Melendez v. County Of Westchester et al

Filing 42

OPINION & ORDER: For the foregoing reasons, Defendants' Motion to Dismiss is GRANTED in part and DENIED in part. Defendants' Motion to Dismiss is GRANTED as to Plaintiff's claims for: disability-based discrimination and retaliation under the ADA and New York State law, sex-based discrimination under Title VII, tortious interference under New York State Law, and Section 1983 based on a due process violation. Defendants' Motion to Dismiss Plaintiff's claims for sex- based discrimination and retaliation under New York State law is DENIED, and similarly, Defendants' Motion to Dismiss her 1983 claim based on an equal protection theory is DENIED. Accordingly, Defendants are directed to answer the Amended Com plaint by February 15, 2019 and submit a completed case management plan to chambers by February 26, 2019. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 37. SO ORDERED. re: 37 MOTION to Dismiss the Amend ed Complaint. filed by Westchester County Department of Corrections Superior Office, County Of Westchester, Kevin M. Cheverko., Kevin M. Cheverko answer due 2/15/2019; County Of Westchester answer due 2/15/2019; Westchester County Correction Officers Union, Inc. answer due 2/15/2019; Westchester County Department of Corrections Superior Office answer due 2/15/2019; Westchester County Department of Public Safety Services Benevolent Association answer due 2/15/2019. (Signed by Judge Nelson Stephen Roman on 1/16/2019) (rj)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDCSDN)'
DOCUMENT
ELECTRONICALLY FILED
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DATE FIJ..ED:_;:._;,___,;;-+.-............-

MICHELLE MELENDEZ,
Plaintiff,
-againstCOUNTY OF WESTCHESTER, WESTCHESTER
COUNTY DEPARTMENT OF CORRECTIONS
SUPERIOR OFFICE, and KEVIN CHEVERKO,
individually and in his official capacity,

17-cv-963 7 (NSR)
OPINION & ORDER

Defendants.
NELSON S. ROMAN, United States District Judge
On or about December 7, 2017, Plaintiff Michelle Melendez ("Plaintiff'), a former
Correctional Officer trainee at the Westchester County Department of Corrections Superior Office
("DOC"), commenced this action under: Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§
2000e - 2000e-17, the American Disabilities Act of 1990, 42 U.S.C. § 12101 et. seq. ("ADA"), 42
U.S.C. § 1983, New York State Human Rights Law Executive Law § 296, and Tortious
Interference under New York State Tort Law. (See Complaint ("Compl."), ECF No. 1; Amended
Complaint, ("AC"), ECF No. 31.) Plaintiff alleges that while a trainee, she was subject to
sex/gender discrimination, disability discrimination, sexual harassment, a hostile work
environment, retaliation, and wrongful termination by the County of Westchester, Westchester
County Department of Corrections Superior Office, and KEVIN CHEVERKO (collectively,
"Defendants"). Before the Court is Defendants' Motion to Dismiss the Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6). (ECF No. 37.) For the following reasons, Defendants'
Motion is GRANTED in part and DENIED in part.

BACKGROUND
The following facts are derived from the Complaint and are assumed to be true for the
purposes of this motion. 1
In or around September 2015, Defendants hired Plaintiff for a Correctional Officer position
at Defendants' correctional facility located at 10 Wood Road, Valhalla, New York 10595. (AC ,i
13.) Plaintiff was a State Corrections Officer for approximately seven years prior to her
employment with Defendants. (Id. ,i 14.) Around September 14, 2015, Plaintiff began employment
as a Correctional Officer trainee, with a condition of completing one year of training
("probationary period.") (Id. ,i 15.) Around March 28, 2016, Plaintiff was involved in a car
accident. (Id. ,i 16.) Plaintiff returned to work on April 21, 2016. (Id. ,i 16.) Upon Plaintiffs return
to work,

Plaintiff requested disability-based accommodation and submitted medical

documentation to Defendants. (Id. ,i 16.) Plaintiff was granted a "light duty" restriction, which
required Plaintiff to have limited inmate contact. (Id. ,i 16.) Plaintiff was the only female
Correction Officer serving a probationary period at that time. (Id. ,i 17.)
Around June 16, 2016, Defendants assigned Plaintiff to Defendants' 1-K Control Room
("Control Room"), which is located before the entrance of the 1-K Cell Block in the section of the
correctional facility identified as "Old Jail." (Id. ,i 18.) Defendant's Control Room does not fully

