Skates v. Inc. Vill. of Freeport

Full title: EARLINE SKATES, Plaintiff, v. INCORPORATED VILLAGE OF FREEPORT, Defendant.

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Date published: Jan 28, 2016

CV 15-1136 (SJF)(AYS) (E.D.N.Y. Jan. 28, 2016)

Opinion

CV 15-1136 (SJF)(AYS)

01-28-2016

EARLINE SKATES, Plaintiff, v. INCORPORATED VILLAGE OF FREEPORT, Defendant.

SHIELDS, Magistrate Judge

REPORT AND RECOMMENDATION

SHIELDS, Magistrate Judge :

Plaintiff Earline Skates ("Plaintiff" or "Skates") brings this employment discrimination lawsuit against her former employer, Defendant Incorporated Village of Freeport ("Freeport," the "Village" or "Defendant"). Plaintiff alleges claims of discrimination based on race, disability, and the exercise of her First Amendment rights. She alleges claims of direct discrimination in the form of alleged adverse employment action as well as her ultimate termination. Additionally, Plaintiff sets forth claims of retaliation and a hostile working environment.

Plaintiff's Federal claims are brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"); the Americans with Disabilities Act 42 U.S.C. §§ 12101 to 12213 (the "ADA"); the Family Medical Leave Act, 29 U.S.C. § 2601 et. seq. (the "FMLA"); 42 U.S.C. § 1981 ("Section 1981"), and 42 U.S.C. §1983 ("Section 1983" or the "Civil Rights Claims"). The Civil Rights Claims allege race discrimination in violation of Section 1981, and First Amendment retaliation. Plaintiff also alleges parallel claims pursuant to the New York State Human Rights Law § 296 (the "NYSHRL").

Presently before this Court, upon referral by the Honorable Sandra J. Feuerstein for Report and Recommendation, is Defendant's motion, pursuant to Rule 12 of the Federal Rules of Civil Procedure, to dismiss the Complaint in its entirety. For the reasons set forth below, it is respectfully recommended that the motion be granted in part and denied in part.

BACKGROUND

I. Documents Considered

The facts considered herein are drawn from the Complaint and other documents properly before the Court, as set forth below. As is required in the context of this motion to dismiss, the factual allegations in the Complaint, though disputed by Defendant, are accepted to be true for purposes of this motion, and all reasonable inferences are drawn therefrom in favor of the Plaintiff.

While facts to consider in the context of a Rule 12 motion to dismiss are generally limited to those set forth in the pleadings, a court may consider matters outside of the pleadings when determining, for purposes of a Rule 12(b)(1) motion, whether subject matter jurisdiction exists. M.E.S., Inc. v. Snell, 712 F.3d 666, 671 (2d Cir. 2013); Romano v. Kazacos, 609 F.3d 512, 520 (2d Cir. 2010); Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) aff'd, 561 U.S. 247 (2010).

Additionally, in the context of a Rule 12(b)(6) motion, a court may consider: (1) documents attached to the Complaint as exhibits or incorporated by reference therein; (2) matters of which judicial notice may be taken; or (3) documents upon the terms and effect of which the Complaint "relies heavily" and which are, thus, rendered "integral" to the Complaint. Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002); see International Audiotext Network, Inc. v. American Tel. and Tel. Co., 62 F.3d 69, 72 (2d Cir.1995). Moreover, "[a] court may take judicial notice of a document filed in another court not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings." Glob. Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006) (quoting Int'l Star Class Yacht Racing Ass'n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir.1998)).

Prior to instituting this lawsuit, Plaintiff filed three administrative claims of employment discrimination (collectively the "Administrative Charges"). The first two claims (the "First Charge" and the "Second Charge") were filed with the New York State Division of Human Rights (the "NYSDHR Complaints"). The third administrative claim of employment discrimination was filed with the United States Equal Employment Opportunity Commission (the "EEOC") (the "Third Charge"). Decisions rendered in connection with the Administrative Charges and documents filed thereunder are annexed as extensive exhibits to Defendant's motion. Such documents are public and referenced in Plaintiff's Complaint. There is no question as to her notice thereof. These documents are properly considered in the context of the present motion to dismiss. See Morris v. David Lerner Associates, 680 F. Supp. 2d 430, 436 (E.D.N.Y. 2010); Muhammad v. New York City Transit Authority, 450 F. Supp. 2d 198, 204-205 (E.D.N.Y. 2006); see also James v. Federal Reserve Bank of New York, 2005 WL 1889859, at * 1 n. 2 (E.D.N.Y. 2005) (noting that a court may take judicial notice of an EEOC charge).

The Court turns now to discuss the facts set forth in Plaintiff's Complaint, construed in her favor, as well as those appearing in the documents properly considered herein.

II. Plaintiff's 2009 - 2012 Employment by the Village

Plaintiff is an African American female who was first employed by the Village in July of 2009 as a seasonal employee working in the office of the Village Assessor. Plaintiff worked at that position until July 20, 2010, when she became a full-time permanent clerk in the Assessor's office. Plaintiff characterizes her duties while employed at the Assessor's office as comprised primarily of paralegal tasks. See Docket Entry ("DE") 1, Complaint ("Compl.") ¶ 26. Such duties included, inter alia, assisting seniors with applications for tax reductions, preparing paperwork for assessor hearings, clerical work, data entry, and working with the building department in the issuance of permits. Compl. ¶ 27.

III. May-June 2012: Events Preceding the First Charge

On May 28, 2012, Plaintiff attended the Village Memorial Day parade. While at the parade, Plaintiff collected signatures in support of a local campaign known as "Resolution 18/44," a Village Resolution aimed at keeping broadcasts of the Village Board of Trustees meetings on local public access television. Compl. ¶ 31. Plaintiff asserts that she was observed at the parade by two disapproving Village Trustees who instructed the Village Superintendent of Public Works to order Plaintiff to stop collecting signatures. Compl. ¶¶ 31-32. Plaintiff alleges that the subject of her signature collection came up at a June 2012 meeting of the Village Board of Trustees. There, the two Trustees who disapproved of Plaintiff's signature collection efforts are alleged to have publicly voiced their disapproval, and to have commented that Plaintiff should therefore not be employed by the Village. Compl. ¶¶ 33. Despite these comments, Plaintiff retained her job with the Village.

IV. August 17, 2012: The First Charge

Approximately three months after the Memorial Day parade, on August 17, 2012, Plaintiff filed a complaint with the NYSDHR (the "First Charge"). That complaint alleged, inter alia, that Plaintiff was subject to discriminatory employment practices on account of her race, national origin, sex, and age, in violation of Title VII and the NYSHRL¹. See DE 15, Defendant's Motion ("Def. Mot."), Ex. B. In a "Determination and Order After Investigation" dated December 20, 2012, the NYSDHR issued finding of no probable cause to believe that discrimination had occurred. While the decision refers to Plaintiff's signature collection during the parade, and that she and the Trustees were involved in a heated discussion, it also notes that Plaintiff provided no evidence that she was discriminated against, or of any negative employment action. Def. Mot., Ex. C. The NYSDHR therefore ordered the First Charge dismissed, and the file closed. On February 13, 2013, the Equal Employment Opportunity Commission ("EEOC") adopted the findings of the NYSDHR and issued a right to sue notice. Det. Mot., Ex. D. The 90 Days set forth in the February 13, 2013 lawsuit passed without the filing of a lawsuit, and Plaintiff continued to work for the Village.

1 Although the First Charge references allegations of discrimination based on sex and age, the Plaintiff has neither pled any facts nor made any arguments in support of such claims. Thus, the Court deems such allegations abandoned.

V. March 2013-August 7, 2013: Events Preceding the Second Charge

A. Plaintiff's March 2013 Support of Mayor Hardwick

In March of 2013, while still employed by the Village, Plaintiff made clear her support for then-Mayor Andrew Hardwick in the upcoming mayoral election. Compl. ¶ 30. She asserts that she was involved in gathering information regarding the residency of Hardwick's opponent, Robert T. Kennedy, who was rumored to be living in Lynbrook, New York, rather than in the Village. Compl. ¶ 34. Plaintiff states that her investigation resulted in uncovering discrepancies concerning Kennedy's property, as well as a finding of illegal signatures in connection with his election. Compl. ¶ 36. On March 19, 2013 Mayor Hardwick lost the election to Kennedy. Plaintiff alleges that following Kennedy's election, all African-American Village employees were either transferred or fired. Compl. ¶ 44.

On or about April 2, 2013, two weeks after Kennedy was elected as mayor, Plaintiff was transferred from her position at the assessor's office to a position at the Freeport Recreation Center (the"FRC"), to work as a Recreation Attendant. Compl. ¶ 45. Plaintiff began her position as the FRC position on April 3, 2013. Her claims of adverse employment action, as discussed below, all stem from her transfer, the duties to which she was assigned and disciplinary actions taken while working at the FRC.

B. Plaintiff's Transfer to the FRC and her New Job Responsibilities

Although Plaintiff did not suffer any diminution in salary, her duties at the FRC differed completely from those at the assessor's office. While the latter was an administrative position, Plaintiff's work at the FRC was janitorial in nature. Specifically, her duties at the FRC included sweeping, dusting, painting, cleaning recreation center equipment, mopping floors, cleaning paint off of walls and tables, cleaning bathrooms, and cleaning the FRC parking lot. Compl. ¶ 53-54. Plaintiff, who is right-handed, asserts that her cleaning duties caused the ligaments of her right wrist to tear, a disability necessitating treatment which continues to this day. Compl. ¶ 55. These duties are distinguished from Plaintiff's duties at the Assessor's Officer, which Plaintiff refers to as paralegal in nature.

