Nunez v. Donahue et al

Filing 120

ORDER that Magistrate Judge Hummel's alternative recommendation, in the Report-Recommendation (Dkt. No. 117 ), that Defendants' motion for summary judgment dismissing the retaliation claim against Defendant Weeks be denied, and the motion otherwise be granted, is adopted in all respects; that Defendants' motion for summary judgment (Dkt. No. 105 ) is DENIED in part and GRANTED in part; that Defendants' motion for summary judgment (Dkt. No. 105 ) is DENIED as to Plaintiff& #039;s retaliation claim against defendant Weeks; that Defendants' motion for summary judgment (Dkt. No. 105 ) is otherwise GRANTED; that Plaintiff's request for counsel is GRANTED in part, and that counsel be appointed for the purpose of trial only. Signed by Judge Brenda K. Sannes on 1/4/16 (served on plaintiff via regular mail). (rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________________
MANUEL NUNEZ,
Plaintiff,
v.
9:12-CV-1071 (BKS/CFH)
D. DONAHUE, Head Account Clerk; Clinton
Correctional Facility, et al.,
Defendants.
________________________________________________
Appearances:
Manuel Nunez
97-A-0205
Sing Sing Correctional Facility
354 Hunter Street
Ossining, NY 10562
Plaintiff, pro se
Christopher W. Hall, AAG
Hon. Eric T. Schneiderman
Office of New York State Attorney General
The Capitol
Albany, NY 12224
Attorney for Defendants
Hon. Brenda K. Sannes, U.S. District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Manuel Nunez brought this action under 42 U.S.C. § 1983 alleging that
the defendants violated his federal and state constitutional rights while he was incarcerated at

1

Clinton Correctional Facility (Clinton C.F.) and Coxsackie Correctional Facility (Coxsackie
C.F.). Dkt. No. 62. On July 10, 2015, defendants filed a motion for summary judgment. Dkt.
No. 105. Plaintiff filed his opposition to the motion on August 3, 2015. Dkt. No. 113.
Defendants’ motion was referred to United States Magistrate Judge Christian F. Hummel who,
on November 23, 2015, issued a Report-Recommendation and Order recommending that
defendants’ motion for summary judgment be granted. Dkt. No. 117. Magistrate Judge Hummel
recommended that, in the alternative, if the District Judge concluded that plaintiff exhausted his
administrative remedies as to his retaliation claim against defendant Weeks, the retaliation claim
should proceed because plaintiff raised a material question of fact whether defendant Weeks
retaliated against him for the exercise of his Constitutional rights, and that all other claims should
be dismissed. Id., at p. 42.
Plaintiff filed an objection to the Report-Recommendation raising various specific
objections and then requesting a de novo review of the parts of the Report-Recommendation to
which he had not specifically objected because he objects to “each and every part[].” Dkt. No.
119, p. 14. Plaintiff also sought appointment of counsel. See Dkt. No. 119, p. 14 (seeking
appointment of “counsel for a just determination of this case and allow the assign [sic] counsel
ample time to review the case and engage in discovery”). Defendants have not responded to
Plaintiff’s filing, nor have they objected to the Report-Recommendation. For the reasons set
forth below, the alternative recommendation in the Report-Recommendation is adopted in its
entirety.
II. Background
The Court presumes the parties’ familiarity with plaintiff’s factual allegations which are

2

thoroughly set forth in the Report-Recommendation. Dkt. No. 117, pp. 4-9. 1 Essentially,
plaintiff claims that defendants Donahue and Palmer denied him access to the court when they
intentionally lost and/or destroyed an envelope he had addressed to the New York Court of
Claims that contained a disbursement request for a $50 court filing fee, which delayed the
payment of the filing fee for plaintiff’s Court of Claims action, and caused it to be dismissed.
Dkt. No. 62, pp. 7-13, 33-36. 2 Plaintiff alleges that defendants Donahue, Lapoint-Kelsh,
Koktowski, Garman and Patnode conspired to transfer him from Clinton C.F. to Coxsackie C.F.
in retaliation for filing a grievance regarding access to the court. Dkt. No. 62, pp. 36-41.
Plaintiff alleges that after he arrived at Coxsackie, and had filed a grievance regarding the
retaliatory transfer and conditions at Coxsackie, defendant Weeks interviewed plaintiff regarding
the grievance. Dkt. No. 62, p. 18-19, 42. Plaintiff alleges that defendant Weeks advised plaintiff
not to write any more grievances and then retaliated against plaintiff by confining him to a cell in
the reception area for four days, without recreation time, awaiting his return to Clinton C.F. Dkt.
No. 62, pp. 18-20, 41-43.
Plaintiff further alleges that upon his return to Clinton C.F., and following his grievance
seeking restitution for the transfer, defendants Lacy, Donahue, Kelsh, Facteau, Lilledahl and
Miller conspired to retaliate against him for filing a grievance by searching his cell, filing a false
misbehavior report and removing him from honor housing. Dkt. No. 62, pp. 44-49, 52-55.
Plaintiff alleges that defendant Miller violated his due process rights by depriving him of a fair

1

Plaintiff’s objections to the facts in the Report-Recommendation are addressed below.
In the Court of Claims action plaintiff sought to recover monies for a radio/cassette
player and other items left in his work space in the tailor shop which had been disposed of during
a lockdown at Clinton C.F. Id.
2

3

hearing on the false misbehavior report. Dkt. No. 49-51. Finally, Plaintiff alleges supervisory
liability claims against defendants Bellamy, Lacy, LaValley, Patnode and Proulx for failure to
remedy the alleged constitutional violations. Dkt. No. 62, pp. 55-62.
III. Standard of Review
The Court reviews de novo those portions of the Magistrate Judge’s findings and
recommendations that have been properly preserved with a specific objection. Petersen v.
Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). Findings and
recommendations as to which there was no properly preserved objection are reviewed for clear
error. Id. Properly raised objections must be “clearly aimed at particular findings” in the Report.
Vlad-Berindan v. MTA N.Y.C. Transit, No. 14 Civ. 675 (RJS), 2014 WL 6982929, at *1, 2014
U.S. Dist. LEXIS 170985, at *3 (S.D.N.Y. Dec. 9, 2014); 3 Petersen, 2 F. Supp. 3d at 228. When
a party files “merely perfunctory responses,” attempting to “engage the district court in a
rehashing of the same arguments set forth in the original petition,” the report will be reviewed
for clear error only. Edwards v. Fischer, 414 F. Supp. 2d 342, 346-47 (S.D.N.Y. 2006). The
Court accordingly rejects plaintiff’s request for de novo review of those aspects of the ReportRecommendation for which plaintiff failed to preserve a proper objection.
IV. Discussion
A. Factual Objections
The Court has reviewed all of plaintiff’s specific factual objections de novo. Based upon the
evidence in the record, the Court credits the following objections and finds as follows. The lost
or destroyed envelope which Plaintiff gave to defendant Palmer was, as Plaintiff asserts,
3

This unpublished decision is attached.
4

addressed to the Court of Claims, not the business office at Clinton C.F. (The envelope had to
go to the business office before mailing, for the insertion of a $50 check for the court filing fee.)
See Dkt. No. 119, p. 2; Dkt. No. 117, p. 5. Plaintiff correctly notes that upon his return to
Clinton C.F., he did not receive payment for his television or for pain, he sought payment for the
television and for pain. See Dkt. No. 117, p. 8; Dkt. No. 119, p. 3; Dkt. No. 105-2, p. 102-03;
Dkt. No. 62-9, p. 33, 43.
The Court rejects Plaintiff’s factual objections as follows. The Transfer Review Form
signed by defendants Julie Lapoint-Kelsh and K. Koktowski expressly states that Plaintiff’s
“preference is to remain at Clinton.” Dkt No. 62-6; see Dkt. No. 117, p. 6; Dkt. No. 119, p. 2.
The property claim filed by Plaintiff on December 21, 2010 (Claim No. 020-0210-10) expressly
states that defendant Donahue disapproved it on the grounds that “staff followed proper
procedures while packing claimants[’] property for transfer to Coxsackie. C.F.” Dkt. No. 62-10,
p. 5; See Dkt. No. 117, p. 9; Dkt, No., 119, p. 4.
After considering the remainder of Plaintiff’s factual objections, the Court has found
them to be factually unsupported and/or irrelevant to the legal issues before the Court. With the
minor exceptions set forth above, the Court therefore adopts and incorporates into this decision
the thorough recitation of facts set forth in the Report-Recommendation.
B. Failure to Exhaust Administrative Remedies
In the motion for summary judgment defendant Weeks argued that plaintiff failed to
exhaust his administrative remedies for his claim that defendant Weeks placed plaintiff in keep
lock for four days, without recreation time, in retaliation for plaintiff’s filing of a grievance. Dkt.
No. 105-3, p. 11. Defendant Weeks argued that plaintiff had failed to exhaust this claim because

