Tsekhanskaya v. City of New York Department of Health and Mental Hygiene

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

--------------------------------------,

Larisa Tsekhanskaya,

Plaintiff, MEMORANDUM & ORDER

-against- 18-CV-7273 (KAM)(LB)

The City of New York, The Department of

Health and Mental Hygiene of the City

of New York,

Defendants.

--------------------------------------X

MATSUMOTO, United States District Judge:

Plaintiff Larisa Tsekhanskaya (“plaintiff”) commenced

this action, pro se, against defendants, the Department of

Health and Mental Hygiene of the City of New York (“DOHMH”) and

the City of New York (collectively, the “defendants”) pursuant

to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42

U.S.C. § 2000e, et seq., the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12101 et seq., the Age Discrimination in

Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621, et seq., 42

U.S.C. § 1981, the Family and Medical Leave Act of 1993

(“FMLA”), 29 U.S.C. § 2601, et seq., the Rehabilitation Act of

1973 (“Rehab. Act”), 29 U.S.C. § 794, et seq., and the New York

State Human Rights Law (“SHRL”), N.Y. Exec. L. § 290, et seq.

Plaintiff alleges that she was the victim of employment

discrimination on the basis of national origin, gender, age,

religion, race and disability. Plaintiff also alleges

retaliation and denial of leave under the FMLA. (Id.)

Presently before the court is defendants’ motion to

dismiss on the grounds that plaintiff’s claims are time-barred,

procedurally barred, prolix in violation of Federal Rule of

Civil Procedure 8(a)(2), and fail to state a claim under Federal

Rule of Civil Procedure 12(b)(6) (“Motion”). (See ECF No. 22,

Defendants’ Memorandum in Support of Motion; ECF No. 23,

Defendants’ Reply Memorandum in Further Support of Motion.) For

the reasons set forth below, the court grants defendants’ motion

to dismiss the amended complaint in its entirety.

BACKGROUND

I. Factual Background

The background facts and allegations have been taken

from the plaintiff’s Amended Complaint.1 On a motion to dismiss,

the court “must accept all allegations in the complaint as true

and draw all inferences in the non-moving party’s favor.”

LaFaro v. New York Cardiothoracic Grp., PLLC, 570 F.3d 471, 475

(2d Cir. 2009) (quoting Patel v. Contemporary Classics of

Beverly Hills, 259 F.3d 123, 126 (2d Cir.2001)). Plaintiff is a

licensed master social worker (“LMSW”), formerly employed as a

social worker by the New York City Department of Health and

1 The court cites to the ECF pagination, rather than the native page numbers,

which are out-of-order and repetitive.

Mental Hygiene (“DOHMH”) from 2011 through January 2017. (Am.

Compl. at 12, 18, 20, 26.) Plaintiff alleges that, in 2011,

DOHMH retaliated against her by transferring her from Brooklyn

to Queens “under protest.” (Id. at 20.) Plaintiff does not

specify the reason for defendants’ alleged retaliation against

plaintiff.

Plaintiff also notes that she filed a complaint “with

EEOC, DOHMH EEOC, and union grievances” in 2012, and asserts

that her complaints “resulted in retaliation, a hostile work

environment, isolation, harassment, repeated false accusations,

[being] singled out and being forced [to sit] for long meetings

in windless offices[.]”2 (Id.) Plaintiff alleges that, in June

2012, a “Dr. Velazquez” made unspecified “derogatory remarks”

and exhibited “inappropriate behavior” toward her and three

other individuals. (Id. at 29.) Further, in June 2012,

plaintiff was mandated to undergo a psychiatric evaluation “or

face termination.” (Id.) Plaintiff apparently asserts that the

psychiatric evaluation was foisted upon her “because of her

discrimination complaints,” as well as unspecified “false

accusations, the bright colors of plaintiff’s clothing . . .

[and] her coworkers’ belief that plaintiff fabricated a family

death . . . in order to take vacation,” among other things.

2 The Amended Complaint contains repetitive allegations, which appear to be

copy-pasted in bulleted form and in numbered paragraphs. (See, e.g., Am.

Compl. at 20.)

(Id. at 29-30.) Following the 2012 psychiatric evaluation

performed by a “city consultant,” the consultant allegedly

produced a written report that plaintiff was unfit to work as a

supervisor of social work, to which plaintiff objected. (Id.)

After providing evaluations to plaintiff’s supervisor,

Tessler-Handler, from private physicians finding that plaintiff

was mentally fit to work, plaintiff was permitted to return to

work in August 2012. (Id. at 31.) Upon plaintiff’s return to

work, plaintiff heard rumors spread by Randi Krittman, a social

worker, and Jessica Wolff, a Labor Relations attorney, that

plaintiff had spent time in a psychiatric hospital, which she

believes evinces “Defendants’ animus toward plaintiff based on

her perceived disability of mental illness.” (Id.) In 2013,

plaintiff was allegedly given an unsatisfactory performance

evaluation for taking “too much of approved and documented sick

leave,” and was transferred to the Queens office. (Id. at 31-

32.) In December 2013, plaintiff filed a request for reasonable

accommodation for a “1-2 hour flex band,” which was denied.

