Billings v. State Of New York

USDC SDNY

DOCUMENT

UNITED STATES DISTRICT COURT ELECTRONICALLY FILED

SOUTHERN DISTRICT OF NEW YORK DOC #:

DATE FILED: 8/19/2022

MAUREEN M. BILLINGS,

Plaintiff,

“against- 19-cv-11796 (NSR)

NEW YORK STATE DEPARTMENT OF

CORRECTIONS AND COMMUNITY ORDER & OPINION

SUPERVISION, ROGER A. MURPHY, PAUL J.

ARTUZ, and DIANE CURRA

Defendants.

NELSON S. ROMAN, United States District Judge:

Plaintiff Maureen M. Billings (“Plaintiff”) brings this action for discrimination and

retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (“Title VII’), the

First and Fourteenth Amendments, pursuant to 42 U.S.C. § 1983 (“Section 1983”), the Americans

with Disabilities Act, 42 U.S.C. § 12112 (“ADA”), and N.Y. Executive Law § 296. Plaintiff

previously raised these claims in her Amended Complaint, which was dismissed without prejudice

on September 10, 2021. Plaintiff has amended each of her claims and continues to assert them

against the New York State Department of Corrections and Community Supervision (“DOCCS”),

Deputy Superintendent for Security Roger A. Murphy, Captain Paul J. Artuz, and Lieutenant Diane

Curra, alleging that they discriminated and retaliated against her as a Muslim woman suffering

from diabetes and stress-related impairments.

Now before the Court is Defendants’ motion to dismiss the Second Amended Complaint

for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 46.)

For the following reasons, the motion is GRANTED, and Plaintiff's claims are dismissed with

prejudice.

BACKGROUND

The following facts are taken from Plaintiff’s Second Amended Complaint (ECF No. 40)

and are accepted as true for purposes of this motion.

Plaintiff is a practicing Muslim woman who, in compliance with her faith, wears a hijab in

public. (Second Am. Compl. ¶ 17.) Plaintiff also has diabetes. (Id. ¶ 10.) Plaintiff is employed

as a Corrections Officer with the New York State Department of Corrections at the Bedford Hills

Correctional Facility. (Id. ¶ 18.) On October 14, 2016, Plaintiff submitted a letter to the Diversity

Management Office requesting permission to wear a hijab at work. (Id. ¶ 19.) In a letter dated

April 16, 2016, Plaintiff was granted her accommodation request to wear a hijab, subject to certain

conditions outlined in that letter, including that (1) the hijab must be tucked under her uniform

shirt, (2) the hijab must be no larger than three feet by three feet, and (3) it must be worn in a way

that it would immediately tear away should anyone try to grab it. (Id. ¶ 22.)

The letter stated that prior to letting her wear a hijab, the Deputy Superintendent of Security

(Defendant Murphy) had to confirm that Plaintiff’s hijab met these approved specifications. (Id.)

The Diversity Management Office stated that a supervisor would meet with Plaintiff to have her

demonstrate that the hijab met the requirements laid out in her approval letter. (Id. ¶ 23.) The

Diversity Management Office also stated that if she indicated she could not remove the hijab in

front of other people, she would be provided with a private area to remove it, or told to leave and

come back with it available for inspection. (Id.)

On May 1, 2017, Plaintiff was ordered to report to Defendant Murphy’s office. (Id. ¶ 26.)

Plaintiff was accompanied by a female union representative. (Id. ¶ 27.) Defendant Murphy

reprimanded Plaintiff for wearing her hijab at work without first consulting him, and instructed

her to tuck it into her shirt (as per the approved specifications). (Id. ¶ 28.) Plaintiff explained she

did not consult with him or any other supervisors because there were no high-ranking supervisors

on duty over the weekend, and that it would have been violative of her religious beliefs to not wear

her hijab to work. (Id. ¶ 29.)

On May 2, 2017, Plaintiff was ordered to report to Defendant Artuz’s office, again

accompanied by a female union representative. (Id. ¶¶ 31–32.) Defendant Artuz stated her hijab

needed to be three feet by three feet in size. (Id. ¶ 38.) Plaintiff asked for the directive that stated

this rule, and Defendant Artuz responded that she could “like it or take it off.” (Id. ¶ 39.) Plaintiff

and the union representative then cut down the hijab outside of Defendant Artuz’s presence. (Id.

¶ 40.)

Defendant Artuz then stated that Plaintiff had three options if she wanted to wear the hijab

in the prison: (1) take the hijab off and go to work, (2) keep the hijab on, go home and “deal with

the consequences,” or (3) demonstrate that the hijab could be pulled off quickly without choking

her. (Id. ¶ 43.) Plaintiff stated she could perform the demonstration in front of a female supervisor,

as her religion prohibits her from disrobing in front of men outside of her immediate family. (Id.

¶ 45.) Defendant Artuz insisted Plaintiff remove her hijab in front of him as there were no female

supervisors available. (Id. ¶ 46.) Plaintiff then removed her hijab in front of Defendant Artuz.

(Id. ¶ 49.) There were two female supervisors on duty at that time. (Id. ¶ 47.)

After this meeting, Plaintiff felt faint and experienced disorientation, poor balance, and

weakness in her limbs. (Id. ¶ 52.) While walking back to her post, Plaintiff had an anxiety attack

and her knee “buckled” twice, causing her to fall. (Id. ¶¶ 55–56.). A sergeant nearby observed

the fall, told Plaintiff she was not fit for duty, and sent her to the medical clinic where she was

instructed to fill out Workman’s Compensation papers and was sent home. (Id. ¶¶ 56–57.) On her

way out of the facility, Officer Valerie Calhoun informed Plaintiff that Defendant Murphy and/or

Defendant Artuz directed all employees to write a memorandum if they interacted with Plaintiff.

(Id. ¶ 58.)

Plaintiff was seen by her doctor, who diagnosed her with having experienced an anxiety

attack brought by emotional stress, all of which were in connection with her diabetes. (Id. ¶ 61.)

Sometime thereafter, Plaintiff returned to work with a doctor’s note that cleared her to return to

duty. (Id. ¶ 62.) Plaintiff presented the note to Defendant Curra, who stated that stress is a mental

illness not covered under Workman’s Compensation. (Id. ¶ 65.) Plaintiff was then instructed to

complete “mental illness forms” prior to returning to work. (Id. ¶ 66.) She subsequently completed

the forms, but they were denied for having the wrong date. (Id.) Plaintiff re-submitted the forms

on four subsequent occasions, each of which were rejected due to a mistake that Plaintiff made on

those forms. (Id. ¶ 67.)

