Stoutenger v. Fulton Community Development Agency

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

________________________________________

JOLENE STOUTENGER,

Plaintiff,

v. 5:21-cv-00563

CITY OF FULTON; FULTON COMMUNITY

DEVELOPMENT AGENCY; BRADLEY

BROADWELL; JOSEPH FIUMARA; and,

DEANA MICHAELS,

Defendants.

________________________________________

THOMAS J. McAVOY,

Senior United States District Judge

DECISION and ORDER

I. INTRODUCTION

Plaintiff Jolene Stoutenger commenced this action asserting claims pursuant to

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

1983 (“Section 1983”), and the New York State Human Rights Law, N.Y. Exec. Law § 290

et seq. (“NYSHRL”). See First Amended Complaint (“FAC”), Dkt. 4. Plaintiff’s claims

involve allegations of disparate treatment on the basis of gender and familial status, and

retaliation. See generally, id. Plaintiff seeks injunctive and declaratory relief, as well as

compensatory damages, attorneys’ fees, and costs. Id. Defendants City of Fulton, Fulton

Community Development Agency, Bradley Broadwell, Joseph Fiumara, and Deanna

Michaels (collectively “Defendants”) move pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss

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the FAC in its entirety. Dkt. 17. Plaintiff opposes the motion, Dkt. 23, and Defendants

reply. Dkt. 26. The Court will decide the motion on the parties’ submissions and without

oral argument.

II. BACKGROUND1

Stoutenger is the mother and primary caregiver of several school-aged children.

FAC, ¶¶ 7, 27. Plaintiff has worked as a Certified Housing Specialist at Fulton

Community Development Agency (“FCDA”) since July 1, 2019. Id., ¶¶ 8, 28. FCDA is a

municipal corporation that administers federal and state grants for community

development and public improvement projects for the City of Fulton (“Fulton”), including

housing-related grants and subsidies from the U.S. Department of Housing and Urban

Development (“HUD”). Id., ¶ 10. Bradley Broadwell (“Broadwell”) is the current Executive

Director of FCDA and began in that position in December 2020. Id., ¶ 11. Joseph

Fiumara (“Fiumara”) served as the Executive Director of FCDA until July 2020. Id., ¶ 13.

Fulton is a municipality in Oswego County, New York. Id., ¶ 9. Deanna Michaels is the

Mayor of the City of Fulton (“Mayor Michaels”), and in that capacity also serves as the

Chairperson of FCDA’s Board of Directors, which is comprised of Mayor Michaels and the

City of Fulton’s Common Council members. Id., ¶ 15. As the Chairperson of FCDA’s

Board of Directors, Mayor Michaels provides direct management oversight over FCDA

1For purposes of this motion, the Court accepts Plaintiff's allegations as true and

draws all reasonable inferences in her favor. See City of Providence v. BATS Glob. Mkts.,

Inc., 878 F.3d 36, 48 (2d Cir. 2017). This tenet does not apply to legal conclusions.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Similarly, “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory statements ... are not

entitled to the assumption of truth.” Id.; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007)(stating that a court is “not bound to accept as true a legal conclusion couched

as a factual allegation”).

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staff, particularly after Fiumara was removed from his position at FCDA. Id., ¶ 16.

Plaintiff was invited to interview for the Certified Housing Specialist position by the

out-going Housing Specialist she replaced, Karen O’Brien (“O’Brien”), a former work

colleague. Id., ¶ 29. When she interviewed for the position at FCDA, Stoutenger met with

Fiumara. See id., ¶ 31. After Fiumara told Plaintiff that the Certified Housing Specialist

position offered only $17.50 per hour, Stoutenger asked if the wage rate was negotiable.

Id., ¶ 32. Fiumara told Plaintiff that FCDA could not offer her a higher wage, but that she

was eligible to earn more working overtime, and would be eligible for health care

insurance for her and her children. Id., ¶¶33, 35. Fiumara also stated that the Housing

Services Supervisor, Peggy Birkhead, would be retiring soon and he would consider

Plaintiff for that position. Id., ¶34.

Stoutenger alleges that at all relevant times, Defendants have been aware that she

is the primary caregiver to her children. Id., ¶ 39. She alleges that in addition to trying to

obtain health care insurance for her children through FCDA, Stoutenger has identified

herself as the primary caregiver to her children by taking time off from work to tend to their

health care needs, and unexpected gaps in child care during the COVID pandemic. See

id., ¶¶ 61, 131, 153-155.

Allegations Regarding Defendants’ Discriminatory Differential Treatment

Stoutenger alleges that she has been subjected to discriminatory differential

treatment because of her gender and status as a working mother throughout her tenure at

FCDA. In this regard, Plaintiff alleges that she has been subjected to:

• Denial of the Same Wage Rate Paid to Former Housing Specialist Who Had No

Child Care Responsibilities: Stoutenger alleges that O’Brien, who she replaced, but

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who did not have child care responsibilities, was paid $40,000 per year, whereas

FCDA hired Plaintiff at a pay rate of $17.50 (and which was increased by 85 cents

per hour in 2020), which is approximately $31,000 per year, or $9000 less than

what O’Brien received for the same job. See FAC, ¶¶ 31, 70-72, 99.

• Denied Consideration for Promotion to Supervisor in 2019: Stoutenger alleges

that FCDA and Fiumara denied her the opportunity to be considered for the

promotion to Housing Services Supervisor. See FAC, ¶¶ 44-51. Instead, the FCDA

Housing Services Supervisor position was offered to Pete Williams (“Williams”), “a

man who has no children, and twenty-years (20) experience working as a manager

in an unrelated industry.” Id., ¶¶ 55-56.

• Denied Promised Overtime: Stoutenger alleges throughout her tenure at FCDA,

she has been denied the promised opportunity to earn overtime pay, contending

instead that after she started working at FCDA “Fiumara made it clear that overtime

pay was only available on the rare occasion and had to be pre-approved.” FAC, ¶¶

58-59.

• Denied Promised Health Care Insurance for Plaintiff and Her Children: Stoutenger

alleges that FCDA has denied her promised health care insurance for her and her

children. Plaintiff alleges that after she was hired, Fiumara actively dissuaded her

from seeking FCDA’s fully-paid health care insurance for her children. See FAC ¶

61. Thereafter, FCDA reduced the health care insurance benefit from fully-paid

health insurance to a $5000 health care stipend. See id., ¶¶ 62-75. Plaintiff alleges

that “[s]ince Mayor Michaels and the FCDA Board of Directors hired Defendant

Broadwell, Plaintiff’s pay and benefits have continued to be whittled down. In or

about January 2021, Plaintiff was informed that FCDA would no longer be

provid[ing] the $5000 stipend to be used toward heath care costs. Instead, FCDA

now offers a health care insurance plan that is too expensive for Plaintiff to afford.”

Id., ¶¶120-122.

• Denied Opportunities for Training and Advancement: In April 2021, FCDA staff

learned of a new federal voucher and grant program for homeless individuals called

the Emergency Housing Voucher (“EHV”) program. See FAC ¶139. When

Stoutenger expressed interest in attending webinars and other training so that she

could assist FCDA in obtaining the vouchers and additional federal funding,

“FCDA’s new assistant director, Sarah Farley (‘Farley’) actively dissuaded Plaintiff

from working to secure the EHV vouchers and programmatic grant from HUD

because Farley said [Pete] Williams [the Housing Services Supervisor] should have

the opportunity to do this work even though Williams has done nothing to date to

secure the EHV vouchers and exhibited no intent to do so.” Id., ¶¶ 140-141. In

addition, following some staff turnover at FCDA Stoutenger “expressed to FCDA

management her willingness to take on additional duties and advance her career at

the agency. However, FCDA management has suggested that Stoutenger’s ability

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to obtain a management position at the agency is unlikely because of her alleged

inability to get along with Williams, even though she has complained to Defendant

Broadwell and Farley several times about Williams because of his failure to do his

job and his expectation that Plaintiff will do his work, which is a situation that

remains unremedied.” Id., ¶¶ 150-151.

Comments and Other Alleged Mistreatment

Plaintiff alleges that she has been subjected to comments and other mistreatment

that, she contends, demonstrate bias on the basis of her gender and status as a working

mother. In this regard, Stoutenger alleges that Fiumara routinely referred to her as “girl” or

“good girl,” and never took her knowledge of government benefit programs and her

professional experience seriously, which he demonstrated by micro-managing every

aspect of Plaintiff’s work. See FAC ¶¶84-94.

Plaintiff also alleges that FCDA’s managerial staff, including current Executive

Director Broadwell, have admonished Stoutenger in writing for alleged “performance

deficiencies,” which, she contends, have nothing to do with work performance, but instead

Plaintiff’s need to use leave when her children require medical attention or when she does

not have adequate child care. As an example, Plaintiff alleges that in June 2021,

Broadwell issued her a disciplinary write-up in which he chastised her for alleged

“performance issues that affect FCDA and its staff” but the memorandum focused on

Plaintiff using her own paid time off (“PTO”) on short-notice to tend to her sons’ medical

care needs and child care during a week in which her children were no longer in school

but not yet in camp, and her child care for one day fell through. FAC, ¶¶ 153-154.

Protected Activity and Defendants’ Responses

Stoutenger alleges she has repeatedly protested Defendants’ discriminatory

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differential treatment by complaining to her FCDA supervisors and Mayor Michaels, all of

whom she contends have subjected her to illegal retaliation. Plaintiff contends that “[a]

few weeks after Stoutenger complained about FCDA’s failure to afford her the promised

promotion to Housing Services Supervisor and her low wage rate, FCDA and Fiumara

began to retaliate against her.” FAC, ¶ 62. This included reducing the employer-funded

health care benefit as discussed above, and FCDA management notifying the staff that

the four (4) paid personal days they had been previously afforded would be eliminated.

