The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------X
JEFFREY SCOTT STEINBERG,
Plaintiff, REPORT AND
RECOMMENDATION
-against- CV 22-4971 (JMA)(AYS)
KATHI VIDAL, Performing the Functions
and Duties of the Under Secretary of Commerce
for Intellectual Property and Director of the
United States Patent and Trademark Office,
Defendant.
------------------------------------------------------------------X
APPEARANCES:
Jeffrey Scott Steinberg, Plaintiff Pro Se
VINCENT LIPARI, ESQ.
United States Attorneys Office
Easter District of New York
610 Federal Plaza
Central Islip, New York 11722-4454
Attorneys for Defendant
SHIELDS, Magistrate Judge:
Plaintiff Jeffery Steinberg (“Plaintiff”) commenced this action against his former
employer, the United States Patent and Trademark Office (the “PTO”) alleging disability
discrimination in violation of the Rehabilitation Act of 1973, 29 U.S.C. §§ 791, 794. See
generally Amended Complaint filed herein appearing as Docket Entry herein (“DE”) [8].
Plaintiff alleges both direct discrimination and retaliation on account of his disability. Presently
before this Court, on referral from the District Court for Report and Recommendation, is
Defendant’s motion for summary judgment. See DE [42]. For the reasons set forth below this
Court respectfully recommends that the motion be granted.
BACKGROUND
I. Basis of Facts Recited Herein
Facts forming the basis of decisions on motions for summary judgment motions are
meant to be derived from the parties’ competing statements of material fact submitted pursuant to
Rule 56.1 of the Local Rules of the United States District Courts for the Southern and Eastern
Districts of New York. Consideration of such statements allows the Court to streamline the
summary judgment process by identifying facts in dispute, as well as those agreed up by the
parties. Parties appearing pro se are not excused from submission of Rule 56.1 statements, so
long as the moving Defendant has properly provided the non-moving party with a notice
compliant with Local Rule 56.2. That notice has been provided to Plaintiff here. See DE [42] at
3. Despite Defendant’s compliance with Rules 56.1 and 56.2, Plaintiff has failed to submit a Rule
56.1 statement. He has instead submitted only a memorandum in opposition to the motion. In
deciding this motion this Court will consider that memorandum, Defendant’s Rule 56.1
Statement, as well the documents annexed thereto that are properly placed before the Court.
II. The Parties and Plaintiff’s Employment at the PTO
The PTO is the agency responsible for granting and issuing patents, registering
trademarks, and disseminating information concerning patents and trademarks to the public. DE
[42-2] at ¶ 5. Plaintiff was an employee of the PTO from 2008 until his 2018 termination.
Plaintiff was first employed as an Assistant Patent Examiner. Id. at ¶ 7. His duties then consisted
of examining patent applications to determine whether they met the statutory and regulatory
requirements for the issuance of a patent. Plaintiff was later employed as a Patent Examiner, with
the same scope of duties. During the course of his employment Plaintiff was not authorized to
approve or reject patent applications. Rather, he reviewed applications and provided comments
and recommendations to a Supervisory Patent Examiner (“SPE”). Those supervisors would then
provide edits, corrections and comments to Plaintiff’s work. When Plaintiff began to work
remotely, all such comments and edits were exchanged remotely through the PTO’s computer
system. Id. at ¶ 8
III. Plaintiff’s Disability
The Court assumes that at all times during his employment at the PTO Plaintiff was
disabled in the manner that he describes in his Amended Complaint. As discussed therein and as
Plaintiff’s employment records and testimony make clear, Plaintiff’s disability stems from a
severe traumatic brain injury (“TBI”) which is traced to a near-fatal car accident that took place
on July 22, 1984 - more than twenty years prior to the 2008 commencement of Plaintiff’s
employment at the PTO. As discussed in Plaintiff’s pleading and briefly stated herein, Plaintiff
suffered a fracture of the right rear hemisphere of his skull. Since the 1984 accident that resulted
in his TBI, Plaintiff has undergone several surgeries. The final such procedure is stated to have
healed in August of 2022. Plaintiff states that his gait impairment remains noticeable, but is far
less severe than in the past. As his many requests for accommodation discussed below make
clear, Plaintiff has, over the years of his employment, experienced difficulty walking. This has
impacted his ability to commute to the Alexandria, Virginia office where he was initially
employed.
Despite clear and consistent evidence describing Plaintiff’s disability as physical in
nature, i.e., relating to his ability to walk to and around his place of work, Plaintiff’s Amended
Complaint states that his TBI seriously affects his ability to process information quickly, and that
prolonged interactions result in verbal and physical fatigue. This pleading and the submission of
a 2016 physician’s note hint that Plaintiff’s claimed disability is mental as well as physical. All
of the other factual evidence submitted in connection with the present motion, however, state
otherwise. These facts demonstrate that the disability for which accommodation was sought was
physical in nature, and in no way impacted Plaintiff’s ability to perform his job. Thus, Plaintiff’s
deposition testimony, self-reported stellar work performance, and the nature of his several years
of accommodation requests (spanning from 2009 through 2013) all belie the notion that any
mental disability or difficulty interfered with Plaintiff’s ability to perform the functions required
of the highly technical and skilled work of a Patent Examiner.
Plaintiff’s deposition testimony is consistent with the physical nature of his disability.
When asked at his deposition whether his disability caused any limitations in his “mental ability”
Plaintiff first responded “Yes, I would think so”. Deposition Transcript of Jeffrey Steinberg dated
8/27/2024 (“Steinberg Tr.”), DE [42-3] at 21:21. However, he clarified that this response referred
to a “[l]ack of social interaction because of the way in which people perceive disabled people.”
Id. at 21:21-23. Plaintiff went on to testify that he did not think that he suffered limitations in
mental abilities. Id. at 22:6. Plaintiff’s requests for accommodation are also consistent with the
fact that Plaintiff’s disability affected his abilities to commute and walk around the PTO campus,
but did not limit his ability to properly perform his work or communicate with his supervisors.
Plaintiff’s testimony as to his work success is similarly consistent with a finding that he
did not need any accommodation to address any intellectual or cognitive difficulty when
performing his duties as a Patent Examiner. Thus, Plaintiff testified at his deposition that prior to
2015 he was performing “fantastically well” “was doing great” and that there “was never an
issue.” Steinberg Tr. at 19:17-18; 34:13; 53:14. He further testified that he did not believe that his
disability affected his work performance. Id. at 21:21-24:22; 34:10-20.
