Opinion

Perry v. Clement

Court
District Court, N.D. New York
Filed
Sep 8, 2025
Cited by
0 cases
Authority
More cited than 39.2%

finding that “Congress intended that the explicit remedial provisions of § 1983 be controlling in the context of damages actions brought against state actors 14 alleging violation of their rights declared in § 1981”

How later courts described this case

  • finding that “Congress intended that the explicit remedial provisions of § 1983 be controlling in the context of damages actions brought against state actors 14 alleging violation of their rights declared in § 1981”
  • explaining that a district court considering a dismissal pursuant to Fed. R. Civ. 12(b)(6
  • acknowledging that a complaint made to the EEOC was a protected activity
  • finding that a supervisor’s comments about “office bitches” and “Brooklyn bimbettes” and sexually suggestive comments by coworkers did not rise to the level of an objectively hostile work environment

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

JESSE PERRY,

Plaintiff,

v. 1:23-CV-1573

(GTS/PJE)

JENNIFER CLEMENT, Commissioner Albany

County Department of Human Resources;1 EDWARD

DUDEK, Assistant Director Albany County

Department of Social Services – Child Support

Enforcement; ANTHONY SIDOTI, Retired Support

Investigator Albany County Department of Social

Services – Child Support Enforcement; LARA

CORMITHIER, Coordinator Albany County

Department of Social Services – Child Support

Enforcement; STEPHEN McCARTHY, Senior

Support Investigator Albany County Department of

Social Services – Child Support Enforcement; GARY

LOMBARDO, Support Investigator Albany County

Department of Social Services – Child Support

Enforcement; EMILY BERLIN, Senior Support

Investigator Albany County Department of Social

Services – Child Support Enforcement also known as

Emily Satalino; CARMEN INCO, Retired Senior

Support Investigator Albany County Department of

Social Services – Child Support Enforcement;

KATHLEEN MATEO, Support Investigator Albany

County Department of Social Services – Child Support

Enforcement; and ERIKA POLAND, Support

Investigator Albany County Department of Social

Services – Child Support Enforcement,

1 There is some question about whether Plaintiff intended to name Jennifer Clement in her

official capacity as the Commissioner of the Albany County Department of Human Resources

(“Department of Human Resources”), or the Department of Human Resources itself; notably, he

lists the Department of Human Resources in the caption of his Amended Complaint, but then

lists Jennifer Clement as Commissioner as a party within that Amended Complaint. (Dkt. No. 8,

at 1.) Because of the Plaintiff’s pro se status and the fact that Title VII claims cannot be brought

against individuals even in their official capacities, Owens v. New York State Dep’t of Corrs. and

Cmty. Supervision, 24-CV-1037, 2025 WL 1795063, at *9 (N.D.N.Y. June 30, 2025) (Nardacci,

J.), the Court will liberally construe Plaintiff’s Amended Complaint as asserting his claims

against the Department of Human Resources.

Defendants.

_____________________________________________

APPEARANCES: OF COUNSEL:

JESSE PERRY

Pro Se Plaintiff

436 Livingston Avenue

Albany, NY 12206

ALBANY COUNTY ATTORNEY’S OFFICE SIA Z. GOOGAS, ESQ.

Counsel for Defendants

112 State Street

Albany, NY 12207

GLENN T. SUDDABY, United States District Judge

DECISION and ORDER

Currently before the Court, in this employment discrimination action filed pro se by Jesse

Perry (“Plaintiff”) against the Albany County Department of Human Resources (“Department of

Human Resources”), Edward Dudek, Anthony Sidoti, Lara Comithier, Stephen McCarthy, Gary

Lombardo, Emily Berlin/Satalino, Carmen Inco, Kathleen Mateo, and Erika Poland (collectively

“Defendants”), is Defendants’ motion to dismiss Plaintiff’s Amended Complaint for lack of

subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) and/or for failure to state a claim

pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No. 17.) For the reasons set forth below, Defendants’

motion is granted.

I. RELEVANT BACKGROUND

A. Plaintiff’s Amended Complaint

Generally, in his Amended Complaint, Plaintiff asserts eight causes of action: (1) a claim

of discrimination and harassment based on race in violation of Title VII of the Civil Rights Act

of 1964 (“First Claim”); (2) a claim of retaliation resulting from his complaint to the Albany

2

County Division of Affirmative Action about discrimination and harassment based on his race in

violation of Title VII (“Second Claim”); (3) a claim of hostile work environment based on his

race in violation of Title VII (“Third Claim”); (4) a claim of hostile work environment in

violation of 42 U.S.C. § 1981 (“Fourth Claim”); (5) a claim that Defendants engaged in unlawful

employment practices in violation of 42 U.S.C. § 703(a)(2) by failing to provide him his annual

employee evaluation (“Fifth Claim”); (6) a claim of retaliation resulting from his filing of

complaints against Defendant Sidoti, Defendant Dudek, and Defendant Comithier on December

4, 2018, July 9, 2020, and March 25, 2021, respectively (“Sixth Claim”); and (7) a claim that

Defendants made false statements to a federal agency in violation of 18 U.S.C. § 1001 (“Seventh

Claim”).2 (See generally Dkt. No. 8.) The specific factual allegations underlying the above

claims will be discussed in more detail as relevant when the Court assesses the merits of

Defendants’ motion.

B. Parties’ Briefing on Defendants’ Motion to Dismiss

1. Defendants’ Memorandum of Law

Generally, in their motion to dismiss, Defendants make seven arguments. (Dkt. No. 17,

Attach. 3.) First, Defendants argue that many of Plaintiffs’ allegations related to his claims

asserted pursuant to Title VII and Section 1981 are untimely. (Id. at 13-16.) Specifically,

Defendants argue that Plaintiff filed his charge of discrimination with the Equal Opportunity

Employment Commission (“EEOC”) on June 22, 2022, and therefore any alleged conduct that

2 Plaintiff also asserts a claim that the continuing-violation doctrine applies to his Title VII

claims. However, because this does not constitute a separate cause of action, the Court will

consider the legal question of whether the continuing-violation doctrine applies when discussing

Plaintiff’s Title VII claims.

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occurred more than 300 days before that date (which would be August 26, 2021) should be

considered time-barred as to his Title VII claims. (Id. at 13.) Defendants also argue that some of

Plaintiff’s allegations of discrimination under 42 U.S.C. § 19833 are also untimely as to that

claim because the relevant statute of limitations is three years, and some aspects of the claim

accrued more than three years before the filing of the Complaint. (Id. at 13-15.) Defendants

further argue that the continuing-violation doctrine is inapplicable because Plaintiff’s allegations

do not plausibly suggest a unified discriminatory policy or practice underlying the actions of the

individual Defendants upon which the claims are based. (Id. at 15-16.)

Second, Defendants argue that the claims against the individual Defendants should be

dismissed, because (a) the factual allegations are so disjointed that they fail to provide fair notice

of the specific claims against each individual Defendant, (b) the timely allegations are

insufficient to state a claim against any of those Defendants, (c) Title VII does not permit claims

against individual Defendants, and (d) the factual allegations do not plausibly suggest that the

individual Defendants were either acting under the color of law or personally involved as to a

Section 1983 claim. (Id. at 17-18.)

Third, Defendants argue that Plaintiff has failed to allege facts plausibly suggesting a

claim of discrimination based on race, because the timely allegations do not suggest that any

actions taken or comments made were discriminatory. (Id. at 18-20.)

Fourth, Defendants argue that Plaintiff has failed to allege facts plausibly suggesting a

claim of retaliation, because he has not alleged any timely adverse employment action following

3 Defendants interpret Plaintiff’s Section 1981 claims as arising under Section 1983 (out of

special solicitude to him) because that is the more appropriate statute giving rise to the “Section

1981” claims Plaintiff has asserted.

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a complaint regarding his co-workers’ or supervisors’ conduct, much less any causal link

between such action and his complaint (as opposed to a causal link between such action and

other factors). (Id. at 21-23.)

Fifth, Defendants argue that, in any event, Plaintiff’s hostile work environment claims

must be dismissed, because (a) the Court lacks subject-matter jurisdiction over those claims

given that they are not addressed in his EEOC charge, or reasonably related to the claims in the

charge, and (b) even if those claims were considered, Plaintiff has not plausibly alleged the

existence of a hostile work environment given that the facts alleged do not plausibly suggest that

any harassing conduct was based on his race (Id. at 23-27.)

Sixth, Defendants argue that Plaintiff’s claims related to unlawful employment practices

and false information must be dismissed, because Plaintiff has not alleged that any failure to

provide him with performance evaluations was discriminatory or deprived him of any

employment opportunities, and he cannot assert a private cause of action to enforce a criminal

statute as to the purported false claims to the EEOC. (Id. at 27-28.)

Seventh, Defendants argue that dismissal with prejudice is warranted because Plaintiff

has already amended the pleadings once and there is no further amendment that would entitle

him to relief. (Id. at 28-29.)

2. Plaintiff’s Opposition Memorandum of Law

Generally, in opposition to Defendants’ motion, Plaintiff makes four arguments. (Dkt.

No. 22, Attach. 1.) First, Plaintiff argues that his allegations related to his Title VII and Section

1983 claims should be found timely because, as to his Title VII claim, he attempted to file his

EEOC charge at least one month earlier than he did, and evidence shows that he asked the EEOC

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investigator “about the earliest and latest dates that discrimination took place,” and as to his

Section 1983 claim, he has alleged that Defendants’ conduct meets the requirements for

supervisory personal involvement. (Id. at 10-13.) Plaintiff also argues that the continuing-

violation doctrine applies to any otherwise untimely conduct, because that conduct was all part

of the same unlawful employment practice. (Id. at 13-14.)

Second, Plaintiff argues that the claims against the individual Defendants should not be

dismissed. (Id.at 14-15.)

Third, Plaintiff appears to generally deny other arguments asserted by Defendants

(including whether he has stated plausible claims of discrimination, retaliation, and hostile work

environment, and whether his other claims are cognizable), but he provides nothing more than

conclusory statements in support of those denials. (Id. at 15-16.)

Fourth, Plaintiff argues that dismissal without prejudice is not warranted, because a jury

could find, based on the relevant facts, that Defendants acted against him in a discriminatory,

retaliatory, and hostile manner. (Id. at 16-17.)

3. Defendants’ Reply Memorandum of Law

Generally, in reply, Defendants make three arguments. (Dkt. No. 24.) First, Defendants

argue that the Court may not consider or incorporate a “failed charge of discrimination” that

Plaintiff submitted to the EEOC that was not part of his Amended Complaint. (Id. at 5.)