5

plaintiff “admitted [during his deposition] he failed to file a grievance that concerned Lt. Week’s
putting him in the cell.” Dkt. No. 105-3, p. 11. Defendant Weeks also argued that “to the extent
he may have earlier raised a complaint about Lt. Weeks in his grievance, plaintiff abandoned it in
his CORC appeal.” Id. at p. 12.
After reviewing the grievance, and plaintiff’s deposition testimony regarding that
grievance, Magistrate Judge Hummel concluded that plaintiff failed to exhaust his administrative
remedies regarding his retaliatory keep lock claim. Dkt. No. 117, p. 21. Magistrate Judge
Hummel noted that the grievance did not identify the person responsible for the four-day
confinement and “[n]othing in the grievance could reasonably have led prison authorities to
conclude that [plaintiff] was making an allegation against Weeks for retaliation related to his
four-day confinement in the reception area pending transfer.” Id. In the alternative, Magistrate
Judge Hummel recommended that if the Court concluded that plaintiff did exhaust this claim, the
claim should proceed because plaintiff has raised a material issue of fact with respect to whether
his confinement was retaliatory. Id. at 21-23.
Plaintiff objects to the recommended conclusion that he failed to exhaust administrative
remedies. Dkt. No. 119, p. 6. Plaintiff argues that his December 2010 grievance “placed
NYSDOCCS on notice and gave specific dates and named Lt. Weeks. [sic] The only person
responsible for placing the Plaintiff in the reception area and kept locked in a cell without
recreation (24 hours a day).” Id. Plaintiff notes that Weeks was the “only person with the
motive,” after having threatened Plaintiff. Id. In light of the liberal standard for grievance
pleading, the Court finds that plaintiff exhausted his administrative remedies regarding his claim
of retaliation by defendant Weeks.

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1. Facts
The grievance which referenced defendant Weeks is plaintiff’s December 10, 2010
grievance (CL-60526-10). In that grievance plaintiff sought restitution for the allegedly
retaliatory transfer to Coxsackie. See Dkt. No. 62-9, p. 3 (grievance captioned “to seek
restitution for a transfer”). Plaintiff sought expenses he had incurred as a result of the transfer,
for mailing home personal property that was not permitted at Coxsackie C.F., as well as damages
for having been confined in keep lock for four days, pending transfer back to Clinton C.F.,
without a daily one-hour recreation. Id. at p. 5, 9. In his grievance plaintiff described his
interview by Lt. Weeks and subsequent keep lock at Coxsackie as follows. Plaintiff stated that
on November 10, 2010, Lt. Weeks interviewed him about a November grievance plaintiff had
filed while at Coxsackie; advised plaintiff not to file any more grievances; and that the interview
and advice were “nothing but intimidation tactics.” 4 Dkt. No. 62-9, p. 5. Plaintiff stated that two
days after this interview he “was moved to the reception division” and “kept locked in a cell” for
four days “without at least a daily one hour recreation supposedly because I was ‘pending
transfer,’ which made no sense to me because even S.H.U. prisoners are allow [sic] one hour of
recreation per day.” Id. In the “action requested” conclusion of his December grievance,

4

In his November 2010 grievance (CX-16173-010), plaintiff complained about Clinton
C.F.’s allegedly retaliatory transfer as well as the conditions at Coxsackie. Dkt. No. 62-8, p. 3.
Plaintiff stated that the Coxsackie officials wrote “creating a disturbance” misbehavior reports
against inmates who spoke in their cell in a normal tone of voice; that officials knowingly
permitted the yard telephones to be controlled by gangs; and that several prisoners told Plaintiff
that inmates who write grievances are sent to “the box,” based on false misbehavior reports, or
are assaulted by staff. Id. at pp 5-7. Plaintiff sought to be transferred back to Clinton C.F. and
also asked “[t]hat Coxsackie Corr. Fac. Administration tell their staffs to stop their intimidation
tactics and stop retaliating against prisoners for speaking up on any wrong that they witness or
are a victim of.” Id., at pp. 8-9.
7

plaintiff sought, inter alia, compensation for humiliation, degradation and pain “suffered on my
wrists and ankles [from shackles used during the transfer] and the four days I spend [sic] locked
in a cell at Coxsackie C.F. ‘pending transfer.’” Id. at p. 9. Plaintiff did not identify defendant
Weeks as the person who caused plaintiff to be keep locked. Id., at p. 5. 5
The Inmate Grievance Resolution Committee (IGRC) and the Superintendent responded
to the December grievance, addressing plaintiff’s claim for monetary restitution as a result of the
transfer, without otherwise addressing the allegation regarding keep lock at Coxsackie C.F. Dkt.
No. 62-9, pp. 31-32; see Dkt. No. 62-9, p. 31 (IGRC advising plaintiff “that the inmate grievance
program is not the appropriate mechanism to utilize to obtain monetary restitution”). After the
Superintendent found no evidence to substantiate plaintiff’s claim that the transfer to Coxsackie
was retaliatory and denied his “action for payment of pain,” plaintiff appealed to the Central
Office Review Committee (CORC). Dkt. No. 62-9, p. 35. While plaintiff did not raise the issue
of retaliatory keep lock in his appeal, plaintiff did argue that “the Superintendent’s response
doesn’t even addressed [sic] all the other issues or actions requested by grievant.” Dkt. No. 62-9,
p. 36. CORC upheld the Superintendent’s decision on the grievance, concluding that plaintiff
was transferred to Coxsackie in error, not for retaliatory reasons, that plaintiff was not entitled to
reimbursement for property he had to mail home and that “money damages are not an available
5

When the question of Weeks’ involvement was raised during plaintiff’s deposition,
plaintiff testified that Lt. Weeks “had me moved to the reception area and kept me locked in a
cell for several days without recreation.” Dkt. No. 105-2, p. 84. When he was asked how he
knew that it was Lt. Weeks, plaintiff initially said that Lt. Weeks “most likely approved it,” but
that plaintiff “don’t have any paperwork, didn’t grieve that.” Id. When plaintiff was then asked
whether Lt. Weeks said that he was going to have plaintiff moved to the reception area, plaintiff
testified, “Yes. . . . He said you’re going to be transferred to Clinton Correctional Facility soon -. . . because your transfer’s been approved, and I will have you put in the reception area.” Id. at
pp. 84-85.
8

remedy through the inmate grievance program.” Dkt. No. 62-9, p. 43.
2.

Analysis

As Magistrate Judge Hummel noted in his Report-Recommendation, to exhaust his claims
plaintiff was required to provide “a specific description of the problem.” Dkt. No. 117, p. 19;
Espinal v. Goord, 558 F.3d 119, 127 (2d Cir. 2009). While a plaintiff is not required to identify
the person responsible for the alleged misconduct, he has to “provide enough information about
the conduct . . . to allow prison officials to take appropriate responsive measures.” Johnson v.
Testman, 380 F.3d 691, 697 (2d Cir. 2004); see Espinal, 558 F.3d at 127. The Second Circuit
has analogized the test for the sufficiency of an administrative grievance to that for notice
pleading, explaining that: “as in a notice pleading system, the grievant need not lay out the facts,
articulate legal theories, or demand particular relief. All the grievance need do is object
intelligibly to some asserted shortcoming.” Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006)
(quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)) (internal marks and quotations
omitted). While “a liberal grievance pleading standard” applies to pro se inmates, “the grievance
may not be so vague as to preclude prison officials from taking appropriate measures to resolve
the complaint internally.” Brownell, 446 F.3d at 310.
Here, plaintiff complained about being in keep lock for four days, without any time out for
recreation, after Lt. Weeks intimidated him about a grievance that he had filed. Plaintiff,
however, did not specifically allege that defendant Weeks was the person responsible for putting
him in keep lock or that his keep lock was in retaliation for having filed a grievance; the
grievance sought, and was interpreted by prison officials, as a claim for monetary restitution; and
plaintiff testified in this action that he did not grieve defendant Weeks’ retaliatory keep lock.

