Tyson v. The Town of Ramapo et al

Filing 55

OPINION & ORDER re: 48 MOTION to Dismiss . filed by Thomas Cokeley, Christopher P. St. Lawrence, The Town of Ramapo, Brendel Charles, Samuel Tress, Yitzchok Ullman, Christopher P. St. Lawrence, Patrick J. Withers, Peter F. B rower, Brendel Charles, Brad R. Weidel., Thomas Cokeley (as Captain, Police Department Town of Ramapo, Individually ), Thomas Cokeley (as Captain, Police Department Town of Ramapo, and sued in their official capacities as employees of the Town of Ramapo), Peter F. Brower (as Former Chief of Police, Police Department Town of Ramapo, and sued in their official capacities as employees of the Town of Ramapo) and Peter F. Brower (as Former Chief of Police, Police Department Town of Ramapo, Individually) terminated. For the foregoing reasons, the Court grants Defendants' Motion To Dismiss with respect to Plaintiff's § 1983 and NYSHRL § 296 claims against Defendants Brower and Cokeley. Plaintiff's claims survi ve against all other Defendants, but only with respect to her termination. The claims that are dismissed are dismissed without prejudice. Although Plaintiff has filed an Amended Complaint in this Action, this is the first adjudication on Defendants M otion to Dismiss. See Rennalls v. Alfredo, No. 12-CV-5300, 2015 WL 5730332, at *5 n.6 (S.D.N.Y. Sept. 30, 2015) ("[The] Court will afford Plaintiff an opportunity to amend if, after reviewing this Order and Opinion and the law therein, he still believes that he can plausibly state claims against Defendants."). If Plaintiff wishes to file a Second Amended Complaint alleging additional facts and otherwise addressing the deficiencies identified above, Plaintiff must do so within 30 days o f the date of this Opinion & Order. Failure to do so will result in the dismissal of this Action with prejudice. The Clerk of Court is respectfully direct to terminate the pending Motion, (see Dkt. No. 48.) SO ORDERED. (Signed by Judge Kenneth M. Karas on 3/25/2019) (kv) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

YOLANDA D. TYSON,
Plaintiff,
v.
THE TOWN OF RAMAPO;
CHRISTOPHER P. ST. LAWRENCE, as
Town Supervisor; YITZCHOK ULLMAN, as
Councilman; SAMUEL TRESS, as
Councilman; BRENDEL CHARLES aka
BRENDEL LOGAN, as Councilwoman;
PATRICK J. WITHERS, as Councilman;
BRAD R. WEIDEL, as Chief of Police,
Police Department Town of Ramapo; PETER
F. BROWER, as Former Chief of Police,
Police Department Town of Ramapo; and
THOMAS COKELEY, as Captain, Police
Department Town of Ramapo, each sued
individually and in their official capacities as
employees of THE TOWN OF RAMAPO,
Defendants.

Appearances:
Eric Sanders, Esq.
The Sanders Firm, P.C.
New York, NY
Counsel for Plaintiff
Steven C. Stern, Esq.
Alison Cullen, Esq.
Sokoloff Stern, LLP
Carle Place, NY
Counsel for Defendants

No. 17-CV-4990 (KMK)
OPINION & ORDER

KENNETH M. KARAS, District Judge:
Plaintiff Yolanda D. Tyson (“Plaintiff”) brings this action against the Town of Ramapo
(the “Town” or “Ramapo”), Town Supervisor Christopher P. St. Lawrence (“St. Lawrence”),
Councilman Yitzchok Ullman (“Ullman”), Councilman Samuel Tress (“Tress”), Councilwoman
Brendel Charles aka Brendel Logan (“Brendel”), Councilman Patrick J. Withers (“Withers”),
Chief of Police of the Police Department of the Town of Ramapo (“Ramapo PD”) Brad R.
Weidel (“Weidel”), former Ramapo PD Chief of Police Peter F. Brower (“Brower”), and
Ramapo PD Captain Thomas Cokeley (“Cokeley”) (collectively, “Defendants”), alleging that
Defendants discriminated against her on the basis of gender and race, in violation of 42 U.S.C.
§ 1983 and the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 296, when
they denied her certain benefits and accommodations after she suffered work-related injuries and
when they ultimately terminated her as a Police Officer with the Ramapo PD. (See Am. Compl.
(Dkt. No. 43).) Before the Court is Defendants’ Motion To Dismiss the Amended Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). (Not. Of Mot. (Dkt. No. 48).). For the
following reasons, Defendants’ Motion is granted in part and denied in part.
I. Background
A. Materials Considered
As a threshold matter, the Court considers the proper treatment of exhibits submitted by
Defendants in support of their Motion. Defendants filed several exhibits along with the instant
Motion To Dismiss. (See Decl. of Steven C. Stern, Esq. (“Stern Decl.”) (Dkt. No. 49).) Exhibit
A is a copy of the decision In the Matter of the Application of Yolanda D. Tyson v. Town of
Ramapo, Index. No. 001012/2016, by the New York Supreme Court for the County of Rockland,
dated April 5, 2017. (See Stern Decl. Ex. A.) Exhibit B is a copy of Hearing Officer William E.

2

Sherwood’s Decision, dated May 9, 2015, In the Matter of 207-c Application of Police Officer
Yolanda Tyson (“Section 207-c Decision”), and the “Agreed Statement of Facts” jointly
submitted by the parties in that proceeding. (See Stern Decl. Ex. B.) Exhibit C is a copy of the
January 29, 2016 and May 18, 2016 letters (respectively, “January 29, 2016 Letter” and “May
18, 2016 Letter”) referenced by Plaintiff in the Amended Complaint. (See Stern Decl. Ex. C.)
Additionally, on October 12, 2018, counsel for Defendants submitted a letter alerting the Court
that the New York State Appellate Division affirmed the state trial court’s determination in
Plaintiff’s Article 78 proceeding, and attached the Appellate Division Decision. (See Letter from
Steven C. Stern, Esq. to Court (Dkt. No. 54); Tyson v. Town of Ramapo, 85 N.Y.S.3d 569 (App.
Div. 2018).)
Plaintiff argues at length that the Court may not consider these exhibits because that
would impermissibly convert Defendants’ Motion To Dismiss into a motion for summary
judgment. (Pl.’s Mem. of Law in Opp’n to Mot. To Dismiss (“Pl.’s Mem.”) 5–10 (Dkt. No. 52).)
Defendants correctly point out that the state court opinions and the decision of the hearing officer
are matters of public record that the Court may take judicial notice of, and that the two letters are
incorporated by reference into Plaintiff’s Amended Complaint. (See Defs.’ Mem. of Law in
Further Supp. of Mot. To Dismiss (“Defs.’ Reply”) 1–2 (Dkt. No. 53).)
Generally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its
consideration to facts stated on the face of the complaint, in documents appended to the
complaint or incorporated in the complaint by reference, and to matters of which judicial notice
may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (quotation
marks omitted). “To go beyond the allegations in the [c]omplaint would convert the . . . motion
to dismiss into one for summary judgment.” Thomas v. Westchester County Health Care Corp.,

3

232 F. Supp. 2d 273, 275 (S.D.N.Y. 2002). There are a few notable exceptions to this rule. In
addition to the complaint, a court ruling on a Rule 12(b)(6) motion “may consider . . . any written
instrument attached to the complaint as an exhibit[,] or any statements or documents
incorporated in it by reference,” as well as “matters of which judicial notice may be taken, and
documents either in [the] plaintiffs’ possession or of which [the] plaintiffs had knowledge and
relied on in bringing suit.” Kalyanaram v. Am. Ass’n of Univ. Professors at N.Y. Inst. of Tech.,
Inc., 742 F.3d 42, 44 n.1 (2d Cir. 2014) (alterations and quotation marks omitted); Wang v.
Palmisano, 157 F. Supp. 3d 306, 317 (S.D.N.Y. 2016) (same).
“To be incorporated by reference, the [c]omplaint must make a clear, definite[,] and
substantial reference to the documents.” Thomas, 232 F. Supp. 2d at 275. Additionally, even if
not attached or incorporated by reference, a document upon which the complaint “solely relies
and which is integral to the complaint may be considered by the court in ruling on such a
motion.” Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007) (emphasis and quotation marks
omitted). Documents are “integral” where the plaintiff had to rely on their content “in order to
explain what the actual unlawful course of conduct was on which the [d]efendants embarked.”
Thomas, 232 F. Supp. 2d at 276; see also Munno v. Town of Orangetown, 391 F. Supp. 2d 263,
269 (S.D.N.Y. 2005) (finding documents were integral to the complaint where the plaintiff
“relied heavily upon [them] in framing the [c]omplaint”); Gantt v. Ferrara, No. 15-CV-7661,
2017 WL 1192889, at *14 (S.D.N.Y. Mar. 29, 2017) (same). Additionally, “no serious question
as to [the document’s] authenticity can exist.” Kramer v. Time Warner Inc., 937 F.2d 767, 774
(2d Cir. 1991). Here, Plaintiff expressly cites to the January 29, 2016 and May 18, 2016 letters
related to her termination in her Amended Complaint and discusses them at some length. (Am.
Compl. ¶¶ 61–64.) These letters relate to her termination, which is a matter at the core of this

4

case. The letters attached as Exhibit C are thus incorporated by reference and the Court may
consider them.
The Court also is entitled to take notice of matters of public records. See Pani v. Empire
Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998) (noting that “a district court may rely on
matters of public record in deciding a motion to dismiss under Rule 12(b)(6), including case law
and statutes”); Medcalf v. Thompson Hine LLP, 84 F. Supp. 3d 313, 321 (S.D.N.Y. 2015) (“In
considering a motion to dismiss, a court is permitted to take judicial notice of public records
. . . .”); see also Hason v. Office of Prof’l Med. Conduct, 314 F. Supp. 2d 241, 246 (S.D.N.Y.
2004) (holding that court may consider state administrative decisions in ruling on a Rule 12(b)(6)
motion). The two state court opinions related to Plaintiff’s termination attached as Exhibit A and
by Plaintiff’s October 12, 2018 letter, (Dkt. No. 54), and the decision of the hearing officer
related to Plaintiff’s application for benefits under Section 207-c of the General Municipal Law
(“GML”), attached as Exhibit B, are matters of public record and the Court may consider them.
However, in taking judicial notice of such public records, the Court does so only to
establish “the fact of such litigation,” not for the truth of the matters asserted in each proceeding.
See Global Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006) (“A
court may take judicial notice of a document filed in another court . . . to establish the fact of
such litigation and related filings.” (quotation marks omitted)); see also Roth, 489 F.3d at 509
(“If the court takes judicial notice, it does so in order to determine what statements [a document]
contained—but again not for the truth of the matters asserted.” (quotation marks omitted)). For
these reasons, the Court may consider Defendants’ Exhibits.1

