The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
NICOLE L. WILLIAMS,
Plaintiff,
1:23-CV-2348 (LTS)
-against-
THE SOCIAL SECURITY ADMINISTRATION; ORDER OF DISMISSAL
LESLIE BETTS; CAREN UNGER,
Defendants.
LAURA TAYLOR SWAIN, Chief United States District Judge:
In her last amended complaint, Plaintiff, who appears pro se, asserted claims of
employment discrimination, as well as claims of retaliation, under Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. § 1981, the Age Discrimination in Employment Act of 1967
(“ADEA”), the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990
(“ADA”), and the New York State and City Human Rights Laws (“NYSHRL” & “NYCHRL”).
(ECF 5.) Plaintiff named as defendants: (1) her former employer, the Social Security
Administration (“SSA”); (2) her former SSA supervisor, Leslie Betts; and (3) an SSA Operations
Support Branch Chief, Caren Unger. By order dated May 30, 2023, the Court dismissed some of
her claims, and granted her 60 days’ leave to file a second amended complaint.1 (ECF 6.)
In that order, the Court dismissed Plaintiff’s claims under Section 1981, the ADA, as well
as the NYSHRL and the NYCHRL, for failure to state a claim on which relief may be granted,
because Title VII and the Rehabilitation Act are the exclusive remedies for Plaintiff’s claims of
race and disability employment discrimination, as well as for her associated claims of retaliation,
1 On April 10, 2023, the Court granted Plaintiff in forma pauperis (“IFP”) status. (ECF
4.)
arising from her federal employment with the SSA. (Id. at 9-10.) The Court also dismissed
Plaintiff’s claims under Title VII, the Rehabilitation Act, and the ADEA against Defendants
Betts and Unger, for failure to state a claim on which relief may be granted, because those
statutes do not provide for claims against individual employees. (Id. at 10.) The Court further
dismissed Plaintiff’s claims under those statutes against the SSA, under the doctrine of sovereign
immunity, and consequently, for lack of subject matter jurisdiction, but granted Plaintiff leave to
file a second amended complaint to assert such claims against the proper defendant, the Acting
Commissioner of the SSA, Kilolo Kijakazi. (Id. at 10-11.)
In addition, the Court granted Plaintiff leave to file a second amended complaint to allege
facts sufficient to state a claim of discrimination and retaliation under Title VII, the
Rehabilitation Act, or the ADEA, as Plaintiff had not alleged facts sufficient to state such claims
under any of those statutes. (Id. at 11-15.)
The Court warned Plaintiff that if she did not comply within the time allowed, and could
not show good cause to excuse such failure, the Court would dismiss this action by issuing an
order and judgment dismissing Plaintiff’s claims against the SSA under the doctrine of sovereign
immunity and, consequently, for lack of subject matter jurisdiction, as well as for seeking
monetary relief from a defendant that is immune from such relief, and also dismissing the
remainder of Plaintiff’s claims for failure to state a claim on which relief may be granted. (Id. at
17.)
On July 18, 2023, Plaintiff filed this second amended complaint in which she again
names the SSA, Betts, and Unger as defendants. (ECF 8.) She asserts claims of employment
discrimination and retaliation arising from her federal SSA employment and seeks reinstatement
and damages. She again asserts claims under Title VII, Section 1981, the ADEA, the
Rehabilitation Act, the ADA, and the NYSHRL and NYCHRL. She also asserts, for the first
time, claims under the Family and Medical Leave Act of 1993 (“FMLA”), the Fair Labor
Standards Act of 1938 (“FLSA”), and the Uniformed Services Employment and Reemployment
Rights Act of 1994 (“USERRA”). Because Plaintiff’s factual allegations in her second amended
complaint are the same as those that she made in her amended complaint, and because the Court
recounted them in its May 30, 2023 order, there is no need to recount them again here; they all
arise from Plaintiff’s federal employment with the SSA.
For the reasons set forth below, the Court dismisses all of Plaintiff’s claims, but grants
Plaintiff 60 days’ leave to replead her claims under the FMLA in a third amended complaint.
