# Camacho v. Nassau BOCES School District

> District Court, E.D. New York · January 27, 2022

URL: https://www.frixlaw.com/law-library/cases/10307612

## Case

- **Court:** District Court, E.D. New York
- **Decided:** January 27, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
JULIE CAMACHO,
Plaintiff, MEMORANDUM AND ORDER
- against - 2:21-cv-1523 (DRH) (JMW)
NASSAU BOCES SCHOOL DISTRICT;
BOARD COOPERATIVE EDUCATIONAL
SERVICES OF NASSAU COUNTY (BOCES);
DR. ROBERT DILLON; DR. JAMES T.
LANGLOIS; DR. ROBERT HANNA;
LAWRENCE MCGOLDRICK; ROBERT
GREENBERG; JOHN PICARELLO; BONNIE
HELLER; DAVID KOFFLER; ANA MULLIN;
ALYSSA PARETTI; DR. RANDALL
SOLOMON; ISLAND PSYCHIATRY, P.C. and
JOHN DOE and JANE DOE # 1–10,
Defendants.
---------------------------------------------------------------X

APPEARANCES

LAW OFFICES OF THOMAS F. LIOTTI, LLC
Attorneys for Plaintiff
600 Old Country Road, Suite 530
Garden City, NY 11530
By: Thomas F. Liotti, Esq.

SILVERMAN & ASSOCIATES
Attorneys for Defendants Nassau BOCES School District, Board Cooperative
Educational Services of Nassau County (BOCES), Dr. Robert Dillon, Dr. James T.
Langlois, Dr. Robert Hanna, Lawrence McGoldrick, Robert Greenberg, John
Picarello, Bonnie Heller, David Koffler, Ana Mullin, and Alyssa Paretti
445 Hamilton Avenue, Suite 1102
White Plains, NY 10601
By: Caroline B. Lineen, Esq.

BARTLETT LLP
Attorneys for Defendants Dr. Randall Solomon and Island Psychiatry, P.C.
320 Carleton Avenue
Central Islip, NY 11722
By: Robert Devine, Esq.
HURLEY, Senior District Judge:
INTRODUCTION
Plaintiff Julie Camacho brings this action against the captioned Defendants1
alleging seven causes of action: (1) defamation and/or defamation per se,

(2) discrimination in violation of the New York State Human Rights Law, N.Y. Exec.
Law § 296 (“NYSHRL”), (3) breach of contract, (4) negligence, (5) intentional
infliction of emotional distress, (6) fraud, and (7) violation of the right to due process
under the Fifth and Fourteenth Amendments, in violation of 42 U.S.C. § 1983 and
Article I, § 11 of the New York State Constitution. This matter arises from the
BOCES Defendants’ allegedly unfair termination of Plaintiff as a result of, inter alia,

Dr. Solomon’s psychiatric examination.
Presently before the Court are the BOCES Defendants and the Solomon
Defendants’ motions to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1),
(2), (5) and (6). For the reasons stated below, their motions are granted.
BACKGROUND
The Court limits its recitation of facts, taken as true from the Complaint, [DE
1-1], to those pertinent to the only issue in this Memorandum and Order – namely,

the statute of limitations. For a full recitation, the Court directs the reader to

1 Nassau BOCES School District; Board Cooperative Educational Services of
Nassau County (BOCES); Dr. Robert Dillon; Dr. James T. Langlois; Dr. Robert
Hanna; Lawrence McGoldrick; Robert Greenberg; John Picarello; Bonnie Heller;
David Koffler; Ana Mullin; Alyssa Paretti (collectively the “BOCES Defendants”); Dr.
Randall Solomon and Island Psychiatry, P.C. (collectively the “Solomon Defendants”);
and John Doe and Jane Does #1–10 (who, with the BOCES Defendants and Solomon
Defendants, are the “Defendants”).
Magistrate Judge James M. Wicks’s thorough Memorandum and Decision granting
the parties’ joint motion for a stay of discovery. See Camacho v. Nassau BOCES Sch.
Dist., 2021 WL 4949033, at *1–2 (E.D.N.Y. Oct. 25, 2021).

