Dobroff v. Hempstead Union Free School District

UNITED STATES DISTRICT COURT For Online Publication Only

EASTERN DISTRICT OF NEW YORK

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LAWRENCE DOBROFF,

Plaintiff,

-against- MEMORANDUM & ORDER

21-CV-1567(JMA)(ST)

HEMPSTEAD UNION FREE SCHOOL

DISTRICT, HEMPSTEAD UNION FREE SCHOOL

DISTRICT BOARD, RANDY STITH,

individually and in his official capacity, and

REGINA ARMSTRONG, individually and in her

official capacity,

Defendants.

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APPEARANCES:

For Plaintiff:

Law Office of Alan J. Sasson

2012 Avenue Z, Suite 201

Brooklyn, New York 11235

By: Jonathan A. Tand, Esq.

For Defendant:

The Scher Law Firm

One Old Country Road, Suite 385

Carle Place, New York 11514

By: Austin Graff, Esq.

AZRACK, United States District Judge:

Plaintiff Lawrence Dobroff ("Plaintiff") originally commenced this action

against the Hempstead Union Free School District (the "District"), the Hempstead

Union Free School District School Board (the "Board "), Randy Stith ("Stith") and

Regina Armstrong ("Armstrong") (collectively "Defendants"), asserting claims

pursuant to 42 U.S.C. § 1983 for religious discrimination1 and violation of his

Fourteenth Amendment right to equal protection. Presently before the Court are

Defendants' unopposed motion to dismiss the amended complaint and Plaintiff's later

filed motion for leave to file a second amended complaint. For the reasons set forth

below, the motion to dismiss is granted and the motion to amend is denied.

I. PROCEDURAL BACKGROUND

Plaintiff commenced this action on March 24, 2021, with the filing of the

complaint.2 An amended complaint was then filed on May 25, 2021. By letter filed

May 28, 2021, Defendants sought a pre-motion conference for their proposed motion

to dismiss. By Order dated June 14, 2021, a briefing schedule for Defendants'

proposed motion was set with the fully briefed motion to be filed on August 30, 2021.

Thereafter, Plaintiff sought two extensions of time to file his opposition papers.

As a result, opposition papers were due on October 7, 2021. On October 7, 2021,

Plaintiff filed a letter stating that in an effort to resolve the issues raised in

Defendants' motion to dismiss, he intends to move for leave to file a second amended

1 Although both the original complaint (DE 1) and the amended complaint (DE 11)

caption the first cause of action as one for 'racial discrimination" the allegation in the

ensuing paragraph in both documents state that " Defendants subjected Plaintiff to

disparate treatment on the basis of his religion, unlawfully discriminating against

Plaintiff in the terms and conditions of his employment on the basis of his religion

and retaliated against Plaintiff in violation of 42 U.S.C. § 1983." DE 1 at ¶ 21,

DE 11 at ¶ 21

2 The Court notes parenthetically that in an earlier filed action commenced on

September 15, 2020, Plaintiff asserted a Title VII racial discrimination claim and a

§1983 equal protection claim against the Board, Stith and Armstrong (E.D.N.Y. Civil

Action No. 20-4312) based on a number of the same factual allegations made in this

action. After Defendants sought leave to file a motion to dismiss, the parties

stipulated to a dismissal without prejudice.

complaint and sought, with Defendants' consent, permission to file his moving papers

in three weeks. In response, the Court set a briefing schedule for the motion to amend

but stated that " the motion-to-amend briefing schedule does not affect the briefing

schedule order for Defendants' motion to dismiss. That is to say, the motion-to-

dismiss briefing schedule remains in place."

Plaintiff having failed to serve opposition papers to the motion to dismiss,

Defendants filed their unopposed motion to dismiss on October 21, 2021. Thereafter,

on January 6, 2022, the fully briefed motion for leave to file the second amended

complaint was filed.3

II. FORMAT OF THIS DECISION

Given that Plaintiff sought to file a second amended complaint in order to

resolve the issues raised in the motion to dismiss, as well as his failure to oppose

Defendants' motion to dismiss the amended complaint, the Court shall begin with

Plaintiff's motion for leave to file his proposed second amended complaint.

III. FACTUAL BACKGROUND

The following allegations are taken from the proposed second amended

complaint ("PSAC").