Second, Defendants argue that the claims against the individual Defendants should be

dismissed because, again, such claims are not permitted under Title VII, and Plaintiff has not

alleged that any of the individual Defendants took any adverse action against him or were

otherwise personally involved in the alleged violations. (Id. at 6-7.)

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Third, Defendants argue that Plaintiff’s Amended Complaint should be dismissed with

prejudice, because he has not alleged, and cannot allege, facts plausibly suggesting the relevant

claims, especially given there is nothing to substantiate his assertions that the various actions he

alleges Defendants took were part of the same unlawful employment practice. (Id. at 7-8.)

II. GOVERNING LEGAL STANDARD

It has long been understood that a dismissal for failure to state a claim upon which relief

can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds:

(1) a challenge to the “sufficiency of the pleading” under Fed. R. Civ. P. 8(a)(2); or (2) a

challenge to the legal cognizability of the claim. Jackson v. Onondaga Cty., 549 F. Supp.2d 204,

211 nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J.) (adopting Report-Recommendation on de novo

review).

Because such dismissals are often based on the first ground, some elaboration regarding

that ground is appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a

pleading contain “a short and plain statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2) [emphasis added]. In the Court’s view, this tension between

permitting a “short and plain statement” and requiring that the statement “show[]” an entitlement

to relief is often at the heart of misunderstandings that occur regarding the pleading standard

established by Fed. R. Civ. P. 8(a)(2).

On the one hand, the Supreme Court has long characterized the “short and plain”

pleading standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F.

Supp. 2d at 212 n.20 (citing Supreme Court case). On the other hand, the Supreme Court has

held that, by requiring the above-described “showing,” the pleading standard under Fed. R. Civ.

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P. 8(a)(2) requires that the pleading contain a statement that “give[s] the defendant fair notice of

what the plaintiff’s claim is and the grounds upon which it rests.” Jackson, 549 F. Supp. 2d at

212 n.17 (citing Supreme Court cases) (emphasis added).

The Supreme Court has explained that such fair notice has the important purpose of

“enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision

on the merits” by the court. Jackson, 549 F. Supp. 2d at 212 n.18 (citing Supreme Court cases);

Rusyniak v. Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing

Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal”

notice pleading standard “has its limits.” 2 Moore’s Federal Practice § 12.34[1][b] at 12-61 (3d

ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding

that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F. Supp.

2d at 213 n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129

S. Ct. 1937, 1949-52 (2009).

Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an

appellate decision holding that a complaint had stated an actionable antitrust claim under 15

U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). In doing so, the Court

“retire[d]” the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),

that “a complaint should not be dismissed for failure to state a claim unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him

to relief.” Twombly, 127 S. Ct. at 560-61, 577. Rather than turn on the conceivability of an

actionable claim, the Court clarified, the “fair notice” standard turns on the plausibility of an

actionable claim. Id. at 555-70. The Court explained that, while this does not mean that a

8

pleading need “set out in detail the facts upon which [the claim is based],” it does mean that the

pleading must contain at least “some factual allegation[s].” Id. at 555. More specifically, the

“[f]actual allegations must be enough to raise a right to relief above the speculative level [to a

plausible level],” assuming (of course) that all the allegations in the complaint are true. Id.

As for the nature of what is “plausible,” the Supreme Court explained that “[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.” Ashcroft v. Iqbal,

129 S. Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for

relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense. . . . [W]here 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

show[n]–that the pleader is entitled to relief.” Iqbal, 129 S. Ct. at 1950 (internal quotation marks

and citations omitted). However, while the plausibility standard “asks for more than a sheer

possibility that a defendant has acted unlawfully,” id., it “does not impose a probability

requirement.” Twombly, 550 U.S. at 556.

Because of this requirement of factual allegations plausibly suggesting an entitlement to

relief, “the tenet that a court must accept as true all of the allegations contained in the complaint

is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,

supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949.

Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement”

will not suffice. Iqbal, 129 S. Ct. at 1949 (internal citations and alterations omitted). Rule 8

“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.

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Finally, a few words are appropriate regarding what documents are considered when a

dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal

pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following matters outside the

four corners of the complaint may be considered without triggering the standard governing a

motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer,

(2) documents incorporated by reference in the complaint (and provided by the parties), (3)

documents that, although not incorporated by reference, are “integral” to the complaint, or (4)

any matter of which the court can take judicial notice for the factual background of the case.4

4 See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit to a

pleading is a part thereof for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, No. 10-573,

2011 WL 2135734, at *1 (2d Cir. June 1, 2011) (explaining that conversion from a motion to

dismiss for failure to state a claim to a motion for summary judgment is not necessary under Fed.

R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of [1] documents attached to the

complaint or answer, [2] documents incorporated by reference in the complaint (and provided by

the parties), [3] documents that, although not incorporated by reference, are “integral” to the

complaint, or [4] any matter of which the court can take judicial notice for the factual

background of the case); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010)

(explaining that a district court considering a dismissal pursuant to Fed. R. Civ. 12(b)(6) “may

consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and

documents incorporated by reference in the complaint. . . . Where a document is not

incorporated by reference, the court may nevertheless consider it where the complaint relies

heavily upon its terms and effect, thereby rendering the document ‘integral’ to the complaint. . . .

However, even if a document is ‘integral’ to the complaint, it must be clear on the record that no

dispute exists regarding the authenticity or accuracy of the document. It must also be clear that

there exist no material disputed issues of fact regarding the relevance of the document.”)

[internal quotation marks and citations omitted]; Chambers v. Time Warner, Inc., 282 F.3d 147,

152 (2d Cir. 2009) (“The complaint is deemed to include any written instrument attached to it as

an exhibit or any statements or documents incorporated in it by reference.”) (internal quotation

marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72

(2d Cir.1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or

incorporate by reference a [document] upon which it solely relies and which is integral to the

complaint,” the court may nevertheless take the document into consideration in deciding [a]

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III. ANALYSIS

A. Whether Plaintiff’s Fifth and Seventh Claims Should Be Dismissed

After careful consideration, the Court answers the above question in the affirmative for

the reasons stated in Defendants’ memoranda of law. See, supra, Parts I.B.1 and I.B.3 of this

Decision and Order. To those reasons, the Court adds the following analysis.

As to Plaintiff’s Fifth Claim, it is not entirely clear what the legal basis for this claim is.

Plaintiff asserts the claim purportedly under Title VII, but it is not clear that Title VII covers the

alleged conduct. Title VII specifies that covered unlawful employment practices involve (a)

failing or refusing to hire or to discharge an individual, or otherwise discriminating against an

individual “with respect to his compensation, terms, conditions, or privileges of employment,

because of such individual’s race, color, religion, sex, or national origin,” or (b) limiting,

segregating, or classifying employees or applicants for employment in a way that would “deprive

or tend to deprive any individual of employment opportunities or otherwise adversely affect his

status as an employee, because of such individual’s race, color, religion, sex, or national origin.”

42 U.S.C. § 2000e-2(a). As a result, any claim under Title VII requires some showing that the

unlawful employment practice taken by the employer was because of a protected characteristic.

Plaintiff alleges that Defendant Dudek violated the terms of his union contract by failing

to provide Plaintiff with his annual employee evaluation, but does not allege that this failure was

based on his race (or any other protected characteristic) or in retaliation for timely protected

defendant's motion to dismiss, without converting the proceeding to one for summary

judgment.”) (internal quotation marks and citation omitted).

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activity.5 Moreover, to the extent these allegations could be construed, in the alternative, as

giving rise to a breach-of-contract claim, Plaintiff has not provided allegations sufficient to state

such claim given that he does not allege any facts plausibly suggesting what provisions that

contract contains or that any breach of those provisions’ terms caused him to be harmed. See

Nichols v. BAC Home Loans Servicing LP, 13-CV-0224, 2013 WL 5723072, at *9 (N.D.N.Y.

Oct. 18, 2013) (Hurd, J.) (dismissing breach-of-contract claim in part because the plaintiff failed

to identify any provisions of the contract that were violated). Notably, a provision of the

purported agreement that Plaintiff does reference in the Amended Complaint indicates that, if the

required evaluation has not been completed within sixty days after the employee’s anniversary

date, “the employee will be deemed to ‘meet normal requirements of the job’ unless the

evaluation immediately preceding was ‘generally exceeds normal requirements of the job’ in

which case the employee will be deemed to have been rated the latter.” (Dkt. No. 8, at 36.)

Thus, accepting Plaintiff’s allegation that Defendant Dudek failed to provide an annual employee

evaluation of Plaintiff as true, under the terms relied on by Plaintiff, he would necessarily be

deemed as having met the normal requirements of his job, and thus he has not alleged any sort of

harm or damage resulting from the failure to provide an annual evaluation. See Wiener v. AXA

Equitable Life Ins. Co., 113 F.4th 201, 214 (2d Cir. 2024) (indicating that damages are an

5 To the extent the Court might construe these allegations as claiming that Defendant

Dudek failed to provide the evaluation in retaliation for Plaintiff making complaints about

discriminatory treatment, such claim would not be cognizable, because (a) Defendant Dudek, as

an individual, is not liable under Title VII, and (b) no allegations in the Amended Complaint

plausibly suggest that not being provided with that annual evaluation rose to the level of an

adverse employment action (especially given that Plaintiff does not allege how that failure even

impacted him).

12

essential element of a breach-of-contract claim under New York law, and that a defendant can be

liable only for damages that actually follow or may follow from the breach of the agreement).

This same claim also appears to assert that Defendant Dudek engaged in an unlawful

employment practice by telling Plaintiff to “be careful what you say” to Defendant Cormithier

because her boyfriend was good friends with Defendant Sidoti, and by asking Plaintiff to not

inform Mark Horan about harassment and attempts by Defendant Sidoti to assault him. (Dkt.

No. 8, at ¶ 301.) Although Plaintiff does not include dates of when these alleged practices

happened, his other allegations appear to plausibly suggest that this aspect of his claim is time-

barred, as will be discussed below, because the conduct by Defendant Sidoti ended in 2019 when

Defendant Sidoti was transferred to a different unit within Albany County. (Dkt. No. 8, at ¶¶ 97-

99.) Therefore, to the extent Plaintiff is attempting to assert some other sort of claim under Title

VII beyond discrimination, retaliation, and harassment related to Defendant Dudek’s alleged

conduct, such a claim is time-barred.

