# Donadio v. Velis Associates, Inc.

> District Court, E.D. New York · September 24, 2019

URL: https://www.frixlaw.com/law-library/cases/10303065

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 24, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10303065

## How later opinions describe it (automated extraction)

- discussing the Iqbal/Twombly pleading standard, which does not apply any “heightened” pleading standard, but does require “factual amplification [where] needed to render a claim plausible”
- finding that the district court “was under no obligation to provide [the plaintiffs] with leave to amend their complaint, much less provide such leave sua sponte where they neither requested leave to amend, nor indicated additional facts that might lead to a different result
- discussing the Iqbal/Twombly pleading standard, which does not apply any “heightened” pleading standard, but does require “factual amplification [where] needed to render a claim plausible”
- stating it is not an abuse of discretion for a court to allow leave to amend even if not formally requested

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------X
SALLY DONADIO,

Plaintiff, ORDER Adopting
Report & Recommendation
- against- 18-cv-6708 (SJF)(GRB)

VELIS ASSOCIATES, INC., and
GLENN MASTROBERTI,

Defendants.
------------------------------------------------------------X
FEUERSTEIN, District Judge:

I. Introduction

Plaintiff Sally Donadio (“Plaintiff”) commenced this this employment discrimination
action pursuant to the Americans with Disabilities Act (“ADA”) and New York State Human
Rights Law (“NYSHRL”) against Defendants Velis Associates, Inc. (hereafter, the “Company”)
and Glenn Mastroberti (hereafter, “Manager”; together with Company, the “Defendants”),
asserting claims of disability discrimination, as well as aider and abettor liability under NYSHRL
(hereafter, the “Action”). (See Complaint (ECF No. 1).) In response and pursuant to Rule
12(b)(6), Defendants moved to dismiss the Action in its entirety with prejudice (hereafter, the
“Dismissal Motion”) (see ECF No. 14), which the Plaintiff opposed (hereafter, the “Opposition”
or “Opp’n”) (see ECF No. 15-4). The Motion was referred to Magistrate Gary R. Brown. (See
Apr. 12, 2019 Electronic Referral Order.)
On July 18, 2019, Magistrate Judge Brown delivered his Report and Recommendation
(“the Report”) from the bench (see Electronic Report and Recommendation, filed July 18, 2019
(hereafter, the “Electronic R&R”)); see also Report Tr. (ECF No. 24)), recommending that

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Defendant’s Dismissal Motion be “granted on the sole ground of the failure to allege and/or
attach in the [C]omplaint, the EEOC right to sue letter” (Report Tr., 17:23-25; see also
Electronic R&R), and “that [P]laintiff be given 30 days to amend her complaint.” (Id., 18:1-2;
see also Electronic R&R.) The Electronic R&R further advised the parties, inter alia, that
“[a]ny written objections to th[e] Report . . . must be filed with the Clerk of the Court within
fourteen (14) days of service of this [R]eport.” (Electronic R&R .) On July 19, 2019,

Defendants filed their objection to the Report (hereafter, “Objection”). (See ECF No. 25.)
Plaintiff did not file any response (see Case Docket, in toto), but rather, on August 15, 2019,
filed a First Amended Complaint (hereafter, “FAC”). (See ECF No. 28.) For the reasons that
follow, the Court adopts the recommendations made in the Report.
II. Background
A. Plaintiff’s Complaint1
Plaintiff commenced this action against Defendants asserting discrimination under the
ADA based upon her prior breast cancer, which was in remission and which “predisposed [her]
to future cancerous instances because of her prior diagnosis.” (See Complaint, ¶¶ 3, 4, 14.)
She alleged that after working for the Defendants for approximately a month as an administrative
assistant, “she began experiencing signs of uterine cancer.” (See id., ¶¶12, 14.) As a
consequence, “Plaintiff needed several examinations as follow-up including a biopsy, . . .
require[ing] occasional partial day time off.” (Id., ¶15.) After notifying the Defendants in late
July 2017 of her need for time off, explaining the reason for same, “Defendants began creating a

1 For purposes of considering this Report on the Dismissal Motion, the Court accepts the
factual allegations set forth in the Complaint as true and draws all reasonable inferences in favor
of Plaintiff. See, e.g., Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006); Nechis v.
Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005).

