Brown v. City University of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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KIM M. BROWN,

Plaintiff,

MEMORANDUM & ORDER

- against - 21-CV-854 (PKC) (MMH)

CITY UNIVERSITY OF NEW YORK,

Defendant.

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PAMELA K. CHEN, United States District Judge:

Plaintiff Kim M. Brown, a former tenure-track professor at Medgar Evers College (the

“College”), one of the constituent senior colleges of the City University of New York (“CUNY”),

asserts claims against CUNY1 for discrimination against her on the basis of race, gender, and

national origin; retaliation against her for reporting such discrimination; and subjecting her to a

hostile work environment, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”),

42 U.S.C. §§ 2000e et seq.; New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law

§§ 290 et seq.; and New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code §§8-

101 et seq. (See generally Amended Complaint (“Am. Compl.”), Dkt. 13.) Currently pending

before the Court is Defendant’s motion to dismiss all of Plaintiff’s claims pursuant to Rule 12(b)(6)

of the Federal Rules of Civil Procedure. (Defendant’s Motion to Dismiss for Failure to State a

Claim, Dkt. 22.)

1 CUNY is the entity with the capacity to sue or be sued, and it is the proper institutional

defendant. The College is a senior college of CUNY with no separate legal existence. See N.Y.

Education Law ¶¶ 6202(5), 6203. Although Plaintiff named the College as a defendant in her

Amended Complaint, she subsequently informed the Court that she would “withdraw the claim[s]

against Medgar Evers College,” so the only remaining Defendant is CUNY. (See Dkt. 16.)

For the reasons discussed below, Defendant’s motion to dismiss is granted in part and

denied in part. With respect to the Title VII claims, the Court grants Defendant’s motion to dismiss

Plaintiff’s hostile work environment claim and the discrimination claim on the basis of national

origin, but denies the motion as to Plaintiff’s discrimination claims on the bases of race and gender,

and the retaliation claims. To the extent that Plaintiff still asserts NYCHRL or NYSHRL claims

against CUNY, those claims are dismissed based on state sovereign immunity.

BACKGROUND

I. Factual Background

A. Initial Allegations of Discrimination and Settlement

Plaintiff is a Black woman who first started working at CUNY in 1998 as an adjunct college

professor. (Am. Compl., Dkt. 13, ¶¶ 6, 9–10.) Starting in 2003, Plaintiff took on the role of the

Director of Instructional Technology Services and began working directly for the College. (Id. ¶¶

6, 10.) In 2008, Plaintiff was appointed as a full-time assistant professor for the College. (Id. ¶

11.)

Plaintiff alleges that starting in 2007, various members of CUNY’s faculty discriminated

against her on account of her gender, race, and national origin. (Id. ¶¶ 17–20, 36–38.) Plaintiff

also claims that between 2013 and 2014 she was retaliated against after complaining about the

discrimination she experienced and for reporting complaints that female students were subject to

sexual harassment by a tenured faculty member. (Id. ¶¶ 21–35.) Plaintiff claims that she was

subjected to discrimination and retaliation in the form of faculty members not approving

paperwork needed for her to be “compensated for the extra work” she took on, assigning her to

teach on Sundays (which made it difficult for her to attend religious services), “alter[ing] the

formal tenure process” to make it more difficult for her to receive tenure, and “levying inaccuracies

against Plaintiff to lower her standing [in front of] other faculty members.” (Id. ¶¶ 21, 26, 28, 31,

35.)

In November 2014, Plaintiff was up for tenure. (Id. ¶ 30.) Plaintiff alleges that one of the

professors who interfered with her tenure application told her in a conversation that Plaintiff

recorded that her credentials “did not matter,” since the College’s “[P]resident (Crew) was going

to side with him,” in opposing her tenure application, “and CUNY automatically sides with the

president.” (Id. ¶ 32.) Ultimately, Plaintiff did not receive tenure, and in 2015, she was discharged

from her position. (See U.S. Equal Employment Opportunity Commission (EEOC), Notice of

Right to Sue, dated Nov. 16, 2020, Compl., Dkt. 1, Ex. A.)2

Sometime on or around March 21, 2016, Plaintiff initiated arbitration proceedings

regarding her initial denial of tenure in 2014. (See Declaration of Clement J. Colucci, dated June

25, 2021, Dkt. 23-1, Ex. A3, at 1.) On or about January 18, 2017, Plaintiff signed a settlement

agreement (“Settlement”) with CUNY releasing all previous claims against it. (Am. Compl., Dkt.

2 Plaintiff attached as an exhibit to her original complaint the EEOC Notice of Right to Sue

letter that she received on November 17, 2020. However, Plaintiff did not resubmit this letter

when filing her Amended Complaint. An amended pleading will “ordinarily supersede[] the

original and renders it of no legal effect.” In re Crysen/Montenay Energy Co., 226 F.3d 160, 162

(2d Cir. 2000). Therefore, “exhibits attached to the Complaint (but not attached to the Amended

Complaint) are not available for consideration by the Court.” See Atlas Partners, LLC v.

STMicroelectronics, Intern. N.V., No. 14-CV-7134 (VM), 2015 WL 4940126, at *7 n.3 (S.D.N.Y.

Aug. 10, 2015). For the purposes of adjudicating this motion to dismiss, however, this Court can

take judicial notice of the EEOC determination as a public record. See Frederick v. JetBlue

Airways Corp., 14-CV-7238 (DLI) (RER), 2016 WL 1306535, at *5 (E.D.N.Y. Mar. 31, 2016)

(collecting cases).

3 Exhibit A to Colucci’s declaration is the Settlement Agreement between the parties.

Although submitted by Defendants, the Court references and relies on it as a document

incorporated by reference in Plaintiff’s Amended Complaint. See Chambers v. Time Warner, Inc.,

282 F.3d 147, 152–53 (2d Cir. 2002) (explaining that for purposes of a motion to dismiss, the

operative complaint “is deemed to include any written instrument attached to it as an exhibit or

any statements or documents incorporated in it by reference”) (citations and quotations omitted).

13, ¶ 39.) In exchange, Plaintiff was granted a two-year extension on her tenure-track period,

running from January 2017 to the end of 2018. (Settlement, Dkt. 23-1, Ex. A, at 6.) The Settlement

also provided that Plaintiff would be considered for tenure if she obtained her Doctorate in

Education (Ed.D) degree and published two scholarly articles in the next two years. (See Am.

Compl., Dkt. 13, ¶ 39; see also Settlement, Dkt. 23-1, Ex. A, at 1–2, 6.)

B. Allegations of Discrimination and Retaliation after the Settlement

Plaintiff claims that “despite the settlement agreement, Defendant[] continued with the

discriminatory and retaliatory treatment towards Plaintiff” by “block[ing] her from obtaining the

additional credentials” and “not honor[ing] the back pay owed” to Plaintiff. (Id. ¶ 40.) Plaintiff

alleges that Defendant accomplished this by “overloading her schedule and work assignments[,]”

so she would be unable to finish the courses needed for her Ed.D degree. (Id. ¶ 41.)

Plaintiff alleges that she complained on “a continuous basis” in 2017 and 2018 to the

College Provost and the Dean about the fact that her teaching schedule interfered with her required

coursework for her doctoral program, and that CUNY was engaged in discriminatory and

retaliatory conduct by giving her a teaching schedule with these conflicts. (Id. ¶¶ 56, 85.)

Specifically, Plaintiff alleges the following:

• On or about January 26, 2017, Plaintiff received a teaching schedule that conflicted with the

course required for her completion of her doctoral degree. (Id. ¶ 42.) That same day Plaintiff

complained to Tanya Isaacs, CUNY’s Labor Designee, that her schedule was “full of conflicts”

and “very complicated as opposed to other male counterparts who were not African

American,” namely, Leonid Knizhik, David Ahn, and Gennady Lomako. (Id. ¶¶ 43–44.)

Plaintiff lodged several more complaints to Isaacs between January 26, 2017 and February 2,

2017, but Plaintiff’s schedule for that semester remained the same. (Id. ¶ 43.)

• In August 2017, Plaintiff received another schedule (presumably for the Fall 2017 semester)

that contained a conflict with her required doctoral coursework. (Id. ¶ 52.) She “promptly

reported the conflict” to her department chairperson, Randy Robotham, but the schedule was

left unchanged, and she was unable to attend the doctoral colloquium that semester. (Id. ¶¶

53–54.)

• In January 2018, Plaintiff “again complained about discrimination and retaliation” after she

was scheduled to teach class each Tuesday and Thursday for the Spring 2018 semester, which

again created conflicts with Plaintiff’s doctoral program schedule. (Id. ¶ 58.)4

• In May 2018, Plaintiff complained in writing about discrimination and retaliation she allegedly

experienced—including how her teaching schedules continued to interfere with her ability to

complete the requirement for her doctoral program—to the College Provost and the College

President. (Id. ¶ 60.)5

• In September 2018, Plaintiff “met with the Provost” and during that meeting “complained in

person about the discrimination and retaliation she was suffering specifically about [her]

scheduling conflicts.” (Id. ¶ 65.)

Plaintiff also alleges that she complained about other ways in which she experienced

discriminatory treatment relative to non-Black, male colleagues. (Am. Compl., Dkt. 13, at ¶ 57.)

According to Plaintiff, a supervisor redirected Plaintiff’s $1,500 share of a monetary award for

winning a competition that she had worked on to Professors Lomako and Ahn. (Id.)6

In addition, Plaintiff alleges that she was “given the responsibilities of helping faculty

members author publications and write grants between 9:00 am and 9:00 pm on and off-campus,”

and that she was “given a sporadic schedule” which resulted in her being unable to attend a doctoral

colloquium. (Id. ¶¶ 48–54.) Plaintiff was also asked to undertake several “overtime” assignments

that were not assigned to male, non-African-American colleagues. (Id. ¶ 80.) These work

assignments included, inter alia, “Creating a Faculty Training Institute (2013)” because a

4 The Amended Complaint does not specify when or to whom she lodged these complaints

about the Spring 2018 schedule. (See Am. Compl., Dkt. 13, ¶ 58.)