9

Although it is a close question, given the liberal pleading standard applicable to pro se
grievances, the Court finds that plaintiff’s grievance was sufficient to exhaust his retaliation
claim against defendant Weeks because it was sufficient to alert prison officials to his claim of
retaliatory keep lock. The grievance described the specific dates and location of the incident,
and plaintiff sought damages for having been in keep lock. Although plaintiff did not allege that
his keep lock was retaliatory, the facts alleged in the grievance, when fairly read, suggest that the
keep lock was retaliatory. Plaintiff’s allegations that Lt. Weeks engaged in “intimidation tactics”
regarding plaintiff’s grievance, that plaintiff was moved to keep lock two days later, and that
four days of keep lock without recreation “supposedly because I was ‘pending transfer’ . . . made
no sense . . . because even S.H.U. prisoners are allow [sic] one hour of recreation” suggest that
the placement in keep lock was retaliatory. Dkt No. 62-9, p. 5. See, e.g., Varela v. Damon, 491
F.Supp. 2d 442, 448 (S.D.N.Y. 2007) (finding grievance sufficient to exhaust retaliation claim
when it did “not use word ‘retaliation’ . . . but fairly read . . . does suggest that the assault
occurred in response” to the plaintiff’s complaint); c.f. Brownell, 446 F.3d at 311 (grievance
seeking damages for property lost during the plaintiff’s transfer between institutions, which did
not contain any allegations of misconduct by corrections officers, and was treated “merely as a
request for lost property” was insufficient to exhaust the plaintiff’s claim that officials
intentionally lost legal documents, denying his access to courts).
C. Other Objections
After reviewing plaintiff’s remaining objections to the legal analysis in the ReportRecommendations de novo, the Court rejects plaintiff’s objections. With respect to the allegedly
retaliatory misbehavior report by defendant Lilledahl, plaintiff has failed to come forward with

10

any evidence of retaliatory animus by defendant Lilledahl. See Dkt. No. 117, pp. 26-27; Dkt.
No. 119, pp. 6-7. Plaintiff has similarly failed to come forward with any evidence of retaliatory
animus by defendant Miller. See Dkt. No. 117, p. 28; Dkt. No. 119, pp. 8-9. The hearing
conducted by defendant Miller does not, as plaintiff asserts, demonstrate his retaliatory animus.
See. Dkt. No. 62-11, p. 41. Lt. Miller found plaintiff guilty of only one of the three charges
against him – possession of the contraband television. Id. at pp. 42, 46. While plaintiff did,
during the disciplinary hearing, tell Lt. Miller that plaintiff “wrote a grievance” on December 14
“because they transferred me out of a [sic] to Coxsackie Correctional Facility because I was
going to file a lawsuit over here and then they transfer me back . . . over here,” Dkt. No. 62-11,
p. 44, Lt. Miller responded that this had “nothing to do with the t.v. that was found in your cell.”
The evidence, even when viewed in the light most favorable to plaintiff, indicates that during the
hearing Lt. Miller was focused on the television found in plaintiff’s cell and whether plaintiff had
witnesses who could provide evidence regarding that charge. Id. at pp. 43-46. The Court rejects
plaintiff’s arguments regarding his removal from honor housing by Lt. Miller for the reasons
stated in the Report-Recommendation. Dkt. No. 119, pp. 8-9; Dkt. No. 117, pp. 27-29.
With respect to defendant Donahue, plaintiff is correct that his December 10, 2010 grievance,
appears to have been attached to the December 21, 2010 inmate claim received by Donahue, and
that the December 10, 2010 grievance mentions the November 2010 grievance. Dkt. No. 119, p.
9; see Dkt Nos. 62-10, 62-9. However, as Magistrate Judge Hummel noted in the ReportRecommendation, plaintiff has failed to come forward with evidence that Donahue was
personally involved in any of the allegedly unconstitutional acts. Dkt. No. 117, pp. 29-30.
Finally, the Court rejects plaintiff’s arguments regarding the alleged denial of due process,

11

supervisory liability and the state law claims for the reasons stated in the ReportRecommendation. Dkt. No. 119, p. 9-14; Dkt No. 30-43.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Hummel’s alternative recommendation, in the ReportRecommendation (Dkt. No. 117), that Defendants’ motion for summary judgment dismissing the
retaliation claim against Defendant Weeks be denied, and the motion otherwise be granted, is
adopted in all respects; and it is further
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 105) is DENIED
in part and GRANTED in part, and it is further
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 105) is DENIED
as to Plaintiff’s retaliation claim against defendant Weeks, and it is further
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 105) is otherwise
GRANTED, and it is further
ORDERED that Plaintiff’s request for counsel is GRANTED in part, and that counsel
be appointed for the purpose of trial only, and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order in accordance with the Local Rules of the Northern District of New York.
IT IS SO ORDERED.
Dated: January 4, 2016

12

Vlad-Berindan v. MTA New York City Transit, Slip Copy (2014)
2014 WL 6982929

2014 WL 6982929
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Lucia VLAD–BERINDAN, Plaintiff,
v.
MTA NEW YORK CITY TRANSIT; Marie Stanley,
Esq.; Jean Doe, Esq.; John Doe, Esq., Defendants.
No. 14–cv–675 (RJS). | Signed
Dec. 9, 2014. | Filed Dec. 10, 2014.

pretrial matters and to issue reports and recommendations
on dispositive motions. (Doc. No. 9.) On July 21, 2014,
Defendants filed a motion to dismiss pursuant to Rule 12(b)
(6) of the Federal Rules of Civil Procedure. (Doc. No. 11.)
On September 5, 2014, Plaintiff filed her opposition to the
motion. (Doc. No. 18.) On September 19, 2014, Defendants
filed their reply. (Doc. No. 22.) Judge Francis issued his
Report on October 8, 2014. (Doc. No. 23.) On November
7, 2014, Plaintiff filed her objections (“Objections”) to the
Report (Doc. No. 26), and on November 21, 2014, Defendants
filed a response and opposition to Plaintiff's Objections (Doc.
No. 27).

II. LEGAL STANDARD
ORDER ADOPTING REPORT
AND RECOMMENDATION
RICHARD J. SULLIVAN, District Judge.
*1 Plaintiff Lucia Vlad–Berindan, proceeding pro se, brings
this employment discrimination action against Defendants
MTA New York City Transit, Marie Stanley, Esq., Jean
Doe, Esq., and John Doe, Esq ., pursuant to Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e
et seq., the Age Discrimination in Employment Act of 1967
(the “ADEA”), 29 U.S.C. § 621 et seq., the Americans with
Disabilities Act of 1990 (the “ADA”), 42 U.S.C. §§ 12112
et seq., and the Rehabilitation Act of 1973, 29 U.S.C. §
794 et seq. Plaintiff further asserts that Defendants posted
a deceptive job advertisement and sought to incorrectly
classify paralegals as independent contractors. Now before
the Court is the Report and Recommendation (the “Report”)
of the Honorable James C. Francis IV, Magistrate Judge,
recommending that the Court dismiss Plaintiff's Complaint,
without prejudice, for failure to state a claim. For the reasons
set forth below, the Court adopts the Report in its entirety.

I. BACKGROUND
The Court presumes the parties' familiarity with the factual
allegations of this action, which are thoroughly set forth in
the Report. (Report at 2–6.) On January 27, 2014, Plaintiff
commenced this action by filing a standard-form complaint
for employment discrimination against Defendants. (Doc.
No. 2.) The Court received confirmation of service on June
12, 2014. (Doc. Nos.7, 8.) By Order dated June 16, 2014, the
Court referred the case to Judge Francis to oversee general

The Court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge.”28 U.S.C. § 636(b)(1); see alsoFed.R.Civ.P. 72(b)(3).
If a party properly objects to a finding in the Report, the Court
reviews the finding de novo. 28 U.S.C. § 636(b)(1)(C); see
alsoFed.R.Civ.P. 72(b)(3). Properly raised objections must be
“clearly aimed at particular findings” in the Report. Harden
v. LaClaire, No. 07–cv–4592 (LTS), 2008 WL 4735231,
at *1 (S.D.N.Y. Oct. 27, 2008). Therefore, objections may
not be “conclusory or general” and may not simply rehash
or reiterate the original briefs to the magistrate judge.
Thomas v. Astrue, 674 F.Supp.2d 507, 511 (S.D.N.Y.2009).
Moreover, objections generally may not be new arguments
“that were not raised, and thus were not considered, by
the magistrate judge.”Jackson v. Brandt, No. 10–cv–05858
(PAC), 2012 WL 2512015, at *6 (S.D.N.Y. June 29, 2012);
see also Berbick v. Precinct 42, 977 F.Supp.2d 268, 273
(S.D.N.Y.2013) (“A motion referred to a magistrate judge
is not a trial run.”(alterations and internal quotation marks
omitted)).
*2 Absent proper objections, the Court accepts all parts of
the Report that are not clearly erroneous. See Berbick, 977
F.Supp.2d at 273. Thus, the Court reviews a party's improper
objections, including those that seek a “second bite at the
apple” by “attempt[ing] to relitigate the entire content” of the
arguments made before the magistrate judge, only for clear
error.Thomas, 674 F.Supp.2d at 511. In clear error review,
the Court should reverse a finding only if it is “left with
the definite and firm conviction that a mistake has been
committed,” and not merely if it “would have decided the
case differently.”Easley v. Cromartie, 532 U.S. 234, 242, 121

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

1

Vlad-Berindan v. MTA New York City Transit, Slip Copy (2014)
2014 WL 6982929

S.Ct. 1452, 149 L.Ed.2d 430 (2001) (internal quotation marks
omitted).