DISCUSSION
A. Previously raised claims
Plaintiff again asserts claims, in her second amended complaint, that the Court discussed
and dismissed in its May 30, 2023 order. The Court will address those claims in a brief manner
before proceeding to Plaintiff’s newly raised claims.
Claims under 42 U.S.C. § 1981, ADA, and the NYSHRL and NYCHRL
In its May 30, 2023 order, the Court dismissed Plaintiff’s claims under Section 1981, the
ADA, and the NYSHRL and NYCHRL for failure to state a claim on which relief may be
granted. (ECF 6, at 9-10.) Plaintiff again, however, asserts claims of race and disability
employment discrimination and associated retaliation under Section 1981, the ADA, as well as
under the NYSHRL and NYCHRL, arising from her federal employment with the SSA.
Accordingly, because Plaintiff cannot seek relief under those statutes arising from her federal
employment, for the reasons previously articulated in the Court’s May 30, 2023 order (id.), the
Court dismisses those claims, again, for failure to state a claim on which relief may be granted,
see 28 U.S.C. § 1915(e)(2)(B)(ii).
Claims under Title VII, the Rehabilitation Act, and the ADEA
a. Proper defendant
The Court, in its previous order, dismissed Plaintiff’s claims under Title VII, the
Rehabilitation Act, and the ADEA against Defendants Betts and Unger, for failure to state a
claim on which relief may be granted, because it held that those statutes do not provide for
claims against individual employees. (ECF 6, at 10.) Here, Plaintiff again asserts claims under
those statutes against Defendants Betts and Unger. For the reasons discussed in the Court’s
previous order, the Court again dismisses those claims for failure to state a claim on which relief
may be granted. See § 1915(e)(2)(B)(ii).
The Court also previously dismissed Plaintiff’s claims under those statutes against the
SSA, a federal agency, under the doctrine of sovereign immunity, and consequently, for lack of
subject matter jurisdiction, and informed Plaintiff that the proper defendant for such claims – the
only defendant for which sovereign immunity has been waived for such claims – is the head of
the relevant agency and not the agency itself. (ECF 6, at 10-11.) In her second amended
complaint, however, Plaintiff again asserts claims under those statutes against the SSA, naming
the SSA as a defendant, and not Acting Commissioner Kijakazi, the head of the SSA. The Court
therefore again dismisses, for the reasons previously discussed, Plaintiff’s claims under Title VII,
the Rehabilitation Act, and the ADEA against the SSA under the doctrine of sovereign
immunity, see 28 U.S.C. § 1915(e)(2)(B)(iii), and consequently, for lack of subject matter
jurisdiction, see Fed. R. Civ. P. 12(h)(3).
b. Plaintiff’s allegations
Even if Plaintiff had named the proper defendant for those claims, Acting SSA
Commissioner Kijakazi, she has still failed to allege facts sufficient to state a claim of
discrimination or retaliation under any of those statutes.
i. Claims of employment discrimination
As previously discussed in its May 30, 2023 order, to state a claim of discrimination
under Title VII, “a plaintiff must plausibly allege that (1) the employer took adverse employment
action against [her], and (2) [her] race, color, religion, sex, or national origin was a motivating
factor in the employment decision.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86
(2d Cir. 2015). Plaintiff alleges no facts showing that her race, color, religion, sex, or national
origin was a motivating factor in any adverse employment action taken against her, including the
termination of her SSA employment. Thus, Plaintiff has failed to state a claim of employment
discrimination under Title VII.
The Court has understood that Plaintiff is asserting claims of disability employment
discrimination, under the Rehabilitation Act, arising from the SSA’s failure to provide her with a
disability accommodation. (ECF 6, at 12.) As discussed the previous order, to state such a claim,
a plaintiff must allege facts showing that:
(1) [the plaintiff] is a person with a disability under the meaning of [the
Rehabilitation Act]; (2) an employer covered by the statute had notice of [the
plaintiff’s] disability; (3) with reasonable accommodation, [the] plaintiff could
perform the essential functions of the job at issue; and (4) the employer has
refused to make such accommodations.
