# Boncoeur v. Haverstraw-Stony Point Central School District

> District Court, S.D. New York · March 22, 2022

URL: https://www.frixlaw.com/law-library/cases/10339699

## Case

- **Court:** District Court, S.D. New York
- **Decided:** March 22, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10339699

## How later opinions describe it (automated extraction)

- finding that the plaintiff engaged in protected activity when she “filed [an] EEOC charge complaining of gender discrimination”
- finding that the plaintiff “successfully allege[d] that he was engaged in a protected activity” when he “lodg[ed] . . . several internal complaints regarding [the] defendants’ discriminatory conduct.”

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

OSWALD BONCOEUR,

Plaintiff,
No. 20-CV-10923 (KMK)
v.
OPINION & ORDER
HAVERSTRAW-STONY POINT
CENTRAL SCHOOL DISTRICT et al.,

Defendants.

Appearances:

Ambrose Wotor Wotorson, Jr., Esq.
Ambrose Wotorson, P.C.
New York, NY
Counsel for Plaintiff1

Michael A. Miranda, Esq.
Maranda Sambursky Solne Sklarin Verveniotis LLP
Mineola, NY
Counsel for Defendant

KENNETH M. KARAS, District Judge:

Oswald Boncoeur (“Boncoeur” or “Plaintiff”) brings this lawsuit, pursuant to 42 U.S.C. §
1981, 42 U.S.C. § 1983, 42 U.S.C. § 2000e (Title VII of the Civil Rights Act or “Title VII”), 29
U.S.C. § 621 et seq. (Age Discrimination Employment Act or “ADEA”), 29 U.S.C. § 2615(a)(1)
(Family and Medical Leave Act or “FMLA”), and 29 U.S.C. § 701 et seq. (“Rehabilitation Act”),

1 It is with condolences that the Court observes that Plaintiff’s counsel, Mr. Wotorson,
passed away during the course of this litigation. Before Court is Defendants’ Motion to Dismiss
the Amended Complaint (the “Motion”). (See Not. of Mot. (Dkt. No. 16).) The Motion was
fully briefed prior to Mr. Wotorson’s passing. (See Dkt. Nos. 16–17, 23, 26–27.) Thus, the
Court will proceed with the adjudication of the Motion.
against Haverstraw-Stony Point Central School District (the “School District”), Michael Senno
(“Senno”), Rose Sira (“Sira”), and Eric Baird (“Baird” and collectively, “Defendants”), alleging
discrimination, hostile work environment, and retaliation on the basis of his age, race, national
origin, prior alienage, and prior protected activities. (See generally Am. Compl. (Dkt. No. 13).)

Before the Court is Defendants’ Motion to Dismiss the Amended Complaint (the
“Motion”). (See Not. of Mot. (Dkt. No. 16).) For the following reasons, Defendants’ Motion is
granted.
I. Background
A. Factual Background
Unless otherwise stated, the following facts are drawn from Plaintiff’s Amended
Complaint and are assumed true for the purpose of resolving the instant Motion.2 See Div. 1181
Amalgamated Transit Union-N.Y. Emps. Pension Fund v. N.Y.C. Dep’t of Educ., 9 F.4th 91, 94
(2d Cir. 2021) (per curiam).
Plaintiff has worked for the School District for over 20 years as an accountant. (Am.

Compl. ¶ 5.) Plaintiff has a Bachelor’s degree in Business Administration with a concentration
in Accounting and is an IRS enrolled agent. (Id. ¶ 20.) He was hired by the School District as an
Accountant I on September 8, 1999. (Id. ¶ 13.) In 2003, Plaintiff was promoted to the position
of Accountant II. (Id. ¶ 14.)
Defendant Senno is the School District’s Assistant Superintendent for Business. ((Id. ¶¶
(Id. ¶ 8.) Defendant Sira is the School District’s Treasurer. (Id. ¶ 19.) Defendant Baird is the

