Drinks-Bruder v. Niagara Falls Police Club

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

SANJA DRINKS-BRUDER,

Plaintiff,

22-CV-268-LJV

v. DECISION & ORDER

NIAGARA FALLS POLICE CLUB, et al.,

Defendants.

On April 6, 2022, the pro se plaintiff, Sanja Drinks-Bruder, commenced this

action under Title VII of the Civil Rights Act of 1964 (“Title VII”) and the New York State

Human Rights Law (“NYSHRL”). Docket Item 1. She alleges that the defendants, the

Niagara Falls Police Club, Inc. (the “Police Club”), and several Police Club officials,

discriminated against her because of her race. Id. at 4, 7, 12-30, 35-36.

On July 18, 2022, after this Court extended the defendants’ time to respond to

the complaint, Drinks-Bruder sent a letter to Chief United States District Judge Elizabeth

A. Wolford that this Court construes as a motion to recuse itself from presiding over this

case. Docket Item 18. On August 2, 2022, the defendants moved to dismiss the

complaint, Docket Item 23; on September 6, 2022, Drinks-Bruder responded, Docket

Item 28; and on September 15, 2022, the defendants replied, Docket Item 29.

For the following reasons, Drinks-Bruder’s motion for recusal is denied, some of

her claims are dismissed with prejudice, several others are subject to dismissal, and

one—a Title VII retaliation claim—may proceed. The defendants’ motion to dismiss

therefore is granted in part and denied in part, and the remainder of it will be granted

unless Drinks-Bruder amends her complaint to address the deficiencies noted below.

FACTUAL BACKGROUND1

Drinks-Bruder is a former Niagara Falls police officer and former member of the

Police Club, which is the Niagara Falls police officers’ union. Docket Item 23-2 at 10

(citing Docket Item 1 at 2, 4-5, 22); Docket Item 28 at 2. She worked for the Niagara

Falls Police Department from 1993 until her dismissal in 2022. Docket Item 28 at 2.

Drinks-Bruder is a Black woman. Docket Item 1 at 20 (“I am a [B]lack female.”).

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). In deciding the

motion, the court may consider any written documents that are attached to the

complaint, incorporated by reference, or integral to it. Sira v. Morton, 380 F.3d 57, 67

(2d Cir. 2004).

Drinks-Bruder has attached several documents to the complaint: (1)

correspondence from the New York State Division of Human Rights (“NYSDHR”) and

the Equal Employment Opportunity Commission (“EEOC”), Docket Item 1 at 9-11; (2)

the charge she filed with the NYSDHR (the “administrative charge”), id. at 12-24; (3)

supplemental filings to the administrative charge, id. at 25-30; (4) the NYSDHR

determination and order, id. at 31-32; (5) the NYSDHR affidavit of service, id. at 33-34;

(6) her request for EEOC review of the NYSDHR determination, id. at 35-36; and (7) the

EEOC dismissal and notice of rights, id. at 37. This Court therefore considers those

documents.

The Court does not consider the documents attached to Drinks-Bruder’s

response to the motion to dismiss, see Docket Item 28 at 23-29, because the complaint

does not attach or even refer to them. Any written material that Drinks-Bruder seeks to

include in any amended complaint should be attached to the amended complaint or

incorporated by reference.

The following facts are taken primarily from the complaint and the documents

attached to it, Docket Item 1. But because the complaint is somewhat disorganized and

disjointed, some background facts are taken from the defendants’ memorandum in

support of the motion to dismiss, Docket Item 23-2, and Drinks-Bruder’s response to the

motion to dismiss, Docket Item 28. Those facts simply provide context for the

allegations in the complaint and are in no way dispositive of this Court’s decision.

Regardless of their source, the facts are viewed in the light most favorable to Drinks-

Bruder, and the facts on which this decision is based all come from the complaint and

its attachments.

The Police Club has “approx[imately] 65 [] members”; no more than

“approx[imately] five” are Black. Id. at 7. Defendant James Tuttle is the Police Club’s

general counsel. Id. at 5; Docket Item 23-2 at 10. Defendant Michael Lee is the Police

Club’s former president. Docket Item 1 at 5, 7. Defendant Steven Kerfoot succeeded

Lee as Police Club president. Id. at 7. All three are white men. Id.; see also id. at 22.

The Police Club’s collective bargaining agreement grants its members the “right

. . . to file grievances” when they encounter employment-related issues. Id. at 16.

Drinks-Bruder first filed a grievance in 2009. Docket Item 28 at 2. After that,

“everything began to change,” and her employer, the City of Niagara Falls (the “City”),

began to retaliate against her. Id.2

Drinks-Bruder files complaints or grievances “when [she] must[,] which is all the

time.” Docket Item 1 at 22. Lee was the only union official who “would speak with”

Drinks-Bruder regarding her grievances. Id. Both Tuttle and a City attorney have

“stated many times” that Drinks-Bruder’s “grievances have no merit.” Id. at 30.

The Police Club discriminated against Drinks-Bruder “for over . . . two years” and

continued to do so through the time she commenced this action. Id. at 3. More

specifically, it failed to represent her, “took away [her] benefits illegally,” interfered with

her “legal paperwork,” and retaliated against her.3 Id. at 4. What is more, the Police

2 This Court does not consider Drinks-Bruder’s allegations of discrimination and

retaliation by the City, see Docket Item 28 at 2, 21-22, because the City is not a party to

this action. See Docket Item 1. For the same reason, this Court does not consider

Drinks-Bruder’s allegations that the New York State Public Employment Relations

Board discriminated against her. See Docket Item 28 at 18-19.

3 In the administrative charge, Drinks-Bruder checked boxes indicating that the

defendants “[s]uspended [her],” “[d]emoted [her],” [d]enied her [a] promotion/pay raise,”

“[d]enied [her] training,” “[g]ave [her] different or worse job duties than other workers

doing the same job,” and “[d]enied [her] leave time or other benefits.” Docket Item 1 at

Club “ignore[d] all [of Drinks-Bruder’s] work[-]related issues,” “always” sided with the

City in employment disputes, and “allow[ed]” the City to take “improper disciplinary

actions” against her. Id. at 21. In fact, the Police Club and the City “willingly work[ed] in

concert with one another to cause [Drinks-Bruder] hardship and to force [her] into

retirement.” Id. at 21-22.

I. EARLY INSTANCES OF NON-REPRESENTATION

The Police Club has a long history of failing to represent Drinks-Bruder. For

example, after Drinks-Bruder filed her first grievance in 2009, the Police Club “denied

[her] representation” when she was written up after an interaction with a “male prisoner.”

Docket Item 28 at 2-3.

In late 2019, Gregory Spagnola, a “white union official and officer,” witnessed a

“white prisoner” commit a “racial hatred incident” against Drinks-Bruder. Id. at 13, 20.

Spagnola’s original report of the incident included a “positive assessment” of Drinks-

Bruder’s conduct. Id. at 13. But when Spagnola learned that Drinks-Bruder was going

to report him for discrimination, he filed a second report about the incident with a

“negative assessment” of Drinks-Bruder. Id. at 13-14.

Drinks-Bruder filed a complaint about Spagnola’s discriminatory conduct in

November 2019, but “it was never addressed” and the City “thr[ew it] out.” Id. at 20.

Spagnola then filed a complaint against Drinks-Bruder based on her complaint;

Spagnola’s complaint repeated the “lies” from his second report of the underlying

15. But neither the administrative charge nor the complaint includes factual allegations

supporting those claims. See generally Docket Item 1. Nor does Drinks-Bruder explain

how the defendants—who are not her employer—could have taken those actions. See

id.

incident. Id. Lee knew that Spagnola “had changed his original [] report of the incident,”

id. at 13, but he and the Police Club did not represent Drinks-Bruder in connection with

that incident or her complaint against Spagnola, see id. at 13-14, 20. Drinks-Bruder

eventually filed a complaint about her interactions with Spagnola with the NYSDHR, but

the agency dismissed it. Id. at 14.

