Cite as: Dunn v. CUNY, 11 Civ. 8210, NYLJ 1202580558960, at *1 (SDNY, Decided November 14, 2012)

District Judge Paul Engelmayer

Decided: November 14, 2012





Plaintiffs Ayshea Dunn and her sons Jeffrey Muriel and John Doe (a minor) (collectively, "Dunn") bring suit against three employees of the City University of New York ("CUNY") — John Siderakis, Sabrina Ellis, and Kim Ferguson (collectively, "defendants").1 Dunn's claims are for retaliation for protected activity, under both the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. §§201 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y. City Admin. Code §§8-107 et seq.; deprivation of wages and wage increases under New York Labor Law; failure to receive required notifications under the Employment Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§1001 et seq.; and breach of fiduciary duty under ERISA.




Defendants move to dismiss under Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1). For the reasons that follow, defendants' motion is granted.

I. Background2

A. Dunn's Grievances Against City College

In 1993, CUNY hired Dunn as an administrative assistant in the Biology Department at The City College of New York ("City College"), one of CUNY's colleges. SAC ¶¶11-12. Dunn earned $44,000 per year. Id. ¶41.

In July 2008, Dunn learned that Ellis (City College's executive director of human resources) and Siderakis (its associate director of human resources) had decided to dock four days of wages from her salary. Id. ¶21(a). Dunn alleges that Siderakis and Ellis had a payroll policy and practice of docking several days of earned wages to respond to absenteeism. Id. ¶48.

On July 6, 2008, Siderakis filed disciplinary charges against Dunn. Klekman Decl. Ex. G. These charges alleged that Dunn had been absent without leave, failed to report to work on time, and failed to mark her timesheets properly. Id. A hearing on these charges was scheduled for July 23, 2008.




On July 14, 2008, Dunn filed a complaint with the New York State Division of Human Rights ("SDHR"), complaining about the docking of her wages.3 SAC ¶21(a); Klekman Decl. Ex. D. Dunn alleges that, "[d]ays later," enhanced disciplinary charges were filed against her. SAC ¶21(a). CUNY's disciplinary letters reflect that the charges against Dunn were, in fact, modified, on July 23, 2008, the date of the disciplinary hearing; however, as described later, the charges against her were narrowed, not expanded, that day. Klekman Decl. Exs. G-H.

Dunn continued to protest the docking of her wages, including in letters dated August 18, 2008, and September 22, 2008, to Ellis and Siderakis. SAC ¶¶21(b), 21(c). Dunn also alleges that, in July and August 2008, she orally complained about the same subjects to Ellis and Siderakis. Id. ¶26.

On September 12, 2008, a decision from the July disciplinary hearing, held before Ellis, was rendered. SAC ¶28; Klekman Decl. Ex. I. It found all three disciplinary charges against Dunn to be substantiated, and deducted four days of pay from Dunn's paycheck as a penalty. Id. This punishment, imposed by Ellis, represented only a partial grant of City College's requested remedy: Initially, it had requested a three-day suspension without pay on top of the pay deduction. Id. at 2.

On or around September 30, 2008, Ellis informed Dunn that "[Dunn's] balance for annual and sick leave have been exhausted, and therefore the College has removed you from payroll." SAC ¶¶13, 31. Between October 2008 and early 2009, Dunn protested this action. Id. ¶32. Ellis and Siderakis, however, continued to refuse to release the accrued, unused leave credits that Dunn believed she was owed. Id. ¶¶32-33. As a result of these complaints, Dunn




was deemed a persona non grata on the City College campus. Id. ¶35. On April 21, 2009, Dunn, who had not worked at CUNY since her removal from payroll on September 30, 2008, was formally terminated from CUNY. Id. ¶15. This series of events forms the basis of Dunn's retaliation and labor law claims.