As to Plaintiff’s Seventh Claim, Plaintiff asserts that Defendants Comithier, Lombardo,

Poland, Berlin/Satalino, and Mateo knowingly made materially false statements to the EEOC in

violation of 18 U.S.C. § 1001. (Dkt. No. 8, at ¶¶ 310-17.) However, this criminal statute does

not provide Plaintiff with any valid civil cause of action. See Conway v. Garvey, 135 F. App’x

485, 486 (2d Cir. 2005) (finding that the plaintiff had no standing to assert a civil claim under 18

U.S.C. § 1001); Rasheen v. Adner, 356 F. Supp. 3d 222, 244 (N.D.N.Y. 2019) (Hurd. J.) (noting

that “the law is well settled that no private citizen has a constitutional right to bring a criminal

complaint against another individual”); Canning v. Hofmann, 15-CV-0493, 2015 WL 6690170,

at *8 (N.D.N.Y. Nov. 2, 2015) (Treece, M.J., Hurd, J.) (dismissing certain claims because

13

“Plaintiff cannot maintain any civil cause of action pursuant to the criminal statutes listed in Title

18 of the United States Code”).

For all of the above-stated reasons, Plaintiff’s Fifth and Seventh Claims are dismissed.

B. Whether Plaintiff’s Fourth Claim is Properly Asserted Pursuant to 42 U.S.C.

§ 1981

After careful consideration, the Court answers the above question in the negative as to

Defendant Department of Human Resources (to the extent Plaintiff intended to assert this claim

against any of the individual Defendants in their official capacities), but in the affirmative as to

the individual Defendants in their individual capacities for the reasons that follow.

Plaintiff has asserted a claim of hostile work environment against certain individual and

supervisory Defendants pursuant to 42 U.S.C. § 1981. Specifically, Plaintiff alleges that (a)

Defendants Dudek and Comithier, acting as supervisors, had direct knowledge of the hostile

work environment to which Plaintiff was subjected, but both failed to take appropriate actions to

remedy that environment and directly participated in its maintenance, and (b) Defendants Sidoti,

McCarthy, Inco, Lombardo, Poland, Berlin/Satalino, and Mateo directly participated in the

maintenance of the hostile work environment. (Dkt. No. 8, at ¶¶ 286-92.)

The Court agrees with Defendants that Plaintiff’s claim as pled is not properly asserted

pursuant to Section 1981 as to Defendant Department of Human Resources or any of the

individual Defendants in their official capacities. The Second Circuit has explicitly held that

Section 1981 “does not provide a separate private right of action against state actors.” Duplan v.

City of New York, 888 F.3d 612, 620-21 (2d Cir. 2018); see also Jett v. Dallas Indep. Sch. Dist.,

491 U.S. 701, 731-32 (1989) (finding that “Congress intended that the explicit remedial

provisions of § 1983 be controlling in the context of damages actions brought against state actors

14

alleging violation of their rights declared in § 1981”). Therefore, to the extent that any the

relevant Defendants are being sued in their official capacities or capacity as state actors

(particularly Defendant Department of Human Resources, which is part of the Albany County

Department of Social Services), Section 1981 would not be the appropriate vehicle for suit, and

such claims must be dismissed.

As Defendants acknowledge, 42 U.S.C. § 1983 could constitute a vehicle for these claims

to the extent Plaintiff attempts to assert them under Section 1981. In light of Plaintiff’s pro se

status, and because the Amended Complaint contains factual allegations that could be construed

as providing a basis for a hostile work environment claim pursuant to Section 1983, the Court

will consider whether the Amended Complaint plausibly suggests such claim in place of the

Section 1981 claim. The Court will discuss that claim in conjunction with the Title VII hostile

work environment claim, because both claims are subject to essentially the same analytical

standards.

However, to the extent the Amended Complaint is construed as asserting claims against

the Defendants in their individual capacities, Section 1981 “outlaws discrimination with respect

to the enjoyment of benefits, privileges, terms, and conditions of a contractual relationship, such

as employment.” Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 224-25 (2d Cir. 2004) (citing

Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 68-69 [2d Cir. 2000]). The Second

Circuit has concluded that an at-will employment agreement that is governed by New York law

constitutes a contract for the purposes of a Section 1981 claim. Whidbee, 223 F.3d at 68 (citing

Lauture v. IBM, 216 F.3d 258 [2d Cir. 2000]). It has also determined that Section 1981

encompasses claims for hostile work environment based on race against individuals. Whidbee,

15

223 F.3d at 68-73. As a result, Plaintiff’s claims against those individual defendants can be

properly brought pursuant to Section 1981. Because a hostile work environment claim brought

pursuant to Section 1981 is subject to essentially the same analysis as the hostile work

environment claims brought pursuant to Title VII and (to the extent such a claim is inferred from

the Amended Complaint) Section 1983, the Court will discuss whether Plaintiff has met the

pleading standard for this claim in conjunction with the others below.

C. Whether Plaintiff’s Claims Pursuant to Title VII, Section 1981, and Section

1983 Should Be Dismissed

After careful consideration, the Court answers the above question in the affirmative for

the reasons stated in Defendant’s memorandum of law. See, supra, Parts I.B.1 and I.B.3 of this

Decision and Order. To those reasons, the Court adds the following analysis.

As an initial matter, it is well-recognized that “‘individuals are not subject to liability

under Title VII.’” McNamara v. Cnty. of Saratoga, 748 F. Supp. 3d 68, 88 n.4 (N.D.N.Y. 2024)

(quoting Buon v. Spindler, 65 F.4th 64, 78 [2d Cir. 2023]); see also Patterson v. Cnty. of Oneida,

N.Y., 375 F.3d 206, 221 (2d Cir. 2004) (noting this principle applies even where the individual

defendant had supervisory control over the plaintiff) (citing Tomka v. Seiler Corp., 66 F.3d 1295,

1313 [2d Cir. 1995]). As a result, any Title VII claim asserted against the individual Defendants

must be dismissed.6 Although, as was discussed above, there is some ambiguity as to whether

Plaintiff has asserted claims against the Department of Human Resources itself or rather against

6 This dismissal applies to the extent such claims were intended to be asserted against the

individual Defendants in either their personal or official capacities. See Barton v. Warren Cnty.,

19-CV-1061, 2020 WL 4569465, at *11 (N.D.N.Y. Aug. 7, 2020) (Suddaby, C.J.) (citing

Emmons v. City Univ. of N.Y., 715 F. Supp. 2d 394, 410 [E.D.N.Y. 2010]); accord Syed v.

NYCHHC Kings Cnty. Hosp., 24-CV-1624, 2025 WL 895384, at *3 (E.D.N.Y. Mar. 24, 2025);

Snowden v. Southerton, 22-CV-0514, 2023 WL 3601654, at *4 (S.D.N.Y. May 23, 2023).

16

that department’s Commissioner, Jennifer Clement, the Court will liberally construe the claims

as being asserted against the institutional defendant out of special solicitude for Plaintiff’s pro se

status.

Before discussing whether Plaintiff has alleged facts to plausibly suggest his various

claims, there are two preliminary matters that must be addressed that will affect the Court’s

assessment of those claims. First, as to the Title VII hostile work environment claim, Defendants

argue that Plaintiff has not exhausted his administrative remedies because (a) that specific claim

was not asserted or mentioned in his EEOC charge, and (b) it is not reasonably related to the

discrimination alleged in the EEOC charge. (Dkt. No. 17, Attach. 3, at 23-24.) Although

Plaintiff did not append a copy of the EEOC charge to the Amended Complaint, Defendants have

provided one with their motion, which the Court may consider because such document is integral

to the Amended Complaint (and because Plaintiff has not challenged the authenticity or accuracy

of the document). See Orsaio v. New York State Dep’t of Corrs. and Cmty. Supervision, 17-CV-

0685, 2017 WL 11269341, at *4 (N.D.N.Y. Nov. 2, 2017) (Sannes, J.) (noting that “the Court

may consider a plaintiff’s charges with the DHR and the EEOC that are either incorporated by

reference or otherwise integral to the complaint without converting a motion to dismiss for

failure to state a claim into one for summary judgment”); see also, supra, Part II of this Decision

and Order. In that charge, Plaintiff asserts discrimination based on “Retaliation, Race,” and

alleges that

Since March 2021, I have been subjected to race-based comments.

I made Respondent management aware of these comments. [M]ade

management aware of these comments on or about September 13,

2021 and September 20, 2021. On or about September 13, 2021, I

have been denied a promotion. I believe I have been discriminated

17

and retaliated against because of my race, African American, in

violation of Title VII of the Civil Rights Act of 1964, as amended.

(Dkt. No. 17, Attach. 2, at 2.) Along with his original Complaint, Plaintiff did include a copy of

the response he received from the EEOC on September 15, 2023, in which the EEOC indicated

that it had investigated specifically (a) Plaintiff’s allegations of race-based comments, and (b) the

alleged retaliation in the form of denial for a promotion. (Dkt. No. 1, at 26.) Although neither

Plaintiff nor the EEOC explicitly mention a hostile work environment, his allegation that he had

been subjected to race-based comments between March 2021 and September 2021 could be read

as plausibly suggesting that Plaintiff suggested the existence of such a racially hostile

environment, and that the EEOC explicitly investigated what Defendants did in response to

Plaintiff’s complaints about those comments. The fact that Plaintiff did not go into the level of

detail about the specifics of those comments in the EEOC charge as he later did in his Amended

Complaint does not mean the claim was not reasonably raised. Based on this fact, the Court

finds that the hostile work environment claim is within the scope of the EEOC charge, and the

Court may rightfully consider it as part of this action. However, as with the other Title VII

claims, the scope of that claim is bounded by the timeliness requirements, unless Plaintiff meets

the criteria of the continuing violation doctrine.

Second, Defendants have asserted that certain factual allegations in Plaintiff’s Amended

Complaint are time-barred related to Plaintiff’s Title VII discrimination and retaliation claims

because they occurred more than 300 days before when he submitted his EEOC charge. Plaintiff

filed his charge with the NYSDHR/EEOC on June 22, 2022, which means that, absent

application of the continuing violation doctrine, incidents occurring before August 26, 2021, are

not timely and cannot be used as the basis for either one of those claims. See Nat’l R.R.

18

Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002) (noting that, in the case of a discrete

retaliatory or discriminatory act, a party “must file a charge within . . . 300 days of the date of the

act or lose the ability to recover for it”). Indeed, “discrete acts that fall within the statutory

period do not make timely acts that fall outside the time period,” even where untimely acts are

related to timely acts alleged in a timely filed charge. Nat’l R.R. Passenger Corp., 536 U.S. at

112.

