Moss v. Board of Education of the Brentwood Union Free School District

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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WILLIAM KING MOSS, III,

Plaintiff, MEMORANDUM & ORDER

23-CV-6571(JS)(SIL)

-against-

BOARD OF EDUCATION OF THE BRENTWOOD

SCHOOL DISTRICT; BRENTWOOD UNION FREE

SCHOOL DISTRICT; AND INDIVIDUALLY AND

IN THEIR OFFICIAL CAPACITIES: RICHARD

LOESCHNER, ANN PALMER, AND ROSAMARIA

CORTESE,

Defendants.

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For Plaintiff: William King Moss, III, pro se

32 South 5th Avenue

Brentwood, New York 11717

For Defendants: Carolyn Beth Lineen, Esq.

Silverman & Associates

445 Hamilton Avenue, Suite 1102

White Plains, New York 10601

SEYBERT, District Judge:

Pro se plaintiff William King Moss III, (“Mr. Moss,” or

“Plaintiff”) commenced this action against defendants Board of

Education of the Brentwood School District (“Board of Ed.”);

Brentwood Union Free School District (the “District”); and the

following defendants in their individual and official capacity:

Richard Loeschner, as Superintendent of the District

(“Superintendent Loeschner”); Ann Palmer, as Assistant

Superintendent of the District (“Assistant Superintendent

Palmer”); and Rosamaria Cortese (“Ms. Cortese”), as the newly

appointed Principal of Gail E. Kirkham Northeast Elementary School

(“Northeast Elementary”), (collectively, the “Defendants”).1

Plaintiff purports to allege discrimination claims based

on Plaintiff’s race in violation of Title VI of the Civil Rights

Act of 1964 (“Title VI”), 42 U.S.C. § 2000d et seq.; Title VII of

the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et

seq.; 42 U.S.C. § 1981 (“Section 1981”); 42 U.S.C. § 1983 (“Section

1983”); 42 U.S.C. § 1985 (“Section 1985”); New York State Human

Rights Law, (“NYSHRL”), N.Y. Exec. Law § 290 et seq.;2 and New York

Civil Rights Law § 40 et seq. (“Civil Rights Law”). (Compl., ECF

No. 1.)

This is Plaintiff’s most recent action against the

District, his having brought several previous judicial and

administrative actions against the District. See, e.g., Moss, III

v. Bd. of Educ. of the Brentwood U.F.S.D., No. 19-CV-2195 (E.D.N.Y.

2021); Moss v. Brentwood Union Free Sch. Dist., No. 21-CV-4372

(E.D.N.Y. 2021); Moss III v. Ciferri, No. 21-CV-3572 (E.D.N.Y.

1 The Court notes that, though listed on the docket as a defendant,

Kathy Hoey is not included as a defendant in the case caption; nor

has Plaintiff asserted any claims against Kathy Hoey in his

Complaint. (See Case Docket; see also generally Compl.)

Accordingly, Kathy Hoey is dismissed from this case; the Clerk of

Court is DIRECTED to terminate Kathy Hoey from this action.

2 Plaintiff also asserts retaliation claims under the NYSHRL.

2021); Moss v. Bd. of Educ. of Brentwood Union Free Sch. Dist.,

No. 21-CV-5866 (E.D.N.Y. 2021).3

Currently pending before the Court is Defendants’ motion

to dismiss Plaintiff’s Complaint (hereafter, the “Dismissal

Motion”). (See ECF No. 14; see also Support Memo, ECF No. 17;

Lineen Decl. in Support, ECF No. 16; Reply, ECF No. 20.) Plaintiff

opposes said Motion (hereafter, the “Opposition”). (See Opp’n,

ECF No. 19; see also Opp’n Aff., ECF No. 18.)4 After careful

consideration, for the reasons stated herein, the Court GRANTS

Defendants’ Dismissal Motion as to Plaintiff’s federal claims.

The Court further declines to exercise supplemental jurisdiction

over Plaintiff’s state law claims; therefore, Plaintiff’s state

law claims are DISMISSED WITHOUT PREJUDICE.

[Proceed to next page.]

3 Additionally, throughout this Order, the Court refers to its

Memorandum and Order in a factually similar case brought by

Plaintiff against another school district, the Sachem Central

School District (hereafter, the “Sachem Case”). See Moss v. Bd.

of Educ. of Sachem Cent. Sch. Dist., No. 22-CV-6212, 2024 WL

3328637 (E.D.N.Y. July 8, 2024) (hereafter, the “Sachem

Decision”), aff’d, No. 24-2096, 2025 WL 946417 (2d Cir. March 28,

2025) (summary order). The Sachem Decision is found in the Sachem

Case docket at ECF No. 42.

4 Page citations to both Plaintiff’s and Defendants’ submissions

are those generated by the Court’s Electronic Case Filing (“ECF”)

system.

BACKGROUND

I. Factual Background5

Plaintiff, a black African American male and resident of

Brentwood, New York, worked as a middle school and high school

math teacher at the District from September 2000 through August

2011. (Compl. ¶ 9; Pl’s Resume, Ex. J, ECF No. 1-2, at 108.)

Superintendent Loeschner is the former Superintendent of the

District. (Compl. ¶ 15; Support Memo at 10.) Assistant

Superintendent Palmer is the Assistant Superintendent for

Elementary Education for the District. (Compl. ¶ 16.) Ms. Cortese

was appointed Principal of Northeast Elementary, effective

September 2020. (Id. ¶ 17.)

5 The following facts are taken from the Complaint and, for

purposes of considering Defendants’ Dismissal Motion, are accepted

as true. See Williams v. Richardson, 425 F. Supp. 3d 190, 200

(S.D.N.Y. 2019). Notwithstanding, the Court is not “bound to

accept conclusory allegations or legal conclusions masquerading as

factual conclusions.” Faber v. Metro. Life Ins. Co., 648 F.3d 98,

104 (2d Cir. 2011). Generally, “[w]hen considering a motion to

dismiss, the Court’s review is confined to the pleadings

themselves,” because “[t]o go beyond the allegations in the

[c]omplaint would convert the Rule 12(b)(6) motion into one for

summary judgment pursuant to [Rule] 56.” Thomas v. Westchester

County 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 [c]omplaint, and matters of

which judicial notice may be taken, would not convert the motion

to dismiss into one for summary judgment.” Id.; see also Hu v.

City of N.Y., 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 Saimels v. Air Transp. Local 504, 992

F.2d 12, 15 (2d Cir. 1993); alteration omitted)).

Plaintiff alleges that, on November 21, 2019,

Superintendent Loeschner publicly called Plaintiff “arrogant”

during a scheduled public meeting of the Board of Ed. (Id. ¶¶ 36,

117.)

A. The District’s Job Posting

In July 2020, on an on-line application system (“OLAS”),

the District posted available positions for two elementary school

Principals in the District (hereafter, the “Job Posting”). (Id.

¶ 54.) One of the Principal positions was for Northeast

Elementary, and the other was for Pine Park Elementary School

(“Pine Park Elementary”). (See Defs.’ Feb. 12, 2021 Ans. & Resp.

to Pl.’s N.Y.S. Div. of Human Rights Compl., Ex. D,6 ECF No. 1-2,

at 64, attached to Compl.) The Job Posting included the following

“minimum requirements:” “Must hold New York State SAS/SBL

Certification” and “[a] minimum of five (5) years of successful

teaching experience.” (Compl. ¶ 57; Job Posting, Ex. H, ECF No.

1-2, at 104, attached to Compl.) The Job Posting further provided,

“Diverse and Bilingual candidates are encouraged to apply.”

(Compl. ¶ 57; Job Posting.)

The District received applications from existing

District employees; it was contractually required to offer those

6 Hereafter, Plaintiff’s Exhibit D shall be referred to and cited

as the “NYSDHR Response”. For clarity, the entire NYSDHR Response

is found in the Case Docket at ECF No. 1-2, pp.61-73.

employees interviews. (See Compl.; see also Recruiting and Hiring

Employees (hereafter, “Policy 9240”) Ex. L, ECF No. 1-2 at 41,

attached to Compl.) Policy 9240 provides a “preference” for

District residents where “candidates’ skills, experience, and

criteria used in the selection process are equivalent.” (Id.)

Policy 9240 also provides the District “shall seek the most

qualified candidates for vacant positions by recruiting from a

variety of sources, including present staff.” (Id. at 40.)

On July 15, 2020, on OLAS, Plaintiff timely applied for

the Elementary Principal positions. (Compl. ¶ 60.) Plaintiff’s

submission stated his certifications included: “Bilingual

Education Extension”; “Mathematics Ext 5-6”; “School Business

Administrator”; “Sch. District Administrator”; “Mathematics 7-12”;

and “School Administrator/Supervisor”. (Id. ¶ 63.) His

application also indicated he had administrative experience at the

middle school and high school level. (Id. ¶ 62.) However, neither

Plaintiff’s Resume nor his cover letter indicated he had any

experience as a Principal or Assistant Principal. (See Pl.’s

Resume; Pl.’s Cover Letter, Ex. I, ECF No. 1-2 at 106, attached to

Compl.)

B. Candidate Interviews

The Human Resources Department had the initial

responsibility of vetting applicants for the positions.

(Assistant Superintendent Palmer Aff. (“Palmer Aff.”), Ex. L, ECF

No. 1-2, at 114-19, at ¶¶ 4-5 attached to Compl.) Five existing

District employees (the so-called “internal candidates”),

including Ms. Cortese, were scheduled to be interviewed on August

3, 2020. (Id. at ¶ 6.) Assistant Superintendent Palmer selected

six non-District candidates (the so-called “external candidates”)

from the vetted applicants to be interviewed on August 4, 2020, to

wit: Fredrika Miller (“Miller”); Ashish Kapadia; James Cameron

(“Cameron”); Tracy Adams (“Adams”); Veronique Bailey (“Bailey”);

and Cheryl Witiing (“Witiing”). (Id.) Adams, Bailey, and Miller

are African American. (See Compl. ¶¶ 70, 72; Palmer Aff., at ¶

6.)

On or about July 31, 2020, the Board of Ed. inquired of

Superintendent Loeschner whether Plaintiff and another community

member applicant, Ana Martinez (“Ms. Martinez”) were scheduled to

be interviewed for the Principal positions. (Loeschner Aff., Ex.

