# Sayers v. Niagara Falls City School District

> District Court, W.D. New York · March 8, 2022

URL: https://www.frixlaw.com/law-library/cases/10364693

## Case

- **Court:** District Court, W.D. New York
- **Decided:** March 8, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ADRIENNE SAYERS,

Plaintiff,

v. 20-CV-703-LJV-JJM
DECISION & ORDER
NIAGARA FALLS CITY SCHOOL
DISTRICT,

Defendant.

On June 11, 2020, the plaintiff, Adrienne Sayers, commenced this action,
alleging that the defendant, Niagara Falls City School District (the “District”),
discriminated against her on the basis of sex, age, and disability. Docket Item 1.
Sayers raises claims under Title VII of the Civil Rights Act of 1964 (“Title VII”); the Age
Discrimination in Employment Act of 1967 (“ADEA”); the Americans with Disabilities Act
of 1990 (“ADA”); and the New York State Human Rights Law (“NYSHRL”). Id. She also
seeks relief under 42 U.S.C. § 1983, alleging that the District deprived her of due
process and violated her right to freedom of association. Id. On September 11, 2020,
the District moved to dismiss the complaint under Federal Rule of Civil Procedure
12(b)(6), Docket Item 11; on December 14, 2020, Sayers responded, Docket Item 19;
and on January 4, 2021, the District replied, Docket Item 22.
A week later, the case was referred to United States Magistrate Judge Jeremiah
J. McCarthy for all proceedings under 28 U.S.C. § 636(b)(1)(A) and (B). Docket
Item 23. On August 30, 2021, Judge McCarthy issued a Report and Recommendation
(“R&R”) finding that the District’s motion should be granted but that Sayers should be
given leave to replead. Docket Item 24. On September 13, 2021, Sayers objected to
the R&R on the grounds that Judge McCarthy improperly held her to a heightened
pleading standard and that, in any event, she met that heightened standard. Docket
Item 25. On September 29, 2021, the District responded to the objection. Docket

Item 27. And on October 18, 2021, Sayers replied. Docket Item 28.
A district court may accept, reject, or modify the findings or recommendations of
a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). The court must
review de novo those portions of a magistrate judge’s recommendation to which a party
objects. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
This Court has carefully and thoroughly reviewed the R&R; the record in this
case; the objection, response, and reply; and the materials submitted to Judge
McCarthy. Based on that de novo review, the Court accepts Judge McCarthy’s
recommendation to grant the District’s motion but to give Sayers leave to replead.

FACTUAL BACKGROUND1
Sayers was a tenured teacher employed by the District for more than twenty

years. Docket Item 1 at ¶¶ 9-10. She is a female older than forty, and she has
post-traumatic stress disorder (“PTSD”). Id. at ¶¶ 11-13.
The District terminated Sayers’s employment because of her gender, age, and
disability. See id. at ¶¶ 25-48. But the District also had a residency policy2 for its

1 On a motion to dismiss, the Court “accept[s] all factual allegations as true and
draw[s] all reasonable inferences in favor of the plaintiff.” Trs. of Upstate N.Y. Eng’rs
Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016).
2 On a motion to dismiss, the Court also may consider any “documents [] in [the]
plaintiff[’s] possession or of which [the] plaintiff[] had knowledge and relied on in
employees, and the District claims that it terminated Sayers for not complying with that
policy. See id. at ¶ 20; see also Docket Item 11-3. The residency policy requires
employees to “become [] resident[s] of the City of Niagara Falls” and to “maintain
residency” throughout employment. Docket Item 11-3 at 3. Under the policy, residency

means “an individual’s actual principal domicile at which he or she maintains usual
personal and household effects.” Id.
The District “threatened to terminate [] Sayers if she resided outside the
[D]istrict.” Docket Item 1 at ¶ 18. Sayers “maintained a residence within the City of
Niagara Falls,” id. at ¶ 14, but the District nevertheless “hired private investigators to
follow [her],” id. at ¶ 15. Dissatisfied with Sayers’s compliance with the residency policy,
see id. at ¶¶ 18-20, the District terminated Sayers “without a hearing,” id. at ¶ 22.3

