Alexander v. Central Islip School District

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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MONICA ALEXANDER,

Plaintiff

-against- MEMORANDUM & ORDER

18-CV-2521 (JS)(ARL)

CENTRAL ISLIP SCHOOL DISTRICT,

Defendant.

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APPEARANCES

For Plaintiff: Thomas Ricotta, Esq.

Ricotta & Marks, P.C.

31-10 37th Avenue

Long Island City, New York 11101

For Defendant: Scott J. Kreppein, Esq.

Devitt Spellman Barrett, LLP

50 Route 111

Smithtown, New York 11787

SEYBERT, District Judge:

Presently before the Court is the summary judgment

motion (hereafter, “Summary Judgment Motion” or “Motion”) (see ECF

No. 29; see also Support Memo, ECF No. 29-3) of Defendant Central

Islip School District (hereafter, “Defendant” or “School

District”) seeking the dismissal of the Complaint of Plaintiff

Monica Alexander (hereafter, “Plaintiff”). Plaintiff opposes said

Motion. (See Opp’n, ECF No. 35.) For the reasons stated herein,

the Summary Judgment Motion is GRANTED.

BACKGROUND

I. Factual Background

A. Generally1

Plaintiff suffers from anxiety. (See Compl., ECF No. 1,

¶7.) Since September 2001, she has been employed by the School

District as a teacher and is currently assigned to the Mulligan

Middle School (hereafter, “Mulligan School”). (See id.; see also

id. ¶10.) Plaintiff alleges that, throughout her employment, work

colleagues and administrators have accused her of being “crazy”,

“nuts”, a “whack”, the “queen of Thorazine” and questioned whether

her “ADHA is kicking in again.” (Id. ¶12.) She further alleges

that “[b]ased on . . . these comments, there has developed a

perception among administrators that Plaintiff suffers from a

disability.” (Id. ¶13.) Yet, it is undisputed that “[n]o one at

[S]chool ‘would actually be aware of [Plaintiff’s] mental health

treatment,’ as she ‘never told anybody that [she] was on medication

because’ she believes ‘in this country mental illness is frowned

upon.’” (56.1 Stmt., ECF No. 29-1, ¶8 (citing Alexander Dep. Tr.,

Ex. G, 66:11-20); cf. 56.1 Counter ¶8 (not disputing stated fact).)

1 For the convenience of the reader, the Court provides this

general background summary for context, which has been gleaned

primarily from Plaintiff’s Complaint, given the dearth of general

background information contained in the Defendants Rule 56.1

Statement (see ECF No. 29-1).

A. As Relevant to this Action2

During an April 1, 2016 school field trip, Plaintiff had

a series of verbal altercations with students, staff and

administrators from multiple schools (hereafter, the “Field Trip

Incident”). (56.1 Stmt. ¶2; cf. 56.1 Counter ¶1 (disputing “how

the incident is cast” and “add[ing] that Plaintiff had a coworker

initiate an altercation with her, and she subsequently spoke to

two students from another school who had recorded the interaction

without permission or authorization, and their administrator,

about their deleting the recording” (citing Alexander Dep. Tr.,

Ex. G, 14-15).) The School investigated the Field Trip Incident

and, in connection therewith, “received a report that Plaintiff

had made derogatory remarks regarding female Hispanic students.”

(56.1 Stmt. ¶3; cf. 56.1 Counter ¶3 (“Plaintiff does not dispute

paragraph ‘3,’ but disputes the truth of those allegations.”).)

Thereafter, on April 22, 2016, Plaintiff was placed on

2 Unless otherwise stated, the facts are taken from the parties’

Rule 56.1 Statements. (See Defendant’s Rule 56.1 Statement, ECF

No. 29-1 (hereafter, “56.1 Stmt.”); Plaintiff’s Rule 56.1 Counter

Statement, ECF No. 35-1 (hereafter, “56.1 Counter”).) Further, a

standalone citation to a Rule 56.1 Statement denotes that either

the parties or the Court has determined the underlying factual

allegation is undisputed. Citation to a party’s Rule 56.1

Statement incorporates by reference the party’s citation(s), if

any. Exhibits identified by letter are those of the Defendant and

are attached to the Declaration of Scott J. Kreppein, Esq. (see

ECF No. 29-2), Defendant’s counsel; Plaintiff has not submitted

any exhibits. Hereafter, the Court will reference exhibits by

their respective letters only.

administrative leave. (See id. ¶4; see also Compl. ¶14 (alleging

April 22, 2014 to be the date Plaintiff “was advised that she was

being suspended indefinitely”).)

It is undisputed that “Plaintiff has previously been

cautioned regarding maintaining professional boundaries with

students and parents.” (56.1 Stmt. ¶1.) However, the parties

dispute that while on administrative leave, Plaintiff “disregarded

specific instructions not to contact students and parents.” (Id.

¶5 (citing Section 913 Examination Report (hereafter, “Report”),

Ex. C; also citing Alexander Dep. Tr., Ex. G, 66:11-20); cf. 56.1

Counter ¶5.)

At the School District Board’s directive, Plaintiff

underwent a Section 913 examination on July 10, 2016 (hereafter,

“Exam”). (See 56.1 Stmt. ¶6; see also Report at 1, 2.) During

the Exam, Plaintiff: stated, inter alia, she received treatment

for clinical anxiety from 2005 to 2008 (see 56.1 Stmt. ¶7);

acknowledged discussing her employment issues with students and

parents while on leave, asserting “she had a ‘right’ to tell her

‘side of the story’ and to try to convince students and parents

that her suspension was ‘unfair’” (id. ¶9); and, “explained that

her neurologist had advised her in January 2016 to resume

psychiatric treatment, and claimed that she had resumed

psychiatric treatment on April 26, 2016” (id. ¶10 (citing Report)).

“As a result of her psychiatric evaluation, an independent

psychiatrist determined . . . that Plaintiff was ‘not mentally fit

to return to her position as a teacher,’ explaining that she

requires ‘ongoing and intensive psychiatric treatment’ but her

‘prognosis is limited’ and it is ‘highly unlikely that Ms.