Prior to her last four years as a teacher’s aide at Nassau BOCES Rosemary
Kennedy School, Plaintiff never received any “unsatisfactory write-ups” about her job
performance. (Compl. ¶¶ 20–21). But in that four-year span, there were several
complaints filed against Plaintiff by her coworkers, and, likewise, several complaints
filed against them by Plaintiff; for example, in or around 2011, Plaintiff accused
Defendants Alyssa Paretti and David Koffler, among others, of perpetrating a hostile
work environment. (Id. ¶¶ 22–24, 89–93). Those in charge, including Defendant

Principal John Picarello, ignored her complaints and refused her corresponding
requests to transfer to another BOCES location without loss of seniority. (Id. ¶¶ 22,
24).
Plaintiff stood accused of “hurting a child, treating the staff poorly, giving the
staff the ‘silent treatment,’ [] demanding the staff to give her a foot massage,” and
“unsatisfactory attendance.” (Id. ¶¶ 25–26, 96; see id. ¶ 46 (listing charges)).

Following disciplinary proceedings thereon, Plaintiff filed a complaint against
Defendant Assistant Principal Bonnie Heller for “unilaterally” finding her guilty
“without any investigation” and, in doing so, for “admonish[ing]” her for and
“prohibit[ing] her from wearing non-latex gloves” despite her documented medical
need. (Id. ¶¶ 25–27, 94). Plaintiff again requested a transfer to another BOCES
location without loss of seniority but, ultimately, only transferred classrooms within
the school. (Id. ¶¶ 27–28, 98–99). Despite a new classroom, the hostile work
environment allegedly persisted. (Id.).
During the 2013–14 school year, Defendant Assistant to the Deputy Secretary

Lawrence McGoldrick held a meeting with Plaintiff and her union representative to
discuss her complaints and transfer requests. (Id. ¶ 29). At the union
representative’s request, Defendants placed Plaintiff on voluntary administrative
leave. (Id.). The Complaint does not specifically state when this meeting occurred or
how long this administrative leave lasted.
On the first day of the 2014–15 school year, Plaintiff was “involuntarily placed
on a second administrative leave” pending, as “commanded” by Defendant Deputy

Superintendent Dr. Robert Hanna, a psychiatric evaluation. (Id. ¶ 30 (emphasis
removed)). Defendant Dr. Randall Solomon performed the exam on October 7, 2014,
which lasted approximately two hours, involved no “psychological testing,” and did
not require any further visits. (Id. ¶ 31). Dr. Solomon’s written evaluation opined
Plaintiff had “firmly entrenched psychological deficits” and a persisting “perspective
that she has been the victim of an orchestrated campaign to harass and bully her.”

(Id. ¶¶ 32, 147). Dr. Solomon concluded:
The risk that [Plaintiff] will continue to foster conflict in the workplace
and violate appropriate teacher-student boundaries is unacceptably
high. Consequently, she in not mentally fit to continue working as a
[teacher’s aide] in the Nassau BOCES school district.
(Id. (emphasis removed)).
In January 2015, Defendants charged Plaintiff with further misconduct and
suspended her without pay, allegedly and “primarily as a result of” Dr. Solomon’s
findings. (Id. ¶ 33, see id. ¶ 46 (listing charges)). The parties scheduled Plaintiff’s
disciplinary hearing for February 2015 but postponed it after Plaintiff allegedly
“collapsed and needed surgery due to internal inflammation caused by the pain and

suffering she experienced by the Defendants.” (Id.). Although Plaintiff was ready to
proceed “about three weeks [after] February 5,” 2015, Defendants rescheduled the
hearing for September 2015, allegedly continuing her suspension beyond “the
maximum legal amount of thirty (30) days.” (Id.). At the disciplinary hearing,
Defendants “presumed [Plaintiff] to be guilty,” “rush[ed] to judgment,” and left her
“without an opportunity . . . to be heard.” (Id. ¶¶ 34, 50, 65–66). Defendants
terminated Plaintiff in December 2015. (Id. ¶ 34).

