Watson v. Buffalo & Erie County Public Library et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________________
TRACEY WATSON,
REPORT
Plaintiff, 	and
v. 	RECOMMENDATION
------------------------------
BUFFALO & ERIE COUNTY PUBLIC LIBRARY, and 	DECISION
BOARD OF TRUSTEES OF THE BUFFALO AND 	and
ERIE COUNTY PUBLIC LIBRARY, 	ORDER
Defendants. 	24-CV-139-JLS(F)
___________________________________________
APPEARANCES: 	TRACEY WATSON, Pro se
14460 Falls of Neuse Road
Suite 149-105
Raleigh, North Carolina 27614
BOND, SCHOENECK & KING, PLLC
Attorneys for Defendants
ALISON ROACH,
EDWARD W. KELLY, and
MICHAEL E. HICKEY, of Counsel
Avant Building
200 Delaware Avenue
Suite 900
Buffalo, New York 14202
JURISDICTION
This case was referred to the undersigned by Honorable John L. Sinatra, Jr.
on April 4, 2024, for all pretrial matters. (Dkt. 11). The matter is presently before the
court on multiple motions filed by Plaintiff including a motion seeking an extension of
time to complete discovery (Dkt. 53), filed June 3, 2025, a motion for discovery (Dkt.
54), filed June 3, 2025, a motion to compel and for sanctions (Dkt. 62), filed July 7,
2025, a motion for leave to modify the scheduling order (Dkt. 63), filed July 7, 2025, a
motion to amend a motion to file an amended complaint (Dkt. 64), filed July 8, 2025, two
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motions for leave to proceed in forma pauperis (Dkts. 69 and 70), both filed August 21,
2025, a motion to compel discovery (Dkt. 72), filed August 26, 2025, a motion to amend
the scheduling order (Dkt. 73), filed August 26, 2025, a motion to expedite Rule 26(a)
initial disclosures (Dkt. 75), filed August 26, 2025, and a motion for a protective order
under Rule 26(c) (Dkt. 79), filed September 25, 2025.1
BACKGROUND
On February 12, 2024, Plaintiff Tracey Watson (“Plaintiff”), then proceeding pro
se, commenced this race-based employment discrimination action asserting claims
against Defendant Buffalo & Erie County Public Library, and New York State
Department of Education (together, “Original Defendants”), for violations of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et al. (“Title VII”). Plaintiff also filed on
February 12, 2024 an application for appointment of counsel, Dkt. 2, which was granted
on March 12, 2024, for the limited purpose of preparing an amended complaint. Dkt. 7.
Original Defendants filed an answer on April 3, 2024 (Dkt. 10).
On April 15, 2024, E. Peter Pfaff, Esq. (“Mr. Pfaff”), was appointed to represent
Plaintiff. Dkt. 12. In a letter to the undersigned dated May 2, 2024 (Dkt. 15), Plaintiff
conveyed her concerns that Mr. Pfaff did not have sufficient experience with
1 The undersigned’s recommendation that portions of Plaintiff’s Supplemental Motion to Amend (Dkt. 64),
should be denied as futile is dispositive. Taft v. Whitney, 2025 WL 1626307, at * 4 (W.D.N.Y. Feb. 21,
2025) (observing that Second Circuit Court of Appeals has never definitively ruled on whether the denial
of a motion to file an amended complaint is dispositive but citing cases demonstrating that district courts
within the Second Circuit tend to conclude the denial of a motion to amend is non-dispositive when based
on undue delay or prejudice, but dispositive when based on futility which is considered akin to granting a
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6)), report and recommendation adopted by 2025 WL
1540650 (W.D.N.Y. May 30, 2025). Accordingly, the undersigned treats the motion seeking leave to file a
further amended complaint as dispositive insofar as denial of the motion as futile is recommended and all
the motions are addressed in this combined Report and Recommendation and Decision and Order.
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employment discrimination lawsuits and requested the court appoint an attorney who
specializes in employment discrimination to represent her in this action or, alternatively,
grant Plaintiff 60 days in which to prepare an amended complaint. On May 10, 2024,
Mr. Pfaff moved to withdraw as Plaintiff’s counsel (Dkt. 16), which, on August 8, 2024,
was granted by the undersigned, (Dkt. 18), with the undersigned’s stated intention to
appoint new pro bono counsel for Plaintiff. By letter dated September 26, 2024 (Dkt.
22), however, Plaintiff advised the undersigned that she had obtained employment for
which the pay exceeded the eligibility threshold for appointment of pro bono counsel,
and requested an extension of time in which to file, pro se, an amended complaint (“first
motion to amend”).
On October 15, 2024, the undersigned granted Plaintiff’s first motion to amend,
setting November 25, 2024 as the deadline for Plaintiff to file a proposed amended
complaint. Dkt. 23. Accordingly, on November 25, 2024, Plaintiff filed an amended
complaint (Dkt. 25) (“First Amended Complaint” or “FAC”), adding as a defendant the
Board of Trustees of the Buffalo and Erie County Public Library (“the Board”) and claims
against the Library and the Board (“Defendants”) pursuant to 42 U.S.C. §§ 1981 and
1983 based on alleged violations of Plaintiff’s Fourteenth Amendment rights to due
process and equal protection.2 	To date, the FAC remains Plaintiff’s operative pleading.
On February 13, 2025, Plaintiff filed Plaintiff’s Motion to [File]3 Amended and
Supplemented Complaint and Join Additional Parties to Complaint (Dkt. 38), seeking to
file a second amended complaint (“SAC”) adding defendants (“Initial Motion to Amend”),
2 New York State Education Department, which Plaintiff named as a Defendant in the original Complaint
but not in the FAC, was terminated as a Defendant on November 25. 2024.
3 Unless otherwise indicated, bracketed material has been added.
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supported by the attached proposed Plaintiff’s Amended and Supplemented [sic]
Complaint (“SAC”) (Dkt. 38 at 6-52) (“Initial Proposed SAC”). On February 27, 2025,
Defendants filed Defendants’ Memorandum of Law in Opposition to Plaintiff’s Motion to
Amend and Supplement and Join Additional Parties (Dkt. 39) (“Defendants’ Response
to Initial Motion to Amend”).
On June 3, 2025, Plaintiff filed Plaintiff[’s] Motion for Extension of Time to
Complete Rule 26 Initial Disclosures and Rule 34 Discovery Requests (Dkt. 53) (“Motion
to Extend Deadlines”), attaching exhibits, and also filed Plaintiff[’s] Motion for Expedited
Review of Audio Recording to Admit into Evidence for Mediaition [sic] Confernece [sic]
and Trial (Dkt. 54) (“Motion to Admit Evidence”), attaching exhibits. On June 17, 2025
(Dkt. 58), Defendants filed Defendants’ Response to Plaintiff’s Motion to Admit
Evidence and Motion to Extend Deadlines (Dkt. 58) (“Defendants’ Response to
Extension and Admission of Evidence”). On June 23, 2025, Plaintiff filed Plaintiff[’s]
Reply to Defendants[’] Response to Motions for Expedited Review of Audio Recordings
to Admit into Evidence and for Extension of Time to Complete Rule 26 Initial
Disclosures and Rule 34 Discovery Request[s] and Request for Pre-Mediation
Clarification” (Dkt. 59) (“Plaintiff’s Reply Re: Motions to Admit and Extend”).
On July 7, 2025, Plaintiff filed Plaintiff[’s] Notice of Motion to Compel with
Sanctions (Dkt. 62) (“Motion to Compel”), attaching two volumes of exhibits (Dkts. 62-2
and 62-3). Also on July 7, 2025, Plaintiff filed a Notice of Motion for Leave to Modify
Scheduling Order to Extend Deadlines to Add Defendnats [sic] and to Serve and
Receive Rule 26 and Rule 34 Discovery (Dkt. 63) (“Motion to Modify Scheduling
Order”), attaching exhibits (Dkts. 63-1 through 63-3). On July 8, 2025, Plaintiff filed a
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Notice of Motion for Leave to File Amend[ed] and Supplemment [sic] Complaint to Add
Defendnats [sic] and Cure Procedural Deficiencies (Dkt. 64) (“Supplemental Motion to
Amend”), attaching Plaintiff’s proposed second amended complaint (“Supplemental
Proposed SAC”) (Dkt. 64 at 17-127), and exhibits A through C (Dkt. 64-1). On August
8, 2025, Defendants filed a document titled “Opposition” (Dkt. 67) (“Defendants’ First
Opposition”), by which Defendants oppose Plaintiff’s Motion to Compel, Motion to
Modify Scheduling Order, and Supplemental Motion to Amend. On August 15, 2025,
Plaintiff filed Plaintiff[’s] Reply in Support of Motion to Compel with Sanctions, Motion for
Leave to Modify Scheduling Order and Motion for Leave to File Amended and
Supplemented Complaint to Add Defendnasts [sic] and Cure Procedural Deficiencies
(Dkt. 68) (“Plaintiff’s Reply”).
On August 21, 2025, Plaintiff filed a Motion to Proceed In Forma Pauperis and
Supporting Affirmation (Dkt. 69) (“Motion for IFP Status”), attaching an exhibit. That
same day, Plaintiff also filed a document titled Notice of Motion to Proceed In Forma
Pauperis and Request for Service Accommodation (Dkt. 70), which reads as a
declaration in support of the Motion for IFP Status rather than as a separate motion
(“IFP Supporting Document”), and exhibits (Dkt. 71).
On August 26, 2025, Plaintiff filed a Notice of Motion to Compel Valid Insurance
Disclosure, Document Production, and Sanctions Under Rules 26, 34, and 37 (Dkt. 72)
(“Motion to Compel Initial Disclosures”), and Plaintiff[’s] Notice of Motion to Correct
Caption and Confirm Joinder and Service of Defendant Board of Trustees Pursuant to
Local Rule 7(a), Fed.R.Civ.P. 15(a)(2), and 4(m) (Dkt. 73) (“Motion to Correct the
Caption”), attaching exhibits A through F (Dkts. 73-1 through 73-3). On September 2,
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2025, Plaintiff filed a motion seeking leave to reopen Rule 26(a) initial disclosures and
to serve initial disclosures with a damages computation (Dkt. 75) (“Motion to Reopen
Initial Disclosures”). On September 5, 2025, Defendants filed a document titled
“Opposition” (Dkt. 76) (“Defendants’ Second Opposition”), by which Defendants oppose
Plaintiff’s Motions to Compel Initial Disclosures, to Correct the Caption, and to Reopen
Initial Disclosures.
On September 25, 2025, Plaintiff filed the Emergency Motion for Protective Order
Under Rule 26(c) and Affidavit of Tracey Watson with Certificate of Compliance to
Confer (Dkt. 79) (“Motion for Protective Order”), attaching the Affidavit of Tracey Watson
with Certificate of Compliance to Confer in Support of Emergency Motion for Protective
Order Under Rule 26(c) (“Watson Affidavit”).
By Text Order entered September 29, 2025 (Dkt. 82), the undersigned dismissed
as moot Plaintiff’s Initial Motion to Amend in light of Plaintiff’s Supplemental Motion to
Amend, advising that the arguments set forth in Defendant’s Response opposing
Plaintiff’s Initial Motion to Amend would be considered in connection with Plaintiff’s
Supplemental Motion to Amend.
On October 7, 2025, Defendants filed their Opposition in response to Plaintiff’s
Motion for Protective Order (Dkt. 83) (“Opposition to Protective Order”). On October 14,
2025, Plaintiff filed Plaintiff’s Reply in Support of Emergency Motion for Protective Order
Notice of Status and Judicial Notice with Supplemental Affidavit (Dkt. 84) (“Plaintiff’s
Reply in Support of Protective Order”).
Based on the following, Plaintiff’s Supplemental Motion to Amend is GRANTED
in part and should be DENIED in part; Plaintiff’s Motion for IFP Status is DENIED;
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Plaintiff’s Motion to Extend Deadlines is GRANTED; Plaintiff’s Motion to Admit Evidence
is DISMISSED as moot in part and DENIED in part without prejudice; Plaintiff’s Motion
to Compel is DISMISSED as moot; Plaintif’s Motion to Modify Scheduling Order is
GRANTED in part and DISMISSED as moot in part; Plaintiff’s Motion of Compel Initial
Disclosures is DENIED; Plaintiff’s Motion to Correct the Caption is DISMISSED as
moot; Plaintiffs’ Motion to Reopen Initial Disclosures is DISMISSED as moot; and
Plaintiff’s Motion for a Protective Order is DENIED.
FACTS4
Plaintiff Tracey Watson (“Plaintiff” or “Watson”), is a Black woman with seven
years of experience as a professional librarian. On October 7, 2021, Plaintiff was hired
by Defendants Buffalo and Erie County Public Library (“the Library”), and Board of
Trustees of the Buffalo and Erie County Public Library (“the Board”) (together,
“Defendants”), for a part-time position as a Children’s Services and Outreach Librarian I
in the Children’s Department (“Children’s Department”) at the Library’s central office in
downtown Buffalo, New York (“the Buffalo library”). When Plaintiff commenced her job
on November 6, 2021, she was the only Black librarian assigned to work in the
Children’s Department, and the only other Black librarian who worked at the Buffalo
library was a full-time librarian assigned to the Adult Department (“Adult Department”).
On February 4, 2022, Plaintiff joined the New York State United Teachers Union,
specifically, the Librarians’ Association of the Buffalo and Erie County Public Library
(“the Union”).
4 Taken from the FAC unless referenced otherwise.
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On February 17, 2022, at the request of Kristi Dougherty (“Dougherty”), then
Plaintiff’s direct supervisor and the Manager of Children’s Services and Outreach at the
Buffalo library, as well as the Union’s Recording Secretary, Plaintiff and one Lucylle K.
Castaneda, a Library Assistant who is white, attended a “record of counseling” meeting
(“counseling meeting”). During the counseling meeting, which was held in the Human
Resources Office of the Buffalo library, Dougherty announced that the counseling
meeting was not a disciplinary meeting but, rather, was intended to develop strategies
regarding communication matters between Plaintiff and Castaneda. Dougherty
particularly referred to a matter on February 14, 2022 when, during a 5:00 P.M. “desk
change” at the Buffalo library, i.e., the time when Plaintiff’s work shift ended and
Castaneda’s began, Castaneda did not show up until 5:06 P.M., asserting she had to
use the ladies’ room. Plaintiff responded that she asked Castaneda to be there by 5:00
P.M. when Plaintiff “clocked out.” FAC ¶¶ 21-22. According to Plaintiff, prior to the
counseling meeting, she had only three interactions with Castaneda and Plaintiff denied
having any problem communicating with Castaneda, but it was apparent to Plaintiff that
Dougherty had previously spoken with Castaneda about the situation and had taken
Castaneda’s side.
At the counseling meeting, Dougherty raised another incident on December 11,
2021, in which Castaneda reported she arrived a few minutes early for a desk change
but, rather than informing Plaintiff of her arrival, Castaneda when into the workroom.
Plaintiff then repeatedly knocked on the door to the workroom which Castaneda
perceived as an act of aggression, making Castaneda nervous for the rest of the day.
Plaintiff denied ever knocking aggressively on the workroom’s door but Castaneda, at
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Dougherty’s urging, stated the incident caused her to fear Plaintiff and Castaneda
began to physically shake.
Plaintiff then raised a matter for discussion concerning Castaneda’s interaction
with Plaintiff, at the reference desk in the Children’s Department of the Buffalo library
with three library patrons (“the library patrons”), a white man and his two sons toward
whom, according to Plaintiff, Castaneda was very rude and even used foul language
causing the man to report the incident to the Library. Dougherty interrupted by
reminding Plaintiff, “That issue has already been dealt with.” FAC ¶ 23. Plaintiff alleges
that according to the Library’s work conduct policy, Castaneda’s actions toward the
library patrons should have resulted in the immediate termination of Castaneda’s
employment. Dougherty, however, continued that the issue with Plaintiff was not only
Plaintiff’s verbal remarks, but also her body language, i.e., “how your [sic] looking at
someone.” FAC ¶ 24. According to Plaintiff, during the counseling meeting, Dougherty
repeatedly referred to Plaintiff needing to improve her “tone and body language,” to
which Plaintiff responded by accusing Dougherty of discrimination because of the
perception of Plaintiff as an “angry black woman who needs to be taught how to not be
aggressive, angry, intimidating, hostile, ill tempered, bitter, loud, or too straight forward,”
whereas Castaneda was portrayed as an “easily frightened, delicate, shy person that
needs to be taught how to stand up for herself. . . .” Id. Plaintiff maintains that she was
humiliated and embarrassed in front of her co-workers including Castaneda and
Children’s Librarian I Jennifer Lelinski (“Lelinski”), who was present at the counseling
meeting as the Union representative. Id. Plaintiff questioned why Lelinski, a recent hire
and the Union’s recording secretary, attended the counseling meeting instead of
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Andrew Maines (“Maines”), then the Union’s president, and complained that Lelinski did
not actively participate in the counseling meeting in violation of the Union’s collective
bargaining agreement (“CBA”).