bringing suit.” Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993) (citing
Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991)). Sayers is
challenging the residency policy, see, e.g., Docket Item at ¶¶ 20-21, and does not
dispute the contents of the District’s residency policy in her papers opposing the motion
to dismiss. This policy also was discussed by the New York Court of Appeals in
Beck-Nichols v. Bianco, 20 N.Y.3d 540, 557-58, 987 N.E.2d 233, 241 (2013), and Judge
McCarthy found that the Court could take judicial notice of the policy and consider it on
the motion to dismiss. Docket Item 24 at 3-4; see Bellin v. Zucker, 6 F.4th 463, 471
n.10 (2d Cir. 2021) (“The court may judicially notice a fact that is not subject to
reasonable dispute because it can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned,” and is “entitled to consider matters
of which judicial notice may be taken under Federal Rule of Evidence 201 in deciding a
Rule 12(b)(6) motion to dismiss.” (alterations and internal quotations marks omitted)).
Sayers did not object to that, and so this Court considers the policy as well.
3 Sayers does not explicitly allege that the District terminated her due to
non-compliance with the policy, but reading the sparse allegations in the complaint
liberally, that appears to be what she is saying. If that is incorrect, Sayers may so
indicate in any amended complaint.
PROCEDURAL HISTORY

On September 11, 2020, the District moved to dismiss the complaint, arguing
that Sayers failed “to meet even a de minimus [sic] pleading standard” and pleaded only
“threadbare recitations of the law, and vague, conclusory, and irrelevant assertions.”
Docket Item 11-26 at 7 (emphasis in original). More specifically, the District argued that
Sayers’s discrimination claims4 failed because she did not plead that she met the
residency policy at the time of her termination and, therefore, that she was qualified for
employment. Id. at 11-21. The District also argued that Sayers’s discrimination claims
failed because she did not plead facts giving rise to an inference of discriminatory intent.
Id. With respect to Sayers’s due process claim, the District argued that Sayers received

all the process that she was due. Id. at 21-28. And the District argued that Sayers’s
freedom of association claim failed because she did not allege that the residency policy
“directly and substantially interfered with [her] right to participate in [a] protected
relationship.” Id. at 29-30.
Sayers responded that she adequately alleged facts that support an inference of
discriminatory intent based on gender, age, and disability. Docket Item 19. She argued
that each of her claims raised a question of fact and that the District’s arguments about
non-compliance with the residency policy were premature. Id.
Judge McCarthy found that all Sayers’s claims hinged on whether the complaint

pleaded facts sufficient to show that Sayers was qualified for continued employment.

4 The District also argued that Sayers’s state law discrimination claims must be
dismissed because Sayers did not timely serve a notice of claim on the District. Id. at
10-11.
Docket Item 24 at 2. He found that if Sayers could not plausibly allege that she was
qualified, then she was not entitled to relief on her discrimination claims. Id. at 3.
Similarly, he found that if Sayers were not qualified, then she had no property interest in
her continued employment, and her due process and freedom of association claims

failed as well. Id. at 5-6.
Judge McCarthy also found that to plausibly allege that she was qualified, Sayers
needed to “allege facts supporting a reasonable inference that she satisfied the
District’s residency policy.” Id. at 3. Judge McCarthy concluded that Sayers did not
plausibly allege that she complied with the residency policy and therefore was qualified.
Id. at 3-5. Accordingly, he recommended that the Court dismiss her federal claims and
decline to exercise jurisdiction over her state law claims. Id. at 6-7. He also found that
other pleading deficiencies, in particular, the failure to allege that discrimination based
on her gender, age, or disability caused her termination, required the Court to dismiss
Sayers’s discrimination claims. Id. at 4-5.

LEGAL STANDARD

“To survive a motion to dismiss, a complaint must contain 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)). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id.
DISCUSSION

I. DISCRIMINATION CLAIMS
Sayers argues that Judge McCarthy incorrectly held her to a heightened pleading
standard and required her to plead specific facts—in particular, that she satisfied the
residency policy. Docket Item 25 at 4-6. She also asserts that she has no duty to
demonstrate a prima facie case of discrimination at the pleading stage. Id. Sayers’s
statement of the law is correct: she is not required to show a prima facie case of
discrimination as contemplated in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), at the pleading stage. But her complaint still is insufficient to state a claim for
discrimination under Title VII, the ADEA, and the ADA.