(Id. at 32.) Plaintiff was also allegedly considered and not

selected for a promotion in 2013 and 2014. (Id.) Plaintiff

also alleges that it was “difficult” to take sick leave for

medical appointments and treatments for breast cancer. (Id.)

Though the Amended Complaint includes contradictory

allegations, as best as the court can discern, in October 2016,

plaintiff was again found psychologically unfit to return to

work during a psychological evaluation performed by Dr. David

Salvage.3 (Id. at 22-23.) That month, plaintiff was placed on

“involuntary medical leave” but continued working under the

supervision of a supervisor named “Hulbrock.” (Id. at 24.)

Plaintiff accuses coworkers including Cheryl Charles,

Randi Krittman, Joanne Mclean-Ernoni, Daniel Garza, Roland Hill,

Nancy Hulbrok and others of giving her excessive work,

subjecting her to verbal abuse, spreading rumors, bullying her,

making passive aggressive comments, and denying her requests for

work accommodations. (Id. at 30-45.) Plaintiff asserts that

these actions were either retaliation for the complaints she had

filed or because of her religion, ethnicity and gender.4 (Id. at

30-45.)

The complaint states that from December 26, 2013 to

December 26, 2014, plaintiff was approved for FMLA leave. (Am.

Compl. at 36-37.) Plaintiff alleges that her subsequent

requests for renewal of leave were initially denied and later

approved. (Id. at 37.) It is unclear what the alleged bases

3 Plaintiff makes reference to her “perceived mental illness” and her

“disability,” yet states Dr. Salvage “found plaintiff psychologically to be

fit to work.”

4 For example, plaintiff’s coworker Cheryl Charles allegedly called plaintiff

a “Russian bitch,” and Joanne Mclean-Ernoni laughed. (Id. at 45-46.)

Plaintiff recalls that Monica Medina, psychologist, complained that she

“spend [sic] 40% of her time to watch Tsekhanskaya” and “does not want a

disable [sic] woman with knees [sic] problems...does not want Russian

Woman...and said that plaintiff should buy her expensive car...because Jewish

people are rich.” (Id. at 45.)

for the FMLA requests were, although the complaint includes

various ailments plaintiff suffered including, a knee injury,

breast cancer and “WTC related” disability. (Id. at 4, 17, 22,

45.) Plaintiff made various requests for “flex time” to the

DOHMH Equal Employment Opportunity office as well as a request

for transfer, which were denied. (Id. at 37-38.)

Plaintiff alleges coworkers retaliated against her in

connection with her requests for FMLA leave and accommodation.

Plaintiff says that when she gave McLean-Ernoni a doctor’s note

for a “1-2 hour flex band” in January 2016, Ernoni began

shouting at her and making aggressive gestures. (Id. at 44-45.)

McLean-Ernoni eventually, “stopped and asked Tsekhanskaya why

she was covering her face because McLean-Ernoni was not going to

hurt Tsekhanskaya because she loves her job too much and was

never arrested for violence before.” (Id.) Plaintiff further

asserts that the real reason the flex time request was not

granted was because Ms. Hulbrock, who was herself a patient at

Memorial Sloan Kettering Medical Center, did not believe

plaintiff had a breast cancer diagnosis. (Id. at 50.)

Plaintiff alleges that, in December 2016, Roland Hill yelled and

pointed his finger in plaintiff’s face in an aggressive manner,

but plaintiff does not specify what prompted this alleged

outburst. (Id. at 51.) After plaintiff threatened Mr. Hill

that she would call 911, Mr. Hill left the confrontation. (Id.

at 52.) Plaintiff also alleges that union and security

officials refused to provide her with a video of the incident.

(Id. at 49-50.)

II. Procedural History

Plaintiff’s Prior Administrative Complaints

In July 2016, plaintiff filed a complaint with the

Department of Labor (“DOL”) regarding the DOHMH’s refusal to

grant her FMLA request. (Id. at 6, 13.) In September 2016, the

DOL requested that plaintiff provide documentation and

information relating to her FMLA complaint. (Id. at 14-15.)

Plaintiff claims to have received a Notice of the Right to Sue

letter from the DOL in August 2016, but did not attach it to her

Amended Complaint. (Id. at 6.)

On December 27, 2017, almost one year after her

retirement from DOHMH, plaintiff filed an administrative

complaint with the New York State Division of Human Rights

(“SDHR”), alleging that she was discriminated against in

employment, on the basis of national origin and disability, and

retaliated against. (Id. at 10; ECF No. 21, Declaration in

Support; ECF No. 21-1, Ex. A, Complaint to Division of Human

Rights).) In her SDHR complaint, plaintiff alleged that six

coworkers made disparaging comments about her, including

statements expressing hatred or dislike toward: Russians,

Russian Jews, Hasidic Jews, Russian language speakers and

accusing plaintiff of being a Russian spy or member of the

Russian mafia. (ECF No. 21-1 ¶¶ 15-33.) Plaintiff also alleged

that various coworkers called her “chemo brain” following her

cancer diagnosis, hit her with a bag, physically threatened her

and retaliated against her by placing her on involuntary leave

and bringing misconduct charges against her. (Id. at ¶¶ 24, 34-

61.)

