Belyea v. The City of Glen Cove

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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DARCY BELYEA,

Plaintiff,

MEMORANDUM & ORDER

v. 20-CV-5675 (MKB)

THE CITY OF GLEN COVE and

TIMOTHY TENKE in his individual and official

capacities,

Defendants.

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MARGO K. BRODIE, United States District Judge:

I. Background ............................................................................................................................. 3

a. The parties ........................................................................................................................... 3

b. Plaintiff’s early employment with the City ......................................................................... 3

c. 2018 actions alleged by Plaintiff......................................................................................... 4

d. 2019 actions alleged by Plaintiff......................................................................................... 6

e. 2020 actions alleged by Plaintiff......................................................................................... 8

II. Discussion ............................................................................................................................. 10

a. Standard of review ............................................................................................................ 10

b. Consideration of documents other than the Complaint..................................................... 10

c. Title VII claims against the City ....................................................................................... 15

i. Timeliness ................................................................................................................. 15

ii. Exhaustion of administrative remedies ..................................................................... 18

iii. Hostile work environment claim ............................................................................... 22

iv. Retaliation ................................................................................................................. 25

1. Participation in a protected activity .......................................................................... 28

2. Adverse employment action ..................................................................................... 29

3. Causal connection between protected activity and adverse employment actions..... 31

d. NYSHRL hostile work environment and retaliation claims against Tenke ...................... 35

e. Section 1983 claims against both Defendants .................................................................. 37

i. Tenke’s claims of legislative and qualified immunity .............................................. 38

1. Legislative immunity ................................................................................................ 38

2. Qualified immunity ................................................................................................... 42

ii. Personal involvement of Tenke ................................................................................ 44

iii. First Amendment claims against Tenke and the City ............................................... 47

1. First Amendment retaliation claim on the basis of Plaintiff’s gender discrimination

complaint........................................................................................................................... 49

A. Plaintiff sufficiently alleges that she engaged in protected speech when she

issued a press release .................................................................................................... 49

(1) Plaintiff’s internal complaint ........................................................................... 50

(2) Plaintiff’s press release .................................................................................... 51

1. Plaintiff plausibly spoke as a citizen ............................................................... 51

2. Plaintiff spoke on a matter of public concern .................................................. 52

B. Plaintiff alleges that she suffered adverse employment actions .......................... 54

C. Plaintiff sufficiently alleges causation ................................................................ 56

2. First Amendment political retaliation ....................................................................... 58

iv. Fourteenth Amendment claims ................................................................................. 62

v. The City’s Monell liability ........................................................................................ 63

f. Punitive damages .............................................................................................................. 68

III. Conclusion ........................................................................................................................ 69

Plaintiff Darcy Belyea commenced the above-captioned action on November 20, 2020,

(Compl., Docket Entry No. 1), against Defendants the City of Glen Cove (the “City”) and

Timothy Tenke, in his individual and official capacities as the mayor of Glen Cove. Plaintiff

alleges claims of gender discrimination, retaliation, hostile work environment and free speech

violations pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title

VII”), the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (“NYSHRL”), and

42 U.S.C. § 1983, based on her workplace environment and her termination as Recreation

Director from the City during Tenke’s tenure as mayor. (Id. ¶¶ 10, 26, 115–27.)

The City and Tenke separately move to dismiss the claims against them pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure.1 Plaintiff opposes the motions.2 For the

reasons set forth below, the Court grants in part and denies in part Defendants’ motions to

dismiss.

I. Background

The Court assumes the truth of the factual allegations in the Complaint for the purposes

of this Memorandum and Order.

a. The parties

Plaintiff is a female residing in Glen Cove in Nassau County, New York. (Compl. ¶ 6.)

The City employs hundreds of employees and operates approximately nineteen departments to

administer the city government. (Id. ¶ 8.) Tenke, a Democrat, is the mayor and chief executive

officer and a resident of Nassau County. (Id. ¶¶ 9, 27.)

b. Plaintiff’s early employment with the City

The City hired Plaintiff as the Recreation Director in November of 1996, and Plaintiff

began her first day of work on January 2, 1997. (Id. ¶¶ 10–11.) Recreation Director is a civil

service position, subject to the rules and requirements of New York’s Civil Service laws and

regulations. (Id. ¶ 12.) The Recreation Director position is not appointed annually, unlike some

other department head positions, and “exercises general supervision over” and has responsibility

1 (City’s Mot. to Dismiss (“City’s Mot.”), Docket Entry No. 12; City’s Mem. in Supp. of

City’s Mot. (“City’s Mem.”), Docket Entry No. 12-2; City’s Reply in Further Supp. of City’s

Mot. (“City’s Reply”), Docket Entry No. 17; Tenke’s Mot. to Dismiss (“Tenke’s Mot.”), Docket

Entry No. 13; Tenke’s Mem. in Supp. of Tenke’s Mot. (“Tenke’s Mem.”), Docket Entry No. 13-

10; Tenke’s Reply in Further Supp. of Tenke’s Mot. (“Tenke’s Reply”), Docket Entry No. 18.)

2 (Pl.’s Mem in Opp. to City’s Mot. (“Pl.’s City Opp’n”), Docket Entry No. 15; Pl.’s

Mem. in Opp. to Tenke’s Mot. (“Pl.’s Tenke Opp’n”), Docket Entry No. 14.)

for the City’s recreational areas, playgrounds, and programs, including City recreational events.

(Id. ¶¶ 15–16.) Plaintiff is a member of the collective bargaining unit, identified as “CSEA.”

(Id. ¶ 17.) After a brief period of probation, Plaintiff became a permanent employee, and the

position was then “controlled by N.Y. Civil Service Law § 75 (‘Section 75’).” (Id. ¶ 13.)

Section 75 prohibits the City from terminating an employee without first issuing charges and

then providing a hearing on the charges, with some exceptions. (Id. ¶ 14.)

For the first twenty-one years of her employment, Plaintiff performed her job “in an

exemplary manner.” (Id. ¶ 18.) Plaintiff was “not disciplined or reprimanded, and her personnel

record [was] unblemished.” (Id. ¶ 19.) From 1997 to 2017, Plaintiff worked “successfully” with

four different administrations from both major political parties. (Id. ¶ 20.) Residents have

“lauded” her work performance. (Id. ¶¶ 22–23.)

In January of 2016, the CSEA instructed then-mayor Reginald Spinello to remove

Plaintiff as a dues-paying member of the CSEA. (Id. ¶ 24.) Spinello declined to take action

because he believed the issue “was really between [Plaintiff] and the union.” (Id. ¶ 25.)

Plaintiff’s work conditions “changed for the worse” “[a]lmost immediately” after Tenke

took office as mayor in January of 2018 and City officials worked to undermine and circumvent

her. (Id. ¶¶ 28–29.) For example, that month, Tenke and the deputy mayor, Maureen

Basdavanos, sought to amend parking regulations at the City stadium parking lot, and although

Plaintiff “should have been involved in such discussions,” Tenke and Basdavanos excluded her.

(Id. ¶¶ 30–31.)

c. 2018 actions alleged by Plaintiff

In February of 2018, a “close friend and ally of Tenke,” Michael Cervini, began a

“campaign of disinformation about [Plaintiff]’s work leading the renovation of the City’s batting

cages.” (Id. ¶ 32.) Cervini publicly criticized Plaintiff’s work but praised the mayor, including

in a full-page advertisement in the local newspaper. (Id. ¶ 34.) Plaintiff asked Tenke to confront

Cervini, but the conduct did not stop.3 (Id. ¶ 36.)

At a City Council meeting in July of 2018, Basdavanos’ husband accused Plaintiff of not

caring about the safety of residents and stated that she should be fired because she did not staff

“sufficient lifeguards” for the beaches. (Id. ¶ 38.) At that time, there was an ongoing national

lifeguard shortage, which was affecting municipalities across Long Island. (Id. ¶ 39.)

That summer, a citizen requested documents concerning bathroom renovations being

supervised by Plaintiff pursuant to the Freedom of Information Law (“FOIL”). (Id. ¶ 40.)

Instead of “allowing the FOIL request to proceed in the normal course,” Basdavanos sent the

documents directly to the resident, who used these documents “to allege that [Plaintiff] should be

fired for mismanaging the project.” (Id. ¶ 41.) Plaintiff contends that the project was “doomed”

because of a defunct outside contractor, and that although she had sought assistance from Tenke,

the city attorney, and the building department to force the contractor’s hand in completing the

work, they took no action, leaving Plaintiff to “take the blame for the contractor’s failures.” (Id.

¶¶ 42–43.)

Plaintiff contends that these issues were directed at her based on her gender, because

“historically,” the mayor supported male employees and would “maintain order at meetings and

other events” when residents criticized these employees but did not do the same for Plaintiff.

(Id. ¶ 45.) In addition, male employees were not reprimanded or criticized for serious

misconduct, while Defendants “tacitly condoned and/or provoked” residents’ unwarranted

criticisms of Plaintiff. (Id.) Examples of male employees receiving better treatment included a

3 Plaintiff does not allege “whether Tenke took action or not.” (Compl. ¶ 36.)

male employee causing the City to spend more than half a million dollars in health insurance

premiums for retirees not entitled to receive these benefits and not being reprimanded, and a

male employee not being reprimanded or disciplined for unlawfully switching license plates on

City vehicles, one of which was used for non-work-related purposes and involved in an accident.

(Id. ¶ 46.)

In December of 2018, Tenke attempted to fire the City’s controller, Sandra Clarson, but

was unable to do so because it would have violated the City Charter. (Id. ¶¶ 47–48.) The

following summer, Newsday reported that Tenke’s paychecks did not include certain required

deductions for health insurance benefits, but Tenke alleged he was not aware of the error and

blamed Clarson’s office, saying that this was “what happen[ed] when a duly elected mayor [was]

forced to use a holdover political appointee to provide financial checks and balances for the

[C]ity.” (Id. ¶¶ 49–52.) He called this “pure obstructionist politics.” (Id. ¶ 52.) Tenke

attempted to fire Clarson again while she was on vacation, but Clarson temporarily returned to

work following an order by a Nassau County Court judge. (Id. ¶¶ 54–55.)

d. 2019 actions alleged by Plaintiff

In August of 2019, the CSEA asked Tenke to remove Plaintiff’s CSEA member status

and cease collecting her union dues, as the union was concerned that Plaintiff had brought

Section 75 charges against a subordinate CSEA employee for misconduct and believed that such

conduct compelled her dismissal from the union. (Id. ¶¶ 56–57.) Tenke immediately acquiesced

to the demand and revoked Plaintiff’s membership. (Id. ¶ 58.) Two weeks later, Plaintiff met

with CSEA officials to explain her position, and the CSEA retracted its prior demand and told

Tenke that he should reinstate Plaintiff. (Id. ¶¶ 59–60.)

On October 2, 2019, Clarson, who by then was no longer the City controller, together

with Plaintiff, issued a press release concerning “ongoing sex discrimination and harassment of

female City employees.” (Id. ¶ 61.) A friend who had worked with the previous Republican

administration assisted in issuing the press release. (Id. ¶¶ 62–63.) Tenke refuted the claims and

asserted that Plaintiff’s press release was a “political attack.” (Id. ¶ 68.) Councilwoman Marsha

Silverman also believed that the press release was “politically motivated and unsubstantiated.”

(Id. ¶ 69.) Newsday reported on the story on October 17, 2019. (Id. ¶ 70.) On October 15, 2019,

Plaintiff sent a letter to a City personnel officer, John Charon, “detailing much of [Plaintiff’s]

mistreatment from January [of] 2018 to then” and alleging that the treatment was based on

“gender bias.” (Id. ¶ 64.) The letter outlined the basis for Plaintiff’s discrimination allegations,

and, in addition, noted that:

There is a serious and dangerous pattern of proficient and

accomplished women working in this administration that are

consistently harassed and bullied. Yet, male employees are not

reprimanded in any way, even when their offenses are clearly blatant

insubordination or border on criminal.

(Id. ¶ 65.)

The City did not include Plaintiff in budget talks in the fall of 2019, even though

department heads, including Plaintiff, were traditionally involved in budget discussions. (Id. ¶¶

75–77.) In November of 2019, Tenke and other City officials met to discuss one of the City’s

recreation areas, but Plaintiff was not included in the meeting. (Id. ¶¶ 78–79.) At the meeting

Tenke announced that Plaintiff would not be working for the City in 2020 and that the Parks

Department would be folded into the Department of Public Works (the “DPW”). (Id. ¶ 80.)

Plaintiff alleges that “Tenke was laying the groundwork to remove [her] in one of the only ways

permitted by the Civil Service rules.” (Id. ¶ 81.)

On December 19, 2019, attorneys for the City contacted Plaintiff, acknowledging receipt

of her complaint and setting up twelve hours of interviews to discuss her allegations of sex

discrimination. (Id. ¶ 82.) Within weeks, Tenke began “stripping” Plaintiff of her duties. (Id. ¶

83.) For example, on December 31, 2019, Plaintiff was told that one of her employees

responsible for a major department project was being reassigned to the DPW. (Id. ¶ 84.) On

January 8, 2020, City officials excluded Plaintiff from a vendor meeting concerning

contamination at one of the beaches under her supervision, and the next day, DPW employees

told her she had to turn over her files concerning the contamination project. (Id. ¶¶ 85–86.)

When Plaintiff asked why, the employees “blamed” Basdavanos and Grant Newburger, the

Public Relations officer. (Id. ¶ 87.)

e. 2020 actions alleged by Plaintiff

On January 13, 2020, Plaintiff spoke with Louis Saulino, the DPW director, about the

contamination project. (Id. ¶ 88.) Saulino told Plaintiff that he needed her in the meetings, was

“aggravated” by Tenke’s handling of the meetings and exclusion of Plaintiff from the meetings,

and wanted nothing to do with assuming any of Plaintiff’s responsibilities, as he had enough

work “on [his] plate.” (Id. ¶ 89.) Saulino spoke with Tenke about including Plaintiff in the

contamination meetings and Tenke agreed but insisted that Plaintiff should remain excluded

from other project meetings, such as a bathroom renovation project at one of her parks. (Id. ¶¶

90–91.)

Several days later, a member of one of the City’s sports leagues informed Plaintiff that

City residents had heard that the City intended to move her Department’s office location to the

basement of City Hall or off-site. (Id. ¶¶ 92–93.)

On March 9, 2020, shortly after the Covid-19 pandemic began, the City convened a

meeting across departments to discuss the City’s plan for the pandemic. (Id. ¶¶ 94–95.) Even

though Plaintiff’s department supervised events and sports leagues with hundreds of participants,

Plaintiff was excluded from this meeting and from the information provided at that meeting

about the City’s Covid-19 response plan. (Id. ¶ 97.)

On May 5, 2020, Tenke ordered the auxiliary police to change the locks on a park

facility. (Id. ¶ 98.) On July 28, 2020, Tenke proposed a resolution to publicize the results of the

City’s investigation into Plaintiff’s complaints of discrimination, although Plaintiff alleges that

“such documents should have remained confidential parts of the employee personnel file.” (Id. ¶

99.)

On October 9, 2020, Tenke told Plaintiff he was eliminating her position from the 2021

budget. (Id. ¶ 101.) Tenke asserted that the City was facing budget issues and that layoffs were

the only solution. (Id. ¶ 104.) Plaintiff was the only department head terminated. (Id. ¶ 103.) In

October of 2020, the City Council met and discussed the proposed budget, which included the

layoffs. (Id. ¶ 105.) Several Council members pointed out other ways to reduce costs, but Tenke

rejected those alternatives as “not viable.” (Id. ¶ 106.) Tenke did not approach the CSEA, which

could have offered cost-saving concessions, and did not approach department heads, who were

usually asked to provide input about reducing budget costs. (Id. ¶¶ 107–08.) In addition to

Plaintiff, five low-level laborers or clerks were set to be laid off. (Id. ¶ 109.)

Plaintiff contends that Defendants’ actions have caused her to suffer from insomnia,

headaches, dizzy spells, and weight gain. (Id. ¶ 114.)

II. Discussion

a. Standard of review

In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, a court must construe the complaint liberally, “accepting all factual allegations

therein as true and drawing all reasonable inferences in the plaintiffs’ favor.” Sacerdote v. N.Y.

Univ., 9 F.4th 95, 106–07 (2d Cir. 2021); Vaughn v. Phoenix House N.Y. Inc., 957 F.3d 141, 145

(2d Cir. 2020) (same). A complaint must plead “enough facts to state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Bacon v. Phelps,

961 F.3d 533, 540 (2d Cir. 2020) (quoting Twombly, 550 U.S. at 570). A claim is plausible

“when the plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63

(2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); Cavello Bay Reinsurance

Ltd. v. Shubin Stein, 986 F.3d 161, 165 (2d Cir. 2021) (quoting Iqbal, 556 U.S. at 678).

