SHANNON KILLORAN v. WESTHAMPTON BEACH SCHOOL DISTRICT CAROLYN PROBST JASON COHEN MARY BERGMAN SEAN MONTPETIT (2026)

REPORT AND RECOMMENDATION

Plaintiff Shannon Killoran ¹ is a former student in the Westhampton Beach School District (hereinafter the “District”). Defendants include the District and various District officials, superintendent Jason Cohen, head women's varsity lacrosse coach Mary Bergman, and head women's junior-varsity lacrosse coach Sean Montpetit (together, the “Defendants”). Defendants filed the instant Motion to Dismiss (Electronic Case Filing (“ECF”) No. 35-3, hereinafter, the “Motion” or “Mot.”) pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Plaintiff's Second Amended Complaint (ECF No. 30, hereinafter the “Second Amended Complaint” or “SAC”). In a Report and Recommendation by the undersigned to Judge Gary R. Brown dated November 20, 2025 (ECF No. 27, hereinafter the “Report and Recommendation”), the undersigned recommended dismissing Plaintiffs’² Amended Complaint with prejudice and denying leave to amend. See ECF No. 27. Judge Brown adopted the findings of the Report and Recommendation but granted leave to amend. See Jan. 14, 2026 Order. Plaintiff filed the Second Amended Complaint on January 21, 2026 (ECF No. 30), which now brings claims asserting (1) “associational discrimination/interference retaliation” under the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“Section 504”); (2) a “class of one” claim under 42 U.S.C. § 1983 (“Equal Protection”); and (3) violation of Plaintiff's First Amendment right to free speech. See SAC ¶¶ 205-237.

For the reasons set forth below, the undersigned recommends that the Court grant Defendants’ motion to dismiss with prejudice and deny leave to amend.

I. BACKGROUND

A. Factual Background

The facts of this case are set forth in the earlier Report and Recommendation. See ECF No. 27 at 2-4. The Court incorporates that factual background by reference and recounts only those additional facts relevant to the instant motion.

Plaintiff's brother Aiden has Down syndrome. See SAC ¶ 9. Aidan's parents, Christian and Terrie, sued the District on behalf of Aidan in multiple cases over the course of six years regarding his inclusion in the District that eventually led to settlement discussions in April 2024, and ultimately, a global settlement in September 2024. See id. ¶¶ 12-13, 19, 25, 33, 61, 106-107; see also ECF No. 27 at 5-6 (citing the stipulations of dismissal filed in five related actions between the Killorans and the school district relating to Aiden).

In March 2024, Plaintiff was a high school junior in the District. See SAC ¶ 129. Plaintiff alleges that she was excluded from the varsity lacrosse team despite allegedly meeting all eligibility requirements set forth by the New York State Public High School Athletic Association (“NYSPHSAA”) and having “performed very well, if not superior to, many of the other girls” who tried out for the team. See id. ¶¶ 137-53, 159. Plaintiff and her parents, who have since been dismissed as parties,³ commenced the instant action against the Defendants in May 2024. See id. ¶ 160. Notably, this lawsuit was filed while discussions were already ongoing regarding a potential resolution of Aiden's claims. See ECF No. 27 at 5.

Despite not making the District's varsity team as a junior, Plaintiff's lacrosse career was not over. In July 2024, Shannon was offered a Division I Lacrosse Athletic Scholarship to Wagner College, and in November 2024, she executed a formal commitment letter to play collegiate lacrosse there. See SAC ¶¶ 166, 169. Further, in December 2024 and January 2025, Plaintiff participated in the “LILJ Winter Lacrosse League,” designed for “varsity players seeking to maintain their lacrosse skills”; practiced at the District-sponsored “open-field” lacrosse nights during winter break; and in March 2025, tried out once again for the varsity lacrosse team. See id. ¶¶171-173.

In March 2025, Plaintiff was a high school senior in the District. See id. ¶ 168. Once again, she alleges she was excluded from the varsity lacrosse team, despite claiming to meet all eligibility requirements and the fact that her “development as a lacrosse player had only grown.” See id. ¶¶ 174-75, 176-89. Through the Second Amended Complaint, Plaintiff alleges her exclusion from the District's women's varsity lacrosse team was “motivated and fueled by [the defendant's] animus towards the plaintiff and her family, and as such, has been retaliatory and discriminatory” and that defendants “alleged ‘unbiased’ evaluative criteria [․] was not applied equally to [her].” Id. ¶¶ 201-02.

Plaintiff graduated from high school in the spring of 2025. However, she did not attend Wagner College (where she had a lacrosse scholarship). Instead, she enrolled in the College of Charleston where she plays club lacrosse. Id. ¶ 200.

B. Procedural Background

On November 20, 2025, the undersigned issued a Report and Recommendation dismissing Plaintiffs’ Amended Complaint with prejudice and denying leave to amend. See ECF No. 27. Plaintiffs filed objections to the Report and Recommendation on November 21, 2025, which Defendants opposed on December 2, 2025. See ECF No. 29. On January 14, 2026, Judge Brown adopted in part the undersigned's Report and Recommendation, agreeing with the findings of the Report and Recommendation but granting leave to amend “only to the limited extent that [Plaintiffs] have a good faith basis that would substantively change the legal analysis set forth in the Report and Recommendation.” See Jan. 14, 2026 Order. Plaintiff individually filed her Second Amended Complaint on January 21, 2026, and her parents are no longer Plaintiffs to this lawsuit. See ECF No. 30. Defendants filed their pre-motion letter describing their anticipated Motion to Dismiss on February 19, 2026, and Plaintiff responded on February 20, 2026. See ECF Nos. 31, 32. The parties attended a Pre-Motion Conference before the undersigned on March 23, 2026, and the Court set a formal briefing schedule. See ECF No. 33. The parties filed their fully briefed Motion, including Defendants’ Motion to Dismiss, Plaintiff's Opposition (the “Opposition”), and Defendants’ Reply (the “Reply”) on June 22, 2026. See ECF Nos. 35-5, 35-6.

