Brevil v. Rockland County et al

Filing 64

OPINION AND ORDER re: 51 MOTION to Dismiss Amended Complaint. filed by John Fella, Scott Firestone, P.T. Thomas, Rockland County, Ed Day, Ram Nagubandi, Barbara Gavin, June Gray, Department of Social Services, Susan Sherwood , Joseph Filippone, Joan Silvestri, Carla Ortiz, Scott Vanderhoef. Defendants' motion to dismiss the amended complaint is GRANTED. Plaintiff is granted leave to amend her claims for violations of Title VII, NYSHRL, Section 1983, the First an d Fourteenth Amendments, and for intentional and negligent infliction of emotional distress. The remainder of plaintiff's claims may not be repleaded. In addition, DSS may not be named as a defendant in the second amended complaint. Plaintiff sh all file her second amended complaint by no later than December 1, 2017. If plaintiff fails to comply with this Order, the case may be dismissed for failure to prosecute or failure to comply with a court order. Fed. R. Civ. P. 41(b). The Court certif ies pursuant to 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). The Clerk is instructed to terminate the motion (Doc. #51) and terminate the Department of Social Services as a defendant. SO ORDERED., (Department of Social Services terminated.) (Signed by Judge Vincent L. Briccetti on 10/25/17) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------x
MARIE BREVIL,
:
Plaintiff,
:
:
v.
:
:
COUNTY OF ROCKLAND, ED DAY, SCOTT :
VANDERHOEF, JUNE GRAY, ROCKLAND
:
COUNTY DEPARTMENT OF SOCIAL
:
SERVICES, SUSAN SHERWOOD, JOAN
:
SILVESTRI, BARBARA GAVIN, JOSEPH
:
FILIPPONE, CARLA ORTIZ, P.T. THOMAS,
:
SCOTT FIRESTONE, RAM NAGUBANDI, and :
JOHN FELLA,
:
Defendants.
:
--------------------------------------------------------------x

OPINION AND ORDER
15 CV 5103 (VB)

Briccetti, J.:
Plaintiff Marie Brevil, proceeding pro se, brings this action alleging defendants
discriminated and retaliated against her on the basis of her race, gender, national origin, and
religion, and subjected her to a hostile work environment in violation of 42 U.S.C. § 1983, Title
VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e, et seq., and the New York
State Human Rights Law, N.Y. Exec. Law § 290 et seq. Plaintiff also brings claims for
violations of 42 U.S.C. §§ 1981, 1982, 1985, 1986, and the First and Fourteenth Amendments to
the Constitution. Finally, plaintiff also asserts claims for assault and battery and intentional and
negligent infliction of emotional distress.
Now pending is defendants’ motion to dismiss the amended complaint pursuant to Rule
12(b)(6). (Doc. #51).
For the reasons set forth below, defendants’ motion is GRANTED. However, plaintiff is
granted leave to file a second amended complaint, with the limitations explained below.
The Court has subject matter jurisdiction under 28 U.S.C. § 1331.

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BACKGROUND
In deciding the pending motion to dismiss, the Court accepts as true all well-pleaded
factual allegations in the amended complaint (“Am. Compl.”) and draws all reasonable
inferences in plaintiff’s favor.
Plaintiff began her employment as a caseworker for the Rockland County Department of
Social Services (“DSS”) in June 2007. At least as of the filing of her amended complaint,
plaintiff continued to hold that position.
Plaintiff alleges from June 2007 to the present, she has “experience[d] adverse, critical,
derogatory and demeaning statements and comments from co-workers and employees and
subordinates of defendants.” (Am. Compl. ¶ 42). She alleges “senior management” of Rockland
County (the “County”) and DSS have been “constructively” made aware of the conduct to which
plaintiff has been subjected. (Id.).
Plaintiff alleges in April 2013, she was “physically assaulted by defendant Scott
Firestone . . . arising out of the racial, gender, and religious animus held by defendants.” (Am.
Compl. ¶ 43). She alleges Firestone, also a DSS caseworker, was “criminally prosecuted” for the
assault but that defendants “formally reprimanded plaintiff for the assault” because “she failed to
recognize the personal stress that . . . Firestone was under and therefore the cause of his anger
and hostility towards her.” (Id. at ¶¶ 44-45). Plaintiff alleges “in the days immediately
following the attack by . . . Firestone, plaintiff was forced to take a medically necessary leave of
absence from her employment, for treatment of depression, anxiety, and irregular heart beats
[sic].” (Id. at ¶ 46).
In addition, plaintiff alleges:
[S]ince the 2013 assault, plaintiff has been isolated, teased, and subjected to cruel
treatment by defendants, to wit: admonished not to speak in Creole, even though

