Terry v. YWCA of Northeastern New York

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
ELIZABETH MARIE TERRY,
Plaintiff,
v.
No. 1:24-CV-1492
YWCA OF NORTHEASTERN NEW YORK, 	(AMN/PJE)
Defendant.
_____________________________________
APPEARANCES:
Elizabeth Marie Terry
730 Plymouth Avenue, Apt. 3
Buffalo, New York 14213
Plaintiff pro se
PAUL J. EVANGELISTA
U.S. MAGISTRATE JUDGE
REPORT-RECOMMENDATION AND ORDER1
I. Background
Plaintiff commenced this action on December 9, 2024, by filing a complaint and an
application for leave to proceed in forma pauperis (“IFP”). 	See Dkt. Nos. 1-2, 4. 	On
August 26, 2025, the undersigned granted plaintiff’s IFP application. See Dkt. No. 7. On
review of the original complaint, the undersigned interpreted it as seeking to allege
violations of the (1) Americans with Disabilities Act (“ADA”); (2) Fair Housing Act (“FHS”);
(3) New York State Human Rights Law (“NYSHRL”); and (4) Fourteenth Amendment. See
generally id. 	The undersigned recommended that plaintiff’s complaint be dismissed its
1 This matter was referred to the undersigned for Report-Recommendation and Order pursuant to 28 U.S.C.
§ 636(b) and N.D.N.Y. L.R. 72.3(d).
Case 1:24-cv-01492-AMN-PJE Document 16 Filed 04/28/26 Page 1 of 15

2
entirety without prejudice and with leave to amend for failure to satisfy the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure, ADA, FHA, and NYSHRL,
as well as for failing to establish that the YWCA of Northeastern New York (“YWCA”) was
acting under the color of state law.2 	See generally id. 	In recommending dismissal of
plaintiff’s ADA and NYSHRL disability discrimination claims, the undersigned explained
that plaintiff had not demonstrated that (1) she received a right-to-sue letter from the
EEOC prior to commencing suit, (2) her suit was timely, (3) the YWCA is a covered entity
such that the organization must comply with the ADA, and (4) the YWCA took an averse
employment action based on her disability. 	See id. at 9-10, 13-14. 	In recommending
dismissal of plaintiff’s FHA and NYSHRL housing discrimination claims, the undersigned
explained that plaintiff failed to “establish either sexual harassment creating a hostile
living environment or quid-pro-quo sexual harassment” and that plaintiff “[did] not identify
[her] membership in a covered protected class nor allege that she was sexually harassed
due to this membership.” 	Id. at 16. 	With regards to plaintiff’s Fourteenth Amendment
claim, the undersigned explained that plaintiff did not establish that the YWCA was a state
actor or acting under the color of state law, and even if she could establish such, plaintiff
did not raise either a due process or equal protection claim alleging the YWCA’s policies
violated 	her 	constitutional 	rights. 	See 	id. 	at 	19-21. 	The 	undersigned 	further
recommended that if plaintiff were permitted to file an amended complaint, any amended
pleading “[could not] incorporate a prior pleading by reference,” “supersede[d] and
replace[d] a prior pleading in its entirety,” “may only proceed against those defendants
and claims dismissed by this Court without prejudice and with leave to amend,” and must
2 Hereinafter, “Fed. R. Civ. P.”
Case 1:24-cv-01492-AMN-PJE Document 16 Filed 04/28/26 Page 2 of 15