*3 SO ORDERED.

REPORT AND RECOMMENDATION
III. DISCUSSION
The Report recommends that the Court grant Defendants'
motion and dismiss Plaintiff's Complaint without prejudice.
To briefly summarize, with respect to the employment
discrimination claims, the Report finds that Plaintiff has
failed to establish a prima facie case for her Title VII
claim, and has not alleged facts to support an inference
of discrimination for her ADEA claim and ADA claims.
(See Report at 16, 19, 21.) The Report further finds that
Plaintiff's remaining claims fail in part because they are
“not premised on identifiable federal or state law.”(Id. at
24.) Nevertheless, the Report recommends that Plaintiff be
given an opportunity to amend her Complaint “[b]ecause
there is some prospect, however slim, that the plaintiff could
state a valid claim ....“ (Id. citing Gomez v. USAA Federal
Savings Bank, 171 F.3d 794, 796 (2d Cir.1999).) Plaintiff's
Objections, which consist of a background statement and
fifty numbered paragraphs, fail to address the Report's legal
conclusions and are instead largely conclusory assertions that
reiterate factual allegations and arguments already presented
to Judge Francis. Accordingly, the Court reviews the Judge
Francis's comprehensive and well-written twenty-six page
Report for clear error. Having reviewed the Report and
finding no clear error, the Court adopts the Report in its
entirety. Indeed, the Court would reach the same result even
under a de novo standard of review.

IV. CONCLUSION
For the reasons set forth above, the Court adopts Judge
Francis's well-reasoned Report and GRANTS Defendants'
motion to dismiss. The Clerk of the Court is respectfully
directed to terminate the motion pending at docket entry 11.
To the extent that Plaintiff wishes to amend her Complaint,
she must file a motion to amend no later than January 9, 2015.
The motion should include a proposed amended complaint,
which shall state with specificity Plaintiff's contemplated
claims. Plaintiffs motion shall also indicate whether she has
properly exhausted her administrative remedies with respect
to each of her contemplated claims. If Plaintiff does not file
a motion requesting leave to amend by January 9, 2015, this
case will be closed with prejudice.

JAMES C. FRANCIS IV, United States Magistrate Judge.
TO THE HONORABLE RICHARD J. SULLIVAN,
U.S.D.J.:
Lucia Vlad–Berindan brings this employment discrimination
action pro se pursuant to Title VII of the Civil Rights Act
of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., the Age
Discrimination in Employment Act of 1967 (the “ADEA”),
29 U.S.C. § 621 et seq., the Americans with Disabilities Act
of 1990 (the “ADA”), 42 U.S.C. §§ 12112 et seq., and the
Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq., alleging
that the defendants—the New York City Transit Authority
(the “Transit Authority”), Marie Stanley, and two other
unnamed attorneys—failed to hire her because of her race,
national origin, age, and disability. She further alleges that the
defendants retaliated against her for asserting her rights under
the ADA, posted a deceptive job advertisement, and sought
to incorrectly classify paralegals as independent contractors.
The defendants move to dismiss all counts pursuant to Rules
12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
For the reasons that follow, I recommend that the plaintiff's
complaint be dismissed without prejudice.

Background 1
1
The background in this case is drawn from Ms.
Vlad–Berindan' s complaint and supplemented by her
affirmation in opposition to the motion to dismiss where
the affirmation adds clarity to the originally pled facts.
Although a court is typically confined when considering
a motion to dismiss to “the allegations contained within
the four corners of [the] complaint,”Pani v. Empire Blue
Cross Blue Shield, 152 F.3d 67, 71 (2d Cir.1998), pro
se pleadings are to be liberally construed, see Harris v.
Mills, 572 F.3d 66, 71–72 (2d Cir.2009). When analyzing
a pro se pleading, a court may therefore consider factual
allegations contained in the plaintiff's opposition papers
and other court documents. See Torrico v. International
Business Machines Corp., 213 F.Supp.2d 390, 399 n. 4
(S.D.N.Y.2002).

A. Factual Allegations
Ms. Vlad–Berindan holds an Associate of Applied Science
degree in Paralegal Studies and was, at the time relevant
to her claims, pursing a Bachelor of Science degree in

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Legal Studies at the New York City College of Technology
(“City Tech”). (Attachment to Complaint for Employment
Discrimination (“Compl.”), ¶ 1; Affirmation of Lucia Vlad–
Berindan in Opposition to Motion to Dismiss dated Sept.
5, 2014 (“Vlad–Berindan Aff.”) at 1–2). She self-identifies
as a white person of Romanian national origin. At the time
when the alleged employment action occurred, she was fiftyfour years old. (Complaint for Employment Discrimination
(“Compl.Form”), ¶ II(D)). She also self-identifies as having a
disability resulting from a recent surgery, which rendered her
unable to lift more than ten pounds of weight or to stand for
prolonged periods of time. (Compl.Form, ¶ II(D); Compl., ¶
10).
One of the requirements for Ms. Vlad–Berindan's Legal
Studies degree was that she complete a 160–hour internship in
a law office approved by her school. (Compl., ¶¶ 1, 6; Vlad–
Berindan Aff. at 2). City Tech has an arrangement with the
Transit Authority (as well as several other “partner” offices)
under which the Transit Authority provides internship
opportunities to the college's students. (Vlad–Berindan Aff.
at 2). In February 2013, Ms. Vlad–Berindan submitted an
application for an unpaid internship to Ms. Stanley, an
attorney in the Transit Authority Torts Division (Compl., ¶¶
2–4; Vlad–Berindan Aff. at 2), intending to fulfill her college
requirement through the internship. (Compl., ¶ 6).
On February 13, 2013, Ms. Vlad–Berindan was interviewed
by three Transit Authority attorneys—Ms. Stanley and two
other individuals identified as “Jean Doe, Esq.” and “John
Doe, Esq.” (Compl., ¶¶ 3–5, 12). She does not provide any
information regarding the content of her first interview, which
was with Ms. Doe. (Compl., ¶ 4).
*4 During her second interview, Ms. Stanley informed Ms.
Vlad–Berindan that the office was hiring for two positions,
an unpaid internship and a one-year paralegal-contractor
position, which was to pay ten dollars per hour. (Compl., ¶ 5;
Vlad–Berindan Aff. at 2). While Ms. Vlad–Berindan initially
indicated that she was only applying for the internship, she
subsequently agreed during the interview (on Ms. Stanley's
suggestion) to be considered for both, with the intention
of first completing her 160–hour internship requirement
and then continuing to work as a paid paralegal-contractor.
(Compl., ¶¶ 5–9). Ms. Stanley suggested that Ms. Vlad–
Berindan would work for fewer than eight hours per day as
a paralegal-contractor because the position was for a limited
number of hours per year. (Compl., ¶ 8).