Although all allegations contained in the complaint are assumed to be true, this tenet is

“inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678; Vaughn, 957 F.3d at 145 (same).

b. Consideration of documents other than the Complaint

In support of his motion to dismiss, Tenke has submitted a number of documents and

files that are not attached to the Complaint and asserts that the Court should consider them

because they are public records and documents referenced in Plaintiff’s Complaint. (Tenke’s

Mem. 10–11; Tenke’s Reply 1–2.)

Plaintiff argues that the documents submitted are unauthenticated, and even if they were

authenticated, several documents are not heavily relied upon “to frame the Complaint” and are

“all tangential to the central issues.” (Pl.’s Tenke Opp’n 6–8.)

In deciding a Rule 12(b)(6) motion, “the district court is normally required to look only to

the allegations on the face of the complaint” but “may consider documents that ‘are attached to

the complaint,’ ‘incorporated in it by reference,’ ‘integral’ to the complaint, or the proper subject

of judicial notice.” United States v. Strock, 982 F.3d 51, 63 (2d Cir. 2020) (quoting Roth v.

Jennings, 489 F.3d 499, 509 (2d Cir. 2007)); see Nicosia v. Amazon.com, Inc., 834 F.3d 220,

230–31 (2d Cir. 2016) (holding that courts may consider on a motion to dismiss “any written

instrument attached to [the complaint] as an exhibit or any statements or documents incorporated

in it by reference” and other documents “integral” to the complaint (first quoting Chambers v.

Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002); and then quoting DiFolco v. MSNBC

Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010))); L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d

419, 422 (2d Cir. 2011) (“A complaint is [also] deemed to include any written instrument

attached to it as an exhibit, materials incorporated in it by reference, and documents that,

although not incorporated by reference, are ‘integral’ to the complaint.” (alteration in original)

(quoting Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004))). Disputes regarding the authenticity or

accuracy of documents preclude a court’s consideration on a motion to dismiss. See DiFolco,

622 F.3d at 111 (stating that to consider documentary evidence on a motion to dismiss, “it must

be clear on the record that no dispute exists regarding the authenticity or accuracy of the

document” (quoting Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006))); Beer, 463 F.3d at 134

(“[E]ven if a document is ‘integral’ to the complaint, it must be clear on the record that no

dispute exists regarding the authenticity or accuracy of the document.” (first citing Kaempe v.

Myers, 367 F.3d 958, 965 (D.C. Cir. 2004); and then citing Alt. Energy, Inc. v. St. Paul Fire &

Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001))); Structured Asset Sales, LLC v. Sheeran, No.

20-CV-4329, 2021 WL 1199495, at *5 (S.D.N.Y. Mar. 30, 2021) (same); DeLeon v. Teamsters

Loc. 802, LLC, No. 20-CV-24, 2021 WL 1193191, at *8 (E.D.N.Y. Mar. 29, 2021) (same);

F.D.I.C. v. U.S. Mortg. Corp., 132 F. Supp. 3d 369, 381 (E.D.N.Y. 2015) (stating that in order to

consider documentary evidence on a motion to dismiss, “it must be clear on the record that no

dispute exists regarding the authenticity or accuracy of the document” and that “even implicit,

conclusory, contradictory, or implausible objections to the authenticity or accuracy of a

document render consideration impermissible” (quoting Fine v. ESPN, Inc., 11 F. Supp. 3d 209,

221 (N.D.N.Y. 2014))).

In addition to his memorandum of law in support of his motion to dismiss, Tenke has

submitted (and the City also relies on, (see City’s Mem.)) several documents Defendants contend

are referenced in the Complaint: (1) an advertisement placed by Cervini in a local newspaper,

which Defendants also claim is a matter of public record; (2) a copy of correspondence between

CSEA and the City; (3) a copy of Plaintiff’s internal workplace harassment complaint submitted

to the City on October 15, 2019; and (4) a copy of the findings of the investigation of Plaintiff’s

harassment complaint.4 In addition, Defendants rely on several other documents that they

contend are matters of public record: (1) copies of the minutes of the October 27, 2020 City

Council meeting and 2021 budget adopted at that meeting, which Defendants also claim are

referenced in the Complaint; (2) a copy of a July 18, 2019 Newsday article, which Defendants

also claim is referenced in the Complaint; and (3) a copy of Plaintiff’s Charge of Discrimination

filed with the Equal Employment Opportunity Commission (the “EEOC Charge”), dated March

4 (See Advertisement, annexed to Decl. of Mark Radi (“Radi Decl.) as Ex. B, Docket

Entry No. 13-3; Correspondence, annexed to Radi Decl. as Ex. C, Docket Entry No. 13-4;

Workplace Harassment Compl., annexed to Radi Decl. as Ex. D, Docket Entry No. 13-5;

Findings of Workplace Harassment Compl., annexed to Radi Decl. as Ex. E, Docket Entry No.

13-6.)

13, 2020.5 Tenke has also embedded several links to City Council meetings on a video hosting

platform, “Vimeo,” a link to an article in the Long Island Herald, and the City Charter. (See

generally Tenke’s Mem. 3–9.)

The Court takes judicial notice of the EEOC Charge, City Charter, copies of the October

27, 2020 City Council meeting minutes6 — including the 2021 budget adopted at that meeting —

and the July 18, 2019 Newsday article, as they are matters of public record. See Lively v.

WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293, 305 (2d Cir. 2021) (“[T]he district court may have

taken judicial notice that [the complainant] filed complaints with the EEOC and in federal court .

. . .” (citing Massey v. Ojaniit, 759 F.3d 343, 353 (4th Cir. 2014))); see also Mike v. Drug

Enforcement Admin., No. 19-CV-5407, 2022 WL 992528, at *4 n.11 (E.D.N.Y. Mar. 31, 2022)

(“[T]he [c]ourt takes judicial notice of the fact of the publication . . . in USA Today.”); King v.

City of New York, --- F. Supp. 3d ---, ---, 2022 WL 138009, at *4 (S.D.N.Y. Jan. 14, 2022) (“On

a motion to dismiss, the Court may consider documents that are attached as exhibits,

incorporated by reference, or integral to the complaint. It may also take judicial notice of public

records, such as complaints filed in state court and city council minutes.” (citation omitted));

Elite Union Installations, LLC v. National Fire Ins. Co., 559 F. Supp. 3d 211, 218 (S.D.N.Y.

5 (See Min. dated Oct. 27, 2020, annexed to Decl. of Mark Radi (“Radi Decl.) as Ex. F,

Docket Entry No. 13-7; Newsday article dated July 18, 2019, annexed to Radi Decl. as Ex. G,

Docket Entry No. 13-8; EEOC Charge, annexed to Radi Decl. as Ex. H, Docket Entry No. 13-9.)

6 Other courts in this Circuit have considered City Council minutes matters of public

record. See King v. City of New York, --- F. Supp. 3d ---, ---, 2022 WL 138009, at *4 (S.D.N.Y.

Jan. 14, 2022) (“On a motion to dismiss, the Court may consider documents that are attached as

exhibits, incorporated by reference, or integral to the complaint. It may also take judicial notice

of public records, such as complaints filed in state court and city council minutes.” (citation

omitted)); Schubert v. City of Rye, 775 F. Supp. 2d 689, 696 n.3 (S.D.N.Y. 2011) (“Second, the

minutes and recordings of the City Council meetings are matters of public record and therefore

are the types of materials of which a court may take judicial notice.”) (collecting cases).

2021) (“Courts may also ‘take judicial notice of certain matters of public record . . . includ[ing]

‘things such as statutes, case law, city charters, city ordinances, criminal case dispositions, letter

decisions of government agencies, published reports, [and] records of administrative agencies.’”

(first quoting Wells Fargo Bank, N.A. v. Wrights Mill Holdings, LLC, 127 F. Supp. 3d 156, 166

(S.D.N.Y. 2015); and then quoting Rahman v. Schriro, 22 F. Supp. 3d 305, 311 (S.D.N.Y.

2014))); Roth, 489 F.3d at 509 (quoting Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir.

1991)); 2002 Lawrence R. Buchalter Alaska Tr. v. Phila. Fin. Life Assur. Co., 96 F. Supp. 3d

182, 206 (S.D.N.Y. 2015) (noting that “when a court takes judicial notice of documents in the

public record at the [m]otion [t]o [d]ismiss stage,” it may consider them “only to establish their

existence and legal effect[ ] or to determine what statements they contain[ ] [but] not for the truth

of the matters asserted” (quoting Liang v. City of New York, No. 10-CV-3089, 2013 WL

5366394, at *5 (E.D.N.Y. Sept. 24, 2013))); Garber v. Legg Mason, Inc., 537 F. Supp. 2d 597,

612 & n.4 (S.D.N.Y. 2008) (taking judicial notice of several news articles, including magazines

and noting that the court “may take judicial notice of newspaper articles for the fact of their

publication” (quoting In re Merrill Lynch & Co., 289 F. Supp. 2d 416, 425 n.15 (S.D.N.Y.

2003))), aff’d, 347 F. App’x 665 (2d Cir. 2009).

The Court declines to consider the other documents and videos because Plaintiff disputes

their authenticity. See Faulkner, 463 F.3d at 134 (noting that courts may not consider extrinsic

materials on a motion to dismiss where the authenticity is disputed on the record); see

Gersbacher v. City of New York, 134 F. Supp. 3d 711, 719–20 (S.D.N.Y. 2015) (rejecting videos

where their authenticity was disputed even assuming they were integral); Alvarez v. County of

Orange, 95 F. Supp. 3d 385, 397–98 (S.D.N.Y. 2015) (rejecting incident report, depositions, and

misdemeanor complaint because they were disputed).

The Court also declines to convert these motions to dismiss into motions for summary

judgment in light of Plaintiff’s request for the parties to conduct discovery and submit additional

materials, (Pl.’s Tenke Opp’n 7 n.3), as the parties have not been given a “reasonable

opportunity to present all [pertinent] material.” Sahu v. Union Carbide Corp., 548 F.3d 59, 67

(2d Cir. 2008) (quoting Fed. R. Civ. P. 12(d)) (reversing the district court’s decision where the

district court did not permit submission of all pertinent materials before converting motion to

dismiss into motion for summary judgment).

c. Title VII claims against the City

The City argues that Plaintiff’s Title VII hostile work environment and retaliation claims

fail because several of her alleged acts are time-barred, she has failed to exhaust her

administrative remedies, and she fails to state hostile work environment or retaliation claims.

i. Timeliness

The City argues that the Court should dismiss Plaintiff’s Title VII claims to the extent

that her claims are based on incidents that occurred more than 300 days before Plaintiff filed the

EEOC Charge. (City’s Mem. 2–4.) Because Plaintiff filed the EEOC Charge on March 13,

2020, the City contends that she cannot base her claims on any alleged discrete events that

occurred before May 18, 2019, 300 days prior to that date, including the City’s January 2018

failed attempt to amend parking regulations; public criticism by Cervini in February of 2018;

public criticism by Basdavanos in July of 2018; and the City’s summer 2018 response to a FOIL

request. (Id. at 3.)

Plaintiff argues that discriminatory acts which may fall outside the statute of limitations

are not time-barred if those acts are part of the “same unlawful employment practice and at least

one act falls within the time period.” (Pl.’s City Opp’n 3–4 (quoting Davis-Garett v. Urban

Outfitters, Inc., 921 F.3d 30, 42 (2d Cir. 2019)).) In support, Plaintiff argues that because the

Complaint alleges ongoing harassment based on her sex, her claims are timely under

Davis-Garett. (Id.)

In New York, a federal employment discrimination claim is time-barred unless the

plaintiff first files an EEOC charge within 300 days of the alleged discrimination. 42 U.S.C.

§ 2000e-5(e)(1); Rasko v. N.Y.C. Admin. for Children’s Servs., 734 F. App’x 52, 54 (2d Cir.

2018) (“Under Title VII, a plaintiff in New York must file a complaint with the EEOC within

300 days of a discriminatory act.” (first citing 42 U.S.C. 2000e-5(e)(1); and then citing Pikulin v.

City Univ. of N.Y., 176 F.3d 598, 599 (2d Cir. 1999))); Vega v. Hempstead Union Free Sch.

Dist., 801 F.3d 72, 78–79 (2d Cir. 2015) (quoting 42 U.S.C. § 2000e-5(e)(1)); McGullam v.

Cedar Graphics, Inc., 609 F.3d 70, 75 (2d Cir. 2010). This requirement is analogous to a statute

of limitations. Vega, 801 F.3d at 79; Patterson v. County of Oneida, 375 F.3d 206, 220 (2d Cir.

2004) (dismissing as untimely claims based on conduct that occurred more than 300 days prior to

the filing of EEOC charge).

“[E]xpiration of the limitations period does not bar ‘an employee from using the prior

acts as background evidence in support of a timely claim.’” Davis-Garett, 921 F.3d at 42; see

Davidson v. LaGrange Fire Dist., 523 F. App’x 838, 839 (2d Cir. 2013) (holding that allegations

concerning conduct that took place during the time-barred period may also be considered as

“‘background evidence’ in evaluating the merits of [a plaintiff’s] discrimination claims” (citing

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 112 (2002)); Chin v. Port Auth. of N.Y. &

N.J., 685 F.3d 135, 150 (2d Cir. 2012) (explaining that background evidence from outside the

limitations period “may be considered to assess liability on the timely alleged act” (quoting Jute

v. Hamilton Sundstrand Corp., 420 F.3d 166, 177 (2d Cir. 2005))); Everett v. N.Y.C. Dep’t of

Educ., No. 21-CV-7043, 2022 WL 2342693, at *5 (S.D.N.Y. June 29, 2022) (considering acts

outside of the statute of limitations as “background evidence”); McGrier v. Cap. Cardiology, No.

20-CV-1044, 2022 WL 2105854, at *7 (N.D.N.Y. June 10, 2022) (“Though time-barred, discrete

prior acts falling outside the limitations period may be used as ‘background evidence in support

of a timely claim.’” (quoting Morgan, 536 U.S. at 113)); Marzano v. S. New England Tel. Co.,

No. 16-CV-1274, 2018 WL 4341149, at *2 (D. Conn. Sept. 10, 2018) (“Of course, evidence of

prior events may be considered for background purposes to the extent that they may shed light on

the significance of events occurring within the statute of limitations period.”); Johnson v. Conn.

Dep’t of Admin. Servs. Bureau of Enter. Sys. & Tech., No. 17-CV-00901, 2018 WL 306697, at

*4 (D. Conn. Jan. 5, 2018) (“[A]ny adverse acts that occurred prior to [the statute of limitations

period] may be considered . . . only as background evidence to support any non-time-barred acts

of discrimination or retaliation.”); Imperato v. Otsego Cnty. Sheriff’s Dep’t, No. 13-CV-1594,

2016 WL 1466545, at *14 (N.D.N.Y. Apr. 16, 2016) (“The statute of limitations does not . . . bar

an employee from using . . . prior acts as background evidence in support of a timely claim.”

(quoting Morgan, 536 U.S. at 113)).

In addition, a hostile work environment claim by its very nature involves repeated

conduct over time rather than a discrete occurrence on a particular day. See, e.g., Ferraro v.

N.Y.C. Dep’t of Educ., No. 13-CV-5837, 2015 WL 1476392, at *7 (E.D.N.Y. Mar. 31, 2015)

(quoting Morgan, 536 U.S. at 115). Such a claim is timely if at least one act contributing to the

claim occurred within the limitations period. See Yu v. City of New York, 792 F. App’x 117, 118

(2d Cir. 2020) (“For hostile work environment claims, only one alleged act must fall within the

statute of limitations, and so long as that act is part of the same unlawful practice as the earlier

acts, the entire period of hostile environment may be considered.”); Patterson, 375 F.3d at 220

(citing Morgan, 536 U.S. at 117) (same).

In her EEOC Charge, Plaintiff wrote that she was subjected to retaliation and

discriminated against, has been “consistently and repeatedly harassed, belittled[,] and blocked

from performing [her] job duties since January 17, 2018,” filed a complaint with her employer,

which was ignored, and was “treated . . . poorly.” (EEOC Charge at 1.) The City concedes

several timely acts, (City’s Mem. 3–4), which are part of the unlawful employment practices.