Natofsky v. City of New York, 921 F.3d 337, 352 (2d Cir. 2019) (internal quotation marks and
citation omitted, first alteration in original).
The Court assumes, for the purpose of this order, that Plaintiff’s disability that is listed in
her second amended complaint (“heart failure”) (ECF 8, at 4) qualifies Plaintiff as a person with
a disability within the meaning of the Rehabilitation Act. With respect to any reasonable
disability accommodation that she alleges that she requested from her employer, however,
Plaintiff has alleged no facts sufficient to show that she could have only performed the essential
functions of her job if her employer had provided her the requested accommodation. Plaintiff’s
attachments to her second amended complaint show that she requested a reduction in work hours
from full-time status to part-time status, and an associated reduction in pay, not as a means to
perform the essential functions of her job, but rather, as a way for her to continue to receive
Social Security Disability Insurance benefits and Medicare benefits, and to not lose those
benefits as a result of her income exceeding the Significant Gainful Activity (SGA) limit. (See
ECF 8, at 91, 96-99, 108-109, 115-16.) As discussed in the Court’s May 30, 2023 order, such a
request does not qualify as a request for a reasonable disability accommodation under the
Rehabilitation Act. (ECF 6, at 13 n.8.) Thus, Plaintiff’s employer’s denial of such a request does
not violate the Rehabilitation Act. Plaintiff has therefore failed to state a claim of disability
employment discrimination under the Rehabilitation Act.
As to Plaintiff’s claims of employment discrimination under the ADEA, as the Court
previously stated, a plaintiff must allege facts indicating that her age was the but-for cause of the
employer’s adverse employment action. See Vega, 801 F.3d at 86 (quoting Gross v. FBL Fins.
Servs., Inc., 557 U.S. 167, 177 (2009)). Plaintiff alleges no facts showing that but for her age, her
employer would not have discriminated against her, including terminating her employment.
Plaintiff thus fails to state a claim of age employment discrimination under the ADEA.
Accordingly, the Court dismisses, for failure to state a claim on which relief may be
granted, Plaintiff’s claims of employment discrimination under Title VII, the Rehabilitation Act,
and the ADEA. See § 1915(e)(2)(B)(ii).
ii. Claims of retaliation
Plaintiff has also failed to state a claim of retaliation under any of the cited statutes. As
the Court discussed in its May 30, 2023 order, to state a claim of retaliation under Title VII, a
plaintiff must allege facts showing that: “(1) [the] defendant[] discriminated – or took an adverse
employment action – against [her], (2) ‘because’ [s]he has opposed any unlawful employment
practice.” Vega, 801 F.3d at 90 (quoting § 2000e-3(a)). “[F]or an adverse retaliatory action to be
‘because’ a plaintiff [opposed an unlawful employment practice], the plaintiff must plausibly
allege that the retaliation was a ‘but-for’ cause of the employer’s adverse action. It is not enough
that retaliation was a ‘substantial’ or ‘motivating’ factor in the employer’s decision.” Id. at 90-91
(internal quotation marks and citations omitted). The pleading requirements are the same for a
claim of retaliation under the ADEA. See, e.g., Kopchik v. Town of E. Fishkill, N.Y., 759 F.
App’x 31, 34-35 (2d Cir. 2018) (summary order) (quoting Vega, 801 F.3d at 90-91). Plaintiff
alleges no facts showing that she suffered an adverse employment action because she opposed an
unlawful employment practice. Thus, Plaintiff fails to state a claim of retaliation under either
Title VII or the ADEA.
As also previously discussed, to state a claim of retaliation under the Rehabilitation Act, a
plaintiff must show that: “(i) [the] plaintiff was engaged in protected activity; (ii) the alleged
retaliator knew that [the] plaintiff was involved in protected activity; (iii) an adverse decision or
course of action was taken against [the] plaintiff; and (iv) a causal connection exists between the
protected activity and the adverse action.” Natofsky, 921 F.3d at 353 (internal quotation marks
and citation omitted). Plaintiff does not allege facts sufficient to show that there was a causal
connection between any protected activity that she participated in and any adverse employment
action she suffered, including the termination of her employment.