During the counseling meeting, Plaintiff also recounted another incident in which
Castaneda was directed by Dougherty to let Plaintiff know that Castaneda had arrived
for her shift. FAC ¶ 25. Plaintiff was confused by Castaneda’s announcement that she
had arrived for her shift, id., and wondered whether Dougherty had directed Castaneda
and other staff members to say or do things to Plaintiff which Plaintiff maintains would
have been in violation of the Buffalo and Erie County Public Library Employee
Handbook (“Library Handbook”), as well as the Buffalo and Erie County Public Library
Personnel Policies and Procedures Manual (“Library Personnel Policy Manual”). Id. ¶
26.
At the end of the counseling meeting, Dougherty instructed Plaintiff to review
papers listing issues Plaintiff was to address including Plaintiff’s tone of voice, body
language, noise level that was intimidating to staff, utilizing a loud voice during cell
phone conversations during work hours, and disrupting the work area. FAC ¶ 27.
Plaintiff then asked Dougherty the identities of the other staff members who purportedly
made complaints about Plaintiff, but Dougherty advised that because the other staff
members reported they felt intimidated by Plaintiff, the identities of such staff members
would remain unidentified. Id. ¶ 28. Plaintiff maintains Dougherty’s refusal to identify
the other staff members who complained about Plaintiff’s behavior violated the Library
Personnel Policy Manual. Id.
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Plaintiff maintains that prior to the counseling meeting, she was not aware of any
of the incidents discussed at the meeting. Concerned that the counseling meeting could
be used as the basis for future disciplinary action against Plaintiff, Plaintiff submitted a
written complaint to the Library (“the Internal Complaint”),5 complaining about
discrimination and harassment. Afterwards, Plaintiff was hesitant to interact with
Castaneda for fear Castaneda would assert additional false claims against Plaintiff.
Plaintiff asserts the timing of the February 17, 2022 counseling meeting was intended to
sabotage Plaintiff’s presentation on February 19, 2022, of a “Celebrate Black Inventors”
program (“Inventors program”), in violation of the Library Handbook. Plaintiff maintains
she was so emotionally disturbed and ill from the allegations made during the
counseling meeting that she had to leave the Inventors program presentation.
Plaintiff requested a meeting with the Library’s Assistant Deputy Director of
Human Resources (“HR”) Judy Fachko (“Fachko”) to discuss the counseling meeting
and how Plaintiff was being discriminated against and harassed based on Plaintiff’s
race. The meeting between Plaintiff and Fachko was held on Feburary 25, 2022 (“HR
meeting”). During the HR meeting, Fachko confirmed that Dougherty was not permitted
to disclose to Plaintiff the identities of the other staff members who complained about
Plaintiff’s demeanor, and Fachko was unable to provide any particulars regarding the
asserted complaints. Plaintiff informed Fachko that Plaintiff intended to file a grievance
regarding the counseling meeting, but Fachko responded such grievance would be
useless because the counseling meeting was not disciplinary in nature and, thus, was
5 No copy of the Internal Complaint is in the record.
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not part of the required disciplinary steps under the Union contact with the Library, i.e.,
the CBA.
On March 14, 2022, Plaintiff submitted to the Library’s then Interim Director
Jeannine M. Doyle, now known as Deputy Director and Chief Operating Officer
Jeannine M. Purtell (“Purtell”), and Maines, a written grievance complaining of race
discrimination and harassment (“the Grievance”).6 On March 17, 2022, Plaintiff
received an e-mail from Purtell acknowledging receipt of the Grievance, and advising
the Grievance was denied. Several hours later, Plaintiff was instructed to attend a
meeting with Dougherty, during which Plaintiff’s employment with the Library was
terminated (“termination meeting”). Also in attendance at the termination meeting were
Fachko and Maines, the latter who, despite being the Union president, said nothing.
According to Plaintiff, the reasons given for Plaintiff’s termination were newly raised to
Plaintiff and were different than the issues raised at the counseling meeting. Plaintiff
maintains all those present at the termination meeting were aware of the Grievance
Plaintiff filed three days earlier. Plaintiff maintains her termination was based on false
allegations and in violation of the CBA and the Library’s policy and procedures. Plaintiff
alleges that every other person involved in the events giving rise to her termination is
white, and that the Library is “severely lacking in diversity among Professional
Librarians.” FAC ¶ 39.
Later on March 17, 2022, after her employment was terminated, Plaintiff sent an
e-mail to one John Gaff (“Gaff”), then Communications Officers for the Union, asking to
attend via Zoom a Union meeting that was scheduled for the next day, i.e., March 18,
6 No copy of the Grievance is in the record.
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2022 (“the Union meeting”). In an e-mail sent on March 18, 2022, Gaff responded to
Plaintiff’s inquiry about attending the Union meeting stating “[i]n accordance with New
York State law, when hired for a permanent position there is a probationary period.
During the probationary period, an employee can be removed from service without
cause.” EEOC Charge (Dkt. 64-1) at 9.
Plaintiff alleges that throughout her six-month tenure with the Library, she was
subjected to treatment that was different and unequal compared to white employees
including, inter alia, that Plaintiff was denied a “sign-on bonus,” Supplemental Proposed
SAC ¶ 86, not supported in her job responsibilities when she was not added to the
“system” that would allow Plaintiff to check out books for the Inventors program, id. ¶ 87,
denied training on and access to library collection development software, id. ¶ 89,
denied lunch breaks, id. ¶ 92, denied materials and staffing for the Inventors program,
id. ¶¶ 93-95, required to answer the telephone, id. ¶ 96, not permitted to work remotely,
id. ¶ 97, not permitted to attend meetings by Zoom, id. ¶ 98, and denied assignments to
develop a book collection in the Children’s Department. Id. ¶ 101.
On June 24, 2022, Plaintiff filed with the Equal Employment Opportunity
Commission (“EEOC”), located in Buffalo, New York (“Buffalo EEOC office”), a Charge
of Discrimination naming only the Library as the Respondent (“EEOC Charge”). On
August 8, 2022, Plaintiff filed an Amended EEOC Charge. On February 2, 2023,
Plaintiff received from the Buffalo EEOC office a Notice of Transfer of Charge of
Discrimination advising Plaintiff’s Amended EEOC Charge was transferred to the
Tampa, Florida EEOC office (“Tampa EEOC office”) for workload redistribution. On
November 16, 2023, Plaintiff received from the Tampa EEOC office a Notice of Right to
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Sue Letter advising no determination had been made with regard to Plaintiff’s Amended
EEOC Charge and that Plaintiff had 90 days in which to file a lawsuit. This action
followed.
DISCUSSION
1. 	Supplemental Motion to Amend
In the present operative complaint, i.e., the FAC, Plaintiff asserts against both the
Library and the Board (“Library Defendants”), two claims for relief including race
discrimination, harassment, and retaliation in violation of Title VII and § 1981,
Complaint, Count 1 (“First Claim”), and Fourteenth Amendment due process and equal
protection violations under § 1983, Complaint, Count 2 (“Second Claim”). In the Initial
Proposed SAC attached to Plaintiff’s Motion to Amend filed February 27, 2025, Plaintiff
sought to add Fachko and Purtell as Defendants, and to assert the same First and
Second Claims against not only the Library Defendants, but also against Fachko and
Purtell in their individual capacities. Plaintiff’s subsequently filed Supplemental Motion
to Amend also sought to add as Defendants Fachko and Purtell, as well as Dougherty
and Maines (“proposed individual defendants”), and to assert against all four proposed
individual defendants claims in both their personal and official capacities. The
Supplemental Proposed SAC asserts nine claims including race-based discrimination
and retaliation in violation of Title VII against Defendants Library and Board (together,
“Library Defendants”), Supplemental Proposed SAC, Count I (“proposed First Claim”);
retaliation in violation of Title VII against Library Defendants, id., Count II (“proposed
Second Claim”); harassment and hostile work environment in violation of Title VII
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against Library Defendants, id., Count III (“proposed Third Claim”); race-based
discrimination in violation of § 1981 against Library Defendants, as well as proposed
individual defendants, id., Count IV-A (“proposed Fourth Claim”); retaliation in violation
of § 1981 against Library Defendants and proposed individual defendants, id., Count IV-
B (“proposed Fifth Claim”); harassment and hostile work environment in violation of §
1981 against Library Defendants and proposed individual defendants, id., Count IV-C
(“proposed Sixth Claim”); race-based discrimination in violation of the Fourteenth
Amendment’s Equal Protection Clause against Library Defendants and proposed
individual defendants, id., Count V (“proposed Seventh Claim”); retaliation in violation of
the Fourteenth Amendment’s Equal Protection Clause against Library Defendants and
proposed individual defendants, id., Count VI (“proposed Eighth Claim”); and denial of
protected property interests and liberty interest in violation of the Fourteenth
Amendment’s Due Process Clause against Library Defendants and proposed individual
defendants, id., Count VII (“proposed Ninth Claim”). Because of the substantial overlap
between the claims Plaintiff sought to assert in the Initial Proposed SAC and the
Supplemental Proposed SAC, Plaintiff’s Initial Motion to Amend was dismissed as moot
with Defendants’ Response filed in opposition to Plaintiff’s Initial Motion to Amend to be
considered in connection with Plaintiff’s Supplemental Motion to Amend. September
29, 2025 Text Order (Dkt. 82). The court now addresses the Supplemental Motion to
Amend.
“The ability of a plaintiff to amend the complaint is governed by Rules 15 and 16
of the Federal Rules of Civil Procedure which, when read together, set forth three
standards for amending pleadings that depend on when the amendment is sought.”
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Sacerdote v. New York Univ., 9 F.4th 95, 115 (2d Cir. 2021), cert. denied, ––– U.S. –––
–, 142 S. Ct. 1112 (2022). Generally, a motion to amend pleadings is governed by Rule
15 which, as relevant, provides “[t]he court should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a)(2). See Foman v. Davis, 371 U.S. 178, 181 (1962) (leave
to file an amended complaint “shall be freely given when justice so requires.”). “At the
outset of litigation, a plaintiff may freely amend her pleadings pursuant to Rule 15(a)(1)
as of right without court permission.” Sacerdote, 9 F.4 th at 115 (citing Fed.R.Civ.P.
15(a)(1) (providing a party may amend its pleading once, as a matter of course, either
within 21 days after serving the pleading or 21 days after service of a motion to dismiss
pursuant to Fed.R.Civ.P. 12(b), (e), or (f)). “After that period ends - either upon
expiration of a specified period in a scheduling order or upon expiration of the default
period set forth in Rule 15(a)(1)(A) — the plaintiff must move the court for leave to
amend, but the court should grant such leave “freely . . . when justice so requires”
pursuant to Rule 15(a)(2).” Id. “This is a ‘liberal’ and ‘permissive’ standard, and the
only ‘grounds on which denial of leave to amend has long been held proper’ are upon a
showing of ‘undue delay, bad faith, dilatory motive, [or] futility.’” Id. (quoting Loreley Fin.
(Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 190 (2d Cir. 2015)). “The
period of ‘liberal’ amendment ends if the district court issues a scheduling order setting
a date after which no amendment will be permitted. It is still possible for the plaintiff to
amend the complaint after such a deadline, but the plaintiff may do so only up a
showing of the ‘good cause’ that is required to modify a scheduling order under Rule
16(b)(4).” Sacerdote, 9 F.4th at 115 (citing Parker v. Columbia Pictures, 204 F.3d 326,
340 (2d Cir. 2000)).
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Preliminarily, the court addresses the fact that Plaintiff’s Supplemental Motion to
Amend seeks to amend Plaintiff’s Initial Motion to Amend which was filed on February
13, 2025, the deadline established by the January 16, 2025 Scheduling Order (Dkt. 34)
(“Scheduling Order”), for filing motions to join parties and to amend the pleadings.
Because Plaintiff’s Initial Motion to Amend was timely filed per the Scheduling Order,
Plaintiff was not required to show good cause for the motion; rather, such motion would
be granted absent Defendants establishing the requested amendment would cause
undue delay, was made in bad faith, for a dilatory motive, or was futile. Sacerdote, 9
F.4 th at 115. Plaintiff’s Supplemental Motion to Amend, however, filed on July 8, 2025,
was filed five months after the deadline for motions to join parties and amend. Because
the Initial Motion to Amend sought to assert claims against Fachko and Purtell, but not
Dougherty and Maines, the court construes Plaintiff’s styling of the Supplemental Motion
to Amend as a motion to amend the Initial Motion to Amend as an attempt to avoid the
consequences of failing to comply with the Scheduling Order’s deadline with regard to
Dougherty and Maines. Accordingly, Plaintiff’s Supplemental Motion to Amend is
subject to Rule 16(b)(4)’s requirement that Plaintiff show good cause for failing to seek
the relief against Dougherty and Maines in the earlier and timely filed Initial Motion to
Amend. Plaintiff, however, fails to provide in the Supplemental Motion to Amend any
explanation for the belated request and, thus, has also failed to establish the requisite
good cause for belatedly seeking to add Dougherty and Maines as Defendants.
Accordingly, Plaintiff’s Supplemental Motion to Amend should be DENIED insofar as
Plaintiff seeks to add Dougherty and Purtell as Defendants, and the motion is not further
addressed as to those individuals. Nevertheless, given that Plaintiff is proceeding pro
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se, and Plaintiff’s Initial Motion to Amend Complaint sought to add Fachko and Purtell
as defendants, albeit in only their personal as opposed to official capacities, Plaintiff’s
Supplemental Motion to Amend will be addressed with regard to Fachko and Purtell
(“Proposed Defendants”).
As a further preliminary matter, Defendants argue that Plaintiff’s Supplemental
Proposed SAC contains “numerous words, lines, and entire paragraphs shown crossed
out in red-colored font” such that “[i]t is unclear whether Plaintiff is intending to include
or exclude that crossed-out language.” Defendant’s First Opposition at 7. Plaintiff
attributes the unusual presentation of the Supplemental Proposed SAC to confusion
about redline formatting for proposed amended pleadings and clarifies that the redlined
text shows only newly added material rather than any deletions. Plaintiff’s Reply at 13.
Plaintiff further asserts she will file a “clean version” of the Supplemental Proposed SAC
upon being granted leave to do so. Id. at 13-14. The portions of the Supplemental
Proposed SAC appearing in stricken-through red font are somewhat difficult – but not
impossible – to read. In light of Plaintiff’s pro se status, the court will excuse the
mistaken attempt to comply with Local Rule 15(b)’s requirement, inapplicable to pro se
plaintiffs, that amendments or supplements to the operative pleading “shall be identified
in the proposed pleading through the use of a word processing ‘redline’ function or other
similar markings . . . .”
Defendants argue Plaintiff should not be permitted to file a further amended
complaint because Plaintiff has had ample time to seek further amendment,
Defendants’ First Opposition at 4-6, and the new claims contained in the Initial
Proposed SAC and the Supplemental Proposed SAC are futile because they cannot
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withstand a Rule 12(b)(6) motion to dismiss. Defendant’s Response to Initial Motion to
Amend at 4-5; Defendant’s First Opposition at 6-8. Plaintiff provides no argument in
opposition.
Inasmuch as Defendants’ oppose Plaintiff’s Supplemental Motion to Amend as
untimely, as discussed above, Discussion, supra, at 17-18, the court is recommending
Plaintiff’s request to add Dougherty and Maines be denied because Plaintiff provides
absolutely no basis for extending the time to add such parties. Further, as discussed
below, the portions of Plaintiff’s Supplemental Motion to Amend does not add any new
claims that were not already contained in the Initial Proposed SAC, but only clarifies the
claims and the supporting allegations. The court thus needs only to address whether
the proposed amendments contained in the Supplemental Proposed SAC are futile.
Amendment to a pleading is futile if the “‘proposed claim could not withstand a
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).’” Singh v. Deloitte LLP, 123 F.4 th
88, 93 (2d Cir. 2024) (quoting Lucente v. International Business Machines Corp., 310
F.3d 243, 258 (2d Cir. 2002)). As such, the court addresses the Supplemental
Proposed SAC to determine whether the newly proposed allegations contained therein
could withstand a motion to dismiss pursuant to Rule 12(b)(6).