Alexander’s mental health will sufficiently improve to enable her

to function safely and appropriately in a school environment[,]’

[and concluding] there is an ‘unacceptably high’ ‘risk that she

will continue to behave in a disruptive and unsafe manner.’” (Id.

¶11 (quoting Report); cf. 56.1 Counter ¶11 (disputing only the

psychiatrist’s conclusions).)

Thereafter, in September 2016 and pursuant to N.Y.S.

Education Law § 3020-a, Plaintiff was charged with the following,

arising from or related to the Field Trip Incident: Conduct

Unbecoming a Teacher; Endangering the Welfare of a Student; and

Insubordination. (See Sept. 2016 Charging Ltr., Ex. E.) However,

after negotiations, in early February 2017, the parties reached a

settlement, agreeing, among other things, that: the School

District withdraw the charges against Plaintiff (see Settlement

Agreement, Ex. F, ¶1); Plaintiff “den[y] guilt with respect to any

of the charges” and “affirmatively den[y] having engaged in the

conduct alleged” (id. ¶2); Plaintiff “remain on paid leave status

through June 20, 2017, subject to the [School] District providing

for an assignment within her tenure area that is not within the

classroom” (id. ¶3 (emphasis added)); Plaintiff “undergo

counseling for a six month period . . . on a biweekly basis” with

the counseling “focus[ing] on teacher/student and

teacher/colleague boundaries” (id. ¶4); and, that “[a]s a

condition of [Plaintiff] returning to the classroom for the

2017/2018 school year, the [School] District . . . receive

confirmation from [Plaintiff]’s treating counselor” that said

“counseling has taken place for the six-month period” (id.; see

also 56.1 Stmt. ¶12). Defendant contends “[i]t remains unclear if

Plaintiff underwent six months of counseling as required” because

she did not provide a clear response to the Defendant’s follow-up

inquiry regarding who provided Plaintiff’s counseling. (See 56.1

Stmt. ¶13 (citing Alexander Dep. Tr. 82-83 (outlining Plaintiff’s

responsive testimony “that she saw someone named ‘Keith’ or ‘John’

whose last name was ‘Pecorino’ or some ‘kind of a – a cheese name,’

but not necessarily during that six month time period, and they

were ‘very far away’ and she ‘just want[ed] to go home and go to

bed’ and did not have the ‘mental capacity’ to ‘drive all the way

to Huntington or to drive all the way to Commack,’ but she’s

‘trying’ – as of October 2019 – ‘to find something that’s

closer’”).) In response, Plaintiff generally disputes this

contention, relying only upon her initial affirmative response

that she did undergo six months of counseling after February 2017.

(See 56.1 Counter ¶13 (citing Alexander Dep. Tr. 82:15 (simply

responding “Yes” to defense counsel’s initial inquiry regarding

whether Plaintiff’s underwent the required six months of

counseling after February 2017)).)

II. Procedural Background

On May 16, 2017, Plaintiff filed a Charge of

Discrimination against the School District with the Equal

Employment Opportunity Commission (“EEOC”) (hereafter, the “EEOC

Charge”). (See Compl. ¶4; see also Pl.’s May 16, 2017 Cover Ltr.

to EEOC, ECF No. 37-1 at ECF p.7 (indicating EEOC received the

EEOC Charge on May 18, 2017).) Plaintiff served Defendant with a

Notice of Claim on May 20, 2017. (See Compl. ¶4.) “A Right to

Sue letter, dated January 29, 2018[,] was received on or about

January 31, 2018.” (Id.)

On April 29, 2018, Plaintiff commenced this action,

alleging a deprivation of her Fourteenth Amendment rights under

the Equal Protection Clause, unlawful disability discrimination,

and corresponding retaliation for complaining of that

discrimination pursuant to: 42 U.S.C. § 1983 (hereafter, “§ 1983”)

(see Compl. ¶¶28-30, First and Second Causes of Action); the

Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.

(hereafter, the “ADA”) (see id. ¶¶31-33, Third and Fourth Causes

of Action); and, New York State Executive Law § 296 (hereafter,

“NYSHRL § 296”) (see id. ¶¶34-35). On August 20, 2018, Defendant

filed its Answer, denying Plaintiff’s alleged claims and raising

several affirmative defenses, including that Plaintiff’s Complaint

is time-barred. (See Answer, ECF No. 9.)

After an unsuccessful attempt at settling this case

through mediation (see ECF Nos. 14 and 16), the parties sought

extensions of their discovery deadlines, which were granted. (See

ECF No. 16; Apr. 22, 2019 Elec. ORDER; see also ECF No. 22; Dec.

2, 2019 Elec. ORDER.) Upon the conclusion of discovery, Defendant

sought and was granted permission to file its Summary Judgment

Motion. (See Apr. 21, 2020 Min. Entry, ECF No. 28.) The Motion

was fully briefed on September 5, 2020, but on February 24, 2021,

the Court granted the parties’ joint request to supplement the

record to include Plaintiff’s 2017 EEOC Charge. (See Consent Mtn.

to Supp., ECF No. 37; Feb. 25, 2021 Elec. ORDER.)

As to Plaintiff’s 14th Amendment Causes of Action,

Defendant initially contends Plaintiff has failed to “reference

what type of . . . claim she is attempting to assert” and that her

allegations do not support either a due process or an equal

protection claim. (Support Memo at 7.) As to Plaintiff’s ADA

claims, Defendant argues “Plaintiff engaged in disqualifying

misconduct, has not identified an actual or perceived disability,

and did not suffer an adverse employment action because of any

such disability.” (Id. at 8; see also id. at 8-10 (arguing that

Plaintiff is not a qualified individual); at 10-12 (arguing that

Plaintiff is not disabled within the meaning of the ADA); at 12-

15 (arguing that Plaintiff was not discriminated against due to

any alleged disability).) Finally, as to Plaintiff’s state law

claims, Defendant asserts they are without merit and, in any event,

untimely. (See id. at 16.)