II. THE INITIAL SECTION 72 MEETING

Most of Drinks-Bruder’s allegations stem from the City’s request that she

undergo a New York Civil Service Law § 72 (“section 72”) evaluation. Under section 72,

an “appointing authority” who believes that “an employee is unable to perform the duties

of . . . her position by reason of a disability . . . may require such employee to undergo a

medical examination.” N.Y. Civ. Serv. Law § 72(1); accord Docket Item 1 at 16 (stating

that the City convened a meeting to “force” Drinks-Bruder to schedule an appointment

to undergo “medical exams” by a “mental and medical doctor”). The appointing

authority must give the employee “[w]ritten notice of the facts” that are the basis for the

examination. N.Y. Civ. Serv. Law § 72(1). If the employee is found unfit “to perform the

duties of . . . her position,” she “may be placed on a leave of absence.” Id.

On January 10, 2020, Drinks-Bruder “returned to work after taking some time

off.” Docket Item 1 at 16. That day, she “was forced to go to a[n] unscheduled . . .

meeting that [she] knew nothing about” in advance. Id. When she joined the meeting,

she “was informed . . . [that] it was a section 72 proceeding.” Id. The City convened it

because Drinks-Bruder’s “many grievances” apparently raised concerns that she was

“unfit for duty.” Id. But Drinks-Bruder was fit for duty, and neither the City nor the Police

Club provided evidence that she was unfit or “need[ed] a mental and medical exam.” Id.

at 23.

Lee, who was at the meeting, told Drinks-Bruder that he “knew nothing about” the

proceeding and that the Police Club “did not know what was going on.” Id. at 16. But

he also said that Drinks-Bruder “must continue” with the proceeding, and he assured

her that he would give “all” the information to attorney Tuttle, “who would handle it.” Id.

Drinks-Bruder scheduled the medical exam because the City and the Police Club told

her that she could not refuse. Id. That was false, however; Drinks-Bruder “ha[d] a right

to [refuse] any mental or medical exams when there [were] no facts” showing that such

exams were necessary. Id.

After she scheduled the exam, Drinks-Bruder received “paperwork,” including

“section 72 proceeding law” and an unsigned “copy of the facts.” Id. at 16-17. Lee also

gave Drinks-Bruder a copy of an email from Tuttle dated January 6, 2020. Id. at 17.

That email, which showed that the Police Club “g[a]ve the [C]ity an okay to proceed with

the section 72 proceeding,” contradicted Lee’s earlier statement that he did not know

about the proceeding. Id. But even though the Police Club apparently knew about the

section 72 proceeding in advance, it “did not inform [Drinks-Bruder] prior so that [she]

could be prepared.” Id. at 19.

Shortly after the January 10 meeting, Drinks-Bruder did not attend the section 72

exam, and she was then suspended until February 22, 2020. Docket Item 23-2 at 16;

accord Docket Item 1 at 19 (“I have not been able to return to work since 1/13/2020

although Deputy Faso [] stated I could on 2/22/2020.”).

III. NON-REPRESENTATION

Tuttle, the union attorney, could not represent Drinks-Bruder in connection with

the section 72 proceeding due to a conflict of interest: he already was representing the

Police Club against Drinks-Bruder in other proceedings that she had initiated. Docket

Item 1 at 18; see also Docket Item 23-2 at 15. So on February 12, 2020, the Police

Club retained outside counsel, Robert Boreanaz, to represent Drinks-Bruder in the

section 72 proceeding. Docket Item 1 at 5, 27.

But Drinks-Bruder was not satisfied with Boreanaz’s representation because he

did not take any steps to defend her. See id. at 7, 20, 26. Several months later, Drinks-

Bruder learned that the Police Club and Tuttle “had told [Boreanaz that] he was limited

in representing [her]” and “that he could not represent [her] in any affirmative action[s]”

she initiated. Id. at 20; see also id. at 5 (alleging that Boreanaz “denied service” to

Drinks-Bruder “at [the] urging and request” of the Police Club); Docket Item 28 at 6

(alleging that Tuttle told Boreanaz that “his services were to represent [] Drinks-Bruder

for [the] section 72 proceeding and/or as he deems appropriate”).

Despite Boreanaz’s inaction regarding the section 72 proceeding, the Police Club

and Tuttle told Drinks-Bruder that she was being adequately represented. Docket Item

1 at 19. Eventually, though, Tuttle told Drinks-Bruder that the Police Club was “tak[ing]

away [her] legal representation for [the] section 72 proceeding[].”4 Id. at 26.

Nevertheless, Boreanaz did not “give[] [Drinks-Bruder] any legal documents ending his

4 In fact, the Police Club “t[ook] away [Drinks-Bruder’s] legal representation” only

after she filed her administrative charge with the NYSDHR. Docket Item 1 at 26.

representation” and told her only that he was “waiting on the [Police Club] to let him

know what he can do.” Id. at 26-27.

IV. THE ENSUING DISCIPLINARY PROCEEDINGS

“[E]very[ ]time [Drinks-Bruder ]return[ed] to work” after her suspension, the City

asked her to undergo a section 72 exam. Docket Item 28 at 16. After Drinks-Bruder

declined, the City initiated disciplinary proceedings against her under New York Civil

Services Law § 75 (“section 75”).5 Docket Item 23-2 at 17; see Docket Item 1 at 29

(explaining that “the 75’s” were “a direct result of the section 72 proceeding”).

Whenever the City asked Drinks-Bruder to undergo the section 72 exam, the “union

official” present at the meetings—presumably Tuttle, who represented Drinks-Bruder

during the section 75 proceeding, Docket Item 1 at 29—“s[a]t quietly saying nothing”; he

made no effort to intervene or stop the City’s requests. Docket Item 28 at 16.

On March 16, 2021, Tuttle showed Drinks-Bruder an email indicating that the

Police Club had “asked for arbitration for [her] regarding union matters,” including her

“representation, pay[,] and unwarranted suspensions.” Docket Item 1 at 28. The Police

Club did not consult Drinks-Bruder before requesting arbitration, however, and Drinks-

Bruder did not want to arbitrate because she was concerned that arbitration

proceedings would not follow “proper procedures.” Id. She also wanted to avoid

arbitration because she would not be able to appeal or challenge the arbitrator’s

5 Section 75 “establishes protections and procedures for covered employees

facing discipline and provides that they ‘shall not be removed or otherwise subjected to

any disciplinary penalty . . . except for incompetency and misconduct shown after a

hearing upon stated charges.’” City of Long Beach v. N.Y. State Pub. Emp. Rels. Bd.,

39 N.Y.3d 17, 23 n.1, 198 N.E.3d 478, 481 n.1 (2022) (quoting N.Y. Civ. Serv. Law §

75(1)).

decision in court if she disagreed with it. See id. at 29 (“I will not accept a demand for

arbitration when procedures were not followed and no proper representation was given

to me and [] I must accept whatever the outcome and I cannot appeal it.” (internal

quotation marks omitted)). What is more, Drinks-Bruder feared that an arbitrator would

“side with” the City and the defendants because the defendants are white and have

“political [and] professional connections.” Id. at 30.

V. USE OF ACCRUED VACATION DAYS

In addition to all that, Lee, who was “in charge of payroll records,” Docket Item 28

at 12, “willfully and knowingly used [Drinks-Bruder’s] accrued [vacation] days to pay

[her] without [her] authorization while knowing [she] was collecting unemployment,”

Docket Item 1 at 6-7. At the time—spring 2020—both Lee and Drinks-Bruder “had full

knowledge that [she] was not allowed to work but was still employed.” Id. at 7; see also

Docket Item 28 at 13 (noting that Drinks-Bruder filed for unemployment after she was

told on April 9, 2020, that “she could not return to work”). Lee, the Police Club, and the

City initially denied taking “this improper[,] unlawful action.” Docket Item 28 at 13. But

after Drinks-Bruder “submitted” “proof,” Lee, the Police Club, and the City admitted that

it was “a mistake that cannot be rectified.” Id.