Accordingly, the acts alleged in the Complaint prior to May 18, 2019 — the failure to be

included in discussions about the parking spaces, (Compl. ¶ 31); public criticism by Cervini

regarding the renovations of the City’s batting cages, (id. ¶ 34); public criticism from

Basdavanos’ husband that Plaintiff should be fired because she did not staff “sufficient

lifeguards” for the beaches, (id. ¶ 38); and the City’s response to a FOIL request, (id. ¶¶ 40–43)

— while untimely as discrete acts, are all part of Plaintiff’s hostile work environment claim, and

therefore are timely for purposes of Plaintiff’s hostile work environment claim.7

ii. Exhaustion of administrative remedies

The City argues that the Court should dismiss Plaintiff’s Title VII claims because she

“failed to timely exhaust [her] administrative remedies” with the EEOC. (City’s Mem. 2–4.)

The City argues that Plaintiff fails to exhaust her claims as to: (1) her removal and reinstatement

to the union in August of 2019, (2) her exclusion from meetings and project reassignment in late

7 While discrete acts taking place prior to May 18, 2019 are time-barred for purposes of

Plaintiff’s Title VII retaliation claim, see Yu v. City of New York, 792 F. App’x 117, 118 (2d Cir.

2020) (affirming district court’s ruling that Title VII disparate treatment and retaliation claims

were time-barred), the Court nevertheless remains free to consider the discrete acts as

“background evidence” for purposes of Plaintiff’s retaliation claim. Davidson v. LaGrange Fire

Dist., 523 F. App’x 838, 839 (2d Cir. 2013).

2019 and 2020, and (3) the elimination of her position in October of 2020, effective January of

2021, because she never presented any of these allegations to the EEOC. (Id. at 3–4.)

Plaintiff contends that she exhausted her administrative remedies because her claims are

“reasonably related” to those presented in the EEOC charge. (Pl.’s City Opp’n 4–5 (quoting

Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003)).)

Under Title VII, a complainant must “exhaust” her administrative remedies by filing a

complaint with the EEOC or an authorized state agency prior to the commencement of a Title

VII action in federal court, and that complaint must name the defendant. See Edo v. Antika

Pizzeria Astoria, Inc., 852 F. App’x 618, 619 (2d Cir. 2021) (“Before an individual may bring a

Title VII suit in federal court, the claims forming the basis of such a suit must first be presented

in a complaint to the EEOC or the equivalent state agency.” (quoting Williams v. N.Y.C. Hous.

Auth., 458 F.3d 67, 69 (2d Cir. 2006))); McPartlan-Hurson v. Westchester Cmty. Coll., 804 F.

App’x 41, 43 (2d Cir. 2020) (“Pursuant to Title VII and the ADA, a plaintiff must exhaust her

administrative remedies by filing a charge with the EEOC within 300 days of a discriminatory

act.” (citing 42 U.S.C. §§ 2000e-5(e)(1), 12117(a))); Duplan v. City of New York, 888 F.3d 612,

624 (2d Cir. 2018) (“Exhaustion is ‘an essential element of Title VII’s statutory scheme.’”

(quoting Hardaway v. Hartford Pub. Works Dep’t, 879 F.3d 486, 489 (2d Cir. 2018))).

However, “[c]laims not raised in an EEOC complaint . . . may be brought in federal court if they

are reasonably related to the claim filed with the agency.” Zarda v. Altitude Express, Inc., 883

F.3d 100, 110 n.5 (2d Cir. 2018) (en banc) (alteration in original) (quoting Williams, 458 F.3d at

70), aff’d sub nom. Bostock v. Clayton County, 590 U.S. ---, 140 S. Ct. 1731 (2020); Littlejohn v.

City of New York, 795 F.3d 297, 322 (2d Cir. 2015) (same). “Reasonably related” claims are

recognized in three situations: where (1) the alleged discriminatory conduct “would fall within

the ‘scope of the EEOC investigation which can reasonably be expected to grow out of the

charge of discrimination’”; (2) the claim is one of “retaliation by an employer against an

employee for filing an EEOC charge”; and (3) the plaintiff “alleges further incidents of

discrimination carried out in precisely the same manner alleged in the EEOC charge.” Terry v.

Ashcroft, 336 F.3d 128, 151 (2d Cir. 2003); see also Carter v. New Venture Gear, Inc., 310 F.

App’x 454, 458 (2d Cir. 2009) (same). “The central question is whether the complaint filed with

the EEOC gave that agency ‘adequate notice to investigate discrimination on both bases.’”

Ximines v. George Wingate High Sch., 516 F.3d 156, 158 (2d Cir. 2008) (quoting Deravin, 335

F.3d at 202); see also Hoffman v. Williamsville Sch. Dist., 443 F. App’x 647, 649 (2d Cir. 2011)

(“A new allegation will be considered reasonably related if the administrative charge provided

the EEOC with sufficient notice to investigate the allegation.” (citing Williams, 458 F.3d at 70)).

Courts look at “factual allegations made in the EEOC charge itself, describing the discriminatory

conduct about which a plaintiff is grieving” to determine whether the claims are reasonably

related. Littlejohn, 795 F.3d at 322 (alteration omitted) (quoting Deravin, 335 F.3d at 201); Scott

v. N. Manor Multicare Ctr., Inc., No. 15-CV-2495, 2018 U.S. Dist. LEXIS 54730, at *17

(S.D.N.Y. Mar. 30, 2018) (“[T]he ‘relatedness’ analysis is ‘intimately connected to the facts

asserted in the EEOC complaint,’ ‘and does not depend on the boxes checked or labels applied

by the plaintiff.’” (citation omitted) (first quoting Williams, 458 F.3d at 71; and then quoting

Carby v. Holder, No. 11-CV-5775, 2013 WL 3481722, at *5 (S.D.N.Y. July 10, 2013))).

In her EEOC Charge, Plaintiff indicated that she had experienced discrimination and

retaliation based on her sex. (EEOC Charge at 1.) Plaintiff noted that the discrimination took

place on October 10, 2019. (Id.) Plaintiff did not check the box indicating that the

discrimination was a “continuing action,” but when asked to add the particulars of her claim,

Plaintiff specified that she had been subjected to retaliation and discrimination because she is

female, and had been “consistently and repeatedly harassed, belitted[,] and blocked from

performing [her] job duties since January 17, 2018 and most recently on March 9, 2020.” (Id.)

Plaintiff also wrote that she filed a complaint with her employer, which was ignored, and that she

was “treated . . . poorly.” (Id.) In addition, Plaintiff noted that the male heads of departments

and other male employees were “never questioned, disciplined, undermined[,] or prevented from

performing their job duties, nor [were] they harassed or belittled at public meetings,” unlike her.

(EEOC Charge at 2.)

Plaintiff’s timely allegations — removal and reinstatement to the union in August of

2019, exclusion from meetings and project reassignment in late 2019 and 2020, and the

elimination of Plaintiff’s position in October of 2020, effective January of 2021 — are

“reasonably related” to the allegations in the EEOC Charge because the EEOC Charge detailed

alleged discriminatory practices, retaliation, and a hostile work environment and provided

“adequate notice” to the EEOC based on the dates and actions alleged in the EEOC Charge.

Williams, 458 F.3d at 70 (“The central question is whether the complaint filed with the EEOC

gave that agency ‘adequate notice.’”); see Hoffman, 443 F. App’x at 649 (ruling that a new

allegation will be considered reasonably related if the administrative charge provided the EEOC

with sufficient notice to investigate the allegation). In her Complaint, Plaintiff “alleges further

incidents of discrimination carried out in precisely the same manner alleged in the EEOC

charge.” Terry, 336 F.3d at 151. Thus, her allegations identified above “fall within the ‘scope of

the EEOC investigation which can reasonably be expected to grow out of the charge of

discrimination.’” Id.; see Littlejohn, 795 F.3d at 322 (same).

Accordingly, the Court finds that Plaintiff has exhausted her administrative remedies as

to her removal and reinstatement to the union in August of 2019, her exclusion from meetings

and project reassignment in late 2019 and 2020, and the elimination of Plaintiff’s position in

October of 2020, effective January of 2021.

iii. Hostile work environment claim

The City argues that Plaintiff fails to state to a hostile work environment claim, as the

alleged incidents upon which Plaintiff relies do not amount to severe or pervasive harassment,

and are also “bereft” of any factual allegations plausibly demonstrating that the harassing

incidents were gender-based. (City’s Mem. 5–7.)

Plaintiff argues that she sufficiently states a hostile work environment claim because the

conduct was severely or pervasively abusive and Defendants did not mistreat men. (Pl.’s City

Opp’n 6–8.)

To state a hostile work environment claim, a plaintiff must “show that the workplace is

permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or

pervasive to alter the conditions of the victim’s employment and create an abusive working

environment.” Shultz v. Congregation Shearith Israel, 867 F.3d 298, 309 (2d Cir. 2017)

(quoting Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014)); see

Duplan, 888 F.3d at 627 (same); Littlejohn, 795 F.3d at 320–21 (quoting Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 21 (1993)) (same). “This standard has both objective and subjective

components: the conduct complained of must be severe or pervasive enough that a reasonable

person would find it hostile or abusive, and the victim must subjectively perceive the work

environment to be abusive.” Littlejohn, 795 F.3d at 321 (quoting Raspardo v. Carlone, 770 F.3d

97, 114 (2d Cir. 2014)). The Second Circuit has cautioned that:

While the standard for establishing a hostile work environment is

high, [the Second Circuit] ha[s] repeatedly cautioned against setting

the bar too high, noting that [w]hile a mild, isolated incident does

not make a work environment hostile, the test is whether the

harassment is of such quality or quantity that a reasonable employee

would find the conditions of her employment altered for the worse.

Terry, 336 F.3d at 148. A plaintiff must also show “that the complained of conduct . . . creates

such an environment because of the plaintiff’s” protected characteristic. LeGrand v. Walmart

Stores E., LP, 779 F. App’x 779, 782 (2d Cir. 2019). A court should consider the totality of the

circumstances and factors such as “the frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with [the] employee’s work performance.” Staten v. City of New York,

653 F. App’x 78, 80 (2d Cir. 2016) (alteration in original) (quoting Feingold v. New York, 366

F.3d 138, 150 (2d Cir. 2004)); Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007). In evaluating

whether a plaintiff states a hostile work environment claim, the court must consider facially

neutral conduct that might “bolster a harassment claim” when the facially neutral conduct is by

the same individual who engaged in “overt[]” discrimination. See Daniel v. T&M Prot. Res.,

LLC, 689 F. App’x 1, 3 (2d Cir. 2017) (citing Kaytor v. Elec. Boat Corp., 609 F.3d 537, 547–48

(2d Cir. 2010)) (remanding with instructions to the district court to consider facially neutral

incidents of harassment in analyzing the plaintiff’s hostile work environment claim).

Based on the totality of the alleged conduct, Plaintiff plausibly alleges a hostile work

environment claim on the basis of gender. Plaintiff claims that over a series of years, the City

excluded her from meetings where she would normally be involved as a department head.

(Compl. ¶¶ 31, 85–86.) Indeed, Plaintiff was excluded from a vendor meeting concerning

contamination at one of the beaches under her supervision, (id. ¶ 85), and was directed to turn

over her files concerning the contamination project, (id. ¶ 86). In addition, one of her employees

responsible for a major department project was reassigned to a different office, (id. ¶ 84).

Further, following the start of the Covid-19 pandemic, when the City convened a meeting across

departments to discuss the City’s plan, Plaintiff was excluded from this meeting and from the

information provided at that meeting about the City’s Covid-19 response plan even though

Plaintiff’s department supervised events and sports leagues with hundreds of participants. (Id. ¶

97.) While ordinarily, exclusions from meetings do not sufficiently allege the level of

harassment necessary to support a hostile work environment claim, see, e.g., Tillery v. N.Y. State

Office of Alcoholism & Substance Abuse Services, 739 F. App’x 23, 27 (2d Cir. 2018) (ruling

that plaintiff’s allegations that her employer refused to send her to mandatory training, reduced

her job responsibilities, and criticized her performance did not constitute a hostile work

environment), under the circumstances of this case, Plaintiff adequately alleges an environment

where she experienced “harassment . . . of such quality or quantity that a reasonable employee

would find the conditions of her employment altered for the worse.” Patane, 508 F.3d at 113.

As the Recreation Director, because Plaintiff was responsible for “exercis[ing] general

supervision over and responsibility” for the City’s recreational areas, playgrounds, and programs,

(Compl. ¶ 16), excluding Plaintiff from meetings regarding matters for which she was directly

responsible effectively prevented Plaintiff from performing her job duties.8 Further, Plaintiff

does not allege isolated incidents; rather, the incidents were “sufficiently continuous and

concerted” over several years to support a finding that Plaintiff experienced a hostile work

8 For example, in 2018, Plaintiff was excluded from planning and strategy regarding

parking regulations, an issue that directly fell under her responsibilities. (Compl. ¶¶ 30–31.) In

November of 2019, Plaintiff was also excluded from budget discussions in which she had

previously been included and in addition was excluded from a meeting concerning a City

recreation area, which fell under her responsibilities. (Id. ¶¶ 76–79.) In January of 2020,

Plaintiff was excluded from a vendor meeting concerning contamination at one of the City’s

beaches and was ordered to turn over her files regarding the beach. (Id. ¶¶ 85–86.)

environment. Bentley v. AutoZoners, LLC, 935 F.3d 76, 90 (2d Cir. 2019); see Feingold, 366

F.3d at 150 (holding that an employee experienced pervasive discrimination where he was

singled out on an “almost daily” basis through hostile remarks and overt animosity).

Defendants also content that Plaintiff has not sufficiently alleged a hostile work

environment on the basis of gender. (City’s Mem. 6–7.) However, Plaintiff alleges examples of

male employees receiving better treatment, including a male employee causing the City to spend

more than half a million dollars in health insurance premiums for retirees not entitled to receive

these benefits and not being reprimanded, and a male employee unlawfully switching license

plates on City vehicles, one of which was used for non-work related purposes and became

involved in an accident, who was also not reprimanded or disciplined. (Compl. ¶ 46.) She

further alleges that her gender was the basis for this treatment because “male employees were not

reprimanded or criticized in any way for serious misconduct,” (id. ¶ 45). Plaintiff sufficiently

alleges differential treatment based on gender at the pleading stage. See McGullam v. Cedar

Graphics, Inc., 609 F.3d 70, 79 n.6 (2d Cir. 2010) (“A Title VII sexually hostile work

environment claim . . . requires a plaintiff to establish that the conduct at issue occurred ‘because

of the plaintiff's sex.’” (quoting Patane, 508 F.3d at 113)); Patane, 508 F.3d at 114 (“[A]

plaintiff need only allege that she suffered a hostile work environment because of her gender.”).

Accordingly, viewing Plaintiff’s allegations in their totality and drawing all inferences in

her favor, Plaintiff plausibly alleges a hostile work environment claim.

iv. Retaliation

The City argues that Plaintiff fails to plausibly demonstrate that she engaged in protected

activity and also argues that, other than the elimination of her position, most of the alleged

incidents do not amount to adverse actions. (City’s Mem. 8–10.) In addition, the City argues

that, as to the elimination of Plaintiff’s position, Plaintiff fails to plausibly allege a causal

connection to her complaints of gender discrimination. (Id.)

Plaintiff argues that after she complained about discrimination, City officials “shrugged

off” her complaints and then retaliated against her. (Pl.’s City Opp’n 9–15.)

Title VII prohibits retaliation against an employee who “has opposed any practice [that

is] made an unlawful employment practice” under Title VII. 42 U.S.C. § 2000e-3(a). Claims of

retaliation are analyzed under the McDonnell Douglas burden shifting analysis. McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973); see Fincher v. Depository Tr. & Clearing Corp.,

604 F.3d 712, 720 (2d Cir. 2010) (applying McDonnell Douglas to retaliation claim); Carr v.

N.Y.C. Transit Auth., No. 16-CV-9957, 2022 WL 824367, at *12 (S.D.N.Y. Mar. 18, 2022)

(same). At the pleading stage, “the allegations in the complaint need only give plausible support

to the reduced prima facie requirements that arise under McDonnell Douglas in the initial phase

of a Title VII litigation.” Duplan, 888 F.3d at 625 (quoting Littlejohn, 795 F.3d at 316); see

Dooley v. JetBlue Airways Corp., 636 F. App’x 16, 19 (2d Cir. 2015) (same). The main question

on a motion to dismiss is whether a plaintiff can establish a claim that has “[f]actual allegations

[that] raise a right of relief above the speculative level.” Krasner v. HSH Nordbank AG, 680 F.

