The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
BELYNDA RAMINGER,
Plaintiff,
v. 3:26-CV-1134
(AJB/ML)
SOUTHERN TIER INDEPENDENCE
CENTER, INC.,
Defendant.
_____________________________________________
APPEARANCES: OF COUNSEL:
BELYNDA RAMINGER
Plaintiff, Pro Se
72 North Harrison Street
Johnson City, New York 13790
MIROSLAV LOVRIC, United States Magistrate Judge
DECISION and ORDER
Plaintiff Belynda Raminger (“Plaintiff”) commenced this pro se action against Defendant
Southern Tier Independence Center, Inc (“Defendant”) alleging violations of her rights pursuant
to—among other statutes—the Americans with Disabilities Act. (Dkt. No. 1.) Plaintiff did not
pay the filing fee and seeks leave to proceed in forma pauperis (“IFP”). For the reasons set forth
below, I (1) grant Plaintiff’s IFP application, and (2) direct that the Complaint be accepted for
filing and requires a response. (Dkt. Nos. 1, 2.)
I. PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS
When a civil action is commenced in a federal district court, the statutory filing fee,
currently set at $405, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized,
however, to permit a litigant to proceed IFP status if a party “is unable to pay” the standard fee
for commencing an action. 28 U.S.C. § 1915(a)(1).1 After reviewing Plaintiff’s IFP application
(Dkt. No. 2), the Court finds that Plaintiff meets this standard. Therefore, Plaintiff’s application
to proceed IFP is granted.2
II. SUFFICIENCY OF THE COMPLAINT
A. Legal Standard Governing Review of the Complaint
“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the
court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is
frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).
In order to state a claim upon which relief can be granted, a complaint must contain, inter
alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). The requirement that a plaintiff “show” that he or she is entitled to relief
means that a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis
added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 [2007]). “Determining whether a
complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial
1 The language of that section is ambiguous because it suggests an intent to limit
availability of IFP status to prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the
commencement of an action without prepayment of fees “by a person who submits an affidavit
that includes a statement of all assets such prisoner possesses”). The courts have construed that
section, however, as making IFP status available to any litigant who can meet the governing
financial criteria. Hayes v. United States, 71 Fed. Cl. 366, 367 (Fed. Cl. 2006); Fridman v. City
of N.Y., 195 F. Supp. 2d 534, 536 n.1 (S.D.N.Y. 2002).
2 Plaintiff is reminded that, although her IFP application has been granted, she is still
required to pay fees that she may incur in this action, including copying and/or witness fees.
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
shown–that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal citation and
punctuation omitted).
“In reviewing a complaint . . . the court must accept the material facts alleged in the
complaint as true and construe all reasonable inferences in the plaintiff’s favor.” Hernandez v.
Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court
must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d
66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam)
(reading the plaintiff’s pro se complaint “broadly, as we must” and holding that the complaint
sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua
sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties .
. . have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).
B. Summary of the Complaint
The Complaint alleges wrongdoing that occurred while Plaintiff was employed by
Defendant and shortly after Plaintiff’s employment with Defendant ended. (See generally Dkt.
No. 1.)
More specifically, Plaintiff’s Complaint details her years of employment with Defendant,
which appeared to begin to sour in July 2022, when Plaintiff was reassigned to a modified office
space with restricted airflow and elevated room temperatures. (Dkt. No. 1 at 10-20.) The
Complaint alleges that the modified office space exacerbated Plaintiff’s physical disabilities and
on numerous occasions, she requested accommodations. (Id.) The Complaint alleges that in late
2023/early 2024, Plaintiff joined “the new sexual health advocacy committee” at Defendant and
shared a video with another employee of Defendant’s. (Id. at 21.) Plaintiff alleges that she was
“aggressively accused” of sexual harassment regarding the educational video that she privately
texted to the co-worker in off-work hours. (Id.) Plaintiff alleges that her employment was
terminated immediately and she was not provided any written notice of the charges, an
opportunity to review the allegations, or any semblance of due process. (Id. at 22-23.)
The Complaint alleges that Defendant’s stated reason for terminating Plaintiff was
pretextual to mask discrimination and retaliation for Plaintiff’s protected accommodation
requests. (Dkt. No. 1 at 23.) Plaintiff alleges that Defendant presented fabricated documents to
the New York State Department of Labor to block Plaintiff’s ability to collect unemployment
benefits. (Id. at 24-25.)
Based on these factual allegations, the Complaint asserts the following seven claims: (1)
a claim of disability discrimination based on the failure to accommodate pursuant to the ADA,
42 U.S.C. § 12112(b)(5)(A); (2) a claim of disability discrimination based on disparate treatment
and wrongful termination pursuant to the ADA, 42 U.S.C. § 12112(a); (3) a claim of disability
discrimination and hostile work environment pursuant to the ADA, 42 U.S.C. § 12112(a); (4) a
claim of retaliation pursuant to the ADA, 42 U.S.C. § 12203(a); (5) a claim of disability
discrimination based on the failure to accommodate pursuant to the New York State Human
Rights Law (“NYSHRL”), N.Y. Exec. Law § 296(3); (6) a claim of wrongful discharge and
hostile work environment pursuant to the NYSHRL, N.Y. Exec. Law § 296(1)(a); and (7) a
claim of retaliation pursuant to N.Y. Exec. Law § 296(7). (Dkt. No. 1 at 25-29.) As relief,
Plaintiff seeks back pay, front pay, compensatory damages, punitive damages, and declaratory
relief. (Id. at 29-30.)
C. Analysis
The ADA has a number of prerequisites to filing suit. See Terry v. YMCA of
Northeastern New York, 24-CV-1492, 2025 WL 2933526, at *4 (N.D.N.Y. Aug. 26, 2025)
(Evangelista, M.J.), report and recommendation adopted, 2025 WL 2778360 (N.D.N.Y. Sept.
30, 2025) (Nardacci, J.). Plaintiff specifically alleges that she satisfied these requirements and
timely commenced the action. (Dkt. No. 1 at ¶¶ 7-11.)
Mindful of the requirement to liberally construe pro se pleadings, Sealed Plaintiff v.
Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008), the Court finds that the Complaint alleges
enough to warrant a responsive pleading. In so ruling, the Court expresses no opinion as to
whether Plaintiff’s claims can withstand a properly-filed motion to dismiss or for summary
judgment. Upon reviewing Plaintiff's Complaint pursuant to section 1915(e), the Court finds that
Plaintiff may properly proceed with this action.
ACCORDINGLY, it is
ORDERED that Plaintiff’s application to proceed in forma pauperis (Dkt. No. 2) is
GRANTED; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is ACCEPTED for filing; and it is
further
ORDERED that the Clerk of the Court provide Plaintiff with a blank summons; and it is
further
ORDERED that Plaintiff complete the proposed summons and send it to the Clerk of the
United States District Court, Northern District of New York, James Hanley U.S. Courthouse &
Federal Building, 7th Floor, 100 South Clinton Street, Syracuse, New York 13261-7367 within
thirty days from the date of this Order; and it is further
ORDERED that once the Clerk has received from Plaintiff the completed, proposed
summons, that the Clerk shall issue it and forward it, along with a copy of the Complaint and a
packet containing General Order 25, which sets forth the Civil Case Management Plan used by
the Northern District of New York, to the United States Marshal for service upon Defendant; and
it is further
ORDERED that a formal response to the Complaint be filed by Defendant or its counsel
as provided for in the Federal Rules of Civil Procedure subsequent to service of process on
Defendant; and it is further
ORDERED that the Clerk shall schedule a Rule 16 conference before the undersigned;
and it is further
ORDERED that all pleadings, motions and other documents relating to this action must
bear the case number assigned to this action and be filed with the Clerk of the United States
District Court, Northern District of New York, 7th Floor, Federal Building, 100 S. Clinton St.,
Syracuse, New York 13261-7367. Plaintiff must comply with all requests by the Clerk’s Office
for any documents that are necessary to maintain this action. All parties must comply with Local
Rule 7.1 of the Northern District of New York in filing motions; motions will be decided on
submitted papers, without oral argument, unless otherwise ordered by this Court. Plaintiff is
also required to promptly notify the Clerk’s Office and all parties or their counsel, in
writing, of any change in her address; her failure to do so may result in the dismissal of this
action; and it is further
ORDERED, that all motions shall comply with the Local Rules of Practice of the
Northern District; and it is further
ORDERED that the Clerk of the Court shall file a copy of this Decision and Order on the
docket of this case and serve a copy upon the parties in accordance with the local rules.