2 “It is well established that an amended complaint . . . supersedes the original and
renders it of no legal effect.” Arce v. Walker, 139 F.3d 329, 332 n.4 (2d Cir. 1998) (quoting Int'l
Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977)).
School District’s Assistant Superintendent for Human Resources and Community Relations. (Id.
¶ 10.) Senno and Sira are Plaintiff’s supervisors. (Id. ¶¶ 22, 54.)
Plaintiff alleges that he has been subjected to “a continuing violation and an
uninterrupted pattern of discrimination against Plaintiff because of his age, his race, his national

origin and his prior alienage and because of his protected activities.” (Id. ¶ 23.) Plaintiff, who is
63 years old, alleges that he has been the second oldest employee for the entirety of his tenure at
the School District. (Id. ¶ 16.) He has also been the only Black employee, and, up until August
2019, he was the only employee who was not born in the United States. (Id. ¶¶ 16, 18.)
Although Plaintiff is fluent in English, he has a strong French/Haitian accent. (Id. ¶ 19–20.)
Plaintiff alleges that James Johnston (“Johnston”), who was hired as the Assistant
Superintendent for Business in 2002, sarcastically referred to Plaintiff as “King” because of his
age and race. (¶¶ 25–29.) Plaintiff also alleges that he was overlooked for various promotions
because of his age. For example, in March 2010, the School District created an interim District
Treasurer position and hired Senno, who is white and American-born, without posting any

vacancy announcements or interviewing Plaintiff. (Id. ¶¶ 30–31.) Similarly, in October 2010,
Senno was again promoted to a newly created Business Administrator position, without a
vacancy announcement. (Id. ¶ 32.) Plaintiff alleges that he was neither interviewed nor
considered, despite his qualifications and experience. (Id. ¶¶ 33–34.) Additionally, in 2014,
Senno took over Johnston’s position as Assistant Superintendent for Business, but Plaintiff
alleges he was not considered for the same reasons. (Id. ¶¶ 35–36.) Also in 2014, Michael
Ivanoff (“Ivanoff”), who is also white and American-born, was hired for the position of
Treasurer, and Plaintiff was neither interviewed nor considered. (Id. ¶¶ 37–39.) And in 2015,
Rosa Sira, who is white, American-born, and over a decade younger than Plaintiff, was hired to
replace Ivanoff. (Id. ¶¶ 40–41.) Finally, in 2015, Donna Dowen, who is American-born, white,
and seven or eight years younger than Plaintiff, was hired as Deputy Treasurer, despite not being
able to pass the Accountant I test. (Id. ¶¶ 43–44.) Plaintiff alleges that despite his qualifications
and experience, he was not considered for these positions due to his race, national origin, and

age. (See id. ¶¶ 30–46.)
In 2018, Plaintiff made an oral complaint to Sira, Senno, and Baird that he was not being
paid for overtime work that he had been performing due to his status as a Black, foreign-born
employee. (Id. ¶¶ 47–49.) Although Plaintiff concedes that his complaint was eventually
resolved, he alleges that he was subjected to retaliation in the form of “micro-aggressions.” (Id.
¶ 51.) For example, Plaintiff alleges that Sira continually mocked Plaintiff’s accent through
“facial gestures and shaking of her head” and allegedly falsely claimed not to understand
Plaintiff. (Id. ¶ 53(a).) Plaintiff also describes an incident which allegedly resulted in Senno
physically assaulting Plaintiff by pushing Plaintiff out of his office. (Id. ¶ 60.) This incident
allegedly occurred after Plaintiff and Senno had a “heated” exchange in Senno’s office about

Plaintiff’s accounting practices. (Id. ¶ 59.) Following the incident, Plaintiff received a “negative
counseling memo,” the contents of which alleged that Plaintiff had acted inappropriately. (Id. ¶
63–64.) Plaintiff alleges that the counseling memo was drafted to “build a paper trail for his
eventual separation from service.” (Id. ¶ 65.)
After Plaintiff submitted a complaint alleging that the incident and subsequent counseling
memo were motivated by discrimination, the School District hired a law firm in May 2019 to
investigate the claim. (Id. ¶ 67.) The law firm found no evidence of violent or discriminatory
behavior by Senno. (Id. ¶ 70.) However, Plaintiff alleges that, starting in October 2019, Sira
began “intentionally accusing Plaintiff of failing to do tasks that she knew, or had reason to
know, he had already performed, or in other instances, falsely accusing Plaintiff of failing to do
tasks that she knew, or reasonably should have known, were not within Plaintiff’s work
purview.” (Id. ¶ 77.) This culminated in a November 14, 2019 meeting between Baird, Plaintiff,
and his union representative regarding Plaintiff’s alleged insubordination. (Id. ¶ 82.) Plaintiff