DOHMH responded to plaintiff’s administrative

complaint, by vehemently denying plaintiff’s accusations of

misconduct.5 (ECF No. 21-2, Ex. B, DOHMH Opposition to

Complaint, at 2-6.) Regarding defendants’ decision to place

plaintiff on involuntary leave pursuant to Civil Service Law §

72, DOHMH stated that the department’s actions were taken in

response to plaintiff’s “paranoia, cognitive disorganization,

anxiety, and harassing argumentative behavior” which rendered

her incapable of performing her work duties and caused

significant disruption for the rest of the office. (ECF No. 21-

2 at 25.) Examples of this purported behavior included filing

dozens of complaints against numerous coworkers, sending

thousands of repetitive and off-topic emails, printing 2,299

5 The court properly considers defendants’ documents regarding plaintiff’s

SDHR complaint, which are integral to plaintiff’s claim. See Chambers v.

Time Warner, Inc., 282 F.3d 147, 153 n.3 (2d Cir. 2002) (a court may properly

consider materials referred to in plaintiff’s complaint and central to her

claim). Further, a court “may consider an undisputedly authentic document

that a defendant attaches as an exhibit to a motion to dismiss if the

plaintiff’s claims are based on the document.” Id. (citation omitted).

pages of irrelevant documents in a single month, wandering the

halls long after work hours, neglecting responsibilities, and

spitting in a communal coffee pot in the employee kitchenette.

(Id. at 2-7, 24-27, 45-46, 49-51.) An independent psychiatric

evaluation in 2016 found plaintiff unfit for work and plaintiff

was placed on involuntary leave under Civil Service Law § 72.

(Id. at 5-6; Am. Compl. at 23.) Plaintiff entered a request for

disability retirement benefits, which was denied, and began

ordinary retirement on January 26, 2017.6 (ECF No. 21-2 at 6.)

On July 5, 2018, the New York SDHR determined that

most of plaintiff’s allegations were beyond the one-year statute

of limitations for her claims, and to the extent they were not

time-barred, the allegations did not support a discriminatory

hostile work environment claim. (Id.) Further, the SDHR noted

that plaintiff was found mentally unfit to return to her

employment by a physician, and that the SDHR was unable to

second-guess a medical opinion. (Id.)

Plaintiff did not cross-file her SDHR complaint with

the Equal Employment Opportunity Commission (“EEOC”). (ECF No.

14 at 1, 3.)

6 As noted in the SDHR’s administrative Order, plaintiff had unsuccessfully

applied for “disability retirement, despite repeated claims in [the SDHR

complaint] that she does not have a disability of any kind[.]” (Id.)

The Present Litigation

On December 20, 2018, plaintiff commenced this action,

seeking relief under Title VII, the ADA, the ADEA, the FMLA, the

Rehab. Act, and the SHRL. (See Orig. Compl.) On May 24, 2019,

defendants filed their first request for a pre-motion

conference, requesting to move to dismiss the complaint. (ECF

No. 7, First Motion for pre motion conference.) Plaintiff filed

a 12-page letter in opposition to defendants’ request. (ECF No.

9, Letter.) On June 27, 2019, the parties participated in a

pre-motion conference, at which the court, with defendants’

agreement, granted plaintiff leave to amend her complaint and

advised the pro se plaintiff that she could contact the Pro Se

Office for assistance with amending her complaint. The court

further ordered plaintiff to file her first amended complaint by

July 31, 2019, and provided that defendants may request a pre-

motion conference if they still intended to dismiss plaintiff’s

first amended complaint (“FAC”). (Minute Entry & Order dated

6/27/2019.)

Plaintiff filed her FAC on July 31, 2019. (See Am.

Compl.) On August 19, 2019, defendants filed a second request

for pre-motion conference in regard to their anticipated motion

to dismiss the FAC. (ECF No. 12.) As before, plaintiff filed

an overlength, 17-page letter in response to defendants’

request. (ECF No. 14, Letter.) Following a pre-motion

conference held in September 2019, the court ordered a stay of

discovery pending resolution of defendants’ motion to dismiss

the complaint and set a briefing schedule. (Dkt. Order dated

9/5/2019.)

