Drinks-Bruder v. City of Niagara Falls

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

SANJA DRINKS-BRUDER,

Plaintiff,

22-CV-725-LJV

v. DECISION & ORDER

CITY OF NIAGARA FALLS, et al.,

Defendants.

On September 23, 2022, the pro se plaintiff, Sanja Drinks-Bruder, commenced

this action under 42 U.S.C. § 1983, 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 discriminated against her because of her race, retaliated against

her, subjected her to a hostile work environment, and violated her right to due process.1

Id. at 4. She has sued the City of Niagara Falls (the “City”) and nine of its officers and

employees: Mayor Robert Restaino; Corporation Counsel Christopher Mazur; former

Niagara Falls Police Department (“NFPD”) Chief Thomas Licata; NFPD Chief John

Faso; NFPD Captains Michael Corcoran and Vincent Granto; NFPD Officer Gregory

Spagnolo; and former Niagara Falls Police Club (“Police Club”) Presidents Michael Lee

1 In the complaint, Drinks-Bruder checked a line indicating that the defendants

also failed to provide her reasonable accommodations. Docket Item 1 at 4. Based on

Drinks-Bruder’s allegations—which do not include any facts supporting a failure to

accommodate claim, such as an allegation that she is disabled—the Court believes that

Drinks-Bruder likely “mistakenly checked” that line. See Docket Item 15-1 at 10.

Regardless, any failure to accommodate claim is subject to dismissal for failure to state

a claim. See Berger v. N.Y.C. Police Dep’t, 304 F. Supp. 3d 360, 368-69 (S.D.N.Y.

2018) (elements of failure to accommodate claim).

and Steven Kerfoot, who also work for the NFPD. Id. at 6-8; see Docket Items 15-1 and

16-1 (providing correct names and titles of defendants).

On January 27, 2023, the defendants moved to dismiss the complaint. Docket

Items 15 and 16; on March 27, 2023, Drinks-Bruder responded, Docket Items 20 and

21; and on April 18, 2023, the defendants replied, Docket Items 28 and 29.

For the reasons that follow, the defendants’ motions to dismiss are granted in

part and denied in part.

FACTUAL BACKGROUND2

In 1993, Drinks-Bruder began working for the NFPD, Docket Item 1 at 2, where

she was a member of the Police Club union, see id. at 47. Throughout her employment,

she suffered “many . . . instances of racism[] [and] retaliation” that created a “hostile

work environment.” Id. at 24. The City “is the entity responsible for” the discrimination,

retaliation, and harassment. Id. at 9. And the individual perpetrators of the “unlawful[,]

unethical actions” were “white males and white females” who targeted Drinks-Bruder

2 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).

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

attached to it, including Drinks-Bruder’s administrative charge and the amendments to

her administrative charge. Docket Item 1. But because the complaint is disjointed and

disorganized, some facts are taken from other filings in this action to provide additional

context. Regardless of their source, the facts are viewed in the light most favorable to

Drinks-Bruder.

“because [she is] a [B]lack female” who “oppose[s] discrimination” by filing complaints or

grievances “all the time.” Id. at 42-43, 45.

Generally, the defendants either ignored or failed to adequately address Drinks-

Bruder’s many grievances. See, e.g., id. at 9 (Restaino); id. at 12 (Mazur); id. at 15

(Licata); id. at 20 (Lee). But the complaint focuses primarily on events that followed an

interaction between Drinks-Bruder and a prisoner in November 2019.

I. THE NOVEMBER 2019 INCIDENT AND THE SECTION 72 PROCEEDING

On November 18, 2019, a “white racist violent prisoner” committed “racial hatred

discriminatory acts against” Drinks-Bruder.3 Id. at 23. Another officer, Spagnolo,

“witnessed” the incident and “sided with” the prisoner. Id.

Drinks-Bruder planned “to file a discrimination complaint against” Spagnolo, but

when Spagnolo learned about her plan, he “falsified a report about [Drinks-Bruder] to

retaliate” against her.4 Id. at 22-23. Supervisors Faso and Licata “knew” that Spagnolo

had “changed” his report “to harm” Drinks-Bruder, but they “allowed the lies” and

decided that Drinks-Bruder’s conflicting report was “not true.” Id. at 16-17. Police Club

President Lee also “knew” that Spagnolo “lied,” id. at 20-21, as did City Corporation

Counsel Mazur, who represented Spagnolo in connection with the incident, id. at 13.

3 As best the Court can tell, Drinks-Bruder attempted to file a report against the

prisoner. Docket Item 20 at 10. In January 2021, she learned “that [the] charges had

been sealed and lowered by the City of Niagara Falls Court” and that the City “asked

that all charges be dropped against the racist prisoner[, which] they were.” Id. at 10-11.

4 Drinks-Bruder does not describe the content of the falsified report in her

complaint. See Docket Item 1. But it seems that Spagnolo reported that Drinks-Bruder

“said [something] to the white female prisoner [that] caused her to take the physical

actions against [Drinks-Bruder].” Docket Item 20 at 9.

In December 2019, Licata told Drinks-Bruder that she “needed a mental

evaluation because of” the November incident.5 Id. at 14. But Drinks-Bruder “refused

an evaluation.” Id. In fact, she found Licata’s suggestion that she was “mental” to be

discriminatory and insulting. Id.; see id. at 55 (alleging that the City used Drinks-

Bruder’s “normal reaction” to “a discriminatory racial hatred incident” to suggest she has

a “mental disorder”).