alleges that Sira was ultimately forced to withdraw her accusations of insubordination. (Id. ¶
83.)
Plaintiff filed a complaint with the Rockland County Human Rights Commission and the
U.S. Equal Employment Opportunity Commission on December 12, 2019, alleging age, race,
and national origin discrimination, as well as retaliation. (Id. ¶ 84.)
Plaintiff also alleges that in March 2020, the School District did not initially provide him
with a laptop to enable him to work from home, causing him to fall behind in work. (See id. ¶¶
86–97.) Plaintiff further alleges that in September 2020, Defendants denied him medical
accommodation for laser surgery for retinal detachment by refusing to reassign one of his
projects to other employees. (Id. ¶¶ 99–103.) Finally, Plaintiff alleges that when he sought to

take an FMLA leave of absence due to anxiety and depression caused by Defendants’
discrimination and retaliation, Defendants sent him “harassing emails” by asking him to send
back any school district records that he had at home and provide computer passwords, even
though Plaintiff alleges that he did not have such records or recall any passwords. (Id. ¶¶ 106–
09.)
Plaintiff alleges six (6) causes of action: (1) age and race discrimination, hostile work
environment, and retaliation under § 1983 against all Defendants; (2) race discrimination, prior
alienage discrimination, hostile work environment, and retaliation under § 1981 against the
Individual Defendants; (3) race discrimination, national origin discrimination, hostile work
environment, and retaliation under Title VII against the School District; (4) age discrimination,
hostile work environment, and retaliation under the ADEA against the School District; (5)
FMLA interference against all Defendants; and (6) violations of the Rehabilitation Act against
the School District. (See id. ¶¶ 122–33.) Plaintiff alleges that as a result of Defendant’s actions,

he has suffered “extreme anxiety and depression” and “humiliation and extreme mental
anguish,” which has resulted in Plaintiff seeking treatment from mental health professionals. (Id.
¶¶ 113–17.) Plaintiff seeks an award of damages for pain and suffering and for past and future
loss of compensation. (Id. Part, VI(a)–(e).) He also seeks punitive and/or liquidated damages, as
well as costs and reasonable attorney’s fees. (Id.)
B. Procedural History
Plaintiff filed his Complaint on December 24, 2020. (Dkt. No. 1.) On February 11,
2021, the Parties agreed via stipulation to extend the time for Defendants to answer until March
1, 2021. (Dkt. No. 8.) On March 2, 2021, Defendants filed a pre-motion letter outlining the
grounds for their anticipated Motion To Dismiss. (Dkt. No. 9.) On March 19, 2021, Plaintiff

filed a letter seeking leave to file an Amended Complaint, (Dkt. No. 11), which the Court granted
the same day, (Dkt. No. 12). Plaintiff filed his Amended Complaint on April 2, 2021. (Dkt. No.
13.) On April 16, 2021, Defendants filed another pre-motion letter outlining the grounds for
their anticipated Motion To Dismiss. (Dkt. No. 14.) Plaintiff did not file a response. (See Dkt.
No. 15.)
On May 27, 2021, Defendants filed their Motion To Dismiss and accompanying papers.
(Dkt. Nos. 16–19.) Defendants wrote to the Court on June 29, notifying the Court that Plaintiff
had not yet filed an Opposition. (Dkt. No. 20.) The Court directed Plaintiff to respond by July 2,
2021, or it would deem the Motion to be fully submitted. (Dkt. No. 21.) After seeking an
extension, (see Dkt. No. 22), on July 5, 2021, Plaintiff submitted his Opposition, (Dkt. No. 23).
After requesting an extension, (see Dkt. No. 25), Defendants filed their Reply and accompanying
papers on July 22, 2021, (Dkt. Nos. 26–27.)
II. Discussion

A. Standard of Review
The Supreme Court has held that although a complaint “does not need detailed factual
allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(alteration and quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks omitted). “Nor does a complaint suffice if it
tenders naked assertions devoid of further factual enhancement.” Id. (alteration and quotation
marks omitted). Instead, a complaint’s “[f]actual allegations must be enough to raise a right to

relief above the speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been
stated adequately, it may be supported by showing any set of facts consistent with the allegations
in the complaint,” id. at 563, and a plaintiff must allege “only enough facts to state a claim to
relief that is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his or her] claims
across the line from conceivable to plausible, the[] complaint must be dismissed,” id.; see also
Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a plausible claim for relief will .
. . be a context-specific task that requires the reviewing court to draw on its judicial experience
and common sense. But where the well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that
the pleader is entitled to relief.’” (citation omitted) (second alteration in original) (quoting Fed.
R. Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the
hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery
for a plaintiff armed with nothing more than conclusions.”).