M, ECF No. 1-2, at 122-27, ¶ 6, attached to Compl.) Thereafter,

on August 3, 2020, Superintendent Loeschner advised Assistant

Superintendent Palmer to add Plaintiff and Ms. Martinez to the

District’s interview list of external candidates. (Palmer Aff. at

¶ 9.) To accommodate this request, Assistant Superintendent Palmer

instructed Human Resources to cancel the previously scheduled

interviews of external candidates Adams and Bailey for August 4,

2020. (Id. at ¶¶ 10-11.) Independently, candidate Whiting

cancelled her interview with the District. (Id.)

On August 3, 2020, the District contacted Plaintiff for

an interview on August 4, 2020. (Compl. ¶ 66.) Also on August 3,

2020, the five internal candidates, including Ms. Cortese and Ms.

Nieves, and one external candidate, Sonia Hood, an African

American, were interviewed. (Palmer Aff. at p.116.). Five

external candidates were interviewed on August 4, 2020, including

Plaintiff and another African American candidate, Miller. (Id. at

p.117.)

The first-round interview committee consisted of:

Assistant Superintendent Palmer; President of the Brentwood

Teachers Association, Kevin Coyne; President of the Brentwood

Principals and Supervisors Organization, Berge Escobores;

Assistant Superintendent for Bilingual Programs K-12, Wanda Ortiz-

Rivera (“Ortiz-Rivera”); former Director of Special Services,

Kimberly Fauci; and community members Elizabeth Cordero and Tommie

Brown. (See Palmer Aff. at p.116.) According to Defendants’

NYSDHR Response, the candidates were rated on a 1-to-5 scale, with

“1” being a “poor” rating, and “5” being an “excellent” rating.

(NYSDHR Response at 65.) In each of the 35 qualities assessed,

Ms. Cortese received a unanimous “5” rating by the interviewers.

(Id.) In comparison, Plaintiff received a “5” rating in seven of

the 35 qualities assessed, as well as a “3” rating in eight others.

(Id. at 66.)

By interview committee consensus, internal candidates

Ms. Cortese, Ms. Nieves, Karen Kregel (“Kregel”), and Ms. Martinez,

as well as external candidate Cameron, an elementary school

Principal, were advanced to the second level of interviews. (Id.)

Plaintiff was not included in the advancement. (See id.) The

second-round interview committee included: Superintendent

Loeschner; Assistant Superintendent Palmer; the Assistant

Superintendent for Secondary Education, Programs, and Policy; and

Ortiz-Rivera. (Id.) Following the second-round interviews, four

candidates were presented to the Board of Ed. for the two Principal

positions, including Ms. Cortese, Ms. Nieves, Kregel, and Ms.

Martinez. (Id.) Ultimately, Superintendent Loeschner recommended

Ms. Cortese be appointed Principal of Northeast Elementary and Ms.

Nieves be appointed Principal of Pine Park Elementary. (Id. at

66-67.) Both recommendations were unanimously approved by the

Board of Ed. on October 2, 2020. (Id. at 67.) Prior to that, on

August 26, 2020, Plaintiff had been notified he was not selected

for either Principal position. (Aug. 26, 2020 Ltr. to Pl., Defs.

Ex. 2, ECF No. 16-3.)

C. Credentials of Appointed Principals

1. Ms. Cortese

Employed by the District since 1998, Ms. Cortese: had

been the Assistant Principal of the District’s Northeast

Elementary for ten years; and was a school psychologist at another

elementary school within the District for two years. (Cortese

Resume, Ex. M, ECF No. 1-2, at pp.76-77, attached to Compl.)

Plaintiff alleges Ms. Cortese had no experience teaching public

school elementary students and was not Bilingual Education

certified. (Compl. ¶¶ 75, 115.) Ms. Cortese holds two Master’s

Degree and is a certified School District Administrator (“SDA”),

but is not SAS or School Building Leader (“SBL”) certified. (Id.

¶ 114; NYSDHR Response at 65.)

2. Ms. Nieves

Employed by the District since 2015, prior to her

appointment as Principal, Ms. Nieves had been an Assistant

Principal of another District elementary school and a middle

school. (NYSDHR Response at 65-66.) Before that, Ms. Nieves

worked for 14 years in other school districts at the elementary

level, including four years as an English as Second Language

(“ESL”)/Bilingual teacher. (Id.) She holds two Master’s Degrees

and is certified as a SDL, SBL, and teacher of ESL. (Id.)

II. Procedural Background

A. The State Proceedings

On September 8, 2020, Plaintiff served a written demand

for an investigation of the hiring for the two Elementary Principal

positions. (Sept. 8, 2020 Demand Notice, Defs. Ex. 3, ECF No. 16-

4.) The District appointed Special Counsel to investigate the

allegations, which were found to be unsubstantiated. (NYSDHR

Response at 62.) On or about October 2, 2020, Plaintiff appealed

the Special Counsel’s decision to the Commissioner of the New York

State Department of Education (the “Commissioner”) challenging the

hiring for the Elementary Principal positions. (See Pl.’s

Petition, Defs. Ex. 4, ECF No. 16-5.) Specifically, Plaintiff

claimed the District violated his civil rights by denying him an

equal opportunity to the Principal positions. (Id.) On March 8,

2022, finding Plaintiff failed to “demonstrate any wrongdoing in

connection with the recruitment and appointment of Ms. Cortese and

Ms. Nieves”, the Commissioner dismissed Plaintiff’s appeal.

(Comm’r Mar. 8, 2022 Decision, Defs. Ex. 5, ECF No. 16-6.)

Thereafter, on November 29, 2020, Plaintiff filed a

complaint with the NYSDHR alleging race discrimination and

retaliation in the hiring process for the Elementary Principal

positions (hereafter, the “NYSDHR Proceeding”), which was dually

filed with the Equal Employment Opportunity Commission (“EEOC”).

(See NYSDHR Compl., Ex. C, ECF No. 1-1, attached to Compl.) On

February 12, 2021, the District submitted its NYSDHR Response.

(See NYSDHR Response.) On June 30, 2020, the NYSDHR dismissed

Plaintiff’s Complaint finding no probable cause, thereby

concluding the NYSDHR Proceeding. (See NYSDHR Determination and

Order, Defs. Ex. 7, ECF No. 16-8.) On November 22, 2021, the EEOC

issued Plaintiff a dismissal and right-to-sue letter. (EEOC

Dismissal and Right-to-Sue Ltr., Defs. Ex. 8, ECF No. 16-9.) On

November 30, 2020, the Plaintiff served a Notice of Claim on the

District asserting potential claims arising out of the District’s

hiring for the Elementary Principal positions. (Notice of Claim,

Defs. Ex. 6, ECF No. 16-7.)

B. The Instant Federal Litigation

Plaintiff commenced the instant action on September 1,

2023, asserting race-based discrimination claims in violation of

Title VI, Title VII, Section 1983, Section 1981, Section 1985, the

NYSHRL, and the Civil Rights Law. (See generally Compl.) On April

19, 2024, the fully briefed Dismissal Motion was filed.

DISCUSSION

I. Consideration of Dismissal Pursuant to Rule 8

As an initial matter, Defendants seek dismissal of

Plaintiff’s Complaint for failure to comply with Rule 8, which

requires a complaint contain “a short and plain statement of the

claim.” FED. R. CIV. P. 8(a)(2). Defendants contend Plaintiff’s

Complaint -- containing 63 pages, 331 paragraphs of allegations,

and 204 pages of exhibits -- violates Rule 8. (Support Memo at

16-17.) Additionally, as Defendants point out, Plaintiff has

already been put on notice of the Court’s discretion to dismiss

pleadings in violation of Rule 8. (Id. at 16 (citing Sachem

Decision).) True; this Court has previously stated:

Rule 8 requires a complaint contain “a

short and plain statement of the claim showing

that the pleader is entitled to relief.” FED.

R. CIV. P. 8(a)(2). This Rule’s purpose “is

to provide an adverse party with notice of the

claims asserted and to limit the burden

imposed on both courts and litigants by

unnecessarily verbose and incoherent

pleadings.” Barreto v. Suffolk County, No.

10–CV–0028, 2010 WL 301949, at *3-4 (E.D.N.Y.

Jan. 20, 2010) (citing Salahuddin v. Cuomo,

861 F.2d 40, 42 (2d Cir. 1988)). Further,

Rule 8(d)(1) requires that each allegation be

“simple, concise, and direct.” FED R. CIV. P.

8(d)(1). “Factual allegations must be enough

to raise a right to relief above the

speculative level[.]” Twombly, 550 U.S at

545. “[P]rolix, unintelligible, speculative

complaints that are argumentative, disjointed

and needlessly ramble have routinely been

dismissed in this Circuit.” Ceparano v.

Suffolk County, No. 10-CV-2030, 2010 WL

5437212, at *3 (S.D.N.Y. Dec. 15, 2010)

(citing Jones v. National Commc’ns &

Surveillance Networks, 266 F. App’x 31, 32 (2d

Cir. 2008) (affirming dismissal of pro se

litigant’s complaint for failing to comply

with Rule 8’s requirement of providing “short

and plain statement of the claim[s]” where

58-page, single-spaced compliant, with 87

additional pages of attachments, alleged more

than 20 separate causes of action against more

than 40 defendants)). “When a complaint fails

to comply with [the Rule 8] requirements, the

district court has the power, on motion or sua

sponte, to dismiss the complaint or to strike

such parts as are redundant or immaterial[.]”

Celli v. Cole, 699 F. App’x 88, 89 (2d Cir.

2017) (summary order) (internal quotation

marks and citation omitted).

Sachem Decision, 2024 WL 3328637, at *5 (finding Plaintiff’s

complaint “unnecessarily lengthy and redundant” but nevertheless

declining to dismiss on Rule 8 grounds).

Like Plaintiff’s complaint in the Sachem Case, the Court

finds the instant Complaint “unnecessarily lengthy and redundant,”

containing 331 paragraphs of purported allegations replete with

conclusory and argumentative statements cloaked as alleged facts,

often unrelated to Plaintiff’s claims, including discussions of

“definitions” and articles outside the realm of Plaintiff’s legal

claims. As Defendants contend, Plaintiff’s claims for the alleged

unlawful failure to hire him for the Elementary Principal position

“could have been pleaded in a much less voluminous, plainer, and

less burdensome manner.” (See Support Memo at 17.) However,

cognizant Plaintiff is proceeding pro se and that his Complaint

“must be held to less stringent standards than formal pleadings

drafted by lawyers,” Erickson, 551 U.S. at 94, in its discretion,

the Court declines to dismiss the Complaint on Rule 8 grounds.