On January 6, 2020 defendant filed its motion to

dismiss for violating the pleading requirements of Rule 8 and

failing to state a claim pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure. (ECF No. 20, Motion to

Dismiss; ECF No. 21, Affidavit in Support; ECF No. 22, Mem. in

Support; ECF No. 23, Reply.) Plaintiff’s affidavit in

opposition to defendants’ motion is 22 pages over this court’s

page limit, and plaintiff has not sought leave to exceed the

court’s page limit. (ECF No. 18; see Chambers Practices of

Judge Kiyo A. Matsumoto, Rule III(C)(2).) Plaintiff also filed

a 96-page “Exhibit A,” which includes over a dozen separate

documents. (ECF No. 19.) In addition to being prolix, both of

plaintiff’s submissions in opposition to defendants’ motion are

disjointed, not in chronological order and include extraneous

materials that are not properly identified or explained.

LEGAL STANDARD

I. Federal Rule of Civil Procedure 8(a)(2)

Rule 8(a)(2) of the Federal Rules of Civil Procedure

states that a complaint “shall contain...a short and plain

statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2). Rule 8(a)(2) mandates a

short and plain statement because “unnecessary prolixity in a

pleading places an unjustified burden on the court and the party

who must respond to it because they are forced to select the

relevant material from a mass verbiage.” Salahuddin v. Cuomo,

861 F.2d 40, 42 (2d Cir. 1988); see also Prezzi v. Schelter, 469

F.2d 691, 692 (2d Cir. 1972) (dismissing an 80 page complaint

which “contained a labyrinthian prolixity of unrelated and

vituperative charges that defied comprehension[,] fail[ing] to

comply with the requirement of Rule 8”). When a complaint fails

to comply with the requirements of Rule 8, “the court has the

power, on its own initiative or in response to a motion by the

defendant, to strike any portions that are redundant or

immaterial, or to dismiss the complaint.” Id. However,

“dismissal is ‘usually reserved for those cases in which the

complaint is so confused, ambiguous, vague, or otherwise

unintelligible that its true substance, if any, is well

disguised.’” Baskerville v. Richmond Cty. Family Court, No. 19-

CV-602 (AMD) (LB), 2019 WL 1261962, at *3 (E.D.N.Y. Mar. 19,

2019) (quoting Riles v. Semple, No. 18-327-PR, 2019 WL 974678,

at *2 (2d Cir. Feb. 27, 2019)).

The court is mindful that “[a] document filed pro se

is to be liberally construed, and a pro se complaint, however

inartfully pleaded, must be held to less stringent standards

than formal pleadings drafted by lawyers.” Erickson v. Pardus,

551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,

106 (1976)). However, “even a pro se plaintiff must plead

enough facts to state a claim to relief that is plausible on its

face.” Franklin v. Liberty Mut. Ins. Co., No. 08 Civ. 7120,

2010 WL 5758984, at *3 (S.D.N.Y. Oct. 22, 2010).

When a pro se plaintiff’s pleading fails to comply

with the requirements of Rule 8, “a district court should not

dismiss the action ‘without granting leave to amend at least

once when a liberal reading of the complaint gives any

indication that a valid claim might be stated.’” Onwuka v. Taxi

Limousine Comm'n, No. 10-CV-5399 SLT LB, 2014 WL 1343125, at *3

(E.D.N.Y. Mar. 31, 2014) (quoting Branum v. Clark, 927 F.2d 698,

705 (2d Cir.1991)). “Although a pro se litigant should

generally be given leave to file an amended complaint,” the

court may decline to do so if “[p]laintiff was already afforded

an opportunity amend his Complaint and he ignored the guidance

provided in the M&O in filing the present Amended Complaint”

Lopez v. Ambro, No. 19-CV-3596(JS)(AKT), 2020 WL 364135, at *4

(E.D.N.Y. Jan. 21, 2020); see also De Jesus v. Sears, Roebuck &

Co., Inc., 87 F.3d 65, 72 (2d Cir.1996).

II. Federal Rule of Civil Procedure 12(b)(6)

In order to survive a 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 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim

has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id.

The facts alleged must “raise a right to relief above a

speculative level.” TSI Commc’ns Inc. v. Shaar Fund, Ltd., 493

F.3d 87, 98 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 555).

When a complaint alleges employment discrimination, plaintiff

has a “minimal burden” of alleging facts that suggest an

“inference of discriminatory motivation.” Littlejohn v. City of

N.Y., 795 F.3d 297, 310 (2d Cir. 2015).

When considering a motion to dismiss under Rule

12(b)(6), a court must construe the complaint liberally by

“accepting all factual allegations in the complaint as true and

drawing all reasonable inferences in the plaintiff’s favor.”

Chambers v. Time Warner Inc., 282 F.3d 147, 152 (2d Cir. 2002).

Though the court accepts factual information as true, this

doctrine is “inapplicable to legal conclusions.” Iqbal, 556 U.S.

at 678. It is the responsibility of the court “not to weigh the

evidence that might be presented at a trial but merely to

determine whether the complaint itself is legally sufficient.”

Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985).