A. Title VII and ADEA Claims
Because Sayers pleads employment discrimination, her case invokes the
burden-shifting framework first articulated in McDonnell Douglas.5 Under the McDonnell
Douglas framework, a plaintiff first must establish a prima facie case of unlawful
discrimination. See Littlejohn v. City of New York, 795 F.3d 297, 307 (2d Cir. 2015). To
state such a prima facie case, the plaintiff must show “(1) that she is a member of a

protected class; (2) that she was qualified for employment in the position; (3) that she
suffered an adverse employment action; and [(4) that she has] some minimal evidence
suggesting an inference that the employer acted with discriminatory motivation.” Id. If

5 Claims brought under Title VII, the ADA, and the ADEA all are evaluated under
the McDonnell Douglas framework. See McDonnell Douglas, 411 U.S. at 802-04 (Title
VII); Delaney v. Bank of Am. Corp., 766 F.3d 163, 167-68 (2d Cir. 2014) (ADEA);
Heyman v. Queens Vill. Comm. for Mental Health for Jamaica Cmty. Adolescent
Program, Inc., 198 F.3d 68, 72 (2d Cir. 1999) (ADA).
the plaintiff meets that burden, the defendant is presumed to have unlawfully
discriminated against her; the burden then shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for the adverse employment action. Id. If the
defendant makes that showing, the burden shifts back to the plaintiff to show that the

defendant’s stated reason is pretextual. Id. at 307-08.
What that means in the pleading context has changed over the years. In
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), the Supreme Court held that the
McDonnell Douglas line of cases established “an evidentiary standard, not a pleading
requirement,” and that a plaintiff alleging discrimination need only “give the defendant
fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Id. at 510,
512. “Reading Swierkiewicz on its face, it appears to have meant that a Title VII plaintiff
is not required to plead facts supporting even a minimal inference of discriminatory
intent.” Littlejohn, 795 F.3d at 309.
“But only seven years later, the Supreme Court cast doubt on Swierkiewicz’s

vitality.” Mandala v. NTT Data, Inc., 975 F.3d 202, 208 (2d Cir. 2020). In “Iqbal, it held
that mere notice pleading—the pleading standard underlying Swierkiewicz’s analysis—
was inadequate, and that ‘[t]o survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face.’” Id. (quoting Iqbal, 556 U.S. at 678). Although the Supreme Court has not
clarified how this plausibility standard affects the McDonnell Douglas framework, the
Second Circuit has interpreted Iqbal as requiring an employment-discrimination plaintiff
to plead “enough nonconclusory factual matter to nudge her claim[s] across the line
from conceivable to plausible.” Id. (alterations omitted)
So to defeat a motion to dismiss, an employment-discrimination plaintiff alleging
gender discrimination under Title VII or age discrimination under the ADEA “need only
give plausible support to a minimal inference of discriminatory motivation” behind an
adverse employment action. Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72,

84 (2d Cir. 2015); Littlejohn, 795 F.3d at 306, 311. In a Title VII sex discrimination case,
a plaintiff must plausibly allege that her sex was a motivating factor for the adverse
action. Vega, 801 F.3d at 85. In an ADEA claim, a plaintiff must meet a slightly-
different standard: that is, she “must plausibly allege that . . . her age was the ‘but-for’
cause of the adverse action.” Marcus v. Leviton Mfg. Co., 661 F. App’x 29, 31-32 (2d
Cir. 2016) (summary order).
Therefore, even though Sayers is correct that she need not plead a prima facie
case of discrimination as contemplated by McDonnell Douglas, she still must give
“plausible support to a minimal inference of discriminatory motive.” See Vega, 801 F.3d
at 84. Such “[a]n inference of discrimination can arise from circumstances including, but

not limited to, [1] ‘the employer’s criticism of the plaintiff’s performance in . . . terms [that
are degrading to her protected class]; [2] its invidious comments about others in the
employee’s protected group; [3] the more favorable treatment of employees not in the
protected group; [4] the sequence of events leading to the plaintiff’s discharge’[; or 5]
. . . when an employer replaces a terminated or demoted employee with an individual
outside the employee’s protected class.” Littlejohn, 795 F.3d at 312-13. But Sayers
has alleged none of that—or even anything remotely suggesting discrimination—and
she therefore has failed to plausibly allege facts supporting even a minimal inference
that the District discriminated against her.
For example, Sayers does not allege that younger or male teachers were exempt
from the residency policy. She does not allege that “invidious comments” were made
about her age or gender. She does not allege that she was replaced by a younger
teacher or a male. She does not allege anything that might possibly support even a

minimal inference of discrimination on the basis of gender or age. Instead, she simply
alleges that she was a member of a protected class and that she suffered an adverse
employment action. Docket Item 1 at ¶¶ 26, 30, 34, 38. And as Judge McCarthy found,
see Docket Item 24 at 4-5, that is not enough.
In fact, the complaint suggests that Sayers’s failure to live in the City of Niagara
Falls actually triggered her termination. She says that the District “threatened to
terminate [her] if she resided outside the [D]istrict.” Docket Item 1 at ¶ 18. And she
takes issue with the District’s “assert[ion] that it has a policy that entitle[d] [it] to
[terminate a tenured teacher.]” Id. at ¶ 20. In other words, her complaint seems more
about the unfair application of the residency policy than about any claim of

discrimination.6
In any event, Sayers has not plausibly alleged that her age or gender had
anything to do with her termination. Therefore, this Court agrees with Judge McCarthy