3
fully comply with Rules 8(a) and 10(b) of the Federal Rules of Civil Procedure. Id. at 22,
n.16. 	On September 30, 2025, the Court adopted the August 26, 2025, Report-
Recommendation & Order in its entirety. See Dkt. No. 10. On October 30, 2025, plaintiff
filed an amended complaint.3 	See Dkt. No. 14. 	Presently before the undersigned is
review of plaintiff’s amended complaint pursuant to 42 U.S.C. § 1915.4
II. Review of Amended Complaint
A. Amended Complaint
Plaintiff’s amended complaint is similar to the original complaint.5 See Dkt. Nos.
1, 14, 14-3, 14-5. 	In the amended complaint, plaintiff repeats her allegation that the
“YWCA used to enforce a policy against hiring their residents, because the administrators
considered their residents to have some kind of disability if they were renting a room in
the [YWCA’s] main residence for domestic violence victims.” 	Dkt. No. 14 at 4. 	Plaintiff
alleges that she “temporarily resided at an emergency domestic violence shelter operated
by the YWCA . . . beginning on approximately January 01, 2021; and was not given any
3 The undersigned notes that plaintiff filed two documents labeled “Amended Complaint” and “Second
Amended Complaint.” Dkt. Nos. 12, 14. 	The amended complaint and second amended complaint are
identical in substance. See id. The only difference between the two filings is that the second amended
complaint contains several additional pages consisting of exhibit labels and a second copy of plaintiff’s
statement of facts. Compare Dkt. No. 12, with Dkt. No. 14. The undersigned shall refer to plaintiff’s second
amended complaint as the amended complaint and consider it the operative pleading.
4 Section 1915(e) directs that when a plaintiff is allowed to proceed in forma pauperis, “the court shall
dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii)
fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who
is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). Thus, it is a court’s responsibility to determine
that a plaintiff may properly maintain his or her complaint before permitting him or her to proceed with his
or her action.
5 As the amended complaint repeats many of the same facts as the original complaint, the undersigned
will not repeat them here except where necessary to review the merits of the claims set forth in the amended
complaint. Familiarity with the original complaint; the August 26, 2025, Report-Recommendation & Order;
and the September 30, 2025, Order on Report & Recommendation is presumed. See Dkt. Nos. 1, 7, 10.
For further details regarding the facts and claims underlying this action, reference is made to the original
complaint; the August 26, 2025, Report-Recommendation & Order; and the September 30, 2025, Order on
Report & Recommendation. See id.
Case 1:24-cv-01492-AMN-PJE Document 16 Filed 04/28/26 Page 3 of 15

4
consideration for employment with YWCA.” Id. at 6. Plaintiff states that (1) YWCA case
managers suggested that she move to another women’s shelter until there was space
available in the main YWCA building starting in April 2021, and (2) she applied for
“additional work opportunities with the YWCA when [she] moved into the main building,
and was told by numerous YWCA employees that they have a policy against hiring their
residents.” 	Id. 	Plaintiff alleges that she “applied for more than a couple of entry level
childcare positions or administrative career opportunities with the [YWCA],” but was not
hired by the YWCA. Id. Plaintiff further alleges that the YWCA administrators “considered
their residents to have some kind of disability if” the resident was renting a room
designated for domestic violence victims. Id. She claims that “although there existed a
policy against [hiring] residents who rented rooms at the YWCA, a large number of staff
of the YWCA . . . have a similar rental arrangement in which they rent a room at a YWCA
house which is located next to the main building.” 	Id. 	Plaintiff states that in an email
dated October 16, 2024, Tami Flanders, the YWCA housing director, admitted to her that
“there are certain positions that residents are not considered for because it would put
them in a position of being able to access private personal information about other
residents and that would be inappropriate.” Id.6
B. Disability Discrimination: ADA and NYSHRL
1. Timeliness and Prelitigation Requirements
As discussed in the August 26, 2025, Report-Recommendation & Order, a plaintiff
alleging disability discrimination under the ADA must file an EEOC claim within 180 days
of the alleged discriminatory action if no claim was filed with a state or local agency, or
6 Plaintiff attaches a copy of this email as Exhibit G. See Dkt. No. 14-3 at 2.
Case 1:24-cv-01492-AMN-PJE Document 16 Filed 04/28/26 Page 4 of 15