Accordingly, the Court dismisses, for failure to state a claim on which relief may be
granted, Plaintiff’s claims of retaliation under Title VII, the Rehabilitation Act, and the ADEA.
See § 1915(e)(2)(B)(ii).
B. Newly raised claims
Plaintiff asserts, in her second amended complaint, for the first time, claims under
USERRA, the FLSA, and the FMLA. Accordingly, the Court will discuss the merits of her
claims herein.
Claims under USERRA
a. Claims of employment discrimination
“The purpose of USERRA is to encourage military service ‘by eliminating or minimizing
the disadvantages to civilian careers’; ‘to minimize the disruption to the lives’ of
servicemembers and their employers ‘by providing for the prompt reemployment’ of
servicemembers; and ‘to prohibit discrimination’ against servicemembers.” Serricchio v.
Wachovia Sec. LLC, 658 F.3d 169, 174 (2d Cir. 2011) (quoting 38 U.S.C. § 4301(a)). “To state a
claim [of employment discrimination] under the USERRA, a plaintiff must plead ‘facts upon
which it could plausibly be inferred that [her] military service . . . was a “substantial or
motivating factor”’ in the adverse employment action taken against [her].” Davis v. N.Y.C. Dep’t
of Corr., No. 17-CV-3863, 2017 WL 5634123, at *7 (E.D.N.Y. Nov. 22, 2017) (quoting Hunt v.
Klein, 476 F. App’x 889, 891 (2d Cir. 2012) (summary order)); see also Asatov v. Michal’s
Quality Transp. No. 3:21-CV-0822, 2021 WL 3742908, at *3 (D. Conn. July 21, 2021) (“In
order to state a claim under USERRA, plaintiff must allege that (1) [s]he has performed service
in the uniformed services; (2) [s]he was denied ‘any benefit of employment by an employer’; and
(3) [her] service in the uniformed services was ‘a motivating factor’ in that denial.” (quoting 38
U.S.C. § 4311(a), (c)(1))); report & recommendation adopted, 2021 WL 3742128 (D. Conn.
Aug. 24, 2021).
Because Plaintiff alleges no facts showing that she has performed any military service, or
that such service was a motivating factor with respect to any adverse action that she suffered in
her SSA employment, including her termination, Plaintiff has failed to state a claim of
employment discrimination under USERRA. Plaintiff alleges nothing to suggest that she has
ever performed any military service or that she was discriminated against because of such
service. The Court therefore dismisses Plaintiff’s claims of employment discrimination under
USERRA for failure to state a claim on which relief may be granted. See § 1915(e)(2)(B)(ii)
b. Claims of retaliation
To state a claim of retaliation under USERRA, a plaintiff must allege facts showing:
“(1) [s]he was engaged in protected activity [with respect to an alleged violation of USERRA];
(2) that the employer was aware of that activity; (3) that the plaintiff suffered an adverse
employment action; and (4) that there was a causal connection between the protected activity and
the adverse action.” O’Connell v. Town of Bedford, No. 21-CV-0170, 2022 WL 4134466, at *6
(S.D.N.Y. Sept. 12, 2022) (internal quotation marks and citation omitted); see 38 U.S.C.
§ 4311(b). Such a causal connection can be established “(a) indirectly by showing that the
protected activity was followed closely by discriminatory treatment; (b) indirectly though other
evidence such as disparate treatment of fellow employees who engaged in similar conduct; or
(c) directly through evidence of retaliatory animus.” O’Connell, 2022 WL 4134466, at *6
(internal quotation marks and citation omitted).
Plaintiff alleges no facts showing that she was retaliated against because she participated
in protected activity with respect to an alleged violation of USERRA. The Court therefore
dismisses Plaintiff’s claims of retaliation under USERRA for failure to state a claim on which
relief may be granted. See § 1915(e)(2)(ii).