However, PLAINTIFF IS PLACED ON EXPLICIT NOTICE: Any future

filings against Defendant in this action will be dismissed sua

sponte if Plaintiff fails to comply with Rule 8.7

7 Notably, in their Reply papers, Defendants contend Plaintiff’s

Opposition papers should be stricken as they fail to comply with

the Individual Rules of this Court. (See Reply at 5 (citing prior

version of relevant Individual Rules; see also J. Seybert Ind.

Rule III.E(1), available at

https://www.nyed.uscourts.gov/pub/rules/JS-MLR.pdf. (stating

“[u]nless prior permission has been granted, memoranda of law in

support of and in opposition to motions are limited to twenty-five

(25) pages” and “[a]ll memoranda must contain an index of cases;

all memoranda of ten (10) or more pages shall also contain a table

of contents”).) Plaintiff’s Opposition is 43 pages and includes

neither a table of contents nor a table of authorities; therefore,

it is in violation of this Court’s Individual Rules. Though

“[s]trict compliance with . . . this Court’s Individual Rules is

required,” (J. Seybert Ind. Rule III.B.(1)), in light of

II. Legal Standard Applicable to Rule 12(b) Dismissal Motions

Rule 12(b)(6) provides that dismissal is appropriate if

the complaint fails “to state a claim upon which relief can be

granted.” FED. R. CIV. P. 12(b)(6). In deciding a Rule 12(b)(6)

motion to dismiss, the Court applies a “plausibility standard,”

which is guided by “[t]wo working principles.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550

U.S. 544 (2007)); accord Harris v. Mills, 572 F.3d 66, 71–72 (2d

Cir. 2009). First, although the Court must accept all allegations

as true, this “tenet” is “inapplicable to legal conclusions”; thus,

“[t]hreadbare recitals of the elements of a cause of action

supported by mere conclusory statements, do not suffice.” Iqbal,

556 U.S. at 678; accord Harris, 572 F.3d at 72. Second, only

complaints that state a “plausible claim for relief” can survive

a Rule 12(b)(6) motion to dismiss. Iqbal, 556 U.S. at 679.

Determining whether a complaint does so is “a context-specific

task that requires the reviewing court to draw on its judicial

experience and common sense.” Id.; accord Harris, 572 F.3d at 72.

In deciding a motion to dismiss, the Court is confined

to “the allegations contained within the four corners of [the]

complaint,” Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67,

Plaintiff’s pro se status and in its discretion, the Court will

consider Plaintiff’s Opposition to the instant Dismissal Motion.

71 (2d Cir. 1998), but this has been interpreted broadly to include

any document attached to the complaint, any statements or documents

incorporated in the complaint by reference, any document on which

the complaint heavily relies, and anything of which judicial notice

may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147,

152–53 (2d Cir. 2002) (observing a document is “integral” if the

complaint “relies heavily upon its terms and effect”).

A complaint filed by a pro se litigant is to be construed

liberally and “however inartfully pleaded, must be held to less

stringent standards than formal pleadings drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nevertheless, a pro

se complaint must state a plausible claim for relief and comply

with the minimal pleading standards set forth in Rule 8 of the

Federal Rules of Civil Procedure. See Hiller v. Farmington Police

Dep’t, No. 12-CV-1139, 2015 WL 4619624, at *7 (D. Conn. July 31,

2015).

III. Dismissal of Complaint Pursuant to Rule 12(b)(6)

Plaintiff brings eight causes of action, alleging claims

of race discrimination, conspiracy, and retaliation by Defendants.

Generously construed, his claims are brought pursuant to Title VI,

Title VII, Sections 1981, 1983, and 1985, as well as pursuant to

New York State law. The Court addresses each, in turn.

A. Plaintiff’s Title VII Claims Are Untimely

In New York, to pursue a claim under Title VII, a

plaintiff typically has 300-days after the alleged discriminatory

act to file a charge with either the EEOC or the NYSDHR. See 42

U.S.C. § 2000e–5(e); Harris v. City of N.Y., 186 F.3d 243, 248 n.2

(2d Cir. 1999). Further, to pursue a Title VII claim in federal

court, a plaintiff must file his federal complaint within 90 days

of receipt of his EEOC right-to-sue notice. See 42 U.S.C. § 2000e-

5(f)(1); Dawes v. City Univ. of N.Y., 193 F. App’x. 59, 60 (2d

Cir. 2006) (citing Cornwell v. Robinson, 23 F.3d 694, 706 (2d Cir.

1994)).

Here, Defendants argue, and Plaintiff concedes, the

Title VII claims are untimely. (See Support Memo at 22-23; Opp’n.

at 27.) Plaintiff filed his NYSDHR complaint, which was

cross-filed with the EEOC, on November 29, 2020. (See NYSDHR

Compl., Ex. C, attached to Compl.) The EEOC issued a dismissal

and right-to-sue letter on November 22, 2021. (See Defs. Ex. 8.)

Plaintiff did not commence the instant litigation until September

1, 2023, i.e., well beyond 90 days following the EEOC issuing its

right-to-sue notice. (See Opp’n. at 27 (“Plaintiff concedes that

Title VII claims were not plead within 90 days of receipt of the

right-to-sue letter.).) Accordingly, as they are untimely,

Plaintiff’s Title VII claims are DISMISSED with prejudice.8

B. Plaintiff Fails to Allege a Title VI Claim9

Admittedly, Plaintiff’s Complaint fails to plead a cause

of action pursuant to Title VI, but Plaintiff attempts to raise

such allegations in opposition to the instant Dismissal Motion.

(See Opp’n. at 27 (“The Plaintiff concedes that Title VI claims

were not plead formally in the form of a cause of action but does

not rescind the plea for relief.”).) Generally, allegations cannot

be raised for the first time in opposition to a motion to dismiss.

See, e.g., Guo v. IBM 401(k) Plus Plan, 95 F. Supp. 3d 512, 526

(S.D.N.Y. 2015) (“A complaint cannot be amended merely by raising

new facts and theories in [a plaintiff’s] opposition papers.”

(quoting Southwick Clothing LLC v. GFT (USA) Corp., No.

99-CV-10452, 2004 WL 2914093, at *6 (S.D.N.Y. Dec. 15, 2004)); Ace

8 To the extent Plaintiff intended to assert Title VII claims

against the individual Defendants, aside from being untimely,

“[i]ndividuals are also not liable in either their individual or

official capacities under Title VII.” Milione v. City Univ. of

N.Y., 950 F. Supp. 2d 704, 709 (S.D.N.Y. 2013), aff’d, 567 F. App’x

38 (2d Cir. 2014). Accordingly, any Title VII claims asserted

against the individual Defendants are implausible and are

therefore dismissed.

9 Like his Title VII claims, Plaintiff’s Title VI claims cannot

be asserted against the individual Defendants because “there is no

individual liability available under Title VI.” Moore v. City of

N.Y., No. 15-CV-6600, 2017 WL 35450, at *15 n.8 (S.D.N.Y. Jan. 3,

2017); see also Russell v. County of Nassau, 696 F. Supp. 2d 213,

238 (E.D.N.Y. 2010) (“Title VI claims cannot be asserted against

an individual defendant because the individual is not the recipient

of federal funds.”).

Arts, LLC v. Sony/ATV Music Pub., LLC, 56 F. Supp. 3d 436, 451

(S.D.N.Y. 2014) (“[I]t is axiomatic that the Complaint cannot be

amended by briefs in opposition to a motion to dismiss.” (internal

quotation marks omitted)). However, because of the liberal

construction afforded to pro se papers, “[a] district court

deciding a motion to dismiss may consider factual allegations made

by a pro se party in his papers opposing the motion.” Walker v.

Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013). Thus, in light of

Plaintiff’s pro se status, the Court will consider the allegations

in Plaintiff’s Opposition with respect to his Title VI claim.

Title VI prohibits “any program or activity receiving

Federal financial assistance” from excluding or otherwise

discriminating against any individual on the basis of race, color,

or national origin. 42 U.S.C. § 2000d. “A violation of Title VI

is demonstrated only by proof of intentional discrimination.”

Sulehria v. New York, No. 13-CV-6990, 2014 WL 4716084, at *5

(S.D.N.Y. Sep. 19, 2014) (citing Guardians Ass’n v. Civil Serv.

Comm’n of the City of N.Y., 463 U.S. 582, 584 (1983). To state a

claim for a Title VI violation, a plaintiff must allege: “(1) [the

defendant] received federal financial assistance, (2) [the

plaintiff] was an intended beneficiary of the program or activity

receiving the assistance, and (3) [the defendant] discriminated

against [the plaintiff] on the basis of race, color, or national

origin in connection with that program or activity.” Commodari v.

Long Island Univ., 89 F. Supp. 2d 353, 378 (E.D.N.Y. 2000), aff’d,

62 F. App’x. 28 (2d Cir. 2003). Thus, “a threshold requirement is

that the employer be the recipient of federal funds aimed primarily

at providing employment.” Ass’n Against Discrimination in Emp.,

Inc. v. City of Bridgeport, 647 F.2d 256, 276 (2d Cir. 1981)

(citations omitted). “In short, plaintiff must allege a ‘logical

nexus’ between a federally funded program or activity and the

employment discrimination he allegedly suffered.” Commodari, 89

F. Supp. 2d at 378; see also Rosario–Olmedo v. Cmty. Sch. Bd. for

Dist. 17, 756 F. Supp. 95, 96 (E.D.N.Y. 1991) (“As a threshold

requirement for an action under these sections, the federal funds

allegedly giving rise to the action must have the ‘primary

objective’ of providing employment.” (citation omitted)). “Courts

have dismissed complaints for failure to specify when funds were

received, what they were used for, and whether their primary

objective was to provide employment.” Rosario–Olmedo, 756 F. Supp.

at 96 (citing cases).

Here, in his attempt to allege a Title VI violation,

Plaintiff claims the federal relief funds received by the District

from the Coronavirus Response and Relief Supplemental

Appropriations (“CRRSA”) Act were primarily used toward

professional salaries from March 13, 2020 through September 30,

2023. (See Opp’n at 27; see also “2020-2023 CRRSA Funding

Overview, Presentation to Brentwood UFSD Board of Ed.”, Pl. Ex. 6,

ECF No. 18-6, at p.12 (presenting pie chart indicating 67% of the

CRRSA-ESSER 2 funds earmarked for “professional salaries”),

attached to Moss Opp’n Aff., ECF No. 18.) Plaintiff argues “some

of these co-mingled dollars funded wholly or in part the salary of

Rosamaria Cortese after she became principal on September 2, 2020.”