“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), and
“draw[] all reasonable inferences in favor of the plaintiff,” Daniel v. T & M Prot. Res., Inc., 992
F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145
(2d Cir. 2012)). Additionally, as discussed above, “[i]n adjudicating a Rule 12(b)(6) motion, a
district court must confine its consideration to facts stated on the face of the complaint, in
documents appended to the complaint or incorporated in the complaint by reference, and to
matters of which judicial notice may be taken.” Leonard F., 199 F.3d at 107 (quotation marks
omitted); see also Wang v. Palmisano, 157 F. Supp. 3d 306, 317 (S.D.N.Y. 2016) (same).
B. Analysis

1. Timeliness of Claims
As an initial matter, Defendants argue that certain of Plaintiff’s claims are time barred.
Defendants first argue that Plaintiff’s Title VII and ADEA claims regarding events prior to
February 15, 2019 are time-barred. (Defs.’ Mem. in Supp. of Mot. to Dismiss (“Defs.’ Mem”) at
5 (Dkt. No. 19).) The Court agrees, except with respect to Plaintiff’s hostile environment claims,
discussed infra. “As a precondition to bringing suit [under Title VII or the ADEA] in federal
court, a plaintiff must first pursue available administrative remedies and file a timely complaint
with the [Equal Employment Opportunity Commission (“EEOC”)] within 300 days of an
unlawful employment practice.” Yu v. City of New York, 792 F. App’x 117, 118 (2d Cir. 2020);
see also Impellizzeri v. New York, No. 17-CV-230, 2021 WL 4844275, at *2 (N.D.N.Y. Oct. 18,
2021) (“A plaintiff who wishes to pursue a federal employment discrimination suit under Title
VII must file a charge with the EEOC within 300 days of the alleged unlawful employment
practice or challenged discriminatory act.”); Paneccasio v. Unisource Worldwide, Inc., 532 F.3d

101, 112 (2d Cir. 2008) (“Under the ADEA, [the plaintiff] was required to file a charge with the
EEOC within 300 days of the allegedly unlawful employment practice.”). Plaintiff filed his
EEOC Charge on December 12, 2019. (Am. Compl. ¶ 84.) Thus, Plaintiff’s non-hostile work
environment claims under Title VII and the ADEA pre-dating February 15, 2019—which is 300
days before December 12, 2019—are dismissed as untimely. See Impellizzeri, 2021 WL
4844275, at *4 (dismissing the plaintiff’s Title VII claims based on events occurring prior to the
300-day deadline as time-barred); Brooking v. New York State Dep’t of Tax’n & Fin., No. 15-
CV-510, 2016 WL 3661409, at *6 (N.D.N.Y. July 5, 2016) (same).
Defendants next argue that Plaintiff’s § 1983 claims regarding events prior to December
24, 2017 are also time barred, given § 1983’s three-year statute of limitations. (Defs.’ Mem. at

5.) Defendants are correct that claims under § 1983 are subject to a three-year statute of
limitations. See Bermudez v. City of New York, 783 F. Supp. 2d 560, 573 (S.D.N.Y. 2011).
There is, however, an exception for “continuing violations.” Under the continuing-violation
doctrine, “if a plaintiff has experienced a continuous practice and policy of discrimination, . . .
the commencement of the statute of limitations period may be delayed until the last
discriminatory act in furtherance of it.” Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir.
2001). “To bring a claim within the continuing violation exception, a plaintiff must at the very
least allege that one act of discrimination in furtherance of the ongoing policy occurred within
the limitations period.” Patterson v. County of Oneida, 375 F.3d 206, 220 (2d Cir. 2004); see
also Coleman v. B.G. Sulzle, Inc., 402 F. Supp. 2d 403, 412 (N.D.N.Y. 2005) (noting “the
Second Circuit’s ‘broad view of the application of the continuing violation doctrine to statutory
remedies other than Title VII [,]’ such as section 1983” (quoting Oteri-Harkins v. City of New
York, No. 97-CV-2309, 1998 WL 817689, at *6 (E.D.N.Y. Feb. 5, 1998)).