Defendants also urge the Court to consider the “Stipulated Facts” presented to the
hearing officer. (Defs.’ Reply 2.) However, public records may not be considered for the truth
of the matters asserted therein. See Global Network Commc’ns, Inc, 458 F.3d at 157. The cases
1

5

B. Factual Background
The facts recounted below are taken from Plaintiff’s Amended Complaint and are
assumed to be true for purposes of resolving the Motion. Where relevant, the Court also
recounts facts stated in the two state court opinions related to Plaintiff’s termination, In the
Matter of the Application of Yolanda D. Tyson, Index. No. 001012/2016 and Tyson, 85 N.Y.S.3d
569, the state hearing officer’s decision related to Plaintiff’s application for benefits under
Section 207-c (Section 207-c Decision), and the January 29, 2016 and May 18, 2016 letters.
Plaintiff identifies as an African-American female. (Am. Compl. ¶ 16.) Prior to being a
Police Officer with the Ramapo PD, Plaintiff was employed by the New York City Police
Department (“NYPD”). (Id. ¶ 17.) She was hired by the NYPD in 2015 and assigned to attend
the Police Academy. (Id. ¶ 18.) After she graduated from the NYPD Police Academy, she
applied for a job with Ramapo PD. (Id. ¶ 19.) In February 2006, Plaintiff was appointed as a
Police Officer with the Ramapo PD. (Id. ¶ 20.)
Plaintiff alleges that on January 31, 2012, she was involved in an on-duty accident with
her department vehicle. (Id. ¶ 27.) On February 29, 2012, the Town and Brower approved
Plaintiff’s application to receive Section 207-c benefits, related to arm, shoulder, hip, neck, and
back injuries for the January 2012 accident. (Id. ¶ 28.)

Defendants cite in support of their argument are inapposite here because they involve hearing
records that were incorporated by reference as integral to the plaintiff’s case, see, e.g., Heller v.
Bedford Cent. Sch. Dist., 144 F. Supp. 3d 596, 605 (S.D.N.Y. 2015) (holding that a hearing
officer decision in a teacher’s state disciplinary hearing could be considered on a Rule 12(b)(6)
motion because it was integral to the plaintiff’s claim), aff’d, 665 F. App’x 49 (2d Cir. 2016);
Morey v. Somers Cent. Sch. Dist., No. 06-CV-1877, 2007 WL 867203, at *4 (S.D.N.Y. Mar. 21,
2007) (holding that court could “consider the records of state administrative proceedings . . . and
any prior related court decisions” because it was integral to the plaintiff’s claim), whereas the
Court considers the hearing decision here as a public record. The adjudication of Plaintiff’s
Section 207-c benefits and whether her injuries were related to each other, is not integral to the
Court’s consideration of her discrimination claims.
6

Plaintiff alleges that on March 16, 2012, she returned to work “Full Duty” without
restrictions, even though she had not yet fully recovered. (Am. Compl. ¶ 29.) On March 17,
2012, Plaintiff left work due to neck pains and Dr. Kraushaar recommended that Plaintiff recover
at home for approximately four weeks.2 (Id. ¶ 30.) On April 4, 2012, the Town and Brower
granted Plaintiff a light duty administrative assignment. (Id. ¶ 31.)
In October 2012, the Town, Brower, and Weidel ordered Plaintiff back to work and gave
her an administrative assignment despite the fact that she was still experiencing pain from the
January 2012 accident. (Id. ¶ 32.) Plaintiff alleges that on January 29, 2013, she received an
Interoffice Memorandum from the Town, Brower, and Weidel, through Administrative
Lieutenant William Gravina (“Gravina”), outlining the conditions Plaintiff would need to fulfill
to consolidate and re-acquire Section 207-c benefits. (Id. ¶ 33.)
In February 2013, the Town, Brower, and Cokeley ordered Plaintiff to report home as
“regular sick,” and to return her firearm for safekeeping. (Id. ¶ 34.) Plaintiff alleges that during
this same time period, the Town, Brower, and Cokeley accommodated another officer, Danny
Jacarusco (“Jacarusco”), who is Caucasian and male, with an administrative job and did not
remove his firearm. (Id. ¶ 35.)
Plaintiff alleges that on April 24, 2013, she returned to “Full Duty” status. (Id. ¶ 36.)
Plaintiff alleges that the Town and Brower instructed her that Dr. Gottlieb must write on her
medical note that she had “no medical restrictions or limitations.”3 (Id. ¶ 37.) Plaintiff alleges
that the Town “never imposed such requirements upon Caucasian officers, particularly males.”
(Id. ¶ 38.)

2

Plaintiff does not explain who Dr. Kraushaar is.

3

Plaintiff does not explain who Dr. Gottlieb is.
7

Shortly thereafter, Plaintiff reported sick again. (Am. Compl. ¶ 39.) Plaintiff alleges tht
on April 26, 2013, the Town and Brower, through Gravina, advised her to “report sick for duty
each scheduled work day until further notice from the department and to follow the restrictions
in the duties of members on sick leave as specified in General Order 705.3 (C).” (Id. ¶ 40.)
Plaintiff alleges that the Town selectively enforced the sick reporting requirements against her
but “did not impose such requirements upon Caucasian officers, particularly males.” (Id. ¶ 41.)
Plaintiff further alleges that on or about April 29, 2013, the Town and Brower, through
former Ramapo Patrolman’s Benevolent Association (“PBA”) President Dennis Procter, notified
her that the department would be scheduling her for an Independent Medical Examination
(“IME”) to determine her duty status and ability to return to work. (Id. ¶ 42.)
Plaintiff alleges that in or around May 2013, she was subjected to an IME by the Town
and Brower, and a determination was made to return her to “Full Duty” status, although she
maintained that she had not recovered from the January 2012 accident. (Id. ¶ 43.) Plaintiff
alleges that since February 2006, the Town did not order similarly situated Caucasian officers,
particularly males, to return to “Full Duty” status if they were not fully recovered from their
injuries. (Id. ¶ 44.)
Plaintiff alleges that on June 16, 2013, the Town and Brower ordered her to return to
work “Full Duty.” (Id. ¶ 45.) Plaintiff returned to work full duty on June 17, 2013. (Id. ¶ 47.)
On June 18, 2013, Plaintiff re-qualified with her department issued service weapon and shotgun,
even though she was not fully recovered from the injuries she sustained in the January 2012
accident. (Id. ¶ 48.) Plaintiff alleges that since February 2006 the Town did not order “similarly
situated Caucasian officers, particularly males, to qualify with department issued service
weapons or shotguns if not fully recovered from their injuries.” (Id. ¶ 49.)

8

Plaintiff alleges that from June through October 2013, she called out sick numerous times
related to injuries sustained during the January 2012 accident but was never granted Section 207c benefits, while similarly situated male Caucasian officers were. (Am. Compl. ¶ 50.)
Plaintiff alleges that in September 2013, she was injured taking an emotionally disturbed
person into police custody. She wanted the injuries to be treated as an aggravation of the January
2012 accident with her department vehicle. (Id. ¶ 51.)
Plaintiff alleges that on October 29, 2013, she re-aggravated the neck and back injuries
she sustained in the January 2012 accident while she was getting dressed in the locker room for
her police duties. (Id. ¶ 52.)
On November 5, 2013, the Town and Brower denied Plaintiff’s request for the October
29, 2013, injuries to be treated as a re-aggravation related to the January 31, 2012 accident for
approval Section 207-c benefits. (Id. ¶ 53.) Plaintiff alleges that since February 2006, the Town
has “never” denied Caucasian officers requests for Section 207-c benefits under similar
circumstances (Id. ¶ 54.)
On September 22, 2014, Plaintiff had lower-back surgery. (Id. ¶ 55.) Plaintiff alleges
that on October 2, 2014, the Town, Brower, and Cokeley, through Sergeant Blaine Howell
(“Howell”), “ordered her to report to work within a few weeks after her lower back surgery.”
(Id. ¶ 56.) The Town and Cokeley completed forms for Plaintiff to obtain Section 207-c benefits
for the lower back surgery she had undergone. (Id. ¶ 57.) Plaintiff alleges that upon completion,
the Town and Cokeley ordered Howell to escort Plaintiff out of the building. (Id. ¶ 58.)
Plaintiff alleges that sometime between May and July 2015, she applied for a tax-free
GML 207-c Disability Retirement Pension. (Id. ¶ 59.) On May 9, 2015, the State Hearing
Officer upheld the denial of Section 207-c benefits related to Plaintiff’s October 2013 injury,

9

because Plaintiff had previously voluntarily withdrawn her request for a hearing regarding the
October 2013 injury, and stated that she understood she may not file subsequent applications,
and that the denial of benefits in connection with the October 2013 incident would be final and
binding upon her. (Section 207-c Decision 1–3.)
Plaintiff alleges that on December 16, 2015, the New York State Workers Compensation
Board approved her application for benefits, finding 70 percent loss in wage earning capacity.
(Am. Compl. ¶ 60.)
Plaintiff alleges that on January 29, 2016, she received a letter from the Town, St.
Lawrence, Ullman, Tress, Brendel, and Withers, threatening to terminate her employment on
February 29, 2016 pursuant to Civil Service Law Section 71. (Id. ¶ 61.) The letter is dated
January 28, 2016, and states in relevant part:
In that you have been absent from your Town position of Police Officer for over
one year by reason of your workers’ compensation leave, this is to advise you
pursuant to Section 71 of the New York Civil Service Law and a resolution of the
Town Board/Police Commission, that your workers’ compensation leave will end
and your employment with the Town of Ramapo will terminate on Monday,
February 29, 2016 . . . . If you recover from your disability in the future, you have
a right under Section 71 of the Civil Service Law to apply to the Rockland County
Department of Personnel within one year of the end of your disability for a medical
examination to determine your fitness to return to work. If you are fit to return to
work, you will be considered for reinstatement to your position, if vacant, or to a
similar position . . . .
(January 29, 2016 Letter 1.)
Plaintiff alleges that on May 18, 2016, she received another letter from the Town, St.
Lawrence, Ullman, Tress, Brendel, and Withers, threatening to terminate her employment on
June 24, 2016, under Civil Service Law Section 71. (Am. Compl. ¶ 63.) The letter was identical
to the January 29, 2016 Letter in all material respects. (See May 18, 2016 Letter.) Plaintiff
alleges that since February 2006, the Town, St. Lawrence, Ullman, Tress, Brendel, and Withers,