Supp. 2d 502, 512 (S.D.N.Y. 2010) (first alteration in original) (quoting Twombly, 550 U.S. at

555); see also Williams, 458 F.3d at 71 (“[T]he requirements for establishing a prima facie case

under McDonnell Douglas [do not] apply to the pleading standard that plaintiffs must satisfy in

order to survive a motion to dismiss.” (second alteration in original) (quoting Swierkiewicz v.

Sorema, 534 U.S. 506, 511 (2002))); Harris v. Office of N.Y. State Comptroller, No. 20-CV-

8827, 2022 WL 814289, at *17 n.29 (S.D.N.Y. Mar. 17, 2022) (“[T]he allegations in the

complaint need only give plausible support to the reduced prima facie requirements that arise

under McDonnell Douglas in the initial phase of a Title VII litigation.” (alteration in original)

(quoting Littlejohn, 795 F.3d at 316)); Pompey-Primus v. Success Acad. Charter Sch., Inc., No.

21-CV-3981, 2022 WL 504541, at *8 (S.D.N.Y. Feb. 17, 2022) (“Retaliation claims brought

under Title VII . . . are analyzed using the McDonnell Douglas burden-shifting framework . . . .

[A]t the motion to dismiss stage, the allegations in the complaint need only give plausible

support to the reduced prima facie requirements that arise under McDonnell Douglas in the

initial phase of a Title VII litigation.”); AB ex rel. CD v. Rhinebeck Cent. Sch. Dist., 224 F.R.D.

144, 154 (S.D.N.Y. 2004) (“The question that should be considered by this Court in connection

with the [motion to dismiss] is whether [the plaintiff] has alleged a prima facie case for

retaliation; not whether her claim will survive a McDonnell Douglas burden shifting analysis.”).

To establish a prima facie case of retaliation, a plaintiff must show: “(1) participation in a

protected activity; (2) that the defendant knew of the protected activity; (3) an adverse

employment action; and (4) a causal connection between the protected activity and the adverse

employment action.” Littlejohn, 795 F.3d at 316 (quoting Hicks v. Baines, 593 F.3d 159, 164

(2d Cir. 2010)). At the pleading stage, the allegations need only give “plausible support to the

reduced prima facie requirements.” Id. “[F]or a retaliation claim to survive . . . a motion to

dismiss, the plaintiff must plausibly allege that: (1) [the] defendants discriminated — or took an

adverse employment action — against [her], (2) because [s]he has opposed any unlawful

employment practice.” Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d 267, 271 (2d Cir.

2016) (second two alterations in original) (quoting Vega, 801 F.3d at 90).

1. Participation in a protected activity

The City argues that Plaintiff fails to plausibly demonstrate that she engaged in protected

activity, as her “gripes were premised on personal animus and petty workplace grievances.”

(City’s Mem. 8.)

Plaintiff argues that she reasonably and in good faith believed that she was being treated

differently based on her gender and that her complaint was not a general grievance about

working conditions, but a discrimination complaint. (Pl.’s City Opp’n 10–11.)

Filing either a formal or informal complaint challenging discrimination is a protected

activity for purposes of retaliation claims under Title VII. See Jagmohan v. Long Island R.R.

Co., 622 F. App’x 61, 63–64 (2d Cir. 2015); Summa v. Hofstra Univ., 708 F.3d 115, 126–27 (2d

Cir. 2013). “A complaint of discrimination constitutes ‘protected activity’ only if (1) the

plaintiff holds a good-faith belief that he suffered discrimination because of a protected

characteristic and (2) that belief is reasonable.” Jagmohan, 622 F. App’x at 63–64

(citing Galdieri–Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir.

1998)); Gregory v. Daly, 243 F.3d 687, 700 (2d Cir. 2001) (holding that Title VII “protects

employees [who] . . . make[] informal protests of discrimination, including making complaints to

management, so long as the employee has ‘a good faith, reasonable belief that the underlying

challenged actions of the employer violated the law’” (first quoting Matima v. Celli, 228 F.3d 68,

78 (2d Cir. 2000); and then quoting Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d

Cir. 1998))). “[A]ttempts to assert . . . rights against discrimination are protected activities.”

Frantti v. New York, 850 F. App’x 17, 21 (2d Cir. 2021) (quoting Treglia v. Town of Manlius,

313 F.3d 713, 720 (2d Cir. 2002)).

In or around October of 2019, Plaintiff sent a letter to a City personnel officer, John

Charon, detailing her alleged mistreatment and alleging that the treatment was based on “gender

bias,” and has therefore shown that she opposed unlawful employment practices. (Compl. ¶ 64);

see Frantti, 850 F. App’x at 21 (holding that efforts to protest discriminatory practices are

protected activities). Plaintiff sufficiently alleges that she made “protests of discrimination,

including making complaints to management,” Summa, 708 F.3d at 127, with a “good faith,

reasonable belief that the underlying challenged actions of the employer violated the law,”

Gregory, 243 F.3d at 701. Private complaints to internal personnel alleging discrimination

constitute protected activity. See Cousar v. New York-Presbyterian/Queens, No. 16-CV-1784,

2019 WL 4015440, at *15 (E.D.N.Y. Aug. 26, 2019) (finding that emails to human resources

staff complaining of discrimination constitute protected activity), aff’d, 845 F. App’x 34 (2d Cir.

2021); Martin v. State Univ. of N.Y., 704 F. Supp. 2d 202, 227 (E.D.N.Y. 2010) (“It is clearly

established that . . . complaints to supervisors constitute protected activity under Title VII.”).

2. Adverse employment action

The City argues that most of the acts that Plaintiff alleges are not adverse employment

actions, except for the elimination of her position. (City’s Mem. 8–10.)

Plaintiff contends that the threat of termination is also an adverse action for purposes of

retaliation. (Pl.’s City Opp’n 11.)

Adverse employment actions are actions that “could well have dissuaded a reasonable

employee in [the plaintiff's] position from complaining of unlawful discrimination.”

Davis-Garett, 921 F.3d at 44 (first quoting Kessler v. Westchester Cnty. Dep’t of Soc. Servs., 461

F.3d 199, 209 (2d Cir. 2006); and then citing Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53, 57 (2006)). “[I]n determining whether conduct amounts to an adverse employment

action, the alleged acts of retaliation need to be considered both separately and in the aggregate,

as even minor acts of retaliation can be sufficiently ‘substantial in gross’ as to be actionable.”

Hicks, 593 F.3d at 165 (citing Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 227 (2d Cir. 2006)).

Plaintiff alleges that Tenke announced during a November 2019 meeting that Plaintiff

would not be working for the City in 2020 and that the Parks Department, which Plaintiff

headed, would be folded into the DPW. (Id. ¶ 80.) In view of the fact that Plaintiff was

ultimately terminated and thus suffered an adverse employment action based on her termination,

(Compl. ¶¶ 101, 103), the threat of termination is also an adverse employment action. Turley v.

ISG Lackawanna, Inc., 803 F. Supp. 2d 217, 254 (W.D.N.Y. 2011) (“[T]hreats of termination or

other punishment do not qualify as adverse actions where they were never carried through.”); cf.

Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 571 (2d Cir. 2011) (determining

that threat of termination fell into category of “trivial harms” and “petty slights or minor

annoyances” when the threat was never carried out); McGrier, 2022 WL 2105854, at *18

(holding that the threat of termination “without any allegation that would permit an inference that

the threat would be carried through” was insufficient to allege an adverse action).

Thus, Tenke’s threat of termination in the November 2019 meeting and Plaintiff’s

termination, authorized in October of 2020 and made effective January of 2021, both constitute

adverse employment actions. See Rivera v. JP Morgan Chase, 815 F. App’x 603, 608 (2d Cir.

2020) (affirming that an adverse employment action for Title VII retaliation purposes is “any

action that could well dissuade a reasonable worker from making or supporting a charge of

discrimination,” and that standard “covers a broader range of conduct than the adverse-action

standard for claims of discrimination”); O’Toole v. County of Orange, 255 F. Supp. 3d 433, 442

(S.D.N.Y. 2017) (“Defendant’s conduct, considered as a whole, meets the ‘objective’ standard,

as the ‘employment consequences of a negative nature’ resulting from making a complaint could

chill other employees from speaking up.” (quoting Cox v. Onondaga Cty. Sheriff’s Dep’t, 760

F.3d 139, 147 (2d Cir. 2014))).

3. Causal connection between protected activity and adverse

employment actions

The City contends that Plaintiff fails to plausibly allege a causal connection between her

discrimination complaint and the elimination of her position. (City’s Mem. 9–10.)

Plaintiff argues that she has established a causal connection through temporal proximity

and through a pattern of antagonism. (Pl.’s City Opp’n 11–15.)

To sufficiently plead that a defendant-employer took an adverse employment action

“because” a plaintiff opposed an unlawful employment practice, a plaintiff “must plausibly

allege that the retaliation was a ‘but-for’ cause of the employer’s adverse action.” Vega, 801

F.3d at 90 (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013)). But-for

causation does not require that retaliation “was the only cause of the employer’s action, but only

that the adverse action would not have occurred in the absence of the retaliatory motive.” Id. at

91 (quoting Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013)); Pothen v. Stony

Brook Univ., 211 F. Supp. 3d 486, 497 (E.D.N.Y. 2016) (same)).

A causal connection of retaliation can be shown either “(1) indirectly, by showing that

the protected activity was followed closely by discriminatory treatment, or through other

circumstantial evidence such as disparate treatment of fellow employees who engaged in similar

conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by

the defendant.” Littlejohn, 795 F.3d at 319 (quoting Gordon v. N.Y.C. Bd. of Educ., 232 F.3d

111, 117 (2d Cir. 2000)); see also Terry, 336 F.3d at 152 (“Proof of such a causal connection

‘can be established “directly through evidence of retaliatory animus directed against a plaintiff,”

or “indirectly by showing that the protected activity was followed closely by discriminatory

treatment . . . such as disparate treatment of fellow employees who engaged in similar

conduct.”’” (quoting Richardson v. N.Y. State Dep’t of Corr. Serv., 180 F.3d 426, 444 (2d Cir.

1999), abrogated on other grounds, Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53

(2006))); Raniola v. Bratton, 243 F.3d 610, 625 (2d Cir. 2001) (same).

“[T]he requirement that [the plaintiff] show a causal connection between his complaints

and his termination is satisfied by the temporal proximity between the two.” Feingold, 366 F.3d

at 156–57 (collecting cases); see also Vega, 801 F.3d at 90 (“A retaliatory purpose can be shown

indirectly by timing: protected activity followed closely in time by adverse employment action.”

(first citing Cifra v. Gen. Elec. Co., 252 F.3d 205, 217 (2d Cir. 2001); and then citing Gorzynski

v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010))); Chung v. City Univ. of N.Y., 605

F. App’x 20, 23 (2d Cir. 2015) (“Ordinarily, causation may be inferred from close temporal

proximity.”). The Second Circuit has not defined “the outer limits beyond which a temporal

relationship is too attenuated to establish causation.” See Gorzynski, 596 F.3d at 110–11

(“Though [the Second Circuit] has not drawn a bright line defining, for the purposes of a prima

facie case, the outer limits beyond which a temporal relationship is too attenuated to establish

causation, [it has] previously held that five months is not too long to find the causal

relationship.”).

Where defendants are alleged to have retaliated at the first available opportunity, the

window of temporal proximity can be extended. See Grant v. Bethlehem Steel, 622 F.2d 43, 45–

46 (2d Cir. 1980) (holding that plaintiff established causal connection in Title VII retaliation case

despite an eight month lapse between the protected activity and the adverse action when the

defendant was unable to retaliate any sooner); Cronin v. St. Lawrence, No. 08-CV-6346, 2009

WL 2391861, at *5 (S.D.N.Y. Aug. 5, 2009) (in the context of First Amendment retaliation,

noting that a gap of nearly one year between protected activity and retaliatory action was

plausible because defendant “had no earlier opportunity to retaliate against [p]laintiff for

engaging in protected activity”); Blanco v. Brogan, 620 F. Supp. 2d 546, 556–57 (S.D.N.Y.

2009) (finding a causal connection for purposes of Title VII retaliation where there was a gap of

several months between the protected activity and alleged adverse actions because “police

departments generally have well-defined procedures and labor union agreements which prevent

management from taking arbitrary adverse employment actions against their employees” and “it

would have been very difficult for the [p]olice [d]epartment here to retaliate against [the]

[p]laintiff during the time period except in terms of promotion”); McKenzie v. Nicholson, No.

08-CV-773, 2009 WL 179253, at *5 n.5 (E.D.N.Y. Jan. 26, 2009) (“The Court notes, however,

that the Second Circuit has determined that an adverse action could be retaliatory in nature

despite a significant time lapse if the employer took action at the first opportunity to do so.”

(citing Grant, 622 F.3d at 45–46)). A “pattern of antagonism” over the intervening period

between protected activity and retaliatory treatment may also demonstrate the requisite causal

connection. Duplan, 888 F.3d at 626 (considering “the facts as a whole” in Title VII retaliation

case); see Maxton v. Underwriter Labs. Inc., 4 F. Supp. 3d 534, 548 (E.D.N.Y. 2014)

(“According to some courts, a plaintiff may also demonstrate a causal connection by showing a

‘pattern of antagonism’ over the intervening period.” (quoting Chan v. NYU Downtown Hosp.,

No. 03-CV-3003, 2004 WL 213024, at *3 (S.D.N.Y. Feb. 3, 2004))); Curcio v. Roosevelt Union

Free Sch. Dist., No. 10-CV-5612, 2012 WL 3646935, at *14 (E.D.N.Y. Aug. 22, 2012) (same).

On October 15, 2019, Plaintiff sent a letter to a City personnel officer detailing the

alleged mistreatment and alleging that the treatment was based on “gender bias,” (Compl. ¶ 64),

and within approximately one month at the November 2019 meeting, Tenke announced that

Plaintiff would not work for the City in 2020 and that the Parks Department would be folded into

the DPW, (id. ¶ 80). These facts plausibly allege “temporal proximity between” the October

2019 letter and November 2019 announcement and sufficiently establish a causal connection

between Plaintiff’s complaints and her threat of termination in November of 2019, which led to

her eventual termination in January of 2021. Feingold, 366 F.3d at 156–57.

Moreover, although the announcement of Plaintiff’s termination in October of 2020,

(Compl. ¶¶ 101, 103), was a year after Plaintiff’s October 2019 letter detailing her alleged

mistreatment, and ordinarily would not support a finding of temporal proximity sufficient to

establish causation, because there is evidence of a “pattern of antagonism” against Plaintiff over

the intervening period, including the City’s “stripping” her of responsibilities between the

November 2019 meeting and October of 2020 City Council meeting where Plaintiff’s position

was ultimately eliminated, (Compl. ¶ 83); Plaintiff being told that one of her employees

responsible for a major department project was being reassigned to the DPW, (id. ¶ 84); and

Plaintiff’s exclusion from a vendor meeting concerning contamination at one of the beaches

under her supervision and demands from DPW employees that Plaintiff had to turn over her files

concerning the contamination project, (id. ¶¶ 85–86), the prolonged period does support a

finding of temporal proximity. Duplan, 888 F.3d at 626; see Reppert v. N.Y. State Dep’t of State,

No. 19-CV-1518, 2021 WL 3165210, at *12 (N.D.N.Y. July 26, 2021) (finding that despite a gap

of seventeen months between protected activity and adverse action, “evidence of an intervening

pattern of antagonism” supported causality for purposes of the plaintiff’s retaliation claim

(quoting Chan, 2004 WL 213024, at *3)); Maxton, 4 F. Supp. 3d at 548 (finding that a pattern of

antagonistic actions over a period culminating in adverse action can constitute causal connection

for retaliation purposes). Thus, Plaintiff has sufficiently alleged temporal proximity to establish

a causal connection between her complaint to the City’s personnel officer, the threat to terminate

her, and her actual termination.

Accordingly, viewing Plaintiff’s allegations in their totality, Plaintiff sufficiently alleges

that she was subjected to retaliation under Title VII.

d. NYSHRL hostile work environment and retaliation claims against Tenke

Tenke argues that the Court must dismiss Plaintiff’s NYSHRL hostile work environment

and retaliation claims against him because Plaintiff fails to plausibly allege an underlying

violation, and therefore, there can be no aiding or abetting. (Tenke’s Mem. at 12–13.)

Plaintiff does not address Tenke’s aiding and abetting argument, (see generally Pl.’s

Tenke Opp’n), but alleges in the Complaint that he subjected her to inferior terms and conditions

of employment based on her gender and took adverse employment actions against her because of

her complaints of workplace discrimination based on gender, (Compl. ¶¶ 124, 127).