C. Allegations of Mistreatment by Plaintiff's FRC Supervisors and Co-workers

Plaintiff states that after her first supervisor, James Buford, was replaced by John Henry, all of her superiors were Caucasian. Compl. ¶ 52. She claims to have suffered verbal insults and abuse from co-workers. Plaintiff claims particular acts of mistreatment by her last supervisor, FRC manager Victoria Dinielli ("Dinielli"). Compl. ¶ 49. Dinielli is alleged to have wrongfully discussed personal matters relating to accumulated vacation days and "comp" time, in the presence of Plaintiff's co-worker, Victoria Groden. Plaintiff alleges she was the only employee with whom Dinielli spoke publicly regarding such allegedly private matters. Compl. ¶ 67.

Dinielli is alleged to have threatened to take accumulated time away from Plaintiff for failure to produce her attendance card. Compl. ¶ 57. Dinielli is stated to have told Plaintiff that if her attendance card was not found, she would start her time accrual at zero; thereby, denying Plaintiff previously accrued vacation days and hours of "comp" time. Compl. ¶¶ 57-58. This dispute was resolved at a meeting between Plaintiff, her union president, Peter Reinke, Supervisor James Buford, and Dinielli. At that meeting, it was acknowledged that Plaintiff deserved credit for the hours she allegedly accumulated, and an affidavit was executed, stating that Plaintiff's attendance card was accurate. Compl. ¶ 63.

In addition to the incident described above, Dinielli is alleged to have wrongfully denied Plaintiff a card key allowing her access to the employee parking lot. According to Plaintiff, that key was denied to her on account of her race. Compl. ¶ 71.

On or about April 17, 2013, Dinielli is alleged to have wrongfully written up Plaintiff for insubordination following a verbal altercation. Plaintiff was put on probation for twelve months and was required to attend Employee Assistance Program ("EAP") counseling from April 19, 2013, through May 10, 2013. Compl. ¶ 59. It is clear that Plaintiff completed the required counseling program within the time allotted. Still, Plaintiff alleges that Dinielli's reprimand and discipline of Plaintiff was disparate from the penalties awarded to employees who were not members of Plaintiff's protected class. Compl. ¶ 70.

D. May 2008 Change in Duties and Schedule

On or about May 8, 2013, Dinielli changed Plaintiff's cleaning tasks to the less desirable job of cleaning the exercise room. Plaintiff claims that other recreation attendants (Naomi and Gwen) were assigned fewer and less onerous responsibilities than Plaintiff. See Compl. ¶¶ 68-69. During an exchange between Plaintiff and Dinielli regarding Plaintiff's reassignment, Dinielli is stated to have raised her voice and became hostile towards Plaintiff. Plaintiff states that as a consequence she began to experience chest pains and had to leave work to seek medical attention. After receiving such attention, Plaintiff states that she was advised by her treating doctor not to return to work for one week. Compl. ¶ 63.

Plaintiff states that on May 22, 2013, Dinielli changed Plaintiff's work schedule to include Sundays. When Plaintiff told Dinielli that she could not work on Sundays due to her religious convictions, Dinielli is stated to have responded: "[t]hat is the schedule and I am not going to change it." Compl. ¶ 73. Within days, however, Dinielli adjusted Plaintiff's schedule to allow for Sundays off. Compl. ¶ 74. Plaintiff continued to complain about her schedule, stating that she was the only employee who did not have two consecutive days off.

E. Plaintiff's June-July 2013 Hospitalization and Failure to Report to Work

Plaintiff's complaint alleges facts regarding a hospitalization that took place between early June of 2013 and July 2, 2013, Plaintiff states that she was intermittently hospitalized due to various medical conditions, including stress-induced stomach pains, back pains, and possible suicidal ideation. Plaintiff asserts she submitted the required medical documents to Defendant. Compl. ¶ 75. Despite this documentation Plaintiff asserts that on July 5, 2013, she was required to respond to a letter received from Dinielli, informing Plaintiff that she had "abandoned" her job. Plaintiff replied that she had been staying in the hospital and would return to work on July 8, 2013. Compl. ¶ 76.

One day after Plaintiff's July 8, 2013 return to work she was informed that she would be suspended for two days without pay for her failing to call in sick during her aforementioned hospitalization. Compl. ¶ 77.

VI. August 7, 2013: The Second Charge

On August 7, 2013, Plaintiff filed her second charge of discrimination with the NYSDHR (the "Second Charge"). This complaint noted the filing of the First Charge, see Def. Motion, Ex. E, and stated that the most recent act of discrimination took place on April 2, 2013², when Plaintiff was transferred to the FRC. Id. The Second Charge alleges discrimination on the basis of Plaintiff's race, religion and disability, as well as retaliation for opposing discrimination. Def. Motion, Ex. E; see also EEOC Charge dated August 17, 2012, Ex. B. The factual bases asserted in the Second Charge are those set forth above, which occurred after the filing of the First NYSDHR Charge. Def. Motion, Ex. E ¶¶ 4-16.

2 Although Plaintiff's Second Charge states that the most recent or continuing discrimination took place on 4/2/13, the allegations listed on the Second Charge extend to 7/9/13. Therefore, viewing the facts alleged in a light most favorable to the Plaintiff, the Court will use the 7/9/13 date as the last date of discrimination for purposes of time calculations with regard to the Second Charge.

The NYSDHR issued its "Determination and Order after Investigation" with respect to the Second Charge on January 31, 2014 (the "January 2014 NYSDHR Decision"). Def. Mot., Ex. H. By the time that decision was reached, Plaintiff had, as discussed below, already been terminated from her position at the Village. The January 2014 NYSDHR Decision, like that agency's decision with respect to the First Charge, concluded that there was no probable cause to believe that discrimination occurred. Specifically, the January 2014 NYSDHR Decision sets forth Plaintiff's claims and refers to her transfer to the FRC. It notes that: (1) Plaintiff's dispute with respect to the accrual of time was resolved; (2) Plaintiff completed the required counseling sessions; (3) Plaintiff submitted a doctor's note stating that she would be out of work until May 15, 2013, and (4) Plaintiff's request not to work on Sundays was accommodated. Def. Mot., Ex. H. The January 2014 NYSDHR Decision noted also that Plaintiff failed to submit proof that she gave the Village any doctor note addressing her absence for the period of time between July 1 and July 8, 2013. Finally, the January 2014 NYSDHR Decision states that Plaintiff was terminated, in October of 2013, for gross misconduct. After reciting these facts, the January 2014 NYSDHR Decision simply concludes that "[t]he complaint is therefore ordered dismissed and the file is closed." Id.

On March 19, 2014, the EEOC adopted the findings of the NYSDHR, and issued a right to sue notice. Det. Mot., Ex. I. The 90 days set forth in the March 19, 2014 notice passed without the filing of a federal lawsuit. Instead, on March 20, 2014, Plaintiff filed an Article 78 petition with the New York State Supreme Court challenging the findings of the NYSDHR (the "2014 Article 78 Proceeding"). In a decision dated July 21, 2014, the Supreme Court of the State of New York issued an opinion stating that, upon review of the records submitted, Plaintiff failed to establish that the January 2014 NYSDHR Decision was arbitrary, capricious or without rational basis. Additionally, it was noted that Skates failed to name the Village as a respondent in the Article 78 Proceedings. Accordingly, the Article 78 Petition was ordered dismissed. Def. Mot., Ex. K.

VII. Events Preceding the Third Charge

A. Plaintiff's Wrist Injury and Termination

On October 20, 2013, Plaintiff suffered a work related injury to her right wrist.³ While Plaintiff asserts that the injury required surgery, she does not indicate if or when the surgery was performed. Plaintiff states that her right arm was put in a sling and she had to undergo physical therapy. She claims to have had limited use of her right wrist and hand, and to have been unable to lift anything exceeding two pounds. Compl. ¶ 79-83.

3 The Court notes that the Complaint states October 20, 2012; however, the Plaintiff was not transferred to FRC until after that date and the deposition testimony indicates the injury occurred in October 20, 2013. Thus, the Court considers this date to be a typographical error, and refers to October 20, 2013 as the date the injury occurred.

Plaintiff states that she notified Defendant of her injury before seeking medical treatment; however, she does not state when that notification took place. Compl. ¶ 82. At some point during October 22, 2013⁴, Plaintiff sought treatment for the pain in her wrist and was informed by the treating doctor that she had suffered torn ligaments. The doctor advised Plaintiff that she would need to be out of work for months in order for the damaged ligaments to heal. Compl. ¶ 85. Plaintiff's arm was placed in a sling. She states that she became unable to perform the physically demanding tasks required by her job. Compl. ¶ 86. On the same day, October 22, 2013, Plaintiff applied for Worker's Compensation and supplied Dinielli with a doctor's note, specifying that she would have to be out of work for at least three months. Compl. ¶ 87-88.

4 The Court notes that the Complaint alleges that Skates went to the emergency room, filed for Workers Comp, and was terminated on October 22, 2013; however, in her 50(h) statement, she asserts those same incidents occurred on October 21, 2013. Def. Mot., Ex. G at 22,28, 34.

At some point on October 22, 2013, the same day she received treatment for her wrist, Plaintiff called into work from the emergency room, and spoke with her supervisor, John Henry, who advised her that if she did not report to work immediately, she would be fired. Compl. ¶ 89. Later that day, Plaintiff reported to the FRC and was notified that she was being terminated from her employment with Freeport for having made derogatory comments and her failures to call in sick. Compl. ¶ 91. Plaintiff denies such conduct, and states that the accusations against her were made by co-workers who bore personal animosity towards Plaintiff. Compl. ¶ 93. Plaintiff alleges that following her termination Freeport continued to hire non-disabled, non-African American Recreational Attendants. Compl. ¶ 94.