Plaintiff contends her termination “irreparably harmed” her “reputation as a
qualified and competent teacher’s aide.” (Id. ¶ 37). By way of example, on August
24, 2018, Plaintiff received an offer of employment as a teacher’s aide; she lost it,
however, on September 4, 2018 when she could not obtain full security clearance due
to her disciplinary record and Dr. Solomon’s report. (Id. ¶¶ 36–37, 43–45).
Plaintiff commenced this action on February 24, 2021 in New York State

Supreme Court, Nassau County. Defendants removed the case to federal court on
March 23, 2021. (See Notice of Removal [DE 1]). Plaintiff brings seven causes of
action, only one of which by itself gives the Court jurisdiction:2 (1) defamation and/or
defamation per se, (2) “age, gender, religious belief, and medical condition”

2 Diversity of citizenship jurisdiction is not alleged. (See Notice of Removal
¶¶ 3–4).
discrimination in violation of the New York State Human Rights Law, N.Y. Exec.
Law § 296 (“NYSHRL”), (3) breach of contract, (4) negligence, (5) intentional
infliction of emotional distress, (6) fraud, and (7) violation of the right to due process

under the Fifth and Fourteenth Amendments, in violation of 42 U.S.C. § 1983 and
Article I, § 11 of the New York State Constitution.
LEGAL STANDARD
Defendants move for dismissal pursuant to Rules 12(b)(1), (2), (5), and (6). This
Memorandum and Opinion addresses the statute of limitations applicable to
Plaintiff’s lone federal claim, which implicates only Rule 12(b)(6).
A court deciding a Rule 12(b)(6) motion to dismiss should “draw all reasonable

inferences in Plaintiff[’s] favor, assume all well-pleaded factual allegations to be true,
and determine whether they plausibly give rise to an entitlement to relief.” Faber v.
Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks
omitted). The plausibility standard is guided by two principles. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007));
accord Harris v. Mills, 572 F.3d 66, 71–72 (2d Cir. 2009).
First, the principle that a court must accept all allegations as true is

inapplicable to legal conclusions. Thus, “threadbare recitals of the elements of a
cause of action supported by mere conclusory statements, do not suffice.” Iqbal, 556
U.S. at 678. Although “legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.” Id. at 679. A plaintiff must provide
facts sufficient to allow each named defendant to have a fair understanding of what
the plaintiff is complaining about and to know whether there is a legal basis for
recovery. See Twombly, 550 U.S. at 555.
Second, only complaints that state a “plausible claim for relief” can survive a

motion to dismiss. Iqbal, 556 U.S. at 679. “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. The plausibility standard is
not akin to a ‘probability requirement,’ but asks for more than a sheer possibility that
defendant acted unlawfully. Where a complaint pleads facts that are ‘merely
consistent with’ a defendant's liability, it ‘stops short of the line’ between possibility
and plausibility of ‘entitlement to relief.’” Id. at 678 (quoting Twombly, 550 U.S. at

556-57) (internal citations omitted); see In re Elevator Antitrust Litig., 502 F.3d 47,
50 (2d Cir. 2007). Determining whether a complaint plausibly states a claim for relief
is “a context specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679; accord Harris, 572 F.3d at 72.
DISCUSSION
The Court begins with Plaintiff’s one federal claim, brought under 42 U.S.C.
§ 1983, and then addresses the exercise of supplemental jurisdiction.

I. Section 1983 and the Statute of Limitations
Both sets of Defendants—see supra footnote 1—move to dismiss the § 1983
claims as untimely, BOCES Mem. at 7 [DE 20]; Solomon Mem. at 2–5 [DE 17-2]. As
a threshold matter, Plaintiff correctly observes that “the statute of limitations is an
affirmative defense.” Pl. Opp. to BOCES Mem. at 6 [DE 21]. But where, as here, “the
dates in a complaint show that an action is barred by a statute of limitations, a

defendant may raise the affirmative defense in a pre-answer motion to dismiss” under
Rule 12(b)(6). Ghartey v. St. John’s Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989);
see Thea v. Kleinhandler, 807 F.3d 492, 501 (2d Cir. 2015) (same).
A. The Section 1983 Limitations Period Has Expired
The limitations period applicable to § 1983 claims is “found in the ‘general or
residual state statute of limitations for personal injury actions.’” Pearl v. City of Long

