching and reviewing financial
data and news and working with clients. Id. at 23. Plaintiff was
a “key relationship manager” on five accounts and a “Korea /
Taiwan specialist” on six or seven. Id. at 32.
In 2008, Plaintiff was diagnosed with a form of cancer called
non-Hodgkin's lymphoma and began treatment. Id. at 24.
Plaintiff was told by Jay Plourde, his supervisor, to take as
much time off as he needed regarding his health. Id. Plaintiff
lost all of his hair but it grew back within a year. Id. at
25. According to Defendant, by 2010, Plaintiff's supervisors
were under the impression that Plaintiff no longer had cancer.
Id. Plaintiff disputes this fact and claims Plaintiff that his
supervisors were well aware of the fact that he still had cancer
past this point, as he regularly discussed his cancer diagnosis
and treatment with them, and that it was not until September
2012 that he no longer had active Lymphoma. Id.
From 2010 to 2011, Defendant's management team in
Asia made job cuts for New York workers as a result of
restructuring. Id. at 28. In 2011, management proposed that
Plaintiff be terminated and Plourde advocated on behalf of
Plaintiff that he be able to keep his job. Id. at 28-29. Plaintiff
stayed on the job until 2012, when CLSA management
engaged in more job cuts. Id. at 29. In or around October
2012, Defendant agreed to a merger with a Chinese company,
and in preparation for that sale consolidated its Korea and
Taiwan related functions to the North Asian office. Id. at
29-30. Plourde was told in June 2012 that Plaintiff's job would
be eliminated. Id. at 30.
Plourde waited until November 29, 2012 to inform Plaintiff
of his termination. Id. According to Defendant, Plaintiff then
informed Plourde that he still had cancer, which Plourde
was not aware of until that conversation. Id. at 31. Plaintiff
disputes this fact and claims that Plourde was already aware
that he had cancer well before that time. Plourde then told
Plaintiff that he could forget about termination and return
to work while Plourde looked for another position for him.

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(According to Plaintiff, Plaintiff has had no active lymphoma
since at least September 2012. Id. at 33-34.).
*2 On November 30, 2012, Plourde told management
in Hong Kong about Plaintiff's cancer, and Plourde was
permitted to try and find Plaintiff another job. Id. at 34.
Plourde found a job for Plaintiff as “Head of Syndications.”
Id. at 35. Plourde and Plaintiff exchanged emails regarding
this position on December 13, 2012. Id. at 37. On December
17, 2012, Plaintiff contacted Human Resources to request
a disability leave and on December 20, 2012 Plaintiff told
human resources that he intended to begin disability leave in
January 2013. Id.
In his Amended Complaint and responses to Defendant's
interrogatories, Plaintiff maintained that on November 20,
2012 he provided his supervisors with “a formal written
complaint about the apparent discrimination that he was being
subjected to in the workplace.” Id. at 60. Plaintiff has admitted
in sworn testimony that he did not mention his disability in
this complaint. Dkt. No. 109 ¶ 24. In his deposition testimony,
Plaintiff stated that his first written complaint regarding his
disability was instead a written letter from his lawyer dated
January 2, 2013, which was after Plaintiff had elected to take
disability leave. Id. ¶ 33. Defendants responded to this letter
in a letter on January 4, 2013, stating that Plaintiff was not
terminated due to his disability and that, though he had been
terminated in November 2012, Defendants were willing to
keep him on as an employee through February 2013. Dkt. No.
115-6, Pl. Ex. N.
Plaintiff then applied for and received “short-term disability
benefits” from Defendants, which permitted a 100% salary
continuation for up to 26 weeks. Dkt. No. 107 at 37-38. The
insurance company Prudential administrated the plan, and
as would decide whether Plaintiff was eligible. Id. Plaintiff
had to provide medical records and information to show
his eligibility for the disability benefits to Prudential. Id.
Plaintiff certified in his application to Prudential that he
had fatigue, anxiety, and loss of cognitive ability, including
difficulty concentrating, multitasking, word retrieval and
recalling simple facts. Id. at 41.
Plaintiff's short term disability leave began on January 14,
2013. Id. at 39-40. Plaintiff chose this date to begin voluntary
leave. Id. Plaintiff remained employed by Defendants during
this time. Id. at 44-45. Defendant did not hire anyone to fulfill
Plaintiff's job at any point after he was gone. Id. at 43.

Plaintiff also applied for supplemental disability benefits
through a second insurance company on February 2013, in
which he certified that he was totally unable to work because
of his disability as of January 14, 2013 and that he had
“fatigue and cognitive d[y]sfunction” which were “making
travel difficult, including staying awake in client meetings”
and “difficult to read research to properly influence client
decisions.” Id. at 41. Plaintiff's treating physician submitted a
statement in support of this application, stating that he advised
Plaintiff to stop working at that time because of these issues.
Id.
As part of the salary continuation in his short-term disability
benefits, Plaintiff continued to be paid his regular salary by
Defendants. Id. at 48. Around March 2013, Plaintiff received
a $140,000 bonus from CAS or CLSA, and other New-York
based workers received similar payments. Id. at 45.
After the short-term disability leave ended, Plaintiff began to
receive long term disability benefits from Prudential. Id. at
51. In order to receive these benefits, Plaintiff had to show
that he was “unable to perform the material and substantial
duties of [his] own occupation due to [his] sickness or injury.”
Id. at 51. After 24 months, to continue receiving benefits he
had to show that he was “unable to perform the duties of any
occupation for which [he is] reasonably fitted by education,
training, or experience.” Id. Plaintiff never reached out to
Defendants to inform them that he could return to work in any
position. Id. at 52-53.
*3 Plaintiff's long term disability payments were terminated
by Prudential on August 26, 2015, when Prudential learned
that Plaintiff had begun work as a CEO of a new business.
Id. Plaintiff appealed this decision, and in that appeal he and
his physician argued that he was unable to perform work in
any occupation at all because he was “totally disabled.” Id. at
53. Plaintiff explained that he was “totally disabled” because
of “chemo brain,” which is a cognitive disorder caused by
chemotherapy. Id. at 54. Plaintiff certified under penalty of
perjury that:
“the chemotherapy treatments have severely
diminished my cognitive functioning to where I could
no longer work in my occupation or frankly in any
occupation. In particular, my chemo brain impairs
my ability to maintain focus, multi-task, and recall
simple facts and names in a disconnect I describe as
‘on-tip-of-my-tongue’. So impaired, it was becoming
impossible for me to sell research in the fast paced
environment of Wall Street and as a result, I stopped

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working as a salesman on January 12, 2013 ...
[chemotherapy] treatments have had a devastating
effect on both my physical and cognitive abilities
which continue to render me totally disabled” and
“[a]s a result of my restrictions and limitations which
I set forth above, I can no longer perform the material
and substantial duties of any occupation for which
I am reasonably suited by virtue of my education,
training and experience. Thus, without the ability to
focus on details, without the ability to multi-task,
without the ability to remember details, without the
ability to go through a day without fatigue and without
the ability to sit, stand or walk for a considerable
period of time, to say nothing about my extensive
travel requirements, I simply cannot work in any
capacity commensurate with my attempts at work.”
Id. at 54-55. Plaintiff's physician informed Prudential and
Mass Mutual that Plaintiff reported having the above
symptoms as early as May 2011. Id. at 57.

B. Procedural History
Plaintiff filed an Amended Complaint on May 9, 2017,
bringing claims for discrimination and retaliation under the
ADA, NYSHL, and NYCHRL. Dkt. No. 20. Defendant filed
a motion to dismiss on May 22, 2017. Dkt. No. 21. In an
Opinion on March 22, 2018, the Court granted Defendant's
motion in part and dismissed all claims except for Plaintiff's
ADA claims. Dkt. No. 29. The parties proceeded to discovery,
and Defendant now moves for summary judgment as to all
remaining claims. Dkt. No. 89. Plaintiff filed an opposition to
Defendant's motion, as well as a motion to strike Defendant's
Rule 56.1 Statement. Dkt. Nos. 106-107, 114.
II. DISCUSSION
Defendant moves for summary judgment on the remaining
claims in Plaintiff's Amended Complaint: Plaintiff's
discrimination and retaliation claims under the American with
Disabilities Act. Dkt. No. 90 at 7. For the reasons that follow,
the Court determines that there are no genuine disputes of
material fact and that Defendant is entitled to judgment as a
matter of law on Plaintiff's ADA claims. Because the Court
grants Defendant's summary judgment on these grounds, it
need not consider Defendant's argument that Plaintiff's claims
are time-barred. The Court also denies Plaintiff's Motion to
Strike for the reasons stated below.

A. Plaintiff's Objections to
Defendant's Rule 56.1 Statement
Plaintiff has filed both a motion to strike portions of
Defendant's Rule 56.1 Statement and responses to each
purported undisputed fact. Dkt. No. 107, 114. Plaintiff has
formally disputed virtually all facts asserted by Defendant.
*4 “[E]vidence considered on summary judgment must
generally be admissible.” LaSalle Bank Nat. Ass'n v. Nomura
Asset Capital Corp., 424 F.3d 195, 205 (2d Cir. 2005). The
Federal Rules of Civil Procedure Rule 56, as amended in
2010, allows that “[a] party may object that the material cited
to support or dispute a fact cannot be presented in a form that
would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2).
As the Advisory Committee Notes attendant to that provision
make clear, “[t]here is no need to make a separate motion to
strike” in addition to that objection. See Advisory Committee
Note to Fed. R. Civ. P. 56.
To the extent that Plaintiff argues that Defendant's Rule
56.1 statement relies on inadmissible evidence, because
inadmissible evidence “is insufficient to create a genuine
dispute of material fact,” the Court “need not engage
in separate analysis of the motion to strike.” Codename
Enterprises, Inc. v. Fremantlemedia N. Am., Inc., No.
16CIV1267ATSN, 2018 WL 3407709, at *4 (S.D.N.Y. Jan.
12, 2018). To the extent the Plaintiff otherwise argues that
Defendant's Rule 56.1 statement should be stricken because it
contains “improper arguments,” the burden for demonstrating
the necessity of such a remedy is high. See Christians of
California, Inc. v. Clive Christian New York, LLP, No. 13CV-275 KBF, 2014 WL 3407108, at *2 (S.D.N.Y. July 7,
2014) (“A party seeking to strike a Rule 56.1 statement
‘bears a heavy burden, as courts generally disfavor motions
to strike.’ ”).
In Plaintiff's motion to strike, Dkt. No. 114, Plaintiff listed
nearly 50 statements from Defendant's Rule 56.1 submission
and “objects” on the grounds of “hearsay” or “improper
argument” by providing a corresponding citation to either
the Federal Rules of Evidence 801-803, the Undersigned's
Individual Rules 3.G.v, Federal Rule of Civil Procedure 56(c)
(2), Pacenza v. IBM Corp., No. 04 CIV. 5831 (SCR), 2007
WL 9817926, at *2 (S.D.N.Y. July 26, 2007) (a case that
was decided prior to the 2010 amendments to Rule 56), or
a combination of the above. Aside from these bare citations,
Plaintiff declined to provide any explanation or justification

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for why each statement is based on inadmissible or otherwise
improper. Plaintiff makes the same or similar objections to the
corresponding facts in his response to Defendant's Rule 56.1
Statement. Dkt. No. 107.
Because “[a]sserting an issue without advancing an argument
does not suffice to adequately raise” it, Casciani v. Nesbitt,
392 F. App'x 887, 889 (2d Cir. 2010), the Court declines
to deem any statements inadmissible solely on the basis
of Plaintiff's indolent objections. See Sec. Inv'r Prot. Corp.
v. Bernard L. Madoff Inv. Sec. LLC, No. 20 CV 1186LTS, 2020 WL 5370576, at *4 (S.D.N.Y. Sept. 8, 2020)
(declining to consider an issue where a party did “not provide
any explanation or proffer any support for these conclusory
arguments.”); Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d
Cir. 2001) (“[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation,
are deemed waived.”) (internal quotation marks omitted).
Instead, when determining whether a material fact is in
dispute, the Court will consider all arguments properly
advanced in the parties’ submissions as to the admissibility of
evidence cited in support of those factual allegations. F.D.I.C.
v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (to
create “doubt as to the material facts,” a party “may not rely
on conclusory allegations or unsubstantiated speculation.”).
*5 Moreover, in Plaintiff's response to Defendant's Rule
56.1 Statement, Dkt. No. 107, Plaintiff provides some record
citations that provide no discernable method for the Court
to locate the documents because there is no reference to
the docket number, filing, submission, or any other indicator
of the documents’ location. 1 Specifically, at times Plaintiff
references what appear to be bates stamps ranges but does not
explain what the documents are or where they can be found.
See, e.g., Dkt. No. 107 at 37, 41. By citing unidentifiable
documents without explanation, Plaintiff “leaves it to the
Court to hunt down the evidence to evaluate Plaintiff's
conclusory argument.” Florkevicz v. Comm'r of Soc. Sec., No.
CV 19-19919 (SRC), 2020 WL 3867409, at *2 n.1 (D.N.J.
July 9, 2020). See also Rios v. Bigler, 67 F.3d 1543, 1553
(10th Cir. 1995) (“It is not this court's burden to hunt down the
pertinent materials.”). Because “nothing in the federal rules
mandates that district courts conduct an exhaustive search
of the entire record before ruling on a motion for summary
judgment,” and as such “district courts are entitled to order”
– and this Court has ordered – “litigants to provide specific
record citations,” Amnesty Am. v. Town of W. Hartford, 288
F.3d 467, 470–71 (2d Cir. 2002), Plaintiff's failure to provide

functioning citations may result in some instances in a fact
being undisputed.

B. Defendant's Motion for Summary Judgment
Defendant moves for summary judgment as to Plaintiff's
ADA discrimination and retaliation claims. “Summary
judgment is appropriate when the record taken as a whole
could not lead a rational trier of fact to find for the nonmoving party.” Smith v. Cty. of Suffolk, 776 F.3d 114, 121
(2d Cir. 2015). Summary judgment may not be granted unless
all of the submissions taken together “show[ ] that there is
no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The moving party bears the burden of demonstrating
the absence of a material factual question, and in making
this determination, the Court must view all facts in the light
most favorable to the non-moving party. See Eastman Kodak
Co. v. Image Techn. Servs., Inc., 504 U.S. 451, 456 (1992);
Gemmink v. Jay Peak Inc., 807 F.3d. 46, 48 (2d Cir. 2015).
In evaluating cross-motions for summary judgment, each
motion must be examined “on its own merits,” and “all
reasonable inferences must be drawn against the party whose
motion is under consideration.” Vugo, Inc. v. City of New
York, 931 F.3d 42, 48 (2d Cir. 2019) (internal quotations and
citations omitted).
Once the moving party has asserted facts showing that
the non-movant's claims cannot be sustained, “the party
opposing summary judgment may not merely rest on the
allegations or denials of his pleading; rather his response,
by affidavits or otherwise as provided in the Rule, must set
forth specific facts demonstrating that there is a genuine issue
for trial.” Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009)
(quotations omitted). “[C]onclusory statements, conjecture,
and inadmissible evidence are insufficient to defeat summary
judgment.” ITC Ltd. v. Punchgini, Inc., 482 F.3d 135, 151
(2d Cir. 2007). The same is true for “mere speculation or
conjecture as to the true nature of the facts.” Hicks v. Baines,
593 F.3d 159, 166 (2d Cir. 2010).
Only disputes over material facts will “preclude the entry
of summary judgment.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). “An issue of fact is genuine and
material if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Cross Commerce
Media, Inc. v. Collective, Inc., 841 F.3d 155, 162 (2d Cir.
2016). “On a motion for summary judgment, a fact is material

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if it might affect the outcome of the suit under the governing
law.” Royal Crown Day Care LLC v. Dep't of Health & Mental
Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (internal quotation
marks omitted).

1. Plaintiff's Discrimination Claim
The ADA provides “that no covered employer ‘shall
discriminate against a qualified individual on the basis of
disability ... in regard to ... [the] discharge of employees.’ ”
Clark v. Jewish Childcare Ass'n, Inc., 96 F. Supp. 3d 237, 248
(S.D.N.Y. 2015) (citing 42 U.S.C. § 12112(a)). “In analyzing
a discriminatory discharge claim under the ADA, [courts]
apply the burden-shifting analysis established by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-04 (1973),” under which the “plaintiff bears the initial
burden of proving by a preponderance of the evidence a
prima facie case of discrimination,” and then “[t]he burden of
production then shifts to defendants, who must offer through
the introduction of admissible evidence a non-discriminatory
reason for their actions that, if believed by the trier of fact,
would support a finding that unlawful discrimination was
not a cause of the disputed employment action.” Heyman v.
Queens Vill. Comm. for Mental Health for Jamaica Cmty.
Adolescent Program, Inc., 198 F.3d 68, 72 (2d Cir. 1999)
(internal citations omitted). “If the defendant proffers such
a reason, the presumption of discrimination drops out of
the analysis, and the defendant will be entitled to summary
judgment unless the plaintiff can point to evidence that
reasonably supports a finding of prohibited discrimination.”
Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir. 2010)
(alterations and internal quotation marks omitted).
*6 “To establish a prima facie case of discrimination under
the ADA, plaintiff must show by a preponderance of the
evidence that (1) his employer is subject to the ADA; (2)
he was disabled within the meaning of the ADA; (3) he
was otherwise qualified to perform the essential functions
of his job, with or without reasonable accommodation; and
(4) he suffered adverse employment action because of his
disability.” Heyman, 198 F.3d at 72 (citing Ryan v. Grae &
Rybicki, P.C., 135 F.3d 867, 869-70 (2d Cir. 1998)).
Defendant does not contest the first two elements of Plaintiff's
prima facie case for the purposes of this motion. Dkt. No. 90
at 7. The Court determines that there are no genuine disputes
of any material facts and that Plaintiff has failed to meet his

initial “burden of production” for establishing the other two
elements. Heyman, 198 F.3d at 72.

a. Third Element: Qualified to
Perform Essential Job Functions
Plaintiff maintains that his job position was “Key
Relationship Manager” and that he was qualified to perform
that job, with reasonable accommodations, when it was taken
away from him on November 29, 2012. Dkt. No. 106 at
12-13. However, Plaintiff's contention that he was able to
perform his job as “key relationship manager” is in direct
conflict with his sworn statements made to the Social Security
Administration, Prudential, and Mass Mutual in obtaining
his disability benefits that, as a result of chemotherapy,
Plaintiff had suffered serious disability in his cognitive
functioning that rendered him incapable of performing in his
occupation or any other occupation. Dkt. No. 107 at 50-54
(“the chemotherapy treatments have severely diminished my
cognitive functioning to where I could no longer work in my
occupation or frankly in any occupation”).
Moreover, as explained supra II.A., Plaintiff's objections to
the introduction of these statements are entirely conclusory
and unsupported by any explanation for why the underlying
evidence is inadmissible. As Plaintiff provides no evidence to
rebut Defendant's claim that Plaintiff made these statements
or otherwise provide an explanation as to their veracity,
the Court concludes that there is no genuine dispute of
material fact as to whether Plaintiff made these statements.
See Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (“[M]ere
conclusory allegations or denials ... cannot by themselves
create a genuine issue of material fact where none would
otherwise exist.”).
To be sure, Plaintiff's statements to the Social Security
Administration, Prudential, and Mass Mutual that he is totally
disabled and cannot work “do not necessarily bar [him]
from claiming in an ADA action that he can perform the
essential functions of the job at issue.” Parker v. Columbia
Pictures Indus., 204 F.3d 326, 333 (2d Cir. 2000) (citing
Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 802
(1999)). However, because Plaintiff's earlier statements to
these entities “directly contradict the allegations made in”
this ADA lawsuit, Plaintiff “must offer some explanation for
the inconsistency” that is “sufficient to warrant a reasonable
juror's concluding that, assuming the truth of, or the plaintiff's
good faith belief in, the earlier statement, the plaintiff could

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nonetheless ‘perform the essential functions’ of the job, with
or without ‘reasonable accommodation’ ” in order to “defeat
summary judgment.” Id. (citing Cleveland, 526 U.S. at 802).
Plaintiff has failed to make this showing. Plaintiff has sworn
under oath that he had suffered serious cognitive impairment
that affected his ability to read research and recall basic facts,
and Plaintiff provides no discernable explanation of how
he can perform the essential functions of the key manager
role without those abilities or why this job is an exception
to his statement that he cannot perform in any occupation.
Moreover, though Plaintiff points out that he was terminated
from his preferred position on November 29, 2012, two
months before he began disability leave, he points to nothing
in the record to explain why he was “totally disabled” in
January of 2013 but not in November of 2012. He at no
point claims or points to evidence in the record that his
condition deteriorated in that two-month period, and in fact
the undisputed evidence in the record shows that Plaintiff
began chemotherapy in 2008 and complained of cognitive
dysfunction as early as May 2011. Therefore, the Court
concludes that there is no genuine dispute that Plaintiff was
totally disabled during this time period.
*7 To be sure, even though he was totally disabled, Plaintiff
may still have been “qualified to perform the essential
functions of his job” with “a reasonable accommodation.”
Heyman, 198 F.3d at 72. Plaintiff argues that he requested
that his employer “find someone else to perform certain
Korea and Taiwan specialist functions,” so that he could
perform only the “key manager role.” Dkt. No. 106. at 7.
However, eliminating one of Plaintiff's key job roles that
he was hired to do is not a “reasonable accommodation.”
To the contrary, this is the removal of a job function, not
an accommodation for performing one. See Turowski v.
Triarc Companies, Inc., 761 F. Supp. 2d 107, 112 (S.D.N.Y.
2011) (“While a reasonable accommodation may include
adjustments such as the modification of physical facilities,
work schedules or equipment or job restructuring, reasonable
accommodation does not mean the elimination of any of the
position's essential functions.”) (citing Gilbert v. Frank, 949
F.2d 637, 642 (2d Cir. 1991)); Jasany v. U.S. Postal Serv.,
755 F.2d 1244, 1250 (6th Cir. 1985) (“The post office was not
required to accommodate [the plaintiff] by eliminating one of
the essential functions of his job.”). And while “[t]he ADA
lists reassignment to an existing, vacant position as a possible
reasonable accommodation, 42 U.S.C. § 12111(9)(B),” the
ADA “does not require creating a new position for a disabled

employee.” Graves v. Finch Pruyn & Co., 457 F.3d 181, 187
(2d Cir. 2006).
Second, even if this were to be considered a “reasonable
accommodation” in theory, Plaintiff has still not shown that
with it he would be “qualified to perform the essential
functions of his job,” Heyman, 198 F.3d at 72, because
he provides no explanation of how his disability to his
cognitive functioning made him unable to complete the
specialist Taiwan and Korea functions but not the key
manager functions. In sum, because there is no genuine
dispute of fact that Plaintiff was totally disabled during this
time period and that there was no accommodation that could
enable him to perform his duties, the Court concludes as a
matter of law that Plaintiff was not “qualified to perform the
essential functions of his job.” Id.

b. Fourth Element: Adverse Action because of Disability
Although the conclusion above is sufficient to dismiss
Plaintiff's discrimination claim, the Court also concludes that
there is no genuine issue of material fact that the Defendant
took adverse action against the Plaintiff because of his
disability. For the fourth element of his claim, Plaintiff must
show that he “suffered adverse employment action because of
his disability,” Heyman, 198 F.3d at 72. “[T]he ADA requires
a plaintiff alleging a claim of employment discrimination
to prove that discrimination was the but-for cause of any
adverse employment action.” Natofsky v. City of New York,
921 F.3d 337, 348 (2d Cir. 2019). Once “Defendant proffers a
legitimate reason for Plaintiff's termination, the burden shifts
to Plaintiff to demonstrate that the reason Defendant offers
is merely a pretext for discrimination.” Clark, 96 F. Supp.
3d at 254-55 (citing Heyman, 198 F.3d at 71) (quotations
omitted). In analyzing whether there is discriminatory intent,
the Court may look to factors such as whether the Defendant
hired a new person of similar qualifications after Plaintiff's
discharge, criticized the Plaintiff's performance in disabilityrelated degrading terms, or engaged in “more favorable
treatment of employees not in the protected group.” Exarhakis
v. Visiting Nurse Serv. of New York, No. 02-CV-5562 (ILG),
2006 WL 335420, at *11 (E.D.N.Y. Feb. 13, 2006) (quoting
Chambers v. TRM Copy Centers Corporation, 43 F.3d 29, 37
(2d Cir. 1994)).
Plaintiff claims that his supervisors were aware of his cancer
diagnosis, as evidenced by Plaintiff's testimony that he told
them about it, and that he was terminated from his preferred

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position in November 29, 2012 as a result. Defendants have
offered a “legitimate reason for Plaintiff’ termination” in
response, Clark, 96 F. Supp. 3d at 254-55, which is that he
was not terminated for any reason related to his disability but
because his position, along with those of other employees,
was to be eliminated as a result of restructuring of the
company.
*8 Plaintiff has not provided evidence from which a
reasonable jury could conclude that Defendant's purported
reason for termination was pretextual. As purported evidence
of discriminatory intent, Plaintiff claims that his salary had
been decreasing each year starting in 2009 after his diagnosis
in 2008. Dkt. No. 106 at 13-14, 28. However, Defendant
explains that the company's struggles following the financial
crisis in 2008 led to salary and bonus decreases for almost
all employees. Dkt. No. 107 at 28. Plaintiff has not “allege[d]
that defendants treated [him] differently from non-disabled
employees, [n]or that defendants’ practices have a disparate
impact upon disabled employees relative to non-disabled
employees.” Brennen v. Comptroller of State of N.Y., 100 F.3d
942 (2d Cir. 1996).
In fact, to the contrary, the only conclusion a reasonable jury
conclude reach from the undisputed facts in the record is that
there was an absence of discriminatory intent for termination
of Plaintiff from his preferred position on November 29, 2012.
Defendant never hired someone else to fill his position and
Plaintiff's supervisor was also terminated a year later. Dkt.
No. 107 at 43, 50. Additionally, when Plaintiff was initially
terminated as a result of the layoffs, his supervisors strived
to find him another position in the company, which he was
offered and accepted. Plaintiff was permitted to and took full
advantage of the disability leave provided by Defendants in
2013. Therefore, the material facts established in the record
on this issue – none of which are meaningfully disputed
– do not give rise to an inference of discrimination. See
Exarhakis, 2006 WL 335420, at *11 (determining that the
plaintiff's allegations “do not give rise to a rational inference
of discrimination, especially in the context of the other events
that transpired, including [defendant] offering her gratuitous
leaves of absence, creating a new position for her, allowing
her a tremendous amount of flexibility in the work created
for her, and reviewing her work positively.”). The Court
concludes as a matter of law that Plaintiff did not suffer an
adverse employment action as a result of his disability.
***

Based on the undisputed facts in the record, no reasonable jury
could conclude that the Plaintiff was qualified to perform the
essential functions of his job or that any adverse employment
action was taken against him because of his disability, both
of which are required for a claim of discrimination under the
ADA. Defendant is therefore entitled to summary judgment
on Plaintiff's discrimination claim.

2. Plaintiff's Retaliation Claim
Plaintiff also brings a claim for retaliation under the ADA.
The statute “provides that ‘[n]o person shall discriminate
against any individual because such individual has opposed
any act or practice made unlawful by this chapter or
because such individual made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding,
or hearing under this chapter.” 42 U.S.C. § 12203(a). “A
prima facie case of retaliation under the ADA is made up
of the following elements: (1) the employee was engaged
in an activity protected by the ADA, (2) the employer was
aware of that activity, (3) an employment action adverse to the
plaintiff occurred, and (4) there existed a causal connection
between the protected activity and the adverse employment
action.” Muller v. Costello, 187 F.3d 298, 311 (2d Cir. 1999)
(internal quotations omitted). “Once a plaintiff establishes
a prima facie case of retaliation, the burden shifts to the
defendant to articulate a legitimate, non-retaliatory reason
for the challenged employment decision.” Treglia v. Town
of Manlius, 313 F.3d 713, 721 (2d Cir. 2002). Then, “[i]f
a defendant meets this burden, ‘the plaintiff must point
to evidence that would be sufficient to permit a rational
factfinder to conclude that the employer's explanation is
merely a pretext for impermissible retaliation.’ ” Id. (citing
Cifra v. G.E. Co., 252 F.3d 205, 216 (2d Cir. 2001)).
*9 Plaintiff claims that there were two retaliatory events
arising out of his complaints to supervisors regarding their
alleged discriminatory treatment. Dkt. No. 106 at 17-18.
First, he states that he made a “plain English written
complaint” regarding the alleged discrimination in his
November 20, 2012 employee performance review, and that
he was subsequently terminated from his preferred position
on November 29, 2012. Id. However, this complaint, which
was contained in an “employee performance review,” Dkt.
No. 106 at 18, was not “protected activity” under the ADA.
“Protected activity is action taken to protest or oppose
statutorily prohibited discrimination.” Natofsky v. City of New
York, 921 F.3d 337, 354 (2d Cir. 2019) (quotations omitted).

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7

Shannon v. Credit Agricole Securities (USA), Inc., Not Reported in Fed. Supp. (2021)

Plaintiff himself admits in sworn testimony that he did not
reference his disability in this document, Dkt. No. 109 ¶ 24,
and there is therefore no genuine dispute that Plaintiff did not
“protest or oppose statutorily prohibited” discrimination in
the November 20, 2012 complaint. Moreover, even if Plaintiff
had established a prima facie case of retaliation on this
claim, as discussed supra II.B.1.b, Defendant has proffered a
legitimate reason for Plaintiff's termination and Plaintiff has
not “point[ed] to evidence that would be sufficient to permit a
rational factfinder to conclude that” Defendant's explanation
for the firing is pretextual. Treglia, 313 F.3d at 721.
As to the second alleged retaliatory event, Plaintiff made
a formal complaint regarding the alleged discrimination on
January 2, 2012 through his attorney. Defendant responded
in a January 4, 2013, letter stating that Plaintiff had not been
terminated on the basis of his disability, and that the company
was willing to keep him employed until the end of February
2013. Dkt. No. 115, Exhibit N.
However, Defendant's January 4, 2013 letter was not an
“adverse employment action.” The Second Circuit defines
an adverse employment action as a “materially adverse
change in the terms and conditions of employment,” such
as “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.” Sanders v. New York City Hum. Res. Admin.,
361 F.3d 749, 755 (2d Cir. 2004). By the time the
above correspondence occurred, Plaintiff had already been
terminated and therefore the action did not constitute a
“materially adverse change” in the terms and conditions
of his employment. Boyle v. McCann-Erickson, Inc., 949
F. Supp. 1095, 1104-05 (S.D.N.Y. 1997). (holding that
where a plaintiff “had already been terminated,” an “alleged

decision” not to hire him for freelance work was not an
adverse employment action because it “did not [a]ffect his
employment nor hinder him in any way from enforcing his
rights.”). See also Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 67 (2006) (“The antiretaliation provision
protects an individual not from all retaliation, but from
retaliation that produces an injury or harm.”).
Indeed, the action was not “adverse” at all considering that
Defendant extended to Plaintiff the opportunity to continue
working through February 2013. And the fact that this
opportunity was only temporary also does not constitute
an adverse employment action, because Plaintiff was not
entitled to any further employment after he had been lawfully
terminated from his preferred position on November 12,
2012. See Graves v. Finch Pruyn & Co., 457 F.3d 181, 187
(2d Cir. 2006) (“[T]he ADA did not require [the defendant]
give [the plaintiff] this new position for any longer than it
did,” because “[g]iven that the ADA does not require creating
a new position for [the plaintiff] at all,” it does not “dictate the
duration of a new position that his employer created for him as
a matter of grace.”). The Court therefore concludes, based on
the undisputed facts in the record, that Defendant is entitled
to judgment as a matter of law on Plaintiff's retaliation claim.
III. CONCLUSION
For the reasons described above, Defendant's motion for
summary judgment is GRANTED. Plaintiff's Motion to Strike
is DENIED. This resolves Dkt. Nos. 89, 114.
*10 SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2021 WL 1063183

Footnotes
1

Plaintiff also on at least one occasion disputed a fact with “[Need citation here.]”. Dkt. No. 107 at 53.

End of Document

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8

Zeng v. New York City Housing Authority, Not Reported in Fed. Rptr. (2023)

2023 WL 4553416
Only the Westlaw citation is currently available.
United States Court of Appeals, Second Circuit.
Xiamin ZENG, aka Aimee Zane, Plaintiff-Appellant,
v.
NEW YORK CITY HOUSING
AUTHORITY, Defendant-Appellee.
22-138-cv
|
July 17, 2023
Appeal from the United States District Court for the Southern
District of New York (Hellerstein, J.).
UPON DUE CONSIDERATION, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the
judgment of the district court is hereby VACATED, and the
action is REMANDED for further proceedings consistent
with this order.
Attorneys and Law Firms
FOR PLAINTIFF-APPELLANT: Kenneth F. McCallion,
McCallion & Associates, LLP, New York, NY.
FOR DEFENDANT-APPELLEE: Hanh H. Le (Nancy M.
Harnett, on the brief), for Lisa Bova-Hiatt, Executive Vice
President for Legal Affairs and General Counsel, New York
City Housing Authority, New York, NY.
PRESENT: ROBERT D. SACK, JOSEPH F. BIANCO,
EUNICE C. LEE, Circuit Judges.