Plaintiff submitted “medical documentation receipts” from May through August. (Id. ¶

69.) While Defendant Curra certified that the medical documentation receipts conformed to

DOCCS standards, at some point later, Defendant Curra retroactively marked the medical

documentation receipts as non-conforming. (Id. ¶ 67.)

On June 27, 2017, Plaintiff received a letter stating that she was being removed from the

payroll as of May 27, 2017, despite not having been issued any disciplinary sanctions. (Id. ¶ 72.)

Plaintiff’s doctor signed a Workman’s Compensation document on July 21, 2017, stating that

Plaintiff was neurologically cleared, not depressed, and had no emotional issues preventing her

from returning to work on August 1, 2017. (Id. ¶ 70.) Defendant Curra rejected the doctor’s notes.

(Id. ¶ 71.) Shortly after, on or about August 4, 2017, Plaintiff was informed that she had been

overpaid $13,598.04 for the time-period of May 16, 2017 through July 19, 2017, and Plaintiff

promptly repaid over $1,000. (Id. ¶¶ 73, 75.). Plaintiff applied for unemployment, but that

application was denied by Defendant Curra. (Id. ¶ 78–79.)

Defendant Curra directed Plaintiff to receive a medical examination scheduled on or about

September 27, 2017. (Id. ¶ 80.) When she arrived at the appointment, Plaintiff was told that that

it was a psychological examination to be conducted by Dr. Kurtz, who upon Plaintiff’s information

and belief, was a personal associate of Defendant Curra. (Id. ¶¶ 83–84.) Shortly after the exam

began, Dr. Kurtz received a call on his cellphone from Defendant Curra, who asked whether

Plaintiff showed up to the appointment. (Id. ¶ 86.) Dr. Kurtz recorded the examination and refused

to provide Plaintiff a copy of the recording upon her request. (Id. ¶ 87.)

Plaintiff filed multiple grievances and letters discussing her alleged discrimination and

retaliation. In August of 2017, Plaintiff filed grievances with the New York State Department of

Labor and the New York State Correctional Officers & Benevolent Association, Inc. (Id. ¶¶ 89–

90). In September of 2017, Plaintiff submitted a letter to the Director of Diversity Management

discussing the incident with her hijab and her denial to return. (Id. ¶ 91.) She then filed a grievance

against the Diversity Management Office, as her August 14 and August 23 grievances were

ignored. (Id. ¶ 92.) In September, Plaintiff also submitted a letter to Human Resources detailing

the surrounding events around the September 2017 medical examination by Dr. Kurtz. (Id. ¶ 93.)

On or about December 7, 2017, Plaintiff was permitted to return to work. (Id. ¶ 94.)

Plaintiff received a bid to work with the DOCCS staff at Mt. Vernon hospital, but she was required

to report to Defendants Murphy and Artuz, and Defendant Curra remained responsible for

overseeing Plaintiff’s attendance. (Id. ¶ 95.) Since returning to work, Defendant Curra has marked

Plaintiff as absent without leave (“AWOL”) on days that Plaintiff reported to her post as well as

on days where Plaintiff had prearranged medical appointments and submitted all required

paperwork. (Id. ¶ 96.) As a result, Plaintiff has been charged for overpayment for time she worked

and has received a notice of discipline. (Id. ¶ 97.) In or around January 2020, DOCCS directed

Defendant Curra to remove nine AWOLs from Plaintiff’s attendance records after determining

that they were inaccurate. (Id. ¶ 98.) Plaintiff wrote to Defendant Curra’s superiors in February

and March 2020 informing them of Defendant Curra’s conduct and requesting another Lieutenant

to oversee her time and attendance. (Id. ¶ 99.). However, Plaintiff has not received any response.

(Id.)

Before beginning her bid at Mt. Vernon, Plaintiff was informed by another officer that

Officer Pettigrew, who socializes with Defendants Artuz and Curra, told other Mt. Vernon officers

that Plaintiff was considered “bad news” and that anyone associating with Plaintiff would find

themselves in trouble with the administration. (Id. ¶¶ 101–02.) After Plaintiff began working at

Mt. Vernon, Officer Pettigrew filed a grievance claiming that the Plaintiff assaulted her. (Id. ¶

104.) While the grievance was determined to be unfounded, Plaintiff was required to sign a cease

and desist, and Officer Pettigrew was not disciplined for filing that grievance. (Id.) Officer

Pettigrew also appeared at Plaintiff’s duty post with her sidearm on a day that Officer Pettigrew

was not scheduled to work. (Id.) Plaintiff had submitted at least four internal memoranda to her

superiors regarding harassment by Officer Pettigrew, which have gone without a response. (Id. ¶

105.)

In this action, Plaintiff requests a total of $8 million in damages, plus punitive damages,

costs, and attorney’s fees, and an injunction requiring Defendants (1) “to correct all present and

past violations of federal and state law,” (2) “require Defendants to appoint a disinterested

Lieutenant to oversee Plaintiff’s time and attendance,” and (3) “to require Defendants to respond

in good faith to Plaintiff’s grievances of workplace harassment by her coworkers.” (Id. at 33.)

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), dismissal is proper unless the complaint

“contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on

its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). When there are well-pled factual allegations in the complaint, “a court

should assume their veracity and then determine whether they plausibly give rise to an entitlement

to relief.” Id. at 679.

While the Court must take all material factual allegations as true and draw reasonable

inferences in the non-moving party’s favor, the Court is “not bound to accept as true a legal

conclusion couched as a factual allegation,” or to credit “mere conclusory statements” or

“[t]hreadbare recitals of the elements of a cause of action.” Iqbal, 556 U.S. at 662, 678 (quoting

Twombly, 550 U.S. at 555). The critical inquiry is whether the plaintiff has pled sufficient facts to

nudge the claims “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.1

DISCUSSION

I. Title VII

Plaintiff alleges religious discrimination and retaliation against DOCCS2 under Title VII.

(Second Am. Compl. ¶¶ 109–26.) The Court evaluates each claim separately below.

A. Religious Discrimination

1 In her opposition, Plaintiff incorrectly argues that the Twombly plausibility standard is not applicable to

discrimination cases. (Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion to Dismiss (“Pl.’s Opp.”

(ECF No. 48) at 4.) As Defendants note, Plaintiff relies on case law that has been overturned by Ashcroft v. Iqbal.

(Defendants’ Memorandum of Law in Support Of Their Motion to Dismiss The Second Amended Complaint (“Defs.’

Br.”) (ECF No. 47) at 2) (citing Iqbal, 556 U.S. at 686–87).

2 In her Opposition, Plaintiff concedes that her Title VII claim is only against DOCCS and not against the

State of New York. (Pl.’s Opp. at 8.)