Nevertheless, Licata and Faso persisted in their attempt to have Drinks-Bruder

take “a mental and physical exam[].” Id. at 15. On January 10, 2020, Drinks-Bruder

“was forced to go to a[n] unscheduled . . . meeting” with no notice. Id. at 36. When she

arrived at Faso’s office, she learned that the meeting was related to the requested

section 72 evaluation. Id. More specifically, the City, Licata, and Faso said that the

meeting was convened because Drinks-Bruder’s “many grievances” raised concerns

that she was “unfit for duty.” Id. But Drinks-Bruder was fit for duty, and there was no

evidence to the contrary. Id. at 43; see id. at 15 (alleging that “no facts were given” to

support the need for a section 72 evaluation).

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 36.

Drinks-Bruder scheduled the section 72 exam because the City and the Police Club told

5 Based on Drinks-Bruder’s other allegations, the Court assumes that Licata

asked Drinks-Bruder to undergo an evaluation under New York Civil Service Law § 72

(“section 72”). See Docket Item 1 at 14-15. 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). The appointing authority must give the

employee “[w]ritten notice of the facts” that are the basis for the examination.” Id. If the

employee is found unfit “to perform the duties of . . . her position,” she “may be placed

on a leave of absence.” Id.

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 true 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,” from Faso. Id. at 36-

37. Lee gave Drinks-Bruder a copy of an email dated January 6, 2020. Id. at 37. That

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

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

the proceeding. Id.

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

section 72 exam, and she was suspended without pay beginning on January 13, 2020.6

See id. at 11. Drinks-Bruder requested an investigation into the circumstances of her

suspension, but her request was denied.7 Id. at 16. Instead, the City initiated

disciplinary proceedings against her under New York Civil Service Law § 75 (“section

75”).8 See id. at 18-19.

6 At some point—Drinks-Bruder does not say when—Faso and Licata took

Drinks-Bruder’s “issued duty weapon for no reason.” Docket Item 1 at 17. The Court

assumes Drinks-Bruder’s weapon was taken when she was suspended.

7 At some point, under the Freedom of Information Law (“FOIL”), Drinks-Bruder

requested “documents that [the City] supposedly [was] using against her” in connection

with the section 72 proceeding. Docket Item 1 at 24-25. But the City “failed to provide”

those documents. Id.; see Docket Item 20 at 12.

8 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)).

II. THE SECTION 75 PROCEEDING

Faso initially told Drinks-Bruder that “she could return to work after [her]

suspension ended in February 2020.”9 Id. at 17. But he later changed his mind when

Mazur “directed” him “not to let [Drinks-Bruder] return to work.” Id. at 12, 17. So every

30 days, Faso “would force” Drinks-Bruder to appear “just to suspend her again for

refusing to” sit for the section 72 exam. Id. at 16. That pattern continued until

December 2021.10 Id. at 17-18. As a result of her suspensions, Drinks-Bruder suffered

financial and professional harm and “emotional stress.” Id. at 24, 44.

In January 2022, Faso sent Drinks-Bruder a letter informing her that she should

“not return to work” and should “attend the scheduled March 2[,] 2022 civil service

[section] 75 hearing.” Id. at 18. The letter also informed Drinks-Bruder that she “would

be removed from the current unpaid leave” and “placed on administrative leave.” Id.

III. USE OF ACCRUED VACATION DAYS

From April 9 to May 4, 2020—early in the period of Drinks-Bruder’s suspension—

Lee “falsif[ied] records” and used 18 of Drinks-Bruder’s “accrued [vacation] days to pay

[her] without [her] authorization[,] which he needed.” Id. at 20, 52-53. Drinks-Bruder

believed that she “was to get paid by the state through unemployment” during that

period because Mazur and Faso had told her she “could not return to work in April

9 Technically, Corcoran was “in charge” of the section 72 proceeding and section

75 proceeding. Docket Item 1 at 19. But “[a]ll [he] did was . . . agree[] with [Faso’s]

unlawful actions.” Id.

10 In September 2021, Corcoran filed a complaint against Drinks-Bruder alleging

that she “refused” to “undergo a medical and mental health evaluation” fourteen times.

Docket Item 20 at 15.

2020.” Id. at 53. Mazur “knew” that Lee and Faso used Drinks-Bruder’s “accrued days

to pa[y] [her] illegally.” Id. at 12-13.

In April 2021, the City and the Police Club “acknowledged” that “what they did”

with the accrued vacation days was “incorrect.” Id. at 50-51. But using Drinks-Bruder’s

vacation days was intentional, not a “misunderstanding.” Id. at 52. And Lee, Faso, and

Mazur knew “the correct information.” Id.

IV. NEGOTIATIONS WITH THE CITY

At some point in 2022, Drinks-Bruder and the City—apparently represented by

Mazur, see id. at 12—reached an agreement to settle one of her discrimination claims,

id. at 9-10. The City verbally agreed to pay Drinks-Bruder approximately $15,000, but it

then “refused to sign” the settlement agreement because Drinks-Bruder “refused to

accept an unlawful decertification” by Faso.11 Id.

The City and Drinks-Bruder next discussed a “global settlement” that would

require Drinks-Bruder to “drop all possible charges against the City,” but that settlement

“would not remove the unlawful decertification.” Id. at 10. The City indicated that it

“would not deal in good faith” unless Drinks-Bruder “admitted” that her claims were the

result of “a misunderstanding.” Id. at 53. And it refused to include in the terms of the

settlement “another benefit” Drinks-Bruder was “eligible for,” “the 341(j).”12 Id. at 53-54.