B. Plaintiff's Union Grievance, Arbitration Hearing and Award

Plaintiff and the Village are parties to a collective bargaining agreement. Pursuant thereto, Plaintiff filed a grievance challenging her termination and the Village filed charges and specifications seeking to uphold its action. An arbitrator held a hearing to determine whether Plaintiff was guilty of the misconduct charged and, if so, the appropriate penalty. See Def. Mot., Ex. N. In an opinion and award dated May 14, 2014, the arbitrator found Skates guilty of misconduct, and held her discharge to be the appropriate penalty. Id.

VIII. Plaintiff's Third Charge

On October 31, 2014, Plaintiff filed a third complaint of discrimination (the "Third Charge"). The Third Charge, made directly to the EEOC, was filed over a year after Plaintiff's termination. It alleges Title VII, ADA and FMLA claims of discrimination and retaliation. Def. Mot., Ex. O. The detailed "Charge of Discrimination" accompanying the Third Charge sets forth all facts referred to above (dating from Plaintiff's 2009 employment to her October 2013 termination).

On December 3, 2014, the EEOC dismissed Plaintiff's Third Charge. The notice of such dismissal and right to sue letter states that the EEOC decided to administratively close the charge because it was "substantially related to [a] charge already resolved by NYS." Def. Mot. Ex.P.

IX. The August 12, 2014 Notice of Claim and the March 4, 2015 Filing of this Lawsuit

On August 12, 2014, after the arbitrator's award and shortly after the denial of Plaintiff's Article 78 Proceeding, Plaintiff filed a Notice of Claim with the Village (the 2014 Notice of Claim"). That notice alleges violations of Title VII (based upon race and religion), the ADA, the FMLA, retaliation, hostile work environment and breach of contract. On December 10, 2014 a hearing was held pursuant to Section 50-h of the General Municipal Law. Approximately three months later, on March 4, 2015, Plaintiff filed this lawsuit. All factual allegations set forth above are set forth in the Complaint.

X. The Motion to Dismiss

As set forth above, Plaintiff alleges Federal claims pursuant to Title VII, the ADA, the FMLA, Section 1981 and Section 1983. Plaintiff also alleges claims based upon the same facts, pursuant to the NYSHRL. Defendant moves to dismiss all claims. Having summarized relevant facts, the Court turns to the merits of the motion.

DISCUSSION

I. Legal Principles: Standards Applicable on Motions to Dismiss

A. Rule 12(b)(1)

A district court may dismiss an action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) when the court "lacks the statutory or constitutional power to adjudicate it . . . .'" Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.À.R.L., 790 F.3d 411, 417 (2d Cir. 2015) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)); see also Shabaj v. Holder, 718 F.3d 48, 50 (2d Cir. 2013). A plaintiff asserting subject matter jurisdiction has the burden to prove that it exists, and in evaluating whether the plaintiff has met that burden, "'[t]he court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff,' but 'jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.'" Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (citations omitted), aff'd, 561 U.S. 247 (2010). The plaintiff has the burden of establishing by a preponderance of the evidence that subject matter jurisdiction exists. Hamm v. U.S., 483 F.3d 135, 137 (2d Cir. 2007). If a court lacks subject matter jurisdiction, it must dismiss the action. Fed. R. Civ. P. 12(h)(3); Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006); Durant, Nichols, Houston, Hodgson & Cortese-Costa, P.C. v. Dupont, 565 F.3d 56, 62-63 (2d Cir. 2009).

B. Rule 12(b)(6)

To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (quoting, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Arista Records, LLC v. Doe 3, 604 F.3d 110, 119-20 (2d Cir. 2010). Facial plausibility is established by pleading sufficient factual content to allow a court to reasonably infer the defendant's liability. Twombly, 550 U.S. at 556. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 555. Nor is a pleading that offers nothing more than "labels and conclusions" or "a formulaic recitation of the elements of a cause of action," sufficient. Iqbal, 556 U.S. at 678 (2009) (quoting Twombly, 550 U.S. at 555).

In addition to the Iqbal standards, a court deciding a motion to dismiss a claim of employment discrimination must also consider the prima facie elements of plaintiff's case in the context of the standards and burdens set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Littlejohn v. City of New York, 795 F.3d 297, 304; 310 (2d Cir. 2015) (Title VII); Dawson v. New York City Transit Authority, 2015 WL 5438790, at *2 (2d Cir. 2015). Just as the McDonnell Douglas "temporary presumption" reduces the facts a plaintiff must show to defeat a motion for summary judgment, that same presumption "also reduces the facts needed to be pleaded under Iqbal." Littlejohn, 795 F.3d at 310; see Jones v. Target Corp., 2016 WL 50779, at *2 (E.D.N.Y. 2016). Thus, at the pleading stage, plaintiff is required only to allege facts to afford "plausible support" for the "reduced requirements" of the prima facie case. Jones, 2016 WL 50779, at *2; see Dawson, 2015 WL 5438790, at *1-2; see also Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 84 (2d Cir. 2015) ("a plaintiff is not required to plead a prima facie case under McDonnell Douglas . . ." and "need only give plausible support to a minimal inference of discriminatory motivation.").

To be clear, the elements of the prima facie case are considered in the context of a motion to dismiss, not to determine whether plaintiff states a prima facie claim, but because they "provide [a helpful] outline of what is necessary to render [a plaintiff's] claims for relief plausible." Friel v. County of Nassau, 947 F. Supp. 2d 239, 251 (E.D.N.Y. 2013) (quoting Sommersett v. City of New York, 2011 WL 2565301, at *5 (S.D.N.Y. 2011)).

With these standards in mind, the Court turns to assess the viability of each of Plaintiff's claims.

II. Title VII and ADA Claims

Defendant asserts that Plaintiff's Title VII and ADA claims must be dismissed because they are time barred. For the reasons set forth below, the Court agrees.

A. Legal Principles as to Timeliness of Title VII and ADA Claims

Before filing a Title VII or ADA action in federal court, a plaintiff must timely file a charge of employment discrimination with the EEOC. 42 U.S.C. §§ 2000e-5(a), (e); 42 U.S.C. § 12117 (incorporating procedures set forth in § 2000e-5); Ayazi v. N.Y.C. Dep't of Educ., 586 F. App'x 600, 602 (2d Cir. 2014); McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 75 (2d Cir. 2010; Thompson v. Odyssey House, 2015 WL 5561209, at *6 (E.D.N.Y. 2015). Such charges are timely only if filed: (1) with the EEOC within 180 days after the alleged unlawful employment practice, or (2) in cases where "the person aggrieved has instituted proceedings with a State or local administrative proceedings," the EEOC charge must be filed "by or on behalf of" the employee within 300 days after the alleged unlawful employment practice occurred, or "within 30 days after receiving notice that the local agency has terminated the proceedings under local law, whichever is earlier . . . .". 42 U.S.C. §§ 2000e-5(e)(1). See also Vega, 801 F.3d at 79 (the charge must be filed with the EEOC "within 180 or, in states like New York that have local administrative mechanisms for pursuing discrimination claims, 300 days after the alleged unlawful employment practice occurred." (internal quotations and citations omitted)); Thomson, 2015 WL 5561209, at *6 (same). This requirement is analogous to a statute of limitations. Vega, 801 F.3d at 79; Patterson v. Cty. of Oneida, 375 F.3d 206, 220 (2d Cir. 2004).

Once the EEOC proceedings are concluded, that agency issues a letter setting forth its determination. Where the EEOC dismisses the claim it issues a letter entitled "Dismissal and Notice of Rights." That letter, commonly known as a "right to sue" letter, advises the employee that she has 90 days from receipt thereof in which to file a lawsuit relating to her charges of discrimination. Tiberio v. Allergy Asthma Immunology of Rochester, 664 F.3d 35, 38 (2d Cir. 2011) (Title VII and ADA); Jordan v. Forfeiture Support Assocs., 928 F. Supp. 2d 588, 598 (E.D.N.Y. 2013) (same).

B. Relevant Time Periods

As noted, Plaintiff filed three separate charges of discrimination. A brief summary of each charge, the facts of which are detailed above, follows. Also set forth below, as to each charge, is: (1) the date of filing; (2) the date of disposition; (3) the date of the right to sue letter; (4) the additional three days for mailing⁵, and (5) the deadline for filing a lawsuit.

5 Courts add three days to the 90 day limitation because courts presume that the right to sue letter is mailed on date of the notice and received three days later. See Thomson, 2015 WL 5561209, at *7 (E.D.N.Y. 2015).

i. First Charge

In the First Charge, Plaintiff charged discrimination based upon her race, color, sex and age. These charges arose out of Plaintiff's debate with the Village Trustees regarding her participation in the May 2012 Memorial Day parade, and her allegations as to acts of unfair treatment that followed.

• Filed (with NYSDHR)	8/17/12
• Last Date of Discrimination	6/06/126
• State Agency Determination	12/20/12
• Right to Sue Letter	2/13/13
• 90 days from Right to Sue Letter	5/16/13
• Last Day to Sue (3 days for mailing)	5/18/13
• Filing of this Lawsuit	3/04/15 (22 months after right to sue letter)

6 The Court notes that First Charge states the last date of discrimination occurred on 6/4/12; however, the allegations listed on the First Charge extend until 6/6/12. Thus, the Court will use the 6/6/12 date for purposes of time calculations.

ii. Second Charge

In the Second Charge, Plaintiff charged discrimination based upon her race, religion and disability. These charges arose out of Plaintiff's April 2013 transfer to the FRC following her support of then-Mayor Hardwick, as well as alleged acts of workplace mistreatment and unfair scheduling through May of 2013. The disability-related incidents referred to in this charge are Plaintiff's June and July of 2013 hospitalizations, and the two day suspension imposed for failure to provide medical authorization explaining Plaintiff's absence.