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her clients sometimes speak the language; admonished about her dress, including a
head wrap/scarf, that arises, in large part, because of her religious beliefs; and
subjected to constant electronic monitoring of her work, unlike and to a much lesser
degree than similarly situated co-workers.
(Am. Compl. ¶ 47).
Plaintiff further alleges from April 2013 to October 2015, she was subjected to “extreme
workplace hostility, with constant references by immediate supervisors to her race, religion,
nationality and gender.” (Am. Compl. ¶ 48).
Plaintiff alleges she informed defendants about these issues, but that “defendants, up to
and including defendant Ed Day, trivialize[ed], minimiz[ed] and fail[ed] to act on her
grievances.” (Am. Compl. ¶ 49).
From October 2015 to May 2016, plaintiff took a second leave of absence from work
because she was allegedly suffering from “severe health issues” stemming from “the workplace
animus she had been experiencing.” (Am. Compl. ¶ 50). During this leave, plaintiff claims she
was diagnosed with “severe emotional distress, depression, post stress disorder and a heart
condition requiring the surgical implantation of a heart monitor.” (Id. ¶ 51).
On June 24, 2014, plaintiff filed complaints of discrimination, harassment, and retaliation
with the New York State Division of Human Rights (“NYSDHR”) and the Equal Employment
Opportunity Commission (“EEOC”). By decision dated December 19, 2014, the NYSDHR
dismissed the complaint and closed the case. On January 20, 2015, the EEOC issued a Notice of
Right to Sue (“EEOC Notice”). Because the initial EEOC Notice was returned to the EEOC as
undeliverable, the EEOC re-sent the Notice on April 15, 2015. Plaintiff received the re-sent
EEOC Notice on April 20, 2015. She filed this lawsuit on June 30, 2015.

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DISCUSSION
I.

Legal Standard
In deciding a Rule 12(b)(6) motion, the Court evaluates the sufficiency of the operative

complaint under the “two-pronged approach” articulated by the Supreme Court in Ashcroft
v. Iqbal, 556 U.S. 662, 679 (2009). First, plaintiff’s legal conclusions and “[t]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory statements,” are not entitled
to the assumption of truth and are thus not sufficient to withstand a motion to dismiss. Id. at 678;
Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, “[w]hen there are well-pleaded
factual allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. at 679.
To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard
of “plausibility.” Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544,
564 (2007). A claim is facially plausible “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. at 678. “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id.
Because plaintiff is proceeding pro se, the Court must construe her submissions liberally
and interpret them “to raise the strongest arguments that they suggest.” Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (internal quotation marks
omitted). “Even in a pro se case, however . . . threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Chavis v. Chappius, 618 F.3d

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162, 170 (2d Cir. 2010) (internal quotation marks omitted). Nor may the Court “invent factual
allegations [plaintiff] has not pled.” Id.
II.

DSS
Plaintiff’s claims against the DSS must be dismissed because County agencies or

departments do not have the capacity to be sued under New York law. See Omnipoint
Commc’ns, Inc. v. Town of LaGrange, 658 F. Supp. 2d 539, 552 (S.D.N.Y. 2009) (“In New
York, agencies of a municipality are not suable entities.”); Hall v. City of White Plains, 185 F.
Supp. 2d 293, 303 (S.D.N.Y. 2002) (“Under New York law, departments which are merely
administrative arms of a municipality do not have a legal identity separate and apart from the
municipality and cannot sue or be sued.”); see also N.Y. Gen. Municipal Law Sec. 2 (“The term
‘municipal corporation,’ as used in this chapter, includes only a county, town, city and village.”).
Accordingly, DSS is dismissed as a defendant.
III.

Employment Discrimination, Retaliation and Hostile Work Environment Claims
Plaintiff’s amended complaint contains eighteen causes of action against fourteen

defendants. Eleven of the eighteen causes of action sound in employment discrimination,
retaliation, and hostile work environment (the “employment-related claims”). For the following
reasons, each of plaintiff’s employment-related claims is dismissed. However, because a liberal
reading of plaintiff’s amended complaint indicates valid employment-related claims might be
stated, the Court sua sponte grants plaintiff leave to file a second amended complaint and replead
those claims she can allege truthfully and plausibly.
A.

Title VII Discrimination and Retaliation Claims

Defendants argue plaintiff’s Title VII discrimination and retaliation claims must be
dismissed because (i) the individual defendants may not be held personally liable under Title
VII, and (ii) plaintiff has failed to allege she suffered from an adverse employment action.
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The Court agrees.
First, “individuals are not subject to liability under Title VII.” Wrighten v. Glowski, 232
F.3d 119, 120 (2d Cir. 2000) (citing Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995)).
Thus, any Title VII claims may be asserted only against the County here.
Next, to state a Title VII discrimination claim, a plaintiff must “allege two elements:
(1) the employer discriminated against [her] (2) because of [her] race, color, religion, sex, or
national origin.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015)
(citing 42 U.S.C. § 2000e–2(a)(1)). “As to the first element, an employer discriminates against a
plaintiff by taking an adverse employment action against [her].” Id. “An adverse employment
action is one which is more disruptive than a mere inconvenience or an alteration of job
responsibilities.” Id. (internal quotation marks omitted). “Examples of materially adverse
changes include termination of employment, a demotion evidenced by a decrease in wage or
salary, a less distinguished title, a material loss of benefits, significantly diminished material
responsibilities, or other indices unique to a particular situation.” Id. (internal quotation marks
omitted).
Finally, to state a Title VII retaliation claim, a plaintiff “must plausibly allege that:
(1) defendants discriminated—or took an adverse employment action—against [her],
(2) ’because’ [she] has opposed any unlawful employment practice.” Vega v. Hempstead Union
Free Sch. Dist., 801 F.3d at 90 (citing 42 U.S.C. § 2000e–3(a)). In the context of a Title VII
retaliation claim, “an adverse employment action is any action that ‘could well dissuade a
reasonable worker from making or supporting a charge of discrimination.’” Id. (quoting
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)). “As for causation, a
plaintiff must plausibly plead a connection between the act and his engagement in protected

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activity.” Id. (citing 42 U.S.C. § 2000e–3(a)). “A retaliatory purpose can be shown indirectly by
timing: protected activity followed closely in time by adverse employment action.” Id.
Here, plaintiff alleges defendants “adversely impact[ed] plaintiff’s employment,
employment opportunities, promotional opportunities, and past and future wages . . . in
retaliation for plaintiff exercising her rights under federal and state constitutional law” (Am.
Compl. ¶ 54), but the amended complaint contains no well-pleaded factual allegations supporting
this broad, conclusory statement, or how, exactly, defendants’ actions adversely affected her
employment. Plaintiff remains employed by DSS, and she alleges no facts suggesting, for
example, that she was up for, but was denied, a particular promotion in a specific year.
Likewise, the amended complaint is devoid of non-conclusory factual allegations suggesting she
was retaliated against for filing her EEOC or NYSDHR complaints. (See Am. Compl. ¶ 132).
As a result, plaintiff’s Title VII discrimination and retaliation claims are dismissed.
However, as explained in greater detail below, because a liberal reading of plaintiff’s amended
complaint suggests she may be able to state valid Title VII claims, plaintiff is granted leave to
replead these claims.
B.

New York Human Rights Law Retaliation Claim

Plaintiff’s New York State Human Rights Law (“NYSHRL”) retaliation claim also fails.
“The standards for evaluating . . . [a] retaliation claim[] are identical under Title VII and
the NYSHRL. Kelly v. Howard I. Shapiro & Assocs. Consulting Engineers, P.C., 716 F.3d 10,
14 (2d Cir. 2013) (citing Weinstock v. Columbia Univ, 224 F.3d 33, 42 n. 1 (2d Cir. 2000).
However, unlike Title VII, certain individuals may be held liable under the NYSHRL, either
directly as employers or indirectly as aider-abettors. A supervisor—that is, a person with the
power to hire and fire plaintiff—may be held liable as an employer if he or she “actually

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participates in the conduct giving rise to the discrimination.” Feingold v. New York, 366 F.3d
138, 157 (2d Cir. 2004) (internal quotations and alterations omitted).
As explained when addressing plaintiff’s Title VII claims, plaintiff has failed to allege an
adverse employment action sufficient to state a retaliation claim. Moreover, the amended
complaint does not make clear who plaintiff’s supervisors were or which defendants participated
in the conduct giving rise to the discrimination. She has thus also insufficiently alleged a
NYSHRL retaliation claim against any of the individual defendants.
Accordingly, plaintiff’s NYSHRL retaliation claim is dismissed. However, because her
amended complaint suggests she may be able to state a valid retaliation claim under NYSHRL,
plaintiff may replead this claim.
C.