In order for a defendant to be liable as an aider and abettor under section 296(6), a

plaintiff must first establish the existence of a primary violation of the NYSHRL by an employer

or principal. See Kelly G. v. Bd. of Educ. of City of Yonkers, 952 N.Y.S.2d 229, 232 (App. Div.

2012); Strauss v. N.Y. State Dep’t of Educ., 805 N.Y.S.2d 704, 709 (App. Div. 2005); Forrest v.

Jewish Guild for the Blind, 786 N.Y.S.2d 382, 397 (2004); Baldwin v. Bank of Am., N.A., 984

N.Y.S.2d 630 (N.Y. Sup. Ct. 2013); see also Benson v. Otis Elevator Co., 557 F. App’x 74, 77

(2d Cir. 2014); Falbaum v. Pomerantz, 19 F. App’x 10, 15 (2d Cir. 2001); Day v. MTA N.Y.C.

Trans. Auth., No. 17-CV-7270, 2021 WL 4481155, at *14 (S.D.N.Y. Sept. 30, 2021)

(“[L]iability must first be established as to the employer/principal before accessorial liability can

be found as to an alleged aider and abettor.” (alteration in original) (quoting Jain v. McGraw-Hill

Cos., Inc., 827 F. Supp. 2d 272, 277 (S.D.N.Y. 2011))); Mereigh v. N.Y. & Presbyterian Hosp.,

No. 16-CV-5583, 2017 WL 5195236, at *7 n.11 (S.D.N.Y. Nov. 9, 2017); Irons v. Bedford–

Stuyvesant Cmty. Legal Servs., No. 13-CV-4467, 2015 WL 5692860, at *32 (E.D.N.Y. Sept. 28,

2015); White v. Pacifica Found., 973 F. Supp. 2d 363, 378 (S.D.N.Y. 2013). This principle

applies even when the defendants are entities. See Francis v. Kings Park Manor, Inc., 91 F.

Supp. 3d 420, 434 (E.D.N.Y. 2015) (“Under [section] 296(6), an individual or entity must

‘actually participate[] in the conduct giving rise to a discrimination claim’ to be held liable.”

(quoting DiPilato v. 7–Eleven, Inc., 662 F. Supp. 2d 333, 353 (S.D.N.Y. 2009))).

Plaintiff brings NYSHRL claims against Tenke, but fails to allege a NYSHRL claim

against the City. (See Compl. ¶¶ 124, 127.) Thus, Plaintiff has failed to establish the existence

of a primary violation of the NYSHRL by an employer, and therefore her claims against Tenke

fail. See Forrest, 786 N.Y.S.2d at 395 (dismissing a claim against an individual for violation of

NYSHRL where plaintiff failed to allege violations against entity); see also McHenry v. Fox

News Network, LLC, 510 F. Supp. 3d 51, 74 (S.D.N.Y. 2020) (finding that the plaintiff

adequately pled a claim for aiding and abetting sexual harassment against the individual

defendant by pleading claims of sexual harassment against the defendant corporate entity as

principal); France v. Touro Coll., No. 14-CV-4613, 2016 WL 1105400, at *9 (E.D.N.Y. Feb. 16,

2016) (“[I]ndividual liability under the NYSHRL cannot attach without corresponding liability

for the employer enterprise.”), report and recommendation adopted, 2016 WL 1117459

(E.D.N.Y. Mar. 21, 2016).

Accordingly, the Court grants Tenke’s motion and dismisses Plaintiff’s NYSHRL hostile

work environment and retaliation claims against him.9

e. Section 1983 claims against both Defendants

Plaintiff brings First Amendment retaliation claims against Tenke and the City, a

Fourteenth Amendment hostile work environment claim against both Tenke and the City, and a

Fourteenth Amendment retaliation claim against Tenke,10 all pursuant to section 1983. (Compl.

¶¶ 115–20, 122–23, 126.)

Defendants seek to dismiss all of Plaintiff’s section 1983 claims. (City’s Mem. 16–19.)

Under section 1983, individuals may bring a private cause of action against persons

acting “under color of state law” to recover money damages for deprivations of their federal or

constitutional rights. Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 55 (2d Cir. 2014)

(quoting 42 U.S.C. § 1983). To establish a viable section 1983 claim, a plaintiff must show “the

violation of a right secured by the Constitution and laws of the United States” and that “the

alleged deprivation was committed by a person acting under color of state law.” Vega, 801 F.3d

at 87–88; see also Collymore v. City of New York, 767 F. App’x 42, 45 (2d Cir. 2019) (quoting

Vega, 801 F.3d at 87–88).

9 Tenke argues that he is entitled to absolute immunity and qualified immunity with

respect to the abolition of Plaintiff’s job because, respectively, (1) he was acting in a legislative

capacity in proposing the budget that eliminated Plaintiff’s position, and (2) Plaintiff “failed to

allege the violation of any clearly established constitutional or statutory rights.” (Tenke’s Mem.

14–18.) Because there is no aiding and abetting liability, the Court declines to address the issue

of Tenke’s immunity arguments for the purposes of Plaintiff’s NYSHRL claims.

10 Plaintiff seeks to amend the Complaint to assert a Fourteenth Amendment retaliation

cause of action against the City, which she omitted due to an “apparent drafting oversight.” (See

Decl. of Matthew Weinick ¶ 7, Docket Entry No. 16.) The Court grants Plaintiff’s request to

amend her Complaint and file an Amended Complaint asserting the Fourteenth Amendment

retaliation claim against the City, as there is no prejudice in light of the similar section 1983

claims brought against it under Monell.

i. Tenke’s claims of legislative and qualified immunity

Tenke argues that he is entitled to legislative immunity and qualified immunity based on

the abolition of Plaintiff’s job because, respectively, (1) he was acting in a legislative capacity in

proposing the budget that eliminated Plaintiff’s position, and (2) Plaintiff “failed to allege the

violation of any clearly established constitutional or statutory rights.” (Tenke’s Mem. 14–18.)

Plaintiff argues that (1) legislative immunity cannot be used to insulate “bad actors from

unlawful employment decisions,” (Pl.’s Tenke Opp’n 9–11), and (2) qualified immunity does not

apply because Tenke violated clearly established laws, (id. at 11–13).

1. Legislative immunity

Legislative immunity shields an official from liability if the act in question was

undertaken “in the sphere of legitimate legislative activity.” Harhay v. Town of Ellington Bd. of

Educ., 323 F.3d 206, 210 (2d Cir. 2003) (quoting Bogan v. Scott–Harris, 523 U.S. 44, 54

(1998)). The Supreme Court has established that under the functional test of absolute legislative

immunity, “whether immunity attaches turns not on the official’s identity, or even on the

official’s motive or intent, but on the nature of the act in question.” Olma v. Collins, 499 F.

App’x 98, 100 (2d Cir. 2012) (quoting Almonte v. City of Long Beach, 478 F.3d 100, 106 (2d

Cir. 2007)) (citing Bogan, 523 U.S. at 54–55); see also S. Lyme Prop. Owners Ass’n, Inc. v.

Town of Old Lyme, 539 F. Supp. 2d 547, 559 (D. Conn. 2008) (“The enforcement policies may

have been flawed, and the [d]efendant [c]ommissioners may have acted in bad faith, as is alleged

by the [p]laintiffs, but legislative immunity is absolute and does not depend on these

considerations.”).

Legislative immunity covers all aspects of the legislative process, including “[m]eeting

with persons outside the legislature — such as executive officers, partisans, political interest

groups, or constituents — to discuss issues that bear on potential legislation” and “participating

in party caucuses to form a united position on matters of legislative policy [and] assist legislators

in the discharge of their legislative duty.” Almonte, 478 F.3d at 107 (concluding that “legislative

immunity cloaks not only the vote on the budgetary resolutions, but also any [secret] discussions

the [c]ouncil members may have held, and any agreements they may have made, regarding the

new budget in the months preceding the actual vote”); see also Bogan, 523 U.S. at 55 (finding

that the mayor’s introduction of budget was legislative even though the mayor was an executive

official); Olma, 499 F. App’x at 100 (holding that the appellants acted in a legislative capacity

“when they prepared and submitted to the [c]ity [c]ouncil the proposed budget amendment and

accompanying memo suggesting elimination of the position filled by [the appellee]”); Anderson

Grp., LLC v. City of Saratoga Springs, 557 F. Supp. 2d 332, 345 (N.D.N.Y. 2008) (“[T]o the

extent the board defendants partook in the [c]ouncil’s zoning decisions by voting on and issuing

zoning recommendations to the [c]ouncil, they are also entitled to legislative immunity.”), aff’d

in part sub nom. Anderson Grp., LLC v. Lenz, 336 F. App’x 21 (2d Cir. 2009).

However, legislators are not immune from suit for administrative acts. See Manzi v.

DiCarlo, 982 F. Supp. 125, 129 (E.D.N.Y. 1997). Acts are administrative if they “‘impact . . .

particular individuals rather than . . . a community,’ or [if] ‘the factors considered in adopting the

legislation relate to specific individuals, instead of general policy implications.’” Orange Lake

Assocs., Inc. v. Kirkpatrick, 21 F.3d 1214, 1219–20 (2d Cir. 1994) (quoting Orange Lake

Assocs., Inc. v. Kirkpatrick, 825 F. Supp. 1169, 1174 (S.D.N.Y. 1993)); Anderson Grp., LLC,

557 F. Supp. 2d at 345 (holding that downzoning of a region “was a purely legislative act” but

that “action[s] taken on the [plaintiff’s] special use permit by the [b]oard [were] administrative in

nature . . . [even though they] had implications for the public at large”). “[P]ersonnel decisions .

. . are administrative, and therefore not immune to liability, if they are directed at a particular

employee and do not adopt or implement a broader legislative policy.” Bierce v. Town of

Fishkill, 656 F. App’x 550, 554 (2d Cir. 2016). In Bierce, the board voted to eliminate two

positions from the police department, citing budgetary concerns, affecting “just two employees.”

Id. The Second Circuit found that the board was not entitled to legislative immunity. Id. The

Bierce court distinguished Bogan, 523 U.S. at 46–47, where the elimination of an employee’s

position “occurred as part of a larger budgetary package that proposed freezing the salaries of all

municipal employees and eliminating 135 positions.” Id.

As the Supreme Court has explained, the purpose of legislative immunity is to protect

legislators from “deterrents to the uninhibited discharge of their legislative duty, not for their

private indulgence but for the public good.” Tenney v. Brandhove, 341 U.S. 367, 377 (1951).

Consequently, when sued in their personal capacity, “[l]ocal legislators, like their counterparts

on the state and regional levels, are entitled to absolute immunity for their legislative activities.”

Almonte, 478 F.3d at 106 (citing Bogan, 523 U.S. at 49). However, local governments,

municipalities, or officials sued in their official capacity are not entitled to legislative immunity.

See Olma, 499 F. App’x at 100; Almonte, 478 F.3d at 106 (“Immunity, either absolute or

qualified, is a personal defense that is available only when officials are sued in their individual

capacities; ‘[t]he immunities [officials] enjoy when sued personally do not extend to instances

where they are sued in their official capacities.’” (alterations in original) (quoting Morris v.

Lindau, 196 F.3d 102, 111 (2d Cir. 1999), abrogated on other grounds by Lore v. City of

Syracuse, 670 F.3d 127 (2d Cir. 2012))); Goldberg v. Town of Rocky Hill, 973 F.2d 70, 73–74

(2d Cir. 1992) (explaining that an official-capacity claim is in substance a claim against the

municipality, which cannot assert immunity, either absolute or qualified, as a defense to liability

under section 1983); Cincotta v. Hempstead Union Free Sch. Dist., 313 F. Supp. 3d 386, 403

(E.D.N.Y. 2018) (stating that legislative immunity is limited to personal suits based on

legislative acts).

Tenke is not entitled to absolute legislative immunity for the claim against him in his

individual capacity. In October of 2020, Tenke told Plaintiff that he would be eliminating her

position from the 2021 budget without conferring with the City Council, and Plaintiff was the

only department head terminated. (Compl. ¶¶ 101–03.) Although Tenke asserted that layoffs

were the only solution in light of the City’s budget issues, only five other employees were

“slated for layoff,” and none of them were department heads. (Id. ¶¶ 104, 109–10.) In contrast

to the facts of Bogan, Defendants do not allege any mass freezing or the elimination of multiple

positions other than Plaintiff’s and those of five other low-level employees. Bogan, 523 U.S. at

46–47. In fact, similar to Bierce, the 2021 budget terminated only a handful of individuals.

Bierce, 656 F. App’x at 554. Further, even before Tenke’s decision to eliminate Plaintiff’s

position in October of 2020, Tenke had announced in November of 2019 that Plaintiff would not

be working for the City the following year, prior to the alleged budget crisis created by the

Covid-19 pandemic, (Compl. ¶¶ 78–80), and while there was still an “economic boom” and not

even “a hint of the coming economic stresses caused by the pandemic,” (id. ¶ 81). In view of the

fact that Tenke told Plaintiff as early as November of 2019 that she would be terminated and not

working for the City the following year and then told her on October 9, 2020 that he would be

eliminating her position from the 2021 budget before conferring with the City Council, and

because Plaintiff was the only department head whose position was eliminated, and only six

employees in total were slated for layoff, Plaintiff has plausibly alleged that Tenke’s actions

were specific to Plaintiff rather than legislative in nature. See Orange Lake Assocs., Inc., 21 F.3d

at 1219–20 (stating that legislative immunity is unavailable where legislation relates to “specific

individuals, instead of general policy implications”); cf. Lorusso v. Borer, 359 F. Supp. 2d 121,

128 (D. Conn 2005) (finding that the mayor was entitled to legislative immunity where his

recommendation of the budget “eliminate[d] an entire class of job and job title, which has

consistently been afforded absolute legislative immunity”). Further, even if Tenke acted in good

faith, what matters is the nature of the act, rather than the motive or intent of the official

performing it. See Bogan, 523 U.S. at 54–55 (holding that legislative immunity does not depend

on motive or intent); Olma, 499 F. App’x at 100 (stating that the test for determining legislative

immunity does not depend on the official’s identity, motive, or intent, but the nature of the act in

question).

Accordingly, Tenke is not entitled to legislative immunity.

2. Qualified immunity

“Qualified immunity protects government officials from civil damages liability ‘insofar

as their conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Jones v. Treubig, 963 F.3d 214, 224 (2d Cir. 2020)

(quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). “Thus, pursuant to the two-step

framework articulated by the Supreme Court in Saucier v. Katz, 533 U.S. 194 (2001), when an

official raises qualified immunity as a defense, the court must consider whether: ‘(1) . . . the

official violated a statutory or constitutional right, and (2) . . . the right was “clearly established”

at the time of the challenged conduct.’” Id. (citations omitted) (quoting Ricciuti v. Gyzenis, 834

F.3d 162, 167 (2d Cir. 2016)); see also Chamberlain ex rel. Estate of Chamberlain v. City of

White Plains, 960 F.3d 100, 110 (2d Cir. 2020) (“Qualified immunity is available to officials so

long as their actions do not violate ‘clearly established statutory or constitutional rights of which

a reasonable person would have known.’” (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982))); Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) (same). “To determine whether

defendants enjoy qualified immunity, ‘[the court] consider[s] the specificity with which a right is

defined, the existence of Supreme Court or Court of Appeals case law on the subject, and the

understanding of a reasonable officer in light of preexisting law.’” Chamberlain, 960 F.3d at

110 (quoting Terebesi v. Torreso, 764 F.3d 217, 231 (2d Cir. 2014)). “[G]overnment officials or

employees who make decisions that are discretionary, but not judicial in nature, are entitled to

qualified immunity unless there is bad faith or the action is taken without a reasonable basis.”

Sutter v. Dibello, No. 18-CV-817, 2021 WL 930459, at *35 (E.D.N.Y. Mar. 10, 2021) (quoting

Russell v. Westchester Cmty. Coll., No 16-CV-1712, 2017 WL 4326545, at *13 (S.D.N.Y. Sept.

27, 2017)); see Alhovsky v. Paul, 406 F. App’x 535, 537 (2d Cir. 2011) (“New York law . . .

grant[s] government officials qualified immunity on state-law claims except where the officials’

actions are undertaken in bad faith or without a reasonable basis.” (alterations in original));

Russell, 2017 WL 4326545, at *13 (same). Qualified immunity may only be granted at the

motion to dismiss stage if “the facts supporting the defense appear on the face of the complaint . .

. [and] ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim

that would entitle him to relief.’” McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004) (quoting

Citibank, N.A. v. K-H Corp., 968 F.2d 1489, 1484 (2d Cir. 1992)); see also Brown v. Wetz, No.