Plaintiff’s 2009-2013 requests for accommodation, discussed below, further support the
conclusion that he never claimed anything other than accommodation for a physical disability.
All such requests for accommodation were granted.
IV. Plaintiff’s Requests for Accommodation: 2009-2013
During the course of his employment Plaintiff made several requests for workplace
accommodation. Like his testimony, these requests - which span several years - refer only to
physical limitations on Plaintiff’s ability to walk. Plaintiff’s first requested workplace
accommodation was made in 2009. Thus, on August 18, 2009, Plaintiff requested the
accommodation of full-time telework to eliminate his walking commute, and to be nearby a
kitchen. DE [42-5]. That request was denied because Plaintiff was then a probationary employee.
As such, it was necessary for Plaintiff to be in the office for training and to meet with his
supervisors. Plaintiff was, however, offered the accommodation of the use of a PTO golf cart
within the campus where he worked. He was also allowed to have a refrigerator in his office so
that he did not have to walk to a kitchen. Id. at 2. The 2009 request for accommodation indicated
no intellectual barrier to performing Plaintiff’s work as a Patent Examiner.
In a November 2010 statement in support of his request for an accommodation Plaintiff
again alluded to his difficulty in coming to his PTO workplace. He stated that although he lived
nearby, it was dangerous for him to walk to work from his home when conditions were icy. He
offered “hotelling” i.e., working from home, as the best solution. As a secondary solution he
requested a work-issued laptop. DE [42-7]. On January 3, 2011 Plaintiff’s request for a laptop
was granted. He was also granted the ability to work from home on days when conditions were
icy in the area near his office. Later that year, in August of 2011, Plaintiff was issued a second
laptop for home office use. DE [42-6] at 4. Like his earlier request for accommodation, the 2010-
2011 documents indicate no cognitive impairment that interfered with Plaintiff’s ability to
perform his work.
In 2012, Plaintiff again requested the accommodation of working from home on a full
time basis. DE [42-8]. That request was made in connection with a program referred to as the
“Telework Enhancement Act Pilot Program” (the “TEAPP”). Plaintiff asked for enrollment in the
TEAPP that would allow him to work from his New York home. This accommodation was
sought to allow Plaintiff to live in close proximity to his New York physician. That physician
apparently stated that Plaintiff would benefit from not having to travel to the patent office, even
on a monthly basis, due to his medical condition. DE [42-8] at 2. This request was denied on the
ground that Plaintiff’s disability did not require that he live in New York, and that the PTO need
not accommodate Plaintiff’s desire to be in close proximity to a particular doctor located in that
State. As explained in the denial, the need to work in New York did not entitle Plaintiff to
participation in the TEAPP. The denial went on to state, however, that Plaintiff was free to
relocate to New York, and thereafter seek to participate in the TEAPP on the same terms as other
employees.
In 2013 Plaintiff was finally granted his request to work from his New York home on a
full time basis. Plaintiff continued to be granted this accommodation, and was allowed to work
remotely from New York until his 2018 termination. To remotely perform his tasks as a Patent
Examiner, Plaintiff communicated with other PTO employees via telephone and
videoconferencing. Am. Compl., DE [8], ¶ 3; DE [42-2] at ¶ 8.
V. Plaintiff’s Supervision at the PTO
A. Supervision by Hjerpe
As a Patent Examiner Plaintiff was supervised by SPE Richard Hjerpe (“Hjerpe”).
Plaintiff interacted positively with Hjerpe who supervised Plaintiff from 2008 until Hjerpe’s
untimely death. The Government does not argue otherwise. Each formal accommodation granted
to Plaintiff was granted when he was supervised by Hjerpe. Each was based on Plaintiff’s
inability to commute to the PTO campus. There is no question but that during that time period
Plaintiff never requested any accommodation regarding the way in which he was supervised, or
interacted with his supervisors. Indeed, Plaintiff made clear that he had no problems performing
the functions of his job, so long as he was allowed to work from home. He states that he was
well-regarded by several of his supervisors between 2008 and 2014.
B. Supervision by Spar and Kumar
The factual basis for the claims of discrimination raised here are traced to the time period
when Plaintiff was supervised first by SPE Ilana Spar (“Spar”) and then by SPE Srilakshmi
Kumar (“Kumar”). Am. Compl. ¶ 12. It was during this period of supervision that Plaintiff’s
documented performance rating began to drop, leading to warnings and his eventual termination.
During this period of time Plaintiff continued to work remotely. He never worked in person with
either Spar or Kumar. Steinberg Tr. at 74:3-7. Still, all of Plaintiff’s claims of discrimination stem
from the way in which Spar and Kumar supervised Plaintiff’s work. As summarized by Plaintiff
in his Complaint, “[i]t was only when defendant . . . applied a different supervisory method” both
by Spar and Kumar” that he “began experiencing significant difficulties in his employment from
2016-2018 -ultimately resulting is his recommended discharge.” Am. Compl. ¶ 12.
i. Supervision by Spar
The genesis of the problems that led to Plaintiff’s low performance ratings and eventual
dismissal are traced to “an error in technology” used by Spar when reviewing Plaintiff’s remote
work. Plaintiff complains (in particular and in great detail) about Spar’s assignment of “errors” to
thirteen of Plaintiff’s cases. The “error in technology” referred to in the Amended Complaint is
one that prevented Plaintiff from seeing Spar’s comments to those thirteen cases. Am. Compl. ¶
15; Steinberg Tr. at 78:4-79:8. Plaintiff had no doubt that the information technology (“IT”)
settings he used at home were incorrect. These errors accounted for his inability to see Spar’s
comments and her consequent assignment of errors to Plaintiff’s work. Plaintiff in no way
connects these IT errors to any disability; they were simply errors that Plaintiff argues should
have been forgiven, but were not. Steinberg Tr. at 79:23-25.