(Id.)

On its face, Plaintiff’s assertion is conclusory and

does not establish that the primary purpose of the federal funds

received from the CRRSA Act was to provide employment or that

Plaintiff was the intended beneficiary. See, e.g., Commodari, 89

F. Supp. 2d at 378 (dismissing plaintiff’s Title VI claim for lack

of standing, finding the “intended beneficiaries of the [federally

funded] program were the participating students, not the

professors, such as [the plaintiff], who administered the program,

i.e., the program was not ‘aimed primarily at providing

employment’” (citation omitted)); Moore v. City of N.Y., No. 15-

CV-6600, 2017 WL 35450, at *11 (S.D.N.Y. Jan. 3, 2017) (finding

allegations “upon information and belief,” that City and

Department of Corrections “receive federal financial assistance

and funds . . . earmarked primarily for employment” failed to

sufficiently plead “a primary objective of the Federal financial

assistance is to provide employment”), report and recommendation

adopted by, 2017 WL 1064714 (S.D.N.Y. Mar. 20, 2017); see also

Bhanusali v. Orange Reg’l Med. Ctr., No. 10-CV-6694, 2012 WL

13059694, at *8 (S.D.N.Y. Jan. 20, 2012) (plaintiff did not

plausibly alleged any “logical nexus between the use of federal

funds and the practice toward which agency action [wa]s directed”)

(citing Reynolds v. Sch. Dist. No. 1, 69 F.3d 1523, 1532 (10th

Cir. 1995) (fact teacher was paid with federal grant funds did not

show providing employment, rather than funding school programs,

was primary intention)). Here, Plaintiff’s allegations fail to

establish a “logical nexus between [the CRRSA Act] and the

employment discrimination he allegedly suffered”; therefore, he

fails to state a Title VI claim. See Commodari, 89 F. Supp. 2d at

378; Johnson v. County of Nassau, 411 F. Supp. 2d 171, 175

(E.D.N.Y. 2006) (finding Title VI “essentially requires a logical

nexus between the use of federal funds and the practice toward

which the action is directed”).

Furthermore, as discussed infra, Plaintiff’s Title VI

claim fails for the additional reason that he fails to allege

Defendants engaged in intentional discrimination against him

because of his race. See 42 U.S.C. § 2000(d); see, e.g., Kajoshaj

v. N.Y.C. Dep’t of Educ., 543 F. App’x. 11, 13-15 (2d Cir. 2013)

(affirming dismissal of Title VI claims on grounds that, although

plaintiffs “repeatedly assert . . . defendants took

[discriminatory] actions because of plaintiffs’ [protected class],

their complaint is devoid of factual allegations that would

reasonably give rise to such an inference” because “[p]laintiffs

do not, for instance, assert that any defendant referenced their

[protected characteristics], much less that they did so in a

derogatory manner,” and plaintiffs’ “naked allegation that they

were treated differently” from those outside their protected class

“cannot demonstrate a plausible entitlement to Title VI relief”)

(internal quotations and citations omitted); Diaz v. City Univ. of

N.Y., No. 15-CV-1319, 2015 WL 13746673, at *9 (S.D.N.Y. Nov. 16,

2015) (“Plaintiff simply fails to allege any specific facts that

would support . . . a theory [that his alleged mistreatment was

due to discriminatory animus], and his conclusory allegations of

discrimination do not suffice to meet his pleading burden.”),

report and recommendation adopted, 2016 WL 958684 (Mar. 8, 2016);

Sulehria, 2014 WL 4716084, at *6 (“[Plaintiff’s] allegations are

merely restatements of the matters one must prove to state a

discrimination claim; they do not plausibly state any facts that

would tend to show discrimination.”). As addressed below,

Plaintiff’s bald assertions and conclusory allegations are

insufficient to “reasonably give rise” to an inference of

discrimination. Accordingly, Plaintiff’s Title VI claim must be

DISMISSED.

C. Plaintiff Fails to Plausibly Allege Section 1983 Claims

Plaintiff asserts Defendants violated his right to equal

protection in failing to hire him for the Elementary Principal

position because of his race. (Compl. ¶¶ 289-300.) In seeking

dismissal, Defendants contend collateral estoppel bars Plaintiff

from pursuing a Section 1983 claim in this Court, and, in any

event, the Complaint fails to state a claim under Rule 12(b)(6).

(Support Memo at 24-29.) For the reasons discussed below, the

Court dismisses Plaintiff’s Section 1983 claim.10

1. Threshold Issue: Collateral Estoppel Does Not

Preclude Consideration of the Section 1983 Claims

The doctrine of collateral estoppel prevents a party

from re-litigating an issue of fact or law that has been decided

in an earlier suit. See Wilder v. Thomas, 854 F.2d 605, 616 (2d

Cir. 1988), cert. denied, 489 U.S. 1053 (1989). “Federal courts

are required by 28 U.S.C. § 1738 to give effect to collateral

estoppel rules of the state that rendered a prior judgment where

the same issues are later raised in a federal proceeding.” Id.

Under New York law, collateral estoppel applies only where there

is an “identity of issue which has necessarily been decided in the

prior action and is decisive of the present action,” and where the

10 For the first time and without any explanation, in his

Opposition, Plaintiff references an alleged due process violation

by the District. (See Opp’n. at 35.) Even if Plaintiff had raised

a due process claim in his Complaint, which he did not, such claim

would fail since there is no protected property right to

employment. See Abramson v. Pataki, 278 F.3d 93, 100 (2d Cir.

2002) (“Ordinarily, there is no constitutionally protected

property interest in prospective government employment.”

(citations omitted)). By extension, a job applicant has no

property interest in the position for which he applies. At bottom,

because Plaintiff had no property interest in the Principal

position, he cannot state a due process claim.

party against whom estoppel is sought had “a full and fair

opportunity to contest the decision now said to be controlling.”

Schwartz v. Public Admin., 24 N.Y.2d 65, 71 (1969). “The burden

of proving identity of the issue rests on the proponent of

collateral estoppel, while the opponent bears the burden of proving

that he . . . did not have a full and fair opportunity to litigate

the issue.” Jeter v. N.Y.C. Dep’t of Educ., 549 F. Supp. 2d 295,

305 (E.D.N.Y. 2008).

Here, Plaintiff does not dispute there is an identity of

issues between the NYSDHR Proceeding and the present action.

Therefore, the Court need only determine whether the NYSDHR

Proceeding afforded Plaintiff “a full and fair opportunity” to

litigate his claims. In making this determination, the Court must

examine “‘whether the procedures used in the administrative

proceeding assured that the information presented to the agency

were sufficient both quantitatively and qualitatively, so as to

permit confidence that the facts asserted were adequately tested,

and that the issue was fully aired.’” Kosakow v. New Rochelle

Radiology Assocs., P.C., 274 F.3d 706, 734 (2d Cir. 2001) (quoting

Allied Chem. v. Niagara Mohawk Power Corp., 72 N.Y.2d 271, 276

(1988)).

In determining whether Plaintiff had a full and fair

opportunity to litigate his claims in the NYSDHR Proceeding, the

Court considers “the size of the claim, the forum of the prior

litigation, the use of initiative, the extent of the litigation,

the competence and experience of counsel, the availability of new

evidence, indications of a compromise verdict, differences in the

applicable law and foreseeability of future litigation.” Id.

(quoting Schwartz, 24 N.Y.2d at 72); see also Jeter, 549 F. Supp.

2d at 305. Notably, “[c]ourts in this Circuit that have declined

to dismiss § 1983 claims in the employment discrimination context

based on the asserted collateral estoppel effect of previous

decisions from the [NYS]DHR have done so predominantly due to the

plaintiff’s pro se status before the [NYS]DHR as well as the

absence of any record reflecting that discovery was conducted or

that a hearing was held in that forum.” Knox v. County of Ulster,

No. 11-CV-0112, 2013 WL 286282, at *11 (N.D.N.Y. Jan. 24, 2013)

(citing Finch v. New York, No. 10–CV–9691, 2012 WL 2866253, at

*6-7 (S.D.N.Y. May 30, 2012)); see also Jeter, 549 F. Supp. 2d at

305; Lloyd v. N.Y. Botanical Garden, No. 03–CV–7557, 2004 WL

2093468, at *3–4 (S.D.N.Y. Sept.14, 2004). “Consequently, those

courts decided that, because the plaintiff did not have a full and

fair opportunity to litigate the issues before the [NYS]DHR,

collateral estoppel did not preclude adjudication of the § 1983

claims in federal court.” Id. (refusing to apply collateral

estoppel to Section 1983 claim where: plaintiff appeared before

the NYSDHR pro se; no hearing or confrontation of opposing

witnesses took place; and the NYSDHR’s determination was made on

submitted papers).

So too, here, the Court finds collateral estoppel does

not preclude the adjudication of Plaintiff’s Section 1983 claims.

In the context of the NYSDHR Proceeding, considering (1)

Plaintiff’s pro se status, and (2) there is no indication any (a)

discovery was conducted, (b) any witnesses were interviewed, or

(c) any type of hearing was held between the parties, said

Proceeding was insufficient to “adequately test[]” or “fully

air[]” the relevant issues; thus, Plaintiff is not precluded from

subsequently bringing the same claims in federal court.11 See

Kosakow, 274 F.3d at 734. Accordingly, the Court concludes

Plaintiff’s Section 1983 claims are not precluded by the

determination and dismissal in the NYSDHR Proceeding; therefore,

it will consider the merits of Plaintiff’s equal protection-based

claims.12

11 Though the NYSDHR conducted a one-party conference with the

Plaintiff (see NYSDHR’s Final Investigation Report and Basis of

Determination, ECF No. 16-8, at p.10), there is no suggestion

Plaintiff had the opportunity to confront witnesses. Further,

demonstrably, Plaintiff asserts he failed to file a rebuttal to

Defendants’ NYSDHR Response as he “missed the email response from

the [District].” (Opp’n. at 5.)

12 To the extent Defendants contend the Commissioner’s denial of

Plaintiff’s appeal challenging the District’s failure to hire

Plaintiff bars his federal claims (see Support Memo at 25), the

Court disagrees for the same reasons.