• Filed (with NYSDHR)	8/07/13
• Last Date of Discrimination	7/09/13
• State Agency Determination	1/31/14
• Right to Sue Letter	3/19/14
• 90 days from Right to Sue Letter	6/22/14
• Last Day to Sue (3 days for mailing)	6/25/14
• Filing of this Lawsuit	3/04/15 (8 months after right to sue letter)

iii. Third Charge

In the Third Charge, filed more than a year after Plaintiff's October 22, 2013 termination, she charged discrimination based upon race, religion and retaliation. That charge (filed by counsel) sets forth all facts alleged with respect to the First Charge and the Second Charge. Additionally, that charge alleged that Plaintiff was terminated on the same day that she was absent from work because she visited the hospital for treatment of her right wrist. That injury took place, as noted above, on or about October 21, 2013, the day before Plaintiff's termination.

• Filed (with EEOC)	10/31/14
• Last Date of Discrimination	10/22/13
• Right to Sue Letter	12/03/14
• 90 Days from Right to Sue Letter	3/03/15
• Last Day to Sue (3 days for mailing)	3/06/15

• Filing of this Lawsuit

3/04/15 (2 days prior to last day to sue)

C. Plaintiff's Title VII and ADA Claims are Time-Barred

i. No Claim Survives the Statutory Time Periods

As noted above, this case was filed on March 4, 2015. Thus, in light of the foregoing dates, there is no question but that Plaintiff's lawsuit, filed twenty-two months after the right to sue letter issued with respect to the First Charge, and, eight months after the right to sue letter issued in the Second Charge, is untimely with respect to the first two administrative charges.

As to the Third Charge, Plaintiff argues that this lawsuit, filed on March 4, 2015, is timely (when allowing three days for mailing) as having been filed within the 90 day period set forth in the December 3, 2014 right to sue letter. While this lawsuit was, indeed, filed within that period, it was filed not filed within the required 300 days prior to the EEOC filing. Instead, Plaintiff did not file the Third Charge until more than a full year after her October 22, 2013 termination - a time period in excess of the 300 day limitation. Thus, all claims arising out of the Third Charge are also time-barred.

Plaintiff points out correctly that the filing of a timely charge of discrimination is not a jurisdictional prerequisite, but instead, akin to a statute of limitations. As such, it is subject to extension on the grounds, inter alia, of the continuing violation doctrine, and equitable tolling. Cohen v. City of New York, 2013 WL 4010196, at *6 (E.D.N.Y. 2013); see Francis v. City of New York, 235 F.3d 763, 768 (2d Cir. 2000). It is well established that these doctrines are to be "sparingly applied." Id. As demonstrated below, they have no application here.

ii. The Continuing Violation Doctrine Does Not Save Plaintiff's Claims

Plaintiff argues that since the Third Charge, which was filed within the 90 day right to sue period, (although outside of the 300 day period) is timely because the claims alleged therein are part of a continuing violation of law. Plaintiff Memorandum in Opposition to Defendant's Motion to Dismiss ("Pl. Mem."), DE 16 at 17-19. Such continuing violation is argued to allow this court to reach back, beyond the 300 day period, to consider Plaintiff's claim of unlawful termination based upon her disability, as well as all claims of mistreatment dating back to 2012. Id.

Under the "continuing violation" exception to the limitations period, if an EEOC Complaint "is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone." Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 155-56 (2d Cir. 2012) (citations omitted). It is thus clear that an exception to the 300 day statute of limitations exists where the plaintiff can establish a "continuing violation" of law. That exception, however, has no application where plaintiff can allege nothing more than "multiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism . . . ." Sesay-Harrell, 2013 WL 6244158, at *11 (quoting Hongyan Lu v. Chase Inv. Serv. Corp., 412 F. Appx 413, 416 (2d Cir. 2011) (internal quotation marks omitted)). Plaintiff argues that her termination was part of her hostile work environment claim based on race, and, as such, is part of a continuing violation regardless of the fact that it occurred outside the 300 day window. However, as discussed herein, Plaintiff's claims under section 1981 fail to plausibly allege facts to support an inference that any employment actions amount to a hostile environment or that any decisions were motivated by race. See infra discussion under Section III (B)(ii).

As even Plaintiff recognizes, (see Pl. Mem. 7), her termination constitutes an unquestionably discrete act "with its own filing deadline." Allen v. New York City Dep't. of Environmental Protection, 51 F. Supp. 3d 504, 510 (S.D.N.Y. 2014) (quoting Chin v. Port Auth. of N.Y. & N.J, 685 F.3d 135, 157 (2d Cir. 2012). As such, that act cannot be part of a preceding and continuing violation. Sareen v. Port Auth. of N.Y. & N.J., 2013 WL 6588435, at *7 (S.D.N.Y. 2013) ("law in this Circuit is clear that ... failures to promote are discrete acts of discrimination and thus do not implicate the continuing violation doctrine." (internal quotation marks omitted)); see generally Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002) (each discrete act of discrimination "constitutes a separate actionable 'unlawful employment practice"). As there is no question but the Third Charge was filed in excess of 300 days of Plaintiff's termination, an act that cannot be plausibly stated as part of a continuing violation, Plaintiff's Title VII and ADA claims are not saved by that doctrine.

iii. Equitable Tolling Does Not Save Plaintiff's Claims

Like the continuing violation doctrine, equitable estoppel is to be sparingly applied. Indeed, such tolling is appropriate only in "rare and exceptional circumstances," where a party has been "prevented in some extraordinary way from exercising his rights." Zerilli-Edelglass v. New York City Tran. Auth., 333 F.3d 74, 80 (2d Cir. 2003) (internal citations and quotations omitted). Such tolling can apply: (1) where the plaintiff actively pursued judicial remedies but filed a defective pleading during the specified time period; (2) where the plaintiff was unaware of his or her cause of action due to misleading conduct of the defendant, or (3) where a plaintiff's medical condition or mental impairment prevented her from proceeding in a timely fashion. See id. at 80. When making a determination as to whether equitable tolling is appropriate, a district court must analyze whether the party asserting the toll has acted with "reasonable diligence" and shows "circumstances are so extraordinary that the doctrine should apply." Id. 80-81 (citations and internal quotations omitted); Odyssey House, 2015 WL 5561209, at *7 (collecting cases).

Plaintiff asserts entitlement to equitable tolling on account of her alleged mental and physical disabilities. Pl. Mem. at 26-27. Those disabilities are identified as Plaintiff's injured wrist, and her history of anxiety disorder. As to the latter, Plaintiff also states that her daughter was hospitalized during Hurricane Sandy with a sickle cell crisis and that she was unable to leave her home for two weeks. She further refers to the fact that she was hospitalized for several days at South Nassau Hospital, was scheduled for psychotherapy, and had multiple exam dates at Zwanger-Pesiri for her hand related injury.

Plaintiff's claims of disability do not rise, as a matter of law, to the extraordinary conditions that would warrant equitable tolling. As to her wrist injury, Plaintiff herself states that she could arguably perform the bare essentials of her job. See Pl. Mem. at 20. Moreover, even if her right wrist injury did, in fact render Plaintiff unable to perform her job, there are no facts supporting any claim that her wrist injury prevented her from making a timely claim of discrimination or any appeal thereof. Nor do Plaintiff's claims of mental disability rise to a level allowing for equitable tolling. While Plaintiff alleges that she suffers from anxiety disorder, there is no evidence that this disability interfered with Plaintiff's ability to attend to her personal affairs. Plaintiff's allegations support only a claim that such disability interfered with her attendance at work on a sporadic basis. Even the allegation that Plaintiff was house-bound for two weeks during Hurricane Sandy (in October and November of 2012) does nothing to further Plaintiff's equitable estoppel claim. Importantly, this event occurred a full year prior to her termination, and Plaintiff maintained her employment during that time period.

Nor is a hearing necessary to decide the estoppel issue. Indeed, this case is readily distinguishable from those where a plaintiff sufficiently alleges disability so as to require a fact finding hearing to determine whether the "mental disability claimed by a plaintiff is of a severe and incapacitating nature, so as to toll the statute of limitations." Wenzel v. Nassau Cnty. Police Dep't, 1995 WL 836056, at *5 (E.D.N.Y. 1995). Here, Plaintiff makes no such allegations in her complaint, and, even accepting as true the facts asserted in her motion, she has simply not met her burden. In sum, the Court finds Plaintiff fails to allege any facts raising a plausible issue as to equitable tolling. See Lloret v. Lockwood Greene Engineers, Inc., No. 97 CIV. 5750 (SS), 1998 WL 142326, at *4 (S.D.N.Y. Mar. 27, 1998).

For the foregoing reasons, Plaintiff's Title VII and ADA claims must be dismissed as untimely. Plaintiff's Section 1981 and 1983 claims are not subject to the same time limitations as her Title VII and ADA claims, but instead, if brought in New York, is three years for claims brought under Section 1983 and four years for claims brought under Section 1981 unless the claims arise out of a post-1990 Act of Congress such as the 1991 Amendments to Section 1981, in which case the statute of limitations is four years. See Bowen-Hooks v. City of New York, 13 F. Supp. 3d 179, 209 (E.D.N.Y. 2014) (citations omitted); Morales v. Cty. of Suffolk, 952 F. Supp. 2d 433, 436 (E.D.N.Y. 2013); Patterson, 375 F.3d at 225. Since such claims are timely, the Court turns to consider the grounds alleged in support of their dismissal.

III. Sections 1981 and 1983 Claims of Racial Discrimination

Defendant seeks dismissal of the Civil Rights Claims of racial discrimination on the grounds of collateral estoppel, and that Plaintiff fails to allege facts in plausible support of a prima facie case of discrimination. The Court considers these grounds in turn.