When Spar realized the IT error that prohibited Plaintiff from acting on Spar’s comments
she is alleged to have forgiven only the thirteenth error, but the twelve previously noted errors
were not similarly forgiven, and remained on Plaintiff’s work record. Am. Compl. ¶ 22. Plaintiff
states that Spar’s decision as to the twelve unforgiven errors created a deficit in Plaintiff’s work
performance from which recovery was, as a practical matter, impossible. Plaintiff therefore
argues that it was not fair for Spar to allow twelve of the thirteen errors to remain on his record.
While Plaintiff believed that all thirteen errors should have been forgiven, giving Plaintiff a clean
slate, he does not connect any disability to Spar’s decision. Indeed, Plaintiff testified at
deposition that Spar never said anything about Plaintiff’s disability. Steinberg Tr. 85:21—86:3.
On June 30, 2016, Plaintiff received an oral warning about his performance. That
warning imposed a period of time in which to correct his performance. An August 10, 2016
memo from Spar to Plaintiff confirms the oral warning made to Plaintiff on June 30, 2015. DE
[42-12]. On October 14, 2016, Plaintiff received a confirmation of Spar’s oral warning. The oral
warning period imposed by Spar ended on January 21, 2017. In addition to the warning issued by
Spar, Plaintiff’s poor performance resulted in revocation of his ability to attend work-related
travel to Silicon Valley (the “Silicon Valley Trip”). No demotion or diminution in salary
accompanied the cancellation of the Silicon Valley Trip.
During a conversation with Spar regarding the errors and Plaintiff’s hiring of counsel to
pursue an EEO complaint, Plaintiff remarked to Spar that “this isn’t going to work out for both
of us.” Steinberg Tr. at 116:5-6; 117:5-9. Spar interpreted this language as a threat, which led to a
PTO investigation. Id. at 116:16—117:23. The investigation resulted in no finding that Plaintiff
threatened Spar. No disciplinary measures were taken. Nor did the investigation result in any loss
of pay, demotion or any other adverse consequence to Plaintiff’s job.
ii. Supervision by Kumar
After Spar’s oral warning, Plaintiff met with Tariq Hafiz (“Hafiz”). That meeting took
place on July 14, 2015 and is memorialized in a memo from Hafiz to Plaintiff dated the next day.
Hafiz confirms therein that he approved Plaintiff’s request to be transferred to a new supervisor.
As to any disability, the memo states that Plaintiff mentioned that he had a disability, but he did
not disclose any details thereof. Plaintiff was encouraged to contact the PTO disability office to
pursue any appropriate accommodation. DE [42-13]. On November 7, 2016, Plaintiff’s request to
be transferred to a new supervisor was approved. As of November 13, 2016 Plaintiff was
assigned to report to SPE Kumar. DE [42-14]. Plaintiff was unsatisfied with Kumar’s
supervision. He testified that her supervision was “aggressive” and that she had personal
animosity toward Plaintiff. Plaintiff did not, however, tie any such animosity to any disability.
Instead, Plaintiff takes the position that he does not know why he was subject to this aggressive
managerial style.
VI. 2016-17 Requests for Accommodation
On June 29, 2016, when Plaintiff was under the supervision of Spar, Plaintiff made a
formal request for accommodation. DE [42-9]. Unlike his earlier requests, Plaintiff’s 2016-2017
requests did not reference his ability to walk to the PTO campus. Instead, such requests refer
only to how he was supervised by Spar and Kumar. Thus, when asked in 2016 to identify what
job functions he was having problems performing, Plaintiff did not state any particular function,
much less one that could be helped by way of a disability accommodation. Instead, Plaintiff
stated only that the quality of his work was “suddenly in question.” There is no doubt that was
tied to Spar’s assignment of errors discussed above. When asked to describe an accommodation
that would allow him to perform his job, Plaintiff stated that he had “no idea” what
accommodation he sought, but that any such accommodation would have to be permanent.
Plaintiff’s June 29, 2016 request for accommodation was accompanied by the physician
statement of Dr. Christian Ragnarsson. DE [42-10]. Dr. Ragnarsson’s statement is consistent with
Plaintiff’s earlier and consistent description of his TBI. Thus, the form requesting an
accommodation describes Plaintiff’s impairment as right side hemiparesis and gait disorder due
to traumatic brain injury. DE [42-10] at 4. The impairment is stated to be permanent. As to the
major life activities effected by the impairment, the form checks the areas of: (1) performing
manual tasks; (2) walking; (3) speaking; (4) seeing and (5) lifting. With regard to limitations that
interfere with the employee’s performance, the form responds “I don’t know of any.” This same
response is made to the question inquiring as to what job functions the employee has trouble
performing because of the impairment. Id. When asked what accommodation would be
recommended so that Plaintiff could better perform his duties, Dr. Ragnarsson states that he has
“no opinion except employer’s understanding of his impairment.”
On July 25, 2016 the PTO issued a determination as to the June 2016 request. DE [42-
11]. That determination notes, consistent with the description above, that Plaintiff did not make a
request for a specific accommodation. The PTO therefore denied Plaintiff’s request for a
reasonable accommodation, noting that neither Plaintiff nor his physician identified an
accommodation that would allow Plaintiff to perform his duties. The refusal was without
prejudice and encouraged Plaintiff to request an accommodation that he believed would assist
him in the performance of his duties. DE [42-11].
On March 7, 2017, while he was under the supervision of SPE Kumar, Plaintiff again
filed a request for an accommodation. This request sought a transfer away from the supervision
of Kumar as well as a clean slate regarding the twelve remaining errors assigned to his work.
This request for accommodation identified a bout of extreme bursitis as the medical condition
requiring an accommodation. As a result of this bursitis, Plaintiff took off from work and “failed
to recover from Spar’s failed management. In connection with this request Plaintiff submitted an
updated neuropsychological evaluation by Dr. Dams-O’Connor. Plaintiff visited with Dr. Dams-
O’Connor on October 8 and 11, 2016. In her report Dr. Dams-O’Connor reports that Plaintiff
suffers from a mild neurocognitive disorder due to his TBI. She recommended that Plaintiff: (1)
be allowed extended time periods in which to complete tasks; (2) be allowed a work environment
with minimal distractions; (3) receive important work instructions and information in writing (4)
be granted frequent nap or rest breaks during the work day and (5) be granted a shift in reporting
structure. Two days after the filing of this request for accommodation Kumar issued Plaintiff a
written warning of unacceptable performance as discussed below.