5
within 300 days of the alleged discriminatory action if the plaintiff filed a claim with a state
or local agency. 	See Constantine v. U-Haul Int’l Inc., No. 1:15-CV-1204 (MAD/CFH),
2015 WL 13744409, at *1 (N.D.N.Y. Oct. 9, 2015), report and recommendation adopted,
No. 1:15-CV-1204 (MAD/CFH), 2015 WL 7272211 (N.D.N.Y. Nov. 16, 2015) (quoting
McNight v. Dormitory Auth. of State of N.Y., 995 F. Supp. 70, 76 (N.D.N.Y. 1998) (quoting
42 U.S.C. § 2000e-5(e))).7 “In New York, however, the 300-day limit applies automatically
given the relationship between the EEOC and New York State Division of Human Rights.”
Gunning v. New York State Just. Ctr. for Prot. of People With Special Needs, No. 1:19-
CV-1446 (GLS/CFH) , 2020 WL 5203673, at *3 (N.D.N.Y. Sept. 1, 2020) (citing Shums v.
N.Y.C. Dep't of Educ., No. 04-CV-4589, 2006 WL 8437471, at *5 n.2 (E.D.N.Y. Apr. 3,
2006)); Crosby v. McDonald’s of Guilderland, LLC, No. 1:17-CV-1160 (MAD/DEP), 2018
WL 2077884, 	at 	*3 	(N.D.N.Y. 	May 	2, 	2018) 	(first 	quoting 	Tewksbury 	v. 	Ottaway
Newspapers, 192 F.3d 322, 327 (2d Cir. 1999), then quoting Smiley v. Golub Corp., No.
1:14-CV-0641 (GTS/RFT), 2015 WL 566323, at *3 (N.D.N.Y. Feb. 10, 2015)) (“[U]nder a
work-sharing agreement between the New York State Department of Human Rights
(“NYSDHR”) and the EEOC, an EEOC charge is deemed to have been filed initially’ with
the NYSDHR . . . Accordingly, a complaint must be filed with the EEOC within 300 days
of the alleged discriminatory act.”) (internal quotation marks omitted).
“Thus, only after charges are brought before the EEOC and a right-to-sue letter is
obtained may an aggrieved party bring an action for relief in federal court.” Constantine,
2015 WL 13744409, at *1. (quoting Mazzeo-Unum v. Dep’t of Transp., No. 1:12-CV-1856,
7 The Court has provided plaintiff with copies of the unpublished decisions cited within this Report-
Recommendation & Order except for those the Court already provided her when it sent her the August 26,
2025, Report-Recommendation & Order.
Case 1:24-cv-01492-AMN-PJE Document 16 Filed 04/28/26 Page 5 of 15

6
2013 WL 2636159, at *2 (N.D.N.Y. June 12, 2013) (quoting 42 U.S.C. § 2000e-5(e)))
(internal quotation marks omitted). “A right to sue letter is also a statutory prerequisite to
suit under the ADA.” 	Id. (additional citations omitted). 	Accordingly, a plaintiff must
demonstrate that they satisfied these “threshold requirements” to establish an ADA claim.
Id. at *2; see also Redlich v. Albany Law Sch. of Union Univ., 899 F. Supp. 100, 104
(N.D.N.Y. Oct. 3, 1995) (citing Bent v. Mount Sinai Med. Ctr., 882 F. Supp. 353, 355
(S.D.N.Y. 1995)) (“Thus, absent [the] plaintiff’s filing of a complaint with the EEOC and
[her] receipt of a right to sue letter, the Court lacks subject matter jurisdiction to entertain
[the] plaintiff’s ADA claim.”) (internal quotation marks and additional citations omitted).
“A plaintiff must bring the federal court action within ninety days of receiving a right-
to-sue letter.” 	Johnson v. Frida’s Bakery Inc., No. 5:19-CV-1613 (DNH/CFH), 2020 WL
1904061, at *4 (N.D.N.Y. Apr. 17, 2020) (citing Cornwell v. Robinson, 23 F.3d 694, 706
(2d Cir. 1994) (“[A] suit must be commenced not more than 90 days after receipt of the
right-to-sue letter”)). “It is well settled that if a plaintiff does not file suit within 90 days of
receiving 	the 	EEOC’s 	right-to-sue 	letter, 	the 	action 	must 	be 	dismissed, 	unless
extraordinary circumstances have been established.” Id. (quoting Ernestine Banks v. Avis
Budget Grp., 1:16-CV-1320 (MAD/DJS), 2018 WL 922147, at *2 (N.D.N.Y. Feb. 15, 2018)
(citing Skibinski v. Zevnik, Horton, Guibord, McGovern, Palmer & Fognani, LLP, 57 F.
App’x 900, 901 (2d Cir. 2003) (summary order))). 	“The filing deadline for the formal
complaint is not jurisdictional and, like a statute of limitations, is subject to equitable
tolling[, which] is only appropriate in rare and exceptional circumstances.” 	Id. (quoting
Ernestine Banks, 2018 WL 922147, at *2 (quoting Zerilli-Edelglass v. N.Y. City Transit
Auth., 333 F.3d 74, 80 (2d Cir. 2003))) (internal quotation marks and citations omitted).
Case 1:24-cv-01492-AMN-PJE Document 16 Filed 04/28/26 Page 6 of 15

