# Gill-Drayton v. New York State Education Department

> District Court, S.D. New York · March 20, 2025

URL: https://www.frixlaw.com/law-library/cases/10828875

## Case

- **Court:** District Court, S.D. New York
- **Decided:** March 20, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10828875

## How later opinions describe it (automated extraction)

- stating that a plaintiff opposing summary judgment must produce “substantial evidence of fraud, deceitful action, or dishonest conduct, or evidence of discrimination that is intentional, severe, and unrelated to legitimate [union] objectives” (quotations omitted)
- declining to exercise supplemental jurisdiction where “th[e] case remains in its initial stages, and the [p]arties have not yet proceeded to discovery”
- holding that a “dispute [that] involves allegations of employment discrimination . . . [is] clearly governed by Title I of the ADA”
- affirming that a new constitutional challenge raised in opposition briefing was properly dismissed because the complaint did not “encompass that claim.”

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

LORI A. GILL-DRATYON,

Plaintiff,

v.
No. 23-CV-10259 (KMK)

NEW YORK STATE EDUCATION
ORDER & OPINION
DEPARTMENT, MOUNT VERNON CITY
SCHOOL DISTRICT, CRYSTAL
WATERMAN, and KEITH MCCALL,

Defendants.

Appearances:

Lori A. Gill-Drayton
Bronx, NY
Pro se Plaintiff

Elizabeth Renee McCullough-Sanden, Esq.
New York Office of Attorney General
New York, NY
Counsel for Defendant New York State Education Department

Eric James Marshall, Esq.
Law Office of Eric J. Marshall
New York, NY
Counsel for Defendants Mount Vernon City School District, Crystal Waterman, and Keith
McCall (in his individual capacity)

Ximena Castro, Esq.
Gregory Ainsley, Esq.
New York State United Teachers Office of General Counsel
New York, NY
Counsel for Defendant Keith McCall (in his capacity as a union official)
KENNETH M. KARAS, United States District Judge:
Lora A. Gill-Drayton (“Plaintiff”), proceeding pro se, brings this Action against the New
York State Education Department (“NYSED”), the Mount Vernon City School District (“Mount
Vernon”), Dr. Crystal Waterman (“Waterman”), and Keith McCall (“McCall”)1 (collectively,
“Defendants”), alleging discrimination for failure to accommodate, retaliation, and hostile work

environment in violation of Titles I and II of the Americans with Disabilities Act of 1993
(“ADA”), 42 U.S.C. § 12101 et seq., the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29
U.S.C. § 701 et seq., Title VII of the Civil Rights Act of 1964 (“Title VII), 42 U.S.C. § 2000e et
seq., and the New York Human Rights Law (“NYSHRL”), N.Y. Exec. Law §§ 290 et seq.2 (See

1 The Court will refer to Mount Vernon, Waterman, and McCall (in his individual
capacity) collectively as “District Defendants.”

2 Defendants argue that, because Plaintiff raises her Rehabilitation Act, Title VII, and
ADA Title II claims only in her opposition briefing, they must be dismissed. (See NYSED
Reply Mem. in Supp. (“NYSED Reply”) (Dkt. No. 37) 5–8; District Defs’ Reply Mem. in Supp.
(“District Reply”) (Dkt. No. 38) 4–5; McCall Reply Mem. in Supp. (“McCall Reply”) (Dkt.
No. 42) 1–4.) While “[a] pro se plaintiff may not raise ‘entirely new’ causes of action for the
first time in [her] opposition papers, . . . the Court may consider new claims appearing for the
first time in briefing if ‘the claims could have been asserted based on the facts alleged in the
complaint.’” Davila v. Lang, 343 F. Supp. 3d 254, 267–68 (S.D.N.Y. 2018) (quoting Vlad-
Berindan v. MTA N.Y.C. Transit, No. 14-CV-675, 2014 WL 6982929, at *5 (S.D.N.Y. 2014)
(citing Rosado v. Herard, No. 12-CV-8943, 2013 WL 6170631, at *3 (S.D.N.Y. Nov. 25,
2013))); see also Lang v. N.Y.C. Health and Hosps. Corp., No. 12-CV-5523, 2013 WL 4774751,
at *4 (S.D.N.Y. Sept. 5, 2013) (considering new claims raised in opposition papers because the
allegations “simply articulat[e] additional claims that [the pro se plaintiff’s] original complaint
could have been construed to allege”) see Mathie v. Goord, 267 F. App’x 13, 14 (2d Cir. 2008)
(affirming that a new constitutional challenge raised in opposition briefing was properly
dismissed because the complaint did not “encompass that claim.”); Mira v. Argus Media, No. 15-
CV-9990, 2017 WL 1184302, at *3 n.4 (S.D.N.Y. Mar. 29, 2017) (declining to review claims
raised in a pro se plaintiff’s opposition briefing because the allegations went “well beyond
merely elaborating on the facts alleged in the Complaint and apparently are intended to support
new legal theories”). Here, Plaintiff’s Rehabilitation Act, Title VII, and ADA Title II claims
could have, and indeed are, asserted based on the facts alleged in the Complaint. Accordingly,
the Court will consider these claims.
generally Compl. (Dkt. No. 1).) Before the Court are Defendants’ Motions to Dismiss. (See
Mount Vernon Not. of Mot. (Dkt. No. 23); NYSED Not. of Mot. (Dkt. No. 29); McCall Not. of
Mot. (Dkt. No. 33).) For the reasons set forth below, the Motions are granted.
I. Background
A. Materials Considered

“‘When considering a motion to dismiss, the Court’s review is confined to the pleadings
themselves,’ because ‘to go beyond the allegations in the Complaint would convert the Rule
12(b)(6) motion into one for summary judgment pursuant to Rule 56.’” Watson v. New York,
No. 22-CV-9613, 2023 WL 6200979, at *1 (S.D.N.Y. Sept. 22, 2023) (alterations adopted)
(quoting Thomas v. Westchester Cnty. Health Care Corp., 232 F. Supp. 2d 273, 275 (S.D.N.Y.
2002)). “Nevertheless, the Court’s consideration of documents attached to, or incorporated by
reference in the Complaint, and matters of which judicial notice may be taken, would not convert
the motion to dismiss into one for summary judgment.” Id.; see also Bellin v. Zucker, 6 F.4th
463, 473 (2d Cir. 2021) (explaining that “when ruling on Rule 12(b)(6) motions to dismiss,”

courts may “consider the complaint in its entirety . . ., documents incorporated into the complaint
by reference, and matters of which a court may take judicial notice” (internal quotation marks
and citation omitted)); Hu v. City of New York, 927 F.3d 81, 88 (2d Cir. 2019) (“In deciding a
Rule 12(b)(6) motion, the court may consider ‘only the facts alleged in the pleadings, documents
attached as exhibits or incorporated by reference in the pleadings[,] and matters of which judicial
notice may be taken.’” (quoting Samuels v. Air Transp. Loc. 504, 992 F.2d 12, 15 (2d Cir.
1993))).
Additionally, when reviewing a complaint submitted by a pro se plaintiff, the Court may
consider “materials outside the complaint to the extent that they are consistent with the
allegations in the complaint,” Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at *4
n.3 (S.D.N.Y. Aug. 2, 2013) (internal quotation marks and citation omitted), including
“documents that a pro se litigant attaches to his opposition papers,” Agu v. Rhea, No. 09-CV-
4732, 2010 WL 5186839, at *4 n.6 (E.D.N.Y. Dec. 15, 2010) (italics and citation omitted),
statements by the plaintiff “submitted in response to [a defendant’s] request for a pre-motion

