Malcolm v. Association of Supervisors and Administrators of Rochester, (ASAR) et al

Filing 28

DECISION AND ORDER I find that Plaintiff has failed to exhaust her administrative remedies and failed to state a claim against any defendant with respect to her LMRA, Title VII, ADEA and NYSDHR claims. Accordingly, defendants' motions to dismis s the complaint 4 , 9 are granted, and the complaint is dismissed, with prejudice. Plaintiff, Bernice Malcolm, is enjoined from the filing and prosecution of additional lawsuits arising out of her employment with the RCSD, in the manner and to th e extent described herein. Signed by Hon. David G. Larimer on 7/11/2019. Copy of this Decision and Order sent by First Class Mail to plaintiff Bernice C. Malcolm on 7/11/2019 to her address of record. (KAH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________________
BERNICE C MALCOLM,
Plaintiff,

DECISION AND ORDER
(Malcolm I)
17-CV-6878L

v.
ASSOCIATION OF SUPERVISORS AND
ADMINISTRATORS OF ROCHESTER (ASAR),
TIMOTHY CLIBY, President and Individually, JOHN
ROWE, Vice President and Individually, ROCHESTER
CITY SCHOOL DISTRICT and BARBARA
DEANE-WILLIAMS, Superintendent of Schools,
Individually,
Defendants.
________________________________________________
INTRODUCTION
Bernice C. Malcolm (“plaintiff”) once again has commenced suit against her employer the
Rochester City School District (“RCSD”) alleging violations of federal and state laws. Malcolm
is a known litigant in this Court. She is well-known because she is a demonstrable, abusive
litigant. This case and two similar cases in this district (Malcolm II (17-CV-6873); Malcolm III
(18-CV-6450)) against essentially the same defendants, raise the same or similar claims and all
will be dismissed in three separate decisions; filed this date. For several reasons, all of these
cases lack merit both procedurally and substantively.
Plaintiff has been sanctioned previously by this Court for filing repetitive and frivolous
lawsuits. See Malcolm v. Bd. of Educ. of the Honeoye Falls-Lima Cent. Sch. Dist., 737 F. Supp.
2d 117, 120-21 (W.D.N.Y. 2010). Because of her demonstrated history of filing frivolous and

harassing litigation, plaintiff was enjoined from filing any other action against the Honeoye
Falls-Lima School District and its employees without obtaining prior leave of court. Malcolm v.
Bd. of Educ. Of the Honeoye Falls-Lima Cent. Sch. Dist., 737 F. Supp. 2d 117, 120-21 (W.D.N.Y.
2010). In fact, plaintiff sought such relief which was denied by this Court on two occasions.
Malcolm v. Honeoye Falls-Lima Cent. Sch. Dist., 278 F. Supp. 3d 677, 678 (W.D.N.Y. 2017);
Malcolm v. Honeoye Falls-Lima Cent. Sch. Dist., No. 11-CV-6509, 2011 WL 13128613, at *1-2
(W.D.N.Y. Oct. 27, 2011), aff’d 517 F. App’x 11 (2d Cir. 2013).
As will be discussed below, and in the two other decisions decided today, plaintiff has
proceeded against her present employer and a related union just as she had against the Honeoye
Falls-Lima School District.1
One of the claims in this present lawsuit is that plaintiff was laid off based on improper
considerations of age and race. There were approximately 22 employees (CASE employees) who
suffered the same fate. As will be discussed, many of those employees were also over the age of
40, hence covered by the Age Discrimination and Employment Act.

A few were also

African-American, as is plaintiff, but the majority were Caucasian. No discriminatory animus is
evident.