FAC ¶ 123. When Plaintiff complained about what she considered a material change to

her employment benefits, “Broadwell told Stoutenger that the decision to take away the

$5000 health care stipend and the four paid personal days was made by Mayor Michaels

and he could not get involved because of the ‘politics’ that motivated the Mayor’s

decisions.” Id. ¶ 124.

Plaintiff also alleges that in addition to taking PTO away, immediately after issuing a

“baseless” disciplinary write-up to Plaintiff in June 2021, Broadwell informed Stoutenger

that when her PTO runs out, she will be unable to use unpaid time off, even if she requires

leave to tend to family-care responsibilities. FAC ¶ 162. “Broadwell explained to Plaintiff

that prohibiting unpaid time off at FCDA was a new policy.” Id. ¶ 163. Broadwell informed

Stoutenger “that under this new policy, she could only take time off from work if that time

was accrued sick leave or PTO, and that once her accrued leave had been used up, she

would be prohibited from taking time off from work for any reason, and if she

did take unpaid leave, she would be fired.” Id. ¶ 164. “When Stoutenger met with

Defendant Broadwell to discuss the latest baseless write-up, she objected to his threat to

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terminate her employment if she needed unpaid time off to care for her children. In

response, Defendant Broadwell screamed at Plaintiff and encouraged her to hand in a

resignation letter and leave her position at FCDA.” Id., ¶¶ 165-166.

Plaintiff also alleges that in February 2020, three (3) months after Fiumara refused

to interview Stoutenger for the Housing Supervisor position, Plaintiff and her colleague,

Jessica Mills (“Mills”) (who was also a working mother with minor children and was told

she would be considered for the Housing Supervisor promotion but was not interviewed for

the position) met with Mayor Michaels to complain about the discriminatory treatment they

felt they were subjected to by FCDA and Fiumara. See FAC, ¶¶ 95-101. The FAC

asserts:

During the meeting, Plaintiff informed Mayor Michaels about the

discriminatory treatment she and Mills were subjected to at FCDA, including

but not limited to: the decision to hire Williams for the Housing Specialist

Supervisor position even though the position had been promised to both

Mills and Stoutenger; Plaintiff’s low wage rate, which was almost ten

thousand dollars less than the wages paid to the women who occupied the

position prior to Plaintiff who did not have family-care responsibilities; the

decision to cut FCDA health care benefits in half with no notice and deny her

children promised insurance; and Fiumara’s discriminatory comments and

micro-managing.

FAC ¶ 99. “Mayor Michaels made it clear to Stoutenger and Mills that she had no interest

in remediating the discriminatory treatment they complained about. Instead, Mayor

Michaels insisted that Plaintiff and her colleague put together for her a list of ‘positive

things’ they like about their jobs at FCDA.” Id. ¶¶ 100-101.

Plaintiff alleges that, “[u]pon information and belief, Mayor Michaels did nothing to

remedy the situation at FCDA that Plaintiff put her on notice of in February 2020 until

Defendant Michaels received Charges of Discrimination from the EEOC filed by

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Stoutenger and Mills in or about July 2020.” Id., ¶ 102. “Shortly thereafter, on Monday,

July 6, 2020, Mayor Michaels called a meeting with FCDA staff and informed them that

Fiumara was no longer Executive Director.” Id., ¶ 103. “During the meeting, Mayor

Michaels told FCDA staff that she was going to retain a law firm to conduct an

investigation, although she did not specify about what, and she said that the entire

staff would be required to sign confidentiality agreements.” Id., ¶ 104. “Mayor Michaels

stated that she had heard rumors about ‘what is going on’ at FCDA and that it was

inappropriate for those employed by the agency to discuss work with anyone else.” Id., ¶

105. Mayor Michaels then noted that employment with FCDA was “at will,” and when

Stoutenger raised her hand and said she did not know what “at will” employment

meant, Michaels said that anyone working at FCDA was there of their own “free will.” Id.,

¶¶ 106-07. Mayor Michaels also informed the FCDA staff that she and other members of

the FCDA Board of Directors would be stopping by on occasion to ask employees

questions on an informal basis, although she did not explain what types of questions

would be asked or why. Id., ¶ 108.

Plaintiff also contends that “in September 2020, Stoutenger requested a brief

period of unpaid leave because she has a child with disabilities who required extensive

medical attention at that time and because she was coping with her own mental health

issues caused by the discriminatory and retaliatory treatment she was subjected to at

FCDA.” Id., ¶ 126. “A short time later, Defendant Broadwell informed Plaintiff that when

she returned to work, her work hours would be increased by an hour each day, which

extended her regular work week from thirty-five (35) hours to forty (40) hours, and her

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regular work schedule now is 9 a.m. to 5 p.m. whereas previously, before the pandemic,

she regularly worked 8:30 a.m. to 4:30 p.m.” Id., ¶ 127.2 Plaintiff contends that “FCDA’s

decision to impose additional work hours on its staff during the pandemic

disproportionately affects Plaintiff because she has school-age children at home who

require supervision and she has been unable to find reliable and affordable child care

because of the COVID-19 pandemic.” Id., ¶ 128.

In addition, Plaintiff alleges that she has been repeatedly counseled for not doing

the jobs of others, such as failing to answer the phone and distribute the mail even though

FCDA’s then-front desk administrative assistant, Christine Peck (“Peck”), was supposed to

perform these functions. Id., ¶ ¶ 129-130. Furthermore, Plaintiff contends that in a written

reprimand for alleged performance issues that included calling out of work on short notice

to take care of her sick child twice, Plaintiff was falsely accused of violating the

confidentiality agreement that she was made to sign by Mayor Michaels. Id., ¶¶ 131-135.

Plaintiff also contends that in the Spring of 2021, she complained to Broadwell that

Williams, who was then her direct supervisor, relied on Plaintiff continuously to explain and

reexplain to him how every facet of FCDA’s housing program works even though he had

been employed by FCDA since 2019. Id., ¶ 136. Moreover, Plaintiff complained to

Broadwell that Williams constantly makes her perform his duties. Id., ¶ 137. As indicated

above, Plaintiff contends that the new Assistant Director, Sarah Farley, thereafter

dissuaded her from securing the EHV vouchers and programmatic grant from HUD

2The Court fails to see how the new schedule increased the weekly hours of work

inasmuch as the two schedules both appear to be 8-hour work days. Nonetheless, the

Court considers for purposes of this motion that Defendant Broadwell increased Plaintiff’s

weekly hours of work.

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because Farley said Williams should have the opportunity to do this work. Id., ¶ 141.

Plaintiff maintains that in the months before the Complaint in this matter was filed,

Broadwell continued to issue her baseless write-ups, the most recent of which threaten

her termination of employment. See id., ¶¶ 152-166. As indicated above, when Plaintiff

met with Broadwell to discuss what she felt was a baseless write-up, Broadwell screamed

at Plaintiff and encouraged her to hand in a resignation letter and leave her position at

FCDA. Id., ¶ 166. Plaintiff alleges that “[i]n addition to this ongoing illegal discriminatory

and retaliatory mistreatment by Defendants FCDA and Broadwell, Stoutenger has been

informed by her co-workers that since the filing of this litigation, Mayor Michaels has been

heard at the FCDA office screaming and complaining about Stoutenger.” Id., ¶ 167.

Causes of Action

In Count I, Plaintiff brings Title VII gender discrimination claims against Fulton and

FCDA. Plaintiff asserts that she has been “subjected to discriminatory disparate treatment

because of her gender and status as a care-giver, which includes but is not limited to

denial of a promised promotion, a lower wage than offered to others with no familial

responsibilities who perform the same duties, denial of opportunities to work overtime, and

denial of fully paid health care insurance for her and her children.” FAC ¶ 171.

In Count II, Plaintiff brings Title VII retaliation claims against Fulton and FCDA.

Plaintiff asserts that Fulton and FCDA retaliated against her “when she has complained

about unequal treatment, including but not limited to denying Plaintiff fully paid health care

insurance for her and her children, whittling down her other fringe benefits such as taking

away four days of paid time off and the opportunity to take unpaid leave, issuing to her

baseless warnings about alleged performance issues, and suggesting she will never be

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promoted because she has engaged in protected activity.” FAC ¶ 175.

In Count III, Plaintiff brings gender discrimination claims against Mayor Michaels

pursuant to 42 U.S.C. §1983. Plaintiff asserts that Mayor Michaels “discriminated against

Plaintiff in the terms and conditions of her employment, by subjecting Plaintiff to gender

discrimination, thus depriving . . . Plaintiff of her rights under the Equal Protection Clause

of the U.S. Constitution.” FAC ¶ 178. Plaintiff asserts that Mayor Michaels “has been and

continues to be deliberately indifferent to the ongoing unconstitutional acts described

herein and grossly negligent in supervising those under her who also subjected Plaintiff to

illegal gender discrimination.” FAC ¶ 179.

In Count IV, Plaintiff brings retaliation claims against Mayor Michaels pursuant to 42

U.S.C. §1983. Plaintiff asserts that Mayor Michaels “has retaliated against Plaintiff after

she complained about the gender discrimination she has been subjected to at FCDA, thus

depriving Plaintiff of her rights under the Equal Protection Clause.” FAC ¶ 184. Plaintiff

contends that Mayor Michaels “has demonstrated deliberate indifference to the ongoing

unconstitutional acts described herein that has caused Plaintiff to be deprived of her rights

under the Equal Protection Clause.” FAC ¶ 185. Plaintiff asserts that she has suffered

injury and damages as a result of retaliatory acts that Mayor Michaels “had committed in

her individual capacity and under color of state law, and the retaliation of others under her

supervision that she has condoned.” FAC ¶ 186. Plaintiff contends that Mayor Michaels

“has acted intentionally and with malice and/or reckless indifference to Plaintiff’s federally

protected rights.” FAC ¶ 187.