conference,” Jones v. Fed. Bureau of Prisons, No. 11-CV-4733, 2013 WL 5300721, at *2
(E.D.N.Y. Sept. 19, 2013), “documents either in [the plaintiff’s] possession or of which [the]
plaintiff[] had knowledge and relied on in bringing suit,” Chambers v. Time Warner, Inc., 282
F.3d 147, 153 (2d Cir. 2002) (quotation marks and citation omitted), and “[plaintiff’s] opposition
memorandum,” Gadson v. Goord, No. 96-CV-7544, 1997 WL 714878, at *1 n.2 (S.D.N.Y. Nov.
17, 1997) (citing Gil v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987)).
Because Plaintiff is proceeding pro se, the Court will consider the documents attached to
her Complaint and briefing. See Barkai v. Mendez, 629 F. Supp. 3d 166, 175 (S.D.N.Y. 2022)
(considering exhibits attached to pro se complaint when deciding motion to dismiss); see also

Floyd v. Rosen, No. 21-CV-1668, 2022 WL 1451405, at *3 (S.D.N.Y. May 9, 2022) (considering
exhibits attached to pro se opposition memorandum).
Defendants also attach exhibits to their briefing. While most of these exhibits are
duplicative of those of Plaintiff, some are not. Of those submissions, the Court takes judicial
notice of Plaintiff’s New York State Division of Human Rights (“NYSDHR”) complaint,
(“NYSDHR Charge”) (Dkt. No. 29-4), and a letter from the U.S. Department of Education
Office of Civil Rights (“OCR”) dated August 11, 2023, noting the dismissal of Plaintiff’s
allegations, (Dkt. No. 23-2 at 183–85).3 The Court does not take judicial notice of the following
exhibits attached to Defendants’ briefing: a letter from NYSDHR notifying Mount Vernon of
Plaintiff’s NYSDHR Charge, (id. at 81–93); Mount Vernon’s response to Plaintiff’s NYSDHR
Charge, (id. at 94–182); and doctor’s notes concerning Plaintiff from 2008 (id. 189–92), because
they are not filed by Plaintiff, relied upon by her, or “integral to [her] complaint,” Quarles v.

N.Y.C. Health & Hosps., No. 22-CV-4553, 2023 WL 3880015, at *3 (S.D.N.Y. June 8, 2023)
(quoting Roth v. Jennings, 389 F.3d 399, 509 (2d Cir. 2007)), report and recommendation
adopted, 2023 WL 5321034 (S.D.N.Y. Aug. 18, 2023), such that notice would be proper.
B. Factual Background
The following facts are drawn from the Complaint and additional materials as discussed
above and are assumed true for the purposes of resolving the instant Motions. See Div. 1181
Amalgamated Transit Union-N.Y. Emps. Pension Fund v. N.Y.C. Dep’t of Educ., 9 F.4th 91, 94
(2d Cir. 2021) (per curiam).
Plaintiff has been a teacher in the Mount Vernon since 2002, (Compl. 37), and works at

Edward Williams Elementary School (the “School”), (id. 3). Plaintiff alleges that she suffers
from osteoarthritis and that from 2016 through at least the filing of the Complaint, Defendants
failed to accommodate Plaintiff’s disability because the school “is not handicap accessible.” (Id.
5.) As a result of Plaintiff’s disability and Defendants’ failure to accommodate, “Plaintiff is
hindered in performing professional duties (inaccessibility to significant areas within school) and

3 “The Court may consider Plaintiff’s filings with agencies and any subsequent agency
determination when evaluating the instant Motion[s] because they are all matters of public
record.” Lester v. Mount Pleasant Cottage Sch. Union Free Sch. Dist., No. 19-CV-5247, 2020
WL 3618969, at *4 n.2 (S.D.N.Y. July 2, 2020) (citing Troise v. SUNY Cortland NY, No. 18-CV-
734, 2019 WL 3817387, at *4 (N.D.N.Y. Aug. 14, 2019) (taking judicial notice of the plaintiff’s
NYSDHR complaint, NYSDHR determination, and EEOC’s right-to-sue letter)).
has been ostracized from staff meetings, friendships[,] and conversations.” (Id.) Plaintiff points
to staff events and meetings that she has been unable to attend due to her disability. (See, e.g.,
id. 55 (an email dated April 10, 2023, inviting teachers to cake in the teachers’ lounge); id. 59
(an email dated February 7, 2023, regarding a copy machine malfunction and requesting that
teachers use a copy machine in a different part of the School).)

On January 22, 2019, one of Plaintiff’s students hit her knee with a chair, resulting in
significant pain and swelling. (Id. 37.) On April 30, 2019, Plaintiff had an independent medical
examination in relation to a workers’ compensation claim stemming from the January 22, 2019,
incident. (Id. 38.) According to medical records, from April 12, 2019, to June 28, 2019,
Plaintiff saw a psychotherapist to address “a lot of stress at work” that had been building for
years. (Id. 10–18.)
On October 12, 2020, Plaintiff was examined by a doctor who diagnosed her with
osteoarthritis in her left knee. (Dkt. No. 28-1 at 5.) On April 19, 2023, Plaintiff filed a
complaint with OCR against the Mount Vernon City School District related to the inaccessibility

of the School’s main entrance, second-floor annex, and faculty bathroom. (Compl. 49.) On May
11, 2023, OCR notified Plaintiff that it was opening an investigation into her allegations. (Id.)
On March 28, 2023, Plaintiff filed a complaint with NYSDHR alleging that she had a
“permanent[] disability due to severe knee injuries” for the last ten years. (NYSDHR Charge 4.)
She alleged that the School is not handicap accessible, as evidenced by her inability to bring her
walker into the staff bathroom, which lacks a railing and has a low toilet and heavy door. (Id.)
Plaintiff noted that her mail and the copy machine are on the third floor and that there is no
elevator access. (Id.) Plaintiff also alleges that “the discrimination is clear” as she received an
unfounded poor evaluation from the assistant principal and that Waterman “allowed another
teacher to call the police and force [Plaintiff] to give [her] parking space to another teacher even
though [Plaintiff] [is] the only handicapped staff member.” (Id.) Finally, Plaintiff alleged that
there were many instances of her computer not working “in spite of many work orders submitted
[regarding the computer]” and that she was “left out of numerous committee meetings due to [a
lack of] coverage.” (Id.) Plaintiff also alleges that McCall, “in his capacity as a union official[,]

breached his duty of fair representation when he either ignored meritorious grievances that were
brought to his attention by [] Plaintiff or at times processed [] Plaintiff’s complaint in a
perfunctory manner.” (Pl’s Mem. in Opp. (“Pl’s McCall Opp.”) (Dkt. No. 40) 3.) On August
11, 2023, OCR dismissed Plaintiff’s complaint because of the parallel investigation by
NYSDHR. (See Dkt. No. 23-2 at 183–85.)
In October 2023, Plaintiff notified Waterman via email twice that she was not able to
participate in certain meetings due to her disability, to which Waterman responded that the
meetings would be relocated to accommodate Plaintiff. (See Compl. 51, 60–61.) Plaintiff also
faced “constant technology issues” between September 2023 and November 2023, as evidenced