6 In her objection and reply, as in her submissions to Judge McCarthy, Sayers
seems to say that the District’s residency policy was applied to her in a discriminatory
fashion. See Docket Item 19 at 2-3; Docket Item 25; Docket Item 28. But if that is her
claim, the complaint not only fails to provide any reason why it might be plausible but
fails to mention it at all. See Docket Item 1. Simply saying that the plaintiff is a member
of a protected class; that her employer had a residency policy; that she lost her job; and
that the defendant discriminated against her is insufficient. But that is essentially what
the plaintiff has pleaded here.
that she has failed to state a claim for age or gender discrimination sufficient to
withstand a motion to dismiss.

B. ADA Claim
“The elements of a [discrimination] claim under the ADA are that: (1) the
employer is subject to the ADA; (2) the plaintiff is disabled within the meaning of the
ADA or perceived to be so by her employer; (3) she was otherwise qualified to perform
the essential functions of the job with or without reasonable accommodation; (4) she
suffered an adverse employment action; and (5) the adverse action was imposed
because of her disability.” Davis v. N.Y.C. Dep't of Educ., 804 F.3d 231, 235 (2d Cir.
2015). As noted above, “a plaintiff is not required to plead a prima facie case under

McDonnell Douglas . . . to defeat a motion to dismiss” but “need only give plausible
support to a minimal inference of discriminatory motivation at the pleading stage.”
Dooley v. JetBlue Airways Corp., 636 F. App'x 16, 21 (2d Cir. 2015) (internal quotation
marks omitted) (quoting Vega, 801 F.3d at 84).
The ADA defines “disability” to mean “a physical or mental impairment that
substantially limits one or more major life activities of [an] individual; . . . a record of
such an impairment; or . . . being regarded as having such an impairment.” 42 U.S.C.
§ 12102(1). “[A] plaintiff [must] do more than simply allude to her impairments in her
pleading; she must plead how those impairments significantly impacted her major life

activities, or she will not survive a motion to dismiss.” Collins v. Giving Back Fund, 2019
WL 3564578, at *13 (S.D.N.Y. Aug. 6, 2019) (emphasis in original); see also Giallanza
v. Time Warner Cable, 2009 WL 857502, at *7 (W.D.N.Y. Mar. 30, 2009) (“[I]t is well
settled under federal law that the ADA requires more than a diagnosis of a condition for
a person to be considered disabled as that term is defined under the Act.”).
Here, Sayers has pleaded only that she “has a disability”: that she “has PTSD.”
Docket Item 1 at ¶ 42. She does not say—or include any facts from which the Court

can infer—that her PTSD substantially limited her ability to perform any major life
activities. Sayers therefore has not pleaded that she has a disability within the meaning
of the ADA.7 See Giallanza, 2009 WL 857502, at *7; Dechberry v. New York City Fire
Dep’t, 124 F. Supp. 3d 131, 151 (E.D.N.Y. 2015) (“Without any factual specificity as to
the alleged disability claimed and the major life activities affected, the [c]omplaint fails to
plead that plaintiff was disabled.”).
In sum, Sayers has failed to plead that she has a disability within the meaning of
the ADA and that she suffered an adverse action because of that disability. Therefore,
this Court agrees with Judge McCarthy that she has not stated a claim for discrimination
based on disability.