II. LEGAL STANDARD

Defendants move to dismiss Plaintiff's Second Amended Complaint under Rule 12(b)(6). See Mot. at 1. 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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Dawkins v. Schott NYC Corp., No. 22-CV-3617, 2023 WL 6283285, at *2 (E.D.N.Y Sept. 26, 2023) (quoting Iqbal, 556 U.S. at 678). In resolving a motion to dismiss, “[t]he court accepts as true all well-pleaded factual allegations in the complaint, [and] draws all reasonable inferences in favor of the nonmoving party.” Gamm v. Sanderson Farms, Inc., 944 F.3d 455, 462 (2d Cir. 2019) (internal quotations and citations omitted).

III. DISCUSSION

Defendants move to dismiss the Second Amended Complaint in its entirety. First, they argue that the reasserted ADA and Section 504 claims still fail as a matter of law. See Mot. at 13-14. Defendants further argue that the Second Amended Complaint does not substantively change the legal analysis of the original ADA and Section 504 claims, because it merely relabels the already dismissed “associational discrimination” as “associational/derivative” discrimination. See id. at 15-16. Next, Defendants argue that Plaintiff's Equal Protection “class-of-one” claim fails because the Second Amended Complaint still fails to plead the “extremely high” degree of similarity required in the Second Circuit, even with added details about eligibility criteria. See id. at 20. Finally, Defendants argue that Plaintiff's First Amendment retaliation claim fails because it lacks the requisite causal connection or temporal proximity between the filing of the instant lawsuit in May 2024 and Plaintiff's subsequent exclusion from the varsity lacrosse team in March 2025. See id. at 25-26.

Plaintiff, on the other hand, contends in her Opposition that her “derivative association” claim is distinct from the previous “associational discrimination/retaliation” claim because it is dependent on her own “personal association” with her brother and is therefore unrelated to any “protected activity” engaged in by her parents. See Opp. at 6. She further argues that she suffered an independent and concrete injury because of her association with her sibling, and that her Second Amended Complaint portrays such “causation, nexus, and linkage” to the adverse action against her. See id. Next, Plaintiff asserts that her “class-of-one” claim addresses all the “relevant” similarities necessary for a student to possess to make the varsity lacrosse team. See id. at 9. Finally, Plaintiff disputes that her First Amendment retaliation claim fails to establish causation because she sets forth a plausible theory that the filing of the instant lawsuit in 2024 was a “substantial and motivating factor” in her exclusion from the team in 2025. Id. at 13. Additionally, Plaintiff asserts that the temporal proximity is sufficient to establish causation despite a one-year gap between the protected speech and her exclusion from the team. See id.

For the reasons set forth herein, the undersigned recommends the Second Amended Complaint be dismissed as a matter of law.

A. Legal Insufficiency of Plaintiff's Claims

1. ADA and Section 504 Claims

a. Associational Discrimination Claim

In Counts One and Two of the Second Amended Complaint, Plaintiff asserts a “derivative discrimination/retaliation” claim ⁴ under the ADA and Section 504 of the Rehabilitation Act. Plaintiff asserts that her Second Amended Complaint cures the “fatal mismatch” from her Amended Complaint because her retaliation claim does not rely on her “parents’ advocacy, or her own advocacy for that matter” since the injury she suffered was “derivative to [Aiden's] advocacy and success in pursuing protections afforded by the ADA and 504.” Opp. at 6-7, 9. Therefore, Plaintiff alleges her “derivative retaliation” theory stems simply due to her association with her brother. See id.

The ADA and Section 504 permit a plaintiff to assert an “associational discrimination” claim which prohibits “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” Kelleher v. Fred Cook Inc. 939 F.3d 465 (2d Cir. 2019); 42 U.S.C. 12112(b)(4)). To bring an “associational discrimination” claim under the ADA or Section 504, a plaintiff must show:

1) that she was qualified for the job at the time of an adverse employment action; 2) that she was subjected to adverse employment action; 3) that she was known at the time to have a relative or associate with a disability; and 4) that the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer's decision.

Graziado v. Culinary Institute of America, 817 F.3d 415, 432 (2d Cir. 2016) (establishing “associational discrimination” under the ADA in the employment discrimination context); see generally Kelleher, 939 F.3d at 468 (same).

In support of her claim, Plaintiff asserts that (1) she was qualified to earn a position on the varsity lacrosse team (see SAC ¶ 214); (2) she suffered an adverse action “by virtue of being deprived access to be a member of such varsity lacrosse team predicated upon non-objective, wrongful, retaliatory reasons” (Id. ¶ 215); (3) Defendants were aware of Plaintiff's relationship to her brother Aidan (Id. ¶ 216); and (4) her association with her disabled brother, the harms he suffered in violation of the ADA and Section 504, and his advocacy and success in pursuing protections under the ADA and Section 504 were a determining factor in Plaintiff's exclusion from the varsity lacrosse team. See Opp. at 6-7.