by emails between Plaintiff, Waterman, and Mount Vernon staff. (See id. 62–68, 71–73.)
On November 1, 2023, Plaintiff received a right to sue from the EEOC dated October 31,
2023. (See Dkt. No. 1-1; Compl. 6.)
B. Procedural Background
Plaintiff initiated this Action on November 20, 2023. (See generally Compl.) On
December 5, 2023, Plaintiff was granted in forma pauperis status. (Dkt. No. 4.) On March 18,
2024, District Defendants filed their Motion. (District Not. of Mot.; District Defs’ Mem. in
Supp. of Mot. (“District Mem.”) (Dkt. No. 23-1).) On March 21, 2024, the Court denied
Plaintiff’s application for pro bono counsel without prejudice. (See generally Dkt. No. 26.) On
March 28, 2024, Plaintiff filed her Opposition to District Defendants’ Motion. (See Pl’s Mem.
in. Opp. (“Pl’s District Opp.”) (Dkt. No. 28).) On April 5, 2024, NYSED filed its Motion.
(NYSED Not. of Mot.; NYSED’s Mem. in Supp. of Mot. (“NYSED Mem.”) (Dkt. No. 29-1).)
On April 26, 2024, McCall filed his Motion. (See McCall Not. of Mot.; McCall’s Mem. in Supp.
of Mot. (“McCall Mem.”) (Dkt. No. 33-3).) On May 2, 2024, Plaintiff filed her Opposition to

NYSED. (See Pl’s Mem. in Opp. (“Pl’s NYSED Opp.”) (Dkt. No. 34).) On May 20, 2024,
NYSED replied. (See NYSED Reply.) On May 28, 2024, District Defendants replied, (see
District Reply), and Plaintiff filed her Opposition to McCall, (see Pl’s McCall Opp.). Finally,
McCall replied on June 17, 2024. (See McCall Reply; Affirmation of Ximena Castro (Dkt.
No. 41).)
Between briefing, on May 9, 2024, Plaintiff belatedly filed a letter requesting the Court
deny Defendants’ request for a pre-motion conference on their Motions. (See Dkt. No. 35.) On
May 14, 2024, the Court noted via memo endorsement that it had already granted Defendants
leave to file their Motions and that Plaintiff’s opposition to NYSED’s Motion was signed by

“Outside Plug LLC,” an “Advocate/Legal Consultant.” (See Dkt. No. 36 at 5 (citing Pl’s
NYSED Opp. 1).) Because unlicensed laymen are not permitted to represent others, the Court
directed Plaintiff to submit a sworn affidavit concerning whether she received assistance in
drafting any of her submissions. (See id.) On May 28, 2024, Plaintiff filed an affirmation in
which she averred that Outside Plug LLC “is merely a company owned by [her] spouse” and
neither “[her husband, Andre Drayton (“Drayton”),] [n]or [any] other person assist[ed] [Plaintiff]
in drafting” the Complaint or “g[a]ve [her] legal advice.” (Dkt. No. 39 (“Pl’s Aff.”) at 1.)
There are reasons to question the veracity of Plaintiff’s affirmation. Many documents
submitted by Plaintiff clearly indicate that she was “represented” by Drayton at virtually every
proceeding prior to this Action. (See, e.g., Compl. 22 (noting that Drayton “represents [Plaintiff]
in connection with” Plaintiff’s complaint to the NYSDHR); id. 69 (in a letter to the EEOC New
York District office, Drayton wrote that he was “a legal consultant and authorized to represent
[Plaintiff]”); see generally id. (for email exhibits, indicating that Plaintiff forwarded emails to
Drayton from July to November 2023).) Plaintiff claims that her email address on the docket

and on her filings in this Action is that of her husband’s company,
“Outsideplug2020llc@gmail.com,” because she wants “to avoid using [her] personal email.”
(Pl’s Aff. 1.) While that may be true, it does not allay the Court’s concern that Drayton’s
“representation” of Plaintiff did not end prior to filing of the Complaint in this Action.
“The principal rationale for ordinarily requiring representation by a licensed attorney is
that ‘the conduct of litigation by a nonlawyer creates unusual burdens not only for the party he
represents but as well for his adversaries and the court.’” Lattanzio v. COMTA, 481 F.3d 137,
139 (2d Cir. 2007) (quoting Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 22 (2d Cir.
1983)).4 Accordingly, by dint of their pro se status, pro se litigants are “afforded a substantial

degree of solicitude,” Dos Santos v. Assurant, Inc., 625 F. Supp. 3d 121, 129 (S.D.N.Y. 2022)
(quoting Tracy v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010)), and “the exact degree of
solicitude that should be afforded to a pro se litigant in any given case depends upon a variety of
factors,” Azzarmi v. Neubauer, No. 20-CV-9155, 2024 WL 4275589, at *3 (S.D.N.Y. Sept. 24,

4 Plaintiff claims that Lattanzio stands for the proposition that “a pro se litigant may
receive assistance from an unlicensed layman, such as her husband, so long as the assistance
does not cross the line into unauthorized practice of law.” (Pl. Aff. 1.) Nothing in Lattanzio can
be construed to support Plaintiff’s assertion. Lattanzio concerns whether a sole member limited
liability company may appear pro se—the Second Circuit held that it may not. See Lattanzio,
481 F.3d at 139–40. Nowhere in that case did the Second Circuit discuss married couples
helping each other in pro se litigation or “the line” between authorized and unauthorized practice
of law, or anything approaching Plaintiff’s read of the case.
2024)). Solicitude may be withdrawn if a pro se plaintiff’s “submissions are ‘drafted with the
substantial assistance of an attorney.’” Dos Santos, 625 F. Supp. 3d at 129 (quoting Askins v.
Metro Transit Auth., No. 19-CV-4927, 2020 WL 1082423, at *4 (S.D.N.Y. Mar. 5, 2020)).
The Court will give Plaintiff the benefit of the doubt, but notes that if the Court becomes
convinced that Plaintiff is being represented by Drayton, she may lose the solicitude that she

currently enjoys. See Azzarmi, 2024 WL 4275589, at *3 (withdrawing solicitude for a pro se
litigant); Davis v. Sedgwick Claims Mgmt. Servs., No. 21-CV-7090, 2022 WL 153251, at *1
(S.D.N.Y. Jan. 18, 2022) (noting that “special solicitude in pro se cases has its limits” (citation,
quotation marks, and italics omitted)).
II. Discussion
A. Standard of Review
1. 12(b)(1)
“[F]ailure of subject matter jurisdiction is not waivable and may be raised at any time by
a party or by the court sua sponte. If subject matter jurisdiction is lacking, the action must be

dismissed.” Biener v. Credit Control Servs., Inc., No. 21-CV-2809, 2023 WL 2504733, at *3
(S.D.N.Y. Mar. 14, 2023) (alteration in original) (quoting Lyndonville Sav. Bank & Tr. Co. v.
Lussier, 211 F.3d 697, 700–01 (2d Cir. 2000)); see also Wells Fargo Bank v. 5615 N. LLC,
No. 20-CV-2048, 2022 WL 15523689, at *3 (S.D.N.Y. Oct. 27, 2022) (citing Lyndonville, 211
F.3d at 700–01). “A federal court has subject matter jurisdiction over a cause of action only
when it has authority to adjudicate the cause pressed in the complaint.” Bryant v. Steele, 25 F.
Supp. 3d 233, 241 (E.D.N.Y. 2014) (quotation marks omitted). “Determining the existence of
subject matter jurisdiction is a threshold inquiry[,] and a claim is properly dismissed for lack of
subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or
constitutional power to adjudicate it.” Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d
Cir. 2008) (citation omitted), aff’d, 561 U.S. 247 (2010); see also United States v. Bond, 762
F.3d 255, 263 (2d Cir. 2014) (describing subject matter jurisdiction as the “threshold question”
(citation omitted)).
2. 12(b)(4)