A. Collateral Estoppel

i. Legal Principles

Federal courts give the same preclusive effect to state court judgments as they are afforded by the courts of the State of New York. See 28 U.S.C. § 1738; Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293 (2005); Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 81 (1984); Allen v. McCurry, 449 U.S. 90, 105 (1980) (applying collateral estoppel from state court judgment to Section 1983 claim). In New York, preclusive effect is afforded so long as: "(1) the issue in question was actually and necessarily decided in a prior proceeding, and (2) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding." Dutrow v. New York State Gaming Commission, 607 Fed. Appx. 56 n. 1 (2d Cir. 2015) (summary order) (quoting Vargas v. City of New York, 377 F.3d 200, 205-06 (2d Cir. 2004); Gowanus Indus. Park, Inc. v. Hess Corp., 2012 WL 273657, *6 (E.D.N.Y. 2012); see Johnson v. County of Nassau, 411 F. Supp. 2d 171, 179 (E.D.N.Y. 2006) (New York law bars re-litigation of an issue where there is an "'identity of issue which has necessarily been decided in the prior action and is dispositive of the present action,' and the party to be estopped ... had a 'full and fair opportunity to contest the decision now said to be controlling.'" (quoting Kosakow v. New Rochelle Radiology Assoc., 274 F.3d 706, 730 (2d Cir. 2001))).

Issue preclusion can be applied to decisions of a prior state administrative proceeding, whether or not such decisions were subject to review by a state court. In New York, such decisions may be reviewed in the context of proceedings brought pursuant to Article 78 of the New York Civil Practice Law and Rules ("Article 78"). While an Article 78 determination does not have res judicata (claim preclusion) effect, such proceedings can bar re-litigation of issues decided in the Article 78 proceeding. Dutrow v. New York State Gaming Commission, 607 F. Appx. 56 n.1 (2d Cir. 2015) (summary order); Kirkland. v. Peekskill, 828 F.2d 104, 108 (2d Cir. 1987) (barring civil rights claims asserted pursuant to Sections 1981, 1983, 1985 and 1986 where state court decision denied relief for failure to name a necessary party).

It is also clear that state agency decisions that have not been subject to review in the context of court proceedings may, under certain circumstances, bar re-litigation of the same issue in a subsequent civil rights action. Thus, the Supreme Court has held that when a state agency acting in a judicial capacity resolves facts in a forum where parties have had an adequate opportunity to litigate federal courts "must give the agency's factfinding the same preclusive effect to which it would be entitled in the State's courts." Benson v. North Shore-Long Island Jewish Health Systems, 482 F. Supp. 2d 320, 326027 (E.D.N.Y. 2007) (quoting Johnson, 411 F. Supp. 2d at 178 (citing University of Tennessee v. Elliott, 478 U.S. 788, 799 (1986))); see also McGuinn v. Smith, 523 F. App'x 764 (2d Cir. 2013).

In sum, the preclusive effect of agency decisions, whether reviewed or not, turns on whether New York law affords the decision at issue preclusive effect. Basak v. New York State Dep't. of Health, 9 F. Supp. 3d 383, 394 (S.D.N.Y. 2014). Whether the findings arise in the context of an Article 78 proceeding or an unreviewed decision of the NYSDHR, the law requires both issue identity and a full and fair opportunity to litigate for preclusion to apply. The party seeking to assert preclusion bears the burden of proving identity of issue, while the adverse party bears the burden of proving the absence of a full and fair opportunity to litigate the issue. Id.; see Leo v. New York City Dep't. of Educ., 2014 WL 6460704, *4 (E.D.N.Y. 2014) (quoting In re Hyman, 502 F.3d 61, 65 (2d Cir. 2007)).

ii. Plaintiff's Claims are Not Barred by Collateral Estoppel

1. Identity of Issues

As to identity of issue, New York courts employ a liberal "functional" approach. See Kosakow, 274 F.3d at 730-34. Where a state agency finds employment action to have been unrelated to discrimination, a subsequent lawsuit alleging termination raises the same issue and is deemed to have been necessarily decided in the prior action. Id. at 730 (administrative finding that plaintiff was terminated for financial reasons necessarily decided issue of whether termination violated FMLA). Thus, where an agency's findings and conclusions are "fatally inconsistent" with the claims and contentions raised in the subsequent action the identity of issues requirement is met. Basak, 9 F. Supp. 3d at 395. Similarly, where a plaintiff's administrative claim and that raised in the context of a later civil rights action arise out of the same set of facts, courts "routinely" find issues to be "sufficiently identical" for purposes of preclusion. Sullivan v. New York City Dep't. of Investigation, 2014 WL 1244666, at *4 (S.D.N.Y. 2014).

Collateral estoppel is sought with respect to the three Administrative Charges detailed above. Review of the facts alleged in Plaintiff's complaint reveals that, with the exception of her termination, she raised exactly the same facts and circumstances in the context of the Administrative Charges as those set forth in the complaint herein. Thus, there is no question that, aside from the termination, the issues are identical. Specifically, in the First Charge, Skates alleged discrimination because of her race and describes the discriminatory actions that Defendant committed regarding the 2012 Memorial Day Parade. In her Second Charge she again alleged discrimination based on her race and, in addition, discrimination based upon disability and for opposing discrimination based on the First Charge. Indeed, all the allegations asserted between May 2012 and July 9, 2013 are included in both the First and Second Charge and the Complaint filed with the Court.⁷ Thus, with the exception of Plaintiff's termination, Defendants easily show identity of issue sufficient to sustain their burden on the preclusion issue.

7 While additional information is included in the Complaint, that information does not change the identical nature of the claims asserted, and where different relates only to Plaintiff's First Amendment retaliation claim.

As to the propriety of Plaintiff's termination, however, the Court finds no identity of issue. This is because Plaintiff was terminated on October 22, 2013, after the August 7, 2013 filing of the Second Charge, but before the NYSDHR reached its determination on January 31, 2014. Def. Mot., Ex. H. The January 2014 NYSDHR Decision found that Plaintiff submitted no proof of submission of medical notes to excuse her absence from work, and refers, almost in passing, to the fact that Plaintiff was terminated in October of 2013. Def. Mot., Ex. H. A finding that Plaintiff's termination was lawful is neither necessary to the January 2014 dismissal of the Second Charge (which never raised Plaintiff's termination), or the Article 78 court's decision declining to reverse that decision as arbitrary and capricious. Since Plaintiff was terminated after the charge that was the subject of review, the propriety of her termination was not, and could not, have been raised or decided. Accordingly, the Court finds no identity of issue requiring a holding that the lawful nature of Plaintiff's termination is precluded from litigation in this matter. See Davis v. Halpern, 813 F.2d 37, 39-40 (2d Cir. 1987) (where plaintiff raised issue of a denial of a second application in prior proceedings, but not of first rejection, no identity of issues existed with respect to issue preclusion). The Court therefore must conclude that Defendant has not sustained its burden in the collateral estoppel analysis with respect to Plaintiff's claim of unlawful termination.

In view of the Court's holdings as to identity of issue, collateral estoppel cannot be applied to Plaintiff's claim of unlawful termination. Because Defendant has shown identity of issue with respect to all pre-termination claims, it is necessary to consider whether Plaintiff sustains her burden of showing the absence of a full and fair opportunity to litigate those claims. A finding in Plaintiff's favor on this issue would preclude application of collateral estoppel as to all of Plaintiff's claims, even in there was a full identity with respect to all issues raised herein.

2. Full and Fair Opportunity to Litigate

The issue of whether the party against whom preclusion is sought was previously afforded a full and fair opportunity to litigate requires the consideration of several factors. The New York Court of Appeals has instructed courts to consider "the various elements which make up the realities of litigation," including "the size of the claim, the forum of the prior litigation, the use of initiative, the extent of the litigation, the competence and experience of counsel, the availability of new evidence, indications of a compromise verdict, differences in the applicable law and foreseeability of future litigation." Kosakow, 274 F.3d at 734 (quoting Schwartz v. Public Administrator, 298 N.Y.S.2d 955, 961 (1969)). In the context of proceedings before the NYSDHR, the court considers the informality of the forum, whether or not there was a hearing allowing cross-examination of witnesses, access to discovery and, perhaps most importantly, whether plaintiff was represented by counsel or appeared pro se. See Kosakow, 274 F.3d at 734-36; Basuk, 9 F. Supp. 3d at 395; Leo, 2014 WL 6460704, at *4.

The determination of the preclusive effect to be afforded to decisions of New York State administrative proceedings turns on the specific facts of each case. In the context of an NYSDHR proceeding, "the absence of a hearing will not render a NYSDHR determination inadequate where the plaintiff was otherwise given a full opportunity to present his case and rebut evidence submitted by respondent." Johnson, 411 F. Supp. 2d at 182. It is within the discretion of the NYSDHR on how best to investigate complaints; thus, the fact that its decision is based on documentary evidence alone is not determinative on whether or not the Plaintiff was given a full opportunity to litigate. Id. at 183. Where, however, a plaintiff had the opportunity to "flesh out" the facts by way of affidavit testimony and an investigation, the administrative decision is more likely to result in later issue preclusion. See e.g., DeCintio v. Westchester Cnty. Med. Center, 821 F.2d 111, 117-18 (2d Cir. 1987) (preclusion applied); Macer v. Bertucci's Corp., 2013 WL 6235607, at *3-6 (E.D.N.Y. 2013) (plaintiff afforded discovery and an evidentiary hearing by NYSDHR). This is especially true in cases where plaintiff was represented by counsel during the administrative proceedings. See e.g., Sullivan, 2014 WL 1244666, at *3 (plaintiff represented by "experienced counsel" in proceedings before NYSDHR); Macer, 2013 WL 6235607, at *3-6 (plaintiff represented by counsel during administrative proceeding); Benson, 482 F. Supp. 2d at 327 (preclusion applied where plaintiff represented by counsel in NYSDHR proceeding); Johnson, 411 F. Supp. 2d at 180-81.