So Drinks-Bruder and the City could not reach an agreement to resolve her claims. Id.

11 The Court assumes that Drinks-Bruder is referring to her termination. See

Docket Item 16-1 at 5 (explaining that “[t]he City terminated [Drinks-Bruder] in 2022”).

12 Under New York Retirement & Social Security Law § 341(j), retiring state

employees may receive “credit for each day of accumulated unused sick leave” in

certain circumstances.

V. OTHER ALLEGATIONS

The complaint includes several other scattered allegations.

Corcoran “harassed” Drinks-Bruder “many times”: He “t[ook] away” her overtime

and “g[ave] it” to others, told her that she “pisses him off” and swore at her, threatened

her with “rep[e]rcussions,” and punished her for the actions of her co-workers. Id. at 19.

In July 2019, Granto “forced” Drinks-Bruder to work in dangerous conditions “with

the mentally ill at Niagara Falls Memorial Medical Center.” Id. at 23. Lee “agreed” that

Drinks-Bruder must work in those conditions. Id. at 21. Drinks-Bruder was told “to

shoot [the patients] if [she] had to” protect herself because “[o]nly the medical staff were

allowed the keys” to open the “locked rooms that held the mentally ill.” Id. at 23-24. But

in 2021, she learned that “three white officers . . . each had a key . . . to safely exit the

locked room[s].” Id.

Lee “allowed” Drinks-Bruder’s yearly “uniform allowance” of $1,600 “to be taken

away” and told her “it was now part of [her] salary.” Id. at 21. At some point, Lee “lied

to a sheriff” and “stop[ped] court papers from going to the right party.” Id.

In addition, the City “allow[ed] a white male police officer [to return] to work from

a paid administrative leave . . . after he was charged for domestic violence.” Id. at 11.

Similarly, the City and the Police Club failed to follow “proper procedures” with Drinks-

Bruder—something that “they do not do with white parties.” Id. at 51-52.

PROCEDURAL BACKGROUND

Drinks-Bruder pursued her grievances and complaints through the administrative

process, but they were not resolved to her satisfaction. See id. at 43 (alleging that

Drinks-Bruder reported “unlawful actions” to the New York State Public Employment

Relations Board and the New York State Division of Human Rights (“NYSDHR”), that

her reports were not “fully addressed,” and that “discrimination is allowed to continue”).

More specifically, on January 8, 2021, Drinks-Bruder filed a charge with the NYSDHR

and the Equal Opportunity Employment Commission (“EEOC”). Id. at 3, 33. She listed

as respondents the City, Licata, and Faso. See id. at 30. Drinks-Bruder amended her

administrative charge on March 4, 2021, id. at 47, and April 5, 2021, id. at 32.

Eventually, the NYSDHR “found . . . probable cause against” the City. Id. at 10.

It suggested scheduling a hearing in January 2023, but due to the financial hardship she

was suffering, Drinks-Bruder “ask[ed] for a right to sue letter” so she could pursue her

claims in federal court. Id. So on June 28, 2022, the EEOC dismissed Drinks-Bruder’s

charge for that reason. Id. at 28. A few months later, Drinks-Bruder commenced this

action.

LEGAL PRINCIPLES

“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) (citation omitted).

DISCUSSION

The defendants argue that Drinks-Bruder’s complaint must be dismissed in full.

Docket Items 15-1 and 16-1. In response, Drinks-Bruder says that all her claims

survive, but she largely fails to address the defendants’ arguments. See Docket Items

20 and 21. Instead, she asserts that she “will provide” proof of her allegations “during

discovery,” Docket Item 20 at 2, 4; makes conclusory allegations of unlawful conduct

without factual details, see, e.g., id. at 2 (“The facts are supported by the actions of the

defendants who are all white against me who is a [B]lack person.”); id. at 8 (“I was

denied everything while all other white employees who requested would receive it even

if I had seniority.”); id. at 11 (“Every day I went to work I was discriminated against in

some[ ]way.”); Docket Item 21 at 2 (“[The defendants discriminated] against me

because I am a [B]lack female who wanted to be treated equally and fairly and they did

not want that.”); and complains about the conduct of one of the defense attorneys,

Docket Item 21 at 2-7.13

For the reasons that follow, some of Drinks-Bruder’s claims survive, other claims

are dismissed, and the remaining claims are subject to dismissal.

13 She also requests oral argument. Docket Item 20 at 6. That request is denied.

I. TITLE VII

Title VII prohibits employers from discriminating against employees based on

race, color, religion, sex, or national origin. 42 U.S.C. § 2000e et seq. It also prohibits

retaliation when an employee opposes such discrimination. Id.

A. Individual Defendants

Although the complaint is unclear, the Court assumes that Drinks-Bruder asserts

Title VII claims against Restaino, Mazur, Licata, Faso, Corcoran, Granto, Spagnolo,

Lee, and Kerfoot (the “individual defendants”) in their official and individual capacities.

See Docket Item 1. Both sets of claims fail.

First, “[a] suit for damages against a municipal officer in [his] official capacity is

the equivalent of a damage suit against the municipality itself.” Escobar v. City of New

York, 2007 WL 1827414, at *3 (E.D.N.Y. June 25, 2007) (emphasis omitted) (citing Will

v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)). “Based upon the understanding

that it is duplicative to name both a government entity and the entity’s employees in

their official capacity, courts have routinely dismissed corresponding [Title VII] claims

against individuals named in their official capacity as redundant and an inefficient use of

judicial resources.” Id. (citation and internal citation marks omitted); see Emmons v.