On March 27, 2017 the PTO denied Plaintiff’s request for accommodation as set forth in
the latest request. This denial noted that neither re-visiting Spar’s assignment of twelve errors nor
a change in supervisors were a form of accommodation required by the Rehabilitation Act.
Despite the fact that a change in supervisors is not a form of accommodation, the PTO
nonetheless conducted a “reassignment search to determine if a funded vacant position” at
Plaintiff’s pay grade or lower was available. No such position was identified and on November
20, 2017, the PTO concluded its search effort. See DE [42-22] Plaintiff was also unable to
identify a suitable vacant position. Steinberg Tr. at 155:24-156:25.
VII. Plaintiff’s 2017 Work Performance Under Kumar and His 2018 Termination
Plaintiff’s work performance and evaluation fared no better under Kumar than under the
supervision of Spar. On January 21, 2017, the oral warning period imposed by Spar ended with
Plaintiff failing to have reached the required level of performance. On March 9, 2017, a day after
Plaintiff’s March 2017 request for accommodation - but after Plaintiff had been placed on notice
of his poor performance and after expiration of his oral warning period - Kumar issued Plaintiff a
“Written Warning of Unacceptable Performance in the Elements of Production and Docket
Management” (the “2017 Warning”). The 2017 Warning referred to the earlier warning and
stated that Plaintiff had not improved his performance during the fourth quarter of 2016 to the
required “Marginal” level. Plaintiff was given a stated period of time to increase his score to
reach that level. Plaintiff was warned that the failure to meet this goal could result in his
termination. When asked whether the 2017 Warning correctly evaluated and reported
deficiencies in his work Plaintiff noted that the evaluation was technically correct, but argued
that any deficiency was a result of Spar’s earlier improper supervision. Steinberg Tr. at 136:2-7.
On December 11, 2017, after both the PTO and Plaintiff had failed to identify a vacant
position for Plaintiff, PTO Technology Center Director John Barlow issue a “Notice of Proposed
Removal,” proposing that Plaintiff be terminated for failure to meet the Marginal performance
level discussed above. DE [42-23]. Plaintiff does not dispute his failure to meet that performance
level. He argues only that his failure is traced to Spar’s initial and unfair assignments of error.
Steinberg Tr. at 136:2-7. On March 5, 2018, Plaintiff replied to the proposed removal, stating that
he had a disability that made it hard for him to function under pressure, and he felt that his
supervisor displayed animosity towards him. DE [42-24]. However, he did not dispute that he
failed to meet the standards imposed by the warnings issued.
In a decision dated June 14, 2018, Assistant Deputy Commissioner for Patent Operations
Irem Yucel issued a decision terminating Plaintiff for the reasons set forth in the 2017 Warning.
DE [42-25]. This decision noted Plaintiff’s failure to meet the required performance level in the
elements of Production and Docket Management. Id. On June 18, 2018 Plaintiff emailed his
resignation to Kumar, preserving his right to challenge his dismissal in the courts. DE [42-26].
VIII. Prior Administrative Proceedings
On November 28, 2016, approximately one month prior to this termination, Plaintiff filed
a formal complaint of discrimination with the PTO EEO. DE [42-27]. That agency accepted for
preservation Plaintiff’s claim of disability discrimination on the basis of his TBI, as well as his
claim of retaliation for engaging in the protected activity of seeking reasonable accommodations
and engaging in the EEO process. Plaintiff complained about being placed on oral warning in
October of 2016, which warning prevented him from attending the Silicon Valley Trip; and, since
January 2016, and on-going that he was subjected to an ongoing hostile work environment when
he was falsely accused by Spar of threatening violence. Also preserved was Plaintiff’s claim that
he was improperly treated during the process of transferring supervisors and has been improperly
verbally counseled for his behavior. DE [42-28].
On March 29, 2021, an EEOC Administrative Judge granted the PTO’s motion for
summary judgment and dismissed Plaintiff’s complaint of discrimination. DE [42-29]. On
March 29, 2021, a final order affirming this decision was entered. DE [42-30]. Plaintiff filed a
second formal complaint of discrimination on September 20, 2018. This claim alleged that
Plaintiff was discriminated on the basis of his disability (his TBI) and suffered retaliation when
he was terminated on June 15, 2018. On January 24, 2019, the PTO issued a detailed Final
Agency Decision finding no discrimination, no denial of any reasonable accommodation and no
retaliation. See DE [42-33].
IX. The Lawsuit and the Referred Motion
Plaintiff filed his first complaint herein on August 22, 2022. DE [1]. An amended
complaint alleging discrimination under the Rehabilitation Act was filed on September 13, 2022.
DE [8]. On November 7, 2022 the District Court denied Plaintiff’s request to further amend his
complaint to add a claim under the Americans with Disabilities Act (the “ADA”). See DE [14].
That motion was denied because the ADA does not apply to the Federal Government. Id. The
Government filed its answer on February 15, 2023. DE [20]. The parties thereafter filed their
joint letter pursuant to this Court’s rules, DE [22], and this Court held an initial conference on
May 8, 2023. Defense counsel did not appear at the conference. However, a discovery schedule
was set ordering all fact discovery to be complete by May 1, 2024. The date for conclusion of
expert discovery was set at August 1, 2024. The last day to move for dispositive relief was set at
September 1, 2024. See Order dated 05/08/2023.
On May 1, 2024, the date set for the expiration of fact discovery Plaintiff wrote a letter to
this Court stating his intention to file notices of deposition and asking the Court to “facilitate
these (zoom) depositions and stenography required.” DE [25]. On the same day, Plaintiff
submitted a request to extend discovery for a period of two months so that depositions could take
place “to establish the intentional actions and consequent blatant wrongs done in this case.” DE
[26]. Plaintiff also filed a letter acknowledging that May 1, 2024 was the last day for fact
discovery. DE [27]. In that letter Plaintiff stated that he did not receive responses to his
interrogatories and requests for documents until March 18, 2024, despite having served those
requests over a year before - on February 24, 2023. DE [26] and DE [27] (corrected filing to DE
[26]).1 On May 6, 2024, the Government responded to Plaintiff’s letters and joined in the request
to extend discovery deadlines, asking that the parties be granted until August 1, 2024 to complete
both fact and expert discovery. DE [28].
