MARISOL CRUZ v. NEW YORK CITY TRANSIT (2025)

REPORT AND RECOMMENDATION

To the Honorable Analisa Torres, United States District Judge:

Plaintiff Marisol Cruz, proceeding pro se, brings this action alleging that the New York City Transit Authority (“MTA”) and its employees violated federal, state, and local employment laws, inter alia, by discriminating against her based on her religious beliefs and disability status. Defendants have moved to dismiss the case under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, arguing that her claims are time-barred, that she failed to exhaust administrative remedies prior to filing in federal court, that several of her claims are barred by the doctrine of issue preclusion, that her federal claims against the individual defendants are not permitted by the relevant statutes, that she lacks standing to enforce criminal statutes, and that she did not adequately plead her causes of action. For the reasons set forth below, Defendants’ motion should be GRANTED.

I. FACTUAL BACKGROUND

Cruz began working as a Station Agent for the MTA in 2006. Complaint (“Compl.”), Dkt. No. 1, at 10. In this role, she worked in a booth providing customer service to subway riders. Id. In late 2021, Cruz worked at the Wall Street station on the No. 2 line. Id. at 10-11.

A. Cruz's COVID Accommodation Request

In response to the COVID-19 pandemic, the Governor of New York issued a state-wide mask mandate in April of 2020. Executive Order 202.17: Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency, 9 N.Y.C.R.R. 8.202.27.¹ In response, the MTA required all employees and customers to wear masks when in the subway system. New York State Division of Human Rights (“SDHR”) Complaint, filed on December 23, 2022 (the “SDHR Compl.”), Dkt. No. 31-1.² This requirement applied to Station Agents such as Cruz. Compl. at 11. In addition to the mask requirement, Station Agents were also required either to receive a COVID-19 vaccine or to submit to weekly COVID testing. SDHR Compl. Exhibits at 4, Dkt. No. 31-2.

Cruz requested a religious exemption from the masking and test-or-vaccine requirements on December 24, 2021. Compl. at 11; Defendants’ Memorandum of Law in Support of Motion to Dismiss the Complaint in its Entirety (“Def. Mem.”), Dkt. No. 34, at 4–5. While she did not request a disability exemption per se, her religious accommodation application stated that Cruz “ha[d] a disability” and was “protected under the American with Disabilities Act.” Id.

During the week following her request, but before the MTA ruled on it, Cruz reported to work without a mask. Id. As a result, she was referred to the MTA Labor Relations Department. Id.; Compl. at 11. After continuing to refuse to wear a mask at work on December 30, Cruz was placed on an unpaid leave of absence. Id.; Def. Mem. at 5. Cruz filed for unemployment insurance on January 12, which she ultimately received. Compl. at 12–13.

On January 19, 2022, the MTA denied Cruz's request for accommodation, determining that it would pose an undue hardship due to safety concerns. SDHR Compl. Exhibits at 4. Cruz alleges that she was not made aware of this denial until April 21, 2022. Compl. at 12. For ease of reference, Cruz's allegations concerning her request for an accommodation with respect to COVID-related rules and her unpaid leave of absence in early 2022 are referred to as the “COVID Accommodation Allegations.”

B. Cruz's Return to Work and Alleged Harassment

On July 11, 2022, Cruz returned to work at the MTA, but at a different station, the 8th Street station, and with a different supervisor.³ Compl. at 13. Although Cruz alleges that her new supervisor, Sade Kornagay, “made references” to her previous work location, she does not allege that Kornagay mentioned or was aware of Cruz's 2021 request for accommodation. Id.

Cruz experienced friction with Kornagay soon after returning to work. She alleges that on August 16, 2022, Kornagay “created a hostile work environment.” Compl. at 13–14. The Complaint alleges a number of other harassing actions committed by Kornagay and other supervisors in late 2022 and the first half of 2023. Id. For ease of reference, Cruz's allegations concerning the period from when she returned to work in July 2022 up to the June 9, 2023, incident described below are referred to as the “Post-Return Harassment Allegations.”

C. Cruz's 2023 Termination

On June 9, 2023, defendant Deborah Felice was called to the 8th Street station where Cruz was working after a dispute between Cruz and a cleaning team. Compl. at 15; Def. Mem. at 14. Following this dispute, Cruz did not return to work at her assigned workplace. Compl. at 15; Def. Mem. at 14. On June 28, 2023, Cruz “returned to work” at the MTA's Labor Relations office. Compl. at 16. On July 5, 2023, Cruz was suspended without pay and the MTA began the disciplinary process that ultimately resulted in her termination in August 2023. Id. The hostile acts alleged by Cruz during this period primarily involved her workplace attire and physical entrance into her workspace; none involved or referenced the MTA's mask policy or its test-or-vaccine policy. Id. For ease of reference, Cruz's allegations concerning the June 9, 2023 incident and events that followed it, including her termination from the MTA, are referred to as the “2023 Termination Allegations.”