7 Sayers also has not pleaded “a record” of PTSD as a disabling impairment. To
show a record of impairment, a plaintiff must establish that she “has a history of an
impairment that substantially limited one or more major life activities when compared to
most people in the general population, or was misclassified as having had such an
impairment.” 29 C.F.R. § 1630.2(k)(2). Sayers’s “failure to plausibly allege a
substantial limitation to a major life activity . . . precludes her from asserting that she has
a record of disability.” See Kelly v. N.Y. State Off. of Mental Health, 200 F. Supp. 3d
378, 394 (E.D.N.Y. Aug. 9, 2016). Nor has she alleged that the District regarded her as
having a disability. To adequately plead that she was “regarded as having” a disability,
42 U.S.C. § 12102(1), a plaintiff “must allege that [s]he has been subjected to an action
prohibited by the ADA . . . because of an actual or perceived impairment that is not both
transitory and minor.” See Rodriguez v. Verizon Telecom, 2014 WL 6807834, at *5
(S.D.N.Y. Dec. 3, 2014) (internal quotation marks omitted). Sayers does not say that
here.
II. DUE PROCESS CLAIM
Judge McCarthy recommended dismissing Sayers’s due process claim because
she failed to plausibly allege a property interest in continued employment. Docket Item
24 at 5. He found that “the dimensions of [Sayers’s] entitlement to continued
employment are defined by the District’s residency policy”; that Sayers did not “plausibly

allege[] that she satisfie[d] that policy”; and that she therefore failed to allege any
protected property interest. Id.
Sayers argues that Judge McCarthy held her to too high a pleading standard in
finding that she had not adequately alleged a property interest in continued
employment. Docket Item 25 at 6-7. She asserts that her tenure as a teacher is
sufficient to allege a property interest that is subject to due process protections and that
her property interest was abridged when she was terminated without due process. And
she argues that Judge McCarthy “ignore[d] well[ ]settled jurisprudence that tenure
creates a property interest.” Id.

Sayers is correct that it is “well[ ]established that a tenured public employment
position is a property interest subject to due process protections.”8 Burdick v. Bath

8 Sayers suggests that the source of this property interest is the Constitution.
See Docket Item 25 at 6 & n.5. This point merits some clarification. As Judge
McCarthy correctly explained, “[p]roperty interests are not created by the Constitution,
they are created and their dimensions are defined by existing rules or understandings
that stem from an independent source.” Docket Item 24 at 5 (quoting Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 538 (1985)). Once a property interest is created,
however, it cannot be deprived absent constitutionally adequate procedures.
Loudermill, 470 U.S. at 541. That is because “[t]he right to due process ‘is conferred
not by legislative grace, but by constitutional guarantee.’” Id. So although “the
legislature may elect not to confer a property interest in public employment, it may not
constitutionally authorize the deprivation of such an interest, once conferred, without
appropriate procedural safeguards.” Id. (alterations omitted).
Cent. Sch. Dist., 2020 WL 1435112, at *4 (W.D.N.Y. Mar. 24, 2020) (citing Strong v. Bd.
of Educ. of Uniondale Union Free Sch. Dist., 902 F.2d 208, 211 (2d Cir. 1990)). Sayers
has alleged that she was a tenured teacher, Docket Item 1 at ¶ 52, and this Court
therefore respectfully disagrees with Judge McCarthy and finds that Sayers has alleged

a property interest. Accordingly, she was entitled to due process protections.
But even when due process applies, “the question remains what process is due.”
Loudermill, 470 U.S. at 541. A tenured employee generally is entitled to “some kind of a
hearing” prior to discharge,9 id. at 542-43, but it “need not be elaborate,” Rivera-Powell
v. N.Y.C. Bd. of Elections, 470 F.3d 458, 467 (2d Cir. 2006). In fact, the Second Circuit
has described the pre-termination hearing requirement as “a minimal one.” Locurto v.
Safir, 264 F.3d 154, 173 (2d Cir. 2001). “An employee who has a property interest in
his employment ‘is entitled to oral or written notice of the charges against him, an
explanation of the employer’s evidence, and an opportunity to present his side of the
story,’ before he is subjected to the loss of employment.” Munafo v. Metro. Transp.

Auth., 285 F.3d 201, 212 (2d Cir. 2002) (quoting Loudermill, 470 U.S. at 546).
Sayers does not allege that the District failed to provide adequate notice of her
termination. On the contrary, she alleges that the District “threatened to terminate [her]
if she resided outside the [D]istrict,” Docket Item 1 at ¶ 18, and that the District asserted

9 Although a tenured employee generally is entitled to a pre-termination hearing,
that is not always the case. For example, “where a governmental body implements a
‘substantial reduction in its work force’ for efficiency reasons, no pre-termination
hearings are required.” Knox v. Town of Se., 599 F. App'x 411, 413 (2d Cir. 2015)
(summary order). This Court need not determine whether a pre-termination hearing is
required when the employee is accused of not complying with a residency requirement
because even if a pre-termination hearing is required, Sayers has not adequately
alleged that the District deprived her of such a hearing.
that the residency policy “entitle[d] [it] to take this . . . action,” id. at ¶ 20, suggesting she
had notice even before her termination. But Sayers does allege that the District
terminated her “without a hearing.” Id. at ¶ 56.
That due process claim is inadequate for several reasons. First, Sayers pleads

only conclusions and simply recites the elements of a due process claim. See id. at ¶¶
53-59. Although a court is required to accept “all factual allegations as true and draw[]
all reasonable inferences in favor of the plaintiff,” Trs. of Upstate N.Y. Eng’rs Pension
Fund, 843 F.3d at 566, it is “not bound to accept as true a legal conclusion couched as
a factual allegation,” Twombly, 550 U.S. at 555 (citation omitted). Nor will “a formulaic
recitation of the elements of a cause of action” suffice. Id.
Moreover, Sayers has not alleged that the procedures available to her failed to
provide her with adequate process. She says that she did not receive a hearing, but the
District gives its employees both pre- and post-termination opportunities to rebut
allegations of non-compliance with the residency policy. Before terminating

employment for violating the residency policy, the District first issues a “seven-day
letter,” notifying the employee of the alleged non-compliance. Beck-Nichols, 20 N.Y.3d
at 558, 987 N.E.2d at 241-42; Docket Item 11-3 at 4. Then, the District provides the
employee with the opportunity to respond in writing to the allegations of non-
compliance. Beck-Nichols, 20 N.Y.3d at 558, 987 N.E.2d at 241–42; Docket Item 11-3
at 4. If the District continues to “believe the employee is in violation of the residency
policy,” then the District institutes the necessary proceedings to terminate employment.
Docket Item 11-3 at 4.
Sayers does not allege that the District failed to follow its procedures for dealing
with residency policy violations nor that such procedures failed to provide adequate
process. In other words, she does not allege that she had no “opportunity to present
[her] side of the story,” see Munafo, 285 F.3d at 212. Although Sayers alleges that she

did not receive “a hearing,” see, e.g., Docket Item 1 at ¶ 56, that single, vague,
conclusory statement is insufficient to nudge Sayers’s due process claim from
“conceivable to plausible,” see Iqbal, 562 U.S. at 680 (quoting Twombly, 550 U.S. at
570), and give rise to the inference that she was deprived an opportunity to be heard.
Indeed, Sayers does not provide any factual allegations from which this Court
can infer what type of “hearing” Sayers believes she was entitled to but denied.
Perhaps Sayers means that she was denied the procedures outlined in the residency
policy. Perhaps she means that she was entitled a formal hearing rather than simply
“some kind of a hearing.” Or perhaps she is referring to pre-termination hearings
required by New York Education Law §§ 2509(2), 3020, and 3020-a, which relate to

teacher discipline.10 Regardless, other than by stating the conclusion that she was

10 From her complaint, it is not clear what type of hearing Sayers is alleging she
did not receive; her response to the motion to dismiss suggests that Sayers is referring
to a formal, pre-termination hearing permitting her to appear with counsel before the
Board of Education, see Docket Item 19 at 18. But the complaint is devoid of
allegations that plausibly suggest due process required such a formal hearing. It also
does not appear that Sayers was entitled to a formal, pre-termination hearing under
state law. The New York Court of Appeals has held that a tenured teacher terminated
for non-compliance with the District’s residency policy is not entitled to a pre-termination
hearing under New York Education Law §§ 2509(2), 3020, and 3020-a. Beck-Nichols,
20 N.Y.3d at 558-59, 987 N.E.2d at 242. The Court of Appeals found that because the
residency policy defined eligibility for employment, it was unrelated to the grounds that
would trigger a hearing under these provisions—that is, “job performance, misconduct[,]
or competency.” Id. Instead, general considerations of due process applied, and rather
than a formal, pre-termination hearing, “only notice and some opportunity to respond”
were required. Id.
denied “a hearing,” Sayers does not allege that she was denied the opportunity to be
heard or the “minimal” hearing owed to her pre-termination.
Sayers also had post-termination due process protections: she could have
challenged her termination through a proceeding under New York Civil Practice Law

and Rules Article 78. See New York CPLR § 7804. “[I]t is well[ ]established that an
Article 78 proceeding affords a tenured employee adequate due process
post-termination.” Burdick, 2020 WL 1435112, at *7; see, e.g., Locurto, 264 F.3d at 175
(“An Article 78 proceeding therefore constitutes a wholly adequate post-deprivation
hearing for due process purposes.”). Sayers does not allege that she brought an Article
78 proceeding, nor does she suggest any reason why an Article 78 proceeding was or
would have been inadequate. “Where, as here, the plaintiff had available adequate
process, [she] cannot be said to have been ‘deprived of due process simply because
[she] failed to avail [herself] of the opportunity.’” Claudio v. Mattituck-Cutchogue Union
Free Sch. Dist., 955 F. Supp. 2d 118, 129 (E.D.N.Y. 2013).