As to the Section 1983 hostile work environment claim, Defendants are correct that the

statute of limitations applicable to such claim in New York is three years. Kane v. Mount

Pleasant Cent. Sch. Dist., 80 F.4th 101, 108 (2d Cir. 2023) (citing Lucente v. Cnty. of Suffolk,

980 F.3d 284, 308 [2d Cir. 2020]). Plaintiff filed his original Complaint on December 14, 2023,

which means that only allegations occurring on or after December 14, 2020, could conceivably

be considered timely. However, the continuing-violation doctrine can apply to claims brought

pursuant to Section 1983. See Ugo-Alum v. New York State Dep’t of Motor Vehicles, 23-CV-

7458, 2024 WL 3553168, at *13 (S.D.N.Y. July 26, 2024) (citing Shomo v. City of New York,

579 F.3d 176, 182 [2d Cir. 2009]; Lucente, 980 F.3d at 309). Moreover, in the Second Circuit,

“time-barred evidence regarding non-discrete acts––including lack of training, evaluations, and

discipline––are admissible to prove a hostile work environment claim under the continuing

violation doctrine,” as long as “‘all acts which constitute the claim are part of the same unlawful

employment practice and at least one act falls within the time period.’” Sooroojballie v. Port

Auth. of New York & New Jersey, 816 F. App’x 536, 542 (2d Cir. 2020) (quoting Davis-Garett v.

Urban Outfitters, Inc., 921 F.3d 30, 42 [2d Cir. 2019]). As a result, in assessing the merits of

any Section 1983 claim, the Court would not necessarily be bound to considering only timely

19

allegations, but rather may consider any allegations of non-discrete conduct that are part of the

same unlawful employment practice as a timely act.

Similarly, as to the Section 1981 hostile work environment claims, the statute of

limitations applicable to such a claim is four years. Banks v. Gen. Motors, LLC, 81 F.4th 242,

260 (2d Cir. 2023) (citing Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 [2004]). This

means that only allegations occurring on or after December 14, 2019, could conceivably be

considered timely. However, the continuing-violation doctrine also applies to Section 1981

claims. See Taylor v. City of New York, 207 F. Supp. 3d 293, 309 n.10 (S.D.N.Y. 2016) (noting

that the same standard for a continuing violation applies to both Title VII and Section 1981

claims).

1. Title VII Discrimination and Retaliation Claims Against Defendant

Department of Human Resources

As discussed above, the only remaining discrimination and retaliation claims are against

Defendant Department of Human Resources. Plaintiff does not appear to allege that Defendant

Department of Human Resources itself directly discriminated or retaliated against him, but rather

alleges that he made numerous complaints about the alleged conduct of his co-workers and

supervisors, including to Defendant Department of Human Resources, yet the Albany County

Department of Social Services and the Child Enforcement Unit “failed to take prompt and

appropriate remedial action to prevent or correct further harassment and discrimination.”7 (Dkt.

No. 8, at 264-80.)

7 The Court notes that, although Plaintiff did not name the Albany County Department of

Social Services as a Defendant in this action, he does, as noted, assert that it failed to adequately

respond to his complaints. The Court will consider Plaintiff’s allegations regarding the response

20

As discussed above, as to Plaintiff’s Title VII claims, only allegations of conduct from on

or after August 26, 2021, are automatically considered to be timely. The timely conduct Plaintiff

has alleged is sparse. He alleges generally that, up until October 2021 when Plaintiff went out of

work for a work-related injury, Defendant Dudek “continued to treat [him] like a second class

citizen” and spoke to him “in a condescending manner of superiority” when reminding Plaintiff

he was Plaintiff’s Coordinator. (Dkt. No. 8, at ¶ 111.) He further alleges that in September

2021, Defendant McCarthy wrote to the Deputy Commissioner of the Albany County

Department of Social Services stating that he felt Plaintiff was a threat to himself and others, a

letter that was later forwarded to the EEOC as part of the Defendants’ response to his EEOC

charge. (Id. at ¶¶ 222-30.) Plaintiff alleges that Defendant Mateo engaged in similar conduct by

writing a letter in which she made false assertions about Plaintiff’s behavior, including that

Plaintiff had been moving things on her desk. (Id. at ¶¶ 231-35.) Relatedly, Plaintiff alleges

that, in October 2021, unspecified Child Support Enforcement Unit Employees had provided

documentation to the Executive Deputy Commissioner of the Albany County Department of

Social Services that they were concerned about Plaintiff’s behavior during the period between

March 2021 through September 2021, and that Defendants McCarthy, Comithier, Lombardo,

Berlin/Satalino, Poland, and Mateo all provided false and misleading statements to the EEOC

regarding Plaintiff’s charge of discrimination. (Id. at ¶ 249.) Plaintiff further alleges that, during

that relevant period of time, he had been required to “pursue a respondent who tied up his

of the Albany County Department of Social Services here as well out of special solicitude to

Plaintiff’s pro se status.

21

tenants, placed a pillow case over their heads and dumped their bodies in a cemetery.” (Id. at ¶

250.)

The above alleged conduct is insufficient to support a claim of either discrimination or

retaliation. “To bring a discrimination claim under Title VII . . ., a plaintiff must allege that ‘(1)

she was within the protected class; (2) she was qualified for the position; (3) she was subject to

an adverse employment action; and (4) the adverse action occurred under circumstances giving

rise to an inference of discrimination.’” Jacobs v. Hudson Valley Family Physicians, PLLC, 725

F. Supp. 3d 235, 245-46 (N.D.N.Y. 2024) (quoting Farmer v. Shake Shack Enters., LLC, 473 F.

Supp. 3d 309, 324 [S.D.N.Y. 2020]). For the purposes of a discrimination claim, “[w]e define an

adverse employment action as a materially adverse change in the terms and conditions of

employment.” Buon v. Spindler, 65 F.4th 64, 79 (2d Cir. 2023) (quoting Sanders v. New York

City Hum. Res. Admin., 361 F.3d 749, 755 [2d Cir. 2004]). “An adverse employment action is

one which is more disruptive than a mere inconvenience or an alteration of job responsibilities.”

Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003). These include “termination of employment,

a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of

benefits, significantly diminished material responsibilities, or other indices . . . unique to a

particular situation.” Terry, 336 F.3d at 138. “At the motion to dismiss stage, plaintiffs need not

allege facts to demonstrate defendant’s discriminatory motive,” but rather “are only required to

plausibly allege the existence of a prima facie case of discrimination to trigger the presumption

that defendant discriminated against them.” Jacobs, 725 F. Supp. 3d at 246 (citing Littlejohn v.

City of New York, 795 F.3d 297, 311 [2d Cir. 2015]).

22

Plaintiff’s discrimination claim does not meet the above requirements because he has

failed to plausibly allege that he suffered any adverse employment action. Plaintiff does not

allege that the above-described timely conduct resulted in any materially adverse change in the

terms and conditions of his employment. Of note, although Plaintiff alleges that he had to stop

working in or after October 2021, he specifically alleges that his absence was because he

“suffered a work related injury with a pit bull dog while serving a child support summons.”

(Dkt. No. 8, at ¶ 23.) He does not allege that Defendants’ conduct had anything to do with that

absence, or that the statements made by his co-workers and/or supervisors to the Albany County

Department of Social Services and/or the EEOC resulted in any consequence to the terms and

conditions of his employment. As a result, the timely alleged conduct is insufficient to state a

claim for discrimination under Title VII.

However, that does not end the Court’s analysis because Plaintiff has also argued that the

continuing-violation doctrine should be applied to his claims. Generally, the continuing-

violation doctrine applies only where a plaintiff has alleged “‘a series of separate acts that

collectively constitute one unlawful [] practice.’” Herrera v. Syracuse Univ., 24-CV-0245, 2025

WL 874734, at *7 (N.D.N.Y. Mar. 20, 2025) (Nardacci, J.) (quoting Washington v. Cnty. of

Rockland, 373 F.3d 310, 318 [2d Cir. 2004]). “As a general rule, incidents must be more than

episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.”

Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002). Further, in order for the doctrine to apply,

a plaintiff must show that “an act contributing to that [violation] took place within the statutory

time period.” Basdeo v. New York City Transit Auth., 2022 WL 4121379, at *4 (E.D.N.Y. Sept.

9, 2022) (quoting Sant v. Stephens, 821 F. App’x 42, 45 [2d Cir. 2020]).

23

As an initial matter, the Court finds that the conduct Plaintiff alleges regarding Defendant

Sidoti specifically is clearly not related to the timely conduct and cannot be brought into

consideration by the continuing-violation doctrine related to any of Plaintiffs claims. Plaintiff

alleges that Defendant Sidoti repeatedly threatened him and attempted to physically assault him,

among other things. (Dkt. No. 8, at 27.) However, Defendant Sidoti was transferred from

Plaintiff’s department and was no longer his supervisor after May 2019, so that conduct stopped

years before Plaintiff filed his EEOC charge; and there is no reasonable link between Defendant

Sidoti’s remote conduct and any of the allegations related to the actions of the other Defendants,

much less between Defendant Sidoti’s conduct and specifically the timely conduct. As a result,

Defendant Sidoti’s conduct cannot be considered to be part of any sort of continuous and

concerted unlawful practice related to the timely conduct.

Other untimely conduct that Plaintiff alleges includes the following: (a) Defendant Dudek

telling him after he was hired in December 2015 that he was the first Black man hired in the

Child Support Enforcement Unit in twenty-five years, and that, after he was hired, “a lot of

people” stopped talking to Defendant Dudek; (b) in December 2016, Plaintiff observed co-

worker Defendant McCarthy “parading around” a National Enquirer magazine (which he left on

a conference table for three days) that had depictions of Ku Klux Klan cross burnings; (c) on an

unknown date, Defendant McCarthy “allegedly displayed a Confederate Flag on the front of his

car” while it was in the employee parking lot (which he was told to remove); (d) between May

2019 and September 2021, Defendant Dudek treated Plaintiff “like a second class citizen and a

Black Lives Mater protestor,” and made comments such as that he had voted for Donald Trump,

asking Plaintiff why he would not move from his “bad neighborhood,” and that he wanted to see

24

Plaintiff’s “Arbor Hill/West Hill boxing skills”; (e) on or about May 14, 2018, Defendant Dudek

encouraged Plaintiff not to go near any Black Lives Matter protests because he was worried

people would know Plaintiff worked for him; (f) in March 2020, Plaintiff was told to go home

because there was no work to do as a result of court closures, despite the fact no other co-worker

was asked to go home; (g) in May 2020, Defendant Dudek made comments to Plaintiff to the

effect that “I know how to get rid of the Black Lives Matter protestors. The same way the Nazis

got rid of the Jews. Except now the Blacks are the Nazis and the Whites are the Jews. You’re

trying to get rid of White people,” and mentioned that he collected Nazi memorabilia; (h) in June

2020, Plaintiff requested use of a county car, which was refused (notably, others in his unit did

not use county cars for serving petitions); (i) sometime in July 2020, Plaintiff’s co-workers were

moving things around on his desk; (j) in March 2021, following implicit bias training, Defendant

Donlon began greeting some of Plaintiff’s co-workers by saying “hey, racist!,” for which

Defendant Comithier later apologized to Plaintiff when he overhead and expressed discomfort;

(k) on April 20, 2021, Defendant Inco whistled “We Shall Overcome” as he walked by

Plaintiff’s desk; (l) in May and June of 2021, Plaintiff assigned to serve a child support petition

to a mother of a deceased child related to that deceased child, which was later determined to have

been generated with wrong information by Defendant Inco; (m) in June 2021, Defendant

Lombardo “repeatedly” sang another song typically associated with the civil rights movement to

Plaintiff; and (n) on or about July 15, 2021, Defendant Comithier said to Plaintiff “you would

complain if they hung you with a new rope” in response to Plaintiff’s complaints, and explained

that was something her father used to say. (See e.g., Dkt. No. 8, at ¶¶ 24-25, 30, 60-61, 72, 75-

77, 96, 108, 114, 116, 135-36, 158-63, 168, 182-83, 187, 191, 193, 239, 250-53.) Plaintiff also

25

alleged that Defendant Comithier told him “you dress nice, you talk nice but those braids, they

have got to go[;] you have to do something about your hair,” but it is not clear when that

statement was made. (Dkt. No. 8, at ¶ 93.)