Title VII provides that an employer cannot discriminate against “any individual” based on

his or her “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). To survive a

motion to dismiss, a claimant must plausibly allege two elements: “(1) the employer discriminated

against him (2) because of his race, color, religion, sex, or national origin.” Lowman v. NVI LLC,

821 Fed. Appx. 29, 30 (2d Cir. 2020) (quoting Vega v. Hempstead Union Free Sch. Dist., 801 F.3d

72, 85 (2d Cir. 2015)).

An employer discriminates against an employee “by taking an adverse employment action

against him.” Vega, 801 F.3d at 85. An adverse employment action is a “materially adverse

change in the terms and conditions of employment.” Id. (citing Galabya v. New York City Bd. of

Educ., 202 F.3d 636, 640 (2d Cir. 2000)). The Second Circuit has indicated that such an action

“is one which is more disruptive than a mere inconvenience or an alteration of job responsibilities.”

Id. (citing Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003)). There are no “bright-line rules”

for determining whether an employee has suffered an adverse employment action, but an adverse

employment action “generally includes termination of employment, a demotion evidenced by a

decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly

diminished material responsibilities, or other indices . . . .” Jaeger v. N. Babylon Union Free Sch.

Dist., 191 F. Supp. 3d 215, 226 (E.D.N.Y. 2016).

Relatedly, an adverse action is defined in part by the causal role the claimant’s protected

identity played in the change. Thus, the change in terms and conditions must be “because of” the

employee’s race, color, religion, sex or national origin, and the claimant’s protected identity must

be “a ‘substantial’ or ‘motivating’ factor contributing to the employer’s decision to take the

action.” Id. (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 249 (1989) (plurality opinion),

superseded on other grounds by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat.

1071). At this stage, an employee must allege the adverse action was made “at least in part for a

discriminatory reason” and this may be done by “alleging facts that directly show discrimination

or facts that indirectly show discrimination by giving rise to a plausible inference of

discrimination.” Id. at 87 (citing Littlejohn v. City of New York, 795 F.3d 297, 307 (2d Cir. 2015)).

a. Adverse Employment Action

In her opposition, Plaintiff alleges two potential adverse employment actions as part of her

Title VII discrimination claim: (1) denial of her request to take off her hijab in front of a female

supervisor; and (2) being dismissed from work, taken off the payroll, and prevented from returning

for an extended period of time.

Plaintiff alleges that she suffered an adverse employment action by being denied a female

supervisor for her hijab “demonstration” (i.e. a demonstration that she could quickly remove her

hijab without being choked).3 (Second Am. Compl. ¶¶ 45–47, 113; Pl.’s Opp. at 10–11.) Plaintiff

argues that Defendants’ requiring of her to undertake the hijab demonstration before Defendant

Artuz and forcing her to unveil herself before a non-familial male, in violation of her religious

beliefs, should be considered an adverse employment action. (Pl.’s Opp. 10–11). She adds that

she was forced to comply under threat of discipline based on comments made by Defendant Artuz,

such as “You can like it or take it off” and “You have to deal with the consequences.” (Pl.’s Opp.

13; Second Am. Compl. ¶¶ 39, 43, 44).

Denial of an accommodation may be considered an adverse action. Little v. NBC, 210 F.

Supp. 2d 330, 337 (S.D.N.Y. 2002) (“While there is no exhaustive list of what constitutes an

3 Plaintiff also alleges that she was not offered a private area to remove her hijab upon request, as provided

in the Diversity Management Office email accompanying the letter outlining the terms of her religious

accommodation. (Second Am. Compl. ¶¶ 23, 47.) But as Defendants point out, removing the hijab in public would

not have allowed Plaintiff to demonstrate that it could immediately be torn away should anyone try to grab it, as

required under the accommodation letter (Id. ¶ 22; Defs.’ Br. at 10–11.) Plaintiff does not allege any objections to the

accommodation letter, which was sent to her. (Second Am. Compl. ¶ 22.)

adverse employment action, courts have held that the following actions, among others, may

qualify: . . . denial of a requested employment accommodation[.]”). However, a claimant must

still allege a material adverse event as a result of the denial of the accommodation. See Reyes v.

New York State Office of Children and Family Services, No. 00 Civ. 7693(SHS), 2003 WL

21709407, at *7 (S.D.N.Y. July 22, 2003) (“[T]he sole adverse action that Reyes alleged . . . with

respect to national origin discrimination is [the defendant’s] denial of his request for religious

accommodation. As Reyes suffered no material consequences from that denial, it cannot constitute

an adverse employment action.”). Plaintiff’s Second Amended Complaint fails to allege any

material adverse change to her employment in connection with her request to have a female

supervisor conduct her hijab demonstration, particularly as Plaintiff complied with Defendant

Artuz’s instructions and the conditions for her to wear her hijab were deemed satisfied.

Plaintiff insists, however, that the severe distress she experienced after she removed her

hijab in front of Defendant Artuz, in violation of her religious beliefs, should itself be considered

a material adverse event. Pl.’s Opp. at 16. However, Plaintiff cites to no supporting caselaw for

that proposition, and other cases indicate that “a plaintiff's purely subjective feelings about the

events and circumstances” regarding an event is insufficient to constitute an adverse employment

action. Islamic Soc'y of Fire Dep't Pers. v. City of New York, 205 F. Supp. 2d 75, 84 (E.D.N.Y.

2002); see also Torres v. Pisano, 116 F.3d 625, 640 (2d Cir.1997) (supervisor’s conduct, which

left employee feeling “frightened” and “humiliated” failed to show employee suffered an adverse

employment action); Smalls v. Allstate Ins. Co., 396 F. Supp. 2d 364, 371 (S.D.N.Y. 2005) (“being

yelled at, receiving unfair criticism . . . do not rise to the level of adverse employment actions . . .

because they [do] not have a material impact on the terms and conditions of Plaintiff's

employment”) (internal citation and quotation omitted) (modification in original).

Plaintiff also alleges in her Second Amended Complaint that DOCCS discriminated against

her by dismissing her from work, taking her off the payroll, and not allowing her back for months.

“[C]ourts have found unpaid leave to be an adverse employment action in the context of [] Title

VII [] claims.” Jamil v. Sessions, 14-CV-2355 (PKC) (RLM), 2017 WL 913601, at *8 (E.D.N.Y.