Accordingly, even though this Court agrees with Sayers that she has pleaded a
property interest, it finds that Sayers has not pleaded that she was deprived of any
process that she was due. Based on this modified reasoning, this Court agrees with
Judge McCarthy that Sayers has failed to state a due process claim.

III. FREEDOM OF ASSOCIATION CLAIM
As she does with respect to her other claims, Sayers argues that Judge
McCarthy incorrectly held her to a heightened pleading standard in connection with her
freedom of association claim. Docket Item 25 at 7. But she also argues that Judge
McCarthy simply misunderstood that claim. Id. Judge McCarthy found that Sayers
needed to plead a property interest in her continued employment to state a freedom of
association claim and that she had failed to do so. Docket Item 24 at 6. In her
objections, Sayers clarifies that she is claiming that the residency policy as applied to
her infringed upon her right to freedom of association. Docket Item 25 at 7. In other

words, she argues that the District’s policy deprives her of a fundamental right—that is,
freedom of association. Id.
Confusion about Sayers’s freedom of association claim is understandable, as the
nature and extent of this right is hardly clear. “The Supreme Court has recognized a
right of association with two distinct components—an individual’s right to associate with
others in intimate relationships and a right to associate with others for purposes of
engaging in activities traditionally protected by the First Amendment, such as speech
and other expressive conduct.” Adler v. Pataki, 185 F.3d 35, 42 (2d Cir. 1999) (citing
Roberts v. U.S. Jaycess, 468 U.S. 609, 617-18 (1984)). In this case, it is the first of
these rights—the right to intimate association, as opposed to expressive association—

that is implicated.
“The source of the intimate association right has not been authoritatively
determined.” Id. Depending on the context, it may be grounded in the First or the
Fourteenth Amendment. Id. at 42-43. In Adler, the Second Circuit observed that the
constitutional grounding of such a claim typically turned on whether the plaintiff was
challenging a broad regulation or a specific adverse action. Id. at 43. “Challenges to
broad regulatory measures” tend to be considered under the due process clause, while
“claims that some adverse state action burdens an individual’s . . . relationship have
been assessed under [the] First Amendment.” Id.
And “[j]ust as the source of a right of intimate association has varied, so has the
standard applied in determining whether that right has been violated.” Id. Some
opinions suggest that the “right is not violated unless the challenged action has the
likely effect of ending the protected relationship,” id. (citing Lyng v. Int’l Union, UAW,

485 U.S. 360, 364-66 (1988)), or “unless affecting the relationship was the purpose of
the challenged regulation,” id. (citing Califano v. Jobst, 434 U.S. 47, 54 (1977)).
Although these cases suggest that some intent to interfere with the intimate association
is required, the Second Circuit has not definitively ruled on whether intent to interfere is
a necessary element of a freedom of intimate association claim. Sharpe v. City of New
York, 560 F. App'x 78, 79 (2d Cir. 2014) (summary order). Other cases consider
whether the allegedly burdensome action “is arbitrary or an undue intrusion by the state
into the marriage relationship.” Adler, 185 F.3d at 43-44 (internal quotation marks
omitted) (citing Adkins v. Bd. of Educ., 982 F.2d 952, 956 (6th Cir. 1993)).
This Court need not determine the precise standard applicable to Sayers’s claim

because regardless of the standard applied, Sayers has failed to state a viable claim
that the residency policy infringes her right to freedom of association.11