“Rule 12(b)(4) allows for the dismissal of a complaint for ‘insufficient process.’” Close
v. Bedford Cent. Sch. Dist., No. 23-CV-4595, 2024 WL 3427213, at *4 (S.D.N.Y. July 16, 2024)
(quoting Abram v. Town of Cheektowaga Police Dep’t, No. 18-CV-1267, 2020 WL 3513677, at
*2 (W.D.N.Y. June 29, 2020) (quoting Fed. R. Civ. P. 12(b)(4))). “An objection under Rule
12(b)(4) concerns the form of the process rather than the manner or method of its service,” Grp.
One Ltd. v. GTE GmbH, 523 F. Supp. 3d 323, 332 n.8 (E.D.N.Y. 2021)—i.e., such “[o]bjections
. . . must identify substantive deficiencies in the summons, complaint, or accompanying
documentation,” Abram, 2020 WL 3513677, at *2; see Jackson v. City of New York, No. 14-CV-
5755, 2015 WL 4470004, at *4 (S.D.N.Y. June 26, 2015) (“[A] Rule 12(b)(4) motion is proper

only to challenge noncompliance with the provisions of Rule 4(b) or any applicable provision
incorporated by Rule 4(b) that deals specifically with the content of the summons.”). Where
“movants do not assert noncompliance with Rule 4(b), dealing with the content of the summons,
or otherwise challenge the form of the process . . . their motion is not governed by Rule
12(b)(4).” Jackson, 2015 WL 4470004, at *4.
3. 12(b)(6)
The Supreme Court has held that while a complaint “does not need detailed factual
allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(alteration adopted) (internal quotation marks and citation omitted). Indeed, Rule 8 of the
Federal Rules of Civil Procedure “demands more than an unadorned, the-defendant-unlawfully-
harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint
suffice if it tenders naked assertions devoid of further factual enhancement.” Id. (alteration

adopted) (internal quotation marks and citation omitted). Rather, a complaint’s “[f]actual
allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555.
“[O]nce a claim has been stated adequately, it may be supported by showing any set of
facts consistent with the allegations in the complaint,” id. at 563, and a plaintiff must allege
“only enough facts to state a claim to relief that is plausible on its face,” id. at 570. However, if
a plaintiff has not “nudged [his] claim[] across the line from conceivable to plausible, the[]
complaint must be dismissed.” Id.; see also Iqbal, 556 U.S. at 679 (“Determining whether a
complaint states a plausible claim for relief will . . . be a context-specific task that requires the

reviewing court to draw on its judicial experience and common sense. But where the well-
pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not ‘shown’—‘that the pleader is entitled to relief.’” (alteration
adopted) (internal quotation marks and citation omitted) (quoting Fed. R. Civ. P. 8(a)(2))); id. at
678–79 (“Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading
regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with
nothing more than conclusions.”).
“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), and
“draw[ ] all reasonable inferences in favor of the plaintiff,” Daniel v. T & M Prot. Res., Inc., 992
F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145
(2d Cir. 2012)); Medina v. AAM 15 Mgmt. LLC, --- F. Supp. 3d ----, 2024 WL 4307816, at *5
(S.D.N.Y. Sept. 26, 2024) (same). Additionally, “[i]n adjudicating a Rule 12(b)(6) motion, a
district court must confine its consideration to facts stated on the face of the complaint, in

documents appended to the complaint or incorporated in the complaint by reference, and to
matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d
99, 107 (2d Cir. 1999) (citation and quotation marks omitted); see also Gamboa v. Regeneron
Pharms., Inc., 719 F. Supp. 3d 349, 352 (S.D.N.Y. Feb. 27, 2024) (same).
Moreover, where, as here, a plaintiff proceeds pro se, the Court must construe his
submissions “liberally and interpret it to raise the strongest arguments that it suggests.”
Ashmeade v. Amazon.com, No. 23-CV-4331, 2024 WL 4266391, at *7 (S.D.N.Y. Sept. 23, 2024)
(alterations adopted) (quoting Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013)); see also
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (same). Notwithstanding

a standard of review comparatively more lenient and favorable to pro se litigants, such treatment
“does not exempt a pro se party from compliance with relevant rules of procedural and
substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555, 559 (S.D.N.Y. 2013) (internal quotation
marks and citation omitted); see also Caidor v. Onondaga County, 517 F.3d 601, 605 (2d Cir.
2008) (“[P]ro se litigants generally are required to inform themselves regarding procedural rules
and to comply with them.” (italics omitted) (internal quotation marks and citation omitted)).
B. Analysis
The Court first addresses Defendants’ arguments as they relate to liability, then turns to
whether Plaintiff has plausibly stated any claims.
1. Immunity
NYSED argues that Plaintiff’s ADA and NYSHRL claims are barred by the Eleventh
Amendment. (See NYSED Mem. 4–6.)
“[A]s a general rule, state governments may not be sued in federal court unless they have
waived their Eleventh Amendment immunity, or unless Congress has abrogated the states’

Eleventh Amendment immunity . . . .” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009)
(internal quotation marks and alterations omitted). “The immunity recognized by the Eleventh
Amendment extends beyond the states themselves to state agents and state instrumentalities that
are, effectively, arms of a state.” Id. (alteration omitted). “New York has not waived its
Eleventh Amendment immunity to suit in federal court.” Watson v. New York, No. 22-CV-9613,
2022 WL 17067935, at *2 (S.D.N.Y. Nov. 17, 2022) (citing Trotman v. Palisades Interstate
Park Comm’n, 557 F.2d 35, 40 (2d Cir. 1977)). “It is well established that [NYSED] is an
agency of the State of New York, and thus an arm of the state for purposes of sovereign
immunity.” D.J. by Comfort v. Corning-Painted Post Area Sch. Dist., 722 F. Supp. 3d 148, 158