As a threshold matter, the Court finds that even though no “derivative discrimination/retaliation” theory exists, the “associational discrimination” theory still does not apply to the Plaintiff. Title I of the ADA applies in the employment context, including in “job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C § 12112(a). The “associational discrimination” theory cited by Plaintiff is developed from Section 12112(b)(4) of Title I, which identifies “associational discrimination” as “excluding or otherwise denying equal jobs or benefits” to an individual because of the known disability of someone they are associated with. 42 U.S.C. § 12112(b)(4); see Opp. at 5. But Plaintiff is not an employee of the District, nor an employee of the varsity lacrosse team. Plaintiff maintains that the discrimination and retaliation she experienced were “derivative of not only her association with her disabled brother, but also [․] the alleged ADA and 504 harms suffered by him, as well as [․] his advocacy and success in pursuing the protections afforded by the ADA and 504.” See Opp. at 6-7.

Plaintiff relies exclusively on Loeffler v. Staten Island Univ. Hosp. to argue that this Court should apply her “associational discrimination” theory outside of the employment context. 582 F.3d 268 (2d Cir. 2009); see also Opp. at 8. In Loeffler, the court upheld an “associational discrimination” theory for the children of disabled parents, who were forced to provide sign language services for their parents at defendant's facilities, because defendant did not adequately employ interpreters. See 582 F.3d at 272-73. The children had to interpret sign language during their father's medical emergencies, and as a result were traumatized, suffered depression, and missed school. See id. The court held that the children “need[ed] only establish that each suffered an injury independent from their parents that was causally related to the [defendant's] failure to provide services to their parents” to succeed on their associational discrimination claims. Loeffler, 582 F.3d at 280. Plaintiff asserts that “only difference” between her case and Loeffler is that she did not suffer an injury because the District failed to provide services to Aiden; rather, she “suffered her injuries simply because her disabled brother had pursued and achieved” such protections. Opp. at 8 (emphasis added). But this assertion, alone, destroys her “associational discrimination” claim, because Plaintiff fails to plausibly allege that “any specific denial of services to Aiden directly resulted in her inability to be selected to the varsity lacrosse team.” Mot. at 4 (emphasis added); see Loeffler, 582 F.3d at 280; see also Innovative Health Sys., Inc. v. City of White Plains, 931 F.Supp. 222, 236 (S.D.N.Y. 1996) (opining that the ADA statute extending relief to “ ‘[a]ny person alleging discrimination [․]’ need not be an individual with a disability, but may be anyone injured by a covered entity's discrimination against an individual on the basis of that individual's disability”).

Moreover, this case is distinguishable from Loeffler’s requirement that Plaintiff's injury be “causally related” to her brother's denial of services. See 582 F.3d at 272-73. The temporal and causal chain in Loeffler was immediate: the interpreter was denied, and the children were forced into the interpreter's role in the same hospital visit. See id. at 271-273. By contrast, the attenuated chain Plaintiff alleges over the course of nearly a decade rests on an inference of “animus” by separate, unrelated decisionmakers rather than a direct substitution of a denied service. See SAC ¶ 39. This is simply not the direct injury at issue in Loeffler. See id. at 287 (Jacobs, C.J., dissenting in part) (identifying the “intractable administrative problems” that would follow from recognizing standing based on generalized family association rather than a discrete substitutional injury).

Plaintiff argues that the Court should apply a “new legal analysis” to her situation (Opp. at 9), but there is simply no case law to support the application of Plaintiff's theory after a separate successful litigation effort by a family member. Therefore, because Loeffler is inapplicable to the facts in this case, Plaintiff has failed to demonstrate that the “associational discrimination” theory applies outside of the employment context.

Even assuming the “associational discrimination” framework does apply outside of the employment context, Plaintiff's claim still does not survive dismissal under Graziado. While Plaintiff does allege that she was subjected to an adverse action “by virtue of being deprived access” to the varsity lacrosse team (SAC ¶ 215) and that the District was aware that her brother had Down syndrome (id. ¶ 216), Plaintiff fails to allege facts sufficient to support that there is a “reasonable inference” that Aiden's disability was a “determining factor” in her exclusion from the team sufficient to satisfy Graziado’s fourth factor. See Graziado, 817 F.3d at 432 (holding the associate's disability must be a “determining factor” in an employer's adverse action). The Second Circuit recognizes three circumstances to establish that the disability of a relative or associate was “the determining factor” in an adverse action: (1) “expense,” when an employer fears high expense due to an employee's association with a disabled induvial covered by an employer's insurance; (2) “disability by association,” when an employer fears an employee will contract/is predisposed to a disability because of their association with a disabled individual; or (3) “distraction” when an employer fears an employee will be inattentive at work due to their association with a disabled individual. Graziadio, 817 F.3d at 432 (citing Larimer v. International Business Machines Corp., 370 F.3d 698 (7th Cir. 2004)).

Plaintiff pleads no facts that establish she was excluded from the lacrosse team for any of these three circumstances. See SAC ¶¶ 214-218. Firstly, Plaintiff is silent on whether the District feared any monetary “expense” to the team because of Plaintiff's association with her brother. See Dolac v. Cnty. of Erie, No. 20-2044-CV, 2021 WL 5267722, at *2 (2d Cir. Nov. 12, 2021) (asserting a claim of associational discrimination under the “expense” theory by alleging plaintiff was fired to avoid expense from “extended sick leave compensation” and “health insurance payouts”). While she does plead a familial relationship with her brother, she does not plead any facts sufficient to infer she was excluded from the team because she would be susceptible to her brother's disability or that she would be distracted by the need to care or advocate for him. See Kelleher, 939 F.3d at 466 (asserting a claim of associational discrimination under the “distraction” theory by alleging plaintiff was fired because his employer assumed that he would be distracted by the need to care for his disabled daughter); Darcy v. City of New York, No. 06-CV-2246 RJD, 2011 WL 841375, at *6 (E.D.N.Y. Mar. 8, 2011) (asserting a claim of associational discrimination under the “disability by association” theory by alleging plaintiff was transferred to a difference division because he was regarded as suffering from alcoholism when an individual he was associated with was an alcoholic).