D. The 2022 SDHR Complaint

On December 23, 2022, Cruz filed a discrimination complaint with the SDHR. SDHR Compl. at 12. In the SDHR Complaint, Cruz alleged that she had been discriminated against on the basis of her religious beliefs and her disability, identified as asthma. Id. The SDHR complaint cited the specific acts of the denial of a religious accommodation and being placed on unpaid leave as the basis for her claim. Id. at 15. Thus, the SDHR Complaint included Cruz's COVID Accommodation Allegations.

In the narrative portion of the SDHR Complaint, Cruz also referenced disputes with her supervisor at the 8th Street station since returning to work in July 2022, claiming that Kornagay “harassed” her and alleging a November 15, 2022 incident in which the MTA “interfered” with Cruz's attempt to file a police report against Kornagay complaining of harassment. Id. at 19. Thus, the SDHR complaint contained at least some of the Post-Return Harassment Allegations based on events from June 8, 2022 through at least November 15, 2022.

The SDHR Complaint did not explain how these Post-Return Harassment Allegations related to Cruz's religious beliefs or disability, beyond the single assertion that Kornagay asked if Cruz had previously worked at the Wall Street station. Id. Although the SDHR Complaint was not initially filed with the federal Equal Opportunity Employment Opportunity Commission (“EEOC”), it was considered simultaneously filed with the EEOC. Dkt. No. 34-3.

On September 19, 2023, the SDHR issued its ruling. Determination and Order After Investigation (“SDHR Determination”), Dkt. No. 34-4. The SDHR found that there was no probable cause to believe that the MTA had engaged in the unlawful discriminatory practices alleged. Id. at 1. It also found that the MTA's decision to place Cruz on unpaid leave due to her refusal to wear a mask or submit to regular COVID testing was a reasonable accommodation. Id. at 3. Thus, the SDHR adjudicated claims based on Cruz's COVID Accommodation Allegations.

The SDHR Determination also addressed certain of Cruz's Post-Return Harassment Allegations, finding that Cruz demonstrated neither that the behavior she complained of after her return to work constituted harassment nor that it was related to her religious beliefs or disability in any way. Id. at 3–4. More specifically, the SDHR Determination addressed incidents involving Kornagay that occurred on August 16 and November 15, 2022, but did not address any Post-Return Harassment Allegations occurring in 2023. There is no allegation or other showing that Cruz appealed from the SDHR Determination in New York state court.

On October 26, 2023, the EEOC adopted the SDHR's findings. Compl. at 20.

E. The 2023 Arbitration

After the MTA suspended Cruz without pay in July 2023 in connection with the June 9, 2023 incident, Cruz contested the MTA's disciplinary actions through a hearing before an independent arbitrator, pursuant to the collective bargaining agreement between the Transit Workers’ Union and the MTA. In the Matter of the Arbitration of New York City Transit Authority and Transport Workers Union Local 100 re: Marisol Cruz; Pass #XXXXXX, DANS: 23-2757-0090 and 23-2757-0091, by Arbitrator Philip L. Maier, dated October 23, 2023 (“Arb. Opinion”), Dkt. No. 34-5.⁴ At the arbitration, Cruz made similar claims of harassment by her supervisors in 2022 and 2023 that she makes in the present action (i.e., the Post-Return Harassment Allegations), and contended that her termination was retaliation for attempts to obtain redress for this harassment. Id. at 8–9; Pl. Opp. at 77–78. The independent arbitrator found that the MTA had just cause to terminate Cruz. Arb. Opinion at 9–10.

II. PROCEDURAL HISTORY

Cruz filed the Complaint on January 2, 2024. Dkt. No. 1. In addition to the MTA itself, she named seven individual MTA employees as defendants: Martense Avitus, Afiya Garcia-Austin, Tanya Forrester, Sandrea Flowers, Deborah Felice, Sade Kornagay, and R. Wallace. Id. at 2–7. She alleges that Defendants violated Title VII of the Civil Rights Act of 1974 (“Title VII”), 42 U.S.C. §§ 2000e–2000e-17, the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101–12213, New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law §§ 290–297, and New York City Human Rights Law (“NYCHRL”), N.Y. Admin. Code §§ 8-101–131. Compl. at 3–8. She also alleges that Defendants committed “aggravated harassment” in violation of New York Penal Law § 240.30. Id. at 8.

For relief, Cruz seeks a return to employment, compensation for lost wages, a restoration of her pension, compensatory damages for pain and suffering and damage to her reputation, and punitive damages. Id. at 18.

On May 6, 2024, Defendants moved to dismiss the complaint. Dkt. No. 30. In support of this motion, they filed a memorandum of law, as well as the complete record of the SDHR proceeding and the arbitration opinion and award. Dkt. No 34. Cruz filed a Declaration of Marisol Cruz in Opposition to Motion to Dismiss (“Pl. Opp.”) on July 15, 2024. Dkt. No. 43. On August 1, 2024, Defendants filed their Reply Memorandum of Law (“Def. Reply”). Dkt. No. 46. On August 6, 2024, this case was referred to Magistrate Judge Katharine H. Parker for a report and recommendation on the motion to dismiss. Dkt. No. 48. On August 29, 2024, the case was referred to the undersigned.