(W.D.N.Y. 2024) (quotation marks and citation omitted). “[I]t is [also] well established that
Congress has not validly abrogated the states’ sovereign immunity for claims arising under Title
I [of the ADA]” and that “New York [has not] waived its immunity.” Yerdon v. Poitras, 120
F.4th 1150, 1153 (2d Cir. 2024). Finally, Plaintiff’s NYSHRL claim is barred “because New
York has not waived its Eleventh Amendment immunity for NYSHRL suits in federal courts.”
Deadwiley v. New York State Off. of Children & Family Servs., 97 F. Supp. 3d 110, 116
(E.D.N.Y. 2015); McCoy v. Admin. for Children’s Servs., No. 23-CV-3019, 2024 WL 4379584,
at *4 n.2 (E.D.N.Y. Aug. 9, 2024) (same). However, Congress has abrogated state sovereign
immunity under the Rehabilitation Act and Title VII. See Ballentine v. New York, No. 24-CV-
4615, 2024 WL 4870833, at *3 (S.D.N.Y. Nov. 21, 2024) (noting that “the Rehabilitation Act
abrogates Eleventh Amendment immunity for claims against the State of New York when the
state has knowingly waived this right by accepting federal funds”); Cuomo v. Off. of New York
State Attorney Gen., --- F. Supp. 3d ----, 2024 WL 4593407, at *7 (E.D.N.Y. Oct. 28, 2024)
(“Congress[] abrogat[ed] . . . state sovereignty in cases brought under Title VII . . . .”). While

Plaintiff asserts an ADA Title II claim against NYSED, (see Pl’s NYSED Opp. 8–9), the
Eleventh Amendment bars this claim, despite the fact that “Congress has unambiguously
purported to abrogate states’ immunity from Title II claims,” T.W. v. New York State Bd. of Law
Exam’rs, 110 F.4th 71, 82 (2d Cir. 2024) (quoting Bolmer v. Oliveira, 594 F.3d 134, 146 (2d Cir.
2010)), cert. pending, No. 24-714 (Jan. 3, 2025). This is because the “ADA ‘unambiguously
limits employment discrimination claims to Title I.’” Yerdon, 120 F.4th at 1153 (quoting Mary
Jo C. v. N.Y. State & Loc. Ret. Sys., 707 F.3d 144, 169–71 (2d Cir. 2013)). Because this dispute
clearly involves allegations of employment discrimination, Plaintiff’s passing reference to Title
II fails to shift the analysis, or give rise to a separate cause of action, and her ADA claim against

NYSED must fall under Title I and is therefore barred. See id. (holding that a “dispute [that]
involves allegations of employment discrimination . . . [is] clearly governed by Title I of the
ADA”).
Accordingly, sovereign immunity bars Plaintiff’s ADA Title I, ADA Title II, and
NYSHRL claims, but not her Rehabilitation Act claim.
2. Individual Liability
At the outset, to the extent that Plaintiff’s Title VII, ADA, and Rehabilitation Act claims
are asserted against Waterman and McCall, these claims must be dismissed because there is no
individual liability under those statutes.5 See id. at 1155 (“There is no individual liability under
the ADA.” (alterations adopted) (quoting Iwelu v. N.Y. State Off. of Mental Health, No. 22-3096,
2024 WL 2175938, at *2 n.5 (2d Cir. May 15, 2024))); Vora v. New York City Dep’t of Educ.,
No. 22-CV-10891, 2024 WL 1116312, at *3 (S.D.N.Y. Mar. 14, 2024) (“Title VII, the ADA, and
the Rehabilitation Act do not impose liability on individuals.”).

The Court also notes that “Title VII prohibits discrimination against an employee based
on that employee’s ‘race, color, religion, sex, or national origin,’” Kirkland-Hudson v. Mount
Vernon City Sch. Dist., 665 F. Supp. 3d 412, 448 (S.D.N.Y. 2023) (quoting 42 U.S.C. § 2000e-
2(a)), and that Plaintiff makes no reference to a protected activity under Title VII, (see generally
Compl.; Pl’s District Opp.; Pl’s NYSED Opp.; Pl’s McCall Opp.). Accordingly, because an
individual’s disability is not a protected activity under Title VII, see Shaham v. Vertrax, Inc.,
No. 21-CV-170, 2023 WL 2600207, at *13 (D. Conn. Mar. 22, 2023) (“Title VII . . . does not
prohibit disability discrimination.”), Plaintiff’s Title VII claim is dismissed.
As for McCall, he argues that the Court “lacks subject matter jurisdiction over disputes

between a public sector employees union and a public sector employee.” (McCall Mem. 4.)
Plaintiff does not explicitly refer to the National Labor Relations Act (“NLRA”), Labor
Management Relations Act (“LMRA”), or state law, but does, at various points, refer very
generally to alleged breaches of a collective bargaining agreement and of the duty of fair
representation (“DFR”). (See Pl’s McCall Opp. 3, 8.) Interpreting Plaintiff’s pleadings to raise
the strongest arguments that they suggest, the Court considers whether Plaintiff has stated a

5 Waterman is the School’s principal. (See Compl. 37.) McCall is an employee of Mount
Vernon. (District Mem. 2.)
claim pursuant to the NLRA, LMRA, or the state DFR, and concludes that she has failed to state
a claim.
First, to the extent Plaintiff asserts a freestanding DFR breach under the NLRA, 29
U.S.C. § 159(a), that claim is dismissed. To state such a claim, “a plaintiff must plead that
(1) the union’s conduct was ‘arbitrary, discriminatory, or in bad faith’ and (2) there was a ‘causal

connection’ between the union’s wrongful conduct and the member’s injuries.” Bledsoe v.
N.Y.C. Auth., No. 23-CV-00775, 2024 WL 989845, at *6 (E.D.N.Y. Mar. 7, 2024) (quoting
Perkins v. 199 SEIU United Healthcare Workers E., 73 F. Supp. 3d 278, 283 (S.D.N.Y. 2014)).
The NLRA, however, does not cover public employees. See Green v. Dep’t of Educ. of City of
N.Y., 16 F.4th 1070, 1075 (2d Cir. 2021) (citing 29 U.S.C. § 152(2)). As Plaintiff is an employee
of Mount Vernon, she is a public employee, and the NLRA therefore precludes her from
bringing a DFR claim against her union. See id. at 1076 (affirming dismissal of DFR claim
against union where plaintiff was a public employee not covered by the NLRA).
To the extent Plaintiff’s DFR claim is brought pursuant to Section 301 of the LMRA, it

fails for the same reason because “there is no federal subject matter jurisdiction over a [DFR]
claim under the [LMRA] against a public school district or the union representing its
employees.” Malcolm v. Assoc. of Supervisors & Admins. of Rochester, 831 F. App’x 1, 3 (2d
Cir. 2020) (summary order) (citing Ford v. D.C. 37 Union Local 1549, 579 F.3d 187, 188 (2d
Cir. 2009)). Accordingly, because Plaintiff’s employer is “a public school district, which is
political subdivision of the state of New York and therefore is not an ‘employer’ within the
meaning of the [LMRA],” id. (citing 29 U.S.C. § 152(2)), Plaintiff may not proceed under the
LMRA.
“Section 209-a(2)(c) of the New York Civil Service Law states that it shall be an
improper practice for an employee organization or its agents deliberately to breach its duty of
fair representation.” Toro v. City of New York, No. 12-CV-4093, 2015 WL 1014044, at *8
(E.D.N.Y. Mar. 6, 2015) (quotation marks omitted and alteration adopted) (quoting N.Y. Civ.
Serv. Law § 209-a(2)(c)). “[I]n order to establish a claim for breach of the duty of fair