5 Plaintiff alleges she also complained to “Dean Joan Rolle” but does not include any details

on when this complaint was made and whether Plaintiff specifically mentioned the scheduling

issues. (See Am. Compl., Dkt. 13, ¶ 60.)

6 The Amended Complaint alleges that the share was “$1,5000.” (See Am. Compl., Dkt.

13, at ¶ 57.) Although the Court assumes for the purposes of this motion that the amount was

$1,500, and not $15,000, the difference is immaterial for the outcome of this motion.

supervisor “lacked the skills” to do so, and “Working as the Deputy Chairperson [of the Computer

Information Systems (‘C.I.S.’)] Department.” (Id. ¶ 80.) Plaintiff claims that she is owed over

$50,000 in uncompensated labor. (Id. ¶ 82.) Plaintiff lodged at least one complaint about these

overtime assignments, raising the issue during her September 2018 meeting with the Provost of

the College. (Id. ¶ 65.)

Per the terms of the Settlement, Plaintiff was up for tenure again at the end of 2018.

Faculty candidates at CUNY are evaluated for tenure in nine different areas, and Plaintiff alleges

that she “fulfilled each . . . of the nine [areas] . . . at the outstanding level,” which is the highest

possible evaluation mark. (Id. ¶ 74.)7 The College’s Personnel & Budget Committee

recommended Plaintiff for tenure, and the Chairman of her department “strongly” recommended

her for tenure. (Id. ¶¶ 71–3, 88.) Notwithstanding these positive recommendations, CUNY denied

Plaintiff tenure for the second time on or around November 19, 2018. (See id. ¶ 95.) On January

26, 2019, CUNY terminated Plaintiff’s employment. (See id.)

7 Plaintiff states that she “reached the outstanding level” in each of the nine areas in which

tenure candidates are evaluated. (Am. Compl., Dkt. 13, at ¶¶ 74–76.) But the Court acknowledges

that the way these allegations are phrased is vague, such that it is unclear whether Plaintiff is

claiming that she actually received an “outstanding” mark from the committee reviewing her

tenure application in each of the nine areas, or whether Plaintiff in her opinion deserved an

“outstanding” mark. In light of the Court’s obligation at this stage to “accept as true the factual

allegations of the complaint, and construe all reasonable inferences that can be drawn from the

complaint in the light most favorable to the plaintiff,” Arar v. Ashcroft, 585 F.3d 559, 567 (2d Cir.

2009), the Court interprets this allegation to mean that Plaintiff actually received “outstanding

level” marks from her colleagues.

II. Procedural Background

Plaintiff filed a charge with the EEOC in November 2018. The EEOC issued a Notice of

Right To Sue, dated November 17, 2020, which Plaintiff received on November 20, 2020. (Am.

Compl., Dkt 13, ¶ 4.)8

Plaintiff filed this lawsuit on February 17, 2021, less than 300 days after receiving the

EEOC Right to Sue Letter, asserting Title VII, NYCHRL, and NYSHRL claims against Defendant

CUNY. 9 (See Complaint, Dkt. 1.) The Complaint sought relief in the form of back pay for lost

wages; compensatory damages for emotional pain, suffering, and damage to her reputation; an

order for Defendant to provide training to its officers, managers, and employees regarding

discriminatory workplace harassment and retaliation; and Plaintiff’s retroactive reinstatement as a

tenured professor. (See Compl., Dkt. 1, at ¶¶ 18–19.)

On March 31, 2021, Defendant filed a letter requesting a pre-motion conference for a

motion to dismiss, arguing, inter alia, that any of Plaintiff’s claims arising before January 2017

were barred by the Settlement. (See Dkt. 10.) Plaintiff thereafter filed an amended complaint

bringing the same cause of actions against CUNY and the College, while including additional

factual allegations related to the Settlement signed between the parties in 2017. (See Am. Compl.,

Dkt. 13.)

8 Plaintiff also alleges that she “submitted a Notice of Claim to the New York State

Attorney General . . . on December 28, 2018, and the claim was not adjusted.” (Am. Compl., Dkt.

13, ¶5.) However, “there is no exhaustion requirement [for administrative remedies] under the

NYSHRL and NYCHRL,” as there is for Title VII. Cherry v. N.Y.C. Hous. Auth., 564 F. Supp.

3d 140, 164 n.12 (E.D.N.Y. 2021).

9 The original Complaint also named as defendants Rudolph Crew, the President of Medgar

Evers College during some of the operative events, and two of Plaintiff’s supervisors, all in their

individual capacities and as an aider and abettor under the NYSHRL and NYCHRL claims. (See

Compl., Dkt. 1, ¶¶ 9–11.) In her Amended Complaint, Plaintiff dropped all three individual

defendants from this action. (See generally Am. Compl., Dkt. 13.)

Defendant filed another pre-motion conference letter on May 18, 2021. (Dkt. 14.) In

response, Plaintiff submitted a letter to the Court on May 25, 2021, noting that “Plaintiff is not

asserting any claims before signing the [Settlement]” and asking the Court to consider “the relevant

history in connection with Plaintiff’s discrimination and retaliation claims.” (See Dkt. 16.) In the

same letter, Plaintiff informed the Court that she was dropping her NYCHRL claims. (See id.)

On June 25, 2021, Defendant moved to dismiss the Amended Complaint pursuant to Rule

12(b)(6) for failure to state a claim. (See generally Memorandum of Law in Support of

Defendant’s Motion to Dismiss the Amended Complaint (“Def.’s Mem.”), Dkt. 24.) On August

16, 2021, Plaintiff served her memorandum in opposition to Defendant’s motion to dismiss. (See

Plaintiff’s Opposition (“Pl.’s Opp.”), Dkt. 26.) In that opposition, Plaintiff explained that she “is

withdrawing her claim[s] under the New York State Human Rights Law.” (See id., Dkt. 26, at 1

n.1.) On September 13, 2021, Defendant filed its reply memorandum of law in further support of

Defendant’s motion to dismiss the amended complaint. (See Defendant’s Reply (“Def.’s Rep.”),

Dkt. 27.)10

LEGAL STANDARDS

I. Rule 12(b)(6) Motions

To survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

10 In accordance with the Court’s scheduling order, the parties filed all of their motion

papers on ECF on September 13, 2021, the date when the motion was fully briefed. (See 6/4/2021

Docket Order; see also Dkt. 18 (letter from Defendant dated June 25, 2021, memorializing

electronic service of Defendant’s motion to dismiss papers); Dkt. 21 (letter from Plaintiff dated

August 16, 2021, memorializing electronic service of Plaintiff’s opposition to the motion to

dismiss).)

570 (2007)). A “claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. (quoting Twombly, 550 U.S. at 556). The “plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”

Id. (quoting Twombly, 550 U.S. at 556).

Determining whether a complaint states a plausible claim for relief is “a context-specific

task that requires the reviewing court to draw on its judicial experience and common sense.” Id.

at 679. In addressing the sufficiency of a complaint, courts are required to accept the well-pleaded

factual allegations contained within the complaint as true, see Bldg. Indus. Elec. Contrs. Ass’n ex

rel. United Elec. Contrs. Ass’n v. City of New York, 678 F.3d 184, 188 (2d Cir. 2012), but “need

not credit conclusory statements unsupported by assertions of facts[,] or legal conclusions . . .

presented as factual allegations,” see In re Livent, Inc. Noteholders Sec. Litig., 151 F. Supp. 2d

371, 404 (S.D.N.Y. 2001) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). In addressing the

sufficiency of a complaint, courts must “accept as true the factual allegations of the complaint, and

construe all reasonable inferences that can be drawn from the complaint in the light most favorable

to the plaintiff.” Arar v. Ashcroft, 585 F.3d 559, 567 (2d Cir. 2009). However, a court “need not

feel constrained to accept as truth conflicting pleadings that make no sense, or that would render a

claim incoherent, or that are contradicted either by statements in the complaint itself or by

documents upon which its pleadings rely, or by facts of which the court may take judicial notice.”

In re Livent, Inc. Noteholders Sec. Litig., 151 F. Supp. 2d at 405–06 (citations omitted).

At the pleadings stage, a court must limit its inquiry to the facts alleged in the complaint,

the documents attached to the complaint or incorporated therein by reference, and “documents

that, while not explicitly incorporated into the complaint, are ‘integral’ to [the] plaintiff’s claims

and were relied upon in drafting the complaint.” Id. at 404 (citing Cortec Indus., Inc. v. Sum

Holding L.P., 949 F.2d 42, 44 (2d Cir. 1991)). Thus, in employment discrimination cases, courts

may consider filings with state administrative agencies or the EEOC to the extent that a complaint

necessarily rests upon them. See Littlejohn v. City of New York, 795 F.3d 297, 305 n.3 (2d Cir.

2015) (“‘It is proper for this court to consider the plaintiff’s relevant filings with the EEOC’ and

other documents related to the plaintiff’s claim . . . so long as those filings are . . . ‘integral to’ and

‘solely relied’ upon by the complaint.”) (cleaned up) (quoting Holowecki v. Fed. Express Corp.,

440 F.3d 558, 565–66 (2d. Cir. 2006)).

II. Title VII Discrimination Claim

Employment discrimination claims asserted under Title VII are analyzed under the burden-

shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the

McDonnell Douglas framework, the plaintiff must establish a prima facie case of discrimination

by showing that: (1) she is a member of a protected class; (2) she was qualified for the position

she held; (3) she suffered an adverse employment action; and (4) the adverse action’s

circumstances give rise to an inference of discrimination. See Littlejohn, 795 F.3d at 307.

