govinfo:USCOURTS-nynd-1_25-cv-01067-0

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UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF NEW YORK 
____________________________________________ 
 
PETER C. LOMTEVAS, 
 
 Plaintiff, 
vs. 1:25-CV-1067 
 (MAD/PJE) 
CITY OF SCHENECTADY; MAXINE L. 
BARASCH, Corporation Counsel, City of 
Schenectady; and GARY R. MCCARTHY, 
Mayor, City of Schenectady, 
 
 Defendants. 
____________________________________________ 
 
APPEARANCES: OF COUNSEL: 
 
PETER C. LOMTEVAS, ESQ., P.C. PETER C. LOMTEVAS, ESQ. 
660 State Street, Suite 315 
Hopewell Junction, New York 12305 
Plaintiff, pro se 
 
GIRVIN & FERLAZZO, P.C. PATRICK J. FITZGERALD, III, ESQ. 
20 Corporate Woods Boulevard THOMAS H. FISHER, ESQ. 
Albany, New York 12211 
Attorneys for Defendants 
 
Mae A. D'Agostino, U.S. District Judge: 
 
MEMORANDUM-DECISION AND ORDER 
I. INTRODUCTION 
 On August 7, 2025, attorney Peter C. Lomtevas ("Plaintiff") commenced this action pro se 
against the City of Schenectady, New York (the "City"); Corporation Counsel Maxine Barasch; 
and Mayor Gary McCarthy (collectively, "Defendants"). See Dkt. No. 1. The original complaint 
set out three causes of action: (1) national origin discrimination and retaliation under Title VII of 
the Civil Rights Act of 1964 ("Title VII"); (2) disability discrimination and retaliation under the 

 
 
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Americans with Disabilities Act of 1990 ("ADA"); and (3) defamation in violation of New York 
state law. See id. at ¶¶ 67-107. Plaintiff claimed that Defendants discriminated and retaliated 
against him while he worked for the City, and that Defendant McCarthy defamed him in the 
press. See id. Defendants moved to dismiss the complaint on September 9, 2025. See Dkt. No. 
10. On October 21, 2025, after the response deadline had passed, Plaintiff opposed the motion in 
a three-page affirmation and claimed he was not notified of the motion's filing until he manually 
checked his Public Access to Court Electronic Records account. See Dkt. No. 12. Defendants did 
not file a reply. Because Plaintiff received no automatic notification or correspondence from 
Defendants regarding the motion's filing, he believed Defendants had failed to litigate the action. 
See id. According to Plaintiff, on October 10, 2025, he attempted to submit a letter seeking leave 
to move for default judgment. See id. The Court did not receive that submission until Plaintiff 
filed a copy on November 9, 2025. See Dkt. No. 15. 
On April 23, 2026, after ensuring that Plaintiff could file electronically as an attorney 
admitted in this District, the Court permitted Plaintiff to file a belated response to Defendants' 
motion.
1 See Dkt. No. 16. The Court denied Plaintiff's letter request for leave to move for default 
judgment. See id. On May 8, 2026, Plaintiff opposed Defendants' motion and cross-moved for 
leave to amend his complaint. See Dkt. No. 17. Plaintiff provided a proposed amended 
complaint along with his motion, which alleges new facts regarding the substance of a state-court 
foreclosure action involving the City and asserts two new claims: (1) First Amendment free 
speech violations pursuant to 42 U.S.C. § 1983; and (2) unlawful termination under the New York 
 
1 The Court made this allowance as an exercise of special solicitude, even though attorneys 
representing themselves are not guaranteed the same degree of special solicitude as non-attorney 
pro se plaintiffs. See Chevron Corp. v. Donziger, 990 F.3d 191, 203 (2d Cir. 2021). 

