Nelson v. WSWHE Boces

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
JAMES NELSON,
Plaintiff,
vs. 	1:25-cv-00524
(MAD/ML)
WSWHE BOCES,
Defendant.
____________________________________________
APPEARANCES: 	OF COUNSEL:
JAMES NELSON
1019 State Route 196
Hudson Falls, New York 12839
Plaintiff pro se
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On April 29, 2025, Plaintiff James Nelson commenced this action pro se, asserting various
claims arising out of his employment at Defendant WSWHE BOCES. Dkt. No. 1. Plaintiff
brings these claims pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), the
Americans with Disabilities Act ("ADA"), the Occupational Safety and Health Act ("OSHA"), the
Fair Labor Standards Act ("FLSA"), and the New York State Human Rights Law ("NYSHRL").
See id.
On September 17, 2025, Magistrate Judge Miroslav Lovric issued an Order and Report-
Recommendation ("R&R") granting Plaintiff's application to proceed in forma pauperis ("IFP")
and recommending that the Court: (1) require Defendant to answer or respond to (a) Plaintiff's
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Title VII retaliation claim related to the alleged adverse actions of inaccurate negative
evaluations, assignment to less favorable tasks, assignment of additional duties, and a change in
the hours that he was assigned to work, and (b) Plaintiff's FLSA retaliation claim; (2) dismiss,
with leave to replead, Plaintiff's claims (a) pursuant to the ADA, (b) pursuant to the NYSHRL, (c)
pursuant to Title VII alleging discrimination, (d) pursuant to Title VII alleging a hostile work
environment, and (e) pursuant to Title VII alleging retaliation based on his termination; and (3)
dismiss, without leave to replead, Plaintiff's OSHA claim. See Dkt. No. 5 at 22. Plaintiff filed
objections to the R&R on October 1, 2025. Dkt. No. 6. For the reasons set forth below, the R&R
is adopted as modified by this Memorandum-Decision and Order.
II. BACKGROUND
For a full recitation of the factual background, the Court refers the parties to Magistrate
Judge Lovric's R&R. See Dkt. No. 5 at 1-4.
III. DISCUSSION
A. 	Standard of Review
When a party files specific objections to a magistrate judge's order and report-
recommendation, the district court makes a "de novo determination of those portions of the report
or specified proposed findings or recommendations to which objection is made." 28 U.S.C. §
636(b)(1). When a party declines to file objections or files "[g]eneral or conclusory objections, or
objections which merely recite the same arguments presented to the magistrate judge," the court
reviews those recommendations for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL
933846, *1 (N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted). After appropriate review,
"the court may accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge." 28 U.S.C. § 636(b)(1).
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For a plaintiff's complaint to meet the federal pleading standard, the plaintiff need only
plead "a short and plain statement of the claim," see Fed. R. Civ. P. 8(a)(2), with sufficient factual
"heft to 'sho[w] that the pleader is entitled to relief[,]'" Bell Atl. Corp. v. Twombly, 550 U.S. 544,
557 (2007). Under this standard, the pleading's "[f]actual allegations must be enough to raise a
right to relief above the speculative level," id. at 555 (citation omitted), and present claims that are
"plausible on [their] face," id. at 570. "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."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). A complaint that "pleads facts that
are 'merely consistent with' a defendant's liability" generally does not meet the pleading standard.
See id. (quoting Twombly, 550 U.S. at 557). However, complaints by pro se parties must receive
a more liberal construction than those filed by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94
(2007). As such, this Court "must construe [a pro se complaint] broadly, and interpret [it] to raise
the strongest arguments that [it] suggests." Weixel v. Bd. of Educ., 287 F.3d 138, 146 (2d Cir.
2002) (citation omitted).
B. 	Plaintiff's Objections
As an initial matter, Plaintiff's objections state that "[t]he report is not completely accurate
and it sounds like I'm being made out to be someone just doing this for monetary gain." Dkt. No.
6 at 1. "This bare statement, devoid of any reference to specific findings or recommendations to
which [Plaintiff] object[s] and why, and unsupported by legal authority," is not a cognizable
objection to Magistrate Judge Lovric's R&R. Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766
(2d Cir. 2002).