In other cases, particularly those where plaintiff proceeded pro se before the administrative agency, courts have refused to find a full and fair opportunity to litigate and preclusion has been denied. E.g., Kasakow, 274 F.3d at 735-36; Basak, 9 F. Supp. 3d at 398-99. Indeed, courts recognize the critical and often determinative question is whether the choice to file the claim with the NYSDHR was "freely and clearly made with the advice of counsel." Johnson, 411 F. Supp. 2d at 181-82 (citing Kosakow, 274 F.3d at 735-36); see also Benson, 482 F. Supp. 2d at 326.

The First and Second Charges, including the Petition for Article 78 Review of the latter charge, were all prosecuted by Plaintiff without the benefit of counsel. While Plaintiff's Third Charge was filed by counsel, that charge was administratively closed without investigation, based upon the decisions in the First and Second Charges. Thus, Plaintiff received no real benefit from being represented by counsel in the Third Charge and overall, cannot be deemed to have had the benefit of counsel during the administrative proceedings. As the above-referenced cases demonstrate, this factor weighs heavily against preclusion. Also weighing against preclusion is the fact that the Administrative Charges were decided without hearing on the documents submitted. The lack of discovery and examination of witnesses also weighs against a holding of preclusion. While the First Charge was never reviewed, the Second Charge was reviewed in the context of an Article 78 Proceeding. While this factor is important, it is not determinative of the issue of full and fair opportunity to litigate. Indeed, New York courts do not automatically apply issue preclusion to findings of an Article 78 Proceeding. See e.g., Leo, 2014 WL 6460704, *4 (analyzing the factors of the Article 78 proceeding before making a determination as to whether issue preclusion should be afforded).

Upon consideration of the factors set forth by New York Courts in the context of the proceedings herein, this Court holds that Plaintiff sustained her burden of showing the absence of a full and fair opportunity to litigate and therefore holds that her claims are not barred by collateral estoppel. The Court therefore turns to consider Defendant's motion to dismiss such claims for failure to state a claim.

B. Failure to Plead a Plausible Claim of Racial Discrimination

i. Legal Principles for Sections 1981 and 1983 Claims of Racial Discrimination

Section 1981 prohibits intentional discrimination on the ground of race with respect to, inter alia, the enjoyment of the terms of employment. Patterson v. County of Oneida, New York, 375 F.3d 206, 224 (2d Cir. 2004); see 42 U.S.C. § 1981(a). Unlike Section 1981, Section 1983 "is not itself a source of substantive rights," but, instead provides the vehicle for the vindication of such rights. See Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979); Hill v. City of New York, 2015 WL 5719656, at *8 (E.D.N.Y. 2015). Where, as here, a plaintiff alleges a Section 1981 claim of racial discrimination by a municipality, Section 1983 is the exclusive remedy for such violations. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733-34 (1989); Bermudez v. City of New York, 783 F. Supp. 2d 560, 576 (S.D.N.Y. 2011); see West v. Atkins, 487 U.S. 42, 48 (1988). See Hill, 2015 WL 5719656, at *8; see also Macillo v. New York City Dep't of Educ., 2015 WL 427392, at *3 (S.D.N.Y. 2015).

Section 1981 claims of racial discrimination are analyzed under the same standards used for Title VII claims of discrimination. See Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010); Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000); Ramirez v. Hempstead Union Free Sch. Dist. Bd. of Educ., 33 F. Supp. 3d 158, 166 (E.D.N.Y. 2014). In accord with the rules set forth above, the Court does not, at the pleadings stage, apply the McDonnell Douglas burden shifting test. Instead, as noted, the Court focuses on whether the facts alleged afford "plausible support" for the reduced requirements of the prima facie case. Jones, 2016 WL 50779 at *2; Ramirez, 33 F. Supp. 3d at 166.

As to that pleading requirement, a plaintiff must allege facts that plausibly support an intent to discriminate on the basis of race. Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir.1993); Kirkweg v. New York City Dep't of Educ., 2013 WL 1651710, at *3 (S.D.N.Y. 2013); McDowell v. North Shore-Long Island Jewish Health Sys., Inc., 839 F. Supp. 2d 565, 566 (E.D.N.Y. 2012). In recognition of the fact that race-based discrimination is often difficult to establish, a plaintiff may show the required inference of discrimination by alleging facts in support of a claim that the employer treated plaintiff "less favorably than a similarly situated employee outside his protected group." Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000); McDowell, 839 F. Supp. 2d at 568. A plaintiff relying on an allegation of such disparate treatment must demonstrate that he was "similarly situated in all material respects" to the individuals with whom he seeks to compare himself. Id. at 39; see Ramirez, 33 F. Supp. 3d at 167.

In accord with the necessity of properly pleading municipal liability, Plaintiff here must, in addition to pleading facts in support of an inference of discrimination, plead more than liability premised on a theory of respondeat superior. See, e.g., Jett, 491 U.S. at 733-36 (Section 1981); Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690-91 (1978) (Section 1983). Instead, facts must be alleged in support of a plausible claim of an unlawful municipal policy or custom. Paterson, 375 F.3d at 226. To show such a policy, custom, or practice, the plaintiff need not identify an express rule or regulation. See, e.g., Sorlucco v. New York City Police Department, 971 F.2d 864, 870 (2d Cir. 1992). Instead, a Plaintiff may show that the alleged discriminatory practice was so "persistent or widespread" as to constitute "a custom or usage with the force of law," id. at 870-71 (internal quotation marks omitted), or that a discriminatory practice was "so manifest as to imply the constructive acquiescence of senior policy-making officials," id. at 871.

ii. Plaintiff Fails to State a Plausible Claim of Racial Discrimination

Skates' Section 1981 claims allege an unlawful discriminatory pattern and practice based on race. This policy is alleged to have resulted in Plaintiff's April of 2013 reassignment from the assessor's office to the FRC, her ultimate termination and the various acts of alleged abuse and mistreatment that preceded her termination, as detailed above. Those acts include:

• Plaintiff's alleged "public humiliation" when her supervisor discussed private matters about Plaintiff in public;

• Plaintiff's denial of access to the employee parking lot;

• Plaintiff being subjected to increased job scrutiny;

• Plaintiff's discipline in the form of referral for counseling;

• Plaintiff's scheduling;

• Accusations as to Plaintiff's use of derogatory comments at work, and;

• Accusations that Plaintiff did not call in sick as required.

Plaintiff alleges that the stated actions were taken with the intent to discriminate against her on the basis of race. Defendant argues that Plaintiff fails to plead facts in support of a plausible inference of such racial discrimination. In particular, it is alleged that Plaintiff fails to set forth facts of disparate treatment and/or municipal liability. See Defendant's Reply Memorandum. at 7, DE 17.

Plaintiff's claims of racial discrimination consist of factual allegations set forth in four paragraphs of the complaint. First, Plaintiff's complaint alleges that shortly after the March 19, 2013 election of Mayor Robert Kennedy, "all African Americans appointed or hired under former Mayor Hardwick . . . were either transferred out of their positions or fired." Compl. at ¶ 44. In support of her claim of racially discriminatory treatment at the FRC, Plaintiff alleges that all of her superiors were Caucasian, except for James Buford, who is described as being of mixed ancestry. Id. at ¶ 52. As to possible comparators to support a claim of racially disparate treatment, Plaintiff points to fellow recreation attendants "Naomi," and "Gwen," who were charged with less onerous responsibilities than those assigned to Plaintiff. Id. at ¶ 68-69.

Upon application of the standards referred to above, this Court holds Plaintiff's allegations plainly insufficient to plausibly support, as required, any claim of Section 1981 racial discrimination pursuant to a Village policy.

Plaintiff's allegations of the wholesale transfer or firing of "all" African Americans after Mayor Hardwick's defeat is completely conclusory, offering no facts to support the fact that such transfers occurred, much less an inference that such actions were motivated by a widespread practice or policy of racial discrimination. Indeed, as noted below, Plaintiff argues that her own transfer to the FRC was motivated not by race, but by her political support for outgoing Mayor Hardwick. Plaintiff's allegations of disparate treatment fare no better. In an effort to plausibly support such a claim Plaintiff alleges only that most of her supervisors were Caucasian, and that one was of mixed ancestry. She alleges no facts to support an inference that any employment decision was motivated by race. Instead, she relies on nothing more than "the familiar faulty syllogism: something bad happened to me at work; I am (fill in the blank with one or more protected categories); therefore it must have happened because I am (fill in the blank with the applicable protected categor[ies] )." Kirkweig, 2013 WL 1651710 (quoting House v. Wackenhut Servs. Inc., 2012 WL 4017334, at *1 (S.D.N.Y. 2012)).

Nor is Plaintiff's pleading assisted by the naming of alleged comparators Naomi and Gwen. First, Plaintiff's pleading fails to identify the race of either Naomi or Gwen. This is not surprising since Plaintiff testified at her 50-h hearing that Naomi, like Plaintiff, is African American. Def. Mot., Ex. G at 41. While the Court is unaware of Gwen's race (because it is not pled), the complaint contains no allegations leading to a plausible allegation that she received better treatment on account of her race. In sum, the Court holds that Plaintiff's Complaint, even when construed in her favor, fails to plead facts that plausibly support any inference of racial discrimination and/or an unlawful Village policy of racial discrimination in violation of Section 1981. Furthermore, as Plaintiff fails to plausibly allege facts to support an inference that any employment decision was motivated by race, any hostile work environment claim under Section 1981 must fail as well. Indeed, the various acts of alleged abuse and mistreatment the Plaintiff points to, as set forth above, considered alone or together, do not plausibly rise to the level of a hostile environment. Nor does Plaintiff allege any facts in support of the notion that any of these acts were motivated by race. Instead, Plaintiff refers to nothing more than a handful of arguably negative isolated incidents -- that come nowhere near the level of conduct necessary to state a hostile environment cause of action. See Alfano v. Costello, 294 F.3d 365, 373-74 (2d Cir. 2002); see also Favorito v. Longwood, CV 13-3419 (JS)(AYS) (E.D.N.Y. July 10, 2015). Accordingly, this Court recommends dismissal of any claims under Section 1981.