On a motion to dismiss under Rule 12(b)(6), the court looks to the four corners of
the complaint and is required to accept the plaintiff's nonconclusory allegations as true
and to construe those allegations in the light most favorable to the plaintiff. Goldstein v.
Pataki, 516 F.3d 50, 56 (2d Cir. 2008) (court is required to liberally construe the
complaint, accept as true all factual allegations in the complaint, and draw all
reasonable inferences in the plaintiff's favor). A complaint must be dismissed pursuant
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to Rule 12(b)(6) for failure to state a claim upon which relief can be granted if it does not
plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007) (rejecting longstanding precedent of
Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). As such, the Supreme Court requires
application of “a ‘plausibility standard . . . .’” Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir.
2009) (citing Twombly, 550 U.S. at 570, and quoting Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)).
A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully. Id. “Where a complaint pleads
facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line
between possibility and plausibility of ‘entitlement to relief.”’ Id. (quoting Twombly, 550
U.S. at 557)
“[A] Rule 12(b)(6) motion is addressed to the face of the pleading.” Goldman v.
Belden, 754 F.2d 1059, 1065 (2d Cir. 1985). “In considering a motion to dismiss for
failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts
alleged in the [pleading], documents attached to the [pleading] as exhibits, and
documents incorporated by reference in the [pleading].” DiFolco v. MSNBC Cable
L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court should consider the motion by
“accepting all factual allegations as true and drawing all reasonable inferences in favor
of the [claimant].” Trustees of Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt.,
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843 F.3d 561, 566 (2d Cir. 2016). “While a [pleading] attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, a [claimant]’s obligation to
provide the grounds of his entitle[ment] to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555 (internal quotations and citations omitted). Applying the
standard for a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) “is ‘a context-specific
task that requires the reviewing court to draw on its judicial experience and common
sense.’” In re Amaranth Natural Gas Commodities Litigation, 730 F.3d 170, 80 (2d Cir.
2013) (quoting Iqbal, 556 U.S. at 679). Further, in light of distinct disadvantages faced
by pro se litigants when compared to counseled litigants, submissions by pro se litigants
are liberally construed to raise the strongest argument they suggest. See Tracy v.
Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010) (discussing “special solicitude”
generally afforded to pro se litigants which is not limited to procedures but also includes
pleadings (citing cases)). The Second Circuit instructs that district courts “should be
particularly solicitous of pro se litigants who assert civil rights claims. . . .” Id. at 102
(citing Davis v. Goord, 320 F.3d 346, 350 (2d Cir. 2003)).
“Under Iqbal and Twombly, then, in an employment discrimination case, a
plaintiff must plausibly allege that (1) the employer took adverse action against him and
(2) his race, color, religion, sex, or national origin was a motivating factor in the
employment decision.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d
Cir. 2015). In the context of employment discrimination claims, the meaning of
‘plausibility’ is guided by several considerations. Id.
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First, “a plaintiff must plead ‘factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.’” Vega,
801 F.3d at 86 (quoting Iqbal, 556 U.S. at 678). Nevertheless, the complaint’s factual
allegations are assumed to be true “even if [they are] doubtful in fact,” id., and a
complaint must not be dismissed “based on a judge's disbelief of a complaint's factual
allegations.” Neitzke v. Williams, 490 U.S. 319, 327 (1989) (quoting Iqbal, 556 U.S. at
679 (“When there are well-pleaded factual allegations, a court should assume their
veracity....”)). “Because discrimination claims implicate an employer's usually unstated
intent and state of mind,” id. (citing Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985)),
“rarely is there ‘direct, smoking gun, evidence of discrimination.” Id. (citing Richards v.
N.Y.C. Bd. of Educ., 668 F.Supp. 259, 265 (S.D.N.Y.1987), aff'd, 842 F.2d 1288 (2d
Cir.1988)). Plaintiffs instead “usually must rely on ‘bits and pieces’ of information to
support an inference of discrimination, i.e., a ‘mosaic’ of intentional discrimination.” Id.
(quoting Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir.1998), abrogated in part on
other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)). Again, “at the
initial stage of a litigation, the plaintiff's burden is ‘minimal’—he need only plausibly
allege facts that provide ‘at least minimal support for the proposition that the employer
was motivated by discriminatory intent.’” Id. at 86-87 (quoting Littlejohn v. City of New
York, 795 F.3d 297, 311 (2d Cir. 2015)). Further, as the Supreme Court directs, “[t]he
plausibility standard is not akin to a ‘probability requirement.’” Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. at 556) (“Asking for plausible grounds to infer an agreement
does not impose a probability requirement at the pleading stage....”); Littlejohn, 795
F.3d at 310. “On a motion to dismiss, the question is not whether a plaintiff is likely to
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prevail, but whether the well-pleaded factual allegations plausibly give rise to an
inference of unlawful discrimination, i.e., whether plaintiffs allege enough to ‘nudge[ ]
their claims across the line from conceivable to plausible.’” Vega, 801 F.3d at 87
(quoting Twombly, 550 U.S. at 570, and citing Iqbal, 556 U.S. at 678–80) (italics in
original). “[W]hile a discrimination complaint need not allege facts establishing each
element of a prima facie case of discrimination to survive a motion to dismiss,” Vega,
801 F.3d at 84 (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002)
(observing the prima facie case requirement is an evidentiary standard), “it must at a
minimum assert nonconclusory factual matter sufficient to “‘‘nudge [ ] [its] claims' . . .
‘across the line from conceivable to plausible’” to proceed.” Id. (quoting Iqbal, 556 U.S.
at 680 (quoting Twombly, 550 U.S. at 570)).
The filing of an amended complaint supersedes the original complaint and
renders the original pleading “of no legal effect.” Shields v. Citytrust Bancorp, Inc., 25
F.3d 1124, 1128 (2d Cir.1994). Although the Initial Proposed SAC contains only two
separately asserted claims for relief, whereas the Supplemental Proposed SAC includes
nine separate claims, a comparison of the Initial and Supplemental Proposed SACs
demonstrates the same nine claims asserted in the Supplemental Proposed SAC are
combined to form the two claims asserted in the Initial Proposed SAC, with the
exception that the Supplemental Proposed SAC also seeks to assert claims against
Dougherty and Maines which the undersigned recommends be denied, in addition to
Fachko and Purtell, in both their individual and official capacities. Because Plaintiff’s
Supplemental Proposed SAC significantly expands the allegations and provides much
more detail regarding the various claims, the court considers whether any such claims
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would survive a motion to dismiss pursuant to Rule 12(b)(6), including whether the
proposed claims may be maintained against each of the asserted defendants as well as
whether the allegations are plausible.
A. Title VII
With respect to Title VII employment discrimination, Defendants oppose
amending the complaint to permit Plaintiff to assert her Title VII claims against
Proposed Defendants Fachko and Purtell because only the Library was named as a
Respondent to the EEOC Charge.7 Defendant’s Response to Initial Motion to Amend at
3-4. The Supplemental Proposed SAC, however, does not likewise seek to assert the
Title VII claims against Fachko and Putrell. Although Plaintiff does not respond in
opposition to this argument, the court briefly addresses it in the interest of
completeness.
In general, Title VII claims may be brought in federal court only after the plaintiff
files a timely charge with the EEOC and receives an EEOC right-to-sue letter. 42
U.S.C. § 2000e-5(e), (f); see also Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274
F.3d 683, 686 (2d Cir. 2001) (the timely filing of an administrative charge and obtaining
a right-to-sue letter is “an essential element” of Title VII’s statutory scheme and thus a
precondition to bringing such claims in federal court). The purpose of this so-called
“administrative exhaustion” is to avoid unnecessary judicial action by the federal courts
by “[giving] the administrative agency the opportunity to investigate, mediate, and take
remedial action.” Stewart v. United States Immigr. & Naturalization Serv., 762 F.2d 193,
198 (2d Cir. 1985). Nevertheless, because the district court's subject matter jurisdiction
7 The Library is also the only respondent named in the Amended EEOC Charge (Dkt. 64-1).
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does not depend on the exhaustion of administrative remedies, the requirement is
“subject to waiver, estoppel, and equitable tolling.” Francis v. City of New York, 235
F.3d 763, 767 (2d Cir. 2000). Plaintiff does not argue that any of these exceptions
apply here. Nor does Plaintiff rely on the so-called “identity of interest” exception as
excusing her failure to name Proposed Defendants in the EEOC Charge. The identity
of interest exception “permits a Title VII action to proceed against an unnamed party
where there is a clear identity of interest between the unnamed defendant and the party
named in the administrative charge.” Johnson v. Palma, 931 F.2d 203, 209 (2d Cir.
1991). Whether such identity exists depends on “whether the plaintiff could have
learned the identity of the unnamed party before filing with the EEOC, whether the
named and unnamed parties actually had similar interests, whether the unnamed party
was prejudiced by the failure to include it in EEOC proceedings, and whether the
unnamed party has represented to the plaintiff that it would relate to her through the
named party.” Carcasole-Lacal v. Am. Airlines, Inc., 2005 WL 1587303, at *1 (2d Cir.
July 7, 2005) (citing Johnson, 931 F.2d at 209-10). Here, however, the identity of
interest exception cannot apply in this case with regard to Proposed Defendants Fachko
and Purtell because only employers can be held liable for Title VII violations. See
Malcom v. Rochester City School District, 828 Fed.Appx. 810, 812 n. 2 (2d Cir. 2020)
(affirming district court’s dismissal of plaintiff’s compliant without leave to replead to add
claims against individual employees because “only employers are liable” under Title
VII). This is consistent with the fact that the form on which Plaintiff’s Amended EEOC
Charge was filed does not ask for the names of the defendants, but only the name of
the employer who is thereafter referred to as the Respondent. See EEOC Charge (Dkt.
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64-1). Significantly, Plaintiff does not argue that either Fachko or Purtell was Plaintiff’s
employer. Accordingly, there is no merit to the argument that Plaintiff did not exhaust
administrative remedies with regard to Fachko and Purtell by failing to name them as
Respondents in the EEOC Charge.
Insofar as Plaintiff seeks to add Fachko and Purtell as Defendants to the Title VII
claims, Plaintiff’s Supplemental Motion to Amend is futile because individuals, including
those with supervisory control over a plaintiff, are not subject to personal liability under
Title VII. See Patterson v. County of Oneida, NY, 375 F.3d 206, 221 (2d Cir. 2004)
(dismissing Title VII claims asserted against individual defendants in both their personal
and official capacities, quoting Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000)
(“individuals are not subject to liability under Title VII”), and quoting Tomka v. Seiler
Corp., 66 F.3d 1295, 1313 (2d Cir. 1995) (“individual defendants with supervisory
control over a plaintiff may not be held personally liable under Title VII” (abrogated on
other grounds by Burlington Industries, Inc., 524 U.S. 742)).8 Plaintiff’s Supplemental
Motion to Amend thus should be DENIED insofar as Plaintiff seeks to assert the Title VII
claims, including the proposed First, Second, and Third Claims against Proposed
Defendants Fachko and Purtell.
Although not discussed by Defendants, because the filing of an amended
pleading supersedes the previous operative pleading, the court considers whether the
proposed Title VII claims are plausibly alleged against Library Defendants. A plain
8 Defendants do not challenge whether the Board, which also was not named as a Respondent to the
EEOC Charge, can be held liable under Title VII. See Kohlhausen v. SUNY Rockland Community
College, 2011 WL 1404934, at * 4 (S.D.N.Y. Feb. 9, 2011) (dismissing Title VII claims against, inter alia,
the individual members of the board of trustees for community college because such individuals did not
meet the definition of an “employer”).
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reading of the Supplemental Proposed SAC establishes Plaintiff states claims against
the Library Defendants under Title VII for disparate treatment (proposed First Claim),
and retaliation (proposed Third Claim), but not for hostile work environment (proposed
Second Claim). Initially, the court observes that although the Board was not named as
a Respondent in the EEOC Charge, Defendants do not object to the Supplemental
Proposed SAC on that basis and the issue is thus waived. See Francis v City of New
York, 235 F.3d 763, 768 (2d Cir. 2000) (proper administrative exhaustion under Title VII
is a waivable condition precedent to bringing suit rather than a jurisdictional
requirement).
Insofar as the Board is alleged to have authority over employment decisions for
the Library, the Board may be sued as an employer for purposes of Title VII. See
Kohlhausen v. SUNY Rockland Community College, 2011 WL 1404934, at * 4 (S.D.N.Y.
Feb. 9, 2011) (recognizing that although individuals, including board members, may not
be liable under Title VII, the actions of such individuals may be imputed to the employer
and the employer’s board of trustees that was charged with making employment
decisions). Further, Plaintiff’s status as a probationary employee at the time of the
conduct of which she complains does not bar her Title VII claims. See Pietras v. Board
of Fire Commissioners of the Farmingville Fire District, 180 F.3d 468, (2d Cir. 1999)
(affirming district court’s determination that the plaintiff, although a probationary
employee, could nevertheless be an employee for purposes of Title VII if the plaintiff
could show she had received numerous job-related benefits which was consistent with
defining under Title VII an employee as one who “has received direct or indirect
remuneration’ from the alleged employer.” (quoting O’Connor v. Davis, 126 F.3d 112,
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116 (2d Cir. 197), cert. denied, 522 U.S. 1114 (1998)). Here, Defendants do not argue
that Plaintiff did not receive at least one job-related benefit, such as a paycheck, so as
to bar any employment discrimination claim.
A plaintiff may base a Title VII claim on several theories of liability including
disparate treatment, hostile work environment, and retaliation. See Ezeh v. VA Medical
Center, Canandaigua, NY, 2014 WL 4897905, at * 16 (W.D.N.Y. Sept. 29, 2014)
(acknowledging the plaintiff stated claims under Title VII for disparate treatment, hostile
work environment, and retaliation).
With regard to Plaintiff’s proposed First Claim, to state a plausible claim for
disparate treatment under Title VII, “a plaintiff must plausibly allege that (1) the
employer took adverse action against her, and (2) her race, color, religion, sex, or
national origin was a motivating factor in the employment decision.” Vega, 801 F.3d at
87). “[T]he “‘ultimate issue’ in an employment discrimination case is whether the plaintiff
has met her burden of proving that the adverse employment decision was motivated at
least in part by an ‘impermissible reason,’ i.e., a discriminatory reason.” Id. (quoting
Stratton v. Dep't for the Aging for City of N.Y., 132 F.3d 869, 878 (2d Cir.1997) (quoting
Fields v. N.Y. State Office of Mental Retardation & Developmental Disabilities, 115 F.3d
116, 119 (2d Cir.1997))). Here, Plaintiff alleges, inter alia, that she was subjected to
disparate treatment in the terms and conditions of employment based on her race when,
in contrast to her white co-workers, Plaintiff was denied programming support, staffing
and professional development opportunities, denied access to tools and systems
essential to the job, denied remote work privileges, excluded from communications, and
terminated without progressive disciplinary notice. Supplemental Proposed SAC ¶ 123.
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These alleged facts provide “‘at least minimal support for the proposition that the
employer was motivated by discriminatory intent.’” Vega, 801 F.3d at 87 (quoting
Littlejohn, 795 F.3d at 311). The proposed First Claim thus plausibly alleges a race-
based Title VII disparate treatment claim against Library Defendants.
As for Plaintiff’s proposed Title VII retaliation claim, Plaintiff’s proposed Third
Claim, Plaintiff “must plausibly allege that (1) the employer took adverse action against
[her], and (2) [her] race, color, religion, sex, or national origin was a motivating factor in
the employment decision.” Vega, 801 F.3d at 87. “At the pleadings stage, then, a
plaintiff must allege that the employer took adverse action against her at least in part for
a discriminatory reason, and she may do so by alleging facts that directly show
discrimination or facts that indirectly show discrimination by giving rise to a plausible
inference of discrimination.” Id. (citing Littlejohn, 795 F.3d at 310 (requiring facts
“suggesting an inference of discriminatory motivation”). In the instant case, Plaintiff
alleges she engaged in activity protected under Title VII when she verbally complained
to Dogherty and Lesinski on February 14, 2022 that she was being subjected to race-
based discrimination in the workplace, Supplemental Proposed SAC ¶ 134.1, verbally
reported race-based discrimination to Fachko on February 25, 2022, id. ¶ 134.2, and
submitted her Grievance on March 14, 2022. Id. ¶ 134.3. On March 17, 2022,
Plaintiff’s Grievance was denied by Purtell, and a few hours later, Plaintiff’s employment
was terminated. Id. ¶¶ 135-36. The temporal proximity between Plaintiff’s participation
in protected activity and the termination of her employment is circumstantial evidence
sufficient to plausibly allege a Title VII retaliation claim. See Moll v. Telesector Res.