On May 7, 2024, this Court held a status conference to address the requested extension.
The Court thereafter denied Plaintiff’s pending motions appearing as DE [25-27], but granted the
joint request to extend all discovery – fact and expert – to the previously set date for the
conclusion of expert discovery - August 1, 2024. During that conference the Court made clear to
Plaintiff that the Court does not assist parties with the facilitation of depositions in civil cases,
and that parties – including those proceeding pro se - are required to pay and arrange for any
depositions they deem necessary. Order dated May 7, 2024. On June 3, 2024 Plaintiff filed as a
motion, a document entitled “Rules 36 & 37 Motions - Requests for Admissions & Failure to
Make Disclosures.” That document included a request to admit, interrogatories and document
requests served on the Government. See DE [30]. It reiterated the fact that it took the
Government over a year to respond to Plaintiff’s discovery requests. Id. The same document was
filed by Plaintiff as DE [31]. On June 10, 2024 the Government responded to Plaintiff’s
1 Despite the fact that DE [27] is a motion to extend discovery it appears on the docket herein as a “Motion for
Issuance of Letters Rogatory”. It is unclear whether this filing error was made by Plaintiff or the Clerk’s office. In
any event, it is clear that DE [27] is a corrected version of DE [26] which seeks a discovery extension.
discovery motion. In addition to noting that the newly served request to admit could have been
addressed at a deposition (which was never noticed by Plaintiff) and that Defendant had
responded to the other discovery requests, it stated that Plaintiff failed to comply with this
Court’s rules by not making an attempt to confer prior to making the motion. DE [32]. This
Court thereafter denied Plaintiff’s motion to compel, without prejudice to renewal after
reviewing the Federal Rules of Civil Procedure, this Court’s rules, and conferring with defense
counsel to attempt to resolve any issues. Order dated June 11, 2024. At this point in time
approximately two months remained in which to take discovery. Plaintiff made no attempt to
notice or take any depositions thereafter. Discovery closed on August 1, 2024.
On September 3, 2024 Defendant requested a pre-motion conference with respect to its
anticipated motion for summary judgment. DE [33]. Plaintiff opposed the making of that motion.
DE [34 -35]. On November 13, 2024 the District Court waived its pre-motion conference
requirement and directed the parties to submit a briefing schedule. On November 27, 2024 the
Government submitted its proposed schedule. DE [37]. The District Court ordered the proposed
schedule. After granting requests for extensions, the motion was fully briefed on April 18, 2025.
On October 21, 2025 the motion was referred to this Court for Report and Recommendation. See
Order Referring Motion dated 10/21/2025.
DISCUSSION
I. Legal Principles: Standards on Summary Judgment
Summary judgment is appropriately granted only where “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict
for the non-moving party. SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir.
2009). A fact is “material” if it might affect the outcome of the litigation under the relevant law.
Id. The party moving for summary judgment is first responsible for demonstrating the absence of
any genuine issue of material fact. Celotex, 477 U.S. at 322. Summary judgment is appropriate
when the non-moving party “fails to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party will bear the burden of proof at
trial.” Abramson v. Pataki, 278 F.3d 93, 101 (2d Cir. 2002) (quoting Celotex, 477 U.S. at 322).
In deciding a motion for summary judgment, the Court must “resolve all ambiguities and
draw all reasonable inferences against the moving party”. Tolbert v. Smith, 2015 WL 3875237 *4
(2d Cir. 2015); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
However, in opposing a motion for summary judgment, the non-moving party may not rely on
unsupported assertions, conjecture or surmise, Goenaga v. March of Dimes Birth Defects Found.,
51 F.3d 14, 18 (2d Cir. 1995), and must do more than show that there is “some metaphysical
doubt as to the material facts.” Matsushita, 475 U.S. at 586. Instead, the non-moving party must
“set forth significant, probative evidence on which a reasonable fact-finder could decide” in their
favor. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 256–57 (1986).
While the Second Circuit often notes the caution to be employed when deciding whether
to grant summary judgment in cases where an employer's intent is at issue, that court has noted
similarly that “the salutary purposes of summary judgment-avoiding protracted and harassing
trials-apply no less to discrimination cases than to ... other areas of litigation.” Tolbert, 2015 WL
3875237 *4; see also Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008) (summary
judgment appropriate to avoid “protracted, expensive and harassing trials”); Abdu–Brisson v.
Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (it is “beyond cavil that summary
judgment may be appropriate even in the fact-intensive context of discrimination cases”);
Kohutka v. Town of Hempstead, 994 F. Supp. 2d 305, 316 (E.D.N.Y. 2014). .
II. McDonnell Douglas Framework
Claims of discrimination, including those brought pursuant to the Rehabilitation Act,
whether alleging discrimination, failure to accommodate, or retaliation are evaluated under the
familiar burden-shifting framework established by the Supreme Court in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973); Larnard v. McDonough, 578 F. Supp. 3d 371, 382
(N.D.N.Y. 2022); Livingston v. Roosevelt Union Free Sch. Dist., 2020 WL 1172642, * 6
(E.D.N.Y. January 15, 2020).
Under this framework, the plaintiff must come forward with facts sufficient to establish a
prima facie case that adverse employment action took place under circumstances giving rise to
an inference of discrimination – whether by disparate treatment, failure to accommodate or
retaliation. Larnard, 578 F. Supp. 3d at 382; Kleyman v. SUNY Downstate Med. Cntr., 2020 WL
5645218, *12 (E.D.N.Y. 2020); see Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir.
1998). The Second Circuit has explained that plaintiff's prima facie burden is de minimis. Abdu–
Brisson, 239 F.3d at 467. Nonetheless, in order to state a prima facie case of discrimination, “a
plaintiff must proffer some admissible evidence of circumstances that would be sufficient to
permit an inference of discriminatory motive.” Bennett v. Watson Wyatt & Co., 136 F. Supp. 2d
236, 246 (S.D.N.Y. 2001), aff'd., 51 Fed. App’x 55 (2d Cir. 2002). The burden is not met through
reliance on unsupported assertions, Goenaga v. March of Dimes Birth Defects Found., 51 F.3d
14, 18 (2d Cir. 1995), or “[s]tatements that are devoid of any specifics, but replete with
conclusions.” Griffin v. Ambika Corp., 103 F. Supp. 2d 297, 308 (S.D.N.Y. 2000) (quoting
Bickerstaff v. Vassar College, 196 F.3d 435, 451-52 (2d Cir. 1999). “Evidence leading to the
inference of discrimination may include discriminatory comments made by the defendant
relating to a disability, failure to take actions required for a disabled employee to return to work,
or preferential treatment of employees similarly situated to the plaintiff who are not members of
the plaintiff's protected class.” Kleyman, 2020 WL 5645218 at *15, quoting, Schneider v. Wal-
Mart Stores, Inc., No. 16-cv-2010 (NSR), 2019 WL 294309, at *4 (S.D.N.Y. Jan. 23, 2019).