In Isbell v. City of New York, 316 F. Supp. 3d 571, 586 (S.D.N.Y. 2018), the court found
that the plaintiff “plausibly present[ed] a continuous policy or practice of discriminatory
treatment and retaliatory conduct” where the plaintiff alleged both a general pattern of
discriminatory conduct, as well as a few discrete events which occurred within the limitations
period. Id. Here, similarly, “[w]ith respect to Plaintiffs’ discrimination and retaliation claims,
Plaintiff[], for the most part, do[es] not provide precise dates for the alleged mistreatment, and
instead attempt[s] to establish a pattern of ongoing conduct by referring to [Defendants’]
practices and consistent behavior.” Id. For example, Plaintiff alleges that Defendants “exhibited
a pattern of email abuse, shrill disagreements, and harassment concerning Plaintiff’s work
purview.” (Am. Compl. ¶ 85.) Plaintiff also alleges that Sira exhibited “a pattern . . . of

intentionally accusing Plaintiff of failing to do tasks that she knew . . . he had already performed,
or in other instances, of falsely accusing Plaintiff of failing to do tasks that she knew. . . were not
within Plaintiff’s work purview.” (Id. ¶ 77.) In addition, Plaintiff also alleges acts of
discrimination and retaliation within the limitations period. For example, Plaintiff alleges that in
late April 2019, after the confrontation between Plaintiff and Senno regarding accounting
practices, Plaintiff received a negative counseling memo. (See id. ¶ 63.) As another example,
Plaintiff alleges that in March 2020, after Defendants made the decision that “all essential staff
work would be done from employee’s homes,” Defendants did not provide Plaintiff with a laptop
to work from home. (See id. ¶¶ 86–88.) Accordingly, the Court finds that Plaintiff’s § 1983
claims fall under the continuing violation exception and are not time barred. See Sunshine v.
Long Island Univ., 862 F. Supp. 26, 29 (E.D.N.Y. 1994) (finding continuing violation where the
plaintiff “alleged both a series of related acts and a continuing policy of discrimination”).
Plaintiff next argues that his hostile environment claims, brought under § 1981, § 1983,

Title VII, and the ADEA, are not time-barred. (Pls.’ Mem. in Opp’n to Defs.’ Mot. To Dismiss
(“Pl.’s Opp’n”) at 2 n.1 (Dkt. No. 23).) The Court agrees. In National Railroad Passenger
Corp. v. Morgan, 536 U.S. 101, 122 (2002), “the Supreme Court explained that ‘a hostile work
environment claim . . . will not be time barred so long as all acts which constitute the claim are
part of the same unlawful employment practice and at least one act falls within the time period.’”
Bermudez, 783 F. Supp. 2d at 582. Isbell is instructive here:
[The] [p]laintiffs’ claims premised on a hostile work environment are also not time-
barred. Because such claims generally allege repeated conduct and not, as with acts of
discrimination, conduct that is a discrete unlawful act, a hostile work environment claim
. . . will not be time barred so long as all acts which constitute the claim are part of the
same unlawful employment practice and at least one act falls within the time period. . . .
[The] [p]laintiffs allege numerous actions that are part of the alleged unlawful
employment practice that occurred within the limitations period. . . . As a result,
Plaintiffs’ hostile work environment claims, whether brought under § 1983 [or] § 1981
. . . are timely.

Isbell, 316 F. Supp. 3d at 586 (quotations marks and citations omitted). Accordingly, Plaintiff’s
hostile environment claims are timely.
2. Discrimination Claims
To state a claim for discrimination under § 1983, a plaintiff must allege two elements: (1)
“the violation of a right secured by the Constitution and laws of the United States,” and (2) “the
alleged deprivation was committed by a person acting under color of state law.” Feingold v.
New York, 366 F.3d 138, 159 (2d Cir. 2004) (quoting West v. Atkins, 487 U.S. 42, 48 (1988))
(quotation marks omitted). A state employee acting in an official capacity is acting “under color
of state law.” Id. Plaintiff alleges, and Defendants do not appear to dispute, that Defendants,
who are employees of the School District, acted under “color of state law.” The Court agrees.
See id. at 89 (finding that the defendants’ actions were “under color of state law” where the
defendants were public school employees who had input into personnel decisions such as hiring,

firing, and discipline of employees).
“Once the color of law requirement is met, a plaintiff's equal protection claim parallels
his Title VII claim, except that a § 1983 claim, unlike a Title VII claim, can be brought against
an individual.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87–88 (2d Cir. 2015)
(quotation marks omitted). “Thus, for a § 1983 discrimination claim to survive . . . a motion to
dismiss, a plaintiff must plausibly allege a claim under the same standards applicable to a Title
VII claim—and that the adverse action was taken by someone acting under color of state law.”
Id.
Claims for discrimination under Title VII, the ADEA, and § 1981 are analyzed under the
familiar burden-shifting analysis established by the Supreme Court in McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973). See Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d
Cir. 2010) (evaluating ADEA claim under the McDonnell Douglas framework); Choudhury v.
Polytechnic Inst. of New York, 735 F.2d 38, 44 (2d Cir. 1984) (same for § 1981). “Under
McDonnell Douglas, [the] plaintiff bears the initial burden of proving by a preponderance of the
evidence a prima facie case of discrimination.” Heyman v. Queens Vill. Comm. for Mental
Health for Jamaica Cmty. Adolescent Program, Inc., 198 F.3d 68, 72 (2d Cir. 1999) (citing
Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994)). “The burden of production
then shifts to [the] defendant[ ], who must offer through the introduction of admissible evidence
a non-discriminatory reason for [its] actions that, if believed by the trier of fact, would support a
finding that unlawful discrimination was not a cause of the disputed employment action.” Id. If
the defendant meets this burden, the plaintiff “then must show that the proffered reason was
merely a pretext for discrimination, which may be demonstrated either by the presentation of
additional evidence showing that the employer’s proffered explanation is unworthy of credence,

or by reliance on the evidence comprising the prima facie case, without more.” Id. (quotation
marks omitted).
To establish a prima facie case of discrimination, a plaintiff must show that “(1) []he is a
member of a protected class; (2) []he is qualified for h[is] position; (3) []he suffered an adverse
employment action; and (4) the circumstances give rise to an inference of discrimination.”
Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (citing McDonnell Douglas, 411
U.S. at 802). As it concerns the fourth prong, “a plaintiff need only give plausible support to
a minimal inference of discriminatory motivation.” Vega, 801 F.3d at 84 (quotation marks
omitted) (emphasis added). Nevertheless, “a discrimination complaint . . . must [still] at a
minimum assert nonconclusory factual matter sufficient to nudge its claims across the line from

conceivable to plausible to proceed.” EEOC v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 254 (2d
Cir. 2014) (alterations and quotation marks omitted).
It is important to note, “a plaintiff is not required to plead a prima facie case
under McDonnell Douglas, at least as the test was originally formulated, to defeat a motion to
dismiss.” Vega, 801 F.3d at 84 (quotation marks omitted); see also O’Toole v. Cty. of Orange,
255 F. Supp. 3d 433, 437–38 (S.D.N.Y. 2017) (same); Munoz-Nagel v. Guess, Inc., No. 12-CV-
1312, 2013 WL 6068597, at *1 (S.D.N.Y. Nov. 15, 2013) (A “[p]laintiff need not make out a
prima facie case at the pleading stage, and may withstand a motion to dismiss by providing a
short and plain statement of the claim that shows that [ ]he is entitled to relief and that gives [the
defendant] fair notice of the age discrimination claim and the grounds upon which it rests.”
(italics omitted)). However, “the elements of a prima facie case may be used as a prism to shed
light upon the plausibility of the claim.” Littlejohn v. City of N.Y., 795 F.3d 297, 311 n. 9 (2d
Cir. 2015) (quotation marks omitted). Indeed, “[a]lthough [the pl]aintiff need not allege facts

sufficient to make out a prima facie case for any of h[is] discrimination claims in h[is]
[c]omplaint, the elements thereof provide an outline of what is necessary to render h[is] claims
for relief plausible.” Sommersett v. City of New York, No. 09-CV-5916, 2011 WL 2565301, at
*5 (S.D.N.Y. June 28, 2011); see also Ndremizara v. Swiss Re Am. Holding Corp., 93 F. Supp.
3d 301, 312 (S.D.N.Y. 2015) (same) (collecting cases); Barker v. UBS AG, No. 09-CV-2084,
2011 WL 283993, at *5 (D.Conn. Jan. 26, 2011) (“[E]ven though establishing a prima facie case
of age discrimination is not necessary to survive a motion to dismiss, courts do use the standard
as a guidepost when determining whether the plaintiff has provided the defendant with fair notice
of her claim, as required by the Federal Rules of Civil Procedure.”).
Here, Defendants appear to concede that Plaintiff meets the first two elements of a prima