Dunn further alleges that, after she was terminated, Ferguson (City College's employee benefits officer) failed to notify her and her sons of their rights to receive continuing health coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), 29 U.S.C. §§1161 et seq., and of their rights and eligibility under the American Recovery and Reinvestment Act of 2009 ("ARRA"), Pub L. No. 111-5 (Feb. 17, 2009). Id. ¶¶63-93. This conduct forms the basis of Dunn's ERISA claims.

B. Prior Proceedings

On November 14, 2011, plaintiffs filed their initial Complaint in this District. Dkt. 1. On December 5, 2011, they filed a First Amended Complaint. Dkt. 5.

On February 15, 2012, the CUNY defendants moved to dismiss the First Amended Complaint. Dkt. 15-17. On March 7, 2012, plaintiffs filed a Second Amended Complaint, Dkt. 21, with the Court's permission, Dkt. 20.

On April 27, 2012, the CUNY defendants filed this motion to dismiss the Second Amended Complaint. Dkt. 25-28.

II. Discussion

Defendants move to dismiss Dunn's two ERISA claims (Counts Four and Five) on the grounds that subject matter jurisdiction is lacking, because ERISA does not apply to government benefit plans. Defendants move to dismiss the remaining three claims for failure to state a claim. These are for retaliation, in violation of the FLSA (Count One); unpaid wages and retaliation, in




violation of New York Labor Law (Count Two); and retaliation, in violation of the New York City Human Rights Law ("NYCHRL") (Count Three). Defendants argue that the FLSA claim is deficient because Dunn did not file a complaint with the Department of Labor and because she does not allege a plausible causal connection between the protected action and the alleged act of retaliation. Defendants argue that the New York Labor Law claims are deficient because CUNY is not subject to that law, and Ellis and Siderakis are not Dunn's employers under the statute. Defendants, finally, argue that the NYCHRL claim is barred due to Dunn's election of other remedies.

A. Applicable Legal Standards

To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead "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). Accordingly, a district court must accept as true all well-pleaded factual allegations in the complaint, and draw all inferences in the plaintiff's favor. Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006); see also Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010) ("We review the district court's grant of a Rule 12(b)(6) motion to dismiss de novo, accepting all factual claims in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor."). A claim will only have "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." Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). A complaint is properly dismissed, where, as a matter of law, "the allegations in a complaint, however true, could not raise a claim of entitlement to relief." Twombly, 550 U.S. at 558.

To survive a motion to dismiss for lack of subject matter jurisdiction, "[a] plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the




evidence that jurisdiction exists." Giammatteo v. Newton, 452 F. App'x 24, 27 (2d Cir. 2011) (citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), "the court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff," Natural Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006), but "jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003); see also Amidax Trading Group v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011); Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008), aff'd on other grounds, 130 S. Ct. 2869 (2010). In addition, a district court may consider evidence outside the pleadings, such as affidavits and exhibits. See Makarova, 201 F.3d at 113.

B. Counts Two, Three, and Five

In their opposition brief, plaintiffs state that they "concede," i.e., consent to the dismissal of, Counts Two, Three, and Five. See Pl. Br. 15. For the reasons that follow, the Court agrees that these claims merit dismissal.

As to Count Two, brought under the New York Labor Law, defendants argue that Ellis and Siderakis were not Dunn's "employers" under that law, which defines an employer as "any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service." N.Y. Labor Law §190(3). The Court agrees; Ellis and Siderakis were merely supervisors, and CUNY was Dunn's "employer" under the statute. CUNY, however, is a government agency; it is exempt from the requirements of Labor Law §191. See N.Y. Labor Law §190(3) ("The term 'employer' shall not include a




governmental agency."). Thus, the claim in Count Two is not properly brought against any of the defendants.

As to Count Three, brought under the NYCHRL, defendants argue that Dunn may not sue in this Court, because her filing a complaint with the SDHR was an election of other remedies. Def. Br. 12. Defendants are correct. See York v. Ass'n of the Bar of City of N.Y., 286 F.3d 122, 127 (2d Cir. 2002); New York City, N.Y., Code §8-502(a) ("[A]ny person claiming to be aggrieved [under the NYCHRL]…shall have a cause of action in any court of competent jurisdiction…, unless such person has filed a complaint with the city commission on human rights or with the state division of human rights….").