1

See e.g., Malcolm v. Bd. of Educ. of the Honeoye Falls-Lima Cent. Sch. Dist., 09-CV-6421, 2010 WL 3724662
(W.D.N.Y. Sept. 14, 2010) (complaint dismissed with prejudice), aff’d, 506 F. App’x 65 (2d Cir. 2012); Malcolm v.
Honeoye Falls-Lima Educ. Ass’n, 08-CV-6551, 2015 WL 1507830 (W.D.N.Y. Mar. 31, 2015) (complaint
dismissed), aff’d, 684 F. App’x 87 (2d Cir. 2017), cert. denied, 138 S. Ct. 365 (2017); Malcolm v. Honeoye Falls
Lima Cent. Sch. Dist., 08-CV-6300, 669 F. Supp. 2d 330 (W.D.N.Y. 2009) (complaint dismissed with prejudice),
aff’d in part, vacated in part 339 F. App’x 680 (2d Cir. 2010), cert. denied 565 U.S. 879 (2011), and reh’g denied
565 U.S. 1101 (2011), dismissed on remand, 777 F. Supp. 2d 484 (W.D.N.Y. 2011), aff’d, 483 F. App’x 660 (2d
Cir. 2012), cert. denied, 568 U.S. 1144 (2013); Malcolm v. Bd. of Educ. of the Honeoye Falls-Lima Cent. Sch. Dist.,
737 F. Supp. 2d 117 (W.D.N.Y. 2010) (complaint dismissed with prejudice), denying reconsideration, 08-CV-6577,
2010 WL 4238857 (W.D.N.Y. Oct. 27, 2010); In re Malcolm, 2012-3474, 132 A.D.3d 1023 (N.Y. App. Div. 2015),
cert. denied, 137 S. Ct. 120 (2016); Malcolm v. Honeoye Falls-Lima Cent. Sch. Dist., 2011-1658 (N.Y. Sup. Ct.
Monroe County 2011); Malcolm v. Honeoye Falls–Lima Cent. Sch. Dist., 2008-16610 (N.Y. Sup. Ct. Monroe
County 2008); see also Malcolm v. Vicksburg Warren Sch. Dist., 14-CV-853, 2016 WL 96313089 (S.D.M.I. Aug.
08, 2016) (complaint dismissed with prejudice), reconsideration denied 2016 WL 6916791 (S.D.M.I. Nov. 22,
2016), aff’d, 709 F. App’x 243 (5th Cir. 2017).

2

Furthermore, it is worth noting, as will be pointed out below, that plaintiff and the other
laid off employees eventually were later contacted and reemployed. In fact, although plaintiff
persists in this litigation, she also has been reemployed and remains with the Rochester City School
District to date.
Plaintiff is proceeding pro se and as such she is entitled to some accommodation because
of that status. This plaintiff though has abused that position repeatedly.
The fact that plaintiff has filed three separate lawsuits against the Rochester City School
District and the related union is of note. Two of the lawsuits are virtually carbon copies of the
other. Some paragraphs of the complaint appear to simply be copies of a prior pleading and
placed in the second lawsuit. Malcolm v. Rochester City Sch. Dist., No. 17-CV-6873 (W.D.N.Y.
2017); see also Malcolm v. Rochester City Sch. Dist., No. 18-CV-6450 (W.D.N.Y. 2018).
As further evidence of plaintiff’s harassing tactics, she has filed not one, but five separate
claims before the New York State Division of Human Rights. There is no need for that. Several
of these matters before the State Division appear to remain unresolved which, as will be discussed,
necessitates dismissal of some of the claims.
Plaintiff has created a cottage industry of litigation concerning employers and school
districts that have employed her. Plaintiff was sanctioned in the Honeoye Falls-Lima cases
because there she had filed a total of four lawsuits in federal court and at least one in state court
against the same district. Malcolm v. Bd. Of Educ. of the Honeoye Falls-Lima Cent. Sch. Dist.,
737 F. Supp. 2d 117, 120-21 (W.D.N.Y. 2010) aff’d 506 F. App’x 65, 70 (2d Cir. 2012). All
those actions were dismissed and to the extent plaintiff appealed, they were all affirmed.2

2

See supra note 1.

3

Counsel for defendants and this Court are forced to spend a not inconsiderable amount of
time dealing with a flurry of cases before agencies and the Court involving baseless arguments,
many of which are not responded to or pursued once defendants raise legal challenges on either a
motion to dismiss or summary judgment. Such activity must stop.
PLAINTIFF’S THREE ACTIONS AGAINST THE RCSD AND ITS EMPLOYEES
This action filed on December 20, 2017 is against the RCSD, its then-Superintendent of
Schools and a union (ASAR) representing plaintiff and others (Malcolm I).
A second action, 17-CV-6872 (Malcolm II) was filed on December 19, 2017, virtually the
same day as Malcolm I. This is essentially a copycat pleading to Malcolm I, and is also against
the RCSD, but different employees than were enumerated in Malcolm I. Finally, on June 18,
2018, plaintiff filed a third action (18-CV-6450 (Malcolm III)) against the RCSD and its thenSuperintendent.
All these cases must be dismissed and will be discussed separately in the other decisions
filed today.
BACKGROUND: MALCOLM I
Plaintiff, proceeding pro se, brings this action against defendants Association of
Supervisors and Administrators of Rochester (“ASAR”), its President, Timothy Cliby (“Cliby”),
and Vice President, John Rowe (“Rowe”), as well as the RCSD and its superintendent, Barbara
Deane-Williams (“Deane-Williams”). Plaintiff alleges defendants discriminated against her with
respect to her employment in violation of the Labor Management Relations Act § 301 (“LMRA”),
29 U.S.C. § 185; Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.;
the Age Discrimination in Employment Act of 1967 (“ADEA”), 42 U.S.C. § 1988; New York
Human Rights Law (“NYHRL”), N.Y. Exec. Law § 290 et seq.; 42 U.S.C. § 1983; and the New