10

have never sent such a threatening letter to terminate a male Caucasian officer’s employment
under Civil Service Law Section 71. (Am. Compl. ¶¶ 62, 64.)
Plaintiff alleges that on June 20, 2016, the Town and Weidel ordered her to report to the
stationhouse and turn over all department issued equipment, (id. ¶ 65); which she did on June 22,
2016, (id. ¶ 66). Plaintiff alleges that on June 24, 2016, the Town, St. Lawrence, Ullman, Tress,
Brendel, and Withers terminated her employment. (Id. ¶ 67.)
Plaintiff filed an Article 78 petition on July 7, 2016, seeking to annul her termination on
the grounds that it was arbitrary and capricious. (In the Matter of the Application of Yolanda D.
Tyson, Index. No. 001012/2016 at 2.) The court granted the Town’s motion to dismiss on April
4, 2017, holding that plaintiff’s termination was proper under Civil Service Law Section 71 and a
Memorandum of Agreement (“MOA”) the Town signed with the Ramapo PBA because Plaintiff
failed to offer “any evidence to support a claim, that the termination was not proper, or that she is
fit to return to her position and perform her duties.” (Id. at 7.) The Appellate Division affirmed
this decision on October 10, 2018, agreeing that Plaintiff “failed to state a cause of action with
respect to her allegation that the respondents’ determination to terminate her employment
pursuant to Section 71 and the MOA was arbitrary and capricious, an abuse of discretion, in
violation of lawful procedure, or affected by an error of law.” Tyson, 85 N.Y.S.3d at 570.
Plaintiff alleges the Town, St. Lawrence, Ullman, Tress, Brendel, and Withers terminated
her “despite having actual and/or constructive notice that she was treated differently due to her
race and gender.” (Am. Compl. ¶ 67.) Plaintiff alleges the Town, St. Lawrence, Ullman, Tress,
Brendel, Withers, Weidel, Brower, and Cokeley, “did nothing to protect her employment rights.”
(Id. ¶ 68.)

11

Plaintiff alleges that since 2006, the Town, St. Lawrence, Ullman, Tress, Brendel,
Withers, Weidel, Brower, and Cokeley, had actual or constructive notice that the following
Caucasian officers, particularly males, (1) received Section 207-c benefits without legal
challenge, (2) were never carried as “regular sick,” (3) were afforded the opportunity to stay at
home, some for periods of more than ten years without legal challenge, (4) received light duty
assignments or were reasonably accommodated, some for periods of more than ten years without
legal challenge, and (5) were not threatened with termination or terminated under Civil Service
Law Section 71: Neil Sweeney (Male); Denise Dougherty (Female); Robert Chapman (Male);
Mark Armstrong (Male); Modestino Giusto (Male); Baile Glauber (Female); John Youngman
(Male); James Curley (Male); Danny Jacaruso (Male); Patrick Reynar (Male) and John Paolucci
(Male). (Id. ¶¶ 21–25.)
Plaintiff alleges that since 2006, the Town, St. Lawrence, Ullman, Tress, Brendel,
Withers, Weidel, Brower, and Cokeley, “have never threatened with termination or terminated a
Caucasian officer, particularly males, under Civil Service Law Section 71.” (Id. ¶ 26.)
Plaintiff alleges the Town, St. Lawrence, Ullman, Tress, Brendel, Withers, Weidel,
Brower, and Cokeley “interfered with her property rights as a civil servant and her individual
civil rights causing her emotional distress and substantial economic losses due to, decreased take
home pay, decreased pension valuation and inability to recover entitled tax free benefits.” (Id.
¶ 69.)
C. Procedural History
Plaintiff filed her Complaint on July 3, 2017, (Compl. (Dkt, No. 1)), and refiled her
Complaint on July 5, 2017 to correct am ECF filing deficiency, (Compl. (Dkt. No.18).) On

12

August 7, 2017, the Court granted Defendants’ extension request to respond to the Complaint.
(Dkt. No. 34.)
On September 5, 2017, counsel for Defendants submitted a pre-motion letter to the Court
requesting permission to file a Motion To Dismiss. (See Letter from Steven C. Stern, Esq. to
Court (Dkt. No. 35).) On September 18, 2017, counsel for Plaintiff submitted a letter opposing
Defendants’ request. (See Letter from Eric Sanders, Esq., to Court (Dkt. No. 37).) On October
3, 2017, counsel for Plaintiff resubmitted the letter, (see Letter from Eric Sanders, Esq., to Court
(Dkt. No. 39)), per the Court’s instruction, in order to comply with the Court’s Individual
Practices, (Dkt. No. 38).
On December 14, 2017, the Court held a pre-motion conference and instructed Plaintiff
to file an Amended Complaint. (See Dkt. (minute entry for Dec. 14, 2017).) Plaintiff filed her
Amended Complaint on January 5, 2018. (See Am. Compl.)
On January 19, 2018, counsel for Defendants again submitted a pre-motion letter to the
Court requesting permission to file a Motion To Dismiss. (See Letter from Steven C. Stern, Esq.
to Court (Dkt. No. 44).) Plaintiff failed to respond to this letter by the deadline set by the Court.
(Dkt. No. 46.) On February 1, 2018, the Court granted Defendants leave to file a Motion To
Dismiss and set a motion briefing schedule. (Dkt. No. 47.)
On March 5, 2018, Defendants filed the instant Motion To Dismiss and accompanying
papers. (See Not. of Mot.; Defs.’ Mem. of Law in Supp. of Mot. To Dismiss (“Defs.’ Mem.”)
(Dkt. No. 51); Stern Decl.) On April 5, 2018, Plaintiff filed her Opposition to Defendants’
Motion to Dismiss. (See Pl.’s Mem. of Law in Opp’n to Mot. To Dismiss (“Pl.’s Mem.”) (Dkt.
No. 52).) Defendants filed their Reply in Further Support of their Motion To Dismiss on April
24, 2018. (See Defs.’ Reply.) On October 12, 2018, counsel for Defendants submitted a letter

13

alerting the Court that the New York State Appellate Division affirmed the state trial court’s
determination in Plaintiff’s Article 78 proceeding, holding Plaintiff’s termination was legal. (See
Letter from Steven C. Stern, Esq. to Court (Dkt. No. 54).)
II. Discussion
A. Standard of Review
Defendants move to dismiss the Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). The Supreme Court has held that although a complaint “does not need detailed factual
allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(alteration and quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks omitted). “Nor does a complaint suffice if it
tenders naked assertions devoid of further factual enhancement.” Id. (alteration and quotation
marks omitted). Instead, a complaint’s “[f]actual allegations must be enough to raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been
stated adequately, it may be supported by showing any set of facts consistent with the allegations
in the complaint,” id. at 563, and a plaintiff must allege “only enough facts to state a claim to
relief that is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his or her] claims
across the line from conceivable to plausible, the[] complaint must be dismissed,” id.; see also
Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a plausible claim for relief will
. . . be a context-specific task that requires the reviewing court to draw on its judicial experience
and common sense. But where the well-pleaded facts do not permit the court to infer more than

14

the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—’that
the pleader is entitled to relief.’” (citation omitted) (second alteration in original) (quoting Fed.
R. Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the
hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery
for a plaintiff armed with nothing more than conclusions.”).
In considering Defendants’ Motion To Dismiss, the Court is required to “accept as true
all of the factual allegations contained in the [C]omplaint.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (same). And, the
Court must “draw[] all reasonable inferences in favor of the plaintiff.” Daniel v. T & M Prot.
Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC,
699 F.3d 141, 145 (2d Cir. 2012)).
As noted, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its
consideration to facts stated on the face of the complaint, in documents appended to the
complaint or incorporated in the complaint by reference, and to matters of which judicial notice
may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (quotation
marks omitted).
B. Statute of Limitations
Defendants argue that most of Plaintiff’s claims are time-barred because a three-year
statute of limitations applies to § 1983 claims and a one-year and ninety-day statute of
limitations applies to NYSHRL § 296 claims. (Defs.’ Mem. 7.) The Court agrees in part.
For § 1983 actions, “the applicable limitations period is found in the general or residual
state statute of limitations for personal injury actions.” Pearl v. City of Long Beach, 296 F.3d 76,
79 (2d Cir. 2002). “In New York, the personal injury statute of limitations that applies to [§]

15

1983 actions is three years.” Id. (brackets omitted); see also Fairley v. Collins, No. 09-CV6894, 2011 WL 1002422, at *3 (S.D.N.Y Mar. 15, 2011) (same); Weslowski v. Zugibe, 96 F.
Supp. 3d 308, 322 (S.D.N.Y. 2015) (same); N.Y. C.P.L.R. § 214(5). In employment
discrimination cases, a § 1983 claim accrues “the date the allegedly discriminatory decision was
made and communicated to the employee.” Economu v. Borg–Warner Corp., 829 F.2d 311, 315
(2d Cir. 1987) (quoting Delaware State College v. Ricks, 449 U.S. 250, 258 (1980) (citation and
alterations omitted)); Phillips v. City of New York, 304 F. Supp. 3d 305, 311 (S.D.N.Y. 2018)
(same); see also Flaherty v. Metromail Corp., 235 F.3d 133, 137–38 (2d Cir. 2000) (holding that
the statute of limitations on the plaintiff’s § 1983 employment discrimination claim began to run
when he received notice of his termination).
“NYSHRL claims are governed by a three-year statute of limitations.” Nokaj v. N. E.
Dental Mgmt., LLC, No. 16-CV-3035, 2019 WL 634656, at *7 (S.D.N.Y. Feb. 14, 2019) (citing
Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 238 (2d Cir. 2007)); see also N.Y. C.P.L.R.
§ 214(2). NYSHRL “employment discrimination claim[s] accrue[] on the date that an adverse
employment determination is made and communicated to the plaintiff.” Milani v. Int’l Bus.
Machines Corp., Inc., 322 F. Supp. 2d 434, 451 (S.D.N.Y. 2004), aff’d 137 F. App’x 430 (2d
Cir. 2005); Holcombe v. U.S. Airways Grp., Inc., 976 F. Supp. 2d 326, 351 (S.D.N.Y. 2013)
(same).4