At the motion to dismiss stage, district courts “treat[] the elements of a prima facie case as

‘an outline of what is necessary to render a plaintiff’s employment discrimination claims for relief

plausible.’” Sosa v. N.Y.C. Dep’t of Educ., 368 F. Supp. 3d 489, 495 (E.D.N.Y. 2019) (quoting

Barrett v. Forrest Labs., Inc., 39 F. Supp. 3d 407, 429 (S.D.N.Y. 2014)). In other words, a

“plaintiff is not required to plead a prima facie case under McDonnell Douglas . . . to defeat a

motion to dismiss.” Vega v. Hempstead Union School Dist., 801 F.3d 72, 84 (2d Cir. 2015). This

is because the prima facie requirement in McDonnell Douglas is an evidentiary standard that only

applies at the summary judgment phase, not a pleading requirement. Id. at 83 (citing Swierkiewicz

v. Sorema N.A., 534 U.S. 506, 510 (2002)). Thus, to survive a motion to dismiss, a complaint need

only “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it

rests.” Swierkiecwicz, 534 U.S. at 512.

The Second Circuit has “recently emphasized the low bar” for a claim of discriminatory

acts under Title VII to survive a motion to dismiss. See Lewis v. Roosevelt Island Operating Co.,

246 F. Supp. 3d 979, 989 (S.D.N.Y. 2017) (citing Doe v. Columbia Univ., 831 F.3d 46, 55 n.8 (2d

Cir. 2016) (collecting cases in which the court of appeals vacated dismissals on appeal)); see also

Tori v. Marist College, No. 06-CV-419 (KMK), 2008 WL 11451434, at *7 (S.D.N.Y. Sept. 11,

2008) (noting that if a plaintiff can establish “a prima facie case of discrimination—a minimal

burden—a presumption of discrimination arises”). The plaintiff’s burden to plead discriminatory

intent requires only that the complaint give “plausible support to a minimal inference of

discriminatory motivation.” Littlejohn, 795 F.3d, at 311.

With respect to the fourth prong of the prima facie case—whether termination occurred

under circumstances giving rise to an inference of discrimination on the basis of the employee’s

membership in the protected class—courts have recognized that inference of discrimination “is a

flexible standard that can be satisfied differently in differing factual scenarios.” Vives v. New York

City Dep’t of Corrections, No. 15-CV-6127 (MKB), 2019 WL 1386738, at *11 (E.D.N.Y. Mar.

27, 2019) (internal quotation marks and brackets omitted) (quoting Saji v. Nassau Univ. Med. Ctr.,

724 F. App’x 11, 17 (2d Cir. 2018)). Circumstantial evidence that can give rise to an inference of

discriminatory intent may include “the employer’s criticism of the plaintiff’s performance in

ethnically degrading terms; or its invidious comments about others in the employee’s protected

group; or the more favorable treatment of employees not in the protected group; or the sequence

of events leading to the plaintiff’s discharge.” Littlejohn, 795 F.3d at 312.

[A]bsent direct evidence of discrimination, what must be plausibly supported by

facts alleged in the complaint is that the plaintiff is a member of a protected class,

was qualified, suffered an adverse employment action, and has at least minimal

support for the proposition that the employer was motivated by discriminatory

intent.

Id. at 311; see also Vega, 801 F.3d at 87 (“At the pleadings stage, then, a plaintiff must allege that

the employer took adverse action against her at least in part for a discriminatory reason, and she

may do so by alleging facts that directly show discrimination or facts that indirectly show

discrimination by giving rise to a plausible inference of discrimination.”).

III. Title VII Retaliation Claim

To survive a motion to dismiss on a retaliation claim, a plaintiff must allege facts that show

“(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3)

an adverse employment action; and (4) a causal connection between the protected activity and the

adverse employment action.” Littlejohn, 795 F.3d at 315–16. As with discrimination claims, “the

allegations in the complaint need only give plausible support to the reduced prima facie

requirements.” Id. at 316.

An employee’s action qualifies as a protected activity for Title VII purposes if it is an

“action taken to protest or oppose statutorily prohibited discrimination,” Cruz v. Coach Stores,

Inc., 202 F.3d 560, 566 (2d Cir. 2000), superseded on other grounds by N.Y.C. Local L. No. 85,

and can encompass oral and informal complaints of discrimination, see Bowen-Hooks v. City of

New York, 13 F. Supp. 3d 179, 221 (E.D.N.Y. 2014). To plead a causal connection, “the plaintiff

must plausibly allege that the retaliation was a ‘but-for’ cause of the employer’s adverse action . . .

[i.e.,] the adverse action would not have occurred in the absence of the retaliatory motive.” Duplan

v. City of New York, 888 F.3d 612, 625 (2d Cir. 2018). A causal connection in retaliation claims

can be shown either “(1) indirectly, by showing that the protected activity was followed closely by

discriminatory treatment, or through other circumstantial evidence such as disparate treatment of

fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory

animus directed against the plaintiff by the defendant.” Gordon v. New York City Bd. of Educ.,

232 F.3d 111, 117 (2d Cir. 2000).

IV. Title VII Hostile Work Environment Claim

To establish a hostile work environment claim under Title VII, “a plaintiff must show that

‘the workplace is permeated with discriminatory intimidation, ridicule, and insult that is

sufficiently severe or pervasive to alter the conditions of the victim's employment and create an

abusive working environment.’” Littlejohn, 795 F.3d at 320–21 (quoting Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 21 (1993)). A plaintiff must ultimately prove not only that the workplace

environment is objectively and subjectively hostile or abusive, but also that an employer’s conduct

has created such an environment “because of plaintiff’s sex,” or other protected characteristic.

Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001). “The incidents complained of must be

more than episodic; they must be sufficiently continuous and concerted in order to be deemed

pervasive.” Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir. 2014). When evaluating conduct that

allegedly created a hostile work environment, courts will look to factors such as frequency and

severity of the conduct, “whether [the conduct in question] is physically threatening or humiliating,

. . . and whether it unreasonably interferes with an employee’s work performance” under the

totality of the circumstances. Littlejohn, 795 F.3d at 321.

DISCUSSION

Plaintiff’s NYSHRL and NYCHRL claims having been withdrawn (see Dkt. 16; see Pl.’s

Opp., Dkt. 26, at 1 n.1)11, the Court considers only Plaintiff’s Title VII claims, which she asserts

11 Although Plaintiff states that she is withdrawing her claims under NYSHRL, she

puzzlingly continues to recite in her opposition brief the legal standards for asserting claims under

NYSHRL. (See Pl.’s Opp., Dkt. 26, at 15 (explaining that NYSHRL “mirrors the federal law” and

then stating the standard for asserting a discrimination claim under NYSHRL); id. at 25

(“Plaintiff’s hostile work environment claims should survive, especially under the

N.Y.S.H.R.L.”)). Even if she were still maintaining her state law claims, they would be barred in

in her first and second causes of action: (1) that Defendant has discriminated against Plaintiff on

account of her race, gender, and national origin, and retaliated against her; and (2) that Defendant

subjected her to a hostile work environment on account of her race, gender, and national origin.

(See Am. Compl., Dkt. 13, ¶¶ 109–14.)

Drawing all reasonable inferences in favor of Plaintiff, the Court finds that Plaintiff has

properly pled claims of discrimination and retaliation under Title VII, but has failed to sufficiently

plead a hostile work environment claim under Title VII. Therefore, Defendant’s motion to dismiss

is granted in part and denied in part.

I. Plaintiff’s prima facie case for Title VII discrimination claim

Plaintiff alleges that Defendant violated Title VII by discriminating against her on the basis

of her race, gender, and national origin. (See Am. Compl., Dkt. 13, ¶¶ 1, 6, 109–10.) The Court

discerns two categories of alleged adverse employment actions: (1) the denial of tenure in

November 2018 and subsequent termination in January 2019, and (2) assigning Plaintiff an

unfavorable teaching schedule and a heavier workload, between January 2017 and the end of

2018.12

this court because the Second Circuit has held that CUNY is an “arm of the state” for the purposes

of state sovereign immunity. See Clissuras v. City Univ. of New York, 359 F.3d 79, 83 (2d Cir.

2004) (per curiam) (“Plaintiffs’ suits against CUNY are equivalent to suits against the State of

New York and are therefore barred by the Eleventh Amendment.”). Therefore, “absent an express

waiver of sovereign immunity or a clear abrogation of that immunity by Congress, the Eleventh

Amendment generally bars” suits against CUNY for claims under state law “in federal court for

legal and equitable relief.” De Figueroa v. New York, 403 F. Supp. 3d 133, 150 (E.D.N.Y. 2019)

(citing Davis v. Proud, 2 F. Supp. 3d 460, 476–77 (E.D.N.Y. 2014)).

12 Plaintiff also alleges that her tenure files went missing temporarily. (Am. Compl., Dkt.

13, ¶¶ 67, 69, 70.) It is unclear whether Plaintiff is claiming that the missing files constituted a

separate adverse action, or whether she is asserting that the fact that the files went missing is

evidence of discriminatory or retaliatory animus for a different adverse action. In either scenario,

the Court finds this incident to be irrelevant to Plaintiff’s claims because the files were ultimately

A. National-Origin Discrimination Claim

At the outset, the Court finds Plaintiff’s claims that she was discriminated against based on

her national origin to be plainly inadequate for meeting the Twombly plausibility standard.13 The

Amended Complaint contains only a single allegation that could possibly be interpreted as

discrimination against Plaintiff on account of her status as a natural-born U.S. citizen: Plaintiff

asserts “[u]pon information and belief,” that the College “had never hired any natural-born

American citizen . . . in the C.I.S. [Department] in a full-time faculty position.” (Am. Compl.,

Dkt. 13, ¶ 104.) While plaintiffs can plead facts “upon information and belief where the facts are

peculiarly within the possession and control of the defendant,” it is well established that “such

allegations must be accompanied by a statement of facts upon which the belief is founded.” See

Barrett, 39 F. Supp. 3d at 432 (internal brackets omitted) (quoting JBC Holdings NY, LLC v.