The above allegations, although many relate to race generally and sometimes specifically

to Plaintiff’s race, simply do not suggest a continuous and concerted unlawful practice that

connects with timely alleged conduct. Many appear to be isolated statements or actions by

various different individuals; and, most importantly, the alleged untimely statements and actions

do not appear related to the alleged timely actions. There is simply no continuity between

Defendant McCarthy’s actions of leaving a magazine with pictures of the Ku Klux Klan,

purportedly having a Confederate flag on his car and making statements that suggest he is racist

or antisemitic (all of which appear to have occurred between 2016 and 2020 and were not

generally alleged to have been specifically directed at Plaintiff), and the timely conduct of

writing an email to Albany County Department of Social Services about Plaintiff’s behavior in

2021.8 As to timely conduct by Defendant Mateo, Plaintiff does not allege that she was involved

in any conduct prior to writing the alleged letter.9 Lastly, as to Defendant Dudek, Plaintiff’s

allegations that he was treated “like a second class citizen” and was spoken to condescendingly

do not somehow render what appear to be infrequent, isolated statements about Black Lives

8 To the extent Plaintiff alleges in a conclusory manner that Defendants Comithier and

Lombardo also wrote letters to the EEOC containing false and misleading statements, the

continuing-violation doctrine does not apply to their untimely conduct for much the same

reasons as related to Defendant McCarthy.

9 This is also generally true to the extent Plaintiff alleges that Defendants Poland and

Berlin/Satalino also made false statements to the EEOC. (Dkt. No. 8, at ¶¶ 255, 311.)

26

Matter protestors, Nazis, Jews, and implications about the nature of the neighborhood where

Plaintiff lived (no matter how inappropriate for a workplace) into a continuous and concerted

unlawful practice.10

Moreover, Plaintiff himself alleges that, as early as June or July 2020, he was expressing

dissatisfaction with the way he was being treated, particularly by Defendant Dudek, and that he

filed a complaint with Defendant Department of Human Resources alleging retaliation and

hostile work environment by Defendant Dudek. (Dkt. No. 8, at ¶¶ 122-125.) This plausibly

suggests that Plaintiff believed by that time that he was being subjected to retaliatory or

discriminatory conduct, yet he did not file an EEOC charge until approximately two years later.

This fact also cautions against application of the continuing-violation doctrine related to any

untimely actions, especially related to Defendant Dudek’s alleged actions. Tassy v. Buttigieg, 51

F.4th 521, 532 (2d Cir. 2022) (noting that the doctrine “provides an ‘exception to the normal

knew-or-should-have-known accrual date’”); McKinnies v. City of New York, 23-CV-2567, 2024

WL 4333703, at *5 (E.D.N.Y. Sept. 27, 2024) (noting that the doctrine should be applied only in

compelling circumstances, which includes “situations in which the unlawful conduct takes place

over a period of time, making it difficult to pinpoint the exact day the violation occurred, or

where there is a pattern of covert conduct such that the plaintiff only belatedly recognizes its

unlawfulness”) (quoting Prince v. Cnty. of Nassau, 837 F. Supp. 2d 71, 95 [E.D.N.Y. 2011],

aff’d, 563 F. App’x 13 [2d Cir. 2014]). Because Plaintiff’s own factual allegations therefore

10 Alternatively, even if the Court were to find Defendant Dudek’s conduct sufficiently

related to be part of a pattern or practice related to his timely conduct, his making of various

statements indisputably does not rise to the level of any sort of adverse employment action, and

thus would not result in any different finding regarding whether Plaintiff has plausibly stated a

claim of discrimination.

27

plausibly suggest that he became aware of conduct that he considered discriminatory, harassing,

or retaliatory well before he filed his EEOC charge, the Court finds that this is not a case where

Plaintiff was prevented by lack of recognition from filing such a charge sooner in order to pursue

his rights as to these earlier, untimely alleged actions. For all of these reasons, the Court declines

to apply the continuing-violation doctrine to Plaintiff’s discrimination and retaliation claims,

noting that, of course, the untimely allegations may still be considered by the Court as

background context for the timely aspects of his claims. See Morgan, 536 U.S. at 113 (noting

that a plaintiff is not barred from using prior untimely acts as background evidence in support of

a timely claim). As a result, Plaintiff’s Title VII discrimination claim against Defendant

Department of Human Resources must be dismissed for failure to allege facts plausibly

suggesting any adverse employment action.

Plaintiff’s retaliation claim requires additional analysis, because it is subject to a slightly

different standard related to what constitutes an adverse action. “To bring a retaliation claim

plaintiffs must plausibly allege ‘(1) participation in a protected activity; (2) that the defendant

knew of the protected activity; (3) an adverse employment action; and (4) a causal connection

between the protected activity and the adverse employment action.’” Jacob, 725 F. Supp. 3d at

246-47 (quoting Krul v. DeJoy, 705 F. Supp. 3d 5, 59 [N.D.N.Y. 2023]). An adverse

employment action, for the purposes of this claim, “is any action that ‘could well dissuade a

reasonable worker from making or supporting a charge of discrimination.’” Vega v. Hempstead

Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015) (quoting Burlington N. & Santa Fe Ry. Co.

v. White, 548 U.S. 53, 57 [2006]). “This definition covers a broader range of conduct than does

the adverse-action standard for claims of discrimination under Title VII,” and is not “limited to

28

discriminatory actions that affect the terms and conditions of employment.’” Vega, 801 F.3d at

90 (quoting Burlington N. & Santa Fe Ry. Co., 548 U.S. at 64).

Plaintiff explicitly alleges that Defendants retaliated against him for the protected activity

of informing the Albany County Division of Affirmative Action “about discrimination and

harassment based on his race.” (Dkt. No. 8, at ¶ 274.) It is not clear precisely when this

protected activity occurred. The Amended Complaint indicates that Plaintiff filed a complaint

against Defendant Sidoti on or about December 4, 2018, which alone is clearly not timely. (Dkt.

No. 8, at ¶¶ 97.) He appears to have made another complaint about being “treated like a second-

class citizen” in June or July of 2020, which appears to have been about being denied the use of a

county car, which, again, is not timely. (Dkt. No. 8, at ¶¶ 117-18.) He also alleges that he filed a

complaint with the Department of Human Resources and/or Division of Affirmative Action

related to “on-going retaliation from my immediate supervisor, Edward Dudek” as well as one

related to hostile work environment, on or about July 9, 2020, followed by another complaint on

July 17, 2020, related to more conduct by Defendant Dudek, all of which resulted in unspecified

retaliation from Defendant Dudek. (Dkt. No. 8, at ¶¶ 122, 124-25.) He made further complaints

about that harassment in September and October 2020, as well as a complaint on or about March

25, 2021, against Defendant Donlon related to him greeting other coworkers with “hey, racist!”

within Plaintiff’s hearing. (Dkt. No. 8, at ¶¶ 140-41, 156-61.) These protected activities, as well

as any associated allegedly retaliatory adverse actions, are again untimely, and none of the timely

actions can be reasonably construed as having being taken as retaliation for these earlier

29

instances of protected activity.11 Moreover, Plaintiff’s allegations generally plausibly suggest

that someone (whether Defendant Department of Human Resources or another entity or

individual) considered those complaints and did not take any negative action against Plaintiff as

a result of his complaints. (Dkt. No. 8, at ¶¶ 126, 128-34, 166.)

Regarding timely conduct, Plaintiff appears to allege that he “generated” four emails in

August and September 2021, though he does not state what the content of those emails was.

(Dkt. No. 8, at ¶ 225.) He further alleges that Defendant McCarthy “used” one of these emails to

draft a letter to the Deputy Commissioner of Albany County Department of Social Services, and

in particular “used Mr. Perry’s words and language to articulate his letter . . . as if they were his

own” to say that he felt Plaintiff was “a threat to himself and others” and had displayed this type

of behavior for years. (Dkt. No. 8, at ¶¶ 226-230.) Defendant Mateo allegedly engaged in the

same conduct. (Dkt. No. 8, at ¶¶ 231-34.) Further, these and other statements by Defendants to

the effect that Plaintiff’s behavior was concerning were provided to the Deputy Commissioner

on or about October 25, 2021, and were forwarded to the EEOC related to a complaint Plaintiff

had filed.12 (Dkt. No. 8, at ¶¶ 249, 254-55.)

11 The Court additionally notes that relevant alleged actions taken against Plaintiff

throughout the time period following these complaints (which are discussed in various places

throughout this Decision and Order) do not rise to the level of an adverse employment action

(even under the broader standard applicable to retaliation claims), because they are not the type

of conduct that would dissuade a reasonable person from reporting discrimination (and, indeed,

did not dissuade Plaintiff from continuing to file complaints and make reports about

discrimination).

12 Plaintiff does not allege the date he filed this apparent earlier EEOC charge, but this

charge cannot be the one that provided the right to sue in this action, because the charge that

provided the right-to-sue notice relied upon here is dated June 22, 2022, after the conduct alleged

in the Amended Complaint. (Dkt. No. 17, Attach. 2, at 2.) The Court therefore construes these

30

Although Plaintiff’s emails in August and September of 2021 could potentially constitute

protected activity (to the extent he appears to allege they were intended to be sent to the

Department of Social Services and/or Defendant Department of Human Resources), his

allegations are simply insufficient to plausibly allege that fact. Specifically, without any

indication of what the content of those emails was, it is impossible for this Court to assess

whether they contained reports of conduct that would be related to a violation of Title VII.