4

Defendants are incorrect that a one-year and ninety-day statute of limitations applies to
Plaintiffs NYSHRL claims—the New York State provisions they cite are inapposite. (Defs.’
Mem. 7 (citing N.Y. Town Law § 67; Gen. Mun. Law § 50-i.))
16

Thus, a three-year statute of limitations applies to all of Plaintiff’s claims.5 Because this
action was filed on July 3, 2017, all of Plaintiff’s claims that pre-date July 3, 2014 are timebarred. This includes the October 2012 order that Plaintiff return to work and perform an
administrative assignment, the February 2013 order that Plaintiff report home without her
firearm, Plaintiff’s April 24, 2013 return to full duty, Plaintiff being advised on April 26, 2013 to
report sick until further notice, Plaintiff being sent for an IME in May 2013, Plaintiff being
ordered to return to work and qualify with her firearm on June 16, 2013, the denial of Section
207-c benefits to Plaintiff for the period between June and October 2013, and Brower’s denial of
Plaintiff’s claim of Section 207-c benefits on November 5, 2013. (See Am. Compl. ¶¶ 32, 34,
40, 42–43, 45–48, 50, 53.) Thus, the Court will only consider the claims raised by Plaintiff that
occurred after July 3, 2014.
C. Collateral Estoppel
Defendants also argue that collateral estoppel bars Plaintiff from re-litigating the issues
decided by the State hearing officer and the Article 78 court, because “[a]lthough [P]laintiff did
not raise discrimination claims in those proceedings, she cannot contest the fact that she
voluntarily withdrew and waived her challenge to the denial of Section 207-c benefits. She
cannot challenge the Article 78 court’s findings that her termination was legal and proper.”
(Defs.’ Mem. 15–16.)
“The Full Faith and Credit Act, 28 U.S.C. § 1738, . . . requires the federal court to give
the same preclusive effect to a state-court judgment as another court of that State would give.”
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293 (2005) (citation and quotation

5

Plaintiff does not argue, and the Court is not aware, of any reason that the statute of
limitations should be tolled.
17

marks omitted); LaFleur v. Whitman, 300 F.3d 256, 271 (2d Cir. 2002) (“A federal court must
apply the collateral estoppel rules of the state that rendered a prior judgment on the same issues
currently before the court.”). In this case, New York is the relevant state as Defendants contend
that New York courts’ opinions and a New York administrative hearing officer’s judgment bar
Plaintiff’s discrimination and retaliation claims. See Colon v. Coughlin, 58 F.3d 865, 869 n.2
(2d Cir. 1995) (“We . . . look to New York law to determine the effect of [the plaintiff]’s Article
78 proceeding.”). “Under New York law, collateral estoppel precludes a party from relitigating
in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and
decided against that party . . . whether or not the tribunals or causes of action are the same.”
LaFleur, 300 F.3d at 271 (citation and quotation marks omitted). “When it applies, collateral
estoppel divests a federal district court of subject matter jurisdiction over the precluded issue.”
Sank v. City Univ. of N.Y., No. 10-CV-4975, 2011 WL 5120668, at *3 (S.D.N.Y. Oct. 28, 2011).
New York courts apply the doctrine “if (1) the issue in question was actually and necessarily
decided in a prior proceeding, and (2) the party against whom the doctrine is asserted had a full
and fair opportunity to litigate the issue in the first proceeding.” Colon, 58 F.3d at 869; see also
Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, 94 (2d Cir. 2005) (same). It must be
“quite clear that these requirements have been satisfied, lest a party be precluded from obtaining
at least one full hearing on his or her claim.” Colon, 58 F.3d at 869 (quotation marks omitted).
Thus, “[t]he party asserting issue preclusion bears the burden of showing that the identical issue
was previously decided, while the party against whom the doctrine is asserted bears the burden
of showing the absence of a full and fair opportunity to litigate in the prior proceeding.” Id.
However, “[t]he doctrine of collateral estoppel ‘is grounded on concepts of fairness and should

18

not be rigidly or mechanically applied.’” LaFleur, 300 F.3d at 271 (quoting D’Arata v. N.Y.
Cent. Mut. Fire Ins. Co., 564 N.E.2d 634, 636 (N.Y. 1990)).
As a result of this doctrine, plaintiffs have been precluded from relitigating employment
discrimination claims in federal court where state courts have concluded that no probable cause
existed to believe the plaintiffs were subjected to discrimination. See Kremer v. Chem. Constr.
Corp., 456 U.S. 461, 466–67 (1982) (holding that the plaintiff was barred from litigating his
discrimination claim in federal court because “the Appellate Division of the New York Supreme
Court . . . issued a judgment affirming the decision” of the NYSDHR Appeals Board, which
found that the plaintiff’s termination was “not the product of the discrimination that he had
alleged”); Yu v. Knighted LLC, No. 15-CV-9340, 2017 WL 666118, at *7 (S.D.N.Y. Feb. 16,
2017) (holding that the plaintiff was collaterally estopped from bringing discrimination and
retaliation claims under Title VII and the ADEA in federal court, where he previously brought
employment discrimination claims in state court under state law because “the elements of a
successful employment discrimination claim are identical under both federal and state law”);
Richardson v. City of New York, No. 97-CV-7676, 2004 WL 325631, at *1 (S.D.N.Y. Feb. 20,
2004) (“[W]here an Article 78 petition seeks annulment of a[n] employment disciplinary
decision on the ground that it was discriminatory or retaliatory, a determination by the state
courts that the decision was supported by substantial evidence necessarily implies rejection of
the claim that the termination was discriminatory and retaliatory and thus forecloses a similar
contention in a subsequent federal action.” (alterations and quotation marks omitted) (emphasis
added)).
However, the Court is not aware of, and Defendants do not cite to, a case in which a
plaintiff was collaterally estopped from bringing discrimination claims in federal court where the

19

state courts never considered whether the plaintiff was the victim of discrimination. Here, the
state hearing officer considered whether Plaintiff’s injuries were related to each other in a way
that allowed Plaintiff to qualify for Section 207-c benefits. (See generally Section 207-c
Decision.) For example, the state courts considered whether Civil Service Law Section 71, titled
“Reinstatement after separation for disability,” and the Town MOA with the PBA were
applicable to Plaintiff’s termination. See generally In the Matter of the Application of Yolanda
D. Tyson, Index. No. 001012/2016; Tyson, 85 N.Y.S.3d at 569. Neither the state hearing officer,
the New York Supreme Court, nor the Appellate Division considered whether discrimination
played any role in any of the actions taken by Defendants with respect to Plaintiff. The elements
of § 1983 and NYSHRL claims were in no way addressed by the state hearing officer or the state
courts.
“Here, Plaintiff’s claims under [§] 1983 . . . and analogous provisions of the . . .
NY[S]HRL likely will hinge on whether race [or gender] . . . was a motivating factor in the
[Defendants’] decision to terminate her . . . . With respect to this inquiry, a finding by the state
court that the decision to terminate . . . was rational does not lead inexorably to the conclusion
that race was not a motivating factor in the [Defendants’] decision to terminate her.” Garrido v.
N.Y.C. Dep’t of Edu., No. 16-CV-9464, 2018 WL 1664793, at *4–5 (S.D.N.Y. Mar. 15, 2018)
(citations, alterations, and quotation marks omitted). “Similarly, finding that the suspension
decision was discriminatory would not necessarily contradict the Article 78 court’s
determination that the suspension was not arbitrary. This is particularly true where, as here, . . .
[P]laintiff did not raise the discrimination claims before the state court, and so there is no reason
to conclude that the prior court rejected these claims in finding that the disciplinary action was
rational.” Id. at *5 (citations and quotation marks omitted).

20

Because Plaintiff did not raise her discrimination claims in the state proceeding, and
because there is no other indication that the state court considered and rejected these claims,
collateral estoppel does not preclude Plaintiff from making a discrimination challenge in the
instant case.
D. Merits Analysis
Plaintiff brings § 1983 and NYSHRL § 296 claims alleging that she suffered employment
discrimination on the basis of race and gender because she is an African-American woman.
(Am. Comp. ¶¶ 70–83.)6 Defendants argue that Plaintiff fails to state a prima facie equal
protection claim under § 1983 because she was not qualified to hold the position of Police
Officer, (Defs.’ Mem. 8–9), she did not allege adverse employment actions other than her
termination, (id. at 10–12), her termination did not occur under circumstances that give rise to an
inference of discrimination, (id. at 12–14), and Defendants had legitimate, non-discriminatory
reasons for their actions, (id. at 14–16). Defendants also argue that the individual Defendants
should be dismissed from the case because Plaintiff has failed to allege their personal
involvement, (id. at 16–18), and that the individual Defendants are entitled to qualified
immunity, (id. at 18).