Beach, 296 F.3d 76, 79 (2d Cir. 2002) (quoting Owens v. Okure, 488 U.S. 235, 249–50
(1989)). New York’s relevant statute of limitations gives plaintiffs three years to
bring such claims. Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir. 2009).
Having brought her complaint on February 24, 2021, Plaintiff’s § 1983 claim must
have accrued on or after February 24, 2018.
Federal law dictates when § 1983 claims accrue: “when the wrongful act or
omission results in damages,” Wallace v. Kato, 549 U.S. 384, 391 (2007) (internal
quotation marks omitted), i.e., when a plaintiff knows or has reason to know of the
injury serving as the basis for the claim, see Palkovic v. Johnson, 150 Fed. App’x 35
(2d Cir. 2005) (terminated teacher’s due process claim accrued when “she knew or

had reason to know that she actually would suffer deprivation” of her
“constitutionally protected property interest in her tenured teaching position”);
Biehner v. City of New York, 2021 WL 878476, at *3 (S.D.N.Y. Mar. 9, 2021) (same).
Further injury later revealed does not alter the accrual date; a § 1983 “cause of action
accrues even though the full extent of the injury is not then known or predictable.”
Wallace, 549 U.S. at 391 (internal quotation marks omitted); Corcoran v. New York
Power Auth., 202 F.3d 530, 544 (2d Cir. 1999) (“A plaintiff need not know each and

every relevant fact of his injury or even that the injury implicates a cognizable legal
claim. Rather, a claim will accrue when the plaintiff knows, or should know, enough
of the critical facts of injury and causation to protect himself by seeking legal advice.”
(quoting Kronisch v. United States, 150 F.3d 112, 121 (2d Cir. 1998)).
Plaintiff grounds her § 1983 claim in Defendants’ alleged failure to conduct “a
fair and impartial assessment of [her] work at a due process hearing” and failure to

protect her “from the whims and fancy of principals and/or superiors.” E.g., Pl. Opp.
to BOCES Mem. at 4–5. Defendants allegedly brought “specious [misconduct]
charges,” ordered “an erroneous, unsubstantiated, and unnecessary psychiatric
evaluation,” and suspended her beyond “the maximum allowable amount of time.”
Compl. ¶¶ 33–34, 153. Each of these alleged actions occurred prior to her termination
in December 2015. Thus, upon termination, Plaintiff incurred their attendant
injuries: lost earnings and “irreparabl[e] and permanent[] damage[]” to her
reputation and professional career. See id. ¶¶ 34–35, 160.3 The limitations period
then began to run.

Plaintiff knew or had reason to know of these injuries before February 24,
2018, i.e., more than three years before she brought her § 1983 claim. Indeed, and
although not alleged in her Complaint, she filed complaints with the New York State
Division of Human Rights (“NYSDHR”) immediately before and after her termination
challenging both Dr. Solomon’s findings and the termination hearing itself in the
same manners she does here. Judicial notice of these “prior lawsuits” for “the fact
that they contain certain information[,] and not for the truth of their contents,”

establishes Plaintiff had “actual knowledge of the facts giving rise to the action or
notice of the facts, which in the exercise of reasonable diligence, would have led to
actual knowledge” sufficient to start the limitations period. See Staehr v. Hartford

3 Plaintiff seems to argue the BOCES Defendants also deprived her of due
process by failing to advise her of her New York Education Law § 913 rights – namely,
that (i) the “district’s director of school health services” or “another physician or
healthcare provider” of her choice could evaluate her and (ii) a “physician or other
qualified person” could accompany her to the exam. Pl. Opp. to BOCES Mem. at 8.
These allegations are not in the Complaint and thus cannot be considered.
Fonte v. Bd. of Managers of Cont’l Towers Condo., 848 F.2d 24, 25 (2d Cir. 1988).
Assuming Plaintiff amended her Complaint to include them, they would not affect
the accrual of her § 1983 claim because, like the other allegations, they pre-date her
termination; her May 2018 discovery of her Section 913 rights is inapposite to the
accrual analysis. See infra Discussion Sections I.B–C. Moreover, “cases from both
the Supreme Court and [the Second Circuit] make clear that the federal procedural
due process guarantee does not require state officials to inform individuals of all the
procedural guarantees they enjoy under state law.” See Liberian Cmty. Ass’n of Conn.
v. Lamont, 970 F.3d 174, 192 (2d Cir. 2020) (emphasis removed) (citing City of W.
Covina v. Perkins, 525 U.S. 234, 240–41 (1999) and United States v. Lopez, 445 F.3d
90, 95 (2d Cir. 2006) (Sotomayor, J.)).
Fin. Servs. Grp., Inc., 547 F.3d 406, 411, 424–26 (2d Cir. 2008) (emphasis removed)
(taking judicial notice of documents in evaluating the statute of limitations). On May
11, 2015, Plaintiff filed a NYSDHR complaint assailing Dr. Solomon’s evaluation and