III. LEGAL STANDARDS

A. Rule 12(b)(1) Motion to Dismiss

“[A] federal court generally may not rule on the merits of a case without first determining that it has jurisdiction over the category of claim in suit ([i.e.,] subject-matter jurisdiction).” Sinochem Int'l Co. v. Malay. Int'l Shipping Corp., 549 U.S. 422, 430-31 (2007). “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Where subject matter jurisdiction is challenged, a plaintiff “bear[s] the burden of ‘showing by a preponderance of the evidence that subject matter jurisdiction exists.’ ” APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003) (quoting Lunney v. United States, 319 F.3d 550, 554 (2d Cir. 2003)).

In considering a Rule 12(b)(1) motion, a court “must accept as true all material factual allegations in the complaint.” J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004). The court “may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, but ․ may not rely on conclusory or hearsay statements contained in the affidavits.” Id. In resolving a Rule 12(b)(1) motion, a court may also “consider ‘matters of which judicial notice may be taken.’ ” Greenblatt v. Gluck, No. 03-CV-597 RWS, 2003 WL 1344953, at *1 n.1 (S.D.N.Y. Mar. 19, 2003) (quoting Hertz Corp. v. City of New York, 1 F.3d 121, 125 (2d Cir. 1993)).

B. Rule 12(b)(6) Motion to Dismiss

Rule 12(b)(6) allows a party to move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In considering a Rule 12(b)(6) motion, a court accepts all factual allegations in the complaint as true and draws all reasonable inferences in the plaintiff's favor. See, e.g., Mayor & City Council of Baltimore v. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013). To survive dismissal, a plaintiff must allege enough facts “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Facial plausibility exists when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “Importantly, the ‘plausibility’ standard applies only to a complaint's factual allegations. [The Court] give[s] no effect at all to ‘legal conclusions couched as factual allegations.’ ” Citigroup, Inc., 709 F.3d at 135 (quoting Port Dock & Stone Corp. v. Oldcastle Northeast., Inc., 507 F.3d 117, 121 (2d Cir. 2007)).

C. Standards for Pro Se Litigants

While pro se complaints are read liberally “to raise the strongest arguments they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (citation omitted), they must still state a plausible claim for relief. Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013). Thus, a district court should dismiss a pro se plaintiff's complaint if it “fail[s] to meet minimum pleading requirements.” Kinsey v. Bloomberg, No. 12-CV-8936 (PAE) (JCF), 2014 WL 630670, at *3 (S.D.N.Y. Feb. 18, 2014).

Submissions made by pro se plaintiffs are held “to less stringent standards than formal pleadings drafted by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotations omitted); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (courts are “obligated to construe a pro se complaint liberally”). As a result, the Court may consider allegations that appear in a pro se plaintiff's motion papers or other submissions to the Court as well as in his pleadings. See, e.g., Freud v. N.Y.C. Dep't of Educ., No. 21-CV-2281 (MKV), 2022 WL 889213, at *4 (S.D.N.Y. Mar. 25, 2022) (courts “may also consider factual statements made in the pro se Plaintiff's opposition to the motion to dismiss” (citing Walker, 717 F.3d at 122 n.1). Nevertheless, pro se plaintiffs are not excused from the normal rules of pleading; “dismissal ․ is proper if the complaint lacks an allegation regarding an element necessary to obtain relief.” Geldzahler v. N.Y. Med. Coll., 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009) (cleaned up).

IV. ANALYSIS

Defendants argue that all of Cruz's claims should be dismissed. First, they contend that the state law claims litigated in the SDHR (which include claims based on the COVID Accommodation Allegations and at least some of the Post-Return Harassment Allegations) should be dismissed under Rule 12(b)(1) because Cruz's election to pursue these state law claims in the SDHR deprives this Court of subject matter jurisdiction. Def. Mem. at 15–16. Second, they contend that federal law and local law claims based on these same allegations are both untimely and barred by collateral estoppel. Id. at 14–15. Third, Defendants argue that Cruz is collaterally estopped from bringing claims based on her 2023 Termination Allegations because they were decided in a binding arbitration. Id. at 18.

Defendants also argue that Cruz has failed to adequately plead her causes of action on the merits. Id. at 18–23. Finally, Defendants contend that because there is no individual liability under the ADA or Title VII, those claims against the individual defendants should be dismissed, and because New York's Penal Law does not provide a private right of action, the aggravated harassment cause of action should be dismissed. Id. at 24–25. The Court will address these arguments in turn.

A. Timeliness and Exhaustion of Federal Claims Based on The COVID Accommodation Allegations

“[A] plaintiff seeking to bring a claim pursuant to the Americans with Disabilities Act (“ADA”) [or] Title VII ․ must exhaust administrative remedies through the EEOC or [the state administrative agency].” Soules v. Connecticut, Dep't of Emergency Servs. & Pub. Prot., 882 F.3d 52, 57 (2d Cir. 2018). To exhaust their administrative remedies, a plaintiff “must file a charge of discrimination with the EEOC ‘within three hundred days after the alleged unlawful employment practice occurred,’ 42 U.S.C. § 2000e-5(e)(1), and must then file an action in federal court within 90 days of receiving a right-to-sue letter from the agency, id. § 2000e-5(f)(1). Duplan v. City of New York, 888 F.3d 612, 621–22 (2d Cir. 2018).

Cruz was placed on leave without pay on December 29, 2021, effective December 30, due to her failure to comply with the MTA's masking requirement. Compl. at 11. The MTA formally denied her request for an accommodation on January 19, 2022. Dkt. No. 34-2 at 4. However, Cruz claims that this denial was not transmitted to her until April 26, 2022. Compl. at 12. Defendants argue that because Cruz filed her SDHR complaint more than 300 days after either of those dates, her Title VII and ADA claims should be dismissed as untimely under Rule 12(b)(6). Def. Mem. at 14–15.

In response, Cruz writes that she first mailed her complaint to the EEOC in June of 2022. She claims that later that month she attempted to file with the EEOC in person, but was unsuccessful because the EEOC offices were closed to walk-ins due to the pandemic. Pl. Opp. at 4. Cruz has provided what appear to be contemporaneous screenshots of the EEOC's website showing that no appointments were available from July through December of 2022. Id. at 87–92. She does not offer an explanation for her delay in filing with the SDHR, which allows for dual-filing with the EEOC.

Ultimately, the Court need not reach the issue of timeliness because Cruz's federal claims based on the COVID Accommodation Allegations made in the SDHR should be dismissed on other grounds.

B. The Court Lacks Subject Matter Jurisdiction Over Cruz's State Law Claims Based Upon Allegations Made in the SDHR Complaint

An individual alleging violations of the NYSHRL may either file suit in court or bring the claims before a local commission on human rights. N.Y. Exec. Law § 297(9). After an unfavorable decision from the state administrative agency, a plaintiff can only appeal from that decision in state court. Id. at 127 (“Furthermore, once a plaintiff brings a case before the NYSDHR, he or she may appeal only to the Supreme Court of State of New York.”) (citing N.Y. Exec. Law § 298). The Second Circuit has ruled that if a plaintiff files a claim with the New York State Division of Human Rights, federal courts lack subject matter jurisdiction over those claims. Desardouin v. City of Rochester, 708 F.3d 102, 106 (2d Cir. 2013) (upholding district court's dismissal of case for lack of subject matter jurisdiction where plaintiff brought identical claims in SDHR).

In her SDHR complaint, which asserted violations of the NYSHRL, Cruz alleged that the MTA and its employees, Flowers and Forrester, Defendants in this lawsuit as well, discriminated against her based upon her religion and disability. SDHR Compl. at 12–14. Thus, Cruz pursued claims based on her COVID Accommodation Allegations in the SDHR. Additionally, the SDHR complaint asserted state law claims based upon certain incidents that are part of the Post-Return Harassment Allegations. Id. at 18–19.

Cruz's Complaint filed here relies on these same COVID Accommodation Allegations made in the SDHR. Compare Compl. at 11–13 with SDHR Complaint at 18–19. In both complaints, Cruz alleges that she was discriminated against because the MTA did not provide accommodations for her religious beliefs and disability, and by placing her on unpaid leave. Id. Cruz's Complaint also makes the same Post-Return Harassment Allegations that were made in the SDHR, particularly those occurring in 2022. Compare Compl. at 13-14 with SDHR Complaint at 19. The SDHR ruled against Cruz on these claims. Defendants contend that Cruz failed to appeal from the SDHR Determination in state court and Cruz never rebuts this assertion. Def. Mem. at 22.

Accordingly, this Court lacks subject matter jurisdiction over the state law claims that Cruz pursued in the SDHR because she elected to bring those claims in a state administrative agency and did not appeal from its decision. This means that state law claims based on the COVID Accommodation Allegations and those Post-Return Harassment Allegations made in the SDHR should be dismissed under Rule 12(b)(1). See Desardouin, 708 F.3d at 106.

C. Federal Law and Local Law Claims Based on the Facts Alleged in the SDHR Complaint Should Be Dismissed Under the Doctrine of Collateral Estoppel

“Even though a plaintiff's factual allegations must be accepted as true and all reasonable inferences drawn in the plaintiff's favor on a motion to dismiss [pursuant to Rule 12(b)(6)], collateral estoppel will nonetheless bar a plaintiff's claim when the plaintiff's ‘factual allegations have been decided otherwise in previous litigation.’ ” Poindexter v. Cash Money Records, No. 13-CV-1155 (RWS), 2014 WL 818955, *3 (S.D.N.Y. Mar. 3, 2014) (quoting Jacobs v. Law Offices of Leonard N. Flamm, No. 4-CV-7607, 2005 WL 1844642 (DC), at *3 (S.D.N.Y. July 29, 2005). While courts “apply federal law in determining the preclusive effect of a federal judgment and New York law in determining the preclusive effect of a New York state court judgment, ․ there is no discernible difference between federal and New York law concerning ․ collateral estoppel.” Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002). “Under New York law, a claim will be barred by a determination in an earlier action if both causes of action are grounded on the same gravamen or are part of the same ‘factual grouping,’ even if the later claim is brought under a different legal theory of recovery.” Kirkland v. City of Peekskill, 828 F.2d 104, 110 (2d Cir. 1987).