Dated: July 8 , 2026
Binghamton, New York
Miroslav Lovric
U.S. Magistrate Judge
3 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein
in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
2025 WL 2933526 may properly maintain his complaint before permitting him
Only the Westlaw citation is currently available. to proceed further with his action.” Praileau v. Fischer, 930
United States District Court, N.D. New York. F. Supp. 2d 383, 394 (N.D.N.Y. 2013).
Elizabeth Marie TERRY, Plaintiff, Where, as here, the plaintiff proceeds pro se, “the court
v. must construe his submissions liberally and interpret them
YWCA OF NORTHEASTERN to raise the strongest arguments that they suggest.” Kirkland
NEW YORK, Defendant. v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per
curiam) (internal quotation marks and citation omitted). As
No. 1:24-CV-1492 (AMN/PJE) the Second Circuit stated,
|
Signed August 26, 2025
[t]here are many cases in which we
Attorneys and Law Firms have said that a pro se litigant is
entitled to special solicitude, that a
Elizabeth Marie Terry, 44 Washington Avenue, Schenectady,
pro se litigant's submissions must
New York 12305, Plaintiff pro se.
be construed liberally, and that such
submissions must be read to raise
the strongest arguments that they
REPORT-RECOMMENDATION AND ORDER1
suggest. At the same time, our
cases have also indicated that we
PAUL J. EVANGELISTA, UNITED STATES
cannot read into pro se submissions
MAGISTRATE JUDGE
claims that are not consistent with
the pro se litigant's allegations,
I. In Forma Pauperis or arguments that the submissions
themselves do not suggest, that
*1 Plaintiff pro se Elizabeth Marie Terry (“plaintiff”) we should not excuse frivolous or
commenced this action on December 9, 2024, by filing a vexatious filings by pro se litigants,
complaint. See Dkt. No. 1. In lieu of paying this Court's filing and that pro se status does not
fee, plaintiff submitted an application for leave to proceed in exempt a party from compliance
forma pauperis (“IFP”). See Dkt. Nos. 2, 4. The undersigned with relevant rules of procedural
has reviewed plaintiff's IFP application and determines that and substantive law....
she financially qualifies to proceed IFP.2 Pursuant to this
review, this Court must now assess the merits of plaintiff's
complaint pursuant to 28 U.S.C. §§ 1915, 1915A.3 Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d
Cir. 2006) (internal quotation marks, citations, and footnote
omitted); see also Sealed Plaintiff v. Sealed Defendant,
537 F.3d 185, 191 (2d Cir. 2008) (“On occasions too
II. Initial Review
numerous to count, we have reminded district courts that
when [a] plaintiff proceeds pro se, ... a court is obligated to
A. Legal Standards construe his pleadings liberally.”) (internal quotation marks
and citations omitted). Thus, the Court is not required to
28 U.S.C. § 1915 directs that, when a plaintiff seeks to accept unsupported allegations that are devoid of sufficient
proceed IFP, “the court shall dismiss the case at any time if facts or claims. Although detailed allegations are not required
the court determines that ... the action or appeal (i) is frivolous at the pleading stage, the complaint must still include enough
or malicious; (ii) fails to state a claim on which relief may facts to provide the defendants with notice of the claims
be granted; or (iii) seeks monetary relief against a defendant against them and the grounds upon which these claims are
who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
Ultimately, the plaintiff must plead “enough facts to state FED. R. CIV. P. 10(b). This serves the purpose of “provid[ing]
a claim to relief that is plausible on its face.” Twombly, an easy mode of identification for referring to a particular
550 U.S. at 570; see Iqbal, 556 U.S. at 678 (“A claim has paragraph in a prior pleading[.]” Flores, 189 F.R.D. at 55
facial plausibility when the plaintiff pleads factual content (internal quotation marks and citations omitted). A complaint
that allows the court to draw the reasonable inference that the that fails to comply with the pleading requirements “presents
defendant is liable for the misconduct alleged.”). far too a heavy burden in terms of defendants’ duty to
shape a comprehensive defense and provides no meaningful
*2 “The [Second Circuit]’s ‘special solicitude’ for pro se basis for the Court to assess the sufficiency of their claims.”
pleadings has its limits, because pro se pleadings still must Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). As
comply with ... the Federal Rules of Civil Procedure.”4 the Second Circuit has held, “[w]hen a complaint does not
comply with the requirement that it be short and plain, the
Kastner v. Tri State Eye, No. 19-CV-10668 (CM), 2019 WL
court has the power, on its own initiative ... to dismiss the
6841952, at *2 (S.D.N.Y. Dec. 13, 2019) (quoting Ruotolo
complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.
v. IRS, 28 F.3d 6, 8 (2d Cir. 1994)).5 Specifically, Rule 8
1988) (citations omitted). However, “[d]ismissal ... is usually
provides that a pleading which sets forth a claim for relief reserved for those cases in which the complaint is so confused,
shall contain, among other things, “a short and plain statement ambiguous, vague, or otherwise unintelligible that its true
of the claim showing that the pleader is entitled to relief.” substance, if any, is well disguised.” Id. (citations omitted).
FED. R. CIV. P. 8(a)(2). “The purpose ... is to give fair
notice of the claim being asserted so as to permit the adverse
party the opportunity to file a responsive answer, prepare an
adequate defense and determine whether the doctrine of res III. Discussion
judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54,
55 (N.D.N.Y. 1999) (internal quotation marks and citations A. Plaintiff's Complaint6
omitted). Rule 8 also requires the pleading to include “a
short and plain statement of the grounds for the court's On a civil complaint form, plaintiff checks the box that
jurisdiction ... and ... a demand for the relief sought ....” FED. indicates that this Court has subject matter jurisdiction
R. CIV. P. 8(a). Although “[n]o technical form is required,” pursuant to federal question jurisdiction. See Dkt. No. 1 at
the Federal Rules make clear that each allegation contained 3.7 Plaintiff states that she had been a YWCA resident
in the pleading “must be simple, concise, and direct.” FED. “at the Northeastern New York location since mid-2022.”