7
Here, plaintiff has established that she was issued an EEOC right to sue letter on
September 9, 2024, and that she commenced this action within 90 days of receiving the
right to sue letter. 	See Dkt. Nos. 1, 14-1 at 2-3. 	However, as with plaintiff’s original
complaint “it is unclear whether this federal action [is] timely.” Cao-Bossa v. Pulcher, No.
1:18-CV-1009 (LEK/CFH), 2018 WL 5839692, at *3 (N.D.N.Y. Nov. 8, 2018), report and
recommendation adopted as modified, No. 1:18-CV-1009 (LEK/CFH), 2019 WL 502130
(N.D.N.Y. Feb. 8, 2019). 	Plaintiff’s amended complaint, as written, fails to allege a date
on which an adverse action took place or the date upon which the alleged discriminatory
conduct ceased. See generally Dkt. No. 14; see also Constantine, 2015 WL 13744409,
at *1 (quoting McNight, 995 F. Supp. at 76 (quoting 42 U.S.C. § 2000e-5(e)); Crosby,
2018 WL 2077884, at *3. 	Plaintiff states that she (1) began residing at a YWCA facility
on or about January 1, 2021; (2) filed an EEOC complaint on December 11, 2023; and
(3) received an EEOC right to sue letter on September 9, 2024. See Dkt. Nos. 6, 14 at
6, 14-1 at 2-3. As stated above, plaintiff also alleges that she applied for “more than a
couple” of employment opportunities with the YWCA, but was rejected due to her
purported disability(ies). 	Dkt. No. 14 at 6. 	Plaintiff further asserts that the YWCA
administrators considered all residents who were domestic violence victims to have a
disability. See id.
Plaintiff does not state when she applied for or was rejected from any job with the
YWCA. 	See generally Dkt. No. 14. 	Similarly, plaintiff does not state which YWCA
administrators considered all domestic violence residents to be disabled. 	See id.
Moreover, plaintiff attaches an email from the YWCA housing director acknowledging that
“[t]here was a time when [the YWCA] policy was that [they] did not hire residents.” Dkt.
Case 1:24-cv-01492-AMN-PJE Document 16 Filed 04/28/26 Page 7 of 15

8
No. 14-3. 	The email explains that the YWCA policy forbidding employment of YWCA
residents “has clearly changed as there are a number of residents employed [by the
YWCA]” and plaintiff “had the same opportunity as the others to apply for the positions
[the YWCA] let all residents know were open.” Id. Yet, this email does not establish that
the YWCA had a policy of forbidding employment of YWCA residents with disabilities at
any point in time, or when that policy stopped. This email also does not demonstrate that
the YWCA had an active policy of refusing to hire residents with disabilities while plaintiff
was a YWCA resident.
Without this information the undersigned cannot determine whether plaintiff’s
December 	11, 	2023, 	EEOC 	complaint 	was 	filed 	within 	300 	days 	of 	any 	alleged
discriminatory action. 	See Constantine, 2015 WL 13744409, at *2; Gunning, 2020 WL
5203673, at *3. 	Accordingly, the undersigned concludes that plaintiff has failed to
demonstrate she satisfied the prelitigation requirements necessary to proceed on her
ADA disability discrimination claim before this Court. 	See Constantine, 2015 WL
13744409, at *2 (first citing Cornwell, 23 F.3d at 706, then quoting Ernestine Banks, 2018
WL 922147, at *2). 	As plaintiff was previously advised of the information necessary to
satisfy the prelitigation requirements of an ADA disability discrimination claim, afforded an
opportunity to amend, and upon amendment, failed to provide the information necessary
to establish the timeliness of her claim, the undersigned recommends dismissing
plaintiff’s ADA discrimination claim with prejudice and without leave to amend. 	See
Horton v. Schenectady Cnty., No. 8:21-CV-0983 (LEK/CFH), 2023 WL 5777530, at *6
(N.D.N.Y. July 17, 2023), report and recommendation adopted, No. 8:21-CV-0983
(LEK/CFH), 2023 WL 5604055 (N.D.N.Y. Aug. 30, 2023) (“As plaintiff was previously
Case 1:24-cv-01492-AMN-PJE Document 16 Filed 04/28/26 Page 8 of 15