pointing to a different doctor’s contrary findings. Verified Compl. ¶¶ 13–14, Camacho
v. Nassau BOCES, No. 10174362 (N.Y.S. Div. Hum. Rts. May 11, 2015), Ex. D [DE
19-4] to Decl. of Caroline B. Lineen (“Lineen Decl.”) [DE 19]. On January 15, 2016,
Plaintiff—with attorney representation—amended that NYSDHR complaint to allege
her termination hearing was unfair and the BOCES Defendants failed to adequately
investigate her hostile work environment claims. Verified Am. Compl. ¶¶ 55–57,
Camacho v. Nassau BOCES, No. 10174362 (N.Y.S. Div. Hum. Rts. Jan. 15, 2016)

(“[T]he hearing officer carried out the will of BOCES by recommending [Plaintiff’s]
termination.”), Ex. E [DE 19-5] to Lineen Decl. These allegations parallel those
underlying her present § 1983 claim. Here, for example, Plaintiff alleges that another
psychologist “refuted” Dr. Solomon’s “erroneous, unsubstantiated, and unnecessary
psychiatric evaluation,” that she faced “fabricated and unfounded charges” at a
hearing in which she was “presumed to be guilty . . . without an opportunity . . . to be

heard,” and that her “complaints of an increasingly hostile work environment were
ignored.” E.g., Compl. ¶¶ 32–33, 43–45, 50, 62, 65–66, 114, 153, 159, 161. These
litigation materials demonstrate Plaintiff had enough information to bring her § 1983
claim before February 24, 2018. Cf., e.g., Brodsky v. Carter, 2015 WL 13746671, at
*11 (S.D.N.Y. Dec. 15, 2015) (“[T]he fact that Brodsky began asserting [due process]
claims [in state litigation] . . . almost immediately after the [alleged deprivation of
due process] shows that she was in possession of enough information to commence a
[federal] lawsuit within the limitations period.”), report and recommendation adopted
sub nom. Brodsky v. New York City Campaign Fin. Bd., 2016 WL 1258986 (S.D.N.Y.

Mar. 28, 2016), aff’d sub nom. Brodsky v. Carter, 673 Fed. App’x 42 (2d Cir. 2016).
Plaintiff contends her claim is timely because her harm “is continuing as a
result of having to disclose” to future employers her disciplinary charges and Dr.
Solomon’s evaluation, such as when she did so in September 4, 2018. Compl. ¶¶ 36–
37, 47–48, 154. Plaintiff’s resort to the continuing violation doctrine falls short,
however.4 Later-manifesting injuries do not necessarily signal the presence of a
continuing violation. Smith v. City of New York, 664 Fed. App’x 45, 47 (2d Cir. 2016)

(quoting Wallace, 549 U.S. at 391). A continuing violation “is not established merely
because an employee continues to feel the effects of a discriminatory act on the part
of the employer.” Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907–08 (2d Cir.
1997). The Second Circuit has affirmed dismissals pursuant to the statute of
limitations and the inapplicability of the continuing violation doctrine in analogous
fact patterns – namely, where the reasons for and collateral effects of an employee’s