R. CIV. P. 8(d). Dkt. No. 1-1. She alleges that her Fourteenth Amendment
rights have been violated because she has owned a business
Further, Rule 10 provides in pertinent part that: since 2011, and “the YWCA previously explained in its 2019
[and] 2023 Resident Handbook, that YWCA residents are
not allowed to operate/own a business” and “the Fourteenth
[a] party must state its claims or Amendment protects businesses.” Dkt. No. 1 at 3. Plaintiff
defenses in numbered paragraphs, further states that “the YWCA previously communicated
each limited as far as practicable that [she is] a person with a disability by explaining that
to a single set of circumstances. their residents are not allowed to operate a private business,
A later pleading may refer by and are not eligible for employment [with] the YWCA on
number to a paragraph in an earlier a full time basis.” Id. at 4. Plaintiff's complaint also states
pleading. If doing so would promote that she submitted a complaint with the Equal Employment
clarity, each claim founded on a Opportunity Commission (“EEOC”) and cites “EEOC law on
separate transaction or occurrence disabilities 29 C.F.R. § 1630.2.” Id. at 3; see Dkt. No 1-1.
—and each defense other than a
denial—must be stated in a separate *3 In exhibits to her complaint, plaintiff alleges that her
count or defense. prior roommate was “raped,” and that plaintiff was sexually
harassed by YWCA staff. Dkt. No. 1-1. Attached to plaintiff's
complaint are copies of the 2019, 2023, and 2024 YWCA
the EEOC confirming that plaintiff filed an employment undersigned recommends that plaintiff's complaint, raising
discrimination claim against the YWCA; and multiple emails claims for disability discrimination under the ADA, violations
between plaintiff and Tamara Flanders, YWCA's Housing of her Fourteenth Amendment rights under Section 1983,
Director. See Dkt. Nos. 1-3, 1-4, 1-5; Dkt. No. 1-2 at 1-4; Dkt. and sexual harassment, be dismissed without prejudice and
No. 6. with leave to amend for failure to satisfy Rule 8’s pleading
requirements. See Salahuddin, 861 F.2d at 42; FED. R. CIV.
P. 8(a)(2).
B. Analysis8
Liberally construing plaintiff's complaint, plaintiff seeks to 2. Timeliness and Prelitigation Requirements
bring claims under the Americans with Disabilities Act
(“ADA”) and under 42 U.S.C. § 1983, alleging that she was *4 A plaintiff alleging disability discrimination in violation
discriminated against on the basis her disability and that of the ADA must file an EEOC claim within 180 days of
her Fourteenth Amendment rights were violated because she the alleged discriminatory action if no claim was filed with
believes she is not permitted to operate a business out of a state or local agency, or within 300 days of the alleged
the room she rents from YWCA. See generally Dkt. No. discriminatory action if the plaintiff filed a claim with a
1, Dkt. No. 6; see also Triestman, 470 F.3d at 475. (“This state or local agency. See Constantine v. U-Haul Int'l Inc.,
policy of liberally construing pro se submissions is driven No. 1:15-CV-1204 (MAD/CFH), 2015 WL 13744409, at
by the understanding that ‘[i]mplicit in the right of self- *1 (N.D.N.Y. Oct. 9, 2015), report and recommendation
representation is an obligation on the part of the court to adopted, No. 1:15-CV-1204 (MAD/CFH), 2015 WL 7272211
make reasonable allowances to protect pro se litigants from (N.D.N.Y. Nov. 16, 2015) (quoting McNight v. Dormitory
inadvertent forfeiture of important rights because of their lack Auth. of State of N.Y., 995 F. Supp. 70, 76 (N.D.N.Y.
of legal training.’ ”) (quoting Traguth v. Zuck, 710 F.2d 90, 1998) (quoting 42 U.S.C. § 2000e-5(e))). “Thus, only after
95 (2d Cir. 1983)). Plaintiff also alleges that she has been charges are brought before the EEOC and a right-to-sue
sexually harassed by YWCA staff. See Dkt. No. 1-1. letter is obtained may an aggrieved party bring an action for
relief in federal court.” Id. (quoting Mazzeo-Unum v. Dep't
of Transp., No. 1:12-CV-1856, 2013 WL 2636159, at *2
(N.D.N.Y. June 12, 2013) (quoting 42 U.S.C. § 2000e-5(e)))
1. Fed. R. Civ. P. 8 (internal quotation marks omitted). “A right to sue letter
is also a statutory prerequisite to suit under the ADA.”
As a threshold matter, plaintiff's complaint fails to satisfy
Id. (citing Duttweiller v. Upstate Bldg. Maint. Companies,
the pleading requirements of Rule 8. See FED. R. CIV. P.
Inc., No. 5:05-CV-886 (NAM), 2006 WL 3371754, at *1
8(a). Plaintiff's complaint does not provide “a short and plain
(N.D.N.Y. Nov. 20, 2006) (citing 42 U.S.C. §§ 2000e-5(e)
statement of the claim showing” why she is entitled to relief.
(1); 12117(a))) (“[D]efendants point out that plaintiff has not
Id. Plaintiff's complaint alleges that the YWCA discriminated
exhausted her administrative remedies because she has not
against her because she is disabled and that a YWCA staff
obtained a right-to-sue letter from the Equal Employment
member sexually harassed her. See Dkt. No. 1 at 3-4, Dkt.
Opportunities Commission (‘EEOC’). Such a letter is a
No. 1-1. Yet, plaintiff has failed to provide any details or
statutory prerequisite to suit under the Americans with
information explaining (1) how she is disabled, or (2) how
Disabilities Act (‘ADA,’ 42 U.S.C. § 12101 et seq.) ....”);
she was discriminated against based on her disability. See
see also Mount Sinai Medical Ctr., 882 F. Supp. 353, 355
generally Dkt. No. 1. She also fails to demonstrate that the
(S.D.N.Y. 1995) (dismissing the plaintiff's ADA complaint
YWCA is subject to § 1983 liability. See id. Further, plaintiff
for lack of subject matter jurisdiction because the plaintiff
does not include any information surrounding her allegation
did not demonstrate the filing of an EEOC claim and receipt
that she was sexually harassed. See generally Dkt. No. 1; Dkt.
of a right-to-sue letter before commencing suit); see also
No. 1-1.9 Without this information, plaintiff's complaint does
Redlich v. Albany Law Sch. of Union Univ., 899 F. Supp.
not provide “fair notice of the claim[s] being asserted” against 100, 104 (N.D.N.Y. Oct. 3, 1995) (citing Bent v. Mount Sinai
the YWCA such that it would have an adequate opportunity Med. Ctr., 882 F. Supp. 353, 355 (S.D.N.Y. 1995)) (“Thus,
to file an answer and “prepare an adequate defense.” Flores, absent [the] plaintiff's filing of a complaint with the EEOC
matter jurisdiction to entertain [the] plaintiff's ADA claim.”) Plaintiff's complaint, as written, fails to provide a date
(internal quotation marks and additional citations omitted). on which an adverse action took place. See generally
Dkt. No. 1. As such, the undersigned cannot determine
“A plaintiff must bring the federal court action within ninety whether plaintiff satisfied the prelitigation requirement of
days of receiving a right-to-sue letter.” Johnson v. Frida's commencing an EEOC claim within 180 days of the
Bakery Inc., No. 5:19-CV-1613 (DNH/CFH), 2020 WL alleged discriminatory action. See Constantine, 2015 WL
1904061, at *4 (N.D.N.Y. Apr. 17, 2020) (citing Cornwell v. 13744409, at *2. Accordingly, plaintiff's complaint must also
Robinson, 23 F.3d 694, 706 (2d Cir. 1994) (“[A] suit must be dismissed because plaintiff has failed to demonstrate she
be commenced not more than 90 days after receipt of the satisfied the prelitigation requirements necessary to proceed
right-to-sue letter”)). “It is well settled that if a plaintiff does on her apparent ADA disability discrimination claim before
not file suit within 90 days of receiving the EEOC's right-to- this Court. See id. (first citing Cornwell, 23 F.3d at 706, then
sue letter, the action must be dismissed, unless extraordinary quoting Ernestine Banks, 2018 WL 922147, at *2). However,
circumstances have been established.” Id. (quoting Ernestine
Banks v. Avis Budget Grp., 1:16-CV-1320 (MAD/DJS),
2018 WL 922147, at *2 (N.D.N.Y. Feb. 15, 2018) (citing it is possible that, if plaintiff did
Skibinski v. Zevnik, Horton, Guibord, McGovern, Palmer & receive a right to sue letter, she
Fognani, LLP, 57 F. App'x 900, 901 (2d Cir. 2003) (summary commenced this action within ninety
order))). “The filing deadline for the formal complaint is days after receipt of that letter ...