Grp., Inc., 94 F.4th 218, 239 (2d Cir. 2024) (circumstantial evidence of a causal
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relationship between the protected activity and the adverse employment action “may
include ‘[c]lose temporal proximity’ between the plaintiff's protected activity and the
adverse action taken against her.” (quoting Kaytor v. Electric Boat Corp., 609 F.3d 537,
552 (2d Cir. 2010) (brackets in Moll)). Plaintiff’s proposed Second Claim is thus
plausible alleged and Plaintiff’s Supplemental Motion to Amend therefore is GRANTED
with regard to the proposed Second Claim for retaliation against Library Defendants.
For a plausible claim for hostile work environment under Title VII, “a plaintiff must
show that ‘the 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.’” Littlejohn, 795 F.3d at 320–
21 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations and internal
quotation marks omitted). “[A] plaintiff must plead facts that would tend to show that the
complained of conduct: (1) ‘is objectively severe or pervasive – that is, ... creates an
environment that a reasonable person would find hostile or abusive’; (2) creates an
environment ‘that the plaintiff subjectively perceives as hostile or abusive’; and (3)
‘creates such an environment because of the plaintiff's [protected class].’” Patane v.
Clark, 508 F.3d 106, 113 (2d Cir. 2007) (quoting Gregory v. Daly, 243 F.3d 687, 691-92
(2d Cir. 2001) (bracketed material in Patane). “Ultimately, to avoid dismissal under
FRCP 12(b)(6), a plaintiff need only plead facts sufficient to support the conclusion that
she was faced with ‘harassment ... of such quality or quantity that a reasonable
employee would find the conditions of her employment altered for the worse,’ and ‘we
have repeatedly cautioned against setting the bar too high’ in this context.” Id. (quoting
Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir.2003) (emphasis omitted in Patane).
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Moreover, the hostile environment must be based on the Plaintiff’s protected class. See
McSweeney v. Cohen, 776 F.Supp.3d 200, 262 (S.D.N.Y. 2025) (“A hostile work
environment is not one that is bad for all living things in a manner that happens to
involve [characteristics of the protected class]; rather it is one that is discriminatorily
hostile to an employee based on his or her [membership in the protected class].”
(quoting Bernstein v. N.Y.C. Dep't of Educ., 2020 WL 6564809, at *7 (S.D.N.Y. Nov. 9,
2020) (further quotation omitted; bracketed material and italics in McSweeney))).
Further, “[t]he incidents complained of must be more than episodic; they must be
sufficiently continuous and concerted in order to be deemed pervasive.” Littlejohn, 795
F.3d at 321 (internal quotations omitted). “In determining whether a plaintiff suffered a
hostile work environment, we must consider the totality of the circumstances, including
‘the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee's work performance.’” Id. (quoting Harris, 510 U.S. at 23).
Here, in support of her Title VII hostile work environment claim, Plaintiff alleges
that throughout her employment at the Library, she was subjected to a continuous
pattern of race-based hostility that included “Denial of program support, staffing, and
professional collaboration; targeted and unwarranted racial and discriminatory criticism
of her demeanor, tone and communication style; Issuance of a pretextual Record of
Counseling based on vague and racially motivated allegations; Social isolation and
exclusion from meetings, communications, and collaborative initiatives; Surveillance
and micromanagement not imposed on similarly situated white colleagues; directing
other employees to harass the plaintiff, and delegation of harassing behavior by
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supervisors.” Supplemental Proposed SAC ¶ 156. These allegations, however, are
devoid of any racially-based discriminatory intimidation or ridicule or other hostility
related to Plaintiff’s race as required to state a plausible Title VII hostile work
environment claim. Littlejohn, 795 F.3d at 320–21. Accordingly, Plaintiff’s
Supplemental Motion to Amend should be DENIED as to the proposed Third Claim
seeking to assert a Title VII hostile work environment claim against Library Defendants.
Therefore, Plaintiff’s Supplemental Motion to Amend is GRANTED as to the
proposed First Claim (Title VII disparate treatment), and the proposed Second Claim
(Title VII retaliation) against Library Defendants, but should be DENIED as to the
proposed Third Claim (Title VII hostile work environment) against Library Defendants,
and should be DENIED as to all Title VII claims against Proposed Defendants.
B. § 1983
The remaining claims Plaintiff seeks to assert, including violations of 42 U.S.C. §
1981 (“§ 1981”), the First Amendment, and the Fourteenth Amendment, are proposed
as claims pursuant to § 1983. Plaintiff seeks to assert these claims against the Library,
the Board, and the individual Proposed Defendants. Although Defendants oppose
adding claims against Proposed Defendants in their individual capacities with regard to
Plaintiff’s Title VII and § 1981 claims, Defendants’ Response to Initial Motion to Amend
at 1, 4-5, Defendants do not provide any argument with regard to Plaintiff’s attempt to
assert § 1983 claims against Proposed Defendants other than asserting such claims are
time-barred by the applicable three-year statute of limitations for § 1983 claims.
Defendants’ First Opposition at 8.
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“To state a claim under § 1983, a plaintiff must allege two elements: (1) ‘the
violation of a right secured by the Constitution and laws of the United States,’ and (2)
‘the alleged deprivation was committed by a person acting under color of state law.’”
Vega, 801 F.3d at 87-88 (quoting Feingold, 366 F.3d at 159 (quoting West v. Atkins,
487 U.S. 42, 48 (1988)) (further internal quotation omitted in Vega). Pursuant to §
1983, a plaintiff can sue a municipal entity as well as municipal employees in their
personal capacities for deprivations of constitutional rights. Quinones v. City of
Binghamton, 997 F.3d 461, 466 (2d Cir. 2021). “Through § 1983, Congress sought ‘to
give a remedy to parties deprived of constitutional rights, privileges and immunities by
an official's abuse of his position.” Hafer v. Melo, 502 U.S. 21, 27 (1991) (citing Monroe
v. Pape, 365 U.S. 167, 172 (1961)). By enacting § 1983, Congress “authorized suits to
redress deprivations of civil rights by persons acting ‘under color of any [state] statute,
ordinance, regulation, custom, or usage.’” Hafer, 502 U.S. at 27 (quoting 42 U.S.C. §
1983) (italics added). In order to maintain a § 1983 action, a plaintiff must allege that
both the conduct complained of was “committed by a person acting under color of state
law” and that the conduct “deprived [plaintiff] of rights, privileges or immunities secured
by the Constitution or laws of the United States.” Pitchell v. Callan, 13 F.3d 545, 547 (2d
Cir. 1994).
“‘To state a claim under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and must show that the
alleged deprivation was committed by a person acting under color of state law.’”
Feingold v. New York, 366 F.3d 138, 159 (2d Cir. 2004) (quoting West v. Atkins, 487
U.S. 42, 48 (1988)). 	As discussed below, whether Plaintiff’s proposed claims are
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sufficiently alleged under § 1983 requires the court to consider whether the
Supplemental Proposed SAC asserts a claim for § 1983 liability against Library
Defendants as municipal defendants, as well as against Proposed Defendants in their
official or personal capacities.
In Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978)
(“Monell”), the Supreme Court decided that a municipality or municipal agency may be
liable under § 1983 when its policy or custom causes a constitutional violation. Monell,
436 U.S. at 694. “The elements of a Monell claim are (1) a municipal policy or custom
that (2) causes the plaintiff to be subjected to (3) the deprivation of a constitutional
right.” Agosto v. N.Y.C. Dep't of Educ., 982 F.3d 86, 97 (2d Cir. 2020). A municipality
“cannot be held liable on the theory of respondeat superior; the plaintiff must establish
that the municipality's policy or custom itself was a ‘moving force of the constitutional
violation.’” Chislett v. New York City Dep’t of Education, __ F.4th __, 2025 WL 2725669,
at * 6 (2d Cir. Sept. 25, 2025) (quoting Monell, 436 U.S. at 691, 694). “A natural person
may be liable under § 1983 only if the official was ‘personally involved in the alleged
deprivation.’” 	Id. (quoting Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d
107, 127 (2d Cir. 2004)). Further, the issue of causation is for the jury. See Jeffes v.
Barnes, 208 F.3d 49, 61 (2d Cir. 2000) (“[W]hether the relevant conduct of the pertinent
policymaking official caused the injury of which the plaintiff complains is a question of
fact for the jury.”).
“‘To show a policy, custom, or practice [justifying municipal liability], the plaintiff
need not identify an express rule or regulation.’” Chislett, 2025 WL 2725669, at *6
(quoting Patterson, 375 F.3d at 226 (bracketed material in Chislett)). “It suffices to
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establish that discriminatory practices were ‘persistent and widespread’ so as ‘to
constitute a custom or usage with the force of law’ and that a discriminatory practice of
subordinates was ‘so manifest as to imply the constructive acquiescence of senior
policymaking officials.’” Id. (quoting Sorlucco v. N.Y.C. Police Dep't, 971 F.2d 864,
870–71 (2d Cir. 1992) (further internal quotation omitted in Chislett), and citing Bd. of
Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1997) (“[A]n act performed
pursuant to a ‘custom’ that has not been formally approved by an appropriate
decisionmaker may fairly subject a municipality to liability on the theory that the relevant
practice is so widespread as to have the force of law.”)). “A municipal policy can even
consist of ‘inaction.’” Id. at *6 (citing Cash v. Cnty. of Erie, 654 F.3d 324, 334 (2d Cir.
2011), and Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007) (“Specifically,
Monell’s policy or custom requirement is satisfied where a local government is faced
with a pattern of misconduct and does nothing, compelling the conclusion that the local
government has acquiesced in or tacitly authorized its subordinates’ unlawful actions.”)).
The degree of factual specificity required by Iqbal, to allege personal involvement in a §
1983 claim includes a description as to the nature of the asserted unconstitutional
policies, customs and practices that Proposed Defendants either adopted or allowed to
continue. See Houghton v. Cardone, 295 F.Supp.2d 268, 276 (W.D.N.Y. 2003)
(requiring “factual basis” as opposed to a generalized allegation to support allegations
that § 1983 defendant was personally involved in alleged “deprivations”) (citing
caselaw)).
Relevant to the instant case, the Library is a public corporation, Buffalo & Erie
County Public Library v. County of Erie, 577 N.Y.S.2d 993, 995 (4 th Dept. 1991), and as
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a public corporation, is subject to Monell liability. See Sanders v. Coughlin, 2017 WL
1196409, at * 5 (W.D.N.Y. March 31, 2017) (quoting Eslin v. Hous. Auth. of Mansfield,
2012 WL 113666, at *3 (D.Conn. Jan. 13, 2012) (“The Second Circuit and district courts
within it have repeatedly held that Monell’s ‘policy or custom’ standard applies to
independent public corporations created under state law . . . .”).9 The Board is also
subject to § 1983 liability under Monell because as an arm of the Library, a municipal
defendant, the Board was the entity that actually removed Plaintiff from her employment
with the Library. See Langton v. Town of Chester, 168 F.Supp.3d 587, 603 (S.D.N.Y.
2016) (denying defendant library board’s motion to dismiss on the basis that the library
board was not subject to liability under § 1983).
Nevertheless, the Supplemental Proposed SAC does not allege that the Library
Defendants created, maintained, or upheld any policy, custom, or practice so as to state
a § 1983 claim against such municipal defendants for liability under Monell. See
Chislett, 2025 WL 2725669, at * 6 (“the plaintiff must establish that the municipality's
9 That Defendant Library is a state actor is undisputed. See Defendant’s Response to Initial Motion to
Amend at 5 (“The Library was established by the County of Erie and Chartered by the State University
Board of Regents in 1953 pursuant to 1953 N.Y. Laws ch. 768, N.Y. Unconsol. Laws §§ 6211-6227.”
(citing Buffalo & Erie County Public Library, 577 N.Y.S.2d at 994 (determining, inter alia, that “the Library
is not a County department, but is a distinct and separate corporation chartered by the State University
Board of Regents; that the Library, not the County, has the power and duty to determine and carry out all
policies and principles pertaining to operations of the Library; that Library trustees have the exclusive
power and duty to use Library property and to appoint, manage and control Library personnel, including
the power to fix the salaries of such personnel within the available appropriation; that the County may not
interfere with the proper exercise of the Trustees' power to appoint personnel; that upon adoption of the
County budget, the County share of the Library appropriation constitutes a fund for Library purposes, and
the use and expenditure of the available appropriation is within the exclusive management and control of
the Library Trustees, subject to the audit powers of the County Comptroller and subject to those fiscal
laws applicable to the expenditure of public funds generally; that New York State library aid to the Library
pursuant to sections 272 and 273 of the Education Law, local revenues generated by activities of the
Library, and the County share of the final appropriation is the property of the Library and must be kept
and maintained in a separate fund subject to the exclusive use of the Library Trustees upon the
submission of appropriate vouchers, or, upon written demand of the Trustees, to be paid over to the
Library treasurer . . . .”).
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policy or custom itself was a ‘moving force of the constitutional violation.’” (quoting
Monell, 436 U.S. at 691, 694). Accordingly, Plaintiff’s Supplemental Motion to Amend
should be DENIED insofar as Plaintiff seeks to assert any § 1983 claims against the
Library Defendants including based on actions by the Board members as well as by
Fachko and Purtell.10
Plaintiff also seeks to assert her § 1983 claims against the individual Proposed
Defendants in “in their Official and Individual Capacities.” Supplemental Proposed SAC
at ¶ 83 (Fourth Claim), ¶ 89 (Fifth Claim), ¶ 95 (Sixth Claim), ¶ 101 (Seventh Claim), ¶
106 (Eighth Claim), and ¶ 111 (Ninth Claim). Plaintiff does not indicate whether the
term “individual” is intended to refer to asserting claims against Proposed Defendants in
their individual, yet official capacities, or in their personal capacities; the distinction is
significant.
“[T]he distinction between official-capacity suits and personal-capacity suits is
more than ‘a mere pleading device. . . .’” Hafer, 502 U.S. at 27 (quoting Will, 491 U.S.
at 71). The Supreme Court instructs that “official-capacity suits ‘‘generally represent
only another way of pleading an action against an entity of which an officer is an
agent.’’” Hafer, 502 U.S. at 25 (quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985)
(quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, n. 55
(1978))). “Indeed, when officials sued in this capacity in federal court die or leave office,
their successors automatically assume their roles in the litigation.” Hafer, 502 U.S. at
25 (citing, inter alia, Fed.Rule Civ.Proc. 25(d)(1), and Fed.Rule App.Proc. 43(c)(1)).
10 Because Plaintiff has failed to plead the requisite policy or custom to sustain a § 1983 claim against
Library Defendants as required by Monell, the court does not further address the § 1983 claims against
Library Defendants with regard to the proposed claims pursuant to § 1981, the First Amendment, and the
Fourteenth Amendment.
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Because “an official-capacity suit against a state officer ‘is not a suit against the official
but rather is a suit against the official’s office, . . . it is no different from a suit against the
state,” for which monetary relief may not be recovered from the state officials. Hafer,
502 U.S. at 26 (citing Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989)).
“State officers sued for damages in their official capacity are not ‘persons’ for purposes
of the suit because they assume the identity of the government that employs them.”
Hafer, 502 U.S. at 27, and such “[s]uits against state officials in their official capacity
therefore should be treated as suits against the State.” Id. (citing Graham, 473 U.S. at
166). 	Also, “[b]ecause the real party in interest in an official-capacity suit is the
governmental entity and not the named official, ‘the entity's ‘policy or custom’ must have
played a part in the violation of federal law.’” Id. (quoting Graham, 473 U.S. at 166
(quoting Monell, 436 U.S. at 694).
As stated, a § 1983 “official capacity suit against a municipal official ‘is, in all
respects other than name, to be treated as a suit against the [governmental] entity.’”
Quinones, 997 F.3d at 466 n. 2 (quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985)
(bracketed material in Quinones)). See also Hafer v. Melo, 502 U.S. 21, 25 (1991) (“[§
1983] claim against a municipal employee in her official capacity is deemed brought
against the municipality itself”). Because § 1983 claims against municipal officials in
their official capacity are considered to be claims against the defendants’ municipality
itself, such claims are subject to dismissal as duplicative of the claims against the
municipality which the official serves. See Wierzbic v. County of Erie, 2018 WL 550521,
at *6 (W.D.N.Y. Jan. 25, 2018) (citing Curley v. Vill. of Suffern, 268 F.3d 65, 72 (2d Cir.