4 The continuing violation doctrine applies to claims “composed of a series of
separate acts that collectively constitute one unlawful practice” – i.e., “claims that by
their nature accrue only after the plaintiff has been subjected to some threshold
amount of mistreatment” and not “discrete unlawful acts.” Lucente v. Cnty. of
Suffolk, 980 F.3d 284, 309 (2d Cir. 2020) (ellipses, internal citations, and internal
quotation marks omitted). Such claims accrue not on “the normal knew-or-should-
have-known” date but “when the defendant has engaged in enough activity to make
out an actionable claim.” Id. “The continuing violation doctrine is generally viewed
with disfavor in the Second Circuit and should be applied only on a showing of
compelling circumstances.” Bissinger v. City of New York, 2007 WL 2826756, at *5
(S.D.N.Y. Sept. 24, 2007) (citing cases).
termination stymie future employment opportunities. E.g., Smith, 664 Fed. App’x at
47 (continuing violation inapplicable where plaintiff alleged “continuing retaliation
in the form of his placement on [defendant’s] ‘no hire list’” because it was not a

“separate act” but “a direct consequence of [plaintiff’s] termination”); Brevot v. New
York City Dep’t of Educ., 299 Fed. App’x 19, 20 (2d Cir. 2008) (plaintiff’s placement
on “ineligible list,” even if it still “keep[s] her unemployable in her chosen profession,”
was a “consequence of acts” completed in six years prior and was not a continuing
violation).
B. The May 2018 Events Do Not Change the Outcome of the
Statute of Limitations Analysis
Plaintiff next argues her § 1983 claim is timely because, in May 2018, she
“learned” that “[a]nother similarly situated teacher” testified at a colleague’s

disciplinary arbitration proceeding that she (like Plaintiff and the colleague) was
“forced to see Dr. Solomon,” who found her (like the others) mentally unfit. Pl. Opp.
to BOCES Mem. at 4–5. Only after the arbitrator found the colleague “not guilty” on
May 3, 2018 did Plaintiff “first discover[] and [become] aware of the fraud and deceit
of the Defendants”: that the BOCES Defendants hired, and “pa[y] under the table,”
Dr. Solomon to recommend terminating employees as “‘unfit’ regardless of whether
they are actually unfit.” Id. at 4–5, 9.
But she does not recount these May 2018 events in her Complaint. “Factual
allegations contained in legal briefs or memoranda are [] treated as matters outside
the pleading for purposes of Rule 12(b).” Fonte v. Bd. of Managers of Cont’l Towers

Condo., 848 F.2d 24, 25 (2d Cir. 1988). The Court may not “consider matters outside
the pleadings in deciding a motion to dismiss for failure to state a claim.” Nakahata
v. New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 202 (2d Cir. 2013).
And, in any event, the quoted portions of the arbitrator’s Opinion and Award
do not read in the manner Plaintiff suggests, i.e., that the BOCES Defendants pay
Dr. Solomon to find educators mentally unfit. Pl. Opp. to BOCES Mem. at 5–8. The
only quote relating to payment comes from a paragraph summarizing the colleague’s

arbitration position—not the arbitrator’s findings—as made clear by its citations to
“Respondent’s Brief” and the qualifying clause “Respondent submits.”5 In what is
ostensibly the arbitrator’s findings, he fails to say anything about payment. And
nothing in the arbitrator’s words permits an inference that he “recognized the fraud

5 The block quote, as lifted from Plaintiff’s brief, reads:
BOCES ‘improperly’ retained the services of Dr. Solomon who never ‘bid
for his work.’ (Respondent Brief at 13). Alleging a violation of a local
ordinance, Respondent submits that ‘public money’ was improperly
‘spent without any budgetary line, no bidding and no accountability,’
which resulted in two evaluations with ‘no oversight, guidance or
accountability.’ (Respondent Brief at 15-17).
Pl. Opp. to BOCES Mem. at 5 (citations in original) (emphasis added); see id. at 13
(quoting the paragraph, again, to say the arbitrator “recognized” Dr. Solomon’s “fraud
and deceit”).
and deceit of Dr. Solomon” alleged by Plaintiff. It says only that Dr. Solomon’s
conclusion as to the colleague did not follow from the evidence presented to him.6
Assume, arguendo, Plaintiff’s reading is correct and she amends her complaint

to allege these May 2018 events. The statute of limitations still bars her claims.
Manning v. Utilities Mut. Ins. Co., 254 F.3d 387, 401 (2d Cir. 2001) (“Even if we were
to consider the factual allegations presented in plaintiff’s briefs, we would find that,
as a matter of law, plaintiff’s claim [would not] survive the six-year statute of
limitations . . . .”); Gatt Commc’ns, Inc. v. PMC Assocs., L.L.C., 711 F.3d 68, 71 n.2
(2d Cir. 2013) (treating facts raised in motion papers “as if they had been included in
a second amended complaint” and concluding “even as so amplified, [plaintiff] has

failed to state a claim upon which relief can be granted”). As noted, Plaintiff’s claim
accrued well before May 2018. And these previously discussed 2018 events do not
alter the continuing violation analysis: “several courts have held that an employee