Finally, as to Count Five — an ERISA fiduciary duty claim — defendants argue that that claim, brought against Ellis and Siderakis in their official capacities, is in fact a suit against CUNY, which is barred by the 11th Amendment. Def. Br. 8 n.4. That, too is correct: New York State is responsible for judgments against CUNY senior colleges, and, under Second Circuit precedent, such colleges are considered "arms of the state." Clissuras v. City Univ. of N.Y., 359 F.3d 79, 81 (2d Cir. 2004) (per curiam); accord Gengo v. City Univ. of N.Y., No. 07-CV-681 (KAM)(JMA), 2011 WL 1204716 (E.D.N.Y. Mar. 29, 2011) aff'd, No. 11-1707-CV, 2012 WL 2161156 (2d Cir. June 15, 2012).

Accordingly, Counts Two, Three, and Five are dismissed.

C. Count One

Count One, brought under the FLSA, alleges that Siderakis and Ellis retaliated against Dunn for engaging in protected activity under the FLSA.

"FLSA retaliation claims are subject to the three-step burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Thus, a plaintiff




alleging retaliation under FLSA must first establish a prima facie case of retaliation by showing (1) participation in protected activity known to the defendant, like the filing of a FLSA lawsuit; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action." Mullins v. City of New York, 626 F.3d 47, 53 (2d Cir. 2010) (citation omitted).

In moving to dismiss, defendants argue that (1) only the filing of a complaint with the Department of Labor (of which there was none in this case) is a protected activity under FLSA, and (2) in any event, there is no causal connection between any complaint Dunn made and any adverse action against her taken by Siderakis and Ellis. Def. Br. 18-20. In response, Dunn argues that (1) either her filing with the State Division of Human Rights ("SDHR") on July 14, 2008, or her various oral complaints to her CUNY supervisors (which she claims are complaints to a governmental agency for this purpose) constituted protected activity, and (2) the two-and-one-half-month period between her filing with the SDHR (July 14, 2008) and her removal from the payroll (September 30, 2008), which appears to be the principal adverse action she protests, were sufficiently close in time to support a finding of a causal connection. Pl. Br. 6-10.

It is clear that in the Second Circuit, Dunn's oral complaints to her supervisors do not suffice as a protected activity under the FLSA. See Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir. 1993); Greathouse v. JHS Security, Inc., No. 11 Civ. 7845 (PAE)(GWG), 2012 WL 5185591, at *5 (S.D.N.Y. Oct. 19, 2012) ("[C]ourts in this circuit have consistently invoked Lambert to dismiss FLSA retaliation complaints under similar circumstances [of an informal complaint made to a supervisor]."); Duarte v. Tri-State Physical Med. & Rehab., P.C., No. 11 Civ. 3765 (NRB), 2012 WL 2847741, at *3 (S.D.N.Y. July 11, 2012) ("[T]he holding of Lambert vis-à-vis intra-company complaints remains binding precedent on this Court."). There




is, further, authority to the effect that a filing of a complaint with the SDHR is not a protected activity under the FLSA. See, e.g., Graves v. Deutsche Bank Sec. Inc., No. 07 Civ. 5471 (BSJ), 2010 WL 997178, at *4 (S.D.N.Y. Mar. 18, 2010) ("[T]he FLSA bars discrimination only when the retaliation is in response to a formal complaint lodged with the Department of Labor.").

The Court, however, need not reach that question, because, even assuming arguendo that the complaint with the SDHR was protected activity, Dunn has not pled facts sufficient to support a finding of a causal connection between that complaint and any of the alleged adverse employment actions that are fairly pled or are encompassed within the materials cognizable on Dunn's complaint. These are (1) Dunn's removal from the payroll on September 30, 2008; (2) her ensuing formal termination on April 21, 2009; (3) the alleged enhancement of disciplinary charges against Dunn on July 23, 2008; and (4) the ruling against her on September 12, 2008, arising from the disciplinary hearing.