2001)). Accordingly, the official-capacity § 1983 claims Plaintiff seeks to assert against
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Proposed Defendants, which include the proposed official-capacity claims pursuant to §
1981, the First Amendment, and the Fourteenth Amendment, “merge into [her] claims
against [the Library].” Quinones, 997 F.3d at 466 n. 2. Plaintiff’s Supplemental Motion
to Amend is thus futile with regard to the proposed Fourth, Fifth, and Sixth, Seventh,
Eighth, and Ninth Claims alleging violations of § 1981, the First Amendment, and the
Fourteenth Amendment under § 1983, and which Plaintiff seeks to assert against
Fachko and Purtell in their official capacities. Plaintiff’s Supplemental Motion to Amend
thus should be DENIED insofar as Plaintiff seeks to allege official capacity claims under
§ 1983 for violations of § 1981, the First Amendment, and the Fourteenth Amendment
against Proposed Defendants. These same claims, however, may survive as against
Proposed Defendants in their personal capacities provided the Supplemental Proposed
SAC alleges sufficient facts to establish the claims are plausible, and the court next
discusses whether the Supplemental Proposed SAC sufficiently alleges Proposed
Defendants were personally involved in the § 1983 claims Plaintiff seeks to assert
against them in their individual capacities.
“[O]fficers sued in their personal capacity come to court as individuals. A
government official in the role of personal-capacity defendant thus fits comfortably
within the statutory term ‘person.’” Hafer, 502 U.S. at 26 (citing Will, 491 U.S. at 71, n.
10 (“[A] state official in his or her official capacity, when sued for injunctive relief, would
be a person under § 1983 because ‘official-capacity actions for prospective relief are not
treated as actions against the State’”) (quoting Graham, 473 U.S. at 167, n. 14). In
other words, an official-capacity suit “is not a suit against the official personally, for the
real party in interest is the entity. Thus, while an award of damages against an official in
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his personal capacity can be executed only against the official's personal assets, a
plaintiff seeking to recover on a damages judgment in an official-capacity suit must look
to the government entity itself.” Graham, 473 U.S. at 166 (quoting Brandon v. Holt, 469
U.S. 464, 471–472). A government official sued in a personal-capacity role is a ‘person’
subject to a § 1983 suit for damages for actions taken in her official capacity. Hafer,
502 U.S. at 27. Further, “the plaintiff in a personal-capacity suit need not establish a
connection to governmental ‘policy or custom . . . .’” Id. at 25 (citing Graham, 473 U.S.
at 166–167).
Suits brought against government officials in their personal capacities “seek to
impose individual liability upon a government officer for actions taken under color of
state law. Significantly, “[a] state employee acting in his official capacity is acting ‘under
color of state law.’” Vega, 801 F.3d at 87-88 (quoting Feingold, 366 F.3d at 159). Thus,
‘[o]n the merits, to establish personal liability in a § 1983 action, it is enough to show
that the official, acting under color of state law, caused the deprivation of a federal
right.’” Hafer, 502 U.S. at 25 (italics in Hafer) (quoting Graham, 473 U.S. at 166).
“Once the color of law requirement is met, a plaintiff's ‘equal protection claim parallels
his Title VII claim,’ except that a § 1983 claim, unlike a Title VII claim, can be brought
against an individual.” Id. (quoting Feingold, 366 F.3d at 159). “Thus, for a § 1983
discrimination claim to survive a motion for judgment on the pleadings or a motion to
dismiss, a plaintiff must plausibly allege a claim under the same standards applicable to
a Title VII claim—and that the adverse action was taken by someone acting ‘under color
of state law.’” Id. In other words, at this stage of the proceedings, “[t]he facts required
by Iqbal to be alleged in the complaint need not give plausible support to the ultimate
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question of whether the adverse employment action was attributable to discrimination.
They need only give plausible support to a minimal inference of discriminatory
motivation.” Littlejohn, 795 F.3d at 311. To meet this “minimal” burden, “plaintiffs
usually must rely on ‘bits and pieces’ of information to support an inference of
discrimination, i.e., a ‘mosaic’ of intentional discrimination.” Vega, 801 F.3d at 86
(citations omitted).
Additionally, for § 1983 liability of an individual, a defendant must have been
personally involved in the alleged deprivation. Tangreti v. Bachmann, 983 F.3d 609,
616 (2d Cir. 2020) (a § 1983 plaintiff must establish “that each Government-official
defendant, through the official's own individual actions, has violated the Constitution”
(quotation and citation omitted). See also Kravitz v. Purcell, 87 F.4th 111, 129 (2d Cir.
2023) (“To ‘establish a defendant's individual liability in a suit brought under § 1983, a
plaintiff must show ... the defendant's personal involvement in the alleged constitutional
deprivation.’”) (quoting Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013)).
Personal involvement in the deprivation of a federal constitutional right is the sine qua
non of liability under § 1983.” Piasecki v. Cnty. of Erie, 2023 WL 2992034, at *8
(W.D.N.Y. Apr. 18, 2023); Bellinger v. Fludd, 2020 WL 6118823, at *2 (E.D.N.Y. Oct.
16, 2020) (“A plaintiff must allege the direct or personal involvement of each of the
named defendants in the alleged constitutional deprivation.” (citing Farid v. Ellen, 593
F.3d 233, 249 (2d Cir. 2010))).
Until recently, the personal involvement of a supervisory defendant for § 1983
purposes could be established by showing either that the defendant directly participated
in the alleged constitutional violation or through four alternative means including failing
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to report or remedy a constitutional violation, creating the policy or custom under which
the constitutional violation occurred, being grossly negligent in supervising the
subordinates who committed the wrongful act, or exhibiting deliberate indifference to the
plaintiff by failing to act on information that unconstitutional acts were occurring. Colon
v. Coughlin, 58 F.3d 865, 873 (2d Cir. 2995) (citing Wright v. Smith, 21 F.3d 496, 501
(2d Cir. 1994)). In Tangreti, however, the Second Circuit rescinded such broad forms of
supervisory liability and, in keeping with the Supreme Court's declaration in Iqbal
concerning § 1983’s personal involvement requirement, held that a § 1983 plaintiff
“must plead and prove ‘that each Government-official defendant, through the official's
own individual actions, has violated the Constitution.’” Tangreti, 983 F.3d at 618
(quoting Iqbal, 556 U.S. at 676). “Iqbal’s ‘active conduct’ standard only imposes liability
on a supervisor through section 1983 if that supervisor actively had a hand in the
alleged constitutional violation.” Tangreti, 983 F.3d at 617 n. 4 (quoting Bellamy v. Mt.
Vernon Hosp. 2009 WL 1835939, at *6 (S.D.N.Y. June 26, 2009)). This court has found
that after Tangreti, the only so-called Colon criteria that can establish personal
involvement of a supervisory defendant for a viable constitutional violation are the
defendant’s direct participation in the alleged unconstitutional violation – the so-called
“active conduct” standard, the defendant’s creation of a policy or custom under which
unconstitutional practices occurred, or allowed the continuance of such a policy or
custom.” See Marcus v. City of Buffalo, 2023 WL 5154167, at *5 (W.D.N.Y. Aug. 10,
2023) (citing Tangreti, 983 F.3d at 617 n. 4) (citing cases), report and recommendation
adopted, 2023 WL 7016546 (W.D.N.Y. Oct. 25, 2023)). Accordingly, “‘a plaintiff must
plead and prove ‘that each Government-official defendant, through the official's own
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individual actions, has violated the Constitution.’” Tangreti v. Bachmann, 983 F.3d 609,
618 (2d Cir. 2020) (underlining added).
Plaintiff therefore may pursue § 1983 claims against Proposed Defendants in
their personal, but not official, capacities provided Plaintiff has alleged sufficient facts to
show such claims are plausible, a requirement that, at the pleading state, is minimal.
Littlejohn, 795 F.3d at 311 (allegations “need only give plausible support to a minimal
inference of discriminatory motivation”). The court thus considers whether the
Supplemental Proposed SAC states a claim for a § 1983 violation against Proposed
Defendants in their personal capacities based on a violation of § 1981, the First
Amendment, or the Fourteenth Amendment Equal Protection or Due Process Clauses.
1. 	§ 1981
As stated, Plaintiff’s § 1981 claims are considered as asserted pursuant to §
1983 which “outlaws discrimination with respect to the enjoyment of benefits, privileges,
terms, and conditions of a contractual relationship, such as employment.” Patterson,
375 F.3d at 224-25 (citing Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 68-
69 (2d Cir. 2000)). The activities enumerated in § 1981 include the right to make and
enforce contracts, to sue, and to the full and equal benefit of all laws and proceedings
for the security of persons and property. See 42 U.S.C. § 1981; accord Bishop v. Best
Buy, Co., 2010 WL 4159566, at *4 (S.D.N.Y. Oct. 13, 2010). Significantly, an at-will
employment agreement that is governed by New York law constitutes a contract for the
purposes of a § 1981 claim. Whidbee, 223 F.3d at 68 (citing Lauture v. IBM, 216 F.3d
258 (2d Cir. 2000)). Employment discrimination claims may be brought under § 1981
against individual defendants in their personal capacity based on disparate treatment,
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see Littlejohn, 795 F.3d at 312 (discussing § 1981 disparate treatment claim against
supervisor in personal capacity in context of motion to dismiss), retaliation, see Knox v.
CRC Management Co., LLC, 134 F.4th 39, 49-50 (2d Cir. 2025) (analyzing, and thus
recognizing, § 1981 race-based discriminatory retaliation claim), and hostile work
environment, see id., 134 F.4th at 50-52 (recognizing and considering § 1981 race-
based hostile work environment claim). Plaintiff’s proposed § 1981 claims thus may be
brought against Proposed Defendants in their personal capacities so long as Plaintiff
has alleged sufficient facts to state such claims. Further, “[a]n individual may be held
liable under §§ 1981 and 1983 only if that individual is ‘personally involved in the
alleged deprivation.’” Littlejohn, 795 F.3d at 314 (citing Back, 365 F.3d at 127 (§ 1983);
Patterson, 375 F.3d at 229 (§ 1981)).
“Relevant here, ‘Section 1981 discrimination claims are analyzed under the same
substantive standard applicable to Title VII discrimination claims,’” Belton v. Borg & Ide
Imaging, P.C., 512 F. Supp.3d 433, 447 (W.D.N.Y. 2021) (quoting Henry v. NYC Health
& Hosp. Corp., 18 F. Supp.3d, 396, 410 (S.D.N.Y. 2014) (collecting cases), “as are
Section 1981 retaliation claims,” id. (citing Hicks v. Baines, 593 F.3d 159, 164 (2d Cir.
2010), and Johnson v. City of New York, 2019 WL 4468442, *13 (E.D.N.Y. 2019)
(“Claims of employment discrimination and retaliation under §[ ] 1981 . . . are analyzed
under the same framework that applies to Title VII claims.”)). Here, such factual
allegations are pleaded in the Supplemental Proposed SAC with regard to Plaintiff’s §
1981 retaliation claims she seeks to assert against Fachko and Purtell, but not with
regard to her § 1981 disparate treatment and hostile work environment claims.
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In particular, the facts asserted in the Supplemental Proposed SAC fail to
sufficiently allege Plaintiff was subjected to disparate treatment in her employment on
the basis of her race. Plaintiff alleges she is a Black woman who, after being hired by
the Library as a Children’s Services and Outreach Librarian I, was “marginalized within
the department, and denied access to opportunities routinely afforded to similarly
situated colleague [including training and access to materials, books, and databases].”
Proposed Supplemental SAC ¶ 25. Although Plaintiff asserts she was denied the same
training and was not provided access to the same materials, books, and databases as
white employees, Plaintiff maintains it was Dougherty who made such decisions and
fails to allege any facts to establish that either Fachko or Purtell was personally involved
in such conduct. In addition, the facts Plaintiff alleges in support of her disparate
treatment claim against Fachko, who was Assistant HR Director, and Purtell, then
Interim Director of the Library, include that Fachko and Purtell failed to properly
investigate the Grievance Plaintiff submitted to Purtell on March 14, 2022 regarding her
perceived disparate treatment. Id. ¶¶ 45, 61, 73-78. The failure to investigate a
discrimination complaint, however, did not alter any terms or conditions of Plaintiff’s
employment and, as such, cannot constitute the requisite adverse employment action to
sustain Plaintiff’s § 1981 disparate treatment claim. See Fincher v. Depository Trust
and Cleaning Corp., 604 F.3d 712, 724 (2d Cir. 2010) (failure to investigate plaintiff’s
employment discrimination complaint did not, by itself, alter the terms and conditions of
the plaintiff’s employment but, rather, “it preserved the very circumstances that were the
subject of the complaint”). Because supervisory personnel may not be held liable for
employment discrimination in which they were not personally involved, Littlejohn, 795
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F.3d at 314, these proposed claims also fail. The Supplemental Proposed SAC thus
fails to sufficiently plead facts that support either Fachko or Purtell was personally
involved in any alleged disparate treatment based on Plaintiff’s race so as to nudge her
race-based employment discrimination disparate treatment “across the line from
conceivable to plausible.” Vega v. Hempstead Union Free School District, 801 F.3d 72,
86 (2d Cir. 2015). Plaintiff’s Supplemental Motion to Amend thus should be DENIED as
to the proposed § 1981 disparate treatment claim, Plaintiff’s proposed Fourth Claim,
against Proposed Defendants in their personal capacities.
The court next addresses whether Plaintiff has sufficiently alleged a hostile work
environment claim under § 1981 against Proposed Defendants in their personal
capacities. To state a hostile work environment claim [under § 1981], a plaintiff must
allege that the complained of conduct (1) is objectively severe or pervasive in that it
creates an environment that a reasonable person would find hostile or abusive; (2)
creates an environment that the plaintiff subjectively perceives as hostile or abusive;
and (3) creates such an environment because of the plaintiff's protected characteristic.
LeGrand v. Walmart Stores E., LP, 779 Fed.Appx. 779, 782 (2d Cir. 2019) (citing
Patane, 508 F.3d at 113, and Rivera v. Rochester Genesee Reg'l Transp. Auth., 743
F.3d 11, 20 n. 4 (2d Cir. 2014)). See also Littlejohn, 795 F.3d at 320-21 (to state a
hostile work environment under § 1981 “a plaintiff must show that ‘the 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.’”) (quoting Harris, 510 U.S. at 21 (citations and internal quotation
marks omitted in Littlejohn)). “‘This standard has both objective and subjective
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components: the conduct complained of must be severe or pervasive enough that a
reasonable person would find it hostile or abusive, and the victim must subjectively
perceive the work environment to be abusive.’” Littlejohn, 795 F.3d at 321 (quoting
Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir. 2014) (citing Harris, 510 U.S. at 21–
22)). “‘The incidents complained of must be more than episodic; they must be
sufficiently continuous and concerted in order to be deemed pervasive.’” Id. (quoting
Raspardo, 770 F.3d at 114). In determining whether a plaintiff suffered a hostile work
environment, the court must consider “the totality of the circumstances, including ‘the
frequency of the discriminatory conduct; its severity; whether it is physically threatening
or humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee's work performance.’” Id. (quoting Harris, 510 U.S. at 23).
In the instant case, Plaintiff’s hostile work environment claim is predicated on
allegations that she was subjected to “Continuous marginalization and exclusion from
departmental communications and collaborations; Denial of access to professional
tools, training, and resources routinely provided to white colleagues; Public undermining
of Plaintiff’s work and programming efforts; Disparate disciplinary treatment, including
the issuance of a pretextual Record of Counseling; Racial stereotyping, surveillance,
and administrative isolation intended to intimidate and marginalize.” Supplementary
Proposed SAC ¶ 215. Even assuming, arguendo, Plaintiff alleged sufficient facts to
establish the personal involvement of Fachko and Purtrell in such conduct, these
allegations are devoid of any facts indicating such actions were accompanied by racially
discriminatory intimidation or ridicule. Littlejohn, 795 F.3d at 320. These allegations
thus cannot support a finding of hostile work environment that is so severe or pervasive
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as to have altered the conditions of Plaintiff’s employment. Id. (citing Fleming v.
