# Stoutenger v. Fulton Community Development Agency

> District Court, N.D. New York · June 2, 2022

URL: https://www.frixlaw.com/law-library/cases/10314897

## Case

- **Court:** District Court, N.D. New York
- **Decided:** June 2, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10314897

## How later opinions describe it (automated extraction)

- applying the Cook four-factor test
- 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"

## Opinion text

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
1
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”).
2
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
3
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
4
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

5
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

6
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
7
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

8
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.
9
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
10
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
11
[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.
12
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
13
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
14
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
15
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 -
16
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

21
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)

24
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,

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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

38
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,

40
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

41
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

43
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10314897. Public record. Not legal advice.