11 In her objections, Sayers also suggests that because freedom of association is
a fundamental right, it is subject to strict scrutiny and the District must have a
compelling government interest for the residency policy. Docket Item 25 at 7. Sayers
over-simplifies the analysis. The Supreme Court has held that not every statute “which
relates in any way to the incidents of or prerequisites” of a protected intimate
association is subject to strict scrutiny. Zablocki v. Redhail, 434 U.S. 374, 386 (1978).
“[R]easonable regulations that do not significantly interfere with decisions to enter into
the [protected] relationship may legitimately be imposed.” Id. Accordingly, for strict
scrutiny to apply, the regulation must “interfere directly and substantially” with the
protected relationship. Id. at 387. As pleaded, Sayers has not alleged how the
residency policy “interfere[d] directly and substantially” with a protected relationship, see
id., and strict scrutiny therefore would not be triggered. And what level of scrutiny would
Sayers has not included any allegations from which the Court can infer that the
residency policy or its application “ha[d] the likely effect of ending [any] protected
relationship.” Adler, 185 F.3d at 43. Sayers alleges that she has a right to have
“romantic relationships with whomever she chooses,” Docket Item 1 at ¶ 64, but she

does not include any non-conclusory allegations about how the residency policy
affected her relationship—let alone how it would likely end that relationship. For
example, she does not allege that the residency policy might force her to end a
relationship, create a legal obstacle to entering an intimate relationship, or make a
relationship practically impossible to maintain. Cf. Parks v. City of Warner Robins, 43
F.3d 609, 614 (11th Cir. 1995) (finding municipal employer’s anti-nepotism policy did not
create a “direct legal obstacle” or make marriage “practically impossible”). Indeed,
Sayers does not even allege anything about the relationship supposedly affected by the
policy.
Sayers similarly has not alleged any facts from which the Court can infer that the

District adopted or applied the residency policy for the purpose of interfering in her
relationship. See Adler, 185 F.3d at 43. Her conclusory allegation that the District
“objected to [her] right to choose who she has a relationship with,” id. at ¶ 65, does not
help. At best, it suggests that the District may have been displeased with a relationship
that she was in, but it does not allege or raise the inference that the District intentionally
interfered with that relationship.

apply to her claims largely is beside the point as Sayers has not plausibly alleged a
deprivation of any sort.
Finally, Sayers also does not allege that the residency policy is an “arbitrary” or
“undue” intrusion into a protected relationship. See Adler, 185 F.3d at 43-44. Just as
she has not alleged that the policy was likely to end a protected relationship, Sayers has
not alleged any intrusion on a relationship—or with her ability to select and pursue

intimate relationships, for that matter. Perhaps Sayers is trying to say that the person
with whom she has a relationship lives outside the District and that the policy interferes
with her staying at her partner’s house. But even that does not connect the policy to a
violation of her right to intimate association because it does not explain why—indeed, it
does not even assert that—Sayers’s staying at her partner’s house is crucial to that
relationship.
In sum, based on modified reasoning, this Court agrees with Judge McCarthy
that Sayers has not alleged a viable freedom of intimate association claim.

IV. NYSHRL CLAIMS
Sayers’s remaining claims all arise under New York law. A “district court[] may
decline to exercise supplemental jurisdiction over a [state law] claim” if “the district court
has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).
“Once a district court’s discretion is triggered under § 1367(c)(3), it balances the
traditional ‘values of judicial economy, convenience, fairness, and comity[]’ in deciding
whether to exercise jurisdiction.” Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122

(2d Cir. 2006) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 450 (1988)). And
“in the usual case in which all federal-law claims are eliminated before trial, the balance
of factors will point toward declining to exercise jurisdiction over the remaining state-law
claims.” Id. (alterations omitted) (quoting Cohill, 484 U.S. at 350 n.7).
Judge McCarthy recommended that the Court decline to exercise supplemental
jurisdiction over such claims. Docket Item 24 at 6. This Court agrees. If Sayers does
not amend her complaint to correct the deficiencies outlined above, this Court will
decline to exercise supplemental jurisdiction over Sayers’s remaining state law claims.

V. LEAVE TO AMEND
Sayers did not ask for leave to amend, but Judge McCarthy nevertheless
recommended that she be given leave to replead her complaint. Because leave to
amend should be “freely given” whenever a complaint is dismissed, see McCarthy v.
Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007), this Court again agrees with
Judge McCarthy. Within 60 days, Sayers may file an amended complaint that corrects

the deficiencies noted above.
CONCLUSION

For the reasons stated above, this Court accepts Judge McCarthy’s
recommendation. The District’s motion to dismiss, Docket Item 11, will be granted
unless, within 60 days of the date of this order, Sayers amends her complaint to
correct the deficiencies addressed above. No later than 30 days after any amended
complaint is filed, the District may answer, move against, or otherwise respond to the
amended complaint. If Sayers does not amend her complaint within 60 days, then her
complaint will be dismissed, and the Clerk of the Court shall close the case without
further order.
SO ORDERED.

Dated: March 8, 2022
Buffalo, New York

/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10364693. Public record. Not legal advice.