City Univ. of N.Y., 715 F. Supp. 2d 394, 410-11 (E.D.N.Y. 2010) (dismissing official-

capacity Title VII claims against individual defendants as “redundant” and noting that

“[a]lthough the Second Circuit has not yet explicitly decided the issue, many recent

decisions in this Circuit have rejected Title VII official[-]capacity claims” (citations and

internal quotation marks omitted)). Because Drinks-Bruder has sued the City itself, her

official-capacity Title VII claims against its employees and officers are duplicative.

Therefore, in the interest of judicial economy, the official-capacity Title VII claims

against the individual defendants are dismissed without leave to amend.

Second, “[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)). In other words, defendants in

their individual capacities cannot be held liable for violating Title VII. Id. Drinks-

Bruder’s individual-capacity Title VII claims against the individual defendants therefore

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

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

Because Drinks-Bruder’s Title VII claims against the individual defendants are

dismissed without leave to amend, the Court considers only the City’s additional

arguments for dismissal of Drinks-Bruder’s Title VII claims.

B. Failure to Exhaust

“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 charge] 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 City argues that Drinks-Bruder’s Title VII claims are “barred to the extent

[they are] based on incidents or events that were not alleged in her administrative

[charge].” Docket Item 15-1 at 18-19. It specifically says that Drinks-Bruder could not

possibly have exhausted her Title VII claims based on events that occurred after

January 8, 2021—the day she filed her administrative charge. Id. But the Court finds

that because the post-January 2021 conduct about which Drinks-Bruder complains

resulted from her refusal to undergo a section 72 evaluation, it is reasonably related to

the allegations in the administrative charge. That conduct therefore would “fall within

the scope” of an investigation into the allegations in Drinks-Bruder’s administrative

charge, which focused on the section 72 proceeding and subsequent events. See

Littlejohn, 795 F.3d at 322. For that reason, claims directly arising from that conduct

need not have been included in Drinks-Bruder’s initial administrative charge.

Drinks-Bruder’s Title VII claims against the City therefore are not subject to

dismissal for failure to exhaust administrative remedies.

C. Timeliness

“A plaintiff seeking to assert an [employment] discrimination claim must first file

an administrative charge with the EEOC or an equivalent agency within three hundred

days after the alleged unlawful employment practice.” Zabar v. N.Y.C. Dep’t of Educ.,

2020 WL 2423450, at *4 (S.D.N.Y. May 12, 2020) (citation and internal quotation marks

omitted). “Failure to do so renders the claim time[ ]barred.” Id. (citation omitted); see

Davis-Garett v. Urban Outfitters, Inc., 921 F.3d 30, 42 (2d Cir. 2019) (“[G]enerally[,] if [a]

plaintiff [alleging a federal employment discrimination claim] has initially filed an

administrative claim in a state whose laws prohibit such discrimination, the limitations

period for filing an action is 300 days after the alleged unlawful practice.”).

The Supreme Court has distinguished between two different types of “unlawful

employment practice[s]”: “discrete discriminatory acts and hostile work environment

claims.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002). “Discrete

acts of discrimination include ‘termination, failure to promote, denial of transfer, or

refusal to hire,’ as well as disciplinary actions such as suspensions and the denial of

training.” Ellis v. Delphi Corp., 2009 WL 3671371, at *3 (W.D.N.Y. Oct. 29, 2009) (citing

Morgan, 536 U.S. at 114). The statute of limitations is “strictly enforced” for such claims

and applies “to each discrete act of alleged discrimination.” Id. at *2-3. A hostile work

environment claim, on the other hand, “is a wholly separate cause of action designed to

address other types of work[]place behavior, like constant jokes and ridicule or physical

intimidation.” Hughes v. Xerox Corp., 37 F. Supp. 3d 629, 648 (W.D.N.Y. 2014)

(citation and emphasis omitted). Unlike “discrete acts, a single act of harassment may

not be actionable on its own.” McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 75 (2d

Cir. 2010) (quoting Morgan, 536 U.S. at 115).

The statute of limitations operates differently for claims based on discrete

adverse employment actions and those based on a hostile work environment. See

Morgan, 536 U.S. at 122. For claims based on discrete acts, “[e]ach discrete

discriminatory act starts a new clock for filing charges alleging that act.” Id. at 113.

“The charge, therefore, must be filed within the . . . 300-day time period after the

discrete discriminatory act occurred.” Id. “A charge alleging a hostile work environment

claim, however, will not be time barred so long as all acts which constitute the claim are

part of the same unlawful employment practice and at least one act falls within the

[limitations] time period.” Id. at 122.

The City argues that because Drinks-Bruder filed her administrative charge on

January 8, 2021, her claims based on events that occurred before March 14, 2020—

300 days earlier—are untimely. Docket Item 15-1 at 18. Drinks-Bruder responds that

all her claims are timely under the continuing violation doctrine. Docket Item 20 at 8-9.

But the continuing violation doctrine simply does not apply to discrimination and

retaliation claims. See Morgan, 536 U.S. at 113. Accordingly, Drinks-Bruder’s Title VII

discrimination and retaliation claims must be based on events that occurred on or after

March 14, 2020. On the other hand, Drinks-Bruder may attempt to state a Title VII

hostile work environment claim based on events that occurred before that date if those

events are “part of [an] unlawful employment practice” that continued until at least

March 14, 2020. See id. at 122.

D. Failure to State a Claim

1. Racial Discrimination

To state a prima facie case of racial discrimination under Title VII, a 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.” Littlejohn, 795 F.3d at 307. If the plaintiff meets

her burden, the defendant is presumed to have unlawfully discriminated against her,

and the burden 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.

