MEMORANDUM DECISION AND ORDER I. INTRODUCTION Plaintiff Rajni Gandhi commenced this pro se action on February 4, 2022, against New York State Unified Court System (“UCS”), Anthony Mancino (“Mancino”), Lauren Lee (“Lee”), and Beth Diebel (“Diebel”) (collectively, “Defendants”), alleging federal and state law claims arising from Plaintiff’s employment and termination at UCS. See Dkt. No. 1. Defendants now move for summary judgment, Dkt. No. 125-10 (“Motion”), and have provided a statement of material facts, Dkt. No. 125-9 (“Statement of Material Facts” or “SMF”). Plaintiff has filed a response, Dkt. No 128 (“Response”), and a response to the Statement of Material Facts, Dkt. No. 128-1 (“Response to Statement of Material Facts” or “RSMF”). Defendants have filed a reply. Dkt. No. 129. For the reasons that follow, Defendants’ motion is granted in part and denied in part. II. BACKGROUND Plaintiff’s factual allegations are detailed in this Court’s 2021 memorandum-decisions. Dkt. No. 50 (“September 2021 MDO”) at 2-5; Dkt. No. 56 (“October 2021 MDO”) at 2-5. This Court dismissed several of Plaintiff’s claims against Diebel, Lee, and Mancino (collectively, the “Individual Defendants”) in the September 2021 MDO and October 2021 MDO. Prior to those decisions, the Honorable Daniel J. Stewart, United States Magistrate Judge, issued a report-recommendation recommending dismissal of all but one claim against UCS, Dkt. No. 14, which this Court adopted, Dkt. No. 15 (“September 2020 MDO”). Presently, eight claims remain, four of which exist under federal law: (1) constitutional procedural due process against the Individual Defendants; (2) stigma-plus against the Individual Defendants; (3) retaliation under the First Amendment against Diebel; and (4) Title VII discrimination against UCS. See Sep. 2020 MDO at 5; Sep. 2021 MDO at 19; Oct. 2021 MDO at 21. Four of Plaintiff’s claims fall under state law: (1) disability discrimination and retaliation under New York State Human Rights Law (“HRL”) against the Individual Defendants; (2) religious discrimination under HRL against Mancino; (3) retaliation under HRL against the Individual Defendants; and (4) defamation/slander against Diebel. See Sep. 2021 MDO at 19; Oct. 2021 MDO at 21. Defendants now move for summary judgment on all claims. See Mot. III. LEGAL STANDARD Rule 56 of the Federal Rules of Civil Procedure instructs courts to grant summary judgment if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the outcome of the suit under the governing law,” and a dispute is “‘genuine’…if the evidence is such that a reasonable jury could return a verdict for the nonmoving part.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, while “[f]actual disputes that are irrelevant or unnecessary” will not preclude summary judgment, “summary judgment will not lie if…the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.; see also Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir. 1991) (“Only when no reasonable trier of fact could find in favor of the nonmoving party should summary judgment be granted.”). The party seeking summary judgment bears the burden of informing a court of the basis for the motion and identifying those portions of the record that the moving party claims will demonstrate the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In attempting to defeat a motion for summary judgment after the moving party has met its initial burden, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmoving party may not rely on mere conclusory allegations, speculation or conjecture, Fischer v. Forrest, 968 F.3d 216, 221 (2d Cir. 2020), and must present more than a mere “scintilla of evidence” supporting its claims, Anderson, 477 U.S. at 252. At the same time, a court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party, Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S 133, 150 (2000), and must “eschew credibility assessments[,]” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004) (quoting Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996)). Thus, a court’s duty in reviewing a motion for summary judgment is “ carefully limited” to finding genuine disputes of fact, “not to deciding them.” Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994). IV. DISCUSSION Defendants move for summary judgment on all of Plaintiff’s claims. See Mot. The Court addresses each of Defendants’ arguments in the order presented in the Motion. A. HRL Claims Defendants first argue that all of Plaintiff’s claims under HRL must be dismissed pursuant to a provision in HRL, N.Y. Exec. Law §297 (“Section 297″), which deprives this Court of subject matter jurisdiction. Mot. at 9. Those claims include Plaintiff’s state law claims of (1) disability discrimination and retaliation against the Individual Defendants; (2) religious discrimination against Mancino; and (3) retaliation against the Individual Defendants. Section 297(9) relevantly states: Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction…unless such person had filed a complaint hereunder or with any local commission on human rights…provided that, where the division has dismissed such complaint on the grounds of administrative convenience, on the grounds of untimeliness, or on the grounds that the election of remedies is annulled, such person shall maintain all rights to bring suit as if no complaint had been filed with the division. In other words, “a litigant who files a claim with the NYSDHR [New York State Division of Human Rights] cannot bring the same claim in federal court.” Waller v. Muchnick, Golieb & Golieb, P.C., 523 F. App’x 55, 56 n.1 (2d Cir. 2013); see also Legg v. Eastman Kodak Co., 248 A.D.2d 936, 937, 670 N.Y.S.2d 291 (4th Dept. 1998) (“Once a complainant elects the administrative forum by filing a complaint with the [New York State Division of Human Rights], a subsequent judicial action on the same complaint is generally barred.”). To determine whether the “same claim” has been filed in both federal court and the New York State Division of Human Rights (“NYSDHR”), courts look to see if a “sufficient identity of issue exists between a complaint before the agency and a complaint before the Court.” Smith-Henze v. Edwin Gould Servs. for Child. & Fams., Officers & Emps., No. 06-CV-3049, 2006 WL 3771092, at *4 (S.D.N.Y. Dec. 21, 2006). Section 297(9) directly applies to Plaintiff’s claims under HRL. Both Plaintiff and Defendants agree that on January 11, 2019, Plaintiff filed a complaint with NYSDHR that charged “UCS with unlawful discriminatory practice relating to employment because of disability, creed, opposed discrimination/retaliation and age.” SMF 131; see also RSMF 131. NYSDHR ultimately dismissed the complaint on the merits. See SMF 134; RSMF 134. The Court notes that Plaintiff’s NYSDHR complaint appears not to have named the Individual Defendants as respondents, but rather named UCS as the respondent. See SMF 131 (stating that Plaintiff’s complaint charged only UCS). This, however, does not save Plaintiff from Section 297(9). Courts have recognized that where a plaintiff did not include specific defendants in an NYSDHR charge, but the claims are nevertheless “based on the same facts and incidents raised in the [NYSDHR] charge” and “the incidents are incidental,” a court must still dismiss the claim under Section 297(9). Benson v. N. Shore-Long Island Jewish Health Sys., 482 F. Supp. 2d 320, 326 (E.D.N.Y. 2007) (dismissing a claim where several defendants “were not named as respondents in the Plaintiff’s administrative charge,” yet finding “the Court still lacks jurisdiction”); see also Lyman v. City of New York, No. 96-CV-2382, 1997 WL 473976, at *4 (S.D.N.Y. Aug. 20, 1997) (“The facts that Mazer was not named in the [NYSDHR] complaint and that the complaint before this Court includes factual allegations not included in the [NYSDHR] complaint do not change this result, because the present claims are based on the same facts as the claims raised in the [NYSDHR] complaint”). Here, the claims alleged by Plaintiff in her NYSDHR complaint are based on the same factual predicate as the instant HRL claims. Compare SMF 131, with Dkt. No. 10 (“Amended Complaint”) at 4-5. The Court further notes that the precise claims in the NYSDHR complaint are not wholly identical to the claims Plaintiff alleges in this action. Compare SMF 131, with Am. Compl. at 6-11. However, this still does not save Plaintiff, as courts have recognized that “[m]erely adding a legal theory for liability on the same underlying claim does not suffice to overcome the bar.” Smith-Henze, 2006 