Ms. Vlad–Berindan disclosed to Ms. Stanley during the
interview that she had recently undergone surgery and, as
a result, was unable to work more than six hours per day.
(Compl., ¶ 9). She told Ms. Stanley that she planned to work
a few hours per day until her health improved. (Compl., ¶
10). She also disclosed that she was not able to lift heavy
objects due to the recent surgery. (Compl., ¶ 10). Ms. Stanley
“[t]hen ... asked [the] plaintiff when she could start working,”
and “seemed to like [the] plaintiff.” (Compl., ¶ 11).
Ms. Vlad–Berindan was next interviewed by Mr. Doe.
(Compl., ¶¶ 12–13). Mr. Doe “asked [ ] the same questions as
the previous two interviewers.”(Compl., ¶ 13). Additionally,
he asked Ms. Vlad–Berindan what country she was from,
told her that he had other acquaintances from Romania, and
volunteered that he was from Nigeria. (Compl., 1 13).“Then
he asked [Ms. Vlad–Berindan] if she speaks French, and
for a while [the] interview was in French.”(Compl., ¶ 13).
Ms. Vlad–Berindan states that Mr. Doe “seemed to be very
nice” (Compl., 1 13), but at one point “turned mad” when
discussing the suddenness of his last paralegal's departure,
emphasizing that it was important that Ms. Vlad–Berindan
be willing to commit to a full year of work (Compl., ¶ 14).
Mr. Doe and Ms. Vlad–Berindan discussed the arrangement
proposed by Ms. Stanley, under which Ms. Vlad–Berindan
would complete the 160–hour internship prior to beginning
her part-time work as a paralegal-contractor. (Compl., ¶¶ 14–
15).
Although Ms. Stanley indicated to Ms. Vlad–Berindan that
she would call her about the positions by 5:00 p.m. the day
of the interview, she did not contact the plaintiff thereafter.
(Compl., ¶ 16). Ms. Vlad–Berindan called Ms. Stanley's
office, but did not receive a response. (Compl., ¶ 16). Ms.
Vlad–Berindan's classmates later informed her that a new
advertisement for positions at the Transit Authority had been
posted at their college. (Compl., ¶ 20).
Ms. Vlad–Berindan states that the three lawyers who
interviewed her were all “non white” (Compl., ¶ 22), and that
“during her interview with the [Transit Authority] she did
not see any white employee[s] in the offices where she was,
including paralegals she was introduced to” (Compl., ¶ 23).
She “believes that after she left the interview, the three non
white interviewers decided that [she] was not good enough
for them because [she] was[ ] too weak and disabling [sic]
[,] too white and blonde, too over 40 years old [sic] and
too East European [ ] to work[,] learn[, and] practice as an
intern paralegal [for] 160 hours in their office” (Compl., ¶

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22), and that “all or some of her interviewer [s] do[ ] not
like white people to work with” (Compl., ¶ 23). Ms. Vlad–
Berindan notes that “paralegal [s] need[ ] to lift and [ ]
sometime[s carry] very heavy files,” and alleges that she
would have required a rolling shelf and document case to
accommodate her disability, had she been hired. 2 (Compl.,
¶ 29). She further alleges that the Transit Authority always
intended to hire one person to fill both the intern position
and the paralegal-contractor position, despite having posted
two separate employment opportunities (Compl., ¶¶ 27, 46),
and that they intended to improperly classify the paralegalcontractor as an independent contractor to evade taxes
(Compl., ¶¶ 27, 48).
2

She does not allege that this issue was addressed during
any of her interviews.

B. Procedural History
*5 On July 26, 2013, Ms. Vlad–Berindan filed a charge with
the Equal Employment Opportunity Commission (“EEOC”)
regarding the defendants' alleged discriminatory conduct.
(Compl.Form, ¶ III(A)). The EEOC issued a Notice of
Right to Sue letter, which Ms. Vlad–Berindan received on
November 1, 2013. (Compl. Form, SI III(B)). On January
27, 2014, Ms. Vlad–Berindan filed this lawsuit. She seeks
an award of compensatory damages, punitive damages, and
attorneys' fees. (Compl., § IV).

Discussion
A. Legal Standard
In considering a motion to dismiss, a court must accept as
true all well-pleaded facts alleged in the complaint and draw
all reasonable inferences in the plaintiff's favor. Erickson
v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d
1081 (2007) (per curiam); DiFolco v. MSNBC Cable L.L.C.,
622 F.3d 104, 110–11 (2d Cir.2010). A complaint need not
contain detailed factual allegations, but it must contain more
than mere “ ‘labels and conclusions' or ‘a formulaic recitation
of the elements of a cause of action.’ “ Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Where the
complaint's factual allegations permit the court to infer only
that it is possible, but not plausible, that misconduct occurred,
the complaint fails to meet the requirements of Rule 8(a) of
the Federal Rules of Civil Procedure. Id. at 679. Though a
plaintiff may plead facts alleged upon information and belief

“where the belief is based on factual information that makes
the inference of culpability plausible,” Arista Records, LLC
v. Doe 3, 604 F.3d 110, 120 (2d Cir.2010), such allegations
must be “accompanied by a statement of the facts upon which
the belief is founded,” Prince v. Madison Square Garden,
427 F.Supp.2d 372, 385 (S.D.N.Y.2006) (internal quotation
marks omitted).
Pro se complaints are held to less stringent standards than
those drafted by attorneys. Haines v. Kerner, 404 U.S.
519, 520–21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Boykin
v. KeyCorp, 521 F.3d 202, 213–14 (2d Cir.2008) (citing
Erickson, 551 U.S. at 94). Pleadings of pro se parties should
be read “ ‘to raise the strongest arguments that they suggest.’
“ Kevilly v. New York, 410 F. App'x 371, 374 (2d Cir.2010)
(quoting Brownell v. Krom, 446 F.3d 305, 310 (2d Cir.2006)).
Even after the Supreme Court's ruling in Iqbal, which
imposed heightened pleading standards for all complaints,
pro se complaints are to be liberally construed. See Harris
v. Mills, 572 F.3d 66, 71–72 (2d Cir.2009). Nevertheless,
dismissal of a pro se complaint is appropriate where a plaintiff
has clearly failed to meet minimum pleading requirements.
See Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir.1997);
accord Leak v. Schriro, Nos. 11 Civ. 8023, 12 Civ. 618,
2013 WL 1234945, at *2 (S.D.N.Y. Feb.20, 2013), report
and recommendation adopted,2013 WL 1248620 (S.D.N.Y.
March 27, 2013).

B. Claims Raised in Opposition to Motion to Dismiss
*6 As an initial matter, I address the substantial factual
allegations and several new claims raised for the first time
in the plaintiff's affirmation in opposition to the motion to
dismiss. The plaintiff alleges, in brief, that subsequent to the
filing of this Complaint, she interviewed with the Transit
Authority for a similar opportunity to complete a 120–hour
internship followed by a one-year contract position as a
paralegal. (Vlad–Berindan Aff. at 4–5). She alleges that she
was offered both the internship and the paralegal-contractor
position, and accepted both positions in March 2014. (Vlad–
Berindan Aff. at 4–5). Once she had completed the 120–
hour internship, she expected to begin to work as a paid
paralegal-contractor, but instead was wished good luck by
her supervisor and asked to return her office key. (Vlad–
Berindan Aff. at 5–6). Ms. Vlad–Berindan alleges that the
position of paralegal-contractor was still open at this point,
and claims that the Transit Authority's refusal to hire her for
this position constituted “a continuity [sic] of the [earlier]
job discrimination .”(Vlad–Berindan Aff. at 6). She further
claims that the Transit Authority's failure to pay her minimum

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wage during her internship constituted a violation of the Fair
Labor Standards Act (“FLSA”), the New York Labor Law
(“NYLL”), and the Thirteenth Amendment. (Vlad–Berindan
Aff. at 8–11).
In evaluating the legal sufficiency of a pro se plaintiff's
claims, a court may rely on the plaintiff's opposition
papers. 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, 1997 WL 714878, at * 1 n. 2 (S.D.N.Y. Nov.17,
1997)).“This extension of the usual principles applicable to
a Rule 12(b)(6) motion applies to factual allegations that are
consistent with those contained in the complaint.”Rosado v.
Herad, No. 12 Civ. 8943, 2013 WL 6170631, at *3 (S.D.N.Y.
Nov.25, 2013) (citing Richardson v. New York, 10 Civ. 6137,
2012 WL 76910, at *1 n. 10 (S.D.N.Y. Jan.9, 2012)), report
and recommendation adopted in part and modified in part
on other grounds,2014 WL 1303513 (S.D.N.Y. March 25,
2014); accord Braxton v. Nichols, No. 08 Civ. 8568, 2010 WL
1010001, at *1 (S.D.N.Y. March 18, 2010) (“[A]llegations
made in a pro se plaintiff's memorandum of law, where
they are consistent with those in the complaint, may also be
considered on a motion to dismiss.”). Further, to the extent
claims alleged for the first time in motion papers could have
been asserted based on the facts alleged in the complaint, they
should be considered. See Finch v. New York, No. 10 Civ.
9691, 2012 WL 2866253 (S.D.N.Y. May 30, 2012) (finding
that while “a plaintiff cannot amend her complaint through
an opposition to a motion to dismiss,” the court “should read
the facts alleged in a pro se plaintiff's complaint for whatever
claims may properly be based on such facts”).
However, “[e]ntirely new claims [ ] are not given such
liberal treatment.”Rosado, 2013 WL 6170631, at *3; accord
Bernstein v. City of New York, No. 06 Civ. 895, 2007 WL
1573910, at *10 (S.D .N.Y. May 24, 2007) (finding in pro
se case that “[n]ew claims not specifically asserted in the
complaint may not be considered by courts when deciding a
motion to dismiss” (alteration in original) (internal quotation
marks omitted)). Where a plaintiff's motion papers assert
entirely new claims that do not arise out of the facts alleged
in the complaint, the court need not consider them. See
Bernstein, 2007 WL 1573910, at *10; compare Turner v.
Sidorowicz, No. 12 Civ. 7048, 2014 WL 641454, *10 n. 11
(S.D.N.Y. Feb.18, 2014) (“not purport[ing] to substantiate a
new claim brought in opposition to the motion to dismiss,”
but treating such new claim as part of pro se complaint
through liberal reading of originally pled facts), and Lang
v. New York City Health and Hospitals Corp., No. 12 Civ.