The City argues that Drinks-Bruder has failed to state a prima facie case of Title

VII race discrimination because (1) she does not allege that she suffered an adverse

employment action and (2) her allegations do not “giv[e] rise to an interference of

discrimination.” Docket Item 15-1 at 13-17.

a. Adverse Employment Action

An adverse employment action is “a materially significant disadvantage with

respect to the terms of the plaintiff’s employment.” Littlejohn, 795 F.3d at 312 n.10

(alterations, citation, and emphasis omitted). An action must be “more disruptive than a

mere inconvenience or an alteration of job responsibilities” to be adverse. Id. (citation

omitted). “Examples of materially significant disadvantages include termination,

demotion, a less distinguished title, a material loss of benefits, or significantly

diminished material responsibilities.” Id. (alternations, citation, and internal quotation

marks omitted).

According to the City, Drinks-Bruder alleges only “a variety of workplace

incidents and interactions, none of which meet the standard for [a] materially adverse

action.” Docket Item 15-1 at 13-17. Indeed, the vast majority of Drinks-Bruder’s

allegations—including her allegations that the defendants failed to adequately address

her grievances, that she was given dangerous assignments, and that Corcoran yelled at

her—clearly are not adverse actions. See Littlejohn, 795 F.3d at 312 n.10. Nor is the

request that Drinks-Bruder undergo a section 72 evaluation. Cf. Baum v. County of

Rockland, 337 F. Supp. 2d 454, 473-74 (S.D.N.Y. 2004) (finding that allegedly

“baseless” request for section 72 exam was not an adverse employment action under

Age Discrimination in Employment Act and Americans with Disability Act), aff’d, 161 F.

App’x 62 (2d Cir. 2005) (summary order).

The only allegations that even arguably rise to the level of an adverse action are

Drinks-Bruder’s suspension and, perhaps, the defendants’ misuse or denial of certain

benefits. But even assuming that those are adverse actions, Drinks-Bruder still has not

plausibly alleged that those actions were motivated by her race.

b. Inference of Discriminatory Motivation

A plaintiff alleging racial discrimination under Title VII “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). “An inference of discrimination can arise from circumstances including, but not

limited to, [1] ‘the employer’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).

While the complaint mentions Drinks-Bruder’s race or the races of other

individuals several times, all allegations of discriminatory motivation are conclusory. For

example, Drinks-Bruder suggests that she was asked to undergo a section 72

evaluation because she is Black, but she provides no details to support that allegation,

such as comments about her race made by her co-workers or supervisors.14 Nor does

14 In her response, Drinks-Bruder alleges that in December 2019, she told her

supervisors that she “ha[s] been called a n[*****] before by . . . inmates[ and] citizens

she sufficiently allege that white employees were treated differently than she was

treated. Rather, she vaguely alleges that white NFPD officers were given privileges or

benefits she was denied without providing any details suggesting she and those officers

were similarly situated. What is more, Drinks-Bruder’s allegations make clear that she

was suspended and denied benefits because she refused to undergo a section 72

evaluation, not because she is Black.

In short, Drinks-Bruder gives this Court no reason—other than her own say-so—

to think the defendants discriminated against he based on her race. And her own say-

so, bereft of any factual support, does not suffice to state a claim. Drinks-Bruder’s Title

VII race discrimination claim therefore is subject to dismissal.

2. Retaliation

To establish a prima facie case of retaliation under Title VII, “a plaintiff must

demonstrate that (1) she engaged in protected activity; (2) the employer was aware of

that activity; (3) the employee suffered a materially adverse action; and (4) there was a

causal connection between the protected activity and that adverse action.” Kelly v.

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

(citation and internal quotation marks omitted). “‘Protected activity’ includes opposition

to a discriminatory employment practice.” Hubbard v. Total Commc’ns., Inc., 347 F.

App’x 679, 680-81 (2d Cir. 2009) (summary order).

and dealt with it,” but that “it is different” “when your co[-]worker is involved.” Docket

Item 20 at 9. But she does not allege that any of her co-workers directed racial slurs at

her or even that they encouraged prisoners to do so. See id.

The City argues that Drinks-Bruder “fails to identify any protected activity that she

engaged in” or “any connection between any [allegedly] protected activity and an

adverse employment action.” Docket Item 15-1 at 12. More specifically, it says that the

only protected activity she alleges is “the filing of her administrative [charge]” on

January 8, 2021, and that “she makes no allegations of retaliatory conduct that resulted

from her filing that administrative [charge].” Id.

Drinks-Bruder responds that the City “threaten[ed]” that she “would lose benefits

plus [her] medical insurance” if she “did not drop [her] complaints and just retire.”

Docket Item 20 at 4. That seems to be a reference to her 2022 settlement negotiations

with the City, in which the City refused to reach an agreement unless Drinks-Bruder

withdrew her complaints. See Docket Item 1 at 9-10, 53-54. That allegation raises a

plausible prima facie case of retaliation: Drinks-Bruder alleges that the City threatened

her with “a material loss of benefits” unless she withdrew her protected administrative

charge.15 See Littlejohn, 795 F.3d at 312 n.10.

Because the City has not offered a non-retaliatory reason for that alleged threat,

Drinks-Bruder’s Title VII retaliation claim against the City may proceed.