not jurisdictional and, like a statute of limitations, is subject [A]s the complaint is completely
to equitable tolling[, which] is only appropriate in rare and silent as to whether plaintiff timely
exceptional circumstances.” Id. (quoting Ernestine Banks, filed a complaint before the EEOC,
2018 WL 922147, at *2 (quoting Zerilli-Edelglass v. N.Y. received a right to sue letter, and
City Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003))) (internal timely commenced this action, due
quotation marks and citations omitted). to plaintiff's pro se status, it is
recommended that plaintiff's [ADA
Here, plaintiff's complaint attaches an email from the EEOC, claims] be dismissed without prejudice
dated December 23, 2023, confirming that she filed an and with opportunity to amend
employment discrimination claim against the YWCA and to allow plaintiff to provide such
advising her that she has “not yet scheduled an interview to information.
discuss [her] claim,” and her failure to do so will mean that the
EEOC “will not take any action on your inquiry.” Dkt. No. 6.
Plaintiff filed this lawsuit on December 9, 2024. See Dkt. No. Cao-Bossa, 2018 WL 5839692, at *3; see Constantine, 2015
1. However, plaintiff does not (1) allege she received a right- WL 13744409, at *1.
to-sue letter prior to filing her complaint with the Court, (2)
provide the Court a copy of the right-to-sue letter, or (3) state
that she commenced this action within ninety days of receipt
of a right-to-sue letter. See generally Dkt. No. 1; Constantine, 3. Disability Discrimination: Americans with
2015 WL 13744409, at *1-2. Further, plaintiff has not alleged Disabilities Act and New York State Human Rights Law
an extraordinary circumstance tolling the ninety-day filing
Even if plaintiff can demonstrate that she met all the
requirement. See generally Dkt. No. 1; Constantine, 2015 WL
prelitigation requirements, her complaint, as currently
13744409, at *2.
pleaded, fails to state a claim for disability discrimination
under the ADA or New York State Human Rights Law
*5 Moreover, “even if the Court assumes she had met
(“NYSHRL”). The ADA states that “[n]o covered entity
all of these requirements (or that equitable tolling applies),
shall discriminate against a qualified individual on the basis
it is unclear whether this federal action would be timely.”
of disability in regard to job application procedures, the
Cao-Bossa v. Pulcher, No. 1:18-CV-1009 (LEK/CFH), 2018
hiring, advancement, or discharge of employees, employee
WL 5839692, at *3 (N.D.N.Y. Nov. 8, 2018), report and
compensation, job training, and other terms, conditions, and
recommendation adopted as modified, No. 1:18-CV-1009
disability’ includes” “limiting, segregating, or classifying a F.3d 376, 381 (2d Cir. 2001) (citations omitted)).
job applicant or employee in a way that adversely affects
the opportunities or status of such applicant or employee *6 The ADA defines a “disability” as “a physical
because of the disability of such applicant or employee.” Id. or mental impairment that substantially limits one or
§ 12112(b)(1). Similarly, the New York State Human Rights more of the major life activities of [an] individual.” 42
Law (“NYSHRL”) provides that U.S.C. § 12102(1). “[M]ajor life activities include, but
are not limited to, caring for oneself, performing manual
tasks, seeing, hearing, eating, sleeping, walking, standing,
[i]t shall be an unlawful discriminatory lifting, bending, speaking, breathing, learning, reading,
practice ... [f]or an employer ... concentrating, thinking, communicating, and working.” Id.
because of an individual's ... § 12102(2)(A). However, “[t]he mere presence of a medical
disability, ... to refuse to hire or condition does not establish that a plaintiff is disabled.”
employ or to bar or to discharge Milner-Koonce, 2022 WL 1500995, at *6 (quoting O'Donnell
from employment such individual or to v. King B 100, LLC, No. 1:14-CV-1345 (TJM), 2016 WL
discriminate against such individual in 7742779, *9 (N.D.N.Y. May 3, 2016) (additional citations
compensation or in terms, conditions omitted). “In addition, it is well settled that temporary
or privileges of employment. impairments with little or no long-term permanent impact
are not disabilities under the ADA.” Id. (quoting O'Donnell,
2016 WL 7742779, *9) (additional citations omitted)).
N.Y. Exec. Law § 296(1)(a). “Temporary, or transitory, impairments are impairment[s]
with an actual or expected duration of 6 months or less.”
Pitter v. Target Corp., No. 1:20-CV-183 (MAD/CFH), 2020
WL 8474858, at *10 (N.D.N.Y. Sept. 1, 2020), report and
To establish a prima facie claim of
recommendation adopted, No. 1:20-CV-183 (MAD/CFH),
disability discrimination for failure
2020 WL 7767629 (N.D.N.Y. Dec. 30, 2020) (quoting 42
to hire under the ADA, a plaintiff
U.S.C. § 12102(3)(B)); see Hernandez v. Int'l Shoppes, LLC,
must demonstrate: (1) the employer is
100 F. Supp. 3d 232, 250 (E.D.N.Y. 2015) (citing 42 U.S.C. §
subject to the ADA; (2) the plaintiff
12102(3)(B)) (“An individual cannot be regarded as disabled
is disabled within the meaning of
under the ADA where the impairment is transitory and
the ADA or perceived to be so by
minor.”).
her employer; (3) she was otherwise
qualified to perform the essential
The NYSHRL defines “disability” as:
functions of the job with or without
reasonable accommodation; (4) she
suffered an adverse employment
action; and (5) the adverse action was (a) a physical, mental or medical
imposed because of her disability. impairment resulting from anatomical,
physiological, genetic or neurological
conditions which prevents the exercise
of a normal bodily function or is
Scalercio-Isenberg v. Morgan Stanley Servs. Grp. Inc., No.
demonstrable by medically accepted
19-CV-6034 (JPO), 2020 WL 4547317, at *3 (S.D.N.Y.
clinical or laboratory diagnostic
Aug. 6, 2020) (citing Davis v. N.Y.C. Dep't of Educ., 804
techniques or (b) a record of such
F.3d 231, 235 (2d Cir. 2015) (per curiam)). “[T]he evidence
an impairment or (c) a condition
necessary for the plaintiff to satisfy this initial burden is
regarded by others as such an
‘minimal’ and ‘de minimis[.]’ ” Milner-Koonce v. Albany
impairment, provided, however, that
City Sch. Dist., No. 1:21-CV-1271 (LEK/CFH), 2022 WL
in all provisions of this article
1500995, at *6 (N.D.N.Y. May 12, 2022), report and
dealing with employment, the term
recommendation adopted as modified, No. 1:21-CV-1271
shall be limited to disabilities which,
accommodations, do not prevent and with leave to amend because the above-discussed defects
the complainant from performing in could potentially be cured with a better pleading.
a reasonable manner the activities
involved in the job or occupation
sought or held.