9
afforded an opportunity to amend his complaint, it is recommended that he not be afforded
an additional opportunity to do so”) (citation omitted); McFadden v. Lombardo, No. 9:19-
CV-0803 (GTS/TWD), 2019 WL 4736217, at *6-7 (N.D.N.Y. Sept. 27, 2019) (“[A]n
opportunity to amend is not required where the plaintiff has already been afforded the
opportunity to amend . . . This rule applies even to pro se plaintiffs.”).
2. Merits
Assuming 	arguendo 	that 	plaintiff 	satisfied 	all 	the 	prelitigation 	requirements
discussed above, her amended complaint still fails to state a claim for disability
discrimination under the ADA or NYSHRL. 	As stated in the August 26, 2025, Report-
Recommendation & Order, the ADA specifies that “[n]o covered entity shall discriminate
against a qualified individual on the basis of disability in regard to job application
procedures, 	the 	hiring, 	advancement, 	or 	discharge 	of 	employees, 	employee
compensation, job training, and other terms, conditions, and privileges of employment.”
42 U.S.C. § 12112(a). The ADA prohibits a “covered entity” from discriminating against
“a qualified individual on the basis of disability[.]”8 42 U.S.C. § 12112(a). “‘[C]overed
entit[ies]’ include, among other kinds of institutions, ‘employer[s].’” Mirabal v. Alumaline,
Inc., No. 21-CV-5356 (ENV/SJB), 2023 WL 8183324, at *1 (E.D.N.Y. Nov. 27, 2023)
(quoting 42 U.S.C. § 12111(2)). 	“And an ‘employer’ is defined as ‘a person engaged in
an industry affecting commerce who has 15 or more employees for each working day in
each of 20 or more calendar weeks in the current or preceding calendar year[.]’” Id.
8 The ADA defines a “disability” as “a physical or mental impairment that substantially limits one or more of
the major life activities of [an] individual.” 42 U.S.C. § 12102(1). “[M]ajor life activities include, but are not
limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing,
lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and
working.” Id. § 12102(2)(A).
Case 1:24-cv-01492-AMN-PJE Document 16 Filed 04/28/26 Page 9 of 15