facie case. (Defs.’ Mem. at 6–10.) Defendants argue, however, that Plaintiff has not plausibly
established the third and fourth elements: that he suffered an adverse employment action, and
that the circumstances give rise to an inference of discrimination. (Id.) “To constitute an
adverse employment action in the context of a discrimination claim, an action must cause ‘a
materially adverse change in the terms and conditions of employment.’” Henry v. NYC Health &
Hosp. Corp., 18 F. Supp. 3d 396, 404 (S.D.N.Y. 2014) (quoting Mathirampuzha v. Potter, 548
F.3d 70, 78 (2d Cir. 2008)). “To be materially adverse, a change in working conditions must be
more disruptive than a mere inconvenience or an alteration of job responsibilities. Examples of
such a change include termination of employment, a demotion evidenced by a decrease in wage
or salary, a less distinguished title, a material loss of benefits, significantly diminished material
responsibilities, or other indices unique to a particular situation.’” Id. (quoting Mathirampuzha,
548 F.3d at 78).
Liberally construed, Plaintiff alleges that the counseling memo is an adverse employment

action. (Pls.’ Opp’n at 19–20.) However, the Second Circuit has held that, “in the context of the
issuance of a ‘counseling memo,’ that criticism of an employee (which is part of training and
necessary to allow employees to develop, improve and avoid discipline) is not an adverse
employment action.” Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 570 (2d
Cir. 2011). “Even if the information in the counseling memoranda was false or misleading, this
does not constitute an adverse employment action.” Ziyan Shi v. New York Dep’t of State, Div.
of Licensing Servs., 393 F. Supp. 3d 329, 338 (S.D.N.Y. 2019) (citing Cody v. Cty. of Nassau,
345 Fed. App’x 717, 719 (2d Cir. 2009) (summary order); cf. White v. Dep’t of Correctional
Servs., 814 F. Supp. 2d 374, 389 (S.D.N.Y. 2011) (finding that a counseling memorandum could
constitute an adverse action in combination with a notice of discipline). Therefore, to the extent

that Plaintiff claims that the counseling memo constitutes an adverse employment action, (see
Am. Compl. ¶ 63), it is insufficient on its own.
Plaintiff also argues that Sira’s refusal to approve Plaintiff’s requested overtime pay is an
adverse employment action, (see Am. Compl. ¶ 47), and district courts have found that to be the
case. See Roache v. Long Island R.R., 487 F. Supp. 3d 154, 171 (E.D.N.Y. 2020) (“[T]he denial
of opportunity to work overtime or earn greater responsibility may be considered sufficiently
adverse to support a discrimination claim.”); DeLuca v. Sirius XM Radio, Inc., No. 12-CV-8239,
2017 WL 3671038, at *13 (S.D.N.Y. Aug. 7, 2017) (change in workplace responsibilities or
denial of opportunities that results in revocation or denial of overtime eligibility may have an
adverse impact on employment); Rivers v. N.Y.C. Hous. Auth., 176 F. Supp. 3d 229, 252
(E.D.N.Y. 2016) (“A deprivation of the opportunity to earn overtime can be an adverse
employment action.”). But see Henry, 18 F. Supp. 3d at 405–06 (finding that the plaintiff's
“[v]ague” and “conclusory allegation that she was denied overtime, without more” was

insufficient to plead an adverse employment action). Accordingly, Plaintiff has sufficiently pled
an adverse employment action sufficient to survive a motion to dismiss.
As for the fourth element, “[a]n inference of discriminatory motivation may be supported
directly, such as by statements that an adverse employment action was related to plaintiff's
protected class, . . . or indirectly by an allegation that plaintiff was treated different from and less
favorably than similarly situated peers.” Roache, 487 F. Supp. 3d at 172 (citing Haskell v.
Kaman Corp., 743 F.2d 113, 119 (2d Cir. 1984) and Marquez v. Starrett City Assocs., 406 F.
Supp. 3d 197, 208–09 (E.D.N.Y. 2017)). “Clearing this low pleading threshold ‘entitles the
plaintiff to the temporary presumption of McDonnell Douglas until the defendant furnishes its
asserted reasons for its action against the plaintiff,’” id. (quoting Doe v. Columbia Univ., 831