4. Housing Discrimination
Pitter, 2020 WL 8474858, at *10-11 (quoting N.Y. Exec. Law a. FHA and NYSHRL
§§ 292(21)(a)-(c)).
An attachment to plaintiff's complaint briefly references that
her “previous roommate was raped by YWCA staff” and that
Here, even affording plaintiff due solicitude, she has not
she was sexually harassed by the YWCA staff. Dkt. No. 1-1.
demonstrated a prima facie disability discrimination claim
Reading plaintiff's complaint liberally, and affording her due
based on failure to hire. See Scalercio-Isenberg, 2020 WL
solicitude, plaintiff's complaint could be interpreted as raising
4547317, at *3. Even assuming plaintiff could demonstrate
a claim under the Fair Housing Act (“FHA”) or the NYSHRL.
that the YWCA is a “covered entity”10 under the ADA,
something she has not addressed in her complaint, plaintiff “Sexual harassment claims are cognizable under the FHA
has not adequately alleged an adverse employment action and the NYSHRL.” Glover v. Jones, 522 F. Supp. 2d 496,
in claiming, conclusorily, that the YWCA has a policy of 503 (W.D.N.Y. 2007) (citing Rich v. Lubin, No. 02 Civ.
refusing to hire disabled people or disabled YWCA residents 6786 (TPG), 2004 WL 1124662 at *4 (S.D.N.Y. May 20,
for full-time employment. See Dkt. No. 1 at 4. Although 2004)). “The legal standard for sexual harassment claims
plaintiff claims that “[t]he YWCA communicated that I am under the FHA has been analogized in the Second Circuit to
a person with a disability ... and are (sic) not eligible for the standard pertaining to hostile work environment claims
employment [with] the YWCA on a full[-]time basis[,]” under Title VII.” Id. (quoting Rich, 2004 WL 1124662 at
plaintiff does not provide any additional explanation, context, *4); see also Spavone v. Transitional Servs. of New York
or evidence supporting her allegation. Id. Plaintiff does not Supportive Hous. Program (TSI), No. 16-CV-1219 (MKB),
state that she applied for a position with the YWCA nor 2016 WL 2758269, at *6 (E.D.N.Y. May 12, 2016) (same). A
allege that “she was otherwise qualified to perform the plaintiff claiming sexual harassment leading to a hostile living
essential functions of the job with or without reasonable environment must demonstrate (1) “that she was subjected
accommodation.” Scalercio-Isenberg, 2020 WL 4547317, at to harassment that was sufficiently pervasive and severe
*3. “Plaintiff does not explain what her disability is, whether so as to create a hostile environment,” and (2) “that a
she has a diagnosis for an impairment, or how such disability basis exists for imputing the allegedly harassing conduct
substantially limits a major life activity.” Milner-Koonce, to the defendants.” Id. (quoting Rich, 2004 WL 1124662
2022 WL 1500995, at *7. Further, she does not provide a at *4). “Isolated or sporadic sexually inappropriate acts are
“record of such impairment” or “a condition regarded by not sufficiently pervasive and severe to constitute sexual
others as such an impairment.” Pitter, 2020 WL 8474858, at harassment under the FHA.” Mohamed v. McLaurin, 390 F.
*10-11. As such, plaintiff's apparent assertion that the YWCA Supp. 3d 520, 549 (D. Vt. 2019) (quoting Rich, 2004 WL
refused to hire her for full-time employment because she is 1124662 at *4, and citing Shellhammer v. Lewallen, 770 F.2d
disabled does not suffice to state a claim for failure to hire due 167 (6th Cir. 1985)). “Quid pro quo [sexual] harassment ...
to a disability in violation of the ADA or NYSHRL.11 occurs when housing benefits are explicitly or implicitly
conditioned on sexual favors.” Glover, 522 F. Supp. 2d at 503
*7 Accordingly, the undersigned concludes that plaintiff's (quoting Honce v. Vigil, 1 F.3d 1085, 1089 (10th Cir.1993))
compliant, as written, fails to establish “a prima facie claim (internal quotation marks and additional citation omitted).
of disability discrimination for failure to hire.” Scalercio-
Isenberg, 2020 WL 4547317, at *3. However, in light of
plaintiff's pro se status, and because it is possible that plaintiff A plaintiff asserting a hostile housing
could provide the information necessary to establish a prima environment claim pursuant to Section
facie claim of disability discrimination under the ADA 3604(b) must establish that (1) she
was sufficiently pervasive and severe by a better pleading.
so as to create a hostile housing
environment, (2) the harassment was
because of the plaintiff's membership
4. 42 U.S.C. § 1983
in a protected class, and (3) the
defendant(s) is responsible for the
allegedly harassing conduct towards a. State Action
the plaintiff.
Plaintiff's complaint alleges that the YWCA violated her
Fourteenth Amendment due process rights by preventing her
from operating a business out of the room she rents from
Favourite v. 55 Halley St., Inc., 381 F. Supp. 3d 266, 277
the YWCA. See Dkt. No. 1 at 3-4. However, “[t]o state
(S.D.N.Y. 2019) (citing Cain v. Rambert, No. 13-CV-5807
a claim under § 1983, a plaintiff must allege the violation
(MKB), 2014 WL 2440596, at *5 (E.D.N.Y. May 30, 2014)).
of a right secured by the Constitution and laws of the
“As with any claim asserted pursuant to the FHA, a plaintiff
United States, and must show that the alleged deprivation
must also show a relationship between the discriminatory
was committed by a person acting under color of state
conduct and housing.” Cain, 2014 WL 2440596, at *5
law.” Gerken v. Gordon, No. 1:24-CV-435 (MAD/CFH),
(E.D.N.Y. May 30, 2014) (citing People of State of N.Y. by
2024 WL 4608307, at *11 (N.D.N.Y. Oct. 29, 2024), report
Abrams v. Merlino, 694 F. Supp. 1101, 1104 (S.D.N.Y. 1988)
and recommendation adopted, No. 1:24-CV-435 (MAD/
(“[P]laintiffs, to succeed, must demonstrate ... a relationship
CFH), 2024 WL 5001402 (N.D.N.Y. Dec. 6, 2024) (quoting
between the harassment and housing.”)).
West v. Atkins, 487 U.S. 42, 48 (1988)). “The traditional
definition of acting under color of state law requires that
Although plaintiff's complaint alleges that she was sexually
the defendant ... exercise[ ] power possessed by virtue of
harassed by YWCA staff, plaintiff has failed to provide any
state law and made possible only because the wrongdoer
details about this incident. See generally Dkt. No. 1; Dkt. No.
is clothed with the authority of state law.” Id. (quoting
1-1. Plaintiff does not state when or where this incident or
West, 487 U.S. at 49) (internal quotation marks and citation
incidents occurred, by whom she was sexually harassed, or
omitted). “Because the United States Constitution regulates
any details concerning the severity or frequency of the sexual
only the Government, not private parties, [with respect to
harassment. See id. Plaintiff's complaint, as written, does not
a claim brought under § 1983,] a litigant claiming that his
establish either sexual harassment creating a hostile living
constitutional rights have been violated must first establish
environment or quid-pro-quo sexual harassment. See Glover,
that the challenged conduct constitutes state action.” Id.