10
(quoting 42 U.S.C. § 12111(5)(A)). The “term ‘discriminate against a qualified individual
on the basis of disability’ includes” “limiting, segregating, or classifying a job applicant or
employee in a way that adversely affects the opportunities or status of such applicant or
employee because of the disability of such applicant or employee.” 	42 U.S.C. §
12112(b)(1). Similarly, the New York State Human Rights Law (“NYSHRL”) provides that
[i]t shall be an unlawful discriminatory practice . . . [f]or an employer . . .
because of an individual’s . . . disability, . . . to refuse to hire or employ or
to bar or to discharge from employment such individual or to discriminate
against such individual in compensation or in terms, conditions or privileges
of employment.
N.Y. Exec. Law § 296(1)(a).
To establish a prima facie claim of disability discrimination for failure to hire
under the ADA, a plaintiff must demonstrate: (1) the employer is subject to
the ADA; (2) the plaintiff is disabled within the meaning of the ADA or
perceived to be so by her employer; (3) she was otherwise qualified to
perform the essential functions of the job with or without reasonable
accommodation; (4) she suffered an adverse employment action; and (5)
the adverse action was imposed because of her disability.9
Scalercio-Isenberg v. Morgan Stanley Servs. Grp. Inc., No. 19-CV-6034 (JPO), 2020 WL
4547317, at *3 (S.D.N.Y. Aug. 6, 2020) (citing Davis v. N.Y.C. Dep’t of Educ., 804 F.3d
231, 235 (2d Cir. 2015) (per curiam)). “[T]he evidence necessary for the plaintiff to satisfy
this initial burden is ‘minimal’ and ‘de minimis[.]’” Milner-Koonce v. Albany City Sch. Dist.,
9 The NYSHRL defines “disability” as:
(a) a physical, mental or medical impairment resulting from anatomical, physiological,
genetic or neurological conditions which prevents the exercise of a normal bodily function
or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b)
a record of such an impairment or (c) a condition regarded by others as such an
impairment, provided, however, that in all provisions of this article dealing with employment,
the term shall be limited to disabilities which, upon the provision of reasonable
accommodations, do not prevent the complainant from performing in a reasonable manner
the activities involved in the job or occupation sought or held.
Pitter v. Target Corp., No. 1:20-CV-0183 (MAD/CFH), 2020 WL 8474858, at *10-11 (N.D.N.Y. Sept. 1, 2020),
report and recommendation adopted, No. 1:20-CV-0183 (MAD/CFH), 2020 WL 7767629 (N.D.N.Y. Dec. 30,
2020) (quoting N.Y. Exec. Law §§ 292(21)(a)-(c)).
Case 1:24-cv-01492-AMN-PJE Document 16 Filed 04/28/26 Page 10 of 15

11
No. 1:21-CV-1271 (LEK/CFH), 2022 WL 1500995, at *6 (N.D.N.Y. May 12, 2022), report
and recommendation adopted as modified, No. 1:21-CV-1271 (LEK/CFH), 2022 WL
2339443 (N.D.N.Y. June 29, 2022) (quoting Zimmermann v. Assocs. First Capital Corp.,
251 F.3d 376, 381 (2d Cir. 2001) (citations omitted)).
Here, even affording plaintiff due solicitude, she has not raised a prima facie claim
for disability discrimination based on failure to hire for multiple reasons. 	See Scalercio-
Isenberg, 2020 WL 4547317, at *3. 	First, plaintiff has not alleged or demonstrated that
the YWCA is a covered entity within the meaning of the ADA.10 See generally Dkt. No.
14; Mirabal, 2023 WL 8183324, at *1.
Second, plaintiff has not adequately alleged that the YWCA had a policy of refusing
to hire disabled individuals for full-time employment and that she was not hired by the
YWCA as a result of this policy. See Dkt. No. 14 at 6. As stated above, plaintiff’s amended
complaint alleges that she “temporarily resided at an emergency domestic violence
shelter operated by the YWCA,” the YWCA considered all tenants who were domestic
violence victims “to have some kind of disability,” she “applied for more than a couple of
entry level childcare positions or administrative career opportunities,” and “there existed
a policy against [hiring] residents who rented rooms at the YWCA.” 	Dkt. No. 14 at 6.
Reading the amended complaint liberally, and affording plaintiff due solicitude, plaintiff
appears to be alleging that the YWCA refused to hire her because she temporarily resided
at 	a 	YWCA 	shelter 	for 	domestic 	violence 	victims, 	and 	because 	she 	previously
experienced some form of domestic violence, the YWCA considered her disabled. 	See
id. However, this amounts to a conclusory allegation. As with plaintiff’s original complaint,
10 The undersigned notes that plaintiff may not have access to the information necessary to determine the
number of employees employed by the YWCA.
Case 1:24-cv-01492-AMN-PJE Document 16 Filed 04/28/26 Page 11 of 15