Once a plaintiff establishes all the elements of their prima facie case, the burden shifts to
defendant to “articulate some legitimate, nondiscriminatory reason” for its conduct. McDonnell
Douglas, 411 U.S. at 792. Like plaintiff’s prima facie burden, defendant's burden of showing
legitimate non-discriminatory reasons is similarly “light.” Greenway, 143 F.3d at 52. Thus,
defendant is required only to “articulate an explanation that, if true, would connote lawful
behavior.” Id. “The burden is one of production, not persuasion.” Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 142 (2000) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
509 (1993)).
If the defendant satisfies this burden of production, plaintiff’s prima facie presumption is
rebutted, and “drops from the case.” Texas Dep’t. of Community Affairs v. Burdine, 450 U.S.
248, 255, 255 n. 10 (1981). The burden then shifts back to plaintiff “to demonstrate by competent
evidence” that the reasons offered were “a pretext for discrimination.” Id. At that point, the
plaintiff “is given an opportunity to adduce admissible evidence that would be sufficient to
permit a rational finder of fact to infer that the employer's proffered reason is pretext for an
impermissible motivation.” Vivenzio v. City of Syracuse, 611 F.3d 98,106 (2d Cir. 2010)
(quoting, Howley v. Town of Stratford, 217 F.3d 141, 150 (2d Cir. 2000)); Kleyman, 2020 WL
5645218, at *15 (citing Bailey v. Mount Vernon City Sch. Dist., No. 17-CV-9973 (KMK), 2020
WL 1528481, at *12 (S.D.N.Y. Mar. 30, 2020)) (alteration in original). “Pretext may be
demonstrated by additional evidence that the employer's proffered reason is not credible or by
reliance on the evidence supporting the prima facie case alone.” Schneider, 2019 WL 294309 at
*5 (citing Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 38 (2d Cir. 1994)). Importantly, the
ultimate burden of persuasion as to whether there was intentional discrimination “remains at all
times with the plaintiff.” Burdine, 450 U.S. at 253.
In the final summary judgment analysis, the court must consider all of the evidence
properly presented, and “examine the record as a whole, just as a jury would, to determine
whether a jury could reasonably find an invidious discriminatory purpose on the part of an
employer.” Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93, 102 (2d Cir. 2001).
III. Establishing a Prima Facie Case of Discrimination under the Rehabilitation Act
A. Disability Discrimination
Discrimination alleged under the Rehabilitation Act (the “RA”) can take the form of: (1)
disparate treatment, (2) disparate impact or (3) failure to accommodate. Davis v. Shah, 821 F.3d
231, 260 (2d Cir. 2016). To establish a prima facie case of employment discrimination under the
first two enumerated categories a plaintiff must demonstrate that: (1) the defendant/employer is
subject to the RA, (2) they are disabled within the meaning of the Rehabilitation Act, (3) they are
“otherwise qualified” for their position, i.e., they can perform the essential functions of the job
with or without reasonable accommodation, and (4) they suffered an adverse employment action
because of the disability. Natofsky v. City of New York, 921 F.3d 337, 352 (2d. Cir. 2019);
Garafola v. Dejoy, 17-CV-01827 (JMA) (JMW), 2022 WL 4642091 (E.D.N.Y. Sept. 30, 2022);
Quadir v. N.Y. State Dep’t of Labor, 39 F. Supp.3d 528, 540-41 (S.D.N.Y. 2014).2
2 Although not relevant here, retaliation can also form the basis for a claim under the RA.
An adverse employment action is one which is “more disruptive than a mere
inconvenience or an alteration of job responsibilities.” Vega v. Hempstead Union Free Sch. Dist.,
801 F.3d 72, 85 (2d Cir. 2015). “Significantly diminished material responsibilities” may also
qualify as an adverse employment action. Id. As to the element of causation, a plaintiff alleging
RA discrimination must show that the claimed discrimination was the “but-for” cause of the
claimed adverse employment action. Natofsky, 921 F.3d at 345; see also Stanley v. Phelon, No.
23-731-cv, 2024 WL 1453872, at *5 (2d Cir. Apr. 4, 2024) (applying elements in context of
motion to dismiss); Timmer v. City Univ. of New York, No. 20-CV-2554 (PKC) (RLM), 2021
WL 3603465, at *11 (E.D.N.Y. Aug. 13, 2021).
B. Failure to Accommodate
A plaintiff alleging failure to accommodate under the RA must similarly show that they
have a disability and that defendant had notice thereof. Plaintiff must additionally show that they
could perform the essential functions of the job with reasonable accommodation, and that
defendant refused to make such accommodations. Wallace v. Esper, 2019 WL 4805813, * 5
(S.D.N.Y. Sept. 30, 2019); Kho v. N.Y. & Presbyterian Hosp., 344 F. Supp. 3d 705, 721
(S.D.N.Y. 2018); see Graves v. Finch Pruyn & Co., 457 F.3d 181, 184 (2d Cir. 2006). A prima
facie case of failure to accommodate can be defeated by showing: (1) that making a reasonable
accommodation would cause it hardship, and (2) that the hardship would be undue. Quadir, 2016
WL 3633406 at *2. While both RA discrimination claims alleging direct discrimination and those
alleging a failure to accommodate both require a showing that plaintiff has a disability, claims
based on failure to accommodate do not require proof of discriminatory intent. Brooklyn Ctr. for
Psychotherapy, Inc. v. Phila. Indem. Ins. Co., 955 F.3d 305, 312 (2d Cir. 2020) (citation omitted).