Mar. 6, 2017); see also Hughes v. City of Rochester, 12-CV-6112, 2016 WL 4742321, at *6

(W.D.N.Y. Sept. 12, 2016) (stating, in a Title VII discrimination case, that “at a minimum, the

adverse employment actions [] include: [the employer’s] decision to place plaintiff on unpaid

leave”). Plaintiff alleges she was dismissed from her place of work with no pay for about seven

months, which clearly constitutes a material change in her employment. Thus, the Court finds that

Plaintiff’s dismissal and removal from the payroll for about seven months constitutes an adverse

employment action.

b. Inference of Discrimination

Even if Plaintiff successfully plead adverse employment actions, her amended claim fails

to plead any facts showing a plausible inference of discrimination. Like in her Amended

Complaint, Plaintiff does not allege in her Second Amended Complaint that any comments were

made about her hijab, that she was asked to not wear it at work, or anything else that would suggest

that the alleged discrimination she faced was related to her adherence to Islam. See Glascoe v.

Soloman, 18 Civ. 8284, 2020 WL 1272120, at *7 (S.D.N.Y. Mar. 17, 2020).

Plaintiff argues that the temporal proximity between the relevant events gives rise to an

inference of discrimination. The timing and sequence of events may adequately establish an

inference of discrimination at the motion to dismiss stage. See Govori v. Goat Fifty, L.L.C., 519

Fed. Appx. 732, 734 (2d Cir. 2013) (holding temporal proximity between events may give rise to

a prima facie case of discrimination). However, the timing of events here is insufficient to give

rise to an inference of discrimination, particularly as Plaintiff concedes in the Second Amended

Complaint there were “no overtly discriminatory comments made within Plaintiff’s hearing.”

(Second Am. Compl. ¶ 122.) See, c.f., Babsky v. DeLeo, 1:16-cv-08576, 2017 U.S. Dist. LEXIS

45883, at *12 (S.D.N.Y. Mar. 27, 2017) (“The timing and sequence of events—that is, Plaintiff’s

refusal to work during his religious observances, [Defendant’s] allegedly derogatory remark about

Plaintiff’s religion during a conversation about reasonable accommodations, and Plaintiff’s

discharge days later—is sufficient at this early stage in the litigation to plausibly support an

inference of religious discrimination.”). While Plaintiff was dismissed shortly after attending her

meeting with Defendant Artuz regarding her hijab, there is no allegation that this meeting

motivated her dismissal in any way. Instead, Plaintiff alleges that she had already complied with

the conditions DOCCS put in place before she could wear her hijab and that DOCCS recognized

that she had complied with these conditions. Accordingly, Plaintiff fails to allege any

discriminatory reason for DOCCS to prevent her from working after she had already confirmed

with a supervisor that her hijab conformed to the requirements mandated for her to safely wear a

hijab as a Corrections Officer.

Plaintiff’s own pleadings concede that she was dismissed for non-discriminatory reasons.

Plaintiff states that she was sent to the medical clinic and subsequently sent home due to falling

twice. (Second Am. Compl. ¶¶ 56–57.) Plaintiff offers no facts showing that she was being

rejected from returning to work in connection with her religion or her religious accommodation.

Instead, the facts alleged show that Plaintiff was not allowed to return her work because Defendant

Curra perceived errors in her necessary paperwork—and Plaintiff does set forth sufficient facts

that Defendant Curra rejected Plaintiff’s paperwork on the basis of her religion, much less that she

was aware of Plaintiff’s religious accommodation. Therefore, Plaintiff has not made a plausible

showing that her membership in a faith community was a motivating factor of any adverse

employment action.

Accordingly, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s Title VII

discrimination claim and dismisses the claim with prejudice.

B. Retaliation

Plaintiff alleges that DOCCS retaliated against her in violation of Title VII by forcing her

to leave work, taking her off the payroll, and refusing her permission to return for several months,

all after she requested her religious accommodation. (Second Am. Compl. ¶¶ 122–23.) Plaintiff

also now asserts in the Second Amended Complaint that after she returned to work, Defendant

Curra repeatedly and incorrectly marked her as AWOL on days she presented herself to work. (Id.

¶ 96.)

To state a claim for retaliation under Title VII, a claimant must plead facts that show that

(1) he or she “participated in a protected activity known to the defendant;” (2) “the defendant took

an employment action disadvantaging” him or her; and (3) there was a “connection between the

protected activity and adverse action.” Patane v. Clark, 508 F.3d 106, 115 (2d Cir. 2007) (citing

Feingold v. New York, 366 F.3d 138, 156 (2d Cir. 2004)). 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 [or her], (2) because he [or she] has opposed any

unlawful employment practice.” Vega, 801 F.3d at 90 (internal quotations omitted).

In the Title VII retaliation context, an “adverse employment action” is read more broadly

than in the Title VII discrimination context. Id. Thus, an adverse employment action sufficient to

support a retaliation claim is “any action that ‘could well dissuade a reasonable worker from

making or supporting a charge of discrimination.’” Id. (quoting Burlington Northern & Santa Fe

Ry. v. White, 548 U.S. 53, 57 (2006)). To show causation between the adverse action and the

protected activity, a claimant must plausibly plead a connection between the two events. Id.

Similar to discrimination claims, this may be done using temporal proximity. Id. (citing Cifra v.

Gen. Elec. Co., 252 F.3d 205, 217 (2d Cir. 2001)). Additionally, a plaintiff bringing a Title VII

retaliation claim, “must plausibly allege that the retaliation was a ‘but-for’ cause of the employer’s

adverse action.” Id. But-for causation requires a showing that “the adverse action would not have

occurred in the absence of the retaliatory motive.” Id. at 91 (citing Kwan v. Andalex Grp. LLC,

737 F.3d 834, 846 (2d Cir. 2013)).

Plaintiff satisfies the first element as requesting a religious accommodation constitutes

protected activity. Privler v. CSX Transp., Inc., 1:18-cv-1020 (BKS/CFH), 2021 WL 3603334, at

*19–20 (N.D.N.Y. Aug. 13, 2021). Additionally, as discussed above, being placed on unpaid leave

is an adverse employment action. Jamil, 2017 WL 913601, at *8. Plaintiff alleges she was

dismissed from her place of work for about seven months, which clearly constitutes an action that

would dissuade an employee from a protected activity. Thus, the Court finds that Plaintiff’s

dismissal and removal from the payroll constitutes an adverse employment action, and therefore

the second element is met. Defendant Curra’s numerous AWOL markings on Plaintiff’s

attendance record for days that she actually worked could also constitute an adverse employment

action, particularly as Plaintiff pleads she was charged for overpayment and received a notice of

discipline. (Second Am. Compl. ¶ 97.)