In Count V, Plaintiff brings gender discrimination claims against all defendants

pursuant to the NYSHRL. Plaintiff contends that “Defendants have discriminated against

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[her] in the terms and conditions of her employment by subjecting her to discriminatory

differential treatment on the basis of her gender and familial status in violation of

NYSHRL, which includes but is not limited to denial of a promised promotion, a lower

wage than was offered to others with no familial responsibilities who performed the same

duties, denial of opportunities to work overtime, and denial of fully paid health care

insurance for her and her children.” FAC ¶ 189. Plaintiff also alleges that “Defendants

Fiumara, Broadwell and Michaels are liable under NYSHRL as employers because they

aided and abetted the disparate treatment that Plaintiff has suffered on the basis of her

gender and familial status.” FAC ¶ 191.

In Count VI, Plaintiff brings retaliation claims against all defendants pursuant to the

NYSHRL. In this regard, Plaintiff contends that “Defendants have subjected Plaintiff to

illegal retaliation after she has engaged in protected activity by complaining about their

illegal discriminatory treatment, in violation of NYSHRL, which includes but is not limited to

denying Plaintiff promised fully paid health care insurance for her and her children,

whittling down her other fringe benefits such as taking away four days of paid time off,

issuing to her baseless warnings about alleged performance issues, by suggesting that

she will never be promoted because she has engaged in protected activity, and by

threatening to fire her.” FAC ¶ 195. Plaintiff also asserts that “Defendants Fiumara,

Broadwell and Michaels are liable under NYSHRL as employers because they aided and

abetted the retaliation that Plaintiff has suffered.” FAC ¶ 196.

III. STANDARD OF REVIEW

To survive a Rule 12(b)(6) motion, a complaint must “contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). The Court “must accept as true all of the [factual] allegations contained in a

complaint[,]” but “[t]hreadbare recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice.” Id. (citation omitted). "While Twombly does

not require heightened fact pleading of specifics, it does require enough facts to ‘nudge

[plaintiffs'] claims across the line from conceivable to plausible.'" In re Elevator Antitrust

Litig., 502 F.3d 47, 50 (2d Cir. 2007)(quoting Twombly, 550 U.S. at 570); see Anderson

News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 184 (2d Cir. 2012)(Plausibility is “a

standard lower than probability.”). A claim will only have “facial plausibility when the

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

the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. This pleading

standard "demands more than an unadorned, the-defendant-unlawfully-harmed me

accusation" in order to withstand scrutiny. Id. (citing Twombly, 550 U.S. at 555). “Where a

complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops

short of the line between possibility and plausibility of ‘entitlement to relief.’” Id. (quoting

Twombly, 550 U.S. at 557).

IV. DISCUSSION

a. Exhaustion of Administrative Remedies

The FAC asserts that Plaintiff “filled a Charge of Discrimination alleging that she

had been subjected to illegal discrimination and retaliation during her employment at

FCDA with the United States Equal Employment Opportunity Commission (“EEOC”) on

July 24, 2020.” FAC ¶ 18. Defendants contend that it is undisputed that Plaintiff did not

file a charge of discrimination with the EEOC against Fulton, and therefore the Title VII

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claims against it must be dismissed with prejudice as having not been administratively

exhausted. See Defs. Mem. L., Dkt. 17-1, at 3-4. Plaintiff does not specifically assert that

Fulton was named in the EEOC charge. See Pl. Mem. L., Dkt. 23, at 8-10. Rather, she

contends that whether she exhausted administrative remedies as to Fulton is Defendants’

burden to prove as an affirmative defense, and argues that Defendants have failed to

meet this burden. See id. Plaintiff also argues that “‘claims that were not asserted before

the [EEOC] may be pursued in a subsequent federal court action if they are reasonably

related to those that were filed with the [EEOC].’” Id. at 9 (quoting Deravin v. Kerik, 335

F.3d 195, 200 (2d Cir. 2003)). Furthermore, Plaintiff maintains that she “has alleged that

Fulton had actual knowledge of her EEOC Charge when Mayor Michaels received it from

the EEOC shortly after it was filed in July 2020.” Id. (citing FAC, ¶ 102). In their Reply,

Defendants assert that they are not challenging whether Plaintiff exhausted her Title VII

claims at the EEOC, but instead are challenging Plaintiff’s failure to name Fulton as a

party to a discrimination charge filed with the EEOC. Defs. Reply Mem. L., Dkt. 23, at 7-8.

Defendants argue that when a defendant challenges a plaintiff's failure to exhaust her

administrative remedies with respect to a "party" rather than a "claim," courts apply the

"identity of interest" theory rather than the "reasonably related" theory raised by Plaintiff.

Id. at 8. Defendants contend that because all of the identity of interest factors weigh in

favor of Fulton, and because Plaintiff was represented by counsel during her EEOC

proceeding, the Court should dismiss Plaintiff’s Title VII claims against Fulton. Id. at 8-10.

Analysis

“Before bringing suit under Title VII, a plaintiff must exhaust available administrative

remedies by filing a timely complaint with the EEOC or an authorized state agency.” Payne

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v. McGettigan's Mgmt. Servs. LLC, No. 19CV1517 (DLC), 2020 WL 2731996, at *3

(S.D.N.Y. May 26, 2020)(citing 42 U.S.C. § 2000e-5(f)(1); Duplan v. City of New York, 888

F.3d 612, 621 (2d Cir. 2018)). “A plaintiff can generally bring a lawsuit against only those

entities named in the initial EEOC charge.” Id. (citing Johnson v. Palma, 931 F.2d 203,

209 (2d Cir. 1991); 42 U.S.C. § 2000e-5(f)(1)(providing that after administrative

exhaustion "a civil action may be brought against the respondent named in the charge")).

The purpose of the exhaustion requirement is "to give the administrative agency the

opportunity to investigate, mediate, and take remedial action." Fowlkes v. Ironworkers

Local 40, 790 F.3d 378, 384 (2d Cir. 2015)(citation omitted).

The burden of pleading and proving failure to exhaust administrative remedies

pursuant to Title VII "lies with [the] defendants and operates as an affirmative defense."

Hardaway v. Hartford Pub. Works Dep't, 879 F.3d 486, 491 (2d Cir. 2018). “An affirmative

defense is grounds for dismissal when it is clear from the face of the complaint and

documents integral thereto that plaintiff's claims are barred.” Payne, 2020 WL 2731996, at

*3 (citing Sewell v. Bernardin, 795 F.3d 337, 339 (2d Cir. 2015); Holowecki v. Fed.

Express Corp., 440 F.3d 558, 565-66 (2d Cir. 2006)). Defendants’ assertion in their

motion that Plaintiff failed to exhaust administrative remedies by failing to name Fulton in

the EEOC charge satisfies the pleading requirement of Hardaway. That leaves the

question whether, on the face of the FAC and documents integral thereto, it is clear that

Plaintiff's Title VII claims against Fulton are barred.

The law on administrative exhaustion in Title VII cases contains two recognized

exceptions relevant here: the “reasonably related” exception as referenced by Plaintiff, see

Deravin, 335 F.3d at 200–201, and the “identity of interest” exception as referenced by

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Defendants. See Johnson, 931 F.2d at 209 (the identity of interest exception allows a

plaintiff to bring suit against a party not named in the EEOC charge that is sufficiently

related to the party that was named). As indicated, Plaintiff proceeds under the

reasonably related exception.

As the Second Circuit has stated:

As a precondition to filing a Title VII claim in federal court, a plaintiff must

first pursue available administrative remedies and file a timely complaint with

the EEOC. We have recognized, however, that claims that were not

asserted before the EEOC may be pursued in a subsequent federal court

action if they are reasonably related to those that were filed with the agency.

A claim is considered reasonably related if the conduct complained of would

fall within the scope of the EEOC investigation which can reasonably be

expected to grow out of the charge that was made. This exception to the

exhaustion requirement is essentially an allowance of loose pleading and is

based on the recognition that EEOC charges frequently are filled out by

employees without the benefit of counsel and that their primary purpose is to

alert the EEOC to the discrimination that a plaintiff claims he is suffering.... In

determining whether claims are reasonably related, the focus should be on

the factual allegations made in the EEOC charge itself, describing the

discriminatory conduct about which a plaintiff is grieving.

Deravin, 335 F.3d 195, 200–201 (2d Cir. 2003)(cleaned up). “The central question is

whether the complaint filed with the EEOC gave that agency ‘adequate notice to

investigate discrimination on both bases.’” Williams v. N.Y. City Hous. Auth., 458 F.3d 67,

70 (2d Cir. 2006)(quoting Deravin, 335 F.3d at 202). In addition, “[a] claim alleging

retaliation by an employer against an employee for filing a discrimination charge is one

type of claim [the Second Circuit has] recognized as reasonably related to the underlying

discrimination charge.” Legnani v. Alitalia Linee Aeree Italiane, S.P.A, 274 F.3d 683, 686

(2d Cir. 2001)(quotation marks and citations omitted).

Here, the two Title VII claims asserted in the FAC are brought against both Fulton

and FCDA. See FAC ¶¶ 169-172 (Count I - Gender Discrimination), 173-176 (Count II -

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Retaliation). Further, the allegations in the FAC supporting these claims are based almost

exclusively on conduct occurring at FCDA, and Plaintiff maintains that FCDA and Fulton

operated as an integrated enterprise making them jointly responsible for the same conduct

under the single employer doctrine. Thus, it would appear that the Title VII claims

asserted against Fulton are the same as the Title VII claims asserted against FCDA,

obviating the need to rely on the “reasonably related” exception where, as here, Plaintiff

was purportedly represented by counsel at the EEOC stage. Moreover, it is unclear how

the EEOC could investigate, mediate, and take remedial action against Fulton for its

alleged gender discrimination if it was not named or mentioned in the EEOC charge.