5523, 2013 WL 4774751, at *4 (S.D.N.Y. Sept. 5, 2013)
(noting that complaints may not be amended through briefs in
opposition to motions to dismiss, but considering new claims
because opposition “simply articulates additional claims
that [pro se plaintiff's] original complaint could have been
construed to allege”), with Conkling v. Brookhaven Science
Associates, LLC, No. 10 CV 4164, 2012 WL 2160439, at
*6 n. 6 (E.D.N .Y. June 12, 2012) (declining to consider
claims raised in opposition to motion to dismiss regarding
facts that allegedly occurred after amended complaint was
filed), and Jones v. Chicago Board of Education, No. 11
C 8326, 2013 WL 1499001, at *2 (N.D.Ill. April 10, 2013)
(declining to review allegations of “separate independent
acts of discrimination” raised in pro se opposition to motion
to dismiss, and noting that only new factual allegations
clarifying original claims can be considered).
*7 In this case, the plaintiff has asserted several new
claims based not only on newly asserted facts, but on facts
that are alleged to have occurred after the Complaint was
filed. (Vlad–Berindan Aff. at 4–6). She could not have
cognizable FLSA, NYLL or Thirteenth Amendment claims
based on the originally pled facts, as the Complaint did not
allege that she actually completed any work for the Transit
Authority. Further, the new employment discrimination
claims alleged in Ms. Vlad–Berindan's opposition to the
motion to dismiss are, as Ms. Vlad–Berindan acknowledges,
unexhausted because she has not yet received a right-to-sue
letter. 3 (Vlad–Berindan Aff. at 6). I therefore do not consider
the new claims raised in Ms. Vlad–Berindan's opposition to
the motion to dismiss in this report and recommendation, but
recommend that Ms. Vlad–Berindan be granted leave to replead these claims. 4
3

Under Title VII, the ADEA, and the ADA, a claimant
may bring suit in federal court only if she has filed
a timely complaint with the EEOC and obtained a
right-to-sue letter. 42 U.S.C. § 2000e5(e)-(f) (Title VII
exhaustion procedures); 29 U.S.C. § 626(d) (ADEA
exhaustion procedures); 42 U.S.C. § 12117(a) (ADA
exhaustion procedures); see also Leqnani v. Alitalia
Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d
Cir.2001) (Title VII and ADEA); Vargas v. Reliant
Realty, No. 13 Civ. 2341, 2014 WL 4446165, at *9
(S.D.N.Y. Sept.9, 2014) (ADA).

4

I do, however, caution the plaintiff that she is not likely
to prevail on these claims, should she choose to file
them. An individual who volunteers her services to a
public agency without the expectation of compensation,

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who is free from employer coercion to perform unpaid
services, and who is not already employed by the
public agency to render the same type of services, is
considered a “volunteer” not subject to the minimum
wage requirements of the FLSA. 29 U.S.C. § 203(e)(4)
(A); 29 C.F.R. § 553.101. Public agencies therefore have
far more latitude than for-profit entities to benefit from
the labor of unpaid interns. Cf. Glatt v. Fox Searchlight
Pictures, Inc., 293 F.R.D. 516, 530–32 (S.D.N.Y.2013)
(discussing six criteria for determining whether an intern
at a for-profit entity may be unpaid under FLSA and
NYLL). With respect to the employment discrimination
claims asserted in the plaintiff's opposition papers, the
plaintiff may be guided by the discussion below.

C. Employment Discrimination Claims
1. Individual Liability
Ms. Vlad–Berindan asserts employment discrimination
claims against Ms. Stanley, Ms. Doe, and Mr. Doe in their
individual capacities. (Compl., ¶¶ 33–44). However, it is
well-established that individuals may not be held personally
liable under Title VII, Patterson v. County of Oneida,
New York, 375 F.3d 206, 221 (2d Cir.2004); under the
ADA, Vargas v. Reliant Realty, No. 13 Civ. 2341, 2014
WL 4446165, at *9 (S.D.N.Y. Sept.9, 2014); under the
Rehabilitation Act, Nelson v. City of New York, No. 11 Civ.
2732, 2013 WL 4437224, at *14 (S.D.N.Y. Aug. 19, 2013);
or under the ADEA, Parker v. Metropolitan Transportation
Authority, 97 F.Supp.2d 437, 452 (S.D.N.Y.2000). The
plaintiff's employment discrimination claims against Ms.
Stanley, Ms. Doe, and Mr. Doe are therefore barred as a
matter of law.

2. “Employee” Status
The defendants argue that Ms. Vlad–Berindan cannot assert
employment discrimination claims under Title VII, the
ADEA, the ADA, and the Rehabilitation Act because the
position for which she applied was an unpaid internship.
(Memorandum of Law in Support of Defendants' Motion to
Dismiss (“Def.Memo.”) at 5–7). The defendants cite case
law and statutes establishing that employment discrimination
claims are only available to “employees,” and that
remuneration is an “essential consideration” of employment
status under all four statutes. (Def. Memo. at 5–6 (citing 29
U.S.C. § 793(d) (Rehabilitation Act); Castellano v. City of
New York, 142 F.3d 58, 69 (2d Cir.1998) (ADA); O'Connor
v. Davis, 126 F.3d 112, 116 (2d Cir.1997) (Title VII); EEOC
v. Johnson & Higgins, Inc., 91 F.3d 1529, 1538 (2d Cir.1996)
(ADEA)). While the defendants acknowledge that Ms. Vlad–

Berindan “expressed interest in a paid, part-time position
during her series of interviews,” they contend that she “had
not applied for that position and did not interview for that
position.”(Def. Memo. at 7).
Ms. Vlad–Berindan alleges that while she originally
submitted her resume with the goal of being considered for
an unpaid internship (Compl., ¶¶ 1–3), she was invited to
also be considered for a paid paralegal-contractor position,
and accepted that invitation (Compl., ¶¶ 5–9). The salary
for the paralegal-contractor position was to be ten dollars
per hour. (Vlad–Berindan Aff. at 2). Much of Ms. Vlad–
Berindan's interview with Ms. Stanley focused on the
paralegal-contractor position (Compl., ¶¶ 7–8), and Mr. Doe
“did not mention anything about the internship plaintiff was
seeking,” but focused his interview questions solely on the
paralegal-contractor position (Compl., ¶ 14). Accepting as
true all well-pleaded facts alleged in the Complaint and
drawing all reasonable inferences in the plaintiff's favor,
Ms. Vlad–Berindan has sufficiently pled that she applied for
employment as defined under Title VII, the ADEA, the ADA,
and the Rehabilitation Act and that she is entitled to the
protections of those statutes. The question remains, however,
whether she has stated plausible employment discrimination
claims against the Transit Authority on which relief could be
granted.

3. Title VII Claims
*8 Ms. Vlad–Berindan alleges that the defendants refused to
hire her because of her race in violation of Title VII. (Compl.,
¶¶ 22, 34). Based on her allegation that the defendants
decided she was not only “too white” but also “too East
European” (Compl., ¶ 22), I read the Complaint to also assert
a Title VII claim based on national origin.
In determining whether a claim for employment
discrimination survives a motion to dismiss, the Court is
guided by the elements required to make out a prima facie
case. These are: (1) membership in a protected class; (2)
qualification for the position; (3) suffering of an adverse
employment action; and (4) circumstances giving rise to
an inference of discrimination. McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d
668 (1973); Weinstock v. Columbia University, 224 F.3d
33, 42 (2d Cir.2000). In order to sustain a discrimination
claim based on a failure to hire, “a plaintiff must allege
that she applied for an available position for which she
was qualified and was rejected under circumstances giving
rise to an inference of unlawful discrimination.”Wang v.