WL 3771092, at *4. Accordingly, the following claims are dismissed under Section 297(9) for lack of subject matter jurisdiction: (1) disability discrimination and retaliation against the Individual Defendants; (2) religious discrimination against Mancino; and (3) retaliation against the Individual Defendants. B. Defamation/Slander Claim Defendants next argue that summary judgment must be granted with respect to Plaintiff’s defamation/slander claim against Diebel. Mot. at 10-15. In its September 2021 MDO, the Court found that the only means by which Plaintiff could sustain a defamation claim was through Diebel’s December 26, 2018, letter to an administrative judge (“Administrative Judge Letter”) recommending that Plaintiff be terminated and describing Plaintiff as “permanently disabled and incapacitated.” Sept. 2021 MDO at 9. The Court noted that under state law, there exists a “common interest privilege” in which “[c]ommunications by supervisors or co-workers made in connection with the evaluation of an employee’s performance, including allegations of employee misconduct and communications regarding the reasons for an employee’s discharge, fall within the privilege.” Id. at 10 (citing D’Allessandro v. City of Albany, No. 04-CV-0788, 2007 WL 9771127, at *21 (N.D.N.Y. July 3, 2007)). The Court found, however, that invoking that privilege was inappropriate at the motion to dismiss stage, and instead “elect[ed] to reserve the question of privilege for the summary judgement stage.” Id. With the common interest privilege now ripe for adjudication, the Court reviews the privilege’s applicability. “The [common interest] privilege creates a rebuttable presumption of good faith that constitutes a complete defense to defamation.” Hussey v. N.Y. State Dep’t of Law/Office of Atty. Gen., 933 F.Supp.2d 399, 414 (E.D.N.Y.2013) (citing Weldy v. Piedmont Airlines, Inc., 985 F.2d 57, 62 (2d Cir.1993)). The common interest privilege “only may be rebutted by evidence of ‘malice on the part of their superiors.’” Ibraheem v. Wackenhut Servs., Inc., 29 F. Supp. 3d 196, 217 (E.D.N.Y. 2014) (citing Shamley v. ITT Corp., 869 F.2d 167, 173 (2d Cir. 1989)). Here, both parties agree that the administrative judge and Diebel acted in a working relationship. See SMF 5 (“As a District Executive, Diebel worked with the Administrative Judge to oversee the administration and implementation of policies for the court system within the Third Judicial District.”); RSMF 5. And courts in this circuit have routinely found that discussions between co-workers regarding an employee’s underperformance are protected from defamation claims under the common interest privilege. See, e.g., Ibraheem, 29 F. Supp. 3d at 217 (dismissing a defamation claim where one supervisor told another supervisor that the plaintiff “was sleeping on the job”); Hussey, 933 F. Supp. 2d at 404, 414 (dismissing a defamation claim under the common interest privilege where defendant supervisors prepared a memorandum alleging that “plaintiff had been stealing time”). Plaintiff’s best case for defeating the privilege is the argument that the Administrative Judge Letter was a product of malice. “A party alleging defamation can overcome the common interest privilege by showing that the defamatory statement was made with either common law or constitutional malice.” Fuji Photo Film U.S.A., Inc. v. McNulty, 669 F. Supp. 2d 405, 412 (S.D.N.Y. 2009). “Common-law malice means spite or ill will, and will defeat the privilege only if it is the one and only cause for the publication,” while “[c]onstitutional or actual malice means publication with a high degree of awareness of the publication’s probable falsity or while the defendant in fact entertained serious doubts as to the truth of the publication.” Id. (cleaned-up). Here, Plaintiff has not provided sufficient evidence to meet either the common-law or constitutional malice standards. With regards to common-law malice, Plaintiff does not anywhere allege that the Administrative Judge Letter was solely the product of “spite or ill will,” id. See generally Am. Compl.; Resp.; RSMF. In her Response to the Statement of Material Facts, for example, Plaintiff argues that the letter was inaccurate, but does not suggest that Diebel filed the letter purely out of spite. RSMF