 
 
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State Human Rights Law. See Dkt. No. 17-2. Defendants opposed the cross-motion on May 15, 
2026. See Dkt. No. 18. 
Defendants' motion to dismiss and Plaintiff's cross-motion for leave to amend are now 
before the Court. For the reasons explained below, Defendants' motion is granted, and Plaintiff's 
cross-motion is denied. 
II. BACKGROUND 
 The following facts are derived from Plaintiff's complaint and proposed amended 
complaint. See Dkt. Nos. 1, 17-2. "Plaintiff is a first generation American with Russian ancestry" 
and speaks English as a second language. Dkt. No. 1 at ¶¶ 23-24; Dkt. No. 17-2 at ¶¶ 24-25. He 
began working in the City's Law Department as its Deputy Corporation Counsel on February 20, 
2024. See Dkt. No. 1 at ¶¶ 15, 21, 26; Dkt. No. 17-2 at ¶¶ 16, 22, 27. At that time, Plaintiff 
alleges that he had "more than twenty years of civil practice experience in U.S. state and federal 
courts." Dkt. No. 1 at ¶ 26; Dkt. No. 17-2 at ¶ 27. As Deputy Corporation Counsel, Plaintiff 
"[wrote] pleadings, motions, and appear[ed] in the local courts." Dkt. No. 1 at ¶ 27; Dkt. No. 17-
2 at ¶ 28. He alleges that Defendants never expressed concerns about his work until May 10, 
2024, when they forced him to choose between resignation and termination. See Dkt. No. 1 at ¶¶ 
22, 28; Dkt. No. 17-2 at ¶¶ 23, 29. Plaintiff states that Defendants "constructively dismissed" him 
from employment. Dkt. No. 1 at ¶ 22; Dkt. No. 17-2 at ¶ 23. 
 Plaintiff's claims arise from his work on a foreclosure action involving the City. See Dkt. 
No. 1 at ¶ 29; Dkt. No. 17-2 at ¶ 30. After the opposing party filed a motion, Plaintiff alleges that 
he started drafting a response that was tailored to the issues raised. See Dkt. No. 1 at ¶¶ 30, 33; 
Dkt. No. 17-2 at ¶¶ 31, 35. Plaintiff claims Defendant Barasch revised the draft and expanded it 
considerably, but later allowed Plaintiff to continue working on the version he had started. See 

 
 
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Dkt. No. 1 at ¶¶ 34, 36; Dkt. No. 17-2 at ¶¶ 37, 39. According to Plaintiff, Defendant Barasch 
tried to misrepresent caselaw by manipulating his draft.2 See Dkt. No. 17-2 at ¶¶ 35-37, 40-43. 
On May 9, 2024, when the draft was finished, Defendant Barasch allegedly prevented Plaintiff 
from filing it because he refused to incorporate additions from a colleague in the Law 
Department. See Dkt. No. 1 at ¶ 37; Dkt. No. 17-2 at ¶ 40. Plaintiff alleges that on the following 
day, Defendant Barasch and the colleague "imposed upon [P]laintiff the choice of voluntarily 
resigning or being fired." Dkt. No. 1 at ¶ 39; Dkt. No. 17-2 at ¶ 44. Plaintiff claims that 
Defendants knew about his linguistic background because he publicly spoke Russian with another 
coworker on numerous occasions. See Dkt. No. 1 at ¶ 65; Dkt. No. 17-2 at ¶ 72. He alleges that 
Defendants "brazenly attack[ed] [him] for his writing style" and forced him out of his position 
because he speaks English as a second language. Dkt. No. 1 at ¶¶ 40, 73-74; Dkt. No. 17-2 at ¶¶ 
45, 80-81. 
Plaintiff also states, inter alia, that Defendants discriminatorily prevented him from 
speaking with outside agencies and departments without Defendant Barasch's supervision, 
controlled when he could file court documents, ostracized and shunned him, imposed an 
organizational structure that usurped him of his Deputy Corporation Counsel role, and improperly 
subordinated him to other employees. See Dkt. No. 1 at ¶ 78; Dkt. No. 17-2 at ¶ 85. 
Simultaneously, Plaintiff alleges that Defendant Barasch discriminated against him by making 
herself unavailable as a supervisor. See Dkt. No. 1 at ¶ 78; Dkt. No. 17-2 at ¶ 85. Moreover, he 
claims Defendant Barasch told him that she heard he "was posting anti-government material on 
 
2 Plaintiff's cross-motion and proposed amended complaint provide substantive discussion of the 
foreclosure action involving the City. See Dkt. No. 17-1 at 12-16; Dkt. No. 17-2 at ¶¶ 30-45. The 
merits of the foreclosure action are not before this Court. Thus, while the Court acknowledges 
Plaintiff's new factual allegations, it does not analyze them in detail. 