SUMMARY ORDER
*1 Plaintiff-appellant Xiamin Zeng (“Zeng”) appeals from
the January 4, 2022, judgment of the United States
District Court for the Southern District of New York,
granting summary judgment to the New York City Housing
Authority (“NYCHA”) on her federal claims and declining
to exercise supplemental jurisdiction over her state law
claims. Zeng was employed by NYCHA as a probationary
Caretaker, performing janitorial services at three different
NYCHA housing developments from July 28, 2016, until
her termination on May 12, 2017. Zeng, who is a
Chinese-American woman, alleged, inter alia, that NYCHA
discriminated against her on account of her race, national

origin, gender, familial status as a single parent, and status
as a victim of domestic violence by subjecting her to a
hostile work environment, and terminated her employment in
retaliation for her reporting the discriminatory conduct to her
supervisors, in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), the New York
City Human Rights Law, N.Y.C. Admin. Code §§ 8-101 et
seq. (“NYCHRL”), and 42 U.S.C. § 1981 (“Section 1981”).
We assume the parties’ familiarity with the underlying facts
and procedural history, to which we refer only as necessary
to explain our decision.
We review de novo the grant of summary judgment. Brooklyn
Ctr. for Indep. of the Disabled v. Metro. Transp. Auth., 11
F.4th 55, 61 (2d Cir. 2021). Summary judgment is appropriate
“only upon a showing ‘that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.’ ” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir.
2012) (quoting Fed. R. Civ. P. 56(a)). When deciding a motion
for summary judgment, we must “resolve all ambiguities and
draw all permissible factual inferences in favor of the party
against whom summary judgment is sought.” Id. (internal
quotation marks and citation omitted).
Zeng advances three principal arguments on appeal. First,
she argues that the district court erred in concluding that
despite evidence of repeated and extensive discriminatory
remarks directed at her by her supervisors and co-workers,
among other misconduct, summary judgment on the hostile
work environment claims was warranted. Second, Zeng
asserts that the district court similarly erred in granting
summary judgment on the discriminatory termination claims
because triable issues of fact existed as to whether NYCHA's
stated non-discriminatory grounds were a pretext for Zeng's
termination. Finally, with respect to the retaliation claims,
Zeng contends that the district court erred in determining that
the evidence in the record established that NYCHA's decision
to terminate Zeng pre-dated her complaints of discriminatory
conduct, and that, even assuming that a prima facie case
of retaliation was established, NYCHA articulated legitimate
non-discriminatory reasons for her termination that she failed
to rebut with evidence of retaliation.
*2 As an initial matter, we affirm the district court's
dismissal of Zeng's claims under Title VII and Section 1981
to the extent that they are predicated upon her status as a
single parent or a victim of domestic violence. See 42 U.S.C. §
2000e-2(a) (recognizing claims based on race, color, religion,
sex, or national origin, but not familial status or status as

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1

Zeng v. New York City Housing Authority, Not Reported in Fed. Rptr. (2023)

victim of domestic violence); 42 U.S.C. § 1981; see also
Albert v. Carovano, 851 F.2d 561, 572 (2d Cir. 1988) (en
banc) (“Section 1981 was intended to combat racial or ethnic
discrimination, nothing more.”). 1
However, as set forth below, we conclude that the district
court erred in granting summary judgment on Zeng's claims
based on race and gender, as well as retaliation, under
Title VII and Section 1981. 2 We conclude, construing the
evidence in the record most favorably to Zeng, that there
is sufficient evidence from which a reasonable jury could
find that the alleged racial and sexist remarks directed
at Zeng, combined with other conduct by co-workers and
supervisors, cumulatively created a hostile work environment
based on her race and/or gender. We also conclude that the
district court erred in granting summary judgment on Zeng's
discriminatory termination claims because disputed issues
of material fact exist regarding whether NYCHA's stated
reasons for terminating her were pretext for unlawful race
and/or gender discrimination. Lastly, we similarly conclude
that the evidence, including a supervisor's written request
for Zeng's termination within weeks of her complaints of
discriminatory conduct, as well as other evidence in the record
supporting an inference of retaliation, precludes summary
judgment on Zeng's retaliation claims. 3
I. Hostile Work Environment Claims
“[T]o survive summary judgment on a claim of hostile work
environment harassment, a plaintiff must produce evidence
that ‘the workplace is permeated with “discriminatory
intimidation, ridicule, and insult,” that is “sufficiently
severe or pervasive to alter the conditions of the victim's
employment.” ’ ” Cruz v. Coach Stores, Inc., 202 F.3d 560,
570 (2d Cir. 2000) (quoting Harris v. Forklift Sys., Inc., 510
U.S. 17, 21 (1993)), superseded on other grounds by, N.Y.C.
Local L. No. 85. We may consider five non-exclusive factors
in determining the existence of a hostile work environment:
“(1) the frequency of the discriminatory conduct; (2) its
severity; (3) whether the conduct was physically threatening
or humiliating, or a ‘mere offensive utterance’; (4) whether
the conduct unreasonably interfered with plaintiff's work;
and (5) what psychological harm, if any, resulted.” Aulicino
v. N.Y.C. Dep't of Homeless Servs., 580 F.3d 73, 82 (2d
Cir. 2009) (quoting Richardson v. N.Y. State Dep't of Corr.
Serv., 180 F.3d 426, 437 (2d Cir. 1999), abrogated on other
grounds, Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53 (2006)). “Our case law treats the first two of these
factors—the frequency and the severity of the misconduct—

as the principal focus of the analysis; the last three factors
are specific considerations within the severity inquiry. Core
hostile work environment cases involve misconduct that is
both frequent and severe, for example, when a supervisor
utters blatant racial epithets on a regular if not constant
basis and behaves in a physically threatening manner.” Id.
(internal quotation marks and citation omitted). We have
explained that an employer's motion for summary judgment
must be denied “if the conduct there is either so severe or so
pervasive as to alter the working conditions of a reasonable
employee.” Richardson, 180 F.3d at 440. In addition, although
“[i]solated incidents usually will not suffice to establish a
hostile work environment, ... we have often noted that even
a single episode of harassment can establish a hostile work
environment if the incident is sufficiently severe.” Redd v.
N.Y. Div. of Parole, 678 F.3d 166, 175–76 (2d Cir. 2012)
(internal quotation marks and citations omitted). However,
for “racist comments, slurs, and jokes to constitute a hostile
work environment, there must be more than a few isolated
incidents of racial enmity.” Schwapp v. Town of Avon, 118 F.3d
106, 110 (2d Cir. 1997) (internal quotation marks and citation
omitted). “Thus, whether racial slurs constitute a hostile work
environment typically depends upon the quantity, frequency,
and severity of those slurs, considered cumulatively in order
to obtain a realistic view of the work environment.” Id. at 110–
11 (internal quotation marks and citations omitted).
*3 Zeng asserts that the repeated incidents of abusive,
discriminatory remarks and conduct by co-workers and
supervisors, which occurred during her approximately ten
months at NYCHA, were sufficiently severe and pervasive
to support a hostile work environment claim. The district
court determined otherwise, holding that “[b]ased on all the
evidence presented ... [the district court is] not persuaded that
a reasonable person would view [Zeng's] work environment
as sufficiently racially or sexually hostile so as to alter the
conditions of employment.” Special App'x at 18–19 (internal
quotation marks omitted). We disagree with the district court
and conclude that the evidence in the record, construed
most favorably to Zeng, was sufficient to preclude summary
judgment on the hostile work environment claims under Title
VII and Section 1981.
Zeng submitted a sworn declaration and stated in her
complaint that, in July 2016, when she began working at
LaGuardia Houses as the only Asian employee for NYCHA at
that location, her male supervisor (Alex Rodriguez) assigned
her to work alone in a dangerous building, despite the fact
that workers were usually assigned to work there in pairs for

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2

Zeng v. New York City Housing Authority, Not Reported in Fed. Rptr. (2023)

safety. In September 2016, Zeng was cornered by a resident
of the building who threatened and sexually assaulted her.
According to Zeng, although she reported the assault to
NYCHA and requested a transfer to a safer location, there
was no investigation or transfer, and instead she continued to
be required to work alone on projects at LaGuardia Houses,
unlike her male and non-Asian co-workers. Zeng also stated
in her sworn declaration that she was forced to work outside
without a coat for long hours during the cold month of
November while NYCHA provided all other employees with
winter coats. Zeng further asserts that, in October 2016, she
was denied time off to attend court appearances to renew
an order of protection against her abusive ex-boyfriend, and
her supervisor threatened to terminate her employment if she
attended the hearing. Several weeks later, in November 2016,
she was transferred to Isaacs Houses after she saw the man
who had sexually assaulted her in September 2016 taking
drugs near where she was working in LaGuardia Houses.
Zeng stated in her declaration and complaint that the alleged
hostile work environment continued at Isaacs Houses based
upon, inter alia, the following events: (1) on multiple
occasions, her new male supervisor (Elliot Ramos) “kicked
the unlockable women's bathroom door open and walked in
while [she] was using the bathroom,” asking whether she was
sleeping or taking a break, App'x at 773; (2) for the majority
of her placement at Isaacs Houses, Zeng did not receive
a physical schedule setting forth her responsibilities on a
weekly basis, even though her non-Asian co-workers received
such a schedule, id.; id. at 62; and (3) in December 2016,
while sitting with her co-workers and her then-supervisor
Ramos, she told them that she would not work on Christmas
Day because she had to facilitate a visitation with her son's
father, and they responded by laughing and shouting racist and
sexist comments, such as “f**king Asian,” “f**king yellow
Asian,” “f**king stupid b***h,” and “f**k her son,” id. at
773.
After complaining about her mistreatment at Isaacs Houses,
Zeng was transferred to Smith Houses in January 2017 and
allegedly overheard her new supervisor (Elliott Medina) call
her prior supervisor (Ramos) on her first day to ask for her
personnel file, as to which Ramos angrily responded, “F**k
the B***h! Do not transfer her! I'm her boss. She must be
[at Isaacs Houses]! Give her a Memo. Kick her out. Stupid
Yellow B***h!” Id. at 774. According to Zeng, one of her
co-workers (Ms. Slim) from Isaacs Houses, who had cursed
and laughed at her and said “F**k Asians” whenever she saw
Zeng, also had been re-assigned to Smith Houses. Id. at 775.

When Slim learned of Zeng's transfer, Slim called several
of Zeng's co-workers at Smith Houses who subsequently,
on many occasions, shouted insulting words to Zeng in the
women's restroom.
*4 Here, “[t]aking the evidence in the light most favorable
to [Zeng] and accepting her version of the events as true,
as we are required to do and a jury would be permitted
to do,” Redd, 678 F.3d at 178, this evidence was sufficient
to create a genuine issue of fact as to whether the alleged
racist and sexist insults leveled against by her supervisors
and co-workers, combined with the aforementioned conduct
—including her male supervisor's physical invasion of her
privacy in the women's restroom on multiple occasions—
could lead a reasonable jury to conclude that Zeng was
subjected to a hostile work environment based on her race and
gender.
In reaching the opposite conclusion, the district court
made unwarranted credibility determinations regarding the
evidence. For instance, because Zeng claimed both that
she was forced to work alone and that she was harassed
by her co-workers and supervisors, the district court found
that it was “implausible that both allegations could be true
simultaneously.” Special App'x at 19. However, there is
nothing in the record to suggest that, although Zeng alleges
that she was assigned to work alone in the dangerous building,
she did not interact with her co-workers and supervisor at
other times during the workday, such as during breaks and
meetings. In fact, Zeng alleges that the racist and sexist insults
in December 2016 occurred with other co-workers in the
dining room. Similarly, the district court found that Zeng's
allegation in the complaint about being forced to work outside
for “long hours during the winter” at LaGuardia Houses
without workcoats, App'x at 60, was contradicted by the
record because she was transferred out of LaGuardia Houses
in November 2016 and, thus, did not work there during
the winter, Special App'x at 19. That improper credibility
assessment, however, did not allow for the possibility that
Zeng was colloquially referring to “winter” as also including
cold days in late autumn when a jacket was necessary.
Indeed, in her declaration, Zeng specifically refers to her
supervisors forcing her “to work long hours during a cold
November.” App'x at 772 (emphasis added). Furthermore, in
rejecting Zeng's claim that she was denied leave forms by
her supervisor, the district court appears to have credited the
testimony given by Zeng's supervisor that the leave forms
in question were “readily available in his office, and more
importantly, that he could not deny a request to attend a

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3

Zeng v. New York City Housing Authority, Not Reported in Fed. Rptr. (2023)

court hearing.” Special App'x at 20. Moreover, the district
court did not address evidence Zeng submitted of a recording
which, construed most favorably to Zeng, created a disputed
issue of fact as to whether the supervisor repeatedly denied
her request for a particular leave form. In short, these
credibility determinations regarding Zeng's sworn statements,
as compared to other evidence in the record, should have
been reserved for the jury. See, e.g., Eichelberg v. Nat'l
R.R. Passenger Corp., 57 F.3d 1179, 1186 (2d Cir. 1995)
(“[C]redibility determinations are within the province of the
jury and may not be resolved on a motion for summary
judgment.”); see also Fincher v. Depository Tr. & Clearing
Corp., 604 F.3d 712, 725 (2d Cir. 2010) (“[A]s a general
rule, a district court may not discredit a witness's deposition
testimony on a motion for summary judgment, because the
assessment of a witness's credibility is a function reserved for
the jury.”).
Finally, in limiting Zeng's hostile work environment claim to
“four instances in which her supervisors or co-workers uttered
racist and sexist slurs,” Special App'x at 18, the district court
did not consider that Zeng's sworn statements which suggest
that those instances were illustrations of insults that occurred
on a more frequent basis. See, e.g., App'x at 775 (alleging
that Ms. Slim stated “F**k Asians” whenever she saw Zeng
at Isaacs Houses, and that Zeng's female colleagues at Smith
Houses “called Ms. Slim in front of [Zeng] many times
and they shouted insulting words to [Zeng] in the women's
restroom”). The district court also failed to consider the other
alleged harassing conduct beyond the racist and sexist insults,
such as her male supervisor (Ramos) entering the women's
restroom on multiple occasions, while she was using it, to
question her about her work performance.
*5 Accordingly, because the evidence was sufficient to
create a triable issue of fact as to whether Zeng was subjected
to a hostile work environment based on race and gender,
the district court erred in granting summary judgment for
NYCHA on those claims under Title VII and Section 1981.
II. Discriminatory Termination and Retaliation
Claims
We further conclude that the district court erred in granting
summary judgment on Zeng's discriminatory termination and
retaliation claims, which we analyze pursuant to the burdenshifting framework set forth in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). See Kirkland v. Cablevision
Sys., 760 F.3d 223, 225 (2d Cir. 2014) (analyzing Title VII

and retaliation claims together under the McDonnell Douglas
burden-shifting standard).
Under Title VII, “[t]o state a prima facie case of race
discrimination, a plaintiff must proffer evidence that (1) [s]he
belongs to a protected group; (2) [s]he was qualified for [her]
position; (3) [her] employer took an adverse action against
[her]; and (4) the adverse action occurred in circumstances
giving rise to an inference of race discrimination.” Id. (citing
Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003)). “To state a
prima facie case of retaliation under Title VII, a plaintiff must
proffer evidence that [she] engaged in a protected activity,
such as complaining about race discrimination, and that [her]
employer took an adverse action in retaliation.” Id. (citing
Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir.
2010)).
“Once an employee makes a prima facie case of either
discrimination or retaliation, the burden shifts to the employer
to give a legitimate, non-discriminatory reason for its
actions.” Id. (citing McDonnell Douglas, 411 U.S. at 802).
“If the employer does so, the burden then shifts back to the
plaintiff to show that the employer's explanation is a pretext
for race discrimination or retaliation.” Id. “With respect to a
discrimination claim, ‘once the employer has made a showing
of a neutral reason for the complained of action, to defeat
summary judgment the employee's admissible evidence must
show circumstances that would be sufficient to permit a
rational finder of fact to infer that the employer's employment
decision was more likely than not based in whole or in part
on discrimination.’ ” Id. (alterations adopted) (quoting Terry,
336 F.3d at 138). “With respect to a retaliation claim, the
employee's admissible evidence must show ‘that the unlawful
retaliation would not have occurred in the absence of the
alleged wrongful action or actions of the employer.’ ” Id.
(quoting Kwan v. Andalex Grp. LLC, 737 F.3d 834, 835 (2d
Cir. 2013)).
On appeal, NYCHA does not argue that Zeng failed
to establish a prima facie case of race- or genderbased discrimination. Instead, NYCHA urges us to
uphold the district court's determination that NYCHA had
adequately rebutted Zeng's prima facie case by articulating
legitimate, non-discriminatory reasons for terminating her
employment—premised, primarily, on poor performance and
insubordination—and that Zeng failed to proffer sufficient
evidence of pretext to rebut these non-discriminatory grounds
for termination. We are unpersuaded.

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4

Zeng v. New York City Housing Authority, Not Reported in Fed. Rptr. (2023)

On the record before us, there is sufficient evidence that,
if credited, could rationally support a jury's finding that
NYCHA's termination of Zeng was a pretext for unlawful race
discrimination and/or retaliation. The evidence in the record,
construed most favorably to Zeng, includes the following:
*6 • On December 21, 2016, Ramos, Zeng's supervisor
at Isaac Houses, issued her a disciplinary memorandum
for misplacing her keys but did not penalize other
employees who also lost their keys. When Zeng reported
Ramos for this discriminatory conduct, he threatened to
fire her.
• Several days later, on December 23, 2016, Ramos and
other employees made a number of racist and sexist
comments at Zeng after she informed them that she did
not want to work overtime on Christmas Day because
she had to facilitate a child custody visit on that day.
Zeng again complained about Ramos's discriminatory
treatment to Russell Hartfield, another supervisor, but
that supervisor did nothing. Then, on December 28 and
30, 2016, Zeng was issued negative memoranda about
her work, and she later learned that Ramos and Hartfield
had issued a negative evaluation.
• After filing a telephonic complaint with Human
Resources about her treatment at Isaac Houses, Zeng
was transferred to Smith Houses on January 10, 2017.
There, Elliott Medina, Zeng's new supervisor, asked her
to come to the management office, where she overheard
him speaking on the telephone with Ramos regarding the
transfer of her personnel files to Smith Houses. In her
sworn declaration, as noted supra, Zeng proffered that
she overheard Ramos get angry and yell racist and sexist
comments regarding Zeng and also tell Medina that Zeng
should be disciplined and terminated.
• On January 31, 2017, Zeng emailed Medina to inform him
that she was unable to attend work because of menstrual
pains and that she would be using two sick days. Medina
then sent that email to Superintendent Liliana Billini and
Ivonne Cunningham, writing, “Look at this Billini! It
[sic] Chinese new year. Ivy pay dock her.” App'x at 734.
• On February 3, 2017, Zeng emailed Deborah Altman in
the Human Resources Department to apply for a transfer
to another location. Although the documentary evidence
shows that Zeng made this request out of a concern for
her physical safety due to her belief that her ex-partner,
whom she claims was abusive to her, discovered that she
had been working at Smith Houses, Zeng later proffered,

in a sworn declaration, that she had made that request
after being subjected to the foregoing discriminatory
conduct. She also stated that, on her last day at Smith
Houses, three supervisors gave her three disciplinary
memoranda, the contents of which she claims were
largely false.
• In a letter dated February 6, 2017, Billini recommended
to the Borough Director that Zeng be “[i]mmediately
[t]erminated due to repeated memo issuance, being
insubordinate to her supervisors, poor janitorial work
performance and creating a hostile work environment.”
App'x at 222.
• On February 7, 2017, Zeng was placed on an unpaid leave
of absence until such time that an alternative suitable
worksite location could be found, and, after discussions
regarding a potential transfer to a different NYCHA
location failed, Zeng was terminated on May 12, 2017.
NYCHA argues that Zeng cannot rely upon the alleged
discrimination that occurred at LaGuardia Houses and Isaacs
Houses to demonstrate pretext because her supervisors at
those locations did not recommend her termination; rather, the
request for termination was made at Smith Houses by Billini,
who was not alleged to have displayed any animus. However,
that contention overlooks the fact that Billini's memorandum
requesting termination was based not only on events at Smith
Houses, but also noted “repeated memo issuance,” App'x 222,
which one could reasonably infer was a reference to prior
counseling memos at other NYCHA sites—including three
such memos at Isaacs Houses written by Ramos, whom Zeng
alleges used racial and sexist epithets against her. 4 Moreover,
Ramos allegedly conveyed his racial and retaliatory animus
in Zeng's presence to Medina, her supervisor at Smith
Houses, who allegedly also harbored racial animus and wrote
counseling memos for insubordination and poor performance.
As we have explained, the “cat's paw” theory of liability
imputes a discriminatory motive to a decisionmaker where
such action is proximately caused by the animus of a
subordinate—that is, “the supervisor, acting as agent of the
employer, has permitted himself to be used as the conduit of
the subordinate's prejudice.” Vasquez v. Express Ambulance
Serv., Inc., 835 F.3d 267, 272 (2d Cir. 2016) (alteration
adopted) (internal quotation marks and citation omitted).
Thus, on this record, the alleged discriminatory animus of
Ramos and Medina supports the existence of a disputed issue
of material fact as to whether the reasons underlying Billini's
termination request, including prior counseling memos by

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5

Zeng v. New York City Housing Authority, Not Reported in Fed. Rptr. (2023)

Ramos and Medina, were pretext for discrimination and/or
retaliation.
*7 In addition, with respect to retaliation, we disagree with
the district court's determination that those claims “fail at the
threshold because she has not established a causal relationship
between her protected activity and termination.” Special
App'x at 21–22. The district court principally focused on the
timing between when Zeng allegedly first complained about
the discrimination (December 2016 or January 2017) and the
formal date of her termination (May 12, 2017), which it held
was “too remote in time” to allow an inference of causation.
Id. at 22. As a threshold matter, although the “causal
connection needed for proof of a retaliation claim can be
established indirectly by showing that the protected activity
was closely followed in time by the adverse action,” Cifra v.
G.E. Co., 252 F.3d 205, 217 (2d Cir. 2001) (internal quotation
marks and citation omitted), this Court “has not drawn a
bright line to define the outer limits beyond which a temporal
relationship is too attenuated to establish a causal relationship
between the exercise of a federal constitutional right and an
allegedly retaliatory action,” Gorman-Bakos v. Cornell Coop Extension of Schenectady Cnty., 252 F.3d 545, 554 (2d
Cir. 2001); see also Hubbard v. Total Commc'ns, Inc., 347
F. App'x 679, 681 (2d Cir. 2009) (summary order) (holding
that four months was not too remote in time to establish a
causal relationship). In any event, the district court's exclusive
focus on the formal date of termination failed to consider
the undisputed evidence, as discussed supra, that Billini first
recommended Zeng's immediate termination on February 6,
2017, only weeks after she purportedly complained about
the discriminatory conduct. Under these circumstances, the
fact that the formal termination did not occur until several
months later does not undermine a reasonable inference of
causation that could be drawn from the close proximity
between the alleged complaint of discrimination and the

initial request for termination. 5 See Sassaman v. Gamache,
566 F.3d 307, 312 (2d Cir. 2009) (explaining that “an
inference of discriminatory intent may be established by,
inter alia ... the sequence of events leading to the plaintiff's
discharge.” (internal quotation marks and citations omitted)).
Moreover, the district court failed to consider that Zeng
also sought to establish a retaliatory motive by relying more
directly on the alleged instruction by Ramos to Medina, after
Zeng had been transferred to Smith Houses, to “[g]ive her a
Memo” and “[k]ick her out.” App'x at 774.
In sum, Zeng's sworn declaration, combined with the other
evidence in the record, is sufficient to raise a genuine issue
of material fact as to whether NYCHA's non-discriminatory
grounds for termination were pretext for discrimination and/
or retaliation. Of course, a “jury might credit all of this
proffered evidence, some of it, or none at all. But that is left for
the jury to decide at trial.” Kirkland, 760 F.3d at 227 (internal
quotation marks and citation omitted).
Accordingly, the district court erred in granting NYCHA's
motion for summary judgment on Zeng's discriminatory
termination and retaliation claims under Title VII and Section
1981.
***
We have reviewed NYCHA's remaining arguments and
conclude that they are without merit. For the foregoing
reasons, we VACATE the judgment of the district court and
REMAND the action for further proceedings consistent with
this order.
All Citations
Not Reported in Fed. Rptr., 2023 WL 4553416

Footnotes
1

We note that, even though not separately actionable under these statutes, Zeng is permitted to rely upon
evidence of her interactions with NYCHA regarding her marital issues and being the victim of domestic abuse
to the extent such interactions are relevant to her Title VII and Section 1981 claims based on race and gender
discrimination.

2

We analyze Zeng's hostile work environment, discriminatory termination, and retaliation claims under Section
1981 utilizing the Title VII framework. See Rivera v. Rochester Genesee Reg'l Transp. Auth., 743 F.3d 11,

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6

Zeng v. New York City Housing Authority, Not Reported in Fed. Rptr. (2023)

20 n.4 (2d Cir. 2014) (hostile work environment claims under Title VII and Section 1981); Vivenzio v. City
of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010) (race discrimination claims under Title VII and Section 1981);
Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010) (retaliation claims under Title VII and Section 1981).
3

Because the district court declined to exercise supplemental jurisdiction over the NYCHRL claims and
dismissed them without prejudice due solely to the absence of any remaining federal claims, we likewise
vacate the dismissal of the NYCHRL claims. See, e.g., Ramsy v. Marriott Int'l, Inc., 952 F.3d 379, 393 (2d
Cir. 2020); Karibian v. Columbia Univ., 14 F.3d 773, 781 (2d Cir. 1994).

4

NYCHA contends that Billini was referencing only counseling memos at Smith Houses. However, the
ambiguous record permits more than one reasonable inference, including the one Zeng seeks to draw.

5

NYCHA argues that, between the request for termination and the actual termination, there were good faith
efforts by NYCHA to attempt to transfer Zeng to Rutgers Houses or developments in the Bronx and Staten
Island, but Zeng rejected any such alternatives. However, Zeng contends that those efforts were intended to
cover up their pretextual reasons for termination. For example, in a March 2017 email chain about a vacancy
in Rutgers Houses, the Deputy Assistant Director of Human Resources wrote, “I thought I had deleted the
bulk of questionable comments from the email chain. However, [I] will oblige your request.” App'x at 743. In
short, the events following the request for termination also contain factual disputes that cannot be resolved
on summary judgment.

End of Document

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7

Weinstein v. Miller, Not Reported in Fed. Supp. (2021)

2021 WL 3038370
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Elizabeth Harding WEINSTEIN, Plaintiff,
v.
Judge Robert J. MILLER, et al., Defendants.
21-CV-4543 (CS)
|
Signed 07/15/2021
Attorneys and Law Firms
Elizabeth Harding Weinstein, Briarcliff Manor, NY, Pro Se.

ORDER OF DISMISSAL
CATHY SEIBEL, United States District Judge:
*1 Plaintiff brings this pro se action, for which the filing
fees have been paid, alleging that Defendants are violating
her civil rights in state-court proceedings. She seeks money
damages and emergency injunctive relief. For the reasons set
forth below, the Court dismisses Plaintiff's complaint without
prejudice.

STANDARD OF REVIEW
The Court has the authority to dismiss a complaint, even
when the plaintiff has paid the filing fee, if it determines that
the action is frivolous, Fitzgerald v. First E. Seventh Tenants
Corp., 221 F.3d 362, 363-64 (2d Cir. 2000) (per curiam)
(citing Pillay v. INS, 45 F.3d 14, 16-17 (2d Cir. 1995) (per
curiam) (holding that Court of Appeals has inherent authority
to dismiss frivolous appeal)), or that the Court lacks subject
matter jurisdiction, Ruhrgas AG v. Marathon Oil Co., 526
U.S. 574, 583 (1999). An action is frivolous if it “lacks an
arguable basis either in law or in fact.” Neitzke v. Williams,
490 U.S. 319, 325 (1989). Moreover, the Court “has the
power to dismiss a complaint sua sponte for failure to state
a claim,” Leonhard v. United States, 633 F.2d 599, 609 n. 11
(2d Cir. 1980), so long as the plaintiff is given notice and “an
opportunity to be heard.” Thomas v. Scully, 943 F.2d 259, 260
(2d Cir. 1991) (per curiam); see also Perez v. Ortiz, 849 F.2d
793, 797 (2d Cir. 1988); Wright & Miller, Federal Practice
and Procedure § 1357, at 301 & n. 3. The Court is obliged,

however, to construe pro se pleadings liberally, Harris v.
Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to
raise the “strongest [claims] that they suggest,” Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006)
(internal quotation marks and citations omitted) (emphasis in
original).

BACKGROUND
A. Plaintiff's Complaint
Plaintiff brings this action under 42 U.S.C. §§ 1983 and 1988,
and the Americans with Disabilities Act of 1990's (ADA)
anti-retaliation provision, 42 U.S.C. § 12203. She alleges that
she is a “victim of severe domestic violence [and] narcissistic
abuse,” and that Defendants violated her rights by depriving
her of due process, obstructing her access to the court, and
committing fraud on the court. (ECF 1, at ¶ 1.) Plaintiff
asserts that the alleged violations occurred largely because
of the undue influence wielded in state-court proceedings by
her husband Brian Stryker Weinstein, a well-known attorney.
She sues the New York State Supreme Court, Appellate
Division, Second Department (Appellate Division); New
York Supreme Court, Westchester County; Judge Miller of
the Appellate Division; four staff members of the Appellate
Division – Clerk of Court Aprilanne Agostino, Associate
Deputy Clerk Wendy Stynes, Program Coordinator Joseph
Castellano, and Program Administrator Jeanne Muratore; her
husband; Dina Kaplan, her husband's attorney; and Gloria
Marchetti-Bruck, her children's court-appointed attorney.
The following allegations are taken from the complaint. On
June 1, 2020, Plaintiff's husband filed a Family Offense
Petition (FOP) against Plaintiff in the Westchester County
Family Court and sought a temporary order of protection
(TOP). Plaintiff and her husband were “estranged” at the time,
and he was undergoing a “pedophilia investigation.” (Id. at ¶
44.) On June 5, 2020, Judge Arlene Katz of the Family Court
issued a TOP against Plaintiff, requiring her to stay away from
her husband, her three children, and their home. Immediately
after the order was issued, police officers from the Briarcliff
Manor Police Department removed Plaintiff from the house
she had shared with her husband and children.
*2 Plaintiff responded to the TOP by filing divorce
proceedings and a state-court petition for a writ of mandamus
in the Westchester County Supreme Court. In December
2020, all of the state-court proceedings were consolidated as
one action in the Westchester County Supreme Court. On

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1

Weinstein v. Miller, Not Reported in Fed. Supp. (2021)

December 4, 2020, Judge Nancy Quinn-Koba, the presiding
state-court judge, issued a new TOP ex parte, which again
directed Plaintiff to stay away from her husband, her three
children, and their home.
Plaintiff asserts that Judge Quinn-Koba and Referee Janet
Gandolfo denied her due process, access to her children,
access to her property, and access to financial support.
Plaintiff filed an emergency request for an order to show cause
relating to the December 4, 2020 TOP; Judge Quinn-Koba
denied the request.
On or about December 30, 2020, Plaintiff filed an application
pursuant to New York Civil Practice and Rules § 5704 in
the New York State Supreme Court, Appellate Division,
seeking review of the ex parte TOP. But the Appellate
Division improperly processed the application, failing to
place it on the New York State Courts Electronic Filing
system (NYSCEF), misplacing it, and not finding it until
January 25, 2021. Once the file was found, the Appellate
Division scheduled a conference. On February 17, 2021,
the conference relating to Plaintiff's § 5704 application was
conducted by Associate Deputy Clerk Wendy Stynes and
attended by Marchetti-Bruck, the children's court-appointed
attorney, and Kaplan, Plaintiff's husband's attorney. Plaintiff
objected to the conference because it was not conducted by a
judge, and Deputy Clerk Stynes refused to tell her the name of
the judge assigned to the case. The next day, on February 17,
2020, Judge Robert J. Miller issued a one-line order denying
Plaintiff's § 5704 application.
On April 16, 2021, Judge Quinn-Koba issued a “new unlawful
Ex Parte TOP,” dating it back to December 4, 2020, although
no TOP was in effect from March 5, 2021, to April 16,
2021. (Id. at ¶ 89.) Within minutes after the new TOP was
issued, Plaintiff was unlawfully pulled over while driving
by officers from the Briarcliff Manor Police. The officers
arrested Plaintiff for alleged violations of the April 16, 2021
TOP but refused to tell her how she had violated the order.
Only after she was handcuffed did the officers inform her that
she had violated the TOP on April 5-7, 2021, when in fact no
TOP was in effect. Plaintiff was charged with misdemeanor
offenses.
That same day, in new proceedings in the Briarcliff Manor
Village Court, Village Justice Halper issued a new ex parte
TOP, directing that Plaintiff stay 1500 feet away from her
home and children. She also has been denied discovery by
ADAs Lauscher and Miller.

Plaintiff seeks to vacate the April 16, 2021 TOP issued in
the Westchester County Supreme Court proceedings, and the
second TOP, issued on April 16, 2021, in the new matter in
the Briarcliff Manor Village Court. She also seeks money
damages. 1
B. Requests for Emergency Injunctive Relief
*3 Plaintiff alleges that the matter at issue in this case is the
Appellate Division's denial to her of due process and access to
the courts in proceedings concerning her December 30, 2020
§ 5704 application to the Appellate Division for review of
the December 4, 2020 TOP issued by the Westchester County
Supreme Court. (See id. ¶ 39.) But despite Plaintiff's assertion,
she raises claims arising out of and seeks relief in proceedings
before the Westchester County Supreme Court and Briarcliff
Manor Village Court. In fact, since the filing of this action,
Plaintiff has submitted at least six letters seeking emergency
injunctive relief as to the Westchester County Supreme Court
case. (See ECF 5, 6, 7, 10, 11, 12.) She generally asserts in
these letters that her husband is a pedophile, her children have
been kidnapped, she has been a victim of human trafficking,
and she has been denied due process and access to the courts
in the state-court matters. In some of the letters she claims
that her husband and Kaplan, his attorney, are colluding with
state actors to violate her rights and retaliate against her for
the filing of this action. Plaintiff attaches to all the letters
screenshots of purported text messages between her and her
husband concerning his alleged pedophilia, and the February
1, 2021 letter from Elizabeth Bussian, indicating that Plaintiff
does not need psychiatric evaluation.
C. Plaintiff's Competency
Plaintiff has another pending case before the Court, Weinstein
v. Village of Briarcliff Manor, No. 21-CV-1996 (CS)
(Weinstein I), in which she brought claims arising out of her
January 4, 2021 arrest for disorderly conduct in the Briarcliff
Manor Municipal Building. In that action, she named as
defendants: her husband, the Village of Briarcliff Manor,
judges, judicial officials, prosecutors, police officials, town
officials, and others. Plaintiff asserted that her husband “has
been using his inner workings of the Westchester Judiciary”
to have the judges, police officers, and district attorneys
“discredit” Plaintiff in order to “provide a cover for [her
husband's] nefarious actions, abuse of process, and domestic
violence thus far.” (ECF 7:21-CV-1996, 1 at 20.) In that
complaint, Plaintiff sought damages and injunctive relief,
including the recusal of the judge presiding over her criminal

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2

Weinstein v. Miller, Not Reported in Fed. Supp. (2021)

case in the Briarcliff Manor Village Court and dismissal of
the disorderly conduct charges.
Plaintiff also made allegations in the complaint that suggested
that she was undergoing or had undergone a mental
competency examination under Article 730 of the New York
State Criminal Procedure Law. 2 (See ECF 7:21-CV-1996,
1 at 20.) But it was unclear whether Plaintiff has been
formally adjudicated incompetent. Plaintiff later filed several
submissions in which she sought an immediate stay of Village
Justice Howard Code's attempts to hold competency hearings
(ECF 7:21-CV-1996, 3 at 2-4), and then “an emergency stay
on an unlawful imprisonment and involuntary commitment
order issued” on March 9, 2021, by Village Justice Code in
her proceedings in the Briarcliff Manor Village Court (ECF
7:21-CV-1996, 5 at 1-2).
On March 17, 2021, the Court issued an order that: (1)
dismissed without prejudice Plaintiff's claims against judges
and prosecutors on absolute immunity grounds; and (2)
declined under the Younger abstention doctrine to intervene
in Plaintiff's ongoing state-court proceeding. (ECF 7:21CV-1996, 8.) The order also declined to issue summonses as
to the remaining defendants pending information regarding
Plaintiff's mental health status.
The Court later issued two subsequent orders stating that,
because Plaintiff had raised the issue of her competency by
challenging a commitment order allegedly issued by Village
Justice Code, the Court would be conducting an inquiry
as to Plaintiff's mental health to determine if it would be
appropriate to appoint a guardian ad litem under Federal Rule
of Civil Procedure 17(c). (See ECF 7:21-CV-1996, 9, 12.)

DISCUSSION
D. Plaintiff's Competency to Litigate
Under Federal Rule of Civil Procedure 17(c)(2), a person who
is adjudicated incompetent and who does not have a duly
appointed representative may only sue by a next friend or
guardian ad litem. The Second Circuit has instructed district
courts not to make a merits determination in an incompetent
person's federal civil action unless the incompetent person
is represented by a guardian ad litem. See Berrios v. N.Y.C.
Hous. Auth., 564 F.3d 130, 134-35 (2d Cir. 2009).
*4 As noted, Plaintiff's competency is at issue in Weinstein I,
and the Court is presently conducting an inquiry to determine

if Plaintiff is competent, and if not, whether it would be
appropriate to appoint a guardian ad litem for Plaintiff in that
action or take other appropriate measures. But the Court need
not wait to complete the inquiry in Weinstein I or address
the issue of Plaintiff's competency in this action because, as
detailed below, Plaintiff's claims are frivolous. See generally
Denton v. Hernandez, 504 U.S. 25, 34 (1992) (dismissal of
complaint on ground of frivolousness is not a dismissal on the
merits, but rather an exercise of the court's discretion). But in
in an abundance of caution, the Court dismisses this action
without prejudice. See Berrios, 564 F.3d at 135 (courts should
dismiss without prejudice claims of incompetent persons who
appear without a guardian ad litem or counsel).
E. Younger abstention
Similar to Weinstein I, Plaintiff again seeks this Court's
intervention in her pending state-court proceedings by
repeatedly requesting emergency injunctive relief from orders
and actions in those proceedings. But as the Court has
previously explained to Plaintiff, such claims must be
dismissed. In Younger v. Harris, 401 U.S. 37 (1971), the
United States Supreme Court held that a federal court may
not enjoin a pending state-court criminal proceeding in
the absence of special circumstances suggesting bad faith,
harassment, or irreparable injury that is both serious and
immediate. See Gibson v. Berryhill, 411 U.S. 564, 573-74
(1973) (citing Younger, 401 U.S. 37). This doctrine has
been extended to civil actions. See Kaufman v. Kaye, 466
F.3d 83, 86 (2d Cir. 2006); Diamond “D” Constr. Corp.
v. McGowan, 282 F.3d 191, 198 (2d Cir. 2002) (“Younger
generally requires federal courts to abstain from taking
jurisdiction over federal constitutional claims that involve
or call into question ongoing state proceedings.”). Thus,
Younger abstention is appropriate in only three categories
of state court proceedings: (1) state criminal prosecutions;
(2) civil enforcement proceedings that are “akin to criminal
prosecutions”; and (3) civil proceedings “that implicate a
State's interest in enforcing the orders and judgments of its
courts.” Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 72-73
(2013). The proceedings with which Plaintiff wishes this
Court to interfere fit within those categories.
Specifically, Plaintiff asks the Court to intervene in her
ongoing proceedings in the Westchester County Supreme
Court and related proceedings in other courts. Although she
asserts that she has been denied due process and access to
the courts, and that there is a conspiracy to violate her rights
stemming from her husband's undue influence in the statecourt actions, Plaintiff has alleged no facts showing bad

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3

Weinstein v. Miller, Not Reported in Fed. Supp. (2021)

faith, harassment, or irreparable injury with respect to her
pending state-court proceedings. The Court will therefore not
intervene in Plaintiff's ongoing state-court proceedings and
denies her requests for emergency injunctive relief (ECF 5,
6, 7, 10, 11, 12). Her remedy for erroneous decisions in those
proceedings, should there be any, would be via the state-court
appellate process, not via this Court's intervention.

as ‘frivolous’ when ‘it is clear that the defendants are immune
from suit.’ ” (quoting Neitzke, 490 U.S. at 327)); see also
Mills v. Fischer, 645 F.3d 176, 177 (2d Cir. 2011) (“Any claim
dismissed on the ground of absolute judicial immunity is
‘frivolous’ for purposes of [the in forma pauperis statute].”).