In opposition,3 Plaintiff maintains that her § 1983

claims are two-fold. First, Plaintiff argues that she asserts an

equal protection cause of action, implicitly based upon a theory

of selective enforcement. (See Opp’n at 17 (arguing Plaintiff was

“being subjected to discipline to which her similarly situated

coworkers, including her colleague who was involved in the same

incident, were not subjected, as well as her being subjected to a

general pattern of hostility that her colleagues were not similarly

subjected to”).) Second, Plaintiff argues that she asserts a

purported Monell municipal liability claim based upon

unconstitutional conduct undertaken pursuant to a policy or custom

of the Defendant. (See id.; see also id. at 18 (asserting

“numerous official that were above the level of principal . . .

engaged in and/or were aware of the conduct to which Plaintiff was

being subjected, and allowed this conduct to continue,

unabated”).) Regarding her ADA claims, Plaintiff begins by

stating:

3 Plaintiff’s Opposition is somewhat disorganized and does not

address Defendant’s argument in a linear, responsive manner; thus,

in summarizing the Opposition, the Court has attempted to provide

needed organization.

Plaintiff was disabled and, more relevantly,

was perceived to be disabled. The record is

replete with examples of members of Defendant,

supervisors and colleagues alike, alleging

that Plaintiff was crazy, didn’t belong in the

school, was not able to effectively teach, and

needed to be in a straight jacket. There is

simply no reasonable argument . . . that there

are not sufficient facts that support a

finding that Plaintiff was perceived []as

suffering from a disability under the ADA, and

limited in her ability to perform the major

life activities of thinking and working.

(Id. at 12.4) Plaintiff further maintains that since she is still

teaching for Defendant school district, she is able to demonstrate

that she is qualified for her position. (See id. at 12-13.)

Finally, in support of her ADA hostile work environment claim, in

addition to asserting the applicability of the continuing

violation doctrine (see id. at 13), Plaintiff contends she “has

been subjected to regular and consistent harassment and incidents

that caused her great harm and embarrassment,” with the Defendant

“allow[ing] an environment where all employees . . . [we]re allowed

to castigate [Plaintiff], due to a perception that she is mentally

ill, without any ramifications and recourse.” (Id. at 15.)

As to her retaliation causes of action, Plaintiff

asserts that she engaged in unspecified protected activity (see

id. at 19 (“Plaintiff has alleged that she complained about a

4 Plaintiff dedicates several pages addressing the law regarding

one being perceived as disabled pursuant to the ADA. (See Opp’n

at 10-12.)

hostile environment on multiple occasions throughout her

employment, and was effectively told to stop complaining on

multiple occasions.”)), and that the undefined temporal proximity

between her complaints and her suspension and other alleged

disparate treatment establishes a causal connection sufficient to

warrant a jury trial (see id. at 19-12). Plaintiff does not

directly address her state law claims. (See id., in toto.)

In reply, Defendant argues, inter alia: to the extent

Plaintiff raises an equal protection claim, a “class-of-one equal

protection claim[ is] not recognized in the context of public

employment because of the highly discretionary and individualized

nature of the employment relationship” (Reply at 3 (citing Engquist

v. Oregon Dep’t of Agric., 553 U.S. 591 (2008))); Plaintiff does

not raise a Monell cause of action and the Complaint is devoid of

allegations or facts regarding a policy that support such a claim

(see id. at 4); Plaintiff was not discriminated against based upon

a disability, but instead was subject to appropriate disciplinary

action (see id. at 6); in any event, Defendant has established

procedures to investigate allegations of discrimination, of which

Plaintiff did not avail herself (see id. at 7); “there is neither

evidence of nor any substantive factual allegation of any type of

protected activity” in which Plaintiff participated, rendering her

retaliation claim untenable (see id. at 7-8); Plaintiff’s state

law claims are untimely pursuant to N.Y.S. Education Law § 3813

(see id. at 8); and, Plaintiff’s ADA claims may also be untimely

(see id. at 9).

DISCUSSION

I. Applicable Law

A. The Summary Judgment Standard

“Summary judgment is proper ‘if the movant shows that

there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.’” ING Bank N.V. v.

M/V TEMARA, IMO No. 9333929, 892 F.3d 511, 518 (2d Cir. 2018)

(quoting FED. R. CIV. P. 56(a)); accord Jaffer v. Hirji, 887 F.3d

111, 114 (2d Cir. 2018). In ruling on a summary judgment motion,

the district court must first “determine whether there is a genuine

dispute as to a material fact, raising an issue for trial.”

McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir.

2007) (internal quotations and citations omitted); see also Ricci

v. DeStefano, 557 U.S. 557, 586 (2009) (“On a motion for summary

judgment, facts must be viewed in the light most favorable to the

nonmoving party only if there is a ‘genuine’ dispute as to those

facts.” (cleaned up)).

In reviewing the record to determine whether there is a

genuine issue for trial, the court must “construe the evidence in

the light most favorable to the non-moving party,” Centro de la

Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d

104, 109 (2d Cir. 2017) (cleaned up), and “resolve all ambiguities,

and credit all factual inferences that could rationally be drawn,

in favor of the party opposing summary judgment.” Davis-Garett v.

Urban Outfitters, Inc., 921 F.3d 30, 45 (2d Cir. 2019) (quotations

and citation omitted); see also Hancock v. County of Rensselaer,

823 F.3d 58, 64 (2d Cir. 2018) (“In determining whether there is

a genuine dispute as to a material fact, we must resolve all

ambiguities and draw all inferences against the moving party.”).

“Where the record taken as a whole could not lead a rational trier

of fact to find for the nonmoving party, there is no genuine issue

for trial.” Ricci, 557 U.S. at 586 (quoting Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986));

accord Baez v. JetBlue Airways Corp., 793 F.3d 269, 274 (2d Cir.

2015).

“The moving party bears the initial burden of showing

that there is no genuine dispute as to a material fact.” CILP

Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 123

(2d Cir. 2013) (cleaned up); accord Jaffer, 887 F.3d at 114.