PROCEDURAL BACKGROUND

I. ADMINISTRATIVE PROCEEDINGS

Drinks-Bruder believed that she was denied representation “because [she is] a

[B]lack female who reports [] actions of discrimination.” Docket Item 1 at 27; see also

id. at 20. So on January 11, 2021, she filed a complaint with the NYSDHR alleging that

the Police Club, Lee, and Tuttle6 discriminated against her because of her race and sex

and retaliated against her.7 Id. at 3, 9, 13-14. After Drinks-Bruder submitted two

supplemental filings, see id. at 26-30, the NYSDHR issued a determination dismissing

her charge on the merits, id. at 31-32.

On October 13, 2021, Drinks-Bruder asked the EEOC to review the NYSDHR

determination. Id. at 35-36. She took issue with several aspects of the NYSDHR

investigation, id.; see also id. at 3, 7 (“NYSDHR did purposely [and] arbitrarily disregard

evidence submitted by me during the investigation.”), 21, and she said that the Police

Club, Lee, and Tuttle “illegally” altered “documents” used in the investigation, id. at 36.

The EEOC ultimately adopted the NYSDHR findings and issued a “Dismissal and

Notice of Rights,” id. at 37, which Drinks-Bruder received on January 19, 2022, id. at 3.

II. PROCEEDINGS IN THIS COURT

On April 6, 2022, Drinks-Bruder commenced this action. Docket Item 1. On April

29, 2022, this Court extended the defendants’ time to answer, move against, or

otherwise respond to the complaint. Docket Item 3. On May 2, 2022, Drinks-Bruder

moved for electronic filing privileges, Docket Item 6, and the next day, she asked the

Clerk of the Court to enter a default against the Police Club, Docket Item 7. After the

6 The administrative charge does not include Kerfoot as a respondent. Docket

Item 1 at 12-13.

7 In her complaint in this case, Drinks-Bruder checked the box indicating that she

was discriminated against based on race; she did not check the corresponding box for

sex discrimination. Docket Item 1 at 4. But even if this Court were to consider the

allegation of sex discrimination in the NYSDHR complaint and therefore to construe the

complaint in this case as alleging sex discrimination, the analysis of Drinks-Bruder’s

claims would not change. If Drinks-Bruder wishes to assert claims of sex discrimination,

she may do so in an amended complaint.

Clerk entered a default, Docket Item 8, the defendants moved to vacate the default and

for a further extension of time to respond to the complaint, Docket Item 9. On May 31,

2022, Drinks-Bruder responded to that motion, Docket Item 13; on June 2, 2022, the

defendants replied, Docket Item 15; and on June 8, 2022, Drinks-Bruder further

responded, Docket Item 16. On July 12, 2022, this Court issued an order granting the

motion to vacate, extending the defendants’ time to respond to the complaint, and

denying Drinks-Bruder’s motion for electronic filing privileges. Docket Item 17.

Unhappy with this Court’s decisions, Drinks-Bruder sent a letter to Chief Judge

Wolford. Docket Item 18. In the letter, Drinks-Bruder noted that the defendants did not

consult her before requesting a second extension and suggested that this Court was

“bias[ed]” and “purposely left [her] out” of the case. Id. at 1-2. She also argued that this

Court’s order vacating the default is “factual evidence of prejudice against” her. Id. at 3;

see also id. at 4 (suggesting that this Court “abuse[d its] power”); id. at 5 (suggesting

that this Court “is in fact unethically and unlawfully acting in prejudice against” Drinks-

Bruder); id. at 6 (arguing that this Court “has already prejudiced this case”). She made

the same argument about this Court’s decision to deny her request for electronic filing

privileges. Id. at 10. Based on the letter’s many allegations of bias, this Court

construes it as a motion for recusal.

On August 2, 2022, the defendants jointly moved to dismiss the complaint.

Docket Item 23. The parties then briefed the motion, Docket Items 28 and 29, as noted

above.

DISCUSSION

I. MOTION FOR RECUSAL

A judge shall recuse himself “in any proceeding in which his impartiality might

reasonably be questioned,” 28 U.S.C. § 455(a), as well as in any proceeding “[w]here

he has a personal bias or prejudice concerning a party, or personal knowledge of

disputed evidentiary facts concerning the proceeding,” id. § 455(b)(1). “[R]ecusal

motions are committed to the sound discretion of the district court.” United States v.

Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992). “In deciding whether to recuse, a judge

considers whether ‘a reasonable person, knowing all the facts, would conclude that the

trial judge’s impartiality could reasonably be questioned.’” Abreu v. Brown, 2017 WL

922127, at *3 (W.D.N.Y. Mar. 7, 2017) (alterations omitted) (quoting Lovaglia, 954 F.2d

at 815).

Drinks-Bruder argues that this Court is “prejudice[d]” and “bias[ed]” against her.

Docket Item 18 at 2-6, 10. But the only evidence she cites in support of her argument is

that this Court has issued decisions with which she is unhappy. See generally Docket

Item 18. And, in fact, this Court has no reason to be—and is not—prejudiced against or

biased for any party in this case. Nor does this Court independently know any facts

about this case or about any party.

This Court understands that Drinks-Bruder is a passionate litigant. But a party’s

disagreement with a court’s decisions is not a basis for recusal, and Drinks-Bruder

offers no other reason to doubt this Court’s impartiality. Because there is no reason

why this Court’s impartiality might reasonably be questioned, Drinks-Bruder’s motion for

recusal is denied.

II. MOTION TO DISMISS

“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. (quoting Twombly, 550 U.S. at 556). “Although the

statute of limitations is ordinarily an affirmative defense that must be raised in the

answer, a statute of limitations defense may be decided on a Rule 12(b)(6) motion if the

defense appears on the face of the complaint.” Conn. Gen. Life Ins. Co. v. BioHealth

Labs., Inc., 988 F.3d 127, 131-32 (2d Cir. 2021) (quoting Thea v. Kleinhandler, 807 F.3d

492, 501 (2d Cir. 2015)).

A. Title VII Claims

Title VII prohibits employers and labor unions from discriminating against

employees based on race, color, religion, sex, or national origin. 42 U.S.C. § 2000e–2.

It also prohibits retaliation when an employee opposes such discrimination. Id. §

2000e–3(a).

Drinks-Bruder alleges that the defendants discriminated and retaliated against

her in violation of Title VII. Docket Item 1. But the defendants argue that all her Title VII

claims fail either because they are procedurally barred, Docket Item 23-2 at 23-26, or

because the complaint fails to state a Title VII claim, id. at 26-37. This Court largely

agrees with the defendants. So—with one exception—unless Drinks-Bruder files an

amended complaint addressing the deficiencies noted below, her Title VII claims will be

dismissed.

1. Title VII Claims Against Tuttle, Lee, and Kerfoot

The defendants argue that Drinks-Bruder’s claims against Tuttle, Lee, and

Kerfoot must be dismissed because Title VII does not apply to individuals. Id. at 23-24.

In her response, Drinks-Bruder does not make any argument to the contrary. See

Docket Item 28. Nor could she in good faith because “[i]t is well-settled that there is no

individual liability under Title VII.” Felton v. Monroe Cmty. Coll., 579 F. Supp. 3d 400,

406 (W.D.N.Y. 2022) (citing Reynolds v. Barrett, 685 F.3d 193, 202 (2d Cir. 2012)).

Therefore, Drinks-Bruder’s Title VII claims against Tuttle, Lee, and Kerfoot are

dismissed without leave to amend because any amendment would be “futile.” See

Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).8

2. Timeliness

“Title VII . . . require[s] that an employee alleging discrimination file a claim with

the EEOC [or the equivalent state agency] within 300 days of the discriminatory action.”

Mitchell v. N.Y.C. Dep’t of Educ., 2022 WL 621956, at *7 (S.D.N.Y. Mar. 3, 2022) (citing

Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 78-79 (2d Cir. 2015)).

“Consequently, ‘discrete discriminatory acts are not actionable if time barred.’” Vega,

8 The Second Circuit has cautioned that a court “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, 222 F.3d at

112. But when “better pleading will not cure” a complaint’s defect, repleading is “futile”

and the court need not grant leave to amend. Id.