2. Claims against Appellate Division Clerks
F. Judicial Immunity
1. Claims against Judge Miller
The Court must also dismiss Plaintiff's claims against Judge
Robert J. Miller of the Appellate Division. Judges are
absolutely immune from suit for damages for any actions
taken within the scope of their judicial responsibilities.
Mireles v. Waco, 502 U.S. 9, 11 (1991). Generally, “acts
arising out of, or related to, individual cases before the judge
are considered judicial in nature.” Bliven v. Hunt, 579 F.3d
204, 210 (2d Cir. 2009). “Even allegations of bad faith or
malice cannot overcome judicial immunity.” Id. (citations
omitted). This is because “[w]ithout insulation from liability,
judges would be subject to harassment and intimidation....”
Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994). In addition, as
amended in 1996, § 1983 provides that “in any action brought
against a judicial officer for an act or omission taken in such
officer's judicial capacity, injunctive relief shall not be granted
unless a declaratory decree was violated or declaratory relief
was unavailable.” 42 U.S.C. § 1983.
*5 Judicial immunity does not apply when the judge takes
action “outside” his judicial capacity, or when the judge takes
action that, although judicial in nature, is taken “in absence of
jurisdiction.” Mireles, 502 U.S. at 9-10; see also Bliven, 579
F.3d at 209-10 (describing actions that are judicial in nature).
But “the scope of [a] judge's jurisdiction must be construed
broadly where the issue is the immunity of the judge.” Stump
v. Sparkman, 435 U.S. 349, 356 (1978).
Plaintiff's claims against Judge Miller arise out of his
ruling denying her § 5704 application filed in the Appellate
Division. That ruling was within the scope of Judge
Miller's judicial capacity and jurisdiction. The Court therefore
dismisses Plaintiff's claims against Judge Miller under the
doctrine of judicial immunity and as frivolous. See Neitzke,
490 U.S. at 325 (stating that a claim is frivolous if it “lacks and
arguable basis either in law or in fact”); Montero v. Travis, 171
F.3d 757, 760 (2d Cir. 1999) (“A complaint will be dismissed

Plaintiff's claims against the four Appellate Division
employees – Clerk of Court Aprilanne Agostino, Associate
Deputy Clerk Stynes, Program Coordinator Joseph
Castellano, and Program Administrator Jeanne Muratore
– must also be dismissed. Judicial immunity has been
extended to court clerks and “others who perform functions
closely associated with the judicial process” when they are
performing discretionary acts of a judicial nature which
are essential to the judicial process, such as filing court
documents or managing a court's calendar. Cleavinger v.
Saxner, 474 U.S. 193, 200 (1985); see Rodriguez v. Weprin,
116 F.3d 62, 66 (2d Cir. 1997) (extending judicial immunity
to state court clerks who were ordered by Appellate Division
judges not to provide a litigant with documents and not to
expand the record on appeal); McKnight v. Middleton, 699 F.
Supp. 2d 507, 526 (E.D.N.Y. 2010) (“Clerk's Office activities
of filing and docketing legal documents” are an “integral
part of the judicial process” and are generally entitled to
absolute immunity); Pikulin v. Gonzales, No. 07-CV-0412
(CBA), 2007 WL 1063353, at *2 (E.D.N. Y Apr. 5, 2007)
(extending judicial immunity to the federal court clerk with
respect to claims arising out of the filing and docketing of
legal documents).
Here, Plaintiff asserts claims against the Appellate Division
clerks for actions they took in relation to her December
30, 2020 § 5704 application for review of the December 4,
2020 temporary order of protection issued by Westchester
County Supreme Court. In particular, Plaintiff takes issue
with how the application was processed, claiming that the
clerks improperly failed to place her petition on the New York
State Courts Electronic Filing system, misplaced it, and did
not find it until January 25, 2021. Further, once the file was
found, the Appellate Division held a conference conducted
by Stynes, rather than a judge or a full panel of the Appellate
Division. But the clerks are not subject to liability when
performing the administrative tasks described by Plaintiff.
Court clerks are entitled to immunity for harm caused by
action undertaken pursuant to the direction of a judicial officer
or court policy. Rodriguez, 116 F.3d at 67. As it appears that

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4

Weinstein v. Miller, Not Reported in Fed. Supp. (2021)

the complained-of actions of the Appellate Division clerks
involved filing and docketing documents and implementing
court procedures related to Plaintiff's § 5704 application, they
are entitled to absolute judicial immunity. The Court therefore
dismisses Plaintiff's claims against Defendants Agostino,
Stynes, Castellano, and Muratore under the doctrine of
judicial immunity and as frivolous.
G. Eleventh Amendment Immunity
*6 Plaintiff's claims against the Appellate Division and
the Westchester County Supreme Court are barred under
the Eleventh Amendment. “[A]s a general rule, state
governments may not be sued in federal court unless they
have waived their Eleventh Amendment immunity, or unless
Congress has abrogated the states’ Eleventh Amendment
immunity....” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d
Cir. 2009). “The immunity recognized by the Eleventh
Amendment extends beyond the states themselves to state
agents and state instrumentalities that are, effectively, arms
of a state.” Id. New York has not waived its Eleventh
Amendment immunity to suit in federal court, and Congress
did not abrogate the states’ immunity in enacting 42 U.S.C. §
1983. See Trotman v. Palisades Interstate Park Comm'n, 557
F.2d 35, 40 (2d Cir. 1977).
As the Appellate Division and the Westchester County
Supreme Court are part of the New York State Unified
Court System, which is an agency of the State of New
York, the two state-court defendants are immune from suit
under the Eleventh Amendment. See Gollomp, 568 F.3d at
368 (holding that the New York State Unified Court System
“is unquestionably an ‘arm of the State,’ and is entitled
to Eleventh Amendment sovereign immunity”); Goldberg v.
Roth, No. 99-CV-11591, 2001 WL 1622201, at *4 (S.D.N.Y.
Dec. 17, 2001) (citations omitted) (holding that New York
courts are immune from suit under the Eleventh Amendment).
Plaintiff's § 1983 claims against the Appellate Division and
the Westchester County Supreme Court are dismissed as
barred under the Eleventh Amendment and as frivolous. 3
H. Claims against Private Parties
Finally, to the extent Plaintiff brings claim under § 1983
against her husband Brian Stryker Weinstein; Dina Kaplan,
her husband's attorney; and Gloria Marchetti-Bruck, her
children's court-appointed attorney, those claims must also
be dismissed. A claim for relief under § 1983 must allege
facts showing that each defendant acted under the color of
a state “statute, ordinance, regulation, custom or usage.” 42

U.S.C. § 1983. Private parties are therefore not generally
liable under the statute. Sykes v. Bank of America, 723 F.3d
399, 406 (2d Cir. 2013) (citing Brentwood Acad. v. Tenn.
Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001)); see
also Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d
Cir. 2002) (“[T]he United States Constitution regulates only
the Government, not private parties.”). As Brian Weinstein,
Kaplan, and Marchetti-Bruck are private parties who are
not alleged to have been working for any state or other
government body, and Plaintiff does not allege any facts
suggesting that these defendants’ actions could be “fairly
attributable” to the state, the defendants are not subject to
liability under § 1983. 4 See Rendell-Baker v. Kohn, 457
U.S. 830, 838-42 (1982); Flagg Bros. v. Brooks, 436 U.S.
149, 155-57 (1978); Fabrikant v. French, 691 F.3d 193, 207
(2d Cir. 2012). The Court dismisses Plaintiff's claims against
Defendant Brian Weinstein, Kaplan, and Marchetti-Bruck.
I. Claims under the ADA
*7 Plaintiff also brings her claims citing to the ADA's antiretaliation provision, 42 U.S.C. § 12203, which generally
prohibits adverse action taken against a person who has
engaged in protected activity. 5 Plaintiff does not allege
any facts suggesting that she made complaint of disability
discrimination or that any Defendant discriminated or
retaliated against her because of any such complaint, and
accordingly the claim is frivolous.
J. Leave to Amend Denied
Generally, a court should not dismiss a pro se complaint
“without granting leave to amend at least once when a liberal
reading of the complaint gives any indication that a valid
claim might be stated.” Dolan v. Connolly, 794 F.3d 290,
295 (2d Cir. 2015) (quoting Chavis v. Chappius, 618 F.3d
162, 170 (2d Cir. 2010) (internal quotation marks omitted)).
But a court has inherent power to dismiss without leave to
amend or replead in “where ... the substance of the claim
pleaded is frivolous on its face,” Salahuddin v. Cuomo,
861 F.2d 40, 42 (2d Cir. 1988) (citation omitted), or where
amendment would otherwise be futile, Hill v. Curcione,
657 F. 3d 116, 123-24 (2d Cir. 2011); see also Shapiro
v. McManus, 136 S. Ct. 450, 455-56 (2015) (holding that
federal-question jurisdiction is lacking where the claims are
“wholly insubstantial and frivolous,” “essentially fictitious,”
or “obviously without merit” (internal quotation marks and
citations omitted)). Because Plaintiff's assertions are frivolous

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5

Weinstein v. Miller, Not Reported in Fed. Supp. (2021)

and cannot be cured with an amendment, the Court declines
to grant Plaintiff leave to amend her complaint.
K. Consolidation
Because this case and No. 21-CV-1996 involve a common
question – specifically, Plaintiff's competence – they are
hereby consolidated, pursuant to Federal Rule of Civil
Procedure 42, only for purposes of competency proceedings.

The Court consolidates this case with No. 21-CV-1996 only
for purposes of competency proceedings.
Although Plaintiff paid the filing fees for this action, the Court
certifies under 28 U.S.C. § 1915(a)(3) that any appeal from
this order would not be taken in good faith, and therefore in
forma pauperis status is denied for the purpose of an appeal.
See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
Plaintiff has consented to receive electronic service of Court
filings. (ECF 3.)

CONCLUSION
The Court denies Plaintiff's requests for emergency injunctive
relief (ECF 5, 6, 7, 10, 11, 12) under the Younger abstention
doctrine.
The Court dismisses Plaintiff's claims without prejudice on
immunity grounds and as frivolous.

SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2021 WL 3038370

Footnotes
1

Plaintiff attaches to the complaint multiple documents, including a copy of a letter dated February 1, 2021
addressed “[t]o whom it may concern” from Elizabeth Bussian, a Licensed Clinical Social Worker (LCSW)
who has been working with Plaintiff since 2013. Bussian writes that she has “no psychiatric concerns” about
Plaintiff and that Plaintiff “do[es] not require a psychiatric evaluation.” (Id. at 36.) Plaintiff also attaches copies
of the FOP and TOPs; copies of the dockets of her state-court cases on NYSCEF; transcripts of proceedings
that she recorded; and links to videos that she has posted on social media.

2

Article 730 of the New York Criminal Procedure Law provides that any time the court is of the opinion that
the defendant may be an incapacitated person, the court must order a psychiatric examination. See N.Y.
Crim. Pro. L. § 730.30.

3

See also Zuckerman v. App. Div., Second Dep't, Sup. Ct., 421 F.2d 625, 626 (2d Cir. 1970) (holding that the
Appellate Division, Second Department is not a “person” for the purpose of § 1983 liability). See generally
Will v. Mich. Dep't of State Police, 491 U.S. 58 (1989) (holding that a state agency is not a “person” for the
purpose of § 1983 liability).

4

Marchetti-Bruck's status as Plaintiff's children's court-appointed attorney does not make her a state actor for
purposes of § 1983. Absent special circumstances suggesting concerted action between an attorney and
a state representative, see Nicholas v. Goord, 430 F.3d 652, 656 n.7 (2d Cir. 2005) (citing Adickes v. S.H.
Kress & Co., 398 U.S. 144, 152 (1970)), the representation of a person by private counsel in state-court
criminal or other proceedings does not constitute the degree of state involvement or interference necessary
to establish a claim under § 1983, regardless of whether that attorney is privately retained, court-appointed,
or employed as a public defender. See Bourdon v. Loughren, 386 F.3d 88, 90 (2d Cir. 2004) (citing Polk
County v. Dodson, 454 U.S. 312, 324-25 (1981)); see also Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir.
2000) (holding that legal aid organization ordinarily is not a state actor for purposes of section 1983).

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6

Weinstein v. Miller, Not Reported in Fed. Supp. (2021)

5

The provision provides: “No person shall discriminate against any individual because such individual has
opposed any act or practice made unlawful by this chapter or because such individual made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this
chapter.” 42 U.S.C. § 12203(a).

End of Document

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7

Smith v. City of New York, Not Reported in Fed. Supp. (2016)

2016 WL 4574924
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Louisa SMITH, Plaintiff,
v.
CITY OF NEW YORK, et al., Defendants.
No. 15-cv-4493 (RJS)
|
Signed 09/01/2016
Attorneys and Law Firms
Louisa Smith, New York, NY, pro se.
Cherie Nicole Brown, Linda Margareta Mindrutiu, NYC
Law Department, Office of the Corporation Counsel, New
York, NY, Adam Moshe Dlugacz, Heidell, Pittoni, Murphy
& Bach, LLP, White Plains, NY, Daniel Scott Ratner, Scott
Michael Zimmerman, Heidell, Pittoni, Murphy & Bach, LLP,
Stamford, CT, for Defendants.

OPINION AND ORDER
RICHARD J. SULLIVAN, District Judge
*1 Plaintiff Louisa Smith, who is proceeding pro se,
asserts claims for discrimination and retaliation against the
City of New York (the “City”), New York Presbyterian
Hospital (“NYPH”), and Weill-Cornell College of Cornell
University, New York (“Weill-Cornell,” and with NYPH,
the “Hospital Defendants”) in connection with Plaintiff's
involuntary hospitalization following an anonymous call to
the police indicating that she posed a danger to herself. (Doc.
No. 1.) Now before the Court are the motions of the City and
the Hospital Defendants to dismiss Plaintiff's complaint with
prejudice. For the reasons set forth below, both motions are
granted.

I. BACKGROUND 1
Plaintiff alleges that on June 7, 2012, she was on a
conference call “in connection with legal claims” when
police officers suddenly appeared at her door, placed her in
handcuffs, and took her against her will to NYPH, where
she was checked into the Psychiatric Emergency Department

(“PED”). (Compl. ¶¶ 15, 39-40.) Plaintiff alleges that this was
the result of an unsubstantiated anonymous phone call to the
police department, wherein the caller told police officers that
Plaintiff was in danger of harming herself. (Id. ¶ 44.)
Plaintiff admits that she has had “depressive conditions ...
twice in her life” that did disable her, but contends that she was
not suffering from any mental illness or medical condition at
the time she was taken into custody. (Id. at 28.) Specifically,
Plaintiff says that she was “cogent” (id. ¶ 46) and that she
attempted to explain to the officers that she was fine and did
not require any medical attention or aid, but they refused to
listen to her (id. at 30-31).
On the way to the hospital, Plaintiff complained of
cardiological symptoms and tightness of the handcuffs, but
was given no assistance. (Id. ¶ 53.) Once at the hospital,
“[b]ased on the manner in which she arrived at the hospital
and the allegations made by an anonymous caller,” Plaintiff
was subjected to the PED's mandatory disrobement policy,
pursuant to which she was forced to remove her clothes,
including her underwear, under the examination of a security
officer. (Id. ¶ 57.) Plaintiff claims that she was told to
comply with this procedure in front of a male security officer,
and that, when she refused, she was unnecessarily sedated
with a drug that was contraindicated for individuals with
cardiological conditions. (Id. ¶¶ 58-63.) She was then forcibly
disrobed in a cubicle with windows by a female officer “with
other staff crowding in.” (Id. ¶ 61.) Plaintiff complains that
this disrobement policy is discriminatory against those with
disabilities. (Id. ¶ 98.)
*2 Once admitted, Plaintiff continued to complain of
cardiological symptoms, but was only given a single aspirin
as treatment. (Id. ¶¶ 64-65.) No testing was performed to
further investigate her condition. (Id. ¶ 65.) Plaintiff alleges
that she was denied release from care and moved to a different
location for retaliatory reasons, since the hospital staff were
proponents of the disrobement policy and knew that Plaintiff
was a lawyer (previously employed by the Department of
Justice) who would challenge it in court. (Id. ¶¶ 72-77, 104.)
She further claims that staff “laugh[ed] about her complaints”
and “teas[ed] her.” (Id. ¶ 75.) Plaintiff also states that she was
“allowed to make a few phone calls but only overheard by
security staff.” (Id. ¶ 71.) She was detained in the emergency
room for approximately 36 to 38 hours (id. ¶ 66) and
subsequently moved “elsewhere” (id. ¶ 75) to a “location
near Defendant Hospital (just a block or so away from the
emergency room of Defendant Hospital)” (id. ¶ 79). Plaintiff

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1

Smith v. City of New York, Not Reported in Fed. Supp. (2016)

claims that these acts were motivated by the facts that she
objected to the disrobement policy and that she was viewed
as a “litigation threat,” due to her training as a lawyer. (Id. ¶
104.) Plaintiff was discharged on June 10, 2012. (Id. ¶ 83.)
On June 8, 2015, Plaintiff filed her complaint in the
Southern District of New York, alleging violations of
her constitutional rights pursuant to 42 U.S.C. § 1983,
discrimination under Titles II and III of the Americans
with Disabilities Act (“ADA”) and Section 504 of the
Rehabilitation Act, retaliation under Title V of the ADA,
violations of the New York State and City human rights laws,
and violations of the New York state constitution against the
City, the Hospital Defendants, various individuals including
Jane and John Doe Defendants, and Dr. Sharon Hird, none
of whom have been served. Although the case was originally
assigned to Judge Paul G. Gardephe and then to Judge
Katherine C. Forrest, on October 22, 2015, the case was
reassigned to my docket pursuant to Local Civil Rule 13
as related to a previous action filed by Plaintiff, which is
discussed in more detail below. On January 20, 2016, the City
and the Hospital Defendants each filed a motion to dismiss the
complaint pursuant to Federal Rule of Civil Procedure 12(b)
(6) on the ground that Plaintiff had failed to state a claim.
(Doc. Nos. 37 and 31.) The Hospital Defendants also moved
to dismiss the complaint for failure to prosecute pursuant to
Federal Rule of Civil Procedure 41(b) and argued that some
of Plaintiff's claims are barred on res judicata grounds. The
motions were fully briefed as of April 20, 2016.
As relevant here, Plaintiff previously filed a similar complaint
against NYPH, Weill-Cornell, and various individual doctors
and nurses at the hospital. (See Smith v. N.Y. Presbyterian
Hosp., No. 05-cv-7729 (RJS) (SDNY) (“Smith I”).) In that
suit, Plaintiff likewise brought claims for discrimination
under Section 504 of the Rehabilitation Act, discrimination
under Title III of the ADA, retaliation under Title V of the
ADA, violations of the New York State Human Rights Law,
violations of the New York state constitution, and state law
claims for medical malpractice, invasion of privacy, assault
and battery, intentional and negligent infliction of emotional
distress, and negligent hiring, training, supervision, and
retention of employees, in connection with a series of forced
hospitalizations between January 2002 and August 2009.
Notably, in Smith I, Plaintiff also alleged that the mandatory
disrobement policy of the PED was discriminatory.
The case, which extended nearly a decade, was first assigned
to then-Chief Judge Michael B. Mukasey, who dismissed the

original complaint for failure to state a claim, a decision which
was later vacated in part by the Second Circuit. (Smith I, Doc.
Nos. 1, 7.) On remand, the case was reassigned to Judge P.
Kevin Castel, at which time Plaintiff amended her complaint.
(Id. Doc. No. 10.) On April 3, 2009, the case was once again
reassigned, from Judge Castel to Judge Gerard E. Lynch, who
referred the matter to Magistrate Judge Debra C. Freeman for
discovery and general pre-trial supervision. (Doc. No. 11.)
The case was reassigned to my docket on February 26, 2009,
following Judge Lynch's elevation to the United States Court
of Appeals for the Second Circuit. Nevertheless, from June
2008 to February 2013, Judge Freeman continued to oversee
discovery, albeit with frequent interruptions and delays due
to Plaintiff's numerous requests for adjournments. (See, e.g.,
id. Doc. Nos. 26, 41, 55, 99.) Finally, on April 16, 2013,
Defendants moved for summary judgment. (Id. Doc. No.
202.) On March 19, 2014, the Court granted Defendants'
motion, which Plaintiff did not oppose, as to most of Plaintiff's
claims, including her claim that the PED's disrobement policy
was discriminatory. (Id. Doc. No. 231.) The Court concluded
that Plaintiff had not shown that the PED disrobement policy
was discriminatory on the basis of a disability; rather, the
Court found, the PED's disrobement policy constituted a
medical treatment decision not actionable under the ADA.
(Id.) On January 26, 2015, the Court dismissed the remaining
causes of action with prejudice pursuant to Federal Rule of
Civil Procedure 16(f) in light of Plaintiff's failure to prosecute
her case and comply with judicial orders requiring pre-trial
submissions. (Smith I, Doc. No. 288.) The Second Circuit
affirmed the Court's dismissal on September 30, 2015, when
it dismissed Plaintiff's appeal. (Smith I, Doc. No. 290.)

II. LEGAL STANDARD
*3 To survive a motion to dismiss pursuant to Rule 12(b)
(6) of the Federal Rules of Civil Procedure, a complaint must
“provide the grounds upon which [the] claim rests.” ATSI
Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.
2007); see also Fed. R. Civ. P. 8(a)(2) (“A pleading that states
a claim for relief must contain ... a short and plain statement
of the claim showing that the pleader is entitled to relief ....”).
To meet this standard, plaintiffs must allege “enough facts
to state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim
has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). In reviewing a Rule

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2

Smith v. City of New York, Not Reported in Fed. Supp. (2016)

12(b)(6) motion to dismiss, a court must accept as true all
factual allegations in the complaint and draw all reasonable
inferences in favor of the plaintiff. ATSI Commc'ns, 493
F.3d at 98. However, that tenet “is inapplicable to legal
conclusions.” Iqbal, 556 U.S. at 678. Thus, a pleading that
offers only “labels and conclusions” or “a formulaic recitation
of the elements of a cause of action will not do.” Twombly,
550 U.S. at 555. If the plaintiff “ha[s] not nudged [its] claims
across the line from conceivable to plausible, [its] complaint
must be dismissed.” Id. at 570.
Although a court must generally construe the pleadings of
a pro se litigant liberally, see Tracy v. Freshwater, 623 F.3d
90, 101 (2d Cir. 2010) (“It is well established that a court
is ordinarily obligated to afford a special solicitude to pro
se litigants.”), a court is not obligated to do so where the
pro se plaintiff is a licensed attorney, see id. at 101-02;
Truong v. Cuthbertson, No. 15-cv-4268 (DLI) (LB), 2015
WL 4771852, at *1 (E.D.N.Y. Aug. 12, 2015) (“As Plaintiff
is a former attorney, the Court is not obligated to read his
pleadings liberally.”); Goel v. U.S. Dep't of Justice, No. 03cv-0579 (HB), 2003 WL 22047877, at *1 (S.D.N.Y. Aug.
29, 2003) (declining to construe pleadings liberally where
pro se plaintiff was licensed attorney). Here, Plaintiff is an
attorney with extensive legal training and experience and
is thus not entitled to the special solicitude granted to pro
se litigants. Nevertheless, in light of Plaintiff's medical and
mental health conditions, the Court construes her pleadings
with the degree of liberality typically given to pro se plaintiffs,
although “[even] a pro se complaint must state a plausible
claim for relief.” Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir.
2014).

III. DISCUSSION
As an initial matter, the Court notes Plaintiff's continued
refusal to comply with Court deadlines and her repeated late
filings in this case. Even after the Court granted Plaintiff
an extension of time in which to submit her responses to
Defendants' motions to dismiss (Doc. Nos. 40 and 43),
Plaintiff sought a further extension (Doc. No. 48), which the
Court denied (Doc. No. 49). Plaintiff nonetheless decided
to grant herself the extension denied by the Court and filed
her responses three days after the already-extended deadline.
(Doc. No. 51 and 52.) She then filed additional lengthy
submissions with “errata pages” four days after that. (Doc.
Nos. 56 and 57.) Despite Plaintiff's repeated late filings in
clear violation of Court orders, the Court has considered all of

Plaintiff's submissions, including those filed after deadlines,
in resolving these motions. For the reasons set forth below, the
Court concludes that Plaintiff's complaint must be dismissed
pursuant to Federal Rule of Civil Procedure 12(b)(6). 2

A. Monell Liability of the City
*4 Plaintiff's complaint may be construed to bring several
claims against the City, including a claim arising under 28
U.S.C. § 1983, as well as a claim for discrimination, which
the Court addresses later in this opinion. As to the Section
1983 claim, although Plaintiff does not specifically cite that
statute, Plaintiff's complaint refers to “federal Constitutional
claims under the First and Fourteenth Amendments” (Compl.
¶ 90), and identifies “errors in training or otherwise” (id. ¶
91). Plaintiff also cites “improper policies and practices of
the City of New York and its urgent response departments
(specifically, calls or statements made by anonymous
persons concerning other persons with alleged emergency
conditions),” and she alleges that “[p]olice officers may it
appears also need more training on when they do and do not
have a reasonable concern about personal liability” (Id. at 34
(emphasis in original)). The Court construes these allegations
as raising a Section 1983 Monell claim against the City. 3
Section 1983 provides a civil cause of action for damages
against any person who, acting under color of state law,
deprives another of a right, privilege, or immunity secured by
the Constitution or laws of the United States. See 42 U.S.C.
§ 1983. “Section 1983 itself creates no substantive rights;
it provides only a procedure for redress for the deprivation
of rights established elsewhere.” Duamutef v. Morris, 956
F. Supp. 1112, 1115 (S.D.N.Y. 1997) (citing Sykes v. James,
13 F.3d 515, 519 (2d Cir. 1993)). To prevail on a claim
under Section 1983, a plaintiff must demonstrate (1) the
deprivation of any right, privilege, or immunity secured by
the Constitution or laws of the United States (2) by a person
acting under the color of state law. See id. “In order to
establish a § 1983 claim ..., a plaintiff must also show that the
defendants were personally involved in the unconstitutional
conduct.” Green v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995)
(emphasis added); see also Alfaro Motors, Inc. v. Ward,
814 F.2d 883, 886 (2d Cir. 1987) (finding a complaint to
be facially defective when the plaintiff failed to allege that
“defendants were directly and personally responsible for the
purported unlawful conduct”).

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3

Smith v. City of New York, Not Reported in Fed. Supp. (2016)

To recover on a Section 1983 claim against a municipality or
municipal agency, a plaintiff must allege that the deprivation
of his rights was caused by the execution of an official policy,
custom, or practice. See Monell v. City of N.Y. Dep't of Social
Servs., 436 U.S. 658, 694 (1978); Reynolds v. Giuliani, 506
F.3d 183, 190-91 (2d Cir. 2007); Ezagui v. City of New
York, 726 F. Supp. 2d 275, 284 (S.D.N.Y. 2010) (explaining
that for municipality to be held liable for constitutional
violation under Section 1983, plaintiff must prove that: “(1)
an official policy or custom ... (2) cause[d] the plaintiff to be
subjected to (3) a denial of a constitutional right” (alteration
in original) (quoting Zahra v. Town of Southold, 48 F.3d 674,
685 (2d Cir. 1995))). An official policy or custom can be
demonstrated in a number of ways. First, such a policy can
be shown where the agency “promulgates an official policy,”
or “a municipal employee with final policymaking authority”
undertakes an unconstitutional act. Warheit v. City of New
York, No. 02-cv-7345 (PAC), 2006 WL 2381871, at *12 (S.D.
RY. Aug. 15, 2006); accord Pembaur v. City of Cincinnati,
475 U.S. 469, 480 (1986). Second, a custom or practice
may be demonstrated based on a pattern of misconduct that
is “sufficiently persistent or widespread” as to constitute a
custom of which a supervising policy-maker must have been
aware. Reynolds, 506 F.3d at 192. Third, an official policy
can be established by a municipality's failure to adequately
train or supervise its agents or employees. See Amnesty Am.
v. Town of W. Hartford, 361 F.3d 113, 127-28 & n.8 (2d Cir.
2004). Finally, a plaintiff can state a Monell claim where he
or she demonstrates that the municipality repeatedly failed
to discipline employees or agents who violate civil rights
because “the persistent failure to discipline [can] give rise to
an inference of an unlawful municipal policy of ratification
of unconstitutional conduct within the meaning of Monell.”
Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983).
*5 However, it is well established that “the mere assertion ...
that a municipality has such a custom or policy is insufficient
in the absence of allegations of fact tending to support,
at least circumstantially, such an inference.” Zherka v.
City of New York, 459 Fed.Appx. 10, 12 (2d Cir. 2012)
(quoting Zahra, 48 F.3d at 685). Moreover, “[a] single
incident alleged in a complaint, especially if it involved
only actors below the policymaking level, generally will
not suffice to raise an inference of the existence of a
custom or policy.” Id. Here, Plaintiff pleads no facts that
could support a finding of an official city policy or custom.
Although Plaintiff does not focus on one particular policy, she
appears to allege that the City has unconstitutional policies
in responding to anonymous phone calls (Compl. at 3) and

failing to properly train officers to respond to 911 calls (id.
at 34). Specifically, Plaintiff refers broadly to “improper
policies and practices of the City of New York and its
urgent response departments (specifically, calls or statements
made by anonymous persons concerning other persons with
alleged emergency conditions),” and she alleges that “[p]olice
officers may it appears also need more training on when they
do and do not have a reasonable concern about personal
liability” (id. at 34 (emphasis in original)). These conclusory
and vague assertions are insufficient to state a Monell claim
against the City as they include no “allegations of fact
tending to support, at least circumstantially” an inference of
an official policy or custom. Ulysses I & Co. v. Peer Morton,
11 Fed.Appx. 14, 16 (2d Cir. 2001). Indeed, the only facts on
which Plaintiff rests her claims of unconstitutional policies
appear to be the incident at the center of this complaint. In
addition, Plaintiff makes no assertion that a policymaker was
involved in that incident. See id. The Court thus finds that
Plaintiff's conclusory statements are insufficient to allege an
official city policy or custom. Accordingly, the Court grants
the City's motion to dismiss Plaintiff's Monell claim.

B. Plaintiff's Discrimination Claims
1. The Hospital Defendants
With respect to the Hospital Defendants, Plaintiff brings
claims of discrimination under both Title III of the ADA and
Section 504 of the Rehabilitation Act based on the PED's
mandatory disrobement policy, which requires that patients in
the PED remove their clothes on arrival. Specifically, Plaintiff
alleges that the PED's disrobement policy is a “practice that
amounts to a ‘strip search’ procedure (as that procedure is
defined by law) applied for unwarranted stereotypes and
assumptions about persons alleged to have a psychiatric
disabling condition.” (Compl. ¶ 98.) Plaintiff's claims of
discrimination fail for two reasons, which the Court addresses
in turn.

a. Res Judicata
As stated above, this is not the first time that Plaintiff has
filed a suit based on the PED's mandatory disrobement policy,
and since the Court previously ruled against Plaintiff on the
very same claims in Smith I, Plaintiff's claim of discrimination

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4

Smith v. City of New York, Not Reported in Fed. Supp. (2016)

against the Hospital Defendants is barred by the doctrine of
res judicata.
“Under the doctrine of res judicata, or claim preclusion, a final
judgment on the merits of an action precludes the parties or
their privies from relitigating issues that were or could have
been raised in that action.” St. Pierre v. Dyer, 208 F.3d 394,
399 (2d Cir. 2000) (brackets omitted). To prove that a claim
is precluded under this doctrine, “a party must show that (1)
the previous action involved an adjudication on the merits; (2)
the previous action involved the [parties] or those in privity
with them; [and] (3) the claims asserted in the subsequent
action were, or could have been, raised in the prior action.”
Monahan v. N.Y.C. Dep't of Corrs., 214 F.3d 275, 285 (2d Cir.
2000). Whether a claim that was not raised in the previous
action could have been raised “depends in part on whether
the same transaction or connected series of transactions is at
issue, and whether the same evidence is needed to support
both claims.” Interoceanica Corp. v. Sound Pilots, Inc., 107
F.3d 86, 90 (2d Cir. 1997) (brackets omitted). The doctrine
of res judicata is designed to “relieve parties of the cost and
vexation of multiple lawsuits, conserve judicial resources,
and, by preventing inconsistent decisions, encourage reliance
on adjudication.” Envtl. Def. v. U.S. E.P.A., 369 F.3d 193, 202
(2d Cir. 2004) (quoting Allen, 449 U.S. at 94).
Here, there is no question that Smith I – which involved
Plaintiff and the same Hospital Defendants as this action
– constituted an adjudication on the merits. The Court
dismissed the complaint in Smith I pursuant to Federal Rules
of Civil Procedure 56 and 16(f) after giving Plaintiff a full and
fair opportunity to litigate her case. Almost all of Plaintiff's
claims were dismissed on summary judgment pursuant to
Rule 56. (Smith I, Doc. No. 231.) Indeed, with respect to
the disrobement policy, the Court found that Plaintiff had
not shown it was discriminatory on the basis of a disability
and that it was a non-actionable medical treatment decision.
(Id.) Although Plaintiff did not oppose Defendants' motion for
summary judgment, she was given numerous opportunities to
do so. Plaintiff's remaining claims were dismissed pursuant
to Federal Rule of Civil Procedure 16(f) after Plaintiff failed
to file a number of pre-trial submissions despite multiple
extensions. (Smith I, Doc. No. 290.) Each of these decisions
constituted a decision on the merits, which, together, resolved
Plaintiff's entire case in favor of Defendants. See Nemaizer
v. Baker, 793 F.2d 58, 60-61 (2d Cir. 1986) (“A dismissal
with prejudice has the effect of a final adjudication on the
merits favorable to defendant and bars future suits brought by
plaintiff upon the same cause of action.... Such a dismissal

constitutes a final judgment with the preclusive effect of res
judicata not only as to all matters litigated and decided by
it, but as to all relevant issues which could have been but
were not raised and litigated in the suit.” (internal quotation
marks omitted)). Accordingly, the Court has little difficulty
concluding that Smith I was an adjudication on the merits
involving the same parties in which Plaintiff and Defendants
each had a full opportunity to litigate.
*6 The only remaining question then is whether the issue
raised in this complaint with respect to the mandatory
disrobement policy is the same issue already litigated in
Smith I. The Court finds that it is. In fact, Plaintiff's claim of
discrimination in this case is almost identical to her previous
one with the only difference being the time at which the
alleged disrobement took place. In Smith I, Plaintiff alleged
that the mandatory disrobement policy was “discriminatory ...
based on stereotypes and overgeneralizations about mental
illness.” (Smith I, Doc. No. 10 ¶ 67.) In the current action,
Plaintiff states that the disrobement policy is “applied for
unwarranted stereotypes and assumptions about persons
alleged to have a psychiatric disabling condition” (Compl.
¶ 98) and that it “rests on assumptions that are unwarranted
stereotypes about persons with psychiatric disabilities” (id. ¶
99). Although the conduct in Smith I dates from a different
time period – the hospital visits at issue in that case occurred
between 2002 and 2009, whereas the incident here took
place in 2012 – Plaintiff's complaint does not allege that
the disrobement policy was any different at the time of
Smith I than it was in 2012. Plaintiff now attempts in her
briefing to argue that the policy is in fact different by
stating conclusorily that Defendants “produced policies and
admissions concerning policies VERY different than the one
they CLAIM is extant in their brief at this time or as of
June 7, 2012” (Doc. No. 51 at 23), but she does not identify
any actual differences in the policies. In fact, some of the
evidence presented in Smith I actually postdates the incident
at issue in this case and confirms that the same policy was
in place in 2012. 4 Specifically, the affidavits of Dr. Jack
Barchas, dated April 12, 2013, and Lisa Sombrotto, dated
April 15, 2013, describe the mandatory disrobement policy
in the present tense indicating that the policy in effect when
the Court first considered it in Smith I is the same policy
that was in effect during the June 7, 2012 incident at the
center of this most recent complaint. (Smith I, Doc. No.
206, Declaration of Elizabeth Cornacchio, dated April 15,
2013, Exs. F and G.) Because Plaintiff has alleged no facts
demonstrating any difference in the mandatory disrobement
policy, and the evidence in Smith I supports a finding that