 
 
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social media." Dkt. No. 1 at ¶ 47; Dkt. No. 17-2 at ¶ 54. Plaintiff, a United States Army veteran, 
see Dkt. No. 1 at ¶ 7; Dkt. No. 17-2 at ¶ 8, reminded Defendant Barasch of his military service 
and stated that he "never posted anything anti-government on any social media[,]" Dkt. No. 1 at ¶ 
47; Dkt. No. 17-2 at ¶ 54. 
 Plaintiff filed a whistleblower action against Defendants in state court on August 20, 2024, 
alleging that they fired him for reporting ethical violations in the Law Department. See Dkt. No. 
1 at ¶¶ 41, 43-46, 49-50, 53; Dkt. No. 17-2 at ¶¶ 46, 48, 50-53, 60; Dkt. No. 18-3. Those ethical 
violations included potential conflicts of interest, "breaches of procedure[,]" and billing errors. 
Dkt. No. 1 at ¶¶ 45-46, 49-50; Dkt. No. 17-2 at ¶¶ 52-53, 56-57. The state trial court dismissed 
the action, and Plaintiff appealed. See Dkt. No. 1 at ¶¶ 54, 58; Dkt. No. 17-2 at ¶¶ 61, 65. The 
Appellate Division, Fourth Department, affirmed the dismissal. See Dkt. No. 17-2 at ¶ 66; Dkt. 
No. 18-3. Although not discussed in Plaintiff's proposed amended complaint, he appealed again 
to the New York Court of Appeals. See Dkt. No. 18-6 (showing, as an exhibit to Defendants' 
reply to the cross-motion, Plaintiff's motion for leave to appeal to the Court of Appeals). News 
outlets reported on the state-court whistleblower case, and Plaintiff alleges that Defendant 
McCarthy defamed him by telling journalists he was a "poor hire" and "bad hire." Dkt. No. 1 at 
¶¶ 55-56; Dkt. No. 17-2 at ¶¶ 62-63. 
 On February 20, 2025, Plaintiff filed a charge with the Equal Employment Opportunity 
Commission ("EEOC"). See Dkt. No. 1 at ¶ 62; Dkt. No. 17-2 at ¶ 69. He claimed Defendants 
discriminated against him on the basis of age, race, and sex. See Dkt. No. 1 at 19; Dkt. No. 17-2 
at 34. On March 24, 2025, while the EEOC investigation was ongoing, counsel for Defendants 
sent the EEOC a letter describing Defendants' position. See Dkt. No. 1 at 25-27; Dkt. No. 17-2 at 
35-37. The letter is attached to Plaintiff's complaint and proposed amended complaint as an 

 
 