Pakter, 931 F. Supp. 2d 514, 527 (S.D.N.Y. 2013)); see also Prince v. Madison Square Garden,

427 F. Supp. 2d 372, 385 (S.D.N.Y. 2006) (“However, allegations pled on ‘information and belief’

are proper if ‘accompanied by a statement of the facts upon which the belief is founded.’”). Here,

Plaintiff provides no such factual basis for her “information and belief” pleading.

The more fundamental flaw in Plaintiff’s national-origin discrimination claim is that the

statistic that zero natural-born Americans had been granted tenure in the College’s C.I.S.

Department, even if accurate, is insufficient without any other evidence to establish discriminatory

intent as to Defendant’s alleged actions against Plaintiff, who is asserting an individual disparate

located, and Plaintiff has not alleged any strong indicia of discriminatory and/or retaliatory animus

related to these missing files.

13 In its briefing, Defendant does not address Plaintiff’s national origin discrimination

claim. (See generally Def.’s Mem., Dkt. 24.) Regardless, the Court finds that Plaintiff is unable

to meet even the minimal burden required to survive a motion to dismiss as to that claim.

treatment claim. See Drake v. Delta Air Lines, No. 94-CV-5944 (FB), 2005 WL 1743816, at *6

(E.D.N.Y. July 21, 2005) (noting that in an individual disparate treatment claim, “[s]tatistics alone

are insufficient . . . because an individual plaintiff must prove that he or she in particular has been

discriminated against”); Zenni v. Hard Rock Cafe Int’l, Inc., 903 F. Supp. 644, 654 (S.D.N.Y.

1995) (“[S]tatistical evidence of an employer’s general hiring practices is insufficient to prove that

a particular plaintiff was discriminated against.”); see also Bussey v. Phillips, 419 F. Supp. 2d 569,

583 (S.D.N.Y. 2006) (collecting cases). Therefore, Plaintiff’s bare allegation of discrimination

based on her status as a “natural-born American citizen with generational ancestry in the United

States,” (see Am. Compl., Dkt. 13, ¶ 110), is clearly insufficient to survive a motion to dismiss.

B. Racial and Gender Discrimination Claims

1. Denial of Tenure and Termination

Plaintiff claims that Defendant’s decision to deny her tenure and terminate her employment

was “based on [her] being a black female.” (Am. Compl., Dkt. 13, ¶ 110.) Defendant does not

dispute that Plaintiff is a member of a protected class (Black and female), or that the denial of

tenure and subsequent termination were adverse employments actions. (See Def.’s Mem., Dkt. 24,

at 8–13.) However, Defendant contests whether Plaintiff was qualified for tenure, and further

argues that Plaintiff “does not allege, even in conclusory terms,” that those responsible for the

adverse employment actions acted out of discriminatory “motives, let alone allege any facts giving

even minimal support for such an inference.” (See Def.’s Mem., Dkt. 24, at 11; see also Def.’s

Rep., Dkt. 27, at 5.)

Courts in the Second Circuit have long recognized that tenure decisions in the university

context involve a combination of factors which tend to set them apart from other employment

decisions. See Feinson v. New School for Social Research, No. 95-CV-763 (MBM) (THK), 1997

WL 742532, at *9 (S.D.N.Y. 1997) (citing Zahorik v. Cornell Univ., 729 F.2d 85, 92 (2d Cir.

1984)). For example, “tenure candidates are [generally] not competing with, nor compared to,

other tenure candidates,” but rather “evaluated based on their own merit and on the institution’s

needs,” and tenure decisions are “usually not made by one accountable decision-maker,” but by “a

committee of departmental faculty members.” Id. Furthermore, because courts “cannot hope to

master the academic field sufficiently to review the merits of such views and resolve the

differences of scholarly opinion,” see Zahorik, 729 F.2d at 93, courts are reluctant to review the

merits of tenure decisions, see Feinson, 1997 WL 742532, at *9 (collecting cases).

In light of these difficulties reviewing tenure decisions, the Second Circuit has set forth

additional guidance for establishing a prima facie case involving these decisions. See Zahorik,

729 F.3d at 92–93; see also Hall v. North Bellmore School Dist., 55 F. Supp. 3d 286, 296 n.12

(E.D.N.Y. 2014) (acknowledging that Zahorik set a “higher standard” for plaintiffs to establish a

prima facie case for employment discrimination). A plaintiff challenging a denial of tenure as

discriminatory may establish his or her prima facie case of discrimination “by evidence that the

plaintiff was a member of the protected group, was qualified for tenure, and was not granted tenure

in circumstances permitting an inference of discrimination.” Zahorik, 729 F.2d at 92. A

candidate’s qualifications for tenure can be established by “showing that some significant portion

of the departmental faculty, referrants or other scholars in the particular field hold a favorable view

on the question.” Id. Furthermore, “[d]epartures from procedural regularity, such as a failure to

collect all available evidence, can raise a question as to the good faith of the process where the

departure may reasonably affect the [tenure] decision.” Id. at 93.

Applying the guidance from Zahorik and drawing all reasonable inferences in Plaintiff’s

favor, the Court finds that the facts alleged in the Amended Complaint are sufficient to establish a

prima facie case of racial and gender discrimination with respect to Defendants’ denial of tenure

to Plaintiff. First, Plaintiff has established a prima facie case that she was qualified for tenure.

Plaintiff alleges that the College’s Personnel & Budget Committee recommended her for tenure,

and that she received the highest evaluation of “outstanding” for all of the nine areas in which

CUNY evaluates candidates for tenure. (Am. Compl., Dkt. 13, ¶¶ 71, 73, 74–77.) Plaintiff further

alleges that she received “an outstanding recommendation for tenure” from the “Chairman” of her

department. (Am. Compl., Dkt. 13, ¶¶ 68.) Because Plaintiff has alleged a “significant portion of

the departmental faculty [or] referrants” held a favorable view on whether she should receive

tenure, the Court finds that she has sufficiently alleged she was qualified for the position. See

Zahorik, 729 F.2d at 93–4.

Plaintiff’s allegations are weaker for the last prong of the prima facie case: establishing

that the circumstances of her tenure denial permit an inference of discrimination. Plaintiff alleges

that in denying her tenure in November 2018, “Defendant[] violated several of [its own] policies

and guidelines for tenure” by refusing to acknowledge the favorable vote by the Personnel &

Budget Committee and failing to recognize Plaintiff’s doctoral degree equivalencies. (Am.

Compl., Dkt. 13, ¶¶ 86–89.) Certainly, Plaintiff’s prima facie case for discrimination would be

stronger if she could establish that there were “[d]epartures from procedural regularity” in the

tenure review process. See Zahorik, 729 F.2d at 93. However, based on the record currently before

it,14 the Court cannot find that Defendant’s denial of Plaintiff’s application for tenure constituted

a procedural departure.

14 To determine that Defendant’s denial of Plaintiff’s tenure application in November 2018

was a departure from its tenure procedures, the Court would need to first determine what those

normal procedures were, presumably by examining CUNY’s bylaws and its collective bargaining

agreement with the Professional Staff Congress. (See Settlement, Dkt. 23-1, Ex. A, ¶ 3 (explaining

that the terms by which Plaintiff could reapply for tenure were consistent with “section 10.1(a)(2)

of the collective bargaining agreement between the Professional Staff Congress” and CUNY).)

Because neither party has submitted copies of CUNY’s bylaws or relevant collective bargaining

The Amended Complaint also identifies six non-African American, male members of the

department that Plaintiff claims were not subjected to the discriminatory and retaliatory treatment

experienced by her and her Black female colleagues. (See generally id. ¶¶ 105–106.) Plaintiff

also alleges that at least two other Black female professors were wrongfully terminated and/or

subject to discriminating comments/rumors. (See Am. Compl., Dkt. 13, ¶¶ 98, 100 (describing a

Black female professor who was terminated based on defamatory rumors that a professor “had a

child with a student” that were proven false and another Black female professor who was allegedly

subjected to derogatory comments related to her gender and pregnancy).)15 Plaintiff further alleges

“upon information and belief” that Defendant has never appointed a female full-time faculty

member in the C.I.S. Department until her arrival, and that it has never granted tenure to a Black

female in that department. (Id. ¶¶ 103–04.) Finally, Plaintiff alleges at least one instance of alleged

discrimination in which her share of prize money for a competition that Plaintiff “was

instrumental” in helping her department win was redirected to similarly situated male professors

(neither Black). (Id. ¶ 57.)

Courts in this circuit have held that a plaintiff’s allegations regarding poor treatment of

other employees in the same protected class “may be highly relevant to an individual disparate

treatment [claim] or to a disparate impact claim.” Lewis, 246 F. Supp. 3d at 989 (quoting Chin v.

Port Auth. of N.Y. & N.J., 685 F.3d 135, 150 (2d Cir. 2012)); see also Lieberman v. Gant, 630 F.2d

agreement provisions as exhibits to their briefing, nor has any party asked the Court to take judicial

notice of these documents, the Court declines to make a finding at this time as to what CUNY’s

normal tenure procedures were and whether the parties opted out of them by entering into the

Settlement.

15 Plaintiff mentions a third individual who “was an outstanding dean” at CUNY “only to

be terminated and replaced by a male dean.” (Am. Compl., Dkt. 13, ¶ 99.) It is unclear, however,

whether this dean was also a professor who was up for tenure, or instead whether this colleague

had a purely administrative role.