“Where a plaintiff’s own pleadings are internally

inconsistent, a court is neither obligated to reconcile nor

accept the conclusory allegations in the pleadings as true in

deciding a motion to dismiss.” Carson Optical Inc. v. eBay

Inc., 202 F. Supp. 3d 247, 255 (E.D.N.Y. 2016) (internal

citation and quotations omitted); Hirsch v. Arthur Andersen &

Co., 72 F.3d 1085, 1095 (2d Cir. 1995) (affirming dismissal of

the complaint where plaintiff’s “attenuated allegations” were

“contradicted [] by more specific allegations in the

complaint”); Salahuddin, 992 F.2d at 449 (dismissing claim that

was based on “wholly conclusory and inconsistent allegations”).

DISCUSSION

I. Sufficiency of the Pleadings under Rule 8(a)(2)

Plaintiff’s 60-page FAC contains 44 single-spaced

pages of factual allegations spanning over 20 years, and

alleging violations under the FMLA, ADA, § 1981, the ADEA, the

Rehabilitation Act and the SHRL. (Am. Compl. at 3-4.)

Defendants correctly note that plaintiff’s “allegations are not

numbered, are not in chronological order, and are not in any

logical or temporal order,” and many allegations fall outside

the statute of limitations. (ECF No. 22 at 14.) Moreover,

plaintiff’s allegations do not clearly and plainly state the

elements of her claims. Despite granting plaintiff an

opportunity to amend her complaint, the FAC does not satisfy the

requirements of Rule 8.

Dismissal “is usually reserved for those cases in

which the complaint is so confused, ambiguous, vague, or

otherwise unintelligible, that its true substance, if any, is

well disguised.” Salahuddin 861 F.2d at 42; Prezzi v. Schelter,

469 F.2d 691, 692 (2d Cir. 1972) (dismissing 88-page pro se

complaint without leave to amend). Here, given the rambling,

confused and prolix allegations, the court finds that granting

plaintiff an opportunity to amend her complaint a second time

would be futile. Thus, the court dismisses the FAC on the

independent ground that it violates Rule 8. Even if the FAC

were not unnecessarily prolix and jumbled, the court would find

that plaintiff has failed to state a claim upon which relief can

be granted.

II. Plaintiff’s Title VII, ADA, ADEA and Rehabilitation Act

Claims

A. Exhaustion

In order to assert claims of workplace discrimination

under Title VII, the ADA, or the ADEA, a plaintiff must first

exhaust her administrative remedies by filing a complaint with

the Equal Employment Opportunity Commission within 300 days of

the alleged misconduct. 42 U.S.C. § 2000e-5(e); Hewitt v.

N.Y.C. Dep't of Health & Mental Hygiene, 535 F. App'x 44, 45 (2d

Cir. 2013) (“As a precondition to filing an action in federal

court under Title VII ... a litigant must first have exhausted

[her] administrative remedies by timely filing a charge of

discrimination with the [EEOC].”); Legnani v. Alitalia Linee

Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001)

(“Exhaustion of administrative remedies through the EEOC is an

essential element of the Title VII and ADEA statutory schemes

and, as such, a precondition to bringing such claims in federal

court.”); Spillers v. City of New York Health & Hosps. Corp.,

No. 15-CV-06472 (PKC), 2017 WL 4326505, at *3 (E.D.N.Y. Sept.

28, 2017), aff'd sub nom. Spillers v. New York City Health &

Hosps. Corp., 763 F. App'x 138 (2d Cir. 2019) (“A plaintiff must

exhaust [her] administrative remedies by timely filing a

complaint with the EEOC, prior to filing a complaint in federal

court alleging violations of Title VII or the ADA.”) (per

curiam).

If a plaintiff fails to file a complaint with the EEOC

within the 300-day period, plaintiff is generally barred from

bringing the claim in federal court. See 42 U.S.C. § 2000e-

5(e)(1); Elmenayer v. ABF Freight System, Inc., 318 F.3d 130 (2d

Cir. 2003); Spillers, 763 F. App’x 138 (2d Cir. 2019) (“Claims

that were not asserted before the EEOC may be litigated only if

they are reasonably related to those that were filed with the

agency.”). Additionally, if plaintiff files a timely complaint

with the EEOC, she has 90 days upon receipt of a “right to sue”

letter in which to file a lawsuit in federal court, or else her

claim will be time-barred. 42 U.S.C. § 2000e–5(f)(1); Francis

v. Elmsford Sch. Dist., 442 F.3d 123, 127 (2d Cir. 2006).

Plaintiff filed an administrative complaint with the

SDHR on December 27, 2017. (ECF No. 21-1; Am. Compl. at 21.)

The complaint was not, however, cross-filed with the EEOC at any

time. (Am. Compl.at 10-12, 21.) The SDHR ruled in favor the

DOHMH, finding plaintiff’s claims both procedurally barred and

without merit. (Id.) Plaintiff had previously filed a

complaint with the EEOC in 2012, which was “closed” in 2013.

(Id. at 48-49.)