6 Plaintiff’s third and final block quotation of the arbitrator’s decision reads:
Herein, BOCES relies on Dr. Solomon’s opinion that Respondent poses
a significant risk to her students, because . . . . Yet, there is no evidence
that Respondent’s job performance was impaired, and no such evidence
was presented to Dr. Solomon. Indeed, Dr. Solomon saw no
documentation that Respondent’s ‘work performance was less than
acceptable,’ and he knew of no ‘instances of her work performance being
subpar.’ (Tr. 177-178) . . . .
. . . . Dr. Solomon also confirmed that Respondent’s classroom
performance did not trigger her Education Law § 913 evaluation; rather,
BOCES expressed concern that Respondent had filed an ‘excessive’
number of workers’ compensation claims (Tr. 54), which undoubtedly
presented a real challenge for BOCES.
Pl. Opp. to BOCES Mem. at 5 (ellipses and citations in original). The ellipses in the
above block quote are supplied by Plaintiff. The unabridged language is not in the
materials presented to the Court.
who has been discharged pursuant to a discriminatory policy may not take advantage
of later discriminatory acts against other employees for the purpose of postponing the
running of the statutory period as to [her] on a continuing violation theory.” Miller

v. Int’l Tel. & Tel. Corp., 755 F.2d 20, 25 (2d Cir. 1985) (citing cases); cf. Pinaud v.
Cnty. of Suffolk, 52 F.3d 1139, 1157 (2d Cir. 1995) (“[W]hen a plaintiff knows or ought
to know of a wrong, the statute of limitations on that claim starts to run, and the
later awareness that the actionable wrong was also part of a conspiracy does not
expand the statutory time limit.”).
C. Equitable Tolling Does Not Apply

Plaintiff “avails [herself] of the doctrine of equitable tolling,” contending “her
[§ 1983] cause of action [was] fraudulently concealed” until May 2018. Pl. Opp. to
BOCES Mem. at 7–8. State law provides such “tolling rules.” Pearl, 296 F.3d at 80
(quoting Hardin v. Straub, 490 U.S. 536, 539 (1989)). New York tolls the statute of
limitations both (i) “where the defendant conceals from the plaintiff the fact that he
has a cause of action,” and (ii) “where the plaintiff is aware of his cause of action, but

the defendant induces him to forego suit until after the period of limitations has
expired.” Id. (internal quotation marks omitted). Neither of these circumstances
apply here.7
First, and according to the Second Circuit’s view of New York’s tolling rules,
there is a distinction “between fraudulent concealment of the existence of a cause of

7 New York State law characterizes its tolling rules as “equitable estoppel,” see
Pearl, 296 F.3d at 81–83, but this Memorandum and Opinion uses the terminology
employed by the parties: “equitable tolling.”
action and fraudulent concealment of facts that, if known, would enhance a plaintiff's
ability to prevail as to a cause of action of which the plaintiff was previously aware.”
Id. at 76, 84–85 (citing Saylor v. Lindsley, 391 F.2d 965, 970 (2d Cir. 1968)). The

latter situation, to which the May 2018 events belong, does not warrant equitable
tolling. The alleged “fraud and deceit” between the BOCES Defendants and the
Solomon Defendants, if established, would merely “enhance [Plaintiff’s] ability to
prevail” on the subject claim “by corroborating her story.” See id. (quoting Paige v.
Police Dep’t of Schenectady, 264 F.3d 197, 200 (2d Cir. 2001)). Plaintiff was previously
aware that Dr. Solomon’s involvement contributed to her alleged due process
deprivation because she argued that very point in state court. She may not have