Plaintiff, however, must also show a connection between her religious accommodation

request and the adverse employment action. Here, similar to her discrimination claim, Plaintiff

relies on the temporal proximity to make this connection. In the retaliation context, this is

sufficient where the temporal proximity is “very close.” Clark County Sch. Dist. v. Breeden, 532

U.S. 268, 273 (2001); see also Deravin v. Kerik, No. 00 CV 7487 (KMW) (KNF), 2007 WL

1029895, at *11 (S.D.N.Y. Apr. 2, 2007) (discussing how time periods greater than one year have

been generally rejected to establish a causal connection).

Despite Plaintiff’s opportunity to amend her pleadings to correct deficiencies identified in

the prior complaint, Plaintiff’s Second Amended Complaint continues to fail on this third element.

Plaintiff continues to allege that she requested her accommodation on October 14, 2016, her

accommodation was approved on or around April 16, 2017, and she was dismissed on May 2,

2017. (Second Am. Compl. ¶¶ 19, 22, 57.) She also now argues that Defendant Curra took further

retaliatory measures after May 2, 2017 by classifying her injury as mental-health related despite a

doctor’s note to the contrary, by pretextually rejecting Plaintiff’s medical documentation and

striking her from the payroll, and by purportedly attempt to sabotage Plaintiff’s DOCCS medical

examination. Pl.’s Opp. at 18. However, the length of time between Plaintiff’s request for

accommodation and these purported retaliatory actions is too long to presume a connection

between her accommodation request and her dismissal. See Wojcik v. Brandiss, 973 F.Supp.2d

195, 216 (E.D.N.Y. 2013) (holding a time period of nearly six months between the employee’s

complaints about his supervisor and the incident that led to his termination was too long of a time

period to support his retaliation claim); Laudadio v. Johanns, 677 F. Supp. 2d 590, 614 (E.D.N.Y.

2010) (“Second Circuit courts have rejected finding a causal inference when there were gaps of

three months, six months, eight months, one year, and eleven months between the filing of the

complaint and the alleged retaliation.”) (internal quotations omitted). In addition, Plaintiff fails to

allege that Defendant Curra was aware of Plaintiff’s request for a religious accommodation.

Therefore, Plaintiff’s allegations fail to adequately show the connection between Curra’s purported

retaliatory actions and Plaintiff’s request for religious accommodation.

Plaintiff also argues that Defendants Murphy and Artuz retaliated against her by requiring

her to remove her hijab in front of Defendant Artuz even though there were female supervisors

available to conduct the hijab demonstration. Pl.’s Opp. at 17–18. However, beyond Plaintiff’s

conclusory statements that it is “inconceivable” that such actions had “any valid, non-

discriminatory motivation,” Plaintiff offers no well-pled factual allegations that Defendants had

any motive to retaliate against Plaintiff for making her religious accommodation request.

Plaintiff’s argument is also undermined by her own allegations that the Defendants were following

the accommodation guidelines provided to them. As Plaintiff alleges, the Diversity Management

Office letter granting her accommodation required that the hijab be inspected by Defendant

Murphy to confirm that it met the guidelines, and his subordinate, Defendant Artuz, showed

Plaintiff the conditions of the accommodation and conducted the hijab demonstration after

receiving instruction from Defendant Murphy. (Second Am. Compl. ¶¶ 22, 33–36, 43–46.)4 See

Iqbal, 556 U.S. at 682 (“As between that ‘obvious alternative explanation’ . . .and the purposeful,

invidious discrimination respondent asks us to infer, discrimination is not a plausible conclusion”)

(citation omitted); Powell v. Merrick Acad. Charter Sch., No. 16-CV-5315-NGG-RLM, 2018 WL

1135551, at *7 (E.D.N.Y. Feb. 28, 2018) (obvious alternative explanation for plaintiff’s

termination rendered inferences of discrimination unreasonable).

4 Plaintiff contests Defendants’ attachment of the Diversity Management Office accommodation letter to

their opening brief and argues that such letter was improperly attached at the pre-discovery stage of litigation and is

presented without “vital context, most notable of which is the [Diversity Management Office] guidance for

implementing the accommodation.” (Pl.’s Opp. at 5.) The Court agrees with Defendants that the accommodation

letter is incorporated by reference given numerous references to it in the Second Amended Complaint and Plaintiff’s

summarizing of the content of that accommodation letter. See Cent. States, Se. & Sw. Area Health, & Welfare Fund

v. Gerber Life Ins. Co., 984 F. Supp. 2d 246, 249 (S.D.N.Y. 2013), (“On a motion to dismiss, the court may consider

. . . any documents incorporated in the complaint by reference.”) (internal citation omitted), aff’d sub nom. Cent.

States, Se. & Sw. Areas Health & Welfare Fund v. Gerber Life Ins. Co., 771 F.3d 150 (2d Cir. 2014); Tubbs v. Stony

Brook Univ., No. 15 CIV. 0517 (NSR), 2016 WL 8650463, at *4 (S.D.N.Y. Mar. 4, 2016) (“a document may be

incorporated when a plaintiff had possession or knowledge of the document, upon which they relied in drafting the

complaint”). In any event, Plaintiff’s allegations regarding the additional guidance that accompanied the

accommodation letter are taken as true for purposes of this motion. (Second Am. Compl. ¶ 23.)

With respect to the grievances and letters Plaintiff filed in August and September of 2017

regarding her “discriminatory and retaliatory treatment,” Plaintiff’s allegations in the Second

Amended Complaint remain insufficient in pleading retaliatory conduct under Title VII. (Second

Am. Compl. ¶¶ 89–93.). Most of the alleged retaliatory action occurred before Plaintiff submitted

her first grievance on August 14, 2017. Plaintiff was sent home on May 2, 2017, taken off the

payroll as of May 27, 2017, and was informed on August 4, 2017 that she had been overpaid in

Workman’s Compensation. (Second Am. Compl. ¶¶ 57, 71–73.) See St. Juste v. Metro Plus

Health Plan, 8 F. Supp. 3d 287, 328 (E.D.N.Y. 2014) (no indication of retaliatory conduct when

grievances email was sent after plaintiff’s ability to use of compensatory time to attend religious

prayers was terminated).

Post-September 2017, Plaintiff attempts to show temporal relation between her grievance

filings and Defendant Curra’s incorrect AWOL markings on Plaintiff’s attendance records. Pl.’s

Opp. at 19. Plaintiff fails, however, to allege whether Defendant Curra even knew of the

grievances that were filed, or when such AWOLs were incorrectly marked. See Glascoe, 2020 WL

1272120, at *9 (no inference of retaliation where Plaintiff failed to set forth sufficient facts

showing that Defendant was aware of Plaintiff’s complaint to the Department of Education at the

time that Defendant disciplined Plaintiff). Plaintiff therefore continues to fail to allege the causal

connection between her adverse employment action and her grievances.5 6

5 It is unclear whether Plaintiff also argues that she experienced a hostile work environment. Regardless, a

hostile work environment claim would fail because, as discussed, Plaintiff does not allege sufficient facts showing

that she experienced any adverse employment action because of her religion. See Adams-Flores v. City of New York,

No. 18-CV-12150 (JMF), 2021 WL 918041, *4 n. 1 (E.D.N.Y. Mar. 10, 2021) (hostile work environment claim failed

because plaintiff “fails to allege sufficient facts showing that any actions taken against her were taken because of a

protected characteristic”).