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Phoenix Satellite Television U.S., Inc., 976 F.Supp.2d 527,
537 (S.D.N.Y.2013) (citing Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67
L.Ed.2d 207 (1981)).
However, “[t]he prima facie case under McDonnell
Douglas [ ] is an evidentiary standard, not a pleading
requirement.”Swierkiewicz v. Sorema N.A., 534 U.S. 506,
510–11, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); see
also Boykin v. KeyCorp., 521 F.3d 202, 212 (2d Cir.2008).
Accordingly, “a plaintiff alleging employment discrimination
need not plead facts establishing a plausible prima facie case
of discrimination to survive a motion to dismiss.”Schwab
v. Smalls, 435 F. App'x 37, 40 (2d Cir.2011). Under
the pleading standard established in Swierkiewicz, an
employment discrimination claim need only “be facially
plausible and must give fair notice to the defendants of the
basis for the claim.”Barbosa v. Continuum Health Partners,
Inc., 716 F.Supp.2d 210, 215 (S.D.N.Y.2010) (internal
quotation marks omitted).
“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.”Iqbal, 556 U.S. at 678; accord Turkman v. Ashcroft,
589 F.3d 542, 546 (2d Cir.2009).“For this conclusion to be
drawn, a plaintiff must allege facts that allow the court in
substance to infer elements of a prima facie case.”King v. U.S.
Security Associates, No. 11 Civ. 4457, 2012 WL 4122025, at
*5 (S.D.N.Y. Aug. 22, 2012) (collecting cases).
In this case, Ms. Vlad–Berindan has alleged facts sufficient
for the court to infer the first three elements of the prima
facie case required under Title VII. She alleges (1) that she is
white and Romanian (Compl.Form, ¶ II(D)); (2) that she holds
an Associate of Applied Science degree in Paralegal Studies,
was pursing a Bachelor of Science degree in Legal Studies
when she applied for the position (Compl., ¶ 1), and was in
fact invited to apply for the paralegal-contractor position in
addition to the unpaid internship based on these qualifications
(Compl., ¶¶ 5–6); and (3) that she was not hired. However,
the circumstances Ms. Vlad–Berindan alleges do not give rise
to an inference of unlawful discrimination based on race or
national origin.
*9 In support of her race discrimination claim, Ms. Vlad–
Berindan alleges that all three interviewers were “non
white” and that during her interview, she “did not see any
white employee[s], including paralegals she was introduced

to.”(Compl., ¶¶ 22–23). While the demographics of an
office may be relevant in a failure-to-hire employment
discrimination case, they are not sufficiently pled in this
case to give rise to an inference of unlawful discrimination.
Courts have dismissed failure-to-hire cases in which plaintiffs
have alleged significant under-representation of members
of their protected classes in the defendant-employers'
staffs. See, e.g., Lott v. Kmart, No. 13 CV 990, 2014
WL 1884406, at *1 (S.D.Ohio May 9, 2014) (finding
allegation that pro se male plaintiff on two occasions
observed that all cashiers working at defendant store were
women insufficient to raise inference of sex discrimination);
Chandler v. University of Pennsylvania, 927 F.Supp.2d 175,
179 (E.D.Pa.2013) (finding plaintiff's statistical evidence of
the under-representation of African Americans in defendant
university's graduate student body and faculty insufficient to
plausibly claim intentionally discrimination based on race).
The fact that the defendants “have hired people who are of a
different race ... from [Ms. Vlad–Berindan] does not suggest
that the [ ][d]efendants failed to hire her on account of her
race....”Riddle v. Citigroup, 13 Civ. 6833, 2014 WL 2767180,
at *3 (S.D.N.Y. May 29, 2014). Ms. Vlad–Berindan does not
indicate that any of her interviewers were hostile towards her.
(Compl., ¶¶ 11, 13). Although she alleges that the position
remained posted on her college campus some time after her
interview (Compl., ¶ 20), she does not allege that the person
who was ultimately hired was not white. While “[i]n failure
to hire cases, a plaintiff may demonstrate circumstances
giving rise to an inference of discrimination by showing
that the defendant continued to solicit applications for the
position applied to and hired someone outside of the plaintiff's
protected class,”Ghosh v. New York City Department of
Health, 413 F.Supp.2d 322, 332 (S.D.N.Y.2006) (internal
quotation marks omitted), the fact that a position remained
open for some time is not on its own sufficient to raise
an inference of discrimination. Because Ms. Vlad–Berindan
has not alleged facts sufficient to raise an inference of racebased discrimination, I recommend that the Title VII claim
premised on race be dismissed.
The only facts Ms. Vlad–Berindan pleads in relation to her
national origin claim are that Mr. Doe, “who seemed to be
very nice,” asked her what country she was from, “told [her]
he knew other people from her country, and [ ] told [her] that
he is from Nigeria.”(Compl., ¶ 13). The Complaint indicates
that after this exchange, Mr. Doe continued to interview Ms.
Vlad–Berindan about whether she could commit to working
for a full year, and discussed the possibility that she would be
hired for the internship and paralegal-contractor position, to

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be completed successively. (Compl., ¶¶ 14–15). These facts
do not raise an inference of discrimination. Accordingly, I
recommend that the Title VII claim premised on national
origin also be dismissed.

5. ADA and Rehabilitation Act Claims
Ms. Vlad–Berindan alleges both that the defendants refused
to hire her because of her disability in violation of the ADA
and the Rehabilitation Act and that they retaliated against her
for exercising her rights under the ADA.

4. ADEA Claim
*10 Under the ADEA, it is illegal for an employer “to
fail or refuse to hire or to discharge any individual or
otherwise discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of
employment, because of such individual's age.”29 U.S.C. §
623(a)(1). To qualify for protected status under the ADEA,
a plaintiff must be “at least 40 years of age.”29 U.S.C. §
631(a); Liburd v. Bronx Lebanon Hospital Center, No. 07
Civ. 11316, 2008 WL 3861352, at *6 (S.D.N.Y. Aug. 19,
2008). To establish a disparate-treatment claim under the
ADEA, a plaintiff must prove that age was the “but-for” cause
of the employer's adverse decision. Gross v. FBL Financial
Services, Inc., 557 U.S. 167, 175–76, 129 S.Ct. 2343, 174
L.Ed.2d 119 (2009). As in the Title VII context, the prima
facie elements provide only a guide-post for the adjudication
of a motion to dismiss, not a pleading requirement. See
Fitzgerald v. Signature Flight Support Corp., No. 13 Civ.
4026, 2014 WL 3887217, at *4 (S.D.N.Y. Aug.5, 2014); see
also Swierkiewicz, 534 U.S. at 508. Thus, “while an ADEA
plaintiff need not plead but-for causation, his complaint must
contain sufficient facts to make plausible the conclusion that
but for his age, he would not have suffered the challenged
action.”Williams v. Addie Mae Collins Community Service,
No. 11 Civ. 2256, 2012 WL 4471544, at *3 (S.D.N.Y. Sept.
27, 2012) (internal quotation marks and brackets omitted);
accord Fagan v. U.S. Carpet Installation, Inc., 770 F.Supp.2d
490, 497 (E.D.N.Y.2011).

a. Failure to Hire
The ADA prohibits discrimination against any “qualified
individual on the basis of disability,” including with respect
to hiring decisions. 42 U.S.C. § 12112(a). A prima facie
case of discrimination under the ADA requires showing that:
(1) the employer is subject to the ADA; (2) the plaintiff is
disabled within the meaning of the ADA; (3) the plaintiff
is otherwise qualified to perform the essential functions of
her job with or without reasonable accommodation; and (4)
the plaintiff suffered an adverse employment action because
of her disability. See Rios v. Department of Education, 351
F. App'x 503, 505 (2d Cir.2009). The Rehabilitation Act
likewise bars employment discrimination based on disability,
as defined in the ADA. 29 U.S.C. § 791(g). An individual may
qualify as “disabled” by showing that (1) she has a disability,
defined as “a physical or mental impairment that substantially
limits one or more major life activity,”42 U.S.C. § 12102(1)
(A); (2) she has “a record of” a disability, 42 U.S.C. §
12102(1)(B); or (3) she is “regarded as having” a disability,
42 U.S.C. § 12102(1)(C). As in the Title VII context, these
prima facie elements “provide an outline of what is necessary
to render a plaintiff's employment discrimination claims
for relief plausible.”Idlisan v. New York City Health and
Hospitals Corp., No. 12 Civ. 9163, 2013 WL 6049076, at *4
(S.D.N.Y. Nov.15, 2013) (internal quotation marks omitted).