representation in violation of New York State Civil Service Law § 209-a(2), it is necessary to
show that the union’s conduct was arbitrary, discriminatory, or in bad faith.” Id. (citing Matter
of Civil Serv. Bar Ass’n., Local 237, Int’l Bhd. of Teamsters v. City of New York, 474 N.E.2d
587, 587 (N.Y. 1984); Rosenblum v. Bd. of Educ. Great Neck Union Free Sch. Dist., 220
N.Y.S.3d 794, 798 (N.Y. App. Div. 2024) (same). Moreover, Plaintiff must produce “substantial
evidence” that the union deliberately acted to harm her. See Calkins v. Police Benevolent Ass’n
of N.Y. State Troopers, Inc., 864 N.Y.S.2d 655, 655 (N.Y. App. Div. 2008) (stating that a
plaintiff opposing summary judgment must produce “substantial evidence of fraud, deceitful
action, or dishonest conduct, or evidence of discrimination that is intentional, severe, and

unrelated to legitimate [union] objectives” (quotations omitted)); Roy v. Buffalo Philharmonic
Orchestra Soc’y, Inc., 161 F. Supp. 3d 187, 193 (W.D.N.Y. 2016) (same), aff’d, 682 F. App’x 42
(2d Cir. 2017) (summary order). There is also a four-month statute of limitations on such claims.
See Bledsoe, 2024 WL 989845, at *6 (citing Malcolm, 831 F. App’x at 3–4 (citing N.Y. C.P.L.R.
§ 217(2))). Plaintiff’s Complaint was filed on November 20, 2023, meaning that any allegations
and claims that accrued before July 20, 2023, are time-barred. The Complaint contains no
allegations regarding McCall, let alone any actions of his while in his role as a union
representative. (See generally Compl.) In fact, the sum of Plaintiff’s allegations regarding
McCall is the following: McCall, “in his capacity as a union official[,] breached his duty of fair
representation when he either ignored meritorious grievances that were brought to his attention
by Plaintiff or at times processed the Plaintiff’s complaint in a perfunctory manner.” (Pl’s
McCall Opp. 3.)
Putting aside whether Plaintiff’s claim is timely, and that she has fallen short of
establishing that the union or McCall did anything wrong at all, see Toro, 2015 WL 1014044, at

*8 (dismissing claim for duty of fair representation violation where plaintiff had “fallen short of
establishing that the union did anything wrong at all, much less violated its duty of fair
representation”), Plaintiff’s claim under state law is also barred because “New York law imposes
a DFR on unions,” not individuals, see Bledsoe, 2024 WL 989845, at *6 (emphasis added).
Here, Plaintiff brings her DFR claim against McCall and includes no allegations that may impute
McCall’s alleged conduct to the union as a whole. Indeed, the Court has found no cases in which
a plaintiff alleges a specific union official violated a DFR; rather, DFR claims are routinely
brought against unions, as opposed to individuals. Accordingly, Plaintiff’s DFR claim is
dismissed.

3. Rule 10
District Defendants argue that “Plaintiff failed to include [Mount Vernon] in the list of
defendants” in her Complaint, which means that “Plaintiff’s process . . . was therefore deficient,”
and that “[a]s a result of this deficient process,” the Court lacks personal jurisdiction over Mount
Vernon. (District Mem. 11.)
Rule 10(a) provides that “[t]he title of the complaint must name all the parties.” Fed. R.
Civ. P. 10(a). Thus, “[if] people are not named in the caption of the complaint, they will not be
defendants in the case.” Paul v. Onondoga Cnty. Dist. Att’ys Off., No. 23-CV-1385, 2024 WL
445701, at *6 (N.D.N.Y. Feb. 6, 2024) (quotation marks omitted and alteration adopted) (quoting
Whitley v. Krinser, No. 06-CV-575, 2007 WL 2375814, at *1 (W.D.N.Y. Aug. 15, 2007)); see
also Harris v. Ganim, No. 23-CV-1168, 2023 WL 8188667, at *1 n.3 (noting that the court
would not consider claims against individuals and entities that were referenced in the pro se
plaintiff’s complaint because those individuals and entities were not named in the caption of the
complaint). Plaintiff, however, has clearly and obviously complied with Rule 10—on the very

first page of the Complaint, she lists “Mount Vernon City School District” as a defendant. (See
Compl. 1.) Further, service was properly executed on District Defendants. (See Dkt. Nos. 15–
17.) Notably, District Defendants cite nothing—neither caselaw nor the record—in support of
their contention that the Complaint is deficient. (See District Mem. 11.) The Court need not go
further because it finds that Plaintiff complied with Rule 10(a) and because District Defendants
have failed to mount a fulsome argument to the contrary.
4. ADA and Rehabilitation Act Claims
a. Failure to Accommodate
“The ADA requires employers to make ‘reasonable accommodations to the known

physical or mental limitations of an otherwise qualified [employee], unless [the employer] can
demonstrate that the accommodation would impose an undue hardship on the operation of [its]
business.’” Smith v. N.Y.C. Dep’t of Educ., No. 18-CV-8545, 2019 WL 6307471, at *9
(S.D.N.Y. Nov. 25, 2019) (internal citation omitted) (quoting 42 U.S.C. § 12112(b)(5)(A)).
“Similarly, regulations promulgated under the Rehabilitation Act by the Department of Health
and Human Services require recipients of federal funds to make reasonable accommodation to
the known physical or mental limitations of an otherwise qualified handicapped employee unless
the recipient can demonstrate that the accommodation would impose an undue hardship on the
operation of its program.” Quadir v. N.Y. State Dep’t of Labor, No. 13-CV-3327, 2016 WL
3633406, at *2 (S.D.N.Y. June 29, 2016) (emphasis in original) (internal quotation marks
omitted and alteration adopted). To state a claim for failure to accommodate under either the
ADA or the Rehabilitation Act, an employee must allege that:
(1) [s]he is a person with a disability under the meaning of the Act; (2) an
employer covered by the statute had notice of [her] disability; (3) with reasonable
accommodation, the employee could perform the essential functions of the job at
issue; and (4) the employer has refused to make such accommodations.
Noll v. Int’l Bus. Mach. Corp., 787 F.3d 89, 94 (2d Cir. 2015) (alterations omitted) (quoting
McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 97 (2d Cir. 2009)); Quadir, 2016 WL
3633406, at *2 (same).
District Defendants contend that this claim must be dismissed because Plaintiff has failed
to establish that she requested any accommodation prior to June 28, 2023, as indicated by a
doctor’s letter requesting workplace accommodations for Plaintiff. (See District Mem. 19–20
(citing Dkt. No. 28-1 at 45).) While Plaintiff attaches to her opposition brief doctor’s notes from
2017, 2020, and 2021 requesting that Plaintiff have elevator access to accommodate her
disability, (see Dkt. No. 28-1 at 47–49), she tenders no allegations that she requested elevator
access in relation to these doctor’s notes, or indeed at any time during her employment (see
generally Compl.; Pl’s District Opp.). Even assuming that she has a disability within the
meaning of the ADA and Rehabilitation, that Mount Vernon had notice of this disability, and
that there were reasonable accommodations available to facilitate Plaintiff’s performance of
essential functions, Plaintiff has failed to make a prima facie showing that Mount Vernon refused

to make such accommodations. On the contrary, Plaintiff’s own allegations in the Complaint
show that when, in October 2022, Plaintiff twice notified Mount Vernon via email that she was
not able to participate in certain meetings due to her disability, Waterman quickly responded that
the meetings would be relocated to accommodate Plaintiff. (See Compl. 51 (showing an email
dated October 28, 2022, where Waterman says that she will move a meeting to accommodate
Plaintiff’s not being able to climb stairs); id. 60–61 (in response to Plaintiff’s request to move a
meeting location, Waterman responds on October 24, 2023, that she “was not aware” of
Plaintiff’s disability and that she will relocate meetings to accommodate Plaintiff).)
Accordingly, Plaintiff’s failure to accommodate claim must be dismissed. See Finnigan v.