Plaintiff notably attaches multiple emails to the Amended Complaint, but does not include any of

these four alleged emails from August and September of 2021. Nor does the Amended

Complaint even make wholly clear that Plaintiff actually sent those emails, as he alleges merely

that he “generated” them. (Dkt. No. 8, at ¶ 225.) Further complicating this issue, the wording of

Plaintiff’s allegation renders it unclear whether he “generated” those emails to the listed

individuals (who include Jennifer Clement with Defendant Department of Human Resources), or

whether Defendant McCarthy took those emails to the listed individuals himself (as opposed to

Plaintiff sending them). (Dkt. No. 8, at ¶ 225.)13 Even drawing all reasonable inferences in

favor of Plaintiff, the relevant factual allegations cannot be reasonably construed as plausibly

suggesting that these actions constituted a protected activity.

factual allegations as plausibly suggesting that Plaintiff had filed a different EEOC charge at

some point before October 2021.

13 The text of the relevant allegation reads as follows: “On/or about September 2021

Stephen McCarthy took one of the e-mails that the Plaintiff, Mr. Perry had generated on August

20, 2021, September 3, 2021, September 23, 2021 and/or September 30, 2021 to Erin

Stachewicz, Deputy Commissioner, Albany County Department of Social Services (ACDSS),

Sarah Seymour, Deputy Commissioner, Albany County Department of Human Resources or

Jennifer Clement, Commissioner, Albany County Department of Human Resources.” (Dkt. No.

8, at ¶ 225.)

31

In the alternative, the Court finds that Plaintiff has not plausibly alleged that a relevant

employer Defendant knew about his engagement in any timely protected activity. Plaintiff

notably did not name the Albany County Department of Social Services (the entity he worked

for) as a defendant in this action. To the extent that Defendant Department of Human Resources

(as the only non-individual Defendant named in this action) can be considered his “employer”

for the purposes of Title VII (an issue the Court need not decide at this moment), Plaintiff must

allege that it was aware of his engagement in timely protected activity. As with his allegations

about whether his generating of certain emails in August and September of 2021 constituted

protected activity, his allegations about the recipients (or intended recipients) of those emails is

unclear. Specifically, he alleges that those emails were “generated” to “Erin Stachewicz, Deputy

Commissioner, Albany County Department of Social Services (ACDSS), Sarah Seymour,

Deputy Commissioner, Albany County Department of Human Resources or Jennifer Clement,

Commissioner, Albany County Department of Human Resources.” (Dkt. No. 8, at ¶ 225.) There

again is a question of whether these emails were actually sent to the intended recipients, but also

Plaintiff’s use of “or,” which raises the question of whether Plaintiff ever sent those emails to

either individual in the Human Resources Department. As discussed previously, these emails

were not among others attached to the Amended Complaint, and the Court cannot ascertain with

any plausibility to whom of the three individuals listed (if any) Plaintiff did or did not send the

alleged emails and thus cannot determine whether Defendant Department of Human Resources

might have been aware of any complaints regarding violations of Title VII that such emails

might have contained. There are also no allegations that, if the Department was aware of any

protected activity in that respect, it took any adverse action against Plaintiff in response.

32

Plaintiff indeed provides no allegations regarding the Department’s response to those emails (if

they contained complaints regarding conduct made unlawful by Title VII and were indeed sent to

Defendant Department of Human Resources).

The Court does note that Plaintiff’s Amended Complaint appears to suggest that he had

filed an EEOC charge earlier than the one that provided the right to sue in this case, as discussed

above in note 12 of this Decision and Order. The filing of an EEOC charge can constitute a

protected activity. See Quarless v. Brooklyn Botanic Garden Corp., 611 F. App’x 28, 29 (2d

Cir. 2015) (acknowledging that a complaint made to the EEOC was a protected activity).

However, even if the Court considers this to constitute a protected activity in this case (despite

there being few details about when such charge was filed), Plaintiff still has not alleged facts

plausibly suggesting that Defendant Department of Human Resources took any subsequent

adverse action against Plaintiff as a result of that or any other protected conduct. Granted, he

alleges generically that the letters of Defendant McCarthy and Mateo that falsely stole

allegations from his own emails were later sent to the EEOC as part of “Albany County’s”

answer to his EEOC charge. (Dkt. No. 8, at ¶ 227.) However, he does not allege that it was

Defendant Department of Human Resources who engaged in that conduct, much less that it did

so related to his engaging in any timely protected activity of which it was aware.14 Specifically,

even if some of Plaintiff’s allegations could be construed as alleging that Defendant Department

of Human Resources submitted the other Defendants’ false statements to the EEOC as part of

14 Indeed, Plaintiff alleges that the letters written by Defendant McCarthy, Defendant

Mateo, and others were sent specifically to the Deputy Commissioner of the Department of

Social Services, not any individuals at Defendant Department of Human Resources. (Dkt. No. 8,

at ¶¶ 226-29, 249.)

33

their requested position statement on Plaintiff’s charge (Dkt. No. 8, at ¶¶ 254-55), he does not

allege that Defendant Department of Human Resources was aware of the falsity of any of those

letters or that the individual defendants who submitted those letters might have been acting out

of retaliation against Plaintiff, much less that Defendant Department of Human Resources was

aware of any such retaliation and failed to address it. As a result, Plaintiff has not alleged facts

plausibly suggesting that Defendant Department of Human Resources engaged in any timely

retaliatory conduct related to a protected activity.

For all of the above reasons, Plaintiff’s Title VII discrimination and retaliation claims

against all Defendants must be dismissed for failure to state a claim upon which relief can be

granted.

2. Title VII, Section 1981, and Section 1983 Hostile Work Environment

Claims

As discussed above, because Title VII claims cannot be asserted against individual

defendants, Plaintiff’s only remaining claim for a hostile work environment under Title VII is

against Defendant Department of Human Resources. By contrast, the hostile work environment

claims under Section 1981 and (to the extent applicable) Section 1983 also remain against the

individual Defendants. (Dkt. No. 8, at ¶¶ 286-92.)

a. Claims Against Defendant Department of Human Resources

Plaintiff does not appear to assert any factual allegations plausibly suggesting that

Defendant Department of Human Resources directly engaged in any of the conduct that Plaintiff

alleges to be harassing or which created the alleged hostile work environment, but rather appears

to imply that the Department should be held liable for the actions of Plaintiff’s co-workers and

supervisors in the Child Support Enforcement Unit.

34

“[T]o hold an employer liable for [] a hostile work environment, federal law requires the

plaintiff to show ‘a specific basis for imputing the conduct creating the hostile work environment

to the employer.’” Bentley v. AutoZoners, LLC, 935 F.3d 76, 90-91 (2d Cir. 2019) (quoting

Summa v. Hofstra Univ., 708 F.3d 115, 124 [2d Cir. 2013]). “If the harassing employee is the

victim’s co-worker, the employer is liable only if it was negligent in controlling working

conditions.” Vance v. Ball State Univ., 570 U.S. 421, 424 (2013). “To demonstrate such

negligence, a plaintiff must adduce evidence ‘that the employer failed to provide a reasonable

avenue for complaint or that it knew, or in the exercise of reasonable care should have known,

about the harassment yet failed to take appropriate remedial action.’” Bentley, 935 F.3d at 92

(quoting Summa, 708 F.3d at 124). If the employee is a supervisor, the employer’s level of

liability is dependent on whether that supervisory employee took a tangible employment action

against the plaintiff: if a tangible employment action was taken, the employer is strictly liable,

but if not, “the employer may escape liability by establishing, as an affirmative defense, that (1)

the employer exercised reasonable care to prevent or correct any harassing behavior and (2) that

the plaintiff unreasonably failed to take advantage of the preventative or corrective opportunities

that the employer provided.” Vance, 570 U.S. at 424 (citing Faragher v. Boca Raton, 524 U.S.

775, 807 [1998]; Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 [1998]). A supervisor is

an employee who “is empowered by the employer to take tangible employment actions against

the victim.” Vance, 570 U.S. at 424.

According to Plaintiff’s allegations, Defendants Dudek, Comithier, and Sidoti were

supervisors, while Defendants McCarthy, Inco, Lombardo, Poland, Berlin/Satalino, and Mateo

were co-workers. However, the Court need not assess whether Plaintiff has sufficiently alleged

35

the relevant standards to impute liability onto Defendant Department of Human Resources

related to those individuals’ conduct, because Plaintiff has not met the threshold requirement of

plausibly alleging the existence of a hostile work environment.

“To state a claim for a hostile work environment in violation of Title VII, a plaintiff must

plead facts that would tend to show that the complained of conduct: (1) ‘is objectively severe or

pervasive––that is, . . . creates an environment that a reasonable person would find hostile or

abusive’; (2) creates an environment ‘that the plaintiff subjectively perceives as hostile or

abusive’; and (3) ‘creates such an environment because of the plaintiff’s [protected

characteristic].’” Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (quoting Gregory v. Daly,

243 F.3d 687, 691-92 [2d Cir. 2001]). In assessing whether the work environment is objectively

hostile, a court should consider factors such as “(1) the frequency of the discriminatory conduct;

(2) its severity; (3) whether it is threatening and humiliating, or a mere offensive utterance; and

(4) ‘whether it unreasonably interferes with an employee’s work performance.’” Patane, 508

F.3d at 113 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 [1993]). “[T]o avoid dismissal

under [Fed. R. Civ. P.] 12(b)(6), a plaintiff need only plead facts sufficient to support the

conclusion that [he] was faced with ‘harassment . . . of such quality or quantity that a reasonable

employee would find the conditions of [his] employment altered for the worse.’” Patane, 508

F.3d at 113 (quoting Terry v. Ashcroft, 336 F.3d 128, 148 [2d Cir. 2003]).

Before applying the above legal standards to Plaintiff’s allegations in the Amended

Complaint, the Court must first assess the scope the conduct to be considered as actionable for

this claim. Plaintiff’s Title VII hostile work environment claim is subject to the same 300-day

timeliness period as his discrimination and retaliation claims, but is also subject to the continuing

36

violation doctrine. Plaintiff’s hostile work environment claims are based primarily on an

assertion that the various Defendants’ racist or racially motivated comments were so harassing

that they created a hostile work environment.