801 F.3d at 79 (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113

(2002)).

But the “continuing violation doctrine” provides an exception to the 300-day

limitations period. See Kitani v. N.Y.C. Transit, 2022 WL 874781, at *5 (S.D.N.Y. Mar.

24, 2022). Under that doctrine, “if a plaintiff has experienced a continuous practice and

policy of discrimination, the commencement of the statute of limitations period may be

delayed until the last discriminatory act in furtherance of it.” Id. (quoting Washington v.

Cnty. of Rockland, 373 F.3d 310, 317 (2d Cir. 2004)). “Conduct that has been

characterized as a continuing violation is ‘composed of a series of separate acts that

collectively constitute one unlawful employment practice.’” Washington, 373 F.3d at

318 (quoting Morgan, 536 U.S. at 111).

The continuing violation doctrine “does not apply to ‘discrete discriminatory acts’

like ‘termination, failure to promote, denial of transfer, or refusal to hire.’” Kitani, 2022

WL 874781, at *5 (quoting Drew v. Plaza Constr. Corp., 688 F. Supp. 2d 270, 279

(S.D.N.Y. 2010)). “Moreover, the continuing violation theory is available only if

circumstances are such that a reasonable person in the plaintiff’s position would not

have sued earlier.” Nweke v. Prudential Ins. Co. of Am., 25 F. Supp. 2d 203, 217

(S.D.N.Y. 1998). Accordingly, “[a] claim for breach of [duty of fair representation]

accrues when [the] plaintiff first knew, or should have known, of the union’s failure to

adequately pursue her claim.” Cooper v. Wyeth Ayerst Lederle, 106 F. Supp. 2d 479,

500 (S.D.N.Y. 2000). And if the union “purport[s] to fulfill its duty” of fair representation,

then “an unsophisticated employee [may not] realize that her union representative ha[s]

provided inadequate representation,” see Buttry v. Gen. Signal Corp., 68 F.3d 1488,

1492-93 (2d Cir. 1995), thus extending the limitations period.

Drinks-Bruder filed her administrative charge on January 11, 2021. See Docket

Item 1 at 9. Therefore, the defendants argue, her Title VII claims are time barred “to the

extent that [they are] based on conduct that occurred before March 17, 2020”—300

days before January 11, 2021. Docket Item 23-2 at 24-26.9

Most of Drinks-Bruder’s allegations concern the section 72 proceeding that she

learned about on January 10, 2020. She alleges that the Police Club approved the

proceeding and did not give her notice of it. Docket Item 1 at 16-17. She also alleges

that Lee lied to her when he told her that he and the Police Club did not know about the

meeting before it happened. Id. But those were discrete acts that occurred before

March 17, 2020, and therefore are time barred. See Vega, 801 F.3d at 79. The same

reasoning applies to Drinks-Bruder’s claim that the Police Club did not represent her in

her conflict with Spagnola in late 2019. See Docket Item 28 at 13-14, 20.

But the continuing violation doctrine saves Drinks-Bruder’s failure-to-represent

claim stemming from the section 72 proceeding. Drinks-Bruder alleges that the Police

Club failed to represent her beginning at the initial section 72 meeting on January 10,

2020. See Docket Item 1 at 16 (describing the January 10 meeting as

“unrepresented”).10 The Police Club retained Boreanaz to represent Drinks-Bruder on

9 Drinks-Bruder insists that her Title VII claims are timely because “[t]he last

[section] 75” meeting “was on December 15[,] 2021.” Docket Item 28 at 16. But the

defendants concede the timeliness of Drinks-Bruder’s allegations about the Police

Club’s failure to represent her during her disciplinary proceedings and the improper

payment of accrued vacation time. See Docket Item 23-2 at 26; Docket Item 29-1 at 1.

10 It is difficult to tell from the complaint whether Drinks-Bruder believed that she

was adequately represented at the time of the January 10 meeting. But giving her the

February 12, 2020, id. at 5, 27—again, before March 17, 2020—and told her that she

was adequately represented at that point, id. at 19. But Drinks-Bruder alleges that she

was not and that she did not learn that Boreanaz’s representation was inadequate until

July 2020, when the Police Club told her that Boreanaz could not represent her in any

“affirmative action[s].” See id. at 20.

Those allegations create a reasonable inference that Drinks-Bruder did not

realize the Police Club had breached its duty of fair representation until after March 17,

2020. See Buttry, 68 F.3d at 1492-93. And for that reason, the Police Club’s alleged

failure to represent Drinks-Bruder in connection with the section 72 proceeding is timely

under the continuing violation doctrine.

In sum, Drinks-Bruder’s Title VII claims related to the following allegations are

time barred: (1) the Police Club’s approval of the section 72 proceeding; (2) the Police

Club’s failure to give her advance notice of the section 72 meeting on January 10, 2020;

(3) Lee’s statement that neither he nor the Police Club knew about the section 72

proceeding before the January 10 meeting; and (4) the Police Club’s failure to represent

her in connection with the Spagnola conflict. Those claims therefore are dismissed

without leave to amend because better pleading will not change the dates on which

those alleged violations occurred. See Cuoco, 222 F.3d at 112. But Drinks-Bruder’s

Title VII claims related to the following allegations are not time barred: (1) her

representation in connection with the section 72 proceeding; (2) the Police Club’s failure

benefit of every reasonable inference, this Court finds it plausible that she did not

realize that her representation was inadequate during the meeting and that her failure-

to-represent claim therefore accrued after March 17, 2020.

to represent her during the disciplinary proceedings; and (3) the payment of her accrued

vacation days.

3. Exhaustion

“Title VII requires a plaintiff to exhaust administrative remedies before filing suit in

federal court.” Fowlkes v. Ironworkers Loc. 40, 790 F.3d 378, 384 (2d Cir. 2015)

(citations omitted). Under a narrow exception to the exhaustion requirement, “claims

not raised in an [administrative] complaint may still be part of the complaint later filed in

federal court if they are reasonably related to the claim filed with the agency.” Littlejohn

v. City of New York, 795 F.3d 297, 322 (2d Cir. 2015) (citation and internal quotation

marks omitted). A claim is reasonably related “if the conduct complained of would fall

within the scope of the [agency] investigation which can reasonably be expected to

grow out of the charge that was made.” Id. (citation omitted).

The defendants argue that Drinks-Bruder has not exhausted her claim that she

was improperly paid using her accrued vacation days. Docket Item 23-2 at 26. Drinks-

Bruder’s response did not address that argument. See Docket Item 28.

Drinks-Bruder’s administrative charge focuses on the section 72 proceeding and

the ensuing events. At one point, she refers to a loss of “benefits” used to “pay [her]

fraudulently.” Docket Item 1 at 15. But that single, vague reference is not reasonably

related to the complaint’s specific allegation that Drinks-Bruder was improperly paid out

her vacation days, id. at 6-7. Indeed, rather than providing any facts about the

“benefits” the Police Club “took [] away,” id. at 15, the administrative charge and its

supplemental filings spend thirteen pages detailing the section 72 proceeding, the

Police Club’s alleged failure to represent Drinks-Bruder, and the disciplinary

proceedings that followed, see id. at 16-23, 26-30. So based on the administrative

charge, the NYSDHR did not have notice to investigate any improper payment of

vacation time.11

Drinks-Bruder’s Title VII claim related to the improper payment of her vacation

time therefore is subject to dismissal because she did not exhaust her administrative

remedies in connection with that claim. Nevertheless, in light of her pro se status,

Drinks-Bruder may amend her complaint to include facts showing that she exhausted

that claim. See Cuoco, 222 F.3d at 112.

4. Failure to State a Discrimination Claim

“Under Title VII, it is unlawful for a labor union ‘to exclude or to expel from its

membership, or otherwise discriminate against, any individual because of [her] race,

color, religion, sex, or national origin.” Agosto v. Corr. Officers Benevolent Ass’n, 107 F.