In fact, the Second Amended Complaint lacks any assertions that would allow this Court to infer that her relationship with Aiden was a “determining factor” in her exclusion. Reid v. Metro One Loss Prevention Servs. Grp. (Guard Div. NY), Inc., No. 2:23-CV-6303 (NJC) (ARL), 2025 WL 2533377, at *14 (E.D.N.Y. Sept. 3, 2025) (holding that a plaintiff's associational discrimination claim failed because it was “devoid of any allegation [․] that could raise a reasonable inference” that her disabled family member was a determining factor in the employer's adverse action); see also Littlejohn v. City of New York, 795 F.3d 297, 306-08 (2d Cir. 2015) (holding that at this stage, the court must examine the complaint to determine whether it contains “at least minimal support for the proposition that the employer was motivated by discriminatory intent”). Instead, it alleges only conclusory allegations of “non-objective, wrongful, and retaliatory reasons.” See SAC at 4. Therefore, Plaintiff's “associational discrimination” claims under the ADA and Section 504, again, fail as a matter of law.

b. General Retaliation Claim

Plaintiff's general retaliation theory fails as well. To bring a retaliation claim under the ADA or Section 504, a plaintiff must show that she engaged in a protected activity and suffered an adverse action because of it. See Weixel v. Bd. Of Educ. Of City of N.Y., 287 F.3d 138, 148 (2d Cir. 2002) (“[T]he elements of a retaliation claim under either Section 504 [of the Rehabilitation Act] or the ADA are (i) a plaintiff was engaged in protected activity; (ii) the alleged retaliator knew that plaintiff was involved in protected activity; (iii) an adverse decision or course of action was taken against plaintiff; and (iv) a causal connection exists between the protected activity and the adverse action.”) (internal quotations omitted).

First, as this Court has already determined in its prior Report and Recommendation, Plaintiff fails to plausibly plead that she engaged in any protected activity under the ADA or Section 504. See Report and Recommendation at 16-17; see also SAC ¶¶ 11-15, 33-36, 61-63, 106, 110. The Second Amended Complaint does not allege that Plaintiff herself filed complaints, advocated for her brother's disability rights, requested accommodations, or otherwise engaged in protected conduct. See SAC ¶¶ 33-36, 61-63, 106, 110, 130-31, 160. Plaintiff merely alleges that her “disabled brother has been asserting violations” against the District for over a decade, and that the Defendants “pivoted their animus towards the plaintiff in retaliation.” Opp. at 6; cf. Weixel, 287 F.3d at 149 (holding that plaintiff's request for reasonable accommodation for her daughter's disability constituted protected activity).

Even assuming Plaintiff's association with her brother qualifies as a “protected activity” under Weixel, Plaintiff fails to establish a causal link between any protected activity and her failure to make the varsity lacrosse team. See SAC ¶¶ 160, 173-195, 205-218. According to Plaintiff, the District knew of her familial relationship with Aiden and, after years of disputes regarding his education, viewed her family as its “arch nemesis.” Id. ¶ 14. She further alleges that the District's animus intensified following Aiden's litigation victories, claiming the District became “desperate,” embarked on “a wider course of retaliation against the plaintiff's family,” and that Aiden's eventual inclusion in the District only “fortified the defendant school district's resolve to extract punishment and revenge upon the plaintiff” beginning in March 2023, and culminating in her exclusion from the varsity lacrosse team in March 2024 and March 2025. See id. ¶¶ 22, 36, 106, 127, 215. Plaintiff further alleges that the District's purportedly “unbiased” evaluative criteria for determining eligibility for the varsity lacrosse team were not applied equally to her and that the selection process was instead “laden with favoritism, pseudo-nepotism, and political motivation.” Id. ¶¶ 201-202. According to Plaintiff, these actions were “motivated and fueled” by the District's animus toward her and her family and, therefore, were retaliatory and discriminatory. Id.

These allegations, however, do not plausibly establish the requisite causal connection between any protected activity and the challenged adverse action. See Eskenazi-McGibney v. Connetquot Cent. Sch. Dist., 84 F. Supp. 3d 221, 230-31 (E.D.N.Y. 2015) (explaining that even allegations describing troubling or unfair conduct are insufficient unless they include nonconclusory facts plausibly linking the challenged action to disability-based discrimination or protected activity). Generalized allegations of “animus,” without further explanation as to “how” or “why” that animus led to the adverse action against Plaintiff, are insufficient to establish causation. Reply at 5; SAC ¶ 22; see Eskenazi-McGibney, 84 F. Supp. 3d at 230-31 (finding that the facts alleged did not suggest that the reason plaintiff was harassed was because of his disability).

Plaintiff also attempts to rely on temporal proximity to establish the requisite causation for her retaliation claim. Plaintiff alleges that Aiden obtained his final legal victory in March 2023, and she subsequently was not selected for the varsity team in March 2024 and again in March 2025, which she attributes to retaliation stemming from Aiden's successful litigation which later resulting in a settlement. See SAC ¶¶ 71, 106, 215; Opp at 7. But Plaintiff must establish that the temporal proximity between the protected activity and the adverse action of being excluded from the team was “very close.” Vale v. Great Neck Water Pollution Control Dist., 80 F. Supp. 3d 426, 441 (E.D.N.Y. 2015) (holding that a “temporal gap of approximately three months between the protected activity and the adverse action” without more, cannot establish an inference of causation). But here, the adverse outcome of which Plaintiff complains (not being selected for the lacrosse team in March 2024) did not occur until a year after the protected activity allegedly took place (her brother's litigation success in March 2023). See Hollander v. Am. Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir. 1990) (finding a three-month gap between the alleged adverse action and protected activity insufficient to show causation).