Section 1983 “is not itself a source of substantive rights, but a method for vindicating
federal rights elsewhere conferred by those parts of the United States Constitution and federal
statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979); see also Patterson
v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004) (same). Plaintiff’s Amended Complaint
does not specify which substantive right she is attempting to vindicate via Section 1983.
Defendants assume Plaintiff brings a Fourteenth Amendment Equal Protection Clause claim
through § 1983. (Defs.’ Mem. 7–9.) And even though Plaintiff’s Complaint does not expressly
state she is relying on the Fourteenth Amendment, in her opposition to the motion, Plaintiff
identifies the standard that is applicable to equal protection claims as the standard that should
apply to this case. (Pl.’s Mem. 12–13.) Courts in the Second Circuit have analyzed employment
discrimination claims like Plaintiff’s under the Equal Protection Clause—and the Court thus
treats Plaintiff’s claims under § 1983 as Fourteenth Amendment equal protection claims.
6

21

1. Legal Standard
Race and gender discrimination claims under § 1983 and NYSHRL § 296 are subject to
the same standard as Title VII claims. See Brennan v. City of White Plains, 67 F. Supp. 2d 362,
372 (S.D.N.Y. 1999). “The core substantive standards that apply to claims of discriminatory
conduct in violation of Title VII are also applicable to claims of discrimination in employment in
violation of . . . the Equal Protection Clause.” Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206,
225 (2d Cir. 2004). To state an employment discrimination claim under § 1983 and NYSHRL
§ 296, a plaintiff must allege that (1) she was a member of a protected class; (2) she was
qualified for the position; (3) she suffered an adverse employment action; and (4) that action
took place under circumstances giving rise to an inference of discrimination. See Demoret v.
Zegarelli, 451 F.3d 140, 151 (2d Cir. 2006) (applying McDonnell Douglas burden-shifting
framework to analyze § 1983 and NYSHRL § 296 employment discrimination claims) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)); Roman-Malone v. City of New
York, No. 11-CV-8560, 2013 WL 3835117, at *4 (S.D.N.Y. July 25, 2013) (quoting Terry v.
Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003)) (same).7
“Because New York courts require the same standard of proof for claims brought under
the NY[S]HRL as for those brought under Title VII, [the Court will] analyze these claims in

To state a claim under the Equal Protection Clause, a plaintiff may either “alleg[e]
discrimination based on membership in a protected class,” or allege a “class of one” claim. See
Neilson v. D’Angelis, 409 F.3d 100, 104 (2d Cir. 2005), overruled on other grounds by Appel v.
Spiridon, 531 F.3d 138, 140 (2d Cir. 2008); T.K. v. N.Y.C. Dep’t of Educ., 779 F. Supp. 2d 289,
316 (E.D.N.Y. 2011) (“[An equal protection] claim may be the result of membership in a
protected class or result from an individual being a member of a class of one.”). The Supreme
Court has rejected class of one equal protection claims in the public employment context. See
Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 598 (2008). Here, Plaintiff alleges she was treated
differently on the basis of race and gender, and Defendants do not contest that she is the member
of these protected classes. The Court thus treats Plaintiff’s claims as protected-class theory
claims.
7

22

tandem.” Leopold v. Baccarat, Inc., 174 F.3d 261, 264 (2d Cir. 1999); see also Pucino v.
Verizon Wireless Commc’ns, Inc., 618 F.3d 112, 117 n.2 (2d Cir. 2010) (“We review
discrimination claims brought under the NYSHRL according to the same standards that we apply
to Title VII discrimination claims.”); Shands v. Lakeland Central School Dist., No. 15-CV-4260,
2018 WL 3315738, at *20 (S.D.N.Y. July 5, 2018) (stating that a plaintiff’s “race and gender
discrimination claim under the NYSHRL is analyzed under the same framework as her § 1983
[race and gender discrimination] claim”).
“Employment discrimination claims need not contain specific facts establishing a prima
facie case of discrimination.” See Drew v. Plaza Constr. Corp., 688 F. Supp. 2d 270, 275
(S.D.N.Y. 2010) (citation omitted). “Rather, an employment discrimination complaint ‘must
include only a short and plain statement of the claim that gives the defendant fair notice of what
the plaintiff’s claim is and the grounds upon which it rests.’” Id. (quoting Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 512 (2002)). The Second Circuit has explained that “what must be
plausibly supported by facts alleged in the complaint is that the plaintiff is a member of a
protected class, was qualified, suffered an adverse employment action, and has at least minimal
support for the proposition that the employer was motivated by discriminatory intent.” Littlejohn
v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015). “The facts required . . . to be alleged in
the complaint need not give plausible support to the ultimate question of whether the adverse
employment action was attributable to discrimination,” but rather the alleged facts “need only
give plausible support to a minimal inference of discriminatory motivation.” Id.; see also Vega
v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015) (“[A] plaintiff must allege
that the employer took adverse action against her at least in part for a discriminatory reason, and
she may do so by alleging facts that directly show discrimination or facts that indirectly show

23

discrimination by giving rise to a plausible inference of discrimination.”). Thus, to survive a
motion to dismiss, a plaintiff need “not plead a prima facie case of discrimination,”
Swierkiewicz, 534 U.S. at 515, but “must plead enough facts to state a discrimination claim that
is plausible on its face,” Roman-Malone, 2013 WL 3835117, at *4. Courts making the
plausibility determination must do so “mindful of the elusive nature of intentional
discrimination” and the concomitant frequency by which plaintiffs must “rely on bits and pieces
of information to support an inference of discrimination, i.e., a ‘mosaic’ of intentional
discrimination.” Vega, 803 F.3d at 86 (citation, italics, and some quotation marks omitted).8

8

Defendants correctly point out that if Plaintiff were to establish a prima facie case, her
claim would be further assessed under the McDonnell Douglas burden-shifting framework.
(Defs.’ Mem. 8.) If a plaintiff established a prima facie case of employment discrimination, the
burden shifts back to the defendants, who may rebut her claim with legitimate, nondiscriminatory reasons for the adverse employment action. See Sattar v. Johnson, 129 F. Supp.
3d 123, 137 (S.D.N.Y. 2015), aff’d sub nom Sattar v. United States Dep’t of Homeland Sec., 669
F. App’x 1 (2d Cir. 2016). “The defendant need not persuade the court that it was actually
motivated by the proffered reasons. It is sufficient if the defendant’s evidence raises a genuine
issue of fact as to whether it discriminated against the plaintiff.” Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 254 (1981) (citation omitted). For example, “an employer’s
dissatisfaction with even a qualified employee’s performance may, of course, ultimately provide
a legitimate, non-discriminatory reason for the employer’s adverse action.” Gregory v. Daly,
243 F.3d 687, 696 (2d Cir. 2001); see also Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 127
(2d Cir. 2004) (dismissing race and gender discrimination claim of employee whose disability
rendered him unable to perform job duties). If the defendants present legitimate reasons for the
employment action, the burden shifts once again to the plaintiff to plausibly allege “the
legitimate reasons offered by the defendant were not its true reasons, but were pretext for
discrimination.” Sattar, 129 F. Supp. 3d at 137 (citing Patterson, 375 F.3d at 221).
However, because a plaintiff need not make out a prima facie case at the motion to
dismiss stage, because the facts alleged in a plaintiff’s complaint are assumed to be true, and
because in adjudicating a Rule 12(b)(6) motion a district court must confine its consideration to
facts stated on the face of the complaint, Defendants cannot at this stage introduce evidence of
their non-discriminatory reasons for their treatment and termination of Plaintiff’s employment.
The Court has already decided that Plaintiff is not collaterally estopped from bringing her
discrimination claims in this case. And although the Court considers the outcomes of those state
proceedings after having taken judicial notice of them, it does not consider them for the truth of
the matters asserted therein. Courts within the Second Circuit that have applied the McDonnell
Douglas burden-shifting framework have done so at the summary judgment stage when
defendants are able to introduce evidence of their non-retaliatory reasons for the adverse
24

2. Application
Defendants do not dispute that Plaintiff is a member of protected classes. Therefore, the
Court considers whether Plaintiff has plausibly alleged that she was qualified to hold the position
of Police Officer, that she suffered adverse employment actions, and that the circumstances in
this case give rise to an inference of discrimination.
a. Qualification
Defendants argue that Plaintiff was not qualified to hold the position of Police Officer,
because she did not “plead that she was able to return to work during the statutory period, much
less that [D]efendants refused to allow her to return to work.” (Defs.’ Mem. 9.) Defendants
point to the January 29, 2016 and May 18, 2016 letters, which instructed Plaintiff that she could
apply for reinstatement within a year of her termination, but that Plaintiff failed to do so. (Id.)
Defendants also cite the New York State Supreme Court conclusion that “[t]here is nothing in
the record to suggest that [Plaintiff] is in a position to apply for reinstatement as [she] has never
claimed that she is fit to return to her position and perform her duties.” In the Matter of the
Application of Yolanda D. Tyson, Index. No. 001012/2016 at 7.
However, whether Plaintiff was eligible for reinstatement under Section 71 of the Civil
Service Law, (see January 29, 2016 Letter; May 18, 2016 Letter), and whether she was capable
of returning to work after an extended medical leave, does not answer the question of whether
Plaintiff was qualified for the position under equal protection jurisprudence. “To show

employment action at issue. See, e.g., Back v. Hastings on Hudson Union Free School Dist., 365
F.3d 107, 124 (2d Cir. 2004) (applying McDonnell Douglas burden-shifting framework to
§ 1983 equal protection claim at the summary judgment stage); Weber v. City of New York, 973
F. Supp. 2d 227, 251–58 (E.D.N.Y. 2012) (same). Defendants here cannot meet their burden of
production based on the allegations in the Complaint, or any other materials that can be
considered at this stage.
25

‘qualification’ . . . the plaintiff ‘need not show perfect performance or even average
performance.’” Gregory v. Daly, 243 F.3d 687, 696 (2d Cir. 2001) (citation omitted). “Instead,
she need only make the minimal showing that she possesses the basic skills necessary for
performance of [the] job.” Id. (citation and quotation marks omitted); Slattery v. Swiss
Reinsurance Am. Corp., 248 F.3d 87, 92 (2d Cir. 2001) (“As we have repeatedly held, the
qualification necessary to shift the burden to defendant for an explanation of the adverse job
action is minimal; plaintiff must show only that he possesses the basic skills necessary for
performance of the job.” (alteration, citations, and quotation marks omitted)); Hird–Moorhouse
v. Belgian Mission to United Nations, No. 03-CV-9688, 2010 WL 3910742, at *4 (S.D.N.Y. Oct.
5, 2010) (“Plaintiff need show only that he ‘possesses the basic skills necessary for performance
of [the] job.’” (quoting Slattery, 248 F.3d at 92)). “As a result, especially where discharge is at
issue and the employer has already hired the employee, the inference of minimal qualification is
not difficult to draw.” Slattery, 248 F.3d at 92; see also Gregory, 243 F.3d at 695–96 (“[W]hen,
as in this case, the employer has retained the plaintiff for a significant period of time . . . the
strength of the inference that she possesses the basic skills required for her job is heightened.”).
Moreover, “[t]he qualification prong [does not] . . . shift onto the plaintiff an obligation to
anticipate and disprove, in [her] prima facie case, the employer’s proffer of a legitimate, nondiscriminatory basis for its decision.” Slattery, 248 F.3d at 92 (italics omitted).9 Plaintiff only
needs to show that she “possesse[d] the basic skills necessary for performance of [the] job.”
Owens v. N.Y.C. Housing Auth., 934 F.2d 405, 409 (2d Cir. 1991).