Ms. Vlad–Berindan was fifty-four years old when she
interviewed with the Transit Authority in February 2013
(Compl.Form, ¶ II(D)), and therefore qualified for protection
under the ADEA. However, she does not allege any facts
in support of her conclusory statement that she was not
hired because the “interviewers decided that [she] was ... too
over 40 years old....” (Compl., ¶ 22). She therefore has not
raised an inference of age discrimination. See Munoz–Nagel
v. Guess, Inc., No. 12 Civ. 1312, 2013 WL 1809772, at *7
(S.D.N.Y. April 30, 2013) (dismissing ADEA claim where
plaintiff alleged only that defendant preferred to hire younger
applicants and that she believed younger interviewees were
hired instead of her). I therefore recommend that the ADEA
claim be dismissed.

*11 Here, Ms. Vlad–Berindan alleges that she is unable to
lift weights in excess of ten pounds or to stand for prolonged
periods of time due to a recent surgery. (Compl.Form, ¶ II(D);
Compl., ¶ 10). As “lifting” is included in the ADA's definition
of “major life activities,” see42 U.S.C. § 12102(2)(A), Ms.
Vlad–Berindan qualifies as having a disability on these facts.
The plaintiff alleges that she informed Ms. Stanley that “due
to her surgeries, she could not lift heavy things” (Compl.¶
10) and could not work for more than six hours per day
(Compl., ¶ 9). She does not allege that Ms. Stanley responded
negatively to either of these disclosures. Rather, she states that
Ms. Stanley “[t]hen ... asked [the] plaintiff when she could
start working.”(Compl., ¶ 11). The mere fact that an employer
was aware of an applicant's disability when deciding not to
hire her is insufficient to raise an inference of discrimination.
See Kruger v. Hamilton Manor Nursing Home, –––F.Supp.2d

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––––, ––––, 2014 WL 1345333, at *4 (W.D.N.Y.2014);
Mitchell v. New York City Transit Authority, 856 F.Supp.2d
478, 484 (E.D.N.Y.2012). While Ms. Vlad–Berindan does
make a general allegation that paralegals sometimes “need
[ ] to lift and carry ... very heavy files,” and states that
she would have needed a rolling shelf and document case
to accommodate her disability (Compl., ¶ 29), she does not
allege that this task or her need for accommodation was
discussed in any of her interviews. Because the facts alleged
are not sufficient to raise an inference of discrimination based
on disability, the ADA and Rehabilitation Act failure-to-hire
claims should be dismissed.

b. Retaliation
Ms. Vlad–Berindan also raises a retaliation claim under the
ADA. (Compl., ¶¶ 43–44). The ADA prohibits retaliation
against individuals who have “made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under [the ADA].”42 U.S.C. §
12203(a). In order to establish a prima facie case of retaliation
under the ADA, a plaintiff must show “ ‘that (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.’ “ Weissman v. Dawn Joy
Fashions, Inc., 214 F.3d 224, 234 (2d Cir.2000) (quoting
Sarno v. Douglas Elliman–Gibbons & Ives, Inc., 183 F.3d
155, 159 (2d Cir.1999)).

27), and that the separate advertisements for the two positions
“constitute [a] violation of federal [l]abor [l]aws, and a
discriminatory practice” (Compl.¶ 46).
It is entirely unclear from the Complaint (and not clarified
by the opposition papers) which statute Ms. Vlad–Berindan
is referencing. The new claims raised in her opposition to
the motion to dismiss suggest that she may have intended
to claim, under the FLSA, that the Transit Authority would
be obligated to pay the minimum wage during the internship
portion of this arrangement. However, she would not have
standing to raise such a claim, as she does not allege that
she actually worked for the Transit Authority as an intern.
Alternatively, though she references “federal labor law,” it
is possible that she intended to bring a false advertising
claim under New York General Business Law § 350–
a, which prohibits “advertising ... of the kind, character,
terms or conditions of any employment opportunity if such
advertising is misleading in a material respect.”Gen. Bus.
Law § 350–a(1). However, this claim would also be barred,
as an employer may only be liable for false advertising
“if the aggrieved person has [ ] suffered actual pecuniary
damage as a result of the misleading advertising of an
employment opportunity.”Gen. Bus. Law § 350–a(2). Even
if the advertising scheme alleged by Ms. Vlad–Berindan
would constitute false advertising, she has not alleged that
she experienced any pecuniary damage as a result. This claim
should therefore be dismissed.

Ms. Vlad–Berindan claims that the conduct described in
the Complaint-that is, the failure to hire her—“constitutes
retaliation against the Plaintiff because she confessed her
medical condition protected by the ADA.”(Compl., ¶ 44).
However, the disclosure Ms. Vlad–Berindan made does not
itself qualify as “protected activity” within the meaning of
the Act. 42 U.S.C. § 12203(a). While Ms. Vlad–Berindan has
since engaged in “protected activity” by making a charge to
the EEOC and filing the instant case, such activity occurred
after the alleged adverse employment action. Ms. Vlad–
Berindan's retaliation claim should therefore be dismissed.

E. Employee Classification Claim
Finally, Ms. Vlad–Berindan asserts a claim of “Employee[ ]
Misclassification,” alleging that the defendants sought to
classify paralegal-contractors as independent contractors to
avoid contributing “to the Treasury, the Social Security, and
Medicare funds, as well as to state unemployment insurance
and workers compensation funds.”(Compl. at 8). Like her
deceptive job advertisement claim, this claim is not premised
on identifiable federal or state law. Further, Ms. Vlad–
Berindan has not alleged that she actually worked for the
Transit Authority as a paralegal-contractor. This claim should
therefore be dismissed.

D. Deceptive Advertising Claim
*12 In addition to her employment discrimination claims,
Ms. Vlad–Berindan brings a claim for “Deceptive and
Prohibited Job Ads” (Compl. at 8), claiming that the Transit
Authority always intended to hire one person for both the
internship and the paralegal-contractor position (Compl., ¶

F. Leave to Re–Plead
The Second Circuit has held that a pro se litigant should be
afforded at least one opportunity to “amend his complaint
prior to its dismissal for failure to state a claim, unless the
court can rule out any possibility, however unlikely it might
be, that an amended complaint would succeed in stating

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a claim.”Gomez v. USAA Federal Savings Bank, 171 F.3d
794, 796 (2d Cir.1999) (per curiam). Because there is some
prospect, however slim, that the plaintiff could state a valid
claim, she should be given an opportunity to amend her
complaint.
*13 The plaintiff is cautioned that her amended complaint,
should she choose to file one, must state plausible claims
on which relief may be granted to avoid dismissal. Facts
alleged upon information and belief must be “accompanied
by a statement of the facts upon which the belief is
founded.”Prince, 427 F.Supp.2d at 385 (internal quotation
marks omitted). Therefore, while the plaintiff may plead that
she believes she was not hired based on her race, national
origin, age, or disability, she must also allege facts that raise
a plausible inference of each type of discrimination alleged
in support of such a belief. Further, the plaintiff should limit
any claims under the FLSA and the NYLL to periods of time
during which she actually completed work for the defendants.

have evidentiary support after a reasonable opportunity for
further investigation or discovery.”Fed.R.Civ.P. 11(b)(3).

Conclusion
For the foregoing reasons, I recommend that the defendants'
motion to dismiss (Docket no. 11) be granted without
prejudice to the filing of an amended complaint. Pursuant
to 28 U.S.C. § 636(b) (1) and Rules 72, 6(a), and 6(d) of
the Federal Rules of Civil Procedure, the parties shall have
fourteen (14) days to file written objections to this Report
and Recommendation. Such objections shall be filed with
the Clerk of the Court with extra copies delivered to the
chambers of the Honorable Richard J. Sullivan, Room 2104,
40 Foley Square, New York, New York 10007, and to the
undersigned, Room 1960, 500 Pearl Street, New York, New
York 10007. Failure to file timely objections will preclude
appellate review.

Dated: Oct. 7, 2014.
Finally, the plaintiff is cautioned that her amended complaint
must comply with the strictures of Rule 11 of the Federal
Rules of Civil Procedure, including the requirement that all
“factual contentions have evidentiary support” or be “likely
End of Document

All Citations
Slip Copy, 2014 WL 6982929

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