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5

Smith v. City of New York, Not Reported in Fed. Supp. (2016)

the same policy was in effect in 2012, the Court concludes
that the disrobement policy in this complaint is the same
policy already addressed in Smith I, and thus that this case
involves the same issue resolved in Smith I for purposes of
res judicata. 5 See Monahan, 214 F.3d at 289 (“Plaintiffs'
assertion of new incidents arising from the application of
the challenged policy is ... insufficient to bar the application
of res judicata.”); see also Interoceanica Corp., 107 F.3d at
91 (“[Transaction] must be given a flexible, common-sense
construction that recognizes the reality of the situation.”);
N.L.R.B. v. United Techs. Corp., 706 F.2d 1254, 1260 (2d
Cir. 1983) (“Whether or not the first judgment will have
preclusive effect depends in part on whether the same
transaction or connected series of transactions is at issue,
whether the same evidence is needed to support both claims,
and whether the facts essential to the second were present
in the first.”). Accordingly, the Court finds that Plaintiff's
discrimination claim about the mandatory disrobement policy
must be dismissed on res judicata grounds.

b. Failure to State a Claim
Even if Plaintiff's discrimination claims were not barred
by the doctrine of res judicata, she has failed to
state a claim that the mandatory disrobement policy
is discriminatory under either Title III of the ADA,
which applies to public accommodations like hospitals, or
Section 504 of the Rehabilitation Act. The ADA generally
prohibits “discrimination against an individual ‘on the
basis of disability in the full and equal enjoyment of
the goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation by
any person who owns, leases ... or operates a place of
public accommodation.’ ” Krist v. Kolombos Rest., Inc.,
688 F.3d 89, 94 (2d Cir. 2012) (quoting 42 U.S.C. §
12182(a)). Similarly, Section 504 of the Rehabilitation Act,
which applies to programs and entities that receive federal
government funding, provides: “No otherwise qualified
individual with a disability ... shall, solely by reason of her or
his disability, be excluded from the participation in, be denied
the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance ....”
29 U.S.C. § 794(a). The elements of a discrimination claim
are substantially identical under both statutes. Harris v. Mills,
572 F.3d 66, 73 (2d Cir. 2009); see also Powell v. Nat'l
Bd. of Med. Examiners, 364 F.3d 79, 85 (2d Cir. 2004).
Thus, in order to prevail under either statute, a plaintiff
must establish: “(1) that she is a ‘qualified individual’ with

a disability; (2) that the defendants are subject to one of
the Acts; and (3) that she was ‘denied the opportunity to
participate in or benefit from defendants' services, programs,
or activities, or [was] otherwise discriminated against by
defendants, by reason of [her] disabilit[y].’ ” Id. (citation
and quotation marks omitted) (alterations in original). A
plaintiff may establish the last prong under three possible
theories: “disparate treatment, disparate impact, and failure to
make reasonable accommodation.” Reg'l Econ. Cmty. Action
Program, Inc. v. City of Middletown, 294 F.3d 35, 48 (2d Cir.
2002).
*7 The Court already considered Plaintiff's allegations
relating to any discrimination resulting from the PED's
mandatory disrobement policy in its summary judgement
decision in Smith I, and the analysis from that decision
applies here as well, since Plaintiff includes no facts that
might distinguish that case from this one. (See Smith I, Doc.
No. 231.) Based on the allegations in her complaint, even
if one accepts that Plaintiff is a “qualified individual” and
that the Hospital Defendants are subject to the ADA and the
Rehabilitation Act, Plaintiff simply has not pled sufficient
facts to show that she was discriminated against because
of her disability, since the mandatory disrobement policy is
applied to all patients entering the hospital for a psychiatric
emergency.
The Second Circuit's decision in McGugan v. Aldana-Bernier,
which affirmed a district court's dismissal of a complaint
on a Rule 12(b)(6) motion, is instructive on this point.
752 F.3d 224 (2d Cir. 2014), cert. denied, 135 S. Ct.
1703 (2015). In McGugan, the Second Circuit found that
a plaintiff's allegations that she was discriminated against
based on her mental health were insufficient to state a claim.
Id. at 234. Specifically, the plaintiff in that case objected
to her involuntary confinement to a hospital after she was
disruptive on an airplane. Id. at 227. The plaintiff accused the
defendant hospital of “stereotyping persons who suffer from
mental illness, rather than making a medically appropriate,
individualized assessment.” Id. at 231. The Second Circuit
concluded that “a plaintiff pleads an actionable claim of
discrimination in the medical treatment context under the
ADA or the Rehabilitation Act if she alleges that the
defendants made treatment decisions based on factors that
are ‘unrelated to, and thus improper to consideration of the
inquiry in question,’ ” which in that case, as in this one, was
“the likelihood that [the plaintiff] posed a danger to herself or
others.” Id. at 234. Because the plaintiff had not alleged any
discriminatory conduct that was not related to her psychiatric

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Smith v. City of New York, Not Reported in Fed. Supp. (2016)

condition at the time, the Circuit affirmed the district court's
dismissal of the complaint. Id.; see also United States v. Univ.
Hosp., State Univ. of N.Y. at Stony Brook, 729 F.2d 144, 157
(2d Cir. 1984) (“Where the handicapping condition is related
to the condition(s) to be treated, it will rarely, if ever, be
possible to say with certainty that a particular decision was
‘discriminatory.’ ”); cf. Doe v. Pfrommer, 148 F.3d 73, 84 (2d
Cir. 1998) (affirming dismissal on summary judgment where
no allegation of “illegal discrimination against the disabled”).
The same reasoning applies here. Plaintiff's own
characterization of the disrobement policy appears to concede
that the policy is related to a person's psychiatric condition at
the time he or she enters the hospital. Indeed, she describes
the policy as:

requiring of patients brought in over
their objection for any evaluation in
any emergency room if identified
as a “psychiatric” case as plaintiff
was in this incident, but not if
the identification of the patient
leaves out any allegation of past
or current psychiatric disability,
and which discrimination (based
on alleged, perceived, actual, or
known or alleged historical psychiatric
disability) includes a practice that
amounts to a “strip search”
procedure. ...

(Compl. ¶ 98.) As her own words thus reflect, Plaintiff
does not allege that she was treated any differently than
non-disabled patients who are brought in for psychiatric
emergencies. See Pfrommer, 148 F.3d at 82 (noting that the
plaintiff's “discrimination claims do not draw their substance
from any allegedly discriminatory animus against the
disabled”). Indeed, she acknowledges that the disrobement
policy applies to every individual “identified as a ‘psychiatric
case’ ” (id. ¶ 98) and that she was subjected to the policy
“[b]ased on the manner in which she arrived at the hospital
and the allegations made by the anonymous caller” (id. ¶ 57),
who had told officers that Plaintiff was at “risk of harming
herself” (id. ¶ 44). While Plaintiff seems to suggest that
she was entitled to a personal evaluation by medical staff
before the disrobement policy could be applied (see id. ¶ 98),
McGugan clearly recognizes, and common sense confirms,

that such an individualized assessment is not required if
the treatment is related to a person's perceived danger to
themselves or others when admitted for psychiatric care. 752
F.3d at 234.
*8 Put simply, Plaintiff's allegations include no mention
of any discriminatory intent or improper consideration
of Plaintiff's disability. Rather, the allegations implicitly
acknowledge that the disrobement policy is based on
a judgment about the appropriate medical response to
an apparent psychiatric emergency and is appropriately
tailored to the difficult and potentially dangerous conditions
associated with the care of patients in the PED. As
Plaintiff has pled no facts that might demonstrate that
she was treated any differently than other PED patients
on account of improper considerations relating to her
disability, her claim for discrimination must fail. See, e.g.,
Maccharulo v. N.Y. State Dep't of Corr. Servs., No. 08-cv-301
(LTS), 2010 WL 2899751, at *4 (S.D.N.Y. July 21, 2010)
(dismissing complaint because “[p]laintiffs do not plead facts
demonstrating that Decedent was treated differently from
non-disabled individuals exhibiting the same behavior”);
Atkins v. County of Orange, 251 F. Supp. 2d 1225, 1232
(S.D.N.Y. 2003) (dismissing complaint where plaintiffs did
not “allege that violent and self-destructive inmates who are
disabled due to mental illness are treated any differently than
violent, self-destructive inmates who are not disabled due to
mental illness”); Aiken v. Nixon, 236 F. Supp. 2d 211, 226
(N.D.N.Y. 2002) (“By plaintiffs' allegations, subjugation to
the reaches of the policy arises as a condition of entry as a
patient into the facility, not from considerations of a person's
status as being disabled or not.”), aff'd, 80 Fed.Appx. 146 (2d
Cir. 2003).
In sum, Plaintiff's complaint fails to state a claim for
discrimination because she does not allege that the PED's
mandatory disrobement policy – which applies to any and all
patients entering the hospital for a psychiatric emergency –
results in any disparate treatment or impact on account of a
person's disability. As McGugan recognizes, treatment based
on a perception that a person poses a danger to themselves
or others simply does not violate the ADA. 752 F.3d at
234. Accordingly, Plaintiff's claims under the ADA and the
Rehabilitation Act against the Hospital Defendants must be
dismissed for failure to state a claim. 6

2. Defendant City of New York

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Smith v. City of New York, Not Reported in Fed. Supp. (2016)

Plaintiff also appears to assert a claim of discrimination
against the City, although the complaint is unclear as to her
theory of liability in this regard. In her complaint, Plaintiff
states that “[t]his is an action under the Federal and State (New
York) Constitutions, federal civil rights statutes (Americans
with Disabilities Act and Rehabilitation Act[) ] – both those
that require accommodations in law enforcement and other
activities by the city and in health care.” (Compl. ¶ 89). A few
pages later, she also references “the deprivation of liberty and
equal protection of law on account of alleged disability and
emergency without sufficient cause ... resulting in removal
of persons with and without disabilities alike.” (Id. ¶ 97.)
Construing Plaintiff's complaint liberally, the Court interprets
these statements to raise a discrimination claim against the
City.
*9 Title II of the ADA, which applies to state and local
governments, provides that “no qualified individual with a
disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132. In
evaluating a claim brought under Title II of the ADA, the
Court considers the same factors cited above in the Title III
analysis. See Disabled in Action v. Bd. of Elections, 752 F.3d
189, 196 (2d Cir. 2014).
Plaintiff has simply not alleged any facts that would support a
claim of discrimination against the City under either the ADA
or the Rehabilitation Act. Plaintiff's conclusory statements
about the “deprivation of liberty and equal protection of
law on account of alleged disability and emergency without
sufficient cause ... resulting in removal of persons with and
without disabilities alike” (Compl. ¶ 97) and the fact that
the ADA and Rehabilitation Act “require accommodations in
law enforcement and other activities by the city” (id. ¶ 89)
are obviously insufficient to state a claim for discrimination
against the City. See Hedges v. Town of Madison, 456
Fed.Appx. 22, 24 (2d Cir. Jan. 13, 2012) (affirming dismissal
of complaint because even under “the most minimal of notice
pleading standards” the plaintiff had not alleged “a single fact
in support of his claims of discriminatory treatment which
might conceivably give notice of the basis of his claims to the
defendants”); Samuel v. Bellevue Hosp. Ctr., 366 Fed.Appx.
206, 207 (2d Cir. Feb 17, 2010) (affirming dismissal where the
plaintiff “failed to allege sufficient facts to render plausible
his conclusory assertion that the defendants discriminated
against him on the basis of his membership in a protected
class”). Put simply, throughout her complaint, Plaintiff's

factual allegations of discrimination focus almost entirely
on the mandatory disrobement policy, which is a hospital
policy, not a City policy, and any claim of discrimination she
alleges against the City is stated in vague and conclusory
terms, which are insufficient to survive a motion to dismiss.
In light of the fact that Plaintiff does not allege any facts to
suggest that the City discriminated against her or denied her
any opportunity or benefit, Plaintiff's claim of discrimination
against the City must be dismissed.

C. Retaliation
The ADA also “prohibits, inter alia, retaliation against any
individual who has asserted rights under the ADA.” Sarno
v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159
(2d Cir. 1999). Under the ADA's retaliation provision in
Title V, “[n]o person shall discriminate against any individual
because such individual has opposed any act or practice made
unlawful by this chapter or because such individual made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this chapter.” 42
U.S.C. § 12203(a). A plaintiff states an ADA retaliation claim
if she establishes that: “(i) [she] was engaged in protected
activity; (ii) the alleged retaliator knew that plaintiff was
involved in protected activity; (iii) an adverse decision or
course of action was taken against plaintiff; and (iv) a causal
connection exists between the protected activity and the
adverse action.” Weixel v. Bd. of Educ., 287 F.3d 138, 148
(2d Cir. 2002) (internal quotation marks omitted). The same
standards apply to a claim of retaliation under Section 504 of
the Rehabilitation Act. See Aiken, 236 F. Supp. 2d at 225.
*10 Generally, informal complaints and threats to take
legal action qualify as protected activities. Treglia v. Town
of Manlius, 313 F.3d 713, 720 (2d Cir. 2002) (citing
cases). Simply put, an adverse action is one that “well
might have dissuaded a reasonable [person] from making
or supporting a charge of discrimination.” Warren v. Goord,
No. 06-3349-PR, 2008 WL 5077004, at *2 (2d Cir. Nov.
26, 2008) (citations and quotation marks omitted) (alteration
in original). Nevertheless, to adequately plead a causal
connection, the “allegations must be sufficient to support the
inference that the [protected activity] played a substantial part
in the adverse action.” Davis v. Goord, 320 F.3d 346, 354
(2d Cir. 2003) (internal quotation marks omitted). However,
“the plaintiff's pleading need not clearly establish that the
defendant harbored retaliatory intent. It is sufficient to allege
facts which could reasonably support an inference to that

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Smith v. City of New York, Not Reported in Fed. Supp. (2016)

effect.” Posr v. Court Officer Shield # 207, 180 F.3d 409, 418
(2d Cir. 1999). Causation can be proven either: “(1) indirectly,
by showing that the protected activity was followed closely
by discriminatory treatment, or through other circumstantial
evidence such as disparate treatment of fellow employees
who engaged in similar conduct; or (2) directly, through
evidence of retaliatory animus directed against the plaintiff by
the defendant.” Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111,
117 (2d Cir. 2000).
With respect to the Hospital Defendants, Plaintiff asserts that
she was “retaliated against for her objection and litigation
threat (and perceived strength of her assessment as a known
former civil rights lawyer in the U.S. Justice Department
lawyer with knowledge of applicable laws) to their policy of
requiring her to remove all her garments.” (Compl. ¶ 104.)
She also alleges that “Dr. [Sharon] Hird is one of the architects
[and] chief proponents of the mandatory stripsearch policy
and practice Ms. Smith claims is illegal under federal law and
had told Dr. Hird and others at Defendant hospital, including
risk management and legal personnel who were well aware
of her background as a Justice Department lawyer.” (Id. ¶
73.) The Court construes these statements as alleging two
protected activities that might provide a basis for a claim of
retaliation: (1) Plaintiff's “objection” at the hospital to the
mandatory disrobement policy, and (2) her prior litigation
challenging the disrobement policy. The Court finds that,
under either theory, Plaintiff has failed to state a claim for
retaliation.
To the extent that Plaintiff bases her claim of retaliation on
her objection to the disrobement policy, such an allegation
is insufficient to allege a protected activity because Plaintiff
simply cannot establish that she possessed a “good faith,
reasonable belief that the underlying challenged actions of
the [defendant] violated the law.” Quinn v. Green Tree Credit
Corp., 159 F.3d 759, 769 (2d Cir. 1998); see also Cruz
v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000)
(“The term ‘protected activity’ refers to action taken to
protest or oppose statutorily prohibited discrimination.”). The
Second Circuit has stated that the objective reasonableness
of a person's belief “must ‘be measured against existing
substantive law,’ because a failure to do so would ‘eviscerate
the objective component of our reasonableness inquiry.’ ”
Sosa v. Local Staff, LLC, 618 Fed.Appx. 19, 19-20 (2d
Cir. 2015) (quoting Clover v. Total Sys. Servs., Inc., 176
F.3d 1346, 1351 (11th Cir. 1999)). Here, Plaintiff cannot
allege that she had a reasonable belief that the mandatory
disrobement policy – which, again, was applied to everyone

in the PED regardless of any disability based on a medical
concern that psychiatric patients might pose a danger to
themselves or others – violated the ADA. See Wimmer v.
Suffolk Cty. Police Dep't, 176 F.3d 125, 135-36 (2d Cir.
1999) (a plaintiff “could not have reasonably believed that he
was opposing” a discriminatory employment practice where
there was no evidence of discrimination in the employment
practice); see also Manoharan v. Columbia Univ. Coll. of
Physicians & Surgeons, 842 F.2d 590, 594 (2d Cir. 1988)
(holding that plaintiff could not have held a reasonable belief
where “objections neither pointed out discrimination against
particular individuals nor discriminatory practices by [the
employer]”). As discussed above, Plaintiff's own complaint
fails to allege that the policy is applied in a discriminatory
fashion based on a disability. Rather, her allegations implicitly
acknowledge that the policy reflects a medical concern for
a patient's psychiatric condition. Although Plaintiff asserts
that the policy was overboard and that she was entitled to
a personal evaluation by doctors before she was compelled
to disrobe, that position is simply untenable for the reasons
discussed above. As such, the Court finds that Plaintiff's
objection to being subjected to the disrobement policy does
not constitute a protected activity because Plaintiff cannot
show an objectively reasonable basis for believing that the
policy violates the ADA.
*11 Moreover, to the extent Plaintiff's retaliation claim is
based on her prior litigation against the Hospital Defendants,
Plaintiff's claim fails for the additional reason that Plaintiff
does not explain how her treating doctors would have even
been aware of her prior litigation involving the mandatory
disrobement policy. As pled, the complaint merely alleges that
Dr. Hird and others were aware that Plaintiff was a lawyer, and
therefore posed a litigation risk, not that she had previously
sued the hospital with regard to its disrobement policy. As
such, Plaintiff's allegations do not support an inference that
the medical staff on duty even knew about the prior litigation,
much less that the litigation was the cause of the alleged
adverse actions. In short, Plaintiff has failed to plead facts
from which the Court could infer a retaliatory animus or that
might support a finding of a causal relationship between the
alleged adverse action and her prior litigation.
Finally, Plaintiff has not alleged any adverse actions that
would be sufficient to state a claim of retaliation. “Actions
are materially adverse if they are harmful to the point that
they could well dissuade a reasonable [person] from making
or supporting a charge of discrimination [or retaliation].”
Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010). Here,

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Plaintiff states that hospital officials took adverse actions
against her because they sent her to a different facility
rather than to a “bed in the hospital or its associated
Westchester campus” (Compl. 74-75), kept her under care
for a longer period than otherwise necessary (id. ¶¶ 66, 74),
and “laugh[ed] about her complaints ... and teas[ed] her” (id.
¶ 75). As an initial matter, Plaintiff's complaints of teasing
and laughing are insufficient to state a claim of retaliation
because these actions are “unpleasant matters that do not
rise to the level of adverse ... actions.” Ramsey v. N.Y.C.
Health & Hosps. Corp., No. 98-cv-1594 (RPP), 2000 WL
713045, at *12 (S.D.N.Y. June 2, 2000) (brackets and internal
quotation marks omitted); see also Laudadio v. Johanns, 677
F. Supp. 2d 590, 613 (E.D.N.Y. 2010) (“ ‘[S]imple teasing,
offhand comments, and isolated incidents (unless extremely
serious)’ may be insufficient to establish a materially adverse
action.” (quoting Clark County Sch. Dist. v. Breeden, 532 U.S.
268, 271 (2001)).
As to Plaintiff's complaints that she was kept under care
longer than necessary and transferred to a different facility,
the Court finds that these are precisely the type of decisions
involving medical judgment that are not actionable under the
ADA. It is well established that complaints about medical
treatment are generally insufficient to state a claim under the
ADA. See United States v. Univ. Hosp., 729 F.2d 144, 156-60
(2d Cir. 1984); see also Burger v. Bloomberg, 418 F.3d 882,
883 (8th Cir. 2005) (“[A] lawsuit under the Rehab[ilitation]
Act or the Americans with Disabilities Act (ADA) cannot
be based on medical treatment decisions.”) (citing cases).
Here, the Court simply will not second-guess a hospital's
decision to keep a patient under care because of Plaintiff's
vague allegation that decision was retaliatory. Indeed, while
courts have allowed claims of retaliation to proceed based on
allegations of the denial of medical care, see, e.g., Liner v.
Fischer, No. 11-cv-6711 (PAC) (JLC), 2013 WL 3168660, at
*15 (S.D.N.Y. June 24, 2013) (citing Burton v. Lynch, 664
F.Supp.2d 349, 367 (S.D.N.Y. 2009)), adopted, 2013 WL
4405539 (S.D.N.Y. Aug. 7, 2013), the Court is not aware of
any case in which a plaintiff has brought a claim for retaliation
against a hospital based on a plaintiff's disagreement with the
decisions made by the hospital about the patient's care. In
addition, Plaintiff's own complaint states that the facility to
which Plaintiff was transferred was “not bad to her” (id. ¶
84), and she implicitly acknowledges that the medical care she
received was related to her condition because her blood tests
were “abnormal” and “consistent with muscle damage” (id.
¶¶ 80, 82). Because actions based on medical judgments are

not actionable under the ADA, Plaintiff has failed to allege an
adverse action that could support her claim of retaliation.
*12 Accordingly, the Court concludes that Plaintiff has
failed to state a claim against the Hospital Defendants for
retaliation under the ADA. 7

D. State Law Claims
Having dismissed Plaintiff's federal claims in this case, the
Court declines to exercise supplemental jurisdiction over any
potential state law claims alleged in the complaint, including
any claims brought under New York State and City human
rights laws or any alleged violations of the New York state
constitution, and thus dismisses those claims as well. See
28 U.S.C. § 1367(c)(3) (“[A] district court may decline
to exercise supplemental jurisdiction over a claim ... if ...
the district court has dismissed all claims over which it
has original jurisdiction.”); see also United Mine Workers
v. Gibbs, 383 U.S. 715, 726 (1966) (“[I]f the federal law
claims are dismissed before trial ... the state claims should
be dismissed as well.”); Prado v. City of New York, No. 12cv-4239 (RJS), 2015 WL 5190427, at *6 (S.D.N.Y. Sept.
3, 2015) (“ ‘[I]n the usual case in which all federal-law
claims are eliminated before trial, the balance of [relevant]
factors ... will point toward declining to exercise jurisdiction
over the remaining state-law claims.’ ” (quoting CarnegieMellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988))).

E. Dr. Sharon Hird
Plaintiff's complaint also names Dr. Sharon Hird, one of the
doctors who treated her at the hospital, as a Defendant. (Doc.
No. 1.) More than a year has passed since Plaintiff initiated
this action and Plaintiff has failed to file an affidavit of
service with the Court attesting to service of the summons and
complaint on Dr. Hird. Accordingly, Plaintiff's claims against
Dr. Hird would ordinarily be subject to dismissal without
prejudice pursuant to Federal Rule of Civil Procedure 4(m).
However, the Court concludes that Plaintiff's claims against
Dr. Hird must be dismissed with prejudice because, for the
reasons discussed above, Plaintiff has failed to state a claim
for discrimination or retaliation. In addition, Plaintiff's claim
of discrimination is barred by collateral estoppel. Although
Dr. Hird was not a defendant in the prior action, and thus,
claims against her are not barred by res judicata, the related

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doctrine of collateral estoppel provides that “once a court has
decided an issue of fact or law necessary to its judgment,
that decision may preclude relitigation of the issue in a suit
on a different cause of action involving a party to the first
case.” Allen v. McCurry, 449 U.S. 90, 94 (1980). Normally,
collateral estoppel “will bar the relitigation of an issue of
law or fact that was raised, litigated, and actually decided
by a judgment in a prior proceeding between the parties,” as
long as “the determination of that issue was essential to the
judgment, regardless of whether or not the two proceedings
are based on the same claim.” NLRB v. United Techs. Corp.,
706 F.2d 1254, 1260 (2d Cir. 1983). However, the doctrine
of non-mutual defensive collateral estoppel also “precludes a
plaintiff from relitigating identical issues by merely switching
adversaries.” Parklane Hosiery Co. v. Shore, 439 U.S. 322,
329 (1979) (internal quotation marks omitted).
*13 As discussed above, this litigation involves the same
mandatory disrobement policy that was already extensively
litigated in Smith I. As a result, the issue in that litigation –
whether the mandatory disrobement policy is discriminatory
– is identical to the discrimination claim that Plaintiff raises
here. Although Dr. Hird was not a defendant in Smith I,
Plaintiff has not stated any facts relating to Dr. Hird that might
warrant a separate analysis or lead to a different result than
in Smith I. The doctrine of non-mutual defensive collateral
estoppel is designed to prevent precisely this type of attempt
to relitigate an issue by “merely switching adversaries.”
Parklane, 439 U.S. at 329; see also Jasper v. Sony Music
Entm't, Inc., 378 F. Supp. 2d 334, 343 (S.D.N.Y. 2005) (“By
binding the plaintiff to earlier judicial decisions in which he
was a party, defensive collateral estoppel precludes a plaintiff
from getting a second bite at the apple merely by choosing
a new adversary.”). As such, in addition to the fact that
Plaintiff's claims against Dr. Hird must be dismissed under
Rule 12(b)(6) for failure to state a claim, Plaintiff's suit against
Dr. Hird is also barred by the doctrine of collateral estoppel.

F. Leave to Amend
Plaintiff has previously sought leave to amend her complaint
in order to add individual officers based on a Valentin order
issued by Judge Forrest in October 2015 (Doc. No. 3). (See
Doc. No. 14.) In her response to the City's motion to dismiss,
Plaintiff also now seeks leave to amend her complaint to add
a separate incident from January 2016 when Plaintiff alleges
that she was put into an ambulance based on an anonymous
call. (Doc. No. 52.)

Federal Rule of Civil Procedure 15(a)(2) permits a party to
amend its pleading “only with the opposing party's written
consent or the court's leave.” Fed. R. Civ. P. 15(a)(2).
Generally “[t]he court should freely give leave when justice
so requires,” id., but there are times when granting such leave
may be inappropriate, see Dluhos v. Floating & Abandoned
Vessel, Known as “New York”, 162 F.3d 63, 69 (2d Cir.
1998) (“[A] motion to amend should be denied if there is
an apparent or declared reason – such as undue delay, bad
faith or dilatory motive[ ], repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the
opposing party by virtue of the allowance of the amendment,
[or] futility of amendment.” (citation and internal quotation
marks omitted)). And “[w]hile pleading is not a game of skill
in which one misstep may be decisive to the outcome, neither
is it an interactive game in which plaintiffs file a complaint,
and then bat it back and forth with the Court over a rhetorical
net until a viable complaint emerges.” In re Refco Capital
Mkts., Ltd. Brokerage Customer Sec. Litig., No. 06-cv-643
(GEL), 2008 WL 4962985, at *2 (S.D.N.Y. Nov. 20, 2008)
(internal quotation marks omitted).
With respect to the Valentin order, the Court finds that any
amendment to add the names of individual officers would be
futile because claims against them would be time barred. On
October 5, 2015, Judge Forrest issued a Valentin order for
the City to provide the names of individual officers so that
Plaintiff might add them to her complaint. (Doc. No. 3.) On
March 25, 2016, after the case was reassigned to my docket,
the Court stayed compliance with the Valentin order until the
resolution of the motions to dismiss. (Doc. No. 46.) However,
it should be noted that Plaintiff filed this action on the very
day the statute of limitations on her Section 1983 claims ran
– three years after the June 7, 2012 incident. See Espada v.
Schneider, 522 F. Supp. 2d 544, 550 (S.D.N.Y. 2007) (“New
York law supplies the applicable statute of limitations periods
– three years for § 1983 claims ....” (citing Eagleston v.
Guido, 41 F.3d 865, 871 (2d Cir. 1994))); see also Mitchell
v. Home, 377 F. Supp. 2d 361, 371 (S.D.N.Y. 2005) (“Under
New York law, the statute of limitations for § 1983 claims
premised on torts such as false arrest or false imprisonment is
three years.”). Any amendment to include individual officers
at this point – or at any time after Plaintiff first filed her
complaint – would thus be futile because claims against the
individual officers were time-barred well before Judge Forrest
issued the Valentin order on October 5, 2015 and do not relate
back to Plaintiff's filing of the original complaint. See Hogan
v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013) (“Generally,

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11

Smith v. City of New York, Not Reported in Fed. Supp. (2016)

‘John Doe’ pleadings cannot be used to circumvent statutes
of limitations because replacing a ‘John Doe’ with a named
party in effect constitutes a change in the party sued.”); see
also Vasconcellos v. City of New York, No. 12-cv-8445 (CM),
2014 WL 4961441, at *6 (S.D.N.Y. Oct. 2, 2014) (holding that
a plaintiff's “failure [to name individual defendants] cannot
be characterized as a mistake, so her amended complaint
does not relate back to her original complaint and is timebarred” (internal quotation marks omitted)). Accordingly, the
Court vacates the earlier Valentin order and denies Plaintiff
leave to amend her complaint to name individual officers.
*14 Plaintiff also asks for leave to amend the complaint
to add an incident that she alleges took place in January
2016. Although she does not offer much detail about the
incident, she essentially alleges that she was “removed from
a public plaza” and put into an ambulance because of the
cold weather and an anonymous phone call which stated that
she was “allegedly suicidal.” (Doc. No. 52 at 19.) Plaintiff
does not state, nor does she even suggest, that this incident
involved any of the same officers as the incident underlying
this complaint.
The Court finds that amending the complaint to add this
incident would be futile. Plaintiff includes no explanation
as to how this incident involved any discrimination or
retaliation, nor how it is related to the incident underlying
the complaint. Indeed, she once again appears to concede
that the hospitalization in that incident was due to concerns
for her mental and physical health – and not improper
discriminatory motives – and she does not indicate that
she was retaliated against in any way. In addition, Plaintiff
provides no facts as to how this second incident might
demonstrate any unconstitutional official policy to bolster her
Monell claim. As such, the Court finds that allowing Plaintiff
to amend her complaint to add this incident would be futile
as it would have no impact on the viability of her claims. See
Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990)
(“[W]here ... there is no merit in the proposed amendments,
leave to amend should be denied.”).

have been embroiled in litigation initiated by Plaintiff for over
ten years. Indeed, this latest complaint appears designed to
relitigate the legality of the mandatory disrobement policy, an
issue on which the Court already ruled in Smith I. Moreover,
to this day, Plaintiff continues to attempt to prolong the
litigation in Smith I. In her answer to the Hospital Defendants'
motion to dismiss, Plaintiff claims that her appeal in Smith
I “remains subject to reinstatement” (Doc. No. 51 at 24),
despite the fact that the Supreme Court has already denied
her petition for writ of certiorari after the Second Circuit
dismissed her appeal. See Smith v. N.Y. Presbyterian Hosp.,
136 S.Ct. 1528 (Mem.) (Apr. 4, 2016). In light of Plaintiff's
determination to continue to litigate claims that several courts,
including the Supreme Court, have already rejected, the Court
concludes that granting leave to amend in this case would
only cause further prejudice to Defendants. See In re MartinTrigona, 737 F.2d 1254, 1262 (2d Cir. 1984)(noting that a
district court has “the power and the obligation to protect
the public and the efficient administration of justice from [a
vexatious litigant's] litigious propensities”). Accordingly, the
Court denies Plaintiff leave to amend her complaint.

IV. CONCLUSION
For the reasons stated above, IT IS HEREBY ORDERED
THAT the City and the Hospital Defendants' motions to
dismiss Plaintiff's complaint with prejudice are granted. IT IS
FURTHER ORDERED THAT Plaintiff's claims against Dr.
Sharon Hird are dismissed with prejudice. IT IS FURTHER
ORDERED THAT leave to amend the complaint is denied.
The Clerk of the Court is respectfully directed to terminate
the motions pending at docket numbers 27 and 31 and to close
this case. The Clerk of the Court is also respectfully directed
to mail a copy of this Order to Plaintiff.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2016 WL 4574924

The Court also finds that granting leave to amend at this point
would cause undue prejudice to the Hospital Defendants, who

Footnotes

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12

Smith v. City of New York, Not Reported in Fed. Supp. (2016)

1

The following facts are taken from the complaint, filed on June 8, 2015 (Doc. No. 1 (“Compl.”)), and from the
public docket of a prior case brought by Plaintiff, Smith v. N.Y. Presbyterian Hosp., No. 05-cv-7729 (RJS)
(SDNY), which is a matter of public record, see Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d
Cir. 1998). In ruling on the motion, the Court has also considered the City's memorandum of law (Doc. No.
32), the Hospital Defendants' memorandum of law (Doc. No. 29), Plaintiff's multiple filings in opposition to
Defendants' motions (Doc. Nos. 51, 52, 56, and 57), the City's reply (Doc. No. 65), the Hospital Defendants'
reply (Doc. No. 58), and the exhibits attached to those filings.

2

As noted above, the Hospital Defendants also ask the Court to dismiss Plaintiff's complaint for failure to
prosecute pursuant to Federal Rule of Civil Procedure 41(b). Dismissal with prejudice for lack of prosecution
is “ ‘a harsh remedy to be utilized only in extreme situations.’ ” LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d
206, 209 (2d Cir. 2001) (quoting Theilman v. Rutland Hosp., Inc., 455 F.2d 853, 855 (2d Cir. 1972)). Here,
Plaintiff has failed to comply with a number of Court orders, including several scheduling orders in late October
and November 2015 (see Doc. Nos. 20 and 23), and filed her untimely responses to the motions to dismiss.
In light of the facts that these delays have occurred over a relatively short span of time, that Plaintiff has
prosecuted her case by appearing for the December 23, 2015 initial and pre-motion conference (see Minute
Entry, dated December 23, 2015), and that she has filed responses to Defendants' motions to dismiss, the
Court declines to grant the “drastic remedy” of dismissal pursuant to Rule 41(b). Carter v. Jablonsky, 121
Fed.Appx. 888, 889 (2d Cir. 2005).

3

Plaintiff's complaint also seems to raise several Section 1983 claims against the individual officers involved in
her forced hospitalization, including excessive force and false arrest claims. Specifically, she states that “[t]o
the extent police officers involved acted outside their received training Ms. Smith reserves claims of improper
use of force and restraint and false imprisonment and constitutional and human rights violations.” (Compl.
¶ 14.) However, as discussed in more detail below with respect to Plaintiff's request for leave to amend
(see Section III.F.), no individual officers have been named or served, and any claims against the individual
officers are time-barred.

4

As noted above, the Court takes judicial notice of the record in Smith I, including the undisputed evidence
submitted by the defendants in connection with their motion for summary judgment. See Day v. Moscow, 955
F.2d 807, 811 (2d Cir. 1992) (“Generally res judicata is an affirmative defense to be pleaded in the defendant's
answer. However, when all relevant facts are shown by the court's own records, of which the court takes
notice, the defense may be upheld on a Rule 12(b)(6) motion without requiring an answer.”).

5

Indeed, even if the disrobement policy had been slightly modified between Smith I and the present action,
Plaintiff's claims might still be subject to res judicata. See Monahan, 214 F.3d at 289 (“There is ample
precedent to show that mere modification of a challenged policy will not alone undo the preclusive effect of
a former judgment.”).

6

To the extent Plaintiff's complaint may be construed to raise a claim of discrimination under a theory of
reasonable accommodation, this claim also fails. The ADA requires covered entities to provide reasonable
accommodations to a disabled individual “whenever doing so would provide that individual with an opportunity
to participate in, make use of, or derive a benefit from a program, facility, or service that would otherwise
not be equally accessible to disabled and non-disabled individuals.” Andersen v. N. Shore Long Island
Jewish Healthcare Sys.’s Zucker Hillside Hosp., No. 12-cv-1049 (JFB) (ETB), 2013 WL 784391, at *10
(E.D.N.Y. Jan. 23, 2013); see 42 U.S.C. § 12182(b)(2)(A)(ii)–(iii). Smith alleges only that she was subjected
to the PED policies “without accommodation or waiver ever permitted.” (Compl. ¶ 96.) Such a conclusory
statement is obviously insufficient to state a claim for a failure to provide reasonable accommodation. See
Twombly, 550 U.S. at 555 (“[A] formulaic recitation of the elements of a cause of action will not do.”). Because
Plaintiff includes no facts to demonstrate how she participated in services or received benefits differently

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13

Smith v. City of New York, Not Reported in Fed. Supp. (2016)

because of her mental illness, she has failed to state a claim for discrimination under a theory of reasonable
accommodation.
7

Plaintiff does not appear to state a claim for retaliation against the City. Specifically, Plaintiff has not alleged
any facts, nor does she even include any conclusory assertion, that might support a claim that the City took
any adverse action against her in retaliation for protected activity. As such, the Court concludes that Plaintiff
has not stated a claim for retaliation against the City.