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exhibit. See Dkt. No. 1 at 25-27; Dkt. No. 17-2 at 35-37. Defense counsel stated that Plaintiff 
repeatedly "failed to adequately perform his duties as Deputy Corporation Counsel[,]" and in 
April 2024, Plaintiff drafted an affirmation which "was littered with grammatical errors and 
lacked adequate legal support, requiring substantial revisions." Dkt. No. 1 at 26; Dkt. No. 17-2 at 
37. According to Defense counsel's letter, when Defendant Barasch and a non-party colleague 
gave Plaintiff substantive feedback, Plaintiff "disregarded the proposed edits and directly refused 
the instructions of Corporate Counsel Barasch[,]" then resigned. Dkt. No. 1 at 26-27; Dkt. No. 
17-2 at 36-37. 
Contrarily, Plaintiff claims he "was performing his job in a manner that was consistent 
with [Defendants'] legitimate governmental expectations." Dkt. No. 1 at ¶ 77; Dkt. No. 17-2 at ¶ 
84. He also asserts that, based on Defense counsel's characterization of Plaintiff's work as 
"littered with grammatical errors," Defendants viewed him as having "an intellectual or mental 
disability." Dkt. No. 1 at ¶ 91; Dkt. No. 17-2 at ¶ 121. Plaintiff alleges that Defendants could 
have accommodated his purported disability by having a coworker or supervisor correct his 
grammatical errors, but failed to do so. See Dkt. No. 1 at ¶¶ 92-93, 97; Dkt. No. 17-2 at ¶¶ 122-
23, 127. 
Citing insufficient evidence, the EEOC ceased its investigation and issued a right-to-sue 
letter on May 12, 2025. See Dkt. No. 1 at 18-24; Dkt. No. 17-2 at 28-34. Those documents are 
attached to Plaintiff's complaint and amended complaint as exhibits. See Dkt. No. 1 at 18-24; 
Dkt. No. 17-2 at 28-34. Neither the complaint nor the amended complaint mentions any 
subsequent EEOC charge concerning national origin or disability discrimination. 
III. DISCUSSION 
A. Legal Standards 

 
 
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1. Motion to Dismiss 
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the "legal 
sufficiency" of the pleader's claim for relief. Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 
2007) (citation omitted). Although a court's review of a motion to dismiss is generally limited to 
the facts presented in the pleading, courts may still consider documents attached to the pleading 
as an exhibit or incorporated by reference into the pleading. See Mangiafico v. Blumenthal, 471 
F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d 
Cir. 2002)). Courts must accept as true all well-pleaded facts in the pleading and draw all 
reasonable inferences in the pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 
F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption of truth does not extend to legal 
conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). 
To survive a motion to dismiss, a party need only plead "a short and plain statement of the 
claim[,]" see F
ED. R. CIV. P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is 
entitled to relief[,]'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). Under this standard, 
the pleading's "[f]actual allegations must be enough to raise a right to relief above the speculative 
level," id. at 555 (citation omitted), and present claims that are "plausible on [their] face," id. at 
570. 
Although pro se litigants' filings are subject to liberal construction and "'held to less 
stringent standards than formal pleadings drafted by lawyers[,]'" Erickson v. Pardus, 551 U.S. 89, 
94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)), "this allowance does not 
normally extend to a lawyer representing himself," Borowski v. U.S. Customs & Border Prot., 718 
F. Supp. 3d 280, 284 n.2 (W.D.N.Y. 2024) (citing Bank v. Sirlin, 830 Fed. Appx. 690, 690 (2d 
Cir. 2020) (summary order)); see Chevron Corp. v. Donziger, 990 F.3d 191, 203 (2d Cir. 2021) 

 
 
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("[T]his Court does not give special solicitude to pro se litigants who are themselves attorneys"). 
Because Plaintiff is an attorney admitted to practice law in this District, the Court holds his 
pleadings to the same standards as counseled pleadings. 
2. Motion to Amend 
Although a proposed amended complaint would "supersede[] the original complaint, it 
does not necessarily moot a pending motion to dismiss." Crider v. McGrath, No. 9:25-CV-629, 
2026 WL 550006, *5 (N.D.N.Y. Feb. 27, 2026) (citing Pettaway v. Nat'l Recovery Sols., LLC, 
955 F.3d 299, 303 (2d Cir. 2020)). "Rule 15(a)(2) of the Federal Rules of Civil Procedure 
provides that a court 'should freely give leave [to amend] when justice so requires.'" Gorman v. 
Covidien Sales, LLC, No. 13-CV-6486, 2014 WL 7404071, *2 (S.D.N.Y. Dec. 31, 2014) (quoting 
F
ED. R. CIV. P. 15(a)(2)) (other citations omitted). Accordingly, "'[t]he rule in this Circuit has 
been to allow a party to amend its pleadings in the absence of a showing by the nonmovant of 
prejudice or bad faith.'" Id. (quoting Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 
1993)). Leave to amend need not be granted if amendment would be futile, and "[w]hen 
assessing futility, the court employs a standard comparable to that utilized in assessing a motion 
to dismiss under Rule 12(b)(6)." O'Brien v. City of Syracuse, No. 5:22-CV-948, 2024 WL 
4252052, *2 (N.D.N.Y. Sept. 20, 2024) (citing Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 
(2d Cir. 2001)). In other words, "when a cross-motion for leave to file an amended complaint is 
made in response to a motion to dismiss under [Rule] 12(b)(6), leave to amend will be denied as 
futile only if the proposed new claim cannot withstand a 12(b)(6) motion to dismiss for failure to 
state a claim[.]" Milanese, 244 F.3d at 110 (citation omitted). 
"[W]hen faced with an amended complaint, [courts] may either deny a pending motion to 
dismiss as moot or consider the merits of the motion, analyzing the facts as alleged in the 