Plaintiff also asserts nine numbered points. First, Plaintiff states that he has seen "cameras
in both Sandford [sic] street school and SAEC BOCES," and that "[t]hey know what happen[ed]
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at sandford [sic] street to be factual." Dkt. No. 6 at 1. Plaintiff also contends that he believes
Defendant is "in violation of Title IX[,] FAFSA, CEP (Community Eligibility Provision), Direct
Student Loans, Pell Grants, Workforce Investment [Act], SEOG, others, they accept federal
funding." Id. Also, within point one, Plaintiff states that his "SA [which the Court understands to
mean "sexual assault"] was reported to HR to investigate. Kate A, told me to not tell anyone or I
can be punished up to termination for breach of confidentiality." Id. Second, Plaintiff argues that
the R&R "assumes the Blake incident was related to the Sanford Street incident's, for me. No, the
Blake incident was part of the hostile workplace claim."1 Id. Third, Plaintiff reiterates his
allegations regarding his lung infection diagnosis, allegedly caused by harmful debris and
aromatics used by teachers within the school. See id. Fourth, Plaintiff states he was "not happy
with the change in hours and what not." Id. at 1-2. Fifth, Plaintiff adds allegations that there is an
elderly woman who works at the Sanford Street school who is treated in a manner with which
Plaintiff disagrees. See id. at 2. Sixth, Plaintiff reiterates that he was subject to a hostile work
environment due to Defendant's failure to resolve his complaints, adding that the duration of his
suffering was sixty-six days. See id. Seventh, Plaintiff makes additional allegations about a gym
teacher using aerosol sprays and someone manipulating the air conditioners where he worked,
apparently in a conspiracy against him. See id. Eighth, Plaintiff adds that the areas where he
worked were not properly ventilated and that an employee of Defendant recorded him wearing
1 Although this objection could be read as a specific objection to a portion of the R&R, and does
not merely repeat the allegations in the complaint or improperly assert new allegations, Plaintiff
misconstrues Magistrate Judge Lovric's analysis. Magistrate Judge Lovric explained that the
complaint alleges Plaintiff was terminated in October 2023 because "he informed Nate G. that
Blake S. filed for overtime to complete work that Nate G. actually completed[,]" Dkt. No. 5 at 9,
and the complaint fails to allege that the termination was based on any opposition to
discrimination and is too attenuated from the December 2022 report of sexual harassment to draw
an inference of causation, see id. at 9-10.
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plastic around his shoes while Plaintiff performed lawn care. See id. In his ninth and final
objection, Plaintiff mentions an incident where his hand was jammed between a refrigerator and a
doorway, causing an injury to his left pinky finger. See id. This incident was not mentioned in
the complaint. See id.; see generally Dkt. No. 1.
Points five, seven, eight, nine, and part of point one add new information that was not
before Magistrate Judge Lovric at the time of his decision. See Dkt. Nos. 1, 6. Although it is
"conceivable" that some of these new factual allegations may correct the pleading defects
identified by Magistrate Judge Lovric, the proper place for the addition of factual allegations "is
in an amended complaint . . . ." Syfert v. City of Rome, No. 6:17-CV-0578, 2017 WL 5195230, *3
(N.D.N.Y. Nov. 9, 2017) ("[S]pecial solicitude is not a license to piece together an actionable
pleading through a prolix complaint and a prolix objection to a report-recommendation, especially
when the product contains a shotgun spray of factual allegations that a defendant must (somehow)
admit or deny under Fed. R. Civ. P. 8(b)(1)(B)"). Moreover, points one, three, four, and six
"merely recite the same arguments presented to the magistrate judge," and therefore do not
constitute proper objections. O'Diah, 2011 WL 933846, at *1.
In sum, most of Plaintiff's objections merely reiterate, bolster, or add to the allegations
contained in the complaint. See Dkt. No. 6. Each objection also fails to contest specific portions
of the R&R. See id. Indeed, Plaintiff does not contest Magistrate Judge Lovric's application of
the law and has not raised any particularized objections to the R&R's findings. See id.
Accordingly, the Court reviews the R&R for clear error.2
2 Plaintiff has also submitted six attachments to his objections, which contain pictures, purported
witness statements, text messages, and emails. See Dkt. Nos. 6-1 to 6-6. Plaintiff cannot bolster
his allegations with exhibits that were not part of the record presented to Magistrate Judge Lovric;
therefore, the Court declines to consider these exhibits. See Kelsey v. Kessel, No. 1:21-CV-0911,
2021 WL 5277195, *4 n.4 (N.D.N.Y. Nov. 12, 2021) (citation omitted).
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C. 	Title VII
As an overarching matter with respect to Plaintiff's Title VII claims, the Court agrees with
Magistrate Judge Lovric that, because the complaint alleges that Plaintiff filed charges with the
EEOC on or about April 12, 2024, see Dkt. No. 1 at 5, discrete adverse actions occurring before
June 17, 2023 are time-barred, see Dkt. No. 5 at 7. The Second Circuit has recognized that
"[u]nder Title VII, plaintiffs must file a charge with the EEOC 'within 180 [days] or, in states like
New York that have local administrative mechanisms for pursuing discrimination claims, 300
days "after the alleged unlawful employment practice occurred."'" King v. Aramark Servs. Inc, 96
F.4th 546, 559 (2d Cir. 2024) (quoting Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72,
78-79 (2d Cir. 2015)).
1. 	Title VII Retaliation
On the Title VII retaliation claim, Magistrate Judge Lovric correctly noted that the alleged
threat of termination (as opposed to the termination itself) if Plaintiff told anyone about the Boris
incident allegedly took place around December 2022. Dkt. No. 1 at 3; see Dkt. No. 5 at 8-9.
Thus, on that basis, the retaliation claim is time-barred under the 300-day requirement imposed by
Title VII.
To the extent that Plaintiff's Title VII retaliation claim is premised on his alleged
termination in October 2023, the Court agrees with Magistrate Judge Lovric that the complaint
fails to allege a causal connection between any protected activity and Plaintiff's termination. See
Dkt. No. 5 at 9-10. Title VII retaliation plaintiffs must prove but-for causation, and can "meet this
burden by 'showing that the protected activity [against which the defendant allegedly retaliated]
was followed closely by discriminatory treatment . . . .'" Guerrero v. Albany Med. Health Sys.,
No. 1:24-cv-01344, 2025 WL 2645540, *12 (N.D.N.Y. Sept. 15, 2025) (quoting Bader v. Special
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Metals Corp., 985 F. Supp. 2d 291, 324 (2d Cir. 2013)). "In general, a temporal gap of less than
two months is sufficient to give rise to an inference of causation." Bader, 985 F. Supp. 2d at 324.
Here, the facts alleged in the complaint do not support such an inference. Indeed, the ten-month
gap between Plaintiff's alleged protected activity in December 2022 and the alleged adverse
action of Plaintiff's termination in October 2023, without allegations that plausibly suggest
retaliatory animus, is too attenuated to support a retaliation claim. Thus, Magistrate Judge Lovric
correctly concluded that Plaintiff failed to allege facts that plausibly suggest Defendant terminated
Plaintiff in retaliation for his report about Boris. See Dkt. No. 5 at 10.
To the extent Plaintiff premises his Title VII retaliation claim on inaccurate negative
evaluations, assignment to less favorable tasks, assignment of additional duties, and a change in
the hours he was assigned to work, the Court agrees with Magistrate Judge Lovric that a response
from Defendant is warranted. To properly plead a retaliation claim in the Second Circuit,
Plaintiff must allege: "(1) '[he] participated in an activity protected by Title VII' . . . ; (2) the
employer knew about [his] participation; (3) 'the employer "subjected [him] to a materially
adverse" action thereafter'; and (4) 'a "causal connection" existed between the "protected activity"
and the adverse action.'" Guerrero, 2025 WL 2645540, at *10 (quoting Moll v. Telesector Res.
Grp., Inc., 94 F.4th 218, 239 (2d Cir. 2024)). As Magistrate Judge Lovric pointed out, Plaintiff's
alleged protected activity was his report of Boris's behavior. Likewise, Plaintiff alleges
Defendant's knowledge of that activity because he made the report to a designated HR
representative. Furthermore, the Court agrees with Magistrate Judge Lovric that the purported
negative evaluations, unfavorable assignments, and undesirable change in work hours plausibly
rise to the level of materially adverse actions. Dkt. No. 5 at 10-11; see also Feingold v. New
York, 366 F.3d 138, 152 (2d Cir. 2004) (citation omitted) (identifying termination, demotion, "a
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less distinguished title," "material loss of benefits," and "significantly diminished material
responsibilities" as adverse employment actions). Finally, as Magistrate Judge Lovric stated, the
complaint alleges that Defendant subjected Plaintiff to the adverse employment actions because
he exercised his rights. Dkt. No. 5 at 11 (citing Dkt. No. 1 at 13). Thus, in light of Plaintiff's pro
se status, the Court directs Defendant to respond to this portion of Plaintiff's Title VII retaliation
claim.
2. Title VII Discrimination
The Court agrees with Magistrate Judge Lovric that the complaint fails to adequately
allege Title VII discrimination. See Dkt. No. 5 at 11-13. "[A]t the pleadings stage of an
employment discrimination case, a plaintiff has a 'minimal burden' of alleging facts 'suggesting an
inference of discriminatory motivation.'" Vega, 801 F.3d at 85 (quoting Littlejohn v. City of New
York, 795 F.3d 297, 311 (2d Cir. 2015)). Thus, a plaintiff must plead that an employer has
discriminated against him by taking an adverse employment action, and that such action was
"because of his race, color, religion, sex, or national origin." Id. Importantly, "Title VII
discrimination claims do not require a showing of but-for causation. Rather, a plaintiff's claim
can survive if [he] pleads facts suggesting that [his] membership in a protected class was simply a
motivating factor behind the alleged discriminatory conduct." Guerrero, 2025 WL 2645540, at
*8 (citing Vega, 801 F.3d at 85-86; 42 U.S.C. § 2000e-2(m)).
As Magistrate Judge Lovric pointed out, liberally construed, the complaint does allege that
Plaintiff faced materially adverse employment actions. See Dkt. No. 1 at 2. However, none of
the facts alleged in the complaint suggest that "the adverse employment decision[s] [were]
motivated at least in part by an 'impermissible reason,' i.e., a discriminatory reason." Vega, 801
F.3d at 87 (citations omitted). Thus, the Court agrees with Magistrate Judge Lovric that nothing
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in the complaint supports an inference that Plaintiff's sex motivated his reassignment to less
favorable tasks, changes in his hours, or other adverse actions against him in any way. Therefore,
Plaintiff fails to state a Title VII discrimination claim, and this cause of action is dismissed.
3. 	Title VII Hostile Work Environment
The Court further concludes that Magistrate Judge Lovric appropriately determined the
complaint fails to adequately allege a hostile work environment claim under Title VII. See Dkt.
No. 5 at 13-14. To plead a Title VII hostile work environment claim, "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 membership].'" Patane v.
Clark, 508 F.3d 106, 113 (2d Cir. 2007) (quoting Gregory v. Daly, 243 F.3d 687, 691-92 (2d Cir.
2001)).
Even assuming that the first two elements are met, Magistrate Judge Lovric is correct that
Plaintiff fails to show how any of the hostile conditions he allegedly experienced were inflicted
because of his sex or other protected characteristic. See Dkt. No. 5 at 13-14. Furthermore, even if
Plaintiff's interaction with Boris in December 2022 rises to the level of sexual harassment and a
possible hostile work environment, Magistrate Judge Lovric is correct that Plaintiff fails to allege
any facts suggesting he filed his EEOC charge within 300 days of that incident. Id. at 14.
Therefore, Plaintiff's Title VII hostile work environment claim is dismissed.
D. 	ADA
The Court agrees with Magistrate Judge Lovric that Plaintiff's complaint fails to state an
ADA claim upon which relief can be granted. See id. at 17. To state a prima facie case under the
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ADA, Plaintiff must allege: "(1) his employer is subject to the ADA; (2) he was disabled within
the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his
job, with or without reasonable accommodation; and (4) he suffered adverse employment action
because of his disability." Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir. 2001)
(citation omitted). Furthermore, the Second Circuit has made clear that ADA claims use a but-for
causation standard. Natofsky v. City of New York, 921 F.3d 337, 348 (2d Cir. 2019).