4

York Constitution’s Equal Protection clause, N.Y. Const. Art. I, § 11. Plaintiff also asserts
multiple state law claims against defendants, including breach of contract, breach of the collective
bargaining agreement, and breach of the implied covenant of good faith and fair dealing, alleging
defendants breached the collective bargaining agreement they operated under.
Plaintiff is a 61-year-old African-American woman who was first employed with the
RCSD in April of 2015, after her tumultuous litigation against the Honeoye Falls-Lima School
District. Plaintiff was hired as a Central Office Coordinating Administrator of Special Education
(“CASE”) and was represented by the ASAR in their capacity as a labor union. Not long after
she was hired, Plaintiff began to have difficulties with one of her supervisors and made complaints
to her supervisors at the RCSD and to ASAR.
In March 2017, the RCSD, faced with budgetary concerns, conducted an audit that led
them to restructure the special education administrators. This included laying off twenty-two
CASE positions. Plaintiff was one of the affected employees. Those employees were then
placed on a preferred eligibility list for seven years, meaning they could be recalled and resume
employment if a position was open.
Plaintiff was recalled from the preferred eligibility list and rehired by the RCSD on
November 20, 2017 in her same position and is currently employed by the RCSD today. She was
re-employed about a month before plaintiff filed this action.
When plaintiff was laid off in March 2017, she disagreed with the cuts and went to ASAR
with her concerns. As stated in plaintiff’s complaint, while ASAR disagreed with the layoffs,
they told Plaintiff they could not do anything about the restructuring because they determined there
was nothing illegal about the layoffs. ASAR advised plaintiff that she also had the right to file a

5

grievance with her direct supervisor at the RCSD as outlined in the collective bargaining
agreement without the assistance of ASAR, but she failed to file such a grievance.
Plaintiff then filed five charges within the New York State Department of Human Rights
(“NYSDHR”). In the first two charges against the RCSD, the NYSDHR determined there was
probable cause, and the case is still pending and is not yet resolved. These two charges were
dually filed in the EEOC. The third, fourth and fifth charges against ASAR and RCSD were
dismissed with the NYSDHR finding no probable cause, with the EEOC adopting the same
findings as the NYSDHR for her federal claims. Upon receipt of her right to sue letter from the
EEOC in her third charge, plaintiff then filed the present lawsuit, as well as the other two lawsuits,
Malcolm II and Malcolm III.
In lieu of an answer, the ASAR Defendants moved to dismiss the complaint pursuant to
Fed. R. Civ. Proc. 12(b)(1) and (6), and RCSD Defendants moved to dismiss the complaint
pursuant to Fed. R. Civ. Proc. 12(b)(1), 12(b)(2), 12(b)(4), 12(b)(5) and 12(b)(6). Plaintiff, in
her complaint and in her reply papers, requested a stay in the proceedings, and in her response to
defendant’s motion to dismiss, moved to amend her complaint.
For the reasons set forth below, ASAR’s motion to dismiss (Dkt. #4) is granted; RCSD’s
motion to dismiss (Dkt. #9) is granted, and the Complaint is dismissed. Plaintiff’s motion to
amend the complaint (Dkt. #23) is denied, and plaintiff’s request to stay proceedings (Dkt. #1) is
denied.
DISCUSSION: MALCOLM I
Federal Rule of Civil Procedure 12(b)(6) provides that a complaint may be dismissed for
failure to state a claim upon which relief can be granted. Fed. R. Civ. Proc. 12(b)(6). In
deciding a motion to dismiss under Fed. R. Civ. Proc. 12(b)(6), the court’s review is limited to the

6

complaint, and those documents attached to the complaint or incorporated therein by reference.
See Tellabs, Inc. v. Makor Issues & Rights, Ltd.., 551 U.S. 308, 322-23, 127 S. Ct. 2499, 168 L.
Ed.2d 179 (2007). A court must “accept the allegations contained in the complaint as true and
draw all reasonable inferences in favor of the non-movant.” Sheppard v. Beerman, 18 F.3d 147,
150 (2d Cir. 1994), citing Ad-Hoc Comm. of Baruch Black & Hispanic Alumni Ass’n v. Bernard
M. Baruch College, 835 F.2d 980, 982 (2d Cir. 1987).

