# Pierro v. Hudson City School District

> District Court, N.D. New York · March 31, 2023

URL: https://www.frixlaw.com/law-library/cases/10315721

## Case

- **Court:** District Court, N.D. New York
- **Decided:** March 31, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
LISA PIERRO,
1:22-cv-670
Plaintiff, (GLS/CFH)
v.
HUDSON CITY SCHOOL
DISTRICT et al.,
Defendants.
________________________________
APPEARANCES: OF COUNSEL:
FOR THE PLAINTIFF:
Law Office of Michael J. Livolsi, Esq. MICHAEL J. LIVOLSI, ESQ.
5 Computer Drive West - Suite 100-12
Albany, NY 12205
FOR THE DEFENDANTS:
Hudson City School District,Lismarie
Spindler, Hudson City School the
Board of Education, Willette Jones,
Mark Depace, Sage Carter, Selha
Graham, Chuck Parmentier, Lucinda
Segar, Lakia Walker
Johnson & Laws, LLC GREGG T. JOHNSON, ESQ.
646 Plank Road, Suite 205 LORAINE CLARE JELINEK,
Clifton Park, NY 12065 ESQ.
Paul Stalker , Paul Rowley, NO APPEARANCE
Timothy Call
Timonthy Vankeuren RYAN M. FINN, ESQ.
Finn Law Offices
P.O. Box 966
Albany, NY 12201
Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER

I. Introduction
Lisa Pierro commenced this action against the Hudson City School
District (HCSD), the Hudson City School Board of Education,

Superintendent of HCSD Lisamarie Spindler, members of the Board of
Education Willette Jones, Mark Depace, Sage Carter, Selha Graham,
Chuck Parmentier, Lucinda Segar, and Lakia Walker, HCSD Human
Resource Manager Rachel Rissetto, HCSD Business Administrator

Jonathan Jesse Boehme, former Superintendent of HCSD Maria Suttmeir
(hereinafter, collectively referred to as the “District Defendants”), Paul
Stalker, Paul Rowley, Timothy Vankeuren, and Timothy Call, pursuant to

42 U.S.C. § 1983, Title VII and Title IX of the Civil Rights Act of 1964, and
New York State law, with the individual District Defendants all being sued
in their individual and official capacities. (Proposed 2d Am. Compl.,1 Dkt.
No. 14 at 19-66.2)

Pending before the court are the District Defendants’ motions to
dismiss the amended complaint, (Dkt. No.11), and to “withdraw [an]
argument that Plaintiff’s Title VII claim . . . is premature,” (Dkt. No. 21),

and Pierro’s cross-motion to amend her amended complaint, (Dkt. No. 15).
For the reasons that follow, Pierro’s motion to amend the amended
complaint is granted, the District Defendants’ motion to withdraw is granted
and their motion to dismiss is granted in part and denied in part.

II. Background
A. Facts3
Pierro was hired by HCSD in December 2016 as a part-time

receiving clerk, eventually achieving full-time employment status.
(Proposed 2d Am. Compl. ¶ 26.) Beginning in June 2017, Pierro was
subjected to “extreme, pervasive, and inescapable acts of harassment,

1 Because Pierro’s cross motion for leave to amend, (Dkt. No. 15), is granted, as
discussed below, the court construes the motion to dismiss as made against the
proposed second amended complaint, (Dkt. No. 14 at 19-66).
2 Citation refers to the pagination generated by CM/ECF, the Court’s electronic
filing system.
3 Consistent with the standard of review, the facts are drawn from Pierro’s
second amended complaint, and presented in the light most favorable to her.
3
discrimination, retaliation, and various forms of sexual misconduct and
abuse” from her co-workers, supervisors, and HCSD management and

leadership. (Id. ¶ 27.) For instance, several of Pierro’s co-workers,
including Stalker, Rowley, Vankeuren, and Call, called Pierro a pig “on a
daily basis,” told her she smelled bad, called her fat and ugly, and made

sexual gestures towards her. (Id. ¶¶ 30-32, 34.) Pierro reported this
conduct to her supervisor, George Keeler, in 2019, who advised Pierro to
avoid her co-workers, despite the fact that Pierro already told her co-
workers to stay away from her and much of the reported harassment

occurred when her co-workers entered her office “unsolicited.” (Id. ¶¶ 28,
37-38.) After Pierro reported her co-workers’ conduct to Keeler, her co-
workers escalated their behavior including sniffing her hair without her

consent and hanging an image of a cow outside of her office in reference
to her appearance. (Id. ¶¶ 39-42.)
In April 2020, Pierro made an official complaint of “harassment,

sexual discrimination, sexual abuse, sexual harassment, and retaliation” to
Spindler, Boehme, and Suttmeir, informing them of her co-workers’
conduct. (Id. ¶ 43.) HCSD did not conduct an investigation into Pierro’s
complaint and informed her that they did not believe her. (Id. ¶ 44.)