Supp. 2d 294, 303 (S.D.N.Y. 2000) (emphasis omitted) (quoting 42 U.S.C. § 2000e–

2(c)(1)). A Title VII action against a union that is not based on a member’s exclusion or

expulsion is “limited” to a claim that the union “fail[ed] to discharge its duty of fair

representation.”12 Cooper, 106 F. Supp. 2d at 501; McIntyre v. Longwood Cent. Sch.

Dist., 658 F. Supp. 2d 400, 421 (E.D.N.Y. 2009), aff’d, 380 F. App’x 44 (2d Cir. 2010)

11 Drinks-Bruder says that she reported her conflict with Spagnola to the

NYSDHR in an earlier charge. Docket Item 28 at 14. But she provides few details

about the earlier charge, so it is difficult to tell whether she exhausted that claim. If

Drinks-Bruder includes the allegations about the Spagnola conflict in an amended

complaint, she should explain exactly what she reported to the NYSDHR and when.

12 As one court has noted, “the entire concept of permitting a union member to

sue her [u]nion for breach of the duty of fair representation (a[ labor law] concept) under

Title VII is confusing.” Cooper, 106 F. Supp. 2d at 500.

(summary order) (citing Nweke, 25 F. Supp. 2d at 220 (“[I]n order to establish a Title VII

claim concerning representation by a union of its members’ interests, . . . there must

first be a finding that the union breached its duty of fair representation.” (alterations and

internal quotation marks omitted))); see also Agosto, 107 F. Supp. 2d at 303 (“It is well

established that a union’s breach of its duty of fair representation may subject it to

liability under Title VII.”).

“To establish a prima facie Title VII claim for a union’s breach of its duty of fair

representation, a plaintiff must show that (1) the employer violated the collective

bargaining agreement . . . , (2) the union permitted the violation to go unrepaired,

thereby breaching the union’s duty of fair representation, and (3) there was some

indication that the union’s actions were motivated by discriminatory animus.” Daniels v.

Niagara Mohawk Power Corp., 2007 WL 925759, at *6 (W.D.N.Y. Mar. 26, 2007)

(collecting cases); see also McIntyre, 658 F. Supp. 2d at 421. The defendants argue

that Drinks-Bruder has not plausibly alleged the second and third prongs of this test.

Docket Item 23-2 at 26.13

a. Duty of Fair Representation

A union’s “duty of fair representation . . . derives ‘from the union’s statutory role

as exclusive bargaining agent.’” Dillard v. SEIU Loc. 32BJ, 2015 WL 6913944, at *4

(S.D.N.Y. Nov. 6, 2015) (quoting Air Line Pilots Ass’n Int’l v. O’Neill, 499 U.S. 65, 74

(1991)). “Because federal policy gives unions wide latitude to act in their representative

13 Although neither party addresses the first prong—the employer’s breach of the

collective bargaining agreement—this Court assumes for the purposes of this decision

that initiation of the section 72 proceeding and the ensuing disciplinary proceedings

were such a breach.

capacity,” a plaintiff alleging breach of the duty of fair representation bears “an

enormous burden.” Id. (citation omitted).

“In order to breach the duty of fair representation, [a] union’s actions must be . . .

arbitrary, discriminatory, or in bad faith, and there must be a causal connection between

the union’s actions and the employee’s injuries.” Moore v. Am. Fed’n of State, Cnty.,

and Mun. Emps. Loc. 1095, 2022 WL 262347, at *7 (W.D.N.Y. Jan. 28, 2022), report

and recommendation adopted, 2022 WL 1497959 (W.D.N.Y. May 12, 2022) (citing

Vaughn v. Air Line Pilots Ass’n, Int’l, 604 F.3d 703, 709 (2d Cir. 2010); Gordon v. Health

& Hosps. Corp., 2007 WL 2021853, at *2 (E.D.N.Y. July 12, 2007)). “A union’s actions

are arbitrary only if, in light of the factual and legal landscape at the time . . . , the

union’s behavior is so far outside a wide range of reasonableness as to be irrational.”

Vaughn, 604 F.3d at 709 (citation and internal quotation marks omitted). “A union’s acts

are discriminatory when substantial evidence indicates that it engaged in discrimination

that was intentional, severe, and unrelated to legitimate union objectives.” Id. (citation

and internal quotation marks omitted). “Bad faith, which encompasses fraud,

dishonesty, and other intentionally misleading conduct, requires proof that the union

acted with an improper intent, purpose, or motive.” Id. at 709-10 (citation and internal

quotation marks omitted). If a union’s actions are not arbitrary, discriminatory, or taken

in bad faith, the union has not breached its duty of fair representation; “even negligence

on the union’s part does not give rise to a breach.” Id. at 709 (citation omitted).

The defendants argue that Drinks-Bruder has not plausibly alleged that the

Police Club’s actions were arbitrary, discriminatory, or taken in bad faith. Docket Item

23-2 at 29-32. Drinks-Bruder disagrees. See, e.g., Docket Item 1 at 7 (alleging that the

Police Club acted “arbitrarily and in bad faith due to prejudice and retaliation”). This

Court agrees with the defendants.

First, Drinks-Bruder has not plausibly alleged that the Police Club’s actions were

so unreasonable “as to be irrational” and therefore arbitrary. See Vaughn, 604 F.3d at

709. For example, she does not plead facts establishing that the Police Club had the

responsibility—or even the ability—to prevent the section 72 proceeding or that it was

obligated to give her advance notice of it. See Docket Items 1 and 28. She alleges that

the Police Club failed to represent her, but she also says that Lee, a Police Club

representative, was present at the meeting on January 10, 2020, and that the Police

Club later hired Boreanaz to represent her. Docket Item 1 at 5, 16, 27.

Drinks-Bruder takes issue with the Police Club’s limitation of the scope of

Boreanaz’s representation, id. at 20, but she does not explain why that limitation was in

any way inappropriate, let alone so unreasonable that it was arbitrary, see Docket Items

1 and 28. And while she was unhappy with Boreanaz’s performance as her attorney,

Docket Item 1 at 7, 20, 26, she provides no reason why the Police Club’s retention of

him might have been irrational, see Docket Items 1 and 28.

Similarly, Drinks-Bruder alleges that the Police Club requested arbitration of her

conflict with the City without her consent, Docket Item 1 at 28-29, but she does not

explain why that request was irrational or arbitrary, see Docket Items 1 and 28. And

even if the Police Club should have obtained her consent before requesting arbitration,

Drinks-Bruder does not allege that it forced her to actually arbitrate. See Docket Items

1 and 28. On the contrary, the complaint attaches a notarized letter suggesting that she

refused arbitration. Docket Item 1 at 28-30.

Nor has Drinks-Bruder plausibly alleged that the Police Club acted in bad faith.

In fact, she describes only one incident even suggesting “dishonesty” or “intentionally

misleading conduct,” see Vaughn, 604 F.3d at 709-10: Lee’s false statement that

neither he nor that Police Club knew about the section 72 proceeding before January

10, 2020, see Docket Item 1 at 16-17. But according to Drinks-Bruder, shortly after Lee

made that statement, he gave her an email directly contradicting it. Id. That forecloses

any reasonable possibility that Lee intentionally tried to conceal information from Drinks-

Bruder; rather, it suggests that he merely misspoke or made a mistake and then

corrected that mistake. His statement therefore does not plausibly suggest bad faith.

Finally, while Drinks-Bruder asserts that the Police Club’s actions were

discriminatory, she does not explain why they were “unrelated to legitimate union

objectives.” See Vaughn, 604 F.3d at 709. Courts have found that legitimate union

objectives include improving wages and working conditions, protecting jobs, and

promoting safety. See Perry v. Int’l Transp. Workers’ Fed’n, 750 F. Supp. 1189, 1198

(S.D.N.Y. 1990) (citing Berman Enters. Inc. v. Loc. 333, United Marine Div., 644 F.2d

930, 935 n.8 (2d Cir. 1981)). This Court finds that ensuring representation of its

members also is a legitimate union objective. And surely, retaining outside counsel to

represent Drinks-Bruder is related to that objective—even if it did not achieve it.