End of Document

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14

Jones v. Volunteers of America Greater New York, Not Reported in Fed. Supp. (2022)

2022 WL 768681
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Brandon C. JONES, Plaintiff,
v.
VOLUNTEERS OF AMERICA GREATER
NEW YORK, et al., Defendants.
1:20-cv-5581 (MKV)
|
Signed 03/14/2022
Attorneys and Law Firms
Brandon C. Jones, Brooklyn, NY, Pro Se.
Kristine Denning, Harwood Lloyd, Hackensack, NJ, for
Defendants Jsin H. Thomas, Volunteers of America (Swartz
Shelter) Corporation, Mr. Jonathan Tavarez, Volunteers of
America Greater New York.

OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION TO DISMISS
MARY KAY VYSKOCIL, United States District Judge:
*1 Pro se Plaintiff Brandon Jones alleges that he was
denied rights guaranteed to him under the Americans with
Disabilities Act, 42 U.S.C. §§ 12101 et seq. (the “ADA”),
the Rehabilitation Act, 29 U.S.C. §§ 701 et seq., and
the Fair Housing Act, 42 U.S.C. §§ 3601 et seq. (the
“FHA”), while living at a homeless shelter run by Defendant
Volunteers of America Greater New York (the “VOA”).
Plaintiff alleges that Defendants Lijin Thomas, Jonathan
Tavarez, and Deborah Johnson, all employees of the VOA
(collectively, “Defendants”) discriminated against him on the
basis of his disability. 1 Pending before the Court is the
Defendants’ Motion to Dismiss Plaintiff's Third Amended
Complaint. [ECF No. 29]. For the reasons stated herein, the
motion is granted.

BACKGROUND
I. FACTUAL BACKGROUND
On this motion, the Court is constrained to “accept all
factual allegations in the complaint as true and draw all

reasonable inferences in” Plaintiff's favor. Cargo Partner AG
v. Albatrans, Inc., 352 F.3d 41, 44 (2d Cir. 2003) (internal
quotation marks, citation, and alterations omitted). The
following facts are adapted from Plaintiff's Third Amended
Complaint. 2
From February through July 2020, Plaintiff lived at the
“Swartz Building,” located on Randall's Island in New York
City, at a Volunteers of America Greater New York shelter
(the “VOA Shelter”). Third Am. Compl. at 5, 10, 13. During
his intake at the facility, Plaintiff “filled out numerous packets
of paperwork” which “formally disclosed” his disabilities and
his required medicine. Third Am. Compl. at 10. According
to Plaintiff, he has suffered from third-degree burns on both
of his legs and feet, lymphedema, and chronic pain “since
December 9th, 1992,” and Vons Willebrand disease “since
birth.” Third Am. Compl. at 10. The burns increase his risk
of infection. Third Amended Compl. at 10.
*2 The day following intake, Plaintiff “woke up to uncapped
needles in [his] blankets and sheets” and found the showers
to be “filled with hazardous trash.” Third Am. Compl. at 10.
Plaintiff was told to see Defendant Lijin Thomas “regarding
the shower situation” and for any requests for “medical
equipment.” Third Am. Compl. at 10. A few days later,
Plaintiff met with Thomas who told him that “no medical
equipment was permitted” inside the shelter, and that cleaning
supplies, like bleach, were also prohibited for resident use
because they “could be used as a weapon.” Third Am. Compl.
at 11. Plaintiff left Thomas’ office and looked for another
person to assist him in his request for “medical equipment and
cleaning supplies.” Third Am. Compl. at 11. After speaking
with another individual, he was directed back to Thomas who
told him “I don't have time to talk to you.” Third Am. Compl.
at 11.
A few weeks later, Plaintiff was treated for an infection in
his left foot at a hospital in Manhattan. Third Am. Compl. at
11. Plaintiff was given antibiotics, pain medicine, and a note
“to receive cleaning supplies” for the shower area. Third Am.
Compl. at 11. When Plaintiff took the note to Thomas she
“declined to even look at” it. Third Am. Compl. at 11. The
next day, Plaintiff “filed a formal grievance into the matter of
cleaning supplies” with an individual who worked at the front
desk of the shelter. Third Am. Compl. at 11. That individual
“took [the] grievance” and said that someone “will look into
the issue.” Third Am. Compl. at 11. Plaintiff then asked if
he could store his medicine in the refrigerator but he was
told that he “was not permitted to use the refrigerator.” Third

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Jones v. Volunteers of America Greater New York, Not Reported in Fed. Supp. (2022)

Am. Compl. at 11. Plaintiff returned to Thomas who said that
he “could not refrigerate anything—including medication.”
Third Am. Compl. at 11.
Plaintiff next renewed his requests for cleaning supplies and
medical equipment with Defendant Jonathan Tavarez. Third
Am. Compl. at 11. Tavarez informed Plaintiff that “Ms.
Thomas told him [he] was not permitted cleaning supplies or
medical equipment.” Third Am. Compl. at 11. Plaintiff then
called his probation officer who said that he had “nothing to
do with the [VOA Shelter] and [Plaintiff has] to work it out
with them.” Third Am. Compl. at 11. 3
A month later, near the end of March 2020, Plaintiff returned
to the hospital to be treated for a skin infection and sore on his
left foot. Third Am. Compl. at 11. He was provided “bed-rest
passes” and “other letters for cleaning supplies and medical
equipment,” which were passed on to Tavarez. Third Am.
Compl. at 11. Plaintiff did not receive cleaning supplies and
medical equipment and was “not permitted to stay [in] bed.”
Instead he was told by “employees of the [VOA Shelter]” that
he had to “leave the dorm area and stay out in front” in the
“TV area.” Third Am. Compl. at 11-12. The doors returning to
the dorms were “purposely locked” which prevented Plaintiff
from accessing his antibiotic and pain medicine. Third Am.
Compl. at 12.
In April 2020, Plaintiff was treated for an infection in both
feet, and asked for an “updated medical note concerning
‘medical solution – not bleach.’ ” Third Am. Compl. at 12.
He provided the note to Thomas who “once again refused
to accept the note.” Third Am. Compl. at 12. At some point
during this period, Plaintiff was “referred to a lymphedema
doctor” who “ordered a specialized pump to remove built
up fluid from [Plaintiff's] disabled legs and feet.” Third
Am. Compl. at 12. The pump was sent to the VOA Shelter
via Federal Express, but the shipment was rejected because
shelter personnel told the driver they did not know who the
recipient was. Third Am. Compl. at 12. Plaintiff attributes this
rejection to the VOA Shelter's “two official representatives,”
Thomas and Tavarez. Third Am. Compl. at 12. Following the
rejection, Plaintiff called the CEO of Volunteers of America,
located in Virginia, after which he received a call from the
“out-going President” of the New York office. Third Am.
Compl. at 12. Plaintiff was told that the out-going president
would “do [her] best to assist [him]” but that she was retiring
and he could be assisted by her replacement. Third Am.
Compl. at 12.

*3 In May 2020, Plaintiff returned to the hospital for
infections, and received a note for cleaning supplies that
stated: “Patient shall be provided with bleach solution to clean
showers before and after every use – due to burns and frequent
cellulitis & [MRSA] infections.” Third Am. Compl. at 12.
That note, and Plaintiff's request for medical equipment, was
again rejected, apparently by Thomas and Tavarez. Third Am.
Compl. at 12. Plaintiff then decided to contact “DHS, NYS
Agencies and 311” and received a complaint number. Third
Am. Compl. at 12. Plaintiff's situation did not change, but he
states he “started having more issues with the Directors” of
the VOA Shelter. Third Am. Compl. at 12. A month later,
Plaintiff received a phone call and text from Deborah Johnson
who said she would let the out-going president know about
Plaintiff's requests. Third Am. Compl. at 12.
On July 9th, 2020, Plaintiff “filed a formal complaint
with the New York State Division of Human Rights –
Housing Complaint Unit,” which he provided to a shelter
employee who passed it along to Thomas and Tavarez.
Third Am. Compl. at 13. That same day, Plaintiff was
given an “infraction” by Tavarez “for having electronics,
[including his] Bi-Pap Machine.” Third Am. Compl. at 13.
After receiving the infraction, Plaintiff received a call from
his probation officer, who told him to report to the probation
office the following day. Third Am. Compl. at 13. Plaintiff
alleges that Thomas and Tavarez had contacted his probation
officer, who, as a result of the infraction, threatened to take
Plaintiff “before the judge in [his] white collar case for [a]
probation violation.” Third Am. Compl. at 13.
On July 17th, 2020, Plaintiff “decided enough was enough”
and initiated this action by filing his pro se Complaint [ECF
No. 2]. Third Am. Compl. at 13. A little over a week
later, Plaintiff received a letter that within 48 hours he was
being administratively transferred to a shelter in Brooklyn,
New York. Third Am. Compl. at 13. Plaintiff has access
to “cleaning supplies and specialized medical equipment,”
provided by the “nursing staff” at his new facility. Third Am.
Compl. at 13.
II. PROCEDURAL HISTORY
Plaintiff amended his complaint for the first time on July 30,
2020. [ECF No. 6]. On August 27, 2020, Judge Stein, then
presiding over this case, ordered Plaintiff to further amend
his complaint, identifying various pleading deficiencies that
Plaintiff would have to remedy if he intended to pursue this
action. [ECF No. 9] (the “August 27 Opinion”). Plaintiff then
filed a second amended complaint on October 21, 2020 [ECF

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Jones v. Volunteers of America Greater New York, Not Reported in Fed. Supp. (2022)

No. 11], and the Court thereafter ordered the United States
Marshal Service to effect service on the Defendants. [ECF
No. 13]. Defendants then timely moved to dismiss Plaintiff's
second amended complaint. [ECF No. 21]. Pursuant to the
Individual Practices of Judge Nathan (the second judge to
preside over this case), Plaintiff had the opportunity to amend
his complaint a third time. [ECF No. 22].

(noting that “[t]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice” (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955)).
In determining whether a complaint states a plausible claim
for relief, a district court must consider the context and “draw
on its judicial experience and common sense.” Iqbal, 556 U.S.
at 662, 129 S.Ct. 1937.

Plaintiff elected to amend his complaint, filing the operative
Third Amended Complaint on February 19, 2021. [ECF
No. 25]. Defendants thereafter renewed their motion to

Plaintiff represents himself in this action pro se. “It is well
established that a court is ordinarily obligated to afford a
special solicitude to pro se litigants.” Tracy v. Freshwater,
623 F.3d 90, 101 (2d Cir. 2010). The Court therefore liberally
construes Plaintiff's pleadings and motion papers to raise the
strongest arguments they suggest. Fowlkes v. Ironworkers
Local 40, 790 F.3d 378, 387 (2d Cir. 2015). “At the same time,
a pro se complaint must allege ‘enough facts to state a claim
to relief that is plausible on its face.’ ” Id. (quoting Twombly,
550 U.S. at 570, 127 S.Ct. 1955).

dismiss [ECF No. 29] (“Mem”). 4 After a delay, Plaintiff
filed a “Severe Objection of the Defense Counsel Motion
for Dismissal,” [ECF No. 46], which the Court construes as
Plaintiff's opposition. (“Opp.”). Defendants responded with
a reply letter in support of their motion. [ECF No. 29]
(“Reply”). While the motion was pending, this case was
reassigned to me.
*4 Plaintiff's Third Amended Complaint seeks $800,000
for “pain & injuries & emotional stress and suffering,” the
termination of Thomas and Tavarez, a “certified letter of
apology for defendants failure to comply w/ rule of law,” and
a “complete ‘overhaul’ of” the VOA Shelter's management
and leadership. Third. Am. Compl. at 6.

LEGAL STANDARD
Defendants move this Court pursuant to Federal Rule of
Civil Procedure 12(b)(6) to dismiss Plaintiff's Third Amended
Complaint for failure to state a claim upon which relief can be
granted. To survive a motion to dismiss under Rule 12(b)(6),
“a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’
” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A
claim is plausible on its face “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id.
(citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). While a
sufficiently pleaded complaint “does not need detailed factual
allegations, a plaintiff's obligation to provide the grounds
of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550 U.S. at 555, 127
S.Ct. 1955 (internal quotation marks, alterations, and citations
omitted); see also Iqbal, 556 U.S. at 678, 129 S.Ct. 1937

DISCUSSION
Defendants argue that Plaintiff's claims are barred under the
doctrine of res judicata, are moot, and otherwise should be
dismissed for failure to state a claim. See generally Mem. at
5. The Court addresses each argument in turn.
I. PLAINTIFF'S ACTION IS NOT BARRED UNDER
THE DOCTRINE OF RES JUDICATA
Plaintiff commenced a seemingly parallel action in New York
Supreme Court on July 21, 2020, almost simultaneously with
this federal action. See Compl., Index No. 100551/2020,
Brandon Jones v. Jisin Thomas, Jonathan Tavarez, and
Volunteers of America Corp. That case was ultimately
dismissed. Defendants argue that Plaintiff's action is therefore
barred under the doctrine of res judicata. Mem. at 13-17.
A court may grant dismissal under Federal Rule of Civil 12(b)
(6) when a defendant raises claim preclusion as an affirmative
defense and it is clear from the face of the complaint, and
matters of which the court may take judicial notice, that the
plaintiff's claims are barred as a matter of law. Conopco, Inc.
v. Roll Intern., 231 F.3d 82, 86 (2d Cir. 2000). “It is wellsettled that, in considering a motion to dismiss, the Court
is entitled to take judicial notice of documents integral to
or referred to in the complaint, as well as documents filed
in other courts and other public records.” Reyes v. Fairfield
Props., 661 F. Supp. 2d 249, 255 n.1 (E.D.N.Y. 2009) (citing

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Jones v. Volunteers of America Greater New York, Not Reported in Fed. Supp. (2022)

Global Network Commc'ns, Inc. v. City of New York, 458 F.3d
150, 157 (2d Cir. 2006)). As such, the Court takes notice
of the action docketed at Index Number 100551/2020 in the
Supreme Court of the State of New York, New York County,
and in particular the Decision and Order filed on January 21,
2021, dismissing that case in its entirety (the “NY Op.”).
A. Plaintiff's action is not barred by the doctrine of
claim preclusion
*5 Under the doctrine of res judicata, or claim preclusion,
a “ ‘final judgment on the merits of an action precludes
the parties or their privies from relitigating issues that were
or could have been raised in that action.’ ” St. Pierre v.
Dyer, 208 F.3d 394, 399 (2d Cir. 2000) (quoting Federated
Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct.
2424, 69 L.Ed.2d 103 (1981)). 5 Thus, the claim preclusion
doctrine bars “later litigation if [an] earlier decision was (1)
a final judgment on the merits, (2) by a court of competent
jurisdiction, (3) in a case involving the same parties or their
privies, and (4) involving the same cause of action.” In re
Teltronics Servs., Inc., 762 F.2d 185, 190 (2d Cir. 1985).
Res judicata, and claim preclusion, “is a rule of fundamental
repose important for both the litigants and for society.” In re
Teltronics Servs., 762 F.2d at 190. These doctrines serve the
goals of avoiding costs and vexation of duplicative litigation,
conserving judicial resources, and preventing inconsistent
decisions. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411,
66 L.Ed.2d 308 (1980).
To determine whether the doctrine of claim preclusion applies
to a New York state court judgment, this Court must apply
New York res judicata law. See New York v. Mountain
Tobacco Co., 942 F.3d 536, 543 (2d Cir. 2019) (“A federal
court must give to a state-court judgment the same preclusive
effect as would be given that judgment under the law of
the State in which the judgment was rendered.”) (internal
quotation marks omitted). New York law bars “a later claim
arising out of the same factual grouping as an earlier litigated
claim even if the later claim is based on different legal theories
or seeks dissimilar or additional relief.” Mountain Tobacco
Co., 942 F.3d at 543 (internal quotation marks omitted); see
also Washington v. Blackmore, 468 F. App'x 86, 87 (2d Cir.
2012) (“[A] claim is barred by res judicata so long as it could
have been litigated in a prior action.”); Giannone v. York Tape
& Label, Inc., 548 F.3d 191, 193 (2d Cir. 2008).
The court dismissed Plaintiff's New York state complaint
“in its entirety” and directed the clerk “to enter judgment

accordingly.” NY Op. at 4. 6 That dismissal, however, was
“pursuant to CPLR 3211(a)(7).” NY Op. at 1. “Under New
York law, a dismissal pursuant to N.Y. C.P.L.R. 3211(a)(7),
for failure to state a cause of action, is presumptively not
on a case's merits and lacks res judicata effect; indeed a
Rule 3211(a)(7) dismissal is only on the case's merits if the
rendering court explicitly says so.” DDR Constr. Servs. v.
Siemens Indus., 770 F. Supp. 2d 627, 647 (S.D.N.Y. 2011)
(collecting cases); Pereira v St. Joseph's Cemetery, 78 A.D.3d
1141, 1142, 912 N.Y.S.2d 121 (2010) (“As a general rule,
a dismissal for failure to state a cause of action is not on
the merits and, thus, will not be given res judicata effect.”).
Justice Jaffe did not indicate in her decision that the dismissal
of “the entire complaint” was on the merits, and therefore this
Court cannot agree with Defendants that the dismissal was
merits-based. As a result, Plaintiff's claims are not barred by
the doctrine of claim preclusion.
B. Plaintiff's claims are not barred by the doctrine of
issue preclusion
Defendants argue, in the alternative, that Plaintiff's claims
under the ADA and the Rehabilitation Act are barred by the
doctrine of issue preclusion. The doctrine of issue preclusion
“is a narrower species of res judicata, [which] precludes a
party from relitigating in a subsequent action or proceeding
an issue clearly raised in a prior action or proceeding and
decided against that party or those in privity, whether or not
the tribunals or causes of action are the same.” Tsirelman v.
Daines, 19 F. Supp. 3d 438, 449 (E.D.N.Y. 2014) (quoting
Ryan v. N.Y. Tel. Co., 62 N.Y.2d 494, 500, 467 N.E.2d 487,
478 N.Y.S.2d 823 (1984)). For issue preclusion to apply, the
following four requirements must be met: “(1) the identical
issue was actually raised in a previous proceeding; (2) the
issue was actually litigated and decided in the previous
proceeding; (3) the part[ies] had a full and fair opportunity
to litigate the issue; and (4) the resolution of the issue was
necessary to support a valid and final judgment on the merits.”
Wyly v. Weiss, 697 F.3d 131, 141 (2d Cir. 2012) (alteration in
original). The party seeking to apply issue preclusion bears
the burden of showing that the issues are identical and were
necessarily decided in the prior action, and the party opposing
its application bears the burden of showing that the prior
action did not afford a full and fair opportunity to litigate the
issues. Id.
*6 The Court concludes that issue preclusion does not
bar Plaintiff's ADA or Rehabilitation Act claim here for
substantively the same reasons that this action is not barred

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Jones v. Volunteers of America Greater New York, Not Reported in Fed. Supp. (2022)

by claim preclusion. Where “the prior claims were dismissed
for pleading deficiencies and were not litigated on the
merits, neither ... collateral estoppel, nor the doctrine of issue
preclusion are applicable.” Capellan v. Jackson Ave. Realty,
LLC, 2011 N.Y. Misc. LEXIS 6929, at *5 (N.Y. Sup. Ct. Sept.
26, 2011). A motion to dismiss pursuant to CPLR 3211(a)
(7) accepts the facts alleged in the complaint as true, draws
all inferences in the plaintiff's favor, and determines whether
the facts alleged comport with a cognizable legal theory. See
Mendelovitz v Cohen, 37 A.D.3d 670, 671, 830 N.Y.S.2d 577
(2007). But it does not resolve the issues on the merits.
***
Because Plaintiff's action is not barred under a theory of res
judicata, the Court will review the sufficiency of Plaintiff's
Third Amended Complaint. The Court agrees with its sister
court, the Supreme Court of the State of New York, that
Plaintiff fails to state a claim upon which relief may be
granted.
II. PLAINTIFF'S COMPLAINT FAILS TO STATE A
CLAIM UPON WHICH RELIEF CAN BE GRANTED
The Court construes Plaintiff's Third Amended Complaint
as asserting causes of action pursuant to the ADA, the
Rehabilitation Act, and the FHA. 7 The Court addresses the
ADA and Rehabilitation Act claims together, and the FHA
claim separately.
A. Plaintiff's ADA and Rehabilitation Act claims fail as
a matter of law
Title III of the ADA forbids discrimination “on the
basis of disability in the full and equal enjoyment of
the goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation.”
42 U.S.C. § 12182(a). The Court construes Plaintiff's Third
Amended Complaint as alleging that the VOA Shelter is a
place of public accommodation under the ADA, and that he
was denied the enjoyment or accommodation of that space
on the basis of his disability. In order to state a claim under
Title III of the ADA, a plaintiff must allege: (1) that he is
disabled under the meaning of the ADA; (2) that defendant(s)
own, lease or operate a place of public accommodation; and
(3) that defendant(s) discriminated against him by denying
them a full and equal opportunity to enjoy the services
defendants provide because of that known disability. Krist
v. Kolombos Rest Inc., 688 F.3d 89, 94-95 (2d Cir. 2012);
Camarillo v. Carrols Corp., 518 F.3d 153, 156 (2d Cir. 2008).

Rehabilitation Act claims are “treated identically” to ADA
claims. See Getso v. City University, 2009 WL 4042848, at
*4 (S.D.N.Y. Nov. 18, 2009); Rodriguez v. City of New York,
197 F.3d 611, 618 (2d Cir. 1998) (Rehabilitation Act and the
ADA “impose identical requirements”).
1. A claim for money damages does not lie under the
ADA or Rehabilitation Act here
Assuming arguendo that Plaintiff makes out the required
elements for a claim under Title III of the ADA or the
Rehabilitation Act, Plaintiff is nonetheless not entitled to the
relief he seeks. It is well established that a private plaintiff
suing under the ADA “may only obtain injunctive relief for
violations of a right granted under Title III; he cannot recover
damages.” Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79,
86 (2d Cir. 2004); see also Brief v. Albert Einstein Coll. of
Med., 423 F. App'x. 88, 90 (2d Cir. 2011) (Title III of the
ADA “allows only for injunctive relief”). Similarly, a private
individual may only obtain injunctive relief for violations of
the Rehabilitation Act. Forzian v. Indep. Group Home Living
Program, 613 F. App'x 15, 18-19 (2d Cir. 2015); Loeffler v.
Staten Island Univ. Hosp., 582 F.3d 268, 275 (2d Cir. 2009);
Castro v. City of New York, 24 F. Supp. 3d 250, 259 (E.D.N.Y.
2014) (dismissing ADA and Rehabilitation Act claims against
individual defendants because neither statute provides for
individual liability for claims for monetary damages); Cohn
v. KeySpan Corp., 713 F. Supp. 2d 143, 154-55 (E.D.N.Y.
2010). Plaintiff here seeks $800,000 for “pain and injuries
and emotional stress and suffering.” Third Am. Compl. at 6.
Plaintiff's request for monetary relief is not cognizable under
the ADA or the Rehabilitation Act. See 42 U.S.C. § 12188(b)
(1)(B) (money damages for civil suit plaintiffs under Title III
of the ADA is appropriate “when requested by the Attorney
General.”); Forziano, 613 F. App'x at 18-19. 8
2. Plaintiff lacks standing to seek injunctive relief
*7 Construing Plaintiff's Third Amended Complaint as
seeking declaratory or injunctive relief does not save
Plaintiff's ADA and Rehabilitation Act claims. Plaintiff asks
for the “termination” of Defendants Thomas and Tavarez,
a “Certified Letter of Apology For Defendants Failure to
Comply w/ Rule of Law,” and a “Complete ‘Overhaul’ of
VOA” management and leadership. Third Am. Compl. at
6. Plaintiff acknowledges that he no longer resides at the
VOA, and is instead living at a facility which he finds much
more amenable to his requests. See Third Am. Compl. at 13.
Plaintiff's non-monetary claims for relief are therefore moot.

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Jones v. Volunteers of America Greater New York, Not Reported in Fed. Supp. (2022)

“[A] case is moot when the issues presented are no longer
‘live’ or the parties lack a legally cognizable interest in the
outcome.” Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct.
1944, 23 L.Ed.2d 491 (1969). A case may be considered
mooted when it is “absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur.”
See also Adarand Constructors, Inc. v. Slater, 528 U.S. 216,
221-22, 120 S.Ct. 722, 145 L.Ed.2d 650 (2000) (citation and
italics omitted). Plaintiff can suffer no ongoing harm at the
hands of the Defendants because he no longer lives at the
facility at-issue in this cause of action. See Am. Freedom
Def. Initiative v. Metro. Transp. Auth., 815 F.3d 105, 110 (2d
Cir. 2015) (case moot where ongoing harm not present and
where challenged conduct has been completely eliminated);
Wiltz v. New York Univ., 2019 WL 8437456, at *16, 2019
U.S. Dist. LEXIS 220563, at *46-47 (S.D.N.Y. Dec. 23, 2019)
(no standing under FHA, ADA, or Rehabilitation Act where
plaintiff no longer resided with defendants, so no showing of
“a real or immediate threat that he will be wronged again.”)
report and recommendation adopted 2020 U.S. Dist. LEXIS
22866 (S.D.N.Y. Feb 10, 2020) appeal dismissed 2020 U.S.
App. LEXIS 41705 (2d Cir. Sept. 23, 2020).
Here, even if this Court could order the termination of
employees, or the reorganization of a private, non-profit
organization (a specious proposition), doing so would not
give Plaintiff any relief because he no longer interacts with
those employees or resides at the VOA Shelter, thereby
mooting Plaintiff's non-monetary requests for relief. See Knox
v. Serv. Emps. Int'l Union, Local 1000, 567 U.S. 298, 307, 132
S.Ct. 2277, 183 L.Ed.2d 281 (2012) (“A case becomes moot
only when it is impossible for a court to grant any effectual
relief whatever to the prevailing party.”) (internal quotation
marks omitted).
The Court therefore grants Defendants’ Motion to Dismiss
Plaintiff's Third Amended Complaint with respect to the
asserted ADA and Rehabilitation Act claims.
B. Plaintiff's FHA claims fails to state a claim upon
which relief can be granted
The FHA “broadly prohibits discrimination in housing.”
Mitchell v. City of New York, 2019 WL 2725615, at *3
(S.D.N.Y. July 1, 2019). The FHA, as applicable here, makes
it unlawful “[t]o ... make unavailable or deny, a dwelling to
any buyer or renter” or “[t]o discriminate against any person
in the terms, conditions, or privileges of sale or rental of
a dwelling, or in the provision of services or facilities in
connection therewith,” on the basis of, inter alia, disability.

42 U.S.C. §§ 3604 (a), (b), (f)(1)-(2). For purposes of the
FHA, discrimination includes a refusal to make “reasonable
accommodations in rules, policies, practices, or services,
when such accommodations may be necessary to afford such
person equal opportunity to use and enjoy a dwelling.” 42
U.S.C. § 3604(f)(3)(B). The FHA also makes it “unlawful to
coerce, intimidate, threaten, or interfere with any person in the
exercise or enjoyment of ... any right granted or protected by”
Section 3604. 42 U.S.C. § 3617. The Court liberally construes
pro se Plaintiff's Third Amended Complaint as alleging a
disparate treatment or impact claim, a denial of reasonable
accommodations claim, and a retaliation claim under the
FHA. To the extent Plaintiff asserts such claims, the FHA
claims fail as a matter of law and must be dismissed.
1. Plaintiff is not within the category of persons
protected by the FHA and does not have standing to
assert a claim under the FHA
*8 As stated, the Fair Housing Act makes it illegal to
“to discriminate in the sale or rental, or otherwise make
unavailable or deny, a dwelling to any buyer or renter because
of a” disability. 42 U.S.C. § 3604(f). Based on the plain
language of the FHA, a plaintiff must—at minimum—allege
that he was discriminated against 1) in the sale or rental, or
otherwise was made unavailable or denied, 2) a dwelling, 3)
as a buyer or renter, 4) because of a disability. Id.; see also
Jenkins v. NY City Dep't of Homeless Servs., 643 F. Supp.
2d 507, 516-20 (S.D.N.Y. 2009) aff'd 391 F. App'x 81 (2d
Cir. 2010); Ricks v. Beta Development Co., 92 F.3d 1193,
1996 U.S. Dist. LEXIS 19743, 1996 WL 436548, at *1 (9th
Cir. Jul. 10, 1996). (upholding dismissal of a Section 3604(f)
claim and holding that the FHA “employs the terms ‘renter or
buyer’, suggesting that, at the very least, [the plaintiff] must
allege that he is a prospective buyer to achieve standing.”).
As a fundamental matter, Plaintiff must be a “buyer or renter”
to maintain an FHA claim. 9
The FHA defines “to rent” as “to lease, to sublease, to
let and otherwise to grant for a consideration the right to
occupy premises not owned by the occupant. 42 U.S.C.
§ 3602(e) (emphasis added). Plaintiff does not allege that
he paid anything to live at the VOA Shelter. Indeed, the
most generous read of Plaintiff's Third Amended Complaint
indicates that he was directed to live there from February 2020
to July 2020. See Third Am. Compl. at 10, 13 (Plaintiff was
“transferred” to the VOA Shelter from another in Manhattan,
and later “transferred” to his current facility in Brooklyn). On
these facts, no inference arises that Plaintiff was a “buyer or

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Jones v. Volunteers of America Greater New York, Not Reported in Fed. Supp. (2022)

renter” under the FHA. Jenkins, 643 F. Supp. 2d at 519-20.
Plaintiff's FHA claims are not cognizable for the simple fact
that the plain language of the statute does not apply to Plaintiff
as a non-renter. 10
Even if this Court were to assume that Plaintiff was a renter
or buyer at the VOA Shelter, Plaintiff's claims under the FHA
would still fail to state a claim upon which relief may be
granted.

3. Plaintiff's FHA disparate treatment or impact claim
fails to state a claim
A plaintiff alleging violations of Section 3604(f)(1) or (f)
(2) of the FHA may proceed under two theories: disparate
treatment or disparate impact. See LeBlanc-Sternberg v.
Fletcher, 67 F.3d 412, 425 (2d Cir. 1995).

2. Plaintiff's FHA reasonable accommodation claim
fails to state a claim
The only provision of the FHA that Plaintiff explicitly
invokes is 42 U.S.C. § 3604(f)(3)(B). Third Am. Compl.
at 2. A plaintiff may make out an FHA violation under
Section 3604(f)(3) by claiming a failure to make a reasonable
accommodation. Regional Economic Community Action
Program, Inc. v. City of Middletown, 294 F.3d 35, 48 (2d
Cir. 2002). To bring a reasonable accommodation claim, a
complaint must make out that: (1) the plaintiff suffers from
a handicap as defined by the FHA; (2) the defendant knew
or reasonably should have known of plaintiff's handicap; (3)
accommodation of the handicap may be necessary to afford
plaintiff an equal opportunity to use and enjoy the dwelling;
(4) the requested accommodation was reasonable; and (5) the
defendant refused to make such accommodation. See Olsen v.
Stark Homes, Inc., 759 F.3d 140, 156 (2d Cir. 2014).

Disparate treatment. To state a claim under either Section
3604(f)(1) or (f)(2) on the basis of disparate treatment at
the motion to dismiss stage, a “plaintiff must allege enough
facts to state a plausible claim that animus against the
protected group was a significant factor in the position
taken by the [ ] decision-makers.” Perricone-Bernovich v.
Tohill, 843 F. App'x 419, 421 (2d Cir. 2021) (internal
quotation marks omitted); Francis v. Kings Park Manor,
Inc., 992 F.3d 67, 73 (2d Cir. 2021) (FHA discrimination
claim must “plausibly allege ... at least minimal support
for the proposition that the [defendant] was motivated by
discriminatory intent.”); see also Palmer v. Fannie Mae, 755
F. App'x. 43, 45 (2d Cir. 2018) (disparate treatment plaintiff
must state he was a “member of a protected class,” suffered
relevant “adverse” treatment, and plead facts that suggest “an
inference of discriminatory motivation.”). The Second Circuit
has instructed that an “inference of discrimination can be
shown through circumstances demonstrating that a person or
group is treated differently from others who are ‘similarly
situated.’ ” Littlejohn v. City of N.Y., 795 F.3d 297, 312 (2d

*9 The Second Circuit appears to differentiate between
“intentional” and “non-intentional” discrimination claims
under the FHA, treating a reasonable accommodation as
“non-intentional.” See Forziano, 613 F. App'x at 18-19
(Section 3604(f)(3) is a “non-intentional discrimination
claim” under the FHA). Non-intentional discrimination
claims provide only for “injunctive relief,” not money
damages. See id. (“Plaintiffs’ reasonable accommodation
damages claims must be dismissed because it is wellsettled that injunctive relief is the only relief available
for non-intentional violations of the [FHA, ADA, and the
Rehabilitation Act].”). As discussed above in the context
of Plaintiff's ADA and Rehabilitation Act claims, Plaintiff's
request for injunctive relief is moot. The Court therefore is
constrained to dismiss Plaintiff's reasonable accommodations
claim under the FHA. Id.; Wiltz, 2019 WL 8437456, at *16,
2019 U.S. Dist. LEXIS 220563, at *46-47 (no standing under
FHA, ADA, or Rehabilitation Act where plaintiff no longer
resided with defendants).

Plaintiff fails to provide facts that could plausibly support
even a minimal inference of discriminatory motivation.
Nowhere in Plaintiff's Third Amended Complaint does he
allege, conclusory or otherwise, that an action taken by any
Defendant was because of his disability. Nor does Plaintiff
identify other individuals, disabled or not, at the shelter
who were treated differently than he was. Nothing suggests,
for example, a non-disabled resident was allowed to keep
his medication in the refrigerator while others—including
Plaintiff—were not. See Perricone-Bernovich, 843 F. App'x
at 421 (FHA disparate treatment claim properly dismissed
where “nothing in the complaint” suggested that Plaintiff's
treatment was “different from those faced by similarlysituated [people] without disabilities.”). To the extent that no
one was allowed cleaning supplies or medical equipment, the
only inference is that all residents were treated equally (i.e.
there was no disparate treatment), and in all events it would be
difficult to impute a discriminatory motive to any Defendant.