1

The background facts alleged herein are derived solely from Plaintiffs amended complaint. In their briefing, the
parties dispute what extrinsic evidence the Court may rely upon to decide this motion. The Court notes that when
ruling on motions to dismiss courts must consider the complaint, "as well as documents incorporated into the
complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makar Issues & Rights,
Ltd., 551 U.S. 308, 127 S. Ct. 2499 (2007). While consideration of matters outside the pleadings generally converts a
motion to dismiss to a motion for summary judgment, consideration of facts for which judicial notice may be taken
does not. Apotex Inc. v. Acorda Therapeutics, Inc., 823 F .3d 51, 60 (2d Cir. 2016); Fed. R. Civ. P. 12(d). Courts may
take judicial notice of any adjudicative fact that is not subject to reasonable dispute because it (1) is generally known
within the trial court's territorial jurisdiction or (2) can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned. Fed. R. Evid. 20l(a)-(b). "Adjudicative facts" are "facts about the parties
and their activities, businesses, and properties." Langevin v. Chenango Court, Inc., 447 F.2d 296, 300 (2d Cir. 1971).
"The court must take judicial notice if a party requests it and the court is supplied with the necessary information,"
Fed. R. Evid. 20l(c)(2). As such, the Court is permitted to rely (as it does) on Defendants' release form, the EEOC
charge form, the EEOC amendment letter, and Plaintiffs right to sue letter in deciding this motion.

2

limit inmate contact, as a corrections officer is required to maintain traffic control through the 1K Block hallway gate. (Id.

,r 19.)

On or about June 15, 2016, one of Plaintiffs inmates ("Inmate") "aggressively grabbed
Plaintiffs buttocks." (Id.

,r 20.) Immediately after,

officers restrained Inmate. (Id.

,r 21.)

While

Plaintiff was waiting for Defendants' Emergency Response Team's arrival, Inmate shouted
profanity and lewd comments at Plaintiff. (Id.

,r 22.)

Plaintiff, upset and emotional, screamed

profanity back at the inmate and threw her latex gloves in Inmate's face. (Id.

,r 23.) Defendants'

employee and Sergeant witnessed Plaintiffs behavior and verbally counseled Plaintiff, who
immediately apologized for her "impetuous and unexpected reaction." (Id.

,r 24.)

Around June 16, 2016, Plaintiff filled paperwork to file outside charges against Inmate;
however, Plaintiff admits that she is uncertain as to whether those documents were ever processed.

(Id.

,r 25.) Around August 22, 2016, Defendants interrogated Plaintiff on her supposed use of force

in response to Inmate's conduct in grabbing her buttocks. (Id.

,r 27.) In response, Plaintiff asked

Defendants if she was being penalized "for the inmate sexually assaulting her." (Id.

,r 28.) On or

about that same day, Defendants purportedly denied Plaintiff a salary increment that would have
been due on October 1, 2016 because she was under investigation for the use of force when Inmate
sexually assaulted her. (Id.

,r 29.)

Male corrections officers, who were supposedly also under

investigation for the use of force, did not have their salary increment denied. (Id.
reason, Plaintiff believes that she was discriminated and retaliated against. (Id.

,r 30.) For this

,r,r 31-32.)

On September 1, 2016, Defendants terminated Plaintiff before the end of her probationary
period. (AC

,r

33.) Plaintiffs Union Representative discussed with Plaintiff the possibility of

ending her employment with Defendants by resignation instead of termination, explaining that if
Plaintiff ended her employment by resignation, she would be able to receive a law enforcement

3

position in the future. (AC ,r 33.) Defendants were aware of Plaintiffs conversation with her Union
Representative and allowed Plaintiff to resign on September 2, 2016 instead of terminating her.
(Id.

,r

34.) During that general time, a male corrections officer, who was also completing his

probationary period, supposedly responded to an inmate with force by pushing the inmate. (Id.

,r

35.) In that case, the male correction officer did not file charges against the inmate and passed his
probationary period, obtaining permanent status. (Id.

,r,r 34-35.) Plaintiff was the only female on

"light duty" that did not pass her probationary period. (Id.

,r 36.) For this reason, Plaintiff believes

that she was discriminated against based on sex and disability and was retaliated against for
requesting a reasonable accommodation. (Id.

,r 37.)

Around March 12, 2018, an interviewer from the New York State Office of Court
Administration ("OCA") 2 informed Plaintiff that Defendants sent him a letter explaining the
details surrounding Plaintiffs investigation against Inmate and Plaintiffs termination before the
expiration of her probationary period. (Id.

,r

38.) The letter further explained that due to this

information, the interviewer had to disqualify Plaintiff from the selection process, even though
Plaintiff had passed other rounds of the process. (Id.

,r 38.) Plaintiff believes that Defendants sent

this information to OCA in retaliation for her filing a lawsuit. (Id.

,r 39.) Plaintiff therefore believes

that Defendants tortuously interfered with her opportunity to attain employment. (Id.

,r 40.)

To date, Plaintiff has been unable to attain employment in a law enforcement position
within the state of New York and believes that Defendants may have circulated the same letter,
which falsely states that Defendants investigated and terminated Plaintiffs employment prior to
the expiration of her probationary period. (Id.

,r 41.)

Consequently, Plaintiff has felt extremely

humiliated, degraded, victimized, embmrassed, and emotionally distressed and has allegedly

2

This entity is incorrectly named as "New York Supreme Court Officers Association" in the AC.

4

suffered (and continues to suffer) emotional pain, suffering, inconvenience, loss of enjoyment of
life, and other non-pecuniary losses. (Id.

,r,r 42-44.)