3. Hostile Work Environment

“Under Title VII, an employee seeking to bring a hostile work environment claim

must show [1] that she . . . is a member of a protected class; [2] that she suffered

15 The City replies that it “is entirely false” that Drinks-Bruder was unable to retire

as a result of the settlement negotiations. See Docket Item 29 at 7-8. But at this stage,

the Court must view the facts—including Drinks-Bruder’s allegation that the City

threatened to withhold benefits unless she withdrew her administrative charge—in the

light most favorable to Drinks-Bruder.

unwelcome harassment; [3] that she was harassed because of her membership in a

protected class; and [4] that the harassment was sufficiently severe or pervasive to alter

the conditions of employment and create an abusive work environment.” Monterroso v.

Sullivan & Cromwell, LLP, 591 F. Supp. 2d 567, 584 (S.D.N.Y. 2008). “This test has

objective and subjective elements: the misconduct shown must be ‘severe or pervasive

enough to create an objectively hostile or abusive work environment,’ and the victim

must also subjectively perceive that environment to be abusive.” Alfano v. Costello, 294

F.3d 365, 374 (2d Cir. 2002) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21

(1993)). Courts look at the totality of the circumstances and examine factors including

“the frequency of the discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and whether it unreasonably

interferes with an employee’s work performance.” Harris, 510 U.S. at 23.

The City argues that Drinks-Bruder fails to state a Title VII hostile work

environment claim because she “does not allege a single comment or action . . . that

had anything to do with her race.” Docket Item 15-1 at 11. And the City says that

regardless, “none of the conduct alleged . . . is sufficiently severe or pervasive enough

that a reasonable person would find it hostile or abusive.” Id.

Even assuming that the conduct Drinks-Bruder alleges was sufficiently severe,

her hostile work environment claim fails because, as discussed, she has not plausibly

alleged any connection between her race and the defendants’ conduct. See infra at 17-

18. Rather, she makes only conclusory allegations that the defendants treated her

badly because of her race. In other words, she has not raised an inference that she

was “harassed because of her membership in a protected class.” See Monterroso, 591

F. Supp. 2d at 584.

Drinks-Bruder’s Title VII hostile work environment claim therefore is subject to

dismissal.

II. SECTION 1983 CLAIMS (DUE PROCESS)

Drinks-Bruder alleges that she has a viable section 1983 claim because the

defendants violated her right to due process. Docket Item 1 at 4.

“To state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the

challenged conduct (1) was attributable to a person acting under color of state law, and

(2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or

laws of the United States.” Whalen v. County of Fulton, 126 F.3d 400, 405 (2d Cir.

1997) (citing Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)). To establish

liability against a government official under section 1983, “a plaintiff must plead and

prove ‘that each Government-official defendant, through the official’s own individual

actions, has violated the Constitution.’” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d

Cir. 2020) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)).

A. Failure to State a Claim

“The Due Process Clause is violated when a claimant is deprived of a protected

liberty or property interest without adequate process.” Tooly v. Schwaller, 919 F.3d

165, 172 (2d Cir. 2019). “Constitutional due process requires, prior to being deprived of

a significant property interest such as permanent civil service employment: (1) ‘oral or

written notice of the charges against the employee’; (2) ‘an explanation of the

employer’s evidence’; and (3) ‘an opportunity to present the employee’s side of the

story’ and ‘to present reasons, either in person or in writing, why the proposed action

should not be taken.’” Coles v. Erie County, 629 F. App’x 41, 43 (2d Cir. 2015)

(summary order) (alterations omitted) (quoting Cleveland Bd. of Educ. v. Loudermill,

470 U.S. 532, 546 (1985)).

To evaluate whether a plaintiff received due process, one of two standards

may apply. If the deprivation is the result of “unauthorized acts by state

employees,” the Fourteenth Amendment is not violated “so long as the State

provides a meaningful post-deprivation remedy.” If the deprivation “occurs

in the more structured environment of established State procedures, rather

than random acts, the availability of post-deprivation procedures will not,

ipso facto, satisfy due process.”

Langton v. Town of Chester, 168 F. Supp. 3d 597, 606 (S.D.N.Y. 2016) (quoting

Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 880 (2d

Cir. 1996). For purposes of determining which of those two standards apply, “acts of

high-ranking officials who are ultimate decision-maker[s] and have final authority over

significant matters, even if those acts are contrary to law, should not be considered

random and unauthorized conduct for purposes of a procedural due process analysis.”

Mullen v. Village of Painted Post, 356 F. Supp. 3d 275, 282 (W.D.N.Y. 2019) (quoting

Rivera-Powell v. N.Y.C. Bd. of Elections, 470 F.3d 458, 465 (2d Cir. 2006)). In other

words, if a due process claim arises from the acts of high-ranking officials with decision-

making authority, the second standard applies and the mere availability of post-

deprivation procedures does not satisfy due process.

The defendants argue that “it is entirely unclear exactly how [Drinks-Bruder]

believes her due process rights were violated.” Docket Item 15-1 at 19. But mindful of

its obligation to construe pro se complaints liberally, see Triestman v. Fed. Bureau of

Prisons, 470 F.3d 471, 474 (2d Cir. 2006), the Court assumes that Drinks-Bruder

intends to assert that the defendants failed to provide her due process when they

suspended—and ultimately terminated—her under section 75 for her refusal to undergo

a section 72 evaluation.

“The Second Circuit recognizes that continued public employment covered by

[section] 75 gives rise to a property interest protected by the Due Process Clause.”