Cir. 2015). 11

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Jones v. Volunteers of America Greater New York, Not Reported in Fed. Supp. (2022)

Plaintiff therefore cannot succeed on a disparate treatment
theory.
Disparate impact. Plaintiff also fails to state a claim on
a disparate impact theory. A “prima facie case under a
disparate impact theory requires a showing of ‘a significantly
adverse or disproportionate impact on persons of a particular
type’ produced by a facially neutral practice.” PerriconeBernovich, 843 F. App'x at 421 (quoting Tsombanidis v. W.
Haven Fire Dep't, 352 F.3d 565, 574-75 (2d Cir. 2003)).
Plaintiff's Third Amended Complaint relays grievances with
the way he was treated by the Defendants, not how the
practices of the Defendants had a disproportionate impact on
people with disabilities generally. Because the gravamen of
Plaintiff's Third Amended Complaint relates to his individual
experiences with the Defendants—and does not plead any
facts about how his treatment was indicative of systemic
adverse impact on those with disabilities generally—Plaintiff
cannot succeed on a disparate impact theory of FHA liability.
4. Plaintiff's FHA retaliation claim fails to state a claim
*10 A prima facie retaliation claim under the FHA Section
3617 must allege “(1) the plaintiff engaged in [a] protected
activity, (2) the defendant was aware of this activity, (3) the
defendant took adverse action against the plaintiff, and (4) a
causal connection exists between the protected activity and
the adverse action.” Wilson v. Wilder Balter Partners, Inc.,
2015 WL 685194, at *8 (S.D.N.Y. Feb. 17, 2015). Section
3617 requires “a showing of a particular state of mind, i.e., a
retaliatory motive.” Austin v. Town of Farmington, 826 F.3d
622, 630 (2d Cir. 2016). “[R]egardless of how the prima facie
standard is articulated, the plaintiff is required to show that
defendant's action against him arose from a discriminatory
motive.” Haber v. ASN 50th St. LLC, 847 F. Supp. 2d 578,
586 (S.D.N.Y. 2012).
The Court notes that Defendants oppose Plaintiff's FHA
reasonable accommodation claim because he “does not
allege that he exercised his rights under the FHA and
[that] Defendants coerced, intimidated, or threatened him,
or interfered with his exercise of those rights.” Mem. at
10. That statement, and the pithy argument that follows,
is cookie cutter, almost word-for-word lifted from the
Court's August 27 Opinion ordering Plaintiff to amend his
complaint. Compare Mem. at 10 with August 27 Opinion
at 7. Defendants’ stolen argument that the “only specific
fact that Plaintiff alleges” relates to an interaction with his
probation officer is nonsensical where Plaintiff has amended
his complaint two times since the Court's August 27 Opinion,

and now includes an additional “factual statement of record”
in his Third Amended Complaint that includes information
beyond that originally pled.
However, Plaintiff fails to plead any new factual allegations
that draw a causal connection between a protected activity
and an adverse action. Plaintiff characterizes certain of his
complaints throughout his tenure at the VOA shelter as
“formal grievances.” Third Am. Compl. at 15. Without more,
the Court cannot understand if these were protected activities
that allow the Court to draw a nexus between them and any
adverse action. Plaintiff does state that he contacted “DHS,
NYS Agencies and 311” and received a complaint number
in early-late July 2020. Third Am. Compl. at 12. Following
that, Plaintiff pleads he “started having more issues with
the Directors” of the VOA Shelter. Third Am. Compl. at
12. But the Court cannot credit the vague and conclusory
allegation that a complaint was met with “more issues” for
purposes of this motion. See Iqbal, 556 U.S. at 678, 129
S.Ct. 1937 (“Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice.”); cf. Kastrati v. Progress of Peoples Mgmt. Corp.,
2020 U.S. Dist. LEXIS 221464, 2020 WL 6940991, at *5
(E.D.N.Y. Nov. 24, 2020) (“Plaintiff's allegations purportedly
supporting an inference of retaliatory intent rest exclusively
on timing. However, Plaintiff was subject to gradual adverse
actions well before” the allegedly protected activity took
place).
In any event, as the Court discussed with respect to
Plaintiff's disparate treatment and impact theories above,
the Third Amended Complaint is devoid of any reference
to a desire to discriminate against Plaintiff because of his
disability or because of an alleged protected activity with
respect to that disability. Cf. Francis, 992 F.3d at 73 (FHA
claim must “plausibly allege ... at least minimal support
for the proposition that the [defendant] was motivated by
discriminatory intent”); Austin, 826 F.3d 622 (an FHA
retaliation claim “require[s] a showing of a particular state
of mind, i.e., a retaliatory motive.”). Accordingly, Plaintiff's
FHA retaliation claim must therefore be dismissed.
III. LEAVE TO FURTHER AMEND THE
COMPLAINT FOR A FOURTH TIME IS NOT
WARRANTED
*11 Leave to amend a complaint should be freely given
“when justice so requires.” Fed. R. Civ. P. 15(a)(2). While
Plaintiff does not ask for leave to amend, the Court
nonetheless has considered whether, as a pro se litigant,

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Plaintiff again should be given leave to amend his deficient
complaint. See Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794,
795-96 (2d Cir. 1999) (per curiam) (pro se plaintiffs should
generally be given leave to amend). A district court may deny
leave to amend when amendment would be futile because the
problem with the claim “is substantive [and] better pleading
will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir. 2000).
“[E]ven the special solicitude afforded to pro se litigants
does not entitle Plaintiff to file an infinite number of
amended pleadings.” Boykin v. Moreno, 2020 WL 882195,
at *8 (S.D.N.Y. Feb. 24, 2020). This is especially true
where “Plaintiff has fixed virtually none of the deficiencies
highlighted by the Court in its” prior opinions and orders.
Id. Under such circumstances, Courts in this district routinely
dismiss a Plaintiff's amended pleadings with prejudice. See
Al-Qadaffi v. Servs. for the Underserved (SUS), 2015 WL
585801, at *8 (S.D.N.Y. Jan. 30, 2015), aff'd 632 F. App'x
31 (2d Cir. 2016) (dismissing a pro se plaintiff's claim with
prejudice where he “already had one chance to amend his
Complaint, and there is still no indication that a valid claim
might be stated if given a second chance”); Boykin, 2020
WL 882195, at *8 (dismissing a plaintiff's fourth amended
pleadings).
Plaintiff has been given—in federal court—four chances to
state a legally cognizable claim. [ECF Nos. 2, 6, 11, 25]. The
substantive issues in Plaintiff's Third Amended Complaint
—also identified in the Court's prior August 27 Opinion
[ECF No. 9]—cannot be cured through further amendment.
Amendment would therefore be futile, and Plaintiff is not

granted leave to further amend his complaint. See Cuoco, 222
F.3d at 112 (“[A] futile request to replead should be denied.”).
***
The Court has carefully reviewed Plaintiff's Third Amended
Complaint and the Parties’ briefs. Any remaining allegations
not specifically discussed in this opinion are without merit
and fail to state a claim upon which relief can be granted.
To the extent that Plaintiff's Third Amended Complaint
raises questions of state law, the Court declines to exercise
supplemental jurisdiction over them. Third Am. Compl.
at 2 (denoting basis for jurisdiction is federal question
jurisdiction); Third Am. Compl. at 3 (plaintiff, and at least one
defendant, is a New York citizen); see United Mine Workers
v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d
218 (1966) (a district court should decline supplemental
jurisdiction if, as here, all federal claims have been dismissed
at the pleading stage).

CONCLUSION
For the reasons stated herein, Defendants’ Motion to Dismiss
is GRANTED with prejudice. The Clerk of the Court
respectfully is requested to close this case.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 768681

Footnotes
1

Plaintiff's Third Amended Complaint inconsistently, and improperly, names the Defendants in this action. The
Third Amended Complaint lists “Deborah Johnson” as “Defendant 3.” Third Am. Compl. at 4. The caption on
Plaintiff's form complaint does not list Deborah Johnson as a defendant. Third Am. Compl. at 1. Plaintiff's
appended “Factual Statement of Record” also does not mention Deborah Johnson as a defendant. See Third
Am. Compl. at 10, 17. For the avoidance of doubt, however, the Court construes the Defendants in this case
as the VOA, Lijin Thomas, Jonathan Tavarez, and Deborah Johnson. Defendants write that Plaintiff misspells
certain individuals’ names (Tavarez as Tavarez, and Lijin Thomas as Jisin Thomas). [ECF No. 29]. The Court
uses the provided proper spelling of the Defendants’ names where applicable.

2

Plaintiff, pro se, has attached a “Factual Statement of Record” to his Third Amended Complaint. [ECF No. 25].
The Court construes the attachment as part of his Third Amended Complaint. Because the document does

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not have internal pagination or numbered paragraphs, the Court will cite to the allegations as they appear
at the ECF pagination of the entire document.
3

The record is devoid of any information about why Mr. Jones might have a probation officer; although
elsewhere in his operative complaint Mr. Jones later references a “white collar case.” Third Am. Compl. at 13.

4

Defendants’ Motion to Dismiss attaches all related documents in a single PDF, including affidavits, exhibits,
and a memorandum of law in support of dismissal. Because Defendants’ Memorandum of Law includes
internal pagination, the Court refers to it at the pagination provided rather than the ECF pagination. On this
motion, the Court disregards any extraneous material submitted, and relies on the information provided in
Plaintiff's pleadings, and items that the Court may take judicial notice of. See Can v. Goodrich Pump & Engine
Control Sys., Inc., 711 F. Supp. 2d 241, 246 (D. Conn. 2010) (“On a motion to dismiss under Rule 12(b)(6),
judicial notice may be taken of other judicial documents that might provide the basis for issue preclusion.”).

5

The Court notes that res judicata refers to both claim and issue preclusion, but that the Second Circuit
has acknowledged they are “significantly different doctrines.” Marcel Fashions Group, Inc. v. Lucky Brand
Dungarees, Inc., 779 F.3d 102, 107 (2d Cir. 2015).

6

The Court notes that Defendants provided only a copy of the New York opinion, but not the judgment entered
by the Clerk of the Court dismissing the case.

7

To the extent the Plaintiff's Third Amended Complaint could raise a claim under Section 1983, see Defs.
Mem. at 11-12, any such claim necessarily fails because the Defendants are private parties. Private parties
are not generally liable for constitutional violations under Section 1983. See Sykes v. Bank of America, 723
F.3d 399, 406 (2d Cir. 2013). This Court has previously ruled that Plaintiff's then-operative complaint failed
to plead that the Defendants were “state actors,” or acting under color of law, for purposes of Section 1983
liability, [ECF No. 9 at 4-5], and Plaintiff has not cured that deficiency.

8

To the extent that Plaintiff seeks to bring an ADA retaliation claim against any Defendant pursuant to 42
U.S.C. § 12203(a), it appears that Plaintiff's claim would fail because that section also does not provide for
punitive or compensatory damages under the ADA in this case. Spiegel v. Schulmann, 604 F.3d 72, 79 (2d
Cir. 2010); Shipman v. New York State Office of Persons with Developmental Disabilities, 2012 WL 897790,
at *9 (S.D.N.Y. Mar. 12, 2012) (even in the retaliation context, “individuals cannot be held liable for money
damages under the ADA in either their personal or official capacities.”), report and recommendation adopted
2012 WL 3704837, at *3 (S.D.N.Y. Mar. 26, 2012) (money damages unavailable under the ADA); Kramer v.
Banc of America Securities, LLC, 355 F.3d 961 (7th Cir. 2004), cert. denied, 542 U.S. 932, 124 S. Ct. 2876,
159 L. Ed. 2d 798 (2004) (holding that a plaintiff can only recover equitable relief for a retaliation claim under
the ADA);. Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1269-70 (9th Cir. 2009) (holding “punitive and
compensatory damages are not available for ADA retaliation claims.”).

9

The Court assumes without agreeing that the VOA Shelter constitutes a “dwelling” for purposes of the FHA.
See Madison v. Graham, 2021 WL 2784763, at *5, 2021 U.S. Dist. LEXIS 124437, at *12 (S.D.N.Y. July 1,
2021) (“District courts in the Second Circuit have held that the FHA does not apply to certain shelters” and
the question remains open).

10

The FHA's prohibition on “otherwise mak[ing] unavailable or deny[ing]” a dwelling on the basis of disability is
of no help to Plaintiff because he is not a buyer or renter for purposes of the statute. Jenkins, 643 F. Supp.
2d at 519-20 (the “ ‘otherwise make unavailable’ clause may expand the prohibited activities under § 3604(f)
beyond simply renting and selling but it does not expand the class of individuals who are protected from
discrimination on the basis of handicap beyond renters or buyers.”); Ricks, 1996 WL 436548, at *1, 92 F.3d
1193 (no standing if not renting or buying).

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10

Jones v. Volunteers of America Greater New York, Not Reported in Fed. Supp. (2022)

11

Littlejohn, and its progeny, concerned employment discrimination claims. The Second Circuit, and courts
within it, have applied its teachings to the framework of FHA claims. See Palmer, 755 F. App'x at 45 n.1.

End of Document

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11

Shipman v. New York State Office of Persons with..., Not Reported in...

2012 WL 897790
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Dennis SHIPMAN, Plaintiff,
v.
NEW YORK STATE OFFICE OF PERSONS
WITH DEVELOPMENTAL DISABILITIES,
Metro Developmental Disabilities Services
Office, Max E. Chmura, Jill Gentile, Delores
Lark, and Patricia Schuckle, Individually and
in Their Official Capacities, and Professional
Employees Federation, AFL/CIO, Defendants.
No. 11 Civ. 2780(GBD)(FM).
|
March 13, 2012.

REPORT AND RECOMMENDATION TO
THE HONORABLE GEORGE B. DANIELS
FRANK MAAS, United States Magistrate Judge.
I. Introduction
*1 In this employment discrimination case, pro se plaintiff
Dennis Shipman (“Shipman”), proceeding in forma pauperis,
seeks monetary and injunctive relief from the New York
State Office of Persons With Developmental Disabilities
(“OPWDD”), the Metro Developmental Disabilities Services
Office (“DDSO” and, together with OPWDD, the “Agency”),
and four current or former Agency officials: former Acting
Commissioner Max E. Chmura (“Chmura”); Associate
Commissioner Jill Gentile (“Gentile”); Director of the Office
of Affirmative Action, Delores Lark (“Lark”); and former
Acting Director of the DDSO, Particia Schuckle (“Schuckle”)
(“Individual Defendants” and, together with the Agency,
the “State Defendants”). Shipman also has sued his union,
the New York State Public Employees Federation, AFL–
CIO (“PEF”), mistakenly identified in his pleadings as the
Professional Employees Federation, for failing to provide him
with legal representation.
Shipman, who allegedly suffers from Post–Traumatic Stress
Disorder (“PTSD”) as a result of his service as a volunteer
emergency medical technician at Ground Zero on September
11, 2001, contends that the State Defendants failed to provide

him with a reasonable accommodation for his disability, in
violation of the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12181, et seq., and that this failure ultimately caused
him to quit his job.
The State Defendants and PEF each have moved to dismiss
Shipman's claims pursuant to Rules 12(b)(1) and 12(b)(6) of
the Federal Rules of Civil Procedure. For the reasons set forth
below, their motions should be granted.
II. Background
A. Facts
The following facts are either undisputed or set forth in the
light most favorable to Shipman for purposes of this motion:
In September 2002, Shipman began working at the DDSO
(an OPWDD facility) as a “social worker assistant.” (ECF
No. 72 (“Pl.'s Opp'n”) at 1). 1 In July 2005, Shipman's PTSD
caused him to take an unpaid leave of absence pursuant to
New York Civil Service Law Section 73. (Id.). Although the
unpaid leave lasted much longer than one year, the Agency
“grudgingly reinstated” Shipman in August 2009. 2 (Id.).
After his reinstatement, Shipman was subjected to
“life threatening stress levels” caused by “vindictive
managers” who “harass[ed] him daily.” (Id. at 2).
In particular, former DDSO Treatment Team Leader
Paul Blackwell (“Blackwell”), with the “tacit consent”
of Program Specialist Josie Astacio–Cancel (“Astacio–
Cancel”), “badgered” Shipman about his weekly work
schedule. (ECF No. 24 (“Amended Complaint” or “Am.
Compl.”) ¶ 6(3)). Although other Agency employees were
afforded wide latitude in selecting their schedules as long
as they worked eight and one-half hours per day, Blackwell
told Shipman that he could not begin work before 8:30 a.m.
(Id.). Blackwell and Astacio–Cancel also directed Shipman
to perform tasks that were redundant or unnecessary, which
necessitated his taking a sick day as “a coping mechanism.”
(Id. ¶ 6(5)). Blackman subsequently caused an unwarranted
“counseling memo” to be placed in Shipman's file. (Id.).
*2 In either March or May 2010, Shipman reported his
disability to Donald Odom (“Odom”), a DDSO Affirmative
Action Counselor. Shipman requested that he be reassigned
to a less stressful position within the Agency or another
state agency, noting that his PTSD caused “an inability to
effectively cope with stress or stressful situations.” (Id. at ¶

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Shipman v. New York State Office of Persons with..., Not Reported in...

6(7); Pl.'s Opp'n at 3). 3 His request for an accommodation
was denied, however, “because his medical records were not
updated and, more importantly, he was stable.” (Am.Compl.¶
6(7)). Shipman concedes that he did not comply with the
Agency's request for medical records, but contends that any
such submissions would have been unnecessarily duplicative
because “[Agency] Personnel had already been provided with
an application for accommodation despite their protestations
to the contrary, which are frankly untrue.” (Pl.'s Opp'n at 3).
Shipman “immediately reported this exchange” to Lark, the
DDSO Director of Affirmative Action, who failed to respond.
(Am.Compl.¶ 6(8)). Shipman also wrote to Schuckle, who
was serving as DDSO's Acting Director. Schuckle also did not
respond. (Id. ¶ 6(9)).
On May 25, 2010, Shipman suffered what he describes
as “a nervous breakdown” triggered by the “discriminatory
conduct” of Blackwell and Astacio–Cancel. (Id. ¶¶ 6(1),
6(3)). Around that time, Shipman informed Astacio–Cancel
and other Agency personnel that he was unable to perform his
job and, therefore, “was taking a leave of absence because he
could no longer tolerate the stress [,] and was experiencing
strong or violent anger while having flashbacks to a prior
traumatic event[.]” (Id. ¶ 6(9)).
Shipman wrote to Schuckle again on June 1, 2010, “asking to
not be removed from the payroll or to be accommodated.” (Id.
¶ 6(10)). Schuckle failed to respond, and Shipman was
removed from the state payroll on June 3, 2010. (Id. ¶¶ 6(10–
11)).
On July 17, 2010, Shipman sent a letter to Schuckle's
supervisor, Associate Commissioner Gentile, who responded
on July 27, 2010, and apologized for her delayed response.
Gentile promised to contact Shipman “once [she] ha[d]
information for [him].” (Id. ¶ 6(14)). On July 27, Shipman
also wrote a letter to then-Acting Commissioner Chmura.
Chmura did not respond to that letter or a letter that Shipman
sent to him on August 1. (Id.).
Shipman promptly communicated the foregoing facts to his
union, PEF. (Id. ¶ 6(19)). Shipman's numerous attempts
to discuss his situation with PEF personnel proved
unsuccessful, however, until Field Representative Barry
Markman (“Markman”) “responded after an urgent call was
placed to him on September 16, 2010, when [Shipman] was
directed to leave the premises of ... DDSO with no written
notice as to why he was ordered to vacate the premises.” (Id.).

According to Shipman, “PEF has done little or nothing ...
to redress what is a blatant violation of th[e] collective
bargaining agreement, New York State Civil Service [Law,
and New York] Worker Compensation Law.” (Id.). Shipman
further surmises that, by failing to advocate on his behalf, PEF
is “acting in concert with ... DDSO in furtherance of an illegal
scheme to deny [Shipman] reasonable accommodation ...
[and] employment, and aggravate the hardship with which
he has been confronted since being removed from the state
payroll.” (Id.).
*3 On January 31, 2011, Shipman was “compelled to
resign.” (Pl.'s Opp'n at 4). As a result of being removed
from the DDSO payroll, Shipman has suffered serious
financial difficulties and emotional distress, and subsequently
has been forced to file for bankruptcy in the District
of Delaware, where he now lives. (See Am. Compl. ¶¶
6(17–18); Pl.'s Opp'n at 5). Shipman therefore seeks relief
in the form of “reinstatement of pay with lost time;
reasonable accommodation; re-assignment, and, an interagency transfer.” (Am.Compl.¶ 7). Shipman also renews a
prior request for a temporary restraining order or preliminary
injunction requiring the State Defendants to reinstate him
pending the final resolution of this case. (Pl.'s Opp'n at 1). 4
Shipman further seeks relief from PEF in the form of legal
representation and sanctions. (Id. at 2).
B. Procedural History
Shipman commenced this action on July 30, 2010, by filing
a complaint in the Northern District of New York. (See ECF
No. 1 (“Original Complaint”)). Shipman subsequently filed
his Amended Complaint on October 20, 2010. (Am. Compl.
at 1). On April 19, 2011, the parties stipulated to a transfer of
venue to this District pursuant to 28 U.S.C. 1404(a). (ECF No.
52). Thereafter, on April 29, 2011, Your Honor referred this
case to me for a Report and Recommendation with respect to
any dispositive motions. (ECF No. 57). The State Defendants
and PEF then filed their motions to dismiss on July 17, 2011.
(ECF Nos. 65, 67). Those motions are fully submitted. (See
ECF Nos. 65–76).
C. In Forma Pauperis Application
When he filed the Original Complaint, Shipman also filed
a motion for leave to proceed in forma pauperis (“IFP”).
(ECF No. 3). Magistrate Judge Randolph F. Treece of the
Northern District of New York granted that motion on August
30, 2010. (ECF No. 9). In his affidavit in support of the IFP
motion, Shipman stated under oath that he earned no income

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Shipman v. New York State Office of Persons with..., Not Reported in...

from any “[b]usiness, profession or form of self-employment”
in the twelve months preceding the filing of this lawsuit.
(ECF No. 3). That statement is contradicted, however, by
Shipman's admission that the Agency paid him through June
2010, one month before he filed his Original Complaint.
(Pl.'s Opp'n at 4 (“The last check plaintiff had received from
defendants is dated June 2010.”); see also ECF No. 68 (Aff. of
Herminia Torres, sworn to on July 12, 2011 (“Torres Aff.”)),
¶ 3 (”[Shipman] was paid the sum of $41,323.80 ... within the
twelve months preceding the date of his affidavit)).
Shipman contends that “[a]ny error made on [the] affidavit
relative to his income for the 12 months preceding his
emergency ex parte application is a red herring; strictly
innocuous and, by extension, unintentional.” (Pl.'s Opp'n Ex.
A at 16). In response to that assertion, the State Defendants
have submitted evidence that Shipman also provided false
information in his IFP applications in other cases. For
example, in Shipman v. Verizon Communications Corp., 10
Civ. 271 (D.Del.), Shipman's IFP affidavit, sworn to on March
30, 2010, stated that he was unemployed and had earned no
income in the previous twelve months. If his allegations in this
case are true, however, Shipman was employed by the Agency
from August 2009 through March 2010. (See ECF No. 6
(Aff. of Barbara K. Hathaway, Esq., Ass't Att'y Gen., sworn
to on July 15, 2011 (“Hathaway Aff.”), Ex. B)). Similarly,
in Shipman, a/k/a Shipman Holdings LLC v. Sprint Nextel
Corp., 10 Civ. 130 (D.Del.), Shipman stated under penalties
of perjury in his IFP application that he was unemployed and
had earned no income in the twelve months prior to February
5, 2010. (See Hathaway Aff. Ex. C).
*4 In yet another pro se case, Shipman v. TD Bank, 10
Civ. 2217 (D.N.J.), the district judge dismissed Shipman's
complaint due to: (1) “significant inconsistencies between
[Shipman's IFP] application and his civil suit,” which alleged
that Shipman had suffered substantial losses to his business,
and (2) Shipman's failure to submit a timely response to the
court's request that he amend his IFP application to clarify his
financial situation. (See Hathaway Aff. Ex. D).
III. Discussion
A. Standard of Review
1. Rule 12(b)(6)
A Rule 12(b)(6) motion to dismiss for failure to state a
claim tests the legal sufficiency of a plaintiff's claims for
relief. Krasner v. HSH Nordbank AG, 680 F.Supp.2d 502,

511 (S.D.N.Y.2010) (Lynch, D.J.). In deciding the motion,
the Court must accept as true all factual allegations made in
the complaint and draw all reasonable inferences in favor of
the plaintiff. Allaire Corp. v. Okumus, 433 F.3d 248, 249–
50 (2d Cir.2006). The complaint need not contain “detailed
factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct.
1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929
(2007)). Nonetheless, “[t]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements,
do not suffice.” Id. (citing Twombly, 550 U.S. at 555).
To survive a Rule 12(b)(6) motion, the complaint “must
contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’ “ Id. (quoting
Twombly, 550 U.S. at 570). 5 Determining whether the
allegations of a complaint nudge a plaintiff's claims across
the line from merely “conceivable to plausible” requires the
Court to “draw on its judicial experience and common sense.”
Id. at 1950–51.
In making its assessment, the Court may consider, in addition
to the plaintiff's factual averments, any written instrument
upon which the plaintiff necessarily relies, regardless of
whether it is attached to the complaint or incorporated
therein by reference. See Chambers v. Time Warner, Inc.,
282 F.3d 147, 152–53 (2d Cir.2002). When a plaintiff is
proceeding pro se, the Court also may rely on any opposition
papers in assessing the legal sufficiency of the plaintiff's
claims. See Crum v. Dodrill, 562 F.Supp.2d 366, 373 n.
13 (N.D.N.Y.2008) (citing Gadson v. Goord, No. 96 Civ.
7544(SS), 1997 WL 714878, at *1 n. 2 (S.D.N.Y. Nov.17,
1997)). Furthermore, the Court may take judicial notice of
indisputable facts. See Fed.R.Evid. 201. Legal conclusions
masquerading as factual averments, however, may not be
taken into account. Smith v. Local 819 I.B.T. Pension Plan,
291 F.3d 236, 240 (2d Cir.2002) (citing Gebhardt v. Allspect,
Inc., 96 F.Supp.2d 331, 333 (S.D.N.Y.2000)).
Because Shipman is proceeding pro se, the Court must
read his pleadings “liberally” and interpret them “to raise
the strongest arguments” that they may suggest. Chavis v.
Chappius, 618 F.3d 162, 170 (2d Cir.2010) (citing Harris v.
City of N.Y., 607 F.3d 18, 24 (2d Cir.2010)). “Dismissal of a
pro se complaint is nevertheless appropriate where a plaintiff
has clearly failed to meet minimum pleading requirements.”
Carvel v. Ross, No. 09 Civ. 722(LAK)(JCF), 2011 WL
856283, at *8 (S.D.N.Y. Feb. 16, 2011).

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3

Shipman v. New York State Office of Persons with..., Not Reported in...

2. Rule 12(b)(1)
*5 Under Rule 12(b)(1), a complaint must be dismissed
if a court lacks subject matter jurisdiction over the action.
In deciding a Rule 12(b)(1) motion, a court is not limited
to the face of the complaint and may consider evidence
outside the pleadings to resolve disputed factual issues. State
Emp. Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 77
n. 4 (2d Cir.2007); Phifer v. City of N .Y., 289 F.3d 49, 55
(2d Cir.2002). The plaintiff has the burden of proving by a
preponderance of the evidence that subject matter jurisdiction
exists. Phifer, 289 F.3d at 55 (citing Makarova v. United
States, 201 F.3d 110, 113 (2d Cir.2000)).
When a court is faced with a motion to dismiss pursuant
to both Rules 12(b)(1) and 12(b)(6), it should “decide the
‘jurisdictional question [under Rule 12(b)(1) ] first because
a disposition of a Rule 12(b)(6) motion is a decision on
the merits, and therefore, an exercise of jurisdiction.’ “
Tirone v. N.Y. Stock Exch., Inc., No. 05 Civ. 8703(WHP),
2007 WL 2164064, at *3 (S.D.N.Y. July 27, 2007) (quoting
Magee v. Nassau Cnty. Med. Ctr., 27 F.Supp.2d 154, 158
(E.D.N.Y.1998)). Accordingly, I will turn first to the State
Defendants' Rule 12(b)(1) motion seeking dismissal of
Shipman's ADA claim on jurisdictional grounds.
B. ADA Claim Against the State Defendants
1. Eleventh Amendment
Under the Eleventh Amendment to the United States
Constitution, a State and its agencies generally are immune
from suit in federal court. See Seminole Tribe of Fla. v.
Florida, 517 U.S. 44, 54–56, 116 S.Ct. 1114, 134 L.Ed.2d 252
(1996). “For Eleventh Amendment purposes, [OPWDD] is to
be considered an arm of New York State.” Komlosi v. N.Y.
Office of Mental Retardation & Developmental Disabilities,
64 F.3d 810, 815 (2d Cir.1995); see Komlosi v. Fudenberg,
No. 88 Civ. 1792(HBP), 2009 WL 4722758, at *3 (S.D.N.Y.
Dec.9, 2009).
There are only two exceptions to Eleventh Amendment
sovereign immunity. These exceptions apply when there has
been an explicit and unequivocal waiver of immunity by
a State or a similarly clear abrogation of the immunity by
Congress. See Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 99, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). “A
claim that is barred by a state's sovereign immunity must be
dismissed pursuant to the Eleventh Amendment for lack of
subject matter jurisdiction.” Henny v. New York, No. 08 Civ.

10981(KMK), 2012 WL 335732, at *10 (S.D.N.Y. Jan.30,
2012) (citing Va. Office for Prot. & Advocacy v. Stewart, –––
U.S. ––––, ––––, 131 S.Ct. 1632, 1637, 179 L.Ed.2d 675
(2011); Seminole Tribe, 517 U.S. at 54).
Here, there is no suggestion that the State Defendants
have waived their sovereign immunity. See Perciballi v.
New York, No. 09 Civ. 6933(WHP), 2010 WL 3958731,
at *3 (S.D.N.Y. Sept.28, 2010). The Court must, however,
consider several separate provisions of the ADA to determine
whether Congress has abrogated the State Agency's sovereign
immunity.
2. ADA Claim Against the Agency
a. Title I
*6 Title I of the ADA provides that, “no covered entity
shall discriminate against a qualified individual on the basis
of disability in regard to job application procedures, the
hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and
privileges of employment.” 42 U.S.C. § 12112(a) (“Title I”).
In Board of Trustees of the University of Alabama v. Garrett,
531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2011), the
Supreme Court held that Title I did not validly abrogate
state Eleventh Amendment immunity, despite the fact that
Congress “unequivocally intend[ed] to do so.” Id. at 363–
64, 368–74 (citing 42 U.S.C. § 12202 (“A State shall not be
immune under the eleventh amendment to the Constitution of
the United States from an action in [a] Federal or State court
of competent jurisdiction for a violation of [the ADA].”)).
The Court explained that “Congress may not ... base its
abrogation of the States' Eleventh Amendment immunity
upon the powers enumerated in Article I” of the Constitution.
Id. at 364. Instead, “Congress may subject nonconsenting
States to suit in federal court” only pursuant to a valid
exercise of Section 5 of the Fourteenth Amendment. Id.
Because Section 5 of the Fourteenth Amendment only permits
Congress to enact legislation enforcing the substantive
guarantees contained in Section 1 of that amendment,
Congress may not abrogate state Eleventh Amendment
immunity “unless Congress' actions were congruent and
proportional in enforcing the constitutional guarantees set
forth in Section 1 [.]” 6 Castells v. Fisher, No. 05 CV
4866(SJ), 2007 WL 1100850, at *3 (E.D.N.Y. Mar.24, 2007)
(citing Garrett, 531 U.S. at 368; City of Boerne v. Flores, 521
U.S. 507, 512, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997)).

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Shipman v. New York State Office of Persons with..., Not Reported in...

In Garrett, the Court found that “States are not required by
the Fourteenth Amendment to make special accommodations
for the disabled, so long as their actions toward such
individuals are rational.” Garrett, 531 U.S. at 367. In
doing so, the Court recognized that States “could quite
hardheadedly—and perhaps hardheartedly—hold to jobqualification requirements which do not make allowance for
the disabled” without violating the Equal Protection Clause
of the Fourteenth Amendment. Id. at 367–68. The Court
further found that the legislative record of the ADA failed
to demonstrate “a pattern of unconstitutional discrimination
on which [Section] 5 legislation must be based,” id. at 370,
and that “the accommodation duty” created by Title I “far
exceeds what is constitutionally required.” Id. at 372. The
Court therefore held that Title I did not validly abrogate the
States' Eleventh Amendment immunity. Id. at 374.
Applying Garrett here, Shipman's ADA claim must be
dismissed to the extent that he seeks money damages or
injunctive relief from the Agency under Title I. See also Fed.
Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 765, 122
S.Ct. 1864, 152 L.Ed.2d 962 (2002) (“[S]overeign immunity
applies regardless of whether a private plaintiff's suit is for
monetary damages or some other type of relief.”); Seminole
Tribe, 517 U.S. at 58 (The Supreme Court has “often made
it clear that the relief sought by a plaintiff suing a State is
irrelevant to the question whether the suit is barred by the
Eleventh Amendment.”).
b. Title II
*7 Apparently cognizant of his inability to bring a
successful Title I claim against the Agency, Shipman seeks
to characterize his claim as having been brought pursuant
to Title II of the ADA. See 42 U.S.C. § 12132 (“Title II”).
Title II provides that “no qualified individual with a disability
shall, by reason of such disability, be excluded from the
participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” Id.
Neither the Supreme Court nor the Second Circuit has decided
whether employment discrimination claims against public
employers can be brought under Title II. See Garrett, 531
U.S. at 360 n. 1 (declining to decide “whether Title II of the
ADA ... is available for claims of employment discrimination
when Title I of the ADA expressly deals with that subject”);
Brown v. Connecticut, 08–CV–1478, 2010 WL 2220580, at
*18 (D.Conn. May 27, 2010) (“[T]he Second Circuit has not
yet decided whether claims of discrimination in employment

are cognizable under Title II of the ADA.”). The circuit courts
that have addressed the issue are split, as are district courts
in this District. Compare Zimmerman v. Or. Dep't of Justice,
170 F.3d 1169, 1173 (9th Cir.1999) (Title II not applicable
to discrimination claims), and Henny, 2012 WL 335732,
at *14 (same), with Bledsoe v. Palm Beach Cnty. Soil &
Water Conservation Dist., 133 F.3d 816, 820 (11th Cir.1998)
(employment discrimination claims may be brought pursuant
to Title II), and Transp. Workers Union of Am., Local 100 v.
N.Y.C. Transit Auth., 342 F.Supp.2d 160, 175 (S.D.N.Y.2004)
(same).
The Court need not resolve whether the availability of Title I
precludes an employment discrimination claim under Title II
because, even if it does not, the same Eleventh Amendment
bar that precludes Shipman's Title I claim also precludes
any employment discrimination claim that might be brought
under Title II.
In Garrett, the Supreme Court chose not to “decide the
constitutional issue whether Title II, which has somewhat
different remedial provisions from Title I, is appropriate
legislation under [Section] 5 of the Fourteenth Amendment.”
531 U.S. at 360 n. 1. Nevertheless, five years later, in United
States v. Georgia, 546 U.S. 151, 126 S.Ct. 877, 163 L.Ed.2d
650 (2006), the Court held that Title II is a valid abrogation
of the States' Eleventh Amendment immunity, “insofar as
Title II creates a private cause of action for damages against
the States for conduct that actually violates the Fourteenth
Amendment.” Id. at 159 (emphasis in original). The Court
declined to decide whether a State is immune to Title II claims
“premised on conduct that does not independently violate the
Fourteenth Amendment,” because

lower courts will be best situated
to determine in the first instance,
on a claim-by-claim basis, (1)
which aspects of the State's alleged
conduct violated Title II; (2) to
what extent such misconduct also
violated the Fourteenth Amendment;
and (3) insofar as such misconduct
violated Title II but did not violate
the Fourteenth Amendment, whether
Congress's purported abrogation of
sovereign immunity as to that class of
conduct is nevertheless valid.

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*8 Id.
Applying those factors here, Shipman's Title II claim is
clearly barred by the Eleventh Amendment. At the outset, the
State conduct that allegedly violated Title II in this case is
the Agency's failure to make a reasonable accommodation for
an employee's disability. As the Court made clear in Garrett,
such conduct does not violate the Fourteenth Amendment,
as long as the State acts rationally. 531 U.S. at 367 (“States
are not required by the Fourteenth Amendment to make
special accommodations for the disabled, so long as their
actions toward such individuals are rational.”). Shipman
contends that the reason the Agency did not grant him an
accommodation was “because his medical records were not
updated and, more importantly, he was stable.” (Am.Compl.¶
6(7)). Assuming that is true, the Agency, at a minimum,
acted rationally by requiring Shipman to prove that he
was disabled before it granted him an accommodation. The
Agency therefore did not violate the Fourteenth Amendment,
even if its conduct amounts to a violation of Title II. See
Castells, 2007 WL 1100850, at *5 (finding no Fourteenth
Amendment violation on similar facts, and noting that
“the ADA's legislative record fails to show that Congress
identified a history and pattern of irrational employment
discrimination by the States against the disabled”).
Turning to the third Georgia factor, even if Congress validly
abrogated the States' immunity with respect to certain Title
II claims “premised on conduct that does not independently
violate the Fourteenth Amendment,” any such abrogation is
clearly inapplicable to employment discrimination claims.
See Garrett, 531 U.S. at 374; see also Castells, 2007
WL 1100850, at *5 (“it is well-settled that government
employment is not a fundamental right”) (citing United Bldg.
& Const. Trades Council v. Camden, 465 U.S. 208, 219, 104
S.Ct. 1020, 79 L.Ed.2d 249 (1984); Mass. Bd. of Retir. v.
Margia, 427 U.S. 307, 313, 96 S.Ct. 2562, 49 L.Ed.2d 520
(1967)).
In sum, the alleged Agency conduct in this case did not
violate the Fourteenth Amendment, and Congress did not
validly abrogate the States' Eleventh Amendment immunity
with respect to such conduct. Shipman's Title II claim against
the Agency therefore must be denied. See Castells, 2007 WL
1100850, at *5 (“Accordingly, specifically where there is
no fundamental right at issue, Title II of the ADA does not
abrogate the States' Eleventh Amendment immunity .”).

c. Title V
Construed liberally, the Amended Complain also alleges
that Blackman and Astacio–Cancel assigned Shipman
unnecessary and redundant work and improperly disciplined
him in retaliation for complaining about discrimination.
(See Am. Compl. ¶¶ 6(3–5); see also Pl.'s Opp'n at 2 (the
Agency “never, ever reprimanded, counseled, or disciplined
[Shipman] for his conduct, work performance, or any
other alleged abuse ... until after he filed a formal ADA
disability discrimination complaint with the United States
Equal Opportunity Commission”) (emphasis in original)).
*9 Title V of the ADA provides that “[n]o person shall
discriminate against any individual because such individual
has opposed any act or practice made unlawful by this
chapter or because such individual made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under this chapter.” 42 U .S.C. §
12203 (“Title V”). Although the Supreme Court and Second
Circuit have not explicitly held that the Eleventh Amendment
bars Title V claims against state agencies, “every district
court in this Circuit to consider the issue has concluded
that sovereign immunity bars Title V claims.” Padilla v.
N.Y.S. Dep't of Labor, No. 09 Civ. 5291(CM)(RLE), 2010
WL 3835182, at *4 (S.D.N.Y. Sept. 13, 2010) (collecting
cases); see also Chiesa v. N.Y.S. Dep't of Labor, 638 F.Supp.2d
316, 323 (N.D.N.Y.2009) (“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.”); Demshki v. Monteith, 255 F.3d 986,
988–89 (9th Cir.2001) (“nothing in the ADA's legislative
findings demonstrat [es] a pattern of discrimination by
states against employees who oppose unlawful employment
discrimination against the disabled,” and “[a]bsent a history
of such evil by the states, Congress may not abrogate the
states' Eleventh Amendment immunity from Title V claims”).
Consequently, to the extent Shipman alleges that the Agency
retaliated against him in violation of Title V, his claim must
be dismissed.
2. ADA Claims Against the Individual Defendants
To the extent Shipman seeks to sue any of the Individual
Defendants for money damages under the ADA, his claims
are barred because individuals cannot be held liable for
money damages under the ADA in either their personal
or official capacities. See Perciballi, 2010 WL 3958731,
at *4; Candelaria v. Cunningham, No. 98 Civ. 6273(LAP),

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6

Shipman v. New York State Office of Persons with..., Not Reported in...