18-CV-11178, 2021 WL 964922, at *15 (S.D.N.Y. Mar. 15, 2021) (“Accordingly, it is not clear

from the face of the complaint that [defendant], who is alleged to have discriminated against [the

p]laintiff . . . , is entitled to qualified immunity.”).

Tenke is not entitled to qualified immunity. As discussed both above and further below,

the right to be free from employment discrimination and retaliation “were all clearly established

at the time Tenke acted.” (Pl.’s Tenke Opp’n 12 (citing Heffernan v. City of Paterson, 136 S.Ct.

1412, 1417–18 (2016); then citing Vega, 801 F.3d at 84; then citing Kaytor, 609 F.3d at 548–50;

and then citing Skehan v. Village of Mamaroneck, 465 F.3d 96, 106 (2d Cir. 2006)).) Because it

does not “appear[] beyond doubt that [Plaintiff] can prove no set of facts in support of [her]

claim that would entitle [her] to relief,” the Court declines to grant qualified immunity to Tenke.

McKenna, 386 F.3d at 436; see Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d

107, 130 (2d Cir. 2004) (holding that individual defendants were not entitled to qualified

immunity because it was “eminently clear” by 2001 that “individuals have a constitutional right

to be free from sex discrimination”); DiLegge v. Gleason, 131 F. Supp. 2d 520, 522 (S.D.N.Y.

2001) (finding that the right to be “free from discrimination in employment” and the right to be

free from retaliation were clearly established). The Court recognizes that although Tenke is “not

entitled to qualified immunity on the face of the complaint . . . ‘a factual basis for qualified

immunity may arise as the proceedings develop.’” Terranova v. New York, 144 F. App’x 143,

146–47 (2d Cir. 2005) (quoting Velez v. Levy, 401 F.3d 75, 101 (2d Cir. 2005)); see Brown, 2021

WL 964922, at *15 (denying motion as to qualified immunity where it was “not clear from the

face of the complaint” that defendant was entitled to qualified immunity); Dipinto v. Westchester

County, No. 18-CV-00793, 2020 WL 6135902, at *11 (S.D.N.Y. Oct. 19, 2020) (same).

Accordingly, at this stage in the proceedings, the Court denies Tenke’s motion to dismiss

based on qualified immunity.

ii. Personal involvement of Tenke

Tenke argues that Plaintiff fails to plausibly allege his personal involvement in alleged

constitutional violations and therefore all of Plaintiff’s claims brought against him under section

1983 should be dismissed. (Tenke’s Mem. 12–13.) In support, Tenke argues that while he

proposed the budget that laid off Plaintiff and others, he did not vote on the budget, and the

budget would have passed with or without his vote, as it was approved by members of the City

Council. (Id. at 12.) In addition, Tenke contends that he cannot be liable for merely proposing a

budget eliminating Plaintiff’s position, as he did not have the power to unilaterally remove

Plaintiff or refuse to reappoint her. (Tenke’s Reply 3.)

Plaintiff contends that because Tenke recommended Plaintiff’s termination, he was

involved in the deprivation of rights and thus is liable under section 1983. (Pl.’s Tenke Opp’n 8–

9.) In support, Plaintiff argues that as mayor, Tenke has authority over employment issues, and,

in any event, the City is not required to approve Tenke’s budget, since “[i]f the council does not

approve his budget by a date set by law, the budget becomes law.” (Id. at 8–9 & n.4.)

“[P]ersonal involvement of defendants in alleged constitutional deprivations is a

prerequisite to an award of damages under § 1983.” Dubois v. Beaury, No. 21-CV-2096, 2022

WL 1701497, at *4 (2d Cir. May 27, 2022) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir.

1994)); see Florence v. Seggos, No. 21-834, 2022 WL 2046078, at *3 (2d Cir. June 7, 2022)

(“To state a claim under section [1983] . . . the complaint must plausibly allege [the d]efendants’

‘personal involvement’ in the wrongful acts at issue.” (quoting Patterson v. County of Oneida,

375 F.3d 206, 229 (2d Cir. 2004))); Victory v. Pataki, 814 F.3d 47, 67 (2d Cir. 2016) (“[T]he

‘personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an

award of damages under [section] 1983.’” (quoting Farrell v. Burke, 449 F.3d 470, 484 (2d Cir.

2006)), as amended (Feb. 24, 2016). A plaintiff must allege the direct participation or personal

involvement of each of the defendants in the alleged constitutional deprivation. Farid v. Ellen,

593 F.3d 233, 249 (2d Cir. 2010); Farrell, 449 F.3d at 484 (same). As the Second Circuit has

made clear, “there is no special rule for supervisory liability,” and to find a state official liable

under section 1983, “a plaintiff must plead and prove ‘that each [g]overnment-official defendant,

through the official's own individual actions, has violated the Constitution.’” Tangreti v.

Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (quoting Iqbal, 556 U.S. at 676). Being in the

chain of command is not sufficient to satisfy personal involvement as the “violation must be

established against the supervisory official directly.” Id.; see also Falls v. (Police Officer)

Detective Michael Pitt, No. 16-CV-8863, 2021 WL 1164185, at *33 (S.D.N.Y. Mar. 26, 2021)

(“[I]n light of Tangreti, [the p]laintiff must establish that [the defendant] committed a

constitutional violation through his own conduct, rather than through his supervision of

[others].”); Hunter v. Telefore, No. 21-CV-78, 2021 WL 878745, at *3 (E.D.N.Y. Mar. 8, 2021)

(“[T]he [Second] Circuit recently held that, following the Supreme Court’s decision in Iqbal, a

plaintiff must sufficiently allege a supervisory official’s direct involvement in an alleged

constitutional violation to state an actionable claim against that official.” (emphasis in original)

(citing Tangreti, 983 F.3d at 618). Direct participation provides a basis of liability where the

defendant personally participated with “knowledge of the facts that rendered the conduct illegal.”

Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001) (footnote omitted) (citing Gaston

v. Coughlin, 249 F.3d 156, 165–66 (2d Cir. 2001)).

Plaintiff plausibly alleges that Tenke participated directly in her termination by

recommending that her position be eliminated from the budget. Tenke told Plaintiff in October

of 2020 that he would be eliminating her position from the 2021 budget without conferring with

the City Council, and even earlier, in November of 2019, had announced that Plaintiff would not

be working for the City the following year. (Compl. ¶¶ 101–02, 78, 80.) When the City Council

met and discussed Tenke’s budget in October of 2020, several members “pointed out other ways

to reduce costs” other than laying off Plaintiff and others, but Tenke rejected these alternatives.

(Id. ¶¶ 105–06.) Even if, as Tenke claims, he abstained from the voting itself, (Tenke’s Reply 3),

by proposing the budget and shaping the budgetary discussions of the City Council, Tenke

plausibly participated directly in the alleged constitutional violation, see Tangreti, 983 F.3d at

618, rather than simply being in the chain of command, id.11 Tenke’s direct involvement in

proposing the budget that terminated Plaintiff plausibly alleges that “through [his] own

individual actions,” he played a role in Plaintiff’s alleged constitutional violations. Tangreti, 983

F.3d at 618.

Construing the facts in the light most favorable to Plaintiff, Plaintiff has plausibly alleged

Tenke’s personal involvement for purposes of her section 1983 claims.

iii. First Amendment claims against Tenke and the City

Defendants contend that Plaintiff “fail[s] to state a plausible retaliation claim under the

First Amendment based on [either] her perceived political affiliation [or her] gender

discrimination complaint.” (City’s Mem. 10–15.) They argue that Plaintiff’s First Amendment

gender retaliation claim fails because (1) Plaintiff’s complaint about alleged gender

discrimination was made in her position as an employee rather than a citizen and was therefore

not protected as it pertained only to her own situation, (2) the only adverse action Plaintiff claims

is her termination, and her claims that she was excluded from meetings and had a project

reassigned are not actionable, and (3) Plaintiff fails to plausibly allege causation. (Id. at 14–15;

City’s Reply 8–9.) Defendants also argue that Plaintiff fails to sufficiently allege that she

suffered from political retaliation, because she does not allege that she “actually (or was

11 Moreover, under the Glen Cove City Charter, the mayor is required to “present to the

City Council a proposed budget for the ensuing fiscal year,” and if the City Council fails to adopt

the budget, it is the mayor’s proposed budget which is considered to be adopted. Glen Cove City

Charter § C9-6.

perceived to have) participated in any political activity.” (City’s Mem. 11; see Tenke’s Mem. 1

(“[Plaintiff’s] First Amendment political retaliation claim fails because she does not allege any

political activity or affiliation for which she was allegedly retaliated against.”).)

Plaintiff argues that because she complained of gender discrimination to the press, the

complaint was protected by the First Amendment. (Pl.’s City Opp’n 18.) In addition, Plaintiff

argues that Defendants terminated her after they formed a belief that she was “conducting

political operations against them.” (Id. at 15–20.) In support, Plaintiff contends that

“Defendants believed that Belyea’s complaint of discrimination was a political attack launched

with the assistance of a ‘known political operative,’” and believed the press release “was an

example of partisan politics” and came “directly from the campaign manager of the Republican

slate.” (Id. at 17.)

“To survive a motion to dismiss, a plaintiff claiming that he was retaliated against in

violation of the First Amendment must plausibly allege that (1) he engaged in speech or activity

that was protected by the First Amendment; (2) he suffered an adverse employment action; and

(3) a causal connection existed between the adverse action and the protected activity.” Specht v.

City of New York, 15 F.4th 594, 599–600 (2d Cir. 2021) (citing Smith v. County of Suffolk, 776

F.3d 114, 118 (2d Cir. 2015)); see Matthews v. City of New York, 779 F.3d 167, 172 (2d Cir.

2015) (quoting Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 272 (2d Cir. 2011))

(same); see also Eyshinskiy v. Kendall, 692 F. App’x 677, 677–78 (2d Cir. 2017); Singh v. City

of New York, 524 F.3d 361, 372 (2d Cir. 2008). “To establish a First Amendment retaliation

claim for political association in the public employment context, a plaintiff must show that: (1)

he was engaged in protected activity; (2) he suffered an adverse employment decision; and (3)

there was a causal connection between the protected activity and the adverse employment

decision.” Bierce, 656 F. App’x at 552; see Anemone v. Metro. Transp. Auth., 629 F.3d 97, 114

(2d Cir. 2011) (stating the three-part test for First Amendment political retaliation).

1. First Amendment retaliation claim on the basis of Plaintiff’s

gender discrimination complaint

A. Plaintiff sufficiently alleges that she engaged in

protected speech when she issued a press release

The Supreme Court has instructed courts to conduct a two-step inquiry into whether a

public employee’s speech is entitled to protection:

The first [step] requires determining whether the employee spoke as

a citizen on a matter of public concern. If the answer is no, the

employee has no First Amendment cause of action based on his or

her employer’s reaction to the speech. If the answer is yes, then the

possibility of a First Amendment claim arises. The question [then]

becomes whether the relevant government entity had an adequate

justification for treating the employee differently from any other

member of the general public.

Lane v. Franks, 573 U.S. 228, 237 (2014) (quoting Garcetti v. Ceballos, 547 U.S. 410, 418

(2006)). Thus, the First Amendment protects a public employee from retaliation by his or her

employer for the employee’s speech only if the employee speaks “[1] as a citizen [2] on a matter

of public concern.’” Singer v. Ferro, 711 F.3d 334, 339 (2d Cir. 2013) (alterations in original)

(quoting Garcetti, 547 U.S. at 418); see Specht, 15 F.4th at 600 (“The speech of a public

employee is protected by the First Amendment when the employee speaks as a citizen on a

matter of public concern, rather than pursuant to his employment responsibilities.”); Montero v.

City of Yonkers, 890 F.3d 386, 395 (2d Cir. 2018) (same); see also Eyshinskiy, 692 F. App’x at

678 (“The first inquiry encompasses two separate questions: ‘(1) whether the subject of the

employee’s speech was a matter of public concern and (2) whether the employee spoke as a

citizen rather than solely as an employee. If the answer to either question is no, that is the end of

the matter.’” (citation omitted) (quoting Matthews, 779 F.3d at 172)); Garcia v. Hartford Police

Dep’t, 706 F.3d 120, 129–30 (2d Cir. 2013) (“[T]he plaintiff must show that . . . the speech at

issue was made as a citizen on matters of public concern rather than as an employee on matters

of personal interest . . . .”); Best Payphones Inc. v. Dobrin, 410 F. Supp. 3d 457, 474 (E.D.N.Y.

2019) (same).

(1) Plaintiff’s internal complaint

Plaintiff has not sufficiently alleged that her internal letter to a City personnel officer

complaining of gender discrimination against her was made as a citizen on a matter of public

concern. Her letter “detail[ed] . . . [her] mistreatment from January [of] 2018 to [October of

2019],” and alleged that “[her] treatment was based on ‘gender bias.’” (Compl. ¶ 64.) This does

not constitute protected speech, since Plaintiff was complaining of a personal matter as an

employee. See Corrado v. N.Y. State Unified Court Sys., No. 12-CV-1748, 2014 WL 4626234,

at *10 (E.D.N.Y. Sept. 15, 2014) (“Complaints of gender discrimination in the workplace are not

matters of ‘public concern’ where they relate to a personal employment grievance.” (citing

Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 143 (2d Cir. 1993))). This internal complaint

“does not pertain to a matter of public concern” because it is “speech on a purely private matter,

such as an employee’s dissatisfaction with the conditions of [her] employment.” Sousa v. Roque,

578 F.3d 164, 174 (2d Cir. 2009) (quoting Lewis v. Cowen, 165 F.3d 154, 164 (2d Cir. 1999)).

Other than one generalized paragraph alleging a “serious and dangerous pattern” of gender

discrimination, (Compl. ¶ 65), Plaintiff does not allege that she raised other concrete instances of

general discrimination in her letter, other than her personal experiences. See Spencer v. Philemy,

540 F. App’x. 69, 70 (2d Cir. 2013) (“Among the relevant considerations is whether the speech

was calculated to redress personal grievances or whether it had a broader public purpose.”

(quoting Singer, 711 F.3d at 339)); see also MacFall v. City of Rochester, 495 F. App’x 158,

160–61 (2d Cir. 2012) (stating that speech is not protected if it is “merely ‘calculated to redress

personal grievances’” (quoting Ruotolo v. City of New York, 514 F.3d 184, 189 (2d Cir. 2008));

Peterson v. N.Y.C. Dep’t of Educ., No. 18-CV-1515, 2020 WL 2559835, at *8 (E.D.N.Y. May

20, 2020) (“[W]hile the First Amendment invests public employees with certain rights, it does

not empower them to constitutionalize [their] employee grievance[s].” (alterations in original)

(quoting Garcetti, 547 U.S. at 420)); Adams v. N.Y. State Educ. Dep’t, 705 F. Supp. 2d 298, 302–

03 (S.D.N.Y. 2010) (holding that the plaintiff’s speech was not protected where it “concerned

personal grievances”); cf. Cotarelo v. Vill. of Sleepy Hollow Police Dep’t, 460 F.3d 247, 252 (2d

Cir. 2006) (finding that the plaintiff’s letters to the police chief constituted protected activity

where plaintiff specifically detailed instances of discrimination that affected other Hispanic

officers). The fact that Plaintiff sent the letter to her employer further indicates that the letter is

not a matter of public concern. “[A] petition filed with an employer using an internal grievance

procedure in many cases will not seek to communicate to the public or to advance a political or

social point of view beyond the employment context.” Agosto v. N.Y.C. Dep’t of Educ., 982 F.3d

86, 95 (2d Cir. 2020) (quoting Borough of Duryea, Penn. v. Guarnieri, 564 U.S. 379, 398

(2011)).

Thus, Plaintiff’s internal letter was not protected speech.

(2) Plaintiff’s press release

1. Plaintiff plausibly spoke as a citizen

The Court finds it plausible that Plaintiff spoke as a citizen, rather than as a public

employee, in issuing a press release, which was issued separately from Plaintiff’s internal

complaint and spoke generally about sex discrimination in the workplace, a topic that did not fall

under the scope of Plaintiff’s employment duties. “[W]hen public employees make statements

pursuant to their official duties, the employees are not speaking as citizens for First Amendment

purposes.” Lane, 573 U.S. at 237 (quoting Garcetti, 547 U.S. at 421). “The critical question . . .

is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not

whether it merely concerns those duties.” Id. at 240.