“[W]hen the moving party has carried its burden[,] . . . its

opponent must do more than simply show that there is some

metaphysical doubt as to the material facts[,]” Scott v. Harris,

550 U.S. 372, 380 (2007) (quoting Matsushita Elec., 475 U.S. at

586-87), and must offer “some hard evidence showing that its

version of the events is not wholly fanciful[.]” Miner v. Clinton

County, N.Y., 541 F.3d 464, 471 (2d Cir. 2008) (quotations marks

and citation omitted). The nonmoving party can only defeat summary

judgment “by adduc[ing] evidence on which the jury could reasonably

find for that party.” Lyons v. Lancer Ins. Co., 681 F.3d 50, 56

(2d Cir. 2012) (cleaned up). Since “there is no issue for trial

unless there is sufficient evidence favoring the nonmoving party

for a jury to return a verdict for that party[,] . . . [i]f the

evidence is merely colorable, . . . or is not significantly

probative, . . . summary judgment may be granted.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)(quotations and

citations omitted).

B. ADA Employment Discrimination

“ADA employment discrimination claims are subject to the

familiar burden-shifting analysis established by the Supreme Court

in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817,

36 L. Ed.2d 668 (1973): A plaintiff must establish a prima facie

case; the employer must offer through the introduction of

admissible evidence a legitimate non-discriminatory reason for the

discharge; and the plaintiff must then produce evidence and carry

the burden of persuasion that the proffered reason is a pretext.”

Cortes v. M.T.A. N.Y.C. Transit, 802 F.3d 226, 231 (2d Cir. 2015)

(quoting Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d

Cir. 2006)).

Here, Plaintiff’s ADA discrimination cause of action is

based upon allegations of a hostile work environment and adverse

employment actions. To make out a claim of hostile work

environment under the ADA, a plaintiff must show: “(1) that the

harassment was sufficiently severe or pervasive to alter the

conditions of [her] employment and create an abusive working

environment, and (2) that a specific basis exists for imputing the

objectionable conduct to the employer.” Fox v. Costco Wholesale

Corp., 918 F.3d 65, 74 (2d Cir. 2019) (internal quotation marks

and citation omitted) (also holding that hostile work environment

claims under the ADA are evaluated under the same standard as

claims under Title VII). Under this standard, a court looks “to

the totality of the circumstances to determine whether a plaintiff

has met this burden, including proof of the frequency of the

discriminatory conduct; its severity; whether it was physically

threatening or humiliating, or a mere offensive utterance; and

whether it unreasonably interfered with the plaintiff’s work

performance.” Id. (cleaned up; citation omitted); see also

Pistello v. Bd. of Educ. of Canastota Cent. Sch. Dist., 808 F.

App’x 19, 24 (2d Cir. 2020) (summary order) (quoting Fox, 918 F.3d

at 74).

II. The Instant Case

A. Plaintiff’s Counterstatement of Facts

As an initial matter, the Court notes Plaintiff attempts

to introduce new and additional facts for the Court’s consideration

by including them in her Opposition. (See Opp’n, Statement of

Facts, at 2-7.) However, Local Rule 56.1(b) explicitly permits a

nonmovant to include “if necessary, additional paragraphs

containing a separate, short and concise statement of additional

material facts as to which it is contended that there exists a

genuine issue to be tried.” Here, Plaintiff has not complied with

the requirements of Local Rule 56.1(b) because she failed to

include the purported additional facts within her Rule 56.1

Counterstatement. Furthermore, “[a] memorandum of law is not a

proper vehicle through which to present facts to the Court.”

Genova v. County of Nassau, No. 17-CV-4959, 2020 WL 813160, at *9

(E.D.N.Y. Feb. 19, 2020) (collecting cases), aff’d 851 F. App’x

241 (2d Cir. Mar. 24, 2021) (summary order). Therefore, the Court

declines to consider those purported additional facts presented

for the first time in Plaintiff’s Opposition. See Genova, 851 F.

App’x at 244 (“Plaintiffs who ignore their obligations under Local

Rule 56.1 do so at their own peril.”).

B. Plaintiff’s Equal Protection Claim

Plaintiff does not allege to be a member of a protected

class, which is consistent with the Supreme Court’s holding that

“disability” is not a protected classification under the Equal

Protection Clause. See Bd. of Trs. of Univ. of Ala. v. Garrett,

531 U.S. 356, 366 (2001); see also Marino v. City Univ. of N.Y.,

18 F. Supp. 3d 320, 340 (E.D.N.Y. 2014) (stating “[p]ersons with

disabilities are not a suspect class”). “Nevertheless, ‘courts

have long recognized that the equal protection guarantee also

extends to individuals who allege no specific class membership but

are nonetheless subjected to invidious discrimination at the hands

of government officials.’” Bertuzzi v. Copiague Union Free Sch.

Dist., No. 17-CV-4256, 2020 WL 5899949, at *23 (E.D.N.Y. Mar. 9,

2020) (quoting Lerner v. Hempstead Public Schs., 55 F. Supp. 3d

267, 281 (E.D.N.Y. 2014), report and recommendation adopted as

modified, 2020 WL 3989493 (E.D.N.Y. July 15, 2020)).

This Court has stated that “[w]here the plaintiff does

not allege he is a member of a protected class, his Equal

Protection claim may only be based on two theories: selective

enforcement or ‘class of one.’” Chizman v. Scarnati, 218 F. Supp.

3d 175, 181 (E.D.N.Y. 2016) (citing Airday v. City of N.Y., 131 F.

Supp. 3d 174, 184 (S.D.N.Y. 2015)). Moreover, as Defendant argues

(see Reply at 3), and as this Court has previously ruled, “public

employees are foreclosed from utilizing a ‘class of one’ theory.”

Chizman, 218 F. Supp. 3d at 181 (citing Engquist, 553 U.S. 591).

While not the exemplar of clarity, it appears that the basis for

Plaintiff’s Equal Protection claim is that Defendant engaged in

selective enforcement of its disciplinary procedures by subjecting

her, but not similarly situated coworkers, to discipline. (See

Opp’n at 17.)