MaxMara USA, Inc., 371 Fed.Appx. 115, 119 (2d Cir.2010) (concluding that no hostile
work environment existed even though “defendants wrongly excluded [the plaintiff] from
meetings, excessively criticized her work, refused to answer work-related questions,
arbitrarily imposed duties outside of her responsibilities, threw books, and sent rude
emails to her”), and Davis–Molinia v. Port Auth. of N.Y. & N.J., 2011 WL 4000997, at
*11 (S.D.N.Y., Aug. 19, 2011) (finding that “diminished [job] responsibilities,” “exclu[sion]
from staff meetings,” deliberate “avoid[ance],” “yell[ing] and talk[ing] down to,” and an
increased workload of menial tasks, among other factors, was not enough to show that
defendants' conduct was sufficiently severe or pervasive), aff'd, 488 Fed.Appx. 530 (2d
Cir.2012)). Compare LeGrand, 779 Fed.Appx. at 783 (plaintiff, a former employee,
plausibly stated § 1981 claim for hostile work environment against former supervisor
and manager who allegedly made racist comments about the plaintiff to co-workers,
regardless of whether the comments were made in the plaintiff’s presence). Here, in
the absence of any allegations that Defendants engaged in any racially discriminatory
intimidation or ridicule, Plaintiff’s Supplemental Motion to Amend should be DENIED
insofar as Plaintiff seeks to allege her proposed Sixth Claim for hostile work
environment in violation of § 1981 against Proposed Defendants in their personal
capacities.
Nevertheless, Plaintiff has sufficiently alleged a retaliation claim against Fachko
and Purtell under § 1981. “For a retaliation claim to survive a motion to dismiss, the
plaintiff must plausibly allege that the defendants (1) discriminated—or took an adverse
employment action—against her (2) because she opposed an unlawful employment
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practice.” LeGrand, 779 Fed.Appx. at 783 (citing Vega, 801 F.3d at 90). “In the
retaliation context, an adverse employment action is one that ‘could well dissuade a
reasonable worker from making or supporting a charge of discrimination.’” Id. (quoting
Vega, 801 F.3d at 90) (further internal quotation omitted).
In the instant case, Plaintiff alleges that on February 14, 2022, she verbally
reported to Fachko that Plaintiff was being subjected to race-based employment
discrimination, Supplemental Proposed SAC ¶ 189, on March 14, 2022 she submitted
her Grievance to, inter alia, Purtell, id. ¶¶ 74, 79, 190, and on March 17, 2022, Plaintiff’s
employment with the Library was terminated. Id. ¶ 191. According to Plaintiff, both
Fachko and Purtell had knowledge of Plaintiff’s participation in the protected activity, as
well as authority over Plaintiff’s employment at the Library. Id. ¶¶ 201-02. These facts
raise an inference of retaliatory conduct sufficient to withstand a motion to dismiss. See
LeGrand, 779 Fed.Appx. at 783 (allegations that hostile conduct toward the plaintiff
increased after the plaintiff complained to her employer’s corporate officer about racist
comments her supervisory and manager made to the plaintiff’s co-workers); Zann Kwan
v. Andalex Grp. LLC, 737 F.3d 834, 845 (2d Cir. 2013) (three weeks between the
protected activity and adverse action “sufficiently short to make a prima facie showing of
causation indirectly through temporal proximity”).
Accordingly, Plaintiff’s Supplemental Motion to Amend as against Proposed
Defendants Fachko and Purtell in their personal capacities is GRANTED with regard to
Plaintiff’s proposed § 1981 retaliation claim, but should be DENIED with regard to
Plaintiff’s proposed § 1981 disparate treatment and hostile work environment claims.
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2. 	First Amendment Retaliation
Plaintiff seeks to allege retaliation by Proposed Defendants for complaining about
racially disparate treatment in violation of the First Amendment. Supplemental
Proposed SAC ¶ 193. Defendants do not directly oppose this claim, but the
undersigned addresses it in the interest of completeness.
Section 1983 is the enforcement mechanism for “the First Amendment’s
guarantee of freedom of speech, which ‘prohibits [the government] from punishing its
employees in retaliation for the content of their protected speech.’” Quinones v. City of
Binghamton, 997 F.3d 461, 466 (2d Cir. 2021) (quoting Locurto v. Safir, 264 F.3d 154,
166 (2d Cir. 2001)). The First Amendment protects the right of public employees to
speak-out without fear of reprisal on issues of public concern. Frank v. Relin, 1 F.3d
1317 (2d Cir., 1993), cert. denied, 510 U.S. 1012 (1993); see also Ezekwo v. NYC
Health & Hosp. Corp., 940 F.2d 775, 780 (2d Cir.1991) (“It is well established that a
public employer cannot discharge or retaliate against an employee for the exercise of
his or her First Amendment free speech right.”).
To state a plausible claim for First Amendment retaliation in the context of
employment, Plaintiff must allege: (1) she engaged in speech or conduct protected by
the First Amendment; (2) the defendants took an adverse action against her; and (3) a
causal connection between the adverse action and the protected speech or conduct.
See O’Connell-Byrne v. Hilton Central School District, 2024 WL 655601, at * 5
(W.D.N.Y. Feb. 16, 2024) (citing cases including, inter alia, Cox v. Warwick Valley Cent.
Sch. Dist., 654 F.3d 267, 272 (2d Cir. 2011)). Here, the conduct Plaintiff on which
Plaintiff relies in support of her First Amendment retaliation claim, i.e., the Grievance,
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Supplemental Proposed SAC ¶¶ 190-92, does not qualify as speech or conduct
protected by the First Amendment.
“The mere fact of government employment does not result in the evisceration of
an employee's First Amendment rights.” Johnson v. Ganim, 342 F.3d 105, 112 (2d
Cir.2003). But public employment does substantially curtail the right to speak freely in a
government workplace. See Mandell v. County of Suffolk, 316 F.3d 368, 382 (2d
Cir.2003) (public employees' free speech rights “are not absolute”). One limitation is
that the First Amendment protects a public employee from retaliation by his or her
employer for the employee's speech only if “the employee sp[eaks] [1] as a citizen [2] on
a matter of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). The
Supreme Court instructs that
[W]hen a public employee speaks not as a citizen upon matters of public
concern, but instead as an employee upon matters only of personal interest,
absent the most unusual circumstances, a federal court is not the appropriate
forum in which to review the wisdom of a personnel decision taken by a public
agency in reaction to an employee's behavior.
Connick v. Myers, 461 U.S. 138, 147 (1983)
A matter of public concern is one that “relat[es] to any matter of political, social,
or other concern to the community.” Connick v. Myers, 461 U.S. 138, 146 (1983).
“Whether an employee's speech addresses a matter of public concern must be
determined by the content, form, and context of a given statement, as revealed by the
whole record.” Id. at 147–48. Among the relevant considerations is “whether the
speech was calculated to redress personal grievances or whether it had a broader
public purpose.” Lewis v. Cowen, 165 F.3d 154, 163-64 (2d Cir.), cert. denied, 528 U.S.
823 (1999). “Speech that, although touching on a topic of general importance, primarily
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concerns an issue that is ‘personal in nature and generally related to [the speaker's]
own situation,’ such as his or her assignments, promotion, or salary, does not address
matters of public concern.” Jackler v. Byrne, 658 F.3d 225, 236 (2d Cir. 2011) (quoting
Ezekwo v. N.Y.C. Health & Hosps. Corp., 940 F.2d 775, 781 (2d Cir.1991), cert. denied,
502 U.S. 1013, (1991)). As such, “[t]he heart of the matter is whether the employee's
speech was calculated to redress personal grievances or whether it had a broader
public purpose.” Ruotolo v. City of N.Y., 514 F.3d 184, 189 (2d Cir.2008) (internal
quotation omitted). Further, whether a public employee spoke as a citizen on a matter
of public concern is a question of law. Connick, 461 U.S. at 148 n. 7, 150 n. 10. “Only if
the court concludes that the employee did speak in this manner does it move on to the
so-called Pickering11 balancing, at which stage ‘a court ... balances the interests of the
employer in providing effective and efficient public services against the employee's First
Amendment right to free expression.’” Singer v. Ferro, 711 F.3d 334, 339 (2d Cir. 2013)
(quoting Lewis, 165 F.3d at 162).
In particular, “[a] public employee's speech is protected by the First Amendment
when ‘the employee spoke as a private citizen and . . . the speech at issue addressed a
matter of public concern.’” Quinones, 997 F.3d at 466 (quoting Montero v. City of
Yonkers, 890 F.3d 386, 393 (2d Cir. 2018)). “‘To constitute speech on a matter of
public concern, an employee's expression must be fairly considered as relating to any
matter of political, social, or other concern to the community.’” Id. (quoting Montero, 890
11 Pickering v. Board of Educ., 391 U.S. 563, 568 (1968) (providing the determination whether a public
employer has violated the First Amendment by firing a public employee for engaging in speech requires
“a balance between the interests of the [employee], as a citizen, in commenting upon matters of public
concern and the interest of the State, as an employer, in promoting the efficiency of the public services it
performs through its employees.”).
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F.3d at 399) (further internal quotation omitted in Quinones). Nevertheless, “speech
that is ‘calculated to redress personal grievances—even if touching on a matter of
general importance—does not qualify for First Amendment protection.’” Id. (quoting
Montero, 890 F.3d at 400) (further internal quotation omitted in Quinones). Accordingly,
“the First Amendment does not protect speech that ‘principally focuses on an issue that
is personal in nature and generally related to the speaker's own situation.’” Id. at 467
(quoting Montero, 899, F.3d at 399) (alterations and internal citations omitted in
Quinones).
In the context of employment, the difference in speech or conduct protected
under anti-discrimination statutes such as Title VII and that protected under the First
Amendment is that under the anti-discrimination statutes, the speech must be “in
opposition to an unlawful employment practice,” Bell v. Baruch College, 2018 WL
1274782, at *6 (S.D.N.Y. Mar. 9, 2018), whereas under the First Amendment, the
speech must be made “as a citizen” and “on a matter of public concern.” Singer v.
Ferro, 711 F.3d 334, 339 (2d Cir. 2013). As such, “complaints about individual acts of
discrimination or harassment are not generally deemed to be of ‘public concern,’”
Alexander v. City of New York, , at *13 (S.D.N.Y. Aug. 25, 2004) (italics in original)
(citations omitted), except when they allege system-wide discrimination. Id. (citing Wise
v. New York City Police Dep't, 928 F. Supp. 355 (S.D.N.Y. 1996) (sexual harassment
complaints held matters of public concern where complaints pertained to plaintiff and
other women in police department)).
In the instant case, the Supplemental Proposed SAC alleges that Proposed
Defendants terminated Plaintiff’s employment to retaliate against Plaintiff for filing the
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Grievance on March 14, 2022, in which Plaintiff complained of disparate treatment
based on her race and a racially hostile work environment. Plaintiff’s filing of the
Grievance, however, did not constitute protected activity under the First Amendment. In
particular, the Grievance was “calculated to redress personal grievances,” rather than a
“broader public purpose.” Ruotolo, 514 F.3d at 189. Specifically, the Grievance alleged
race discrimination and harassment. Accordingly, Plaintiff has not alleged that she
engaged in First Amendment protected speech by filing the Grievance on March 14,
2022 in which Plaintiff complained about racial discrimination to which she maintains
she was subjected while working at the Library. Plaintiff’s Supplemental Motion to
Amend must thus be DENIED insofar as Plaintiff seeks to assert a First Amendment
retaliation claim against Proposed Defendants in their personal capacities.
3. 	Fourteenth Amendment Claims
Plaintiff also seeks to allege Proposed Defendants in their personal capacities, in
violation of the Fourteenth Amendment, deprived her of equal protection by subjecting
her to disparate treatment based on her race, Supplemental Proposed SAC ¶¶ 235-254,
and then terminating Plaintiff’s employment to retaliate against Plaintiff for complaining
about race-based disparate treatment, id. ¶¶ 255-72, and further deprived Plaintiff of
due process by failing to follow established procedures in terminating Plaintiff’s
employment thereby depriving Plaintiff of her protected liberty interest in her continued
employment. Id. ¶¶ 271-92.12 As discussed, Discussion, supra, at 32, Defendants did
not respond in opposition to these claims Plaintiff seeks to assert other than to argue
they are time-barred.
12 The court notes the Supplemental Proposed SAC contains two sets of paragraphs numbered 271 and
272.
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“The Fourteenth Amendment provides public employees with the right to be ‘free
from discrimination.’” Vega, 801 F.3d at 87 (quoting Demoret v. Zegarelli, 451 F.3d
140, 149 (2d Cir. 2006)). Accordingly, “public employees aggrieved by discrimination in
the terms of their employment may bring suit under 42 U.S.C. § 1983 against any
responsible persons acting under color of state law.” Vega, 801 F.3d at 87 (citing Back,
365 F.3d at 122–23). See also Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277
(1986) (“public employers, including public schools, also must act in accordance with a
‘core purpose of the Fourteenth Amendment’ which is to ‘do away with all
governmentally imposed discriminations based on race.’” (quoting Palmore v. Sidoti,
466 U.S. 429, 432 (1984)).
A plaintiff alleging discrimination in public employment in violation of the
Fourteenth Amendment may bring suit pursuant to § 1983 against a defendant in her
personal capacity. Naumovski v. Norris, 934 F.3d 200, 215 (2d Cir. 2019); Feingold v.
New York, 366 F.3d 138, 159 (2d Cir. 2004). This includes claims for disparate
treatment, see Chislett, 2025 WL 2725669, at * 6, hostile work environment, see id., and
retaliation, see Feingold, 366 F.3d at 160. Accordingly, Plaintiff’s Supplemental Motion
to Amend should not be dismissed based on an inability to state a § 1983 claim simply
because it is predicated on a violation of the Fourteenth Amendment’s Due Process and
Equal Protection Clauses. To state such claim, the plaintiff must plausibly allege that
she suffered an adverse employment action because of her membership in a protected
category. Naumovski v. Norris, 934 F.3d 200, 212 (2d Cir. 2019). Further, the
defendant must be personally involved in the alleged constitutional deprivation.
Brandon v. Kinter, 938 F.3d 21, 36 (2d Cir. 2019).
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a. 	Equal Protection
In the Supplemental Proposed SAC, Plaintiff seeks to assert § 1983 claims
against Proposed Defendants for denial of equal protection based on racially disparate
treatment, Supplemental Proposed SAC ¶¶ 235-54, and retaliation. Id. ¶¶ 255-72.
Defendants have not argued in opposition to these proposed amendments.
“Once action under color of state law is established, [Plaintiff’s] equal protection
claim parallels [her] Title VII claim[s].” Feingold v. New York, 366 F.3d 138, 159 (2d Cir.
2004). “The elements of one are generally the same as the elements of the other and
the two must stand or fall together.” Id. (citing Annis v. County of Westchester, 136
F.3d 239, 245 (2d Cir.1998) (“In analyzing whether conduct was unlawfully
discriminatory for purposes of § 1983, we borrow the burden-shifting framework of Title
VII claims.”); Jemmott v. Coughlin, 85 F.3d 61, 67 (2d Cir.1996) (stating that “Title VII
law . . . is utilized by courts considering § 1983 Equal Protection claims” and
recognizing that “several circuits have held that, when § 1983 is used as a parallel
remedy with Title VII in a discrimination suit ... the elements of the substantive cause of
action are the same under both statutes.”)).
i. 	Disparate Treatment and Selective Enforcement
To state an equal protection claim under § 1983 in the context of employment, a
“plaintiff must allege that similarly situated persons have been treated differently.”
Gagliardi v. Vill. of Pawling, 18 F.3d 188, 193 (2d Cir. 1994). “‘A finding of ‘personal
involvement of [the individual] defendants’ in an alleged constitutional deprivation is a
prerequisite to an award of damages under Section 1983.” Feingold, 366 F.3d at 159
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(quoting Provost v. City of Newburgh, 262 F.3d 146, 154 (2d Cir.2001) (further internal
quotation omitted) (bracketed material in Feingold).
As discussed above, Plaintiff has sufficiently alleged she was subjected to
disparate treatment while employed at the Library insofar as she was subjected to
treatment that was different and unequal compared to white employees including, inter
alia, that Plaintiff was denied a “sign-on bonus,” Supplemental Proposed SAC ¶ 86, not
supported in her job responsibilities when she was not added to the “system” that would
allow Plaintiff to check out books for the Inventors program, id. ¶ 87, denied training on
and access to library collection development software, id. ¶ 89, denied lunch breaks, id.
¶ 92, denied materials and staffing for the Inventors program, id. ¶¶ 93-95, required to
answer the telephone, id. ¶ 96, not permitted to work remotely, id. ¶ 97, not permitted to
attend meetings by Zoom, id. ¶ 98, and denied assignments to develop a book
collection in the Children’s Department. Id. ¶ 101. Although these allegations do assert
that Plaintiff was subjected to disparate treatment as compared to white Library
employees, Gagliardi, 18 F.3d at 193, the Supplemental Proposed SAC fails to allege
that either Fachko or Purtell was personally involved in such conduct.