However, “bald assertions and

conclusions of law will not suffice” to defeat a motion to dismiss. See Reddington v. Staten
Island Univ. Hosp., 511 F.3d 126, 126 (2d Cir. 2007). “A plaintiff’s obligation . . . requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do. Factual allegations must be enough to raise a right to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). Where
a plaintiff “ha[s] not nudged [her] claims across the line from conceivable to plausible, [plaintiff’s]
complaint must be dismissed.” Ashcroft v. Iqbal, 556 U.S. 662, 680, 129 S. Ct. 1937, 173 L.
Ed.2d 868 (2009). For employment discrimination claims, a plaintiff need not establish a prima
facie case, but instead must only make a short and plain statement of the claim, giving notice of
what the claim is and the grounds for the claim. See Morales v. Long Island R.R. Co., No. 09 CV
8714, 2010 WL 1948606, at *2-3, 2010 U.S. Dist. LEXIS 47926, at *7-8 (S.D.N.Y. May 14, 2010),
citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S. Ct. 992, 152 L. Ed.2d 1 (2002).
I.

Plaintiff’s LMRA, Breach of Duty of Fair Representation, Breach of Collective
Bargaining Agreement, Breach of Contract, and Breach of Implied Covenant of Good
Faith and Fair Dealing claims
Under New York law, a union member “has no cause of action against his union for breach

of contract . . . arising out of the performance of duties under the collective bargaining agreement;
his sole remedy is an action for breach of fair representation.” Ifill v. New York State Court
Officers Ass'n, 655 F. Supp. 2d 382, 393 (S.D.N.Y. 2009), quoting Herington v. Civil Serv.
7

Employees Ass'n, Inc., 130 A.D.2d 961, 961–62, 516 N.Y.S.2d 377 (App. Div. 4th Dept. 1987).
Common law contractual claims, including breach of contract, breach of a collective bargaining
agreement, and breach of the implied covenant of good faith and fair dealing, are absorbed under
any LMRA § 301 claim as long as the resolution of the state law claim depends on the meaning of
the collective bargaining agreement. Lingle v. Norge Div. of Magic Chec, Inc., 486 U.S. 399,
405-06, 108 S. Ct. 1877, 100 L. Ed. 2d 410 (1988); Allis-Chalmers Corp. v. Lueck, 471 U.S. 202,
220, 105 S. Ct. 1904, 85 L. Ed. 2d 206 (1985). Plaintiff’s breach of collective bargaining
agreement, breach of contract, and breach of implied covenant of good faith and fair dealing
therefore are subsumed into any breach of duty of fair representation claim and therefore are
dismissed.
Plaintiff also has failed to exhaust her administrative remedies, which is a prerequisite to
claiming a breach of duty-of-fair-representation claim under LMRA Section 301. If a collective
bargaining agreement contains a grievance or arbitration remedy, a plaintiff cannot file suit unless
the grievance or arbitration process has been exhausted.

See DelCostello v. International

Brothers of Teamsters, 462 U.S. 151, 163, 103 S. Ct. 2281, 76 L. Ed. 2d 476 (1983).
Although plaintiff states in her complaint and memoranda that she has exhausted her
administrative remedies (see Dkt. #1, ¶¶ 13, 19, hereinafter “Compl.”), plaintiff only does so
through conclusory statements and vague assertions. She has not set forth any factual allegations
detailing how she made a grievance, when a denial of her grievance was made, or which
administrative remedies she has exhausted.
Plaintiff’s collective bargaining agreement provided an additional grievance mechanism,
which was to file a complaint with the New York Public Employment Relations Board (“PERB”).
Plaintiff was notified in her NYSDHR dismissal letter that any breach of duty of fair representation

8

claims fall under the jurisdiction of PERB. Compl. Ex. 7. Plaintiff, however, has failed to
allege that she filed such a grievance, or that she otherwise exhausted her administrative remedies
as outlined in the collective bargaining agreement. See King v. New York Telephone, 785 F.2d
31, 33 (2d Cir. 1986).
In addition, and notably, plaintiff’s claims also lie outside the four-month state and
six-month federal statute of limitations for duty-of-fair-representation claims, as the current action
was filed in December 2018 and the alleged breach occurred on or before March 2017. New
York Civil Service Law § 209–a; New York Civil Practice Law & Rules § 217(2)(b); see
DelCostello, 462 U.S. at 169. Accordingly, plaintiff’s first through fourth causes of action are
dismissed.
II.