Plaintiff therefore fails to plead any facts demonstrating temporal proximity or any other nonconclusory basis from which the Court could reasonably infer that her exclusion from the varsity lacrosse team occurred because of protected activity under the ADA or Section 504. Coupled with Plaintiff's failure to plead facts supporting her assertion that she engaged in any protected activity, her retaliation claim fails as a matter of law.

2. Equal Protection Claim

The Equal Protection Clause is typically used to bring claims alleging discrimination based on membership in a protected class. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). However, if a plaintiff does not allege membership in such a class, she can still prevail on a “class of one” equal protection claim. See id. To prevail in a “class of one” claim, a plaintiff must establish that (1) she was intentionally treated different from others “similarly situated” to her; and (2) there was “no rational basis for the difference in treatment.” Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 140 (2d Cir. 2010). Mere “conclusory assertions” that a plaintiff is similarly situated to others are insufficient to withstand dismissal. Bell v. Kaleida Health, No. 25-366-CV, 2025 WL 2938354, at *3 (2d Cir. Oct. 16, 2023).

In the Second Circuit, the “similarly situated” requirement is stringent as comparators must show an “extremely high” degree of similarity between themselves and the persons to whom they compare themselves such that they are “prima facie identical.” Hu v. City of New York, 927 F.3d 81, 92 (2d Cir. 2019) (quoting Neilson v. D'Angelis, 409 F.3d 100, 105 (2d Cir. 2005)) (cleaned up) (emphasis added); see also Bertuzzi v. Copiague Union Free Sch. Dist., No. CV 17-4256 (SJF) (AKT), 2020 WL 5899949, at *23 (E.D.N.Y. Mar. 9, 2020), report and recommendation adopted as modified, No. 17CV4256SJFAKT, 2020 WL 3989493 (E.D.N.Y. July 15, 2020) (holding that for pleading purposes, the “extremely high degree of similarity,” is the functional equivalent of alleging that a plaintiff and comparator are “prima facie identical”) (citation omitted).

The Second Circuit has emphasized that judgments unsuited to a “class of one” claim are typically “subjective and individualized, resting on a wide array of factors that are difficult to articulate and quantify.” Analytical Diagnostic Labs, Inc., 626 F.3d at 142 (holding that exercising discretionary regulatory power was not enough to establish disparate treatment compared to similarly situated entities). Therefore, although the question of “whether two comparators ‘are similarly situated is [generally] a factual issue that should be submitted to the jury[,]’ ” Marom v. Town of Greenburgh, No. 18-CV-7637, 2020 WL 978514, at *6 (S.D.N.Y. Feb. 28, 2020) (alteration in original) (quoting LTTR Home Care, LLC v. City of Mount Vernon Indus. Dev. Agency, No. 17-CV-9885, 2019 WL 4274375, at *12 (S.D.N.Y. Sept. 10, 2019)), the Court on a Rule 12(b)(6) motion “must determine whether, based on a plaintiff's allegations in the complaint, it is plausible that a jury could ultimately determine that the comparators are similarly situated,” Williams v. Novoa, No. 19-CV-11545, 2021 WL 431445, at *9 (S.D.N.Y. Feb. 5, 2021) (citation omitted). Thus, “[w]ell-pled facts showing that the plaintiff has been treated differently from others similarly situated, remains an essential component of such a claim [․] [c]onclusory allegations of selective treatment are insufficient to state an equal protection claim.” Bishop v. Best Buy, Co., No. 08-CV-8427, 2010 WL 4159566, at *11 (S.D.N.Y. Oct. 13, 2010) (citations and quotation marks omitted).

Here, Plaintiff asserts a “class of one” equal protection claim based on her allegedly discriminatory exclusion from the high school varsity lacrosse team. SAC ¶¶ 221-231. She contends that she “appeared similar to her peers by way of complying with all of the eligibility requirements set forth by NYSPHSAA and the school district” and that “the only relevant dissimilarity” between her and her peers was that she “performed in a superior manner, bettering the majority of her peers on all objective measurements.” Id. ¶¶ 140, 152.

But these are only generalized comparisons to “other girls who made the lacrosse team” and “girls who tryed-out” (Id. ¶¶ 91-105, 138-152, 174-188, 190-94, 221-231), which the Second Circuit has continuously rejected as insufficient to establish comparators for a “class of one” equal protection claim. See Ruston v. Town Bd. For Town of Skaneateles, 610 F.3d 55, 59-60 (2d Cir. 2010) (dismissing “class of one” claim where plaintiff alleged broad, generalized comparators without specifying how they were similarly situated); Clubside, Inc. v. Valetin, 468 F.3d 144, 159 (2d Cir. 2006) (emphasizing a plaintiff must explicitly identify comparators who are prima facie identical to successful state a “class of one” claim).