6 In addition, Plaintiff’s Second Amended Complaint describes that after she began working at Mt. Vernon,

a Corrections Officer named Angel Pettigrew, who socializes with Defendants Murphy and Artuz, bullied Plaintiff

and filed an assault grievance against her that was later dismissed because it was deemed unfounded. (Second Am.

Compl. ¶¶ 100–05.) Plaintiff also alleges that Pettigrew told other colleagues that Plaintiff was considered “bad news”

Accordingly, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s Title VII

retaliation claim, and dismisses the claim with prejudice.

II. Section 1983

Plaintiff next alleges Defendants Murphy, Artuz, and Curra engaged in religious

discrimination and retaliation, in violation of her First and Fourteenth Amendment rights. (Second

Am. Compl. ¶¶ 127–39.)

Section 1983 provides, in relevant part, that: “[e]very person who, under color of any

statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected,

any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party injured.” 42 U.S.C. § 1983.

Section 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights

elsewhere conferred by those parts of the United States Constitution and federal statutes that it

describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979); see also Patterson v. County of

Oneida, 375 F.3d 206, 225 (2d Cir. 2004). To state a claim under Section 1983, a plaintiff must

allege “(1) the challenged conduct was attributable to a person who was acting under color of state

law and (2) the conduct deprived the plaintiff of a right guaranteed by the U.S. Constitution.”

Castilla v. City of New York, 2013 WL 1803896, at *2 (S.D.N.Y. April 25, 2013); see also Cornejo

v. Bell, 592 F.3d 121, 127 (2d Cir. 2010).

Constitutional claims alleging religious discrimination or retaliation brought under section

1983 are evaluated under the same standard as Title VII claims. See, e.g., Lewis v. City of Norwalk,

562 Fed. Appx. 25, 29 (2d Cir. 2014) (analyzing Title VII and § 1983 retaliation claims under the

and that anyone associating with Plaintiff would find themselves in trouble with the administration. (Id. ¶ 102.) In

her opposition, Plaintiff does not argue how these alleged facts around Pettigrew support any of her discrimination

and retaliation claims, and in any event, Plaintiff fails to offer sufficient facts that Pettigrew’s conduct was related to

any discriminatory motive.

same framework); Melendez v. Cnty. of Westchester, No. 17-CV-9637 (NSR), 2019 WL 251731,

at *10 (S.D.N.Y. Jan. 16, 2019), (“the requirements under 1983 are the same as those required to

establish a prima facie employment discrimination claim under Title VII”), on reconsideration,

No. 17-CV-9637 (NSR), 2019 WL 297519 (S.D.N.Y. Jan. 23, 2019); Feliciano v. City of New York,

No. 14 Civ. 6751 (PAE), 2015 WL 4393163, at *14 (S.D.N.Y. July 15, 2015) (“As noted, Feliciano

also brings claims under both §§ 1981 and 1983. Claims of discrimination, retaliation, and hostile

work environment under these statutes match those under Title VII.”). Here, Plaintiff alleges the

three individual Defendants discriminated and retaliated against her because of her religion.

However, for the same reasons that her Title VII claim fails against DOCCS, Plaintiff has also

failed to sufficiently plead Section 1983 claims against the individual Defendants. Specifically,

Plaintiff fails to adequately allege that any purported adverse employment action was on the basis

of her religion.7

Accordingly, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s Section 1983

discrimination and retaliation claims and dismisses the claims with prejudice.

III. ADA

Plaintiff next alleges DOCCS and the individual Defendants discriminated against her as

an employee with a disability by forcing her to leave work and refusing medical notes approving

her return. Plaintiff further alleges in her Second Amended Complaint that Defendant Curra’s

denial of Plaintiff’s unemployment benefits as well as her numerous incorrect AWOL markings

on Plaintiffs’ attendance record show discrimination in violation of Title I of the ADA. (Second

Am. Compl. ¶¶ 140–53.)

7 Defendants also argue that each of the individual Defendants have qualified immunity. (Defs.’ Br. at 19.)

Because the Court dismisses Plaintiff’s Section 1983 claim on the grounds discussed, the Court will not reach the

parties’ qualified immunity arguments.

Title I of the ADA forbids employment discrimination against persons with disabilities.

See Tennessee v. Lane, 541 U.S. 509, 516 (2004). In order to establish a prima facie case under

Title I of the ADA, a claimant must sufficiently allege: “(1) that his [or her] employer is subject to

the ADA; (2) that he [or she] was disabled within the meaning of the ADA; (3) that he [or she]

was otherwise qualified to perform the essential functions of his job, with or without reasonable

accommodation; and (4) that he [or she] suffered an adverse employment action due to his

disability.” Klaes v. Jamestown Bd. of Public Utilities, No. 11-CV-606, 2013 WL 1337188, at *7

(W.D.N.Y. Mar. 29, 2013) (citing Cameron v. Communit. Aid for Retarded Children, Inc., 335

F.3d 60, 63 (2d. Cir. 2003)). When analyzing a motion to dismiss, the Court will consider the

elements of the prima facie case “in determining whether there is sufficient factual matter in the

complaint” which “gives defendant a fair notice of plaintiff’s claim, and the grounds on which it

rests.” Id. (citing Murphy v. Suffolk County Community College, No. 10-CV-0251 (LDW)(AKT),

2011 WL 5976082, at *5 (E.D.N.Y. Nov. 29, 2011)).

As an initial matter, Plaintiff concedes that her ADA claim is not brought against the State

of New York. (Pl.’s Opp. at 21.) Plaintiff instead seeks to recover $2 million in damages from

DOCCS as well as from the individual Defendants. (Second Am. Compl ¶¶ 141, 153.) However,

the Eleventh Amendment bars Plaintiff from seeking relief from DOCCS, a New York state

agency, under Title I of the ADA. See Quadir v. New York State Dep't of Lab., 39 F. Supp. 3d

528, 537 (S.D.N.Y. 2014) (“Because Congress has never abrogated New York's sovereign

immunity from claims under Title[] I . . . of the ADA and New York has never waived it, all of

[plaintiff’s] ADA claims are barred by the Eleventh Amendment.”); Melrose v. New York State

Dep't of Health Off. of Pro. Med. Conduct, No. 05 CIV. 8778SCRLMS, 2009 WL 211029, at *5

(S.D.N.Y. Jan. 26, 2009) (“Eleventh Amendment immunity applies [to Title I of the ADA]

regardless of the nature of the relief sought, absent abrogation or waiver . . .”). Plaintiff may also

not seek individual liability under Title I of the ADA against any of the individual Defendants.

Fox v. State Univ. of New York, 497 F. Supp. 2d 446, 449 (E.D.N.Y. 2007) (citing Garcia v.

S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir.2001). Plaintiff therefore can

only seek injunctive relief under Title I of the ADA against the individual Defendants in their

official capacities, which Plaintiff does not appear to request in her Second Amended Complaint.

Palmer v. New York State Off. of Ct. Admin., 526 F. App’x 97, 99 (2d Cir. 2013) (stating that

plaintiff was required to name a state official acting in his official capacity as a defendant in order

to avail herself of the exception to Eleventh Amendment immunity). Therefore, Plaintiff’s ADA

claim fails.

Putting aside the Eleventh Amendment bar to the remedy that Plaintiff seeks, Plaintiff’s

ADA claim also fails on the pleadings.

Defendants concede that Plaintiff has alleged a “disability” for purposes of this motion.8

See Defs.’ Br. at 21; Defendants’ Reply Memorandum (ECF No. 49) at 8. Here Plaintiff alleges

two disabilities—her actual diabetes and the perceived mental illness with which Defendant Curra

diagnosed her. (Second Am. Compl. ¶ 143; Pl.’s Opp. at 22.). The parties mainly disagree whether

Plaintiff sufficiently alleged that she suffered adverse action or retaliation because of her disability.

Plaintiff argues that Defendant Curra’s “months-long reign of terror over Plaintiff’s finances and

ability to return to work,” which was purportedly at the direction of Defendants Murphy and Artuz,

“was only possible because of Plaintiff’s perceived mental health status.” (Pl.’s Opp. at 23.)

Plaintiff also points to the “close temporal proximity” between when Plaintiff was perceived to

8 Per the ADA, the term “disability” is defined as: “(A) a physical or mental impairment that substantially

limits one or more major life activities of [the] individual; (B) a record of such impairment; or (C) being regarded as

having such an impairment[.]” 42 U.S.C. § 12102(1).

have a mental illness and when Defendant Curra refused Plaintiff’s permission to return to work,

denied her employment benefits, and marked her as AWOL. (Id.)

Plaintiff’s amended pleadings still fail to adequately allege that Plaintiff suffered adverse

action or retaliation because of her real or perceived disability. See Natofsky v. City of New York,

921 F.3d 337, 348 (2d Cir. 2019) (“[t]he ADA requires a plaintiff alleging a claim of employment

discrimination to prove that discrimination was the but-for cause of any adverse employment

action.”). Plaintiff’s allegations neither show an inference of discrimination through overt

discriminatory conduct nor any disparate treatment. See Murtha v. New York State Gaming

Comm'n, No. 17 CIV. 10040 (NSR), 2019 WL 4450687, at *11 (S.D.N.Y. Sept. 17, 2019)

(“plaintiff alleging disability discrimination under the ADA pursuant to a theory that his employer

took adverse employment action against him due to his disability may demonstrate circumstances

giving rise to an inference of discrimination through evidence of overt discriminatory conduct or

disparate treatment.”). Rather, Plaintiff’s argument that Defendant Curra discriminated against

her by rejecting her medical notes approving her return to work is bellied by Plaintiff’s allegations

that the rejections were based on mistakes Plaintiff made to the required documents, and no further

facts are alleged that Defendant Curra rejected the documents on the basis of Plaintiff’s disability.

Id. ¶¶ 66–67. Nor does Plaintiff offer any factual allegations, beyond conclusory statements,

indicating that Defendant Curra’s denying of Plaintiff’s unemployment benefit or AWOL

markings were on the basis of her disability. (Id. ¶¶ 78–79, 96.). See Sethi v. Narod, 12 F. Supp.

3d 505, 536 (E.D.N.Y. 2014) (“a mere subjective belief that he was discriminated against ... does

not sustain a ... discrimination claim”) (internal quotations and citations omitted). While

Defendant Curra’s determination that Plaintiff had a mental illness, which was contrary to a

doctor’s notes, caused Plaintiff to pay back $1,000 in Workman’s Compensation, Plaintiff does

not allege sufficient facts indicating that Defendant made such determination with discriminatory

intent. See, e.g., Brown v. New York City Dep't of Educ., 513 F. App'x 89, 91 (2d Cir. 2013) (no

indication that incorrect employment categorization “was a pretext for discrimination rather than

simply a good faith mistake”).

In addition, with respect to Plaintiff’s retaliation claim under the ADA, this claim fails for

the same reasons that Plaintiff’s Title VII retaliation claim fails. See supra, Section I.B. Title I of

the ADA prohibits retaliation against any individual who has “opposed any act or practice made

unlawful by this chapter or because such individual made a charge, testified, assisted, or

participated in any manner in any investigation, proceeding or hearing under the ADA.” 42 U.S.C.

§12203(a). “The Second Circuit has concluded that it is appropriate to apply the framework used

in analyzing retaliation claims under Title VII when analyzing a claim of retaliation under the

ADA.” Klaes, 2013 WL 1337188, at *9. Because Plaintiff fails to allege retaliation under Title

VII, Plaintiff’s retaliation under the ADA also fails.

Accordingly, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s ADA claim,

and dismisses the claim with prejudice.

IV. N.Y. Executive Law § 296

Plaintiff also raises religious and disability-based discrimination and retaliation claims

under New York State Human Rights Law Executive Law § 296 against DOCCS.9 (Second Am.

Compl. ¶¶ 154–65.) However, the Eleventh Amendment bars Plaintiff from raising this claim, as

“New York has not waived its Eleventh Amendment immunity” under the New York State Human

Rights statute. See Schiavone v. New York State Off. of Rent Admin., No. 18-CV-130 (NSR), 2018

9 In her Opposition, Plaintiff concedes that her state law claim is only against DOCCS and consents to

dismissal of this claim against the individual Defendants. (Pl.’s Opp. at 25.)

WL 5777029, at *4 (S.D.N.Y. Nov. 2, 2018) (dismissing Plaintiff’s New York State Human Rights

Law Executive Law claim against New York state agency as barred by the Eleventh Amendment).