Marentette v. City of Canandaigua, 351 F. Supp. 3d 410, 418-19 (W.D.N.Y. 2019)

(collecting cases). The defendants argue that a due process claim based on the section

72 and section 75 proceedings “necessarily fails because of the availability of post-

deprivation review pursuant to Article 78.”16 Docket Item 15-1 at 20.

That argument is unconvincing. Drinks-Bruder alleges that Faso—then the Chief

of the NFPD—and her other supervisors were responsible for the section 72 and

section 75 proceedings and her eventual termination. See Docket Item 1 at 9-10, 19.

Faso, as Chief, presumably had “final decision-making authority regarding [Drinks-

Bruder’s] employment” because her termination was not a “random and unauthorized”

act. See Mullen, 356 F. Supp. 3d at 282. “Accordingly, a post-deprivation procedural

safeguard such as an Article 78 proceeding does not automatically satisfy due process.”

Id. (citation and internal quotation marks omitted).

At this early stage, the Court accepts as true Drinks-Bruder’s allegation that she

was not provided sufficient evidence of the facts giving rise to the section 72

proceeding. See Docket Item 1 at 15, 43. That allegation raises a plausible due

process claim. See Coles, 629 F. App’x at 43.

16 “Under New York law, Article 78 of the Civil Practice Law and Rules . . .

establishes a streamlined process for challenging the determinations of public bodies

and administrative agencies.” Doe v. New York University, 537 F. Supp. 3d 483, 490

(S.D.N.Y. 2021).

Drinks-Bruder’s due process claim therefore may proceed.

B. Individual Defendants

The individual defendants argue that the section 1983 claims against them fail

because (1) they are not state actors, Docket Item 16-1 at 13; (2) they are entitled to

qualified immunity, Docket Item 15-1 at 23-24; and (3) certain individual defendants

were not personally involved in the conduct at issue, id. at 25-26.

First, the individual defendants—who were employed by the City at the time of

the events at issue and interacted with Drinks-Bruder in their capacities as City

employees—cite no authority to support their conclusory argument that they “are not

state actors and were not acting under the color of law.” See Docket Item 16-1 at 13.

Second, the Court finds that a qualified immunity argument is premature at this early

stage. See McKenna v. Wright, 386 F.3d 432, 434, 436 (2d Cir. 2004) (noting that a

motion to dismiss on qualified immunity grounds “may be granted only where it appears

beyond doubt that the plaintiff can prove no set of facts in support of his claim that

would entitle him to relief” (citation and internal quotation marks omitted)); Wesley v.

Campbell, 779 F.3d 421, 433-34 (6th Cir. 2015) (“Although an officer’s entitlement to

qualified immunity is a threshold question to be resolved at the earliest possible point,

that point is usually summary judgment and not dismissal under Rule 12.” (alterations,

citations, and internal quotation marks omitted)); Newland v. Reehorst, 328 F. App’x

788, 791 n.3 (3d Cir. 2009) (“We caution, however, that it is generally unwise to venture

into a qualified immunity analysis at the pleading stage . . . .”).

But Drinks-Bruder has not alleged that most of the individual defendants were

personally involved in the decision to suspend and terminate her. See generally Docket

Item 1. In fact, the only individual defendants alleged to have been involved were Faso,

Licata, and Corcoran. See id. Drinks-Bruder’s due process claims against Restaino,

Mazur, Granto, Spagnolo, Lee, and Kerfoot therefore are subject to dismissal.

III. NYSHRL CLAIMS

Like Title VII, the NYSHRL prohibits employment discrimination as well as

retaliation against employees who oppose such discrimination. N.Y. Exec. Law § 296.

A. Failure to State a Claim

Generally, “[e]mployment discrimination claims brought under the NYSHRL are

analyzed identically to claims under . . . Title VII.” Brennan v. Metro. Opera Ass’n, Inc.,

192 F.3d 310, 316 n.2 (2d Cir. 1999). The exception is NYSHRL hostile work

environment claims, which require a plaintiff to show that she was subjected to “inferior

terms, conditions[,] or privileges of employment because of [her] membership in one or

more . . . protected categories.” N.Y. Exec. Law § 296(1)(h).

For the reasons stated above, Drinks-Bruder has stated a retaliation claim under

the NYSHRL. See supra at 18-19; see also Soloviev v. Goldstein, 104 F. Supp. 3d 232,

251 (E.D.N.Y. 2015) (articulating standard for retaliation claim under both Title VII and

the NYSHRL). But she has failed to state a race discrimination claim under the

NYSHRL, see supra at 15-18, as well as a state law hostile work environment claim,

see supra at 19-21—even considering the NYSHRL’s more lenient standard.

B. Election of Remedies

The defendants argue that Drinks-Bruder’s NYSHRL claims are barred by the

election of remedies doctrine. Docket Item 16-1 at 14-15; see N.Y. Exec. Law § 297(9)

(“Any person claiming to be aggrieved by an unlawful discriminatory practice shall have

a cause of action in any court . . . unless such person has filed a complaint . . . with any

local commission on human rights . . .” (emphasis added)). But that doctrine applies

only when an administrative agency dismisses a charge on the merits, see N.Y. Exec.

Law § 297(9), which the NYSDHR did not do here, see Docket Item 1 at 10. So it

seems that the election of remedies doctrine does not bar Drinks-Bruder’s claims here.

C. Individual Defendants

Finally, the individual defendants argue that they cannot be held liable under the

NYSHRL. Docket Item 15-1 at 25-26; Docket Item 16-1 at 13-14.