C. Hostile Environment
A plaintiff alleging a hostile environment on account of their disability must show that:
(1) their workplace is “permeated with discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the victim’s employment, and create an
abusive working environment.” Harris v. Forklift Sys. Inc., 510 U.S. 17, 21 (1993); and (2) “a
specific basis exists for imputing the conduct that created the hostile environment to the
employer.” Carrasco v. Lenox Hill Hosp., No. 99-CV-924, 2000 WL 520640, at *6 (S.D.N.Y.
Apr. 28, 2000) (citing Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996)
(citations omitted), aff’d., 4 F. App’x 29 (2d Cir. 2001)).
To show discriminatory intimidation, ridicule and insult, the plaintiff must offer facts that
would demonstrate that the allegedly hostile conduct was based on his protected characteristic.
See Oncale v. Sundowner Offshore Serv. Inc., 523 U.S. 75, 80-81 (1998). ‘Title VII does not
prohibit all verbal or physical harassment in the workplace; it is directed only at ‘discrimin[ation]
. . . because of . . . [a protected characteristic].’” Id. at 80 (quoting Title VII). “Thus, to establish
a hostile work environment claim, a plaintiff must be able to show that the conduct in question
was motivated by [his protected characteristic].” O’Neal v. State Univ. of New York Health Sci.
Ctr., No. 01-CV-7802, 2023 WL 1524664, at *8 (E.D.N.Y. Mar. 24, 2023) (citing Brown v.
Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (“’It is axiomatic that mistreatment at work . . .
through subjection to a hostile work environment . . . is actionable under Title VII only when it
occurs because of an employer’s sex, or other protected characteristic.’”) (citations omitted). See
also Tolbert v. Smith, 790 F.3d 427, 439 (2d Cir. 2015) (it is “axiomatic that the plaintiff also
must show that the hostile conduct occurred because of a protected characteristic.”); Oyer v. New
York State, No. 1:19-CV-01201 EAW, 2020 WL 5642186, at *4 (W.D.N.Y. Sept. 22, 2020) (“For
purposes of a claim of a disability-based hostile work environment under the Rehabilitation Act,
a plaintiff must show that . . . the conduct occurred because of [his] disability”); White v.
Manhattan & Bronx Surface Transit Operating Auth., No. 18-CV-3627 (GBD), 2022 WL
4227289, at *8 (S.D.N.Y. Sept. 13, 2022) (citation omitted) (“[t]o establish a hostile work
environment, a plaintiff must [ ] demonstrate that the discriminatory conduct occurred because of
her membership in a protected class”).
IV. Disposition of the Motion
A. Plaintiff Has Not Been Deprived of the Opportunity to Take Discovery
Before turning to consideration of Plaintiff’s prima facie case, the Court addresses
Plaintiff’s argument that he has been denied the discovery necessary to defeat the motion. This
has not been the case. Indeed, Plaintiff has been afforded ample opportunity to conduct
discovery. Plaintiff was afforded the ability to proceed in forma pauperis. He later requested the
Court’s assistance in bearing the expense of discovery, and was timely advised that the Court
cannot provide such aid in civil cases. Plaintiff now argues that he needs to conduct several
depositions, but during the time when discovery was open, he failed to notice any such
depositions. Importantly, Plaintiff argues that he needs such discovery to provide proof that prior
to being assigned to supervisors Spar and Kumar his performance was exemplary. For the
purposes of this motion the Court can assume that this is, indeed true. Even assuming that Spar
was incorrect in her decision to refuse to give Plaintiff a clean slate after recognizing the IT error,
Plaintiff fails, as discussed below, to come forward with a prima face case of RA discrimination.
B. Application of McDonnell Douglas
i. Disability Discrimination
There is no question but that Defendant is subject to the RA. As to disability, the Court
assumes that Plaintiff had a disability in the form of deficits resulting from the TBI suffered in
1984. That disability existed when Plaintiff was first hired by the PTO and is well documented
by Plaintiff’s continuing requests to work from home. Plaintiff can thus establish the first two
factors of his RA claim. As to the element of adverse action, Plaintiff relies on his termination, as
well as the denial of his right to participate in the Silicon Valley Trip and being subject to
investigation for harassing Spar. There is no question but that termination constitutes adverse
employment action. Wallace, 2019 WL 4805813, *6. The question is closer with respect to the
Silicon Valley Trip and the investigation following Plaintiff’s comments to Spar. As noted, those
events resulted in no adverse employment action in terms of Plaintiff’s title or salary.
Nonetheless, the Court assumes, without deciding, that these latter two matters also constitute
adverse employment action, and turns to the question of whether Plaintiff has otherwise set forth
a claim of discrimination. He does not.
First, Plaintiff’s claim of discrimination fails because he comes forward with no evidence
that he was treated differently from other employees on any basis, including on account of his
disability. He similarly shows no disparate impact as a result of his disability. Plaintiff’s
discrimination case also fails because there is no evidence of discriminatory intent; much less
evidence that “but for” his disability he would not have been terminated.
More importantly, and as noted above, Plaintiff can survive summary judgment only if he
can “proffer some admissible evidence of circumstances that would be sufficient to permit an
inference of discriminatory motive.” Bennett, 136 F. Supp. 2d at 246. This requires the
articulation of facts “such as any discriminatory comments, to suggest that [the adverse
employment action] “occurred as the result of a disability-based animus.” Wallace, 2019 WL
4805813 at *7. Neither bald assertions of discriminatory intent, nor Plaintiff’s beliefs as to such
disability-based animus are sufficient to defeat a well-supported motion for summary judgment.
See id.
Plaintiff argues repeatedly that it was unfair for Spar to begin his downward spiral at
work by unfairly assigning errors to thirteen of Plaintiff’s cases. Plaintiff’s argument nowhere
attributes these performance failures to any disability. Even Plaintiff’s own testimony - which
standing alone would not in any event be sufficient to defeat the motion - fails to support any
claims of disability discrimination. While Plaintiff’s disagreement with Spar’s decision is clear,
what is not clear - or even stated - is how that disagreement can be linked to Plaintiff’s disability.
Thus, Plaintiff nowhere connects any disability stemming from his TBI to the twelve errors
assigned by Spar. Instead, Plaintiff took issue only with Spar’s supervisory and communication
style.