However, even though the EEOC charge is referenced in the FAC, the parties have

not supplied the charge itself. The face of the FAC does not allow for a determination

whether the EEOC charge described the involvement of Fulton such to apply the

reasonably related exception to the gender discrimination claim against Fulton. See

Johnson v. Morrison v. Foerster LLP, 14–CV–0428 (JMF), 2015 WL 845723, at 4 n. 2

(S.D.N.Y. Feb. 26, 2015); Berlyavsky v. New York City Dep't of Env't Prot., No.

14-CV-03217 KAM RER, 2015 WL 5772266, at *5, n. 7 E.D.N.Y. Aug. 28, 2015), rep. &

rec. adopted as modified, 2015 WL 5772255 (E.D.N.Y. Sept. 30, 2015). Furthermore, the

retaliation claim potentially against Fulton that arose after Plaintiff filed her EEOC charge,

see FAC ¶¶ 102-09 (after Mayor Michaels received the EEOC charge, she called a

meeting, informed the staff that Fiumara was no longer Executive Director, and made

several announcements including that staff would have to sign confidentiality agreements),

¶ 167 (“Stoutenger has been informed by her co-workers that since the filing of this

litigation, Mayor Michaels has been heard at the FCDA office screaming and complaining

17

about Stoutenger.”),3 may be reasonably related to the claims in the EEOC charge. See

Legnani, 274 F.3d at 686. Accordingly, this branch of Defendants’ motion is denied

without prejudice to renewal. See Berlyavsky, 2015 WL 5772266, at *5. Because, as

discussed below, the Title VII claims will be dismissed without prejudice and with leave to

replead, Plaintiff is directed to file a copy of the EEOC charge with any amended pleading.

Assuming arguendo that the “reasonably related” exception does not apply, the

Court turns to the “identity of interest” exception raised by Defendants. Under a limited

exception to the general rule that a defendant must be named in the EEOC charge, a Title

VII action may "proceed against an unnamed party where there is a clear identity of

interest between the unnamed defendant and the party named in the administrative

charge." Vital v. Interfaith Med. Ctr., 168 F.3d 615, 619 (2d Cir. 1999)(citation omitted);

see Johnson, 931 F.2d at 209; Duverny v. Hercules Med. P.C., No. 18CV07652 (DLC),

2020 WL 1033048, at *9 (S.D.N.Y. Mar. 3, 2020). “In adopting the identity of interest

exception, the Second Circuit observed that EEOC charges ‘generally are filed by parties

not versed in the vagaries of Title VII and its jurisdictional and pleading requirements.’”

Payne, 2020 WL 2731996, at *4 (quoting Johnson, 931 F.2d at 209). Because of this, the

Second Circuit has taken “a flexible stance in interpreting Title VII's procedural provisions .

. . so as not to frustrate Title VII's remedial goals.” Johnson, 931 F.2d at 209 (internal

quotation marks and citations omitted); see Juhua Han v. Kuni's Corp., No. 19-CV-06265

(RA), 2020 WL 2614726, at *12 (S.D.N.Y. May 22, 2020). “Some district court decisions

3The Court recognizes that, as Defendants argue, Mayor Michaels’s actions may

have been taken in her role as Chairperson of the FCDA’s Board of Directors, not in her

role as chief executive of Fulton.

18

have reasoned” that Johnson’s reference to those “not versed in the vagaries of Title VII

and its jurisdictional and pleading requirements” renders the exception “unavailable to

plaintiffs whose EEOC charges were filed by counsel.” Payne, 2020 WL 2731996, at *4;

see Juhua Han, 2020 WL 2614726, at *12 (“[T]he identity of interest exception does not

typically apply where an individual is represented by counsel at the time that she files her

EEOC charge.”)(citing Ruiz v. New Avon LLC, No. 18-CV-9033 (VSB), 2019 WL 4601847,

at *11 (S.D.N.Y. Sept. 22, 2019)(“Courts therefore routinely decline to apply the identity of

interest exception where complainants were represented by counsel familiar with the

applicable law when they filed their EEOC charge.”)(collecting cases)). “But the Second

Circuit has not imposed such a limitation. While the Second Circuit observed that EEOC

charges were ‘generally’ filed without the assistance of counsel, it created a multi-part test

that did not include a complainant's pro se status as one element of the test.” Payne, 2020

WL 2731996, at *4. In this District, Judge D'Agostino has stated that in the "absence of

Second Circuit authority" stating otherwise, a "plaintiff's legal representation at the time he

or she filed a complaint with the EEOC is simply a relevant consideration in evaluating the

first and fourth" identity of interest factors. See Crosby v. McDonald's of Guilderland, LLC,

No. 1:17-CV-1160 (MAD/DEP), 2018 WL 2077884, at *10, n. 3 (N.D.N.Y. May 2, 2018).

The identity of interest factors are:

1) whether the role of the unnamed party could through reasonable effort by

the complainant be ascertained at the time of the filing of the EEOC

complaint; 2) whether, under the circumstances, the interests of a named

[party] are so similar as the unnamed party's that for the purpose of obtaining

voluntary conciliation and compliance it would be unnecessary to include the

unnamed party in the EEOC proceedings; 3) whether its absence from the

EEOC proceedings resulted in actual prejudice to the interests of the

unnamed party; 4) whether the unnamed party has in some way represented

to the complainant that its relationship with the complainant is to be through

19

the named party.

Johnson, 931 F.2d at 209-10 (quoting Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d

Cir. 1977)). "In addition to these factors, Johnson implied a fifth factor relevant to the

identity of interest inquiry: whether the defendant, although not named as a respondent in

the caption, is named in the body of the charges as having played a role in the

discrimination." Batiste v. City Univ. of New York, No. 16-CV-03358 (VEC), 2017 WL

2912525, at *3 (S.D.N.Y. July 7, 2017). “No single factor is dispositive; courts weigh the

totality of the evidence.” Duverny, 2020 WL 1033048, at *9 (citing Cook v. Arrowsmith

Shelburne, Inc., 69 F.3d 1235, 1242 (2d Cir. 1995)).

Here, the face of the FAC does not allow for determination whether these factors

are satisfied. Further, Defendants raised the identity of interest issue in their reply and

therefore Plaintiff has not responded to Defendants’ arguments. Under these

circumstances, the Court will deny the motion in this regard and allow Defendants to raise

the issue on a motion for summary judgment. See Shannon v. Credit Agricole Sec. (USA)

Inc., No. 17-CV-00667 (AJN), 2018 WL 1474390, at *3 (S.D.N.Y. Mar. 22, 2018)("When

there is insufficient information at the motion to dismiss stage for a court to determine

whether named and unnamed defendants share an identity of interest, it is appropriate to

deny the motion to dismiss and revisit the issue on a motion for summary judgment.");

Kurlender v. Ironside Grp., Inc., No. CV183839 (JFB/AYS), 2019 WL 1318363, at *11

(E.D.N.Y. Jan. 4, 2019)(“When it is unclear whether the identity of interest exception

applies, courts routinely permit the unnamed parties to proceed as defendants in the

action.”)(collecting cases), rep. & rec. adopted, 2019 WL 1317405 (E.D.N.Y. Mar. 22,

2019). “Ultimately, it is the plaintiff who has the burden of proving that the identity of

20

interest exception applies.” Crosby, 2018 WL 2077884, at *10. Defendants’ motion on this

ground is denied without prejudice to renewal.

b. Sufficient Number of Employees for Title VII Claims

Defendants argue that Plaintiff's Title VII claims against FCDA must be dismissed

because Plaintiff fails to allege facts indicating that FCDA employs fifteen or more

employees as required by 42 U.S.C. § 2000e(b). Defendants also argue that Plaintiff fails

to allege facts showing that Fulton was her "employer" under Title VII, and fails to allege

facts indicating that Fulton employs fifteen or more employees. Plaintiff contends that “[i]n

her First Amended Complaint, [she] acknowledges that FCDA is her direct employer, but

also alleges that she is employed by both FCDA and Fulton.” Dkt. 23 at 11 (citing FAC, ¶¶

28, 170, 174). Plaintiff argues that she has pled sufficient facts demonstrating that Fulton

and FCDA operated as a single integrated enterprise under the single employer doctrine

for purposes of Title VII and NYSHRL liability. Id. She further asserts that inferences from

the FAC are sufficient to establish, for purposes of this motion, that Fulton and FCDA

together have fifteen or more employees.

42 U.S.C. §2000e(b)

"’[T]he existence of an employer-employee relationship is a primary element of [a]

Title VII claim[ ].’" Brown v. Daikin Am., Inc., 756 F.3d 219, 226 (2d Cir. 2014)(quoting

Gulino v. N.Y. State Educ. Dep't, 460 F.3d 361, 370 (2d Cir. 2006) and citing 42 U.S.C. §

2000e(b)). “An employer-employee relationship is also required to sustain analogous

claims under the NYSHRL.” Id. (citing Eisenberg v. Advance Relocation & Storage, Inc.,

237 F.3d 111, 113 (2d Cir. 2000)). Title VII defines an “employer” as a “person engaged

in an industry affecting commerce who has fifteen or more employees for each working

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day in each of twenty or more calendar weeks in the current or preceding calendar year,

and any agent of such a person[.]” 42 U.S.C. § 2000e(b). The Supreme Court has held

that "the threshold number of employees for application of Title VII is an element of a

plaintiff's claim for relief, not a jurisdictional issue." Arbaugh v. Y & H Corp., 546 U.S. 500,

516, 126 S. Ct. 1235, 163 L. Ed.2d 1097 (2006). "As a result, to survive a motion to

dismiss, a plaintiff must allege facts that 'plausibly support [] an allegation' that her

employer is covered by Title VII." Lora v. Centralized Mgmt. Serv., Inc., 2020 U.S. Dist.