12
she “does not explain what her disability is, whether she has a diagnosis for an
impairment, or how such disability substantially limits a major life activity.” Milner-Koonce,
2022 WL 1500995, at *7; see generally Dkt. No. 14. 	Further, she does not provide a
“record of such impairment” or “a condition regarded by others as such an impairment.”
Pitter, 2020 WL 8474858, at *10-11.
Similarly, assuming arguendo, that the YWCA had a policy designating domestic
violence victims disabled, plaintiff does not state what disability(ies) or condition(s) the
YWCA diagnosed her with that rendered her disabled. 	See generally Dkt. No. 14.
Although plaintiff attempts to support her allegation of disability discrimination with an
email from the YWCA housing director acknowledging that the YWCA used to have a
policy of not hiring YWCA residents, there is nothing in this email, or anywhere else in the
amended complaint, demonstrating that YWCA had a policy of refusing to hire disabled
individuals or that plaintiff was in anyway affected by this policy. See generally Dkt. No.
14, Dkt. No. 14-3.
Third, even if plaintiff does suffer from a disability under the ADA or NYSHRL,
plaintiff does not allege that “she was otherwise qualified to perform the essential
functions of the job with or without reasonable accommodation.” 	Scalercio-Isenberg,
2020 WL 4547317, at *3. 	Therefore, plaintiff’s assertion that the YWCA refused to hire
her because she is disabled does not suffice to state a claim for failure to hire due to a
disability in violation of either the ADA or NYSHRL.11
11 As discussed in the August 26, 2025, Report-Recommendation & Order, the undersigned notes that the
policy on which plaintiff appears to base her disability discrimination claim – that the YWCA does not hire
residents for full time employment – appears to not be a current policy. See Dkt. No. 14-3 (email between
plaintiff and the YWCA housing director); see also Dkt. No. 14-4 (2019 YWCA Resident Handbook). The
YWCA housing director indicated that this policy “has been updated.” Dkt. No. 14-3. Similarly, it is unclear
how the 2019 YWCA resident handbook is relevant to this matter. See Dkt. No. 14-4. The 2019 YWCA
resident handbook listed a policy that “[n]o resident may operate a business out of the YWCA Northeastern
Case 1:24-cv-01492-AMN-PJE Document 16 Filed 04/28/26 Page 12 of 15

13
C. Abandoned Claims
Affording plaintiff due solicitude, plaintiff’s original complaint also sought to raise
claims against the YWCA under the FHA and NYSHRL alleging housing discrimination
and pursuant to 42 U.S.C. § 1983 alleging violations of her Fourteenth Amendment due
process and equal protection rights. 	See generally Dkt. No. 1, Dkt. Nos. 1-1, 1-2, 1-6.
The Court provided plaintiff with an opportunity to amend to demonstrate (1) additional
facts establishing “either sexual harassment creating a hostile living environment or quid-
pro-quo sexual harassment”; (2) “membership in a covered protected class” and “that she
was sexually harassed due to that membership”; (3) that the YWCA was a state actor or
acting under the color of state law; and (4) how the YWCA’s former policy of “prohibit[ing]
her from operating her business out of her YWCA room . . . amount[ed] to a violation of
her due process or equal protection rights.” 	Dkt. No. 7 at 16-17, 20-21. 	Plaintiff’s
amended 	complaint 	does 	not 	reallege 	any 	housing 	discrimination 	or 	Fourteenth
Amendment claims. See generally Dkt. No. 14. The amended complaint references the
FHA but does not allege housing discrimination or provide any other facts raising a
housing discrimination claim. 	See id. at 6. 	Similarly, the amended complaint does not
mention in any way that the YWCA was a state actor or acting under the color of state
law. See generally id. Accordingly, as plaintiff was previously afforded an opportunity to
amend and advised of the factual basis necessary to plead viable housing discrimination,
due process, and equal protection claims, the undersigned recommends that these claims
NY. If you have a work from home opportunity please seek approval from the housing coordinator before
beginning.” Dkt. No. 14-4 at 6. The YWCA’s prohibition against residents operating businesses out of their
YWCA residences does not appear to have any connection to plaintiff’s claim that the YWCA refused to
hire her for full time employment due to a disability. Further, in the email between plaintiff and the YWCA
housing director, the YWCA housing director explained that the policy forbidding YWCA residents from
working out of their homes had to do with residents not being permitted to use the YWCA address as a
business address. See Dkt. No. 14-3.
Case 1:24-cv-01492-AMN-PJE Document 16 Filed 04/28/26 Page 13 of 15