Plaintiff’s allegations in the Supplemental Proposed SAC that Plaintiff’s
employment was subjected to disciplinary measures and terminated for violations of
workplace policies, which Plaintiff maintains was not based on legitimate work
performance concerns, while other employees were not subjected to similar discipline or
termination for violating workplace policies, Supplemental Proposed SAC ¶¶ 238-39,
may assert a selective enforcement claim under the Equal Protection Clause. “To
prevail on such a claim, a plaintiff must prove that (1) [she], compared with others
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similarly situated, was selectively treated, and (2) the selective treatment was motivated
by an intention to discriminate on the basis of impermissible considerations, such as
race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious
or bad faith intent to injure the person.” Hu v. City of New York, 927 F.3d 81, 91 (2d Cir.
2019). A comparator is similarly situated to the plaintiff when “the plaintiff's and
comparator's circumstances . . . bear a reasonably close resemblance.” Id. at 96. To
establish the second prong, “plaintiffs must prove that the disparate treatment was
caused by the impermissible motivation. They cannot merely rest on a showing of
disparate treatment.” Bizzarro v. Miranda, 394 F.3d 82, 87 (2d Cir. 2005) (italics in
original); see also Hu, 927 F.3d at 91 (defining “impermissible considerations” to
“protect[ ] against both discrimination on the basis of a plaintiff's protected status (e.g.,
race or a constitutionally-protected activity) and discrimination on the basis of a
defendant's personal malice or ill will towards a plaintiff”).
Here, Plaintiff asserts in the Supplemental Proposed SAC that despite using foul
language in responding to library patrons, a father and his two young children, conduct
which Plaintiff maintains the Library’s workplace conduct policy requires immediate
termination of employment, Castaneda, Plaintiff’s co-worker who is white, was not
terminated. Supplemental Proposed SAC ¶¶ 37, 42. In contrast, Plaintiff was
terminated without cause and without following the Library’s disciplinary procedures. Id.
These putative allegations, nevertheless, fail on several grounds to allege a Fourteenth
Amendment selective enforcement claim.
In particular, the Supplemental Amended Complaint is devoid of any allegations
establishing that Castaneda was similarly situated to Plaintiff, who was a probationary
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employee when she was discharged and, thus, entitled to fewer protections. Nor does
the portion of the Library’s workplace conduct policy on which Plaintiff relies require an
employee’s immediate termination upon violating certain policies; instead, the quoted
policy provides only that such employee “may” be terminated. Id. ¶¶ 41-42.
Furthermore, Plaintiff’s assertions in the Supplemental Proposed SAC fail to establish
that either of the Proposed Defendants, i.e., Fachko or Purtell, was personally involved
in the incident involving Castaneda; rather, Plaintiff maintains it was Dougherty who
handled the matter. Supplemental Proposed SAC at 37-42. Accordingly, Plaintiff’s
Supplemental Motion to Amend should be DENIED as to this claim.
Accordingly, the Supplemental Proposed SAC fails to allege a Fourteenth
Amendment equal protection claim based on disparate treatment or selective
enforcement such that Plaintiff’s Supplemental Motion to Amend should be DENIED as
to these proposed claim against Proposed Defendants in their personal capacities.
ii. Retaliation
“[T]he elements of a retaliation claim based on an equal protection violation
under § 1983 mirror those under Title VII, [requiring the plaintiff to] plausibly allege that:
(1) defendants acted under the color of state law, (2) defendants took adverse
employment action against h[er], (3) because [s]he complained of or otherwise opposed
discrimination.” Vega, 801 F.3d at 91. Here, the Supplemental Proposed SAC
adequately alleges a claim for relief against the individual Proposed Defendants.
Specifically, as discussed, Discussion, supra, at 48-49, the allegations of the
Supplemental Proposed SAC allege that Fachko, acting in her official capacity as
Library’s Assistant Deputy Director of HR, and Purtell, then acting in her official capacity
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as the Library’s Interim Director, were personally involved both in reviewing and denying
Plaintiff’s internal complaint, Supplemental Proposed SAC ¶¶ 74, 76, and in terminating
Plaintiff’s employment only three days after Plaintiff submitted the Grievance. Id. ¶¶ . It
is undisputed that Plaintiff’s complaining of race-based employment discrimination by
filing the internal complaint was protected activity, see Raniola v. Bratton, 243 F.3d 610,
624-25 (2d Cir. 2001) (internal complaints made to management are protected activity),
and that the termination of Plaintiff’s employment is an adverse employment action.
See Fox v. Costco Wholesale Corp., 918 F.3d 65, 71 (2d Cir. 2019) (termination of
employment can be an adverse employment action for purposes of retaliation claim).
Further, the temporal proximity of Plaintiff’s submission on March 14, 2022, of the
internal complaint regarding racial discrimination in the terms of Plaintiff’s employment,
and the adverse employment action by terminating Plaintiff’s employment on March 17,
2022, sufficiently plausibly establishes Plaintiff’s employment was terminated because
she complained of race-based employment discrimination. Accordingly, Plaintiff’s
Supplemental Motion to Amend is GRANTED insofar as Plaintiff seeks to assert a
Fourteenth Amendment equal protection claim against Proposed Defendants in their
personal capacities for retaliatory termination of her employment for complaining about
race-based employment discrimination.
b. Due Process
Plaintiff seeks to allege that in terminating Plaintiff’s employment, Proposed
Defendants deprived Plaintiff of both her property and liberty interests without due
process of law. Supplemental Proposed SAC ¶¶ 271-92. In particular, Plaintiff seeks to
allege that Proposed Defendants failed to abide by the relevant portions of the Union’s
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CBA when terminating Plaintiff’s employment without providing Plaintiff with notice, a
hearing, or an opportunity to respond to the termination, and the termination of Plaintiff’s
employment has damaged Plaintiff’s professional reputation and to lose employment
opportunities. Id.
i. 	Property Interest
In Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532 (1985), the Supreme Court
held that a pre-termination hearing in connection with the dismissal of a public
employee is required. See Saulpaugh v. Monroe Community Hospital, 4 F.3d 134, 144
(2d Cir. 1993) (citing Zinker v. Doty, 907 F.2d 357, 360-61 (2d Cir. 1990)). The
Supplemental Proposed SAC, however, does not allege that Plaintiff had a protected
property interest in her job with the Library.
“Property interests under the Due Process Clause are ‘created and their
dimensions are defined by existing rules or understandings that stem from an
independent source such as state law.’” Harhay v. Town of Ellington Bd. of Educ., 323
F.3d 206, 212 (2d Cir. 2003) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577
(1972)). “‘A public employee has a property interest in continued employment if the
employee is guaranteed continued employment absent ‘just cause’ for discharge.’” Id.
(quoting Ciambriello v. County of Nassau, 292 F.3d 307, 313 (2d Cir. 2002) (citing
Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991))). “Nevertheless, ‘[a]
probationary employee who can be dismissed at will does not have a property interest
in continued employment, and his dismissal does not trigger a right to due process.’”
Watson v. City of Buffalo, 164 F.3d 620 (2d Cir. 1998) (quoting Finley v. Giacobbe, 79
F.3d 1285, 1297-98 (2d Cir.1996)). This is because “property interests are created not
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by the Constitution but by other sources of rules, including state laws, that govern
benefits and entitlements.” Id. (citing Board of Regents v. Roth, 408 U.S. 564, 577
(1972). The Second Circuit has specifically recognized that “[u]nder New York law, a
probationary employee ‘‘has no property rights in his position.’” Id. (quoting Finley, 79
F.3d at 1297 (quoting Meyers v. City of New York, 622 N.Y.S.2d 529, 532 (2d Dep't
1995))). Accordingly, if Plaintiff was a probationary employee when her employment
was terminated, then she had no property interest in such employment to support a
Fourteenth Amendment due process claim. Id. (citing Finley, 79 F.3d at 1298).
Although the Supplemental Proposed SAC does not specifically allege that
Plaintiff was a probationary employment when her employment was terminated on
March 17, 2022, that fact is established in the EEOC Charge, a copy of which Plaintiff
attached as Exhibit A to the Supplemental Proposed SAC (Dkt. 64-1 at 1-10).
Specifically, in the EEOC Charge, Plaintiff claimed that on March 17, 2022, after her
employment was terminated earlier that day, Plaintiff sent an e-mail to Gaff asking to
attend via Zoom a March 18, 2022 Union meeting. In an e-mail sent on March 18,
2022, Gaff denied Plaintiff’s request to attend the Union meeting stating “[i]n
accordance with New York State law, when hired for a permanent position there is a
probationary period. During the probationary period, an employee can be removed from
service without cause.” EEOC Charge, Dkt. 64-1 at 9. Because when considering
whether a complaint states a claim the court is permitted to consider exhibits attached
to a complaint, the court may also consider the EEOC Charge when considering
whether the Supplemental Proposed SAC is futile. See Avon Pension Fund v.
GlaxoSmithKline PLC, 343 Fed.Appx. 671, * 3 n. 2 (2d Cir. Aug.24, 2009) (considering,
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on motion seeking leave to file amended complaint a transcript of testimony not
attached to proposed amended complaint but incorporated by reference). Significantly,
Gaff’s statement regarding probationary employment, as recorded by Plaintiff in the
EEOC Charge, asserts Plaintiff’s status was as a probationary employee when her
employment was terminated on March 17, 2022. Plaintiff thus has failed to plausibly
allege a Fourteenth Amendment due process claim based on a denial of a protected
property interest. Plaintiff’s Supplemental Motion to Amend thus should be DENIED
insofar as Plaintiff seeks to allege against Proposed Defendants in their personal
capacities a denial of a protected liberty interest in violation of the Fourteenth
Amendment Due Process Clause based on an entitlement to a pretermination hearing.
ii. 	Liberty Interest
Plaintiff also seeks to allege against Proposed Defendants in their personal
capacities a deprivation of Fourteenth Amendment due process based on a denial of a
protected liberty interest based on damage to her reputation and professional standing,
impairing Plaintiff’s career path by preventing Plaintiff from obtaining employment,
resulting in a negative impact on Plaintiff’s economic livelihood. Supplemental
Proposed SAC ¶¶ 109-15, 277, 279, 286, 288. Again, despite opposing Plaintiff’s
Supplemental Motion to Amend, Defendants provide no argument in opposition to this
proposed claim.
“[F]or public employees to assert cognizable violations of their liberty interest, the
defamation complained of must occur ‘in the course of the termination of employment.’”
Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 143–44 (2d Cir. 1993) (quoting Paul v.
Davis, 424 U.S. 693, 709 (1976), and citing Easton v. Sundram, 947 F.2d 1011, 1016
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(2d Cir.1991), cert. denied, 504 U.S. 911 (1992), and Neu v. Corcoran, 869 F.2d 662,
667 (2d Cir.), cert. denied, 493 U.S. 816 (1989)). As such, if negative statements to
Plaintiff’s prospective employers were made after the termination of Plaintiff’s
employment, “then that defamation was ‘merely a tort, cognizable at state law, but not a
constitutional deprivation.’” Id. (quoting Neu, 869 F.2d at 667).
Here, the Supplemental Proposed SAC does not contain any allegations that any
negative statements were made by Proposed Defendants to Plaintiff’s prospective
employers. Rather, the relevant allegations of the Supplemental Proposed SAC assert
that since Plaintiff’s employment was terminated, all employment applications that
Plaintiff has completed in attempting to secure employment in the education and library
fields have contained questions asking whether Plaintiff was ever terminated from a
previous job. See, e.g., Supplemental Proposed SAC ¶ 111 (“Because public-sector job
applications routinely inquire about prior terminations, the circumstances surrounding
Plaintiff’s dismissal will remain a permanent and recurring factor in her future
employment opportunities.”). Put another way, Plaintiff is seeking to assert that it is her
own statements to prospective employers that Plaintiff maintains are likely to impede
her ability to secure future employment in the education and library fields. Further,
Plaintiff does not seek to allege that by answering such questions in the affirmative,
Plaintiff would also be required to explain in any negative fashion the circumstances of
the termination of her employment at the Library on March 17, 2022. To the contrary,
Plaintiff’s statement in the EEOC Charge attributed to Gaff is that Plaintiff was
considered to have been terminated during her probationary period “without cause.”
EEOC Charge (Dkt. 64-1) at 9. Moreover, that Gaff’s statement was made in an e-mail
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sent on March 18, 2022 establishes it was not made in the course of terminating
Plaintiff’s employment.13
The Supplemental Proposed SAC thus fails to plausibly allege that Plaintiff
suffered a Fourteenth Amendment due process violation based on a deprivation of a
protected liberty interest in her reputation and professional standing and Plaintiff’s
Supplemental Motion to Amend should be DENIED as to such claim against Proposed
Defendants in their personal capacities.
C. 	Summary
In summary, with regard to Plaintiff’s proposed Title VII claims, Plaintiff’s
Supplemental Motion to Amend is GRANTED as to the proposed Title VII disparate
treatment claim, and the proposed Title VII retaliation claim against Library Defendants,
but should be DENIED as to the proposed Title VII hostile work environment against
Library Defendants, and should be DENIED as to all proposed Title VII claims against
Proposed Defendants.
As for Plaintiff’s proposed § 1983 claims, Plaintiff’s Supplemental Motion to
Amend should be DENIED insofar as Plaintiff seeks to assert any § 1983 claims,
including § 1983 claims based on violations of § 1981, the First Amendment, and the
Fourteenth Amendment, against the Library Defendants as well as against Proposed
Defendants in their official capacities.
With regard to the proposed § 1983 claims against Proposed Defendants in their
personal capacities, Plaintiff’s Supplemental Motion to Amend is GRANTED with regard
to Plaintiff’s proposed § 1981 retaliation claim, and the proposed Fourteenth
13 It is not plausible that Gaff’s statement could be attributed to Proposed Defendants as Plaintiff alleges
Gaff was a Union member and Plaintiff does not allege he held any official Library position.
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Amendment equal protection claim for retaliatory termination of Plaintiff’s employment,
but should be DENIED as to Plaintiff’s proposed § 1981 disparate treatment and hostile
work environment claims, the proposed First Amendment retaliation claim, the proposed
Fourteenth Amendment equal protection claims based on disparate treatment and
selective enforcement, and the proposed Fourteenth Amendment due process claims
for the denial of a protected liberty interest based on an entitlement to a pretermination
hearing, as well as for damage to Plaintiff’s reputation and professional standing.
Plaintiff should be allowed to file a second amended complaint containing only
the claims as permitted by the court in this Report and Recommendation and Decision
and Order.
2. 	Motion to Proceed In Forma Pauperis
In her Motion for IFP Status, Plaintiff moves for permission to proceed in forma
pauperis. Preliminarily, although filed as a motion, Dkt. 70 is a document Plaintiff filed
in support of her Motion for IFP Status and is thus DISMISSED as moot. When Plaintiff
filed the original Complaint to commence this action on February 12, 2024, Plaintiff also
paid the requisite filing fee. See Docket, February 12, 2024 entry noting Plaintiff’s
payment of filing fee. Plaintiff did not then move for leave to proceed IFP, but did move
for appointment of counsel in which Plaintiff explained she was not in possession of
sufficient funds to hire an attorney to represent her in this action. Motion for
Appointment of Counsel (Dkt. 2). At the same time, Plaintiff also filed an Application for
Order Directing Service by U.S. Marshal pursuant to Fed.R.Civ.P. 4(c)(3), explaining the
request was made because Plaintiff no longer resides in New York State and wants to
make sure process was correctly made. Marshal Service Application (Dkt. 3). By Text
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Order entered March 6, 2024 (Dkt. 6), Plaintiff’s Marshal Service Application was
granted with Plaintiff directed to pay the service fee to the U.S. Marshal. By Text Order
entered on March 12, 2024 (Dkt. 7), Plaintiff’s Motion for Appointment of Counsel was
granted, limited to assisting Plaintiff with filing an amended complaint, with E. Peter
Pfaff, Esq., appointed as Plaintiff’s limited pro bono counsel on April 14, 2024. (Dkt.
12). On May 2, 2024, Plaintiff wrote to the undersigned requesting another attorney
with more experience in employment discrimination cases be appointed to represent her
in this action, Dkt. 15, and Mr. Pfaff followed on May 10, 2024 with a motion to withdraw
as Plaintiff’s counsel (Dkt. 16), which was granted by the undersigned on August 8,
2024 (Dkt. 18). The undersigned did not immediately follow through with his intention to
appoint new pro bono counsel for Plaintiff because Plaintiff, by letter dated September
26, 2024 (Dkt. 22), advised the undersigned that she had obtained employment for
which the pay exceeded the eligibility threshold for appointment of pro bono counsel,
and thus new pro bono counsel was not appointed.