As Magistrate Judge Lovric correctly pointed out, even assuming that Plaintiff's employer
is subject to the ADA, Plaintiff's "workplace asthma" is a disability within the meaning of the
ADA, and that he was otherwise qualified to perform the essential functions of his job, the
complaint fails at the causation element. See Dkt. No. 5 at 16. Magistrate Judge Lovric properly
considered Plaintiff's complaint and correctly decided that "Plaintiff fails to allege facts plausibly
suggesting an inference of discrimination on the basis of his disability." Id. The Court therefore
agrees with Magistrate Judge Lovric that Plaintiff has not stated a claim for discrimination under
the ADA, and this claim is dismissed.
E. 	OSHA
Magistrate Judge Lovric also properly determined that Plaintiff does not have standing to
sue his employer under the Occupational Safety and Health Act. See id. at 17. "Under OSHA,
employees do not have a private right of action." Donovan v. Occupational Safety & Health Rev.
Comm'n, 713 F.2d 918, 926 (2d Cir. 1983) (citations omitted). Therefore, Plaintiff's OSHA claim
is dismissed with prejudice.
F. 	FLSA Retaliation
The Court agrees with Magistrate Judge Lovric's conclusion that Plaintiff's FLSA
retaliation claim warrants a response. See Dkt. No. 5 at 18. As Magistrate Judge Lovric pointed
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out, "a plaintiff alleging retaliation under [the] FLSA must . . . show[] (1) participation in
protected activity known to the defendant . . . ; (2) an employment action disadvantaging the
plaintiff; and (3) a causal connection between the protected activity and the adverse employment
action." Mullins v. City of New York, 626 F.3d 47, 53 (2d Cir. 2010) (citation omitted). As with
Title VII retaliation, a causal connection can be established through a showing of temporal
proximity between the protected activity and the adverse employment action. See id. (citation
omitted).
Magistrate Judge Lovric is correct that the complaint may be read liberally to allege that
Plaintiff reported unsafe working conditions and that he was subject to adverse employment
actions soon thereafter. See Dkt. No. 5 at 18 (citing Dkt. No. 1 at 13). Accordingly, in light of
Plaintiff's pro se status, the Court sees no clear error in Magistrate Judge Lovric's
recommendations on this cause of action. Defendant is ordered to file a response to Plaintiff's
FLSA claim.
G. 	NYSHRL
Lastly, Magistrate Judge Lovric correctly recommended dismissal of Plaintiff's claim
pursuant to the New York State Human Rights Law, since Plaintiff does not allege that he
complied with the statutory notice of claim requirements. See id. at 18-20. New York Education
Law § 3813(1) requires that a notice of claim be served on the governing body of a board of
cooperative educational services ("BOCES") within three months of accrual as a condition
precedent to suit against that BOCES. See N.Y. Educ. Law § 3813(1). Although an EEOC
charge may "satisfy the notice of claim requirement" if it puts the defendant on adequate notice of
the plaintiff's allegations, Bernheim v. N.Y.C. Dep't of Educ., No. 19-CV-9723, 2020 WL
3865119, *6 (S.D.N.Y. July 9, 2020), Magistrate Judge Lovric correctly noted that Plaintiff's civil
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complaint fails to allege that the EEOC charge put Defendant's governing body on notice within
the statutory timeframe. See Dkt. No. 5 at 19-20. Therefore, this claim is dismissed.
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions, and the
applicable law, and for the reasons set forth above, the Court hereby
ORDERS that Magistrate Judge Lovric's Order and Report-Recommendation (Dkt. No. 5)
is ADOPTED in its entirety; and the Court further
ORDERS that Plaintiff's claim pursuant to OSHA is DISMISSED with prejudice and
without leave to replead; and the Court further
ORDERS that Plaintiff's Title VII discrimination claim, Title VII hostile work
environment claim, Title VII retaliation claim based on his termination, ADA claim, and
NYSHRL claim are DISMISSED without prejudice and with leave to replead; and the Court
further
ORDERS that the Clerk of the Court shall issue a summons and forward it with a copy of
the complaint and this Memorandum-Decision and Order to the United States Marshal for service;
and the Court further
ORDERS that Defendant file a response to: (1) Plaintiff's Title VII retaliation claim based
on inaccurate negative evaluations, assignment to less favorable tasks, assignment of additional
duties, and a change in the hours he was assigned to work; and (2) Plaintiff's FLSA retaliation
claim; and the Court further
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ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on Plaintiff in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: December 23, 2025
Albany, New York
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