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hostile work environment, becoming unfriendly and unwelcoming.” (Id., ¶19.) For example,
the day after informing Manager of her need to take time off for pre-surgery testing and an
outpatient procedure, Plaintiff was called to a meeting with Manager and his secretary; they
asked her whether there was “something wrong in the office?’ [to which she] explained that her
demeanor was because of her health issues.” (Id., ¶¶20-21.) Manager responded that, while he
knew Plaintiff had “health issues”, he could not “have that negativity” around a new employee.
(Id., ¶21.) Plaintiff alleges that a few days thereafter, Manager “attempted to provoke [her] into
an argument” by accusing her of leaving a mess in the Company kitchen. (Id., ¶22.) She
further alleges that, a few days later, she was assigned to process two weeks worth of work in a
one-week period, thereby challenging her physical endurance; however, she was able to
complete that work assignment, which demonstrated she was qualified for her position. (See id.,
¶23.) Two days later, at a meeting with Manager and his secretary, Manager informed Plaintiff:
“[W]e have to let you go.” (Id., ¶24.) Having always completed her work assignments,
Plaintiff was surprised by this news, prompting her to ask “if it was her recent recurrence of
cancer and occasional part time absence to treat it” that was the reason for her termination. (Id.)

Manager “did not deny [Plaintiff]’s assertion and responded[,] ‘It is just not working out’.” (Id.)
B. Defendants’ Opposition
Defendants moved to dismiss the Complaint with prejudice, raising three arguments:
substantively, that Plaintiff did not alleged she has a disability or any type of major life activity
limitation, thereby condemning her ADA discrimination claim (see Dismissal Motion at 3-5);
procedurally, that Plaintiff “failed to provide evidence that she has exhausted her administrative
remedies by failing to attach a Right to Sue letter from the EEOC” (id. at 5-6); and, that if
Plaintiff’s federal claims are dismissed, the Court should decline to exercise supplemental
jurisdiction over her state law claims (see id. at 6-7).

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Plaintiff did not file an amended complaint in response to the Dismissal Motion; instead,
she filed her Opposition, arguing that: the 2008 amendments to the ADA expanded the
“applicable definition of disability for the purposes of litigation” (Opposition (ECF No. 15-4) at
3); Defendants’ arguments are premised upon inapplicable, pre-amendment law (see id. at 4);
and, her pleadings are sufficient pursuant to the 2008 ADA amendments (see id.). Plaintiff
further argued that: she filed her EEOC charge and received a right-to-sue letter (hereafter,
“Letter”), which Defendants also received from the EEOC and which she attached as an exhibit
to her Opposition (see id. at 5 (citing Ex. A)); Plaintiff’s counsel provided the Company’s human
resource department with another copy of the Letter (see id. (citing Ex. B)); and “hours before
defense counsel filed th[e Dismissal Motion], Plaintiff’s counsel emailed a copy of the [Letter] to
defense counsel, as [D]efendants’ third receipt of the [Letter].” (Id. (citing Ex. C).) Thus,
Defendants “had prior notice that the required administrative proceedings had already taken
place.” (Id.) Plaintiff did not address Defendants’ state law claim argument; nor did she
request to amend her Complaint. (See Opp’n, in toto.)
III. The Report and the Responses

A. Magistrate Judge Brown’s Report
On July 18, 2019, Magistrate Judge Brown held a hearing on Defendants’ Dismissal
Motion. (See Electronic R&R; see also Report Tr., 1.) Defendants’ counsel argued in favor of
granting dismiss with prejudice “because the [P]laintiff failed to allege a medical condition that
even qualifies as a disability.” (Report Tr., 5:11-13; see also id. at 6:2-5.) Notably,
Defendants’ counsel stated that if the Court was inclined to dismiss without prejudice, permitting
the Plaintiff to amend her Complaint to attach the Letter “and otherwise amend,” he would
withdraw his procedural argument, focusing exclusively on his substantive argument, i.e.,
Plaintiff cannot make out that she is disabled which affects a major life activity. (See id. at