4
However, HSCD did mandate a “sensitivity training” for all employees, but
the training did not address any of the underlying conduct in Pierro’s

complaint to HCSD. (Id. ¶ 46.) Following Pierro’s April 2020 complaint,
her co-workers escalated their conduct to include threats of violence. (Id.
¶¶ 47-48.) For instance, Pierro’s co-workers placed a picture of a dead rat

on her desk, “insinuating that she had ‘ratted’ on her co-workers” for
making the complaint. (Id. ¶ 48.) Additionally, the insults escalated to
include “whore,” “skank,” “bitch,” and “co-arc leader.4” (Id. ¶ 50.)
In June 2020, Keeler retired and, “in retaliation for reporting the

sexual harassment, discrimination, retaliation and abuse of her co-
workers,” his duties were re-assigned to Pierro without “a corresponding
increase in pay or promotion.” (Id. ¶¶ 51-52, 54.) Later, the HCSD Board

of Education voted to promote Stalker to Keeler’s position while aware that
Pierro’s April 2020 complaint had identified Stalker as one of the co-
workers who engaged in the harassing conduct she reported. (Id. ¶¶ 57-

58.) After Stalker’s promotion, the harassing conduct continued, including
spreading rumors about Pierro having sexual relations with other HCSD
employees, leaving “personal lubricant jelly” on her desk, sending her text

4 Pierro alleges that “co-arc leader” was a derogatory reference to individuals with
disabilities. (Proposed 2d Amend. Compl. ¶ 50.)¶
5
messages and placing images around her office that looked like genitalia,
which included images Pierro perceived to insinuate sexual violence

against her. (Id. ¶¶ 62-64, 66, 71, 76-79, 86.) In April 2021, Pierro made a
second official complaint to HCSD management regarding her co-workers.
(Id. ¶ 87.) Following the second complaint, in May 2021, Rowley, Stalker,

and Vankeuren were permitted to resign in lieu of termination. (Id. ¶ 93.)
Call did not resign and was not terminated but, instead, was promoted. (Id.
¶ 96.) In June 2021, Pierro made another complaint to Spindler, Boehme,
and Suttmeir against Call for “harassment and unwelcome physical

contact,” including grabbing his crotch and gesturing to Pierro while stating
“you like,” insinuating acts of sexual violence against her with a mop, and
sending sexual text messages to her. (Id. ¶ 89.)

In October 2021, Pierro heard co-workers discussing her directly
outside of her office, with one co-worker stating “that fucking bitch should
have been fired” and her new supervisor, Tyler Kritzman, stated that Pierro

would be replaced soon. (Id. ¶¶ 96- 98, 100.) “Upon information and
belief” Kritzman made the statement because Spindler, Boehme, and
Suttmeir relayed the idea of replacing Pierro to Kritzman. (Id. ¶ 98.) On
December 13, 2021, Spindler, Boehme, Suttmeir, and the Board of

6
Education placed Pierro on administrative leave and later suspended her
without pay on March 22, 2022. (Id. ¶¶ 101-02.) In addition to the

suspension, Pierro was barred from entering school property for any
reason, including attending Board of Education meetings or sporting
events for her son, who is a student at HCSD, and having the opportunity

to interview in-person for a vacant position for which she was qualified. (Id.
¶¶ 119, 121.) Sometime prior to being placed on administrative leave,
Pierro was advised in a memo from HCSD that “false and defamatory
allegations” were made against her by co-workers. (Id. ¶¶ 104, 117.) In

response, Pierro filed charges with the New York State Division of Human
Rights. (Id. ¶¶ 116-118.) Pierro eventually submitted a letter of
resignation, which the Board of Education refused to accept and, instead,

sought to bring Pierro to a disciplinary hearing “if [she] refused to recant
her allegations” with the Division of Human Rights. (Id. ¶¶ 128-131.)
B. Procedural History

Pierro commenced this action in May 2022 in New York State
Supreme Court in Columbia County. (Dkt. No. 2.) The action was
removed to this court. (Dkt. No. 1.) District Defendants moved to dismiss
the complaint and Pierro thereafter filed an amended complaint. (Dkt. Nos.

7
4, 5.) District Defendants now move to dismiss the claims against them
and Pierro has cross-moved to amend her complaint for a second time.

(Dkt. Nos. 11, 15.)
III. Standard of Review
A. Leave to Amend

The filing of an amended complaint is governed by Rule 15 of the
Federal Rules of Civil Procedure. Rule 15 provides that courts “should
freely give leave” to amend a complaint “when justice so requires.” Fed. R.