In sum, Drinks-Bruder has not plausibly alleged that the Police Club’s actions

were arbitrary, discriminatory, or taken in bad faith, as is required to maintain a Title VII

claim for breach of duty of fair representation. See Moore, 2022 WL 262347, at *7. To

be sure, both the complaint and the response to the motion to dismiss repeat

conclusions that might satisfy these requirements.14 But such conclusory allegations

cannot defeat a motion to dismiss. See, e.g., Iqbal, 556 U.S. at 678 (“Threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements,

do not suffice [to defeat a motion to dismiss].”). And while the conduct that Drinks-

Bruder describes may amount to errors of judgment, even negligence does not

establish that a union breached its duty of fair representation. See Vaughn, 604 F.3d at

709.

For that reason, Drinks-Bruder’s Title VII discrimination claims are subject to

dismissal. But again in light of her pro se status, she may amend her complaint to

provide specific, factual allegations showing that the Police Club acted arbitrarily,

discriminatorily, or in bad faith.

b. Discriminatory Motivation

A plaintiff bringing a Title VII breach of fair duty of representation claim also must

show that “there was some indication that the union’s actions were motivated by

discriminatory animus.” Daniels, 2007 WL 925759, at *6. To defeat a motion to

dismiss, the plaintiff “need only give plausible support to a minimal inference of

discriminatory motivation.” See Vega, 801 F.3d at 84 (citation omitted); Littlejohn, 795

14 See, e.g., Docket Item 1 at 7 (alleging that the Police Club “has never assisted

[Drinks-Bruder] properly and has breached its duty of fair representation arbitrarily and

in bad faith due to prejudice and retaliation”); id. at 29 (alleging that the Police Club’s

request for arbitration “is another arbitrary, bad faith[,] and discriminatory/retaliatory

action”); Docket Item 28 at 9 (alleging that the Police Club’s failure to provide advance

notice of the section 72 proceeding “was arbitrary and in bad faith as well as

discriminatory”); id. at 19 (“[T]he [Police Club] has been discriminatory as well as acted

in bad faith and been arbitrary [sic].”).

F.3d at 311.15 “An inference of discrimination can arise from circumstances including,

but not limited to, [1] ‘the [defendant’s] criticism of the plaintiff’s performance in

ethnically degrading terms; [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 (citations omitted); see also

Daniels, 2007 WL 925759, at *8 (noting that a plaintiff bringing a Title VII claim against

his union did not present “any direct or circumstantial evidence of discriminatory animus

on the part of [his union]”). Although “actions or remarks made by decisionmakers that

could be viewed as reflecting a discriminatory animus” may give rise to an inference of

discrimination, Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir.1996),

“‘stray remarks’ alone do not support a discrimination suit,” Danzer v. Norden Sys., Inc.,

151 F.3d 50, 56 (2d Cir. 1998).

The defendants argue that Drinks-Bruder has not plausibly alleged that the

Police Club acted with discriminatory motivation. Docket Item 23-2 at 32-35. Although

Drinks-Bruder repeatedly says otherwise, see Docket Item 28 at 5-6, 9, this Court again

agrees with the defendants.

To start, Drinks-Bruder has not alleged that any of the defendants—or any other

Police Club officials—made any comments about her race. See Docket Items 1 and 28.

She alleges that the defendants have said that her grievances are meritless, but not that

15 While most cases addressing the burden of a Title VII plaintiff concern an

employer’s alleged discrimination, this Court sees no reason why the same principles

should not apply to Title VII cases involving a union’s alleged discrimination.

the defendants linked the merit of her grievances to her race in some way. Docket Item

1 at 30. So Drinks-Bruder has not provided even a “stray remark[]” to support her claim

of racial animus. See Danzer, 151 F.3d at 56.

Second, Drinks-Bruder has not alleged that white union members who were

similarly situated to her were treated more favorably. See Littlejohn, 795 F.3d at 312-

13. In fact, she provides only one example of a white coworker who underwent a

section 72 proceeding, and she alleges that the Police Club “did not represent” him in

that proceeding either. Docket Item 28 at 20.16

Finally, the sequence of events leading to Drinks-Bruder’s suspension and

eventual termination does not suggest discriminatory animus on the part of the Police

Club. Logically, the City—not the Police Club—suspended and terminated Drinks-

Bruder. Absent additional factual allegations, Drinks-Bruder’s conclusory statement that

the City and the Police Club conspired to force her into early retirement, Docket Item 1

at 21-22, does not establish that the Police Club played any role in her suspension and

termination.

In sum, Drinks-Bruder has not offered anything but her own conclusions that the

Police Club acted with discriminatory motivation. She alleges generally that white

officers were treated better than officers of color, that white officers who violated rules

were promoted, and that she was treated poorly because of her race. Docket Item 28 at

3, 14, 17, 19-21. But other than her own say-so, she does not plead anything to link

16 While Drinks-Bruder also alleges that her coworker “was able to retire with full

benefits,” she has not alleged that she herself was eligible for retirement or that she and

her coworker were otherwise similarly situated. See Docket Item 28 at 20. Moreover,

the City, which is not a defendant here—and not the Police Club, which is a

defendant—presumably made the decision allowing the coworker to retire with benefits.

race-based discrimination to any action adverse to her. Her Title VII discrimination

claims therefore are subject to dismissal on that ground as well. But again in light of her

pro se status, Drinks-Bruder may amend her complaint to add allegations about the

Police Club’s discriminatory animus.

5. Failure to State a Retaliation Claim

“To make out a prima facie case of retaliation by a union [under Title VII], a

plaintiff must show that[:] (1) she was engaged in an activity protected under Title VII

and known to the union; (2) she suffered adverse union action; and (3) there was a

causal connection between the protected activity and the union’s actions.” Dillard, 2015

WL 6913944, at *8 (italicization added) (quoting Agosto, 107 F. Supp. 2d at 309). “A

plaintiff engages in protected activity when she[:] (1) opposes employment practices

prohibited under Title VII; (2) makes a charge of discrimination; or (3) participates in an

investigation, proceeding, or hearing arising under Title VII.” Davis v. N.Y. State Dep’t

of Corrs. Attica Corr. Facility, 110 F. Supp. 3d 458, 462 (W.D.N.Y. 2015) (citation and

internal quotation marks omitted)).

“To qualify as protected activity,” a complaint or charge of discrimination “must

[be] based ‘on a good faith, reasonable belief that [the complainant] was opposing an

employment practice made unlawful by Title VII.’” Id. (emphasis omitted) (quoting Kelly

v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013)).

“Mere subjective good faith belief is insufficient; the belief must be reasonable and

characterized by objective good faith.” Id. (alterations and emphasis omitted) (quoting

Kelly, 716 F.3d at 16).17

The defendants argue that Drinks-Bruder’s conclusory allegations do not

plausibly suggest that the Police Club retaliated against her. Docket Item 23-2 at 35-37.

In response, Drinks-Bruder reiterates her claim of retaliation but provides little by way of

specific allegations. See Docket Item 28.

This Court largely agrees with the defendants: most of Drinks-Bruder’s

allegations about retaliation are conclusory and therefore insufficient to survive a motion

to dismiss. See Iqbal, 556 U.S. at 678. But she makes two specific allegations of

retaliation: (1) that Lee “knowingly falsified payroll records” and “paid [Drinks-Bruder

using] accrued [vacation] days” because she “claim[ed] unemployment,” Docket Item 28

17 It seems that the focus of this inquiry used to be on whether a plaintiff provided

facts from which an inference of discrimination could reasonably be drawn. See, e.g.,

Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1179 (2d Cir. 1996) (noting that the

plaintiff might not have “passed the good faith reasonable[ness] test” if the only

evidence of a hostile work environment was an “isolated comment” (alteration in

original)); Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir.

1998) (plaintiff did not have a reasonable belief that she was discriminated against

based on gender because “there was no semblance of gender-oriented motivation in

the events or conversations” she described).