The Court first considers Dunn's claim that her removal from the payroll was an adverse employment action taken in retaliation for her SDHR complaint. "[A] plaintiff can indirectly establish a causal connection to support a discrimination or retaliation claim by showing that the protected activity was closely followed in time by the adverse employment action." Gorman-Bakos v. Cornell Coop. Extension of Schenectady Cnty., 252 F.3d 545, 554 (2d Cir. 2001) (citation omitted). Here, Dunn filed her complaint with the SDHR on July 14, 2008. SAC ¶21(a); Klekman Decl. Ex. D. But Dunn's claim of a causal connection between her SDHR complaint and her removal from her payroll on September 30, 2008, is too tenuous to survive a motion to dismiss.

First, the amount of time in between her SDHR complaint and her removal from the payroll is too great. The Second Circuit "has not drawn a bright line defining, for the purposes




of a prima facie case, the outer limits beyond which a temporal relationship is too attenuated to establish causation." Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010). It is up to a court to "exercise its judgment about the permissible inferences that can be drawn from temporal proximity in the context of particular cases." Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009). However, within this Circuit, a lapse of more than two months between the protected activity and the adverse employment action generally suffices to sever any inferred causal relationship. See Thompson v. Morris Hts. Health Ctr., No. 09 Civ. 7239 (PAE), 2012 WL 1145964, at *10 (S.D.N.Y. Apr. 6, 2012) (collecting cases); Frisenda v. Inc. Vill. of Malverne, 775 F. Supp. 2d 486, 512-13 (E.D.N.Y. 2011) (same).

Here, other than temporal proximity, Dunn offers no basis on which to infer retaliatory intent, so any inference must be made purely on the basis of the amount of time that had elapsed. And "[t]he cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be 'very close.'" Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (citation omitted).

Moreover, significantly, on the materials cognizable on a motion to dismiss, it is clear that the disciplinary charges that led to her removal from the payroll had been brought against Dunn before she filed her SDHR complaint. In her Second Amended Complaint, Dunn did not disclose this fact, but the SDHR complaint does: It reflects that such charges had been brought against her less than six days before she filed that complaint. The SDHR complaint states: "On July 8, 2008, [Dunn] received a letter of a Step 1 [disciplinary] hearing, in which one of the charges is lateness." Klekman Decl. Ex. D, at 2. This fact is relevant to the plausibility of Dunn's claim of causation. Simply put, the fact that charges had been brought against Dunn




before she filed a complaint with the SDHR reinforces the implausibility of her claim that the later adverse actions taken against her were caused by that complaint.

For these same reasons, any claim by Dunn of a causal connection between her SDHR complaint and her formal termination, on April 21, 2009, is also legally infirm. That termination occurred more than nine months after her SDHR complaint.

As an alternative basis for her claim of retaliation, Dunn alleges that enhanced disciplinary charges were filed against her on July 23, 2008 — nine days after the SDHR complaint was filed. SAC ¶¶21(a), 23-24. Defendants dispute that the charges were, in fact, enhanced. Def. Br. 19. In comparing the two letters, the Court notes that they are largely the same. The only differences are that the July 23 letter, issued the day of the hearing, dropped several of the charges alleged in the July 8 letter. Compare Klekman Decl. Ex. G, with Klekman Decl. Ex. H (decreasing charge of lateness from 10 to seven days, and decreasing charges of failure to mark herself absent on timesheet from six to five days). In addition, the second letter does not schedule a new hearing, but simply narrows the basis for the already scheduled disciplinary hearing. Id. Thus, Dunn's bare claim, unsupported by the cognizable materials, that there were "enhanced disciplinary charges" brought against her on July 23, 2008, after she filed her SDHR complaint, is insufficient to support her claim of retaliation.