2. Consideration of the Section 1983 Claim

a. The Legal Standard13

Section 1983 protects against the violation of federal

rights, including the right to equal protection under the

Fourteenth Amendment, by persons acting under color of state law.

See Littlejohn v. City of N.Y., 795 F.3d 297, 320 (2d Cir. 2015).

To state a claim pursuant to Section 1983, a plaintiff must

plausibly allege: (1) challenged conduct “committed by a person

acting under color of state law”; and (2) said challenged conduct

“must have deprived a person of rights, privileges or immunities

secured by the Constitution or laws of the United States.”

Lansbury v. Massey, No. 22-CV-6447, 2023 WL 266513, at *2 (E.D.N.Y.

Jan. 18, 2023) (quoting Cornejo v. Bell, 592 F.3d 121, 127 (2d

Cir. 2010)). It is undisputed that “[a] state employee acting in

his official capacity is acting ‘under color of state law.’” Vega

v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87–88 (2d Cir.

2015) (internal citation omitted).

13 To the extent Plaintiff brings his discrimination claims

pursuant to Section 1981 (see Compl. ¶¶ 269-88), said claims are

untenable as it is Section 1983 that “provides the sole cause of

action available against state actors alleged to have violated

[Section] 1981.” Duplan v. City of N.Y., 888 F.3d 612, 619 (2d

Cir. 2018); see also Richardson v. Buckheit, No. 19-CV-8505, 2020

WL 5802291, at *4 (S.D.N.Y. Sept. 29, 2020) (dismissing Section

1981 claims against state actors). Accordingly, the Court finds

Plaintiff’s Section 1981 claims are implausible; therefore, they

are dismissed.

Plaintiff’s Section 1983 claims of discriminatory

failure to hire are analyzed under the well-established McDonnell

Douglas burden-shifting framework. See Vivenzio v. City of

Syracuse, 611 F.3d 98, 106 (2d Cir. 2010). That standard provides:

(1) a plaintiff must first establish a prima facie case of

discrimination; after that, (2) the burden shifts to the defendant

to articulate a legitimate, nondiscriminatory reason for its

actions; if defendant does so, the McDonnell Douglas framework and

its presumptions and burdens disappear; and, thus, (3) the burden

shifts back to the plaintiff to show defendant’s reason is

pretextual, masking defendant’s true discriminatory intent. See

generally Patterson v. City of Oneida, 375 F.3d 206, 221 (2d Cir.

2004). To establish a prima facie claim of race discrimination,

a plaintiff must demonstrate: “(1) he is a member of a protected

class, (2) he was qualified for the job for which he applied, (3)

he was denied the job, and (4) the denial occurred under

circumstances that give rise to an inference of invidious

discrimination.” Vivenzio, 611 F.3d at 106. Nonetheless, to

survive a motion to dismiss, a plaintiff need not allege facts in

the complaint sufficient to establish a prima facie case. See

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002) (“In

employment discrimination cases, a plaintiff is not required to

establish a prima facie case at the pleadings stage.”). Instead,

the complaint should contain “only enough facts” to state a

plausible claim that also gives fair notice to the defendant of

the basis for each claim. See Barbosa v. Continuum Health

Partners, Inc., 716 F. Supp. 2d at 210, 215 (S.D.N.Y. 2010)

(holding that, in “[r]econciling Swierkiewicz, Twombly, and Iqbal,

a complaint need not establish a prima facie case of employment

discrimination to survive a motion to dismiss; however, ‘the claim

must be facially plausible and must give fair notice to the

defendants of the basis for the claim’” (quoting Fowler v. Scores

Holding Co., 677 F. Supp. 2d 673, 679 (S.D.N.Y. 2009))); accord

King v. U.S. Sec. Assocs., Inc., No. 11–CV–4457, 2012 WL 4122025,

at *4 (S.D.N.Y. Aug. 22, 2012), report and recommendation adopted

by 2012 WL 4327396 (S.D.N.Y. Sept. 18, 2012). “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.” Iqbal, 556 U.S. at 678. “For

this conclusion to be drawn, a plaintiff must allege facts that

allow the court in substance to infer elements of a prima facie

case.” King, 2012 WL 4122025, at *5 (collecting cases).

The Second Circuit has held a plaintiff can meet the

requisite pleading burden through “direct evidence of intent to

discriminate, . . . or by indirectly showing circumstances giving

rise to an inference of discrimination.” Vega, 801 F.3d at 87

(internal citation omitted). A plaintiff may raise an inference

of discrimination either “by meeting the requirements of McDonnell

Douglas and showing that the employer’s stated reason for its

employment action was pretext to cover-up discrimination, or by

otherwise creating a ‘mosaic’ of intentional discrimination by

identifying ‘bits and pieces of evidence’ that together give rise

to an inference of discrimination.” Id. (citations omitted); see

also Littlejohn, 795 F.3d at 311 (requiring facts “suggesting an

inference of discriminatory motivation”).

b. Application

Plaintiff’s Complaint attempts to create a “mosaic” of

intentional discrimination by identifying “bits and pieces of

evidence” giving rise to an inference of discrimination through

theories of disparate treatment and disparate impact. (See

generally Compl.) Defendants contend Plaintiff fails to allege

facts providing “at least minimal support for the proposition that

[Defendants] were motivated by discriminatory intent” in refusing

to hire him for the Principal position. (Support Memo at 26.)

For the reasons discussed below, the Court agrees with Defendants.

i. Disparate Treatment

More favorable treatment of similarly situated employees

or candidates not in a plaintiff’s protected group can give rise

to an inference of discrimination. See Littlejohn, 795 F.3d at

312. A plaintiff must plausibly allege the existence of at least

one comparator who was more favorably treated than plaintiff

despite being “similarly situated to the plaintiff in all material

respects.” Ruiz v. County of Rockland, 609 F.3d 486, 493 (2d Cir.

2010) (internal quotation marks omitted). “At the motion to

dismiss stage . . . a court still must determine whether, based on

a plaintiff’s allegations in the complaint, it is plausible that

a jury could ultimately determine that the comparators are

similarly situated.” Mosdos Chofetz Chaim, Inc. v. Vill. of Wesley

Hills, 815 F. Supp. 2d 679, 698 (S.D.N.Y. 2011).

Plaintiff asserts an inference of race discrimination by

disparate treatment is demonstrated by the fact that Ms. Cortese,

a less qualified, non-African American applicant, who was

similarly situated to Plaintiff, was appointed as Principal, while

Plaintiff, a black, African American was not. (Compl. ¶¶ 92-96,

192-95.) Plaintiff maintains he was more qualified than Ms.

Cortese for the Principal position because he had more

administrative experience and, unlike Ms. Cortese, he had taught

at the elementary school level. (See Compl. ¶¶ 292-95; Opp’n. at

6, 19.) Additionally, Plaintiff claims he possessed both the SAS

and SBL certifications noted on the job posting; conversely, Ms.

Cortese did not. (Compl. ¶¶ 92-95, 145, 171-72, 174; Opp’n at

30.) Plaintiff further contends dropping the certification and

elementary teaching requirements during the application process

demonstrates the District’s intentional discrimination. (See

Compl. ¶¶ 179, 181-86; Opp’n. at 30.)

Even assuming these allegations as true, Plaintiff and

Ms. Cortese were not similarly situated in all material respects,

i.e., unlike Ms. Cortese, who served as an Assistant Principal in

the District for ten years, Plaintiff did not have experience as

an Assistant Principal or Principal. (Compare Pl. Resume, with

Cortese Resume.) Plaintiff alleges to have “served as an assistant

principal in addition to other roles because over 90% of his

position as Director of Academic Affairs is equivalent to that of

an assistant principal.” (Compl. ¶ 157.) The Court already

rejected this exact contention advanced by Plaintiff in his prior

discrimination case, the Sachem Case. See Sachem Decision, 2024

WL 3328637, at *8 (“Plaintiff’s belief that his experience as

Director of Academic Affairs is equivalent to that of an Assistant

Principal is his subjective opinion; it does not support a

discrimination claim.”), aff’d, 2025 WL 946417 at *1 (affirming

dismissal of discrimination claim where Plaintiff “did not have

prior experience working as an assistant principal” and therefore

“fail[ed] to plausibly allege that his comparators were ‘similarly

situated in all material respects’” (citing Littlejohn, 795 F.3d

at 312 (quotation marks omitted))); see also Shands v. Lakeland

Cent. Sch. Dist., No. 15-CV-4260, 2018 WL 3315738, at *13 (S.D.N.Y.

July 5, 2018) (“Plaintiff’s subjective disagreement with

Defendants’ assessment of her qualifications does not make their

decision discriminatory.”) (collecting cases), aff’d, 771 F. App’x

121 (2d Cir. 2019); Crews v. Trs. of Columbia Univ. in City of

N.Y., 452 F. Supp. 2d 504, 526 (S.D.N.Y. 2006) (“Although

[plaintiff] may disagree with [defendant’s] determination that

[another candidate] was more qualified than he, courts are not

permitted to second-guess the reasonableness of the employer’s

criteria for employment or the merits of its selection for the

position.”). It likewise rejects Plaintiff’s equivalence argument

here for the same reason; it is Plaintiff’s subjective opinion,

which does not support his discrimination claim.

Further, Plaintiff offers no factual allegations

suggesting Defendants’ selection of Ms. Cortes for the Principal

position instead of Plaintiff had any nexus whatsoever to

Plaintiff’s race. Rather, Plaintiff baldly alleges: “Hiring Ms.

Cortese, a person who has ‘never taught at the elementary level’

while, reportedly, rejecting Mr. Moss for the same reasons even

though he communicated in writing that he taught mathematics at

the elementary level shows the Defendants’ race and color bias.”

(Compl. ¶ 171.) Such “naked assertions of discrimination without

any specific factual allegation of a causal link between the

defendants’ conduct and the plaintiff’s protected characteristic

are too conclusory to withstand a motion to dismiss.” Soloviev v.

Goldstein, 104 F. Supp. 3d 232, 249 (E.D.N.Y. 2015) (citations

omitted); see also Morales v. New York, 22 F. Supp. 3d 256, 275

(S.D.N.Y. 2014) (“Plaintiff’s conclusory allegations of disparate

treatment and his personal opinion that such treatment was

motivated by discriminatory intent are not enough to prevail on a

§ 1983 claim for a violation of the Equal Protection Clause.”).