Under New York law, “ ‘res judicata and collateral estoppel are applicable to give conclusive effect to the quasi-judicial determinations of administrative agencies ․ when rendered pursuant to the adjudicatory authority of an agency to decide cases brought before its tribunals employing procedures substantially similar to those used in a court of law․’ ” DeCintio v. Westchester County Medical Center, 821 F.2d 111, 117 (2d Cir. 1987) (quoting Ryan v. New York Telephone Co., 62 N.Y.2d 494, 499 (1984)), cert. denied, 484 U.S. 825 (1987).

In her SDHR Complaint, Cruz only asserted claims under the NYSHRL. In the present action, she brings claims grounded in the ADA, Title VII, and NYCHRL that are based on the same factual allegations presented in the SDHR proceeding. More specifically, both the SDHR complaint and the instant Complaint assert Cruz's COVID Accommodation Allegations. See Compl. at 9 (“[Defendants] did not accommodate my reasonable religious accommodate [SIC]. Put on unpaid leave.”); SDHR Compl. at 15 (under “Acts of Discrimination” section, checking box for “Denied me an accommodation for my religious practices” and writing next to “Other” box writing “Unpaid leave for six months.”). Both complaints challenge the MTA's decision not to provide Cruz an accommodation for her religious beliefs and disability, and its decision to place her on unpaid administrative leave when she refused to adhere to its masking and test or vaccine policies. Compl. at 11–12; SDHR Complaint at 18–19.

Additionally, Cruz asserts claims in this action that are based on the same Post-Return Harassment Allegations that were advanced in the SDHR Complaint. Most notably, both complaints refer to an August 16, 2022 incident in which Kornagay allegedly tried to force Cruz to violate MTA policies and a November 15, 2022 incident in which Defendants allegedly interfered with Cruz filing a police complaint. See Compl. at 13-14; SDHR Complaint at 19.⁵

Because Cruz previously litigated these same COVID Accommodation Allegations and Post-Return Harassment Allegations in the SDHR, the SDHR rejected her claims based on these allegations, and she did not appeal from this decision in state court, Cruz's ADA, Title VII, and NYCHRL claims that are based on the COVID Accommodation Allegations and the Post-Return Harassment Allegations made in the SDHR complaint should be dismissed under Rule 12(b)(6).

D. Cruz Has Not Exhausted Her Administrative Remedies with Regard to Federal Claims Premised on Allegations Not Presented to the SDHR

As a matter of logic, Cruz's claims fall into two, mutually exclusive categories: (1) claims based on allegations made to the SDHR, and (2) claims based on allegations that were not made to the SDHR. As explained above, the claims falling in the first category should be dismissed either for lack of subject matter jurisdiction (Cruz's state law claims) or collateral estoppel (Cruz's federal and local law claims). This leaves the second category – claims based on allegations that were not made in the SDHR. To the extent they fall within this second category and are premised on factual allegations that were not presented to the SDHR, Cruz's federal claims for violation of the ADA and Title VII should be dismissed for failure to exhaust administrative remedies.

Cruz asserts claims in this action that are grounded in allegations that were not made in her December 2022 SDHR Complaint. These include allegations of certain hostile and harassing interactions that occurred after she returned to work at the 8th Street station on July 8, 2022, i.e., a portion of the Post-Return Harassment Allegations (particularly those occurring in 2023) as well as the 2023 Termination Allegations.

Cruz states that she attempted to amend her SDHR Complaint to include these additional allegations, but the SDHR ruled against her before she could do so. Pl. Opp. at 5. She also filed a second dual charge/complaint with the SDHR and the EEOC in January of 2024, which was after the litigation Complaint was filed. Id. She does not claim to have received a final determination from the SDHR or a right-to-sue letter from the EEOC in relation to this second complaint. Cruz has therefore has not exhausted her administrative remedies with regard to the alleged discriminatory actions that were not mentioned in the SDHR complaint, and the federal claims that require exhaustion–i.e., her ADA and Title VII claims–should be dismissed without prejudice. See, e.g., Soules v. Connecticut, 882 F.3d 52, 57 (2d Cir. 2018).

In her opposition papers, Cruz claims that defendants Kornagay and Felice acted in retaliation. Pl. Opp. at 3–4. Cruz presumably makes this assertion so she can argue that these later incidents relate back to the earlier incidents, for which she did utilize administrative remedies. See Williams v. N.Y. City Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006) (Claims not raised in an EEOC [or EEO] complaint ․ may be brought in federal court if they are ‘reasonably related’ to the claim filed with the agency.”) (citing Butts v. City of N.Y. Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993)).