Finally, the Court considers Dunn's claim that the adverse outcome, on September 12, 2008, of the July 23 disciplinary hearing, see SAC ¶28; Klekman Decl. Ex. I, was causally connected to her complaint to SDHR. Here, too, Dunn's claim of causation is too tenuous to survive. First, the charges that were adjudicated at the hearing had already been filed before Dunn filed her SDHR complaint. On the day of the hearing itself, the charges were reduced, and Ellis imposed less than the requested punishment. As to an inference of causation, two months




(less two days) had passed between Dunn's SDHR complaint and the hearing outcome, and Dunn does not make any additional arguments in favor of causation. In the absence of any other basis for finding causation, the Court cannot hold that this temporal proximity was "very close." Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (citation omitted).

Under such circumstances, Dunn has failed to make out a prima facie case of retaliation, and Count One must, therefore, be dismissed.4

III. Count Four

Count Four is against Ferguson for failure to give COBRA and ARRA notice as required by ERISA. SAC ¶¶63-93.

Defendants argue that the Court lacks subject matter jurisdiction over the ERISA claim, because ERISA "does not apply to any employee benefit plan if…such plan is a governmental plan." Def. Br. 7 (quoting 29 U.S.C. §1003(b)(1)). This includes plans administered by "any State or political subdivision thereof, or by any agency or instrumentality of [a state]." 29 U.S.C. §1002(32). Because CUNY is an "arm of the state," Clissuras, 359 F.3d at 81, defendants are correct that ERISA does not apply to it. Accord Gengo, 2011 WL 1204716, at *6.

Dunn does not dispute this in her brief in opposition. In fact, she concedes that Count Four, as pled, is deficient. Instead, she now acknowledges that "the PHSA [Public Health Security Act, 42 U.S.C. §300bb-7] and not ERISA is the statutory scheme[] by which Plaintiffs




can seek redress of alleged violations of COBRA Notice and ARRA Notice requirements." Pl. Br. 15. Accordingly, Dunn now appears to seek leave under Fed. R. Civ. P. 15(a) to replead with a claim under the PHSA, which does apply to CUNY's plan.5 If Dunn is not allowed to replead and relate the amended complaint back to her original complaint, this claim will be barred, as the statute of limitations of three years will have run.

Under Rule 15(a), a party may replead once as a matter of course, Fed. R. Civ. P. 15(a)(1)(A), and thereafter "only with the opposing party's written consent or the court's leave," Fed. R. Civ. P. 15(a)(2). "The court should freely give leave when justice so requires." Id. In deciding whether to grant leave, "[a] district court has discretion to deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200-01 (2d Cir. 2007). In addition, "a motion to amend should be denied if there is an 'apparent or declared reason — such as undue delay, bad faith or dilatory motive…, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of the amendment, [or] futility of amendment.'" Dluhos v. Floating and Abandoned Vessel, known as New York, 162 F.3d 63, 69 (2d Cir. 1998) (emphasis added) (alteration in original) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

Defendants oppose Dunn's request on two bases: (1) that she failed to cure the deficiency in Count Four in her first two amended complaints, and (2) that she names the wrong parties as defendants in her proposed amended claim.




The Second Amended Complaint is the third time that Dunn has pled this same claim under ERISA. See Compl. ¶¶90-136; FAC ¶¶94-129; SAC ¶¶63-93. Defendants gave Dunn ample notice in their first motion to dismiss that the ERISA claim was improper. Dkt. 16, at 10 ("Plaintiffs' ERISA claims are also barred because CUNY is a state employer and statutorily cannot be held liable under ERISA."). Dunn was permitted to replead in response to that motion. However, Dunn failed to remedy her claim in her Second Amended Complaint; it does not reflect any attempt to address the deficiency noted by defendants in their initial motion to dismiss. That Dunn failed to adequately replead her COBRA and ARRA claims despite notice of their deficiencies and two opportunities to do so is sufficient grounds for denying a request to replead. See, e.g., Foman, 371 U.S. at 182 (listing "repeated failure to cure deficiencies by amendments previously allowed" as sufficient reason for denying leave to amend); Denny v. Barber, 576 F.2d 465, 471 (2d Cir. 1978) (denying motion for second amended complaint where district court judge had put plaintiff on notice of what would be required in amended complaint and plaintiff had failed to comply); In re Eaton Vance Mut. Funds Fee Litig., 380 F. Supp. 2d 222, 242 (S.D.N.Y. 2005) (denying motion to replead where plaintiffs had had two opportunities to cure the defects in their complaints and notice of those defects). "Plaintiff clearly has no right to a second amendment, and this is not a case where 'justice so requires.'" Denny, 576 F.2d at 471 (citation omitted). Dunn's motion to replead is, therefore, denied, and Count Four is dismissed.6