Mattituck-Cutchogue Union Free Sch. Dist., No. 20-CV-2837, 2022 WL 1205426, at *7
(E.D.N.Y. Feb. 28, 2022) (dismissing the plaintiff’s failure to accommodate claim under the
ADA because plaintiff did not allege “that the [defendant employer] refused to make
[reasonable] accommodations.”), report and recommendation adopted, 2022 WL 1205029
(E.D.N.Y. Apr. 22, 2022); cf. Tieu v. N.Y.C. Econ. Dev. Corp., 717 F. Supp. 3d 305, 325–26
(S.D.N.Y. 2024) (finding at summary judgment that plaintiff failed to make out a prima facie
case of disability discrimination where defendants granted plaintiff reasonable accommodations).
b. Retaliation
“Retaliation claims under . . . the ADA[] and the Rehabilitation Act are analyzed under

the same framework that applies to retaliation claims under Title VII.” Smith, 2019 WL
6307471, at *11; see also Cerni v. J.P. Morgan Sec. LLC, 208 F. Supp. 3d 533, 538 (S.D.N.Y.
2016) (applying Title VII retaliation analysis to ADEA retaliation claim); Treglia v. Town of
Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (applying Title VII retaliation analysis to ADA
retaliation claim); Weixel v. Bd. of Educ. of City of N.Y., 287 F.3d 138, 148 (2d Cir. 2002)
(elements of a retaliation claim under the Rehabilitation Act and the ADA are the same).
Accordingly, to plead a retaliation claim under these statutes, a plaintiff must allege “that:
(1) [s]he engaged in an activity protected by the [statute]; (2) the employer was aware of this
activity; (3) the employer took adverse employment action against [her]; and (4) a causal
connection exists between the alleged adverse action and the protected activity.” Treglia, 313
F.3d at 719.
District Defendants claim that Plaintiff has not “alleged any facts concerning her
engagement in any protected activity,” (District Mem. 20), but it is obvious that Plaintiff’s
NYSDHR Charge constitutes a protected activity, see Maxius v. Mount Sinai Health Sys. Inc.,

No. 21-CV-10422, 2024 WL 4166157, at *8 (S.D.N.Y. Sept. 12, 2024) (noting that a NYSDHR
complaint is a protected activity), appeal pending, No. 24-2524 (2d Cir. Sept. 25, 2024).
Plaintiff alleges that Mount Vernon retaliated against her filing her NYSDHR Charge by
“hav[ing] meetings and activities on the upper levels of the building, involv[ing] the local police
who forced . . . Plaintiff to relinquish her parking spot, . . . only [having] Plaintiff’s mail brought
by a third party on three occasions since the initial filing of the complaint, and creat[ing] a
hostile work environment” by failing to provide Plaintiff necessary computer access. (Pl’s
District Opp. 4–5.) In the first instance, none of these allegations rises to the level of an adverse
employment action, which are circumstances in which “‘a reasonable employee would have

found the challenged action materially adverse, which in this context means it well might have
dissuaded a reasonable worker from making or supporting a charge of discrimination.’”
Alvarado v. United Hospice, Inc., 631 F. Supp. 3d 89, 118 (S.D.N.Y. 2022) (quoting Bowen-
Hooks v. City of New York, 13 F. Supp. 3d 179, 224 (E.D.N.Y. 2014)). Specifically, the Second
Circuit has held that inability to access a school computer is a “mere inconvenience[] or
annoyance[] that d[oes] not alter [a plaintiff’s] employment in a materially adverse way.” Vega
v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 89 (2d. Cir. 2015). In a similar vein, the “loss
of [a] free parking space [is] insufficient to support an adverse employment action.” Silva-
Markus v. N.Y.C. Dep’t of Educ., No. 19-CV-4335, 2021 WL 8013767, at *6 (S.D.N.Y. July 26,
2021) (quoting Sherman v. City of New York, No. 18-CV-6907, 2020 WL 6873453, at *4
(E.D.N.Y. Sept. 23, 2020)), report and recommendation adopted, 2022 WL 736425 (S.D.N.Y.
Mar. 11, 2022). As for the meetings, even if the Court assumed that meetings were held in parts
of the building inaccessible to Plaintiff with the purpose of excluding her, such “exclusion[] from
meetings . . . do[es] not constitute [an] adverse employment action[].” Muniz v. City of New

York, No. 20-CV-9223, 2023 WL 6294169, at *8 (S.D.N.Y. Sept. 27, 2023) (alteration adopted)
(quoting Bickerstaff v. Vassar Coll., 354 F. Supp. 3d 276, 280 (S.D.N.Y. 2004)); see also
Kirkland-Hudson, 665 F. Supp. 3d at 461 (also holding that “exclusion from meetings . . . do[es]
not amount to adverse employment actions”). Finally, Plaintiff’s allegation that her mail has not
been timely delivered since her filing of the NYSDHR Charge does not rise to the level of an
adverse employment action, see, e.g., Forman v. N.Y.C. Dep’t of Educ., No. 19-CV-8156, 2022
WL 912130, at *10 (S.D.N.Y. Mar. 29, 2022) (holding that “[l]osing access to a work email
address would not dissuade a reasonable employee from exercising his or her constitutional
rights”), especially when courts have found that complete loss of work mail access is not an

adverse action, cf. Sekyere v. City of New York, No. 05-CV-7192, 2009 WL 773311, at *4
(S.D.N.Y. Mar. 18, 2009) (“Defendants’ delay in providing Plaintiff with an email address . . .
[is] not of sufficient significance to amount to . . . adverse changes in the terms and conditions of
[p]laintiff’s employment.”).
Even if these allegations did constitute adverse employment actions, Plaintiff has failed
to demonstrate a causal connection between her filing of the NYSDHR charge and these actions.
As to the allegations regarding police forcing Plaintiff to relinquish her parking spot, this
conduct “occurred years ago (pre-pandemic).” (Compl. 28.) Because this incident clearly
precedes the NYSDHR charge, it cannot support a retaliation claim. See Forrest v. N.Y.C. Hous.
Auth., No. 22-CV-6480, 2023 WL 3203646, at *10 (S.D.N.Y. May 2, 2023) (noting at summary
judgment that an adverse employment action cannot precede a protected activity in a retaliation
claim); Brown v. United Parcel Serv., No. 22-CV-762, 2022 WL 17478335, at *7 (N.D.N.Y.
Oct. 12, 2022) (collecting cases where courts dismiss a retaliation claim because the adverse
employment action preceded the protected activity), report and recommendation adopted, 2022