However, Cruz has not plausibly alleged that the clashes with her supervisors in the second half of 2022 and in 2023 that were not presented to the SDHR were in any way related to her earlier request for an accommodation. At the outset, it is worth noting that the SDHR specifically addressed two incidents involving Kornagay, including an August 2022 run-in over lost property documents and a November 15, 2022 confrontation in the station booth. After considering these allegations, the SDHR observed that Cruz had complained that her supervisors were “harassing” her even before the pandemic, and concluded, “the investigation did not reveal any evidence that these supervisory actions were in any way related to Complainant's religion, disability, or any protected category under the law. Complainant has failed to establish any connection between her protected characteristics and any of her allegations, and has only provided speculative and conclusory statements.” SDHR Determination at 4.

In her opposition, Cruz provided a copy of the letter she sent to the Office of Equal Employment Opportunity complaining about these and other events in late 2022 and 2023. Pl. Opp. at 69–73. But this summary of the actions taken by Kornagay and Felice does not plausibly allege retaliation. Cruz's primary basis for alleging retaliation is that Kornagay asked Cruz in July 22 whether she had worked at the Wall Street station. Pl. Opp. at 69. But there is no assertion that Kornagay or Felice ever mentioned Cruz's prior request for accommodation, her religious beliefs, or her disability. Nor are there factual allegations that would support a reasonable inference that Cruz's supervisors knew about her accommodation request. Id.

As reported by Cruz, these incidents generally involved either Cruz's attire or perceived invasions of her personal space in her booth at the 8th Street Station. Id. The key incident that led to Cruz's refusal to return to her worksite in June 2023 was instigated by a cleaning crew supervisor who did not even know Cruz's name. Pl. Opp. at 71; Arb. Opinion at 3–4. At most, Cruz alleges that Kornagay “made references” to her “previous work location” in July 2022, but this vague assertion fails to demonstrate the required connection between the protected activity – a request for an accommodation – and her disputes with her new supervisors. Compl. at 13. It is particularly unavailing given the SDHR's unappealed determination that Kornagay's actions in August and November 2022 – after her July 2022 reference to Cruz's prior work at the Wall Street station – were not retaliatory. Cruz provides no plausible basis to infer that Kornagay developed a retaliatory motive at some point after these events that the SDHR already considered and determined were not retaliatory. Finally, Cruz does not claim that the other MTA employee who allegedly harassed her, defendant Deborah Felice, ever even mentioned Cruz's work at the Wall Street station.

Ultimately, Cruz fails plausibly to allege that the disputes with her new supervisors at the 8th Street station were in retaliation for her earlier request for accommodation. Because she has not exhausted her administrative remedies regarding the events not included in her first SDHR complaint, and these events are not related to her prior dual SDHR/EEOC filing, these federal claims should be dismissed without prejudice.

E. Cruz is Collaterally Estopped from Bringing Claims Based On Her 2023 Termination Allegations

The doctrine of collateral estoppel precludes subsequent litigation if “(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.” Moccio v NY State Off. of Ct. Admin., 95 F3d 195, 200 (2d Cir 1996). “Under New York law as it has evolved, collateral estoppel may also be applied, assuming there has been a final determination on the merits, to an issue resolved in arbitration.” Postlewaite v. McGraw-Hill, 333 F.3d 42, 48 (2d Cir. 2003).

The MTA's decision to terminate Cruz was adjudicated before an independent arbitrator on October 8, 2023. Arb. Opinion at 1. The specific incident discussed – an interaction with defendant Deborah Felice on June 9, 2023, after which Cruz did not report to her workplace – is described in the present Complaint as an act of retaliatory harassment. Id. at 1; Compl. at 16. At the arbitration, counsel retained by the Transit Workers’ Union was available to represent Cruz, but she elected to represent herself. Arb. Opinion at 2.

At the hearing, Cruz made the very same claim that she alleges here: Felice's actions and the resulting disciplinary process were in retaliation for Cruz's complaints to the state regulatory bodies. Arb. Opinion at 10; Pl. Opp. at 77–78 (plaintiff's closing statement at the arbitration). The arbitrator rejected this contention, determining, “I do not find that there is any basis to conclude that Felice's actions were retaliatory. I credit Felice's testimony that she did not recall any prior interactions with Cruz and there is no evidence to demonstrate that she was aware that Cruz had filed anything which would be protected by statute from retaliatory conduct.” Arb. Opinion at 10.

Because Cruz litigated claims based on her present 2023 Termination Allegations in the arbitration (i.e., that the June 9, 2023, incident and her subsequent termination were retaliatory), and the independent arbitrator rejected these claims, Cruz is collaterally estopped from bringing claims based on the 2023 Termination Allegations in this action. These claims should therefore be dismissed under Rule 12(b)(6).