Section 1983 Claims Against the Individual Defendants

Defendants also argue plaintiff’s Section 1983 claim must be dismissed against all of the
individual defendants because plaintiff failed to allege their personal involvement in the actions
giving rise to the claims.
The Court agrees.
“The Fourteenth Amendment provides public employees with the right to be ‘free from
discrimination.’” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015)
(quoting Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006). “Consequently, public
employees aggrieved by discrimination in the terms of their employment may bring suit under 42
U.S.C. § 1983 against any responsible persons acting under color of state law.” Id. (citing Back
v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122–23 (2d Cir. 2004)). “To state a
claim under § 1983, a plaintiff must allege two elements: (1) ‘the violation of a right secured by
the Constitution and laws of the United States,’ and (2) ‘the alleged deprivation was committed

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by a person acting under color of state law.’” Id. at 87–88 (quoting Feingold v. New York, 366
F.3d at 159). “A state employee acting in his official capacity is acting under color of state law.”
Id. (internal quotation marks omitted).
However, “[a]n individual may be held liable under . . . 1983 only if that individual is
‘personally involved in the alleged deprivation.’” Littlejohn v. City of New York, 795 F.3d 297,
314 (2d Cir. 2015) (quoting Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d at
127).
A showing of personal involvement requires evidence that:
(1) the defendant participated directly in the alleged constitutional violation, (2) the
defendant, after being informed of the violation through a report or appeal, failed
to remedy the wrong, (3) the defendant created a policy or custom under which
unconstitutional practices occurred, or allowed the continuance of such a policy or
custom, (4) the defendant was grossly negligent in supervising subordinates who
committed the wrongful acts, or (5) the defendant exhibited deliberate indifference
. . . by failing to act on information indicating that unconstitutional acts were
occurring.
Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d at 127 (citing Colon v. Coughlin,
58 F.3d 865, 873 (2d Cir. 1995)).
Here, with one exception, plaintiff has not alleged any specific conduct attributable to
any of the individual defendants. The only exception is plaintiff’s allegation that Firestone
physically assaulted her in 2013 “arising out of the racial, gender, and religious animus held by
defendants.” (Am. Compl. ¶ 43). However, even this allegation is vague—for example, it does
not explain what specific circumstances gave rise to this attack. Furthermore, plaintiff does not
specifically allege which of the individual defendants were her supervisors or co-workers, or
what their relationship to plaintiff was, or is today.
As such, the allegations in the amended complaint are insufficient to state a Section 1983
claim against the individual defendants. However, because a liberal reading of plaintiff’s

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amended complaint suggests she may be able to state a valid Section 1983 claim, plaintiff is
granted leave to replead this claim.
D.

Section 1983 Claims Against the County

To the extent plaintiff seeks to sue the County for discrimination, retaliation, or a hostile
work environment under Section 1983, those claims also fail.
“[A] local government may not be sued under § 1983 for an injury inflicted solely by its
employees or agents.” Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694
(1978) (“Monell”). “Instead, it is when execution of a government’s policy or custom, whether
made by its lawmakers or by those whose edicts or acts may fairly be said to represent official
policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id.
To state a Monell claim, a plaintiff need not allege the policy or custom itself is
unconstitutional; rather, liability exists when a municipal policy is valid but the municipality’s
actual practice is not. Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 125–26 (2d Cir.
2004) (practice of using excessive force can be basis for municipal liability even though city’s
policy on use of force is itself constitutional).
“While Monell claims are not subject to a ‘heightened’ pleading standard beyond that
defined in Rule 8(a)(2), such claims nevertheless must meet the plausibility requirements of Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 572 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678,
(2009).” Guzman v. United States, 2013 WL 5018553, at *4 (S.D.N.Y. September 13, 2013) 1
(quoting Leatherman v. Tarrant Cty. Narcotics Intelligence and Coordination Unit, 507 U.S. 163,
168 (1993)). “In other words, boilerplate allegations will not suffice.” Id. (internal quotation

Because plaintiff is proceeding pro se, she will be provided with copies of all
unpublished opinions cited in this decision. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir.
2009).
1