Claims under the FLSA
The FLSA is a federal statute passed to eliminate “labor conditions detrimental to the
maintenance of the minimum standard of living necessary for health, efficiency, and general
well-being of workers. . . .” 29 U.S.C. § 202(a). It does so, in part, by setting substantive wage,
hour, and overtime standards. Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1,
11 (2011). Among other mandates, the FLSA requires employers to pay each of their non-
exempt employees “not less than” the prevailing minimum wage. 29 U.S.C. § 206(a)(1); see 29
U.S.C. § 213 (exempt employees); see also 29 U.S.C. § 203(e)(2)(A) (extending FLSA
protections to federal employees). It also requires that certain “employee[s] . . . be compensated
at a rate of no less than one and one-half times the regular rate of pay for any hours worked in
excess of forty per week. . . .” Nakahata v. New York-Presbyterian Healthcare Sys., Inc., 723
F.3d 192, 200 (2d Cir. 2013) (footnote omitted) (citing 29 U.S.C. § 207(a)); see §§ 207(a)
(overtime pay requirement), 216(b) (right of action).
a. Overtime pay and minimum wage claims
To state a claim concerning an employer’s failure to pay a worker overtime pay under the
FLSA, a plaintiff “must allege sufficient factual matter to state a plausible claim that [she]
worked compensable overtime in a workweek longer than 40 hours.” Lundy v. Catholic Health
Sys. of Long Island Inc., 711 F.3d 106, 114 (2d Cir. 2013). In addition, “an employee fails to
state a claim for a minimum wage violation ‘unless [her] average hourly wage falls below the
federal minimum wage.’” McNamara v. Associated Press, 40 F. Supp. 3d 345, 353 (S.D.N.Y.
2014) (quoting Lundy, 711 F.3d at 115). Plaintiff alleges no facts showing that she was denied
overtime pay for working more than 40 hours per week – in fact, Plaintiff asserts that she asked
for permission to change from a full-time work schedule to a part-time work schedule – or that
her average hourly wages fell below the federal minimum wage rate. Thus, Plaintiff fails to state
an overtime pay or minimum wage claim under the FLSA, and the Court dismisses those claims
for failure to state a claim on which relief may be granted. See § 1915(e)(2)(B)(ii).
b. Claims of retaliation
The FLSA has an antiretaliation provision that “makes it ‘unlawful for any person . . . to
discharge or in any other manner discriminate against any employee because such employee has
filed any complaint or instituted or caused to be instituted any proceeding under [the FLSA].’”
Marcotte v. City of Rochester, 677 F. App’x 723, 725-26 (2d Cir. 2017) (summary order)
(quoting 29 U.S.C. § 215(a)(3) (alteration in original)). To state a claim of retaliation under the
FLSA, a plaintiff must allege facts showing: “(1) participation in protected activity known to the
defendant, like the filing of a FLSA lawsuit; (2) an employment action disadvantaging the
plaintiff; and (3) a causal connection between the protected activity and the adverse employment
action.” Mullins v. City of New York, 626 F.3d 47, 53 (2d Cir. 2010).
Plaintiff alleges nothing to suggest that she was participating in FLSA-protected activity
for which there was a causal connection between such activity and any adverse employment
action that she was subjected to, including the termination of her employment. Plaintiff therefore
fails to state claim of retaliation under the FLSA. Accordingly, the Court dismisses Plaintiff’s
claims of retaliation under the FLSA for failure to state a claim on which relief may be granted.
See § 1915(e)(2)(B)(ii).