F. The Court Should Decline to Exercise Supplement Jurisdiction Over Cruz's Remaining Claims Under State and Local Law Based on Post-Return Harassment Allegations That Were Not Presented in the SDHR

As discussed in Part C and Part D above, all of Cruz's federal claims should be dismissed. As discussed in Part E above, all claims (federal, state and local) arising from the 2023 Termination Allegations should be dismissed. As discussed in Part B and Part C above, all claims (federal, state and local) based on allegations presented to the SDHR (i.e., claims based on the COVID Accommodation Allegations and a portion of the Post-Return Harassment Allegations) should be dismissed. The only claims remaining are the NYSHRL and NYCHRL claims that are based on those Post-Return Harassment Allegations that were not presented to the SDHR. However, a district court “may decline to exercise supplemental jurisdiction over a claim” once it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c).

“Courts in this District routinely decline to exercise supplemental jurisdiction over a plaintiff's NYCHRL claims after dismissing all federal claims.” Espinoza v. New York City Dep't of Transportation, 304 F. Supp. 3d 374, 391 (S.D.N.Y. 2018); see also Harris v. NYU Langone Med. Ctr., No. 12-CV-0454(RA), 2014 WL 941821, at *1–2 (S.D.N.Y. Mar. 11, 2014) (declining to exercise jurisdiction over NYHSRL and NYCHRL claims); Algarin v. City of New York, No. 12-CV-1264 (LTS), 2012 WL 4814988, at *4 (S.D.N.Y. Oct. 10, 2012) (declining to exercise jurisdiction over New York State Executive Law § 296 and NYCHRL claims); Mabry v. Neighborhood Def. Serv., 769 F. Supp. 2d 381, 402 (S.D.N.Y. 2011) (declining to exercise jurisdiction over NYSHRL and NYCHRL claims).

Accordingly, the Court should decline to exercise supplemental jurisdiction over Cruz's remaining NYSHRL and NYCHRL, which are those arising from Post-Return Harassment Allegation that were not put forward in the SDHR proceeding.

G. The ADA and Title VII Do Not Provide For Individual Liability

Plaintiff has sued seven MTA employees in their individual capacities. However, unlike NYSHRL and NYCHRL, the ADA and Title VII do not provide for individual liability. See Cayemittes v. City of N.Y. Dep't of Hous. Pres. & Dev., 641 Fed. Appx. 60, 61-62 (2d Cir. 2016) (“Title VII does not provide for individual liability.” (first citing Raspardo v. Carlone, 770 F.3d 97, 113 (2d Cir. 2014); and then citing Spiegel v. Schulmann, 604 F.3d 72, 79 (2d Cir. 2010) (per curiam))); Gomez v. N.Y.C. Police Dep't, 191 F. Supp. 3d 293, 2016 WL 3212108, at *7 (S.D.N.Y. 2016) (“[T]here is no individual liability under the ADA.” (citing Lane v. Maryhaven Ctr. of Hope, 944 F. Supp. 158, 162 (E.D.N.Y. 1996))). Even if the Court determines that Cruz's ADA and Title VII are not otherwise barred, they should be dismissed with regard to the individual Defendants.

H. There Is No Private Right of Action for the Alleged Criminal Offense

Cruz asserts a claim for “Aggravated harassment” under § 240.30. While not explicitly stated, the Court infers that Cruz means § 240.30 of the New York Penal Law, which covers aggravated harassment in the second degree. N.Y. Penal Law § 240.30. There is no private right of action for violation of these criminal statutes. See, e.g., Johnson v. Allick, 2019 WL 569106, at *5 (E.D.N.Y. Feb. 12, 2019) (“As a general matter ․ crimes are prosecuted by the government, not by private parties.”). Accordingly, this claim should be dismissed.

I. Defendants’ Arguments on the Merits

Because all of Cruz's claims should be dismissed on other grounds, the Court need not reach Defendants’ arguments on the merits of her claims. However, these arguments are briefly addressed below.

Defendants argue that Cruz's religious discrimination claims should be dismissed because her Complaint fails to provide detail concerning her religious beliefs. Def. Mem. at 21. Defendants are correct in this assessment of the pleading; however, Cruz does provide additional details about her religious beliefs in her various administrative filings. See, e.g., Pl. Opp. at 15. Accordingly, the proper remedy for Cruz's insufficient pleading would be granting her leave to amend her Complaint, not dismissal.

Defendants make a similar argument regarding Cruz's disability claims, contending that she has not sufficiently described her disability or that she requested an accommodation from the MTA. Def. Mem. at 21–23. While her Complaint fails to make these necessary allegations, once again there is sufficient information about her disability and her communications with the MTA concerning her disability such that the proper remedy would be an amended pleading.