 
 
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amended pleading." Pettaway, 955 F.3d at 303 (citations omitted). "In deciding which approach 
to take, courts consider the nature of the amendment and whether the defendants had adequate 
opportunity to respond to the proposed amended complaint." Crider, 2026 WL 550006, at *5 
(citing Hamzik v. Off. for People with Developmental Disabilities, 859 F. Supp. 2d 265, 274 
(N.D.N.Y. 2012); Capuano v. N.Y. State Dep't of Corr. & Cmty. Supervision, No. 9:23-CV-1556, 
2025 WL 890489, *2 (N.D.N.Y. Mar. 24, 2025)). "[B]ecause Defendants have responded to 
Plaintiff's cross-motion and proposed amended complaint with substantive legal arguments, . . . 
the Court considers the motion to dismiss and subsequent briefing in light of the proposed 
amended complaint[.]" Id. (citations omitted). 
B. Failure to Exhaust EEOC Remedies for Title VII and ADA Claims 
Defendants argue that Plaintiff's national origin and disability claims under Title VII and 
the ADA must be dismissed because Plaintiff failed to exhaust his administrative remedies. See 
Dkt. No. 10-1 at 8. In response, Plaintiff argues both that "Title VII does not require exhaustion" 
and that his EEOC complaint of race discrimination exhausted his administrative remedies on the 
national origin discrimination claim. Dkt. No. 17-1 at 18. The cross-motion does not address 
exhaustion of administrative remedies for the disability discrimination claim. 
"Generally, in New York, filing a charge with the EEOC or the New York Division of 
Human Rights is an essential requirement to maintain[] an action in federal court under the ADA 
or Title VII." Herzog v. McLane Ne., Inc., 999 F. Supp. 274, 275 (N.D.N.Y. 1998) (citing Butts v. 
N.Y.C. Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993), superseded by statute on 
other grounds as recognized in Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 692-94 (2d Cir. 
1998)). Failure to file an administrative charge normally precludes judicial relief. See id. (citing 
Butts, 990 F.2d at 1401). In some situations, however, if a plaintiff files an EEOC charge and 

 
 
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later brings a lawsuit with claims absent from the charge, those new claims may be permitted "if 
they are 'reasonably related' to the initial charge." Id. (quoting Butts, 990 F.2d at 1401); see 
Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003) (citing Legnani v. Alitalia Linee Aeree 
Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001)). The Second Circuit has recognized three 
circumstances where the "reasonably related" doctrine may apply: "(1) loose pleading; (2) 
retaliation for filing an EEOC charge; and (3) similar subsequent incidents of discrimination." 
Herzog, 999 F. Supp. at 275-76 (citing Butts, 990 F.2d at 1402-03). 
Plaintiff's EEOC charge, see Dkt. No. 1 at ¶ 62; Dkt. No. 17-2 at ¶ 69, claimed 
discrimination and retaliation on the basis of age, race, and sex, but not national origin or 
disability, see Dkt. No. 1 at 19; Dkt. No. 17-2 at 34. He does not claim that Defendants retaliated 
against him for filing the EEOC charge. Moreover, because Plaintiff's employment with the City 
ended in May 2024, nearly nine months before he filed the EEOC charge, see Dkt. No. 1 at ¶ 22; 
Dkt. No. 17-2 at ¶ 23, there is no indication that this lawsuit is based on discriminatory incidents 
occurring after the charge was filed. Thus, unless Plaintiff's national origin and disability claims 
are reasonably related to the claims in the EEOC charge under the loose pleading exception, they 
must be dismissed for failure to exhaust administrative remedies. 
 Under the loose pleading exception, "[a] claim is considered reasonably related if the 
conduct complained of would fall within the scope of the EEOC investigation" arising from the 
charge. Deravin, 335 F.3d at 200-01 (citation and internal quotation marks omitted). To that end, 
courts focus their analysis on the factual allegations of discriminatory conduct in the EEOC 
charge. See id. at 201 (citations omitted). For example, the Second Circuit has acknowledged 
that "even in the absence of an express linkage between race and national origin, the specific facts 
alleged by a plaintiff in his or her EEOC complaint may suggest both forms of discrimination, so 