LEXIS 104058, *7, 2020 WL 3173025, at *3 (S.D.N.Y. June 12, 2020)(citing Eyeghe v.

Thierry, No. 14-CV-1914 (JMF), 2014 WL 5242605, at *1 (S.D.N.Y. Oct. 15,

2014)(dismissing claim under Title VII where plaintiff failed to allege that the employer

“ha[d] fifteen or more employees”). “Conversely, dismissal is warranted ‘if the complaint

shows on its face that the element of the statutory coverage is lacking.’” Id. (quoting Da

Silva v. Kinsho Intern. Corp., 229 F.3d 358, 365-66 & n.9 (2d Cir. 2000)); see also id. at *9

("In the absence of such allegations regarding the size of her employer, dismissal of

Plaintiff's Title VII claims is warranted."); Da Silva, 229 F.3d at 365–66 ("[A] Title VII

defendant wishing to defeat a plaintiff's claim on the ground that it lacks fifteen employees

is normally entitled to seek dismissal if the complaint shows on its face that the element of

statutory coverage is lacking."); id., at 366, n. 9 (“If, for example, a complaint alleged fewer

than fifteen employees, the complaint would be subject to dismissal under Rule 12(b)(6)

for failure to state a claim.”); Torres v. Cortland ENT, P.C., 2017 U.S. Dist. LEXIS 92856,

*4-*5 (N.D.N.Y. June 16, 2017)(dismissing Plaintiff's Title VII claims for "falling short of the

pleading requirement that Defendant employs a sufficient number of employees to qualify

as an employer within the meaning of Title VII"); Luna v. N. Babylon Teacher's Org., 11 F.

22

Supp. 3d 396, 401 (E.D.N.Y. 2014)("[L]iability under Title VII does not extend to employers

with fewer than fifteen employees.")(citing Arculeo v. On-Site Sales & Mktg., LLC, 425

F.3d 193, 202-03 (2d Cir. 2005)).

Single Employer Doctrine

Plaintiff does not specifically allege that FCDA employs fifteen or more employees

such to satisfy § 2000e(b). Instead, she contends that she was employed by both FCDA

and Fulton, see FAC at ¶¶ 170, 174, and argues that under the single employer doctrine,

the aggregate number of employees at FCDA and Fulton satisfies §2000e(b)’s numerosity

requirement. See Dkt. 23, at 11-18.

“An entity that is not formally the plaintiff's direct employer may also be liable under

Title VII.” Popat v. Levy, 328 F. Supp. 3d 106, 117 (W.D.N.Y. 2018)(citing Kology v. My

Space NYC Corp., 177 F. Supp.3d 778, 781 (E.D.N.Y. 2016). “That is, ‘courts construe the

term ‘employer’ functionally, to encompass persons who are not employers in

conventional terms, but who nevertheless control some aspect of an employee's

compensation or terms, conditions, or privileges of employment.’” Id. (quoting Kology, 177

F. Supp.3d at 781 (quotation omitted)). “In the context of Title VII, there are two

‘recognized doctrines that enable an employee in certain circumstances to assert

employer liability against an entity that is not formally his or her employer.’” Shiflett v.

Scores Holding Co., 601 F. App'x 28, 30 (2d Cir. 2015) (quoting Arculeo v. On-Site Sales

& Mktg., LLC, 425 F.3d 193, 197 (2d Cir. 2005)). These are the “single employer” doctrine

“where two nominally separate entities are actually part of a single integrated enterprise,”

Arculeo, 425 F.3d at 198 (citation omitted), and the “joint employer” doctrine which does

not involve a single integrated enterprise but rather “separate legal entities” that “handle

23

certain aspects of their employer-employee relationship jointly.” Id. (alterations, quotation

marks, and citation omitted). As indicated, Plaintiff proceeds under the single employer

doctrine.

“A ‘single employer’ situation exists where two nominally separate entities are

actually part of a single integrated enterprise.” Id. (citation omitted). “[E]xamples may be

parent and wholly-owned subsidiary corporations, or separate corporations under common

ownership and management.” Id. Under the single employer doctrine, "all the employees

of the constituent entities are employees of the overarching integrated entity, and all of

those employees may be aggregated to determine whether it employs fifteen employees."

Id. at 199. “[T]he policy underlying the single employer doctrine is the fairness of imposing

liability for labor infractions where two nominally independent entities do not act under an

arm's length relationship.” Murray v. Miner, 74 F.3d 402, 405 (2d Cir.1996). “That policy is

most implicated where one entity actually had control over the labor relations of the other

entity, and, thus, bears direct responsibility for the alleged wrong.” Id.

“‘To prevail in an employment action against a defendant who is not the plaintiff's

direct employer, the plaintiff must establish that the defendant is part of an 'integrated

enterprise' with the employer, thus making one liable for the illegal acts of the other.’”

Brown, 756 F. 3d at 26 (quoting Parker v. Columbia Pictures Indus., 204 F.3d 326, 341

(2d Cir. 2000)). “In essence, a court must consider whether ‘an employee, formally

employed by one entity, . . . has been assigned to work in circumstances that justify the

conclusion that the employee is at the same time constructively employed by another

entity.’” Id. (quoting Arculeo, 425 F.3d at 198). The courts in this Circuit apply four factors

to determine whether two nominally distinct entities are actually a single employer: "(1)

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interrelation of operations, (2) centralized control of labor relations, (3) common

management, and (4) common ownership or financial control." Cook v. Arrowsmith

Shelburne, Inc., 69 F.3d 1235, 1240-41 (2d Cir. 1995) (internal citations and quotation

marks omitted); see Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 155-56 (2d Cir.

2014)(applying the Cook four-factor test); Brown, 756 F.3d at 226-27 (same). Courts have

applied this same four-factor test to determine whether two or more entities constitute a

"single employer" under the NYSHRL. See, e.g., Turley, 774 F.3d at 156.

“The employee satisfies [the integrated enterprise] rule if [s]he shows participation

by the defendant that is ‘sufficient and necessary to the total employment process [of the

employer], even absent total control or ultimate authority over hiring decisions.’” Parker,

204 F.3d at 341 (quoting Cook, 69 F.3d at 1241). “A crucial element of the inquiry focuses

on whether the two enterprises exhibit ‘centralized control of labor relations,’ including

tasks such as handling job applications, approving personnel status reports, and

exercising veto power over major employment decisions.” Id. (citing Cook, 69 F.3d at

1241); see also Murray, 74 F.3d at 404 ("Although no one factor is determinative . . .

control of labor relations is the central concern.")(citations omitted); Stinson v. City Univ. of

New York, No. 17-CV-3949 (KBF), 2018 WL 2727886, at *9 (S.D.N.Y. June 6, 2018)(“The

Second Circuit has placed particular emphasis on the second [Cook] factor, focusing on

the entity that made final decisions regarding employment matters related to

discrimination.”)(citations omitted); Juhua Han, 2020 U.S. Dist. LEXIS 90460, at *8

(“‘Although no one factor controls the analysis, the second, 'centralized control of labor

relations,' is the most significant.’”)(quoting Turley, 774 F.3d at 156 and citing Murray, 74

F.3d at 405 (explaining that "the policy underlying the single employer doctrine" is "most

25

implicated where one entity actually had control over the labor relations of the other entity,

and, thus, bears direct responsibility for the alleged wrong")).

“Whether two related entities are sufficiently integrated to be treated as a single

employer is generally a question of fact not suitable to resolution on a motion to dismiss.”

Brown, 756 F.3d at 226 (citations omitted); see United States EEOC v. Birchez Assocs.,

LLC, No. 1:19-CV-810 (LEK/DJS), 2021 U.S. Dist. LEXIS 55205, at *4 (N.D.N.Y. Mar. 24,

2021)(“The integrated enterprise doctrine involves a fact-specific inquiry.")(internal

quotation marks and citations omitted). “Nevertheless, the plaintiff ‘must do more than

simply state legal conclusions and recite the elements of the ‘single employer’ standard to

survive a motion to dismiss.’” Juhua Han, 2020 U.S. Dist. LEXIS 90460, at *20 (quoting

Fried v. LVI Servs., No. 10 Civ. 9308 (JSR), 2011 U.S. Dist. LEXIS 57639, 2011 WL

2119748, at *5 (S.D.N.Y. May 23, 2011)). “And ‘[a]lthough the determination of whether

two related entities are sufficiently integrated to be treated as a single employer is

generally a question of fact, . . . where a plaintiff's allegations are so inadequate that they

fail to put a defendant on notice of the theory of employer liability, dismissal is

appropriate.’” Id. at *20-21 (quoting Ruiz v. New Avon LLC, 2019 U.S. Dist. LEXIS 161457,

2019 WL 4601847, at *13 (S.D.N.Y. Sept. 22, 2019) (alterations, internal quotation marks,

and citation omitted), and citing Stinson, 2018 U.S. Dist. LEXIS 95300, 2018 WL 2727886,

at *9 (S.D.N.Y. June 6, 2018) ("Indeed, where the four [Cook] factors are not adequately

alleged in the pleadings, courts have ruled that the plaintiff[] may not pursue the single

integrated employer theory.")).