IV. Section 1983 Claim of First Amendment Retaliation

A. Legal Principles for Section 1983 First Amendment Retaliation

A claim of First Amendment retaliation must be supported by a showing: (1) that the speech at issue is conduct protected by the First Amendment; (2) that defendant took adverse action against plaintiff; and (3) a causal connection between the adverse action and the protected speech. Matthews v. City of New York, 779 F.3d 167, 172 (2d Cir. 2015); Smith v. Cty. of Suffolk, 776 F.3d 114, 118 (2d Cir. 2015) (quoting Dillon v. Morano, 497 F .3d 247, 251 (2d Cir. 2007)); Ramirez, 33 F. Supp. 3d at 172. As to the last stated requirement, the causal connection in a case alleging retaliation is "but for" causation. See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015) (holding that but for causation applies in Title VII claim of retaliation and that claims under Section 1983 mirror such claims). Such causation does not require proof that retaliation was the only cause of the employer's action, but only that the adverse action would not have occurred in the absence of the retaliatory motive." Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013).

Additionally, the "but-for" standard does not change the fact that a plaintiff can properly demonstrate causation by reliance on temporal proximity. Id. at 845. Thus, causality can be supported, especially at the motion to dismiss stage, by pointing to a close temporal connection between protected activity and the alleged adverse action. Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009) (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001)); e.g., Ramirez, 33 F. Supp. 3d at 173 (plausible claim of First Amendment retaliation stated where plaintiff was sent home a day after alleged whistleblowing activity). On the other hand, the "continuation" of alleged adverse employment actions "initiated long before the protected activity . . . does not, without more, logically support an inference that the protected activity prompted retaliation." Agard v. N.Y.S. Dep't of Taxation & Fin., 2012 WL 601474, at *7 (E.D.N.Y. 2012) (quoting Washington v. City of New York, 2009 WL 1585947, at *8 (S.D.N.Y. 2009)); Hill, 2015 WL 19656, at *24. As above, the issue in the context of this motion to dismiss is not whether Plaintiff has established a prima facie case, but whether she pleads facts in plausible support of the elements thereof.

B. Plaintiff's Allegations

Plaintiff's claim of First Amendment retaliation is set forth as Count VII of the Complaint. DE 1 at ¶¶ 162-171. In support of her claim, Plaintiff alleges that she engaged in activities protected by the First Amendment in two ways. First, she refers to the collection of signatures in support of "Resolution 18/44," at the 2012 Village Memorial Day Parade. Compl. ¶¶ 32, 164. Second, she asserts that in March of 2013, she worked on the legal team of "Friends of Andrew Hardwick." In connection with her support of Hardwick, Plaintiff states that she participated in an investigation of Robert Kennedy, the opposing candidate who eventually won the election. Compl. 34-36; 164. Plaintiff alleges that these protected activities are causally related to the April 2013 allegedly adverse employment action of transferring Plaintiff from her administrative position at the Village Assessors Office to a janitorial position at the FRC. Compl. at ¶ 165.

C. The Parties' Positions

Defendant concedes, and indeed, there is no question that Plaintiff's political action described above amounts to engaging in protected speech. Additionally, Defendant does not appear to argue, at this stage of the litigation, that the transfer to the FRC fails to rise to the level of "adverse" employment action. See Plaintiff's Mem. at 21 (noting transfer as the only action alleged to have been taken in retaliation for engaging in protected speech). Any such argument would be rejected at the pleading stage in any event since Plaintiff clearly pleads facts showing the inferiority of her working conditions and janitorial position at the FRC, as opposed to her administrative position at the Village Assessor's office. The issue raised by Defendant in this motion is thus neither protected conduct, nor "adverse" action, but whether Plaintiff plausibly states a causal connection between her protected activities and her transfer to the FRC. Id. The Court turns to consider that issue.

D. Plaintiff States a Plausible Claim of First Amendment Retaliation

The Court holds that Plaintiff alleges facts in support of a plausible claim that she would not have been transferred to the FRC but for engaging in the protected activity of supporting candidate Hardwick. Most importantly, Plaintiff alleges close temporal proximity between the protected activity and the date of her transfer. Indeed, Plaintiff's transfer to the FRC took place within two weeks of the mayoral election in which Plaintiff not only openly supported the losing candidate, but took part in an investigation of the winning candidate.

The Court recognizes that the passage of over a year between Plaintiff's collection of signatures at the May 2012 parade and her reassignment to the FRC, might, standing alone, require a different result. Indeed, the fact that Plaintiff's position was changed from that of seasonal employee to full-time status less than a month after the parade militates against a finding of causation. See Compl. ¶ 25. However, the close temporal proximity between Plaintiff's March of 2013 support of Hardwick, which support included participating in an investigation of the winning candidate, and her April 2013 transfer to the FRC leads to a different result. Indeed, the pleading that Plaintiff was transferred within one month of her support for the losing mayoral candidate, against the backdrop of a prior indication that members of the Village Board frowned upon her earlier signature collection, states a plausible claim for retaliation.

In sum, the Court holds that Plaintiff has alleged enough facts to support a plausible causal connection between her reassignment to the FRC and First Amendment protected activity. Accordingly, the Court recommends denial of the motion to dismiss Plaintiff's claim of First Amendment retaliation

V. FMLA Claim

The FMLA allows eligible employees who have worked for twelve months to take up to twelve weeks' leave a year "for, inter alia, 'a serious health condition that makes the employee unable to perform the functions of the position of such employee.'" Hale v. Mann, 219 F.3d 61, 68 (2d Cir. 2000) (citing 29 U.S.C 2612(a)(1)(D)). A serious health condition can be defined as a condition requiring "continuing treatment by a health care provider." 29 U.S.C. 2611(11). According to FMLA regulations, this can consist of a "chronic serious health condition," which is "defined as a condition which involves periodic visits to a health care provider for treatment, lasts over extended period of time, and may cause episodic periods of incapacity." Ode v. Mount Sinai Med. Ctr., 2006 WL 1711508, at *5 (S.D.N.Y. 2006) (citing 29 C.F.R. at § 825.114(a)(2)(iii)); see also 29 C.F.R. § 825.113.

The FMLA makes it unlawful for an "employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter." 29 U.S.C. 2615(a)(1). Indeed, Courts recognize two distinct types of cognizable claims under the FMLA: (1) interference claims, in which an employee asserts that his employer denied or otherwise interfered with his substantive rights under the Act, and (2) retaliation claims, in which an employee asserts that his employer discriminated against him because he engaged in activity protected by the Act. Krosmico v. JP Morgan Chase & Co., 2006 WL 3050869, at *2 (E.D.N.Y. 2006) (citations omitted). To successfully state a claim for FMLA retaliation, Plaintiff must plausibly allege that she exercised rights protected by the FMLA and that she suffered an adverse employment action under circumstances giving rise to an inference of retaliatory intent. See Powell v. Dept. of Educ., 2015 WL 5772211, at *5 (E.D.N.Y. 2015). With regard to an FMLA retaliation claim, an adverse employment action is "any action by the employer that is likely to dissuade a reasonable worker in the plaintiff's position from exercising his legal rights." Id. (quoting Millea v. Metro-N. R. Co., 658 F.3d 154, 164 (2d Cir. 2011)).

The Court notes that since Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534, 186 L. Ed. 2d 503 (2013), courts within and without this Circuit have questioned whether the "but-for" causation standard should now apply to FMLA retaliation claims, with varying results. Some courts continue to apply the motivating-factor standard for FMLA retaliation claims, while others now apply the "but-for" standard. See Brown v. Northrop Grumman Corp., 2014 WL 4175795, at * 15-16 (E.D.N.Y. 2014) (citations omitted). As discussed below, this Court finds that Plaintiff has plausibly alleged the Defendant's adverse actions against her would not have occurred but for her exercise of FMLA rights. Since the more stringent "but-for" standard is properly pled, the Court need not determine which standard applies to FMLA retaliation cases.

The FMLA requires an employee who has a "foreseeable" need for leave to give his or her employer at least thirty (30) days' notice. 29 U.S.C. § 2612(e)(1); 29 C.F.R. § 825.302(a). Where the need for leave is unforeseeable, an employee must notify his or her employer as soon as practicable. 29 U.S.C. § 2612(e)(1); 29 C.F.R. § 825.302(a). Courts in this Circuit have held that an individual can exercise FMLA rights by putting the Defendant on inquiry notice of the intent to exercise a protected right. Debell v. Maimonides Med. Ctr., 2011 WL 4710818, at *9 (E.D.N.Y. Sept. 30, 2011). Moreover, it is not necessary for an employee to ask for FMLA leave by name. Id. at 8; Avila-Blum v. Casa de Cambio Delgado, Inc., 519 F. Supp. 2d 423, 428 (S.D.N.Y. 2007). Indeed, when FMLA leave is unexpected, the regulations provide that an employee is not required to "mention the FMLA, but may only state that leave is needed. The employer will be expected to obtain any additional required information through informal means." 29 C.F.R. at § 825.303(b). "The critical question is whether the information imparted to the employer is sufficient to reasonably apprise it of the employee's request to take time off for a serious health condition." See also Darboe v. Staples, Inc., 243 F. Supp. 2d 5, 17 (S.D.N.Y. 2003).