Defendant asserts that because plaintiff did not also

file or request the SDHR to cross-file with the EEOC, the

instant complaint must be dismissed for a failure to exhaust

administrative remedies. (ECF No. 22, at 22-23.)7 The court

agrees. Though some district courts within this circuit have

stated that "[a] charge filed with the NYSDHR may be deemed a

charge filed with the EEOC for exhaustion purposes, pursuant to

the Workshare Agreement between the NYSDHR and the EEOC,” they

have also noted that “for the NYSDHR charge to serve as a

predicate for a [] claim in federal court, the plaintiff must

7 Defendant further points out that “plaintiff does not allege or contend that

she intended her SDHR complaint to be dual-filed with the EEOC at the time

she filed it.” (ECF No. 21 at 22-23.)

have indicated that she wished her NYSDHR charge to be a 'dual

filing' with the EEOC.” Pustilnik v. Hynes, No. 96-CV-3989

(JG), 1998 WL 813411, at *4 (E.D.N.Y. July 21, 1998) (internal

citation omitted); see also Ford v. Bernard Fineson Dev. Ctr.,

81 F.3d 304, 309 (2d Cir. 1996) (“If . . . the charging party

initially presents a document to the state agency and requests

that the charge be presented to the EEOC, the charge will be

deemed to be filed with the EEOC [upon the happening of a stated

condition].”) (internal quotation marks and brackets omitted).

Though plaintiff states SDHR “failed to submit a complaint to

EEOC,” her complaint to the SDHR gave no indication that she

wished the complaint to be dual-filed with the EEOC. (Am.

Compl. at 21; see generally ECF No. 21-1.) Thus, plaintiff’s

filing of the SDHR complaint cannot be construed as having been

dual-filed with the EEOC.

Similarly, in order to bring a Rehabilitation Act

claim, a plaintiff is required to seek EEOC counseling within 45

days of the alleged discriminatory act, file an EEOC complaint

regarding the discrimination, and then bring suit within 90 days

of the agency’s decision, or within 180 days of filing the EEOC

complaint if the agency does not render a decision. Boos v.

Runyon, 201 F.3d 178, 181 (2d Cir. 2000).

B. Timeliness

Even assuming, arguendo, that plaintiff’s SDHR

complaint had been dual-filed with the EEOC, plaintiff’s ADA,

ADEA, and Title VII claims in the amended complaint are still

untimely and are thus dismissed.

Claims brought under the ADA, ADEA and Title VII must

be brought within 300 days of the misconduct giving rise to the

claim. See Hewitt, 535 F. App'x at 45; Legnani, 274 F.3d at

686; Spillers, WL 4326505, at *3; Szuszkiewicz v. JPMorgan Chase

Bank, 12 F. Supp. 3d 330, 338 (E.D.N.Y. 2014) (“[A]ny claim

arising out of discriminatory acts that took place more than 300

days before [plaintiff] filed [her] EEOC complaint [] is

extinguished unless an exception to the exhaustion requirement

applies.”) Plaintiff filed her SDHR complaint on December 27,

2017 and, thus, allegations concerning conduct that occurred

prior to March 1, 2017 are time-barred. Plaintiff’s retirement

became effective on January 26, 2017, more than one month prior

to the beginning of the limitations period. Thus, plaintiff’s

Title VII, ADA, and ADEA claims are dismissed as untimely.

Although plaintiff states that she “signed” her SDHR

complaint on December 15, 2017, (see ECF No. 14 at 6-8), it is

undisputed that the SDHR “received” her complaint on December

27, 2017. (See Am. Compl. at 10.) Additionally, plaintiff’s

sworn SDHR complaint states that, “Date most recent or

continuing discrimination took place is 2/3/2017.” (ECF No. 21-

1 at 2.) Whether the court uses the date of plaintiff’s

official retirement or the date of the last discriminatory act

as alleged by plaintiff, her claims would be, and are, time-

barred. Plaintiff filed her SDHR complaint on December 27,

2017, which is 326 days after February 3, 2017. (Am. Compl. at

10.)8 Plaintiff has offered no basis to toll the statute of

limitations. Zerilli-Edelglass v. New York City Transit Auth.,

333 F.3d 74, 80 (2d Cir. 2003) (equitable tolling is only

appropriate in “rare and exceptional circumstances,” in which a

party is prevented in some extraordinary way from exercising his

rights”) (internal citations and brackets omitted).

Accordingly, Plaintiff’s ADA, ADEA and Title VII claims are

dismissed as untimely.

C. Status of EEOC “Right to Sue” Letter

In plaintiff’s FAC, she attached a letter from the

Department of Labor, but not a Notice of Right to Sue from the

EEOC. (Am. Compl. at 14-15.) When asked in the federal form

complaint: “[h]ave you received a Notice of Right to Sue from

the EEOC?,” the plaintiff checked both the “Yes” and “No” boxes,

and wrote in “US Dept of Labor note” dated July 28, 2016 and

8 The SDHR determination, which plaintiff filed with the amended complaint,

clearly states that “[o]n 12/27/2017, Larisa Tsekhanskaya filed a verified

complaint with the New York State Division of Human Rights.” (Am. Compl. at

10.)

received August 10, 2016. (Am. Compl. at 6.) A letter from the

Department of Labor is not a substitute for a Notice of Right to

Sue letter from the EEOC. Romanick v. Corning, Inc., No. 13-CV-

6006-FPG, 2016 WL 1275671, at *2 (W.D.N.Y. Mar. 31, 2016).