Civ. P. 15(a)(2). Leave to amend should be given “absent evidence of
undue delay, bad faith or dilatory motive on the part of the movant, undue
prejudice to the opposing party, or futility.” Monahan v. N.Y.C. Dep’t of
Corr., 214 F.3d 275, 283 (2d Cir. 2000); see Couloute v. Ryncarz, No. 11-

CV-5986, 2012 WL 541089, at *3 (S.D.N.Y. Feb. 17, 2012) (citation
omitted). However, motions to amend “should generally be denied in
instances of futility, undue delay, bad faith or dilatory motive, repeated

failure to cure deficiencies by amendments previously allowed, or undue
prejudice to the non-moving party.” Burch v. Pioneer Credit Recovery,
Inc., 551 F.3d 122, 126 (2d Cir. 2008); see Monahan, 214 F.3d at 283.
The decision to grant or deny a motion to amend is committed to the sound

8
discretion of the trial court, and the court’s decision is not subject to review
on appeal except for abuse of discretion. See Fielding v. Tollaksen, 510

F.3d 175, 179 (2d Cir. 2007).
B. Motion to Dismiss
The standard of review under Fed. R. Civ. P. 12(b)(6) is well settled

and will not be repeated here. For a full discussion of the governing
standard, the court refers the parties to its prior decision in Ellis v. Cohen &
Slamowitz, LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010), abrogated on
other grounds by Altman v. J.C. Christensen & Assocs., Inc., 786 F.3d

191 (2d Cir. 2015).
IV. Discussion
As a preliminary matter, Pierro asserts a claim labeled as the “Ninth

Cause of Action.” The claim Pierro is asserting here is unclear to both the
court and District Defendants, and Pierro provides no clarity in her
response or proposed second amended complaint. (Dkt. Nos. 13, 14.)

The court’s best guess is that Pierro’s “Ninth Cause of Action” is a prayer
for damages and construes it as such.
A. Pierro’s Motion to Amend

9
District Defendants oppose Pierro’s motion for leave to amend,
contending it should be denied because amendment would be prejudicial

and futile. (Dkt. No. 20 at 10.) Specifically, District Defendants contend
that Pierro has already amended once, “offers no argument to justify a third
opportunity to plead her claims,” and her proposed amendments “do not

salvage her claims.” (Id.)
A party opposing a motion to amend on grounds of undue prejudice
has the burden of establishing that “granting such leave would be unduly
prejudicial.” Breyette v. Amedore, 205 F.R.D. 416, 418 (N.D.N.Y. 2002)

(internal citation and quotation marks omitted). In determining what
constitutes prejudice, courts consider whether the amendment would “(i)
require the opponent to expend significant additional resources to conduct

discovery and prepare for trial; (ii) significantly delay the resolution of the
dispute; or (iii) prevent the plaintiff from bringing a timely action in another
jurisdiction.” Id. With respect to futility, “an amendment is considered futile

if it could not withstand a motion to dismiss pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure.” Nat’l Rifle Ass’n of Am. v. Cuomo, 480
F. Supp. 3d 404, 414 (N.D.N.Y. Aug. 14, 2020). Because the cross-motion
to amend has been made at a relatively early stage of the

10
proceeding–approximately three months after filing the original complaint in
New York State Supreme Court–and Pierro seeks to add allegations to

support personal involvement of the District Defendants, Pierro’s proposed
second amended complaint is not unduly prejudicial or futile and her
motion to amend is granted. However, the court notes that Pierro’s motion

to amend did not strictly comply with the Local Rules of Practice because
the proposed amended pleading was not attached to the motion papers but
rather was filed as an exhibit to an Attorney Declaration, along with several
other exhibits. The proposed second amended complaint does not

incorporate any of these other exhibits by reference and thus, the court will
only consider the allegations within the proposed second amended
complaint, (Dkt. No. 14 at 19-66), and not the other exhibits also attached

to the attorney declaration. See Fed. R. Civ. P. 12(d).
B. State Law Claims
District Defendants seek dismissal of Pierro’s claims under New York

state law because Pierro failed to serve a notice of claim upon any of the
District Defendants nor did she “affirmatively plead compliance with the
[notice of claim requirements] . . . as prescribed by § 3813 of New York’s
Education Law.” (Dkt. No. 11, Attach. 1 at 10.) Pierro argues that she was

11
not required to file a notice of claim because “[i]t is well settled that the
service, by the NYS Division of Human Rights, of a complaint upon a

District satisfies the notice of claim requirement.” (Dkt. No. 13 at 10.)
Additionally, Pierro contends that a notice of claim was eventually served
on August 11, 2022, approximately three months after the action was

commenced in New York State Supreme Court. (Dkt. No. 13 at 11; Dkt.
No. 19.)
New York Education Law § 3813(1) mandates that:
No . . . claim against the district . . . shall be prosecuted or
maintained against any school district, board of education, . . . or
any officer of a school district, board of education, . . . unless it
shall appear by and as an allegation in the complaint . . . that a
written verified claim upon which such action or special
proceeding is founded was presented to the governing body of
said district or school within three months after the accrual of
such claim, and that the officer or body having the power to adjust
or pay said claim has neglected or refused to make an adjustment
or payment thereof for thirty days after such presentment.
Section 3813(2), however, mandates that actions “founded upon tort”
against any party enumerated in Section 3813(1) comply with the notice of
claim requirements set forth in New York General Municipal Law §§ 50-e
and 50-i. Both Sections 3813 and 50 require the plaintiff to plead on the
face of the complaint that they complied with the notice of claim
requirements and “are strictly interpreted by New York courts, and no
12
variation is tolerated.” See Wang v. Bethlehem Cent. Sch. Dist., 1:21-CV-
1023, 2022 WL 3154142, at *13 (N.D.N.Y. Aug. 8, 2022). Additionally,

while courts have found that other documents can satisfy the notice of
claim requirement, such as a charge filed with the Equal Employment
Opportunity Commission, this is only “in limited circumstances where the

charge puts the school district on notice of the precise claims alleged, is
served on the governing board of the district . . . , and is served within the
statutory time period. See United States v. N.Y.C. Dep’t. of Educ., 16 Civ.
4291, 2017 WL 1169653, at *3 (S.D.N.Y. Mar. 28, 2017) (internal quotation

marks and citation omitted).
Here, although Pierro did serve a notice of claim upon the District
Defendants on August 11, 2022, almost three months after this action was

commenced in New York State Supreme Court, she did not plead
compliance with the notice of claim requirements in her first amended
complaint, (Dkt. No. 5), nor did she attempt to rectify the deficiency in her

proposed second amended complaint, (Dkt. No. 14), despite the fact that
District Defendants previously raised this deficiency in their motion to
dismiss. (Dkt. No. 11, Attach. 1 at 10-12). Additionally, Pierro alleges that
she filed a charge with the New York State Division of Human rights and

13
asserts that this is sufficient to satisfy the notice of claim requirements,
however, the complaint contains no allegations of what claims were alleged

in the New York State Division of Human Rights charge and it is impossible
for the court to determine whether the charge “puts the school district on
notice of the precise claims alleged.” See United States v. N.Y.C. Dep’t. of

Educ., 2017 WL 1169653, at *3. Moreover, it is insufficient that Pierro
retroactively attempts to establish that she met the notice requirement
because she was required to plead compliance with the requirement and
she failed to do so. See Wang, 2022 WL 3154142, at *14. Therefore, all

of Pierro’s New York State law claims against District Defendants must be
dismissed because Pierro did not comply with the notice of claim
requirements.

C. Individual Liability Under Title VII and Title IX5
District Defendants seek dismissal of Pierro’s Title VII claims against
the individual District Defendants because, District Defendants contend,

individuals are not employers under the meaning of Title VII. (Dkt. No. 11,
5 District Defendants also argue that Pierro’s Title IX claims are barred by the ruling in
Cummings v. Premier Rehab Keller, P.L.L.C., 142 S. Ct. 1562 (2022), contending this
decision bars compensatory damages. (Dkt. No. 11, Attach. 1 at 8.) District Defendants
appear mistaken, as the holding in Cummings addressed only compensatory damages
for emotional distress. Here, Pierro seeks damages in addition to emotional distress,
(Proposed 2d Am. Compl. ¶¶ 168-71.) Thus, District Defendants’ motion is granted but
only with respect to damages for emotional distress under Title IX.
14
Attach. 1 at 7-8.) Additionally, District Defendants seek dismissal of
Pierro’s Title IX claims against the individual District Defendants because

individuals are not amenable to suit under Title IX. (Id. at 8.) Pierro
maintains that it is “well established” that individual defendants can be
liable under Title VII and that “all individual [District Defendants] either . . .

directly harassed P[ierro], or retaliated against [her].” (Dkt. No. 14 at 8.)
Pierro also contends that courts allow Title IX claims to be brought
pursuant to 42 U.S.C. § 1983 and it is “well established that individual . . .
liability is available in actions pursuant to 42 U.S.C. § 1983.” (Id. at 9-10.)

District Defendants are correct. With respect to individual liability
under Title VII, the Second Circuit has established that Title VII claims
cannot be made against individuals, and, thus, to the extent Pierro brings

Title VII claims against individual District Defendants, they should be
dismissed. See Malcom v. Ass’n of Supervisors and Adm’rs of Rochester,
F. App’x. 1, 4 (2d Cir. 2020); Hamlett v. City of Binghamton, 3:20-cv-880,

2021 WL 3723091, at *2 (N.D.N.Y. Aug. 23, 2021). Regarding individual
liability under Title IX, “[n]umerous district courts in the Second Circuit . . .
have held that there is no individual liability under Title IX.” Miotto v.
Yonkers Public Schs., 534 F. Supp. 2d 422, 426 (S.D.N.Y. 2008)

15
(collecting cases). Accordingly, Pierro’s Title VII and Title IX claims
against the individual District Defendants must be dismissed. See Faiaz v.

Colgate Univ., 64 F. Supp. 3d 336, 364 (N.D.N.Y. 2014) (dismissing Tittle
VII and Title IX claims against all individual defendants “because those
statutes apply only to the education entity who receives the federal funds”)

D. Personal Involvement
District Defendants argue that Pierro’s Section 1983 claims against
them in their individual capacities must be dismissed because she has not
alleged personal involvement in the alleged unlawful conduct. (Dkt. No.

11, Attach. 1 at 12-16.)6 Pierro briefly counters she “plead[ed] the action of
each and every board member.” (Dkt. No. 13 at 13.)
“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. However, a plaintiff must prove that the
individual she pursues under § 1983 was personally involved in her alleged

constitutional violation.” Peck v. County of Onondaga, 5:21-CV-651, 2021
WL 3710546, at 9 (N.D.N.Y. Aug. 20, 2021) (internal quotation marks and

6 With the exception of arguing against the merits of Pierro’s First Amendment
claims, see infra Part IV.F, District Defendants do not appear to raise any other
arguments for dismissal of Pierro’s Section 1983 claims other than lack of personal
involvement. (See generally Dkt. No. 11, Attach. 1).
16
citations omitted). “It is well settled in this Circuit that ‘personal
involvement of defendants in the alleged constitutional deprivations is a

prerequisite to an award of damages under § 1983.’” See Johnson v.
Miller, No. 9:20-CV-622, 2020 WL 4346896, at *9 (N.D.N.Y. Jul. 29, 2020)
(internal quotation marks and citations omitted). That is to say, plaintiffs

“must allege a tangible connection between the acts of the defendant and
the injuries suffered.” Id. (internal quotation marks and citation omitted).
As to supervisory liability, there is no “special test,” and “a plaintiff must
plead and prove that each Government-official defendant, through the

official’s own individual actions, has violated the Constitution.” Tangreti v.
Bachmann, 983 F.3d 609, 614 (2d Cir. 2020) (internal quotation marks and
citation omitted).

The proposed second amended complaint lays out the following
allegedly unconstitutional acts by District Defendants: (1) failing to take
meaningful action after Pierro made complaints of harassment to Spindler,

Boehme, and Suttmeir; (2) Spindler, Boehme, Suttmeir and the Board of
Education each voting to promote Stalker as Pierro’s supervisor while
aware of the harassment complaints Pierro made against Stalker; (3)
Spindler, Boehme, Suttmeir and the Board of Education each voting to

17
place Pierro on administrative leave, and later suspension without pay,
following multiple complaints she made against her co-workers; (4) barring

Pierro from entering school premises and from attending Board of
Education meetings as a parent of a student at HCSD; (5) reassigning
Keeler’s duties to Pierro without increased pay as an act of retaliation for

reporting harassment; (6) failure to promote by denying Pierro the
opportunity to interview for a position in-person and not offering her the
position for which she was qualified; and (7) refusing to accept Pierro’s
letter of resignation and pursue termination if she did not rescind her

allegation with the Division of Human Rights.7
The court notes that the proposed second amended complaint is
devoid of any allegations as to HCSD Human Resource Manager Rachel

Rissetto’s involvement in the alleged deprivations. In fact, Pierro does not
allege Rissetto took any action or had any knowledge of Pierro’s reports of
harassment. Accordingly, all Section 1983 claims must be dismissed

against Rissetto.

7 Notably, for the sixth and seventh allegedly unconstitutional acts, Pierro does not
attribute to any particular defendants but, rather, generally refers to these as actions
taken by “the district.” Because these acts are not attributable to any one defendant, to
the extent Pierro attempts to assert claims based on these two acts, including her claim
for disparate treatment for failure to promote, against individual defendants, they must be
dismissed.
18
Turning next to Pierro’s Section 1983 claims against the members of
the Board of Education in their individual capacities, these too must be

dismissed. Pierro never identifies the specific actions of individual
members of the Board of Education, but, rather, refers to the Board of
Education as a collective group. Pierro has engaged in “impermissible

group pleading,” and the proposed second amended complaint “offer[s]
nothing to specifically indicate the extent of any individual Board Member’s
involvement in the complained-of unconstitutional conduct.” Arnold v.
Town of Calimus, No. 5:20-CV-1364, 2023 WL 2456059, at *12 (N.D.N.Y.

Mar. 9, 2023); see Wilson v. County of Ultser, No. 1:20-cv-104, 2022 WL
813958, at *7 (N.D.N.Y. Mar. 17, 2022). Additionally, although Pierro
alleges that the members of the Board of Education voted to take certain

actions against her while they had knowledge of her complaints to
management, Pierro alleges that she made these complaints to Spindler,
Boehme, and Suttmeir and fails to articulate what information was relayed

to each individual Board member and how each member voted. Thus,
Pierro’s allegations of actions taken by the individual members of the
Board are not sufficient to plausibly allege personal involvement and
Pierro’s Section 1983 claims against the individual members of the Board

19
must be dismissed. See Arnold, 2023 WL 2456059, at 11-12 (dismissing
Section 1983 claims against town board members because plaintiff did not

allege what information regarding her complaint of sexual harassment was
relayed to the individual board members and plaintiff’s allegations
constituted “impermissible group pleading” because she did not specifically

allege the involvement of each individual board member).
Pierro does, however, adequately plead personal involvement of
Spindler, Boehme, and Suttmeir. Pierro alleges that she made multiple
reports to Spindler, Boehme, and Suttmeir and they did not take corrective

action to stop the conduct she reported. Additionally, Pierro alleges that
Spindler, Boehme, and Suttmeir were responsible for promoting Stalker as
her supervisor, after she had identified him as one of the co-workers

harassing her, and were responsible for placing her on administrative leave
followed by suspension without pay and barred her from entering the
school premises to attend Board of Education meetings. (Proposed 2d

Am. Compl. ¶ 60.) Although “fail[ing] to take ameliorative action after
receiving notice of [discrimination]” is insufficient, without more, to establish
personal involvement, see Quinones v. City of Binghamton, 2022 WL
43764, at 5 (N.D.N.Y. Jan. 5, 2022), Pierro alleges more than just failure to

20
take action, she specifically alleges that Spindler, Boehme, and Suttmeir,
while aware of Pierro’s reports of harassment, were responsible for

promoting one of Pierro’s alleged harassers to her supervisor and
responsible for placing her on leave and barring her from HCSD premises.
At this stage, and because District Defendants’ only argue for dismissal of

these claims for lack of personal involvement, Pierro has pleaded sufficient
facts for her Section 1983 claims against Spindler, Boehme, and Suttmeir
to survive a motion to dismiss.

E. Monell Liability
District Defendants argue that Pierro has not pleaded “any specific

policy, practice, custom . . . which caused an alleged violation of P[ierro]’s
constitutional rights. (Dkt. No. 11, Attach. 1 at 18-19.) Pierro counters that
she has adequately pleaded a Monell claim because, as she contends,

“municipal liability can be inferred where repeat violations occurred in the
face of acquiescence” and she “stated several years of continuing
violations, . . . harm, . . . threats of sexual violence, . . . retaliation, . . .
harassment, and . . . discrimination” and that she made several reports to

21
management and HCSD “utterly failed to act” to protect her. (Dkt. No. 13
at 14-15.)

A municipality may be liable under Section 1983 “when execution of
a government’s policy or custom, whether made by its lawmakers or by
those whose edicts or acts may fairly be said to represent official policy,

inflicts the injury.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694
(1978). To establish a municipal policy or custom, a plaintiff must allege
(1) a formal policy endorsed by the municipality; (2) actions taken or
decisions made by the municipality’s policymakers, which caused the

alleged civil rights violation; (3) a practice so widespread that it constitutes
“a custom or usage”; or (4) a failure by the municipality’s policymakers to
properly train or supervise their subordinates. See Green v. City of New

York, 465 F.3d 65, 80-82 (2d Cir. 2006). Generally, under New York
Education Law, a superintended may be considered a “decision-maker,”
but the Board of Education is the “final policymaker.” Jones v. Bay Shore

Union Free Sch. Dist., 170 F. Supp. 3d 420, 438-39 (E.D.N.Y Mar. 16,
2016.) A municipal policymaker’s deliberate indifference to the
unconstitutional actions, or risk of unconstitutional actions, of municipal
employees can establish municipal liability pursuant to Section 1983. See

22
Jones v. Town of East Haven, 691 F.3d 72, 81 (2d Cir. 2012). To establish
deliberate indifference, the policymaker must be aware of constitutional

injury, or the risk of constitutional injury, but did not take appropriate action
to prevent or sanction the conduct causing the injury. See id. Such
inaction must be a “conscious choice” rather than mere negligence.

At this juncture, the court is satisfied that Pierro has alleged that the
Board of Education, a final policymaker for HCSD, did not take appropriate
action to prevent or sanction the conduct Pierro reported. Not only does
Pierro allege lack of appropriate action from the Board of Education,

(Proposed 2d Am. Compl. ¶¶ 44, 46, 96), she also alleges specific actions
taken by the Board–voting to appoint Stalker as her supervisor, suspend
her without pay, and prevent her from attending Board of Education

meetings–that were done with the knowledge of Pierro’s reports of
harassment, which identified Stalker as one of the people engaging in
harassing conduct, (id. ¶¶ 57-58, 89, 101). This plausibly suggests that

the Board of Education was not merely negligent, but made a conscious
choice, while aware of Pierro’s reports, to promote one of her alleged
harassers and prevent her from attending Board meetings. Accordingly,

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Pierro has adequately alleged a Monell claim against HCSD and the Board
of Education.

F. First Amendment Retaliation Claims
District Defendants argue that Pierro’s First Amendment retaliation
claim is “legally infirm” because she fails to allege any state action, when

the alleged retaliatory action took place, and that her alleged speech or
expressive activity was protected speech. (Dkt. No. 11, Attach. 1 at 19-
20.) District Defendants further contend that Pierro’s failure to identify
specifics as to the content of her speech and the time-line of District

Defendants’ alleged retaliation, “preclude[s] a meaningful evaluation of
whether [her] speech . . . is protected.” (Id. at 20.) Pierro counters that her
reports of “system wide discrimination” constitute a matter of public

concern and is speech protected under the First Amendment. (Dkt. No. 13
at 17-18.)
To adequately allege a First Amendment retaliation claim, plaintiff

must plead that: “(1) h[er] speech or conduct was protected by the First
Amendment; (2) the defendant took an adverse action against h[er]; and
(3) there was a causal connection between this adverse action and the
protected speech.” Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267,

24
273 (2d Cir.2011) (citations omitted). “The threshold inquiry is whether the
employee spoke as a citizen on a matter of public concern.” Seale v.

Madison County, 929 F. Supp. 2d 51, 70 (N.D.N.Y. Mar. 7, 2013). A
matter of public concern is one that “relat[es] to any matter of political,
social, or other concern to the community.” Connick v. Myers, 461 U.S.

138, 146 (1983). Speech that touches on a topic of general importance but
“primarily concerns an issue that is personal in nature and generally
related to [the speaker's] own situation, such as his or her assignments,
promotion, or salary, does not address matters of public concern.” Jackler

v. Byrne, 658 F.3d 225, 236 (2d Cir. 2011) (internal quotation marks and
citation omitted).
Here, Pierro does not state a claim for First Amendment retaliation

because she fails to include specific allegations of what she reported and
this precludes the court from evaluating whether she was speaking on a
matter of public concern or a personal issue related to her own situation.

While reports of harassment can be considered matters of public concern,
such as where a plaintiff’s reports of discrimination were intended to
implicate a system-wide issue or bring public attention to unlawful
practices, see Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 143 (2d Cir.

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1993); Brown v. N.Y.S. Dep’t of Corr. Services, 583 F. Supp. 2d 404, 412
(W.D.N.Y. Oct. 29, 2008), this is not the case here. Because Pierro’s

proposed second amended complaint does not detail what she reported to
HCSD management and the New York State Division of Human Rights, the
court cannot determine whether Pierro’s speech was intended to implicate

a system-wide issue of harassment or, rather, concerned her own personal
situation. Accordingly, Pierro’s First Amendment retaliation claim must be
dismissed.8
G. Article 78 Proceeding

District Defendants seek dismissal of Pierro’s claim under N.Y.
C.P.L.R. Article 78 because, they contend, her claims for injunctive relief
are moot, (Dkt. No. 11, Attach. 1 at 17), but this argument relies on a fact

not contained within the pleadings, and as such, dismissal on this ground
is not appropriate. Here, however, the court declines to exercise
supplemental jurisdiction over the Article 78 claim. While courts in the

Circuit are split as to “whether courts may, in their discretion, hear Article

8 Pierro also appears to allege a First Amendment claim for prior restraint of speech.
(Proposed 2d Am. Compl., ¶¶ 119, 242.) Because District Defendants have not argued
for dismissal of this prior restraint claim, (see generally Dkt. No. 11, Attach. 1), and Pierro
alleges some facts to support the claim, Pierro’s First Amendment claim survives to the
extent it is based on the prior restraint of her speech by barring her from attending Board
of Education meetings.
26
78 claims under the rubric of supplemental jurisdiction,” Kent v. New York,
2012 WL 6024998, at *10 (N.D.N.Y. Dec. 4, 2012) (collecting cases), the

court, nonetheless, has discretion under 28 U.S.C. § 1367 to decline to
hear an Article 78 claim. Thus, Pierro’s Article 78 claim is dismissed.
H. Immunity