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marks omitted). In sum, without more, “[t]he allegations [a defendant] acted pursuant to a
‘policy,’ without any facts suggesting the policy’s existence, are plainly insufficient.” Missel v.
Cty. of Monroe, 351 F. App’x 543, 545-46 (2d Cir. 2009) (summary order) (citing Dwares v.
City of New York, 985 F.2d 94, 100-02 (2d Cir. 1993)).
Here, plaintiff has not alleged that there existed a policy or custom of discrimination
against women, or people of plaintiff’s race, national origin, or religion. Instead, the amended
complaint only contains allegations related to the treatment of plaintiff individually.
As a result, plaintiff’s Monell claim is dismissed, but as with her Section 1983 claim
against the individual defendants, plaintiff may replead this claim.
E.

Hostile Work Environment

Plaintiff’s amended complaint also lacks sufficient detail to state a hostile work
environment claim.
“To establish a hostile work environment under Title VII . . . or § 1983, a plaintiff must
show 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 and create
an abusive working environment.’” Littlejohn v. City of New York, 795 F.3d at 320–21
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). However, to survive a motion to
dismiss, “a plaintiff need only plead facts sufficient to support the conclusion that she was faced
with ‘harassment . . . of such quality or quantity that a reasonable employee would find the
conditions of her employment altered for the worse.’” Patane v. Clark, 508 F.3d 106, 113 (2d
Cir. 2007) (quoting Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003)).
“[A] work environment’s hostility should be assessed based on the totality of the
circumstances.” Patane v. Clark, 508 F.3d at 113 (internal quotation marks omitted). “Factors

11

that a court might consider in assessing the totality of the circumstances include: (1) the
frequency of the discriminatory conduct; (2) its severity; (3) whether it is threatening and
humiliating, or a mere offensive utterance; and (4) whether it unreasonably interferes with an
employee’s work performance.” Id. (internal quotation marks omitted). “[W]hether a particular
work environment is objectively hostile is necessarily a fact-intensive inquiry.” Id. at 114.
Here, although plaintiff’s amended complaint contains allegations that suggest the
existence of a hostile work environment claim, it makes only generalized assertions against all
“defendants” over broad periods of time. For example, plaintiff alleges she has been
“admonished not to speak in Creole . . . admonished about her dress . . . and subjected to
constant electronic monitoring of her work.” (Am. Compl. ¶ 47). The amended complaint lacks
any details about who made these remarks, when, how frequently, or whether it interfered with
her performance.
Accordingly, plaintiff’s hostile work environment claim is dismissed, but with leave to
replead.
IV.

Remaining Constitutional Claims
Plaintiff also brings claims under the First and Fourteenth Amendments. For the

following reasons, those claims are also dismissed but with leave to replead.
A.

First Amendment Claims

The First Amendment prohibits government officials from retaliating against a person for
exercising her right to freedom of speech. Hartman v. Moore, 547 U.S. 250, 256 (2006). To
prevail on a First Amendment retaliation claim, a plaintiff must offer evidence showing: (i) her
speech was constitutionally protected; (ii) she suffered an adverse employment action; and

12

(iii) the speech at issue was a substantial or motivating factor in the decision to retaliate. See
Morrison v. Johnson, 429 F.3d 48, 51 (2d Cir. 2005).
In the First Amendment retaliation context, employment action is adverse if it “would
deter a similarly situated individual of ordinary firmness from exercising his or her constitutional
rights.” Zelnick v. Fashion Inst. of Tech., 464 F.3d 217, 225 (2d Cir. 2006) (internal quotation
marks omitted). “In this context, ‘[a]dverse employment actions include discharge, refusal to
hire, refusal to promote, demotion, reduction in pay, and reprimand.’” Id. at 226 (quoting Morris
v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999)). “This list of retaliatory conduct is certainly not
exhaustive, however, and ‘lesser actions may also be considered adverse employment actions.’”
Id. (quoting Morris v. Lindau, 196 F.3d at 110). “Adverse employment actions may include
negative evaluation letters, express accusations of lying, assignment of lunchroom duty,
reduction of class preparation periods, failure to process teacher’s insurance forms, transfer from
library to classroom teaching as an alleged demotion, and assignment to classroom on fifth floor
which aggravated teacher’s physical disabilities.” Id. (internal quotation marks omitted).
To state a First Amendment freedom of religion retaliation claim against a public official,
a plaintiff “must plead and prove: (1) he engaged in speech protected by the First Amendment;
(2) defendants’ actions were motivated or substantially caused by his exercise of that right; and
(3) there was a resultant and “actual chill[ing]” of his exercise of that constitutional right.”
Rathbun v. DiLorenzo, 438 F. App’x 48, 49 (2d Cir. 2011) (Curley v. Vill. of Suffern, 268 F.3d
65, 73 (2d Cir. 2001)).
Here, plaintiff alleges defendants violated her First Amendment rights to free speech by
“minimizing, adversely addressing and stigmatizing plaintiff’s dress and clothing,” and that
defendants’ actions “ma[de] her weary and fearful of coming to work and caus[ed] her to take an