 
 
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that the agency receives adequate notice to investigate discrimination on both bases." Id. at 202. 
To illustrate, the Second Circuit explained that "allegations by an African-American employee 
that employees of Irish descent are receiving preferential treatment implicitly suggests some form 
of potential racial discrimination in addition to an illegitimate preference premised on national 
origin." Id. However, the Second Circuit has been clear that "[b]ecause '[a]n assertion of racial 
bias is conceptually distinct from a claim of discrimination on the basis of national origin,' raising 
a national origin claim before the EEOC does not automatically suffice to alert the agency to 
investigate incidences of racial discrimination." Id. at 201 (quoting Dixit v. N.Y.C. Dep't of Gen. 
Servs., 972 F. Supp. 730, 734 (S.D.N.Y. 1997)). 
Plaintiff has not substantively responded to Defendants' exhaustion argument with any 
clarification on why the race, age, or sex discrimination allegations in the EEOC charge would 
also have notified the agency of a need to investigate language-based national origin or disability 
claims. He has not pled the contents of his EEOC charge, provided the Court with a copy of the 
charge, or set forth facts concerning the conduct underlying his claims of age, race, and sex 
discrimination. His cross-motion quotes excerpts from the EEOC charge as follows: 
"I am a 65-year-old, white, male, military veteran. I worked for 
Respondent for approximately 3 months from on or about February 
20, 2024, to on or about May 10, 2024. My last position was 
Deputy Corporation Counsel for the City of Schenectady. 
. . . 
I believe that I have been subjected to this hostile, offensive, 
intimidating work environment with an exclusionary DEI mindset, 
and discharged, because of my sex (male), race (white, Caucasian), 
and age (65 years old) in violation of Title VII of the Civil Rights 
Act (Title VII) of 1964 as amended and The Age Discrimination in 
Employment Act (ADEA)." 
 
Dkt. No. 17-1 at 7. The excerpt does not mention or allude to Plaintiff's linguistic abilities or 
Russian ancestry. 

 
 
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Regarding national origin and disability, Plaintiff alleges before this Court that he "is a 
first generation American with Russian ancestry" who speaks Russian as a first language and 
English as a second language. Dkt. No. 1 at ¶¶ 23-24; Dkt. No. 17-2 at ¶¶ 24-25. Without further 
details of the EEOC charge's substance, the Court cannot infer with any degree of specificity 
whether the conduct underlying the age, race, and sex discrimination claims is reasonably related 
to the conduct underlying the national origin and disability claims. Furthermore, Plaintiff bases 
his national origin and disability claims on remarks associated with his English grammar and 
characterizes Defense counsel's letter—which was written after Plaintiff filed his EEOC charge—
as a first-time admission of Defendants' reasons for ending his employment. See Dkt. No. 1 at ¶¶ 
63, 65-66; Dkt. No. 17-2 at ¶¶ 70, 72-73. 
Consequently, the Court cannot conclude that Plaintiff's EEOC charge reasonably notified 
the agency of a need to investigate potential national origin and disability discrimination. Cf. 
Dixit, 972 F. Supp. at 735 (finding that, because the plaintiff's self-identification as "Asian 
Indian" in his EEOC charge could be construed to connote either race or national origin, his 
EEOC charge of national origin discrimination also satisfied the exhaustion requirement for a 
Title VII race discrimination claim). For this reason, the loose pleading exception is unsatisfied, 
and Plaintiff's Title VII and ADA claims are dismissed for failure to exhaust administrative 
remedies. 
C. First Amendment Free Speech Claim 
Plaintiff's proposed amended complaint asserts a new cause of action under § 1983 for 
First Amendment free speech violations. See Dkt. No. 17-2 at ¶¶ 100-14. Plaintiff alleges that 
Defendants violated his constitutional rights by challenging his legal analysis in the foreclosure 
action and firing him. See id. ¶¶ 107-14. Defendants do not specifically address this new claim in 