Plaintiff’s allegations are based on nothing more than

mere speculation. (See, e.g., Compl. ¶ 96 (“Denying [Plaintiff]

his residency advantage while advancing non-Black/African American

candidates is a form of color/race discrimination.”); id. at ¶ 84

(“The fact that there are zero (0) Bilingual Education certified

school principals demonstrates the [Defendants’] tendency and

propensity (trend) to hire underqualified Whites/Caucasians at the

expense of a healthy diversity of professional backgrounds to meet

the needs of the student body.”); id. at ¶ 242 (“The District

inaccurately assessed the qualifications of the Plaintiff, a Black

man, to his detriment.”).) Wholly missing from Plaintiff’s

allegations is “the connective tissue that links h[is] protected

status to the alleged failure to hire. [He] offers no allegations,

save for h[is] own speculation . . . , that [Defendants] used that

information in its hiring decisions —- much less that it was a

motivating factor in their decision making.” Scalercio-Isenberg

v. Morgan Stanley Servs. Grp., Inc., No. 19-CV-6034, 2019 WL

6916099, at *5 (S.D.N.Y. Dec. 19, 2019) (dismissing plaintiff’s

Title VII claim because her speculative allegations, i.e., her

gender was used in defendant’s hiring decision, were insufficient

to link her protected status to defendant’s alleged failure-to-

hire) (emphasis in original). Further, “the possibility that ‘the

employer misjudged the qualifications of the applicants does not

in itself expose him to [ ] liability.’” Moss, 2025 WL 946417, at

*1 (citing Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248,

259 (1981)).14

Moreover, contrary to Ms. Cortese, Plaintiff was not

initially selected for an interview for the Principal position.

In fact, Plaintiff was seemingly treated more favorably than other

external candidates given that the Board of Ed. directed Plaintiff

be interviewed after his application was initially rejected. (See

NYSDHR Response at 64.) Admittedly, Plaintiff’s application does

not suggest he had administrative experience at the elementary

school level (see Compl. ¶ 62); nor does Plaintiff allege that the

District selected other non-Black applicants without Assistant

Principal, Principal or elementary school experience for

interviews. Additionally, Plaintiff’s bald allegation that he was

notified of his interview only one day prior, and therefore had

limited time to prepare (Compl. ¶ 88), fails to show any relation

to his race. In fact, both Ms. Martinez, who is Hispanic, and

Plaintiff were notified of their interviews after the other

candidates. (See NYSDHR Response at 64-65.) Furthermore,

14 The Court notes the same standard applies to discrimination

claims brought pursuant to Section 1983 and pursuant to Title VII.

See Moss, 2025 WL 946417, at *2.

Plaintiff’s allegation regarding the District cancelling the

scheduled interviews of two Black applicants (Compl. ¶¶ 137-38),

fails to demonstrate intentional discrimination. First, other

black candidates interviewed for the Principal position; second,

the District provided a legitimate non-discriminatory reason for

canceling the interviews, which was to accommodate interviewing

Plaintiff and Ms. Martinez. (NYSDHR Response at 64.)

Continuing, even if, as Plaintiff contends, Ms. Cortese

was pre-selected for the Principal position, (Opp’n. at 31),

pre-selection alone is not enough to raise an inference of

discrimination. See During v. City Univ., No. 01-CV-9584, 2005 WL

2276875, at *7 (S.D.N.Y. Sept. 19, 2005) (“[E]ven if the Court

were to credit Plaintiff’s [pre-selection allegation], that fact

does not give rise to an inference of discrimination without some

evidence that that pre-selection was somehow discriminatory.”).

Plaintiff’s conclusory assertion that Ms. Cortese was pre-selected

fails to support an inference of intentional discrimination as his

Complaint does not contain any factual allegations plausibly

claiming the pre-selection was based upon Ms. Cortese’s race.

Finally, in his effort to allege intentional

discrimination, Plaintiff relies upon a statement made in the

District’s NYSDHR Response, i.e., “[a]s he so arrogantly does

repeatedly, the Complainant self-servingly concludes that he is

the most qualified and that no one else could ever be more

qualified than him.” (Compl. ¶¶ 36, 121 (citing NYSDHR Response

at p.69) (emphasis added).) Plaintiff likens the term “arrogant”

to “a racial insult synonymous to ‘uppity nigger’.” (Compl. ¶¶

119-36.) In fact, reminiscent of his complaint in the Sachem Case,

Plaintiff’s instant Complaint contains nearly 20 paragraphs of

allegations regarding the use of the term “arrogant,” including

its dictionary meaning, as well as its use in various articles, to

support his perception of the meaning of that word. (Compl. ¶¶

36, 117-136.) However, as in the Sachem Case, here “the Court

declines Plaintiff’s implicit invitation to substitute ‘uppity’--

which Plaintiff contends is a racially disparaging term--for the

District’s use of the word ‘arrogant’ in its NYSDHR Response.”

Sachem Decision, 2024 WL 3328637, at *9. As this Court has made

clear, “Plaintiff’s ‘perception[]’ of the meaning of [‘arrogant’

and ‘uppity’] is not evidence of discrimination.”15 Id. (citing

Brodt v. City of N.Y., 4 F. Supp. 3d 562, 568 (S.D.N.Y. 2014)

(stating a plaintiff’s “feelings and perceptions of being

discriminated against are not evidence of discrimination”)). In

sum, Plaintiff’s allegations are “missing the connective tissue

15 And, this Court further stated in the Sachem Decision: “As

likely, the District’s counsel was inartfully expressing its

frustration with Plaintiff’s history of litigation,” but, at

bottom, “there is nothing to impute this after-the-facts comment

to the District, whose actions and inactions are the basis for

Plaintiff’s claims.” Id.; (see also, e.g., NYSDHR Response at

p.62 and n.1 (addressing Plaintiff’s litigious behavior).)

that links h[is] protected status to the alleged failure to hire,”

see Scalercio-Isenberg, 2019 WL 6916099, at *5, and fails to

plausibly allege the existence of a similarly situated comparator

to support even a minimal inference of discriminatory intent.

Therefore, Plaintiff’s prima facie discrimination claims based

upon disparate treatment fail.

ii. Disparate Impact

Disparate impact claims “are concerned with whether

employment policies or practices that are neutral on their face

and were not intended to discriminate have nevertheless had a

disparate effect on [a] protected group.” Reynolds v. Barrett,

685 F.3d 193, 201 (2d Cir. 2012) (quoting Robinson v. Metro–North

Commuter R.R. Co., 267 F.3d 147, 160 (2d Cir. 2001)). However,

“equal protection claims under § 1983 cannot be based solely on

the disparate impact of a facially neutral policy.” Id. “It is

well established that ‘[p]roof of racially discriminatory intent

or purpose is required’ to show a violation of the Equal Protection

Clause.” Id. (quoting City of Cuyahoga Falls v. Buckeye Cmty.

Hope Found., 538 U.S. 188, 194 (2003) (internal quotation

omitted)); see also Hayden v. Paterson, 594 F.3d 150, 162 (2d Cir.

2010); Johnson v. Wing, 178 F.3d 611, 615 (2d Cir. 1999) (“[A]

policy does not deny equal protection merely because it is known

to affect a particular class adversely.”) A plaintiff pursuing “a

denial of equal protection under § 1983 must show that the

discrimination was intentional.” Patterson, 375 F.3d at 226;

Johnson v. County of Nassau, No. 10–CV-6061, 2014 WL 4700025, at

*17 (E.D.N.Y. Sept. 22, 2014) (stating “whereas a plaintiff may

pursue a disparate impact theory of liability under Title VII, he

may not do so under Sections 1981 or 1983” (citation omitted)).

Therefore, because Plaintiff fails to allege intentional

discrimination, as addressed supra, he cannot proceed under a

disparate impact theory of liability in his claim brought pursuant

to Section 1983. Accordingly, finding Plaintiff’s Complaint fails

to plausibly allege a prima facie discrimination claim pursuant to

Section 1983, Plaintiff’s equal protection-based claim is

DISMISSED pursuant to Rule 12(b)(6).

iii. Plaintiff’s Claims Against the

Individual Defendants Fail

Here, where the Court has determined that, as a matter

of law, no underlying Constitutional violation exists, Plaintiff’s

claims against the individual Defendants fail as a matter of law.

Guity v. Uniondale Union Free Sch. Dist., No. 15-CV-5693, 2017 WL

9485647, at *28 (E.D.N.Y. Feb. 23, 2017), report and recommendation

adopted, 2017 WL 1233846 (E.D.N.Y. Mar. 31, 2017); see also J.E.

ex rel. Edwards v. Ctr. Moriches Union Free Sch. Dist., 898 F.

Supp. 2d 516, 553–54 (E.D.N.Y. 2012) (“Plaintiffs’ claims against

the individual defendants rely on the same underlying conduct and

arguments as those made against the District Defendants . . . .

As plaintiffs have not proffered any additional evidence for these

claims against the individual defendants nor have shown that such

defendants caused plaintiffs to be deprived of a federal right

. . . plaintiffs’ claims against the individual defendants for

violations of their constitutional rights fail as a matter of

law.”); Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d

107, 122 (2d Cir. 2004) (“In order to establish individual

liability under § 1983, a plaintiff must show . . . that the

defendant caused the plaintiff to be deprived of a federal

right.”); Dunk v. Brower, No. 07-CV-7087, 2009 WL 650352, at *8

(S.D.N.Y. 2009) (observing the “Supreme Court has found that if

there is no constitutional violation, there can be no liability,

either on the part of the individual officer or the government

body”); Adler v. S. Orangetown Cent. Sch. Dist., No. 05-CV-4835,

2008 WL 190585, at *13 (S.D.N.Y. Jan. 17, 2008) (“As Plaintiffs

have not set forth a prima facie case of [] discrimination, their

claims against the individual Defendants in their individual

capacities must be dismissed.”). Thus, as there is no underlying

constitutional violation here, there is no basis to impose

liability upon the individual Defendants.