Finally, Defendants argue that Cruz's claims should be dismissed because Second Circuit case law has unequivocally provided that “granting a reasonable accommodation to an employee seeking to be exempt from mask, testing or vaccination requirements would have posed an undue hardship to the employer.” Def. Mem. at 18–20. Defendants cite D'Cunha v. Northwell Health Sys., 2023 U.S. App. LEXIS 30612 (2d Cir. Nov. 17, 2023), where the Second Circuit upheld the 12(b)(6) dismissal of a religious discrimination claim based on the denial of the request to be exempt from a vaccine mandate as support for their position that Cruz's religious discrimination claim fails to meet the 12(b)(6) bar. Def. Mem. at 18–19; see also Cagle v Weill Cornell Medicine, 680 F. Supp. 3d 428 (S.D.N.Y. 2023) (granting unopposed 12(b)(6) motion in case where healthcare worker who was denied accommodation from vaccine mandate brought Title VII and ADA claims). However, D'Cunha involved only a vaccine mandate, not a mask policy. D'Cunha, 2023 U.S. App. LEXIS 30612 at *5–6. As Defendants do not cite any case where a 12(b)(6) motion was granted based on a denial of accommodation from a masking requirement, Cruz's discrimination claims should not be dismissed on such grounds as a matter of law.

V. CONCLUSION

Cruz brings a variety claims. Ultimately, each of them should be dismissed for one or more reasons. In summary:

• Cruz's New York State Human Rights Law claims arising from the denial of her request for a reasonable accommodation and arising from the alleged harassment that took place once she returned to work that she alleged in the SDHR should be dismissed with prejudice because Cruz elected to bring these claims before the SDHR, which deprives this Court of subject matter jurisdiction.

• Cruz's ADA, Title VII, and New York City Human Rights Law claims arising from the denial of her request for a reasonable accommodation and arising from the alleged harassment that took place once she returned to work that she alleged in the SDHR should be dismissed with prejudice based upon the doctrine of collateral estoppel; she presented these same factual allegations to the SDHR, the SDHR ruled against her, and she did not appeal.

• Cruz's ADA and Title VII claims arising from the alleged harassment that took place once she returned to work that she did not allege in the SDHR, and her subsequent termination after she stopped going to her worksite, should be dismissed without prejudice because Cruz has not exhausted her administrative remedies prior to filing in federal court.

• Cruz's ADA, Title VII, NYSHRL, and NYCHRL claims arising from the harassment allegedly committed by defendant Felice on June 9, 2023 and the termination of her employment are barred by the doctrine of collateral estoppel and should be dismissed with prejudice because these same factual allegations were decided in a binding arbitration.

• The Court should decline to exercise supplemental jurisdiction over the state and local law claims that should not otherwise be dismissed for the reasons described above, i.e., Cruz's NYSHRL and NYCHRL claims arising from the alleged harassment she experienced after returning to work that she did not allege in the SDHR.

• Cruz's ADA and Title VII claims against the individual Defendants should be dismissed with prejudice because there is no individual liability under those statutes.

• Cruz's claim for aggravated harassment under New York Penal Law § 240.30 should be dismissed with prejudice as there is no private right of action under this criminal statute.

The Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to the plaintiff.

PROCEDURE FOR FILING OBJECTIONS

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See Fed. R. Civ. P. 6(a), (b), (d). Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Analisa Torres, United States Courthouse, 500 Pearl St., New York, New York 10007-1312. Any requests for an extension of time for filing objections must be directed to Judge Torres.

FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).

FOOTNOTES

1.   The Court may take judicial notice of matters of public record, such as New York State executive orders. See, e.g., See Elite Union Installations, LLC v. Nat'l Fire Ins. Co., 559 F. Supp. 3d 211, 219 (S.D.N.Y. 2021); Michael Cetta, Inc. v. Admiral Indem. Co., 506 F. Supp. 3d 168, 173 (S.D.N.Y. 2020).

2.   Although Cruz did not attach the complete record of her SDHR proceeding to her complaint, the Court can take judicial notice of the records of a state administrative proceeding without converting the motion to dismiss into a motion for summary judgment. See, e.g., Evans v. New York Botanical Garden, No. 02-CV-591 (RWS), 2002 WL 31002814, at *4 (S.D.N.Y. Sept. 4, 2002).

3.   Although the Complaint states that Cruz returned to work on July 11, 2023, adjacent segments of the Complaint and other documents indicate this is a typographical error.

4.   Cruz did not include a copy of the arbitration opinion in her Complaint. However, she referenced the arbitration in the Complaint and included a copy of her closing statement at the arbitration in her opposition to the present motion. Compl. at 16; Pl. Opp. at 77–78, Dkt. No. 43. Defendants filed the arbitration opinion with their opposition papers. Dkt. No. 34-5. Because the arbitration is referenced by plaintiff in both her complaint and her opposition, its authenticity is not in dispute, and it is a publicly available document, the Court will take judicial notice of the arbitration opinion without converting the motion to dismiss into a motion for summary judgment. See Brown v. New York City Transit Auth., No. 22-CV-02949 (ALC), 2024 WL 1347283, at *5–6 (S.D.N.Y. Mar. 29, 2024).

5.   To the extent the Complaint in this action includes Post-Return Harassment Allegations that were not made in the SDHR Complaint (e.g., allegations concerning events in 2023), federal claims based on those allegations should be dismissed for failure to exhaust administrative remedies, as explained in Section IV.D below.

Hon. Henry J. Ricardo United States Magistrate Judge