9

The Court notes that Defendants offer the same argument, specifically that Plaintiff
was unable to return to work, as their legitimate, non-discriminatory basis for their actions.
(Defs.’ Mem. 14–16.)
26

Here, Plaintiff alleges she graduated from the NYPD Police Academy, (Am. Compl.
¶¶ 18–19), was hired by the Ramapo PD in February 2006, (id. ¶ 20), and worked in that position
until her termination in June 2016, (id. ¶ 67). These assertions suffice to plead that Plaintiff was
qualified for the position of Police Officer. See Gregory, 243 F.3d at 697 (holding that the
plaintiff’s allegations that her employer “retained her services for ten years and promoted her
into successively higher positions” and that her employer’s allegations that she lacked
qualification for her position were “part of a campaign of discrimination against her,” “suffice[d]
to plead her qualification for the position”); Feinerman v. T-Mobile USA, No. 08-CV-3517, 2010
WL 331692, at *8 (S.D.N.Y. Jan. 28, 2010) (holding that plaintiff’s allegation that her employer
“hired her as a Regional Director, retained her in that position [for five years] . . . and gave her
satisfactory performance evaluations” sufficed to plead she was qualified for the position);
Winston v. Verizon Servs. Corp., 633 F. Supp. 2d 42, 49–50, (S.D.N.Y. 2009) (concluding that
relevant degrees, many years of employment with the employer, and positive reviews from
supervisors and customers sufficed to establish plaintiff’s qualification for her position).
Defendants may at a later stage lay out the reasons for which Plaintiff was not fit for duty in
order to proffer a legitimate, non-discriminatory basis for their actions—however, at the pleading
stage, Plaintiff does not have “an obligation to anticipate and disprove . . . the employer’s proffer
of a legitimate, non-discriminatory basis for its decision.” Slattery, 248 F.3d at 92.
b. Adverse Employment Actions
Defendants next argue that only Plaintiff’s termination qualifies as an adverse
employment action. (Defs.’ Mem. 10–12.) The Court thus considers each of Plaintiff’s postJuly 3, 2014 accusations for whether they constitute adverse actions.

27

“[A] plaintiff sustains an adverse employment action if he or she endures a materially
adverse change in the terms and conditions of employment.” Vega, 801 F.3d at 85 (quoting
Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)). “An adverse employment
action is one which is more disruptive than a mere inconvenience or an alteration of job
responsibilities.” Id. (quoting Terry, 336 F.3d at 138). “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. (quoting Terry, 336 F.3d at
138). In the instant action, Plaintiff appears to set forth at least six distinct adverse employment
actions that took place after July 3, 2014.
First, Plaintiff alleges she was terminated on June 24, 2016, by the Town, St. Lawrence,
Ullman, Tress, Brendel, and Withers. (Am. Compl. ¶ 67.) Defendants admit that this constitutes
adverse employment action, (Defs.’ Mem. 10), and indeed there is not “any question that
termination is an adverse employment action,” Sista v. CDC Ixis North Am., Inc., 445 F.3d 161,
169 (2d Cir. 2006); see also Vega, 801 F.3d at 85 (listing termination as an example of adverse
action); Terry, 336 F.3d at 138 (same).
Second, Plaintiff alleges that after she had surgery on September 22, 2014, the Town,
Brower, and Cokeley, through Howell, on October 2, 2014, “ordered her to report to work within
a few weeks after her lower back surgery.” (Am. Compl. ¶¶ 55–56.) The Parties do not cite to
any caselaw addressing whether being prematurely ordered to return to work following surgery
constitutes an adverse employment action, and the Court is aware of only one case in which a
court concluded that a plaintiff suffered an adverse employment action when she was ordered to
return to work. In Querry v. Messar, 14 F. Supp. 2d 437 (S.D.N.Y. 1998), the plaintiff was on

28

sick leave after sustaining a work-related injury. Id. at 441–42. She was ordered to return to
work and she returned to work the same day. Id. The Court summarily found that being “forced
to work while injured” is an adverse employment action. Id. at 448. Unlike the plaintiff in
Querry, however, Plaintiff does not allege that she actually went back to work after October 2,
2014. Plaintiff also fails to allege that one of the terms and conditions of employment with the
Ramapo PD was being able to take any specified amount of time after surgery, and she does not
allege that the amount of time she was given after her surgery varied from the usual amount of
time any other Police Officer would have received. Plaintiff also does not allege that she was
threatened with any adverse action if she failed to go back to work. Therefore, the October 2,
2014 order that Plaintiff return to work by itself was not an adverse employment action.
Third, Plaintiff alleges that around the time she was ordered to go back to work on
October 2, 2014, the Town and Cokeley helped her fill out forms to obtain Section 207-c
benefits, and that upon completion, Cokeley ordered Howell to escort Plaintiff out of the
building. (Am. Compl. ¶¶ 57–58.) Plaintiff, however, does not allege that she was then actually
escorted out of the building. She does not allege that anyone else saw her leaving the building.
Plaintiff’s conclusory allegation that Cokeley instructed Howell to escort her out of the building
does not suffice to state an adverse employment action. Nor does Plaintiff explain why even
being escorted out of the building was an adverse employment action. See Abboud v. County of
Onondaga, 341 F. Supp. 3d 164, 179 (N.D.N.Y. 2018) (holding that corrections officer’s
removal from facility after inmate accused officer of providing him drugs did “not constitute
adverse employment action because it occurred during the end of his shift, he was not
disciplined, and . . . he was told that he could return to work for his next regularly-scheduled
shift”).

29

Fourth, Plaintiff alleges that sometime between May and July 2015, she applied for a taxfree GML 207-c Disability Retirement Pension. (Am. Compl. ¶ 59.) Plaintiff also alleges that
she ultimately suffered a “decreased pension valuation.” (Id. ¶ 69.)10 Decreasing or delaying
pension benefits is an adverse employment action. See Giacopelli v. Inc. Village of Malverne,
829 F. Supp. 2d 131, 143 (E.D.N.Y. 2011) (holding that lowering a plaintiff’s retirement
benefits, lengthening the period of the payout period, and refusing him an opportunity to receive
a lump-sum payment were adverse employment actions); see also Karam v. County of
Rensselaer, No. 13-CV-1018, 2016 WL 51252, at *10 (N.D.N.Y. Jan. 4, 2016) (holding that
delay in granting the plaintiff Section 207-c benefits was an adverse employment action). Here,
however, Plaintiff does not expressly state what the outcome of her GML 207-c Disability
Retirement Pension application was—she does not state that this application was denied.
Plaintiff does not allege what type of pension she was otherwise entitled to and whether this
pension was separate from the Disability Retirement Pension. It is not clear from Plaintiff’s
Complaint which pension she alleges suffered a loss in valuation—the Disability Retirement
Pension, or some other unspecified pension. Plaintiff’s pleading with respect to her pension is
vague and lacks specificity, and therefore fails to sufficiently allege an adverse employment
action.
Finally, Plaintiff alleges that she received two letters, one on January 29, 2016 and
another on May 18, 2016, from the Town, St. Lawrence, Ullman, Tress, Brendel, and Withers,
“threatening” to terminate her employment (Am. Compl. ¶¶ 61, 63.) A “notice of discipline

10

Plaintiff also alleges that on May 9, 2015, the State Hearing Officer upheld the denial
of Section 207-c benefits related to Plaintiff’s October 29, 2013 injury, (Section 207-c Decision
1–3), but because the October 2013 injury is outside the statute of limitations period, the Court
does not consider this allegation.
30

issued against Plaintiff, without more, does not qualify as an adverse employment action.”
Cotterell v. Gilmore, 64 F. Supp. 3d 406, 425 (E.D.N.Y. 2014) (holding that a notice of
discipline was insufficient to constitute an adverse employment action) (quoting Weeks v. N.Y.
State Div. of Parole, 273 F.3d 76, 86 (2d Cir. 2001). “Courts in this district have found that
reprimands, threats of disciplinary action and excessive scrutiny do not constitute adverse
employment actions.” Bennett v. Watson Wyatt & Co., 136 F. Supp. 2d 236, 247 (S.D.N.Y.
2001). The Court considers these notices in reviewing Plaintiff’s allegations regarding her
termination—but the sending of two termination notice letters, without more, does not constitute
adverse action.
Thus, the only adverse employment action that Plaintiff has properly alleged is her
termination.
c. Inference of Discriminatory Intent
An inference of discriminatory intent “can arise from circumstances including, but not
limited to, ‘the employer’s criticism of the plaintiff’s performance in ethnically degrading terms;
or its invidious comments about others in the employee’s protected group; or the more favorable
treatment of employees not in the protected group; or the sequence of events leading to the
plaintiff’s discharge.’” Littlejohn, 795 F.3d at 312 (quoting Leibowitz v. Cornell Univ., 584 F.3d
487, 502 (2d Cir. 2009)). Absent direct evidence demonstrating discriminatory intent, “[a]
plaintiff may support an inference of . . . discrimination by demonstrating that similarly situated
employees [not in the protected class] were treated more favorably.” Norville v. Staten Island
Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999); see also Brown v. Daikin Am. Inc., 756 F.3d 219,
230 (2d Cir. 2014) (holding that to establish disparate treatment, a plaintiff must allege that “she

31

was similarly situated in all material respects to the individuals with whom she seeks to compare
herself” (citation omitted)).
“To be ‘similarly situated,’ the individuals with whom [a plaintiff] attempts to compare
herself must be similarly situated in all material respects.” Shumway v. United Parcel Serv., Inc.,
118 F.3d 60, 64 (2d Cir. 1997). And to be similarly situated in “all material respects” in the
context of the Complaint, Plaintiff must “show that similarly situated employees who went
undisciplined engaged in comparable conduct.” Graham v. Long Island R.R., 230 F.3d 34, 40
(2d Cir. 2000); see also McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001) (“[W]here a
plaintiff seeks to establish [her] minimal prima facie case by making reference to the disparate
treatment of other employees, those employees must have a situation sufficiently similar to
plaintiff’s to support at least a minimal inference that the difference of treatment may be
attributable to discrimination.”); Taylor v. Seamen’s Soc’y for Children, No. 12-CV-3713, 2013
WL 6633166, at *14 (S.D.N.Y. Dec. 17, 2013) (“What constitutes ‘all material respects’ varies,
of course, from case to case, but the plaintiff and those she maintains were similarly situated
must have been subject to the same workplace standards,” which “requires a reasonably close
resemblance of facts and circumstances” (alterations and some quotation marks omitted)
(quoting Graham, 230 F.3d at 40)). Moreover, although, “[a]t the motion to dismiss stage”
evidence of similarly situated comparators “is not necessary[,] . . . a court still must determine
whether, based on a plaintiff’s allegations in the complaint, it is plausible that a jury could
ultimately determine that the comparators are similarly situated.” Mosdos Chofetz Chaim, Inc. v.
Vill. of Wesley Hills, 815 F. Supp. 2d 679, 698 (S.D.N.Y. 2011); see also Watson v. Geithner,
Nos. 09-CV-6624, 10-CV-3948, 10-CV-7282, 2013 WL 5420932, at * 10 (S.D.N.Y. Sept. 27,
2013) (“Whether employees are similarly situated is ordinarily a question of fact; however, if

32

there are many distinguishing factors between plaintiff and the comparators, the court may
conclude as a matter of law that they are not similarly situated.” (citation and quotation marks
omitted)). “Thus, well-pled facts showing that the plaintiff has been treated differently from
others similarly situated remains is an essential component of such a claim and conclusory
allegations of selective treatment are insufficient to state an equal protection claim.” Mosdos
Chofetz Chaim, 815 F. Supp. 2d at 698 (citation, quotation marks, and alterations omitted).
Here, Plaintiff alleges that since 2006, the Town, St. Lawrence, Ullman, Tress, Brendel,
Withers, Weidel, Brower, and Cokeley had actual or constructive notice that certain Caucasian,
mostly male, officers: (1) received Section 207-c benefits without legal challenge, (2) were never
carried as “regular sick”, (3) were afforded the opportunity to stay at home, some for periods of
more than ten years without legal challenge, (4) received light duty assignments or were
reasonably accommodated, some for periods of more than ten years without legal challenge, and
(5) were not threatened with termination or terminated under Civil Service Law Section 71.
(Am. Compl. ¶¶ 21–25 (listing names of specific officers).) It is true that Plaintiff does not offer
details about individual officers, for example, how long they were on sick leave, what type of
benefits they obtained, and whether they suffered any other adverse employment actions short of
being terminated. However, “[a]t the motion to dismiss stage,” evidence of similarly situated
comparators “is not necessary.” Mosdos, 815 F. Supp. 2d at 698. A plaintiff need only allege
sufficient facts from which “a jury could ultimately determine that the comparators are similarly
situated.” Id. Plaintiff need “not plead a prima facie case of discrimination,” Swierkiewicz, 534
U.S. at 515, but only “enough facts to state a discrimination claim that is plausible on its face,”
Roman-Malone, 2013 WL 3835117, at *4. “Although Defendants may ultimately be able to
show that [Plaintiff’s] comparators were not similarly situated . . . or that they did not have

33

discriminatory intent, these questions should not be resolved at the pleadings stage.” Kunik v.
N.Y.C. Dep’t of Educ., No. 15-CV-9512, 2017 WL 4358764, at *9 (S.D.N.Y. Sept. 29, 2017). In
the instant case, Plaintiff has named several individual comparators and alleged that they were
similarly situated to her in at least that they stayed home from work and required light duty
assignments for significant periods of time, but were nevertheless not disciplined or terminated.
The Court thus finds that Plaintiff has, albeit barely, pled sufficient facts to give rise to a
plausible inference of discrimination based on race and gender. See id. (denying motion to
dismiss where the plaintiff identified comparators by name and alleged they were part of the
same department at work); Pothen v. Stony Brook Univ., 211 F. Supp. 3d 486, 495 (E.D.N.Y.
2016) (denying motion to dismiss where plaintiff identified one comparator by name and alleged
he was subject to the same supervisor).
Therefore, Plaintiff has adequately pleaded § 1983 and NYSHRL § 296 claims based on
race and gender discrimination, but only with respect to her termination. All other alleged
conduct is either time barred or does not, as pleaded, constitute adverse employment action.
3. Personal Involvement Under § 1983
Defendants also argue that the individual Defendants should be dismissed from the case
because Plaintiff has failed to allege their personal involvement as is required to state a claim
under § 1983. (Defs.’ Mem. 16–18.)
“Personal involvement of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.” Farid v. Ellen, 593 F.3d 233, 249 (2d Cir.
2010) (citation omitted). “A complaint based on a violation under § 1983 that does not allege the
personal involvement of a defendant fails as a matter of law.” Muhammad v. Jenkins, No. 12CV-8525, 2013 WL 5225573, at *7 (S.D.N.Y. Sept. 13, 2013) (citation and quotation marks

34

omitted). Where the officer is a supervisor, at a minimum, “liability in a § 1983 action depends
on a showing of some personal responsibility, and cannot rest on respondeat superior.”
Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003). In Colon v. Coughlin, 58 F.3d 865 (2d
Cir. 1995), the Second Circuit held that:
[t]he personal involvement of a supervisory defendant may be shown by 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 to the rights of [the plaintiffs] by failing to act on
information indicating that unconstitutional acts were occurring.
Id. at 873.
The Second Circuit has not yet definitively decided which of the Colon factors remains a
basis for establishing supervisory liability in the wake of Ashcroft v. Iqbal, 556 U.S. 662 (2009),
which rejected the argument that “a supervisor’s mere knowledge of his subordinate’s
discriminatory purpose amounts to the supervisor’s violating the Constitution.” Id. at 1949.
Some courts have questioned the continuing applicability of these factors based upon the
heightened pleading requirements set forth in Iqbal. See, e.g., Bellamy v. Mount Vernon Hosp.,
No. 07-CV-1801, 2009 WL 1835939, at *6 (S.D.N.Y. June 26, 2009) (holding that “[o]nly the
first and part of the third Colon categories pass Iqbal’s muster”), aff’d 387 F. App’x 55 (2d Cir.
2010). However, the Second Circuit has not yet ruled on the issue. See Carpenter v. Apple, No.
15-CV-1269, 2017 WL 3887908, at *9 (N.D.N.Y. Sept. 5, 2017) (citing Raspardo v. Carlone,
770 F.3d 97, 117 (2d Cir. 2014)) (“We have not yet determined the contours of the supervisory
liability test . . . after Iqbal.” (alterations omitted) collecting cases)). Notwithstanding the
Second Circuit’s silence, the majority of courts considering the issue have determined that “even

35

after . . . Iqbal, these categories supporting personal liability of supervisors still apply as long as
they are consistent with the requirements applicable to the particular constitutional provision
alleged to have been violated.” Hernandez v. Goord, No. 01-CV-9585, 2013 WL 2355448, at *7
(S.D.N.Y. May 29, 2013) (citations and quotation marks omitted); see also Lebron v. Mrzyglod,
No. 14-CV-10290, 2017 WL 365493, at *4 (S.D.N.Y. Jan. 24, 2017) (holding that the five
categories “still control[] with respect to claims that do not require a showing of discriminatory
intent” post-Iqbal); Manning v. Griffin, No. 15-CV-3, 2016 WL 1274588, at *12 (S.D.N.Y. Mar.
31, 2016) (holding that the Colon factors “remain relevant” only “to the extent that” the type of
conduct sufficient for supervisory liability under Colon “could serve as conduct that supports a
theory of direct liability”). The Court will therefore assume, for purposes of this Opinion, that
all Colon factors remain valid. Phillip v. Schriro, No. 12-CV-8349, 2014 WL 4184816, at *4
(S.D.N.Y. Aug. 22, 2014) (“[U]nless or until the Second Circuit or Supreme Court rule
otherwise, this [c]ourt agrees with the courts that have held that the Colon factors still apply as
long as they are consistent with the requirements applicable to the particular constitutional
provision alleged to have been violated.” (quotation marks omitted)).
Because Plaintiff’s termination is the only plausibly pleaded adverse employment action,
the inquiry turns to which of the individual Defendants, if any, were personally involved in
Plaintiff’s termination. Plaintiff alleges that on January 29, 2016 and May 18, 2016, she
received letters from the Town, St. Lawrence, Ullman, Tress, Brendel, and Withers, threatening
to terminate her employment. (Am. Compl. ¶¶ 61, 63.) Both letters are indeed addressed to her
from Ullman, Withers, Brendel, Tress, and St. Lawrence, and both are signed by St. Lawrence on
behalf of the Town Board. (See January 29, 2016 Letter; May 18, 2016 Letter.) Plaintiff also
alleges that on June 20, 2016, the Town and Weidel ordered her to report to the stationhouse and

36

turn over all department issued equipment. (Am. Compl. ¶ 65.) On June 22, 2016, Plaintiff
turned over all department-issued equipment to the Town and Weidel. (Id. ¶ 66.) Plaintiff
alleges that on June 24, 2016, the Town, St. Lawrence, Ullman, Tress, Brendel, and Withers
terminated her employment. (Id. ¶ 67.) Plaintiff further alleges the Town, St. Lawrence,
Ullman, Tress, Brendel, and Withers terminated her “despite having actual and/or constructive
notice that she was treated differently due to her race and gender,” (id.), and that since 2006, the
Town, St. Lawrence, Ullman, Tress, Brendel, Withers, and Weidel had actual or constructive
notice that the similarly-situated white male comparators Plaintiff names were not threatened
with termination or terminated, even though they were on sick leave and received light duty
assignment for extended periods of time, (id. ¶¶ 21–25). Plaintiff alleges that St. Lawrence,
Ullman, Tress, Brendel, and Withers actually terminated her, that Weidel processed her
termination, and that they did this knowing that Plaintiff was being treated differently based on
her race and gender.
The Court thus concludes that Plaintiff has sufficiently pleaded that St. Lawrence,
Ullman, Tress, Brendel, Withers, and Weidel directly participated in her termination. See Pinero
v. Long Island State Veterans Home, 375 F. Supp. 2d 162, 169 (E.D.N.Y. 2005) (finding the
defendant was personally involved where the plaintiff alleged that the defendant “was the
individual that signed the letter that informed [plaintiff] that she would not be reinstated” and
“was personally involved in the decision to terminate the [p]laintiff”); Stevens v. New York, 691
F. Supp. 2d 392, 401 (S.D.N.Y. 2009) (finding defendant was personally involved where
plaintiff alleged defendant “summoned him to the . . . meeting[] where he was terminated”);
Coleman v. B.G. Sulzle, Inc., 402 F. Supp. 2d 403, 422 (N.D.N.Y. 2005) (finding defendant was