13

extended medical leave of absence.” (Am. Compl. ¶¶ 102-03). In addition, plaintiff alleges
defendants violated her right to freedom to exercise her religion by “significantly minimizing,
adversely addressing and stigmatizing plaintiff[’s] religious beliefs,” and that this “instill[ed] in
plaintiff the fear that her personal beliefs are illegal, inappropriate and not in conformity with the
culture,” and it made her “weary and fearful of coming to work and causing her to take an
extended medical leave of absence.” (Id. ¶¶ 106-08). These allegations are overly broad,
conclusory, and generally insufficient to show an adverse employment action or an actual
chilling of plaintiff’s exercising her religion.
Accordingly, plaintiff’s First Amendment claims are dismissed but, because the amended
complaint suggests she may have an actionable First Amendment cause of action, she is granted
leave to replead this claim.
B.

Fourteenth Amendment Procedural Due Process Claim

“To state a cause of action under the due process clause, a plaintiff must show that she
has a property interest, created by state law, in the employment or the benefit that was removed.”
Bernheim v. Litt, 79 F.3d 318, 322 (2d Cir. 1996). “If a protected interest exists, [the Court]
must then determine whether the [employer] deprived [the plaintiff] of that interest without due
process.” Strong v. Bd. of Educ. of Uniondale Union Free Sch. Dist., 902 F.2d 208, 211 (2d Cir.
1990).
Here, plaintiff has not alleged defendants denied her employment or any benefits that
would give rise to a Fourteenth Amendment claim.
Accordingly, plaintiff’s Fourteenth Amendment due process claim is dismissed but with
leave to replead. However, plaintiff may replead this claim only if she can truthfully allege she
was denied a benefit related to her employment without due process.

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V.

Section 1981, 1982, 1985, and 1986 Claims
Plaintiff also brings causes of action under Sections 1981, 1982, 1985, and 1986 of Title

42 of the United States Code. For the following reasons, each of these causes of action is
dismissed with prejudice and without leave to replead.
A.

Sections 1981 and 1982

First, “[t]o establish a claim under § 1981, a plaintiff must allege facts in support of the
following elements: (1) the plaintiff is a member of a racial minority; (2) an intent to
discriminate on the basis of race by the defendant; and (3) the discrimination concerned one or
more of the activities enumerated in the statute (i.e., make and enforce contracts, sue and be
sued, give evidence, etc.).” Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087
(2d Cir. 1993). Section 1982 claims are evaluated under the same standard. See Puglisi v.
Underhill Park Taxpayer Ass’n, 947 F.Supp. 673, 699–700 (S.D.N.Y. 1996).
Plaintiff’s amended complaint is devoid of any allegations suggesting defendants’ alleged
discrimination concerned any of the enumerated activities contained in the statute such as
making and enforcing contracts, sue and be sued, etc. (Section 1981) or inherit, purchase, etc.
property (Section 1982).
Accordingly, plaintiff’s Section 1981 and 1982 claims are dismissed. Because nothing in
the amended complaint suggests she may have a valid claim under either Section 1981 or Section
1982, these claims are dismissed with prejudice and without leave to replead.
B.

Sections 1985 and 1986

Next, “[t]he four elements of a § 1985(3) claim are: (1) a conspiracy; (2) for the purpose
of depriving, either directly or indirectly, any person or class of persons of equal protection of
the laws, or of equal privileges and immunities under the laws; (3) an act in furtherance of the

15

conspiracy; (4) whereby a person is either injured in his person or property or deprived of any
right of a citizen of the United States.” Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d
at 1087–88 (citing United Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825, 828–29 (1983)).
“Furthermore, the conspiracy must also be motivated by ‘some racial or perhaps otherwise classbased, invidious discriminatory animus behind the conspirators’ action.’” Id. (quoting United
Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. at 829).
In addition, Section 1986 “provides a cause of action against anyone who ‘having
knowledge that any of the wrongs conspired to be done and mentioned in section 1985 are about
to be committed and having power to prevent or aid, neglects to do so.’” Mian v. Donaldson,
Lufkin & Jenrette Sec. Corp., 7 F.3d at 1088 (quoting Katz v. Morgenthau, 709 F.Supp. 1219,
1236 (S.D.N.Y.), aff’d in part and rev’d in part on other grounds, 892 F.2d 20 (2d Cir. 1989)).
“Thus, a § 1986 claim must be predicated upon a valid § 1985 claim.” Id. (citing Dacey v.
Dorsey, 568 F.2d 275, 277 (2d Cir. 1978), cert. denied, 436 U.S. 906 (1978)).
However, “it is well settled that there can be no actionable conspiracy under the civil
rights laws if the alleged conspirators are employees of a single organization and their alleged
actions were taken in the course of their employment.” Ahmed v. Gelfand, 160 F. Supp. 2d 408,
413 (E.D.N.Y. 2001).
Here, plaintiff’s amended complaint fails to offer more than conclusory allegations of
conspiracy, and all of the allegations are made against fellow employees of the County or DSS.
Accordingly, plaintiff’s Sections 1985 or 1986 claims are dismissed with prejudice and
without leave to replead.

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VI.

Other State Law Claims
Finally, plaintiff has tacked on state law claims that bear little relation to the remainder of

the allegations in her complaint. These claims are also dismissed.
A.

Assault and Battery Claim

Plaintiff’s claim for “assault and battery” must also be dismissed. Under New York law,
“an action to recover damages for assault” is covered by a one-year statute of limitations. CPLR
§ 215(3). Here, the assault of which plaintiff complains occurred in April 2013, well more than
one year before she filed this action in June 2015.
Accordingly, plaintiff’s assault and battery claim is dismissed with prejudice. Because
amendment of this claim would be futile, she may not replead it.
B.

Intentional and Negligent Infliction of Emotional Distress

To state a claim for intentional infliction of emotional distress under New York law, a
plaintiff must allege: “(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a
substantial probability of causing, severe emotional distress; (iii) a causal connection between
the conduct and injury; and (iv) severe emotional distress.” Howell v. N.Y. Post Co., 81 N.Y.2d
115, 121 (1993). “In practice, courts [tend] to focus on the outrageousness element, [which is
the element] most susceptible to determination as a matter of law.” Id. “The requirements of the
rule are rigorous, and difficult to satisfy.” Id. at 122 (internal quotation marks omitted).
“Liability has been found only where the conduct has been so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.” Id. (internal quotation marks
omitted).

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Likewise, a plaintiff alleging negligent infliction of emotional distress must plead
“conduct that was so outrageous and extreme as to support a claim for emotional distress.”
Acquista v. New York Life Ins. Co., 285 A.D.2d 73, 83 (1st Dep’t 2001). In addition, “[i]n order
to state a claim for negligent infliction of emotional distress, a plaintiff must allege that she was
owed a duty, that the defendant breached that duty, and that the plaintiff suffered emotional
injury as a result.” Fisk v. Letterman, 424 F. Supp. 2d 670, 676 (S.D.N.Y. 2006) (quoting Green
v. Leibowitz, 118 A.D.2d 756, 757 (2d Dep’t 1986)). “In addition, the defendant’s conduct must
have unreasonably endangered the plaintiff’s physical safety.” Id.
Here, plaintiff’s amended complaint provides only a summary description of defendants’
conduct, and thus fails plausibly to allege that defendants acted outrageously.
Accordingly, plaintiff’s claims for intentional and negligent infliction of emotional
distress are dismissed. Plaintiff may replead these claims, but only if she can do so truthfully,
understanding the difficulty of satisfying the rigorousness of the standards these claims require.
VII.

Leave to Amend
Rule 15(a)(2) instructs that courts “should freely give leave” to amend a complaint “when

justice so requires.” Liberal application of Rule 15(a) is warranted with respect to pro se
litigants who “should be afforded every reasonable opportunity to demonstrate that [they have] a
valid claim.” Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000) (quoting Satchell v. Dilworth, 745
F.2d 781, 785 (2d Cir. 1984)). District courts “should not dismiss [pro se complaints] 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.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)).

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However, leave to amend may “properly be denied for . . . ‘futility of amendment.’”
Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman v. Davis, 371
U.S. 178, 182 (1962)). This is true even when plaintiff is proceeding pro se. See Martin v.
Dickson, 100 F. App’x 14, 16 (2d Cir. 2004) (summary order).
Here, a liberal reading of the amended complaint indicates that valid Title VII, NYSHRL,
Section 1983, First Amendment, Fourteenth Amendment, and intentional and negligent infliction
of emotional distress claims may be stated.
However, granting plaintiff leave to amend the remainder of her claims would be futile.
That is because, as explained above, plaintiff’s claims under Sections 1981, 1982, 1985, and
1986, and for assault and battery, are legally deficient or barred by the statute of limitations, and
amendment could not cure those defects.
Accordingly, plaintiff is granted leave to file a second amended complaint asserting only
claims for violations of Title VII, NYSHRL, Section 1983, the First and Fourteenth
Amendments, and for intentional and negligent infliction of emotional distress. 2
Plaintiff is reminded that any factual allegation in the second amended complaint must be
true to the best of her knowledge, information, and belief. See Fed. R. Civ. P. 11(b)(3). In the

2

The Court notes that plaintiff previously sought leave to file a second amended
complaint, but by Order dated May 4, 2017, the Court denied that motion without prejudice.
(Doc. #58). The Court’s May 4, 2017, Order instructed plaintiff that “[i]f plaintiff still wishes to
seek leave to file a second amended complaint, she shall make that application separate and apart
and in addition to her opposition to defendants’ motion,” and “[a]ny such application must
include, at a minimum, a copy of the proposed second amended complaint and a detailed
explanation for why plaintiff believes amendment is necessary.” (Doc. #58). Plaintiff did not
move for leave to file a second amended complaint. Nevertheless, the Court concludes that
because plaintiff is proceeding pro se and because it appears she may be able to state some valid
claims—once properly pleaded—the Court now sua sponte grants plaintiff leave to file a second
amended complaint despite her failure to move for permission to do so.

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second amended complaint, plaintiff shall clearly set forth the facts that give rise to her claims,
including the dates, times, and places of the alleged underlying acts.
To the greatest extent possible, plaintiff’s second amended complaint must address the
deficiencies identified in this Opinion and Order and must:
1. give the names and titles of all relevant persons and state their professional
relationship to plaintiff (e.g., direct supervisor for a particular time period);
2. describe all relevant events, stating the facts that support plaintiff’s case including
what each defendant did or failed to do;
3. give the dates and times of each relevant event or, if not known, the approximate
date and time of each relevant event;
4. give the location where each relevant event occurred;
5. describe how each defendant’s acts or omissions violated plaintiff’s rights and
describe the injuries plaintiff suffered; and
6. state what relief plaintiff seeks from the Court, such as money damages,
injunctive relief, or declaratory relief.
Essentially, the body of plaintiff’s second amended complaint must tell the Court: who
violated her federally protected rights; what facts show that her federally protected rights were
violated; when such violation occurred; where such violation occurred; and why plaintiff is
entitled to relief.
The second amended complaint will completely replace, not supplement, the existing
complaint. Therefore, plaintiff must include in the second amended complaint all
information necessary for her claims.

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Finally, as mentioned in the Court’s May 4, 2017, Order, the Court strongly encourages
plaintiff to contact the NYLAG Legal Clinic for Pro Se Litigants for assistance (although not
legal representation) in this case. (See Doc. #58).
CONCLUSION
Defendants’ motion to dismiss the amended complaint is GRANTED.
Plaintiff is granted leave to amend her claims for violations of Title VII, NYSHRL,
Section 1983, the First and Fourteenth Amendments, and for intentional and negligent infliction
of emotional distress. The remainder of plaintiff’s claims may not be repleaded. In addition,
DSS may not be named as a defendant in the second amended complaint.
Plaintiff shall file her second amended complaint by no later than December 1, 2017.
If plaintiff fails to comply with this Order, the case may be dismissed for failure to
prosecute or failure to comply with a court order. Fed. R. Civ. P. 41(b).
The Court certifies pursuant to 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).
The Clerk is instructed to terminate the motion (Doc. #51) and terminate the Department
of Social Services as a defendant.
Dated: October 25, 2017
White Plains, NY

SO ORDERED:

____________________________
Vincent L. Briccetti
United States District Judge

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