But more recently, courts have focused instead on whether a complaint or charge

in based on a claim that the plaintiff suffered discrimination “related to [her] membership

in a protected class.” See Wilson v. N.Y. & Presbyterian Hosp., 2021 WL 9493971, at

*12 (E.D.N.Y. June 22, 2021); see also Bamba v. Fenton, 758 F. App’x 8, 13 (2d Cir.

2018) (summary order) (plaintiff did not engage in protected activity when she

complained that she was “discriminated [against] and defamed” but did not allege that

those actions were race-based); Washington v. CT Scoop Shops LLC, 2022 WL

686301, at *8 (D. Conn. Mar. 8, 2022) (plaintiff did not engage in protected activity when

he complained about “food labeling” because his complaint was “not related to

discrimination on a basis prohibited by Title VII”); Thomas v. Town of Southeast, 336 F.

Supp. 3d 317, 327 (S.D.N.Y. 2018) (32-year-old plaintiff complaining of age

discrimination did not have a reasonable belief that the relevant statute was being

violated because it protected only people who are at least 40 years old).

at 12-13; see also Docket Item 1 at 6-7; and (2) that after she filed her administrative

charge, the Police Club “t[ook] away” her representation for the section 72 proceeding,

Docket Item 1 at 26.

Drinks-Bruder’s retaliation claim based on the payment of her vacation days fails

because she has not satisfied the first element of a prima facie retaliation claim: that

she engaged in a protected activity. She says that on April 9, 2020, she was “told she

could not return to work on that day or any day afterwards.” Docket Item 28 at 13. And

she alleges that from April 9, 2020, to May 4, 2020, Lee, who “was in charge of payroll

records,” paid out her vacation days “because instead of using her accrued days as

pay[,] [Drinks-Bruder] claim[ed] unemployment” during that period. Docket Item 1 at 6-

7; Docket Item 28 at 12-13. These allegations seem to suggest that Lee retaliated

against Drinks-Bruder by paying her with accrued vacation time after she sought

unemployment benefits. But seeking unemployment benefits is not a protected activity

under Title VII. See Davis, 110 F. Supp. 3d at 462 (“A plaintiff engages in protected

activity when she[:] (1) opposes employment practices prohibited under Title VII; (2)

makes a charge of discrimination; or (3) participates in an investigation, proceeding, or

hearing arising under Title VII.”). So Drinks-Bruder’s allegations about the use of her

vacation days do not plausibly give rise to a Title VII retaliation claim.

But Drinks-Bruder’s other retaliation claim—that the Police Club terminated her

legal representation because she filed an administrative charge—survives, at least at

this early stage. So long as she had a reasonable, good faith basis to believe that the

defendants violated Title VII, Drinks-Bruder engaged in protected activity by filing the

administrative charge, see id.; she “need not establish that the conduct [s]he opposed

was in fact a violation of Title VII,” see Manoharan v. Columbia Univ. Coll. of Physicians

& Surgeons, 842 F.2d 590, 593 (2d Cir. 1988). The administrative charge’s allegations

of racial discrimination establish that Drinks-Bruder had such a belief. See Docket Item

1 at 20, 22, 27; cf. Bamba, 758 F. App’x at 13; Washington, 2022 WL 686301, at *8;

Thomas, 336 F. Supp. 3d at 327. And terminating Drinks-Bruder’s legal representation

shortly after she filed the charge surely was an adverse action sufficient to satisfy the

second element of a prima facie retaliation claim.

The defendants argue that the allegation that the Police Club “t[ook] away”

Drinks-Bruder’s representation refers only to the Police Club’s representation of Drinks-

Bruder rather than Boreanaz’s representation. Docket Item 23-2 at 36. This Court is

not convinced that the defendants’ interpretation of the complaint is correct, however,

especially because Drinks-Bruder suggests that she expected to receive a notice from

Boreanaz terminating his representation of her. See Docket Item 1 at 26. In fact,

Drinks-Bruder says, she “still want[s] his representation.” Id. Those allegations

plausibly suggest that after Drinks-Bruder filed the administrative charge, the Police

Club stopped retaining Boreanaz to represent her.

Finally, the temporal proximity between the filing of Drinks-Bruder’s

administrative charge and the Police Club’s alleged termination of her legal

representation establishes a plausible causal connection between the two events. See

Martin v. State Univ. of N.Y., 704 F. Supp. 2d 202, 229 (E.D.N.Y. 2010) (“[C]ausality

may be inferred through timing alone where the temporal proximity between a[

defendant’s] learning of protected activity and the adverse [] action following thereafter

are ‘very close.’” (quoting Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001))).

Drinks-Bruder filed the administrative charge on January 11, 2021. Docket Item 1 at 9.

She does not allege exactly when the Police Club terminated her representation, but

she informed the NYSDHR of the termination in a letter dated March 2, 2021. Id. at 26.

So no more than about seven weeks elapsed between the two events. And “district

courts in this [c]ircuit have generally found that a passage of two months between the

protected activity and the adverse action seems to be the dividing line” when analyzing

whether temporal proximity allows an inference of causation. Martin, 704 F. Supp. 2d at

230 (internal quotation marks omitted) (collecting cases).

Because Drinks-Bruder has raised a viable Title VII retaliation claim based on her

allegation that the Police Club retaliated against her by terminating her legal

representation, the defendants’ motion to dismiss that claim is denied. And in light of

her pro se status, Drinks-Bruder may amend her complaint to correct the deficiencies in

her other retaliation claims. See Cuoco, 222 F.3d at 112. But unless she does so, the

defendants’ motion to dismiss her retaliation claims other than the claim based on the

termination of her representation will be granted.

B. NYSHRL Claims

Like Title VII, the NYSHRL prohibits labor unions from discriminating against their

members based on, inter alia, race. N.Y. Exec. Law § 296(1)(c). And like Title VII, the

NYSHRL also prohibits retaliation against a person who opposes such discrimination.

Id. § 296(1)(e).

The defendants argue that Drinks-Bruder’s NYSHRL claims are “procedurally

and substantively infirm.” Docket Item 23-2 at 37. Drinks-Bruder’s response does not

substantively address her state law claims. See Docket Item 28.

1. Election of Remedies

The NYSHRL provides that “[a]ny person claiming to be aggrieved by an unlawful

discriminatory practice shall have a cause of action in any court of appropriate

jurisdiction . . . unless such person had filed a complaint hereunder or with any local

commission on human rights.” N.Y. Exec. Law § 297(9). Accordingly, NYSHRL claims,

“once brought before the NYSDHR, may not be brought again as a plenary action in

another court.” Jiles v. Rochester Genesee Reg’l Transp. Auth., 317 F. Supp. 3d 695,

700 (W.D.N.Y. 2018) (quoting York v. Ass’n of the N.Y.C. Bar, 286 F.3d 122, 127 (2d

Cir. 2002)).18

The defendants argue that this election-of-remedies rule bars most of Drinks-

Bruder’s NYSHRL claims. Docket Item 23-2 at 37-38. Drinks-Bruder’s response does

not address this argument. See Docket Item 28.

As discussed above, Drinks-Bruder’s administrative charge—and the

supplemental documents she filed with the NYSDHR—describe the Police Club’s

alleged failure to represent her in connection with the section 72 proceeding and the

ensuing disciplinary proceedings. See Docket Item 1 at 13-30. The NYSDHR

dismissed Drinks-Bruder’s charge on the merits. Id. at 31-32. Drinks-Bruder therefore

cannot now assert NYSHRL claims connected to the allegations in her administrative

charge—namely, the allegations about the section 72 proceeding and the ensuing

disciplinary proceedings.

18 This bar applies only when an administrative agency dismisses a charge on

the merits, not when dismissal is made “on the grounds of administrative convenience,

on the grounds of untimeliness, or on the grounds that the election of remedies is

annulled.” N.Y. Exec. Law § 297(9).