WL 16734876 (N.D.N.Y. Nov. 7, 2022). Similarly, because Plaintiff’s other allegations of
adverse action occurred both before and after her filing of the NYSDHR charge, there is no
causal link between the alleged adverse employment actions and the protected activity.6 (See
Compl. 70 (Plaintiff’s mail has been hand-delivered “for several years.”); id. 28 (Plaintiff’s
school computer was “not working throughout the school year (in spite of many work orders

6 Plaintiff’s briefing could be read as arguing that the adverse employment action here is
decreased frequency in the delivery of her mail. (See Pl’s District Opp. 5 (“Waterman . . . only
had the Plaintiff’s mail brought by a third party on three occasions since the filing of the
complaint.”).) Plaintiff has failed to allege how this is more than “a mere inconvenience.”
Sorensen v. Wallingford Bd. of Educ., 742 F. Supp. 3d 240, 2517 (D. Conn. 2024). Indeed, this
is a far cry from “termination of employment, a demotion evidenced by a decrease in wage or
salary, a less distinguished title, a material loss of benefits, [or] significantly diminished material
responsibilities.” Id. at 251–52.
Similarly, Plaintiff argues that her ongoing computer problems created a hostile work
environment in retaliation to her NYSDHR charge. (See Pl’s District Opp. 5.) A hostile work
environment can constitute an adverse employment action under a retaliation claim. See Dapson
v. City of Rochester, New York, No. 17-CV-6704, 2019 WL 591692, at *12 (W.D.N.Y. Feb. 12,
2019) (“[A] retaliatory hostile work environment may establish one element of a retaliation
claim, namely, that the plaintiff suffered an adverse employment action.”). “A hostile work
environment claim requires a showing (1) that the harassment was sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive working
environment and (2) that a specific basis exists for imputing the objectionable conduct to the
employer.” Dixon v. City of New York, No. 23-CV-8941, 2025 WL 50140, at *10 (S.D.N.Y. Jan.
7, 2025) (citation omitted). Because Plaintiff fails to allege that ongoing computer problems
were “severe or pervasive” harassment, the Court need not decide whether Plaintiff adequately
alleges “that a specific basis exists for imputing the objectionable conduct to” Mount Vernon.
Mitchell v. Planned Parenthood of Greater N.Y., Inc., 745 F. Supp. 3d 68, 100–01 (S.D.N.Y.
2024). For this reason, the allegations concerning ongoing computer problems can neither
support a retaliation claim nor form the basis of a full-fledged hostile work environment claim.
submitted).”); id. 29 (“[Plaintiff] “was left out of many monthly teacher luncheons that are
regularly hosted by different grade-level teachers.”); see also Pl’s District Opp. 4–5 (indicating
that these activities occurred before, and continued after, the NYSDHR charge).) See Darwin v.
Newburgh Operations, LLC, No. 22-CV-872, 2025 WL 104140, at *6 (S.D.N.Y. Jan. 15, 2025)
(“It is well-settled that an adverse employment action cannot serve as the basis for a retaliation

claim if the action was set in motion before a plaintiff engaged in [the] protected activity.). “In
essence, ‘if an employer’s conduct before and after an employee complaint is consistent, the
post-complaint conduct is not retaliatory.’” Piligian v. Icahn Sch. of Med. at Mount Sinai, 490 F.
Supp. 3d 707, 722 (S.D.N.Y. 2020) (quoting Wright v. N.Y.C. Off-Trac Betting Corp., No. 05-
CV-9790, 2008 WL 762196, at *5 (S.D.N.Y. Mar. 24, 2008)).
Accordingly, because Plaintiff has failed to make a prima facie case of retaliation, this
claim is dismissed. See Perez v. N.Y. Presbyterian/Weill Cornell Med. Ctr., No. 23-CV-6152,
2024 WL 1514216, at *9 (S.D.N.Y. Apr. 8, 2024) (dismissing plaintiff’s ADA retaliation claim
because plaintiff “[did] not allege[] any adverse action, let alone that any such action was

intended to retaliate for protected activity”).
5. NYSHRL
The Court now turns to Plaintiff’s NYSHRL claims. In light of the Court’s dismissal of
all of Plaintiff’s federal claims, the Court declines to exercise supplemental jurisdiction over her
state-law NYSHRL claims. See 28 U.S.C. § 1367(c)(3) (“[D]istrict courts may decline to
exercise supplemental jurisdiction over a claim . . . [if] the district court has dismissed all claims
over which it has original jurisdiction . . . .”).
“Once a district court’s discretion is triggered under [Section] 1367(c)(3), it balances the
traditional values of judicial economy, convenience, fairness, and comity, in deciding whether to
exercise jurisdiction.” Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006)
(internal citation and quotation marks omitted); accord Greenberg v. Visiting Nurse Servs. in
Westchester, Inc., No. 23-CV-4252, 2024 WL 4252550, at *11 (S.D.N.Y. Sept. 19, 2024). “[I]n
the usual case in which all federal-law claims are eliminated before trial, the balance of factors to
be considered . . . will point toward declining to exercise jurisdiction over the remaining state-

law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988); see also Marcus v.
AT&T Corp., 138 F.3d 46, 57 (2d Cir. 1998) (“In general, where the federal claims are dismissed
before trial, the state claims should be dismissed as well.”); Pitchell v. Callan, 13 F.3d 545, 547
(2d Cir. 1994) (“It is axiomatic that when all federal claims are eliminated prior to trial, a court
should decline to exercise jurisdiction over any remaining pendent state claims.” (quotation
marks omitted)); Greenberg, 2024 WL 4252550, at *11–12 (same).
The Court concludes that there is nothing that distinguishes this Action from “the usual
case.” See Cohill, 484 U.S. at 350 n.7. Plaintiff’s federal claims have all been dismissed, see
Dellutri v. Village of Elmsford, 895 F. Supp. 2d 555, 575 (S.D.N.Y. 2012) (declining to exercise

supplemental jurisdiction where “th[e] case remains in its initial stages, and the [p]arties have not
yet proceeded to discovery”); Middleton v. United States, No. 10-CV-6057, 2012 WL 394559, at
*7 (E.D.N.Y. Feb. 7, 2012) (declining to exercise supplemental jurisdiction because no federal
claims survived a motion to dismiss), and none of the factors that the Supreme Court enunciated
in Cohill—“judicial economy, convenience, fairness, [or] comity”—counsels against such
dismissal, 484 U.S. at 350 n.7. Thus, Plaintiff’s NYSHRL claims are dismissed.
III. Conclusion
For the reasons set forth above, Defendants’ Motions are granted and Plaintiff’s
Complaint is dismissed without prejudice. If Plaintiff wishes to file an amended complaint
addressing the deficiencies identified above, Plaintiff must do so within 30 days of the date of
this Opinion & Order. Plaintiff is advised that the amended complaint will completely replace,
not supplement, the Complaint. The amended complaint must therefore contain all claims,
defendants, and factual allegations that Plaintiff wishes the Court to consider. If Plaintiff fails to
timely file an amended complaint, the dismissed claims may be dismissed with prejudice. The
Clerk of the Court is respectfully directed to terminate the pending Motions. (Dkt. Nos. 23, 29,
33.)
SO ORDERED.
Dated: March 20, 2025 (L_4gk
White Plains, New York
ENNETI KARAS
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10828875. Public record. Not legal advice.