STANDARD OF REVIEW

Under Rule 12(b)(6), the inquiry for motions to dismiss is whether the complaint
"contain[s] sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on
its face."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). "While legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations." Id. at 679. The Court must take all material factual
allegations as true and draw reasonable inferences in the non-moving party's favor, but the Court
is "'not bound to accept as true a legal conclusion couched as a factual allegation,"' or to credit
"mere conclusory statements" or "[t]hreadbare recitals of the elements of a cause of action." Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). In determining whether a complaint states a
plausible claim for relief, a district court must consider the context and "draw on its judicial
experience and common sense." Id. at 679. A claim is facially plausible when the factual content
pleaded allows a comi "to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Id. at 678.
For motions brought under Rule 12(b)(l), "[a] case is properly dismissed for lack of subject
matter jurisdiction . . . when the district court lacks the statutory or constitutional power to
adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). "In resolving a motion
to dismiss under Rule 12(b)(1 ), the district court must take all uncontroverted facts in the complaint
(or petition) as true and draw all reasonable inferences in favor of the party asserting jurisdiction."
Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014). "[T]he
court may resolve the disputed jurisdictional fact issues by referring to evidence outside of the

5

pleadings, such as affidavits, and if necessary, hold an evidentiary hearing." Zappia Middle E.

Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000). Though a court "may
consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, [it]
may not rely on conclusory or hearsay statements contained in the affidavits." JS. ex rel. NS. v.

Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004).
DISCUSSION
Defendants argue that, as a preliminary matter, this Court lacks subject matter jurisdiction
over Plaintiffs ADA and Title VII claims because Plaintiff did not allege such claims in her EEOC
charge. (Defendants' Memorandum, ("Def. Mem.") at 6, ECF No. 38.) As a second threshold
issue, Defendants argue that Plaintiffs retaliation claims are barred by her signed release. (Id. at
7.) Third, on the merits, Defendants argue that Plaintiffs federal and state law claims fail to state
a cause of action and meet the pleading standards set out in Fed. R. Civ. P. 12(b)(6). (Id. at 8-18.)
The Court agrees with Defendants that Plaintiffs complaint contains numerous procedural and
meritorious deficiencies and addresses all of Defendants' arguments in turn.

I.

Exhaustion

Defendants first argue that Plaintiff failed to administratively exhaust her claims because
her initial EEOC charge only contained facts and claims related to Title VII retaliation, (Id. at 67), and her amended EEOC charge did not include any additional facts to color claims of
discrimination or retaliation under the ADA. (Defendants' Reply Memorandum, ("Reply") at 12, ECF No. 40.). Plaintiff claims that her checking only the retaliation box on the initial EEOC
charge form is not detrimental, and that her amendment letter-which reflects that she added a
claim for disability discrimination-suffices to relate all her claims back to her initial retaliation
claim. (Plaintiffs Opposition, ("Pl. Opp."), at 6, ECF No. 41.) The Court agrees with Defendants.

6

A. Title VII: Sex-Based Discrimination and Retaliation Claims
Title VII requires plaintiffs to first exhaust their administrative remedies before filing suit
in federal court. See 42 U.S.C. § 2000e-5(f)(3). Exhaustion demands timely filing of charges with
the EEOC and obtainment of a notice of right to sue. Id.; see also Williams v. NY. Haus. Auth.,
458 F.3d 67, 69-70 (2d Cir. 2006). Claims are timely filed with the EEOC if they are brought
within 180 or 300 days of an alleged unlawful practice. See 42 U.S.C. § 2000e-5(e)(l); Nat'! R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002). Title VII exhaustion has been analogized
by courts to statutes oflimitations and is not a waivable jurisdictional prerequisite. See Hardaway

v. Hartford Pub. Works Dep 't, 897 F.3d 486,489 (2d Cir. 2018).
Here, nowhere in Plaintiff's initial EEOC charge (See EEOC Charge, ECF No. 39-5) or in
Plaintiff's amendment letter does she allege any claims of sex-based discrimination. (See
Amendment Letter, ECF No. 41-1.) Plaintiff's only nexus to sex-based discrimination seems to
derive from her mention of being sexually assaulted by Inmate and complaining about such an
assault. (See EEOC Charge ,r,r 8-16.) Such bare facts are far from sufficient to support claims for
sex-based discrimination, particularly when combined with her not checking the box for
discrimination or amending her complaint to include such a claim. Further, nowhere in Plaintiff's
Notice of Right to Sue Letter was she notified that she has the right to bring a federal civil action
based on Title VII discrimination. (See Right to Sue Letter, ECF No. 41-2.) Hence, Defendants
have not been put on notice that Plaintiff had any sex-based discrimination claims that she was
asserting against them.
Further, whilst Plaintiff is con-ect that the mere failure to place a check mark in the c01Tect
box is not always considered fatal, Williams, 458 F.3d at 71, Defendants con-ectly note that the
Second Circuit instructs courts to focus on the facts alleged in the EEOC complaint to determine

7

whether they support a cause of action. Id. In that vein, there are frankly no facts in the twentyfour enumerated paragraphs that could give rise to an inference of sex-based discrimination.
The Court does, however, find that Plaintiff articulated sufficient facts to put Defendants
on notice of a Title VII retaliation claim. Plaintiff claimed that around June 16, 2016, an inmate
aggressively grabbed her buttocks. (EEOC Charge

,r 7.) That same day, Plaintiff completed the

necessary paperwork "to file outside charges against the inmate for sexual assault" and "reported
the inappropriate behavior to her Sector Supervisor (Id.

,r,r 9,11). Plaintiff then claims that around

August 24, 2016, Defendants interrogated her about her use of force in relation to the sexual assault
incident, and on October 1, 2016, they denied her a salary increment that was otherwise due. (Id.

,r 13.) A week later, Plaintiff claims that she was wrongfully terminated. (Id. ,r 16.)
These facts suggest that Plaintiff has at least some basis for a retaliation claim, based on
being terminated shortly after filing sexual-assault related charges. But again, her retaliation claim
relates to Title VII, and not to the ADA.
In sum, based on a close reading of the charge form, the Court finds that Plaintiff may not
assert claims against Defendants on a sex-based discrimination theory under Title VIL Therefore,
this claim has not been exhausted and is dismissed with prejudice. Shah v. N Y. S. Dep 't of Civ.
Serv., 168 F.3d 610,614 (2d Cir. 1999) ("The federal courts generally have no jurisdiction to hear
claims not alleged in an employee's EEOC charge.") Plaintiff has, however, exhausted her
administrative remedies for retaliation under Title VII, and the Court has subject matter
jurisdiction over that federal claim.
B. ADA: Disability Discrimination and Retaliation Claims
The exhaustion and relation requirements for Title VII exhaustion apply equally to claims
brought under the ADA. See Bent v. Mount Sinai Med. Ctr., 882 F. Supp. 353, 355 (S.D.N.Y.

8

1995) (citing 42 U.S.C. § 12117) (adopting the administrative exhaustion requirement of Title VII
codified at 42 U.S.C. § 2000e-5 for claims under Title I of the ADA). For these claims, Defendants
argue that Plaintiff never checked the box for discrimination in her initial charge, never alleged
facts related to disability-based discrimination in her charge form, and never raised sufficient facts
related to disability-based discrimination and retaliation when she amended her charge form. (Def.
Mem. at 6-7; Reply at 1-2.) Plaintiff, however, argues that: a failure to check a box on a charge
form is not fatal to bringing that claim, and her charge Amendment Letter and Right to Sue Letter
are sufficient to put the Defendants on notice about her disability-based discrimination and
retaliation claims. (Pl. Opp. at 6-8.) The Court again agrees with Defendants.
First, the Court notes that although Plaintiff did not check the box for discrimination in her
initial EEOC charge, she did timely amend her charge to include a claim for discrimination under
the ADA. (See Amendment Letter.) Further, although it is unclear from Plaintiffs initial charge
whether she was attempting to raise a claim for retaliation under Title VII or the ADA, Plaintiffs
Right to Sue letter reflects that the agency believed that she was attempting to raise claims under
Title I and Title V of the ADA, which allow disability-based discrimination and retaliation claims
respectively. (See Right to Sue Letter).
The Court believes that the EEOC mistakenly granted the Plaintiff the right to sue based
on disability discrimination and retaliation, as opposed to sex-based discrimination and retaliation,
as Plaintiffs charge focuses on the incident of her sexual assault, how she repmied it, and how it
was handled-and has absolutely no facts that could suppo1i disability-based discrimination or
retaliation. Again, the Second Circuit has repeatedly instructed district comis in this Circuit to
focus on the connection between the allegations in the charge form and the claims a plaintiff raises.

Williams, 458 F.3d at 71 ("The central question is whether the complaint filed with the EEOC gave

9

that agency 'adequate notice to investigate discrimination on both bases.'") Hence, this Court finds
that the only claim that Plaintiff has adequately raised facts about is retaliation for reporting sexual
assault. Accordingly, despite Plaintiff's Right to Sue Letter, the Court does not believe that
Plaintiff has exhausted her administrative remedies for disability-based discrimination or
retaliation. But in any event, the Court will explain why her amended complaint still fails to allege
sufficient facts to make a plausible prima facie case for both those claims as well.

II.

Signed Release

Defendants next argue that at least part of Plaintiff's retaliation claims must fail as a matter
of law because when Plaintiff resigned from DOC, she signed a form entitled "Authorization for
Release of Information-Applicant," which included the following passage:
I, Michelle Melissa Melendez, have applied for employment as a Court Officer
with the New York State Unified Court System (court system). I am aware that
my entire background will be thoroughly investigated by the court system. I
hereby authorize and request the release to an authorized representative of the
New York State Unified Court System, any and all information, including
academic transcripts, disciplinary matters, and any sealed records pursuant to
Section 160.50(1 )(d) of the NYS Criminal Procedure Law in the possession of
or in the records maintained by your organization. This authorization shall
remain in effect for a period of one year from the date of execution. I also do
hereby release any person(s) from any and all liability which may be incurred
as the result offurnishing such information.
(("Release Form"), Justin Adin Deel. Ex.Eat 4, ECF No. 39-5) (emphasis added). Defendants
argue that Plaintiff's claim-that Defendants retaliated against her in sending information to the
OCA regarding her disciplinary matters-fails as a matter of law since she explicitly released
them from any liability that they would otherwise incur. (Def. Mem. at 5.) Plaintiff argues that
her signed release does not prevent her from raising retaliation claims because a release may only
be given effect when "it contains an explicit, unequivocal statement of present promise to release
a party from liability," and here, the release not only fails to mention any of the parties in this
litigation, but it only contemplates the release of "any person," and therefore only applies to the
10

individually named Defendant, and not to DOC or Westchester County. (Pl. Opp. at 11).
The Court finds Plaintiffs argument incredulous. As Defendants point out, municipalities
have long been considered "persons" under the law in various statutes. See Monell v. Dep't ofSoc.

Servs. of City of New York, 436 U.S. 658, 707, 98 S. Ct. 2018, 2044 (1978); FCC v. AT & T Inc.,
562 U.S. 397, 131 S. Ct. 1177 (2011); CookCty., Ill. v. US. ex rel. Chandler, 538 U.S. 119, 125,
123 S. Ct. 1239, 1243, (2003). Moreover, in earlier acts, Congress indicated that '"'the word
'person' may extend and be applied to bodies politic and corporate ... unless the context shows
that such words were intended to be used in a more limited sense." Monell, 436 U.S. at 707 (citing
Act of Feb. 25, 1871, § 2, 16 Stat. 431.) Further, under New York law, courts are to avoid
interpreting contracts in a way that renders enforcement of the agreement nonsensical or
"produce[s] a result that is absurd, commercially unreasonable, or contrary to the reasonable
expectations of the parties." In re Lipper Holdings, LLC, l. A.D.3d 170, 171 (Pt Dept. 2003)
(internal citations omitted). Here, the release would be rendered meaningless if "persons" did not
apply to Westchester County or Westchester DOC. Accordingly, the Court declines to adopt such
an interpretation of the agreement and finds that Plaintiff's retaliation claims may not depend in
whole or in part on Defendants' sharing Plaintiff's disciplinary history with other employers.

III.

Sufficient Pleadings
A. Retaliation Under Title VII

Title VII provides that:

It shall be an unlawful employment practice for an employer to discriminate against
any of his employees or applicants for employment, for an employment agency, or
joint labor-management committee controlling apprenticeship or other training or
retraining, including on-the-job training programs, to discriminate against any
individual, or for a labor organization to discriminate against any member thereof
or applicant for membership, because he has opposed any practice made an
unlawful employment practice by this subchapter, or because he has made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing under this subchapter.
11

See 42 U.S.C. Section 2000e-3(a). Therefore, in order to plead aprimafacie claim for retaliation

under Title VII, a Plaintiff must allege: (1) that she engaged in a protected activity; (2) that the
defendant knew she engaged in a protected activity; (3) that the defendant took an adverse
employment action against her; and (4) that there was a causal connection between Plaintiffs
protected activity and the adverse employment action. See Hicks v. Baines, 593 F.3d 159, 166 (2d
Cir. 2010). A Plaintiff can plead a causal connection either by raising facts that color direct
evidence of a clear retaliatory animus or through facts that color indirect evidence of a retaliatory
animus, for example, the proximity in time of two events. Dayes v. Pace Univ., 2 F. App'x 204,
208 (2d Cir. 2001) (citing Gordon v. NYC. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000)).
Here, Plaintiff pleaded that on June 20, 2016, she "took the initiative to complete and remit
the necessary documents to file outside charges [about sexual harassment] against Inmate," (AC ,i
25), and that about two months later she was interrogated about the incident about which she had
filed charges. (Id. ,i 27.) She also states that, on the same day she was interrogated, she was denied
a salary increment that would have been due on October 1, 2016 because she was under
investigation for the use of force related to the incident, whereas other male corrections officers
who were also under investigations for the use of force did not have their salary increments denied.
(Id. at 29-30.) Additionally, she alleges that less than two weeks after she was interrogated, she

discussed her salary increment being denied with her Union Representative, a conversation
Defendants knew about. (Id. ,i 33.) Then on September 1, 2016, Plaintiff was immediately
terminated. (Id.)
On these facts, Plaintiff has met the pleading requirements to survive Rule 12(b)(6).
Accordingly, Defendants' Motion to Dismiss her Title VII retaliation claim is denied.

12

B. ADA Claims
As this Court already explained in Part LB., supra, it does not find that Plaintiff has met
her exhaustion requirements for an ADA discrimination or retaliation claim. But because Plaintiff
did receive a Right to Sue letter regarding these claims, the Court will briefly address why it finds
that these claims are insufficiently pleaded, in any event.
The ADA provides that "[n]o covered entity shall discriminate against a qualified
individual on the basis of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job training, and other terms,
conditions, and privileges of employment." 42 U.S.C. § 12112(a). Here, Plaintiff brings ADA
claims under two theories, based respectively on: ( 1) discriminatory intent; and (2) retaliation. 3 For
the reasons discussed below, however, she fails to allege a claim under either theory.
Turning first to a discriminatory discharge theory, to make out a claim under this theory,
Plaintiff would have to, as a prerequisite, establish that she is disabled within the meaning of the
ADA. Anderson v. Nat'l Grid, PLC, 93 F. Supp. 3d 120, 131 (E.D.N.Y. 2015).
The ADA defines a "disability" as:
(A) a physical or mental impairment that substantially limits one or more major life
activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(1). For a plaintiff to establish that he has a disability under the statute's first
subsection (i.e., to show that he is actually disabled), he must "(1) 'show that [he] suffers from a

3

Plaintiff has not pleaded a claim under an ADA failure-to-accommodate theory because she concedes that when she
returned to work after her car accident and requested a reasonable accommodation, she was granted a "light-duty
restriction." (AC ,r 16.) This is detrimental to an ADA failure to accommodate theory, which requires a plaintiff to
plead that an employer refused to provide an accommodation, despite being aware of a qualified disability. See A. H
Canales-Jacobs v. New York State Office of Court Adm in., 640 F. Supp. 2d 482, 499 (S.D.N.Y. 2009).

13

physical or mental impairment,' (2) 'identify the activity claimed to be impaired and establish that
it constitutes a 'major life activity,' 'and (3) 'show that [his] impairment 'substantially limits' the
major life activity previously identified. Weixel v. Bd. of Educ., 287 F.3d 138, 147 (2d Cir.2002)).
Nowhere, in Plaintiffs complaint, does she so allege. Rather, all Plaintiff states in support
of this theory is that in March 2016, she was involved in a car accident; she subsequently returned
to work; she then requested a reasonable accommodation under the ADA; and she was then granted
a "light duty restriction," which required Plaintiff to have limited inmate contact. (AC

,r

16.)

Nowhere in this paragraph or anywhere in the entire amended complaint does Plaintiff assert that
she is "disabled" at all, let alone within the meaning of the ADA. Nor does she provide facts that
even tell what injury she had that made her "disabled." Her lone statement about requesting a
reasonable accommodation under the ADA and being granted a "light-duty restriction" are
certainly not enough to meet the ADA's requirements for a mental or physical impairment that
substantially limits one or more major life activities. 42 U.S.C. § 12102(1); Weixel v. Bd. ofEduc.,
287 F.3d at 147. Plaintiff also fails to plead any facts that support that she could perform the
essential functions of her job after her accident or raise any facts that show that Defendants had
any animus for individuals with disabilities. (indeed, Defendants immediately granted her request
for an accommodation). Accordingly, Plaintiffs discriminatory intent-based claim is glaringly
deficient to survive the pleading standards of Rule 12(b)(6).
Turning to her retaliation-based theory, Plaintiffs AC repeatedly includes the statement
that she was "retaliated against" "for having requested a reasonable accommodation." (AC ,r,r 26,
31, 37.) It is interesting that this statement was not in her EEOC charge or original complaint, but
more importantly, it merely a conclusory statement for which Plaintiff provides no supporting facts
other than the sentence at the beginning of her amended complaint, which states that she had a car

14

accident, returned to work, asked for a reasonable accommodation, and was granted it. (See AC

,r

16.) As with retaliation claims brought under Title VII, Plaintiff has to plead facts that support: (1)
that she engaged in a protected activity; (2) that the defendant knew she engaged in a protected
activity; (3) that the defendant took an adverse employment action against her; and (4) that there
was a causal connection between Plaintiff's protected activity and the adverse employment action.
Additionally, unlike with Plaintiff's claim for Title VII retaliation, Plaintiff does not
provide any facts that could support a direct or indirect theory of causation. First, she pleads
absolutely no facts to show that Defendants had any disability-based animus against her (to the
contrary, she pleads that Defendants immediately granted her request for a reasonable
accommodation). And second, there is no suspect timing with her request for a reasonable
accommodation and her subsequent denial of a pay increase and termination. In short, Plaintiff's
broad and conclusory statements regarding ADA retaliation are precisely the type of hollow claims
that were designed to be filtered out under Iqbal and Twombly. See 550 U.S. at 558. ("a naked
assertion ... gets the complaint close to stating a claim, but without some further factual
enhancement it stops sh01i of the line between possibility and plausibility of 'entitlement to
relief."').
Accordingly, Plaintiff fails to make out a prima facie case for either ADA discrimination
or retaliation, and she also fails to meet the plausibility and specificity requirements of Rules
8(a)(2) and 12(b)(6). Accordingly, all of Plaintiff's ADA-based claims are dismissed.
C. 1983 Claim

Plaintiff also raises a claim under 42 U.S.C. § 1983 on grounds that she is a female who
was deprived of her constitutional rights when Defendants discriminated against her on the basis
of her gender and disability and by taking away her property rights without due process. (AC

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,r,r

59-60.) Defendants argue that Plaintiff fails to properly plead a 1983 claim for several reasons.
First, they argue that equal protection claims parallel Title VII claims, and therefore the viability
of an equal protection claim under 1983 is the same as the underlying Title VII claim. (Def. Mem.
at 13.) Second, they argue that, with regards to due process, it is well-established that a
probationary employee can be discharged without a hearing or statement ofreasons, and therefore,
Plaintiff was not entitled to any due process with respect to her termination. (Id. at 13). Third, to
the degree that Plaintiff had a property interest in her employment, her well-established remedy
was to commence a proceeding under Article 78 of the N.Y. Civ. Prac. Law and Rules. (Def. Mem.
at 13.) The Court agrees with Defendants.
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 Patterson v.

County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004). "In order to establish individual liability
under§ 1983, a plaintiff must show (a) that the defendant is a 'person' acting 'under the color of
state law' and (b) that the defendant caused the plaintiff to be deprived of a federal right." Back v.

Hastings on Hudson Union Free School Dist., 365 F.2d 107, 122 (2d Cir. 2004). Additionally,
"[i]n this Circuit personal involvement of defendants in the alleged deprivations is a prerequisite
to an award of damages under§ 1983." McKinnon v. Patterson, 568 F.2d 930,934 (2d Cir. 1977);

Fiengold v. New York, 366 F.3d 138, 159 (2d Cir. 2004).
As to equal protection claims, "[t]raditionally, the Equal Protection Clause of the
Fourteenth Amendment protects against [classification-based] discrimination." Goldfarb v. Town

of West Hartford, 474 F.Supp.2d 356, 366 (D. Conn. 2007) (internal quotation marks omitted).
The Equal Protection Clause requires that the government treat all similarly situated people alike.

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City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). To maintain an equal
protection claim, a plaintiff must "show adverse treatment of individuals compared with other
similarly situated individuals and that such selective treatment was based on impermissible
considerations such as race, religion, or sex as well as intent to inhibit or punish the exercise of
constitutional rights, or malicious or bad faith intent to injure a person." Miner v. Clinton Cty., 541
F.3d 464, 474 (2d Cir. 2008).
Additionally, to demonstrate that she was subject to disparate treatment, Plaintiff must
show that she was treated "less favorably" than a similarly situated employee outside [her]
protected group." Graham v. Long Island R.R., 230 F.3d. 39 (2d. Cir. 2000). In Graham, the
Second Circuit elaborated on what "similarly situated" means. A plaintiff must demonstrate that
she is similarly-situated in "all material respects" to the individuals with whom she is comparing
herself. Id. A plaintiff also must show that her co-employees were subject to the same performance
evaluation and discipline standards and that the conduct for which discipline was imposed was of
comparable seriousness. Id. at 40. (internal citations omitted).
Like Title VII claims, employment discrimination claims brought under Section 1983,
alleging employment discrimination based on race, religion, sex or national origin, are governed
by the analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973);

Back, 365 F.3d at 122. Hence, the requirements under 1983 are the same as those required to
establish a prima facie employment discrimination claim under Title VII-that is, a plaintiff must
demonstrate that (1) she belonged to a protected class; (2) she was qualified for the position she
held; (3) she suffered an adverse employment action; and (4) that the adverse employment action
occurred under circumstances giving rise to an inference of discriminatory intent. Tolbert v. Smith,
790 F.3d 427,436 (2015); Rosen v. Thornburgh, 928 F.2d 528,532 (2d Cir.1991).

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Beginning with Plaintiffs equal protection-based argument, the Court finds that Plaintiffs
disability discrimination claims fails based on the pleading deficiencies already described in
Section III.B., supra. As to Plaintiffs sex discrimination claim, the Court finds that Plaintiff does
make out just enough for the claim to stand. She describes being the "only female Correction
Officer serving a probationary period," (AC ,i 17), and describes being treated differently
compared to "a male correction officer who was also completing his probationary period" and who
also "responded to an inmate with force," but did not "file charges against the inmate." (Id. ,i 35.)
Though Plaintiff did not allege specific facts stating that she was qualified for the position that she
held, the Court finds that her being hired for the position suffices for pleading requirements at this
stage. Accordingly, Plaintiffs 1983 claims based on equal protection, survives at this juncture.
But because Plaintiff did not allege any facts to show Defendant Kevin Cheverko' s personal
involvement, it only survives against Westchester County and Westchester DOC.
Lastly, regarding Plaintiffs 1983 claim based on due process, the Court finds that despite
her conclusory allegation, (AC ,i 60), Plaintiff does not have a property right in her employment,
which is a prerequisite to a due process claim. Although she was a public employee, and public
employees can occasionally have property interests in their government jobs, she was not such an
employee. Only those public employees who have a legitimate claim of entitlement in their jobs,
through written or implied contracts, statutes, or particular employer practices (e.g. tenured school
teachers) can raise due process claims based on a property interest in their jobs. See Croci v. Town
of Haverstraw, 175 F. Supp. 3d 373, 385 (S.D.N.Y. 2016) (holding that plaintiff who had a "long
history" of jobs with the New York City government and the City University of New York did not
have a property interest in his job despite claiming that he had received "assurances" from his
employer that he would be reappointed to his administrative position for the next two successive