522 F. Supp. 2d at 503 (citing Rich, 2004 WL 1124662 at *4).
(quoting Flagg v. Yonkers Sav. & Loan Ass'n, 396 F.3d 178,
Plaintiff does not identify membership in a covered protected
186 (2d Cir. 2005)) (internal quotations omitted) (quoting
class nor allege that she was sexually harassed due to this
United States v. Int'l Brotherhood of Teamsters, 941 F.2d
membership. See Favourite, 381 F. Supp. 3d at 277. Further,
1292, 1295 (2d Cir. 1991)); see Baum v. N. Dutchess Hosp.,
to the extent that plaintiff may be seeking this Court to
764 F. Supp. 2d 410, 419 (N.D.N.Y. 2011) (“State action
initiate criminal charges against the unidentified YWCA staff
is an essential element of any § 1983 claim.”) (first citing
member, there is no private cause of action to enforce state or
Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 934 (1982)
federal criminal statutes. See, e.g., McFadden v. Ortiz, 5:12-
(explaining that the “under color of any statute” language
CV-1244 (MAD/ATB), 2013 WL 1789593, at *3 (N.D.N.Y.
is to enforce the provisions of the Fourteenth Amendment
Apr. 26, 2013).
and that if a defendant's conduct satisfies the state-action
requirement then that conduct is also action under color of
*8 The undersigned concludes that, in its current form,
state law under § 1983), then citing Rounseville v. Zahl,
plaintiff's complaint does not demonstrate a FHA or
13 F.3d 625, 627-28 (2d Cir. 1994) (noting the state action
NYSHRL sexual harassment claim. However, because it is
requirement for § 1983)); Pearson v. Chipotle Mexican
possible that plaintiff could plead such facts, the undersigned
Grill of Colorado, No. 1:15-CV-545 (BKS/CFH), 2015 WL
recommends dismissing plaintiff's sexual harassment claim
3604089, at *3 (N.D.N.Y. June 4, 2015) (quoting Agustus v.
without prejudice and with leave to amend because the
AHRC Nassau, 13-CV-6227 (PKC), 2013 WL 6173782, at *2
omitted))) (“As the Supreme Court has held, the under-color- Here, the YWCA is a § 501(c)(3) charity.12 Therefore, the
of-state-law element of § 1983 excludes from its reach merely YWCA is a private party and not state actor. See Gerken,
private conduct, no matter how discriminatory or wrongful.”) 2024 WL 4608307, at *11; see generally Lopez v. WYCA
(internal quotation marks omitted). of Northeast New York, 1:24-CV-1516 (BKS/PJE), 2025
WL 641569, at *7 (N.D.N.Y. Feb. 25, 2025) (holding that
“Private parties generally are not state actors and therefore statements that the YWCA receives federal funding did not
are not usually liable under [§] 1983.” Gerken, 2024 WL demonstrate that the YWCA is a state actor). Plaintiff has
4608307, at *11 (quoting Yi Sun v. Saslovsky, No. 1:19- not alleged that the YWCA has taken any action that can
CV-10858 (LTS), 2020 WL 6828666, at *7 (S.D.N.Y. Aug. be “fairly attributable” to the state. Id. The only allegation
6, 2020)) (citing Sykes v. Bank of America, 723 F.3d 399, 406 raised in plaintiff's complaint is that she disagrees with the
(2d Cir. 2013)); see Basile v. Connolly, 538 F. App'x 5, 7 (2d YWCA's rules forbidding her from operating a business
Cir. 2013) (summary order) (“[P]rivate individuals ... cannot out of the room that she rents from the YWCA. See Dkt.
be sued under 42 U.S.C. § 1983 absent a plausible allegation No. 1 at 3-4. However, “[p]laintiff fails to allege any facts
that they acted under color of state law.”). plausibly suggesting a nexus between defendant[ ] and any
state action.” Pearson, 2015 WL 3604089, at *3.
*9 A private party's actions can be considered state action
in three situations: Moreover, even if plaintiff could amend to demonstrate
that the YWCA was acting under the color of state law,
she fails to demonstrate how a policy prohibiting her to
(1) the private party acts using operate a business out of her residence at the YWCA
the coercive power of the state violates her Fourteenth Amendment rights.13 Even if she
or is controlled by the state (the had made such a claim and could demonstrate that such
“compulsion test”); (2) the private a policy would be violative of her constitutional rights,
party willfully participates in joint plaintiff has also not established that the YWCA prevented
activity with the state or its functions residents from operating a business out of their rooms; rather,
are entwined with state policies (the from the exhibits she submits, it appears that the YWCA
“joint action” or “close nexus” test); required preapproval from the YWCA housing director
or (3) the state has delegated a public before “working from home.” Dkt. No. 1-5 at 5; Dkt. No.
function to the private party (the 1-4 at 6. It also seems as though the former rule relating to
“public function” test). operating businesses out of the YWCA residences was only
that residents were not permitted to use the YWCA address
as their business address as the YWCA is “already a business
Gerken, 2024 WL 4608307, at *11. (quoting Rogers v. City of address.” Dkt. No. 1-2 at 1.14 Plaintiff further fails to allege
New Rochelle, No. 1:19-CV-0479 (CM), 2019 WL 5538031, that she sought to operate a business out of her residence and
at *2 (S.D.N.Y. Oct. 25, 2019)) (citing Fabrikant v. French, the YWCA prohibited her from doing so.
691 F.3d 193, 207 (2d Cir. 2012)). “The fundamental question
under each test is whether the private party's challenged *10 Plaintiff's argument appears to be a disagreement
actions are ‘fairly attributable’ to the State.” Id. (quoting with, or misunderstanding of, the YWCA's residency rules.
Rogers, 2019 WL 5538031, at *2) (quoting Rendell-Baker However, even if plaintiff alleged that the policy still existed
v. Kohn, 457 U.S. 830, 838 (1982)). “[A] State normally during the time that she resided at the YWCA and was applied
can be held responsible for a private decision ... when it to her in a way that prohibited her from operating her business
has ... provided such significant encouragement, either overt out of her YWCA room, she has failed to demonstrate how
or covert, that the choice must in law be deemed to be that of this would amount to a violation of her due process or equal
the State.” Id. (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 protection rights.15 As such, the undersigned concludes that
(1982)) (citations omitted). “The State's ‘[m]ere approval of
plaintiff's complaint fails to state a claim under Section 1983.
or acquiescence in the initiatives of a private party[, however,]
Although it appears unlikely that plaintiff will be able to
is not sufficient to justify holding the State responsible for
demonstrate that the YWCA was acting under the color of
the Second Circuit's directives as to special solicitude – the pauperis (Dkt. Nos. 2, 4) is GRANTED; and it is
undersigned recommends that plaintiff's Section 1983 claim
be dismissed without prejudice and with leave to amend such RECOMMENDED, that plaintiff's complaint (Dkt. No. 1) be
that plaintiff may attempt to demonstrate that Section 1983 DISMISSED without prejudice and with leave to amend;
applies to the YWCA, explain how the YWCA policy was it is further
applied to her, and demonstrate how such policy violated her
Fourteenth Amendment rights. See Lopez, 2025 WL 641569,
RECOMMENDED, that in the event the District Judge,
following review of this Report-Recommendation and Order,
at *7.
permits plaintiff an opportunity to amend, plaintiff be given
thirty (30) days from the District Judge's Decision and
Order adopting this Report-Recommendation and Order to
IV. Leave to Amend file an amended complaint, and if plaintiff does not timely
file an amended complaint pursuant to the District Judge's
Generally, “[a] pro se complaint should not be dismissed
Decision and Order, the Clerk may close this case without the
without the Court granting leave to amend at least once when
requirement of further order of the Court; and it is
a liberal reading of the complaint gives any indication that a
valid claim might be stated.” Gerken, 2024 WL 4608307, at
ORDERED, that the Clerk serve a copy of this Report-
*15 (quoting Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014)
Recommendation and Order on plaintiff in accordance with
(citation and internal quotation marks omitted)). “However,
Local Rules.
if the problems with a complaint are ‘substantive’ rather than
the result of an ‘inadequately or inartfully pleaded’ complaint,
IT IS SO ORDERED.
an opportunity to re-plead would be ‘futile’ and ‘should be
denied.’ ” Id. (citing Edwards v. Penix, 388 F. Supp. 3d 135,
Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has FOURTEEN
144-45 (N.D.N.Y. 2019)) (quoting Cuoco v. Moritsugu, 222
(14) days within which to file written objections to the
F.3d 99, 112 (2d Cir. 2000)). Here, as noted, the undersigned
foregoing report. Such objections shall be filed with the Clerk
concludes that plaintiff's claims may potentially be cured by
of the Court. FAILURE TO OBJECT TO THIS REPORT
a better pleading; thus, it is recommended that the entirety of
WITHIN FOURTEEN (14) DAYS WILL PRECLUDE
plaintiff's complaint be dismissed without prejudice and with
APPELLATE REVIEW. See Roldan v. Racette, 984 F.2d
opportunity to amend.16
85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and
Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C.