The mere fact that there were other female students who met the NYSPHSAA eligibility requirements to play high school lacrosse in the District—i.e., age, residency, health clearance, academic status, absence of suspensions, compliance with rules, and “Coach Bergman's stated objective assessments” (SAC ¶¶ 73-90, 91-104, 138-151, 176-187)—is not enough to establish the “extremely high degree of similarity” required to establish a class of one claim, because it does not sufficiently describe relevant characteristics of other female students trying out for the team to establish they were prima facie identical to Plaintiff. Bell, 2025 WL 2938354, at *3 (holding that conclusory assertions that other nurses on shift were similarly situated to the nurse-plaintiff, absent description of nurses’ relevant characteristics “does not establish the requisite level of similarity” required to establish a “class of one” theory); Clubside, 468 F.3d at 160 (holding that assertions that other land developers were similarly situated to the land developer-plaintiff, despite differences in project size, type, and scale, were conclusory and insufficient to establish a “class of one” claim). And as Defendants argue, the “general eligibility to try out is not the same as being similarly situated in all material respects for purposes of roster selection.” See Reply at 7.

Plaintiff also relies on the fact that she was a member of a “nationally ranked club lacrosse team” (SAC ¶¶ 105, 152, 165, 188), and that some “girls on the defendant school district's varsity lacrosse team who did not make the Top Guns “black” team that the plaintiff was on,” but does not make any allegations whether any of these players also participated in any similar club lacrosse teams. Moreover, Plaintiff alleges that she was offered a Division I Lacrosse scholarship from Wagner College (SAC ¶ 166) but does not make any allegations about whether players on the varsity lacrosse team also received such scholarships. Finally, Plaintiff alleges that she was “among the leading scorers” if not, the “overall leading scorer” on each District team she played on (SAC ¶¶ 48, 55, 69, 72, 118, 119), without addressing the scoring metrics of other players who did (or did not) make the varsity team. In summary, the crux of Plaintiff's allegations boil down to her simple assertion that she “seemingly performed very well, and if not superior to, many of the other girls on the varsity team.” SAC ¶ 159. Such subjective, conclusive assessments of her talents (see, e.g., SAC ¶¶ 110, 119) fail to support facts that, even if true, would permit the court to conclude that “no rational person” could have made the same decision for legitimate reasons. Neilson, 409 F.3d at 105; see also Williams v. Novoa, No. 19-CV-11545, 2022 WL 161479, at *9–10 (S.D.N.Y. Jan. 18, 2022) (dismissing equal protection claim “[b]ecause the Court cannot conclude that these comparators bear a ‘reasonably close resemblance’ or have an ‘extremely high’ level of similarity[,]” when plaintiff's allegations were “conclusory and identifie[d] comparators in the abstract”).

Plaintiff asserts that the Court's analysis of her “class of one” claim should be confined to identifying factors that are “actually relevant to a school district's deliberations regarding who should make a varsity team.” See Opp. at 5 But Plaintiff remains silent on many legitimate, individualized considerations “actually relevant” to team selection, including positional needs, team chemistry, practice performance, and coachability. See, e.g., M.R. v. Rispole, 2025 WL 71657 at *4 (finding that selection for the varsity sports team was “not based purely on a student's athletic performance,” and that attitude, sportsmanship, being a potential mentor, and composure on the field are all considered). By neglecting to address these other characteristics and relying primarily on conclusory assertions of her lacrosse prowess, Plaintiff fails to negate any conceivable rational basis for her not making the lacrosse team. See Analytical Diagnostic Labs, Inc., 626 F.3d at 143 (holding that there was plausible rational basis for disparate treatment because plaintiffs failed to establish that their lab was so “similarly situated” to other labs); see also Ruston, 610 F.3d at 60 (holding that different treatment of neighboring properties was permissible because plaintiffs failed to show that the properties were “so similar that no rational person could see them as different”). In fact, Plaintiff herself offers some rational basis in the SAC, as Defendant Bergmann allegedly told Plaintiff in 2023 that the varsity team was full, that students playing in other positions needed playing time, and that Plaintiff would be better served being a “dominant” player on junior varsity.⁵ See SAC ¶¶ 112-116; see also M.R., 2025 WL 71657, at *4 (finding that defendant “articulate[d] legitimate, nondiscriminatory reasons for his actions”).

For these reasons, the equal protection claim fails as a matter of law.

3. First Amendment Retaliation

Finally, Plaintiff alleges that Defendants retaliated against her in violation of the First Amendment by “deny[ing] her access upon the varsity lacrosse team in her senior year [fall 2024 to spring 2025]” because she filed the instant lawsuit against the District in 2024. See SAC ¶ 237.⁶ To prevail on a First Amendment retaliation claim, a plaintiff must demonstrate: “(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.” Kotler v. Boley, No. 21-1630, 2022 WL 4589678, at *1 (2d Cir. Sept. 30, 2022) (citing Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009)).

Courts generally consider the filing of lawsuits as protected speech. See Espinal, 558 F.3d at 129 (holding there is “no dispute” that the filing of a federal lawsuit was a protected activity); Kotler, 2022 WL 4589678, at *2 (same). In the Second Circuit, alleged retaliatory conduct must “deter a similarly situated individual of ordinary firmness” from exercising their First Amendment rights to constitute an adverse action, meaning the act must be more than “trivial.” Zelnick v. Fashion Inst. of Tech., 464 F.3d 217, 225-27 (2d Cir. 2006) (quoting Dawes v. Walker, 239 F.3d 489, 493 (2d Cir. 2001)). Analysis of whether an “undesirable” action qualifies as being “adverse” is a “heavily fact-specific, contextual determination.” Hoyt v. Andreucci, 433 F.3d 320, 328 (2d Cir. 2006). The facts pleaded must be sufficient to support the inference that “the speech played a substantial part” in the adverse action. Dawes, 239 F.3d at 492 (quoting Ezekwo v. N.Y.C. Health & Hosps. Corp., 940 F.2d 775, 780–91 (2d Cir. 1991)). “Bald allegations of retaliation” cannot create an inference of a causal relation. See id.