Plaintiff was hired by the District as Assistant Superintendent of Business and

Operations on July 27, 2017, by then Superintendent Shimon Waronker

("Waronker"). As such, he was responsible for "all things finance, managing facilities,

food services, transportation etc." Plaintiff did not have any contract with the District,

3 If one considers the earlier dismissed action, the proposed second amended

complaint is Plaintiff's fourth attempt at pleading a plausible claim.

a claimed "violation of the State Controller's guidelines," but neither did any of the

other Assistant Superintendents employed by the District. His first day of work was

August 1, 2017. Waronker knew Plaintiff was a "white male Jewish person" and

"others within Defendants' employ quickly learned that Plaintiff was Jewish and

Plaintiff, did, at times, wear a yarmulke." (PSAC ¶¶ 27-32.)

"At the first or second school board meeting attended by Plaintiff, he witnessed

constituents making numerous anti-Semitic comments about Waronker, saying 'Jews

don't belong,' 'we don't want Jews here' and other such comments." "The anti -Semitic

remarks occurred at all board meeting" but the Board "did nothing to stop or dissuade

the torrent of anti-Semitic remarks." Stith, a member of the Board, "addressed and

encouraged anti-Semitic comments at public meetings." (PSAC ¶¶ 33-34.)

In September 2017, at which time he knew that Plaintiff was a white Jewish

person, Stith entered Plaintiff's office and repeatedly said to Plaintiff that Waronker

"did not belong" in the district, "indicating that the fact that Waronker was white and

Jewish meant he didn't belong." During that same period of time, "Stith made public

comments inclusive of talking about how the superintendent had this meeting on a

Sunday which was his sabbath and why did [sic] they have it on a Saturday." Stith

stated "That's your Sabbath, and I don't care about your Sabbath." In response there

were "anti-Semitic comments in the audience that received no admonition or response

from Defendants." (PSAC ¶¶ 39-42, 48-52.)

In October 2017 Jack Bierworth ("Bierworth") was appointed by the

Commissioner of Education to oversee the District. Bierworth waited for Waronker

to be out of the district for religious reasons and "then held a meeting to undermine

Waronker." Bierworth also began having meetings with BOCES and others about the

business department and intentionally leaving Plaintiff out of the meetings despite

Plaintiff being in charge of these affairs for the District. "He did this because of

Plaintiff's Jewish faith." (PSAC ¶¶ 53-56.)

"Things got markedly worse in November 2017" when "Lamont Johnson

[("Johnson")] was added" to the Board. With the addition of Johnson, "the Board

immediately set out to remove Waronker and all parties hired by Waronker."

Shortly thereafter, during the first week of January 2018, "new policies began

to be published by the Board to eliminate Waronker." Plaintiff attended the January

9, 2018 Board meeting where Waronker was placed on administrative leave. At that

meeting, the Board "attacked Waronker for not being present for an incident

involving a burst pipe on December 30, 2017 despite knowing he was out due to his

Jewish faith." (PSAC ¶¶ 62-64.)

With Waronker gone, Stith turned his focus to Plaintiff. In January 2018,

Stith sent emails to Plaintiff stating “we are watching you.” (PSAC ¶ 69.) Plaintiff

“responded” to Stith’s emails by bringing to “Stith’s attention his” alleged “anti-

semitic responses” from the January 9, 2018 board meeting. ( )

Plaintiff also alleges that he sent electronic mailings to Defendants “in

January 2018 . . . protesting the discriminatory remarks made against Jews.”

(Amended Compl. ¶ 65.) The PSAC, however, is vague about the timing of these

communications and does not allege that any of these communications occurred prior

to Stith’s “we are watching you” comment.

"Plaintiff unnerved by Stith's behavior, sent a complaint to Mary Ellen Elia,

the New York State Commissioner of Education about Stith's behavior on or about

February 12, 2018."Plaintiff alleges that Defendants became aware of the contents of

the letter, "prior to Plaintiff's writing of the letter by either bearing witness to the

discrimination or speaking to Plaintiff . . . ." (PSAC ¶¶ 66-69, 77-78.)

"While Plaintiff was out due to blood pressure issues, Stith entered Plaintiff's

office building with a security guard and had the treasurer Luz Valentin escorted

out." When Plaintiff returned the District's special counsel was waiting for Plaintiff

to discuss Stith's anti-Semitic remarks. (PSAC ¶¶ 86-88.)