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6:24-7:4, 7:14-17.) Defendants’ counsel also articulated objections to Plaintiff being able to
amend her Complaint, to wit, she did not amend the Complaint in response to the Dismissal
Motion being filed, and she did not cross-move to amend her Complaint. (See id. at 7:20-25;
see also id. at 8:1-9; 15:21-16:3.)
While there was a colloquy between the Court and Defendants’ counsel whether the
Court could infer from Plaintiff’s Complaint that she was perceived to have a health issue that
was interfering with a major life activity (see id. at 10:8-13:1, 10-22), in his report, the
Magistrate Judge informed the parties that he was basing his recommendation on what he viewed
to be the threshold issue, i.e., whether Plaintiff had demonstrated that she had exhausted her
administrative remedies. (See id. at 13:3-5.) Accordingly, stating “[i]t is absolutely black letter
law that . . . the EEOC right to sue letter is statutory prerequisite to suit” (id. at 16:15-16), and
citing to Gray v. Promenade Rehab. & Care Ctr., 145 F. App’x 705, 706-07 (2d Cir. Octo. 13,
2005),2 Hall v. Jewish Home & Hosp., No. 16-cv-9881, 2017 WL 5665660, at *4 (S.D.N.Y.
Nov. 15, 2017), and Pearson v. Renaissance Hotel Albany, No. 1:17-cv-1189, 2018 WL
2684098, at *2 (N.D.N.Y. June 1, 2018), Magistrate Judge Brown “firm[ly] recommend[ed] that

the [Dismissal Motion] be granted on the sole ground of the failure to allege and/or attach in the
[C]omplaint, the EEOC right to sue letter” (id. at 17:22-25), and that Plaintiff be provided a short
opportunity to amend her Compliant (see id. 18:1-3). He refrained from making any further
recommendation on the Dismissal Motion, because he did not have the benefit of a proposed
amended complaint to consider. (See id. at 18:2-5.)

2 Magistrate Judge Brown recognized that Gray was not “exactly on point” because, there, the
plaintiff’s case was dismissed with prejudice after the court provided her with an opportunity to
amend her complaint, but she did nothing and failed to articulate any reason for her inaction.
(See Record Tr.16:21-25.)

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B. Defendants’ Objection
The essence of the Defendants’ objection to the Report is that Magistrate Judge Brown
“ruled solely on Defendants’ secondary, procedural argument, which was that the Plaintiff’s
Complaint is deficient because she failed to attach or even reference her EEOC right to sue
notice.” (Objection at 2.) Reiterating that Plaintiff already had opportunities to amend her
Complaint but, did not do so (see id.), Defendants contend that, nonetheless, “Magistrate [Judge]
Brown gave Plaintiff a chance to do so anyway, without ruling on the substance.” (Id.)
Therefore, “Defendants object to this [Report] because Magistrate [Judge] Brown should have
focused and ruled on the substantive argument, and had he done so, he would have dismissed the
case, with prejudice.” (Id. (emphasis in original).) They infer error in Magistrate Judge
Brown’s recommendation, stating: “Magistrate [Judge] Brown did not rule on the substantive
argument, explicitly stating that he would not rule on it, even after Defendants’ counsel stated on
the record that he would withdraw the procedural (EEOC) argument.” (Id.) Defendants offer
no law in support of their conclusory, general objection.
Instead, Defendants ask this Court to rule on their substantive argument and dismiss the

Complaint with prejudice. (See id. at 3.) The balance of their Objection presents, again, their
substantive argument that Plaintiff has not adequately pled an ADA discrimination cause of
action because she does not have a qualifying medical condition under the ADA (see id. at 5-8),
and she is not substantially limited in performing a major life activity (see id. at 8-10), and
repeats their request that the Court decline supplemental jurisdiction over Plaintiff’s state law
claim (see id. at 10).
C. Plaintiff’s First Amended Complaint
Instead of responding to Defendants’ Objection, and within thirty (30) days of the
issuance of the Report, Plaintiff filed her First Amended Complaint (“FAC”); it conspicuously

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includes an allegation that “Plaintiff filed her Charge for discrimination with the Equal
Employment Opportunity Commission on December 13, 2017, and was granted right to sue by
the EEOC on September 10, 2018.” (FAC, ¶2 (citing Annex A (Notice of Right to Sue Letter),
attached to the FAC).)
IV. Applicable Standards
A. Report and Recommendation Standard of Review
Any party may serve and file written objections to a report and recommendation of a
magistrate judge within fourteen (14) days after being served with a copy thereof. See 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Any portion of such a report and recommendation

to which a timely objection has been made is reviewed de novo. See 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72(b)(3). However, “if a party ‘makes only conclusory or general objections, or
simply reiterates his original arguments, the Court reviews the Report and Recommendation only
for clear error.’” Sibley v. Choice Hotels Intern., Inc., 304 F.R.D. 125, 129 (E.D.N.Y.
2015)(quoting Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008)); see also Butto v.
Collecto, Inc., 290 F.R.D. 372, 379 (E.D.N.Y.2013) (“In a case where a party makes only
conclusory or general objections, or simply reiterates his original arguments, the Court reviews
the Report and Recommendation only for clear error.”); Frankel v. City of N.Y., Nos. 06-cv-
5450, 07-cv-3436, 2009 WL 465645, at *2 (S.D.N.Y. Feb. 25, 2009) (same). The Court is not
required to review the factual findings or legal conclusions of the magistrate judge as to which

no proper objections are made. See Thomas v. Arn, 474 U.S. 140, 150, 106 S. Ct. 466, 88 L.
Ed.2d 435 (1985). Indeed, “[w]here parties receive clear notice of the consequences, failure to
timely object to a magistrate’s report and recommendation operates as a waiver of further