§ 636(b)(1); FED. R. CIV. P. 6(a), 72.17
IV. Conclusion
*11 WHEREFORE, for the reasons set forth herein, it is All Citations
hereby
Slip Copy, 2025 WL 2933526
Footnotes
1 This matter was referred to the undersigned for Report-Recommendation and Order pursuant to 28 U.S.C.
§ 636(b) and N.D.N.Y. L.R. 72.3(d).
2 Plaintiff is advised that although she has been granted IFP status, she is still required to pay any fees and
costs she may incur in this action, including, but not limited to, copying fees, transcript fees, and witness fees.
Court orders otherwise, any civil action that a non-prisoner pro se litigant commences shall be referred to a
Magistrate Judge for the purpose of review under 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A when an
application to proceed in forma pauperis is filed.”) (emphasis added).
4 Hereinafter, “Fed. R. Civ. P.”
5 All unpublished opinions cited in this Report-Recommendation and Order, unless otherwise noted, have been
provided to plaintiff.
6 Plaintiff included multiple attachments with her complaint. See Dkt. Nos. 1-1, 1-2, 1-3, 1-4, 1-5; Dkt. No. 6.
These attachments have also been reviewed in connection with the initial review of plaintiff's complaint. See
Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004) (“A complaint is deemed to include any written instrument
attached to it as an exhibit, materials incorporated in it by reference, and documents that, although not
incorporated by reference, are integral to the complaint.”) (internal quotation marks and citations omitted).
7 The undersigned's citations to filings connected with this motion refer to the pagination located at the header
of each page, which the Court's electronic filing and case management program generated, rather than the
individual pagination of each document.
8 Plaintiff's civil cover sheet checks the box indicating “U.S. Government” as the basis of jurisdiction. See Dkt.
No. 1-6. However, the United States Government is not a defendant in this action. See generally Dkt. No.
1. Reading plaintiff's complaint liberally and affording her due solicitude, it appears plaintiff likely intended to
mean that her claims involve federal question jurisdiction. See generally Cinotti v. Adelman, 709 F. App'x 39,
40 (2d Cir. 2017) (summary order) (“[A]lthough [the plaintiff's] pro se complaint does not refer to 42 U.S.C. §
1983, the district court should have construed it liberally as asserting § 1983 claims, which provide a basis
for federal question jurisdiction.”).
9 To the extent possible, the undersigned discusses the merits of these issues and additional deficiencies infra.
10 The ADA prohibits a “covered entity” from discriminating against “a qualified individual on the basis
of disability[.]” 42 U.S.C. § 12112(a). “[C]overed entit[ies]” include, among other kinds of institutions,
“employer[s].” Id. § 12111(2). And an “employer” is defined as “a person engaged in an industry affecting
commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in
the current or preceding calendar year[.]” Id. § 12111(5)(A).
Mirabal v. Alumaline, Inc., No. 21-CV-5356-ENV-SJB, 2023 WL 8183324, at *1 (E.D.N.Y. Nov. 27, 2023).
11 Factually, the undersigned observes that the policy upon which plaintiff appears to base her disability
discrimination claim – that the YWCA does not hire residents for full time employment – does not appear
to be a current YWCA policy. See Dkt. No. 1-2 at 1-3 (email chain between plaintiff and the YWCA housing
director); see also Dkt. Nos. 1-3, 1-4, 1-5 (YWCA Resident Handbooks from 2019, 2023, and 2024). In emails
between plaintiff and the YWCA housing director, the YWCA housing director indicated that the policy against
residents operating a business out of their YWCA residence “has been updated” and the policy plaintiff is
referring to is “from many years ago that is not a current policy.” Dkt. No. 1-2 at 1, 3.
12 See YWCA NORTHEASTERN NY, https://www.ywca-neny.org/ (last visited Aug. 18, 2025).
13 In citing the Fourteenth Amendment without any context, the undersigned has no way of knowing whether
plaintiff is attempting to plead a due process or equal protection claim.
14 It appears that the 2019 and 2023 resident handbooks had a policy that “[n]o resident may operate a business
does not contain this policy. See generally Dkt. No. 1-3. Further The YWCA housing director explained that
the policy forbidding YWCA residents from working out of their homes had to do with residents not being
permitted to use the YWCA address as a business address. See Dkt. No. 1-2 at 1.
15 The Fourteenth Amendment prohibits states from depriving “any person of life, liberty, or property, without
due process of law ....” U.S. CONST. amend. XIV, § 1. “Those seeking to invoke its protection must establish
that one of these interests is at stake.” Cullen v. Mello, No. 23-413, 2024 WL 1904571, at *1 (2d Cir. May 1,
2024) (internal quotation marks and citations omitted). “The two threshold questions in any § 1983 claim for
denial of procedural due process are whether the plaintiff possessed a liberty or property interest protected
by the United States Constitution or federal statutes, and, if so, what process was due before plaintiff could
be deprived of that interest.” Nicholas v. Seggos, No. 8:23-CV-463 (GTS/CFH), 2023 WL 6121164, at *5
(N.D.N.Y. Sept. 19, 2023), report and recommendation adopted, No. 8:23-CV-0463 (GTS/CFH), 2023 WL
7004103 (N.D.N.Y. Oct. 24, 2023) (quoting Green v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995) (citation omitted)).
“The Equal Protection Clause requires state actors to treat similarly situated persons alike.” Barzee v. Tyler,
No. 8:21-CV-902 (GTS/CFH), 2022 WL 1406606, at *9 (N.D.N.Y. May 3, 2022), report and recommendation
adopted, No. 8:21-CV0 0902 (GTS/CFH), 2022 WL 2079084 (N.D.N.Y. June 9, 2022) (citing City of Cleburn,
Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). “Typically an equal protection claim is brought by a
member of a vulnerable class, who alleges discrimination based upon that membership.” Id. (quoting AYDM
Assocs., LLC v. Town of Pamelia, 205 F. Supp. 3d 252, 265 (N.D.N.Y. 2016)) (citing Harlen Assocs. v.
Incorporated Village of Mineola, 273 F.3d 494, 499 (2d Cir. 2001)).
16 In the event the District Judge adopts the undersigned's Report-Recommendation & Order and plaintiff is
permitted to amend her complaint, plaintiff is advised that any amended pleading cannot incorporate a prior
pleading by reference. Any amended pleading supersedes and replaces a prior pleading in its entirety. An
amended pleading must establish this Court's jurisdiction and state a claim for relief against each named
defendant for which leave to replead was granted according to Rules 8 and 10 of the Federal Rules of Civil
Procedure.