Even though “[c]ourts in this Circuit are divided on

whether selective enforcement claims are available in the public

employment context post-Engquist,” Bertuzzi, 2020 WL 5899949, at

*24 (collecting cases), in this instance, Plaintiff has failed to

raise a genuine dispute of material fact that would preclude

granting summary judgment in Defendant’s favor as to such a claim.

“To prevail on a selective enforcement claim, a plaintiff must

show (1) that she was treated differently from others similarly

situated, and (2) that such differential treatment was based on

impermissible considerations such as race, religion, intent to

inhibit or punish the exercise of constitutional rights, or

malicious or bad faith intent to injure a person.” Lener, 55 F.

Supp. 3d at 283 (internal quotation marks and citations omitted).

Other than generally asserting that she was “subjected to

discipline to which her similarly situated coworkers, including

her colleague who was involved in the same incident, were not

subjected” (Opp’n at 17), Plaintiff has not cited to any evidence

supporting that assertion, either as a general matter or as it

relates to Plaintiff being disabled or perceived to be disabled.

However, it is not the Court’s role to search the summary judgment

record for evidence supporting a nonmovant’s opposition. See,

e.g., N.Y.S. Teamsters Conf. Pension & Ret. Fund v. Express Servs.,

Inc., 426 F.3d 640, 648-49 (2d Cir. 2005) (recognizing authority

of district courts to institute local rules governing summary

judgment submissions, which permits courts “to efficiently decide”

such motions “by relieving them of the onerous task of ‘hunt[ing]

through voluminous records without guidance from the parties’”

(further citations omitted)); Ford v. Ballston Spa Cent. Sch.

Dist., Nos. 05-CV-1198, 05-CV-1199, 2008 WL 697362, at *3 (N.D.N.Y.

Mar. 13, 2008) (same). Nonetheless, in its independent review of

the summary judgment record, the Court finds no evidence from which

a jury could conclude that Plaintiff was treated differently from

similarly situated coworkers or “that any decisionmaker acted with

spite or malice towards [P]laintiff.” Lener, 55 F. Supp. 3d at

283. Thus, in the absence of any disputed material fact, Defendant

is entitled to summary judgment in its favor as a matter of law as

to Plaintiff’s Equal Protection claim.

C. Plaintiff’s Purported Monell Claim

A fair reading of Plaintiff’s Complaint does not support

her contention that her § 1983 claims include a Monell cause of

action. (Compare Compl., with Opp’n at 17-18 (presenting argument

in support of a failure to train or supervise Monell claim).)

Moreover, it is well-settled that a plaintiff cannot amend her

complaint by asserting new facts or theories in a brief. See,

e.g., Hurley v. Town of Southampton, No. 17-CV-5543, 2018 WL

3941944, at *18 (E.D.N.Y. Aug. 13, 2018) (“[I]t is well settled

that ‘[p]laintiffs cannot amend their complaint by asserting new

facts or theories for the first time in opposition to [d]efendants’

motion to dismiss.’” (quoting K.D. ex rel. Duncan v. White Plains

Sch. Dist., 921 F. Supp. 2d 197, 209 (S.D.N.Y. 2013))); see also

Williams v. Black Entm’t Television, Inc., No. 13-CV-1459, 2014 WL

585419, at *11 (E.D.N.Y. Feb. 14, 2014) (“Plaintiff cannot amend

his pleadings through an opposition brief.”); Fadem v. Ford Motor

Co., 352 F. Supp. 2d 501, 516 (S.D.N.Y. 2005) (“It is longstanding

precedent in this circuit that parties cannot amend their pleadings

through issues raised solely in their briefs.”). As such,

Plaintiff’s Monell liability argument is presented without a basis

and, therefore, is unsustainable.

Even assuming, arguendo, the Court found Plaintiff

alleged a Monell cause of action, the claim could not withstand

Defendant’s Summary Judgment Motion. Without citation to

supporting evidence, Plaintiff argues that “[a]t a minimum,

Defendant’s actions and inaction in the face of multiple [but

unidentified] complaints, establish . . . a failure to properly

train or supervise [its] subordinates that a municipal policy is

established thorough deliberate indifference.” (Opp’n at 18

(further stating, without support, that “numerous [unnamed]

officials . . . engaged in and/or were aware of the conduct to

which Plaintiff was being subjected, and allowed this conduct to

continue, unabated”).) Yet, to make out a Monell claim based upon

Defendant inadequately training or supervising its employees,

Plaintiff is “required to ‘identify a specific deficiency in the

[School District’s] training program and establish that [that]

deficiency is ‘closely related to the ultimate injury,’ such that

it ‘actually caused’ the constitutional deprivation.” White v.

City of N.Y., No. 17-CV-2404, 2019 WL 1428438, at *4 (S.D.N.Y.

Mar. 29, 2019) (quoting Amnesty Am. v. Town of W. Hartford, 361

F.3d 113, 129 (2d Cir. 2004); further citation omitted). As

Defendant aptly contends, “Plaintiff fails to reference any type

of identifiable policy or substantiate [her] conclusory [Monell]

allegations with any facts.” (Reply at 4.) Thus, in the absence

of the requisite evidence, Plaintiff’s purported Monell claim must

fail.

D. Plaintiff’s Retaliation Claims5

“In adjudicating retaliation claims, courts follow the

familiar burden-shifting approach of McDonnell Douglas.” Kaytor

v. Elec. Boat Corp., 609 F.3d 537, 552 (2d Cir. 2010); see also

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973);

McGuire-Welch v. House of the Good Shepherd, 720 F. App'x 58, 62

(2d Cir. 2018); Konteye v. N.Y.C. Dep’t of Educ., No. 17-CV-2876,

2019 WL 3229068, at *4 (S.D.N.Y. July 18, 2019) (“To bring a

successful retaliation claim, Plaintiff must thus establish a

prima facie case under the burden-shifting McDonnell Douglas

5 Despite not explicitly informing the Court, Plaintiff addresses

her Retaliation Claims collectively in Part III of her Opposition.