 
 
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their reply to the cross-motion. Rather, they argue broadly that the Court should dismiss 
Plaintiff's proposed amendments because they are prejudicial and futile. See Dkt. No. 18 at 8. 
The Court may deny leave to amend on futility grounds "if the proposed new claim cannot 
withstand a 12(b)(6) motion to dismiss for failure to state a claim[.]" Milanese, 244 F.3d at 110 
(citation omitted). 
A public employee's First Amendment free speech rights are markedly diminished when 
he speaks pursuant to his official duties. See Garcetti v. Ceballos, 547 U.S. 410, 421 (2006); 
Anemone v. Metro. Transp. Auth., 629 F.3d 97, 114-16 (2d Cir. 2011). In Garcetti, a prosecutor 
informed his supervisors about misrepresentations in an affidavit used to obtain a search warrant. 
See Garcetti, 547 U.S. at 413-14. The prosecutor claimed he experienced retaliation for reporting 
the problems with the affidavit, and eventually sued the district attorney for First and Fourteenth 
Amendment violations. See id. at 415. The Supreme Court held that no constitutional violation 
occurred because "[the prosecutor's] expressions were made pursuant to his duties as a calendar 
deputy." Id. at 421. The Supreme Court emphasized that the prosecutor reported the issues as 
part of the work he was employed to do, and "[t]he fact that his duties sometimes required him to 
speak or write does not mean his supervisors were prohibited from evaluating his performance." 
Id. at 421-22. 
The Supreme Court recognized that "[e]mployers have heightened interests in controlling 
speech made by an employee in his or her professional capacity. Official communications have 
official consequences, creating a need for substantive consistency and clarity. Supervisors must 
ensure that their employees' official communications are accurate, demonstrate sound judgment, 
and promote the employer's mission." Id. at 422-23. Under this framework, Garcetti expressly 
rejects the prospect of a constitutional cause of action for managerial discipline when a public 

 
 
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employee speaks pursuant to his official duties. See id. at 424, 426; Weintraub v. Bd. of Educ. of 
the City Sch. Dist. of N.Y.C., 593 F.3d 196, 201 (2d Cir. 2010) (citing Garcetti, 547 U.S. at 421). 
Allowing Plaintiff's First Amendment claim to survive would contravene Garcetti. The 
proposed amended complaint alleges that Plaintiff spoke pursuant to his official duties as the 
Deputy Corporation Counsel for the City of Schenectady—a public employee —when handling 
the foreclosure action. See Dkt. No. 17-2 at ¶¶ 16, 107-12 (identifying Plaintiff's role with the 
City as a "government job" and discussing his handling of the foreclosure action pursuant to that 
employment). Nowhere does the proposed amended complaint allege or insinuate that Plaintiff's 
speech occurred in his capacity as a private citizen. Garcetti preserves public employers' ability 
to regulate their employees' official speech without running afoul of the First Amendment, see 
Ruotolo v. City of New York, 514 F.3d 184, 189 (2d Cir. 2008) (quoting Garcetti, 547 U.S. at 422-
23); Gotfryd v. City of Newburgh, No. 24-CV-1039, 2025 WL 973040, *1 (2d Cir. Apr. 1, 2025) 
(summary order) (quoting Garcetti, 547 U.S. at 421), which, based on the face of the proposed 
amended complaint, is what occurred here. Thus, the proposed free speech claim is dismissed as 
futile. 
D. Supplemental Jurisdiction Over State Law Claims 
Plaintiff raises two state law claims in his proposed amended complaint: (1) unlawful 
termination under New York Executive Law § 296(7), which is part of the New York Human 
Rights Law; and (2) defamation. See Dkt. No. 17-2 at ¶¶ 92-99, 130-36. Defendants argue that 
the Court should decline to exercise supplemental jurisdiction over the defamation claim, see Dkt. 
No. 10-1 at 12-13, and that the doctrine of collateral estoppel precludes the Court from deciding 
the issue of whether Plaintiff was unlawfully terminated, see Dkt. No. 18 at 4-5. Plaintiff argues 
that supplemental jurisdiction over the defamation claim is proper because it shares the same 