The Friday of the last week in February 2018, "the District interrogated

Plaintiff about his competence to perform his job, blaming him for things outside his

control and that happened prior to his time in the District. Plaintiff excused himself

and went to his doctor because his blood pressure was causing problems." Plaintiff

was then put on administrative leave on March 5, 2018 "and banned from doing his

job." On April 19, 2018, the Board decided to terminate Plaintiff effective on or about

May 21, 2018. "Plaintiff protested the adverse employment actions taken against him

were the result of intentional discrimination by Stith and the Defendants,

individually and collectively, who were complicit if not participated in the animus

Stith demonstrated and encouraged within the District and publicly throughout the

constituency of the District." On May 28, 2018 Plaintiff was officially terminated by

the District. (PSAC ¶¶ 86-94.)4

Plaintiff asserts the following causes of action: (1) racial discrimination, hostile

work/ hostile education environment; (2) racial discrimination pursuant to 42 U.S.C.

§ 1985 and 1986; (3) racial discrimination pursuant to 42 U.S.C. § 1981; (4) equal

protection pursuant to 42 U.S.C. § 1983; and (5) "Direct participation and aiding and

abetting of individual defendants" pursuant to 42 U.S.C. § 1983.

IV. Relevant Standards

A. Motion to Amend

Federal Rule of Civil Procedure 15(a) provides, in pertinent part, that leave to

amend “shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a). A motion

to amend may properly be denied on the grounds of undue delay, bad faith or dilatory

motive, repeated failure to cure deficiencies by amendments previously allowed,

undue prejudice to the opposing party by virtue of the allowance of the amendment,

or futility of the proposed amendment.

., 162 F.3d 63, 69 (2d Cir. 1998) (quoting , 371 U.S. 178,

182 (1962)). Although the decision whether to allow a party to amend its complaint

is left to the sound discretion of the district court, there must be good reason to deny

the motion. ., 47 F.3d 47, 55 (2d Cir. 1995);

., 608 F.2d

28, 42 (2d Cir. 1979).

4 The Court notes that absent from the complaint are allegations as to the race or

religion of any of the Defendants.

“One appropriate basis for evaluating the productivity of a proposed

amendment lies in the relative futility of accepting the proposed amended complaint.”

, 260 F. Supp. 2d 530, 535 (E.D.N.Y. 2003);

, 166 F.3d 45, 50 (2d Cir. 1999). If the proposed

amendment would not survive a motion to dismiss, then it is appropriately denied as

futile. , 260 F. Supp. 2d at 535 (citing

282 F.3d 83, 88 (2d Cir. 2002)).

Given the foregoing the Court will evaluate the PSAC using the standard for a

motion to dismiss.

B. Motion to Dismiss Pursuant to Rule 12(b)(6)

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),

a complaint must plead “enough facts to state a claim to relief that is plausible on its

face.” , 550 U.S. 544, 570 (2007). Facts which merely

"create[] a suspicion of legally cognizable right of action" are insufficient." . at 555.

A claim is facially plausible only “when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” , 556 U.S. 662, 678 (2009) (citing , 550

U.S. at 556).

In reviewing a motion to dismiss, the Court must accept the factual allegations

set forth in the complaint as true and draw all reasonable inferences in favor of the

plaintiff. ., 448 F.3d 518, 521 (2d Cir. 2006). “[M]ere

conclusions of law or unwarranted deductions need not be accepted.”

, 777 F. Supp. 2d 692, 703 (S.D.N.Y. 2011) (internal quotation

marks and citations omitted).

V. The Motion to Amend is Denied

A. The First Cause of Action

The first cause of action, entitled "Racial discrimination, hostile work/ hostile

education environment," references only the following bases for the cause of action:

Title VI and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a-e et seq. and

42 U.S.C. § 1983. Defendants maintain that the claim fails under both Title VI and

VII, as well as under 42 U.S.C. ¶ 1983. Plaintiff does not address Title VII and

therefor has abandoned any such claim.5

1. Hostile Education Environment

Turning then to the claim for a hostile education environment, Plaintiff

maintains that as an employee of the school district, he has stated a claim for a hostile

educational environment "pursuant to state[6] and federal law." The Court disagrees.

To the extent that this claim is premised on Title VI, the claim fails. “Title VI

prohibits intentional discrimination based on race in any program that receives

5 Alternatively, as Defendants point out, the Title VII claim, is dismissible for failing

to exhaust administrative remedies given the failure to file a charge of discrimination

with the EEOC. 790 F.3d 378, 384 (2d Cir. 2015)

("It is well established that Title VII requires a plaintiff to exhaust administrative

remedies before filing suit in federal court

, 879 F.3d 486, 489 (2d Cir. 2018) (“As a precondition to filing a Title VII claim

in federal court, a plaintiff must . . . file a timely complaint with the EEOC.”).

6 Not only does Plaintiff fail to cite any state law to support a state law claim for a

hostile educational environment, there is no such state law claim set forth in the

complaint and, therefore, it will not be considered by the Court.

federal funding.” , 306 F. Supp. 3d 532, 542 (S.D.N.Y. 2018)

(internal quotation marks and citation omitted). Title VI provides, however, that

“[n]othing contained in [it] shall be construed to authorize action under [Title VI] . . .

with respect to any employment practice of any employer . . . except where a primary

objective of the Federal financial assistance is to provide employment.” 42 U.S.C. §

2000d-3. “[T]his section essentially ‘requires a logical nexus between the use of

federal funds and the practice toward which [the] action is directed.’ ”

, 411 F. Supp. 2d 171, 175 (E.D.N.Y. 2006) (quoting

, 647 F.2d 256, 276 (2d Cir.

1981)). In the Title VI employment discrimination context, courts have construed

Section 2000d-3 as imposing “a threshold requirement . . . that the employer be the

recipient of federal funds aimed primarily at providing employment

, 647 F.2d at 276; ,

2014 WL 4716084, at *5 (S.D.N.Y. Sept. 19, 2014) (“To state a claim under Title VI,

a plaintiff must plausibly allege . . . that the federal funds have been made available

primarily for providing employment.”).

Here, the Amended Complaint simply alleges that the District is a recipient of

federal funds. This allegation fails to plead the required nexus.

, 410 F.Supp.3d 608, 625 (S.D.N.Y., 2019); , 306 F. Supp.

3d at 546 (Title VI claim dismissed because the “allegations regarding federal funding

are bare and conclusory and do not describe the federal funding the DOE received,

let alone link that funding to the students whose discrimination was the subject of

Plaintiff's complaints”). To the extent the first cause of action seeks to assert a federal

hostile educational environment claim, the motion to amend is denied.

2. Hostile Work Environment

Proceeding to the § 1983 claim for a hostile work environment, at the motion

to dismiss stage a plaintiff must "plead facts sufficient to support the conclusion that

[]he was faced with harassment . . . of such quality or quantity that a reasonable

employee would find the conditions of [his] employment altered for the worse."

, 508 F.3d 106, 113 (2d Cir. 2007) (internal quotation marks omitted).

To state a claim for a hostile work environment, “a plaintiff must plead facts

that would tend to show that the complained of conduct: (1) is objectively severe or

pervasive—that is, creates an environment that a reasonable person would find

hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives

as hostile or abusive; and (3) creates such an environment because of the plaintiff’s

[protected status].” , 508 F.3d at 113. .,

596 F.3d 93, 102 (2d Cir. 2010); , 451 F.3d 140, 149 (2d

Cir. 2006) (“Plaintiff must show not only that she subjectively perceived the

environment to be abusive, but also that the environment was objectively hostile and

abusive.”). “The incidents complained of must be more than episodic; they must be

sufficiently continuous and concerted in order to be deemed pervasive.”

, 770 F.3d 97, 114 (2d Cir. 2014); 795

F.3d 297, 321 (2d Cir. 2015) (stating that the offending incidents must be “more than

episodic” and “sufficiently continuous and concerted in order to be deemed

pervasive.”). “Isolated incidents typically do not rise to the level of a hostile work

environment unless they are ‘of sufficient severity’ to ‘alter the terms and conditions

of employment as to create such an environment.’” , 451 F.3d 140,

149 (2d Cir. 2006). To determine whether a plaintiff has suffered from a hostile work

environment, a court must consider the totality of the circumstances, including “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 an employee’s work performance.”

c., 510 U.S. at 23, 114 S. Ct. 367. “Although the presence of physical threats

or impact on job performance are relevant to finding hostile work environment, their

absence is by no means dispositive. Rather the overall severity and pervasiveness of

discriminatory conduct must be considered.” , 952 F. 3d

379, 390 (2d Cir. 2020). 375 F.3d at 227 (“Where reasonable jurors

could disagree as to whether alleged incidents of racial insensitivity or harassment

would have adversely altered the working conditions of a reasonable employee, the

issue of whether a hostile work environment existed may not properly be decided as

a matter of law.”). There must be a link between the actions by defendants and

plaintiff's membership in a protected class. 294 F.3d 365, 374 (2d

Cir. 2002); , 257 F.3d 246, 252 (2d Cir. 2001).

The allegations of the PSAC are insufficient to support a hostile work

environment claim. Putting aside all of the conclusory allegations, the complaint

contains only the following specifics: (1) anti-Semitic constituent remarks at board

meetings attended by Plaintiff which Stith "encouraged" (in an unspecified manner);

(2) Stith telling Plaintiff that Waronker "did not belong" in the District; (3) Stith's

comments in September 2017 about not caring about Waronker’s Sabbath; (4) Stith's

January 2018 emails stating "we are watching you;" and (5) upon his return to work

in February 2018 the District's special counsel was waiting to discuss Stith's anti-

Semitic remarks.

Notably none of the allegations involve Armstrong and, on that basis alone, the

claim must be dismissed as to her. , 814 F.3d 47, 67 (2d Cir. 2016),

as amended (Feb. 24, 2016) (“The ‘personal involvement of defendants in alleged

constitutional deprivations is a prerequisite to an award of damages under § 1983.’”)

(quoting , 449 F.3d 470, 484 (2d Cir. 2006)). The pleadings of acts by

"Defendants" does not remedy this defect. Allegations as to all defendants generally,

rather than specific to any individual defendant's role in the alleged constitutional

violation, are insufficient to plead a claim against the individual. ,

2019 WL 3852391, at *13 (Aug. 15, 2019 E.D.N.Y

, 10 F. App'x 33, 34 (2d Cir. 2001) (a pleading that “lump[s] all defendants

together in each claim and provid[es] no factual basis to distinguish their conduct”

fails to provide the defendant with the requisite Rule 8 notice);

2017 WL 2627912, at *2 (S.D.N.Y. June 16, 2017)

(same).7

7 Indeed, the absence of any specific allegations as to Armstrong's participation in

the events set forth in the PSAC requires dismissal of all claims against her.

As to Stith, while offensive, the remarks are not sufficiently severe or

persuasive to support a hostile work environment claim.

2013 WL 3090690, at *10 (S.D.N.Y. June 18, 2013) (finding that

supervisor's three hostile and racially tinged comments about the plaintiff were stray

remarks that were insufficient to support a hostile work environment claim);

., 2009 WL 2777003, at *6 (E.D.N.Y. Aug. 31, 2009)

(rejecting the plaintiff's national-origin-based and gender-based hostile work

environment claims based on a few stray remarks).

As the facts alleged are insufficient to support the 1983 hostile work

environment claim.

3. Discrimination

To state a discrimination claim under § 1983, two elements must be alleged:

“(1) the employer discriminated against him (2) because of his race, color, religion,

sex, or national origin.” . 801 F.3d 72, 85 (2d Cir 2015).

An employer discriminates against an employee by taking an adverse employment

action, such as termination of employment. . An employer discriminates against an

employee “because of” his race, color, religion, sex, or national origin under Section

1983 when the defendant's discriminatory intent was a “but-for” cause of the adverse

employment action. , 934 F.3d 200, 214 (2d Cir. 2019).

The alleged Anti-Semitic comments by audience members at Board meetings

do not support a discriminatory animus on the part of the Board. Moreover, the

allegations that "defendants" actively encouraged these comments are conclusory. No

specifics statements of encouragement by any defendant are set forth and the alleged

silence of the "Board" in the circumstances alleged do not warrant an inference that

Defendants adopted the audience's comments.

Nor do the alleged statements by Stith support an inference of discrimination.

Stith's statement to Waronker that he "did not belong" does not, on its face, reference

Waronker's race or religion. , 2021 WL 4927166 at * 9

(S.D.N.Y. June 25, 2021) (statement that "you don't belong here, f------ Colombian,"

together with other derogatory remarks about plaintiff's race and gender, supported

inference of discrimination), 2021 WL 4480274

(Sept. 30, 2021). Nor does Stith's alleged statement to Waronker, "I don't care about

your Sabbath," plausibly suggest that Plaintiff's termination was due to his race or

religion. The allegation that after this comment Stith encouraged animus 'by

increasing his tone, presence and asserting a hostile demeanor" is conclusory

It is alleged that Bierworth wanted to undermine Waronker and in order to do

so held a meeting when Waronker was out of town due to religious reasons. But this

allegation does not suggest that Bierworth wanted to undermine Waronker because

of Waronker's religion. Waronker's absence on religious grounds merely provided the

opportunity to hold a meeting without him in attendance. Further the allegations

that Bierworth left Plaintiff out of meetings "because of his Jewish faith" lacks

factual support.

The remaining allegations in support of this claim are conclusory and lack

factual information which would make this claim plausible. For example, it is alleged

that Plaintiff was treated differently than black employees, such as Rodney Gilmore,

but no specifics of this purported disparate treatment are provided. Plaintiff also

claims that he was the only assistant superintendent not invited to a holiday party

but fails to specify the race or religion of the assistant superintendents that were

invited.

Plaintiff's fourth attempt to state a claim for discrimination fails. The

allegations are at best is "merely consistent with . . . defendant's liability and stop[]

short of the line between possibility and plausibility of entitlement to relief. ” .

566 U.S. at 678 (internal quotation marks omitted).

4. Retaliation

The complaint does not clearly allege a retaliation cause of action and

Plaintiff's motion papers make only passing reference to a retaliation claim. On this

basis alone, the Court rejects any retaliation claims.

But even if the complaint can be read to assert a retaliation claim, the factual

allegations are insufficient to make it plausible.

In order to survive a motion to dismiss retaliation claims brought under

§ 1983, a plaintiff must plausibly allege that “(1) defendants acted under the color of

state law, (2) defendants took adverse employment action against him, (3) because he

complained of or otherwise opposed discrimination.” ,

801 F.3d 72, 91 (2d Cir. 2015); , 783 F. Supp.

2d 560, 575 (S.D.N.Y. 2011). “A plaintiff engages in a protected activity when she

opposes any practice made an unlawful employment practice . . . or because she has

made a charge, testified, assisted, or participated in any manner in an investigation,

proceeding, or hearing.” (internal quotation marks omitted). An adverse

employment action is a “materially adverse change” in the terms and conditions of

employment, which is “a change in working conditions that is ‘more disruptive than

a mere inconvenience or an alteration of job responsibilities.’ ” . at 576 (quoting

., 202 F.3d 636, 640 (2d Cir. 2000) ). “Examples of a

materially adverse change include the termination of employment . . . ." . (internal

quotation marks omitted).

Here, the Court assumes that the allegations that Plaintiff complained of

Stith's discriminatory comments to Stith and others in January and February 2018

satisfies the protected activity element.8 Further his termination satisfies the

materially adverse element. However, the retaliation claim fails because the proposed

second amended complaint does not plausibly allege a causal connection exists

between the protected activity and the adverse action, i.e., that a retaliatory motive

was a "but-for" cause of the adverse employment action.

, 2022 WL (2d Cir. Sept. 27, 2022) (citing

801 F.3d 72, 90-91 (2d Cir. 2015));

, 461 F.3d 199-205-06 (2d Cir. 2006).

8 The Court notes, however, that a defendant does not – as Plaintiff suggests – become

aware of Plaintiff's protected activity, (specifically, the February 2018 letter sent to

the Education Department), merely because the defendant witnessed the events

underlying the complaint.

According to the proposed pleading, in November 2017, when Lamont Johnson

joined the Board, the "Board immediately set out to remove Waronker and all parties

hired by Waronker," indicating that the decision to remove Plaintiff, among others,

was made well before he engaged in any protected activity in January 2018.9 Where

the decision for the alleged adverse employment action is made prior to Plaintiff's

alleged protected activity, an inference of retaliation does not arise.

., 248 F.3d 87, 95 (2d Cir. 2001) (“Where timing is the only

basis for a claim of retaliation, and gradual adverse job actions began well before the

plaintiff had ever engaged in any protected activity, an inference of retaliation does

not arise.”); , 2014 WL 1146811, at *4 (S.D.N.Y. Aug.

27, 2014) (“Plaintiff's alleged protected activity cannot be the but-for cause of actions

that were already allegedly being taken against Plaintiff before he engaged in the

protected activity.”), , 605 F. App'x 20 (2d Cir. 2015);

Sch. Dist., 576 F. App'x 39, 42 (2d Cir. 2014) (concluding, in reviewing district

court decision on summary judgment, that “[t]here is no possible causal nexus

9 Plaintiff alleges that he “rebuked Stith’s [‘belong’] comments, disagreeing with his

animus against Waronker and, impliedly, against other similarly situated white

Jewish persons.” (PSAC ¶ 46.) Plaintiff, however, has not plausibly alleged that this

“rebuke” constituted protected activity or that Defendants “understood, or could

reasonably have understood, that” Plaintiff’s statement to Stith “was directed at

conduct prohibited by Title VII.”

, 716 F.3d 10, 15 (2d Cir. 2013) (quotation marks omitted). Plaintiff has

not even alleged what, exactly, he said to Stith. Moreover, Plaintiff never identifies

when this purported “rebuke” occurred. The PSAC is similarly vague about the

timing of other events. S PSAC ¶¶ 65, 69. The absence of specificity as to the

timing of these events, information presumably within Plaintiff's knowledge, further

supports the implausibility of any retaliation claims.

between the protected activity and the adverse action” when complaints about

discrimination were made after decision to recommend termination (internal

quotation marks omitted)).

The proposed second amended fails to assert a plausible retaliation claim.

B. The Second Cause of Action

Plaintiff's second cause of action asserts racial discrimination pursuant to 42

U.S.C. §§ 1985(3)10 and 1986.

"The four elements of a § 1985(3) claim are: (1) a conspiracy; (2) for the purpose

of depriving, either directly or indirectly, any person or class of persons of equal

protection of the laws, or of equal privileges and immunities under the laws; (3) an

act in furtherance of the conspiracy; (4) whereby a person is either injured in his

person or property or deprived of any right of a citizen of the United States."

2021 WL 5500078 (2d Cir Nov. 24, 2021( (quoting

., 7 F.3d 1085, 1087–88 (2d Cir. 1993));

, 507 F.3d 778, 791 (2d Cir. 2007). The

conspiracy must also be motivated by some racial or perhaps otherwise class-based,

invidious discriminatory animus behind the conspirators’ action.

Plaintiff's § 1985(1) claim fails because the PSAC does not plausibly allege a

conspiracy. Nor, for the reasons stated earlier, does Plaintiff allege a plausible claim

that his termination was motivated by his race.

10 Although the complaint does not identify the subsection of § 1985 on which the

claim is based, subsections 1 and 2 are facially inapplicable.

Plaintiff alleges “no facts upon which it may be plausibly inferred that the

defendants came to an agreement to violate his constitutional rights.”

, 480 F. App'x 44, 46 (2d Cir. 2012). Plaintiff's conclusory assertion that

Defendants “conspired,” without any additional allegation to support a true meeting

of the minds, is insufficient to state a claim for a conspiracy to violate his civil rights.

, 2013 WL 149341, at *12 (S.D.N.Y. Jan. 14, 2013) (“[A]

plaintiff must provide some factual basis supporting a meeting of the minds, such

that defendants entered into an agreement, express or tacit, to achieve the unlawful

end.” (internal quotation marks omitted)).

Moreover, the intra-corporate conspiracy doctrine bars Plaintiff's conspiracy

claim against the Defendants because they are members of the same corporate entity.

, 2021 WL 4440473, at *11 (N.D.N.Y. Sept.

27, 2021) (“Courts in the Second Circuit recognize the intracorporate conspiracy

doctrine, which holds that the officers, agents, and employees of a single corporate

entity are legally incapable of conspiring together.” (internal quotations omitted));

, 487 F. Supp. 2d 426, 442 (S.D.N.Y. 2007) (dismissing

conspiracy claims under the intra-corporate doctrine because “Plaintiff alleges that

police officers conspired with each other to violate his rights, but all the police officers

... are part of a single corporate entity” (internal citation omitted)).

Accordingly, no Section 1985 claim has been stated. And because Section 1986

claims are derivative of Section 1985 claims, the Section 1986 claim cannot withstand

a motion to dismiss. , 89 F.3d 75, 82 (2d Cir. 1996). The

motion to amend is denied as to the second cause of action.

C. The Third Cause of Action

The third cause of action is premised on Section 1981, which provides that:

All persons within the jurisdiction of the United States shall have the

same right in every State and Territory to make and enforce contracts,

to sue, be parties, give evidence, and to the full and equal benefit of all

laws and proceedings for the security of persons and property as is

enjoyed by white citizens, and shall be subject to like punishment, pains,

penalties, taxes, licenses, and extractions of every kind, and to no other.

42 U.S.C. § 1981(a). Under this statute, “make and enforce contracts” is defined to

“include[ ] the making, performance, modification, and termination of contracts, and

the enjoyment of all benefits, privileges, terms, and conditions of the contractual

relationship.” 42 U.S.C. § 1981(b). Accordingly, any § 1981 claim “must initially

identify an impaired ‘contractual relationship’ ” pursuant to “which the plaintiff has

rights.” , 546 U.S. 470, 476 (2006) (quoting 42 U.S.C.

§ 1981(b)). “Section 1981 offers relief when racial discrimination blocks the creation

of a contractual relationship, as well as when racial discrimination impairs an

existing contractual relationship, so long as the plaintiff has or would have rights

under the existing or proposed contractual relationship.” The statute does not

protect against alleged “discrimination on the basis of gender[,] . . . religion, national

origin, or age.” , 156 F.3d 167, 170 (2d Cir. 1998) (internal

citations omitted); 481 U.S. 604, 613 (1987)

(holding that § 1981 does not prohibit alleged discrimination as to religious

expression). Section 1981 requires that race be the "but-for" cause of the

discriminatory conduct. , -

-U.S. --, 140 S. Ct. 1009, 1013-19 (2020).

Here, the claim as framed by Plaintiff is that he "was denied the benefit of an

employment contract as required by New York Law" and that Defendants "did fail to

negotiate and allow Plaintiff the benefits of an employment contract on the basis of

his race, color and/or national origin." (PSAC ¶ 28, 151, 152.) But the complaint also

alleges that "none the District's Assistant Superintendents had employment

contracts." (PSAC ¶ 29.) Unless all the District's Assistant Superintendents were of

the same race as Plaintiff ( a fact which is not alleged), the facts plead do not plausibly

support but for causation on the basis of race.

The motion to amend is denied as to the third cause of action.

D. The Fourth Cause of Action

The fourth cause of action asserts a violation of Plaintiff's right to equal

protection.

The mandate of the Fourteenth Amendment’s Equal Protection Clause is

essentially to prohibit the government from treating similarly situated individuals

differently. ., 473 U.S. 432, 439 (1985).

“The Equal Protection Clause requires that the government treat all similarly

situated people alike.” , 273 F.3d 494, 499

(2d Cir. 2001). A plaintiff must show “both that he was treated differently than other

persons who were similarly situated and that such differential treatment was either

without rational basis (a ‘class of one’ claim) or was motivated by an intent to

discriminate on an impermissible basis (a selective enforcement claim).”

, 392 F. App'x 887, 888 (2d Cir. 2010); accord

, 357 F.3d 205, 234 (2d Cir. 2004) (An equal protection plaintiff must show "(1)

[that he], compared with others similarly situated, was selectively treated; and (2)

that such selective treatment was based on impermissible considerations such as

race, religion, intent to inhibit or punish the exercise of constitutional rights, or

malicious or bad faith intent to injure a person.”). To succeed on an equal protection

claim, “it is axiomatic that plaintiff must [show] that similarly situated persons were

treated differently.” , 18 F.3d 188, 193 (2d Cir. 1994);

, 2022 WL 138065, at *11 (E.D.N.Y. Jan. 14,

2022) (“A plaintiff asserting a selective enforcement or class-of-one claim must

present evidence of similarly situated comparators.”).

Plaintiff has failed to identify any similarly situated individuals. Rather he

nonsensically refers to the allegation in the PSAC concerning anti-Semitic comments

by constituents at Board meetings. To the extent he is attempting to assert that the

lack of offensive comments as to other groups is evidence of similarly situated

individuals beings treated differently, the argument fails.

480 F. App'x 44, 47–48 (2d Cir. 2012) (referring to broad categories, such as “other

inmates with acute medical problems,” is insufficient to show required extremely high

degree of similarity for class of one claim); 2014 WL 4054284, *14

(S.D.N.Y. Aug.15, 2014) (reference to other retirement systems members in a general

and conclusory fashion without naming even one comparator failed to plausibly allege

a violation of equal protection).

Having failed to allege even one comparator,11 no equal protection claim has

been stated and the motion to amend is denied as to the fourth cause of action.

E. The Fifth Cause of Action

The fifth cause of action is entitled "Direct Participation and Aiding and

Abetting of Individual Defendant." As none of the alleged primary claims state a

cause of action, this claim must fail as well.

VI. Defendants' Motion to Dismiss

Defendants' motion to dismiss is directed to the previously filed amended

complaint which contains only 1983 claims based on equal protection and "race"12

discrimination and a claim for direct participation and aiding and abetting. For the

same reasons that the PSAC fails to state causes of action for these claims, so too

does the amended complaint. Accordingly, Defendants' motion to dismiss is granted.

11 Interesting, the PSAC in ¶ 64 contains the incomplete sentiment that Defendants

"did take employment action against Plaintiff as the Superintendent for Business

and Operation but not," followed by the question "WHO ELSE SIMILARLY

SITUATED" (capitalization in original).

12 See n. 1 .

CONCLUSION

Inasmuch as the PSAC fails to set forth any plausible cause of action, the

motion to amend is denied. In addition, Defendants' motion to dismiss is granted.

The Clerk of Court is directed to enter judgment accordingly and to close this case.

SO ORDERED.

Dated: Central Islip, New York /s/ (JMA)

September 30, 2022 Joan M. Azrack

United States District Judge