Plaintiff has not plausibly alleged in the pleadings or in her

opposition filings to the present motion, that she filed an EEOC

complaint and received an EEOC Notice of Right to Sue.

III. FMLA Claims

Dismissal of a complaint by way of statute of

limitations “is appropriate only if a complaint clearly shows

the claim is out of time.” McCabe v. Lifetime Entm't Servs.,

LLC, No. 17-CV-908-ERK-SJB, 2018 WL 1521860, at *5 (E.D.N.Y.

Jan. 4, 2018), subsequently aff'd, 761 F. App'x 38 (2d Cir.

2019), cert. denied, 140 S. Ct. 81, 205 L. Ed. 2d 27

(2019)(quoting Harris v. City of New York, 186 F.3d 243, 250 (2d

Cir. 1999). FMLA claims are subject to a two-year statute of

limitations, and this time limit is extended to three years if

the FMLA violations are “willful.” Offor v. Mercy Med. Ctr.,

676 F. App'x 51, 53 (2d Cir. 2017) (quoting Porter v. N.Y. Univ.

Sch. of Law, 392 F.3d 530, 531 (2d Cir. 2004) (per curiam)).

The Second Circuit has stated that a “willful” violation occurs

when an employer “knew or showed reckless disregard for the

matter of whether its conduct was prohibited.” Offor, 676 F.

App'x at 53 (2d Cir. 2017) (quoting Porter, 392 F.3d at 531 (2d

Cir. 2004) (per curiam)). As further noted by the Second

Circuit, “[i]f an employer acts reasonably in determining its

legal obligation, its action cannot be deemed willful[.]”

Porter, 392 F.3d at 531.

Defendants assert that plaintiff’s FAC does not allege

facts “that might imply willfulness and a three-year statute of

limitations” for plaintiff’s FMLA claims. (ECF No. 22, at 31.)

Thus, the defendant argues that the two-year statute of

limitations should govern, and that plaintiff’s FMLA allegations

before December 20, 2016 should be considered time-barred.

(Id.) The court agrees.

Plaintiff has alleged no plausible facts supporting

the court’s application of the three-year statute of limitations

for willful violations of the FMLA. (Am. Compl. at 4, 22, 59

(stating, in conclusory fashion, that FMLA violations were

“willful”).) Because plaintiff commenced this action on

December 20, 2018, any allegations concerning conduct prior to

December 20, 2016 are time-barred for purposes of the FMLA.

Because plaintiff’s amended complaint does not allege that

plaintiff made any FMLA request that was denied by defendants

after December 20, 2016, her FMLA claims are entirely time-

barred and, accordingly, are dismissed.

IV. Section 1981 Claim

The United States Supreme Court has held that Section

1983 “provides the exclusive federal damages remedy for the

violation of the rights guaranteed by § 1981 when the claim is

pressed against a state actor.” Jett v. Dallas Indep. School

Dist., 491 U.S. 701, 702 (1989); see also Duplan v. City of New

York, 888 F.3d 612, 619 (2d Cir. 2018).9 In order to prevail on

a claim for damages against a state actor, a plaintiff must show

that the violation of his or her rights was “caused by a custom

or policy within the meaning of Monell and subsequent cases.”

Id. at 735-36.

Courts within this circuit generally dismiss § 1981

claims on the grounds that such claims do not provide a private

right of action against a state actor. See Anderson v. New York

City Dep't of Fin., No. 19-CV-7971 (RA), 2020 WL 1922624, at *3

(S.D.N.Y. Apr. 21, 2020) (“[p]laintiff’s § 1981 claim must be

dismissed. Section 1981 does not provide a private cause of

action against a state actor, as Defendant is here”). Courts

9 Plaintiff asserts, without citing to any legal authority, that “NYC DOHMH is

not ‘state actors’.” (ECF No. 18, at 28.) Plaintiff’s argument is

meritless, as defendant DOHMH, an agency of the City of New York, is not a

suable entity. N.Y.C. Charter § 396 (“All actions and proceedings for the

recovery of penalties for the violation of any law shall be brought in the

name of the city of New York and not in that of any agency, except where

otherwise provided by law.”); EZ Pawn Corp. v. City of New York, 390 F. Supp.

3d 403, 417 (E.D.N.Y. 2019) (dismissing NYPD which is a non-suable entity).

Further, lawsuits against city agencies are construed as lawsuits against the

City itself, which is a state actor. Duplan, 888 F.3d 612, 619 (2d Cir.