“possess[ed] of all information necessary to prevail in [that] lawsuit,” but, as a matter
of law, she “need[ed] only [to] have possessed information that would have allowed
[her] to bring a lawsuit” in federal court. Statler v. Dell, Inc., 841 F. Supp. 2d 642,
648 (E.D.N.Y. 2012); Torre v. Columbia Univ., 1998 WL 386438, at *8 (S.D.N.Y. July
10, 1998) (“[E]quitable tolling is intended to provide relief where a plaintiff is not
aware of the existence of a cause of action, not where a plaintiff is aware of the cause

of action but believes that she may not have sufficient evidence to prove her case.”),
aff’d, 189 F.3d 462 (2d Cir. 1999).
Second, Plaintiff fails to suggest Defendants affirmatively “induced [her] by
fraud, misrepresentations or deception” to delay filing her § 1983 claim. Twersky v.
Yeshiva Univ., 993 F. Supp. 2d 429, 442 (S.D.N.Y.) (quoting Zumpano v. Quinn, 6
N.Y.3d 666, 673–75 (N.Y. 2006)), aff’d, 579 Fed. App’x 7 (2d Cir. 2014)). Equitable
tolling requires “some conduct on the part of the defendant after the initial
wrongdoing; mere silence or failure to disclose the wrongdoing is insufficient.” De
Sole v. Knoedler Gallery, LLC, 974 F. Supp. 2d 274, 319 (S.D.N.Y. 2013) (quoting Ross

v. Louise Wise Servs., Inc., 8 N.Y.3d 478, 491–92 (N.Y. 2007)). To establish fraudulent
concealment of a claim, Plaintiff “may not rely on the same act that forms the basis
for” her claim. Ross, 8 N.Y.3d at 491. By grounding the fraudulent concealment in
the later-discovered, allegedly-illicit relationship between the BOCES Defendants
and the Dr. Solomon—which serves as a basis for her § 1983 claim—she offers no
“later fraudulent misrepresentation . . . for the purpose of concealing” that alleged
tort. See id.

All this to say, even taking into account the May 2018 events, Plaintiff’s § 1983
claim is time-barred.8
II. Supplemental Jurisdiction over the State Claims
Defendants’ Notice of Removal invokes federal question jurisdiction as the
basis of removal. Notice of Removal ¶¶ 3–4 (citing 28 U.S.C. § 1331). With the § 1983

8 Paragraph 158 of the Complaint quotes Monell v. Department of Social
Services’s standard for municipal government liability under § 1983. Compl. ¶ 158
(quoting 436 U.S. 658 (1978)). Referring to her termination, based in part on Dr.
Solomon’s findings, she contends, “[t]he actions and statements of these Defendants
are indicative of a pattern of [] behavior in order to justify terminating educational
employees from their position.” Id.
Plaintiff’s municipal liability claim is timely only if the Court construes the
Complaint to include the May 2018 events, as the actions giving rise to her § 1983
claim pre-date the commencement of the action by more than three years. See Pinaud,
52 F.3d at 1156. The Court does not do so. The May 2018 events do not support
Plaintiff’s § 1983 municipal liability claim. The arbitrator’s opinion does not
corroborate the asserted unconstitutional policy or custom. See supra footnotes 5–6
and accompanying text.
claim dismissed as to all Defendants, each of the remaining claims come under New
York State law. Under the circumstances, the Court declines to exercise
supplemental jurisdiction over the state law claims. Kolari v. N.Y.-Presbyterian

Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (quoting Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 350 n.7 (1988)). They shall be remanded back to state court. See 28 U.S.C.
§ 1367(c)(3); e.g., Boyle v. N. Salem Cent. Sch. Dist., 2020 WL 2319116 (S.D.N.Y. May
11, 2020).
CONCLUSION
For the reasons discussed above, the BOCES Defendants’ and the Solomon

Defendants’ motions to dismiss are granted. The Clerk of Court is respectfully
directed to remand the action to the Supreme Court of the State of New York, Nassau
County.
SO ORDERED.

Dated: Central Islip, New York s/ Denis R. Hurley
January 27, 2022 Denis R. Hurley
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10307612. Public record. Not legal advice.