The personality conflict between Plaintiff and Spar (and also between Plaintiff and
Kumar) is clear. While the Court can understand that Plaintiff did not get along with Spar and
Kumar, and did not agree with their styles of supervision, such disagreements (even in the face
of prior stellar performance) do not amount to disability discrimination in violation of the RA.
Indeed, Plaintiff points to no evidence supporting any inference connecting these personality
conflicts to disability discrimination. Accordingly, these conflicts are insufficient to establish an
inference of discrimination on account of Plaintiff’s disability. Ultimately, Plaintiff’s theory of
disability discrimination is based on nothing more than the allegation that he was a disabled
employee who was terminated. This is insufficient to support the showing of discriminatory
intent necessary to defeat Defendant’s motion. Yusuf v. Vassar Coll., 35 F.3d 709, 714 (2d Cir.
1994); Ochei v. The Mary Manning Walsh Nursing Home Co., Inc., 2011 WL 744738, at *2-3
(S.D.N.Y. 2011) (rejecting “false syllogism” which essentially argues: “I am (fill in the protected
class of which the plaintiff is a member); something bad happened to me at work; therefore the
bad thing happened because I am (fill in the protected class”)). Accordingly, Defendant is
entitled to summary judgment on Plaintiff’s claim of disability discrimination.
ii. Failure to Accommodate
Any claim of failure to accommodate fares no better than Plaintiff’s claims of
discrimination. This is because, other than requesting accommodations that were consistently
granted, Plaintiff made never made any other claim for a reasonable accommodation was not
granted. Instead, all such claims were made for either a change in past decisions regarding the
quality of Plaintiff’s work, or for a change to a different supervisor. Neither category of change
was ever tied to a claimed disability.
A review of all documents before the Court reveals that during the years-long period of
time when Plaintiff was requesting accommodations, he never asked for additional time in which
to complete tasks, a lower caseload, or that information be presented to him in any particular way
to accommodate deficiencies suffered as a result of his TBI. Nor did he make any requests
related to the efficacy of the telephone and videoconference equipment provided to him for work.
Despite the fact that he never made any requests for accommodation other than the request to
work remotely, Plaintiff’s Complaint states that between 2008 and 2014 he reported to various
supervisors, some of whom provided “reasonable and often minor accommodations”. Am.
Compl. ¶ 10. The nature of any such accommodation is nowhere documented, even in Plaintiff’s
testimony. Plaintiff appears to argue that supervisors assisted Plaintiff by “engaging in clear and
concise communication, and reviewing patents and edits in a measured and calm and deliberate
manner.” Id. ¶ 11. Because Plaintiff submits no evidence with respect to any such
accommodation the Court will consider that no such accommodation was requested, denied or
granted during the period prior to 2016.
After Plaintiff was re-assigned to report to supervisors Spar and Kumar requests for
accommodation were made. Yet, even during this period of time, and despite being given every
opportunity to document some sort of cognitive disability, Plaintiff states that the only problem
he ever encountered at work arose out of the supervisory “style” of Spar and Kumar. Indeed,
when asked to identify any particular disability (other than the physical deficits that are well-
documented and accommodated) Plaintiff expressed surprise that the quality of his work was
questioned and requested either a different position or a permanent change in supervisors.
The 2016 accommodation request, submitted along with the physician letter states that
Plaintiff had no idea what would allow him to continue in his position. He did not point to any
computer system that failed him. Nor did he seek any alternative way of communicating with his
supervisors or timely completion of his tasks.
The only accommodation request accompanied by any medical opinion was that
submitted by Plaintiff in 2017. The neuropsychological report submitted in 2017 does not change
this conclusion and does not assist Plaintiff in coming forward with a prima facie case of failure
to accommodate. That report stated, as discussed above, that Plaintiff would benefit from certain
accommodations which he already enjoyed as a result of working from home, or others that were
not within the realm of accommodations available under the RA. As such, Plaintiff failed to ever
make an accommodation request related to his disability. Thus, any claim of failure to
accommodate must be dismissed.
iii. Hostile Environment
Finally, any claim of hostile environment on account of Plaintiff’s disability is denied.
Plaintiff alleges that Spar and Kumar created a hostile work environment through
criticism of his work, communicating in a “berating, long-winded and confrontational manner,”
refusing to provide accommodators, “all the while doubling down on making communication
more difficult and stressful.” Am. Compl. ¶ 54.
However, Plaintiff had no in person interactions with either supervisor. Plaintiff worked
remotely from his New York home and communicated with each supervisor, only by audio on his
computer and through exchange of writeups and edits and comments y computer. Further,
Plaintiff does not believe, and does not show, that either Spar or Kumar, were motivated by
discrimination against his disability. Neither supervisor ever commented on his disability to him,
nor did plaintiff ever learn that they had made any such comments to anyone else. Thus, in the
absence of any showing that Spar and Kumar had any discriminatory intent, Plaintiff’s hostile
workplace claim fails
CONCLUSION
For the foregoing reasons, this Court respectfully recommends that Defendant’s motion
for summary judgment, appearing as Docket Entry No. 42 be granted in its entirety.
OBJECTIONS
A copy of this Report and Recommendation is being provided to all counsel via ECF.
Further, defense counsel is directed to serve a copy of this Report and Recommendation by
overnight mail and first-class mail to Plaintiff at his last known address and to file proof of
service on ECF by February 25, 2026. Any written objections to this Report and
Recommendation must be filed with the Clerk of the Court within fourteen (14) days of filing of
this report. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 72(b). Any requests for an extension of
time for filing objections must be directed to the District Judge assigned to this action prior to the
expiration of the fourteen (14) day period for filing objections. Failure to file objections within
fourteen (14) days may preclude further review of this report and recommendation either by the
District Court or Court of Appeals. Thomas v. Arn, 474 U.S. 140, 145 (1985) (“[A] party shall
file objections with the district court or else waive right to appeal.”); Caidor v. Onondaga Cnty.,
517 F.3d 601, 604 (2d Cir. 2008) (“[F]ailure to object timely to a magistrate’s report operates as a
waiver of any further judicial review of the magistrate’s decision”).
Dated: Central Islip, New York
February 21, 2026
/s/ Anne Y. Shields
Anne Y. Shields
United States Magistrate Judge