(See Opp’n at 19-22.) The Court does likewise herein.

Framework.” (citing Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845

(2d Cir. 2013))); Lore v. City of Syracuse, 670 F.3d 127, 157 (2d

Cir. 2012)). To present a prima facie case of retaliation,6 a

plaintiff-employee:

must establish that (1) the employee was

engaged in a[ protected] activity . . . , (2)

the employer was aware of that activity, (3)

an employment action adverse to the plaintiff

occurred, and (4) there existed a causal

connection between the protected activity and

the adverse employment action.

Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 234 (2d Cir.

2002); see also Castro v. City of N.Y., 24 F. Supp.3d 250, 268

(E.D.N.Y. 2014)(quoting Weissman).

Here, absent citation to supporting evidence, Plaintiff

asserts she “has alleged that she complained about a hostile

environment on multiple occasions throughout her employment, and

was effectively told to stop complaining on multiple occasions,”

thereby establishing her engagement in a protected activity.

6 Establishing a prima facie claim of retaliation requires the

same showing under § 1983, the ADA, and NYSHRL. See, e.g., Treglia

v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (“In order to

establish a prima facie case of retaliation, [plaintiff] must show

that: (1) he engaged in an activity protected by the ADA; (2) the

employer was aware of this activity; (3) the employer took adverse

employment action against him; and (4) a causal connection exists

between the alleged adverse action and the protected activity.”

(citations omitted)); Gonzalez v. City of N.Y., 377 F. Supp. 3d

273, 290 (S.D.N.Y. 2019) (applying the same standard to a

retaliation claim under § 1983); Denicolo v. Bd. of Educ. of City

of N.Y., 328 F. Supp. 3d 204, 213 (S.D.N.Y. 2018) (applying the

same standard to a retaliation claim under NYSHRL).

(Opp’n at 19-20.) Not so. As Defendant correctly states, “there

is neither any evidence of nor any substantive factual allegation

of any type [of] protected activity.” (Support Memo at 12; Reply

at 7.) Plaintiff’s amorphous, unsubstantiated, general claim of

having complained on multiple occasions – without the benefit of

any temporal context or the identity of the parties to whom those

complaints were made - woefully fails to establish that she engaged

in any protected activity or the Defendant’s knowledge of such

purported protected activity. It is well-established that

unadorned allegations, like those asserted here, are insufficient

to defeat summary judgment in this context. See, e.g., McKenna v.

Wright, 386 F.3d 432, 436 (2d Cir. 2004) (“[W]ith a motion for

summary judgment adequately supported by affidavits, the party

opposing the motion cannot rely on allegations in the complaint,

but must counter the movant’s affidavits with specific facts

showing the existence of genuine issues warranting a trial.”

(citing FED. R. CIV. P. 56(c)); Patacca v. CSC Holdings, LLC, No.

16-CV-0679, 2019 WL 1676001, at *17 (E.D.N.Y. Apr. 17, 2019)

(“[W]hen opposing a summary judgment motion, one cannot rely upon

the allegations in one’s complaint to defeat the motion.”); Elliott

v. Gouverneur Tribune Press, Inc., No. 13-CV-055, 2014 WL 12598275,

at *2 (N.D.N.Y. Sept. 29, 2014) (“[I]t is well-settled that a party

opposing a motion for summary judgment may not simply rely on the

assertions in its pleadings.” (citing Celotex Corp. v. Catrett,

477 U.S. 317, 324 (1986); further citation omitted)). In the

absence of any identifiable, specific protected activity or person

(or persons) to whom Plaintiff relayed such purported protected

activity, and given the dearth of competent evidence demonstrating

Plaintiff’s engagement in, and Defendant’s knowledge of, any

protected activity, Plaintiff cannot establish a prima facie case

of any retaliation in this instance.

Notwithstanding her inability to establish either

engagement in a protected activity or the Defendant’s knowledge of

same, the Court briefly addresses the contention that Plaintiff

“can establish a causal connection[, i.e., the fourth element of

a retaliation prima facie case,] through the timing and sequence

of events, as well as through the pretextual nature of the actions

taken against” her. (Opp’n at 21.) “[A] plaintiff may establish

the causal connection indirectly by showing that the protected

activity was closely followed by the retaliation, or directly by

showing evidence of retaliatory animus.” Cosgrove v. Sears,

Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993) (internal quotation

marks and citation omitted). “Negative reactions by an employer

to a plaintiff’s complaints of discrimination have been deemed

indicative of retaliatory animus.” White v. Dep’t of Corr. Servs.,

814 F. Supp. 2d 374, 390 (S.D.N.Y. 2011) (citing Mandell v. County.

of Suffolk, 316 F.3d 368, 383 (2d Cir. 2003)).

Plaintiff contends that her “complaints create a

temporal proximity upon which a reasonable fact finder could

conclude that her suspension and the alleged disparate treatment

thereafter was a byproduct of a retaliatory animus.” (Opp’n at

21.) The Court is unpersuaded. As Defendant asserts, “Plaintiff’s

allegations are too vague and conclusory to establish any sequence

of events.” (Reply at 7-8.) In the absence of competent evidence

showing precisely when and to whom Plaintiff made her alleged

complaints, there is no “basis for the assertion that [Plaintiff’s]

paid suspension and referral for a mental fitness evaluation were

prompted by some type of unspecified informal complaint” rather

than Plaintiff’s behavior during the Field Trip Incident. (Reply

at 8 (citing Report); see also, e.g., Apr. 7, 2016 Personnel Memo

from Principal Hudson to Pl., ECF No. 30-1 (hereafter, the

“Personnel Memo”).) Thus, Plaintiff’s reliance upon indistinct

complaints of harassment is misplaced because, by their vague

nature, those complaints do not demonstrate a temporal proximity

that would indirectly establish the requisite causal connection.

Since Plaintiff has not developed or advanced an alternative,

retaliatory animus argument to establish the required prima facie

causal connection (Opp’n at 21) – and the Court finds no competent

evidence supporting such a position – there is no basis to find a

causal connection between Plaintiff’s alleged protected activity

and her suspension and Defendant’s alleged disparate treatment

thereafter.