Plaintiff tried out for the varsity lacrosse team as a sophomore in 2023, as a junior in 2024, and as a senior in 2025, and was denied a spot on the team each time. See SAC ¶¶ 71-105, 110, 137-153. She filed the present action in March 2024 and originally claimed that her exclusion from the lacrosse team was a form of retaliation against her family because of her parents’ advocacy on behalf of her disabled brother, Aiden. See Report and Recommendation at 17. In the Second Amended Complaint, Plaintiff now alleges that her protected speech was the 2024 filing of this lawsuit, and she was denied a spot on the varsity lacrosse team as a senior in 2025 in retaliation for exercising her First Amendment rights. See SAC ¶¶ 232-238.

While it is not in dispute that the filing of the present lawsuit qualifies as protected speech under Section 1983 and Plaintiff later once again was not selected for the varsity lacrosse team, the Second Amended Complaint still fails to plead a plausible First Amendment retaliation claim. See Zelnick, 464 F.3d at 225-26.

For similar reasons discussed supra, the Second Amended Complaint fails to plausibly allege the requisite causal connection between Plaintiff's filing of this lawsuit in March 2024 and her failure to make the varsity lacrosse team in March 2025. See Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 106 (2d Cir. 2001) (dismissing a First Amendment retaliation claim because plaintiff pleaded “no material evidence of a causal relation”). First, Plaintiff pleads no facts to create the inference that the lacrosse coach's decision was unequal, discriminatory, or retaliatory. See generally, SAC ¶¶ 170-189; Cobb v. Pozzi, 363 F.3d 89, 108 (2d Cir. 2004) (citing Morris v. Lindau, 196 F.3d 102, 111 (2d Cir. 1999) (holding that a plaintiff cannot rely “on conclusory assertions of retaliatory motive” to establish causation and instead must “produce some tangible proof” that her “version of what occurred was not imaginary”). More importantly, the Second Amended Complaint does not include factual allegations that support the inference that her coach mentioned the instant lawsuit, targeted Plaintiff specifically because of this lawsuit, or failed to provide a rational explanation when Plaintiff was excluded from the lacrosse team during her senior year. See Lopez v. Falco, No. 25-2534-CV, 2026 WL 1397039 (2d Cir. May 19, 2026) (holding that factual allegations about plaintiff's protected activity of being a union leader being the cause of his suspension of pay and placement on leave were “conclusory assertions of retaliatory motive to satisfy the causal link” and therefore insufficient to establish a First Amendment retaliation claim).

Moreover, Plaintiff fails to establish causation because the Second Amended Complaint alleges substantially similar non-selections during the 2023 and 2024 seasons, prior to the filing of this suit by Plaintiff. See SAC ¶¶ 110-118, 153-159, 189-195; see Smith v. Cnty. of Suffolk, 776 F.3d 114, 118-19 (2d Cir. 2015) (holding that because “protected speech could not substantially cause an adverse action if the employer would have taken that action in any event,” factual allegations can rebut a retaliation claim by demonstrating that the same adverse action would have occurred “even in the absence of the protected conduct”); see also Shub v. Westchester Cmty. Coll., 556 F. Supp. 2d 227, 251 (S.D.N.Y. 2008) (holding that a defendant may avoid liability if it can “demonstrate by a preponderance of the evidence that it would have taken the same adverse action regardless of the protected speech.”) (citation omitted). The qualifications that Plaintiff relies upon to challenge her 2025 non-selection are the same general qualifications she alleges she possessed during the 2023 and 2024 selection processes (see SAC ¶¶ 58-59, 72, 110, 152, 159 (describing how for all three years she tried out for the varsity lacrosse, team, Plaintiff played for the nationally ranked Top Guns Black club team, was the “leading scorer” on her prior teams, and “performed in a superior manner to her peers”), yet the Second Amended Complaint identifies no factual distinction between those earlier non-selections in 2023 and 2024 and her 2025 non-selection other than the intervening filing of this lawsuit. See Castagna v. Sansom, No. 3:21-CV-1663 (JAM), 2024 WL 197462, at *12 (D. Conn. Jan. 18, 2024) (holding that “multiple instances” of discipline prior to plaintiff's protected speech which Plaintiff does “not claim to have been retaliatory” weaken any inference of causation between Plaintiff's protected speech and the alleged adverse action); see also Gonzalez v. NYU Langone Hosps., No. 21-2569, 2022 WL 4372199 (2d Cir. Sept. 22, 2022) (holding that Plaintiff's “extensive history” of performance issues and discipline preceding the adverse action prevent her from establishing an indirect causal connection”); Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001) (holding that “[w]here timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.”).

Finally, Plaintiff argues that the one-year gap between the filing of her lawsuit in 2024 and the alleged discriminatory action in 2025 does not defeat the First Amendment causation element, because varsity lacrosse tryouts occur only once each year, making her March 2025 non-selection the District's first opportunity to retaliate. See Opp. at 13-14. But the Second Circuit has repeatedly held that a temporal gap of several months, standing alone, is insufficient to establish causation where the plaintiff offers no other nonconclusory allegations linking the protected activity to the adverse action. Hollander, 895 F.2d at 86 (finding “a lack of a causal nexus” between plaintiff's age discrimination complaint and any subsequent action taken against him even though plaintiff was denied a position only several months after his complaint). Accordingly, Plaintiff fails to plead the requisite causal connection to plausibly succeed on her First Amendment claim.