17 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three (3)
additional days will be added to the fourteen-day (14) period, meaning that you have seventeen (17) days
from the date the Report-Recommendation and Order was mailed to you to serve and file objections. See
FED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday,
then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday.
See id. § 6(a)(1)(c).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
2025 WL 2778360 (C). “To be ‘specific,’ the objection must, with particularity,
Only the Westlaw citation is currently available. ‘identify [1] the portions of the proposed findings,
United States District Court, N.D. New York. recommendations, or report to which it has an objection
and [2] the basis for the objection.’ ” Petersen v. Astrue,
Elizabeth Marie TERRY, Plaintiff, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012) (alteration in
v. original) (quoting N.D.N.Y. Local Rule 72.1(c)). If no specific
YWCA OF NORTHEASTERN objections have been filed, this Court reviews a magistrate
NEW YORK, Defendant. judge's report-recommendation for clear error. See Petersen,
2 F. Supp. 3d at 229 (citing Fed. R. Civ. P. 72(b) advisory
1:24-cv-01492 (AMN/PJE) committee's notes to 1983 addition). Similarly, when a party
| files “[g]eneral or conclusory objections, or objections which
Signed September 30, 2025 merely recite the same arguments [previously] presented to
the magistrate judge,” the district court reviews a magistrate
Attorneys and Law Firms judge's report-recommendations for clear error. O'Diah v.
Mawhir, No. 08-cv-322, 2011 WL 933846, at *1 (N.D.N.Y.
ELIZABETH MARIE TERRY, 730 Plymouth Avenue – Apt.
Mar. 16, 2011) (citations omitted); accord Mario v. P &
3, Buffalo, New York 14213, Plaintiff pro se.
C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) (a
“statement, devoid of any reference to specific findings or
recommendations to which [the plaintiff] objected and why,
ORDER and unsupported by legal authority, was not sufficient to
preserve” a claim); Petersen, 2 F. Supp. 3d at 228-29 & n.6
Anne M. Nardacci, United States District Judge:
(collecting cases). “When performing such a ‘clear error’
I. INTRODUCTION review, ‘the court need only satisfy itself that there is no
*1 On December 9, 2024, plaintiff pro se Elizabeth Marie clear error on the face of the record in order to accept the
Terry (“Plaintiff”) commenced this action against defendant recommendation.’ ” Dezarea W. v. Comm'r of Soc. Sec., No.
YWCA of Northeastern New York (“Defendant”). Dkt. No. 1 21-cv-01138, 2023 WL 2552452, at *1 (N.D.N.Y. Mar. 17,
(“Complaint”). Plaintiff sought and ultimately received leave 2023) (quoting Canady v. Comm'r of Soc. Sec., No. 17-
to proceed in forma pauperis. Dkt. Nos. 2, 4, 7 at 1-2.1 cv-0367, 2017 WL 5484663, at *1 n.1 (N.D.N.Y. Nov. 14,
2017)).
This matter was referred to United States Magistrate Paul
*2 “[I]n a pro se case, the court must view the submissions
J. Evangelista, who reviewed the Complaint pursuant to 28
by a more lenient standard than that accorded to ‘formal
U.S.C. § 1915(e) and, on August 26, 2025, issued a report-
pleadings drafted by lawyers.’ ” Govan v. Campbell, 289
recommendation and order recommending that the Complaint
F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines
be dismissed with leave to amend. Dkt. No. 7 (“Report-
v. Kerner, 404 U.S. 519, 520 (1972)) (additional citations
Recommendation”). Magistrate Judge Evangelista advised
omitted). The Second Circuit has held that courts are
that pursuant to 28 U.S.C. § 636(b)(1), Plaintiff had fourteen
obligated to “make reasonable allowances to protect pro se
days within which to file written objections and that failure to
litigants” from inadvertently forfeiting legal rights merely
object to the Report-Recommendation within fourteen days
because they lack a legal education. Id. (quoting Traguth v.
would preclude appellate review. Id. at 23. Plaintiff filed
Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). That said, “even a
objections on September 10, 2025. Dkt. No. 10.
pro se party's objections to a Report and Recommendation
must be specific and clearly aimed at particular findings in
For the reasons set forth below, the Court adopts the Report-
the magistrate's proposal ....” Machicote v. Ercole, No. 06-
Recommendation in its entirety.
cv-13320, 2011 WL 3809920, at *2, (S.D.N.Y. Aug. 25, 2011)
(citation omitted); accord Caldwell v. Petros, No. 22-cv-567,
II. STANDARD OF REVIEW 2022 WL 16918287, at *1 (N.D.N.Y. Nov. 14, 2022). After
This Court reviews de novo those portions of a magistrate appropriate review, “the court may accept, reject or modify,
judge's report-recommendation that have been properly
the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). objection to the Report-Recommendation, the Court reviews
the Report-Recommendation for clear error. Petersen, 2
F. Supp. 3d at 228-29; Caldwell, 2022 WL 16918287,
III. DISCUSSION at *1. Upon review, the Court discerns no clear
The Court adopts those aspects of the Report- error in Magistrate Judge Evangelista's findings and
Recommendation to which no party has raised a specific recommendations. See generally Dkt. No. 7. As a result, the
objection, finding no clear error therein, including the Report-Recommendation is adopted in its entirety.
background and the legal framework set forth in the Report-
Recommendation, familiarity with which is presumed for
purposes of this decision. IV. CONCLUSION
Accordingly, the Court hereby
As detailed at length in the Report-Recommendation,
Magistrate Judge Evangelista liberally construed Plaintiff's ORDERS that the Report-Recommendation, Dkt. No. 7, is
allegations as seeking to bring discrimination claims and a ADOPTED in its entirety; and the Court further
claim for violation of her Fourteenth Amendment rights. Dkt.
No. 7 at 5-21. After examining the various deficiencies in ORDERS that Plaintiff's Complaint, Dkt. No. 1, is
Plaintiff's allegations, including finding that she had failed DISMISSED with leave to amend; and the Court further
to satisfy Rule 8 of the Federal Rules of Civil Procedure, he
ultimately concluded that she had failed to state a claim. Id. ORDERS that any amended complaint must be filed within
Given the nature of these deficiencies, however, Magistrate thirty (30) days of the filing date of this Order; and the Court
Judge Evangelista recommended dismissal with leave to further
amend. Id. at 22-23.
ORDERS that, if Plaintiff timely files an amended complaint,
Plaintiff's objections largely summarize the Report- it shall be referred to Magistrate Judge Evangelista for review;
Recommendation and identify no error in Magistrate Judge and if Plaintiff fails to file a timely amended complaint, the
Evangelista's findings or recommendations. Dkt. No. 10 at Clerk is directed to close this case without further order of this
1-4. To the extent that Plaintiff takes issue with the Report- Court; and the Court further
Recommendation, the nature of her challenge is difficult
to discern. Id. at 4 (objecting to consideration of whether *3 ORDERS that the Clerk serve a copy of this Order on all
Plaintiff had stated a disability discrimination claim because parties in accordance with the Local Rules.2
“[t]he Plaintiff does not have a disability and is not alleging
that she was discriminated against on the basis of her literally IT IS SO ORDERED.
having a disability”); id. at 5 (objecting to recommendation
that Plaintiff receive leave to amend the Complaint).
All Citations
Slip Copy, 2025 WL 2778360
Footnotes
1 Citations to docket entries utilize the pagination generated by CM/ECF, the Court's electronic filing system,
and not the documents’ internal pagination.
2 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.