District Defendants contend all claims aginst defendants in their
individual capaity must be dismissed because the District defendants are
entitled to both absolute immunity and qualified immunity. (Dkt. No. 11,
Attach. 1 at 14, 21-22.) Pierro counters that District Defendants are not

entitled to absolute immunity because absolute immunity does not apply to
“discretionary personnel decisions.” (Dkt. No. 13 at 12-13.) Additionally,
District Defendants, as Pierro argues, are not entitled to qualified immunity

because they have not established that their conduct did not violate a
“clearly established statutory or constitutional right[].” (Id. at 15-16.)
Absolute immunity “protect[s] officials from personal liability for the

performance of certain discretionary acts.” See Ross v. Lichtenfeld, 06
Civ. 6698, 2007 WL 9826117, at 6 (S.D.N.Y. Sept. 17, 2007) (quoting
Spear v. West Hartford, 954 F.2d 63, 66 (2d Cir. 1992)). Absolutely
immunity does not apply to a school district’s board of education making

27
discretionary personnel decisions. See Harhay v. Town of Ellington Bd. fo
Educ., 323 F.3d 206, 211-12 (2d Cir. 2003) (“Discretionary personnel

decisions, even if undertaken by public officials who otherwise are entitled
to immunity, do not give rise to immunity because such decisionmaking is
no different in substance from that which is enjoyed by other actors.”)

An official is entitled to qualified immunity if his or her “conduct does
not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” DiStiso v. Cook, 691 F.3d 226,
240 (2d Cir. 2012) (citation omitted). “A right is clearly established if (1)

the law is defined with reasonable clarity, (2) the Supreme Court or the
Second Circuit has recognized the right, and (3) a reasonable defendant
would have understood from the existing law that his [or her] conduct was

unlawful.” Burhan v. Lopez 24 F.Supp. 3d 375, 384 (S.D.N.Y. 2014)
(quoting Anderson v. Recore, 317 F.3d 194, 194 (2d Cir. 2003)).
Turning first to absolutely immunity, the court agrees with Pierro.

The Second Circuit has made clear that discretionary personnel
decisions, even when taken by public officials, do not invoke absolute
immunity. See Harhay, 323 F. 3d at 211. The facts alleged here clearly
demonstrate that the actions by District Defendants with repect to Pierro,

28
including promoting Stalker as her supervisor and restricting her from
attending Board of Education meetings after Pierro made more than one

report of harassment, were discretionary personnel decisions, rather than
legislative decisions. See Harhay, 232 F.3d at 211.
As to qualified immunity, the court, again, agrees with Pierro. The

alleged facts demonstrate that District Defendants were aware of Pierro’s
complaints of harassment, did not take action to stop the harassment, and
even promoted Stalker, and later Call, and voted to suspend Pierro and
bar her from school premises. (Proposed 2d Am. Compl. ¶¶ 44-46, 60,

96.) The court finds that no reasonable school official could have believed
that ignoring Pierro’s claims of harassment and then promoting one of the
alleged harassers to be her supervisor was consistent with clearly

established law. Additionally, apart from District Defendants potentially
contributing to the harassment by promoting Stalker, “an official’s failure to
remedy known sexual harassment complaints” can defeat claims of

qualified immunity. See Burhans, 24 F. Supp. 3d at 384-85.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby

29
ORDERED that Pierro’s cross motion for leave to amend (Dkt. No.
15) is GRANTED; and it is further

ORDERED that Pierro shall file the proposed second amended
complaint (Dkt. No. 14 at 19-66) in accordance with Local Rule 15.1(c);
and it is further

ORDERED that District Defendants’s motion to dismiss (Dkt. No.
11) is GRANTED IN PART and DENIED IN PART as follows:
GRANTED as to Pierro’s Title VII and Title IX claims against all

individual defendants; and
GRANTED as to all state law claims against District Defendants;
and

GRANTED as to all Section 1983 claims against Risetto and the
individual members of the Board of Education;
GRANTED as to Pierro’s Section 1983 claims for disparate
treatment and First Amendment retaliation;

GRANTED as to Pierro’s Article 78 proceeding;
DENIED in all other respects; and it is further
ORDERED that the following claims remain: Pierro’s (1) Title VII

claims against HCSD and the Board of Education; (2) Title IX claims
30
against HCSD and the Board of Education; (3) § 1983 hostile work
environment claim against HCSD, Board of Education, Spindler, Boehme,
and Suttmeir; (4) § 1983 First Amendment prior restraint claim against
HCSD, the Board of Education, Spindler, Boehme, and Suttmeir; (5) all
claims against non-moving defendants, excluding Pierro’s Title VII and
Title IX claims, and First Amendment retaliation claim; and it is further
ORDERED that District Defendants letter motion to withdraw their
argument regarding lack of jurisdiction for Pierro’s Title VII claims (Dkt.
No. 21) is GRANTED; and it is further
ORDERED that the Clerk provide a copy of this Memorandum-
Decision and Order to the parties.
IT IS SO ORDERED.
March 31, 2023 x | i
Albany, New York
□□□ District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10315721. Public record. Not legal advice.