Plaintiff alleges that her earlier non-selection for the varsity team in 2023 was because the team was “full,” she would be “better served on the junior varsity team” and the varsity roster already included other players who “needed playing time.” SAC ¶¶ 114-116. As discussed supra, these are precisely the types of “discretionary roster considerations” (made in 2023, 2024 and 2025) that are entrusted to coaches who take many factors into consideration such as team chemistry, roster availability, and athlete attitude. Mot. at 26; see supra, Section 2; M.R. v. Rispole, 2025 WL 71657, at *4 (holding that other factors besides a student's athletic performance can be legitimate and nondiscriminatory for not making the team). While Plaintiff plainly objects to the coaches’ decisions not to select her for the high school varsity lacrosse team, such disagreement with a discretionary athletic determination does not plausibly establish retaliation under the First Amendment. See Zelnik, 464 F.3d at 228 (holding that failure to be promoted was based on “highly discretionary” criteria, undermining the likelihood that the action was discriminatory).

IV. CONCLUSION

For the reasons set forth in this Report and Recommendation, the undersigned respectfully recommends that motion to dismiss be granted in its entirety and any further leave to amend be denied.⁷

V. OBJECTIONS

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2), the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed. R. Civ. P. 6(a) & (d) (addressing computation of days). Any request for extension of time for filing objections must be directed to Judge Brown. Failure to file timely objections shall constitute waiver of those objections both in the district court and later appeal to the United States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 154–55, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Frydman v. Experian Info. Sols., Inc., 743 F. App'x 486, 487 (2d Cir. 2018); McConnell v. ABC-Amega, Inc., 338 F. App'x 24, 26 (2d Cir. 2009); F.D.I.C. v. Hillcrest Assocs., 66 F.3D 566, 569 (2d Cir. 1995).

SO ORDERED:

FOOTNOTES

1.   Plaintiff is represented in this action by Christan Killoran, Esq. (who is Plaintiff's father). At this stage of the case, no party is appearing pro se. See ECF No. 25.

2.   The original Plaintiffs were Christian Killoran, Terrie Killoran, and Christian Killoran on behalf of his daughter, Shannon Killorran. Shannon is now the sole remaining Plaintiff.

3.   See Jan. 14, 2026 Order (Decision and Order by Judge Brown adopting the findings of the Report and Recommendation that Plaintiff's parents did not have standing).

4.   Plaintiff recasts her ADA “associational discrimination” theory as “derivative discrimination/retaliation,” but Plaintiff cites no case law that supports such a theory. See Mot. at 5. Instead, Plaintiff cites language from Graziado v. Culinary Institute of America, 817 F.3d 415 (2d Cir. 2016) (discussing “associational discrimination” as a distinct theory under the ADA) and Kelleher v. Fred A. Cook Inc., 939 F.3d 465 (2d Cir. 2019) (same). SAC at 2-3; Mot. at 14. This relabeling does not substantively change the analysis applied in the Report and Recommendation, and the Court refers to the amended ADA and 504 claims as “associational discrimination” claims and applies the same case law as the Court would for an “associational discrimination” claim.

5.   Despite her own admission, Plaintiff attempts to shift her burden at this stage. She writes in her Opposition, “[t]o date, an analysis of the defendants’ pleadings reveal that they have failed to introduce any affirmative evidence whatsoever countering the plaintiff's claim to be a deserving member of the Women's Varsity Lacrosse Team [․] In fact, the defendants have failed to affirmatively counter any of the plaintiff's claims in any evidentiary regard whatsoever.” Opp. at 2-3. This burden-shifting is inappropriate in the equal protection context for class-of-one claims. See generally Glover v. Grimaldi, No. 23-CV-5019 (KMK), 2025 WL 919930, at *8 (S.D.N.Y. Mar. 26, 2025) (applying class-of-one analysis without burden shifting).However, retaliation claims under the ADA are generally analyzed under the burden-shifting analysis established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this test, a plaintiff must first establish a prima facie case of disability discrimination, and the burden then shifts to the defendant who may rebut the claim with legitimate, non-discriminatory reasons for the adverse action. See McMillan v. City of New York, 711 F.3d 120, 125-126 (2d Cir. 2013). However, for the reasons discussed supra, Plaintiff's retaliation claim fails, and thus the Court need not engage in McDonnell’s burden shifting framework.

6.   Plaintiff explicitly limits her free speech retaliation claim to “the acts of the defendants which occurred during the 2024-2025 academic year (the plaintiff's Senior year).” See SAC at 6.

7.   Plaintiff Shannon Killoran filed the original Complaint on May 22, 2024. See ECF No. 1. Since then, she has amended her complaint two times. See ECF Nos. 23-2, 30. Notably, Plaintiff was not proceeding pro se at any point in time and has been represented by an attorney (her father Christian) throughout this litigation. See ECF No. 25 (“Christian Killoran is appearing as legal counsel for the plaintiffs, Terrie Killoran and Shannon Killoran”). Under these circumstances, Plaintiff should not granted be leave to leave once again and should not be permitted to file a third amended complaint in this case. See DeFreitas v. Suffolk Cnty., No. 2:24-CV-5035 (NJC) (AYS), 2025 WL 857807, at * 7(E.D.N.Y. Mar. 18, 2025) (““[T]he [c]ourt has given [p]laintiff two bites at the apple, and there is no need for a third bite.”); Treppel v. Biovail Corp., No. 03–cv–3002, 2005 WL 2086339, at *12 (S.D.N.Y. Aug. 30, 2005) (explaining that “leave to amend would be futile because [the] plaintiff has already had two bites at the apple and they have proven fruitless”).

LEE G. DUNST United States Magistrate Judge