Drinks-Bruder’s NYSHRL failure-to-represent claim based on the conflict with

Spagnola, however, may not be barred by the election-of-remedies rule: she alleges

that the NYSDHR “dismissed” the charge containing allegations about the Spagnola

incident “capriciously and arbitrar[il]y,” but she does not say whether it was dismissed

on the merits. See Docket Item 28 at 14. Giving Drinks-Bruder the benefit of every

reasonable inference, this Court finds that her state law claims relating to the Police

Club’s failure to represent her in the Spagnola conflict are not barred by the election-of-

remedies rule.19

Drinks-Bruder’s NYSHRL claims based on the section 72 proceeding and the

ensuing disciplinary proceedings therefore are dismissed without leave to amend

because any amendment would be “futile.” See Cuoco, 222 F.3d at 112. But because

they were not adequately raised in the administrative charge, see supra at 18-19, her

NYSDHR claims relating to the misuse of her accrued vacation days are not barred by

the election-of-remedies rule. And for now, neither is her failure-to-represent claim

based on the Spagnola conflict.

2. Timeliness

Next, the defendants argue that all Drinks-Bruder’s NYSHRL claims are untimely.

Docket Item 23-2 at 38-39. This Court need not—and does not—address the timeliness

of the claims that are barred by the election-of-remedies rule because those claims are

dismissed without leave to amend. The Court therefore considers the timeliness of only

19 In any amended complaint, Drinks-Bruder should explain the ground on which

the NYSDHR dismissed the charge containing allegations about the Spagnola conflict.

the NYSHRL claims based on (1) the Spagnola conflict, and (2) payment of Drinks-

Bruder’s vacation days.

Under New York state law, the statute of limitations for “an action to recover upon

a liability . . . created or imposed by statute” typically is three years. N.Y. C.P.L.R. §

214(2). But “a claim against a union for violating the duty of fair representation is

subject to a four-month statute of limitations.” Williams v. N.Y.C. Hous. Auth., 458 F.3d

67, 69 (citing N.Y. C.P.L.R. § 217(2)(a)).

Drinks-Bruder’s NYSHRL claim arising from the Police Club’s failure to represent

her during the Spagnola conflict therefore is time barred because she commenced this

action on April 6, 2022—far longer than four months after the incident occurred in late

2019.20 But this Court interprets Drinks-Bruder’s allegations about the payment of her

vacation days as a retaliation claim, see supra at 29-31, and the statute of limitations for

such a claim is three years, see Isbell v. City of New York, 316 F. Supp. 3d 571, 585-86

(applying a three-year statute of limitations to plaintiff’s retaliation claim).

Accordingly, Drinks-Bruder’s NYSHRL failure-to-represent claim relating to the

Spagnola conflict is time barred and dismissed without leave to amend because better

pleading will not change the dates on which the conflict occurred. See Cuoco, 222 F.3d

at 112. But her NYSHRL retaliation claim based on the payment of her vacation days,

which occurred in April 2020 and May 2020, is not time barred.

20 In fact, Drinks-Bruder did not even raise the claims relating to that incident until

September 6, 2022, when she responded to the motion to dismiss. See generally

Docket Items 1 and 28.

3. Failure to State a Claim

Finally, the defendants argue that Drinks-Bruder has failed to state either a

discrimination or a retaliation claim under the NYSHRL. Docket Item 23-2 at 40-41.

Because Drinks-Bruder’s NYSHRL claims relating to the Police Club’s failure to

represent her are procedurally barred, this Court need only consider whether she has

stated an NYSHRL retaliation claim regarding the allegation that she was improperly

paid using her accrued vacation time.

“A plaintiff alleging retaliation in violation of the NYSHRL must show that[:] (1) he

or she engaged in a protected activity by opposing conduct prohibited thereunder; (2)

the defendant was aware of that activity; (3) [the plaintiff] suffered an adverse action

based upon his or her activity; and (4) there was a causal connection between the

protected activity and the adverse action.” Bilitch v. N.Y.C. Health & Hosps. Corp., 194

A.D.3d 999, 1004-05, 148 N.Y.S.3d 238, 245-46 (2d Dep’t 2021). “Protected activities

include ‘actions taken to protest or oppose statutorily prohibited discrimination.’”

Buchanan v. City of New York, 556 F. Supp. 3d 346, 365 (S.D.N.Y. 2021) (alteration

omitted) (quoting Natofsky v. City of New York, 921 F.3d 337, 354 (2d Cir. 2019)).

As discussed, Drinks-Bruder alleges that Lee paid her using accrued vacation

days because she “claim[ed] unemployment” during a period when she was unable to

work. Docket Item 28 at 12-13. But “claim[ing] unemployment,” id., is not an action that

Drinks-Bruder took to oppose discriminatory conduct—by either the Police Club or the

City—and thus is not a protected activity.21

21 It is true that under the NYSHRL, “a plaintiff may bring a retaliation claim

stemming from an employer’s opposition to her unemployment benefits application.”

Wermann v. Excel Dentistry, P.C., 2014 WL 846723, at *3-4 (S.D.N.Y. Feb. 25, 2014).

But such opposition is an adverse action relevant to the third prong of the test, not a

Drinks-Bruder’s allegations about the use of her vacation time therefore do not

plausibly allege retaliation under the NYSHRL, so her remaining NYSHRL retaliation

claim is subject to dismissal. But again in light of her pro se status, Drinks-Bruder may

amend her complaint to explain whether she was retaliated against for some other

reason.

III. LEAVE TO AMEND

Although Drinks-Bruder has not asked for leave to amend her complaint, see

Docket Item 28, the defendants urge this Court to treat her response to the motion to

dismiss as a motion to amend and to consider the allegations raised in that filing “in the

interest of judicial economy,” see Docket Item 29 at 6-8. They also ask that this Court

deny Drinks-Bruder leave to amend her complaint again because any amendment

would be futile. Id. But for the reasons stated throughout this opinion, 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), and especially in light of her

pro se status, see Cuoco, 222 F.3d at 112, the Court grants Drinks-Bruder 45 days to

file an amended complaint that corrects the deficiencies noted above.

Drinks-Bruder is advised that an amended complaint is intended to completely

replace the prior complaint and thus “renders [any prior complaint] of no legal effect.”

Int’l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977) (citations omitted); see

also Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994). She is further

protected activity under the first prong. See id. In other words, a defendant might

retaliate against a plaintiff by interfering with her unemployment benefits but not for

claiming unemployment benefits.

advised that any written material she seeks to include in any amended complaint should

be attached to the amended complaint or incorporated by reference.

Finally, this Court reiterates that Drinks-Bruder has leave to amend her complaint

regarding only her Title VII discrimination and retaliation claims against the Police Club

and her NYSHRL retaliation claim based on the payment of her vacation days. Her

remaining claims—other than her viable Title VII retaliation claim based on the

termination of her legal representation—are dismissed without leave to amend.

CONCLUSION

For the reasons stated above, the following claims are dismissed with prejudice:

• Drinks-Bruder’s Title VII claims against Tuttle, Lee, and Kerfoot;

• Drinks-Bruder’s Title VII claims based on:

o the Police Club’s approval of the section 72 proceeding;

o the Police Club’s failure to give her advance notice of the section

72 proceeding;

o Lee’s statement that neither he nor the Police Club knew about the

section 72 proceeding; and

o the Police Club’s failure to represent her in connection with the

Spagnola conflict; and

• Drinks-Bruder’s NYSHRL claims based on the Police Club’s failure to

represent her.

Drinks-Bruder’s motion for recusal, Docket Item 18, is DENIED. The defendants’

motion to dismiss, Docket Item 23, is GRANTED in part as noted above, is DENIED

with respect to Drinks-Bruder’s Title VII retaliation claim based on the termination of her

representation, and will be granted with respect to all other claims unless Drinks-Bruder

amends her complaint, within 45 days, to correct the deficiencies noted above. No later

than 30 days after any amended complaint is filed, the defendants may answer, move

against, or otherwise respond to the amended complaint. If Drinks-Bruder does not file

an amended complaint within 45 days, then her remaining claims will be dismissed as

noted above.

SO ORDERED.

Dated: February 16, 2023

Buffalo, New York

/s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE