Calenzo v. Waste Management, Inc. et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
MARY-ROSE F. CALEZNO,
Plaintiff,
v.
No. 1:24-CV-1499
WASTE MANAGEMENT, INC., et al., 	(AMN/PJE)
Defendants.
_____________________________________
APPEARANCES:
Mary-Rose F. Calenzo
553 Coyote Circle
Midway Park, North Carolina 28544
Plaintiff pro se
PAUL J. EVANGELISTA
U.S. MAGISTRATE JUDGE
REPORT-RECOMMENDATION & ORDER
I. Background
Plaintiff commenced this action on December 10, 2024, by filing a complaint and
an application for leave to proceed in forma pauperis (“IFP”). 	See Dkt. Nos. 1-2. 	On
August 26, 2025, the undersigned granted plaintiff’s IFP application. See Dkt. No. 5.
Plaintiff’s original complaint sought to name the following defendants: (1) Waste
Management, Inc. (“Waste Management”); (2) James Dennis (“Dennis”), route manager
for commercial; (3) Michael Glass (“Glass”), route manager for industrial; (4) Raymond
Bender (“Bender”), safety manager; and (4) Joseph Mazzelli (“Mazzelli”), district manager.
See Dkt. No. 1 at 1-2, 7. On review of the original complaint, the undersigned interpreted
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it as seeking to claims for: (1) gender discrimination, disparate treatment, and retaliation
in violation of Title VII of the Civil Rights Act of 1964; and (2) defamation and breach of
contract pursuant New York State law. 	See generally Dkt. No. 5. 	The undersigned
recommended 	that 	plaintiff’s 	(1) Title 	VII 	disparate 	treatment 	claim 	against 	Waste
Management be permitted to proceed; (2) Title VII gender discrimination claims against
Dennis, Glass, Bender, and Mazzelli be dismissed with prejudice and without leave to
amend; (3) Title VII unlawful termination and retaliation claims against Waste Management
be dismissed without prejudice and with leave to amend; (4) New York State defamation
claims against Dennis and Glass be dismissed as barred by the statue of limitations, but
without prejudice and leave to renew; and (5) New York State breach of contract claim be
dismissed without prejudice and with leave to amend. See id. In recommending dismissal
of plaintiff’s Title VII claims against Dennis, Glass, Bender, and Mazzelli, the undersigned
explained that “individuals are not subject to liability under Title VII.’” Id. at 12-13 (quoting
Pitter v. Target Corp., No. 1:20-CV-183 (MAD/CFH), 2020 WL 8474858, at *5 (N.D.N.Y.
Sept. 1, 2020), report and recommendation adopted, No. 1:20-CV-183 (MAD/CFH), 2020
WL 7767629 (N.D.N.Y. Dec. 30, 2020) (quoting Patterson v. Cty. of Oneida, New York, 375
F.3d 206, 221 (2d Cir. 2004))).1
The undersigned also recommended plaintiff be afforded an opportunity to amend
to raise New York State Human Rights Law (“NYSHRL”) gender discrimination claims
against Dennis, Glass, Bender, and Mazzelli to the extent that any of them had the
authority to hire and fire Waste Management personnel. See Dkt. No. 5 at 13-18. Finally,
1 The Court has provided plaintiff with copies of the unpublished decisions cited within this Report-
Recommendation & Order except for those the Court provided her along with the August 26, 2025, Report-
Recommendation & Order.
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the 	undersigned 	recommended that 	if plaintiff 	were 	permitted 	to 	file 	an amended
complaint, any amended pleading “cannot incorporate a prior pleading by reference,”
“supersedes and replaces 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 fully comply with Rules 8(a) and 10(b) of the Federal Rules of Civil Procedure.
Id. at 31, n.16.
On September 22, 2025, the Court adopted the Report-Recommendation & Order
in its entirety. See Dkt. No. 6. On October 16, 2025, plaintiff filed an amended complaint.
See Dkt. Nos. 8-9. 	Presently before the undersigned is review of plaintiff’s amended
complaint pursuant to 42 U.S.C. § 1915. See Dkt. No. 5 at 2 (setting forth the standard of
review).
II. Review of Amended Complaint
A. Amended Complaint
Plaintiff’s amended complaint is very similar to the original complaint.2 	See Dkt.
Nos. 1, 8. In the amended complaint, plaintiff repleads her Title VII gender discrimination
and 	retaliation 	allegations 	against 	Waste 	Management, 	and 	adds 	Jess 	Winowski
(“Winowski”), “dispatcher,” and Bryan Crom (“Crom”), “employee promoted over plaintiff,”
as defendants. 	Dkt. No. 8 at 2; see generally Dkt. No. 8. 	Plaintiff’s amended complaint
also raises claims under the NYSHRL for gender discrimination, retaliation, and a hostile
work environment. See id. at 3-4.
2 As the amended complaint repeats many of the same facts as the original, 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 22, 2025, Order on Report & Recommendation is presumed. See Dkt. Nos. 1, 5, 6. For further
details regarding the facts and claims underlying this action, reference is made to those aforementioned
filings.
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Plaintiff’s amended complaint alleges that Dennis created a “hostile atmosphere by
instructing male employees to avoid [her] or risk being accused of sexual harassment. This
directive isolated [her] and undermined her ability to work collaboratively.” Dkt. No. 8 at 2.
Plaintiff asserts that she was “repeatedly harassed, including being present when Mr.
Dennis relieved himself between buildings, being verbally assaulted by a male employee,
and being denied access to safe restroom facilities,” “falsely accused of stealing company
time and forced to accept changes that endangered her safety and job security,” and
“ultimately terminated in retaliation for raising concerns about discriminatory treatment and
unsafe practices.” Id. at 3.
Plaintiff raises several additional allegations regarding her employment at Waste
Management as a “front load commercial trash driver.” Dkt. No. 8 at 2-3. She states that
“[b]etween 2018 and 2021, [she] was denied five promotional opportunities, all awarded
to male coworkers,” including one promotion that was denied in favor of Crom, “who lacked
the required one year of commercial driving experience.” 	Id. at 2.3 	Plaintiff alleges that
3 	“NYSHRL claims have a three-year statute of limitations.” Kirkland-Hudson v. Mount Vernon City
Sch. Dist., 665 F. Supp. 3d 412, 446 (S.D.N.Y. 2023) (citing Franchitti v. Cognizant Tech. Sols. Corp., No.
21-CV-2174, 2022 WL 2657171, at *8 (S.D.N.Y. July 8, 2022)). “It is an open question in the Second Circuit
whether the filing of an EEOC charge tolls the statute of limitations for discrimination claims under the New
York Executive Law.” 	Id. (citing Shojae v. Harlem Hosp. Ctr., 764 F. App’x 113, 114 n.2 (2d Cir. 2019)
(summary order)) (“We have not resolved whether the statute of limitations under the [New York State Human
Rights Law] and [New York City Human Rights Law] is tolled while a complaint is pending with the [EEOC].”).
However, the “overwhelming weight of authority within the [Second] Circuit holds that the filing of a charge
with the EEOC tolls the statute of limitations for any related claims under the NYSHRL.” Id. at 447 (quoting
Franchitti, 2022 WL 2657171, at *8) (internal quotation marks omitted).
Additionally, “[b]efore filing a suit in federal court under Title VII, the claimant must make the EEOC
filing within 300 days of the alleged discriminatory conduct and . . . must receive a ‘Notice of Right to Sue’
letter from the EEOC.” Mwantuali v. Hamilton Coll., No. 6:22-CV-1395 (MAD/ML), 2024 WL 1219752, at *5
(N.D.N.Y. Mar. 20, 2024) (quoting Williams v. New York City Hous. Auth., 458 F.3d 67, 69 (2d Cir. 2006)
(citing Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001))) (internal quotation
marks omitted). “Although the exhaustion of administrative remedies through filing with the EEOC is not a
jurisdictional requirement, ‘it remains . . . an essential element of Title VII’s statutory scheme, . . . and one
with which defendants are entitled to insist that plaintiffs comply.’” Id. (quoting Muhammad v. N.Y.C. Transit
Auth., 450 F. Supp. 2d 198, 205 (E.D.N.Y. 2006) (quoting Francis v. City of New York, 235 F.3d 763, 768 (2d
Cir. 2000))). “Courts have noted that [t]he 300-day limitations period is not a jurisdictional prerequisite to
suit in federal court; it is a requirement that, like a statute of limitations, is subject to waiver, estoppel and
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her driving route “was changed to one with increased safety risks.” 	Id. 	She claims she
repeatedly raised these safety concerns to Dennis, Mazzelli, and Bender, but was ignored.
See id. 	“In one incident, Mr. Dennis gave Plaintiff an ultimatum: either drive to another
branch to retrieve a spare truck or go home – despite a spare truck being available at her
location. When Plaintiff chose to go home, she was written up for insubordination.” Id.
On January 12, 2022, plaintiff was scheduled to undergo a physical examination
with the New York State Department of Transportation. See Dkt. No. 8 at 2. On January
13, 2022, Dennis delegated to Winowski “the responsibility of notifying plaintiff,” that she
was to report to Dennis, but plaintiff “was informed that no message had been sent.” See
id. Plaintiff claims Winowski did not instruct her to report to Dennis, despite Dennis’ claims
that she failed to do so. 	See id. 	On January 14, 2022, Dennis and Glass made false
statements about plaintiff’s conduct that plaintiff asserts “are contradicted by video
evidence.” 	Id. at 3. 	Also, around January 2022, plaintiff contends that Dennis falsely
claimed that she stated, “I’m not signing a f**ing thing,” when asked to sign a written
reprimand. Id.; see also Dkt. No. 9 at 21.
equitable tolling . . . as well as the continuing violation doctrine.” Id. (first quoting Mauro v. Bd. of Higher
Educ., 658 F. Supp. 322, 324 (S.D.N.Y. 1986) (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393
(1982) (internal quotations omitted)), then citing Cruz v. City of New York, No. 21-CV-1999, 2021 WL
5605139, *4 (S.D.N.Y. Nov. 30, 2021)). “It is, of course, logically possible that a total failure to present a
particular claim to the EEOC raises a jurisdictional bar to bringing that claim in district court, even if
presenting that claim to the EEOC in an untimely fashion does not constitute such a bar.” Francis, 235 F.3d
at 767 (additional citations omitted).
Plaintiff has not alleged when she was denied the purported promotional opportunities between 2018
and 2021, when she filed her EEOC claim, or the substance underlying her EEOC claim. See generally Dkt.
Nos. 8, 9. Plaintiff has alleged that she commenced this action eighty-eight (88) days after receiving her
EEOC right-to-sue letter. See Dkt. Nos. 1, 1-1. Therefore, the undersigned cannot fully evaluate whether
all of plaintiff’s claims are timely or whether the claims plaintiff presented to the EEOC are the same claims
she raises in this lawsuit. In making the within recommendation, the undersigned offers no comment on
whether plaintiff’s claims could survive a properly-filed and supported dispositive motion to dismiss on this
ground.
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Further, plaintiff generally asserts that she was denied “promotions to less qualified
male employees,” had “unequal access to equipment and disciplinary standards,” received
“false disciplinary actions” based on misrepresented events, faced verbal harassment and
“[d]egrading treatment by supervisors,” and was “den[ied] restroom access and essential
equipment.” 4 Dkt. No. 8. at 3-4.
B. Gender Discrimination
Plaintiff alleges that Waste Management discriminated against her by overlooking
her for promotions, hiring less-qualified male applicants, misrepresenting events and
fabricating reprimands, degrading and verbally harassing her, and ultimately firing her due
to her gender, in violation of Title VII and the NYSHRL. See Dkt. No. 8 at 2-4. In support
of her assertions, plaintiff submits a statement from Antonio Balls-Suarez,5 plaintiff’s
former co-worker at Waste Management. See Dkt. No. 9 at 1. Mr. Balls-Suarez asserts
that Dennis “didn’t want any women there and got rid of every woman that worked there.”
Id. Mr. Balls-Suarez states that when he started with Waste Management, he “was told by
all the drivers to stay away from [plaintiff].” Id. When Mr. Balls-Suarez asked Dennis why,
Dennis replied that if he associated with plaintiff, he would have “a sexual harassment
case” against him and to “stay away from her.” 	Id. 	Mr. Balls-Suarez states that during
morning crew meetings, Dennis refused to answer any of plaintiff’s questions or concerns.
4 Plaintiff submits several documents with her amended complaint, including a (1) “witness statement” from
Antonio Balls-Suarez; (2) January 25, 2019, New York State Workers’ Compensation Board Notice of
Treatment; (3) January 3, 2022, Waste Management Safety Employee Disciplinary Report; and
(4) a screenshot of text messages from Winowski purportedly demonstrating that she did not receive any
message from him on January 13, 2022. See Dkt. No. 9. Plaintiff’s complaint references video evidence
submitted as part of Exhibit O. See Dkt. Nos. 8, 9. However, Exhibit O consists of two written statements
from Dennis and Glass. See Dkt. No. 9 at 19-20.
5 The undersigned observes that Mr. Balls-Suarez’s statement is not signed, notarized, nor affirmed under
the penalty of perjury. See Dkt. No. 9 at 1. Further, plaintiff does not explain the method by which Mr. Balls-
Suarez communicated his statement to her. See generally Dkt. Nos. 8, 9.
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See id. 	When Dennis did answer plaintiff’s questions, “it was very rude and sexist.” 	Id.
According to Mr. Balls-Suarez, Dennis believed that plaintiff “was lazy and didn’t like to do
her job.” 	Id. 	Mr. Balls-Suarez claims that he never had any issues with plaintiff “until
[Dennis] wanted me to set her up so he can get a paper trail on her.” Id. “Dennis treated
[plaintiff] like the dirt on the ground,” and “Human Resources has several complaints on
[Dennis] and never did anything about the issues.” Id.
1. Waste Management
As discussed in the August 26, 2025, Report-Recommendation & Order, at the
pleadings stage, “[f]or employment discrimination claims under Title VII or the NYSHRL, a
plaintiff must ‘plausibly allege that (1) the employer took adverse action against [her] and
(2) [her] . . . sex . . . was a motivating factor in the employment decision.’” Farmer v. Shake
Shack Enters., LLC, 473 F. Supp. 3d 309, 324 (S.D.N.Y. 2020) (quoting Vega v.
Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015)); Dkt. No. 5 at 10. 	“A
plaintiff may do this by ‘alleging facts that directly show discrimination or facts that indirectly
show discrimination by giving rise to a plausible inference of discrimination.’” Id.
Here, plaintiff alleged that she suffered from multiple adverse employment actions,
including Waste Management passing her over for promotions and ultimately terminating
her because of her sex/gender. See Dkt. No. 8 at 2-4; Robinson v. Dibble, 613 F. App’x 9,
12 (summary order) (2d Cir. 2015) (noting the plaintiff's termination constituted an “adverse
employment action”); Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (noting “being
denied a promotion” is an adverse employment action); see also Farmer, 473 F. Supp. 3d
at 324 (quoting Vega, 801 F.3d at 87). 	Plaintiff supports her claim that the adverse
employment actions were motivated by her gender with Mr. Balls-Suarez’s statement that
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Dennis “didn’t want any women [at Waste Management],” “got rid of every woman that
worked there,” and told the male drivers to stay away from plaintiff because they would be
accused of sexual harassment. Dkt. No. 9 at 1.
The undersigned concludes that plaintiff’s allegations – with corroboration from Mr.
Balls-Suarez’s statement – regarding Waste Management’s conduct gives rise to “an
inference of discrimination” based on her gender. Pitter, 2020 WL 8474858, at *6 (quoting
Littlejohn v. City of New York, 795 F.3d 297, 312 (2d Cir. 2015)) (“An inference of
discrimination can arise from circumstances including, but not limited to . . . the more
favorable treatment of employees not in the protected group; or the sequence of events
leading to the plaintiff’s discharge.”). 	Accordingly, the undersigned recommends that
plaintiff’s Title VII and NYSHRL gender discrimination claims against Waste Management
survive Section 1915 review.6
2. Individual Defendants
a. Title VII
Plaintiff seeks to add Winowski and Crom as defendants. 	See Dkt. No. 8 at 2.
However, as stated in the August 26, 2025, Report-Recommendation & Order, “[t]o the
extent that plaintiff asserts her Title VII claims against the individual defendants, such
claims must be dismissed because ‘individuals are not subject to liability under Title VII.’”
Pitter, 2020 WL 8474858, at *5 (quoting Patterson, 375 F.3d at 221); Dkt. No. 5 at 12.
Accordingly, it is recommended that plaintiff’s Title VII claims, insofar as asserted against
Winowski and Crom, be dismissed with prejudice and without leave to amend pursuant to
28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). See Terpening v. McGinty, No. 1:21-CV-1215
6 The undersigned makes no conclusion as to whether such claim could survive a properly-filed and
supported dispositive motion.
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(GTS/CFH), 2022 WL 2657291, at *7 (N.D.N.Y. Apr. 28, 2022), report and recommendation
adopted, No. 1:21-CV-1215 (GTS/CFH), 2022 WL 2115265 (N.D.N.Y. June 13, 2022)
(quoting Golden v. Syracuse Reg’l Airport Auth., No. 5:20-CV-1566 (MAD/TWD), 2021 WL
485731, at *1 (N.D.N.Y. Feb. 10, 2021) (quoting Patterson v. Cty. of Oneida, New York,
375 F.3d 206, 221 (2d Cir. 2004))) (“A plaintiff’s Title VII claims against [ ] individual
[d]efendants must be dismissed with prejudice . . . because individuals are not subject to
liability under Title VII.”) (internal quotation marks omitted).
b. NYSHRL
As discussed in the August 26, 2025, Report-Recommendation & Order, claims of
gender 	discrimination 	“[u]nder 	the 	NYSHRL, 	individual 	liability 	attaches 	where 	an
employee is shown to have an ownership interest or any power to do more than carry out
personnel decisions made by others . . . essentially . . . the authority to hire or fire people.”
Dkt. No. 5 at 13-14 (quoting Zheng v. Gen. Elec. Co., No. 1:15-CV-1232 (TJM/CFH), 2015
WL 7421961, at *3 (N.D.N.Y. Oct. 26, 2015), report and recommendation adopted, No.
1:15-CV-1232 (TJM/CFH), 2015 WL 7430046 (N.D.N.Y. Nov. 20, 2015) (quoting Pellegrini
v. Sovereign Hotels, Inc., 740 F. Supp.2d 344, 355 (quoting Tomka v. Seiler Corp., 66 F.3d
1295, 1317 (2d Cir. 1995))), abrog. on other grounds, Burlington Indust., Inc. v. Ellerth,
524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998))) (internal
quotation marks omitted). The September 22, 2025, Order on Report & Recommendation
afforded 	plaintiff 	an 	opportunity 	to 	amend 	to 	potentially 	raise 	a 	NYSHRL gender
discrimination claim by demonstrating that Dennis, Glass, Bender, and/or Mazzelli had the
authority to hire and fire employees at Waste Management. See Dkt. No. 6 at 6. However,
plaintiff’s amended complaint fails to include any allegation regarding Glass, Bender,
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Mazzelli, Winowski, or Crom’s authority to hire and fire employees. 	See generally Dkt.
Nos. 8, 9. As the August 26, 2025, Report-Recommendation & Order advised plaintiff of
the requirements necessary to plead gender discrimination under the NYSHRL against
individual defendants and her amended complaint fails to indicate that any of the individual
defendants listed above had the authority to hire and fire employees,7 the undersigned
recommends dismissing plaintiff NYSHRL gender discrimination claims against Glass,
Bender, Mazzelli, Winowski, and Crom with prejudice and without opportunity to amend.
See Zheng, 2015 WL 7421961, at *3.
Regarding Dennis, reading the amended complaint liberally and with special
solicitude, it appears that he had the authority to hire and fire employees at Waste
Management. 	See Dkt. Nos. 8, 9. 	This conclusion is based on plaintiff’s assertion that
Dennis had the authority to send her home from work and write her up for insubordination,
and Mr. Balls-Suarez’s statements that Dennis “didn’t want any women there and got rid
of every woman that worked there,” and Dennis wanted him to set up plaintiff “so he [could]
get a paper trail on her.” Dkt. No. 9 at 1 (emphasis added); see Dkt. No. 8 at 2; see also
Zheng, 2015 WL 7421961, at *3 (explaining that under the NYSHRL, individual liability
attaches when an employee has the authority to hire and fire).
The August 26, 2025, Report-Recommendation & Order, also discussed how, in
June 2019, the New York State Legislature amended the NYSHRL to allow the pleading
standards to more closely align with the New York City Human Rights Law (“NYCHRL”).
7 The undersigned notes that plaintiff lists the defendants’ job titles as follows: Glass, Bender, and Mazzelli
are managers, Winowski is a dispatcher, and Crom is an “[e]mployee promoted over plaintiff.” Dkt. No. 8 at
1-2. 	Reading plaintiff’s amended complaint liberally and affording her due solicitude, the undersigned
concludes that at least as to Winowski and Crom, her amended complaint does not suggest the authority to
hire and fire other employees at Waste Management. Plaintiff’s identification of Glass, Bender, and Mazzelli
as managers, without more, is also insufficient to demonstrate that they had hiring or firing authority.
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See Dkt. No. 5 at 15-17; see also Herrera v. Syracuse Univ., No. 5:24-CV-245 (AMN/ML),
2025 WL 874734, at *15 (N.D.N.Y. Mar. 20, 2025) (quoting Livingston v. City of New York,
563 F. Supp. 3d 201, 232 n.14 (S.D.N.Y. 2021)); Qorrolli v. Metro. Dental Assocs., 124
F.4th 115, 122-23 (2d Cir. 2024) (citing N.Y. Exec. Law § 300). Under the pre-amendment
standard, in order to plead an “employment discrimination claim[] under 	. . . the NYSHRL,
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.’” 	Farmer, 473 F. Supp. 3d at 324 (quoting Vega, 801 F.3d at 87).
As stated before, “[a] plaintiff may do this by ‘alleging facts that directly show discrimination
or facts that indirectly show discrimination by giving rise to a plausible inference of
discrimination.’” Id. (quoting Vega, 801 F.3d at 87). Under the post-amendment standard,
“the plaintiff need only show differential treatment – that she is treated less well – because
of a discriminatory intent.” 	Herrera, 2025 WL 874734, at *15 (quoting Mihalik v. Credit
Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 110 (2d Cir. 2013) (citing Williams v. N.Y.C.
Hous. Auth., 61 A.D. 3d 62, 77 (1st Dept. 2009))) (internal quotation marks omitted).
The law in this area is currently unsettled, leading courts within the Second Circuit
to analyze NYSHRL employment discrimination claims under both standards, treating
them as “coextensive.” 	Ricciardo v. NYU Hosps. Ctr., No. 22-CV-4952 (MKB), 2025 WL
2208371, at *25 (E.D.N.Y. Aug. 4, 2025) (additional citations omitted) (“[T]he Second
Circuit has noted that the New York Court of Appeals has constru[ed] the NYSHRL and
NYCHRL claims together in [a]pplying the mandate to interpret these laws broadly, and
lower courts have treated NYSHRL and NYCHRL claims as coextensive.”); Herrera, 2025
WL 874734, at *15 (“While Second Circuit courts are currently split over the extent to which
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NYSHRL standards should be equated with NYCHRL standards, New York state courts
have recently treated the two as coextensive.”) (additional citations omitted).
As to the merits of plaintiff’s NYSHRL employment discrimination claim, plaintiff’s
amended complaint suggests that Dennis’ decision to fire her was motivated by her gender
and “discriminatory intent.” Herrera, 2025 WL 874734, at *15; Farmer, 473 F. Supp. 3d at
324; Dkt. No. 8 at 2-3; Dkt. No. 9 at 1. Therefore, the undersigned concludes that, whether
applying either the pre-amendment or post-amendment pleading standard, at this early
stage, plaintiff has sufficiently pled a prima facie NYSHRL gender discrimination claim
against Dennis.8 See Herrera, 2025 WL 874734, at *15; see Farmer, 473 F. Supp. 3d at
324. 	Accordingly, 	the 	undersigned 	recommends 	that 	plaintiff’s 	NYSHRL 	gender
discrimination claim against Dennis survive § 1915 review.9
C. Title VII and NYSHRL Retaliation
Plaintiff 	alleges 	that Waste 	Management retaliated 	against her for 	reporting
workplace safety issues and discriminatory conduct. See generally Dkt. No. 8. As stated
in the August 26, 2025, Report-Recommendation & Order, to plead a prima facie Title VII
retaliation claim “the plaintiff must plausibl[y] allege that: (1) defendants discriminated – or
took an adverse employment action – against [her]; (2) ‘because’ [she] has opposed any
unlawful employment practice.” Krul v. Brennan, 501 F. Supp. 3d 87, 99 (N.D.N.Y. 2020)
(quoting Vega, 801 F.3d at 90). 	“In the context of a retaliation claim, an adverse
employment action is any action that could well dissuade a reasonable worker from making
or supporting a charge of discrimination.” 	Id. (quoting Vega, 801 F.3d at 90) (internal
8 As plaintiff’s amended complaint satisfies the stricter requirements of the pre-amendment NYSHRL
standards, it is not necessary to separately analyze plaintiff’s claim under the post-amendment standard.
9See supra n.6.
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quotation marks and additional citation omitted)). 	“As for causation, a plaintiff must
plausibly plead a connection between the act and [her] engagement in protected activity.”
Id., at 100 (quoting Vega, 801 F.3d at 90 (citing 42 U.S.C. § 2000e-3(a))). 	“[R]elevant
here[,] a plaintiff engages in protected activity when she (1) opposes employment practices
prohibited under Title VII; (2) makes a charge of discrimination; or (3) participates in an
investigation, proceeding or hearing arising under Title VII.” Jacobs v. Hudson Valley Fam.
Physicians, PLLC, 725 F. Supp. 3d 235, 247 (N.D.N.Y. 2024) (quoting Davis v. NYS Dept.
of Corr. Attica Corr. Facility, 110 F.Supp.3d 458, 462 (W.D.N.Y. 2015) (quoting Bundschuh
v. Inn on the Lake Hudson Hotels, LLC, 914 F. Supp. 2d 395, 405 (W.D.N.Y. 2012)))
(internal quotation marks omitted); see also Stathatos v. Gala Res., LLC, No. 06 CIV.
13138 (RLC), 2010 WL 2024967, at *12 (S.D.N.Y. May 21, 2010) (citing 42 U.S.C. § 2000e-
3(a)) (“Protected activity is that which opposes unlawful employment practices under Title
VII.”). “Protected activities can also include informal protests of discriminatory employment
practices, including making complaints to management provided that they are sufficiently
specific to make it clear that the employee is complaining about conduct prohibited by Title
VII.” Id. (quoting Arkorful v. N.Y.C. Dept. of Educ., 712 F. Supp. 3d 336, 356 (E.D.N.Y. Jan.
24, 2024) (quoting Risco v. McHugh, 868 F. Supp. 2d 75, 110 (S.D.N.Y. 2012)) (internal
quotation marks omitted).
Under the NYSHRL, following the 2019 amendment, a plaintiff asserting retaliation
“must demonstrate that she took an action opposing her employer’s discrimination and
that, as a result, the employer engaged in conduct that was reasonably likely to deter a
person from engaging in such action.” Qorrolli, 124 F.4th at 122 (quoting Mihalik, 715 F.3d
at 	112) 	(internal 	quotation 	marks 	omitted). 	Under 	the 	post-amendment 	standard,
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demonstrating causation “only requires that the protected activity be a ‘motivating factor’
in the adverse action, and not its ‘but-for’ cause, as would be required under federal law.”
Ronen v. RedRoute, Inc., 763 F. Supp. 3d 319, 333-34 (E.D.N.Y. 2025) (first quoting Lee
v. Riverbay Corp., 751 F. Supp. 3d 259, 284 (S.D.N.Y. 2024) (citing Mihalik, 715 F.3d at
112); then citing Chin v. N.Y.C. Dep’t of Corr., No. 23-CV-5268 (AMD/JAM), 2024 WL
2258033, at *3 (E.D.N.Y. May 17, 2024))). However, “a defendant is not liable if the plaintiff
fails to prove the conduct is caused at least in part by discriminatory or retaliatory motives.’”
Id. (quoting Mihalik, 715 F.3d at 113); see Forrester v. Corizon Health, Inc., 752 F. App’x
64, 66 (2d Cir. 2018) (summary order) (same).
Liberally read, plaintiff’s amended complaint alleges that because she is a woman,
her driving route was “changed to one with increased safety risks,” and that when she
repeatedly raised these safety issues to her direct supervisor and managers, Dennis,
Mazzelli, and Bender ignored her, and she was forced to continue driving the more
dangerous route. 	Dkt. No. 8 at 1-2. 	On a separate occasion, after plaintiff reported that
her truck was unsafe to drive, “Dennis gave [her] an ultimatum: either drive to another
branch to retrieve a spare truck or go home – despite a spare truck being available at her
location. 	When [she] chose to go home, she was written up for insubordination.” 	Id.
Plaintiff asserts that she was “ultimately terminated in retaliation for raising concerns about
discriminatory treatment and unsafe practices.”10 Id. at 3.
The undersigned concludes that, at this early stage, plaintiff has sufficiently pled
that she was both discriminated against and suffered an adverse employment action
10 The undersigned observes that complaining about unsafe working conditions and practices, alone, does
not constitute protected activity under either Title VII or the NYSHRL. 	See Krul, 501 F. Supp. 3d at 99
(quoting Vega, 801 F.3d at 90); Qorrolli, 124 F.4th at 122 (quoting Mihalik, 715 F.3d at 112).
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because she complained of and opposed the unsafe working conditions that she was
subjected to because she is a woman. 	See Krul, 501 F. Supp. 3d at 99 (quoting Vega,
801 F.3d at 90); see Paupaw-Myrie v. Mount Vernon City Sch. Dist., 653 F. Supp. 3d 80,
101 (S.D.N.Y. 2023) (quoting Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C.,
716 F.3d 10, 14-15 (2d Cir. 2013) (per curiam) (“An employee’s complaint qualifies as
protected activity so long as the employee has a good faith, reasonable belief (assessed
in light of the totality of the circumstances) that the employee was ‘opposing an
employment 	practice 	made 	unlawful 	by Title 	VII.’”). 	Accordingly, 	the 	undersigned
recommends that plaintiff’s Title VII and NYSHRL retaliation claims11 against Waste
Management survive § 1915 review.12
D. NYSHRL Hostile Work Environment
1. Waste Management
Plaintiff alleges that Waste Management created a hostile work environment. See
Dkt. No. 8 at 4. “Historically, a hostile work environment claim under the NYSHRL required
a showing [1] that the harassment was sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment, and [2]
that a specific basis exists for imputing the objectionable conduct to the employer.”
Johnson v. Stop & Shop Supermarket Co., LLC, No. 22-CV-9691 (KMK), 2024 WL
1217074, at *13 (S.D.N.Y. Mar. 21, 2024) (quoting Alfano v. Costello, 294 F.3d 365, 373
11 See supra n.6.
12 As plaintiff’s amended complaint satisfies the more stringent Title VII pleading standard, there is no need
to analyze her retaliation claim under the more liberal pleading standard set forth in the NYSHRL. See Farah
v. Emirates & Emirates Severance Plan, 728 F. Supp. 3d 290, 301 (S.D.N.Y. 2024) (“Given that Title VII has
stricter pleading requirements than either the State or City laws, if Plaintiffs adequately state a claim under
Title VII, they necessarily state a claim under both NYSHRL and NYCHRL.”).
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(2d Cir. 2002) (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)))
(internal quotation marks omitted). 	As discussed above, the NYSHRL was amended in
2019 “to eliminate the ‘severe or pervasive’ requirement in favor of a more lenient standard
of liability.” Id. (quoting Mayorga v. Greenberg, No. 22-CV-387, 2023 WL 6307994, at *8
(E.D.N.Y. Sept. 28, 2023); see McHenry v. Fox News Network, LLC, 510 F. Supp. 3d 51,
68 (S.D.N.Y. 2020) (quoting N.Y. Exec. Law § 300). Under the updated standard, “plaintiffs
need to show only that they were subjected to inferior terms, conditions, or privileges of
employment because of [their] membership in one or more protected categories.” 	Id.
(quoting Tortorici v. Bus-Tev, LLC, No. 17-CV-7507, 2021 WL 4177209, at *13 (S.D.N.Y.
Sept. 14, 2021)).
“An employer’s liability for a hostile work environment claim depends on whether
the underlying harassment is perpetrated by the plaintiff’s supervisor or a non-supervisory
coworker.” Maiurano v. Cantor Fitzgerald Sec., No. 19 CIV. 10042 (KPF), 2021 WL 76410,
at *5 (S.D.N.Y. Jan. 8, 2021) (citing Wiercinski v. Mangia 57, Inc., 787 F.3d 106, 113 (2d
Cir. 2015)). “When the offending employee is a non-supervisory coworker, ‘an employer’s
vicarious liability depends on the plaintiff showing that the employer knew (or reasonably
should have known) about the harassment but failed to take appropriate remedial action.’”
Id. (quoting Petrosino v. Bell Atl., 385 F.3d 210, 225 (2d Cir. 2004)).
If, however, harassment is perpetrated by a supervisor within the meaning
of Title VII, the employer is strictly liable, unless the employer is able to
establish an affirmative defense showing that it exercised reasonable care
to 	prevent 	and 	correct 	any 	harassing 	behavior 	and 	that 	the 	plaintiff
unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer to avoid harm otherwise.
Maiurano, 2021 WL 76410, at *5 (quoting Wiercinski, 787 F.3d at 113 (internal quotation
marks omitted).
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Plaintiff’s amended complaint alleges that, because she is a female, she was
(1) forced to use unsafe equipment and work in an unsafe work environment, (2) passed
over for promotions in favor of less-qualified male coworkers, and (3) “repeatedly
harassed, including being present when Mr. Dennis relieved himself between buildings,
being verbally assaulted by a male employee, and being denied access to safe restroom
facilities.” Dkt. No. 8 at 2-3. Out of an abundance of caution and deference to plaintiff pro
se, the undersigned determines that the amended complaint also alleges that Dennis and
Glass made false statements about her conduct, at least arguably suggesting that they did
so because she is a woman. See id. at 3; Dkt. No. 9 at 19-20.
As discussed above, it appears that Dennis was plaintiff’s supervisor at Waste
Management, while Glass may have been in a nonsupervisory position. See supra at 10;
Maiurano, 2021 WL 76410, at *5 (quoting Wiercinski, 787 F.3d at 113). 	As such, if the
allegations are proven, Waste Management may be held (1) strictly liable for Dennis’
conduct; and (2) vicariously liable for Glass’ conduct, if plaintiff can demonstrate that Waste
Management knew or should have known about Glass’ conduct. See Maiurano, 2021 WL
76410, at *5 (quoting Petrosino, 385 F.3d at 225). The undersigned concludes that, at this
early stage, plaintiff has sufficiently pled that she was “subjected to inferior terms,
conditions, or privileges of employment” because of her membership in a protected class.
Johnson, 2024 WL 1217074, at *13. 	Accordingly, the undersigned recommends that
plaintiff’s NYSHRL hostile work environment claim against Waste Management survive
Section1915 review.13
2. Aiding and Abetting
13 See supra n.6.
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Although plaintiff does not use the language “aiding and abetting” in her amended
complaint, applying special solicitude, because plaintiff may only proceed against the
individual defendants under the NYSHRL under an aiding and abetting theory of liability,
the undersigned next addresses whether plaintiff has sufficiently pled that Dennis and
Glass aided and abetted Waste Management in creating a hostile work environment. The
Second Circuit “‘recognizes a cause of action against individual employee perpetrators
under Section 296(6) of the [NYSHRL]’ where a plaintiff has sufficiently alleged a violation
of the NYSHRL by the employer.” 	Trapani v. Freeport Pub. Sch. Dist., No. 24-CV-3005
(JS/SIL), 2025 WL 2306658, at *7 (E.D.N.Y. May 2, 2025), report and recommendation
adopted, No. 24-CV-3005 (JS)(SIL), 2025 WL 1812324 (E.D.N.Y. July 2, 2025) (quoting
Lee, 751 F. Supp. 3d at 290); see Pellegrini v. Sovereign Hotels, Inc., 740 F.Supp.2d 344,
356 	(N.D.N.Y. 	2010) 	(“Importantly, 	since 	it 	is 	the 	employer’s 	participation 	in 	the
discriminatory practice which serves as the predicate for the imposition of liability on others
for aiding and abetting, a plaintiff cannot prevail against an individual on her state . . .
claims unless she can first establish the liability of her employer.”) (citations omitted).
“Under a theory of aiding and abetting, it is unlawful for any person to aid, abet,
incite, compel or coerce the doing of any of the acts forbidden under [the NYSHRL], or to
attempt to do so.” Milner-Koonce v. Albany City Sch. Dist., No. 1:21-CV-1271 (LEK/CFH),
2023 WL 3748831, at *6 (N.D.N.Y. June 1, 2023) (quoting Livingston, 563 F. Supp. 3d at
256 (quoting N.Y. Exec. Law § 296(6))) (internal quotation marks omitted). “The Second
Circuit has held that ‘this language allow[s] a co-worker who actually participates in the
conduct giving rise to a discrimination claim to be held liable under the NYSHRL . . . .’” Id.
(quoting Livingston, 563 F. Supp. 3d at 256) (quoting Feingold v. New York, 366 F.3d 138,
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158 (2d Cir. 2004)); Johnson v. Cnty. of Nassau, 82 F. Supp. 3d 533, 536 (E.D.N.Y. 2015)
(citation omitted) (“[A] plaintiff may succeed in a claim under the NYSHRL by showing the
employer entity’s having encouraged, condoned, or approved the discriminatory conduct
of a sole employee – the same discriminatory conduct which then, perhaps ‘circular[ly]’,
proves individual liability under the aiding and abetting provision of Section 296(6).”); Tully-
Boone v. N. Shore-Long Island Jewish Hosp. Sys., 588 F. Supp. 2d 419, 427 (E.D.N.Y.
2008) (citation omitted) (noting that aiding and abetting “creates a strange and confusing
circularity where the person who has directly perpetrated the [unlawful discrimination] only
becomes liable through the employer whose liability in turn hinges on the conduct of the
direct perpetrator”). 	“A supervisor’s failure to take adequate remedial measures in
response to a complaint of discrimination has been deemed ‘actual participation’ under
NYSHRL § 296(6).” 	Id. (quoting Imperato v. Otsego Cnty. Sheriff’s Dep’t, No. 3:13-CV-
1594 (BKS/DEP), 2016 WL 1466545, at *28 (N.D.N.Y. Apr. 14, 2016)). “The same principle
applies to . . . hostile work environment claim[s] . . . .” Id. (quoting Imperato, 2016 WL
1466545, at *28).