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years); Whitfield v. Fraser, 272 F. Supp. 2d 340, 345 (S.D.N.Y. 2003) (explaining that civil
servants do not have unrestricted property interests to continued employment). Here, Plaintiff was
never entitled to long-term employment with the government and did not raise any facts to show
that she had a written or oral promise of employment. Indeed, she was not even a full-time
employee, as she was still completing her probationary period training. Hence she had no property
interest in her employment.
To the degree that Plaintiff claims to have a limited interest in ensuring that her termination
was not made arbitrarily, capriciously, in bath faith, or in violation of her Constitutional rights, she
is able to seek judicial review through an Article 78 hearing and the state court system. See Butler

v. Abate, 204 A.D.2d 171, 172, 612 N.Y.S.2d 19 (1994) (New York State appellate division
affirming holding of IAS court that terminating probationary correction officer was neither
arbitrary, capricious nor made in bad faith); Whitfield, 272 F. Supp. 2d at 345 (holding that there
is no requirement for public employees to be granted hearings before being terminated until and
unless they can establish that they have a property interest in their employment). Accordingly,
Plaintiffs due process claim is insufficient to withstand Defendants' Motion to Dismiss.

D. New York State Executive Law Claim
Plaintiff also raises sex and disability-based discrimination and retaliation claims under
New York State Human Rights Law Executive Law §§ 296-97. (AC ifif69-76.) Plaintiff and
Defendants agree that the pleading standards for discrimination and retaliation claims raised under
New York State Law mirror the pleading requirements under Title VII and the ADA. (See Def.
Mem. at 17-18; Pl. Opp. at 21.) As such, both parties agree that the viability of Plaintiffs state law
claims is the same as that for her federal claims.
Accordingly, this Court finds that none of Plaintiffs disability-based claims are

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sufficiently pleaded under New York State law. Because Plaintiff properly pleaded her Title VII
retaliation claim (and met her exhaustion requirements), that claim survives under the analogous
New York State law. Further, while the Court found that Plaintiff did not meet her exhaustion
requirements for a Title VII discrimination claim, it did find that she met her pleading requirements
for sex discrimination under § 1983 in her amended complaint. (See Part III.C., supra).
Accordingly, Plaintiffs claims for sex-based discrimination and retaliation under New York State
law survive.

E. Tortious Interference Claim
Lastly, Plaintiff raises a claim for Tortious Interference under New York State Tort Law.
Both parties agree that in order to state this claim, a Plaintiff is required to allege that: (1) she had
a business relationship with the OCA; (2) Defendants knew about the relationship and interfered
with it intentionally; (3) said interference was solely out of malice, or through dishonest, unfair,
or improper means; and (4) Defendants; interference caused injury to the relationship. (Def. Mem.
at 18; PL Opp. at 21); Kirch v. Liberty Media Corp., 449 F.3d 388,400 (2d Cir. 2006).
Here, the Court agrees with Defendants that Plaintiff fails to plead a prima facie case.
Although Plaintiff arguably had a "business relationship" with the OCA as a prospective
employee, Plaintiffs claim already fails muster on the second element, which requires a plausible
allegation that Defendants interfered with such a relationship intentionally. As the Court already
discussed in Part II, supra, Plaintiff is barred from holding Defendants liable for any conduct
related to their sharing her disciplinary history that they possess. (See Release Form).
Further, even if the Court accepted Plaintiffs argument that her resignation was forced and
invalidated the waiver, because OCA is a law enforcement agency that has a legitimate interest in
Plaintiffs background and Defendants actions were in response to its specific request for

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Plaintiffs employment-related history, Plaintiff cannot-as a matter of law-claim that
Defendants actions in responding to that lawful request were solely out of "malice or through
dishonest, unfair, or improper means." Hence, her pleadings also incurably fail to satisfy the third
primafacie element. Accordingly, the Court dismisses this claim as a matter of law.

CONCLUSION

For the foregoing reasons, Defendants' Motion to Dismiss is GRANTED in part and
DENIED in part. Defendants' Motion to Dismiss is GRANTED as to Plaintiffs claims for:
disability-based discrimination and retaliation under the ADA and New York State law, sex-based
discrimination under Title VII, tortious interference under New York State Law, and Section 1983
based on a due process violation.
Defendants' Motion to Dismiss Plaintiffs claims for sex-based discrimination and
retaliation under New York State law is DENIED, and similarly, Defendants' Motion to Dismiss
her 1983 claim based on an equal protection theory is DENIED.
Accordingly, Defendants are directed to answer the Amended Complaint by February 15,
2019 and submit a completed case management plan to chambers by February 26, 2019. The Clerk
of the Court is respectfully directed to terminate the motion at ECF No. 37.

Dated:

January 16, 2019
White Plains, New York

SO ORDERED:

NELSON S. ROMAN
United States District Judge

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