Plaintiff’s ADEA, Title VII, and NYSHRL claims against individual defendants
Cliby, Rowe and Deane-Williams
The ADEA and Title VII do not provide for personal liability for individuals. See Guerra

v. Jones, 421 F. App’x 15, 17 (2d Cir. 2011); Sassaman v. Gamache, 566 F.3d 307, 315 (2d Cir.
2009). The NYSHRL, on the other hand, provides for personal liability as long as the conduct
that gave rise to the claim involved direct participation from the individual defendant. See
Malcolm v. Honeoye Falls-Lima Educ. Ass’n, 678 F. Supp. 2d 100, 106 (W.D.N.Y. 2010); see also
Bickerstaff v. Vassar Coll., 160 F. App’x 61, 63 n. 2 (2d Cir. 2005).
I find that plaintiff’s Title VII and ADEA claims against the individual defendants must be
dismissed, as both statutes do not provide for liability against individuals. As for plaintiff’s
NYSHRL claims against Cliby and Rowe, because plaintiff did not allege direct participation in
conduct that gave rise to her discrimination claim anywhere in her complaint, she has not properly
pleaded any NYSHRL claim against them. Plaintiff’s only direct allegation against Rowe is that
he stated that it was the District’s responsibility to deal with plaintiff’s supervisor, and that there
9

was nothing that ASAR could do about the situation. Compl. ¶¶ 62, 89. Plaintiff also makes
no factual allegations against Cliby, stating only that he “did little to remedy the situation” without
detailing any specific situations where he failed to do so. Compl. ¶ 88. None of the facts as
pleaded suggest that any individual defendant furthered, or directly participated in, a
discriminatory employment action.
Similarly, nowhere in plaintiff’s complaint does she plead how Deane-Williams is
personally involved with the alleged discrimination.

Deane-Williams is only mentioned a

handful of times in the complaint, none of which suggest any direct involvement in the alleged
discrimination. Compl. ¶¶ 61, 110, 185, 189-91. Plaintiff does not allege that Deane-Williams
played an individual role in the elimination of plaintiff’s position, let alone that she did so with
discriminatory animus. Plaintiff merely makes conclusory and speculative statements saying she
was treated disparately by Deane-Williams, without any explanation how Deane-Williams was
personally involved in the alleged disparate treatment. See, e.g., Compl. ¶ 185.
For these reasons, Plaintiff’s remaining NYSHRL claims against individual defendants
Cliby, Rowe and Deane-Williams are dismissed as well.
III.

Plaintiff’s ADEA, Title VII, and NYSHRL claims against defendant ASAR
To state a claim under the ADEA, Title VII and NYSHRL, plaintiff must plausibly allege

that (1) the employer took an adverse employment action against plaintiff and (2) the motivating
factor for taking the adverse employment action was plaintiff’s race, color, religion, sex or national
origin. 42 U.S.C. § 1988; 42 U.S.C. § 2000e–2(a)(1); N.Y. Exec. Law § 290 et seq.; Vega v.
Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015). In order to state a hostile work
environment claim and a disparate treatment claim, plaintiff must plead that (1) the conduct is
“objectively severe or pervasive… and creates an environment that a reasonable person would find
hostile or abusive;” (2) the conduct “creates an environment that the plaintiff subjectively
10

perceives as hostile or abusive;” and (3) the environment is created because of the protected
characteristic. Foster v. Humane Soc’y of Rochester and Monroe Cty., Inc., 724 F. Supp. 2d 382,
391-92 (W.D.N.Y. 2010). To state a retaliation claim, the complaint must plead facts that go to
show “that (1) [plaintiff] engaged in a protected activity; (2) her employer was aware of plaintiff’s
protected activity; (3) plaintiff suffered an adverse employment action, and (4) a causal connection
existed between the protected activity and the adverse action.” Id. at 394-95.
Plaintiff has failed to sufficiently plead facts that show any plausible discrimination, hostile
work environment, retaliation or disparate treatment attributable to ASAR.

Viewing the

complaint in the light most favorable to the plaintiff, the complaint is entirely devoid of any facts
that would indicate that plaintiff’s age, race or gender had anything to do with her termination.
While plaintiff argues ASAR used pretext to hide any discrimination or retaliation (Compl.
¶¶ 134, 144, 180), she does not explain as to why or how any of ASAR’s actions were pretextual.
Plaintiff also alleges that ASAR discriminated against her by refusing to file a grievance on
plaintiff’s behalf, but she has not alleged that the union treated non-minority employees any
differently, that any events occurred that would constitute intentional discrimination, or that any
action taken by ASAR in refusing to file the grievance was done with discriminatory animus.
Compl. ¶¶14, 83; see Carrion v. Local 32B-32J Serv. Emps. Int’l Union, No. 03 Civ. 1896, 2005
WL 659321, at *5, 2005 U.S. Dist. LEXIS 4417, at *21-22 (S.D.N.Y. Mar. 21, 2005); see also
Malcolm v. Honeoye Falls-Lima Educ. Ass’n, No. 08-CV-6551, 2015 WL 1507830, at *8, 2015
U.S. Dist. LEXIS 43363, at *22-24 (W.D.N.Y. Mar. 31, 2015).
Plaintiff does not say who refused to file her grievance or plead any facts detailing the
failure to file the grievance. Even assuming the truth of plaintiff’s allegation that ASAR refused
to file her grievance, she does not assert any facts that would go to show they refused to do so

11

because of plaintiff’s age, race or gender. Plaintiff’s vague and conclusory allegations do not
cross the threshold of plausibility and therefore plaintiff’s Title VII, ADEA and NYSDHR claims
against ASAR are dismissed.
IV.

Plaintiff’s ADEA, Title VII, and NYSHRL claims against defendant RCSD
A claimant must exhaust administrative remedies through the EEOC before bringing

ADEA and Title VII claims to federal court. Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274
F.3d 683, 686 (2d Cir. 2001). Additionally, plaintiff may not file suit in a federal court if any
administrative proceedings are still ongoing.

See Malachi v. Postgraduate Ctr. for Mental

Health, No. 10-CV-3527, 2013 WL 782614, at *2, 2013 U.S. Dist. LEXIS 30221, at *4-5
(E.D.N.Y. Mar. 1, 2013). If plaintiff has elected to pursue her remedies in the NYSDHR, she
also cannot seek the same remedies in federal court. See id. There are still proceedings pending
in the NYSDHR and EEOC regarding plaintiff’s claims against the RCSD. Plaintiff admitted in
her complaint that jurisdiction still belongs to NYSDHR and she has not yet been issued a right to
sue letter by the EEOC for these claims. Compl. ¶¶ 16, 75-76. Due to plaintiff’s failure to
exhaust her administrative remedies against the RCSD and her ongoing administrative
proceedings, plaintiff’s ADEA, Title VII, and NYSHRL claims against RCSD are dismissed.
V.

Plaintiff’s Equal Protection Claims under 42 U.S.C. § 1983 and the N.Y.
Constitution
Plaintiff also alleges that she was deprived of her constitutional rights while defendants

were acting “under color of law,” in violation of 42 U.S.C. § 1983 and the New York State
Constitution, NYS Cons. Art I, Sec. 11. Compl. p. 25-27. Liability under § 1983 extends only
to state actors. See Williams v. N.Y.C. Hous. Auth., 335 F. App’x 108, 110 (2d Cir. 2009). To
establish liability under § 1983, a defendant must be (1) acting under color of state law and (2)
defendant’s actions resulted in a deprivation of constitutional rights. Washington v. County of
12

Rockland, 373 F.3d 310, 315 (2d Cir. 2004). Merely stating that a party is acting “in color of
law” is not enough to show the nexus required to state a claim under § 1983 or the New York
Constitution.
For an individual defendant to be liable, an official must be personally involved by, (1)
directly participating in the constitutional violation, (2) failing to remedy the constitutional
violation after being informed of the violation, (3) creating a policy that allowed for
unconstitutional violations or allowing for unconstitutional violations under the policy, (4)
supervising employees who committed wrongful acts with gross negligence, or (5) exhibiting
deliberate indifference towards the rights of others. 42 U.S.C. § 1983; Johnson v. Newburgh
Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir. 2001). The same framework applies to a New
York state constitutional violation. Town of Southold v. Town of East Hampton, 477 F.3d 38, 53
n. 3 (2d Cir. 2007); Weber v. City of New York, 973 F. Supp. 2d 227, 274 (E.D.N.Y. 2013). An
equal protection claim is then analyzed under the same framework as a Title VII employment
discrimination claim. Id., see Feingold v. New York, 366 F.3d 138, 159 (2d Cir. 2004).
ASAR, Cliby and Rowe are not state actors and therefore cannot be held liable under §
1983 or the NYS Constitution, as Cliby and Rowe are private citizens and ASAR is an
unincorporated association. See Williams, 335 F. App’x at 110; Malcolm, 678 F. Supp. 2d at 107.
Plaintiff’s eleventh and twelfth claims against ASAR, Cliby and Rowe are therefore dismissed.
Deane-Williams was plausibly acting in color of state law in her supervisory role as
superintendent of the entire district. However, establishing a defendant’s personal involvement
in the alleged constitutional deprivations is a prerequisite to damages under § 1983. Brown v.
City of Syracuse, 197 F. App’x 22, 25 (2d Cir. 2006). As discussed above, plaintiff has not pled
facts sufficient to state a claim that Deane-Williams personally violated any of plaintiff’s

13

constitutional rights, just as she had not done enough to plead that Deane-Williams had
individually discriminated against plaintiff under NYSHRL. Because plaintiff has failed to
allege that Deane-Williams’ actions deprived plaintiff of any constitutional right, plaintiff’s
eleventh and twelfth claims against Deane-Williams are dismissed.
As a public school district, RCSD was acting under color of state law. However, plaintiff
does not detail how the RCSD’s actions deprived plaintiff of any constitutional rights. Plaintiff
claims that the RCSD subjected her to disparate treatment but does not provide any factual basis
to such claims. To the contrary, plaintiff’s attached copies of correspondence to her complaint
with the RCSD’s Department of Human Capital Initiatives show the opposite.

The

correspondence attests that RCSD investigated plaintiff’s complaints of discrimination and found
that the parties plaintiff had accused of discrimination were members of the same protected classes
as plaintiff, including the same race, gender and age, something plaintiff does not dispute. See
Compl. ¶ 73. The same issues that plague the rest of plaintiff’s complaint persist here, as plaintiff
only makes vague and speculative accusations without any factual support. For these reasons, I
find that plaintiff has failed to state an equal protection claim against the RCSD and her twelfth
cause of action is therefore dismissed.
VI.

Plaintiff’s Request to Stay Proceedings
Plaintiff requested, as part of her complaint, to stay the current proceedings until her

unexhausted claims are resolved with the NYSDHR and EEOC. Compl. ¶¶ 20-21. When
considering a request for a stay of proceedings, the court should consider whether: (1) plaintiff is
likely to prevail on the merits; (2) the plaintiff will suffer irreparable harm if no stay is granted;
(3) other parties will suffer substantial harm if no stay is granted; and (4) public interest supports
a stay. Rochester-Genesee Reg’l Transp. Auth. v. Hynes-Cherin, 506 F. Supp. 2d 207, 213
(W.D.N.Y. 2007).
14

Plaintiff argues that a stay is warranted because of the ongoing NYSDHR proceedings and
that a stay is “legally and economically necessary to avoid injustice”. Dkt. #23, p. 19. Plaintiff
admits that the NYSDHR has jurisdiction over the claims, but instead is seeking additional relief
here in federal court before completing the hearing process in the NYSDHR. As defendants
suggest in their motion to dismiss, public interest instead calls for a denial of plaintiff’s request to
stay, as plaintiff should be required to exhaust her administrative remedies just like every other
litigant who files a claim with the NYSDHR and the EEOC. Dkt. # 9-9, p. 11.
Because I conclude that the causes of action should be dismissed for failure to exhaust
administrative remedies, plaintiff’s request to stay proceedings is denied.
VII.

Plaintiff’s Motion to Amend the Complaint
Plaintiff also has moved to amend the complaint. Compl. ¶ 79. Leave to amend, while

it should be freely granted, may be denied where amendment would be futile. Malcolm, 678 F.
Supp. 2d at 109. The Federal Rules of Civil Procedure detail the baseline for what is necessary
in order to request leave to amend, including a notice of motion and a statement listing “with
particularity the grounds for seeking the order” which may include a proposed amended complaint.
Fed. R. Civ. P. 15(a), 6(c)(1), 7(b)(1)(B). Failing to attach a proposed amended complaint may
warrant dismissal. L. R. Civ. P. 15; Murray v. New York, 604 F. Supp. 2d 581, 588 (W.D.N.Y.
2009).
Plaintiff has not submitted a proposed amendment to her complaint that would warrant
leave to amend.

While plaintiff has asserted additional factual contentions in her later

declarations and memoranda (see Dkt. #22, #23), none are presented in the form of a proposed
amended complaint, and none indicate that plaintiff has exhausted her administrative remedies or
that suggest any additional claims of discrimination. Because I conclude that the complaint must

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be dismissed, and plaintiff has not suggested any proposed amendments that address any of
defendants’ arguments, amendment of the complaint would be futile. Plaintiff’s motion for leave
to amend is denied.
VIII. Sanctions
The Court also finds it necessary to impose sanctions on the defendant. “A district court,
may, in its discretion, impose sanctions against litigants who abuse the judicial process.” Shafii
v. British Airways, PLC, 83 F.3d 566, 571 (2d Cir.1996) (citation and quotation marks omitted);
see also In re Martin–Trigona, 737 F.2d 1254, 1261 (2d Cir.1984) (“Federal courts have both the
inherent power and the constitutional obligation to protect their jurisdiction from conduct which
impairs their ability to carry out Article III functions.”). A demonstrated history of, for example,
frivolous and vexatious litigation, is required in order for a court to prevent a litigant from filing
pleadings, motions or appeals. See Richardson Greenshields Sec., Inc. v. Lau, 825 F.2d 647, 652
(2d Cir. 1987).

Pre-filing injunctions are a permissible exercise of the court’s discretion to deter

vexatious and abusive litigation. See Malcolm, 737 F. Supp. 2d at 120; In re Hartford Textile
Corp., 681 F.2d 895, 8978 (2d Cir. 1982); see also MLE Realty Assocs. v. Handler, 192 F.3d 259,
261 (2d Cir. 1999). Once a pattern of such litigation emerges, the court has latitude to impose
sanctions without waiting for additional vexatious litigation to occur. In re Martin-Trigona, 737
F.2d at 1262.
Plaintiff has, once again, engaged in a pattern of frivolous and baseless litigation against
yet another employer.

Despite multiple warnings in her countless lawsuits against former

employers, plaintiff continues to file multiple lawsuits without regard to arguments raised by
defendants. As discussed above, plaintiff has repeatedly abused the Court’s resources, the time
of counsel for defendants, as well as the time and resources of multiple administrative agencies.

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Plaintiff is therefore permanently enjoined from commencing any further pro se actions in
federal court against the RCSD, any RCSD employees which arises out of her employment with
the RCSD, the ASAR, or any ASAR representatives or members which arises out of her
employment with the RCSD without prior leave of court. Leave of court shall be obtained by
filing with the complaint a motion captioned, “Motion Pursuant to Court Order Seeking Leave to
File.” Malcolm must attach to that motion, as Exhibit 1, a true and correct copy of this Decision
and Order. As Exhibit 2 to that motion, Malcolm must attach either a declaration prepared
pursuant to 28 U.S.C. § 1746 or a sworn affidavit certifying that the claims she wishes to present
are meritorious and made in good faith. As Exhibit 3 to that motion, Malcolm must include a list
of every suit previously filed by her or on her behalf in any federal court against each and every
defendant to the suit she wishes to file, including the title and index number of each such case.
As Exhibit 4 et seq. to that motion, Malcolm must provide a copy of each such complaint and a
certified record of the matter's disposition. Finally, Malcolm must serve a copy of this Decision
and Order upon each defendant if and when leave to serve the complaint in the new case is
granted. Failure to comply with the terms of this order may be sufficient grounds for a court to
deny any motion for leave to file made by Malcolm. Further, Malcolm's failure to advise a federal
court in which she has filed a complaint of this Decision and Order and/or her failure to otherwise
comply with this Decision and Order may be considered by such court as good and sufficient cause
to dismiss such a lawsuit, and further may be considered sufficient grounds upon which to levy
additional sanctions, including but not limited to fines, imprisonment, and/or an award to
defendants in the amount of their reasonable costs and attorneys fees in defending the action.
However, nothing in this order shall be construed as having any effect on Malcolm's ability
to initiate or continue actions in state court and/or appeals before the United States Courts of

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Appeals, or her power to prosecute or defend any other action that is presently pending, brought
by her in any federal court prior to the date of entry of this Decision and Order, including but not
limited to the related matter of Malcolm v. Rochester City Sch. Dist., 17–CV–6873
(W.D.N.Y.2017) or Malcolm v. Rochester City Sch. Dist., 18-CV-6450 (W.D.N.Y. 2018).

CONCLUSION: MALCOLM I
For the foregoing reasons, I find that Plaintiff has failed to exhaust her administrative
remedies and failed to state a claim against any defendant with respect to her LMRA, Title VII,
ADEA and NYSDHR claims. Accordingly, defendants’ motions to dismiss the complaint (Dkt.
#4, #9) are granted, and the complaint is dismissed, with prejudice.
Plaintiff, Bernice Malcolm, is enjoined from the filing and prosecution of additional
lawsuits arising out of her employment with the RCSD, in the manner and to the extent described
herein.
IT IS SO ORDERED.

_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
July 11, 2019.

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