Here, plaintiff alleges that Dennis “instruct[ed] male employees to avoid [her] or risk
being accused of sexual harassment,” “reliev[ed] himself” in plaintiff’s presence, allowed
plaintiff to be “verbally assaulted by a male employee,” “den[ied] [plaintiff] access to safe
restroom facilities,” falsely accused plaintiff “of stealing company time,” and “forc[ed]
[plaintiff] to accept changes that endangered her safety and job security.” Dkt. No. 8 at 2-
3. 	The undersigned concludes that plaintiff’s amended complaint could support an
inference that Dennis incited, “encouraged, condoned, [and] approved the discriminatory
conduct,” and actually participated insofar as he failed to “take adequate remedial
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measures in response to a complaint of discrimination.” 	Milner-Koonce, 2023 WL
3748831, at *6; see generally Dkt. Nos. 8, 9. 	Similarly, the amended complaint could
support an inference that Glass actually participated in, or aided and abetted, a hostile
work environment by making false statements regarding the confrontation between plaintiff
and Dennis. Id; see Dkt. Nos. 8, 9 at 20. Therefore, at this early stage, the undersigned
concludes that plaintiff has sufficiently pled that Dennis and Glass aided and abetted
Waste Management’s alleged creation of a hostile work environment.14 	See Milner-
Koonce, 2023 WL 3748831, at *6. 	Accordingly, the undersigned recommends that
plaintiff’s amended complaint be read as raising NYSHRL aiding and abetting a hostile
work environment claims against Dennis and Glass, and that such claims survive § 1915
review.15
E. Abandoned Claims
Plaintiff’s original complaint sought to raise claims for breach of contract against
Waste Management and defamation against Dennis and Glass under New York State law.
See Dkt. No. 1 at 4. 	The Court afforded plaintiff an opportunity to amend to (1) argue
whether equitable tolling applies, such that her defamation claim is not barred by one-year
the statute of limitations; and (2) provide a copy of the contract or additional details about
the contract terms she alleged to have been breached. See Dkt. No. 6 at 5-6. Plaintiff’s
amended complaint does not reallege any breach of contract or defamation claim against
any defendant, explain why she should be afforded equitable tolling, or mention such
14 The undersigned makes clear that in so recommending, it is acknowledged that an aiding and abetting
claim against Dennis or Glass could only succeed if plaintiff demonstrates that Waste Management created
hostile work environment. The undersigned makes no findings on whether either claim will be able to survive
a properly-filed and supported dispositive motion.
15 See supra n.6.
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21
claims in any way. 	See generally Dkt. Nos. 8, 9. 	Accordingly, the undersigned
recommends that these claims be deemed abandoned. See Zheng, 2016 WL 11477390,
at *5 (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-00435 (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)). “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)).
Here, plaintiff was already afforded an opportunity to amend. 	See Dkt. No. 6.
Plaintiff’s amended compliant does not allege that Glass, Bender, Mazzelli, Winowski, or
Crom had the authority to hire and fire employees at Waste Management, as required to
set forth a NYSHRL gender discrimination claim. Plaintiff abandoned her New York state
law defamation and breach of contract claims. 	Accordingly, it is recommended that
plaintiff’s 	(1) 	Title 	VII 	and 	NYSHRL 	gender 	discrimination 	claims 	against 	Waste
Management; (2) NYSHRL gender discrimination claim against Dennis; (3) Title VII and
NYSHRL retaliation 	claims 	against 	Waste 	Management; 	(4) 	NYSHRL hostile 	work
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environment claim against Waste Management; and (5) NYSHRL aiding and abetting a
hostile work environment claims against Dennis and Glass survive § 1915 review and be
permitted to proceed. 	It is also recommended that plaintiff’s (1) Title VII gender
discrimination claims against Winowski and Crom; NYSHRL gender discrimination claims
against Glass, Bender, Mazzelli, Winowski, and Crom; and (2) New York state law
defamation and breach of contract claims be dismissed with prejudice and without
opportunity to amend. See Murrey v. BrandYourself.com, Inc., No. 21-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 insofar as plaintiff seeks to proceed against Winowski and
Crom under Title VII for gender discrimination (Dkt. No. 8), such claims be DISMISSED
with prejudice and without leave to amend; it is further
RECOMMENDED, that insofar as plaintiff seeks to proceed against Glass, Bender,
Mazzelli, Winowski, and Crom under the NYSHRL for gender discrimination (Dkt. No. 8),
such claims be DISMISSED with prejudice and without leave to amend; it is further
RECOMMENDED, that plaintiff’s New York State law for defamation and breach of
contract claims be deemed abandoned and DISMISSED with prejudice and without
leave to amend; it is further
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RECOMMENDED, that plaintiff’s claims for (1) gender discrimination against Waste
Management under Title VII and the NYSHRL; (2) gender discrimination against Dennis
under the NYSHRL; (3) retaliation against Waste Management under Title VII and the
NYSHRL; (4) hostile work environment against Waste Management under the NYSHRL;
and (5) aiding and abetting a hostile work environment against Dennis and Glass under
the NYSHRL be permitted to survive Section 1915 review; it is further
RECOMMENDED, 	that 	should 	the 	District 	Judge 	adopt 	this 	Report-
Recommendation & Order, the District Judge direct this matter to the Clerk for service of
the amended complaint and summonses upon defendants or return this matter to the
Magistrate Judge to initiate such service; and it is
ORDERED, that the Clerk serve a copy of this Report-Recommendation and Order
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), 72.16
Dated: December 1, 2025
Albany, New York
16 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 (14) day 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.
Id. § 6(a)(1)(c).
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