In any event, the pleading standards for discrimination and retaliation claims raised under

New York State Law mirror the pleading requirements under Title VII and the ADA, and therefore

the viability of Plaintiff’s state law claims is the same as that for her federal claims. Song v. Ives

Laboratories, Inc., 957 F.2d 1041, 1048 (2d Cir. 1992); Trane v. Northrop Grumman Corp., 94 F.

Supp. 3d 367, 376 (E.D.N.Y. 2015). Given the Court’s dismissal of Plaintiff’s Title VII, Section

1983, and ADA claims, the same result is appropriate for Plaintiff’s state law claim.

Accordingly, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s state law

claim, and dismisses the claim with prejudice.

V. Injunctive Relief

In addition to monetary damages, Plaintiff also seeks injunctive relief requiring Defendants

(1) “to correct all present and past violations of federal and state law,” (2) “to require Defendants

to appoint a disinterested Lieutenant to oversee Plaintiff’s time and attendance,” and (3) “to require

Defendants to respond in good faith to Plaintiff’s grievances of workplace harassment by her

coworkers.” (Second Am. Compl. at 33.)

Defendants make several arguments articulating why Plaintiff’s request for injunctive

relief fails, none of which Plaintiff addresses. (Defs.’ Br.” at 24–25.) It is well-settled that the

failure to oppose an argument raised in a motion to dismiss is deemed a concession of the argument

and abandonment of the claims. Wilkov v. Ameriprise Fin. Servs., Inc., 753 F. App'x 44 (2d Cir.

2018) (“We affirm the District Court's dismissal of those claims on the ground that they were

‘abandoned’ by Wilkov when she failed to oppose them in her opposition to Ameriprise's motion

to dismiss.”); Black Lives Matter v. Town of Clarkstown, 354 F. Supp. 3d 313 (S.D.N.Y. 2018)

(“The failure to oppose a motion to dismiss a claim is deemed abandonment of the claim.”);

Johnson v. City of New York, 15-CV-8195, 2017 WL 2312924, at *18 (S.D.N.Y. May 26, 2017)

(holding that the plaintiff abandoned her claim because her opposition did not address the

defendants' arguments, including their argument that they lacked personal involvement); Barmore

v. Aidala, 419 F.Supp.2d 193, 201 (N.D.N.Y. 2005) (dismissing the plaintiff's claims against the

defendants because the plaintiff did not address the defendants' personal involvement arguments

in its opposition to the defendants' motion to dismiss). Therefore, the Court deems that Plaintiff

has abandoned its request for injunctive relief.

Even if the Court considers Plaintiff’s request for injunctive relief, such request would

nonetheless be denied.

Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear

showing that the plaintiff is entitled to such relief.” Winter v. NRDC, Inc., 555 U.S. 7, 22 (2008).

For the Court to have subject matter jurisdiction, the plaintiff must allege he or she has standing

to seek injunctive relief. “In order to meet the constitutional minimum of standing to seek

injunctive relief, [plaintiff] must carry the burden of establishing that ‘he has sustained or is

immediately in danger of sustaining some direct injury as the result of the challenged official

conduct.’” Shain v. Ellison, 356 F.3d 211, 215 (2d Cir. 2004) (citing City of Los Angeles v. Lyons,

461 U.S. 95, 101–02 (1983)). In making this showing, an “abstract injury is not enough; rather,

the injury or threat of injury must be both real and immediate, not conjectural or hypothetical.” Id.

(citing O’Shea v. Littleton, 414 U.S. 488, 494 (1974)) (internal quotations omitted).

Further, “an injunction must be more specific than a simple command that the defendant

obey the law.” S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 240 (2d Cir. 2001) (internal

quotations omitted). “Obey the law” injunctions are “vague, do not require the defendants to do

anything more than that already imposed by law, subject the defendants to contempt rather than

statutorily prescribed sanctions, and are not readily capable of enforcement” and are therefore “not

favored.” Dolberry v. Jakob, 9:11-CV-1018 (DNH/DEP), 2017 WL 2126812, at *4 (N.D.N.Y.

May 16, 2017).

Like in the Amended Complaint, Plaintiff continues to make vague “obey the law” requests

in the Second Amended Complaint by asking the Court to require Defendants “to correct all

present and past violations of federal and state law.” (Second Am. Compl. at 33). Moreover,

Plaintiff’s request “to require Defendants to appoint a disinterested Lieutenant to oversee

Plaintiff’s time and attendance” does not warrant injunctive relief, given that Plaintiff herself

alleges that DOCCS reversed Defendant Curra’s AWOL determinations around January 2020

(Second Am. Compl. ¶ 98) and Plaintiff does not offer anything other than conclusory statements

regarding ongoing misconduct by Defendant Curra. Lastly, Plaintiff’s request for the Court to

require Defendants to respond in good faith to the grievances she made to the Diversity

Management Office and Human Resources office in 2017 does not confer standing for injunctive

relief, particularly as Plaintiff does not allege continual harm from her employer’s failure to

address those grievances. (Second Am. Compl. ¶¶ 91–93.)

Accordingly, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s request for

injunctive relief and dismisses the request with prejudice. (Pl.’s Opp. at 25.)

VI. Leave to Amend

Plaintiff requests permission to amend her pleadings in the event that her claims are

deemed to require more specificity.

“The Second Circuit has instructed courts not to dismiss a complaint ‘without granting

leave to amend at least once when a liberal reading of the complaint gives any indication that a

valid claim might be stated.’” Howard v. Brown, No. 15-CV-09930 (ER), 2018 WL 3611986, at

*6 (S.D.N.Y. July 26, 2018) (quoting Shabazz v. Bezio, 511 F. App’x 28, 31 (2d Cir. 2013)).

However, where “the Court has put Plaintiff on notice of the deficiencies in his original complaint

and given him an opportunity to correct these deficiencies in an Amended Complaint, but Plaintiff

has failed to do so, dismissal with prejudice is appropriate.” Coon v. Benson, No. 09-CV-00230

(SCR) (LMS), 2010 WL 769226, at *4 (S.D.N.Y. Mar. 8, 2010). Here, the Court previously

detailed the deficiencies in Plaintiff's Amended Complaint and provided Plaintiff leave to amend.

However, Plaintiff's Second Amended Complaint fails to address the same deficiencies.

Therefore, Plaintiff's claims must be dismissed with prejudice without leave to replead.

CONCLUSION

For the foregoing reasons, the Court GRANTS Defendants’ motions to dismiss (ECF No

46) and DISMISSES Plaintiff's Second Amended Complaint in its entirety without leave to

replead. The Clerk of Court is respectfully directed to terminate the motion at ECF No. 46, to

enter judgment accordingly, and to close the case.

Dated: August 19, 2022 SO ORDERED:

White Plains, New York

NELSON S. ROMAN

United States District Judge

27