On November 25, 2024, Plaintiff filed a motion for permission to proceed IFP
(Dkt. 24) (“Initial IFP Motion”). In an Order filed January 16, 2025 (Dkt. 32) (“January
16, 2025 Order”), the undersigned denied the Initial IFP Motion because Plaintiff had
already paid the filing fee for this action, January 16, 2025 Order at 2, and the financial
affidavit accompanying the motion indicated Plaintiff had monthly income in excess of
$ 5,000, but expenses of only $ 1,435 such that Plaintiff did not qualify for IFP status.
Id. at 3. Now before the court is Plaintiff’s second Motion for IFP Status (Dkt. 69),
support of which Plaintiff argues that since she does not have the funds necessary to
litigate this action. IFP Supporting Document (Dkt. 70). Although the financial affidavit
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accompanying Plaintiff’s Motion for IFP Status indicates Plaintiff may meet the criteria
for IFP Status (Dkt. 69), that does not change the fact that Plaintiff has already paid the
filing fee and, consistent with other determinations by this court, Plaintiff’s request for
IFP status thus is moot. See, e.g., Williams v. Baxter, 2025 WL 2380842, at *1
(W.D.N.Y. Aug. 15, 2025) (denying as moot pro se plaintiff’s motion to proceed in forma
pauperis because the plaintiff had already paid the filing fee); Harrison v. Wolcott, 2020
WL 3000389, at *1 (W.D.N.Y. June 4, 2020) (payment of filing fee after moving for IFP
status rendered the motion moot); Evariste v. Barr, 2019 WL 5694258, at *7 (W.D.N.Y.
Nov. 4, 2019) (“The Motion for Leave to Proceed In Forma Pauperis is denied as moot,
Petitioner having already paid the filing fee.”). Accordingly, Plaintiff’s Motion for IFP
Status is DENIED.
3. 	Discovery Motions
Pending before the court are numerous motions filed by Plaintiff seeking to
compel discovery, preclude discovery, and amendment of the Scheduling Order with
regard to discovery. In particular, on June 3, 2025, Plaintiff filed the Motion to Extend
Deadlines (Dkt. 53), and Motion to Admit Evidence (Dkt. 54). On July 7, 2025, Plaintiff
filed Plaintiff’s Motion to Compel (Dkt. 62), and Motion to Modify Scheduling Order (Dkt.
63). On August 26, 2025, Plaintiff filed the Motion to Compel Initial Disclosures (Dkt.
72), and Motion to Correct the Caption (Dkt. 73). On September 2, 2025, Plaintiff filed
the Motion to Reopen Initial Disclosures (Dkt. 75). On September 25, 2025, Plaintiff
filed the Motion for Protective Order (Dkt. 79).
In her Motion to Extend Deadlines (Dkt. 53), Plaintiff seeks an extension of time
to complete discovery pursuant to Fed.R.Civ.P. 26 (“Rule 26”) (initial disclosures), and
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34 (“Rule 34”) (document demands), explaining the extension is necessary to permit the
completion of such discovery prior to the initial mediation conference scheduled for
September 10, 2025. Motion to Extend Deadlines at 3 ¶ 9, 17-18. Plaintiff attributes
Defendants’ failure to timely comply with Rule 26 discovery, and to reply to Rule 34
document requests to Plaintiff’s failure to sign such discovery requests, but after
Plaintiff, with Defendants’ consent, resent the discovery requests, Defendants denied
ever receiving the requests for which, to date, Defendants have not provided responses.
Id. at 3-6 ¶¶ 9-17. In her Motion to Admit Evidence (Dkt. 54), Plaintiff seeks a court
order that two audio recordings in Plaintiff’s possession, including at the February 17,
2022 counseling meeting and at the February 25, 2022 meeting between Plaintiff and
Fachko (“the audio recordings”), are admissible at mediation between the parties,
Motion to Admit Evidence at 8, as well as admissible at trial. Id. at 2-4, 9. Defendants
do not oppose these motions other than to argue that whether the two audio recordings
are admissible at trial is akin to a motion in limine and, thus, premature. Defendants’
Response to Extension and Admission of Evidence (Dkt. 58), at 2. Plaintiff’s Motion to
Admit Evidence is thus moot insofar as Defendants agree that Plaintiff may rely on the
audio recordings at mediation. Defendants also suggest extending the deadline for
initial disclosures from February 13, 2025 to July 30, 2025, and the deadline for Plaintiff
to initiate discovery from March 3, 2025 to July 30, 2025. Id. Accordingly, Plaintiff’s
Motion to Extend Deadlines is GRANTED. An amended scheduling order will issue
after the District Judge rules on any objections and the further amended complaint is
filed.
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With respect to Plaintiff’s Motion to Admit Evidence, however, Plaintiff replies by
specifying that she “seeks to confirm the status of the operative complaint, the proper
identification of defendants, the precise legal claims currently before the Court, the
procedural posture affecting the parties’ obligations and remedies, and the scope and
sufficiency of discovery responses to date,” Plaintiff’s Reply Re: Motions to Admit and
Extend at 2, and provides pages of argument in support of these assertions. Id. a 2-21.
The court, however, will not address these arguments because they have not been
properly raised in a motion to which Defendants are able to respond, and, further, the
court’s discussion regarding Plaintiff’s Supplemental Motion to Amend addresses much
of what Plaintiff seeks.
Plaintiff also argues in further support of her Motion to Admit Evidence that the
motion is not premature insofar as she seeks a determination that the audio recordings
are admissible at trial. Plaintiff’s Reply Re: Motions to Admit and Extend at 21-22.
Plaintiff asserts that there is no basis to Defendants’ opposition to the court determining
the audio recordings are admissible at trial because Plaintiff is prepared to authenticate
at trial the audio recordings which were made within the context of “routine workplace
interactions and reflect conduct directly at issue in this litigation.” Id. at 21-22. As
Defendants argue, however, whether the audio recordings can be admitted at trial is a
matter for a motion in limine to be addressed after trial is scheduled. See Jones v.
Harris, 665 F. Supp. 2d 384, 404 (S.D.N.Y. 2009) (“In limine motions deal with
evidentiary matters and are not to be filed until the eve of trial.”).
Accordingly, Plaintiff’s Motion to Admit Evidence is DISMISSED as moot with
regard to Plaintiff’s request to use the audio recordings at mediation, and is DENIED
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without prejudice as to her request that the court determine the audio recordings are
admissible at trial as premature as that issue is properly raised in a pretrial motion in
limine.
In her Motion to Compel (Dkt. 62), Plaintiff seeks an order directing Defendants
provide complete and compliant Rule 26 disclosures, Motion to Compel at 6-8, and
respond to Plaintiff’s request for production of documents, id., as well as granting
sanctions pursuant to Fed.R.Civ.P. 37 (“Rule 37”) against Defendants for obstructing
Plaintiff’s ability to prepare for mediation and to pursue filing a further amended
complaint. Id. at 7-9. In her Motion to Modify Scheduling Order (Dkt. 63), Plaintiff seeks
to modify the January 16, 2025 Scheduling Order (Dkt. 34) to extend the deadlines for
adding Defendants and serving and receiving discovery requests pursuant to Rule 26
and 34. In opposition to these motions, Defendants argue they timely served Plaintiff
with their initial disclosures pursuant to Rule 26(a)(1), which, other than relevant
insurance policies, does not require the actual production of documents but only a
description of the responsive documents by category and locations, Defendants’ First
Opposition at 2, and that a copy of the relevant insurance policy was provided to
Plaintiff on August 8, 2025, id. at 2 n. 2. Defendants also argue that because Plaintiff’s
document requests were unsigned and thus did not comply with Rule 34, and despite
Plaintiff’s pro se status, Defendants were not required to respond to such requests. Id.
at 3-4. According to Defendants, Plaintiff’s request for sanctions is unwarranted
because until the instant motions were filed on July 7, 2025, Plaintiff had not, since June
3, 2025, made any further effort to obtain responses to Plaintiff’s outstanding discovery
requests. Id. at 4. Finally, Defendants oppose any extension of the Scheduling Order
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to permit Plaintiff to join additional parties as Defendants and obtain responses to
discovery requests. Id. at 4-5. In further support of these motions, Plaintiff maintains it
is disingenuous of Defendants to simply describe documents responsive to Rule 26
disclosure because it is unrealistic to expect Plaintiff, who now lives in North Carolina, to
be able to travel to Buffalo to review the documents, Plaintiff’s Reply (Dkt. 68) at 2-3,
that although Plaintiff’s requests for Rule 34 discovery were unsigned and thus did not
comply with Rule 34, Plaintiff acted in good faith, id. at 4-5, and the Scheduling Order
needs to be amended to permit Plaintiff to obtain discovery in time to prepare for court-
ordered mediation scheduled for September 10, 2025, as well as to file a further
amended complaint. Id. at 5-8.
It is basic that “Magistrate judges are ‘afforded broad discretion in resolving
discovery disputes and reversal is appropriate only if their discretion is abused.’” Lutz v.
Kaleida Health, 2023 WL 6617737, at *1 (W.D.N.Y. Oct. 11, 2023) (quoting McNamee
v. Clemens, 2014 WL 1338720, at *2 (E.D.N.Y. Apr. 2, 2014)); Popat v. Levy, 2023 WL
4285276, at *2 (W.D.N.Y. June 30, 2023) (the review for clear error “standard ‘affords
magistrate judges ‘broad discretion in resolving discovery disputes.’’” (quoting New Falls
Corp. v. Soni, 2023 WL 3877956, at *1 (E.D.N.Y. June 8, 2023) (quoting Duffy v. Ill.
Tool Works, Inc., 2022 WL 1810732, at *1 (E.D.N.Y. June 2, 2022))). In the instant
case, Plaintiff’s Motion to Compel and Motion to Modify Scheduling Order are moot for
the following reasons. With respect to Plaintiff’s request for initial disclosure pursuant to
Rule 26, as Defendants explain, Defendant were not required to provide Plaintiff with
copies of all documents responsive to such requests, but only to describe such
documents as well as their locations, and Defendants did provide a copy of the relevant
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insurance policy. Further, Plaintiff does not dispute that her Rule 34 discovery requests
were procedurally deficient. Nevertheless, Plaintiff’s filing of a further amended
complaint as permitted by the court’s determination regarding Plaintiff’s Supplemental
Motion to Amend clarifies what parties and issues may proceed before the court and
removes that concern from Plaintiff’s Motion to Compel. Further, the court has already
determined that once Plaintiff files her further amended complaint in accordance with
this combined Report and Recommendation and Decision and Order, subject to any
modifications by the District Judge, a further scheduling order should issue. Given there
has been much confusion regarding what issues are actually before the court, Plaintiff’s
request for new deadlines for discovery is GRANTED. Plaintiff is reminded that any
discovery requests must comply with the applicable Federal Rules of Civil Procedure.
Plaintiff’s Motions to Compel and to Modify Scheduling Order are otherwise
DISMISSED as moot.
Plaintiff’s Motion to Compel Initial Disclosures (Dkt. 72), Motion to Correct the
Caption (Dkt. 73), and Motion to Reopen Initial Disclosures (Dkt. 75), essentially seeks
the same relief as her Motions to Compel (Dkt. 62), and to Modify Scheduling Order
(Dkt. 63). They are, accordingly, DENIED as duplicative of Plaintiff’s earlier motions.
Discussion, supra, at 69-72.
In her Motion for Protective Order (Dkt. 79), Plaintiff seeks a court order that she
does not have to travel to Buffalo to be deposed by Defendants on November 13, 2025,
and, instead, directing Defendants to depose Plaintiff by written questions pursuant to
Fed.R.Civ.P. 31 (“Rule 31”). In opposition, Defendants argue that it was Plaintiff’s
choice to move to North Carolina while her action was pending in the Western District of
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New York, Opposition to Protective Order (Dkt. 83) at 2-3. Plaintiff replies that in an
earlier action commenced by Plaintiff, i.e., Watson v. New York State United Teachers
Union Local Librarians Association of the Buffalo and Erie County Public Library, 23-
CV-356-JLS-LGF (W.D.N.Y.), Plaintiff was granted permission to proceed IFP, thus
establishing that Plaintiff is indigent and unable to travel to Buffalo to attend an in-
person deposition. Reply in Support of Protective Order (Dkt. 84) at 1-2.
The use of oral depositions is often crucial to an attorney's assessment of the
opposing party's case and to preparation for a trial. That is particularly true when,
as here, the key issues involve a fairly tangled set of facts that are not
susceptible to proof by documentation, and there are potentially significant
questions of credibility. Moreover, it has often, and appropriately, been observed
that depositions on written questions are a generally inadequate substitute for an
oral deposition since there is no meaningful possibility of follow-up questioning
and the inquiring party is denied any opportunity to assess the demeanor, and
thus the credibility, of the witness in responding to [a] specific question.
Bromfield v. Bronx Lebanon Special Care Ctr., Inc. al., 2021 WL 5847404, at *5
(S.D.N.Y. Dec. 9, 2021) (quoting Mill-Run Tours, Inc. v. Khoshoggi, 124 F.R.D. 547,
549–50 (S.D.N.Y. 1989), and citing cases including, inter alia, Zito v. Leasecomm Corp.,
233 F.R.D. 395, 397 (S.D.N.Y. 2006) (noting that “depositions upon written questions
are disfavored” and are “rarely an adequate substitute for oral depositions both because
it is difficult to pose follow-up questions and because the involvement of counsel in the
drafting process prevents the spontaneity of direct interrogation.”).
Significantly, employment discrimination like the instant case typically involve issues of
fact for which credibility determinations are critical. In such circumstances, requiring
Defendants to depose Plaintiff by written questions is not a satisfactory resolution to
Plaintiff’s financial difficulties. Accordingly, Plaintiff’s Motion for Protective Order is
DENIED.
CONCLUSION
Based on the foregoing, Plaintiff’s Motion to Extend Deadlines (Dkt. 53) is
GRANTED; Plaintiff’s Motion to Admit Evidence (Dkt. 54) is DISMISSED as moot in part
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and DENIED in part without prejudice; Plaintiff’s Motion to Compel (Dkt. 62) is
DISMISSED as moot; Plaintif’s Motion to Modify Scheduling Order (Dkt. 63) is
GRANTED in part and DISMISSED as moot in part; Plaintiff’s Supplemental Motion to
Amend (Dkt. 64) is GRANTED in part and should be DENIED in part; Plaintiff’s Motion
for IFP Status (Dkt. 69) is DENIED; Dkt. 70, although denominated as a motion, is a
supporting document for Plaintiff’s Motion for IFP Status and is DISMISSED as moot;
Plaintiff’s Motion of Compel Initial Disclosures (Dkt. 72) is DENIED; Plaintiff’s Motion to
Correct the Caption (Dkt. 73) is DISMISSED as moot; Plaintiffs’ Motion to Reopen Initial
Disclosures (Dkt. 75) is DISMISSED as moot; and Plaintiff’s Motion for a Protective
Order (Dkt. 79) is DENIED.
SO ORDERED, as to Plaintiff’s Supplemental Motion
to Amend insofar as the motion is granted, Plaintiff’s
Motion Extend Deadlines, Plaintiff’s Motion to Admit
Evidence, Plaintiff’s Motion to Compel, Plaintiff’s
Motion to Modify Scheduling Order, Plaintiff’s Motion
for IFP Status, the dismissal of the supporting
document for Plaintiff’s Motion for IFP Status,
Plaintiff’s Motion to Compel Initial Disclosures,
Plaintiff’s Motion to Correct the Caption, Plaintiffs’
Motion to Reopen Initial Disclosures, and
Plaintiff’s Motion for a Protective Order.
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Respectfully submitted, insofar as it is recommended
that Plaintiff’s Supplemental Motion to Amend be
denied,
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: 	November 19, 2025
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Buffalo, New York
Any appeal of this Decision and Order must be taken by filing written objection
with the Clerk of Court not later than 14 days after service of this Decision and
Order in accordance with Fed.R.Civ.P. 72(a).
ORDERED that this Report and Recommendation be filed with the Clerk of the
Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the
Clerk of the Court within fourteen (14) days of service of this Report and
Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(d) of
the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to request an
extension of such time waives the right to appeal the District Court's Order.
Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human
Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d
Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the Plaintiff and
to the attorneys for the Defendants.
SO ORDERED.
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: 	November 19, 2025
Buffalo, New York
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