In any event, Plaintiff also fails to adequately allege

the requisite personal involvement of each individual Defendant in

his Complaint. To state a claim for individual liability under

Section 1983, “a plaintiff must demonstrate a defendant’s personal

involvement in the alleged [constitutional violation].” Valenti

v. Massapequa Union Free Sch. Dist., No. 09–CV–0977, 2010 WL

475203, at *8 (E.D.N.Y. Feb. 5, 2010) (citation omitted) (emphasis

in original); see Kantrowitz v. Uniondale Union Free Sch. Dist.,

822 F. Supp. 2d 196, 218 (E.D.N.Y. 2011) (citing Ashcroft v. Iqbal,

556 U.S. 662 (2009) (“Because vicarious liability is inapplicable

to . . . § 1983 suits, a plaintiff must plead that each Government-

official defendant, through the official’s own individual actions,

has violated the Constitution.”)); Gill v. Mooney, 824 F.2d 192,

196 (2d Cir. 1987) (“Absent some personal involvement by [a

defendant] in the allegedly unlawful conduct of his subordinates,

he cannot be held liable under section 1983.” (internal citations

omitted)). One is not liable for damages for constitutional

violations “merely because he held a high position of authority.”

Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996).

Further, a bald allegation that a defendant served as a

superintendent is insufficient to allege personal involvement;

instead, one needs to include plausible factual allegations

detailing the defendant’s role in the alleged discrimination

against plaintiff. See Edwards v. Jericho Union Free Sch. Dist.,

904 F. Supp. 2d 294, 309 (E.D.N.Y. 2012). Similarly, merely

serving as a member on a committee that made an allegedly

discriminatory hiring decision does not render a board member

personally responsible or liable for that decision; again, to

survive a dismissal motion, a plaintiff must plausibly allege facts

regarding the personal actions of each board member. See, e.g.,

Harry v. McDonald, No. 3:21-CV-1355, 2022 WL 3576676, at *4 (D.

Conn. Aug. 19, 2022) (dismissing Section 1983 action where

complaint failed to plausibly allege personal involvement;

instead, allegations merely stated defendant was member of

commission that made allegedly discriminatory hiring decision).

Here, Plaintiff fails to allege personal involvement in

the purported discrimination of which he complains by any of the

individual Defendants. First, as to Superintendent Loeschner: He

was not part of the initial interview committee involved in

Plaintiff’s non-selection. Rather, it was Superintendent

Loeschner who, in the first instance, directed Plaintiff be

interviewed for the Principal position. (See Loeschner Aff. at

p.123.) The only Superintendent Loeschner-related allegations in

the Complaint are that he publicly called Plaintiff “arrogant”

(Compl. ¶¶ 117-18), which Plaintiff argues “depictct[s] the

Plaintiff as an uppity nigger”. (Opp’n. at 39). As discussed

supra, without more, the “arrogant” remark is wholly insufficient

to plausibly allege Superintendent Loeschner acted with racial

animus.

Second, as to Assistant Superintendent Palmer: Though

she was on the initial interview committee that failed to recommend

Plaintiff be advanced to the second-round of interviews, this fact

alone is insufficient. See McDonald, 2022 WL 3576676, at *4.

Plaintiff additionally alleges that Assistant Superintendent

Palmer “had an admitted prejudicial bias against [him] prior to

his interview” (Compl. ¶ 199), seemingly based upon the fact she

was a named as a defendant in another case brought by Plaintiff.

(Id. ¶ 308.) Plaintiff’s bare assertion is insufficient. See

Kantrowitz, 822 F. Supp. 2d at 218 (“[M]ere bald assertions and

conclusions of law do not suffice.” (citing Davis v. County of

Nassau, 355 F. Supp. 2d 668, 677 (E.D.N.Y. 2005)) (citation and

internal quotation marks omitted). Wholly lacking from the

Complaint are any factual allegations demonstrating any race-based

decisions made by Assistant Superintendent Palmer.

Finally, as to Ms. Cortese: Plaintiff argues Ms. Cortese

“purposefully utliz[ed] any privilege including white privilege

and Internal Candidate privilege to gain access to and ultimately

gain a principal position [which] is wrong and shows Ms. Corteses’

liability in the matter.” (Opp’n. at 36.) Defendants are correct

that such allegations are “baseless” (see Reply at 14); simply

applying for a promotional position, and ultimately being hired

for that position, over another candidate who happens to be African

American, without more, fails to demonstrate race discrimination.

Thus, as Plaintiff fails to allege a causal connection

between any of the individual Defendants actions and the alleged

race discrimination, his claims against the individual Defendants

fail as a matter of law.

iv. Plaintiff’s Municipal Liability and

Official Capacity Claims Fail as a Matter

of Law

It is well-established that “a municipality cannot be

held liable under § 1983 on a respondeat superior theory.” Monell

v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). To establish

a Section 1983 claim against a municipal defendant, a plaintiff

must demonstrate that he has been deprived of a constitutional

right as the result of an official custom or policy. See Giaccio

v. City of N.Y., 308 F. App’x 470, 471 (2d Cir. 2009); see also

Monell, 436 U.S. at 692 (instructing Section 1983 “imposes

liability on a government that, under color of some official

policy, ‘causes’ an employee to violate another’s constitutional

rights”); Frost v. N.Y.C. Police Dep’t, 980 F.3d 231, 257 (2d Cir.

2020) (“To establish liability under Monell, a plaintiff must show

that he suffered the denial of a constitutional right that was

caused by an official municipal policy or custom.” (citation

omitted)).

Plaintiff asserts municipal liability claims against the

District and the Board of Ed. (Compl. ¶¶ 289-300.) However, since

it has found Plaintiff fails to allege any constitutional

violations, the Court need not engage in an analysis concerning

whether alleged constitutional violations arose out of a

governmental custom, policy or practice. See Sachem Decision,

2024 WL 3328637, at *15 (citing Bennett v. Dutchess County, 832 F.

App’x 58, 61 (2d Cir. 2020) (“[W]ithout an underlying

constitutional violation, [the plaintiff’s] Monell claim . . .

likewise fails.”) (citing Segal v. City of N.Y., 459 F.3d 207, 219

(2d Cir. 2006)); further citing Hirsch v. New York, 751 F. App’x

111, 116 (2d Cir. 2018) (“Because the district court properly found

no underlying constitutional violation, its decision to not

address the municipal defendants’ liability under Monell was

entirely correct.”). Thus, Plaintiff’s claim for municipal

liability is futile.

Similarly, Plaintiff’s claims against the Defendants in

their official capacities are futile. See Ward v. City of N.Y.,

No. 08-CV-7380, 2010 WL 3629536, at *3 (S.D.N.Y. Sept. 17, 2010)

(“When an official is sued in his or her official capacity,

however, a court is to treat that claim as it would treat a claim

against the municipality itself.” (quoting Adler, 2008 WL 190585,

at *12 (finding “Plaintiff’s inability to allege a § 1983 case

against the District and the Board requires the dismissal of the

claims against the individual Defendants in their official

capacities”)).

Accordingly, Plaintiff’s municipal liability claim as

well as his claims against the individual Defendants in their

official capacity are DISMISSED.

D. Plaintiff Fails to Plausibly Allege a Conspiracy Claim

To state a cause of action under Section 1985(3), a

plaintiff must allege:

(1) a conspiracy; (2) for the purpose of

depriving a person or class of persons of the

equal protection of the laws, or the equal

privileges and immunities under the laws; (3)

an overt act in furtherance of the conspiracy;

and (4) an injury to the plaintiff’s person or

property, or a deprivation of a right or

privilege of a citizen of the United States.

Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999); see also Traggis

v. St. Barbara’s Greek Orthodox Church, 851 F.2d 584, 586–87 (2d

Cir. 1988); Sachem Decision, 2024 WL 3328637, at *13.

“Furthermore, the conspiracy must also be motivated by some racial

or perhaps otherwise class-based, invidious discriminatory animus

behind the conspirators’ action.” Thomas, 165 F.3d at 146

(citations and internal quotation marks omitted); see also Cine

SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 791 (2d Cir. 2007)

(same). “In other words, ‘the intended victims must be victims

not because of any personal malice the conspirators have toward

them, but because of their membership in or affiliation with a

particular class.’” Sachem Decision, 2024 WL 3328637, at *13

(quoting United Bhd. of Carpenters & Joiners of Am., Local 610 v.

Scott, 463 U.S. 825, 850 (1983)).

As addressed supra, Plaintiff fails to plead a violation

of any constitutional right, therefore, his claim for conspiracy

must be dismissed. See Sachem Decision, 2024 WL 3328637, at *13

(finding, where “Plaintiff fail[ed] to plead a violation of any

constitutional right, . . . his claim for conspiracy must be

dismissed”) (citing Hartley v. Nassau Health Care Corp., No. 10–

CV–3884, 2013 WL 3364375, at *8 (E.D.N.Y. July 3, 2013) (“Plaintiff

has failed to allege the violation of any constitutional right,

and therefore her section 1985(3) [claim] must be dismissed”);

further citing Nasca v. County of Suffolk, No. 05–CV–1717, 2008 WL

53247, at *8 n.8 (E.D.N.Y. Jan. 2, 2008) (“Plaintiff’s conspiracy

claim under 42 U.S.C. § 1985 must also fail because there is no

underlying Section 1983 violation.”) (collecting cases)).

Even if Plaintiff had alleged the violation of a

constitutional right, his conspiracy claim fails for the

additional reason that he fails to allege any plausible facts

suggesting Defendants entered into an unlawful agreement to

deprive Plaintiff of his constitutional rights. See id. (finding

Plaintiff’s operative complaint “contain[ed] no plausible facts

suggesting [d]efendants entered into an unlawful agreement to

deprive Plaintiff of his constitutional rights” and “conclusory

and vague allegations are insufficient to allege [the requisite]

‘meeting of the minds’” thereby requiring dismissal of conspiracy

claim); see also Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003)

(“In order to maintain an action under Section 1985, a plaintiff

must provide some factual basis supporting a meeting of the minds,

such that defendants entered into an agreement, express or tacit,

to achieve the unlawful end.”) (citation omitted). Rather,

Plaintiff baldly alleges: “All Defendants worked together to

suppress the Plaintiff’s paper qualifications through a lack of

real interest in and lack of real consideration of his

application.” (Compl. ¶ 314.) He further claims, “[a]ll of the

Defendants gave passive consent to a process that glaringly

excluded members of the Black race and color classes,” which “is

a form of conspiracy to discriminate.” (Id. ¶¶ 323-24.) Such

conclusory and vague allegations are insufficient to allege a

“meeting of the minds.” Webb, 340 F.3d at 111;16 see also Sanders

v. Sheppard, No. 16-CV-6526, 2019 WL 13405420, at *7 (E.D.N.Y.