7
judicial review of the magistrate’s decision.” Smith v. Campbell, 782 F.3d 93, 102 (2d Cir.
2015) (quoting Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002)). Whether
or not proper objections have been filed, the district judge may, after review, accept, reject, or
modify any of the magistrate judge’s findings or recommendations. See 28 U.S.C.§ 636(b)(1);
Fed. R. Civ. P.72(b).
B. Motion to Dismiss and EEOC Right-to-Sue Letters

To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain “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, 678-79 (2009)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(20007)); see also Arista Records, LLC v. Doe 3, 604 F.3d 110, 119-20 (2d Cir. 2010)(discussing
the Iqbal/Twombly pleading standard, which does not apply any “heightened” pleading standard,
but does require “factual amplification [where] needed to render a claim plausible”)(quoting
Turkmen v. Ashcfroft, 589 F.3d 542, 546 (2d Cir. 2009); further citation omitted). Thus, facial
plausibility is established by pleading factual content sufficient to allow a court to reasonably
infer a defendant’s liability. See Twombly, 550 U.S. at 556. “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at

555. Nor is a pleading that offers nothing more than “labels and conclusions” or “formulaic
recitation of the elements of a cause of action” sufficient. Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555). Further, in deciding a Rule 12(b)(6) dismissal motion, a court must
liberally construe the claims, accept all factual allegations in the complaint as true, and draw all
reasonable inferences in favor or the Plaintiff. See Matson v. Bd. of Educ. of City Sch. Dist. of
N.Y., 631 F.3d 57, 63 (2d Cir. 2011).

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Moreover, where an individual brings an ADA discrimination claim in federal court, she
may do so “only after filing a timely charge with the EEOC . . . and obtaining a notice of right to
sue letter from the EEOC.” Alarcon v. Nassau County Parks, No. 12-cv-5922, 2013 WL
685891, at *1 (E.D.N.Y. Feb. 24, 2013)(citing Legnani v. Alitalia Linee Aeree Italiane, S.P.A.,
274 F.3d 683, 686 (2d Cir. 2001); further citations omitted); see also Joseph v. Am. Works, Inc.,
No. 01-cv-8287, 2002 WL 1033833, at *5 (S.D.N.Y. May 21, 2002)(stating claimant must

exhaust administrative remedies before bringing ADA claim in federal court). Absent a
showing of an equitable reason to waive the ADA’s statutory prerequisite of administrative
exhaustion, where no EEOC right-to-sue letter is filed with a federal compliant, dismissal of said
complaint is warranted. See Chiari N.Y. Racing Ass’n, Inc., 972 F. Supp.2d 346, 362 (E.D.N.Y.
2013); see also Pearson v. Renaissance Hotel Albany, No. 1:17-cv-1189, 2017 WL 8751935, at
*3 (N.D.N.Y. Nov. 15, 2017)(recommending dismissal of complaint where plaintiff failed to
include EEOC right-to-sue letter), adopted by 2018 WL 1631306 (N.D.N.Y. Apr. 2, 2018).
C. Motion to Amend
“As a general rule, leave to amend a complaint should be freely granted.” Nesheiwat v.
City of Poughkeepsie, N.Y., No.11-cv-7072, 2013 WL 620267, at *5 (citing Jin v. Metro. Life

Ins., Co., 310 F.3d 84, 101 (2d Cir. 2002)); see also Fed. R. Civ. P. 15(a)(2)(“The court should
freely give leave when justice so requires.”). It is well-settled that “[a] district court has broad
discretion in determining whether to grant leave to amend,” and such determinations are
reviewed for abuse of discretion. Gurary v. Winehouse, 235 F.3d 792, 801 (2d Cir.
2000)(collecting cases); see also Pasternack v. Lab. Corp. of Am., 892 F. Supp.2d 540, 549
(S.D.N.Y. 2012); Nesheiwat, 2013 WL 620267, at *5 (same).

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Where a plaintiff has neither requested leave to amend, nor
indicated additional facts that would be added to the complaint, a
court is not required to grant leave to amend sua sponte. See
Trautenberg v. Paul, Weiss, Rifkind, Wharton & Garrison L.L.P.,
351 F[]. App’x 472, 474 (2d Cir. 2009) (“Given that [the plaintiff]
did not move for leave to replead in opposition to [the defendant’s]
motion to dismiss his original complaint with prejudice, the district
court did not abuse its discretion by failing to grant him, sua
sponte, leave to replead.”); Horoshko v. Citibank, N.A., 373 F.3d
248, 249 (2d Cir. 2004) (finding that the district court “was under
no obligation to provide [the plaintiffs] with leave to amend their
complaint, much less provide such leave sua sponte where they
neither requested leave to amend, nor indicated additional facts
that might lead to a different result). Nevertheless, “where the
possibility exists that the defect can be cured, leave to amend at
least once should normally be granted unless doing so would
prejudice the defendant.” Laborers Local 17 Health & Ben. Fund
v. Philip Morris, Inc., 26 F. Supp.2d 593, 605 (S.D.N.Y. 1998)
(citing Oliver Schools, Inc. v. Foley, 930 F.2d 248, 253 (2d Cir.
1991)).
Dynamic Worldwide Logistics, Inc. v. Exclusive Expressions, LLC, No. 14-cv-1370, 2015 WL
5439217, at *4 (S.D.N.Y. Sept. 14, 2015)(emphasis added).
V. Review of the Report
As stated, supra, Defendants’ objection to the Report is based upon their dissatisfaction
with Magistrate Judge Brown recommending Plaintiff’s Complaint be dismissed without
prejudice to amend, especially since she did not request that relief despite several opportunities
to do so. (See Objection at 2.) The Court finds the objection to be general and conclusory
since the Defendants: do not dispute that Magistrate Judge Brown’s legal conclusion regarding
the attaching and/or alleging the receipt of an EEOC right-to-sue Letter is a prerequisite to
commencing a federal action claiming ADA discrimination; do not argue that recommending
Plaintiff be given the opportunity to amend her Complaint is an abuse of discretion; and fail to
cite any case law in support of their objection. (See id. at 2-3.) Where such an objection is

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made, the Report is subject to review for clear error. See Butto, 290 F.R.D. at 379. However,
Defendants point to none; nor does the Court find any.
It is well within the Court’s discretion to allow Plaintiff to amend her Complaint.
Indeed, since Defendants were aware that Plaintiff received a right-to-sue Letter, having
themselves received a copy of the Letter three different times (see Opp’n at 5), the possibility of
Plaintiff curing her procedural defect exists. See, e.g., Dynamic Worldwide, 2015 WL 5439217,

at *4 (quoting Laborers Local 17, 26 F. Supp.2d at 605). Further, this will be the first instance
Plaintiff is being provided with an opportunity to amend, which is still relatively early in this
Action, thereby assuaging any concern of prejudice to Defendants. See, e.g., Guary, 235 F.3d at
801 (stating it is not an abuse of discretion for a court to allow leave to amend even if not
formally requested)(citing McLaughlin v. Anderson, 962 F.2d 187, 195 (2d Cir. 1992); Oliver
Schs., Inc. v. Foley, 930 F.2d 248, 252-53 (2d Cir. 1991)); see also Dynamic Worldwide, 2015
WL 5439217, at *4. Thus, Defendants’ objection is unavailing and overruled. Rather, after a
careful review of the Report and finding no plain error in either its reasoning or conclusions, the
Court adopts it in its entirety.
VI. Conclusion

Accordingly, having adopted the Report in its entirety, IT IS HEREBY ORDERED:
A. The Dismissal Motion is GRANTED without prejudice to Plaintiff filing her First
Amended Complaint;
B. The First Amended Complaint, having already been filed (see ECF No. 28), is
deemed the operative complaint in this Action; and
C. Defendants shall have twenty-one (21) days from the issuance of this Order to file
their answer or otherwise respond to the First Amended Complaint.

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* * *
The October 3rd, 2019 Status Conference is adjourned to December 3, 2019 at 11:15 a.m.
and will be held in Courtroom 1010 of the Central Islip Federal Courthouse.

SO ORDERED this 24th day of September 2019 at Central Islip, New York.

Sandra J. Feuerstein
/s/
Sandra J. Feuerstein
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10303065. Public record. Not legal advice.