In order for the Court to consider alleged incidents contributing to the hostile work

environment that fall outside the statutory time period, there must be “an act contributing to the

claim [that] occurs within the filing period,” meaning an act that is part of the same unlawful

employment practice and sufficiently related to the timely conduct. Smith v. National Grid USA,

2025 WL 1248676, at *8-9 (E.D.N.Y. Apr. 30, 2025) (citing Banks v. Gen. Motors, LLC, 81

F.4th 242, 260 [2d Cir. 2023]; Davis-Garett v. Urban Outfitters, Inc., 921 F.3d 30, 42 [2d Cir.

2019]); Sanderson v. N.Y. State Elec. & Gas Corp., 560 F. App’x 88, 92 [2d Cir. 2014]). Factors

for assessing whether conduct is similar for these purposes include “‘(1) whether the timely and

untimely harassment is of a similar nature, (2) whether the same individuals perpetuated the

harassment, (3) the frequency and temporal proximity of the acts, and (4) whether the employer

took any intervening remedial action.’” Smith, 2025 WL 1248676, at *9 (quoting Bonterre v.

City of New York, 18-CV-0745, 2021 WL 4060358, at *3 [S.D.N.Y. Sept. 7, 2021]). “As the

Supreme Court has stated, ‘mere utterance of an . . . epithet which engenders offensive feelings

in an employee does not sufficiently affect the conditions of employment to implicate Title

VII.’” Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (quoting Harris v. Forklift

Sys., Inc., 510 U.S. 17, 21 [1993]). Rather, “[f]or racist comments, slurs, and jokes to constitute

a hostile work environment, there must be ‘more than a few isolated incidents of racial enmity,’”

and instead “‘there must be a steady barrage of opprobrious racial comments.’” Schwapp, 118

F.3d at 110 (quoting Snell v. Suffolk Cnty., 782 F.2d 1094, 1103 [2d Cir. 1986]; Bolden v. PRC

37

Inc., 43 F.3d 545, 551 [10th Cir. 1994]). “Thus, whether racial slurs constitute a hostile work

environment typically depends upon ‘the quantity, frequency, and severity’ of those slurs.”

Schwapp, 118 F.3d at 110-11 (quoting Vore v. Indiana Bell Tel. Co., 32 F.3d 1161, 1164 [7th

Cir. 1994]). “‘When analyzing severity, a court must distinguish between merely offensive or

boorish conduct and conduct that is sufficiently severe as to alter the conditions of

employment.’” Barton v. Warren Cnty., 19-CV-1061, 2020 WL 4569465, at *10 (N.D.N.Y.

Aug. 7, 2020) (Suddaby, C.J.) (quoting Alvarado v. Mount Pleasant Cottage Sch. Dist., 404 F.

Supp. 3d 763, 780-81 [S.D.N.Y. 2019]).

As noted previously, the only allegations regarding actions taken after August 26, 2021,

are that (a) various Defendants provided false statements about Plaintiff and his behavior to the

Albany County Department of Social Services and/or the EEOC, (b) Defendant Dudek continued

to treat him like a “second class citizen” and spoke to him in “a condescending manner of

superiority,” and (c) at some point between March 2021 through September 2021, he had been

required to “pursue a respondent who tied up his tenants, placed a pillow case over their heads

and dumped their bodies in a cemetery.” The allegation regarding making false statements has

no connection to any of the other allegations in Plaintiff’s Amended Complaint, and at least one

of the alleged individuals who made those false statements (Mateo) was not identified as being

involved in any conduct against Plaintiff previously. Similarly, the fact that Plaintiff has alleged

that on a few occasions he has been assigned to serve petitions to individuals who turned out to

be threatening or potentially dangerous does not suggest any sort of pattern of harassing conduct,

because (a) these incidents appear to have been isolated and sporadic, and (b) Plaintiff has not

included any allegations plausibly suggesting that he was given those assignments intentionally

38

to harass him or because of his race, but rather they appear to be examples of why Plaintiff

thought it was wrong that Defendant Dudek denied his request to use the county car rather than

his personal vehicle while serving petitions near the neighborhood where he lived. (Dkt. No. 8,

at ¶¶ 207-16.) Plaintiff notes another incident from May or June 2021 in which he was assigned

to serve a petition on a mother for a deceased child, but admits that, at a meeting, it was

explained that Defendant Inco had generated the petition using the wrong information, and he

makes no other allegations to suggest that he was assigned to a faulty petition to harass him as

opposed to as a routine matter of case assignments. (Dkt. No. 8, at ¶¶ 251-53.) The only

allegation that appears to have any connection with the untimely racial statements is related to

Defendant Dudek treating him like a second-class citizen, but Plaintiff offers no elaboration

regarding what conduct Defendant Dudek actually engaged in specifically during the relevant

time.15 Because there does not appear to be a pattern or connection between the timely alleged

conduct and the untimely alleged conduct, the Court finds that the continuing-violation doctrine

should not be applied here related to Plaintiff’s Title VII claim.

As to Plaintiff’s Section 1983 claim, the Court previously noted that there is a longer

window of timeliness, with allegations occurring on or after December 14, 2020, falling within

that period. In addition to the conduct that was timely for the Title VII claim, conduct that has

15 In a different area of the Amended Complaint, Plaintiff alleges that, “[f]rom May 2019

until September 2021, Edward Dudek treated Mr. Perry like a second class citizen and a Black

Lives Matter protestor. Edward Dudek said, ‘Jesse, you know that I voted for Donald Trump.

Your neighborhood has always been bad. Why don’t you move?’” (Dkt. No. 8, at ¶ 72.)

Plaintiff additionally alleged elsewhere that, in June 2020, he complained that he was tired of

being treated like a second-class citizen after being asked by multiple people why he wouldn’t

move from his neighborhood after he had multiple requests to use a county car denied. (Dkt. No.

8, at ¶¶ 116-17.)

39

been timely alleged related to the Section 1983 claim includes the following: (a) in March 2021,

following implicit bias training, Defendant Donlon began greeting some of Plaintiff’s co-workers

by saying “hey, racist!,” for which Defendant Comithier later apologized to Plaintiff when he

overhead and expressed discomfort, (b) on April 20, 2021, Defendant Inco whistled “We Shall

Overcome” as he walked by Plaintiff’s desk, (c) in May and June of 2021, Plaintiff was assigned

to serve a child support petition to a mother of a deceased child related to that deceased child,

which was later determined to have been generated with wrong information by Defendant Inco,

(d) in June 2021, Defendant Lombardo “repeatedly” sang another song typically associated with

the civil rights movement when around Plaintiff, and (e) on or about July 15, 2021, Defendant

Comithier said to Plaintiff “you would complain if they hung you with a new rope” in response

to Plaintiff’s complaints, and explained it that was something her father used to say.

Again, although much of this timely conduct does touch upon race in some fashion, there

is little connection between that conduct and the remaining untimely conduct. The Amended

Complaint does not appear to contain allegations regarding any earlier similar conduct by

Defendant Inco, Defendant Lombardo, or Defendant Donlon.16 Indeed, much of the earlier

relevant conduct relates to Defendant Dudek or Defendant McCarthy (or Defendant Sidoti,

whose conduct, for reasons already discussed, is entirely unrelated to the timely alleged conduct

even as to the Section 1983 claim), with the exception of an undated statement from Defendant

Comithier related to Plaintiff’s hair (which the Court will consider out of special solicitude to the

16 There is an allegation that, in May 2020, Defendant McCarthy made a remark to

Defendant Donlon to the effect that “I’m surprised that after all of the things that have said about

Nazis and Jews, we have not been kicked off Facebook,” but there is no conduct alleged by

Defendant Donlon related to this incident. (Dkt. No. ¶ 110.)

40

pro se Plaintiff). Even the conduct of Defendant Dudek and McCarthy is so sporadic as to not

plausibly suggest a continuous pattern of conduct. For all these reasons, the Court finds that,

even with the expanded range of timely conduct, the continuing-violation doctrine should not be

applied to Plaintiff’s Section 1983 claim, because the untimely conduct is not sufficiently related

to the timely conduct.

That being said, even if the Court were to consider the relevant untimely allegations that

could arguably be considered related by virtue of being perpetrated by the same individuals as

later timely conduct, Plaintiff has not alleged facts plausibly suggesting that he was subjected to

an objectively hostile work environment. As detailed above in Section III.C.1, the allegations all

the way back to 2015 consist of fairly sporadic incidents of various supervisors and co-workers

making statements or engaging in conduct that implicates race in some way, as well as a few

allegations that are not overtly related to race, such as denying Plaintiff use of a county car or

assigning him to deliver summons to persons who were potentially dangerous (or, in one case,

mistakenly to a mother whose child that was the subject of the petition was deceased). These

statements and conduct are not objectively threatening or humiliating, even if most are in poor

taste and inappropriate for the workplace. There have been no allegations of physical threats or

intimidation (outside of the conduct of Defendant Sidoti, which, as already discussed, the Court

finds to be completely unrelated to any timely conduct alleged as to any of the various claims).

Nor was this conduct particularly frequent or severe; although Plaintiff does allege a greater

frequency of comments particularly in 2021, they consist of small things, such as Defendant

Donlon jokingly greeting Defendant Comithier with “hey, racist!” following implicit bias

training, two employees humming or singing portions of songs associated with the civil rights

41

movement on two occasions when Plaintiff was nearby, and Defendant Comithier using a phrase

in conversation that could be construed as implicating Plaintiff’s race. Plaintiff does not allege

that Defendants referred to him or any other individual by racial slurs in the workplace. Nor has

Plaintiff alleged facts to plausibly suggest that this sporadic conduct unreasonably interfered with

his work performance or otherwise altered the conditions of his employment for the worse other

than that it made him subjectively uncomfortable.17 He does allege that he “was unable to work

in the child support enforcement unit (CSEU) from July 2020 until October 13, 2020 due to the

hostile work environment.” (Dkt. No. 8, at ¶ 139.) However, he returned to work in October

2020 (prior to any timely period in this action related to either the Section 1983 or Title VII

claims) and does not allege any need to take a leave of absence or other effects on his ability to

perform his work as a result of the alleged conduct during the timely periods.18 Although

17 Plaintiff alleges that he had to take an extended leave of absence in 2019; but that leave is

specifically noted to be related to the effect of Defendant Sidoti’s harassment, which, as the

Court has already explained, is not connected to the timely incidents of harassment and therefore

is not part of the consideration here. (Dkt. No. 8, at ¶¶ 97-100.)