37

personally involved where plaintiff alleged defendant actually terminated him and was involved
in the decision-making process leading up to the termination).
With respect to Brower and Cokeley, however, Plaintiff fails to allege any facts
whatsoever that they were personally involved in her termination. Plaintiff makes specific
allegations about Brower and Cokeley related to the other conduct that the Court has herein
decided does not constitute adverse employment action or is time barred, for example, ordering
Plaintiff to return to work, (see Am. Compl. ¶¶ 32, 45), denying her benefits, (id. ¶53), or
ordering that she be escorted out the building, (id. ¶ 58). The last action by Brower that Plaintiff
alleges is Brower’s denial of benefits in November 2013. (Id. ¶ 53.) The last action by Cokeley
that Plaintiff alleges is Cokeley’s request to have Plaintiff escorted out of the building in October
2014. (Id. ¶¶ 56–58.) Plaintiff’s termination occurred nearly two years later in June 2016. (Id.
¶ 68.) Plaintiff does not allege that any of Brower or Cokeley’s actions from 2012 through 2014
impacted the decision to terminate her, or that either of them had any say in her termination.
That there are other unrelated allegations against Brower and Cokeley in Plaintiff’s Amended
Complaint does not suffice to allege personal involvement by either one of them in connection to
her termination. See Bender v. City of New York, No. 09-CV-3286, 2011 WL 4344203, at *3
(S.D.N.Y. Sept. 14, 2011) (“[T]o succeed on a [§] 1983 claim, a plaintiff must establish
causation by showing that ‘defendants participated in, or were ‘moving forces’ behind, the
deprivation.’” (quoting Jeffries v. Harleston, 21 F.3d 1238, 1247 (2d Cir. 1994)); see also
Sherman v. County of Suffolk, 71 F. Supp. 3d 332, 357 (E.D.N.Y. 2014) (dismissing claims
against defendants who required the plaintiff to “perform the exercise which resulted in [his]
injury, which led him to miss certain physical training, which contributed to his ‘minimally
acceptable’ evaluation scores and his termination” based on those scores, because “no rational

38

juror could find that the [p]laintiff’s termination was a ‘natural and foreseeable’ result of the
requirement to perform a certain exercise”). Plaintiff summarily alleges that along with the
Town, St. Lawrence, Ullman, Tress, Brendel, Withers, and Weidel, Brower and Cokeley “did
nothing to protect her employment rights.” (Id. ¶ 68.) However, Plaintiff does not even allege
that Brower and Cokeley knew she was being terminated or that they could have done anything
to prevent or change the Town Board decision. See Hagan v. City of New York, 39 F. Supp. 3d
481, 515 (S.D.N.Y. 2014) (dismissing, for lack of personal involvement, claims against a
defendant who allegedly failed to intervene to stop the plaintiff’s transfer to an undesirable
position and who raised initial concerns about the plaintiff’s performance).
Therefore, the Court dismisses Plaintiff’s § 1983 claims against Defendants Brower and
Cokeley for failure to allege personal involvement. However, Plaintiff § 1983 Equal Protection
claims based on race and gender discrimination with respect to her termination survive as to the
Town, St. Lawrence, Ullman, Tress, Brendel, Withers, and Weidel.
4. Individual Liability Under NYSHRL § 296
The NYSHRL makes it unlawful for an employer to discriminate on the basis of, inter
alia, race, creed, color, or sexual orientation. See N.Y. Exec. Law § 296. In Patrowich v.
Chemical Bank, 473 N.E.2d 11 (N.Y. 1984), the New York Court of Appeals defined
“employer” narrowly to include only an individual “shown to have any ownership interest . . . or
power to do more than carry out personnel decisions made by others.” Id. at 13. All that is
required for individual liability to flow to an individual “employer” is that the corporate
employer have carried out a predicate act of unlawful discrimination. See Nicholson v. Staffing
Auth., No. 10-CV-2332, 2011 WL 344101, at *3–4 (S.D.N.Y. Feb. 1, 2011). A supervisor is an
“employer” for purposes of establishing liability under the NYSHRL if that supervisor “actually

39

participates in the conduct giving rise to [the] discrimination.” Tomka v. Seiler Corp., 66 F.3d
1295, 1317 (2d Cir. 1995), abrogated on other grounds by Burlington Indus, Inc. v. Ellerth, 524
U.S. 775 (1998). In addition, the NYSHRL provides that it shall be an unlawful discriminatory
practice “for any person to aid, abet, incite, compel[,] or coerce the doing of any of the acts
forbidden under this article, or attempt to do so.” N.Y. Exec. Law § 296(6). The Second Circuit
has interpreted the language of § 296(6) “to mean that a defendant who actually participates in
the conduct giving rise to a discrimination claim may be personally liable as an aider and
abettor.” Perks v. Town of Huntington, 251 F. Supp. 2d 1143, 1160 (E.D.N.Y. 2003) (citation
and quotation marks omitted) (emphasis added); see also Tomka, 66 F.3d at 1317 (holding that a
co-worker who “actually participates in the conduct giving rise to a discrimination claim” was to
be held liable under the NYSHRL even though that co-worker lacked the authority to either hire
or fire the plaintiff); Davis-Bell v. Columbia Univ., 851 F. Supp. 2d 650, 687 (S.D.N.Y. 2012)
(“The NYSHRL provides for the imposition of liability on individual defendants under . . .
§§ 296(1) and 296(6). Thus, individual liability under § 296(1) lies only where a defendant
actually participates in the conduct giving rise to discrimination, and is limited to individuals
with ownership interest or supervisors, who themselves have the authority to hire and fire
employees . . . Section 296(6) of the NYSHRL provides for aiding and abetting . . . . To be found
liable under § 296(6), an individual need not have supervisory or hiring and firing power, but
still must have actually participated in the conduct . . . .” (citation, alterations, brackets, and
quotation marks omitted)).
The Court has already concluded herein that Plaintiff has adequately pleaded a violation
of NYSHRL § 296 with respect to her termination. See supra Section II.D.2.c. Therefore, any
of the individual Defendants who are “employers” or who “actually participate[d] in the conduct

40

giving rise to a discrimination claim,” are individually liable. Feingold v. New York, 366 F.3d
138, 157–58 (2d Cir. 2004) (citation omitted)).
For the same reasons that the Court concluded that Plaintiff adequately alleged that St.
Lawrence, Ullman, Tress, Brendel, Withers, and Weidel were personally involved, specifically
that St. Lawrence, Ullman, Tress, Brendel, and Withers actually terminated Plaintiff and that
Weidel processed her termination, (Am. Compl. ¶¶ 61–63, 65, 67), see supra Section II.D.3, the
Court now also concludes that Plaintiff has plausibly pled that they “actually participated in the
conduct” giving rise to Plaintiff’s termination. See Figueroa v. KK Sub II, LLC, 289 F. Supp. 3d
426, 443–44 (W.D.N.Y. 2018) (denying motion for summary judgment where issue of fact
existed as to whether defendant who was not supervisor actively contributed to the decision to
terminate employee and thereby “actually participated” in the termination).
And for the same reason that the Court concluded that Plaintiff failed to allege that
Brower and Cokeley were personally involved, specifically that Plaintiff fails to allege that
Brower and Cokeley took any actions related to her termination, see supra Section II.D.3, the
Court now also concludes that they did not “actually participate in the conduct” giving rise to
Plaintiff’s termination. Moreover, although Plaintiff alleges that Brower was the former Chief of
Police, (Am. Compl. ¶ 14), and Cokeley was a Captain, (id. at ¶ 15), Plaintiff has alleged no facts
beyond their titles that would allow the Court to determine whether they had “an ownership
interest . . . or power to do more than carry out personnel decisions made by others,” and were
therefore “employers” under the NYSHRL. Patrowich, 473 N.E.2d at 13; see also Conklin v.
County of Suffolk, 859 F. Supp. 2d 415, 437 (E.D.N.Y. 2012) (holding that female coworker did
not aid and abet county employer where she did not participate in any of the actions taken
against the plaintiff, and where she had no supervisory role and no control over terms and

41

conditions of the plaintiff’s employment); Malena v. Victoria’s Secret Direct, LLC, 886 F. Supp.
2d 349, 366 (S.D.N.Y. 2012) (holding that supervisor could not be liable as employer because
she did not have the authority to hire or fire the plaintiff or set the plaintiff’s schedule or salary,
and there was no evidence supervisor had an ownership interest in the company).
Accordingly, the Court dismisses Plaintiff’s NYSHRL § 296 claims against Defendants
Brower and Cokeley for failure to allege they were employers or actually participated in the
conduct” giving rise to Plaintiff’s termination. However, Plaintiff’s NYSHRL § 296 claims
based on race and gender discrimination with respect to her termination survive as to the Town,
St. Lawrence, Ullman, Tress, Brendel, Withers, and Weidel.
III. Conclusion
For the foregoing reasons, the Court grants Defendants’ Motion To Dismiss with respect
to Plaintiff’s § 1983 and NYSHRL § 296 claims against Defendants Brower and Cokeley.
Plaintiff’s claims survive against all other Defendants, but only with respect to her termination.
The claims that are dismissed are dismissed without prejudice.11 Although Plaintiff has filed an
Amended Complaint in this Action, this is the first adjudication on Defendants’ Motion to
Dismiss. See Rennalls v. Alfredo, No. 12-CV-5300, 2015 WL 5730332, at *5 n.6 (S.D.N.Y.
Sept. 30, 2015) (“[The] Court will afford Plaintiff an opportunity to amend if, after reviewing
this Order and Opinion and the law therein, he still believes that he can plausibly state claims
against Defendants.”). If Plaintiff wishes to file a Second Amended Complaint alleging
additional facts and otherwise addressing the deficiencies identified above, Plaintiff must do so

11

The Court declines to consider at this time whether any Defendants are protected by
qualified immunity. Defendants’ qualified immunity “argument” runs to half a page and fails to
meaningfully apply the qualified immunity caselaw to this case. (See Defs.’ Mem. 18.)
42