2000 WL 798636, at *2 (S.D.N.Y. June 20, 2000). This
includes retaliation claims brought under Title V. See Spiegel
v. Schulmann, 604 F.3d 72, 79–80 (2d Cir.2010). Shipman's
claims against the Individual Defendants for money damages
therefore must be dismissed.
Certain individual defendants, however, may be held liable
in their official capacity pursuant to Ex parte Young, 209
U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Under the
Ex parte Young exception, the Eleventh Amendment does
not bar “suit against a state official when that suit seeks ...
prospective injunctive relief.” Seminole Tribe, 517 U.S. 44 at
73, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); see also In re
Dairy Mart Convenience Stores, Inc., 411 F.3d 367, 372 (2d
Cir.2005) (“Whether a litigant's claim falls under the Ex parte
Young exception to the Eleventh Amendment's bar against
suing a state is a ‘straightforward inquiry’ that asks ‘whether
[the] complaint alleges an ongoing violation of federal law
and seeks relief properly characterized as prospective.” ’)
(quoting Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535
U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002)).
*10 In the employment context, “claims for reinstatement
to previous employment satisfy the Ex parte Young exception
to the Eleventh Amendment's sovereign immunity bar.” State
Emps. Bargaining Agent, 494 F.3d at 96. Shipman, however,
has failed to allege that either Chmura, Gentile, Lark, or
Schuckle has the authority to reinstate him. Indeed, Shipman
has indicated that he became ineligible for reinstatement
on January 31, 2012. (See Pl.'s Opp'n at 1, 5). When a
plaintiff “fails to allege that any [i]ndividual [d]efendant
has the authority to reinstate him,” his “claim for injunctive
relief against the [i]ndividual [d]efendants cannot proceed.”
Perciballi, 2010 WL 3958731, at *4. Accordingly, Shipman's
claim for injunctive relief against the Individual Defendants
must be dismissed pursuant to Rule 12(b)(6) for failure to
state a claim. Shipman, however, should be permitted to
replead if he complies with Section III.D, infra.
C. Breach of the Duty of Fair Representation
Construing the Amended Complaint liberally, Shipman
appears to allege that PEF breached its duty of fair
representation. (See Am. Compl. ¶ 6(19)). This claim also
must be dismissed on jurisdictional grounds.
“It is well settled that [federal courts] lack subject matter
jurisdiction over duty of fair representation claims brought
by employees of political subdivisions.” Gear v. Dep't of Ed.,
No. 07 Civ. 11102(NRB), 2010 WL 5297850, at *3 (S.D.N.Y.

Dec.21, 2010) (citing Ford v. D.C. 37 Union Local 1549, 579
F.3d 187, 188 (2d Cir.2009) (per curiam ) (holding as such
and noting that “[w]e deem it appropriate to issue a published
opinion and thereby make clear beyond peradventure that this
is the law of our Circuit”)). Consequently, because the Agency
clearly is a political subdivision of the state, the Court lacks
subject matter jurisdiction over Shipman's fair representation
claim against PEF. 7
D. IFP Application
The statute governing IFP applications provides that “the
court shall dismiss the case at any time if the court determines
that ... the allegation of poverty is untrue[.]” 28 U.S.C. §
1915(e)(2)(A). Courts disagree as to whether a case must
be dismissed any time the allegations in the affidavit are
discovered to be untrue, or only if the plaintiff was not
actually impoverished. Compare McRoyal v. Commonwealth
Edison Co., 263 Fed. App'x 500, 502 (7th Cir.2008)
( “Whether the false statements actually result in a grant of
in forma pauperis status or other relief is irrelevant under §
1915(e)(2)(a).”), with Lee v. McDonald's Corp., 231 F.3d 456,
459 (8th Cir.2000) (plaintiff's claim need not be dismissed
unless the court finds that he “is not sufficiently poor to
qualify for in forma pauperis status given the facts that are
true”).
Although Shipman clearly earned income during the twelve
months preceding the filing of this suit, it is unclear whether
he would have qualified for IFP status had his affidavit been
truthful. In any event, assuming that a truthful application
would have been granted, the only claim that Shipman
potentially might have been able to pursue without the
payment of fees would have been a claim for injunctive
relief against the Individual Defendants. Here, because
Shipman has knowingly made false statements on several IFP
applications, including his affidavit in this case, if he wishes to
proceed with that narrow claim, he should be required to pay
(1) the $350 filing fee to the Clerk of the Court and (2) a $112
sanction to reimburse the United States Marshals Service for
the costs incurred in serving the defendants. (See ECF No.
45); see also Moorish Nat'l Republic v. City of Chicago, No.
10 C 1047, 2011 WL 1485574, at *6 (N.D.Ill. Apr.18, 2011)
(requiring, on similar facts, that the plaintiff “disgorge the
benefits of in forma pauperis status” by paying the $350 filing
fee and a $100 sanction for the costs of service).
IV. Conclusion

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Shipman v. New York State Office of Persons with..., Not Reported in...

*11 For the foregoing reasons, PEF's motion to dismiss
Shipman's breach of the duty of fair representation claim
should be granted with prejudice, as well as the State
Defendants' motion to dismiss his ADA claims against
the Agency and his ADA claim for money damages
against the Individual Defendants. Additionally, the State
Defendants' motion to dismiss Shipman's ADA claim against
the Individual Defendants should be denied without prejudice
to the extent he seeks injunctive relief. If Shipman wishes to
proceed with that claim, he should first be required to pay the
Clerk of the Court the sum of $462.
Because all of Shipman's claims are subject to dismissal,
his renewed application for a temporary restraining order or
injunction should also be denied. Further, if the Court adopts
this Report and Recommendation, it may wish to certify,
pursuant to 28 U.S.C. § 1915(a)(3), that in forma pauperis
status is denied for purposes of an appeal because an appeal
would not be taken in good faith.

The parties shall have fourteen days from the service of
this Report and Recommendation to file written objections
pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the
Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a)
and (d). Any such objections shall be filed with the Clerk of
the Court, with courtesy copies delivered to the chambers of
the Honorable George B. Daniels and to the chambers of the
undersigned at the United States Courthouse, 500 Pearl Street,
New York, New York 10007, and to any opposing parties.
See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b).
Any requests for an extension of time for filing objections
must be directed to Judge Daniels. The failure to file these
timely objections will result in a waiver of those objections for
purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466,
88 L.Ed.2d 435 (1985).
SO ORDERED.
All Citations

V. Notice of Procedure for Filing of Objections to this
Report and Recommendation

Not Reported in F.Supp.2d, 2012 WL 897790

Footnotes
1

Shipman's opposition papers consist of three documents, each captioned “Opposition to Motion To Dismiss”
and independently numbered. Although much of the text of each document is identical, there are nonduplicative portions. Accordingly, I will refer to the first document as “Pl.'s Opp'n,” the second as “Pl.'s Opp'n
Ex. A,” and the third as “Pl.'s Opp'n Ex. B.”

2

Section 73 of the Civil Service Law provides in relevant part:
When an employee has been continuously absent from and unable to perform the duties of his position for
one year or more by reason of a disability ... his employment status may be terminated and his position
may be filled by a permanent appointment. Such employee may, within one year after the termination of
such disability, make application ... for a medical examination to be conducted .... If, upon such medical
examination, such medical officer shall certify that such person is physically and mentally fit to perform the
duties of his former position, he shall be reinstated to his former position, if vacant, or to a vacancy in a
similar position ... in his former department or agency.
N.Y. Civ. Serv. Law § 73.

3

In his Amended Complaint, Shipman contends that he asked Odom for the accommodation in “March”—
presumably March 2010. (See Am. Compl. ¶ 6(7)). In his opposition papers, however, Shipman states that
he requested the accommodation on May 24, 2010. (Pl.'s Opp'n at 3).

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8

Shipman v. New York State Office of Persons with..., Not Reported in...

4

Consistent with Section 73 of the New York Civil Service Law, Shipman contends that he only had until
January 31, 2012, (one year after the date he resigned) to request reinstatement to his former position. (Pl.'s
Opp'n at 1, 5).

5

Citing Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), Shipman contends that his
claim cannot be dismissed “unless it appears beyond a doubt that [he] can prove no set of facts ... which
would entitle him to relief.” (Pl.'s Opp'n at 14). In Twombly, however, the Supreme Court cautioned that the
“no set of facts” formulation is “best forgotten as an incomplete, negative gloss on an accepted pleading
standard.” 550 U.S. at 563.

6

Section 1 of the Fourteenth Amendment provides, in relevant part:

“No State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.”

7

In his opposition papers, Shipman objects to the characterization of his claim against PEF as being based
on a breach of the duty of fair representation. (See Pl.'s Opp'n at 13). Instead, Shipman maintains that his
claim against PEF is brought pursuant to the ADA (Id.). Shipman's pleadings, however, merely speculate that
PEF is “acting in concert with [the Agency] in furtherance of an illegal scheme to deny [Shipman] reasonable
accommodation, employment, and aggravate the hardship with which he has been confronted since being
removed from the state payroll.” (Am.Compl.¶ 6(19)). These conclusory allegations are insufficient to state
an ADA claim against PEF. See Fed.R.Civ.P. 12(b)(6).

End of Document

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9

Jones v. U.S., Not Reported in F.Supp.2d (2012)

2012 WL 3704837
Only the Westlaw citation is currently available.
United States District Court,
N.D. Georgia,
Atlanta Division.
Calvin Cecil JONES, Movant,
v.
UNITED STATES of America, Respondent.
Criminal Action No. 1:02–CR–443–CC–LTW–1.
|
Civil Action No. 1:12–CV–2392–CC–LTW.
|
Aug. 27, 2012.
Attorneys and Law Firms
Angela Marie Jordan, U.S. Attorneys, Atlanta, GA, for
Respondent.

ORDER
CLARENCE COOPER, District Judge.
*1 Movant, pro se, filed a motion under 28 U.S.C. §
2255 to vacate his sentence in this case, which the Court
imposed on March 11, 2003. (Doc. 139 in 1:02–cr–443–
CAP–LTW.) Magistrate Judge Walker issued a Report and
Recommendation that the motion be denied under Rule 4 of
the Rules Governing § 2255 Proceedings for the U.S. District
Courts because it is untimely. (Doc. 141 (“R & R”).)
The R & R correctly noted that Movant's conviction became
final on March 25, 2003. (R & R at 5.) Absent the applicability
of one of the alternate starting dates for § 2255's one-year
statute of limitations, Movant had until March 25, 2004 to
file his § 2255 motion. (Id. at 5–6); see 28 U.S.C. § 2255(f).
Movant filed his § 2255 motion on July 3, 2012. (Doc. 139–
1 at 3.)
In his § 2255 motion and his objections to the R & R, Movant
argues that the one-year limitations period did not begin
until the U.S. Court of Appeals for the Fourth Circuit issued
its opinion in United States v. Simmons, 649 F.3d 237 (4th
Cir.2011) (en banc) on August 17, 2011. Movant contends that
the Fourth Circuit ruling is a “fact” for purposes of § 2255(f)
(4), which provides that the limitations period may begin on

“the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of
due diligence.” (Doc. 143); see 28 U.S .C. § 2255(f)(4).
As Judge Walker correctly concluded, a court decision
cannot serve as a “fact” that triggers the limitations period
under § 2255(f)(4). See E.J.R.E. v. United States, 453 F.3d
1094, 1097–98 (8th Cir.2006) (“A decision such as the one
promulgated [by this court] in J.W.T., unlike a predicate
conviction, is a ruling exclusively within the domain of the
courts and is incapable of being proved or disproved.”);
United States v. Hardison, No. 4:11–CV–196–FL, 2011 WL
6780783, at *2 (E.D.N.C. Dec.27, 2011) (holding that “the
Fourth Circuit's decision in Simmons does not constitute a
‘fact supporting [petitioner's] claim’ “ because “[t]o hold
now that appellate court decisions constitute ‘facts' under
§ 2255(f)(4), and therefore could serve as the tolling dates
for § 2255 motions, would render moot § 2255(f)(3)”);
Order, Valdovinos–Busto v. United States, No. 1:03–CR–493–
ODE–7, at *6 (N.D.Ga. Feb. 15, 2011). While there may
be similarities between the facts in the Simmons case and
Movant's case, § 2255(f)(4) applies only to facts in the present
case, i.e., Movant's case. Movant was not a party to Simmons
and has no personal connection to that case. See generally
Simmons. Similar legal issues in Simmons and this case do not
trigger application of § 2255(f)(4), as that provision focuses
solely on factual evidence, not law, supporting a movant's
claims.
The Court disagrees with Movant that this is a “complex
issue” warranting a certificate of appealability. (Doc. 143 at
3.) The U.S. Court of Appeals for the Eleventh Circuit has
rejected an argument, like Movant's, that discovery of new
law or a court opinion separate from the § 2255 movant's case
triggers § 2255(f) (4). See Madaio v. United States, 397 F.
App'x 568 (11th Cir.2010) (claim in § 2255 motion relying on
recent Ninth Circuit decision was untimely). “Since Section
2255(f)(4) is predicated on the date that ‘ facts supporting the
claim’ could have been discovered, the discovery of a new
court legal opinion, as opposed to new factual information
affecting the claim, does not trigger the limitations period.”
Id. at 570. That conclusion is not reasonably debatable given
the text of § 2255(f)(4).
*2 Accordingly, Movant's objections to the R & R [143]
are OVERRULED . The Court ADOPTS the R & R
[141] as the opinion of the Court. Movant's § 2255 motion
[139] is DENIED and Movant is DENIED a certificate of
appealability.

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1

Jones v. U.S., Not Reported in F.Supp.2d (2012)

SO ORDERED.

All Citations
Not Reported in F.Supp.2d, 2012 WL 3704837

End of Document

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2

Brown v. Peters, Not Reported in F.Supp. (1997)

1997 WL 599355
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Kenneth BROWN, Plaintiff,
v.
Andrew PETERS, Warden, Watertown Correctional
Facility; Joseph Williams, Warden, Lincoln Work–
Release Center; Francis J. Herman, Senior Parole
Officer Interstate Bureau; T. Stanford, Senior Parole
Officer; Deborah Stewart, Parole Officer; John Doe #
1, Parole Agent, Watertown Correctional Facility; John
Doe # 2, Parole Agent, Lincoln Work Release Center;
Susan Bishop, Director of Interstate Compact, South
Carolina; Cecil Magee, Parole Officer, South Carolina;
Frank Barton, Parole Officer, South Carolina; John
McMahan, Parole Officer, South Carolina, Defendants.
No. Civ.A. 95CV1641RSPDS.
|
Sept. 22, 1997.
Attorneys and Law Firms
Kenneth Brown, State Court Institute–Greene, Waynesburg,
PA, plaintiff, pro se.
Dennis C. Vacco, New York State Attorney General, The
Capitol Albany, NY, for defendants Peters, Herman Stewart,
Doe # 1, Doe # 2, and Williams, Jeffrey M. Dvorin, Assistant
Attorney General, Carl N. Lundberg, Chief Legal Counsel,
South Carolina Department of Probation, Columbia, SC, for
defendants Bishop, Magee, Barton, McMahan, and Stanford,
Carl N. Lundberg, of Counsel.

DECISION AND ORDER
POOLER, J.
*1 The above matter comes to me following a Report–
Recommendation by Magistrate Judge Daniel Scanlon, Jr.,
duly filed on April 17, 1997. Following ten days from the
service thereof, the Clerk has sent me the entire file, including
any and all objections filed by the parties herein.
Plaintiff Kenneth Brown commenced this Section 1983 civil
rights action on November 17, 1995. On February 12,

1996, Magistrate Judge Scanlon ordered Brown to submit an
amended complaint alleging the specific acts committed by
the individuals named as defendants which Brown claimed
violated his constitutional rights. Brown filed an amended
complaint on March 21, 1996. In his amended complaint,
Brown alleged that defendants violated his rights under the
Eighth and Fourteenth Amendments by failing to process
properly his interstate compact paperwork, resulting in Brown
being imprisoned pursuant to a parole hold when in fact
he had never violated the conditions of his parole. For a
more complete statement of Brown's claims, see his amended
complaint. Dkt. No. 5.
On August 5, 1996, defendants Peters and Williams made
a motion to dismiss for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6). Dkt. No. 13; Dkt. No. 14, at 2. On
August 19, 1996, defendants Bishop, Magee, Barton, and
McMahan made a motion to dismiss the complaint against
them or, in the alternative, for summary judgment. Dkt. No.
20. On October 17, 1996, defendants Herman, Stewart, and
Stanford made a motion to dismiss for failure to state a
claim. Dkt. No 34. On April 17, 1996, Magistrate Judge
Scanlon recommended that all defendants' motions to dismiss
be granted and that the complaint be dismissed. Dkt. No. 50.
On June 9, 1997, Brown filed objections to the
magistrate judge's report-recommendation, having been
granted additional time in which to do so. Dkt. No. 52. In
addition, Brown filed on June 9, 1997, a motion for leave to
file a second amended complaint and a copy of his proposed
amended complaint. Dkt. No. 53. I turn first to the last motion
filed, Brown's motion for leave to amend his complaint a
second time.
Brown seeks to file a second amended complaint “setting
forth in detail the personal involvement of each defendant
and how their acts of commission and omission served to
deprive plaintiff of Constitutionally secured rights.” Dkt. No.
53. The district court has discretion whether to grant leave
to amend. Ruffolo v. Oppenheimer & Co., 987 F.2d 129,
131 (2d Cir.1993). In exercising that discretion, the court
should freely grant leave to amend when justice so requires.
Fed.R.Civ.P. 15(a). However, the court need not grant leave
to amend where it appears that amendment would prove to be
unproductive or futile. Ruffolo, 987 F.2d at 131.
Here, Brown moved to amend his complaint to add additional
allegations against the named defendants. However, the
additional allegations fail to cure the deficiency which

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1

Brown v. Peters, Not Reported in F.Supp. (1997)

forms the basis of defendants' motion to dismiss—
the absence of defendants' personal involvement in a
constitutional deprivation. Section 1983 imposes liability
upon an individual only when personal involvement of that
individual subjects a person to deprivation of a federal right.
See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978). A complaint is fatally defective
if it fails to allege personal involvement sufficient to establish
that a supervisor was “directly and personally responsible for
the purported unlawful conduct.” Alfaro Motors, Inc. v. Ward,
814 F.2d 883, 886 (2d Cir.1987).
*2 Brown's proposed amended complaint alleges in
conclusory fashion that defendants acted “in a grossly
negligent and concerted manner which breached their duties
owed to Plaintiff and is the proximate cause of [the violation
of plaintiff's constitutional rights].” Proposed Am. Compl.,
at 3. Brown continues in the same vein, stating that
defendants owed duties to plaintiff to carry out their jobs in a
professional manner and they failed to carry out those duties
appropriately. The complaint states that defendants held
specific responsibilities, such as checking for outstanding
warrants, which if performed properly should have alerted
them to a problem. However, nowhere does the complaint
set forth allegations that these defendants either participated
directly in any constitutional infraction or that they were even
aware of such an infraction. The proposed amended complaint
merely alleges that these defendants failed in performing their
supervisory and ministerial functions. “These bare assertions
do not state a claim under 42 U.S.C. § 1983.” Smiley v. Davis,
1988 WL 78306, *2 (S.D.N.Y.).
This plaintiff previously has had the opportunity to amend his
complaint for the same reason asserted here, to allege personal
involvement on the part of defendants. Brown's first amended
complaint failed to accomplish that task, and it appears that
even if allowed to amend again Brown would be unable to
make the requisite allegations with sufficient specificity to
sustain his complaint. Consequently, I find that amendment
would be futile, and I deny Brown's motion for leave to amend
his complaint.
I turn now to the magistrate judge's report-recommendation
and defendants' motions. The magistrate judge recommends
that I grant defendants' motions and dismiss the complaint
as to all defendants. The report-recommendation clearly
describes the grounds on which the magistrate judge
recommends dismissal as to each defendant. Fed.R.Civ.P.
72(b) requires the district judge to make a de novo

determination on “any portion of the magistrate's disposition
to which specific, written objection has been made.” Brown's
objections fail to address directly any of the analysis.
Brown's objections state (1) that he has been deprived of
his constitutional rights; (2) that he has stated a cause of
action; (3) that the court wrongly refused to appoint an
attorney for him and wrongly stayed discovery pending the
outcome of these motions; (4) that he seeks to file an amended
complaint; (5) the standard of review for a Fed.R.Civ.P. 12(b)
(6) motion; (6) that he disagrees with the magistrate judge's
recommendation to grant defendants' motions because the
allegations in his complaint, which he repeats, show that his
rights were violated; and (7) the text of the Fourteenth and
Eighth Amendments.
Even affording the objections the liberal reading required
for pro se pleadings, I find that these objections fail to
state any basis whatsoever, much less a specific one, for
the court not to adopt the magistrate judge's rulings. They
simply re-state the relief sought and the facts on which Brown
grounds his complaint and conclude that the magistrate
judge's conclusions are wrong. When the parties make only
frivolous, conclusive, or general objections, the court reviews
the report-recommendation for clear error. See Camardo v.
General Motors Hourly–Rate Employees Pension Plan, 806
F.Supp. 380, 382 (W.D.N.Y.1992) (court need not consider
objections which are frivolous, conclusive, or general and
constitute a rehashing of the same arguments and positions
taken in original pleadings); Chambrier v. Leonardo, 1991
WL 44838, *1 (S.D.N.Y.) (restatement of allegations already
before the court and assertion that valid constitutional claim
exists insufficient to form specific objections); Schoolfield
v. Dep't of Correction, 1994 WL 119740, *2 (S.D.N.Y.)
(objections stating that magistrate judge's decisions are
wrong and unjust, and restating relief sought and facts
upon which complaint grounded, are conclusory and do not
form specific basis for not adopting report-recommendation);
Vargas v. Keane, 1994 WL 693885, *1 (S.D.N.Y.) (general
objection that report does not address violation of petitioner's
constitutional rights is a general plea that report not be
adopted and cannot be treated as objection within the meaning
of 28 U.S.C. § 636), aff'd, 86 F.3d 1273 (2d Cir.), cert.
denied, 519 U.S. 895, 117 S.Ct. 240, 136 L.Ed.2d 169
(U.S.1996). See also Scipio v. Keane, 1997 WL 375601, *1
(1997) (when objections fail to address analysis directly, court
reviews report-recommendation for clear error); Fed.R.Civ.P.
72(b), Advisory Comm. Note (when no specific, written
objections filed, “court need only satisfy itself that there is

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2

Brown v. Peters, Not Reported in F.Supp. (1997)

no clear error on the face of the record in order to accept the
recommendation”).
*3 Because Brown fails to make specific objections or
provide any basis for his general objections, I review the
report-recommendation for clear error. After careful review,
I conclude that the magistrate judge's report-recommendation
is well-reasoned and is not clearly erroneous. 1 The
magistrate judge employed the proper standard, accurately
recited the facts, and reasonably applied the law to those facts.
Consequently, I adopt the report-recommendation.

CONCLUSION
Because plaintiff's proposed amendment demonstrates that
amendment would be futile, I deny plaintiff's motion for leave
to amend his complaint. I approve the magistrate judge's
recommendation and grant defendants' motions to dismiss.
Plaintiff's complaint is dismissed in its entirety.
IT IS SO ORDERED.

ORDER and REPORT–RECOMMENDATION
This matter was referred to the undersigned for report and
recommendation by the Hon. Rosemary S. Pooler, United
States District Judge, by Standing Order dated November
12, 1986. Currently before this Court are a number of
motions. Defendants Peters and Williams have filed a motion
to dismiss (dkt.13); defendants Bishop, Magee, Barton and
McMahan have filed a motion for summary judgment, or in
the alternative to dismiss (dkt.20); and defendants Herman,
Stewart and Stanford also have filed a motion to dismiss
(dkt.34). Plaintiff opposes these three motions (dkts.27, 29,
33, 38). Defendants Bishop, Magee and McMahan have filed
a motion to stay discovery (dkt.41) and plaintiff has filed a
motion to extend time (dkt.44) in which to file opposition to
the latter motion for a stay of discovery.
The Court addresses these issues seriatim.

BACKGROUND
Plaintiff's amended complaint, which he has brought pursuant
to 42 U.S.C. § 1983, alleges the following facts. In

October, 1991, plaintiff was incarcerated in the Watertown
Correctional Facility in Watertown, New York. He applied
for an interstate compact because he wanted to return to
South Carolina to live with his common law wife, Pamela
Reid. During the application process, he was interviewed by
the facility's parole officer, identified only as defendant John
Doe # 1. After signing the necessary papers, his application
was forwarded to defendant Andrew Peters, the facility's
superintendent, who reviewed, signed and forwarded the
papers to the Interstate Bureau. Amend. Compl. at ¶¶ 1–2;
Exs. A, B.
On or about January 15, 1992, while his compact was waiting
for review at the Interstate Bureau, plaintiff was approved for
work release and sent to the Lincoln Work Release Center
in New York City. While at the center, plaintiff spoke to a
parole officer, defendant John Doe # 2, and told him that
he was seeking a compact that would return him to South
Carolina upon his conditional release. Plaintiff claims the
parole officer told him that he would handle the necessary
paperwork, although the officer had had no experience with
an interstate compact. Amend. Compl. at ¶¶ 3, 4.
*4 Plaintiff, meanwhile, asked Reid whether any officials
had contacted her in South Carolina regarding his prospective
residence in that state. Upon discovering no one had contacted
her, plaintiff asked a lawyer he knew, Navron Ponds, to
inquire as to his compact status. In March, 1992, the
lawyer spoke with defendant Susan Bishop, who is the
director of the interstate compact program in South Carolina.
Bishop allegedly told Ponds that plaintiff “was disapproved
because there was a discrepancy about approving plaintiff['s]
compact.” The “discrepancy” was the fact that plaintiff owed
the state of South Carolina eighty-six days of confinement
from a previous sentence. Plaintiff claims Bishop told Ponds
to contact defendants Cecil Magee and Frank Barton, who
worked for the South Carolina Parole Department. Sometime
in March, 1992, Ponds made some calls to Barton and Magee.
A verbal agreement was reached, and plaintiff, upon speaking
with Barton and Magee was told that his compact had been
approved. He also was told that he should report to the South
Carolina Department of Parole upon being released. Amend.
Compl. at ¶¶ 5–7.
Prior to leaving the Lincoln Work Release Center, plaintiff
processed paperwork related to his interstate compact. His
paperwork was sent by Doe # 2 to defendant Joseph Williams,
the superintendent of the center. Williams reviewed, signed
and returned the paperwork to plaintiff. On May 1, 1992,

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3

Brown v. Peters, Not Reported in F.Supp. (1997)

upon his release from the center, plaintiff traveled to South
Carolina. Three days later, he entered a South Carolina parole
office and promptly was arrested because of the eightysix days of confinement that he owed the state. Plaintiff's
paperwork was given to defendant John McMahan, a parole
officer. Plaintiff claims that McMahan never returned this
paperwork to him. On May 20, 1992, the state of South
Carolina revoked plaintiff's parole and plaintiff was returned
to prison to serve the eighty-six days that he owed. When he
asked McMahan what would happen to his one year of parole
from New York, the officer allegedly told him that his New
York parole would run concurrently with his South Carolina
parole, and that when he finished his South Carolina parole,
he would not owe any parole whatsoever. Plaintiff served the
eighty-six days he owed and was released on July 31, 1992.
Amend. Compl. at ¶¶ 8–10.
In February, 1993, plaintiff was arrested on robbery charges
in South Carolina. The charges ultimately were dropped,
but he apparently encountered some difficulties regarding
this arrest as a result of a parole hold that New York state
had placed upon him. Bishop's office told him that it had
nothing to do with his parole hold and that any problem that
he had was between him and the state of New York. He
talked to authorities in Albany, New York regarding the parole
hold, but was not successful in his efforts to have the hold
removed. On September 30, 1993, after had been extradited
to New York as a fugitive from justice, plaintiff was given a
preliminary hearing at Riker's Island, New York. The hearing
officer found no probable cause that plaintiff had violated any
condition of parole. He was released. Amend. Compl. at ¶¶
11–14; Exs. C–J.
*5 Plaintiff claims that he would not have suffered hardships
if his interstate compact had been handled correctly. He
alleges that defendant Deborah Stewart failed to follow up
and see whether plaintiff had arrived in South Carolina. If she
had, he argues, she would have discovered that he had been
arrested upon his arrival. He alleges that defendant Francis
Herman, a parole officer at the Interstate Bureau failed to
do his job by not investigating plaintiff's violation reports.
Amend. Compl. at ¶¶ 15–17; Exs. F–I.
Plaintiff asserts that the foregoing amounts violations of his
Eighth and Fourteenth Amendment rights, wherefore he both
compensatory and declaratory relief.

DISCUSSION
A. Motion to Dismiss by Williams and Peters.
Williams and Peters have filed a motion to dismiss plaintiff's
complaint pursuant to FED.R.CIV.P. 12(b)(6) on the grounds
that it fails to state a claim upon which relief may be
granted. In a Rule 12(b)(6) motion, all factual allegations
in the complaint must be taken and construed in plaintiff's
favor. See LaBounty v. Adler, 933 F.2d 121, 122 (2d
Cir.1991) (citing Ortiz v. Cornette, 867 F.2d 146, 149 (1989)).
The Court's role is not to assess whether plaintiffs have
raised questions of fact or demonstrated an entitlement
to a judgment as a matter of law, as in a motion made
pursuant to FED.R.CIV.P. 56 for summary judgment, but
rather to determine whether plaintiff's complaint sufficiently
alleges all of the necessary legal elements to state a claim
under the law. See Christopher v. Laidlaw Transit, Inc.
899 F.Supp. 1224, 1226 (S.D.N.Y.1995), (citing Ricciuti v.
New York City Transit Authority, 941 F.2d 119, 124 (2d
Cir.1991)). Factual allegations in brief or memoranda may not
be considered. Fonte v. Board of Managers of Continental
Towers Condominium, 848 F.2d 24, 25 (2d Cir.1988). The
Court now turns to the issues presented.
Personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under
§ 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994).
As superintendents at New York State Correctional facilities,
Williams and Peter may be found personally involved in the
alleged deprivation of plaintiff's constitutionally protected
rights by a showing that they: (1) directly participated in the
infraction; (2) knew of the infraction, but failed to remedy
the wrong; (3) created or continued a policy or custom under
which unconstitutional practices occurred; or (4) were grossly
negligent in managing subordinates who caused unlawful
conditions or events. Id., (quoting Williams v. Smith, 781
F.2d 319, 323–24 (2d Cir.1986)). Supervisory liability also
may be imposed against Williams or Peters with a showing
of gross negligence or deliberate indifference to plaintiff's
constitutional rights. Id. Absent some personal involvement
by Williams or Peters in the allegedly constitutionally infirm
conduct of their subordinates, neither can be held liable under
§ 1983. Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.1987).
*6 Plaintiff has not provided any evidence linking either
Williams or Peters to his alleged constitutional deprivations.
All that plaintiff has alleged is that Williams and Peters,
as superintendents, have reviewed and signed paperwork

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4

Brown v. Peters, Not Reported in F.Supp. (1997)

relating to plaintiff's compact. Though it has long been held
that pro se complaints are held to “less stringent standards
than formal pleadings drafted by lawyers” for the purpose of a
motion to dismiss under Rule 12(b)(6), Haines v. Kerner, 404
U.S. 519, 520, 92 S.Ct. 594, 595–96, 30 L.Ed.2d 652 (1972),
plaintiff has not explained how the ministerial conduct of
these two defendants was violative of the Constitution. Their
motion to dimiss should be granted.
B. Motion for Summary Judgment or to Dismiss by Bishop,
Magee, Barton and McMahan.
Bishop, Magee, Barton and McMahan have filed a motion
for summary judgment, or in the alternative a motion to
dismiss. The Court will treat their motion as a motion to
dismiss. “[C]omplaints relying on the civil rights statutes are
insufficient unless they contain some specific allegations of
fact indicating a deprivation of rights, instead of a litany
of general conclusions that shock but have no meaning.”
Barr v. Adams, 810 F.2d 358, 363 (2d Cir.1987). Plaintiff
has not alleged specifically how the conduct of these four
defendants infringed upon his constitutional rights. In his
amended complaint, he contends that defendants violated the
Constitution by “continuously breaching [[[their] duty” to
him. This language underscores the defect with the complaint:
if it alleges anything at all, it alleges that defendants were
negligent in handling plaintiff's interstate compact and parole.
To state a cognizable § 1983 claim, the prisoner must allege
actions or omissions sufficient to demonstrate deliberate
indifference; mere negligence will not suffice. Hayes v.
New York City Dept. of Corrections, 84 F.3d 614, 620 (2d
Cir.1996); Morales v. New York State Dep't of Corrections,
842 F.2d 27, 30 (2d Cir.1988) (section 1983 does not
encompass a cause of action sounding in negligence).
The Court finds that the claims against Bishop, Magee, Barton
and McMahan should be dismissed.
C. Motion to Dismiss by Herman, Stewart and Stanford.
Plaintiff's claim against Stewart is that she failed to follow
up and see whether plaintiff had arrived in South Carolina.
Herman, he likewise asserts, failed to do his job because he
did not investigate plaintiff's violation reports. Plaintiff has
not alleged how these actions run afoul of the Constitution;
and again, these claims seem to be grounded in negligence,
which is not actionable under § 1983. Hayes, 84 F.3d at 620.

defendant. Aside from naming Stanford as a defendant, and
alleging that he was the appointed Senior Parole Officer at
plaintiff's September 30, 1993 revocation hearing at Riker's
Island, plaintiff does not detail how Stanford violated his
constitutional rights. Absent some personal involvement by
Stanford in the allegedly constitutionally infirm conduct of
his subordinates, he cannot be held liable under § 1983. Gill,
824 F.2d at 196.
*7 Accordingly, the Court finds that Stanford, Stewart and
Herman's motion to dismiss should be granted.
D. Plaintiff's “John Doe” Claims.
In so far as neither John Doe # 1 nor John Doe # 2 have been
identified and served in this matter, the Court does not have
jurisdiction over these parties and does not reach the merits
of plaintiff's claims against them.
E. Discovery Motions.
Defendants Bishop, Magee and McMahan have filed a motion
to stay discovery until the Court has made a ruling on their
motion to dismiss. Plaintiff has filed a motion to extend
the time in which he may file opposition to defendants'
motion. Plaintiff, however, has filed his opposing response
(dkt.47), therefore his instant discovery motion is denied as
moot. In that the Court recommends granting defendants'
motion to dismiss, discovery in this matter would be fruitless.
Accordingly, defendants' motion for a stay of discovery
pending the resolution of their motion to dismiss is granted.