60, 68 (2d Cir. 1980) (“Evidence of general patterns of discrimination by an employer is relevant

even in an individual disparate treatment case.”). In this case, based on Plaintiff’s allegations of

Defendant’s discriminatory treatment of her relative to the other non-tenured professors (both

related to and separate from the tenure process) and the allegations of poor treatment of other Black

female colleagues, the Court finds that Plaintiff has alleged sufficient facts for “at least minimal

support” that Defendant acted with discriminatory intent based on race and gender. See Littlejohn,

795 F.3d at 311.

2. Heavy Workload

Plaintiff further alleges that Defendant discriminated against her between 2017 and 2018

by “overloading her . . . work assignments so that she would be prevented from [] attending” a

course that was required for her Ed.D program at Columbia University. (Am. Compl., Dkt. 13, ¶

41.) An employer assigning a “disproportionately heavy workload could perhaps be an adverse

action, if the additional work significantly changed the employee’s responsibilities so as to

diminish that worker’s role or status.” Young v. Rogers & Wells LLP, No. 00-CV-8019 (GEL),

2002 WL 31496205, at *5 (S.D.N.Y. Nov. 6, 2002).

Plaintiff describes the additional responsibilities as “helping faculty members author

publications and write grants between 9:00 am and 9:00 pm on and off-campus.” (Am. Compl.,

Dkt. 13, ¶ 48.) She also lists fourteen different “overtime activities” that Defendant assigned to

Plaintiff, but “not to male non-African American [c]ounterparts.” (Id. ¶ 80.) Yet, the Amended

Complaint contains no facts about how any of these assignments “significantly changed

[Plaintiff’s] responsibilities so as to diminish [Plaintiff’s] role or status.” See Young, 2022 WL

31496205, at *5. Plaintiff claims that these work assignments prevented her from attending the

required doctoral course, but she fails to explain how these additional assignments contributed to

her inability to attend that course. Therefore, Plaintiff has not made a prima facie case that the

heavy workload was an adverse action for the Title VII discrimination claim.16

3. Scheduling Issues

Scheduling conflicts are generally not adverse employment actions for purposes of a

discrimination claim. See Arroyo-Horne v. City of New York, No. 16-CV-3857 (MKB), 2018 WL

4259866, at *11 (E.D.N.Y. Sept. 5, 2018); see also Kelly v. New York State Office of Mental

Health, 200 F. Supp. 3d 378, 406 (E.D.N.Y. 2016) (explaining that a failure to provide an

accommodation related to scheduling is generally “not in and of itself an adverse employment

action”) (internal quotation marks and citations omitted). Courts have recognized an exception to

this general rule when the scheduling issues “constitute[] a setback to [a plaintiff’s] career.” Seale

v. Madison Cnty., 929 F. Supp. 2d 51, 75 (N.D.N.Y. 2013) (citing Adams v. City of New York, 837

F. Supp. 2d 108, 120 (E.D.N.Y. 2011)).

Here, Plaintiff alleges that her teaching schedule for the Spring 2017 semester created a

“schedule conflict with the required course for the doctoral” program that she needed to complete

her Ed.D degree at Columbia University. (See Am. Compl., Dkt. 13, ¶ 42.) For the Fall 2017

semester, Plaintiff was again unable to attend the required doctoral course, which was scheduled

for Thursday evenings, because Defendant gave her a schedule that required her to teach a class

on “Thursdays [from] 6:20 pm – 7:45 pm.” (Id. ¶ 50, 53.) The same scheduling conflict with

Plaintiff’s required course occurred again the next semester. (Id. ¶ 58.) Because Plaintiff draws a

link between these scheduling conflicts and her failure to meet those target goals and her

16 The Court notes that should Plaintiff develop additional evidence demonstrating a

connection between her allegedly increased workload and being unable to complete her doctoral

course work, she can seek to amend her complaint to re-allege this aspect of her discrimination

claim.

subsequent termination, she has plausibly alleged suffering a career setback. See Seale, 929 F.

Supp. 2d at 75.

Next, the Court turns to whether the circumstances with respect to the scheduling conflicts

give rise to an inference of discrimination. See Littlejohn, 795 F.3d at 313. Plaintiff states that

Defendant discriminated against her by giving her a teaching “schedule full of conflicts” that was

“very complicated” compared to the schedules Defendant set for her “male counterparts who were

not African American.” (Am. Compl., Dkt. 13, ¶ 44; see also id. ¶¶ 41–42, 50, 52–54, 84.)

Plaintiff identifies three such similarly situated counterparts: Leonid Knizhik, David Ahn, and

Gennady Lomako. (Id. ¶ 44.) In one concrete example, Plaintiff states that she was “repeatedly

scheduled to work late evenings” at a satellite campus of the College, unlike at least two of those

three colleagues. (Am. Compl., Dkt. 13, ¶ 84.)

The Court finds that Plaintiff’s allegations regarding scheduling conflicts are sufficient to

meet the plausibility standard for Rule 12(b)(6). First, Plaintiff identified the alleged comparators

by name, which courts have considered to be key information for surviving a motion to dismiss.

See Barrett, 39 F. Supp. 3d at 432 (finding that a complaint survives a motion to dismiss where

plaintiff “identifies at least one male comparator” by name and “alleges that the comparator

received a higher base salary”); see also Goodine v. Suffolk Cnty. Water Auth., No. 14-CV-4514

(JS) (ARL), 2017 WL 1232504, at *4 (E.D.N.Y. Mar. 31, 2017) (“[P]laintiff must still identify at

least one comparator to support a minimal inference of discrimination; otherwise the motion to

dismiss stage would be too easy to bypass.”). In fact, Plaintiff names not just one, but three,

comparators who supposedly received better schedules.

Plaintiff also alleges that the schedule she received in or around January 2017 was “full of

conflicts and very complicated” when compared to the schedules of the three colleagues she

identified, and specifically alleged that she was “repeatedly scheduled to work late evenings” at

one of the College’s satellite campuses. (Am. Compl., Dkt. 13, ¶¶ 44, 53–54, 84.)17 Defendant

argues that Plaintiff’s allegations are “bereft of any details concerning” what Plaintiff’s colleagues’

“schedules were, whether they had non-employment-related issues, like [P]laintiff, that they

wanted accommodated, and whether they got such accommodations.” (See Def.’s Mem., Dkt. 24,

at 13). However, the level of specificity in the allegations demanded by Defendant is well beyond

what is needed to survive a motion to dismiss.18 See Barrett, 39 F. Supp. 3d at 434 (applying

Second Circuit precedent on application of Twombly/Iqbal in Title VII discrimination cases and

finding that allegations about a Plaintiff’s base salary, identifying one male comparator, and

alleging that the comparator received a higher base salary is sufficient to survive 12(b)(6) motion).

Especially given the Second Circuit’s recent emphasis that a complaint need only allege “facts

supporting a minimal[ly] plausible inference of discriminatory intent,” see Doe, 831 F.3d at 55,

17 Defendant states that this “scheduling complaint, involving scheduling of night work, is

not alleged to have interfered with her classwork.” (See Def.’s Mem., Dkt. 24, at 4 n.5 (referring

to paragraph 84 of the Amended Complaint).) The Court disagrees. Plaintiff has alleged that she

needed to attend a required course for her program on Thursday evenings, and in paragraph 84 of

the Amended Complaint, she claims she “was repeatedly scheduled” to work late evenings in a

satellite campus. Defendant may have been confused because Plaintiff adds parenthetically that

this satellite campus was “located in a high crime neighborhood.” Although the Court finds this

detail gratuitous and irrelevant to Plaintiff’s claims, it does not detract from the primary point of

this paragraph: Plaintiff once again was scheduled to work evenings, presumably including

Thursday evening, which interfered with her ability to attend her required course.

18 Defendant claims, incorrectly, that Plaintiff’s Amended Complaint does not list the

positions of her supposed comparators and whether they have tenure. (See Def.’s Mem., Dkt. 24,

at 13). However, Plaintiff has included that information in her allegations. (See Am. Compl., Dkt.

13, at ¶¶ 105(c), (e), (f) (listing positions and tenure status of the three comparators identified by

Plaintiff). Defendant also mischaracterizes Plaintiff’s scheduling issues as a “non-employment

related issue” (Def.’s Mem., Dkt. 24, at 13), conveniently ignoring that Plaintiff needed to

complete the degree program per the terms of her Settlement with Defendant.

the Court finds that Plaintiff’s discrimination claim on the basis of the denial of tenure survives

Rule 12(b)(6).

C. Defendant’s arguments against the Title VII discrimination claim are

unavailing

Defendant raises several defenses against the discrimination claim, none of which are

convincing. First, Defendant argues that this Court should find that “there is an inference against

discrimination” because President Crew, like Plaintiff, is Black. (See Def.’s Mem., at 11

(emphasis in original).) Defendant cites to Milord-Francois v. New York State Off. of Medicaid

Inspector General, for this proposition, but Defendant appears to misinterpret that decision. See

Milord-Francois, No. 19-CV-179 (LJL), 2020 WL 5659438, at *11 (S.D.N.Y. Sept. 23, 2020),

reversed and vacated in part on other grounds, 2022 WL 480477 (2d. Cir. Feb. 17, 2022). First,

Defendant is incorrect to suggest that the Milord-Francois elevates the protected class of the

decisionmaker as some superseding factor that creates an inference against discrimination, despite

all evidence to the contrary. In Milord-Francois, although the decisionmaker involved in the

plaintiff’s demotion was a Black woman like the plaintiff, the court’s primary reason for granting

summary judgment in favor of the defendants was that the plaintiff “d[id] not identify any

evidence” that the decisionmaker “harbored any animus against [the plaintiff] on the grounds of

race, ethnicity, or national origin.” Id. at *11 (citing Eder v. City of New York, No. 06-CV-13013

(RWS), 2009 WL 362706, at *8 (S.D.N.Y. Feb. 12, 2009)). Similarly, in Eder v. City of New

York, the court merely held that where the decisionmaker and the plaintiff “are members of the

same protected class . . . any inference of discrimination, without additional evidence, is not

warranted.” Eder, 2009 WL 362706, at *8. Plainly, neither Milord-Francois or Eder stand for

the proposition that where the plaintiff and decisionmaker are in the same protected class, there

can never be discrimination; rather, there must be “additional evidence” of discrimination. Here,

Plaintiff alleges such additional evidence of discrimination. Therefore, even applying Milord-

Francois and Eder, cases which this Court has no obligation to follow, an inference of

discrimination is allowed, even though President Crew is a Black man.19

Defendant next argues that President Crew’s decision to deny tenure should receive the

“same actor” inference because he “himself authorized the very Settlement Agreement that

extended [P]laintiff’s employment and set the terms and conditions for tenure.” (Def.’s Mem.,

Dkt. 24, at 11.) Again, Defendant is mistaken. It is true that the Second Circuit held in Grady v.