Here, Defendants’ present several arguments in their reply that challenge Plaintiff’s

theory that FCDA and Fulton are a single integrated entity. While Defendants’ arguments

26

may ultimately prove to be correct, the issues cannot be resolved on this motion as the

Court must accept Plaintiff’s factual allegations as true and draw reasonable inferences on

her behalf. Doing so plausibly “shows participation by [Fulton] that is sufficient and

necessary to the total employment process [of FCDA], even absent total control or

ultimate authority over” decisions such as hiring and terms of employment. Parker, 204

F.3d at 341. Furthermore, the asserted facts plausibly indicate that Fulton and FCDA

exhibit centralized control of labor relations, including tasks such as handling job

applications at least at the executive director level, and exercising power over major

employment decisions such as those pertaining to employee health insurance and PTO.

Given the fact-specific nature of applying the integrated enterprise rule, and although the

FAC fails to specifically reference the four Cook factors, see Stinson, 2018 WL 2727886,

at *9, the motion on this ground will be denied.

Fifteen or More Employees

That being the case, however, the FAC fails to plausibly indicate that the integrated

enterprise employs 15 or more employees within the meaning of § 2000e(b). The FAC

merely alleges that Plaintiff "has worked . . . at FCDA since 2019," FAC at ¶ 8, and that

“[a]t all relevant times to this action, Defendants City of Fulton and Fulton Community

Development Agency have employed Plaintiff within the meaning of Title VII.” Id., ¶ 170;

see id., ¶ 174 (same as ¶ 170). Alleging that Plaintiff is employed within the meaning of

Title VII may be sufficient to put Defendants on notice that she brings claims under Title

VII, but is not a factual allegation plausibly indicating that FCDA had at relevant times 15

or more employees as required by § 2000e(b). See Torres, 2017 U.S. Dist. LEXIS 92856

at *7 (Alleging that a defendant is "an employer within the meaning of Title VII . . . is not a

27

factual allegation, but rather a legal conclusion masquerading as a factual conclusion.").

In her memorandum of law, Plaintiff asks the Court to infer from the allegations in

the FAC that there was an aggregate of 15 or more employees at FCDA and Fulton.

However, the FAC’s allegations do not support a plausible inference that at any particular

time the total of the referenced individuals satisfies §2000e(b)’s requirement. In counting

the FCDA employees referenced in the FAC, Plaintiff indicates that some were replaced

by others, see Dkt. 23 at 16 (“(3) Williams, the man who replaced (4) Peggy Birkhead as

the Housing Services Supervisor; (5) Defendant Fiumara who was replaced by (6)

Defendant Broadwell as FCDA’s Executive Director;”), that one worked at FCDA but was

fired, id. (“(8) Christine Peck who worked as the FCDA receptionist until she was fired”),4

and that “since January 2021" FCDA “hired several additional staffers” but “within weeks

of their hire, these new FCDA employees quit their positions.” FAC ¶¶ 148-149. Further,

Defendant Fiumara left his position as the Executive Director of FCDA in July 2020 (FAC

at ¶ 13) and was not replaced as Executive Director by Defendant Broadwell until

December 2020 (FAC at ¶ 11). In addition, the FAC indicates that Sarah Farley, one of

the FCDA employees Plaintiff counts in support of the 15-employee threshold, was a

"new" employee at FCDA "in or about April 2020." See FAC at ¶¶ 139-141. At best, the

FAC identifies only a handful of employees at FCDA during any one period of time. The

allegations in the FAC do not plausibly support an inference that FCDA employed at

relevant times 15 or more employees sufficient to meet §2000e(b)’s threshold

requirement. Further, Defendants point to the uncertainty of the number of FCDA

4 The FAC does not indicate when Peck was fired.

28

employees at any particular time, and argue that although Plaintiff contends that

Defendant Michaels and seven City of Fulton Common Council members should be

counted as Fulton employees, Plaintiff provides no case law to support this contention.

See Dkt. No. 26 at p. 7.

Plaintiff fails to plausibly allege that the integrated enterprise employed 15 or more

employees at relevant times. First, there are no specific allegations in the FAC that FCDA

and Fulton are an integrated enterprise, or that the integrated enterprise employs 15 or

more employees at relevant times. Second, the FAC does not allege that Mayor Michaels

and the City of Fulton Common Council members are employees of Fulton for purposes of

Title VII, and Plaintiff provides no authority supporting this proposition even if made. To

the contrary, 42 U.S.C. § 2000e(f) provides that “the term ‘employee’ shall not include any

person elected to public office in any State or political subdivision of any State by the

qualified voters thereof.” And third, given the uncertainty of the number of FCDA

employees at any particular time, even adding Mayor Michaels and seven Common

Council members as Fulton employees does not plausibly establish that the integrated

enterprise employs 15 more employees at relevant times. Accordingly, the Court grants

Defendants' motion to dismiss the Title VII claims. This conclusion notwithstanding,

Plaintiff may be able to amend her complaint to plausibly allege that FCDA, or that

FCDA/Fulton, is an "employer" under Title VII. Accordingly, the Court's dismissal is

without prejudice to repleading, and Plaintiff is granted leave to file a second amended

complaint to, in good faith, attempt to cure the defects in her pleadings.

c. Section 1983 Claims Against Mayor Michaels

Invoking § 1983, Plaintiff brings claims of intentional discrimination and retaliation in

29

violation of the Equal Protection Clause against Mayor Michaels. Defendants argue that

the claims should be dismissed because the FAC fails to plausibly indicate that Mayor

Michaels was personally involved in any adverse action, and because the claims lack

substantive merit.

Personal Involvement

“Unlike Title VII, which can only be brought against an employer, a § 1983

discrimination claim can be brought against ‘any individual responsible for the

discrimination.’” Peck v. Cty. of Onondaga, New York, No. 5:21-CV-651, 2021 WL

3710546, at *9 (N.D.N.Y. Aug. 20, 2021), recon. denied, 2021 WL 4394603 (N.D.N.Y.

Sept. 27, 2021) (quoting Naumovski v. Norris, 934 F.3d 200, 212 (2d Cir. 2019)(cleaned

up)). “However, a plaintiff must prove that the individual she pursues under § 1983 was

personally involved in her alleged constitutional violation.” Id. (citing Farrell v. Burke, 449

F.3d 470, 484 (2d Cir. 2006)).

“A defendant in a § 1983 action may not be held liable for damages for

constitutional violations merely because [s]he held a high position of authority.” Victory v.

Pataki, 814 F.3d 47, 67 (2d Cir. 2016). “Traditionally, a plaintiff advancing a claim of §

1983 discrimination in the Second Circuit would have to prove a defendant's personal

involvement by providing evidence that: (1) the defendant was a direct participant in the

alleged violation; (2) the defendant failed to correct the violation after learning about it

through a report or appeal; (3) the defendant created or allowed to continue a policy or

custom under which the violation occurred; (4) the defendant was grossly negligent in

supervising subordinates who committed the violation; or (5) the defendant exhibited

deliberate indifference by not acting on information suggesting that the violations were

30

occurring.” Peck, 2021 WL 3710546, at *9 (citing Grullon v. City of New Haven, 720 F.3d

133, 139 (2d Cir. 2013)). However, in Iqbal, the Supreme Court held that “[g]overnment

officials may not be held liable for the unconstitutional conduct of their subordinates under

a theory of respondeat superior.” 556 U.S. at 676; see Avent v. Keybank, No.

21-CV-01466 (CM), 2021 WL 1253840, at *2–3 (S.D.N.Y. Apr. 1, 2021)(“A defendant may

not be held liable under § 1983 solely because that defendant employs or supervises a

person who violated the plaintiff's rights.”)(citing Iqbal, 556 U.S. at 676). After Iqbal, the

Second Circuit held that “there is no special rule for supervisory liability. Instead, a plaintiff

must plead and prove that each [g]overnment-official defendant, through the official's own

individual actions, has violated the Constitution.” Tangreti v. Bachmann, 983 F.3d 609,

618 (2d Cir. 2020)(internal citations and quotation marks omitted). That is to say, “[t]he

violation must be established against the supervisory official directly.” Id. A plaintiff

cannot rely “on a separate test of liability specific to supervisors.” Id., at 619. Rather, "[t]o

hold a state official liable under § 1983, a plaintiff must plead and prove the elements of

the underlying constitutional violation directly against the official without relying on a

special test for supervisory liability.” Id., at 620.

Section 1983 Discrimination Claim against Mayor Michaels

“To state a valid claim under § 1983, the plaintiff must allege that the challenged

conduct (1) was attributable to a person acting under color of state law, and (2) deprived

the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the

United States.” Whalen v. Cnty. of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing

Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)). Section 1983 does not create

any independent substantive right, but rather “provides a civil claim for damages” to

31

“redress . . . the deprivation of [federal] rights established elsewhere.” Thomas v. Roach,

165 F.3d 137, 142 (2d Cir. 1999).

Plaintiff brings her Section 1983 discrimination claim against Mayor Michaels

pursuant to the Fourteenth Amendment's Equal Protection Clause. This “commands that

no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’

which is essentially a direction that all persons similarly situated should be treated alike.”

City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985) (citation omitted).

“To state an equal protection claim, a plaintiff must allege that [s]he is a member of a

suspect or quasi-suspect class of persons; such classes include, but are not limited to,

classes identified by race, gender, alienage, or national origin.” Avent, 2021 WL 1253840,

at *3 (citing Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995); Myers v. Cnty. of

Orange, 157 F.3d 66, 75 (2d Cir. 1998)). “A plaintiff asserting an equal protection claim

must also allege facts showing that the defendants have purposefully discriminated

against [her] because of [her] membership in that class.” Id. (citing Turkmen v. Hasty, 789

F.3d 218, 252 (2d Cir. 2015), rev'd and vacated in part on other grounds sub nom., Ziglar

v. Abbasi, 137 S. Ct. 1843 (2017); Giano, 54 F.3d at 1057). However, “‘purposeful

discrimination requires more than intent as volition or intent as awareness of

consequences. It instead involves a decisionmaker's undertaking a course of action

because of, not merely in spite of, [the action's] adverse effects upon an identifiable

group.’” Turkmen, 789 F.3d at 252 (quoting Iqbal, 556 U.S. at 676-77).

“Section 1983 employment discrimination claims asserted as equal protection

violations are evaluated under the same standards as Title VII claims.” Chick v. Cnty. of

Suffolk, 546 Fed. Appx. 58, 59 (2d Cir. 2013); see Feingold v. New York, 366 F.3d 138,

32

159 (2d Cir. 2004)(“Where color of state law is undisputed, a plaintiff’s Section 1983

discrimination claim parallels a Title VII claim.”). “To plead a Title VII discrimination claim,

a plaintiff must ‘establish a prima facie case of ... discrimination by demonstrating that (1)

[s]he was within the protected class; (2) [s]he was qualified for the position; (3) [s]he was

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

circumstances giving rise to an inference of discrimination.’” Farooq v. City of New York,

No. 20-3185, 2022 WL 793117, at *2 (2d Cir. Mar. 16, 2022)(Summary Order)(quoting

Menaker v. Hofstra Univ., 935 F.3d 20, 30 (2d Cir. 2019)(cleaned up)). “‘The facts

required ... to be alleged in the complaint need not give plausible support to the ultimate

question of whether the adverse employment action was attributable to discrimination.

They need only give plausible support to a minimal inference of discriminatory

motivation.’” Id. (quoting Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015)).

“A plaintiff may satisfy this burden by alleging facts such as ‘the employer's criticism of the

plaintiff's performance in [class-based] degrading terms; or its invidious comments about

others in the employee's protected group; or the more favorable treatment of employees

not in the protected group; or the sequence of events leading to the plaintiff's [adverse

employment action].’” Id. (quoting Littlejohn, 795 F.3d at 312).

“[A] plaintiff pursuing a claim for employment discrimination under § 1983 rather

than Title VII must establish that the defendant's discriminatory intent was a ‘but-for’ cause

of the adverse employment action or the hostile environment.” Naumovski, 934 F.3d at

214. As the Supreme Court has explained, the “but-for” standard requires that the Plaintiff

show “that the harm would not have occurred in the absence of—that is, but for—the

defendant's conduct.” Id. at 213 (quoting Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S.

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338, 346-47 (2013)).

Analysis

In the § 1983 gender discrimination claim, Plaintiff alleges that Mayor Michaels "has

been and continues to be deliberately indifferent to the ongoing unconstitutional acts

described herein and grossly negligent in supervising those under her who also subjected

Plaintiff to illegal gender discrimination." See FAC at ¶ 179. This allegation does not, by

itself, allege that Mayor Michaels was directly involved in any of the acts which Plaintiff

contends constitute adverse employment actions. Thus, this aspect of the claim must be

dismissed. See Tangreti, 983 F.3d at 618-620.

Separately, Plaintiff alleges that in January 2021, she “was informed that FCDA

would no longer [] provide the $5000 stipend to be used toward heath care costs,” and

instead “FCDA now offers a health care insurance plan that is too expensive for Plaintiff to

afford.” FAC ¶¶ 121-122. Plaintiff also alleges that “FCDA management notified the staff

that the four (4) paid personal days they had been previously afforded would be

eliminated.” FAC ¶ 123. Plaintiff alleges that “when she complained about these material

changes to her employment benefits, Defendant Broadwell told [her] that the decision to

take away the $5000 health care stipend and the four paid personal days was made by

Mayor Michaels and he could not get involved because of the ‘politics’ that motivated the

Mayor’s decisions.” FAC ¶ 124. By Plaintiff’s allegations, these changes to the

employment benefits that Mayor Michaels purportedly orchestrated concerned all staff

members, not simply Plaintiff, women on the staff, or working mothers on the staff. Thus,

even assuming that the changes to the employment benefits disproportionately affected

Plaintiff as a working mother, Plaintiff has not alleged facts plausibly demonstrating that

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Mayor Michaels took this action because of, not merely in spite of, the actions’ adverse

effects upon an identifiable group. See Iqbal, 556 U.S. at 676-77; Turkmen, 789 F.3d at

252; Naumovski, 934 F.3d at 214. Further, Plaintiff has not alleged that Mayor Michaels

made any invidious comments about women in the workplace, or made any "stereotypical

remarks about the incompatibility of motherhood and employment [including stereotyping

women as caregivers]” which could indicate that “gender played a part in an employment

decision." Back v. Hasting on the Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d

Cir. 2004); see Bergesen v. Manhattanville College, 2021 U.S. Dist. LEXIS 135033, *20

(S.D.N.Y. July 20, 2021)("courts finding the presence of such stereotyping have done so

based on comments that refer explicitly to stereotypical assumptions," and that "[a]bsent

remarks that have 'plain . . . connotations,' courts do not find that stereotypes have

influenced employment decisions").

Moreover, when Plaintiff and her coworker Mills met with Mayor Michaels in

February 2020, the two complained about discrimination they believed that they were

subjected to at FCDA. See FAC ¶ 99. However, the majority of the conduct that they

complained about occurred before Mayor Michaels assumed duties as the mayor of Fulton

in January 2020. See FAC ¶ 97. In this regard, Plaintiff and Mills complained about the

decision to hire Williams as the Housing Specialist Supervisor even though Plaintiff and

Mills believed they had both been promised the position, but the FAC indicates that

Williams was hired in this position at the end of 2019. FAC ¶ 77. Plaintiff also complained

about her low wage rate, but that rate was set when Plaintiff was hired by Fiumara in July

2019. See FAC ¶¶ 8, 28-34. Likewise, Plaintiff complained about the decision to cut

FCDA health care benefits in half, but that decision was made at the end of 2019. See

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FAC ¶ 75. Mayor Michaels was not directly involved in these actions and therefore the

fact that she expressed "no interest in remediating the discriminatory treatment," FAC ¶

100, does not amount to actionable personal involvement. See Tangreti, 983 F.3d at 618-

620. Similarly, Mayor Michaels had no direct personal involvement in "Fiumara's

discriminatory comments and micro-managing," FAC ¶ 99, and therefore her declination

to take action in response thereto is not a basis for Section 1983 liability. See Tangreti,

983 F.3d at 618-620.

Although Plaintiff contends that Mayor Michaels's attitude changed after she

received Charges of Discrimination from the EEOC filed by Plaintiff and Mills in July 2020,

Michaels's conduct thereafter did not evince a gender or gender-stereotype motive or

animus. Rather, Mayor Michaels called a meeting with FCDA staff and informed them that

Fiumara was no longer Executive Director. FAC ¶ 103. This conduct indicates no gender

or gender-stereotype animus but rather that Mayor Michaels was taking Plaintiff and Mills’s

complaints seriously. During the meeting, Mayor Michaels told FCDA staff that she was

going to retain a law firm to conduct an investigation (although she did not specify about

what) and told the staff that they would be required to sign confidentiality agreements.

FAC ¶104. She also said that she heard rumors about "what is going on" at FCDA and

"that it was inappropriate for those employed by the agency to discuss work with anyone

else." FAC ¶ 105. Again this conduct does not plausibly indicate any gender or gender-

stereotype animus, and although Plaintiff argues in her memorandum of law that Mayor

Michaels threatened to discharge anyone who breached the confidentiality agreement,

that allegation is not contained in the FAC. Rather, the FAC merely indicates that Mayor

Michaels noted that employment with FCDA was "at will," and when Plaintiff asked what

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"at will" employment was, Michaels stated that anyone working at FCDA was there of their

own "free will." FAC ¶ 107. This misinterpretation of the “at will” doctrine does not

plausibly indicate that Mayor Michaels threatened to discharge anyone, let alone Plaintiff.

To the extent Plaintiff contends she was subjected to an adverse employment

action by Mayor Michaels’s “screaming and complaining about” Plaintiff, FAC ¶ 167,

Plaintiff fails to allege that the screaming and complaining concerned Plaintiff’s protected

characteristics. Thus, the allegation fails to allege an actionable Title VII claim. See

Farooq, 2022 WL 793117, at *3 (“To the extent that Farooq found these comments to be

insensitive or callous, ‘mistreatment at work[ ] ... is actionable under Title VII only when it

occurs because of an employee's ... protected characteristic.’”)(quoting Brown v.

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

Accordingly, Plaintiff’s § 1983 gender discrimination claim against Mayor Michaels

is dismissed without prejudice to repleading.

Section 1983 Retaliation Claim against Mayor Michaels

"[T]he elements of a retaliation claim based on an equal protection violation under §

1983 mirror those under Title VII." Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72,

91 (2d Cir. 2015). “‘[F]or a retaliation claim to survive ... a motion to dismiss, the plaintiff

must plausibly allege that: (1) defendants discriminated—or took an adverse employment

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

practice.’” Farooq, 2022 WL 793117, at *4 (quoting Vega, 801 F.3d at 90 (citation

omitted)).

Title VII retaliation claims are evaluated using the burden-shifting analytical

framework of McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). See Hicks v.

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Baines, 593 F.3d 159, 164 (2d Cir. 2010). “First, the plaintiff must establish a prima facie

case of retaliation by showing: ‘(1) participation in a protected activity; (2) that the

defendant knew of the protected activity; (3) an adverse employment action; and (4) a

causal connection between the protected activity and the adverse employment action." Id.

(interior quotation marks and citations omitted). The plaintiff's burden in this regard is de

minimis. Id.

A plaintiff engages in a protected activity if she “oppose[s] any practice made an

unlawful employment practice” by Title VII, or ‘make[s] a charge, testifie[s], assist[s], or

participate[s] in any manner in an investigation, proceeding, or hearing” under Title VII. 42

U.S.C. § 2000e–3(a); Townsend v. Benjamin Enterprises, Inc., 679 F.3d 41, 49 (2d Cir.

2012). Title VII's anti-retaliation provision thus “has two parts: the opposition clause and

the participation clause.” Townsend, 679 F.3d at 49. Opposition activity is protected so

long as the plaintiff had a “good faith, reasonable belief that the underlying challenged

actions of the employer violated the law.” Manoharan v. Columbia Univ. Coll. of Physicians

& Surgeons, 842 F.2d 590, 593 (2d Cir.1988). The language of the participation clause

refers to retaliation that “occur[s] in conjunction with or after the filing of a formal charge

with the EEOC.” Townsend, 679 F.3d at 49.

“Actions are ‘materially adverse’ if they are ‘harmful to the point that they could well

dissuade a reasonable worker from making or supporting a charge of discrimination.’”

Hicks, 593 F.3d at 165 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,

57 (2006)). This is an objective standard. See Dedjoe v. McCarthy, No. 1:15-CV-1170

(LEK/CFH), 2017 WL 4326516, at *14 (N.D.N.Y. Sept. 28, 2017). “[I]n determining

whether conduct amounts to an adverse employment action, the alleged acts of retaliation

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need to be considered both separately and in the aggregate, as even minor acts of

retaliation can be sufficiently ‘substantial in gross’ as to be actionable.” Hicks, 593 F.3d at

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

“[P]roof of causation can be shown either: (1) indirectly, by showing that the

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

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

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

plaintiff by the defendant.” Id. at 170 (internal quotation marks and citation omitted). “‘[A]

plaintiff must plausibly plead’ causation, i.e., ‘a connection between the [alleged

retaliatory] act and [her] engagement in protected activity.’” Farooq, 2022 WL 793117, at

*4 (quoting Vega, 801 F.3d at 90 (citation omitted)). “‘Unlike Title VII discrimination

claims, however, for an adverse retaliatory action to be ‘because’ a plaintiff made a

charge, the plaintiff must plausibly allege that the retaliation was a ‘but-for’ cause of the

employer's adverse action.” Id. (quoting Vega, 801 F.3d at 90, in turn citing Univ. of Tex.

Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013)). Regarding temporal proximity, the

Second Circuit has not “‘drawn a bright line to define the outer limits beyond which a

temporal relationship is too attenuated to establish a causal relationship between the

exercise of a federal constitutional right and an allegedly retaliatory action.’” Farooq, 2022

WL 793117, at *4 (quoting Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009)(cleaned

up)). “But in the absence of additional allegations supporting causation, ‘mere temporal

proximity’ must be ‘very close’ to establish a causal connection between the protected

activity and an adverse employment action.” Id. (quoting Clark Cnty. Sch. Dist. v. Breeden,

532 U.S. 268, 273 (2001) (citation omitted)).

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Ultimately, Plaintiff must show “that the desire to retaliate was the but-for cause of

the challenged employment action.” Ya-Chen Chen v. City Univ. of New York, 805 F.3d

59, 70 (2d Cir. 2015) (quoting Nassar, 570 U.S. at 352). “‘But-for’ causation does not,

however, require proof that retaliation was the only cause of the employer's action, but

only that the adverse action would not have occurred in the absence of the retaliatory

motive.” Duplan v. City of New York, 888 F.3d 612, 625 (2d Cir. 2018)(quotation marks

and citation omitted).

Analysis

To the extent that the § 1983 retaliation claim against Mayor Michaels is based

upon “the retaliation of others under her supervision that ... she has condoned,” FAC ¶

186, Plaintiff fails to allege facts plausibly indicating that Mayor Michaels was directly

involved in this retaliation by others. Thus, the retaliation claim to this extent must be

dismissed. See Tangreti, 983 F.3d at 618-620.

The allegation that Mayor Michaels was behind the decisions to revoke the $5000

stipend to be used toward heath care costs and instead offer a health care insurance plan

that was too expensive for Plaintiff to afford, and to eliminate the four (4) paid personal

days for the staff, is too remote from Plaintiff’s protected activity involving Mayor Michaels

to satisfy the causation element of the prima facie case. Plaintiff and Mills complained

about perceived discrimination to Mayor Michaels in February 2020, FAC ¶ 99, and

Michaels received Plaintiff and Mills’s Charges of Discrimination from the EEOC in July

2020. FAC ¶ 102. The decisions concerning the above-referenced employment benefits

were made in January 2021. FAC ¶¶ 121-123. Without some allegation that Mayor

Michaels evinced gender or gender-stereotype animus such as by invidious comments,

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this temporal proximity of approximately six months is too attenuated from Plaintiff's

protected conduct to allow for an inference of causation. See Farooq, 2022 WL 793117, at

*4 (“The five-month temporal gap here, standing alone, is insufficient to plead

causation.”)(citing Hollander v. Am. Cyanamid Co., 895 F.2d 80, 85–86 (2d Cir. 1990)

(concluding that a period of three-and-a-half-months between a protected activity and the

employer's adverse action failed to establish a causal connection)).

Regarding Mayor Michaels’s actions immediately following her receipt of the EEOC

charges, the actions of removing Fiumara from his position as Executive Director, telling

the staff that she was going to hire a law firm for an undisclosed reason, making the staff

sign confidentiality agreements, telling the staff that it was inappropriate to discuss "work"

with anyone else, telling the staff that employment at FCDA was "at will" meaning to

Michaels that the employees were there of their own free will, and that Michaels and the

FCDA Board of Directors would be stopping by the FCDA office for undisclosed reasons

are not actions that, objectively, would dissuade a reasonable employee from making or

supporting a charge of discrimination. Furthermore, without some indication that these

actions, which seemingly applied to all FCDA employees, were intended to target women

or working mothers with minor children, Plaintiff has not plausibly alleged that the actions

were taken “because” Plaintiff opposed an unlawful employment practice. See Farooq,

2022 WL 793117, at *4; Vega, 801 F.3d at 90.

Plaintiff’s allegation that she has been informed by her coworkers “that since the

filing of this litigation, Mayor Michaels has been heard at the FCDA office screaming and

complaining about” Plaintiff, FAC ¶ 167, fails to allege the temporal proximity between the

filing of this action and the date or dates that this conduct occurred. Thus, the FAC fails to

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plausibly support the causal connection element of the prima facie case regarding this

conduct. Further, the FAC does not allege whether Michaels's comments concerned the

filing of this litigation, Plaintiff's other protected conduct, or if Michaels made any invidious

comments concerning gender or working-mothers. Thus, the FAC fails to plausibly allege

that this action was taken by Mayor Michaels because Plaintiff filed a charge of

discrimination. See Farooq, 2022 WL 793117, at *4 (“For a retaliation claim to survive a

motion to dismiss, the plaintiff must plausibly allege that: (1) defendants discriminated—or

took an adverse employment action—against him, (2) because he has opposed any

unlawful employment practice. A plaintiff must plausibly plead causation, i.e., a

connection between the act and his engagement in protected activity. Unlike Title VII

discrimination claims, however, for an adverse retaliatory action to be because a plaintiff

made a charge, the plaintiff must plausibly allege that the retaliation was a but-for cause of

the employer's adverse action.”)(cleaned up).

Whether considered separately or in the aggregate, Mayor Michaels’s alleged acts

of retaliation do not support a plausible claim of equal protection retaliation. Accordingly,

the claim in this regard is dismissed without prejudice to repleading.

d. NYSHRL Claims

Defendants argue, inter alia, that if all federal claims are dismissed, the Court

should decline to exercise supplemental jurisdiction over Plaintiff’s state law claims

brought pursuant to the NYSHRL. See Dkt. 17-1 at 22-23.5 As a general rule, "when the

federal claims are dismissed the state claims should be dismissed as well." In re Merrill

5Defendants also argue that the NYSHRL claims to be dismissed for other reasons.

See Dkt. 17-1 at 23-25.

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Lynch Ltd. P'ships Litig., 154 F.3d 56, 61 (2d Cir. 1998)(citation omitted); see Kolari v.

New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006)(“[A] district court may

decline to exercise supplemental jurisdiction if it has dismissed all claims over which it has

original jurisdiction.”); McMyler v. Bank of Utica, 2021 U.S. Dist. LEXIS 124703, *10-11

(N.D.N.Y. July 2, 2021) (declining to exercise supplemental jurisdiction upon the dismissal

of plaintiff's federal claims).

The Court has dismissed all of Plaintiff's federal claims, but it has done so without

prejudice to repleading and granted Plaintiff leave to file a second amended complaint

potentially rectifying the deficiencies in the FAC. The Court finds that the most efficient

use of scarce judicial resources is to deny Defendants’ motion on this, and Defendants’

other grounds addressed to the NYSHRL claims, with leave to renew. If Plaintiff does not

file a second amended complaint, Defendants can renew the motion asking the Court to

decline to exercise supplemental jurisdiction over Plaintiff's state law claims. If Plaintiff

files a second amended complaint, Defendants can renew their motion on this ground and

on the other grounds addressed to the NYSHRL claims.

V. CONCLUSION

For the reasons discussed above, Defendants’ motion to dismiss, Dkt. 17, is

GRANTED in part and DENIED in part. The motion is granted in that Plaintiff’s Title VII

claims against the City of Fulton and the Fulton Community Development Agency, and

Plaintiff’s § 1983 claims against Deana Michaels, are DISMISSED without prejudice to

repleading. Plaintiff is granted leave of thirty (30) days from the date of this Decision

and Order to file a second amended complaint to, in good faith, attempt to cure the

defects in her pleadings. The motion is denied in all other respects, and the denial is

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without prejudice to Defendants renewing their arguments addressed to matters not

resolved by this Decision and Order.

IT IS SO ORDERED.

Dated: June 2, 2022 .

Thomas J. M¢gAvoy

Senior, U.S. District Judge

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