CONCLUSION
WHEREFORE, based upon the foregoing analysis, it is
hereby
ORDERED, that plaintiff's motion to extend the time to file
an opposing reply (dkt.44) is denied as moot; and it is further
ORDERED, that defendants Bishop, Magee and McMahan's
motion to stay discovery until their motion to dismiss is
decided (dkt.41) is granted; and it is further
RECOMMENDED, that defendants Peters and Williams'
motion to dismiss (dkt.13) be granted; and it is further

Plaintiff's claim against Stanford must fail because his
complaint literally fails to state a claim against that

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5

Brown v. Peters, Not Reported in F.Supp. (1997)

RECOMMENDED, that defendants Bishop, Magee, Barton
and McMahan's motion to dismiss (dkt.20) be granted; and it
is further
RECOMMENDED, that defendants Herman, Stewart and
Stanford's motion to dismiss (dkt.34) be granted.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),
the parties have ten (10) days within which to file written
objections to the foregoing report. Such objections shall be

filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN TEN (10) DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Secretary of
Health and Human Services, 892 F.2d 15 (2d Cir.1989)); 28
U.S.C. § 636(b)(1); FED.R.CIV.P. 6(a), 6(e) and 72.
All Citations
Not Reported in F.Supp., 1997 WL 599355

Footnotes
1

I note, however, that the report-recommendation would survive even de novo review.

End of Document

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6

Pourzancvakil v. Humphry, Not Reported in F.Supp. (1995)

1995 WL 316935
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Mina POURZANDVAKIL, Plaintiff,
v.
Hubert HUMPHRY, Judisicial Systeam of The State of
Minnesota and Olmested County Court Systeam, and
State of Minnesota, Saint Peter State Hospital, Doctor
Gammel Stephelton, et el Erickson, North West Bank
and Trust, Olmested County Social Service, J.C. Penny
Insurnce, Metmore Finicial, Traveler Insurnce, Comecial
Union Insurnce, Hirman Insurnce, Amrican State
Insurnce, Farmers Insurnce, C. O Brown Insurnce, Msi
Insurnce, Steven Youngquist, Kent Chirstain, Micheal
Benson, United Airline, Kowate Airline, Fordmotor
Cridite, First Bank Rochester, George Restwich,
British Airways, Western Union, Prudenial Insurnce,
T.C.F. Bank, Judge Sandy Kieth, Judge Niergari,
Olmestead County Judgering, Judge Mores, Judge
Jacobson, Judge Challien, Judge Collin, Judge Thomase,
Judge Buttler, Judge Morke, Judge Moweer, Sera
Clayton, Susan Mudhaul, Ray Schmite, Defendants. 1
Civ. A. No. 94-CV-1594.
|
May 23, 1995.

Arthur, Chapman, McDonough, Kettering & Smetak, P.A.,
Minneapolis, MN, Eugene C. Shermoen, Jr., of counsel, for
J.C. Penney Ins. Co. and Metropolitan Ins. Co.
Shapiro & Kreisman, Rochester, NY, John A. DiCaro, of
counsel, for Metmor Financial, Inc.
Costello, Cooney & Fearon, Syracuse, Paul G. Ferrara, Robert
J. Smith, of counsel, for Travelers Ins. Companies; Hirman
Ins.; Commercial Union Ins. Companies.
Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse, Thomas
N. Kaufmann, of counsel, for American States Ins. Co. and
Prudential Ins. Co.
Steven C. Youngquist, Rochester, MN, pro se.
Thomas J. Maroney, U. S. Atty., Syracuse, NY, William F.
Larkin, Asst. U. S. Atty., of counsel, for Michael Benson,
Postmaster N. D. of New York.
George F. Restovich & Associates, Rochester, MN, George F.
Restovich, of counsel, for George F. Restovich.
Conboy, McKay, Bachman & Kendall, L.L.P, Watertown, NY,
George K. Myrus, of counsel, for Western Union.
Richard Maki, Rochester, MN, pro se.

MEMORANDUM-DECISION AND ORDER
POOLER, District Judge.

Attorneys and Law Firms
Hubert H. Humphrey, III, Atty. Gen. of the State of Minn.,
St. Paul, MN, Jerome L. Getz, Asst. Atty. Gen., of counsel,
for Hubert H. Humphry, III, Judicial System of the State
of Minnesota, St. Peter Regional Treatment Center, Gerald
Gammell, MD, William Erickson, MD, Thomas Stapleton,
MD, the Honorable James L. Mork, Chief Judge Anne
Simonett, Judge Jack Davies, Judge Roger Klaphke, Judge
Dennis Challeen, and Judge Lawrence Collins.
Condon & Forsyth, P.C., New York City, Stephen J. Fearon,
Michael J. Holland, of counsel, for British Airways, P.L.C.
and Kuwait Airways Corp.
Dunlap & Seeger, P.C., Rochester, MN, Gregory J. Griffiths,
of counsel, for Olmsted County, Raymond Schmitz, Susan
Mundahl, Norwest Bank Minnesota, N.A. (the Northwest
Bank & Trust), C.O. Brown Agency, Inc.

INTRODUCTION
*1 In the four and one-half months since she filed this
action, plaintiff Mina Pourzandvakil has filed three amended
complaints and ten motions. She also has sought and received
entry of default against ten defendants, none of whom she
properly served. She twice has sought and been denied
temporary restraining orders. She has included in her action
defendants with no apparent connection to this forum, that
were vindicated in actions she brought in other forums.
In response, several individual defendants and groups of
defendants have filed a total of twelve motions, some seeking
vacation of the defaults entered against them, some seeking
dismissal and others seeking both. We grant defendants'
motions insofar as they seek vacation of the clerk's entries of
default and dismissal of the complaint. We vacate sua sponte

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1

Pourzancvakil v. Humphry, Not Reported in F.Supp. (1995)

the entries of default against the non-moving defendants.
Finally, we dismiss the complaint in its entirety against all
defendants.

easy summarization and will be addressed only insofar as they
are relevant to the various motions.
*2 The Clerk of the Court has entered default against

BACKGROUND
Pourzandvakil commenced this action by filing a complaint
in the Office of the Clerk on December 9, 1994 (Docket No.
1). The complaint named as defendants the Attorney General
of the State of Minnesota, the State of Minnesota and Olmsted
County, Minnesota judicial systems, various Minnesota
judges and prosecutors, St. Peter State Hospital in Minnesota
and various doctors who worked at St. Peter's. Without
specifying the time or defendant involved, the complaint
accused the defendants of kidnapping Pourzandvakil and her
daughter, torturing Pourzandvakil in the Mayo Clinic since
April 1985, and causing Pourzandvakil and her daughter to
suffer physically, financially and emotionally. Pourzandvakil
twice requested that we issue a temporary restraining order.
We denied both requests. See Order entered December 14,
1994 (Docket No. 4) and Memorandum-Decision and Order
entered December 22, 1994 (Docket No. 6).
On December 27, 1994, Pourzandvakil filed an amended
complaint (the “first amended complaint”) (Docket No.
7) that appears to differ from the original complaint
by adding British Airways as a defendant without
making any allegations against British Airways. The first
amended complaint also differs by requesting additional
damages for prior cases and adding descriptions of several
previous cases. Annexed to the first amended complaint
is another document labeled amended complaint (the
“annexed amended complaint”) (Docket No. 7) whose
factual allegations differ substantially from both the original
complaint and the first amended complaint. The annexed
amended complaint also adds British Airways as a party
but specifies only that Pourzandvakil has travelled on that
airline and that British Airways, along with other airlines on
which Pourzandvakil has travelled, is aware of all the crimes
committed against her.
Pourzandvakil filed yet another amended complaint on
January 13, 1995 (the “second amended complaint”)
(Docket No. 11). The second amended complaint adds
as defendants several banks, other financial institutions,
insurance companies, insurance agents or brokers, attorneys
and airlines as well as the Postmaster of Olmsted County and
Western Union. The allegations against these defendants defy

the following defendants: J.C. Penny Insurnce (sic) 2 (“J.C.
Penney”), British Airways, Kowate (sic) Airline (“Kuwait”),
MSi Insurnce (sic) (“MSI”), Judge Mork, Steven Youngquist
(“Youngquist”), Prudncial Insurnce (sic) (“Prudential”), Ford
Motor Credit (“Ford”), First Bank Rochester, and TCF Bank
(“TCF”). Based on the submissions Pourzandvakil made in
support of her requests for entry of default, it appears that she
served these defendants by certified mail.
The court has received answers from the following
defendants: Hubert H. Humphrey III, St. Peter Regional
Treatment Center, and Drs. Gerald H. Gammell, William
D. Erickson, and Thomas R. Stapleton (joint answer
filed January 9, 1995); Olmsted County, Ray Schmitz
(“Schmitz”), Susan Mundahl (“Mundahl”), C.O. Brown
Agency, Inc. (“C.O. Brown”) (answer to amended complaint
filed January 23, 1995); George Restovich (“Restovich”)
(answer to complaint or amended complaint filed January
30, 1995); Norwest Corporation (“Norwest”) (answer to
amended complaint filed January 31, 1995, amended
answer of Norwest Bank Minnesota, N.A. to amended
complaint filed February 13, 1995); Travelers Insurance
Company (“Travelers”) (answer filed February 1, 1995);
Michael Benson (“Benson”) (answer filed February 6, 1995);
Hirman Insurance (“Hirman”) (answer filed February 6,
1995); Richard Maki (“Maki”) (answer to complaint or
amended complaint filed February 17, 1995); Western Union
(answer filed February 21, 1995); Steven C. Youngquist
(“Youngquist”) (answer to complaint or amended complaint
filed February 23, 1995); Kuwait (answer filed March 6,
1995); J.C. Penney (answer filed March 22, 1995); Susan
E. Cooper 3 (answer to amended complaint filed March 24,
1995); and Chief Judge Anne Simonett, Judge Jack Davies,
Judge Roger Klaphke, Judge Dennis Challeen and Judge
Lawrence Collins (joint answer filed April 3, 1995).
The court has also received a total of ten motions from
Pourzandvakil since February 27, 1995. She moved for a
default judgment against defendants J.C. Penney, First Bank
Rochester, Prudential, Ford, MSI, British Airways, and TCF.
She moved for immediate trial and “venue in a different
place” against several defendants and also requested action
according to law and criminal charges. Finally, she made
motions opposing defendants' motions.

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2

Pourzancvakil v. Humphry, Not Reported in F.Supp. (1995)

The court also has received a total of thirteen motions 4
from defendants. Several of the defendants moved for
dismissal either under Rule 56 or Rule 12 of the Federal
Rules of Civil Procedure. For instance, Commercial Union
Insurance Companies (“Commercial”) moved for dismissal
of Pourzandvakil's complaint pursuant to Fed. R. Civ. P.
12(b) or, in the alternative, for a more definite statement.
Commercial argued that Pourzandvakil's complaint against
it is barred by res judicata and collateral estoppel and that
this court does not have subject matter jurisdiction over the
complaints against Commercial. American States Insurance
Company (“ASI”) moved for dismissal based on plaintiff's
failure to state a claim upon which relief can be granted.
ASI further moved for an order enjoining Pourzandvakil
from further litigation against it. Maki moved for summary
judgment based on lack of personal jurisdiction, improper
venue, plaintiff's failure to state a claim upon which relief can
be granted, and lack of subject matter jurisdiction. Hubert H.
Humphrey, III, the Judicial System of the State of Minnesota,
Judge James L. Mork, St. Peter Regional Treatment Center
and Drs. Gammell, Erickson and Stapleton (collectively, the
“state defendants”) moved for summary judgment alleging
lack of personal jurisdiction, improper venue, plaintiff's
failure to state a claim on which relief can be granted,
lack of subject matter jurisdiction, sovereign immunity, and,
on behalf of Judge Mork and the judicial system, absolute
judicial immunity. The state defendants also requested costs
and attorney's fees. Travelers moved for summary judgment
based on res judicata and/or collateral estoppel, frivolity, lack
of subject matter jurisdiction, and improper venue. Travelers
sought a transfer of venue to Minnesota in the alternative.
Hirman moved for summary judgment based on frivolity, lack
of subject matter jurisdiction, and improper venue. Hirman
also sought transfer of venue in the alternative. Olmsted
County, Schmitz, Mundahl, C.O. Brown and Norwest sought
dismissal based on lack of personal jurisdiction, improper
venue, and plaintiff's failure to state a claim upon which
relief can be granted. With respect to Schmitz and Mundahl,
defendants sought dismissal based on absolute prosecutorial
immunity, and with respect to C.O. Brown, defendants sought
dismissal on res judicata grounds. Metmor Financial, Inc.
(“Metmor”) sought dismissal based on lack of personal
jurisdiction, lack of subject matter jurisdiction, improper
venue, and plaintiff's failure to state a claim upon which relief
can be granted. Finally, Restovich moved for dismissal based
on lack of personal jurisdiction. 5
*3 Four defendants, British Airways, Kuwait, Prudential,
and Youngquist, sought vacatur of the defaults entered against

them. Prudential coupled its request with a request for an
order enjoining plaintiff from filing or intervening in any
litigation against it. Youngquist also requested dismissal of
the complaint based on lack of personal jurisdiction and lack
of subject matter jurisdiction.

ANALYSIS
The Defaults
We vacate the defaults entered in this matter because plaintiff
improperly served defendants. Each application for entry of
default shows service by certified mail, which is not permitted
by relevant federal, New York or Minnesota rules. Under the
Federal Rules of Civil Procedure, service on an individual
may be made by (1) delivery to the named defendant; or
(2) delivery to a person of suitable age and discretion at the
defendant's dwelling house or usual place of abode; or (3)
delivery to an agent authorized by law or by the defendant
to receive service of process. Fed. R. Civ. P. 4(e)(2). Service
on an individual also can be accomplished through a method
authorized by the state in which the district court sits or in
which the individual is located. Fed. R. Civ. P. 4(e)(1). Service
on a corporation may be accomplished in a judicial district
of the United States (1) pursuant to a method authorized by
the law of the state in which the court sits or in which the
corporation is located; or (2) by delivering a copy of the
summons and complaint to an officer, managing or general
agent, or to any other agent authorized by statute to receive
service and, if the statute so requires, by also mailing a copy to
the defendant. Fed. R. Civ. P. 4(h)(1) and 4(e)(1). Neither New
York nor Minnesota law authorizes personal service on an
individual or corporation by certified mail. See N.Y. Civ. Prac.
L. & R. §§ 308, 311 (McKinney Supp. 1995); N.Y. Bus. Corp.
Law § 306 (McKinney Supp. 1995); Minn. Stat. § 543.08
(1995); Minn. R. 4.03 (1995). Finally, service on states,
municipal corporations or other governmental organizations
subject to suit can be effected by (1) delivering a copy of the
summons and complaint to the state's chief executive officer;
or (2) pursuant to the law of the state in which the defendant
is located. Fed. R. Civ. P. 4(j)(2). Minnesota law does not
authorize service on a governmental entity by certified mail.
See Minn. R. 4.03(d) and (e) (1995).
We therefore grant the motions by British Airways,
Prudential, Kuwait, and Youngquist to vacate the defaults
entered against them based both on the defective service and
also on the meritorious defenses discussed below. We vacate
sua sponte the entries of default against MSI, Ford, First Bank

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3

Pourzancvakil v. Humphry, Not Reported in F.Supp. (1995)

Rochester and TCF, all of whom were served improperly
and preserved the service issue by raising it or declining to
waive it. Concomitantly, we deny Pourzandvakil's motion
for a default judgment against J.C. Penney, First Bank
Rochester, Prudential, Ford, MSI, British Airways and TCF.
We vacate sua sponte the entry of default against J. C.
Penney, which preserved the issue of service in its answer.
By moving to dismiss or for summary judgment without
raising the issue of service, Judge Mork may have waived
the service issue. However Judge Mork objected to personal
jurisdiction as inconsistent with due process and otherwise
presented meritorious defenses. We therefore treat his motion
for summary judgment as including a motion to vacate the
entry of default and accordingly grant it.
II. The Jurisdictional Arguments
*4 In addition to raising various other grounds for dismissal,
such as plaintiff's failure to state a claim on which relief can be
granted and res judicata, most of the moving defendants urge
(1) that this court lacks jurisdiction over either their persons
or the subject matter of the controversy or (2) that this action
is improperly venued. As we must, we examine jurisdiction
and venue first.
A. Personal Jurisdiction
Maki, the state defendants, Olmsted County, Schmitz,
Mundahl, C.O. Brown, Norwest, Metmor, Restovich and
Youngquist each allege that this court cannot exercise
personal jurisdiction over them consistent with due process
constraints. In support of their motions, these defendants
present affidavits showing that they have had no significant
contacts with the state of New York relevant to this lawsuit
and that their contacts with Pourzandvakil all occurred in
Minnesota. Nothing in plaintiff's voluminous submissions
links any of these defendants with New York. Plaintiff's
extraterritorial service of process can be effective only
under any of the following circumstances: (1) if defendants
could be subjected to the jurisdiction of a court of general
jurisdiction in New York State; (2) if the defendant is subject
to federal interpleader jurisdiction; (3) if the defendant is
joined pursuant to Rule 14 or Rule 19 of the Federal Rules
of Civil Procedure and is served within a judicial district
of the United States and not more than 100 miles from the
place from which the summons issues; (4) if a federal statute
provides for long-arm jurisdiction; or (5) if plaintiff's claims
arise under federal law and the defendants could not be
subject to jurisdiction in the courts of general jurisdiction in
any state of the United States. Fed. R. Civ. P. 4(k). Defendants

are not subject to federal interpleader jurisdiction and they
were not joined pursuant to Rule 14 or Rule 19. In addition, no
federal long-arm statute is argued as a basis for jurisdiction,
and the moving defendants all would be subject to jurisdiction
in Minnesota. Therefore, we must look to New York's longarm statute to determine whether plaintiff's extraterritorial
service of process could be effective under the one ground
remaining pursuant to Rule 4(k). See N.Y. Civ. Prac. L. &
R. § 302 (McKinney Supp. 1995). This rule provides that
in order to obtain jurisdiction over a non-domiciliary, the
plaintiff must show both certain minimal contacts between
the defendant and the state (such as transacting any business
in the state) and that the harm plaintiff suffered springs
from the act or presence constituting the requisite contact.
Id. §302(a). The moving defendants have demonstrated that
plaintiff does not claim harm stemming from acts or contacts
within the purview of Section 302(a). Therefore, we grant
these defendants' motions to dismiss the complaint for lack of
personal jurisdiction.
B. Subject Matter Jurisdiction
Pourzandvakil's complaint does not contain the jurisdictional
allegations required by Fed. R. Civ. P. 8(a)(1). Several
defendants move for dismissal based either on this pleading
defect or on an affirmative claim that no subject matter
jurisdiction exists. Commercial, Travelers and Hirman
(collectively, the “moving insurance companies”) moved for
dismissal because plaintiff has not pled the complete diversity
of citizenship required for subject matter jurisdiction. The
state defendants, relying on District of Columbia Court
of Appeals v. Feldman, argue that we lack subject matter
jurisdiction over any issue that was determined in a
state court proceeding to which plaintiff was a party.
District of Columbia Court of Appeals v. Feldman, 460
U.S. 462, 482 (1983). These issues include plaintiff's
hospitalization at St. Peter Regional Treatment Center.
Finally, Metmor also moved for dismissal based on lack of
subject matter jurisdiction because plaintiff has failed to plead
a jurisdictional basis.
*5 The moving insurance companies note correctly that
insofar as the claims against them can be deciphered, plaintiff
states that Traveler's and Commercial did not pay for damages
to Pourzandvakil's property, harassed her and cancelled
her policy. Pourzandvakil does not mention Hirman in her
complaint, but Hirman's attorney states that Pourzandvakil
informed him in a telephone conversation that her complaint
against Hirman stemmed from actions it took as an agent of

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Pourzancvakil v. Humphry, Not Reported in F.Supp. (1995)

Travelers in denying Pourzandvakil's 1985 property damage
claim.
The moving insurance companies argue that this court has
no jurisdiction over the state insurance law claims absent
complete diversity of citizenship between plaintiff and the
defendants. 28 U.S.C. § 1332. They point out that plaintiff
lists a Syracuse, New York address for herself and that
Kuwait's address as listed in the complaint is also in New
York. Therefore, they argue, there is no complete diversity
and this court lacks subject matter jurisdiction absent a
basis for pendent jurisdiction under 28 U.S.C. § 1367(a).
Section 1367(a) requires a relationship between the state
and federal claims so that “they form part of the same case
or controversy.” Id. Because plaintiff's claims of denial of
insurance coverage bear no apparent relationship to her other
claims of rape, torture, harassment and kidnapping, we do not
believe that an adequate basis for supplemental jurisdiction
exists. Id. Plaintiff's complaint therefore shows no basis
for subject matter jurisdiction against the moving insurance
companies, and we dismiss as against them. 6
We also agree with the state defendants that state court
decisions may render certain of plaintiff's claims against them
unreviewable either because of res judicata or lack of subject
matter jurisdiction. However, because plaintiff's claims are so
generally stated and so lacking in specifics, we are unable to
discern at this juncture what parts of her complaint would be
outside the jurisdiction of the court. In any case, we already
have determined that the state defendants are clearly entitled
to dismissal on personal jurisdiction grounds. As for Metmor,
we believe that plaintiff may be attempting to state a civil
rights claim by alleging a conspiracy to murder in connection
with a judge although she fails to articulate an actionable
claim. We note that we already have determined, in any case,
that Metmor is entitled to dismissal on personal jurisdiction
grounds.
C. Venue
Metmor, Travelers, Maki, Hirman, Norwest, Olmsted County,
C.O. Brown, Schmitz and Mundahl also allege that
Pourzandvakil's action is not properly venued in this court.
Although these defendants are entitled to dismissal on
independent grounds, improper venue also would support
dismissal as to these defendants. The general venue statute
provides that a diversity action, except as otherwise provided
by law, may be brought only in

(1) a judicial district where any
defendant resides, if all defendants
reside in the same State, (2) a judicial
district in which a substantial part of
the events or omissions giving rise to
the claim occurred, or a substantial
part of property that is the subject of
the action is situated, or (3) a judicial
district in which the defendants are
subject to personal jurisdiction at the
time the action is commenced, if there
is no district in which the action may
otherwise be brought.

*6 28 U.S.C. § 1391(a). Section 1391(b) provides that
federal question actions, except as otherwise provided by law,
may be brought only in

(1) a judicial district where any
defendant resides, if all defendants
reside in the same State, (2) a judicial
district in which a substantial part of
the events or omissions giving rise to
the claim occurred, or a substantial
part of property that is the subject of
the action is situated, or (3) a judicial
district in which any defendant may be
found, if there is no district in which
the action may otherwise be brought.

Id. § 1391(b). The majority of the defendants in this
action are residents of Minnesota and all of the events of
which Pourzandvakil complains occurred in Minnesota. No
defendant resides in the Northern District of New York, and
none of the conduct plaintiff complains of occurred in this
district. Therefore, venue in the Northern District of New
York is clearly improper. Where venue is laid in the wrong
district, the court “shall dismiss, or if it be in the interest of
justice, transfer such case to any district or division in which
it could have been brought.” Id. § 1406(a). Because, as we
will explain below, Pourzandvakil's complaint not only fails
to state a claim upon which relief can be granted but is also
frivolous, we do not deem it to be in the interest of justice to
transfer this case to another district. The purpose of the court's

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Pourzancvakil v. Humphry, Not Reported in F.Supp. (1995)

discretionary authority to transfer rather than dismiss in cases
of improperly laid venue is “to eliminate impediments to the
timely disposition of cases and controversies on their merits.”
Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993)
(holding that it was an improper exercise of discretion to
dismiss rather than transfer when the statute of limitations on
a timely filed complaint ran between filing and dismissal). In
this case, as discussed below, a review of the complaint and
the plaintiff's submissions on these motions indicates that her
claims are frivolous. We therefore dismiss as to the moving
defendants both on venue grounds and on the other grounds
already identified as applicable. We note also that plaintiff
has made claims similar to those in this action against many
of the same defendants in the United States District Court
for the District of Minnesota. Pourzandvakil v. Price, Civ.
No. 4-93-207 (D.Minn. 1993). This action was dismissed by
Order to Show Cause entered April 12, 1993.
III. Failure to State a Claim on Which Relief Can be
Granted and Frivolity
Defendants ASI, Travelers, Hirman, Norwest, C.O. Brown,
Olmsted County, Schmitz, Mundahl, Prudential, Metmor, and
Youngquist as well as the state defendants have attacked the
sufficiency of plaintiff's complaint. Travelers and Hirman
urge that the complaint is frivolous while the remaining
defendants argue only that the complaint fails to state a
claim upon which relief can be granted. Fed. R. Civ. P. 12(b)
(6). 7 We already have dismissed against all the moving
parties except ASI on jurisdictional grounds and therefore
have the power to address the Rule 12(b)(6) issue only on
ASI's motion. See Bell v. Hood, 327 U.S. 678, 682-83 (1946)
(subject matter jurisdiction); Arrowsmith v. United Press Int'l,
320 F.2d 219, 221 (2d Cir. 1963) (personal jurisdiction).
We grant ASI's motion and note in passing that were we
empowered to reach the merits regarding the remaining
moving defendants, we also would dismiss the complaint
against them for failure to state a claim upon which relief
can be granted. We also dismiss sua sponte as frivolous the
complaint against all defendants who have not been granted
dismissal previously on jurisdictional grounds.
*7 Pourzandvakil has not specified a statutory or
constitutional basis for her claims against ASI or any of the
other defendants. She alleges that certain of the insurance
company defendants denied her claims for damages without
alleging that the denial was in any respect wrongful. She
also alleges in general terms that the defendants harassed,
tortured, kidnapped and raped her and perhaps were involved

in a murder plot but does not supply (1) the dates on which
these actions occurred, except to say that they began in 1984
and 1985; (2) the names of the specific defendants involved in
any particular conduct; or (3) a description of any particular
conduct constituting the harassment, torture or kidnapping.
She suggests without further detail that ASI was involved
in a plot to murder her by placing her in the Mayo Clinic.
Although plaintiff does not allege specific constitutional
provisions or statutes that defendants have violated, we
assume -- largely because many of the defendants involved
are state officials or state employees and she appears to
complain of certain aspects of various trials -- that she wishes
to complain of violations of her civil rights. Complaints
that rely on civil rights statutes are insufficient unless
“they contain some specific allegations of fact indicating a
deprivation of rights, instead of a litany of general conclusions
that shock but have no meaning.” Barr v. Abrams, 810 F.2d
358, 363 (2d Cir. 1987). A pro se plaintiff's complaint must be
construed liberally and should be dismissed only “if it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.” Estelle
v. Gamble, 429 U.S. 97, 106 (1976) (quotation omitted).
Pourzandvakil has not satisfied even this minimal test; her
complaint and submissions on this motion demonstrate that
she cannot prove any set of facts in support of her claim which
would entitle her to relief. Her complaint consists of a “litany
of general conclusions” rather than “specific allegations of
fact”. Barr, 810 F. 2d at 363.
Ordinarily we would allow plaintiff an opportunity to replead
to state specific allegations against ASI, but three factors
militate against this course of action. First, our December 22,
1994, Memorandum - Decision and Order denying plaintiff's
request for a temporary restraining order indicated that she
had not shown a likelihood of success on the merits of her
claim because she had not pled any specific actionable facts.
Despite the fact that plaintiff since has filed three amended
complaints, she still fails to set forth specific actionable
conduct. Second, the defendants' motions themselves have
alerted plaintiff to the need to show specific actionable facts,
and yet her voluminous submissions in opposition to the
motions contain no specific actionable facts. Finally, plaintiff
has asserted similar allegations against many of the same
defendants sued in this action -- although not ASI -- as well as
others in several different jurisdictions. See Pourzandvakil v.
Blackman, 8 Civ. No. 94-C944 (D.D.C. 1994), Pourzandvakil
v. Doty (E.D.N.Y. 1993), Pourzandvakil v. Price, Civ. No.
7 (D.Minn. 1993). Where the results are known to us these
actions resulted in dismissals for failure to state a claim upon

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which relief can be granted. Pourzandvakil v. Price, Civ.
No. 4-93-207, Order to Show Cause entered April 12, 1993;
Pourzandvakil v. Blackman, Civ. No. 94-C-94, Order entered
April 28, 1994, aff'd Civ. No. 94-5139 (D.C. Cir. 1994) (per
curiam). In the Minnesota case, dismissal took place after the
district court offered plaintiff an opportunity to amend her
pleading and plaintiff still was not able to offer specifics. 9
Even pro se complaints must show “some minimum level of
factual support for their claims.” Pourzandvakil v. Blackman,
Civ. No. 94-C-94, (quoting White v. White, 886 F. 2d 721, 724
(4th Cir. 1989)). We therefore dismiss plaintiff's complaint
against ASI for failure to state a claim upon which relief can
be granted. Fed. R. Civ. P. 12(b)(6).
*8 We note that in Pourzandvakil v. Blackman, Judge John
H. Pratt dismissed plaintiff's in forma pauperis complaint sua
sponte under 28 U.S.C. §1915(d), holding both that it failed
to state a claim on which relief can be granted and that it was
frivolous. We consider here whether we have the authority
to dismiss sua sponte plaintiff's complaint, which was not
filed in forma pauperis, as frivolous as against all non-moving
defendants. The Supreme Court explicitly has acknowledged
a district court's power under Section 1915(d) to dismiss as
frivolous a complaint which “lacks an arguable basis either in
law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
The Supreme Court explicitly declined to rule, however, on
whether a district court has the authority to dismiss sua sponte
frivolous complaints filed by non-indigent plaintiffs. Id. at
329 n.8. The law in this circuit is that a district court may sua
sponte dismiss a frivolous complaint even if the plaintiff has
paid the filing fee. See Tyler v. Carter, 151 F.R.D. 537, 540
(S.D.N.Y. 1993), aff'd 41 F.3d 1500 (2d Cir. 1994); cf. Pillay v.
I.N.S., 45 F.3d 14, 17 (2d Cir. 1995) (per curiam) (dismissing
sua sponte appeal for which appellant had paid normal filing
fee). We believe that sua sponte dismissal is appropriate and
necessary here because (1) plaintiff's claims lack an arguable
basis in law and fact; (2) plaintiff has repeatedly attempted to
replead her claims without being able to articulate actionable
conduct; (3) some of plaintiff's claims have been tested in
other courts and found to be without merit; and (4) the issue
of frivolity has been presented by at least some of the moving
defendants.
We therefore dismiss with prejudice plaintiff's complaint as
frivolous as to all defendants -- regardless of whether they
have moved for dismissal -- that have not been granted
dismissal on jurisdictional grounds. We direct the clerk to
return plaintiff's filing fee to her. Tyler, 151 F.R.D. at 540.

IV. Requests for Sanctions, Costs, Attorney's Fees and
Injunction Against Filing Further Actions
Because plaintiff is pro se and appears to have a belief in
the legitimacy of her complaint, we do not believe that the
purpose of Rule 11 would be served by awarding sanctions.
See Carlin v. Gold Hawk Joint Venture, 778 F. Supp. 686,
694-695 (S.D.N.Y. 1991). Moreover, her litigiousness has not
yet reached the point at which courts in this circuit have
justified injunctive relief. See id. at 694 (and collected cases).
We therefore deny the requests of ASI and Prudential for
injunctive relief. Our refusal to grant sanctions and injunctive
relief, however, is conditioned on this dismissal putting an end
to plaintiff's attempts to sue these defendants on these claims
in this forum. Any further attempts by plaintiff to revive these
claims will result in our revisiting the issue of sanctions. Id.
at 695.

CONCLUSION
*9 All defaults entered by the clerk are vacated.
Plaintiff's complaint is dismissed in its entirety against
all moving and non-moving defendants. The dismissal of
the complaint against Maki, the state defendants, Olmsted
County, Schmitz, Mundahl, C.O. Brown, Norwest, Metmor,
Restovich, Youngquist, Commercial, Travelers and Hirman
is without prejudice as it is premised on this court's lack of
power either over the person of the defendant or the subject
matter of the controversy. See Voisin's Oyster House, Inc.
v. Guidry, 799 F.2d 183, 188-9 (5th Cir. 1986) (dismissal
for lack of subject matter jurisdiction is not a dismissal on
the merits); John Birch Soc'y. v. National Broadcasting Co.,
377 F.2d 194, 199 n.3 (2d Cir. 1967) (dismissal for lack of
subject matter jurisdiction implies no view of merits); Orange
Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d 871,
875 (3d Cir.) cert. denied, 322 U.S. 740(1944) (dismissal
for lack of personal jurisdiction is not a dismissal on the
merits). The dismissals against the remaining defendants are
with prejudice. All requests for sanctions and attorney's fees
are denied. The requests of defendants ASI and Prudential
for an injunction with respect to future litigation is denied.
However, plaintiff is cautioned that any litigation in this
forum attempting to revive the claims addressed herein may
subject her to sanctions. Plaintiff's motions are denied as
moot.
IT IS SO ORDERED.

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All Citations
Not Reported in F.Supp., 1995 WL 316935

Footnotes
1

Names in the caption are spelled to reflect plaintiff's complaint.

2

Plaintiff's spelling is idiosyncratic, and we preserve the spelling in its original form only where absolutely
necessary for accuracy of the record. Otherwise we substitute the word we believe plaintiff intended for the
word she actually wrote, e.g., “tortured” for “tureared.”

3

Susan E. Cooper is not named as a defendant in the original complaint or any amended complaint filed with
this court. From correspondence with Cooper's attorney, it appears that plaintiff sent Cooper a copy of a
different version of the complaint. Because the original of this version was not filed with the court, no action
against Cooper is pending in this court.

4

The court has also received three additional motions returnable May 22, 1995. The first -- from Judges Davies,
Klaphake, Challeen, Collins and Chief Judge Simonett requests summary judgment dismissing the complaint
based on lack of personal jurisdiction. The second by Western Union also requests summary judgment based,
inter alia, on plaintiff's failure to state a claim on which relief can be granted. The third, by British Airways,
also requests dismissal based, inter alia, on plaintiff's failure to state a claim on which relief can be granted.
All three motions are mooted by this memorandum-decision and order which dismisses the complaint in its
entirety against non-moving defendants for failure to state a claim on which relief can be granted.

5

The court also received an affidavit and memorandum of law in support of summary judgment from J.C.
Penney. However, the documents were not accompanied by a notice of motion.

6

We ordinarily would offer plaintiff an opportunity to amend her complaint because her submissions and
Kuwait's answer indicate two bases on which plaintiff might be able to argue diversity of citizenship. First,
although plaintiff lists her address in Syracuse, New York, she also has indicated on the civil cover sheet
that she is an Iranian Citizen and we are not aware of her residence status. As a permanent resident, she
would be deemed a citizen of the state in which she resides. 28 U.S.C. § 1332(a). However, if she lacks
permanent resident status, her citizenship would be considered diverse from that of all the defendants. Id.
§ 1332(a)(2). Second, Kuwait has submitted an answer in which it claims to be a foreign state within the
meaning of 28 U.S.C. § 1603. If Kuwait is correct, plaintiff may have an independent basis for jurisdiction over
Kuwait. See 28 U.S.C. § 1330. If Pourzandvakil could show subject matter jurisdiction over Kuwait without
resort to diversity of citizenship, then Kuwait's residence in New York may not be relevant to the issue of
whether this court has diversity jurisdiction under Section 1332. Cf. Hiram Walker & Sons, Inc. v. Kirk Line,
877 F.2d 1508, 1511-1512 (11th Cir. 1989), cert. denied, 115 S.Ct. 1362 (1995) (holding that the joinder of a
non-diverse defendant sued under federal question jurisdiction did not destroy diversity as to the remaining
defendant). Here, however, plaintiff's complaint is subject to so many other meritorious defenses -- including
complete failure to state a cause of action -- that an amendment would be an exercise in futility. Additionally,
plaintiff has not requested permission to amend, proffered an amended pleading, or indeed even supplied an
affidavit stating her residency status or alleging a basis of jurisdiction over her claims against Kuwait other
than diversity under 28 U.S.C. § 1332.

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Pourzancvakil v. Humphry, Not Reported in F.Supp. (1995)

7

J.C. Penney also submits an affidavit requesting dismissal on this basis and others, but has not filed or served
a notice of motion.

8

Former Supreme Court Justice Harry A. Blackmun.

9

We note also that plaintiff has not requested leave to amend in this action.

End of Document

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