Plaintiff claims that she was discriminated and retaliated against for her exercise of FMLA rights when the Defendant suspended her in July of 2013, and when the Defendant terminated her on October 22, 2013. Accepting the evidence in the light most favorable to Plaintiff, she has plausibly alleged injuries that constitute serious health conditions within the meaning of FMLA, for which she was entitled to take leave. Additionally, at this stage, Plaintiff's assertions that she followed all company policies with regard to her leave between June and July 2013, and called her employer from the emergency room on October 22, 2013 plausibly plead that she supplied Defendant with information that would put it on notice, or at least inquiry notice, of Plaintiff's intent to take leave as soon as was practicable. Debell, 2011 WL 4710818, at *9; see also Ode, 2006 WL 1711508, at *5. At the pleading stage, Plaintiff has plausibly alleged both injury covered by the FMLA and an exercise of her rights under the statute.

As to causation, the close temporal proximity of both Plaintiff taking time off between June and July of 2013 to deal with her medical condition and then being suspended for two days immediately upon her return to work, and the close temporal proximity of both Plaintiff informing the Defendant of her need to be out of work for three months and her termination that occurred on the same day, raises a plausible inference that the Defendant's reasons for its actions in both circumstances were retaliatory. See Vega, 801 F.3d at 90; Simpson v. N.Y.S Dep't of Civil Servs., 166 F. App'x 499, 502 (2d Cir. 2006); Powell, 2015 WL 5772211, at *6.

In sum, this Court finds that the Plaintiff has plausibly alleged that on the two occasion asserted she would not have been subjected to adverse actions of Defendant but-for her exercise of FMLA rights. Accordingly, this Court recommends that the FMLA claims should not be dismissed at this stage.

VI. NYSHRL Claims

Plaintiff brings two claims under New York State Human Rights Law ("NYSHRL" or the "State Law Claims"). These claims mirror the Federal claims set forth above, alleging both unlawful discrimination and retaliation.

Defendant argues that the State Law Claims are barred for failure to comply with the General Municipal Law, and by the NYSHRL statutory election of remedies provision. Plaintiff contends her claims under NYSHRL should not be dismissed because: (1) discrimination claims brought under NY Exec. Law Section 296 are not tort actions and are therefore not subject to Gen. Mun. Law Section 50-e and 50-i's notice of claim requirements; and (2) the statutory election of remedies provision does not apply because the NYSHRL claims asserted here are different from those asserted in this action.

A. The State Law Claims are Not Barred by the Notice of Claim Provision

State notice of claim requirements apply to state law claims brought in federal court. See DeCarolis v. Town of Vienna, 322 Fed. Appx. 25, 26 (2d Cir. Apr. 8, 2009) (summary order). Under New York General Municipal Law § 50-e ("§ 50-e"), a Plaintiff is required to file a notice of claim within 90 days after the claim arose for any claim founded on tort.

Neither the New York Court of Appeals nor the Second Circuit has ruled on the issue of whether the notice of claim requirement applies to claims of discrimination. See Anderson v. City of New York, 2012 WL 6720694, at *5 (E.D.N.Y. Dec. 27, 2012). "[T]he weight of authority within this Circuit holds that § 50-e is limited on its face to claims founded in tort, and therefore does not apply to employment discrimination claims brought under N.Y. Exec. Law § 296." See id. at *6 (citations omitted). This Court agrees with Plaintiff that her employment discrimination claims are not founded in tort, and, therefore, not subject to the notice of claim requirement under Section 50-e or Section 50-i. See id; see also Pratt v. Indian River Cent. School Dist., 803 F. Supp. 2d 135, 146 (S.D.N.Y. 2011) ("As an initial matter, the Court notes that the Notice of Claim requirements set forth in N.Y. Gen. Mun. Law § 50-e and 50-i apply only to tort actions.").

B. The State Law Claims are Barred by the Statutory Election of Remedies

An employee may bring a claim of discrimination under the New York State Human Rights Law "unless such person had filed a complaint hereunder or with any local commission on human rights." N.Y. Exec. Law § 297(9). Thus, where a person elects to bring a claim of discrimination in the NYSDHR, that individual (with certain exceptions not present here) may not thereafter bring the same claim in State or federal court. Ulysse v. FreshDirect, LLC., 2015 WL 5692938, at *3 (E.D.N.Y. 2015); see Wiercinski v. Mangia 57, Inc., 2010 WL 2681168, at *2 (E.D.N.Y. July 2, 2010)(filing a complaint with the NYSDHR constitutes election of remedies barring a subsequent judicial action alleging the same claims); Jackson, 2010 W L 1778769, at * 4. The election of remedies doctrine applies even if the administrative complaint is pursued pro se, see Wiercinski, 2010 W L 2681168, at * 2 (election of remedies "applies even when the complainant is uncounseled and ignorant of the effects of the election of an administrative forum").

As to the nature of claims barred, the election of remedies doctrine "is not limited to the precise claims brought in the administrative proceeding, but extends to all claims arising out of the same events." Wiercinski, 2010 W L 2681168, at * 2. Thus, if substantially the same facts are involved, election of remedies will bar subsequent court proceedings. The facts in both proceedings need not be "perfectly identical, and merely adding some additional facts and/or re-labeling the claim will not prevent" application of the statutory bar. Id. (quoting Benjam in v. N .Y . City Dep't of Health, 17 Misc.3d 1122(A), 851 N.Y.S.2d 68 (Table) (N.Y. Sup. Oct. 23, 2007), aff'd, 57 A.D.3d 403, 870 N.Y.S.2d 290 (1st Dept. 2008)); see also Borum v. Village of Hempstead, 590 F. Supp. 2d 376, 383 (E.D.N.Y. 2008) (holding that the election of remedies doctrine is not avoided by changing the legal theory of the relief sought and that a litigant may not pursue some claims in court and others in the administrative forum if they all arise out of the same course of conduct). Moreover, the election of remedies doctrine is equally as applicable to federal courts as it is to state courts. See Saunders v. NYC Dep't of Educ., 2010 WL 2816321, at *8 (E.D.N.Y. July 15, 2010) on reconsideration in part, 2010 WL 2985031 (E.D.N.Y. July 20, 2010) (citations omitted).

As noted above (in the discussion of identity of issues for the purpose of collateral estoppel), with the exception of her claim of unlawful termination, Plaintiff alleges here exactly the same factual claims set forth in the First and Second Administrative Charges. There is therefore no doubt that election of remedies bars all claims arising from the facts set forth in those charges. The issue of whether Plaintiff's claim of unlawful retaliatory termination is also barred by the NYSHRL election of remedies provision is a closer question. The fact that such termination occurred after the filing of the Second Administrative Charge, but prior to a decision thereon is not dispositive. Where, for example such termination is nothing more than "the culmination" of an employer's allegedly unlawful practice, the claim that such termination was retaliatory is nonetheless barred. Ulysse, 2015 WL 5692938, at *3.

As recognized in Ulysse, courts in New York have held that a claim of retaliatory termination following the filing of a NYSDHR claim is barred on the ground that such claim arises out of the same facts forming the basis of the administrative complaint. Id. (discussing Benjamin, 870 N.Y.S.2d at 291-92 (upholding dismissal of plaintiff's national retaliation claims due to the NYSDHR's dismissal of her complaint for race discrimination)). Importantly, the election of remedies bars a later lawsuit of unlawful termination even where Plaintiff's lawsuit raises additional facts. Thus, in Benjamin, plaintiff's lawsuit was barred by the election of remedies provision even though the lawsuit alleged additional and different conduct than that alleged in the administrative proceeding. See Benjamin, 870 N.Y.S.2d at 291-92 (plaintiff alleging race and specific disabilities in administrative proceeding barred from bringing lawsuit based upon different disabilities, including a later shoulder injury). So long as the lawsuit is "based on the same continuing allegedly discriminatory underlying conduct asserted in the Commission proceedings . . . the statutory election of remedies applies." Id.

In light of the foregoing this court holds that Plaintiffs claim of unlawful retaliatory conduct arises from the same course of conduct forming the basis of Plaintiff's Administrative Charges before the NYSDHR. As such, the termination claim is barred by the election of remedies provision in the NYSHR. This Court therefore recommends that all of Plaintiff's state law claims be dismissed with prejudice for lack of subject matter jurisdiction.

CONCLUSION

For the foregoing reasons, this Court respectfully recommends that Defendants' motion to Dismiss, appearing as Docket Entry No. 15 herein, be granted in part and denied in part. The Court recommends that the motion should be granted to the extent of dismissing: (1) Plaintiff's claims under Title VII and the ADA as time barred; (2) Plaintiff's Section 1981 claims of race discrimination for failure to state a claim and (3) Plaintiff's New York State Human Rights Law claims for lack of subject matter jurisdiction on the ground of election of remedies. The Court recommends denial of the motion and allowing Plaintiff to proceed with respect to: (1) Plaintiff's Section 1983 claim of First Amendment retaliation, and (2) claims arising under the FMLA.

OBJECTIONS

A copy of this Report and Recommendation is being provided to all counsel via ECF. Any written objections to this Report and Recommendation must be filed with the Clerk of the Court within fourteen (14) days of filing of this report. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 72(b). Any requests for an extension of time for filing objections must be directed to the District Judge assigned to this action prior to the expiration of the fourteen (14) day period for filing objections. Failure to file objections within fourteen (14) days will preclude further review of this report and recommendation either by the District Court or Court of Appeals. Thomas v. Arn, 474 U.S. 140, 145 (1985) ("[A] party shall file objections with the district court or else waive right to appeal."); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008) ("[F]ailure to object timely to a magistrate's report operates as a waiver of any further judicial review of the magistrate's decision"). Dated: Central Islip, New York

January 28, 2016

/s/ Anne Y. Shields

Anne Y. Shields

United States Magistrate Judge