14
be deemed abandoned. 	See Zheng v. Gen. Elec. Co., No. 1:15-CV-1232 (TJM/CFH),
2016 WL 11477390, at *2-3 (N.D.N.Y. Apr. 21, 2016), report and recommendation adopted
sub nom. Zheng v. Gen. Elec. Co., No. 1:15-CV-1232 (TJM/CFH), 2016 WL 2636297
(N.D.N.Y. May 9, 2016) (deeming abandoned the pro se plaintiff’s claims that were not
realleged in an amended pleading).
III. Leave to Amend
Generally, “[a] pro se complaint should not be dismissed without the Court granting
leave to amend at least once when a liberal reading of the complaint gives any indication
that a valid claim might be stated.” 	Gerken v. Gordon, No. 1:24-CV-0435 (MAD/CFH),
2024 WL 4608307, at *15 (N.D.N.Y. Oct. 29, 2024), report and recommendation adopted,
No. 1:24-CV-435 (MAD/CFH), 2024 WL 5001402 (N.D.N.Y. Dec. 6, 2024), aff’d, No. 24-
3336, 2025 WL 2847429 (2d Cir. Oct. 8, 2025) (quoting Nielsen v. Rabin, 746 F.3d 58, 62
(2d Cir. 2014) (citation and internal quotation marks omitted)). “However, if the problems
with a complaint are ‘substantive’ rather than the result of an ‘inadequately or inartfully
pleaded’ complaint, an opportunity to re-plead would be ‘futile’ and ‘should be denied.’”
Id. (citing Edwards v. Penix, 388 F. Supp. 3d 135, 144-45 (N.D.N.Y. 2019) (quoting Cuoco
v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).
Plaintiff was already afforded an opportunity to amend. See Dkt. No. 7. Plaintiff’s
amended complaint still fails to state an employment discrimination claim under either the
ADA or the NYSHRL. See generally Dkt. No. 14. Further, plaintiff abandoned her housing
discrimination, due process, and equal protection claims. 	See id. 	Accordingly, it is
recommended that Plaintiff’s amended complaint be dismissed in its entirety with
prejudice and without leave to amend. 	See Murrey v. BrandYourself.com, Inc., No. 21-
Case 1:24-cv-01492-AMN-PJE Document 16 Filed 04/28/26 Page 14 of 15

15
CV-320 (AT) (JLC), 2022 WL 4395808, at *4 (S.D.N.Y. Sept. 23, 2022), report and
recommendation adopted, No. 21. CIV. 320 (AT) (JLC), 2023 WL 1780806 (S.D.N.Y. Feb.
6, 2023) (citing Porter v. Gummerson, No. 04-CV-988 (TJM/DRH), 2007 WL 446026, at
*5 (N.D.N.Y. Feb. 8, 2007) (dismissing the pro se plaintiff’s abandoned claims with
prejudice).
IV. Conclusion
WHEREFORE, for the reasons set forth herein, it is hereby
RECOMMENDED, that plaintiff's amended complaint (Dkt. No. 14) be DISMISSED
in its entirety with prejudice and without leave to amend; it is further
ORDERED, that the Clerk serve a copy of this Report-Recommendation and Order
on plaintiff in accordance with Local Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has FOURTEEN (14) days within which
to file written objections to the foregoing report. Such objections shall be filed with the
Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14)
DAYS WILL PRECLUDE APPELLATE REVIEW. 	See Roldan v. Racette, 984 F.2d 85,
89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir.
1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV . P. 6(a), 72.12
Dated: April 28, 2026
Albany, New York
12 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three
(3) additional days will be added to the fourteen-day (14) period, meaning that you have seventeen (17)
days from the date the Report-Recommendation and Order was mailed to you to serve and file objections.
See F ED. R. C IV . P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday,
then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday.
See id. § 6(a)(1)(c).
Case 1:24-cv-01492-AMN-PJE Document 16 Filed 04/28/26 Page 15 of 15