Claims under the FMLA
The FMLA provides that eligible employees are “entitled to a total of 12 work weeks of
leave during any 12-month period” for any one of several reasons enumerated in that statute. 29
U.S.C. § 2612(a)(1). The FMLA covers, among other things, leave that is necessary “[b]ecause
of a serious health condition that makes the employee unable to perform the functions of the
position of such employee.” § 2612(a)(1)(D). Generally, a plaintiff may assert two varieties of
FMLA claims, interference claims and retaliation claims:
In a general sense, an employee brings an “interference” claim when her
employer has prevented or otherwise impeded the employee’s ability to exercise
rights under the FMLA. “Retaliation” claims, on the other hand, involve an
employee actually exercising her rights or opposing perceived unlawful conduct
under the FMLA and then being subjected to some adverse employment action by
the employer. The two types of claims serve as ex ante and ex post protections for
employees who seek to avail themselves of rights granted by the FMLA.
Woods v. START Treatment & Recovery Ctrs., Inc., 864 F.3d 158, 166 (2d Cir. 2017) (citations
omitted). “An individual may be held liable under the FMLA only if she is an ‘employer,’ which
is defined as encompassing ‘any person who acts, directly or indirectly, in the interest of an
employer to any of the employees of such employer.’” Graziadio v. Culinary Inst. of Am., 817
F.3d 415, 422 (2d Cir. 2016) (quoting 29 U.S.C. § 2611(4)(A)(ii)(I) and citing 29 C.F.R.
§ 825.104(d)).2
a. Claims of interference
Plaintiff has not alleged facts sufficient to state a claim of interference under the FMLA.
To state such a claim, a plaintiff must allege facts showing:
1) that she is an eligible employee under the FMLA; 2) that the defendant is an
employer as defined by the FMLA; 3) that she was entitled to take leave under the
2 Some courts within this Circuit have held that the FMLA does not afford federal
employees, as opposed to other employees, a private right of action for violations of that statute.
See, e.g., Lee v. Saul, Nos. 19-CV-6553, 20-CV-2956, 2022 WL 1051216, at *12 (S.D.N.Y. Feb.
10, 2022), report & recommendation adopted, (ECF 19-CV-6553, 51; ECF 20-CV-2956, 45)
(S.D.N.Y. Mar. 23, 2023), appeal dismissed, Nos. 22-1154, 22-1246 (2d Cir. Jan. 11, 2023);
Beauchat v. Mineta, No. 03-CV-3196, 2006 WL 2711608, at *9 (E.D.N.Y. Sept. 21, 2006), aff’d,
257 F. App’x 463 (2d Cir. Dec. 19, 2007) (summary order). But see Walsh v. Dejoy, No. 14-CV-
7239, 2021 WL 4896979, at *16 (S.D.N.Y. July 28, 2021) (“[N]either the Supreme Court nor the
Second Circuit Court of Appeals has decided whether a federal employee has a private right of
action under FMLA against a federal employer . . . .”), report & recommendation adopted, 2021
WL 4355366 (S.D.N.Y. Sept. 24, 2021).
Because neither the United States Court of Appeals for the Second Circuit nor the
Supreme Court of the United States has determined whether a federal employee has a private
right of action under the FMLA, it is unclear whether the doctrine of sovereign immunity
precludes Plaintiff from asserting such claims in this action. For the purpose of this order,
therefore, the Court will assume that Plaintiff can assert such claims arising from her federal
employment.
FMLA; 4) that she gave notice to the defendant of her intention to take leave; and
5) that she was denied benefits to which she was entitled under the FMLA.
Graziadio, 817 F.3d at 424.
Assuming that Plaintiff is an eligible employee and that the federal government, which
includes the SSA, is an employer covered by the FMLA, it is unclear from Plaintiff’s second
amended complaint whether Plaintiff was actually entitled, under that statute, to take the leave
that is at issue, as it does not appear that such leave was taken with regard to her serious health
condition, or that she was actually denied any benefits under the FMLA, including that leave. In
fact, it appears that Plaintiff was granted leave with regard to her health condition and with
regard to the death of her mother, but was terminated due to being discourteous to a security
guard and for being absent without leave to attend to personal business on August 19, 2022, for
reporting to work late on August 26, 2022, and for failing to start work on time on October 12,
2022.3 (ECF 8, at 30; ECF 1:23-CV-2348, 6, at 6-8.) Thus, even if it is determined that a private
right of action under the FMLA is afforded to Plaintiff in connection with her SSA employment,
she has not alleged facts sufficient to state a claim of interference under the FMLA. The Court
grants Plaintiff leave to file a third amended complaint in which she alleges facts sufficient to
state a claim of interference under the FMLA in connection with her SSA employment.