 
 
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underlying facts as the federal claims. See Dkt. No. 17-1 at 22-23. Because Defendants made 
their collateral estoppel argument in reply to the cross-motion, Plaintiff has not responded to it. 
"Federal courts may exercise supplemental jurisdiction over 'claims that are so related to 
claims in the action within such original jurisdiction that they form part of the same case or 
controversy.'" Chompupong v. City of Schenectady, No. 1:17-CV-929, 2021 WL 1758803, *3 
(N.D.N.Y. May 4, 2021) (quoting 28 U.S.C. § 1367(a)). "Disputes form part of the same case or 
controversy . . . when they derive from a common nucleus of operative fact." Id. (citation and 
internal quotation marks omitted). A district court may decline supplemental jurisdiction for 
several statutorily enumerated reasons, including when "the district court has dismissed all claims 
over which it has original jurisdiction[.]" 28 U.S.C. § 1367(c)(3). Courts must consider judicial 
economy, convenience and fairness to the parties, and comity in deciding whether to exercise 
supplemental jurisdiction. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d 
Cir. 2006) (citations omitted). 
Because all federal claims in this action have been dismissed, the Court declines to 
exercise supplemental jurisdiction over the defamation and Human Rights Law claims. See 
Schaefer v. Town of Victor, 457 F.3d 188, 210 (2d Cir. 2006); Lall v. N.Y.C. Hous. Auth., No. 24-
CV-3237, 2025 WL 2962954, *2 (2d Cir. Oct. 21, 2025) (quoting Kolari, 455 F.3d at 122). 
IV. CONCLUSION 
After carefully reviewing the entire record in this matter, the parties' submissions, and the 
applicable law, and for the reasons set forth above, the Court hereby 

 
 
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 ORDERS that Defendants' motion to dismiss (Dkt. No. 10) is GRANTED; and the Court 
further3 
 ORDERS that Plaintiff's cross-motion for leave to file an amended complaint (Dkt. No. 
17) is DENIED; and the Court further 
 ORDERS that Plaintiff's proposed amended complaint (Dkt. No. 17-2) is accepted for 
filing and DISMISSED; and the Court further 
ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close 
this case; and the Court further 
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision 
and Order on the parties in accordance with the Local Rules. 
IT IS SO ORDERED. 
Dated: June 4, 2026 
 Albany, New York 
 
3 Plaintiff's Title VII and ADA claims are dismissed with prejudice for failure to exhaust 
administrative remedies. See Penird v. Better, No. 5:19-CV-1146, 2021 WL 3077853, *9 & n.2 
(N.D.N.Y. July 21, 2021); Nieman v. Syracuse Univ. Off. of Hum. Res., No. 5:12-CV-732, 2013 
WL 2445098, *5-6 (N.D.N.Y. June 5, 2013). The First Amendment free speech claim is 
dismissed with prejudice because it is futile. See Tylicki v. Schwartz, 401 Fed. Appx. 603, 604 
(2d Cir. 2010) (summary order) (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)). 
The state law claims are dismissed without prejudice for lack of jurisdiction. See Chompupong, 
2021 WL 1758803, at *3. 

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