Plaintiff’s issuance of a press release concerning sex discrimination and harassment of

female City employees, (Compl. ¶ 61), written with a former City employee and with a friend

involved in public relations, (id. ¶ 62), was not part of Plaintiff’s “employment responsibilities”

as Recreation Director, where her duties involved supervising the Parks Department, (id. ¶¶ 16,

31), staffing lifeguards for beaches, (id. ¶ 38), and renovating public facilities such as bathrooms,

(id. ¶¶ 40–42). Specht, 15 F.4th at 600. There is no indication that this was “part-and-parcel” of

Plaintiff’s ability to exercise her “official duties” as Recreation Director. Montero, 890 F.3d at

396 (quoting Weintraub v. Bd. of Educ. of City School Dist. of City of New York, 593 F.3d 196,

203 (2d Cir. 2010))).

Plaintiff therefore plausibly spoke as a citizen for purposes of First Amendment

protection when she issued a press release with a former City employee and a friend involved in

public relations.

2. Plaintiff spoke on a matter of public

concern

The Court finds it plausible that Plaintiff’s speech was made on a matter of public

concern. On October 2, 2019, Plaintiff and Clarson issued a press release concerning “ongoing

sex discrimination and harassment of female City employees.” (Compl. ¶ 61); see Bull v.

Barone, No. 03-CV-2034, 2008 WL 11491595, at *6 (D. Conn. Mar. 25, 2008) (finding that a

statement released to the public complaining about working conditions and employment policies

addressed “matters of public concern, not merely internal workplace grievances”). Plaintiff and

Clarson worked with a friend “experienced with public relations issues” to issue the press

release. (Compl. ¶ 62.)

Considering the “content, form, and context” of the press release, the Court finds that it

arguably merits constitutional protection. Connick v. Myers, 461 U.S. 138, 145–48 (1983).

Unlike the facts alleged about the internal letter, where Plaintiff “detail[ed]” her mistreatment on

the basis of gender, (id. ¶ 64), Plaintiff alleges that the press release “concern[ed] ongoing sex

discrimination and harassment of female City employees,” including Clarson, (id. ¶ 61). The

“intended audience” of Plaintiff’s October 2, 2019, press release, which was the general public,

combined with the allegations about the content of the press release, indicate that Plaintiff sought

to “inform the public on a matter of political, social, or community interest.” Specht, 15 F.4th at

601; cf. Pedrosa v. City of New York, No. 13-CV-1890, 2014 WL 99997, at *12 (S.D.N.Y. Jan.

9, 2014) (finding that the plaintiff’s complaints of workplace sexual harassment were not

protected where they “concerned only [the p]laintiff’s own situation and did not hint at broader

problems”). Further, the fact that Plaintiff later sent an individual letter to the City’s personnel

officer regarding her individual grievances also suggests that her press release was not

“calculated to redress personal grievances,” but rather, had a broader public purpose. Lewis v.

Cowen, 165 F.3d 154, 163–64 (2d Cir. 1999); see Kantha v. Blue, 262 F. Supp. 2d 90, 101

(S.D.N.Y. 2003) (“[C]omplaints concerning gender discrimination are protected if the employee

. . . sought ‘relief against pervasive or systemic misconduct by a public agency or public

officials,’ or her speech was ‘part of an overall effort . . . to correct allegedly unlawful practices

or bring them to public attention.” (quoting Yatvin v. Madison Metro. Sch. Dist., 840 F.2d 412,

420 (7th Cir. 1988))); Brennan v. Straub, 246 F. Supp. 2d 360, 366 (S.D.N.Y. 2003) (denying

motion to dismiss where plaintiff’s testimony on behalf of another female employee did not only

relate to the plaintiff’s personal grievances). Finally, Newsday reported on the story on October

17, 2019. (Compl. ¶ 70); see San Diego v. Roe, 543 U.S. 77, 83–84 (2004) (“These cases make

clear that public concern is something that is a subject of legitimate news interest; that is, a

subject of general interest and of value and concern to the public at the time of publication.”).

In view of the fact that Plaintiff spoke about “current government policies and activities,”

namely discrimination and harassment against female City employees, the Court finds that this

served as a matter of public concern and that her speech was therefore protected. Johnson v.

Ganim, 342 F.3d 105, 112 (2d Cir. 2003); Gala v. City of New York, 525 F. Supp. 3d 425, 430

(E.D.N.Y. 2021) (quoting Johnson, 342 F.3d at 112).

Accordingly, Plaintiff has sufficiently alleged that her press release was protected speech.

B. Plaintiff alleges that she suffered adverse employment

actions

In the context of a First Amendment retaliation claim, “a public employee plaintiff

alleging retaliation in violation of the First Amendment [need not] demonstrate a material change

in employment terms or conditions.” Zelnik, 464 F.3d at 227. Rather, the “standard for First

Amendment retaliation claims has always been the equivalent to the standard set forth in

Burlington Northern”— that the action would dissuade a reasonable employee from speaking

out. Id.; Specht, 15 F.4th at 604 (same). Put another way, an adverse action is one that “would

deter a similarly situated individual of ordinary firmness from exercising his or her constitutional

rights.” Nixon v. Blumenthal, 409 F. App’x 391, 392 (2d Cir. 2010); see A.S. v. City Sch. Dist. of

Albany, --- F. Supp. 3d ---, ---, 2022 WL 356697, at *14 (N.D.N.Y. 2022) (“In this context, an

‘adverse action’ is ‘conduct that would deter a similarly situated individual of ordinary firmness

from exercising his or her constitutional rights.’” (quoting Cox, 654 F.3d at 273)). Examples of

such actions include “discharge, refusal to hire, refusal to promote, demotion, reduction in pay,

and reprimand,” Frisenda v. Inc. Vill. of Malverne, 775 F. Supp. 2d 486, 510 (E.D.N.Y. 2011)

(quoting Morris, 196 F.3d at 110); see Gunn v. Bescler, No. 16-CV-6206, 2022 WL 563189, at

*9 (W.D.N.Y. Feb. 24, 2022) (“[V]ague intimations of some unspecified harm generally will not

rise to the level of adverse action for the purpose of a First Amendment retaliation claim.”

(alteration in original) (quoting Bumpus v. Canfield, 495 F. Supp. 2d 316, 326 (W.D.N.Y.

2007))). However, “lesser actions may also be considered adverse employment actions,” since

“a combination of seemingly minor incidents [can] form the basis of a constitutional retaliation

claim once they reach a critical mass.” Zelnik, 464 F.3d at 226–27 (first quoting Morris, 196

F.3d at 110; and then quoting Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002)); see Kiernan

v. Town of Southampton, 734 F. App’x 37, 41–42 (2d Cir. 2018) (“‘[L]esser actions may also be

considered adverse employment actions’ such as a negative job evaluation. Curtailment of job

responsibilities may also be adverse.” (internal citations omitted)).

Plaintiff sufficiently alleges that her termination and the threat of her termination are

adverse employment actions. Defendants do not contest that Plaintiff’s termination, which was

authorized in October of 2020 and made effective January of 2021, was an adverse action. As

discussed above in addressing Plaintiff’s Title VII retaliation claim, Tenke’s announcement at a

meeting in November of 2019 that Plaintiff would be terminated is an adverse action for the

purposes of First Amendment retaliation, as it would deter a reasonable employee from

exercising her constitutional rights and is “more disruptive than a mere inconvenience or an

alteration of job responsibilities,” particularly in light of the fact that Plaintiff was ultimately

terminated, as discussed above. Kessler, 461 F.3d at 207 (quoting Williams v. R.H. Donnelley,

Corp., 368 F.3d 123, 128 (2d Cir. 2004)).12

C. Plaintiff sufficiently alleges causation

“To permit an inference of causation, a plaintiff must show that the protected [speech]

‘was a substantial motivating factor in the adverse employment action.’” Specht, 15 F.4th at 605

(quoting Morris, 196 F.3d at 110); Kiernan, 734 F. App’x at 42 (“To demonstrate a causal

connection a plaintiff must show that the protected speech [or conduct] was a substantial

motivating factor in the adverse . . . action.” (first alteration in original) (quoting Smith, 776 F.3d

at 118)); Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 167–68 (2d Cir.

2006) (same); see also Monz v. Rocky Point Fire Dist., 519 F. App’x 724, 726 (2d Cir. 2013).

“A causal relationship can be demonstrated either indirectly by means of circumstantial

evidence, including that the protected speech was followed by adverse treatment, or by direct

evidence of animus.” Wrobel v. County of Erie, 692 F.3d 22, 32 (2d Cir. 2012); see also Specht,

15 F.4th at 605 (“A plaintiff may prove causation by, among other things, showing that the

adverse employment decision and the protected activity were close in time. We have previously

found the passage of up to six months between an adverse action and protected activity sufficient

to permit an inference of causation.” (citation omitted)); Catanzaro v. City of New York, 486 F.

App’x 899, 902 (2d Cir. 2012) (“Where a plaintiff has not alleged a specific connection between

protected speech and an adverse action, ‘causality can be shown through a close temporal

proximity between the employer’s awareness of protected conduct and the adverse action.’”

12 Defendants also argue that Plaintiff’s claims that she “was excluded from meetings

and had a project reassigned from her are not actionable.” (City’s Mem. 15.) Plaintiff, however,

only contends that termination and threats of termination were adverse actions for First

Amendment purposes, and the Court only considers these actions. (Pl.’s City Opp’n 19.)

(quoting Nagle v. Marron, 663 F.3d 100, 110 (2d Cir. 2011))); Monz v. Rocky Point Fire Dist.,

853 F. Supp. 2d 277, 288 (E.D.N.Y. 2012) (holding that a plaintiff can establish a causal

connection that suggests retaliation by showing that the protected activity was close in time to

the adverse action, and “[t]here is no ‘bright line to define the outer limits beyond which a

temporal relationship is too attenuated to establish a causal relationship,’ and a court must

‘exercise its judgment about the permissible inferences that can be drawn from temporal

proximity in the context of each particular case’” (alterations and citations omitted) (first

quoting Gorman–Bakos v. Cornell Coop. Extension, 252 F.3d 545, 554 (2d Cir. 2001); and then

quoting Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009))); see also Callahan v. Hum. Res.,

No. 20-CV-1881, 2022 WL 445819, at *2 (D. Conn. Feb. 14, 2022) (“[A plaintiff] can meet her

burden by alleging either direct evidence of retaliation, or indirect evidence that the adverse

employment decision and the protected activity were close in time.”). However, a plaintiff

cannot solely “rely on conclusory assertions of retaliatory motive to satisfy the causal

link.” Cobb v. Pozzi, 363 F.3d 89, 108 (2d Cir. 2004); see also Whitfield v. Imperatrice, 477 F.

App’x. 806, 809 (2d Cir. 2012) (finding causal connection not demonstrated for purposes

of First Amendment retaliation claim where plaintiff relied “solely on his own speculation,

which is insufficient to defeat a summary judgment motion” (citing Davis v. New York, 316 F.3d

93, 100 (2d Cir. 2002))).

As discussed above in relation to Plaintiff’s Title VII retaliation claims, Plaintiff has

sufficiently alleged that there is a causal connection between the press release, issued in October

of 2019, and both the threat of her termination in November of 2019 and her ultimate termination

in October of 2020 and made effective in January of 2021 due to a pattern of antagonism and the

fact that Plaintiff was laid off at the first available opportunity.13

Accordingly, the Court denies Defendants’ motions with regard to Plaintiff’s First

Amendment retaliation claims on the basis of her press release.

2. First Amendment political retaliation

“[A plaintiff’s] political retaliation claims are analyzed in the same manner as all First

Amendment retaliation claims.” Lorusso, 359 F. Supp. 2d at 130–31 (citing Konits v. Valley

Stream Cent. High Sch. Dist., 394 F.3d 121, 124 (2d Cir. 2005)). Affiliating oneself with a

political party is protected against retaliation by the First Amendment. See Elrod v. Burns, 427

U.S. 347 (1976) (ruling that political affiliations are constitutionally protected from government

retaliation); Gronowski v. Spencer, 424 F.3d 285, 292 (2d Cir. 2005) (“A public employee

generally may not be dismissed on account of her party affiliation, because such action violates

the employee’s First Amendment rights absent a showing that ‘party affiliation is an appropriate

requirement for the effective performance of the public office involved.’” (quoting Branti v.

Finkel, 445 U.S. 507, 518 (1980))); Camacho v. Brandon, 317 F.3d 153, 160–61 (2d Cir. 2003)

(differentiating the protected affiliations of low-level political employers from the unprotected

affiliations of policymakers); Kaluczky v. City of White Plains, 57 F.3d 202, 208 (2d Cir. 1995)

13 For example, Plaintiff alleges that she was “stripp[ed]” of her responsibilities.

(Compl. ¶ 83). Plaintiff also alleges that she was told that one of her employees responsible for a

major department project was reassigned to the DPW, (id. ¶ 84), that she was excluded from a

vendor meeting concerning contamination at one of the beaches under her supervision, (id. ¶ 85),

and that DPW employees demanded that Plaintiff turn over her files concerning the

contamination project, (id. ¶ 86). Further, following the start of the Covid-19 pandemic, when

the City convened a meeting across departments to discuss the City’s plan, Plaintiff was

excluded from this meeting and from the information provided at that meeting about the City’s

Covid-19 response plan even though Plaintiff’s department supervised events and sports leagues

with hundreds of participants. (Id. ¶¶ 95–97.)

(“As a general rule, public employees may not be dismissed for the exercise of their First

Amendment rights.”).

Plaintiff’s claim of political retaliation fails, as she does not allege that she has engaged

in any protected political activity. Plaintiff does not allege that she is a member of any political

party and in fact alleges that she worked “successfully” with four different administrations from

both major political parties. (Compl. ¶ 20.) Plaintiff argues that Defendants “believed that [her]

complaint of discrimination was a political attack launched with the assistance of a ‘known

political operative.’”14 (Pl.’s City Opp’n 17.) However, Plaintiff does not allege that this press

release was politically motivated, and although she was assisted by a Republican who had

worked with a previous Republican administration, Plaintiff does not allege any political

language in the press release, and there are no allegations that Defendants perceived her to be

affiliated with the Republican Party. Thus, Plaintiff fails to allege that she engaged in any

political activity that would warrant retaliation. See Bierce, 656 F. App’x at 551 (noting that

plaintiff alleged that he had been demoted for politically supporting the town supervisor and

supporting her reelection campaign); Rusk v. N.Y. State Thruway Auth., 37 F. Supp. 3d 578, 585

(W.D.N.Y. 2014) (“Nevertheless, there is no evidence set forth that the [p]laintiff’s political

activity or background played any role in his termination. . . . The [p]laintiff offers mere

speculation that the change in leadership . . . from Republican to Democratic served a role in his

14 Plaintiff alleges that Tenke retaliated against her because he perceived her as a

“holdover” obstructionist employee. (Compl. ¶ 116.) However, Plaintiff does not allege that

Tenke referred to her as a holdover, but instead used the term to refer to the “City controller’s

office, still headed by Clarson [in July of 2019].” (Id. ¶¶ 51–52.) Plaintiff also alleges that a

Councilwoman made comments that the press release was “another example of partisan politics”

and that the press release came “directly from the campaign manager of the Republican slate.”

(Id. ¶ 71.) However, this does not support Plaintiff’s claim against Tenke or the City,

particularly in view of the fact that the Councilwoman is not a Defendant to this suit and Plaintiff

does not allege that the Councilwoman voted for the budget in question.

termination.”) (dismissing plaintiff’s political retaliation claim under section 1983); Bearss v.

Wilson, No. 08-CV-248, 2010 WL 11523749, at *9 n.2 (D. Vt. Aug. 10, 2010) (“Even assuming

these statements [in which the defendant alleged that the plaintiff was a ‘political insider,’ among

others] were made . . . , they do not demonstrate that [the plaintiff] engaged in political affiliation

worthy of First Amendment protection; nor are they sufficient to support [the plaintiff’s] claim

that [the defendant] viewed her as a political foe and attempted to terminate her as a result of

such view.”); cf. Lorusso, 359 F. Supp. 2d at 131 (finding that the plaintiff’s speech was a matter

of public concern “because the right to vote for [a] candidate of your choosing without fear of

reprisal is a protected First Amendment right that implicates fundamental freedoms”).

Plaintiff’s reliance on Heffernan, 578 U.S. at 266, and Morin v. Tormey, 626 F.3d 40, 42

(2d Cir. 2010) is misplaced. (See Pl.’s City Opp’n 16.) In Heffernan, 578 U.S. at 268, an

employee was demoted because a government official incorrectly believed that the employee had

supported a particular candidate for mayor, a clearly political act. As the Supreme Court found,

the “Constitution prohibits a government employer from discharging or demoting an employee

because the employee supports a particular political candidate.” Id. at 270. In Morin, the state

judge defendant demanded that plaintiff, a clerk in the New York State Unified Court System,

“provide negative information about [the Democratic candidate for state supreme court justice]”

and emphasized that the Democratic candidate was running against “good Republican friends” of

his. 626 F.3d at 42. The defendant also asked the plaintiff whether she “was a good

Republican.” Id. The court found that the plaintiff’s refusal to “spy on judges during a judicial

election” and “engage in political activity involving the courts,” which led to her being fired, was

political activity in light of the defendant’s clear political aims and demand for political loyalty.

Id. at 44.

The Heffernan court ruled that even though the employer had made a mistake about the

employee’s actual political affiliations, he could still bring a First Amendment retaliation claim

based on how their perceptions affected him. 578 U.S. at 273. Notably, the Supreme Court

assumed that the “activities that [the employee’s] supervisors thought he had engaged in are of a

kind that they cannot constitutionally prohibit or punish,” namely joining, working for, or

contributing to a political party or candidate. Heffernan, 578 U.S. at 270. The press release

issued by Plaintiff regarding gender discrimination, while protected speech as discussed above, is

not protected political activity. See Pulizotto v. McMahon, 406 F. Supp. 3d 277, 296 (S.D.N.Y.

2019) (finding the plaintiff’s reliance on Heffernan misplaced because the “protected activity in

Heffernan was picking up a political campaign sign, or ‘joining, working for or contributing to

the political party and candidates,’” and while the plaintiff’s activities were “speculated” to be

motivated by political affiliation, such speculation did not turn the activities into political

activities). In addition, Plaintiff does not allege any demands for party loyalty or overt political

demands, as in Morin. Further, while the court in Morin ruled that the “right to be free from

retaliation based on political affiliation is not limited to members of an opposing political party,”

the plaintiff in that case “asserted her right not to be pressed into political activity,” which does

not mirror the facts that Plaintiff alleges. Id. at 44. These cases provide no support for

Plaintiff’s claim.

Accordingly, the Court grants Defendants’ motions as to Plaintiff’s First Amendment

political retaliation claim.

iv. Fourteenth Amendment claims15

The City argues that Plaintiff’s Fourteenth Amendment hostile work environment and

retaliation claims are pre-empted by Plaintiff’s Title VII claims because they are based only on

the alleged violations of Title VII. (City’s Mem. 4–5.)

Plaintiff argues that her claims are not duplicative of her Title VII claims. (Pl.’s City

Opp’n at 6.)

“A [section] 1983 action may not . . . be brought to vindicate rights conferred only by a

statute that contains its own structure for private enforcement, such as Title VII.” Patterson, 375

F.3d at 225 (citing Saulpaugh, 4 F.3d at 143); see also Williams v. Pa. Hum. Rels. Comm’n, 870

F.3d 294, 300 (3d Cir. 2017) (“[E]very circuit to consider this exact question has held that, while

a plaintiff may use [section] 1983 ‘as a vehicle for vindicating rights independently conferred by

the Constitution,’ Title VII . . . statutory rights cannot be vindicated through [section] 1983.”

(footnote omitted)); Urli v. Town of Hempstead Sanitary Dist. No. 7, No. 20-CV-0960, 2021 WL

4311141, at *6 (E.D.N.Y. Sept. 22, 2021) (“Section 1983 may not be used to enforce Title

VII.”); Rivera v. Bd. of Educ. of City Sch. Dist. of City of N.Y., No. 19-CV-11624, 2020 WL

7496282, at *4 (S.D.N.Y. Dec. 21, 2020) (quoting Patterson, 375 F.3d at 225) (same). However,

a Title VII plaintiff is not precluded from bringing a “concurrent [section] 1983 cause of action,”

such as a claim for denial of equal protection, as long as the section 1983 claim is based on a

“distinct violation of a constitutional right.” Patterson, 374 F.3d at 225 (first quoting Gierlinger

v. N.Y. State Police, 15 F.3d 32, 34 (2d Cir. 1994); and then citing Saulpaugh, 4 F.3d at 143).

15 Other than arguing that he is entitled to immunity, as discussed above, Tenke does not

address Plaintiff’s Fourteenth Amendment claims against him. (See generally Tenke’s Mem.)

The Court therefore only addresses the City’s motion as to this claim.

Plaintiff brings a section 1983 claim to vindicate her rights under the Fourteenth

Amendment but does not allege in the Complaint whether she brings an equal protection

violation or a due process violation, thus failing to plead a “distinct” violation of a constitutional

right. Cf. Saulpaugh, 4 F.3d at 143–44 (“[The Plaintiff] has properly grounded a [s]ection 1983

claim on the Equal Protection Clause . . .”); Gierlinger, 15 F.3d at 34 (“For example, in some

circumstances a [section] 1983 claim may be properly grounded on a violation of the Equal

Protection Clause of the Fourteenth Amendment based on sexual harassment in the workplace.”);

Rivera, 2020 WL 7496282, at *4 (“Plaintiff asserts four claims, all for alleged violations of the

Equal Protection Clause of the Fourteenth Amendment brought pursuant to [section] 1983.”).

Plaintiff states in her opposition paper that her “equal protection rights” under the Fourteenth

Amendment were violated, but does not plead this in her Complaint, or allege any accompanying

facts. (Pl.’s Tenke Opp’n 12; see Pl.’s City Opp’n 5.)

Accordingly, the Court grants the City’s motion and dismisses without prejudice

Plaintiff’s section 1983 claims brought under the Fourteenth Amendment.

v. The City’s Monell liability

The City contends that Plaintiff fails to allege a section 1983 claim against it because she

fails to plausibly state an underlying violation and fails to allege the actions of any final

policymaking officials that resulted in her rights being violated. (City’s Mem. 16–19.)

Plaintiff argues that the City is liable because the City could not have voted “absent

Tenke’s acts,” making him a final policymaker, and the City itself acted through the acts of the

City Council. (Pl.’s City Opp’n 20–23.)

To establish a municipal liability claim, a plaintiff is required to plead and prove three

elements: “(1) an official policy or custom that (2) cause[s] [the plaintiff] to be subjected to (3) a

denial of a constitutional right.” Torcivia v. Suffolk County, 17 F.4th 342, 354–55 (2d Cir. 2021)

(quoting Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007)); Lucente v. County of

Suffolk, 980 F.3d 284, 297 (2d Cir. 2020) (same); see also Frost v. N.Y.C. Police Dep’t, 980 F.3d

231, 257 (2d Cir. 2020) (“To establish liability under Monell, a plaintiff must show that he

suffered the denial of a constitutional right that was caused by an official municipal policy or

custom.” (quoting Bellamy v. City of New York, 914 F.3d 727, 756 (2d Cir. 2019))). A plaintiff

can establish an official policy or custom by showing any of the following: (1) a formal policy

officially endorsed by the municipality; (2) actions or decisions made by municipal officials with

decision-making authority; (3) a practice so persistent and widespread that it constitutes a custom

of which policymakers must have been aware; or (4) a failure by policymakers to properly train

or supervise their subordinates, such that the policymakers exercised “deliberate indifference” to

the rights of the plaintiff and others encountering those subordinates. McLennon v. City of New

York, 171 F. Supp. 3d 69, 94 (E.D.N.Y. 2016); see O’Kane v. Plainedge Union Free Sch. Dist.,

827 F. App’x 141, 142–43 (2d Cir. 2020) (finding that failure to “take appropriate action to

prevent or sanction violations of constitutional rights” amounts to deliberate indifference

(quoting Jones v. Town of East Haven, 691 F.3d 72, 81 (2d Cir. 2012))); Iacovangelo v. Corr.

Med. Care, Inc., 624 F. App’x 10, 13–14 (2d Cir. 2015) (formal policy officially endorsed by the

municipality); Matusick, 757 F.3d at 62 (widespread and persistent practice); Carter v. Inc. Vill.

of Ocean Beach, 759 F.3d 159, 164 (2d Cir. 2014) (failure to train amounting to deliberate

indifference); Jones, 691 F.3d at 81 (policymaking official’s “express” or “tacit” ratification of

low-level employee’s actions).

“In order to prevail against a municipality based on the acts of a public official, a § 1983

plaintiff must prove, inter alia, that the constitutional injury was caused ‘pursuant to official

municipal policy of some nature,’ or by a municipal policymaker with ‘final policymaking

power’ over the challenged action.” Massena v. Bronstein, 545 F. App’x 53, 55 (2d Cir. 2013)

(citations omitted) (first quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978); and

then quoting Roe v. City of Waterbury, 542 F.3d 31, 37 (2d Cir. 2008)); see also Hines v. Albany

Police Dep’t, 520 F. App’x 5, 7 (2d Cir. 2013) (“‘[W]here action is directed by those who

establish governmental policy, the municipality is equally responsible whether that action is to be

taken only once or to be taken repeatedly’; municipal liability, however, ‘attaches where — and

only where — a deliberate choice to follow a course of action is made from among various

alternatives by the official or officials responsible for establishing final policy with respect to the

subject matter in question.’” (alteration in original) (quoting Pembaur v. City of Cincinnati, 475

U.S. 469, 483 (1986))); Schwab v. Smalls, 435 F. App’x 37, 40 (2d Cir. 2011) (finding that

plaintiff failed to sufficiently plead Monell liability where she did “not adequately allege[] that

any of the individual defendants had final authority to establish municipal policy with respect to

the hiring and firing of District employees”); Missel v. County of Monroe, 351 F. App’x 543, 545

(2d Cir. 2009) (“To allege the existence of an affirmative municipal policy, a plaintiff must make

factual allegations that support a plausible inference that the constitutional violation took place

pursuant either to a formal course of action officially promulgated by the municipality’s

governing authority or the act of a person with policymaking authority for the municipality.”). A

plaintiff only needs to identify one action by a decisionmaker who possesses final authority to

“establish municipal policy with respect to the action ordered may deprive the plaintiff of his or

her constitutional rights.” Hu v. City of New York, 927 F.3d 81, 105 (2d Cir. 2019) (quoting

Montero, 890 F.3d at 403); see Walker v. City of New York, 974 F.2d 293, 296 (2d Cir. 1992)

(holding that “a single act” could form the “basis of municipal liability . . . [s]o long as the single

challenged act was the decision of a municipal policymaker” (citing Pembaur, 475 U.S. at 480);

Pignone v. Village of Pelham Manor, No. 10-CV-2589, 2014 WL 929805, at *3 (S.D.N.Y. Mar.

6, 2014) (“Even one act by a municipal policymaker may constitute a municipal ‘policy,’ so long

as that policymaker possessed final authority to establish municipal policy in the area at issue.”

(citing Pembaur, 475 U.S. at 481–83)); Canzoneri v. Inc. Vill. of Rockville Ctr., 986 F. Supp. 2d

194, 204 (E.D.N.Y. 2013) (“It is well settled that municipal liability may be established based on

the single acts of a municipal official with ‘final policymaking authority.’” (collecting cases)).

“The question of whether an official has final policymaking authority is a question of law.”

Massena, 545 F. App’x at 55; see Agosto, 982 F.3d at 98 (“Whether the official in question

possessed final policymaking authority is a legal question.” (citing Jeffes v. Barnes, 208 F.3d 49,

57 (2d Cir. 2000))).

For the purposes of municipal liability, Tenke’s proposed budget, which eliminated

Plaintiff’s position, was the decision of a “municipal official[] with decision-making authority”

because of his final authority throughout the budgetary process. McLennon, 171 F. Supp. 3d at

94; Iacovangelo, 624 F. App’x at 13–14; see Rookard v. Health & Hosps. Corp., 710 F.2d 41, 45

(2d Cir. 1983) (“Where an official has final authority over significant matters involving the

exercise of discretion, the choices he makes represent government policy.”). Tenke proposed the

budget and plausibly had final authority throughout the process; for example, during the budget

decision process, several council members proposed ways to reduce costs other than terminating

positions such as Plaintiff’s, but Tenke rejected those alternatives as “not viable.” (Compl. ¶

106.) Further, it was Tenke who told Plaintiff he was eliminating her position from the 2021

budget. (Id. ¶ 101.) He plausibly was a final policymaker for the 2021 budget terminating

Plaintiff’s position. See Gronowski, 424 F.3d at 296–97 (“[The mayor’s] actions undoubtedly

represent government policy. Because he has final authority over hiring and firing decisions,

which are discretionary matters, his decisions in this area constitute the municipality’s final

actions.”); Chiaravallo v. Middletown Transit Dist., No. 18-CV-1360, 2019 WL 4278937, at *9

(D. Conn. Sept. 10, 2019) (“Although the [c]ity’s [c]harter may limit [the mayor’s] authority. . .

[the plaintiff] plausibly alleges that [the mayor’s] actions circumvented any limitation on his

power . . . and therefore constituted a ‘policy’ under Section 1983.”); Festa v. Westchester Med.

Ctr. Health Network, 380 F. Supp. 3d 308, 323 (S.D.N.Y. 2019) (“[The p]laintiff alleges that she

was told [the executive officer] made the decision to terminate [the p]laintiff’s employment,

suggesting he has final authority over hiring and firing decisions. . . . At the motion-to-dismiss

stage, [the p]laintiff’s allegation that [the executive officer] has authority over firing decisions is

sufficient to assert liability for her allegedly unlawful termination.”). Thus, in crafting the 2021

budget, Tenke made “a deliberate choice . . . from among various alternatives,” Hines, 520 F.

App’x at 7, and therefore was responsible for establishing final government policy with respect

to budgetary decisions for the City, Agosto, 982 F.3d at 98. While Tenke may not have had a

vote on the proposed budgets under the City Council, (see City Charter § C2-4(E)), his itemized

budget containing the elimination of Plaintiff’s position plausibly was the “act of a person with

policymaking authority for the municipality.” Missel, 351 F. App’x at 545 (“To allege the

existence of an affirmative municipal policy, a plaintiff must make factual allegations that

support a plausible inference that the constitutional violation took place pursuant either to a

formal course of action officially promulgated by the municipality’s governing authority or the

act of a person with policymaking authority for the municipality.” (citing Vives v. City of N.Y.,

524 F.3d 346, 350 (2d Cir. 2008))).

Accordingly, Plaintiff has plausibly alleged a Monell claim and the Court therefore

denies Defendants’ motion to dismiss the claim.

f. Punitive damages

Tenke argues that the Court should strike Plaintiff’s request for punitive damages, as

Plaintiff fails to assert any facts plausibly alleging that he acted with “evil motive or intent” or

“reckless or callous indifference.” (Tenke’s Mem. 18 (quoting Ehrlich v. Town of Glastonbury,

348 F.3d 48, 52 (2d Cir. 2003)).) The City argues that as a government entity, it is immune from

punitive damages. (City’s Mem. 19.)

Plaintiff argues that punitive damages should not be dismissed on a motion to dismiss.

(Pl.’s Tenke Opp’n 13.)

Because punitive damages are a form of damages, and not an independent cause of

action, a motion to dismiss a prayer for relief in the form of punitive damages is “procedurally

premature.” Jones v. City of New York, No. 18-CV-1937, 2020 WL 1644009, at *17 (S.D.N.Y.

Apr. 2, 2020) (quoting Farina v. Metro. Transp. Auth., 409 F. Supp. 3d 173, 220 (S.D.N.Y.

2019)) (denying defendants’ motion to dismiss plaintiff’s request for punitive damages on the

grounds that a motion to dismiss is addressed to a claim and not to a form of damages); see

Bernardi v. N.Y. State Dep’t of Corr., No. 19-CV-11867, 2021 WL 1999159, at *14 (S.D.N.Y.

May 19, 2021) (denying motion to dismiss as premature with respect to plaintiff’s punitive

damages claims).

The Court therefore denies Defendants’ motion with respect to Plaintiff’s punitive

damages claim.

III. Conclusion

For the foregoing reasons, the Court grants in part and denies in part Defendants’ motions

to dismiss. The Court dismisses Plaintiff’s NYSHRL claim against Tenke, First Amendment

political retaliation claim against Tenke and the City, and Fourteenth Amendment claims against

the City, without prejudice. The Court denies Defendants’ motions with respect to Plaintiff’s

Title VII retaliation and hostile work environment claims against the City and First Amendment

retaliation claim brought under section 1983 against Tenke and the City on the basis of her

gender discrimination complaint. The Court also denies Defendants’ motion with respect to

Plaintiff’s punitive damages claim. The Court grants Plaintiff’s request to amend her Complaint

to include a Fourteenth Amendment retaliation claim against the City.

Dated: August 22, 2022

Brooklyn, New York

SO ORDERED:

s/ MKB

MARGO K. BRODIE

United States District Judge