2018).

may, in their discretion, “construe” a § 1981 claim as being

brought pursuant to § 1983. See Farooq v. New York City Health

& Hosps. Corp., No. 19-CV-6294 (JMF), 2020 WL 5018387, at *6

(S.D.N.Y. Aug. 25, 2020) (citing Brown v. Baldwin Union Free

Sch. Dist., 603 F. Supp. 2d 509, 517 n.5 (E.D.N.Y. 2009)). Cf.

Beharry v. City of New York, No. 18-CV-2042 (AJN), 2019 WL

634652, at *3 (S.D.N.Y. Feb. 14, 2019) (dismissing a § 1981

claim brought against a state actor in light of Duplan where

plaintiff had not alleged the elements of a § 1983 claim).

Despite her lengthy FAC, plaintiff has neither alleged

a claim pursuant to 42 U.S.C. § 1983, nor has she alleged the

elements of a § 1983 claim. (See generally ECF 1; ECF 11; ECF

14; Guy v. MTA New York City Transit, 407 F. Supp. 3d 183, 193

(E.D.N.Y. 2016) (quoting Littlejohn 795 F.3d at 307).) It is

well-settled law that “a local government may not be sued under

§ 1983 for an injury inflicted solely by its employees or

agents,” where the employee does not alleged that she was

discriminated against “pursuant to an expressly adopted official

policy” or a “longstanding practice or custom.” Monell v. Dep’t

of Social Servs., 436 U.S. 658, 694 (1978). None of the alleged

violative conduct was performed pursuant to any official policy,

or longstanding practice or custom.

Accordingly, the court dismisses plaintiff’s § 1981

claim as a matter of law. Beharry, 2019 WL 634652, at *3.

V. SHRL Claim

Under the SHRL, an individual who files a complaint

with the SDHR is barred from filing a lawsuit in state or

federal court in regard to the same cause of action. N.Y. Exec.

L. § 297(9). As courts within this circuit have noted, once an

individual pursues administrative relief for a SHRL claim, he

has elected his remedy, and any subsequent judicial action based

upon the same events is jurisdictionally barred. York v. Ass’n

of the Bar of the City of New York, 286 F.3d 122, 127 (2d Cir.

2002), cert. denied, 537 U.S. 1089 (2002); Higgins v. NYP

Holdings, Inc., 836 F. Supp. 2d 182, 188 (S.D.N.Y. 2011) (“The

election of remedies bar also precludes consideration of any

claim – whether brought under the SHRL or the CHRL – arising out

of the same incident on which [a plaintiff’s] SDHR complaint was

based.”).

Here, plaintiff filed an SDHR complaint on December

27, 2017, in which she alleged discrimination and retaliation on

the basis of national origin and disability. (ECF No. 21-1.)

Plaintiff’s factual allegations in that complaint are

substantively identical to the ones she has made in her FAC, and

plaintiff is barred from pursuing the same claims in federal

court, after having elected a state remedy. N.Y. Exec. L. §

297(9). “The election of remedies bar also precludes

consideration of any claim . . . arising out of the same

incident on which [plaintiff’s] SDHR complaint was based.”

Higgins, 836 F. Supp. 2d at 188.

The SDHR’s Order dated July 5, 2018 found that there

was “NO PROBABLE CAUSE to believe that the respondent has

engaged in or is engaging in the unlawful discriminatory

practice complained of.” (Am. Compl. at 11.) Specifically, the

SDHR determined that their investigation did “not support that

Respondent violated the NYS Human Rights Law” and found that

“Respondent ha[d] provided legitimate non-discriminatory reasons

for its treatment of [plaintiff’s] employment.” (Id. at 11-12.)

Plaintiff appears not to have appealed the SDHR’s Order within

60 days, as required. (Id.) As defendants correctly note,

issue preclusion now bars plaintiff’s relitigation of claims

actually litigated before the SDHR. Higgins, 836 F. Supp. 2d at

188 (collecting cases).10 Because plaintiff’s amended complaint

seeks to relitigate claims that had been adjudicated before the

SDHR, the amended complaint is also dismissed on this

independent ground.

V. Conclusion

For the foregoing reasons, the court grants

defendants’ motion to dismiss the amended complaint in its

10 Further, the record reflects that plaintiff was represented by counsel at

the prior proceeding. (Am. Compl. at 10-12; ECF No. 19 at 10; see Saudagar

v. Walgreens Co., No. 18 CIV. 437 (KPF), 2019 WL 498349, at *9 (S.D.N.Y. Feb.

8, 2019).

entirety and with prejudice. The court certifies pursuant to 28

U.S.C. Section 1915(a)(3) that any appeal would not be taken in

good faith and, therefore, in forma pauperis status is denied

for the purpose of any appeal. Coppedge v. United States, 369

U.S. 438, 444-45 (1962). The Clerk of Court is respectfully

directed to enter judgment in favor of defendants, close the

case, mail a copy of this Memorandum and Order and the judgment

to plaintiff and note service on the docket.

SO ORDERED.

Dated: September 29, 2020

Brooklyn, New York

__________/s/_______________

Hon. Kiyo A. Matsumoto

United States District Judge

Eastern District of New York