“Historically, under the NYSHRL, liability for employment discrimination could be

imposed on an individual if the individual qualifies as an ‘employer.’” Belyea v. City of

Glen Cove, 2023 WL 1929787, at *2 (E.D.N.Y. Feb. 10, 2023) (internal quotation marks

omitted) (collecting cases). “In a recent opinion, however, the New York Court of

Appeals clarified that the NYSHRL ‘does not render employees liable as individual

employers.’” Bonaffini v. City Univ. of N.Y., 2021 WL 2895688, at *2 (E.D.N.Y. July 9,

2021) (quoting Doe v. Bloomberg, L.P., 36 N.Y.3d 450, 457, 143 N.Y.S.3d 286, 291

(2021)). “Nevertheless, . . . the NYSHRL . . . offer[s] a second type of individual

liability”: An individual may be held liable for aiding, abetting, inciting, compelling, or

coercing the doing of a prohibited act. Id. (citing N.Y. Exec. Law § 296(6)).

Here, Drinks-Bruder’s only surviving NYSHRL claim is based on the City’s

alleged threat to deny her benefits unless she withdrew her complaints. Drinks-Bruder

did not allege that any of the individual defendants were involved in that conduct in any

way. See generally Docket Item 1. Her NYSHRL claims against the individual

defendants therefore are subject to dismissal because she has not plausibly alleged

that those defendants aided or abetted that conduct.

IV. PUNITIVE DAMAGES

Finally, the defendants argue that Drinks-Bruder’s claim for punitive damages

must be dismissed. Docket Item 15-1 at 27. “Although punitive damages are not

available against municipalities or against individuals sued in their official capacities,

punitive damages may be awarded against defendants sued in their individual

capacities.” Lin v. County of Monroe, 66 F. Supp. 3d 341, 362 (W.D.N.Y. 2014) (citation

omitted). Drinks-Bruder’s punitive damages claims against the City and against the

individual defendants in their official capacities therefore are dismissed without leave to

amend. But her punitive damages claims against the individual defendants survive to

the extent she has pleaded otherwise viable claims against those defendants.

V. LEAVE TO AMEND

Generally, the court will afford a pro se plaintiff an opportunity to amend or to be

heard prior to dismissal “unless the court can rule out any possibility, however unlikely it

might be, that an amended complaint would succeed in stating a claim.” Abbas v.

Dixon, 480 F.3d 636, 639 (2d Cir. 2007); see also Cuoco, 222 F.3d at 112 (“A pro se

complaint is to be read liberally. Certainly the court should not dismiss 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.” (quoting Gomez v. USAA Fed. Sav. Bank,

171 F.3d 794, 795 (2d Cir. 1999))). But leave to amend pleadings may be denied when

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

Drinks-Bruder requests leave to amend her complaint “if needed.” Docket Item

20 at 13. In light of the above, Drinks-Bruder is granted leave to amend the following

claims: (1) her failure to accommodate claim; (2) her Title VII race discrimination claim

against the City; (3) her Title VII hostile work environment claim against the City; (4) her

due process claim against Restaino, Mazur, Granto, Spagnolo, Lee, and Kerfoot; (5) her

NYSHRL race discrimination claim; (6) her NYSHRL hostile work environment claim;

and (7) her NYSHRL retaliation claim against Restaino, Mazur, Licata, Faso, Corcoran,

Granto, Spagnolo, Lee, and Kerfoot.

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

replace the prior complaint in the action and thus “renders [any prior complaint] of no

legal effect.” Int’l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977); see also

Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994). Therefore, any

amended complaint must include all allegations against each of the defendants.

Drinks-Bruder also is advised that she if she “hold[s] back and purposely

submit[s] a deficient pleading,” see Docket Item 29 at 3, many of her claims will not

proceed. The amended complaint must plead specific facts that correct the deficiencies

identified in this decision. Otherwise, the claims listed above will be dismissed.

CONCLUSION

For the reasons stated above, the defendants’ motions to dismiss, Docket Items

15 and 16, are GRANTED in part and DENIED in part. The following claims may

proceed: (1) the Title VII retaliation claim against the City; (2) the due process claims

against the City, Faso, Licata, and Corcoran; (3) the NYSHRL retaliation claim against

the City; and (4) the punitive damages claims against Faso, Licata, and Corcoran. The

following claims are dismissed without leave to amend: (1) all Title VII claims against

Restaino, Mazur, Licata, Faso, Corcoran, Granto, Spagnolo, Lee, and Kerfoot; and (2)

the punitive damages claims against the City and the individual defendants in their

official capacities. And the following claims will be dismissed unless Drinks-Bruder files

an amended complaint addressing the deficiencies noted above: (1) the failure to

accommodate claim; (2) the Title VII race discrimination claim against the City; (3) the

Title VII hostile work environment claim against the City; (4) the due process claim

against Restaino, Mazur, Granto, Spagnolo, Lee, and Kerfoot; (5) the NYSHRL race

discrimination claim; (6) the NYSHRL hostile work environment claim; and (7) the

NYSHRL retaliation claim against Restaino, Mazur, Licata, Faso, Corcoran, Granto,

Spagnolo, Lee, and Kerfoot.

Drinks-Bruder may amend the complaint within 45 days of the date of this

order, and the defendants shall respond to any amended complaint within 30 days of

the date it is filed. If Drinks-Bruder does not amend the complaint, the City, Faso,

Licata, and Corcoran shall answer the complaint within 75 days of the date of this order,

and the Clerk of the Court shall terminate Restaino, Mazur, Granto, Spagnolo, Lee, and

Kerfoot as defendants.

SO ORDERED.

Dated: March 13, 2024

Buffalo, New York

/s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE