Carpenter v. Mohawk Valley Community College

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

________________________________

JASON CARPENTER,

6:18-cv-1268

Plaintiff, (GLS/TWD)

v.

MOHAWK VALLEY COMMUNITY

COLLEGE et al.,

Defendants.

________________________________

APPEARANCES: OF COUNSEL:

FOR THE PLAINTIFF:

Ward Arcuri Law Firm MICHAEL A. ARCURI, ESQ.

44 Oxford Road KEVIN J. DWYER, ESQ.

New Hartford, NY 13413

Law Office of Zachary C. Oren, Esq. ZACHARY C. OREN, ESQ.

401 Rutger Street

Utica, NY 13501

FOR THE DEFENDANTS:

Office of Frank W. Miller CHARLES C. SPAGNOLI,

6575 Kirkville Road ESQ.

East Syracuse, NY 13057 FRANK W. MILLER, ESQ.

Gary L. Sharpe

Senior District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiff Jason Carpenter brings this action against defendants

Mohawk Valley Community College (MVCC), Kimberly Evans-Dame,

Oneida County, and Gary Broadhurst, alleging sixteen claims pursuant to

the Fair Labor Standards Act1 (FLSA), 42 U.S.C. § 1983, the Drivers’

Privacy Protection Act2 (DPPA), and New York state law. (See generally

Am. Compl., Dkt. No. 31.) Now pending are defendants’ motions to

dismiss and/or for partial summary judgment. (Dkt. Nos. 39, 49, 50.) For

the reasons stated below, defendants’ motions are granted in part and

denied in part.

II. Background

A. Facts3

MVCC, a community college and member of the National Junior

College Athletic Association (NJCAA), is sponsored and “significantly

control[led]” by Oneida County. (Am. Compl. ¶¶ 17, 21, 34.) Dame and

Broadhurst were employees of MVCC throughout the relevant time period.

(Id. ¶¶ 24, 26.) Dame served as Executive Director of Human Resources

1 See 29 U.S.C. §§ 201-19.

2 See 18 U.S.C. §§ 2721-25

3 Although defendants’ motions are motions to dismiss and for partial summary

judgment, they are primarily motions to dismiss pursuant to F.R.C.P. 12(b)(6). (See generally

Dkt. Nos. 39, 49, 50.) Accordingly, the facts are drawn from Carpenter’s amended complaint,

(Dkt. No. 31), and presented in the light most favorable to him.

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and Broadhurst served as the Associate Dean of Physical Education and

Athletics. (Id.) Both Dame and Broadhurst “ha[d] the power to fire and hire

employees.” (Id. ¶ 28.)

Carpenter was hired as the head coach of MVCC’s women’s

basketball team in 2009. (Id. ¶ 36.) In 2010, he began to simultaneously

serve as the assistant to Broadhurst. (Id. ¶ 38.) Throughout Carpenter’s

employment with MVCC, Dame and Broadhurst “supervise[d] and

control[led] [his] work schedule, conditions of employment[,] and rate of

pay,” and “maintained [his] employment records.” (Id. ¶¶ 29-30.)

As head coach of the women’s basketball team, Carpenter was

tasked with recruiting; organizing and participating in practices; reviewing

film; “attend[ing] all women’s basketball practices, games, [and] team

meetings”; scouting; “travel[ing] to and from games with the team”;

“oversee[ing] all scheduling for games and practices”; and fundraising. (Id.

¶ 41.) And, as the assistant to Broadhurst, Carpenter “develop[ed] the

student athletic success program”; ensured compliance with the NJCAA’s

“eligibility requirements[,] which included . . . ensur[ing] students

maintained eligible GPAs, [and] managing study halls”; performed on-site

management at “games for all sports teams”; “coordinate[d] travel and

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arrange[d] for transportation for all sports teams”; filled in for Broadhurst

when he was unavailable; and “implement[ed] the orders, directives[,] and

directions of [Broadhurst].” (Id. ¶ 40.) All of Carpenter’s actions pursuant

to this role were subject to the consent and approval of Broadhurst. (Id.)

Carpenter spent approximately thirty-five hours per week in his role

as assistant to Broadhurst. (Id.) And, during the basketball seasons, he

spent at least the same amount of time performing his coaching duties.

(Id. ¶ 42.) Carpenter was paid approximately $34,000 for his work as

assistant, and was paid a stipend of between $9,000 and $12,000 each

basketball season for his coaching job. (Id. ¶¶ 37, 48-49.) At the end of

the 2016-17 basketball season, “MVCC paid to the assistant women’s

basketball coaches[] retroactive overtime pay.” (Id. ¶ 53.) From February

2017 through February 2018, Carpenter was paid an additional sum of

$81,541.23 as compensation for his coaching job. (Id. ¶ 55.) Prior to this,

Carpenter was not offered, or paid, the overtime pay he earned while

performing this job. (Id. ¶ 56.)

Carpenter had success as the head coach of MVCC’s women’s

basketball team, reaching the national semi-finals in five seasons from

2010 through 2017. (Id. ¶ 52.) Additionally, before the 2017-18 season

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was cancelled for reasons explained below, the team was ranked third in

the country and was expected to qualify for the national semi-finals again.

(Id. ¶ 65.)

As part of Carpenter’s employment agreement with MVCC for his

assistant job, he was subject to a Collective Bargaining Agreement (CBA)

between MVCC and the MVCC Professional Association (hereinafter “the

Association”). (Id. ¶ 44.) Carpenter was a dues-paying member of the

Association. (Id. ¶ 47.) Pursuant to the CBA, MVCC “was required to take

certain steps and follow certain procedures before terminating an

employee.” (Id. ¶ 46.)

At some point during the 2017-18 basketball season, Dame received

information from an anonymous source that Carpenter “made an improper

loan to one or more student-athletes . . . in violation of NJCAA rules[,] and

that [he] was not respecting proper ‘boundaries’” with the athletes. (Id.

¶ 57.) Dame knew that the anonymous source was Carpenter’s ex-wife

with whom he was going through a “contentious divorce.” (Id. ¶¶ 57, 84.)

Dame directed Broadhurst to self-report the loan violation to the

NJCAA, and to include in that report that Carpenter would be terminated as

a result. (Id. ¶¶ 60-61.) This direction was made “without doing interviews

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with the necessary parties, without requesting and reviewing relevant

documents available to her through MVCC[,] and without conducting a

proper investigation . . . or substantiation of the allegations.” (Id. ¶ 62.)

Carpenter alleges that Dame has a “history of performing gender biased

internal administrative investigations resulting [in] terminations . . . and . . .

in female replacement hires.” (Id. ¶ 63.)

On February 28, 2018, Carpenter was served with a notice of

termination, signed by Dame, which advised Carpenter that he was

terminated for violations of the NJCAA bylaws, and because he “acted

inappropriately with the student-athletes.” (Id. ¶ 66.) Carpenter met with

Dame on March 13, 2018, at which time she explained that this notice was

actually a notice of charge, and he had not yet been terminated at that

time. (Id. ¶¶ 102-04.)

B. Procedural History

Carpenter commenced this action in New York State Supreme Court

in Oneida County on September 26, 2018. (Compl., Dkt. No. 2.)

Defendants removed the action to this court on the basis of federal

question and supplemental jurisdiction, (Dkt. No. 1), and then moved to

dismiss and for summary judgment, (Dkt. No. 11). In response, Carpenter

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cross-moved for leave to amend. (Dkt. No. 19.) The court denied

defendants’ motion and granted Carpenter’s cross-motion for leave to

amend. (Dkt. No. 22.)

Carpenter filed the amended and operative complaint on August 1,

2019,4 in which he alleges, sixteen causes of action. (Am. Compl.)

Specifically, Carpenter asserts the following claims against all defendants:

an FLSA claim; a New York Labor Law (NYLL) claim; a Fourteenth

Amendment procedural due process claim pursuant to 42 U.S.C. § 1983; a

Fourteenth Amendment substantive due process claim pursuant to 42

U.S.C. § 1983; a Fourteenth Amendment equal protection claim pursuant

to 42 U.S.C. § 1983; a New York Human Rights Law5 (NYHRL) claim; and

a DPPA claim. (See generally Am. Compl.) Additionally, Carpenter

alleges a Fourteenth Amendment stigma plus claim pursuant to 42 U.S.C.

§ 1983 and a defamation claim pursuant to New York state law against

MVCC, Dame, and Oneida County only. (Id.) Finally, Carpenter asserts a

gender discrimination claim pursuant to 42 U.S.C. § 1983 against MVCC

4 Carpenter first filed an amended complaint on July 31, 2019, (Dkt. No. 28), but he

replaced it with a “corrected” version the next day on August 1, 2019, (Dkt. No. 31).

5 See N.Y. Exec. Law §§ 290-301.

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and Oneida County only. (Id.)

Motions to dismiss pursuant to F.R.C.P. 12(b)(6) and/or for partial

summary judgment pursuant to F.R.C.P. 56 were subsequently filed by

MVCC and Dame, (Dkt. No. 39); Broadhurst, (Dkt. No. 49); and Oneida

County, (Dkt. No. 50).

III. Standards of Review

A. Motion for Partial Summary Judgment

The standard of review under Fed. R. Civ. P. 56 is well settled and

will not be repeated here. For a full discussion of the governing standard,

the court refers the parties to its prior decision in Wagner v. Swarts, 827 F.

Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d sub nom. Wagner v. Sprague, 489

F. App’x 500 (2d Cir. 2012).

B. Motion to Dismiss

The standard of review under Fed. R. Civ. P. 12(b)(6) is well settled

and will not be repeated here. For a full discussion of the governing

standard, the court refers the parties to its prior decision in Ellis v. Cohen &

Slamowitz, LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010).

IV. Discussion

A. Motions for Partial Summary Judgment

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Defendants move for partial summary judgment only as to

Carpenter’s FLSA and NYLL claims. (Dkt. No. 39, Attach. 5 at 6-11; Dkt.

No. 49, Attach. 5 at 6-11; Dkt. No. 50, Attach. 5 at 4-9.) Carpenter brings

these claims against all defendants, alleging that they violated the FLSA

and the NYLL by failing to pay him overtime from September 26, 2015

through January 2017. (Am. Compl. ¶¶ 123-57.)

1. Need for Discovery

Summary judgment should only be granted if “after discovery, the

nonmoving party has failed to make a sufficient showing on an essential

element of [its] case with respect to which [it] has the burden of proof.”

Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 303 (2d Cir. 2003)

(citation omitted).

Although F.R.C.P. 56 “allows a party to move for summary judgment

before discovery is complete, such a motion is successful ‘[o]nly in the

rarest of cases’ because ‘[t]he nonmoving party must have had the

opportunity to discover information that is essential to [its] opposition to the

motion for summary judgment.’” Great Wall De Venez. C.A. v. Interaudi

Bank, 117 F. Supp. 3d 474, 492-93 (S.D.N.Y. 2015) (quoting Hellstrom v.

U.S. Dep’t of Veteran Affairs, 201 F.3d 94, 97 (2d Cir. 2000)). However,

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“an opposing party’s mere hope that further evidence may develop prior to

trial is an insufficient basis upon which to justify the denial of [a summary

judgment] motion.” Gray v. Town of Darien, 927 F.2d 69, 74 (2d Cir. 1991)

(citations omitted). “[W]here it is clear that the nonmoving party cannot

defeat the motion by showing facts sufficient to require a trial for resolution,

summary judgment may be granted notwithstanding the absence of

discovery.” Nelson v. Deming, 140 F. Supp. 3d 248, 257 (W.D.N.Y. 2015)

(citation omitted).

Here, as of the date Carpenter filed his opposition to defendants’

motions for summary judgment, no discovery has been conducted. (Dkt.

No. 52, Attach. 2 at 2.) In fact, after defendants filed their motions, the

Rule 16 conference was adjourned without a date. (Dkt. No. 46.) Without

the benefit of even the most basic discovery, Carpenter could be at a

disadvantage in his ability to properly respond to a motion for summary

judgment. However, Carpenter did not offer a single reason, in his

opposition briefs or otherwise, for why discovery is necessary to defeat

defendants’ motions for partial summary judgment. (Dkt. No. 52, Attach. 2

at 7; Dkt. No. 55, Attach. 2 at 7; Dkt. No. 56, Attach. 2 at 7.) Instead,

Carpenter’s requests for discovery are entirely related to defendants’

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12(b)(6) arguments. (Id.)

Accordingly, Carpenter has not met his burden of showing that, “for

specified reasons, it cannot present facts essential to justify its opposition,”

see Phelps v. Brighter Choice Found., Inc., No. 1:12-CV-1494, 2013 WL

5354526, at *1 (N.D.N.Y. Sept. 24, 2013), and the court will reach the

merits of defendants’ motions for partial summary judgment.

2. FLSA/NYLL Claims, Generally

The FLSA requires employers to pay certain employees overtime.

See 29 U.S.C. §§ 203, 207, 213. Some employees “are exempt from the

FLSA’s overtime requirements, however, including those employed in [] ‘a

bona fide . . . administrative[] or professional capacity.’” Paganas v. Total

Maint. Sol., LLC, 726 F. App’x 851, 853 (2d Cir. 2018) (quoting 29 U.S.C.

§ 213(a)(1)). “[B]ecause the FLSA is a remedial act, its exemptions . . . are

to be narrowly construed, and the burden rests on the employer to prove

that a particular employee is exempt from the Act’s requirements.” Id.

(internal quotation marks and citation omitted). The NYLL “mandates

overtime pay and applies the same exemptions as the FLSA.” Ramos v.

Baldor Specialty Foods. Inc., 687 F.3d 554, 556 n.1 (2d. Cir. 2012).

3. FLSA Claim as to Carpenter’s Coaching Job

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Defendants argue that the professional exemption applies to

Carpenter’s FLSA claim with respect to his coaching job. (Dkt. No. 39,

Attach. 5 at 7-8; Dkt. No. 49, Attach. 5 at 7-8; Dkt. No. 50, Attach. 5 at 6.)

The FLSA’s professional exemption applies to employees (1) who earn a

salary of at least $684 per week and (2) whose “primary duty is the

performance of work: (i) [r]equiring knowledge of an advanced type in a

field of science or learning customarily acquired by a prolonged course of

specialized intellectual instruction; or (ii) [r]equiring invention, imagination,

originality or talent in a recognized field of artistic or creative endeavor.” 29

C.F.R. § 541.300(a).

Defendants’ argue that Carpenter falls under the professional

exemption with respect to his coaching job, because “his duties . . . drew

on the instruction he received in his Master’s in Sports Science program, . .

. required the consistent exercise of discretion and judgment on his part,

and . . . were varied in character and predominantly intellectual in nature.”

(Dkt. No. 39, Attach. 5 at 7-8; Dkt. No. 49, Attach. 5 at 7-8; Dkt. No. 50,

Attach. 5 at 5-6.) Further, defendants argue that this exemption applies,

because Carpenter’s salary was greater than $455 per week. (Id.)

However, the salary of an employee must be $684 per week or

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greater in order for this exemption to apply; not $455 as defendants

suggest. See 29 C.F.R. § 541.300(a)(1) (“The term ‘employee employed in

a bona fide professional capacity’ . . . shall mean any employee:

(1) [c]ompensated on a salary or fee basis . . . at a rate of not less than

$684 per week (or $455 per week if employed in the Commonwealth of the

Northern Mariana Islands, Guam, Puerto Rico, or the U.S. Virgin Islands.”).

Here, using the numbers provided by defendants ($12,000 for a twenty-six

week period), (Dkt. No. 39, Attach. 5 at 7-8; Dkt. No. 49, Attach. 5 at 7-8;

Dkt. No. 50, Attach. 5 at 5-6), Carpenter earned just under $462 per week

for his coaching job.

Moreover, defendants’ argument that the professional exemption

applies because Carpenter had a Masters degree in Sports Science, and

that Carpenter used what he learned in that program to perform his

coaching duties, (id.), is unpersuasive. “If a job does not require

knowledge customarily acquired by an advanced educational degree . . .

then, regardless of the duties performed, the employee is not an exempt

professional under the FLSA.” Young v. Cooper Cameron Corp., 586 F.3d

201, 206 (2d Cir. 2009).

Logically speaking, coaching a college basketball team does not

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appear to be the kind of job that requires knowledge customarily acquired

by an advanced education degree. Accordingly, defendants have not met

their burden on summary judgment to show that there is no issue of

material fact as to whether Carpenter’s coaching position meets the criteria

for the FLSA’s professional exemption, and their motions for partial

summary judgment as to this claim are denied with leave to renew.

4. NYLL Claim as to Carpenter’s Coaching Job

Defendants argue that the NYLL’s professional exemption applies to

Carpenter’s coaching job as well based on the same reasons as stated

above. (Dkt. No. 39, Attach. 5 at 6-7; Dkt. No. 49, Attach. 5 at 6-7; Dkt.

No. 50, Attach. 5 at 4-6.) Under the NYLL, the “professional employee

exemption[] [is] substantially similar to the exemption[] under the FLSA.”

Sethi v. Narod, 974 F. Supp. 2d 162, 184 (E.D.N.Y. 2013) (citing 12

N.Y.C.R.R. § 142-2.14(c)(4)(ii), (iii)). Indeed, although there is no salary

requirement for the NYLL’s professional exemption, “the NYLL’s duty

requirement for professional employees is nearly identical to that of the

FLSA, requiring that an exempt individual’s primary duty consist of work

‘requiring knowledge of an advanced type in a field of science or learning

customarily acquired by a prolonged course of specialized intellectual

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instruction and study.’” Id. at 185 (quoting 12 N.Y.C.R.R. § 142-

2.14(c)(4)(iii)).

As discussed above, Carpenter’s coaching job did not appear to

require knowledge customarily acquired over a prolonged course of

specialized intellectual instruction and study, and thus Carpenter does not

appear to be an exempt professional under the NYLL. Accordingly,

defendants have not met their burden on summary judgment to show that

there is no issue of material fact as to whether Carpenter’s coaching

position meets the criteria for the NYLL’s professional exemption, and their

motions for partial summary judgment as to this claim are denied with leave

to renew.

5. FLSA Claim as to Carpenter’s Assistant Job

Defendants argue that Carpenter’s assistant job falls under the

FLSA’s professional and administrative exemptions. (Dkt. No. 39, Attach.

5 at 10-11; Dkt. No. 49, Attach. 5 at 10-11; Dkt. No. 50, Attach. 5 at 8-9.)

Carpenter’s assistant job does not appear to fall under the FLSA’s or the

NYLL’s professional exemption, because, like his coaching job, his

assistant job does not appear to require knowledge customarily acquired

over a prolonged course of specialized intellectual instruction and study.

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See Young, 586 F.3d at 206.

Next, the administrative exemption applies to employees (1) who

earn a salary of at least $684 per week; (2) “[w]hose primary duty is the

performance of office or non-manual work directly related to the

management or general business operations of the employer or the

employer’s customers”; and (3) “[w]hose primary duty includes the exercise

of discretion and independent judgment with respect to matters of

significance.” 29 C.F.R. § 541.200(a).

Defendants argue that Carpenter’s assistant job falls under this

exemption, because his duties in that role included “developing the student

athletic success program,” ensuring compliance with the NJCAA eligibility

requirements, “site management on game days,” and coordinating travel

and scheduling for all of MVCC’s athletic programs. (Dkt. No. 39, Attach. 5

at 11; Dkt. No. 49, Attach. 5 at 11; Dkt. No. 50, Attach. 5 at 9.) In addition,

Carpenter earned an annual salary of $34,180.00, equivalent to about

$794.88 per week. (Id.) Carpenter argues that the administrative

exemption does not apply to his assistant job, because he did not have

final decision-making authority, and his duties were primarily secretarial in

nature. (Dkt. No. 52, Attach. 2 at 6; Dkt. No. 55, Attach. 2 at 6; Dkt. No.

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56, Attach. 2 at 6.)

“An executive assistant or administrative assistant to a business

owner or senior executive of a large business generally meets the duties

requirements for the administrative exemption if such employee, without

specific instructions or prescribed procedures, has been delegated

authority regarding matters of significance.” 29 C.F.R. § 541.203(d). “The

term ‘matters of significance’ refers to the level of importance or

consequence of the work performed.” Id. § 541.202(a).

An employee’s “primary duty” depends on such factors as “the

relative importance of the exempt duties as compared with other types of

duties; the amount of time spent performing exempt work; the employee’s

relative freedom from direct supervision; and the relationship between the

employee’s salary and the wages paid to other employees for the kind of

nonexempt work performed by the employee.” Id. § 541.700(a). “The

amount of time an employee spends performing exempt work, as opposed

to nonexempt work, is a useful guide in determining whether exempt work

is the primary duty of the employee, but time alone is not the sole test.”

Dineley v. Coach, Inc., No. 16-CV-3197, 2017 WL 2963499, at *6

(S.D.N.Y. July 11, 2017) (internal quotation marks, alterations, and citation

17

omitted).

Although Carpenter’s argument that his duties were secretarial is

lacking in factual support,6 and citing to allegations in a complaint is

generally insufficient to defeat summary judgment, the court is mindful that

he has had minimal, if any, opportunity to discover facts essential to his

defense. Accordingly, because “[t]he primary-duty determination is highly

context specific and depends on all the facts in a particular case,” Ik Ho

Choi v. Home & Home Corp., No. 17-CV-05400, 2019 WL 4193449, at *6

(E.D.N.Y. Sept. 3, 2019) (internal quotation marks and citation omitted),

and because Carpenter’s primary duties are in dispute, summary judgment

is improper at this time and defendants’ motions as to this claim are denied

with leave to renew.

6. NYLL Claim as to Carpenter’s Assistant Job

Similar to the FLSA, in order to fall under the NYLL administrative

exemption, a plaintiff must “customarily and regularly exercise[ ] discretion

and independent judgment.” 12 N.Y.C.R.R. § 142-2.14(c)(4)(ii)(b). There

is one additional element under the NYLL: the employee must “regularly

6 “The fact that an employee’s decision may be subject to review and that upon

occasion the decisions are revised or reversed after review does not mean that the employee

is not exercising discretion and independent judgment.” 29 C.F.R. § 541.202(c).

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and directly assist[ ] an employer, or an employee employed in a bona fide

executive or administrative capacity” or “perform[ ], under only general

supervision, work along specialized or technical lines requiring special

training, experience or knowledge.” Id. § 142-2.14(c)(4)(ii)(c).

As discussed above, there are disputed issues of fact as to

Carpenter’s primary duties as assistant to Broadhurst and whether he

exercised discretion and independent judgment sufficient to bring him

within this exemption. Accordingly, defendants’ motions for summary

judgment as to this claim are denied with leave to renew.

B. Motions to Dismiss

1. FLSA/NYLL

Defendants’ argue that, assuming Carpenter’s FLSA and NYLL

claims survive summary judgment (which, as outlined above, they do),

certain restrictions should be made as to for which time period Carpenter

can recover from these claims, and from which defendant he can recover.

(Dkt. No. 39, Attach. 5 at 12-14; Dkt. No. 49, Attach. 5 at 12-15; Dkt.

No. 50, Attach. 5 at 10-13.) Specifically, defendants argue that Carpenter

is not entitled to recover from his FLSA claim for any period of time prior to

September 26, 2016, or from his FLSA or NYLL claims for any time after

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mid-January 2017 with respect to his coaching job. (Id.) Additionally,

Oneida County argues that Carpenter’s NYLL claim should be dismissed

against it because Carpenter failed to serve a timely notice of claim. (Dkt.

No. 50, Attach. 5 at 12-13.)

First, the statute of limitations under the FLSA is generally two years,

“except that a cause of action arising out of a willful violation may be

commenced within three years after the cause of action accrued.” 29

U.S.C. § 255(a). Defendants argue that the two-year limitation should

apply because Carpenter did not sufficiently allege willfulness. (Dkt. No.

39, Attach. 5 at 12-14; Dkt. No. 49, Attach. 5 at 12-14; Dkt. No. 50,

Attach. 5 at 10-12.) However, “the question of whether [the] alleged

violation was ‘willful’ is a substantive question best reserved for a later

stage, when the parties have had an opportunity to conduct discovery and

further develop the record.” Dieffenbauch v. Rhinehart R.R. Constr., Inc.,

No. 8:17-CV-1180, 2018 WL 4150883, at *5 (N.D.N.Y. Aug. 30, 2018).

Accordingly, Carpenter’s general allegations of willfulness is sufficient

at this time for the application of the three-year statute of limitations, and

defendants’ request to dismiss Carpenter’s FLSA claim for periods prior to

September 26, 2016 is denied. See Solis v. ZEP LLC, No. 19-CV-4230,

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2020 WL 1439744, at *9 (S.D.N.Y. Mar. 24, 2020) (“Whether a violation of

the FLSA is willful is a fact-intensive inquiry not generally capable of being

resolved on a motion to dismiss, and therefore plaintiffs may allege

willfulness in general terms to avail themselves of the FLSA’s three-year

statute of limitations.”).

However, defendants’ request to limit Carpenter’s FLSA and NYLL

claims to periods prior to mid-January 2017 with respect to his coaching

job is granted, as, although Carpenter’s allegations and arguments have

been fairly inconsistent on this point, Carpenter expressly admits in his

response to defendants’ statements of material facts that he is not entitled

to recover overtime from mid-January 2017 onward. (Dkt. No. 52, Attach. 1

at 4.) Further, Carpenter “brings a claim . . . for lost over time from . . .

September 26, 2015 until January 2017.” (Am. Compl. ¶ 146 (emphasis

added).)

Finally, Oneida County’s motion to dismiss Carpenter’s NYLL claim

against it is also granted. “Under New York law, a plaintiff filing a personal

injury claim against a public defendant must . . . serve a notice of claim

within ninety days of the claim’s accrual.” In re World Trade Ctr. Lower

Manhattan Disaster Site Litig., 846 F.3d 58, 62 n.3 (2d Cir. 2017) (citing

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N.Y. Gen. Mun. Law § 50-e(1)(a)).

Here, Oneida County argues that because the sole notice of claim

was served by Carpenter on May 18, 2018, and Carpenter alleges that he

began to receive overtime payments in early 2017, the notice of claim was

untimely and the NYLL claim as against Oneida County must be dismissed.

(Dkt. No. 50, Attach. 2 at 12-13.) “It is well settled that compliance with the

notice of claim requirement is a condition precedent to commencement of

an action against [a] municipality and the burden is on the plaintiff to plead

and prove compliance with the notice of claim requirement.” Friel v.

County of Nassau, 947 F. Supp. 2d 239, 247 (E.D.N.Y. 2013) (citation

omitted). “This requirement is mandatory in [f]ederal [c]ourt and failure to

comply results in dismissal of claims.” Eberle v. Town of Southampton,

985 F. Supp. 2d 344, 348 (E.D.N.Y. 2013) (citation omitted).

Here, Carpenter did not even respond to Oneida County’s argument

and thus clearly did not show that his failure to file a timely notice of claim

should be excused. Accordingly, Oneida County’s motion to dismiss

Carpenter’s NYLL claim against it is granted and that claim is dismissed.

2. Monell Liability

Carpenter alleges Monell liability for MVCC and Oneida County for

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his claims of procedural due process, stigma plus, equal protection,

substantive due process, and Section 1983 gender discrimination. (Am.

Compl. ¶¶ 158-61, 178-80, 240-43, 247-55.)

A municipality may be liable under § 1983 only “when execution of a

government’s policy or custom, whether made by its lawmakers or by those

whose edicts or acts may fairly be said to represent official policy, inflicts

the injury.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). To

establish a municipal policy or custom, a plaintiff must allege:

(1) a formal policy which is officially endorsed by the

municipality; (2) actions taken or decisions made by

government officials responsible for establishing

municipal policies which caused the alleged violation

of the plaintiff’s civil rights; (3) a practice so persistent

and widespread that it constitutes a custom or usage

and implies the constructive knowledge of policy-

making officials; or (4) a failure by official policy-

makers to properly train or supervise subordinates to

such an extent that it amounts to deliberate

indifference to the rights of those with whom

municipal employees will come into contact.

Dilworth v. Goldberg, 914 F. Supp. 2d 433, 452-53 (S.D.N.Y. 2012)

(citation omitted).

In arguing that MVCC and Oneida County are liable under Monell,

Carpenter asserts that Dame and Broadhurst were final policymakers for

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MVCC and Oneida County. (Am. Compl. ¶¶ 158-61, 178-80, 240-43, 247-

50.) Ordinarily, “a custom or policy cannot be shown by pointing to a single

instance of unconstitutional conduct by a mere employee of the

[municipality].” Newton v. City of New York, 566 F. Supp. 2d 256, 271

(S.D.N.Y. 2008) (citation omitted). But “municipal liability may be imposed

for a single decision by municipal policymakers.” Nagle v. Marron, 663

F.3d 100, 116 (2d Cir. 2011) (citation omitted).

Even at this early stage of the litigation, Carpenter’s allegations,

which consist of one conclusory sentence, are entirely inadequate to

establish Monell liability based on the policymaker theory. See Coppola v.

Town of Plattekill, No. 1:17-CV-1032, 2018 WL 1441306, at *10 (N.D.N.Y.

Mar. 22, 2018) (“[M]inimal, conclusory statements fall far short of satisfying

Plaintiff’s burden to allege facts creating a plausible inference that either of

these defendants were final policymakers. Plaintiff does not direct the

Court to New York State law, municipal charters, or any other source that

could support her claim.”); Williams v. City of New York, 690 F. Supp. 2d

338, 345 (S.D.N.Y. 2010) (“Common sense suggests that plaintiffs’

immediate superiors, Human Resources, and the union did not have the

authority to formulate the rules governing personnel decisions but rather

24

the authority to make decisions pursuant to those rules.” (internal quotation

marks and citation omitted)).

Carpenter also asserts Monell liability under the theory that gender

discrimination was a widespread municipal custom or practice. (Am.

Compl.¶¶ 251-55.) However, Carpenter “does not [sufficiently] allege the

existence of . . . any practices so widespread that they practically have the

force of law.” Jackson v. Westchester County, No. 18-CV-7207, 2019 WL

3338020, at *4 (S.D.N.Y. July 25, 2019). His allegation that MVCC was a

defendant in at least one other gender discrimination action is insufficient.

See Lopes v. Westchester County, No. 18-CV-8205, 2020 WL 1445729, at

*6 (S.D.N.Y. Mar. 25, 2020) (“Plaintiff’s claim regarding the number of

federal lawsuits in which [defendant] is a defendant is insufficient to plead a

practice so consistent and widespread that, although not expressly

authorized, constitutes a custom or usage of which a supervising

policymaker must have been aware.” (internal quotation marks and

citations omitted)).

Accordingly, MVCC’s and Oneida County’s motions to dismiss as to

Carpenter’s claims of procedural due process, stigma plus, equal

protection, substantive due process, and Section 1983 gender

25

discrimination, as against them, are granted, and those claims are

dismissed. Consequently, unless stated otherwise, the discussion below

regarding Carpenter’s Section 1983 claims will address only the arguments

made by Dame and Broadhurst.

3. Section 1983 Claims

a. Procedural Due Process

Carpenter brings a Fourteenth Amendment procedural due process

claim against all defendants based on his allegedly unlawful termination

from his employment with MVCC. (Am. Compl. ¶¶ 68-122, 158-61.)

Defendants move to dismiss this claim, arguing that Carpenter “had no

property interest in his position(s) and . . . [e]ven if he was entitled to any

due process, he received it.” (Dkt. No. 39, Attach. 5 at 27; Dkt. No. 49,

Attach. 5 at 20.)

Analysis of a procedural due process claim is composed of two

prongs. See Narumanchi v. Bd. of Trs. of Conn. State Univ., 850 F.2d 70,

72 (2d Cir. 1988). First, the court must discern “whether the plaintiff has a

property or liberty interest protected by the Constitution.” Id. (citation

omitted). If such an interest exists, “[the] court must then consider whether

the government deprived the plaintiff of that interest without due process.”

26

Id. Thus, under the second step of the analysis, the court must ask “what

process was due to the plaintiff, and . . . whether that constitutional

minimum was provided in the case under review.” Id. (citation omitted).

Carpenter’s “constitutional claim depends on [him] having had a

property right in continued employment.” Coles v. Erie County, 629 F.

App’x 41, 42 (2d Cir. 2015) (citation omitted). “In the employment context,

the interest [in continued employment] is typically established by showing

that under the provisions of a statute or collective bargaining agreement,

the employee cannot be terminated or demoted without a hearing.”

Rotundo v. Village of Yorkville, No. 6:09-CV-1262, 2011 WL 838892, at *8

(N.D.N.Y. Mar. 4, 2011) (citing Ciambriello v. County of Nassau, 292 F.3d

307, 313-14 (2d Cir. 2002)).

Here, Carpenter alleges that he was a member of the Association

and that he was covered by the CBA, which provided that “prior to an

employee being terminated the employer is required to follow a certain set

of policies, procedures and protocols so as to guarantee to all employees

certain due process rights.” (Am. Compl. ¶¶ 70-71.) Accordingly,

Carpenter had a property interest in his employment with MVCC. See

Rotundo, 2011 WL 838892, at *8.

27

However, it is well established “that there is no [procedural] due

process violation where . . . pre-deprivation notice is provided and the

deprivation at issue can be fully remedied through the grievance

procedures provided for in a collective bargaining agreement.” Adams v.

Suozzi, 517 F.3d 124, 128 (2d Cir. 2008) (citations omitted). Defendants’

assert that any due process violation could have been remedied through

the CBA’s grievance procedures, in which Carpenter admittedly did not

partake. (Dkt. No. 39, Attach. 5 at 29; Dkt. No. 49, Attach. 5 at 21.) The

court disagrees.

Carpenter has set forth sufficient facts to maintain a procedural due

process claim against Dame and Broadhurst. Carpenter alleges that he

was fired in February 2018, before Carpenter had any opportunity to be

heard. (Am. Compl. ¶¶ 68-122.) Although, Dame attempted to remedy her

apparent disregard of the CBA’s provisions by holding a meeting with

Carpenter at which she described the notice of termination as a “[n]otice of

[c]harge,” (id. ¶¶ 102-04), the stern and final language in the termination

notice, (Dkt. No. 31, Attach. 1), makes clear that Carpenter was effectively

terminated on the date of such notice.

Moreover, before the allegations against Carpenter could be

28

investigated, verified, or substantiated by witnesses or otherwise, Dame

instructed Broadhurst to report Carpenter’s alleged NJCAA violations to the

NJCAA, and to inform them that Carpenter would be fired as a result. (Am.

Compl. ¶¶ 60-62.) Accepting Carpenter’s allegations as true, it is difficult

to imagine that Dame and Broadhurst would have informed the NJCAA that

Carpenter would be fired if, in fact, no decision had been made.

Accordingly, although more facts might be gleaned from discovery as

to whether appropriate procedures were followed, at this early stage,

Dame’s and Broadhurst’s motions to dismiss Carpenter’s procedural due

process claim are denied.7

b. Substantive Due Process

Carpenter brings a Fourteenth Amendment substantive due process

claim against all defendants, alleging that Carpenter’s alleged wrongful

termination “shock[s] the contemporary conscience.” (Am. Compl. ¶¶ 244-

50.) Defendants argue that allegations of wrongful termination from public

7 Defendants argue that, if the assistant job and coaching job were separate positions,

the availability of an Article 78 proceeding satisfies due process as to Carpenter’s coaching

job, for which he was not subject to the CBA. (Dkt. No. 39, Attach. 5 at 29; Dkt. No. 49,

Attach. 5 at 22.) This argument appears to have merit. See Dukes v. N.Y.C. Employees’ Ret.

Sys., 361 F. Supp. 3d 358, 371 (S.D.N.Y. 2019). However, at this juncture, the court will not

conduct the fact-based inquiry necessary to make this decision, and defendants may renew

this argument at the appropriate time.

29

employment is insufficient to maintain a substantive due process claim.

(Dkt. No. 39, Attach. 5 at 30; Dkt. No. 49, Attach. 5 at 22-23.)

“The doctrine of substantive due process protects the individual

against certain government actions regardless of the fairness of the

procedures used to implement them,” McClary v. O’Hare, 786 F.2d 83, 88

(2d Cir. 1986) (internal quotation marks and citations omitted), but the

scope of the doctrine “is very limited,” see Doe v. U.S. Merchant Marine

Acad., 307 F. Supp. 3d 121, 156 (E.D.N.Y. 2018). A successful

substantive due process claim requires that the plaintiff show “that the

state action was so egregious, so outrageous, that it may fairly be said to

shock the contemporary conscience.” Okin v. Vill. of Cornwall-On-Hudson

Police Dep’t, 577 F.3d 415, 431 (2d Cir. 2009) (internal quotation marks

and citations omitted).

Moreover, substantive due process is “not . . . a remedy to a public

employee [if it] would not be available to a private employee subject to

identical conduct by his employer.” Walter v. Queens Coll., 390 F. Supp.

3d 382, 391 (E.D.N.Y. 2019) (citing McClary, 786 F.2d at 89). Rather, “the

alleged government conduct must be ‘uniquely governmental’ in character

and ‘sufficiently severe . . . as to transcend the bounds of ordinary tort law

30

and establish a deprivation of constitutional rights.’” Id. (quoting McClary,

786 F.2d at 88-89 & n.6).

As defendants’ note in their reply brief, Carpenter did not address

their arguments that Carpenter’s termination did not shock the conscience

and that wrongful termination from public employment is insufficient to

adequately allege a substantive due process claim. (Dkt. No. 57 at 8 n.7.)

Instead, Carpenter argues that defendants’ willfully violated FLSA, and

cites to cases that do not mention substantive due process. (Dkt. No. 52,

Attach. 2 at 18-19; Dkt. No. 55, Attach. 2 at 18-19.)

Consequently, Carpenter has not adequately alleged, or argued, that

defendants’ actions here were uniquely governmental, which is required to

maintain a substantive due process claim in this context. See Walter, 390

F. Supp. 3d at 392 (dismissing the plaintiff’s substantive due process claim,

which was based on alleged wrongful termination from his position as

professor of a state-run college, because “the fact that the College is

state-run is only a qualifier, it is not the institution’s defining feature, and as

a result, [the plaintiff’s] allegations do not rise to the level of ‘uniquely

governmental’ conduct”).

Accordingly, Dame’s and Broadhurst’s motions to dismiss as to

31

Carpenter’s substantive due process claim are granted and that claim is

dismissed.

c. Stigma Plus

Carpenter brings a Fourteenth Amendment procedural due process

claim pursuant to the “stigma plus” theory against MVCC, Dame, and

Oneida County based on Dame’s alleged statement to a parent of one of

Carpenter’s student-athletes that Carpenter had a serious drug problem.

(Am. Compl. ¶¶ 162-80.) Dame, the only remaining defendant as to this

claim in light of the discussion above, argues that this claim should be

dismissed because an Article 78 proceeding was available to Carpenter;

the alleged defamation was not connected to Carpenter’s termination; and

the alleged defamation was not widely disseminated. (Dkt. No. 39,

Attach. 5 at 31-33.)

Defamation is an issue of state, not federal, law “and therefore

provides an insufficient basis to maintain a § 1983 action.” Sadallah v. City

of Utica, 383 F.3d 34, 38 (2d Cir. 2004) (citation omitted). Under limited

circumstances, however, a plaintiff may seek relief under the so-called

“stigma plus” doctrine. See McCaul v. Ardsley Union Free Sch. Dist., 514

F. App’x 1, 4 (2d Cir. 2013). “Specifically, an action can be grounded in 42

32

U.S.C. § 1983 when that plaintiff can demonstrate a stigmatizing statement

plus a deprivation of a tangible interest.” Vega v. Lantz, 596 F.3d 77, 81

(2d Cir. 2010) (internal quotation marks and citations omitted).

“Stigmatizing statements” are those statements that “call into

question [the] plaintiff’s good name, reputation, honor, or integrity” or

“denigrate the employee’s competence as a professional and impugn the

employee’s professional reputation in such a fashion as to effectively put a

significant roadblock in that employee’s continued ability to practice his or

her profession.” Segal v. City of New York, 459 F.3d 207, 212 (2d Cir.

2006) (internal quotation marks and citation omitted). The statement “must

be sufficiently public to create or threaten a stigma.” Velez v. Levy, 401

F.3d 75, 87 (2d Cir. 2005) (citation omitted). And Carpenter must show

that “the stigmatizing statements were made in the course of, or in close

temporal proximity to, a discharge or significant demotion.” Donley v.

Village of Yorkville, No. 6:14-CV-1324, 2019 WL 3817054, at *8 (N.D.N.Y.

Aug. 13, 2019) (citation omitted).

Dame argues that Carpenter’s claim fails because an Article 78

proceeding was available to him. (Dkt. No. 39, Attach. 5 at 31.) “Article 78

name-clearing hearings are all the process due to a former municipal

33

employee in [Carpenter’s] position.” Donley, 2019 WL 3817054, at *9; see

Guerra v. Jones, 421 F. App’x 15, 19 (2d Cir. 2011) (finding that an Article

78 hearing provides the requisite post-deprivation process thereby

precluding the plaintiff’s stigma-plus claim).

Carpenter’s only response to Dame’s argument regarding the

availability of an Article 78 proceeding is that the F.R.C.P. applies to his

claims and not the C.P.L.R. (Dkt. No. 52, Attach. 2 at 19-20; Dkt. No. 56,

Attach. 2 at 19-20.) This argument is rejected. See Duchemin v. Inc. Vill.

of E. Hampton, No. 14-CV-5976, 2015 WL 6680238, at *10 (E.D.N.Y. Oct.

31, 2015) (“[T]here is no constitutional violation (and no available § 1983

action) when there is an adequate post-deprivation procedure to remedy a

random, arbitrary deprivation of property or liberty. In cases where the

state actor engaged in random and unauthorized acts, an Article 78

proceeding constitutes a wholly adequate post-deprivation hearing for due

process violations.”).

Accordingly, Dame’s motion to dismiss as to Carpenter’s stigma plus

claim is granted, and that claim is dismissed.

d. Equal Protection

Carpenter brings a Fourteenth Amendment equal protection claim

34

against all defendants, alleging that they “launched a pretextual

discriminatory investigation against a male employee[, Carpenter,] on poor

internal complaints resulting in his termination when female employees

who engaged in similar or worse conduct acted with impunity.” (Am.

Compl. ¶¶ 220, 237-43.) Defendants argue that Carpenter’s allegations

are insufficient to maintain an equal protection claim and that there are

reasonable, non-discriminatory reasons for his termination. (Dkt. No. 39,

Attach. 5 at 33-34; Dkt. No. 49, Attach. 5 at 15-20, 23.)

In order to maintain an equal protection claim, a plaintiff must show

that “(1) he is a member of a protected class; (2) he was qualified for the

position he held; (3) he suffered an adverse employment action; and (4)

the adverse action took place under circumstances giving rise to an

inference of discrimination.” Cusher v. Mallick, No. 1:16-CV-01273, 2020

WL 109510, at *15 (N.D.N.Y. Jan. 9, 2020) (citations omitted). Defendants

focus their analysis on whether an adverse action took place under

circumstances giving rise to an inference of discrimination.

“[T]he ultimate issue in an employment discrimination case is

whether the plaintiff has met [his] burden of proving that the adverse

employment decision was motivated at least in part by an impermissible

35

reason, i.e., a discriminatory reason.” Vega v. Hempstead Union Free Sch.

Dist., 801 F.3d 72, 87 (2d Cir. 2015) (internal quotation marks and citation

omitted). This prong may be satisfied “by indirectly showing circumstances

giving rise to an inference of discrimination.” Id. (citation omitted).

The pleading standard for equal protection claims based on gender

discrimination is low. Indeed, a plaintiff alleging such a claim does not

even need to allege a “favorably treated, similarly situated individual[]

outside of the plaintiff’s protected class.” Krause v. Kelehan, No. 6:17-CV-

1045, 2018 WL 2021484, at *12 (N.D.N.Y. Apr. 26, 2018). Instead, the

requirements of equal protection “may . . . be satisfied by allegations that

the supervisor accused of discrimination made statements indicative of

bias against the plaintiff's protected class.” Id. (citing Conforti v. Sunbelt

Rentals, Inc., 201 F. Supp. 3d 278, 299 (E.D.N.Y. 2016) (noting that

allegations that supervisors “made comments . . . that suggested that they

were biased” were “sufficient to satisfy the minimal pleading burden for

discrimination claims at the motion to dismiss stage”)).

Here, Carpenter’s equal protection claim is based on the following

allegations that, he claims, show an inference of gender discrimination

against him: (1) Dame has “initiated and conducted poor investigations . . .

36

based on suspect internal employee administrative complaints using them

as a pretext to discriminate against men in the past”; (2) a similar gender

discrimination action involving Dame and MVCC allegedly discriminating

against a male employee survived summary judgment in this district;

(3) “[d]efendants have failed to perform investigations . . . of[,] []or

terminate[,] female athletic trainers [accused of] not maintaining proper

‘boundaries’ with male students”; (4) Dame “has repeatedly made gender

discriminatory remarks in [Carpenter’s] presence”; and (5) the true reason

for Carpenter’s termination was “a desire on the part of the defendants to

have more women coaches at MVCC.” (Am. Compl. ¶¶ 207, 209-11, 217-

19, 229.) Given the lower pleading standard described above, these

allegations are sufficient to maintain an equal protection claim against

Dame, if only just barely. Accordingly, Dame’s motion to dismiss as to

Carpenter’s equal protection claim is denied.

However, Broadhurst’s motion to dismiss as to this claim is granted,

and the claim against him is dismissed, because the amended complaint

contains no allegations of gender-based discrimination on his part. See

Warren v. Pataki, 823 F.3d 125, 136 (2d Cir. 2016) (noting that personal

involvement of defendants in the alleged constitutional deprivation is a

37

prerequisite to a finding of liability under § 1983).

e. Section 1983 Gender Discrimination Claim

Carpenter brings a gender discrimination claim pursuant to 42 U.S.C.

§ 1983 against MVCC and Oneida County based on alleged Monell liability.

(Am. Compl. ¶¶ 251-55.) Because this claim is brought solely against

MVCC and Oneida County, and, as explained above, Carpenter has not

adequately alleged Monell liability, MVCC’s and Oneida County’s motions

to dismiss as to this claim are granted and the claim is dismissed.

4. Defamation

Carpenter brings a defamation claim pursuant to state law against

Dame, MVCC, and Oneida County. (Am. Compl. ¶¶ 181-88.) Specifically,

Carpenter alleges that Dame told the parents of one of his student-athletes

that their “daughter was in danger” because Carpenter “had a serious drug

problem,” and that these statements were false. (Id. ¶¶ 164-69.)

Defendants argue that Carpenter’s defamation claim fails, because he has

not sufficiently alleged special damages and the alleged defamatory

statements do not constitute slander per se. (Dkt. No. 39, Attach. 5 at 15-

17; Dkt. No. 50, Attach. 5 at 13-15.)

To state a claim for defamation under New York law, a plaintiff must

38

allege “a false statement, published without privilege or authorization to a

third party, constituting fault as judged by, at a minimum, a negligence

standard, . . . caus[ing] special harm or constitut[ing] defamation per se.”

Jackie’s Enters., Inc. v. Belleville, 165 A.D.3d 1567, 1569-70 (3d Dep’t

2018) (citations omitted). “All that is required in federal court is a short and

plain statement of the claim showing that the pleader is entitled to relief.

The Court is not bound by the particularity of New York State rules of

pleading.” D’Lima v. Cuba Mem’l Hosp., Inc., 833 F. Supp. 2d 383, 390

(W.D.N.Y. 2011) (citations omitted).

Carpenter’s defamation claim is based on allegations of slander.

(Am. Compl. ¶¶ 181-88.) Carpenter sufficiently alleges that Dame’s

statements that Carpenter had a serious drug issue were false8 statements

of purported fact that were not spoken with privilege.9 Further, although

factual support is lacking in Carpenter’s amended complaint as to whether

he suffered special damages, it is of no consequence, because, for the

reasons that follow, Dame’s statements constitute slander per se.

8 Carpenter alleges that he submitted to a drug test shortly after Dame’s allegations,

which showed no drugs in his system. (Am. Compl. ¶¶ 167-68.)

9 The court has previously found that no privilege applies to Carpenter’s defamation

claim. See Carpenter v. Mohawk Valley Cmty. Coll., No. 6:18-cv-1268, 2019 WL 3338845,

at *1 (N.D.N.Y. July 25, 2019).

39

There are four categories of statements for which damages need not

be shown: statements “(i) charging plaintiff with a serious crime; (ii) that

tend to injure another in his or her trade, business or profession; (iii) that

plaintiff has a loathsome disease; or (iv) imputing unchastity to a woman.”

Liberman v. Gelstein, 80 N.Y.2d 429, 435 (1992) (citations omitted). Here,

Dame’s statements are slander per se, because they are statements that

would injure Carpenter’s profession, as Dame told the parents of one of his

student-athletes that, due to his drug problem, they can no longer trust him

with their daughter. See D’Lima, 833 F. Supp. 2d at 390 (finding that

defamatory statements that a dentist “used illegal drugs and that his

impairment from the drugs was having a detrimental impact on his patients”

constituted slander per se).

Finally, although there is some doubt as to whether Dame was acting

in the scope of her employment as Executive Director of Human Resources

when she made the defamatory statements, see Berrio v. City of New

York, No. 15-CV-09570, 2017 WL 118024, at *8 (S.D.N.Y. Jan. 10, 2017),

defendants have failed to advance any argument as to whether Carpenter’s

amended complaint sufficiently alleges MVCC’s and Oneida County’s

liability pursuant to the doctrine of respondeat superior. (See Generally

40

Dkt. Nos. 39, 50.)

Accordingly, defendants’ motions to dismiss as to Carpenter’s

defamation claim are denied.

5. NYHRL

Carpenter brings an NYHRL claim against all defendants, making the

same allegations as described in the equal protection sub-section of this

Memorandum-Decision and Order. See supra Part IV.B.3.d.

The analysis for equal protection claims and NYHRL claims are

substantially the same. In order to establish a prima facie case for gender

discrimination under the NYHRL,10 “a plaintiff need only establish a prima

facie case of sex discrimination by demonstrating that (1) he was within the

protected class; (2) he was qualified for the position; (3) he was subject to

an adverse employment action; and (4) the adverse action occurred under

circumstances giving rise to an inference of discrimination.” Menaker v.

Hofstra Univ., 935 F.3d 20, 30 (2d Cir. 2019) (internal quotation marks,

alterations, and citation omitted).

In determining whether a plaintiff’s gender discrimination claim

10 Claims brought under Title VII and the NYHRL are subject to the same analytical

standards. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000).

41

survives a motion to dismiss, the Court only considers “whether the

complaint includes factual allegations sufficient to raise a right to relief

above the speculative level.” Gonzalez v. Carestream Health, Inc., 520 F.

App’x 8, 10 (2d Cir. 2013) (internal quotation marks and citation omitted).

“In other words, the Court asks only whether a plaintiff has pled a prima

facie case, not whether a plaintiff has established that case. Thus, the

standard is simply whether the plaintiff’s complaint, construed liberally,

satisfies the federal pleading requirements for a claim of discrimination.”

Figueroa v. RSquared NY, Inc., 89 F. Supp. 3d 484, 489 (E.D.N.Y. 2015)

(internal quotation marks, alterations, and citation omitted).

Once a prima facie case is determined to have been established, “the

burden shifts to the employer at the summary judgment stage to articulate

some legitimate, nondiscriminatory reason for the adverse employment

action.” Menaker, 935 F.3d at 30 (internal quotation marks and citation

omitted) (emphasis added).

The amended complaint satisfies the first three requirements for a

prima facie case for gender discrimination under the NYHRL: Carpenter is

a member of a protected class, he was qualified for the positions he held,

and he suffered an adverse employment action when he was terminated

42

from employment with MVCC. See id. (finding that the first three

requirements were met with respect to the gender discrimination claim of a

male tennis coach who was terminated by his university-employer);

Reynoso v. All Foods, Inc., 908 F. Supp. 2d 330, 342 (E.D.N.Y. 2012)

(stating plaintiff’s “termination clearly constitutes an adverse employment

action”). Indeed, defendants do not contest any of these elements in their

motions to dismiss, and, instead, argue that Carpenter’s gender did not

play any role in his termination. (Dkt. No. 39, Attach. 5 at 17-22; Dkt. No.

49, Attach. 5 at 17-22; Dkt. No. 50, Attach. 5 at 15-20.)

Carpenter’s allegations in support of his NYHRL claim are the same

as those in support of his equal protection claim, which are noted above.

(Am. Compl. ¶¶ 207, 209-11, 217-19, 229.) Although Carpenter’s alleged

improper loans and failure to respect boundaries with a student athlete

may be the actual, legitimate, and non-discriminatory reasons for his

termination, at this juncture, Carpenter has sufficiently alleged a NYHRL

claim against MVCC, Dame, and Oneida County. See Menaker, 935 F.3d

at 26; Russell v. Aid to Developmentally Disabled, Inc., No. 12 CV 389,

2013 WL 633573, at *9 (E.D.N.Y. Feb. 20, 2013). Defendants’ argument

as to the non-discriminatory rationale for Carpenter’s termination is more

43

appropriate on summary judgment. See Menaker, 935 F.3d at 30. Further,

although not argued by defendants to the contrary, the claim survives

against MVCC and Oneida County as well pursuant to the “cat’s paw

theory.” See id. at 37-39.

Accordingly, in light of the lenient pleading standard for gender

discrimination claims, MVCC’s, Dame’s, and Oneida County’s motions to

dismiss Carpenter’s NYHRL claim are denied.

However, as noted above, the amended complaint contains no

allegations of Broadhurst’s involvement in any gender-based

discrimination. Carpenter did not even attempt to remedy this in his

opposition brief, even when confronted with this fact in Broadhurst’s

motion. Accordingly, Broadhurst’s motion to dismiss Carpenter’s NYHRL

claim is granted, and the claim is dismissed as against him.

6. DPPA

Carpenter brings a claim under the DPPA against all defendants,

alleging that, pursuant to Dame’s request, which was given under false

pretenses, members of the MVCC Security Office ran a Department of

Motor Vehicles (DMV) “check” on Carpenter’s license plate, during which

“certain information about [him] was ascertained and conveyed to . . .

44

Dame.” (Am. Compl. ¶¶ 189-96.) MVCC, Dame, and Oneida County

argue that this claim should be dismissed because Carpenter “does not

allege the information at issue was obtained from a source regulated by

that provision” and because the information was used for a “permissible

use” under the statute. (Dkt. No. 39, Attach. 5 at 34-35; Dkt. No. 50,

Attach. 5 at 25.) Broadhurst argues that this claim should be dismissed as

against him, because there are no allegations in Carpenter’s amended

complaint connecting him to these allegations. (Dkt. No. 49, Attach. 5

at 23-24.)

“Under the DPPA, state DMVs, individuals, organizations, and

entities may not disclose ‘personal information’ drawn from motor vehicle

records unless permitted by statute.” Gordon v. Softech Int’l, Inc., 726 F.3d

42, 49 (2d Cir. 2013) (citations omitted). “Personal information” includes

“an individual’s photograph, social security number, driver identification

number, name, address (but not the 5–digit zip code), telephone number,

and medical or disability information.” 18 U.S.C. § 2725(3). The DPPA

“identifies fourteen exceptions—‘permissible uses’—for which disclosure is

allowed.” Gordon, 726 F.3d at 49 (citing 18 U.S.C. § 2721(b)). Here,

defendants argue that two permissible uses apply: “[f]or use by any

45

governmental agency . . . in carrying out its functions,” and “[f]or use in . . .

investigation in anticipation of litigation.” (Dkt. No. 39, Attach. 5 at 35; Dkt.

No. 50, Attach. 5 at 25 (citing 18 U.S.C. §§ 2721(b)(1), (4)).)

First, Carpenter’s amended complaint is entirely devoid of any

allegations as to Broadhurst’s involvement in the facts underlying the

DPPA claim. (See generally Am. Compl.) Carpenter does not dispute this,

but, instead, asserts that he will be able to determine whether or not

Broadhurst was involved through discovery. (Dkt. No. 55, Attach. 2 at 24.)

This argument is unavailing, as “discovery is not for the purpose of finding

a cause of action.” Perez v. Johnson, No. 07 Civ. 3761, 2008 WL

2876546, at *3 (S.D.N.Y. July 23, 2008). Accordingly, Broadhurst’s motion

to dismiss Carpenter’s DPPA claim is granted and the claim is dismissed

as against him.

Similarly, Carpenter does not set forth any response to MVCC,

Dame, and Oneida County’s argument that the information was gathered

for a permissible use. (Dkt. No. 52, Attach. 2 at 23-24; Dkt. No. 56, Attach.

2 at 23-24 .) However, defendants’ argument is wholly lacking in detail and

case support. (Dkt. No. 39, Attach. 5 at 34-35; Dkt. No. 50, Attach. 5

at 25.) They merely state the provision of the statute without any

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interpretation or explanation as to why it applies to this case. (Id.) Further,

“[u]ses of personal information with a remote relation to litigation [are not]

exempt under [the DPPA].” Cross v. Connolly, No. 17-CV-906, 2019 WL

1429262, at *2 (W.D.N.Y. Mar. 29, 2019) (citation omitted). Rather,

“‘[i]nvestigation in anticipation of litigation’ is best understood to allow

background research to determine whether there is a supportable theory

for a complaint, a theory sufficient to avoid sanctions for filing a frivolous

lawsuit, or to locate witnesses for deposition or trial testimony.” Id. (citation

omitted).

Carpenter alleges that Dame had MVCC check Carpenter’s DMV

records under false pretenses. (Am. Compl. ¶¶ 189-96.) At this juncture,

and based on the totality of the circumstances, including defendants’

unpersuasive argument that permissible uses apply, Carpenter’s

allegations are sufficient to maintain a DPPA claim as against MVCC,

Dame, and Oneida County. Accordingly, their motions to dismiss this claim

are denied.

V. Conclusion

WHEREFORE, for the foregoing reasons, it is hereby

ORDERED that MVCC and Dame’s motion to dismiss and/or for

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partial summary judgment (Dkt. No. 39) is GRANTED IN PART and

DENIED IN PART as follows:

GRANTED as to (1) Carpenter’s substantive due process and

stigma plus claims as against both defendants, and

(2) Carpenter’s procedural due process, equal protection, and

Section 1983 gender discrimination claims as against MVCC,

which claims are DISMISSED; and

DENIED in all other respects; and it is further

ORDERED that Broadhurst’s motion to dismiss and/or for partial

summary judgment (Dkt. No. 49) is GRANTED IN PART and DENIED IN

PART as follows:

GRANTED as to Carpenter’s substantive due process, equal

protection, NYHRL, and DPPA claims as against Broadhurst,

which claims are DISMISSED; and

DENIED in all other respects; and it is further

ORDERED that Oneida County’s motion to dismiss and/or for partial

summary judgment (Dkt. No. 50) is GRANTED IN PART and DENIED IN

PART as follows:

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GRANTED as to Carpenter’s NYLL, procedural due process,

substantive due process, stigma plus, equal protection, and

Section 1983 gender discrimination claims as against Oneida

County, which claims are DISMISSED; and

DENIED in all other respects; and it is further

ORDERED that the following claims remain against MVCC: (1) a

claim pursuant to the FLSA; (2) a claim pursuant to the NYLL; (3) a

defamation claim pursuant to New York state law; (4) a claim pursuant to

the NYHRL; and (5) a claim pursuant to the DPPA; and it is further

ORDERED that the following claims remain against Dame: (1) a

claim pursuant to the FLSA; (2) a claim pursuant to the NYLL; (3) a

Fourteenth Amendment procedural due process claim pursuant to 42

U.S.C. § 1983; (4) a Fourteenth Amendment equal protection claim

pursuant to 42 U.S.C. § 1983; (5) a defamation claim pursuant to New York

state law; (6) a claim pursuant to the NYHRL; and (7) a claim pursuant to

the DPPA; and it is further

ORDERED that the following claims remain against Broadhurst: (1) a

claim pursuant to the FLSA; (2) a claim pursuant to the NYLL; and (3) a

Fourteenth Amendment procedural due process claim pursuant to 42

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U.S.C. § 1983; and it is further

ORDERED that the following claims remain against Oneida County:

(1) a claim pursuant to the FLSA; (2) a defamation claim pursuant to New

York state law; (3) a claim pursuant to the NYHRL; and (4) a claim

pursuant to the DPPA; and it is further

ORDERED that defendants shall respond to the amended complaint,

(Dkt. No. 31), within the time allotted by the rules; and it is further

ORDERED that the parties shall contact Magistrate Judge Thérése

Wiley Dancks to schedule further proceedings; and it is further

ORDERED that the Clerk provide a copy of this Memorandum-

Decision and Order to the parties.

IT IS SO ORDERED.

April 20, 2020 ; | g

Albany, New York

1S. Disinct Judge

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