For the reasons stated, plaintiffs' Second Amended Complaint is dismissed. The Clerk of Court is directed to terminate the motion pending at docket number 25, and to close this case.


1. An additional defendant, Cynthia Chin-Marshall (plan administrator of the AFSCME District Council 37 Health and Security Plan), is no longer a party to this case. On April 30, 2012, the Court entered judgment in favor of plaintiffs on Count Six, pursuant to a stipulation between plaintiffs and Chin-Marshall. Dkt. 29.

CUNY itself was also formerly a defendant in this action, but was dropped as a party in the Second Amended Complaint. Dkt. 21.

2. For the purpose of resolving the motion to dismiss, the Court assumes all facts pled in the plaintiff's Second Amended Complaint ("SAC") to be true. The Court also relies on discrete materials contained in the Declaration of Michael R. Klekman in Support of CUNY Individual Defendants' Motion to Dismiss Second Amended Complaint ("Klekman Decl."), Dkt. 26, and the Declaration of Leslie E. Williams in Support of CUNY Individual Defendants' Motion to Dismiss Second Amended Complaint ("Williams Decl."), Dkt. 27. It is proper to consider these materials, which consist of Dunn's filings with the State Division of Human Rights and CUNY disciplinary letters with respect to her, because they are incorporated by reference in, and integral to, Dunn's claims. "[W]hen a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint, the court may nevertheless take the document into consideration in deciding the defendant's motion to dismiss, without converting the proceeding to one for summary judgment." Holowecki v. Fed. Express Corp., 440 F.3d 558, 565-66 (2d Cir. 2006) (alterations in original) (quoting Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995)).

3. Dunn alleges that she suffers from hydrocephalus — literally, "water on the brain" — which is a recognized disability under the NYCHRL. SAC ¶47. Her complaint to the SDHR alleged that City College had failed to accommodate her disability. Id. ¶21(a).

4. In her brief in opposition to the motion to dismiss, Dunn claims, for the first time, that retaliatory action was taken against her in December 2011 in response to her filing of this lawsuit. Pl. Br. 10. This claim, however, does not appear anywhere in her Second Amended Complaint, and Dunn did not seek leave to amend that complaint to add this new theory. The only adverse action in December 2011 that Dunn alleges in her complaint is that Siderakis and Ellis "refused to release a lump sum retroactive wage increase that Dunn was entitled to receive in 2008, and informed Dunn's union to refrain from intervening on her behalf." SAC ¶34. But even as to that point, Dunn alleges that this refusal began in "October/November 2008," id., well over two months after the filing of her SDHR complaint.

5. The Court notes that Dunn has made no formal motion to replead and submitted no proposed pleading. Because her brief in opposition clearly states a desire to replead, the Court construes that as a motion and proposed amendment.

6. Defendants also point out that Dunn's proposed amendment is defective in the parties it seeks to include. Def. Reply Br. 9. Dunn seeks to sue the State of New York, CUNY/City College, New York City, and the Department of Civil Service. Pl. Br. 15. Defendants assert that, instead, the New York City Office of Labor Relations is the appropriate party to sue as plan administrator. Because the Court is denying Dunn's motion, there is no need to consider whether substitution under Fed. R. Civ. P. 21 is appropriate.