18 The Court also notes that the Amended Complaint does not contain allegations that

suggest any sort of extreme conduct leading up to July 2020 when Plaintiff alleges he went on an

extended leave. He was encouraged to go home in March 2020 when he was told there was not

work to do due to the COVID-19 pandemic shutdowns; Defendant McCarthy allegedly made a

statement about making racist and/or antisemitic comments on Facebook in conversation with

Defendant Donlon, whose cubicle was next to Plaintiff’s; Defendant Dudek treated him like a

second-class citizen and spoke to him in a condescending manner; he was denied use of a county

car and Defendant Dudek and Defendant Comithier asked him why he wouldn’t move from his

neighborhood; he was told he was not going to be paid for a holiday and another day because he

failed to show up for work on the Friday before the holiday; Defendant Dudek told Plaintiff he

had disrespected him after Plaintiff filed complaints about Defendant Dudek’s retaliation; he was

told he did not have any sick time left when he tried to take a day off; and he reported that his

safety was in jeopardy after serving summons in his neighborhood, after which a policy was

implemented that investigators should not serve petitions within three blocks of his or her

residence. (Dkt. No. 8, at ¶¶ 105-07, 110, 116, 119, 125, 128-34.) None of this suggests an

42

certainly not appropriate, the allegations here do not consist of the type or severity of conduct

that has generally been found to be sufficient regarding the existence of a hostile work

environment. See Levy v. NYC Health + Hosps., 660 F. Supp. 3d 220, 234-35 (S.D.N.Y. 2023)

(finding plaintiff plausibly alleged a hostile work environment where her supervisor engaged in

“continuous” use of a racial slur against plaintiff and other Black employees); Cano v. SEIU

Local 32BJ, 19-CV-8810, 2021 WL 4927166, at *6 (S.D.N.Y. June 15, 2021) (finding plaintiff

raised a plausible claim of hostile work environment where he alleged frequent derogatory

comments about the plaintiff’s ethnicity/national origin combined with exaggerated criticisms of

his performance); France v. Touro College, 14-CV-4613, 2016 WL 1105400, at *11-12

(E.D.N.Y. Feb. 16, 2016) (finding colorable claim of hostile work environment where the

plaintiff’s supervisor sent her more than 70 graphically sexual text messages and attempted to

physically grab her on one occasion); Sardina v. United Parcel Serv., Inc., 254 F. App’x 108,

110 (2d Cir. 2007) (finding that a supervisor’s comments about “office bitches” and “Brooklyn

bimbettes” and sexually suggestive comments by coworkers did not rise to the level of an

objectively hostile work environment); cf. Faragher v. City of Boca Raton, 524 U.S. 775, 788

(1998) (noting that “‘simple teasing’ . . . offhand comments, and isolated incidents (unless

extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of

employment’”).

objectively hostile work environment, even if Plaintiff perceived it as subjectively hostile to the

point where he took a leave of absence.

43

For all of the above reasons, the Court finds that Plaintiff has not plausibly stated a claim

for hostile work environment against Defendant Department of Human Resources pursuant to

either Title VII and Section 1983, and therefore those claims must be dismissed.

b. Claims Against the Individual Defendants Pursuant to Section

1981

The Section 1981 claim permits the automatic consideration of an even broader range of

conduct as timely. Notably, the conduct by Defendant Sidoti remains time barred, because he

was removed as Plaintiff’s supervisor multiple months before December 14, 2019. Plaintiff has

alleged relevant facts such as the following: (a) March 2020, Plaintiff was “encouraged” by

Defendant Dudek to go home because there was no work to do due to court closures caused by

the COVID-19 pandemic; (b) in May 2020, Defendant McCarthy said to Defendant Donlon that

“I’m surprised that after all of the things that we have said about Nazis and Jews, we have not

been kicked off of Facebook”; (c) also in May 2020, Defendant Dudek made various comments

about Nazis and Jews and Black Lives Matter protestors to Plaintiff, including that he collects

Nazi memorabilia; (d) his requests for use of a county car were denied and he was asked by

Defendant Dudek and Defendant Comithier “why don’t you move?”; (e) he was denied pay for

the Fourth of July holiday because he had been out of work the previous Friday; (f) in July 2020,

Defendant Dudek told Plaintiff that he’d “disrespected” him by filing a complaint; and (g) from

July through October 2020, Plaintiff experienced computer problems that were not resolved by

Defendant Donlon. (Dkt. No. 8, at ¶¶ 105-06, 110, 114-16, 119, 125, 134-35, 146.) Again, this

conduct is sporadic and each incident is seemingly unrelated to the other. This conduct is also

not generally related to the earlier conduct alleged. The only conduct that might perhaps be

considered related to that alleged before December 14, 2020, are similar statements made by

44

Defendant Dudek and actions or statements by Defendant McCarthy to those they made during

the relevant time period.

However, even if the Court were to consider all the untimely conduct (excluding, again,

that of Defendant Sidoti) the Court finds that for the reasons discussed in detail above related to

the Title VII and Section 1983 claims against Defendant Department of Human Resources,

Plaintiff has not plausibly alleged an objectively hostile work environment. As a result, for those

same reasons, the Court finds that the Section 1981 claim against the various individual

defendants must be dismissed.

c. Claims Against the Individual Defendants Pursuant to Section

1983

To state a claim pursuant to Section 1983, “a plaintiff must allege that the challenged

conduct: (1) was attributable to a person acting under color of state law; and (2) deprived the

plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United

States.” McCarra v. Flint, 25-CV-0501, 2025 WL 1825559, at *3 (N.D.N.Y. July 1, 2025)

(Dancks, M.J.) (Report-Recommendation) (quoting Whalen v. Cnty of Fulton, 126 F.3d 400, 405

[2d Cir. 1997]). “Private actors ‘may only be held liable under Section 1983 where the conduct

at issue constitutes state action[––]which only occurs where the challenged action of a private

party is fairly attributable to the state.’” McCarra, 2025 WL 1825559, at *3 (quoting Hulett v.

City of Syracuse, 253 F. Supp. 3d 462, 504 [N.D.N.Y. 2017] [Hurd, J.]). The actions of a private

party can be considered to be state action in three situations: (1) “the private party used the

coercive power of the state or is controlled by the state”; (2) “the private party willfully

participates in joint activity with the state or its functions are entwined with state policies”; or (3)

“the state has delegated a public function to the private party.” Phillips v. Schenectady Child

45

Support Unit, 24-CV-0853, 2025 WL 895035, at *14 (N.D.N.Y. Mar. 24, 2025) (Evangelista,

M.J.), report-recommendation adopted by 2025 WL 1191320 (N.D.N.Y. Apr. 24, 2025) (Sannes,

C.J.). “[T]he under-color-of-state-law element of § 1983 excludes from its reach merely private

conduct, no matter how discriminatory or wrongful.’” Hanyon v. United States, 25-CV-0212,

2025 WL 1610574, at *6 (N.D.N.Y. Apr. 15, 2025) (Dancks, M.J.), report-recommendation

adopted by 2025 WL 1502738 (N.D.N.Y. May 27, 2025) (Sannes, C.J.) (quoting Am. Mfrs. Mut.

Ins. Co. v. Sullivan, 526 U.S. 40, 50 [1990]).

Here, Plaintiff has not alleged that the harassing conduct engaged in by any of the

individual Defendants constituted a state action or an action taken under the color of state law.

The harassing conduct Plaintiff has alleged was not taken pursuant to any sort of official state

action or even related to the positions held by any of the individual Defendants, but rather were

personal in nature and engaged in on behalf of themselves as individuals. None of Plaintiffs

allegations plausibly suggest that any of the individual Defendants acted either on behalf of the

state or in joint action with the state related to their alleged harassment of Plaintiff. As a result,

Plaintiff has not alleged facts plausibly suggesting that any of the individual Defendants acted

under color of state law, and any claims against those Defendants pursuant to Section 1983 that

can be inferred from the Amended Complaint must be dismissed.

D. Whether the Court Should Grant Plaintiff Leave to File a Motion to Amend

After careful consideration, the Court answers this question in the negative.

Plaintiff has not made any request for leave to amend, but Defendants have specifically

argued that the Amended Complaint should be dismissed with prejudice and a denial of any

further leave to amend. (Dkt. No. 17, Attach. 3, at 28-29.) “Ordinarily, a court should not

46

dismiss a complaint filed by a pro se litigant 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.’” Kelly

v. Miller, 2025 WL 2301988, at *4 (N.D.N.Y. Aug. 11, 2025) (quoting Branum v. Clark, 927

F.2d 698, 704-05 [2d Cir. 1991]); see also Fed. R. Civ. P. 15(a) (“The court should freely give

leave when justice so requires.”). “An opportunity to amend is not required, however, where

‘the problem with the plaintiff’s causes of action is substantive’ such that ‘better pleading will

not cure it.’” Kelly, 2025 WL 2301988, at *4 (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 [2d

Cir. 2000]) (internal alterations omitted). “Stated differently, ‘where it appears that granting

leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to

amend.’” Kelly, 2025 WL 2301988, at *4 (quoting Ruffolo v. Oppenheimer & Co., 987 F.2d

129, 131 [2d Cir. 1993]).

Here, Plaintiff has already amended the complaint once, which involved fairly significant

substantive changes and additions to his allegations. (Compare Dkt. No. 1 with Dkt. No. 8.)

Moreover, the Court does not see any reason to believe that further amendment would be

productive, because (a) Plaintiff’s already extensive factual allegations do not show that he can

plausibly state the asserted claims, and (b) if additional helpful factual allegations exist as to

those claims, Plaintiff would have included them in the Amended Complaint. Even as to his

retaliation claim, wherein the Court identified certain ambiguities regarding the nature of his

allegations, clarification on those points would not remedy the ultimate inability to state a claim

because, as the Court noted, Plaintiff has not alleged that Defendant Department of Human

Resources took any adverse action against him or had any awareness of timely retaliatory actions

taken against him by any of the other Defendants. Because Plaintiff has already amended his

47

complaint once and there appears to be no indication that further amendment would cure the

defects identified above, the Court finds no reason to afford Plaintiff an opportunity to seek leave

to amend in light of this Decision and Order. Finally, because this dismissal is based entirely on

Fed. R. Civ. P. 12(b)(6), and not Defendants’ alternative argument under Fed. R. Civ. P.

12(b)(1), the Court need not render the dismissal without prejudice.

ACCORDINGLY, it is

ORDERED that Defendants’ motion to dismiss Plaintiff's Amended Complaint (Dkt.

No. 17) is GRANTED; and it is further

ORDERED that Plaintiff's Amended Complaint (Dkt. No. 8) is DISMISSED.

Dated: September 8, 2025

Syracuse, New York

Glenn T. Suddaby ;

U.S. District Judge

48

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