In sum, upon the record presented and viewing the

evidence in the light most favorable to Plaintiff, a reasonable

jury could not conclude that Plaintiff has established any prima

facie case of retaliation. Hence, Defendant is entitled to summary

judgment in its favor as to Plaintiff’s Retaliation Causes of

Action as a matter of law.

E. Plaintiff’s ADA Hostile Work Environment Claim

Even if the Court were to assume, arguendo, Plaintiff

was perceived to be disabled (cf. Reply at 6 (Defendant arguing

that “an observation that something might be wrong with Plaintiff

based upon displays of ‘poor judgment, irresponsible behavior and

poor impulse control’ is not the same as a perceived disability”

(quoting Stoplner v. N.Y. Univ. Lutheran Med. Ctr., No. 16-CV-

0997, 2018 WL 4697279, at *22 (E.D.N.Y. Sept. 29, 2018)); see also

Support Memo at 12), she is unable to sustain her ADA hostile work

environment claim upon the record presented.

In recently recognizing that hostile work environment

claims are actionable under the ADA, the Second Circuit instructed

that “[a] plaintiff alleging a hostile work environment claim under

the ADA . . . ‘must demonstrate either that a single incident was

extraordinarily severe, or that a series of incidents were

sufficiently continuous and concerted to have altered the

conditions of her working environment.’” Fox, 918 F.3d at 74

(quoting Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002)).

That is, the workplace must be “so severely permeated with

discriminatory intimidation, ridicule, and insult that the terms

and conditions of [the employee's] employment were thereby

altered.” Alfano, 294 F.3d at 373 (emphasis added).

Plaintiff contends she “has been subjected to regular

and consistent harassment and incidents that caused her great harm

and embarrassment” since “all employees, new and old, are allowed

to castigate [her], due to a perception that she is mentally ill,”

“with students and other teachers present to hear [Plaintiff]

bullied about medication she should be on, or that she is crazy,

or should be in a straight jacket.” (Opp’n at 15-16; id. (further

stating “the totality of the circumstances here establish [sic]

that [Plaintiff] has been the victim of a concerted, District-

wide, harassment that was focused on her being minimized,

diminished, and berated due to a perceived disability”).) However,

even if Plaintiff had presented evidence supporting this argument,7

7 To the extent Plaintiff would have the Court rely upon her

“Statement of Facts” provided in her Support Memo, the Court has

declined that invitation. (See supra at 15-16.) However, the

Court notes that many of the incidents of which Plaintiff complains

occurred prior to her 2013 assignment to the Mulligan School,

making them too temporally attenuated, and not sufficiently

continuous and concerted, to support her claim of “concerted,

District-wide, harassment” by Defendant here. Cf. Stryker v. HSBC

Secs. (USA), No. 16-CV-9424, 2020 WL 5127461, at *15 (S.D.N.Y.

Aug. 31, 2020) (granting employer-defendant summary judgment where

which she has not, her ADA hostile work environment claim would

fail because she has not articulated how the alleged harassment

altered the conditions of her employment. (Cf. Opp’n at 14

(Plaintiff asserting that “[a] hostile work environment exists

‘when the workplace is permeated with ‘discriminatory

intimidation, ridicule and insult,’ . . . that it is ‘sufficiently

severe or pervasive to alter the conditions of the victim’s

employment.’” (emphasis in original) (quoting Tomka v. Seiler

Corp., 66 F.3d 1295, 1305 (2d Cir. 1995); further citation

omitted).)

To the extent Plaintiff implicitly relies upon her

subsequent paid administrative leave, that reliance is unavailing.

The record evidence demonstrates that after the Field Trip

Incident, Plaintiff attended an April 4, 2016 meeting with, inter

alia, the Mulligan School principal to discuss said Incident. (See

Personnel Memo.) During the meeting, Plaintiff: did not deny

having a volatile confrontation with another teacher in front of

staff and students during the field trip; admitted “yelling

loud[ly] in an unprofessional manner toward students” and

physically removing a student’s hat; and, indicated that certain

“[t]here is no evidence of physically threatening or humiliating

actions against the plaintiff” and “no evidence that co-workers

engaged in ongoing and pervasive comments mocking the plaintiff's

disability” and where “the plaintiff ha[d] also not shown that any

of the actions taken against him were based on his disability).

behavior of female, illegal immigrant students was “nasty”. (Id.)

As noted, thereafter, Plaintiff was: placed on paid administrative

leave on April 22, 2016; directed not to discuss her suspension

with students or parents; and ordered to submit to a Section 913

evaluation, i.e., the Exam. (See Report.) There is no record

evidence supporting the contention that Plaintiff believed the

aftermath of the Field Trip Incident was, in some fashion,

harassment or discrimination against her. Nor, under the totality

of the circumstances, is there any evidentiary basis to impute

discriminatory animus upon the Defendant’s decision to place

Plaintiff on paid administrative leave.

Moreover, and notably, during the subsequent Exam, when

“asked why she believed the school board ordered the [Section] 913

evaluation,” Plaintiff replied that she did not know. (Id. at 4.)

Plaintiff also reiterated that during the Field Trip Incident,

“after a point [she] was not acting appropriately.” (Id.) As

Defendant argues, the Exam was “a rationally-based job-related

evaluation that was consistent with business necessity, and there

is no evidence to suggest any . . . pretext.” (Support Memo at

13.) Indeed, the ADA expressly provides that it is not

discriminatory for an employer to “require a medical examination”

or otherwise “make inquiries of an employee as to whether such

employee is an individual with a disability or as to the nature or

severity of the disability” if “such examination or inquiry is

shown to be job-related and consistent with business necessity.”

42 U.S.C. §12112(d)(4)(A); see also Grassel v. Dep’t of Educ. of

City of N.Y., No. 12-CV-106, 2017 WL 1051115, at *7 (E.D.N.Y. Mar.