Sept. 30, 2019) (“The bare allegation that defendants

‘coordinated’ or ‘all were aware’ is simply another variation of

the conclusion that there was a conspiracy; [plaintiff] alleges no

actual facts suggesting that a meeting of the minds occurred.”

(citing Springs v. City of N.Y., No. 17-CV-0451, 2019 WL 1429567,

at *7 (S.D.N.Y. Mar. 29, 2019))). So too, Plaintiff’s allegation

that Superintendent Loeschner and Assistant Superintendent Palmer

“acted together in setting up the interviews” (Compl. ¶ 325), fails

16 Notably, in his Opposition, Plaintiff acknowledges the

deficiencies of his conspiracy allegations as he “now sees that

his pleading may be deficient of substantive allegations”, and

implicitly requests leave to amend his Complaint. (Opp’n at

26-27.)

to state a plausible conspiracy claim. Wholly lacking from the

Complaint are any “specific factual allegations” that Defendants

entered into an unlawful agreement. See Guity, 2017 WL 9485647,

at *27 (“[T]o properly allege a conspiracy claim, the complaint

must contain specific factual allegations.”). “Complaints

containing only conclusory, vague, or general allegations of a

conspiracy to deprive a person of constitutional rights will be

dismissed.” Alston v. Sebelius, No. 13-CV-4537, 2014 WL 4374644,

at *5 (E.D.N.Y. Sept. 2, 2014) (quoting Brito v. Arthur, 403 F.

App’x 620, 621 (2d Cir. 2010) (internal quotation marks and

citation omitted).

Furthermore, as Defendants contend, Plaintiff’s

conspiracy claim fails for the additional reason that it is barred

under the intra-corporate conspiracy doctrine.17 The intra-

corporate conspiracy doctrine prohibits a conspiracy claim against

employees of the same entity acting within the scope of their

employment, because they are considered a single entity and,

therefore, are legally incapable of conspiring with each other.

17 Plaintiff failed to respond to Defendants’ argument that his

conspiracy claim is barred by the intra-corporate conspiracy

doctrine. (See Support Memo at 20; Reply at 10.) Such failure,

by itself, is enough for the Court to dismiss his conspiracy claim.

See Palmer v. City of N.Y., 564 F. Supp. 3d 221, 238 (E.D.N.Y.

2021) (“A federal court may deem a claim abandoned when a defendant

moves to dismiss that claim and the plaintiff fails to address in

opposition papers the defendant’s arguments for dismissal.”

(collecting cases)); Spinnato v. Unity of Omaha Life Ins. Co., 322

F. Supp. 3d 377, 405 (E.D.N.Y. 2018) (same) (collecting cases).

See Sachem Decision, 2024 WL 3328637, at *14 (citing Varricchio v.

County of Nassau, 702 F. Supp. 2d 40, 62 (E.D.N.Y.2010), and Guity,

2017 WL 9485647, at *28 (stating “where all alleged co-conspirators

are employed by the same municipal entity, the intra-corporate

conspiracy doctrine precludes a conspiracy claim” and recommending

plaintiff’s conspiracy claim brought against board of education,

district superintendent, district assistant superintendent, and

district high school principal be barred by intra-corporate

conspiracy doctrine)). “The only exception to the application of

this doctrine is where the ‘plaintiff adequately alleges that each

defendant possessed an independent, personal conspiratorial

purpose, wholly separate and apart from the entity.’” Id. (quoting

Broich v. Inc. Vill. of Southampton, 650 F. Supp. 2d 234, 247

(E.D.N.Y. 2009); emphasis added in Sachem Decision).

In the instant action, the individual Defendants

involved in the Principal position interview process were

employees of a single municipal entity. Further, “there are no

allegations any of these individuals were acting as separate and

distinct entities in carrying out a purported conspiracy to

discriminate against Plaintiff.”18 Sachem Decision, 2024 WL

3328637, at *14 (citing Guity 2017 WL 9485647, at *28 (finding

18 The Court notes that during the interview process, Ms. Cortese

was already an employee of the District as the then-Assistant

Principal at Northeast Elementary. (See Cortese Resume).

intra-corporate conspiracy doctrine required dismissal of

plaintiff’s conspiracy claim where “plaintiff d[id] not allege

that the Village Board trustees, mayor, former and current chief

of police, or any other Village entity, were effectively acting as

separate entities in carrying out the alleged conspiracy to

terminate plaintiff’s employment” (citing Broich, 650 F. Supp. 2d

at 247)); K.D. ex rel. Duncan v. White Plains Sch. Dist., 921 F.

Supp. 2d 197, 210 (S.D.N.Y. 2013) (“Plaintiffs’ conspiracy claims

also fail because the alleged conspirators are members of the same

public entity, i.e., the [School District].”). “Therefore,

because the individual Defendants were all members of the same

public entity and there are no allegations these Defendants were

effectively acting as separate entities in carrying out the alleged

conspiracy of preventing Plaintiff from being [selected] for the

Principal [p]osition, Plaintiff fails to allege a viable Section

1985(3) conspiracy claim.” Id.

For all these reasons, Plaintiff fails to allege a viable

conspiracy claim. Accordingly, Plaintiff’s Section 1985(3)

conspiracy claim is DISMISSED.

IV. The Court Declines to Exercise Supplemental Jurisdiction Over

Plaintiff’s State Law Claims

Having dismissed Plaintiff’s federal claims, the Court

declines to exercise supplemental jurisdiction over Plaintiff’s

state law claims against the Defendants. See 28 U.S.C.

§ 1367(c)(3) (“The district courts may decline to exercise

supplemental jurisdiction over a claim . . . if . . . the district

court has dismissed all claims over which it has original

jurisdiction. . . .”); Chris H. v. New York, 764 F. App’x 53, 56

(2d Cir. 2019) (“[I]n the usual case in which all federal-law

claims are eliminated before trial, the balance of factors to be

considered under the pendent jurisdiction doctrine -- judicial

economy, convenience, fairness, and comity -- will point toward

declining to exercise jurisdiction over the remaining state-law

claims.”); Gonzalez v. Victoria G’s Pizzeria LLC, No. 19-CV-6996,

2022 WL 842666, at *3 (E.D.N.Y. Mar. 22, 2022) (“The Second Circuit

has made the point that where dismissal of the federal claims

occurs before trial the related state law claims should be

dismissed as well.” (quoting Fernandez v. Main Glatt Corp., No.

12-CV-0986, 2014 WL 1310287, at *4 (E.D.N.Y. Mar. 14, 2014))).

Accordingly, Plaintiff’s state law claims against the Defendants

are DISMISSED WITHOUT PREJUDICE.

V. Leave to Amend

In opposition to Defendants’ Dismissal Motion, Plaintiff

indirectly requests leave to amend the Complaint. (See Opp’n. at

27.) Defendants take the position that leave to amend should be

denied as, inter alia, they “have already expended significant

resources and time in attacking the deficiencies of and defending

against the claims in various forums and over many years [] arising

out of this single hiring decision from 2020.” (Reply at 14, n.3.)

The Second Circuit has stated that “[w]hen a motion to

dismiss is granted, the usual practice is to grant leave to amend

the complaint.” Hayden v. County of Nassau, 180 F.3d 42, 53 (2d

Cir. 1999); see also FED. R. CIV. P. 15(a)(2) (“The court should

freely give leave [to amend] when justice so requires.”). In

addition, leave to replead should be liberally granted to pro se

litigants. See Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir.

2010); Harnage v. Torres, 665 F. App’x. 82, 84 (2d Cir. 2016) (“In

this Circuit, pro se complaints should not be dismissed by the

district court ‘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 Shomo v. City of N.Y., 579

F.3d 176, 183 (2d Cir. 2009))).

Here, given the striking similarity of this case to the

Sachem Case, where this Court denied Plaintiff’s implicit request

to amend his Second Amended Complaint, the Court is hesitant to

grant Plaintiff leave to amend, especially since Plaintiff has

neither explicitly sought such relief nor provided the Court and

Defendants with a proposed amended complaint so that each can

understand the exact changes sought. See Sachem Decision, 2024 WL

3328637, at 16 (quoting Curry v. Campbell, No. 06-CV-2841, 2012 WL

1004894, at *7 (E.D.N.Y. Mar. 23, 2012)). Nonetheless and

reluctantly, considering Plaintiff is proceeding pro se and has

not yet had the opportunity to amend his Complaint in this action,

the Court GRANTS Plaintiff leave to file an Amended Complaint in

accordance with the Federal Rules of Civil Procedure and the

guidance set forth herein. See also Moss, 2025 WL 946417 (2d Cir.

Summary Order affirming Sachem Decision).

Plaintiff shall have 30 days from the date of this

Memorandum and Order to file an Amended Complaint. PLAINTIFF IS

ON NOTICE: If a timely Amended Complaint is not filed, this case

will be closed, with his operative Complaint being dismissed in

accordance with the rulings made in this Memorandum and Order.

Any Amended Complaint shall be clearly labeled “Amended Complaint”

and shall bear the same Docket Number as this Order, “No.

23-CV-6571(JS)(SIL)”. Further, Plaintiff is cautioned that an

Amended Complaint completely replaces the original Complaint.

Thus, all claims and allegations Plaintiff wishes to pursue must

be included in the Amended Complaint.

CONCLUSION

Accordingly, for the reasons set forth above, IT IS

HEREBY ORDERED that Defendants’ Dismissal Motion (ECF No. 14) is

GRANTED in accordance with this Order; all Federal Law Claims in

the Complaint are DISMISSED WITHOUT PREJUDICE with the exception

of the Title VII claims, which are hereby DISMISSED WITH PREJUDICE.

The Clerk of Court shall not enter Judgment until further ordered

by the Court.

IT IS FURTHER ORDERED that the Court declines to exercise

supplemental jurisdiction over Plaintiff’s State Law Claims; as

such, the State Law Claims are DISMISSED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that Plaintiff shall have 30 days

from the date of this Memorandum and Order to file an Amended

Complaint. PLAINTIFF IS ON NOTICE: If a timely Amended Complaint

is not filed, this case will be closed. If Plaintiff chooses to

file a timely Amended Complaint, he is to follow the guidance

provided herein.

IT IS FURTHER ORDERED that the Clerk of the Court is

directed to mail a copy of this Memorandum and Order to the pro se

Plaintiff.

SO ORDERED.

/s/ JOANNA SEYBERT

Joanna Seybert, U.S.D.J.

Dated: May 30, 2025

Central Islip, New York