Affiliated Cent., Inc., that when a person who made the initial decision to hire an employee later

fires that same employee, it would be “difficult to impute to [the decisionmaker] an invidious

motivation that would be inconsistent with the [hiring] decision.” See 130 F.3d 553, 560 (2d Cir.

1997). However, this “same actor” principle has far less applicability in circumstances where the

decisionmaker who first hired the employee had “collateral incentive to hire [a] particular

candidate.” Jetter v. Knothe Corp., 324 F.3d 73, 76 (2d Cir. 2003) (declining to apply “same

actor” principle from Grady where the decisionmaker’s “collateral incentive” to hire plaintiff was

to acquire plaintiff’s company). Here, the “collateral incentive” of President Crew’s decision to

offer the Settlement is clear: Plaintiff agreed to release all previous discrimination and retaliation

claims against Defendant. (See Am. Compl., Dkt. 13, ¶ 39.)

Finally, Defendant dedicates a significant portion of its motion briefing to drawing this

Court’s attention to statements that Plaintiff made under oath in bankruptcy proceedings that

19 Of course, Defendant’s argument also glosses over the fact that Plaintiff is a Black

woman who is bringing race and gender discrimination claims based on the decision of a Black

man to deny her tenure. Even if the Court were to infer that President Crew’s decision was not

racially discriminatory based on Defendant’s incorrect reading of Milord-Francois, there would

be no impact on Plaintiff’s claim that the denial of tenure was discriminatory based on her gender.

purportedly contradict what she has asserted in her Amended Complaint. (See Def.’s Mem., Dkt.

24, at 2, 5–8; Def.’s Rep., Dkt. 27, at 3–4.) In her bankruptcy proceedings, Plaintiff testified to

the following

Plaintiff-Debtor denies Trustee’s Argument paragraph A.25, as she has

already provided the court with proof that the obtaining a doctoral degree is

required for her employment in the adversary proceeding (Exhibit 23). It is

general knowledge that if a faculty member does not receive tenure, they

are terminated. Plaintiff-Debtor’s employer was considerate and patient

while she struggled with Columbia University for her degree. No other

colleges hire faculty in full-time positions unless they can complete the

dissertation in the first semester hired. The Plaintiff-Debtor needs the

doctoral degree as a condition of her employment.

(Pl.’s Opp., Dkt. 26, at 12 (emphasis added).)

When considering a motion to dismiss, courts can take “judicial notice of trial transcripts

from an associated case not for the truth of the matter asserted in the transcripts, but rather to

establish the fact of litigation, filings, or ‘to determine what the respective parties said.’” Charles

v. Cnty. of Nassau, 116 F. Supp. 3d 107, 124 n.21 (E.D.N.Y. 2015) (citing Coggins v. Cnty. of

Nassau, 988 F. Supp. 2d 231, 242 (E.D.N.Y. 2013)). Thus, if Defendant is correct that Plaintiff’s

statements in her bankruptcy pleadings contradict the Amended Complaint, the Court would have

to accept Plaintiff’s sworn testimony over the allegations in her complaint. See Luck v.

Westchester Med. Ctr., No. 17-CV-9110 (NSR), 2019 WL 416333, at *5 (S.D.N.Y. Feb. 1, 2019);

see also Thomas v. Westchester Cnty. Health Care Corp., 232 F. Supp.2d 273, 279 (S.D.N.Y.

2002) (“Faced with [a] confounding contradiction [between plaintiff's allegations in her complaint

and her sworn testimony], the Court has no basis for accepting as true the vague statements in [the]

[c]omplaint as opposed to [plaintiff’s] sworn testimony. . . .”).

However, the Court finds that Plaintiff’s statements in the bankruptcy proceedings are not

contradictory to her claims in this case because it is unclear what behavior Plaintiff was referring

to when she claimed that CUNY was “considerate and patient” while she was attempting to obtain

her doctoral degree. (Pl.’s Opp., Dkt. 26, at 12.) Defendant apparently reads this statement as

Plaintiff stating in sworn testimony that CUNY was “considerate and patient” with Plaintiff during

the entire period between when she was reinstated after she signed the Settlement until she was

denied tenure again in November 2018, in which case this statement would appear to contradict

the allegations in this case.

However, an alternative interpretation of this statement is that Plaintiff considered

Defendant to be “considerate and patient” in extending her tenure eligibility period as part of the

Settlement. In that case, Defendant could nevertheless have engaged in discriminatory and

retaliatory behavior towards Plaintiff both before and after the Settlement, despite having granted

her this opportunity to work toward tenure pursuant to the Settlement. Because district courts have

an obligation in considering motions to dismiss to “construe all reasonable inferences that can be

drawn from the complaint in the light most favorable to the plaintiff,” Arar, 585 F.3d at 567, the

Court will not leap to the conclusion that Plaintiff’s statements are contradictory when there are

multiple possible interpretations. See A.B. by Alverez v. United States, No. 16-CV-2554 (LMS),

2019 WL 10302175, at *17 (S.D.N.Y. Apr. 17, 2019) (“‘[A]mbiguous’ testimony that leaves room

for ‘interpretation’ is not contradictory.”) (citing Perez v. Manna 2nd Ave. LLC, No. 15-CV-4655

(JCF), 2016 WL 7489040, at *3 (S.D.N.Y. Dec. 28, 2016)).

* * *

Accordingly, Defendant’s motion to dismiss Plaintiff’s discrimination claims on the basis

of gender and race are denied, while the motion is granted as to Plaintiff’s claim that she was

discriminated against based on her national origin.

II. Title VII retaliation claims

Plaintiff claims that she engaged in protected activity when she complained about

scheduling conflicts after signing the Settlement, and that Defendant retaliated against her by

increasing her workload, continuing to give her teaching schedules that interfered with her degree

program, and ultimately denying her tenure in November 2018. (Am. Compl., Dkt. 13, ¶¶ 41, 56,

58–59, 108).20

In response, Defendant argues that “the only possibly retaliatory action” it took was

denying Plaintiff tenure, thereby contesting whether the increased workload and conflicting

schedules were adverse employment actions. (Def.’s Rep., Dkt. 27, at 5.) Defendant also contends

that Plaintiff has failed to establish that the individuals who allegedly assigned Plaintiff’s workload

and schedule knew of her protected activity. As to all of the three purported adverse employment

actions (increased workload, ongoing scheduling conflicts, and denial of tenure), Defendant argues

that Plaintiff has not sufficiently alleged a causal connection.

Because different tests apply for determining whether a particular employment action is

adverse for a discrimination claim versus a retaliation claim, a particular employment action can

be the basis of a retaliation claim, even though it is not sufficiently adverse for the purposes of a

discrimination claim. See Ahmad v. New York City Health & Hospitals Corp., No. 20-CV-675

(PAE), 2021 WL 1225875, at *17 (S.D.N.Y. Mar. 31, 2021). In fact, courts have recognized that

there “is a lower standard for adverse action [for a retaliation claim] as compared to a

20 Plaintiff also alleges that “CUNY discriminated and retaliated against her by pressuring

her to sign” the Settlement while “intentionally put[ting] up obstacles that would interfere with

Plaintiff’s ability to obtain the degree.” (Am. Compl., Dkt. 13, ¶ 61.) The Court construes this

paragraph in the Amended Complaint as further factual allegations supporting the claims related

to the scheduling conflicts and workload issues, and not as a separate potential adverse action for

her discrimination or retaliation claims.

discrimination claim.” Carpenter v. City of Mount Vernon, 198 F. Supp. 3d 272, 282 (S.D.N.Y.

2016).

With respect to retaliation claims, a defendant has engaged in an adverse employment

action if that action “well might have dissuaded a reasonable worker from making or supporting a

charge of discrimination.” Kessler v. Westchester Cnty. Dep’t. of Soc. Servs., 461 F.3d 199, 207

(2d Cir. 2006) (quoting Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).

A plaintiff must demonstrate the “material adversity” of the potential adverse action, because “it

is important to separate significant from trivial harms.” See Kelly, 200 F. Supp. 3d at 403 (quoting

White, 548 U.S. at 68)). Minor grievances such as “petty slights, minor annoyances, and simple

lack of good manners” do not normally constitute adverse actions for purposes of a retaliation

claim. White, 548 U.S. at 68.

The Court finds that Plaintiff participated in protected activity when she lodged numerous

complaints about her scheduling issues. See Rodriguez v. Town of Ramapo, 412 F. Supp. 3d 412,

442 (S.D.N.Y. 2019) (holding that informal protests to management of discriminatory practices

are protected activities (collecting cases)). Further, Defendant is incorrect in suggesting that

Plaintiff needed to allege that “the actors who created the schedules [about which Plaintiff

complained] were aware of any protected activity” (see Def.’s Mem., Dkt. 24, at 11), because the

Second Circuit has clearly held that “a plaintiff may rely on ‘general corporate knowledge’ of her

protected activity to establish the knowledge prong of the prima facie case,” see Zann Kwan v.

Andalex Group LLC, 737 F.3d 834, 844 (2d Cir. 2013) (quoting Gordon, 232 F.3d at 116).

Because an employee’s complaint to a corporate officer is imputed to the employer, Defendant

CUNY had general corporate knowledge of Plaintiff’s protected activity when she complained in

May 2018 to the College’s President and Provost. See id. at 844–45.21 Furthermore, the Court

finds that because Plaintiff had previously complained numerous times about discrimination and

retaliation, and even initiated an arbitration proceeding against Defendant related to those claims,

it is safe to assume that her complaints to various supervisors between the time she signed the

settlement and when she was terminated for the second time were escalated, and Defendant as an

entity had knowledge of these complaints.

Accordingly, Plaintiff has satisfied the first two prongs of her retaliation claim, and needs

only to prove the latter two: that there was an adverse employment action and a causal connection

between the protected activity and the adverse employment action. See Littlejohn, 795 F.3d at

315–16. The Court examines in turn whether Plaintiff has satisfied these two prongs for each of

the three potential adverse employment actions: increasing her workload, assigning teaching

schedules that interfered with her degree program, and denying her tenure for the second time.22

21 Plaintiff alleges that she complained about her scheduling conflicts (if not other

perceived grievances) on the following occasions: on January 26, 2017 to an unidentified

individual about her teaching schedule (Am. Compl., Dkt. 13, ¶ 42); multiple more times from

January 26, 2017 to February 2, 2017 to Tanya Isaacs (id. ¶ 43); sometime around August 2017 to

the Department Chairman Randy Robotham (id. ¶ 53); on “a continuous basis” in 2017 and 2018

to the College Provost and the Dean (id. ¶¶ 56, 85); sometime after receiving her schedule in

January 2018 for the next semester to an unspecified individual (id. ¶ 58); in May 2018 to the

College’s President and Provost (id. ¶ 60); at unspecified periods to Dean Joan Rolle (id. ¶ 60);

again to the College Provost in September 2018 (id. ¶ 65); and to the Department Chairman once

again sometime in 2018 (id. ¶ 85). Positions such as provost or president of a university are

“corporate officers” of the institution. See Cole v. Univ. of Hartford, 391 F. Supp. 888, 892 (D.

Conn. 1975); see also Bagley v. Yale University, No. 13-CV-1890 (CSH), 2015 WL 1724115, at

*2 (D. Conn. Apr. 15, 2015) (acknowledging in a pre-trial discovery context that the then-President

and previous Provost of a university was analogous to a corporate officer of a private company).

The Court, however, recognizes that it is likely that complaints to Isaacs (who seems to have had

a union-designated position) would likely not be imputed to Defendant, and that it is less clear

whether Robotham (a department chair) and Jolle (a dean) would be considered “corporate

officers” for purposes of imputing knowledge to the Defendant under Zann Kwan.

22 The Second Circuit has explained that district courts that are weighing whether certain

action amounts to an adverse employment action “need to [] consider[] both separately and in the

aggregate [whether such] minor acts of retaliation can be sufficiently substantial in gross to be

A. Additional Work Assignments

Plaintiff’s bare and conclusory allegations related to the additional work assignments she

received are insufficient to show that there was an adverse employment action. Courts have

recognized that additional work assignments generally do not constitute adverse actions for

purposes of a retaliation claim. Kelly, 200 F. Supp. 3d at 406 (citing Mutts v. S. Conn. State. Univ.,

242 F. App’x 725, 727 (2d Cir. 2007)). Plaintiff provides a long list of additional work that she

was assigned, but she does not allege that her workload was materially disproportionate to

similarly situated colleagues in her department. See Delgado v. Triborough Bridge & Tunnel

Auth., 485 F. Supp. 2d 453, 461 (S.D.N.Y. 2007) (“While an increased workload is considered

only a mere alteration of job responsibilities, a workload heavily disproportionate to those

similarly situated has been held to be an example of an adverse action.” (citing Feingold v. New

York, 366 F.3d 138, 153 (2d Cir. 2004))). Even drawing reasonable inferences in her favor, the

Court finds that the additional work assignments she received are the type of “minor annoyances”

that do not constitute adverse employment actions in retaliation claims. See White, 548 U.S. at 68.

Even if these additional work assignments could be considered adverse employment

actions, Plaintiff has also failed to show a causal connection to the protected activities, as she

provides very little information on when Defendant directed her to complete these additional

assignments. In fact, the few temporal indicators that she included make clear that it would be

impossible for some of these “overtime” obligations to have been imposed in retaliation for her

complaints about her treatment from 2017 onward. For example, Plaintiff acknowledges that she

actionable.” Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010) (internal quotation marks omitted).

As further explained below, the Court has found that at least two of the three potential adverse

actions raised by Plaintiff are sufficiently adverse for the retaliation claim to survive, and thus, the

question of whether these actions are in aggregate sufficient to state a prima facie case for

retaliation is moot.

was tasked with “Creating a Faculty Training Institute” in 2013. (Am. Compl., Dkt. 13, ¶ 80.)

She also identifies working as deputy chair of the C.I.S. Department as another retaliatory action,

even though Plaintiff was demoted from that position sometime before 2014. (Am. Compl., Dkt.

13, ¶ 26–27.) Neither of these can be retaliatory actions for protected activity that Plaintiff engaged

in several years later. As for the remaining assignments that Plaintiff claims constitute the adverse

employment action for her retaliation claim, Plaintiff’s bare allegations provide no details as to

when she received these assignments, and the Court therefore cannot find that she has met even

the minimal burden to establish that a causal link with her protected activity.23

B. Scheduling Conflicts

As the Court explained above, Plaintiff has made a prima facie case that her scheduling

conflicts in 2017 and 2018 constituted a setback to her career by interfering with her ability to

attend a required course for her Ed.D program. The Court also finds that these scheduling conflicts

are adverse employment actions for the purposes of Plaintiff’s retaliation claim because

Defendant’s alleged actions of assigning a teaching schedule that contains conflicts, semester after

semester, to an employee who had complained that the teaching schedule interfered with her

degree program is “harmful to the point that it could well dissuade a reasonable worker” from

continuing to complain about the teaching schedule. See Vogel v. CA, Inc., 662 F. App’x 72, 76

(2d Cir. 2016) (brackets omitted).

It is a much closer call whether Plaintiff has alleged sufficient facts for the Court to

plausibly infer that retaliation was the but-for cause of these scheduling issues. First, it is important

to clarify which scheduling conflicts Plaintiff is alleging were retaliatory for which protected

23 As the Court previously noted, should Plaintiff develop evidence during discovery to

support her retaliation claim based on an allegedly increased workload that occurred in 2017

onward, she can seek to amend her complaint to re-plead this aspect of her retaliation claim.

activities.24 Plaintiff alleges that she received teaching schedules that interfered with her doctoral

program schedule in January 2017, August 2017, and January 2018. She also alleges that she

complained about retaliation and/or discrimination in January/February 2017, August 2017,

January 2018, May 2018, and September 2018. Favorably construing the allegations as to the

scheduling conflicts, Plaintiff is claiming that (1) her August 2017 schedule was in retaliation for

her complaints in January/February 2017, and (2) that her January 2018 schedule was in retaliation

for her complaints in August 2017. (See Am. Compl., Dkt. 13, ¶¶ 58–59.)

In both these instances, Plaintiff has alleged a temporal proximity that can support an

inference of causation. First, Plaintiff alleges that she was retaliated against in August 2017, five

months after she lodged complaints about her Spring 2017 teaching schedule in January and

February of 2017. As this Court recently explained, the Second Circuit has “fastidiously avoided

24 The Court would be remiss if it failed to note that the vagueness in some of Plaintiff’s

allegations regarding her complaints about scheduling made it particularly difficult to determine

the temporal proximity between potential protected activity and the alleged adverse employment

actions. While Plaintiff claims that “[i]n 2017 and 2018, Plaintiff complained many times on a

continuous basis about the discrimination and retaliation” that she experienced, Plaintiff often fails

to provide even the most basic details of when, to whom, and about what she complained. (See

Am. Compl., Dkt. 13, ¶ 56; see also id. ¶ 85 (similarly vague allegations about “continuously

complain[ing] to the Defendants (Dean, Provost, and Department Chair)” in 2018, without

providing details).) For example, Plaintiff alludes to complaints she made with “Dean Joan Rolle

[that were] to no avail,” without explaining what the subject matter of her complaint was or on

what date (or even which month) this supposed protected activity occurred. (See id. ¶ 60.)

Similarly, when discussing the scheduling conflicts she received in January 2018, Plaintiff “again

complained about discrimination and retaliation” without providing crucial details of when

Plaintiff complained about this schedule and to whom. (See id. ¶ 58.) Of course, this Court cannot

determine temporal proximity between the alleged retaliatory scheduling and the protected conduct

(i.e., complaints about previous scheduling), where Plaintiff “does not provide the date” that she

lodged her previous complaints, see Soto v. Marist Coll., No. 17-CV-7976 (KMK), 2019 WL

2371713, at *11 (S.D.N.Y. June 5, 2019); see also Henry v. NYC Health & Hosp. Corp., 18 F.

Supp. 3d 396, 412 (S.D.N.Y. 2014) (finding plaintiff failed to state a retaliation claim where

complaint “fails to state with even a modicum of specificity [as to] when the relevant events

occurred”), and thus has not relied on the inadequately pled incidents of retaliation in resolving

this motion.

drawing a ‘bright line’ defining the outer limits ‘beyond which a temporal relationship is too

attenuated to establish causation.’” De Figueroa v. New York State et al., No. 17-CV-436 (PKC)

(LB), 2022 WL 4111028, at *8 (E.D.N.Y. Sept. 8, 2022) (quoting Gorman-Bakos v. Cornell Co-

op Extension of Schenectady Cnty., 252 F.3d 545, 554 (2d Cir. 2001)). Even though there is no

defined outer bound for temporal proximity, courts in the Second Circuit have consistently

recognized that five months of temporal proximity between protected activity and an adverse

employment action is sufficient to establish a prima facie case of retaliation. See Specht v. City of

New York, 15 F.4th 594, 605 (2d Cir. 2021) (holding that five months between protected conduct

was “sufficient to permit an inference of causation”); see also De Figueroa, 2022 WL 4111028,

at *8 (collecting cases).

There is more ambiguity in the case law about whether the seven-month temporal gap

between Plaintiff’s complaints in August 2017 and her next purportedly conflict-filled schedule

being issued in January 2018 would support a finding of causation. Some courts in this circuit

have recognized that “a seven-month gap between the protected conduct and retaliatory action may

be ‘on its own too attenuated to give an inference of but-for causation.’” See Alvardo v. Mount

Pleasant Cottage Sch. Dist., 404 F. Supp. 3d 763, 786 (S.D.N.Y. 2019) (ellipsis omitted) (quoting

Avillan v. Brennan, No. 16-CV-5611 (AJN) (RLE), 2018 WL 4680027, at * 5 (S.D.N.Y. Sept. 28,

2018)); but see Summa v. Hofstra Univ., 708 F.3d 115, 128–129 (2d Cir. 2013) (“[S]even months

is within the temporal range that we have found sufficient to raise an inference of causation . . . .”).

Here, the Court finds that the seven-month temporal gap is sufficient for inferring causation

in light of the fact that, as Plaintiff observes, a gap of that length between protected activity and

allegedly retaliatory conduct can be expected because teaching schedules for every semester are

only issued every several months in accordance with the academic calendar. (See Am. Compl.,

Dkt. 13, ¶ 51.)25 Furthermore, Plaintiff’s allegation that there was a pattern of such retaliatory

scheduling that spanned two years lessens the significance of the temporal gap for one of the acts

within that pattern. Therefore, the Court finds Plaintiff has met the low burden of demonstrating

that the scheduling conflicts were acts of retaliation.

C. Denial of Tenure and Termination

Defendant concedes that the denial of tenure was an adverse employment action, but it

argues that there was no causal connection because the denial of tenure took place “about one and

a half years after [Plaintiff’s] alleged protected activity.” (Def.’s Rep., Dkt. 27, at 5.) According

to Defendant, Plaintiff’s Amended Complaint “makes no attempt to tie her complaints to the denial

of tenure.” (Def.’s Mem., Dkt. 24, at 13.)

Defendant overlooks Plaintiff’s allegation that she complained in May 2018—six months

before her tenure denial—in writing to the Provost and President of the College, about

discrimination and retaliation against her. (Am. Compl., Dkt. 13, ¶ 60.) Plaintiff claims that she

raised concerns with the Provost again during an in-person meeting with the Provost in September

2018 about the discrimination and retaliation against her, specifically raising the “scheduling

25 Admittedly, Plaintiff ultimately may be unable to prove these allegations related to the

scheduling issues at trial. However, the Court finds that since discovery is going to proceed in this

matter as to the schedule conflicts alleged as part of Plaintiff’s discrimination claims, the “better

course” is not to dismiss the discrimination claims as to the scheduling issues at this early stage of

the litigation. Bacchus v. New York City Bd. of Ed., 137 F. Supp. 3d 214, 241 (E.D.N.Y. 2015)

(finding that “better course” was not to dismiss claim based on same evidence as surviving claims);

Thibodeaux v. Travco Ins. Co., No. 13-CV-5599 (ERK) (VVP), 2014 WL 354656, at *2 (E.D.N.Y.

Jan. 31, 2014) (“If one of a number of integrally related causes of action have to be tried, it makes

little sense to grant a motion to dismiss as to one or more of them, as it may prove necessary to

hold yet another trial in the event that it is determined on appeal that the motion to dismiss was

improperly granted.”). Of course, Defendant is free to raise this issue again at summary judgment

if it concludes, following discovery, that the undisputed facts can establish that retaliation was not

a but-for cause of scheduling. But at this stage of the proceedings, the Court finds that Plaintiff’s

allegations of retaliation as to the scheduling conflicts are sufficient to survive a motion to dismiss.

conflicts, the long day schedules, and the overloaded work assignments unlike her male non-

African American counterparts.” (Am. Compl., Dkt. 13, ¶ 65.)

These complaints were protected activities given that the subject matter of the complaints

was about alleged discrimination. See Rodriguez, 412 F. Supp. 3d at 442. And certainly, the

distance between the complaints in May 2018 and September 2018, and the denial of tenure in

November 2018 fall well within the “few months [time period] normally accepted” by courts in

this circuit “as supporting a retaliation claim.” (See Def.’s Mem., Dkt. 24, at 13.) Therefore,

Plaintiff has established a sufficient causal connection between her being denied tenure and her

protected activity in September 2018 relating to alleged discriminatory animus and retaliation by

Defendant.26

III. Plaintiff has not established a case for a hostile work environment

Finally, Plaintiff’s factual allegations related to her hostile work environment claim are

underdeveloped and far too conclusory to sufficiently allege a Title VII claim. In her Amended

Complaint, Plaintiff merely states that she was subject to “a hostile work environment that caused

[her] several serious medical issues,” without actually describing what made her work environment

so hostile. (Am. Compl., Dkt. 13, ¶ 91). Plaintiff insists that her factual allegations “should be

26 Defendant cites the Second Circuit’s opinion in Slattery v. Swiss Reins. Am. Corp. for

the principle that “where timing is the only basis for a claim of retaliation, and gradual adverse job

actions began well before the plaintiff had ever engaged in protected activity, an inference of

retaliation does not arise.” (See Def.’s Mem., Dkt. 24, at 13 (brackets omitted) (citing Slattery,

248 F.3d 87, 95 (2d Cir. 2001)). Defendant’s attempt to extend Slattery to the current context is

misguided. The Second Circuit in Slattery held that the alleged “adverse employment actions were

both part, and the ultimate product, of ‘an extensive period of progressive discipline’ which began

when [the defendant] diminished [the plaintiff’s] job responsibilities a full five months prior to his

filing of the EEOC charge.” 248 F.3d at 95. By contrast, here there are no allegations in the record

about any disciplinary history as to Plaintiff, and so there is not “an extensive period of progressive

discipline.” See also Gordon v. Health & Hospitals Corp., No. 06-CV-1517 (RJD) (LB), 2008

WL 924756, at *11 n.16 (rejecting application of Slattery on similar grounds).

viewed in the aggregate” and that her Title VII hostile work environment claim meets the motion

to dismiss hurdle because she consistently “was treated less well than other counterparts who were

not African American and were not natural U.S. born citizens, on a consistent basis, in terms of

discipline, schedule, tenure, back pay, etc.” (Pl.’s Opp., Dkt. 26, at 25.)

The Court disagrees, and finds that Plaintiff allegations as to her hostile work environment

claim fall well short of the plausibility threshold to survive a motion to dismiss. Nowhere in the

Amended Complaint does Plaintiff claim that she was subjected to “discriminatory intimidation,

ridicule, and insult,” or other forms of “severe and pervasive” mistreatment that would create a

hostile work environment. See Petrosino v. Bell Atl., 385 F.3d 210, 223–24 (2d Cir. 2004).

Notably, Plaintiff does not allege a single instance of being subjected to slurs, derogatory

comments, harassment, or any gender or racial-stereotypes (see generally Am. Compl., Dkt. 13),

let alone multiple occurrences of such actions that courts typically look for when determining

whether a hostile work environment exists, see, e.g., Morris v. David Lerner Assocs., 680 F. Supp.

2d 430, 441 (E.D.N.Y. 2010) (finding that plaintiff stated a claim for hostile work environment

where complaint alleges numerous occasions of sexually explicit comments and actions).

To the extent that Plaintiff is alleging that Defendant subjected her to a hostile work

environment in how it set her schedule from 2017 to 2019 and by assigning her additional

assignments during that same period, such grievances do not rise to the level of severity or

pervasiveness to sustain a hostile work environment claim under Title VII. See, e.g., De la Cruz

v. City of New York, 783 F. Supp. 2d 622, 644 (S.D.N.Y. 2011) (“Several of the matters about

which [Plaintiff] complains do not rise to the level of an actionable hostile work environment

claim[] [including] . . . the changes in his work schedule . . . .”); Harvin v. Manhattan & Bronx

Surface Transit Operating Auth., No. 14-CV-5125 (CBA) (RER), 2016 WL 11318241, at *10

(E.D.N.Y. Mar. 3, 2016) (finding plaintiff’s complaints that “she was assigned a heavy workload;

denied proper trainings, resources, and assistance to perform her work; and was treated unfairly”

were insufficient to establish the existence of a hostile work environment). Confusingly, Plaintiff

also references workplace discipline as part of her hostile work environment claim. (See Pl.’s

Opp., Dkt. 26, at 25.) But even when viewing the factual allegations in the light most favorable to

her, the Court cannot discern any part of the Amended Complaint that references Plaintiff being

subject to discipline, let alone that she was disciplined more harshly than her non-Black, non-

American-born colleagues. (See generally Am. Compl., Dkt. 13.)

In sum, with respect to her hostile work environment claims, Plaintiff “only makes general

allegations that African-American[] [women] are treated differently in the workplace” by

Defendant, which are plainly insufficient to sustain a hostile work environment claim. See Hill v.

Rayboy-Brauestein, 467 F. Supp. 2d 336, 360 (S.D.N.Y. 2006). Accordingly, the Court grants

Defendant’s motion to dismiss the Title VII hostile workplace environment claim.

CONCLUSION

For the reasons stated above, the Court holds as follows: (1) Defendant’s motion to dismiss

is granted with respect to Plaintiff’s Title VII hostile work environment claims; (2) Defendant’s

motion to dismiss is granted with respect to Plaintiff’s Title VII discrimination claims on the basis

of national origin; (3) Defendant’s motion to dismiss is denied as to Plaintiff’s Title VII

discrimination claims on the basis of race and gender; (4) Defendant’s motion to dismiss as to

Plaintiff’s Title VII retaliation claim is denied; and (5) Plaintiff’s NYSHRL and NYCHRL claims

are deemed to be withdrawn, or to the extent that Plaintiff did not intend to withdraw these claims,

they are dismissed as barred in federal court pursuant to the Eleventh Amendment.

SO ORDERED.

/s/ Pamela K. Chen

Pamela K. Chen

United States District Judge

Dated: September 30, 2022

Brooklyn, New York