20, 2017) (finding the “need to determine a teacher’s psychological

capacity to properly carry out his duties is a vital business

necessity”; collecting cases of courts finding examinations a

vital business necessity where school personnel exhibited

“worrisome behavior at work or emotional volatility”).

Similarly, Plaintiff’s paid administrative leave cannot

be construed as an alteration of the conditions of her employment,

because “‘[l]egitimate reprimands by an employer are not abuse.

Nor are the disciplinary actions taken against [a plaintiff] in

response to complaints . . . evidence’ of [a] hostile work

environment.” Stryker, 2020 WL 5127461, at *15 (quoting Fox, 918

F.3d at 75). Significantly, Plaintiff does not contend that her

administrative paid leave altered the conditions of her

employment. (See Opp’n, Part II(A)(3), pp. 13-16.) At bottom,

Plaintiff has failed to elicit any evidence that her placement on

administrative leave was related in any manner to her alleged

complaints of harassment.

F. Plaintiff’s NYSHRL § 296 Discrimination Claims

Plaintiff has not responded in any meaningful manner to

Defendant’s arguments challenging her NYSHRL claims. (See Opp’n,

in toto.) Thus, to the extent Plaintiff’s NYSHRL claims are not

subsumed within her hostile work environment and retaliation

claims (which the Court has determined, supra, cannot withstand

summary judgment), Plaintiff’s passing reference to her NYSHRL

claims result in a waiver of those claims. See Jackson v. Fed.

Express, 766 F.3d 189, 198 (2d Cir. 2014)(“[I]n the case of a

counseled party, a court may, when appropriate, infer from a

party’s partial opposition that relevant claims or defenses that

are not defended have been abandoned.”); see also Camarda v.

Selover, 673 F. App’x 26, 30 (2d Cir. 2016)(“Even where abandonment

by a counseled party is not explicit, a court may infer abandonment

from the papers and circumstances viewed as a whole.” (internal

quotation marks and citation omitted)); Neurological Surgery, P.C.

v. Travelers Co., 243 F. Supp.3d 318, 329 (E.D.N.Y. 2017)(deeming

an argument waived because it was not addressed in a party’s

opposition brief); Patacca, 2019 WL 1676001, at *13 (collecting

cases and deeming claims waived that were not fully addressed in

opposition papers); Petrisch v. HSBC Bank USA, Inc., No. 07-CV-

3303, 2013 WL 1316712, at *17 (E.D.N.Y. Mar. 28, 2013)(collecting

cases holding that where party fails to address arguments in

opposition papers on summary judgment motion, the claim is deemed

abandoned).

Even if that were not so, Plaintiff’s NYSHRL claims could

not be sustained because she failed to comply with § 3813 of the

New York Education Law, which addresses the requirements for

presenting such claims against school districts. Pursuant to §

3813, Plaintiff was required to have first presented Defendant

with “a written verified claim upon which such action . . . is

founded . . . within three months after the accrual of such claim

. . . .” N.Y. Educ. Law § 3813(1); see also Peritz v. Nassau

County Bd. of Coop. Educ. Servs., No. 16-CV-5478, 2019 WL 2410816,

at *3 (E.D.N.Y. June 7, 2019)(“[A]s Plaintiff is asserting an

employment discrimination claim against an educational entity

enumerated in § 3813(1), she was required by that section to serve

a written verified claim upon [that entity] within three months of

the accrual of her claim.”). “‘Notice of claim requirements are

construed strictly’ and ‘[f]ailure to comply with these

requirements ordinarily requires dismissal for failure to state a

cause of action.’” Peritz, 2019 WL 2410816, at *2 (alteration in

original) (quoting Hardy v. N.Y.C. Health & Hosps. Corp., 164 F.3d

789, 793-94 (2d Cir. 1999)).

As an initial matter, Plaintiff has failed to produce

evidence that she served the Defendant with a written verified

claim; rather, she simply alleges “a Notice of Claim was served on

Defendant relating to these claim [sic] in on [sic] May 20, 2017.”

(Compl. ¶4.) This fails to establish strict compliance with §

3813(1). See Peritz, 2019 WL 2410816, at *4 (“[T]he burden is on

Plaintiff to demonstrate compliance with the notice of claim

requirements.” (citations omitted)). Further, Plaintiff has

failed to demonstrate these claims are timely:8 assuming, arguendo

(1) an accrual date of April 22, 2016, i.e., the date Plaintiff

was notified she was being placed on paid administrative leave,

Plaintiff would have had to serve Defendant with her Notice of

Claim by July 21, 2016; (2) an accrual date of June 10, 2016, i.e.,

the date of Plaintiff’s Exam, Plaintiff would have had to serve

Defendant with her Notice of Claim by September 8, 2016; (3) an

accrual date of September 16, 2016, i.e., the date charges pursuant

to New York Education Law § 3020-a were brought against Plaintiff,

Plaintiff would have had to serve Defendant with her Notice of

Claim by December 15, 2016; and (4) an accrual date of February 8,

2017, i.e., the date the parties entered into their Settlement

Agreement, Plaintiff would have had to serve Defendant with her

Notice of Claim by May 9, 2017. None of these scenarios have borne

out. Hence, if the claims were properly before the Court,

Plaintiff’s NYSHRL claims would be time-barred.

***

To the extent not explicitly addressed, the Court has

considered the Plaintiff’s remaining arguments in opposition to

the Summary Judgment Motion and finds them to be without merit.

8 Similar to having failed to specifically identify the alleged

protected activity or activities in which she engaged, Plaintiff

has also failed to clearly identify any purported adverse action.

CONCLUSION

Accordingly, IT IS HEREBY ORDERED that Defendant’s

Summary Judgment Motion (ECF No. 29) is GRANTED. The Clerk of

Court is directed to enter judgment in favor of Defendant, dismiss

Plaintiff’s Complaint in its entirety, and, thereafter, close this

case.

SO ORDERED.

/s/ JOANNA SEYBERT_____

JOANNA SEYBERT, U.S.D.J.

Dated: September __22__, 2021

Central Islip, New York