a. Claims of retaliation
Likewise, Plaintiff has not alleged facts sufficient to state a claim of retaliation under the
FMLA. To state such a claim, a plaintiff must allege facts showing: “1) [s]he exercised rights
protected under the FMLA; 2) [s]he was qualified for h[er] position; 3) [s]he suffered an adverse
employment action; and 4) the adverse employment action occurred under circumstances giving
3 In one of those instances, Plaintiff was accused of sleeping while at her work station
and beginning work late.
rise to an inference of retaliatory intent.” Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir.
2004); see 28 U.S.C. § 2615(b).
As discussed above, it is unclear whether Plaintiff exercised rights protected under the
FMLA. In addition, Plaintiff does not allege any facts showing that any adverse employment
action that she suffered, including the termination of her SSA employment, occurred under
circumstances giving rise to an inference of retaliatory intent with regard to violations of the
FMLA. Accordingly, Plaintiff’s second amended complaint fails to state a claim of retaliation
under the FMLA. The Court, however, grants Plaintiff leave to file a third amended complaint to
allege facts sufficient to state such a claim.
C. Leave to amend
Plaintiff proceeds in this matter without the benefit of an attorney. Federal district courts
generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its
defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir.
2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the Second Circuit has
cautioned that federal district courts “should not dismiss [a pro se 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.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting
Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Because Plaintiff may be
able to allege additional facts to state a valid claim under the FMLA, the Court grants Plaintiff 60
days’ leave to file a third amended complaint to detail her claims under that statute as follows:
Plaintiff must name as the defendant(s) in the caption those who were allegedly
involved in the deprivation of her federal rights.
In the “Statement of Claim” section of the third amended complaint form, Plaintiff
must provide a short and plain statement of the relevant facts supporting each
claim under the FMLA against each defendant. Plaintiff should include all of the
information in the third amended complaint that Plaintiff wants the Court to
consider in deciding whether the third amended complaint states a claim for relief
under the FMLA. That information should include:
a. the names and titles of all relevant people;
b. a description of all relevant events, including what each defendant did
or failed to do, the approximate date and time of each event, and the
general location where each event occurred;
c. a description of the injuries Plaintiff suffered; and
d. the relief Plaintiff seeks, such as money damages, injunctive relief, or
declaratory relief.
Essentially, Plaintiff’s third amended complaint should tell the Court: who violated her
rights under the FMLA; how, when, and where such violations occurred; and why Plaintiff is
entitled to relief.
Because Plaintiff’s third amended complaint will completely replace, not supplement, her
second amended complaint, amended complaint, and original complaint, any facts or claims
that Plaintiff wants to include from those previous pleadings with respect to her claims
under the FMLA must be repeated in the third amended complaint. The Court grants
Plaintiff leave to replead only her claims under the FMLA.
CONCLUSION
The Court dismisses all of Plaintiff’s claims either under the doctrine of sovereign
immunity, see 28 U.S.C. § 1915(e)(2)(B)(iii), and consequently, for lack of subject matter
jurisdiction, see Fed. R. Civ. P. 12(h)(3), or for failure to state a claim on which relief may be
granted, see § 1915(e)(2)(B)(ii). The Court, however, grants Plaintiff 60 days’ leave to file a
third amended complaint in which to allege facts sufficient to state a claim under the FMLA, and
only under the FMLA. If Plaintiff fails to file a third amended complaint within the time allowed,
and fails to show cause why the Court should excuse such failure, the Court will enter judgment
dismissing this action for the reasons set forth above.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would
not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
Dated: October 10, 2023
New York, New York
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
Chief United States District Judge