F.3d 46, 55 (2d Cir. 2016)), “the evaluation of which is more appropriately considered at
summary judgment or at trial,” id. (citing Levy v. Legal Aid Soc’y, 408 F. Supp. 3d 209, 216
(E.D.N.Y. 2019)). Alternatively, “[the] plaintiff also may create a ‘mosaic’ of intentional
discrimination by identifying ‘bits and pieces of evidence’ that together give rise to an inference
of discrimination.” Stinnett v. Delta Air Lines, Inc., 278 F. Supp. 3d 599, 611–12 (E.D.N.Y.
2017) (quoting Vega, 801 F.3d at 87).
Here, Plaintiff does not offer any nonconclusory facts supporting the conclusion that
Defendants discriminated against him because of his race, age, or national origin. For example,
Plaintiff alleges that “unlike everybody else in the Defendants’ business office—all of whom
were white, American-born, and mostly younger than Plaintiff—that he was not being paid for
the considerable overtime that he had been performing.” (Am. Compl. ¶ 47.) Significantly,
Plaintiff does not identify a single comparator, other than referring to his Caucasian, American-
born co-workers in the aggregate. “When relying on evidence of such disparate treatment, a

plaintiff must show []he was ‘similarly situated in all material respects to the individuals with
whom she seeks to compare herself.’” Palmer v. Shchegol, 406 F. Supp. 3d 224, 232 (E.D.N.Y.
2016) (quoting Mandell v. County of Suffolk & John Gallagher, 316 F.3d 368, 379 (2d Cir.
2003)); see id. (dismissing discrimination claim even where the plaintiff identified five
comparators, because her complaint and opposition were “devoid of any facts to suggest she was
discriminated against due to her national origin or skin tone.”). In Roache, the court found that
the plaintiff “plausibly contends that he was demoted and was denied opportunities to work
overtime afforded not merely to similarly situated, but to less qualified, colleagues. Such
allegations, albeit suffering from a lack of specificity, thus placing them on the razor’s edge of
plausibility, are sufficient to create an inference of discrimination.” 487 F. Supp. 3d at 172.

Here, unlike in Roache, Plaintiff has not identified any of his other colleagues, much less
explained how they are less qualified than Plaintiff. Plaintiff’s claims can similarly be
distinguished from Johnson v. Long Island Univ., where the court found that the plaintiff “stated
a plausible inference of discrimination based on disparate treatment with respect to the claims
that [the defendant] treated him differently by denying him the opportunity to earn additional
compensation and by assigning him significantly more work than his fellow hall directors, but
just barely.” 58 F. Supp. 3d 211, 224 (E.D.N.Y. 2014). Here, unlike in Johnson, Plaintiff does
not allege that he was denied overtime despite being assigned more work. And given that the
plaintiff’s claims in Johnson “barely” passed muster, id., Plaintiff’s claims regarding overtime do
not cross the line of plausibility. See also Ariz v. Metro. Transportation Auth., No. 17-CV-4491,
2019 WL 2613476, at *4 (S.D.N.Y. June 26, 2019) (finding that the plaintiff’s “assorted
rejections for some overtime hours . . . ‘[does not] support[ ] a sufficient rational inference of
discrimination such that a reasonable jury could find in the plaintiff's favor.’” (quoting Moy v.

Perez, 2016 WL 5239611, at *2 (S.D.N.Y. Sept. 21, 2016), aff’d, 712 Fed. App’x. 38 (2d Cir.
2017)). Plaintiff also alleges that Sira “mock[ed] Plaintiff’s accent by way of facial gestures and
shaking of her head, and claim[ed] to not understand him.” (Am. Compl. ¶ 53(a)). However,
Plaintiff does not specify how Sira’s alleged facial gestures or head shaking were connected to
his race, national origin, or race. This is not to suggest that mocking a person’s accent through
facial expressions or body language could never plausibly suggest discriminatory intent. The
Court recognizes that “there surely may be cases where comments about a person’s accent may
be probative of discriminatory intent, . . . but this is not such a case.” Thelusma v. New York City
Bd. of Educ., No. 02-CV-4446, 2006 WL 2620396, at *3 (E.D.N.Y. Sept. 13, 2006); see also
Manessis v. New York City Dept. of Transp., No. 02-CV-359, 2003 WL 289969, at *8 (S.D.N.Y.

Feb., 10, 2003) (“[I]t would be an inferential leap to infer that a comment about an employee's
accent suggests an underlying bias against persons of that national origin.”), aff’d, 86 Fed.
App’x. 464 (2d Cir. 2004). Similarly, it is not clear from the face of the Amended Complaint
that Sira pretended not to understand Plaintiff; it is equally plausible that in some circumstances,
she did not understand Plaintiff. And “[s]tanding alone . . . an employer’s reference to a[n]
[employee’s] language deficiencies or accent is not evidence of discriminatory animus.” Vidal v.
Metro-N. Commuter R. Co., No. 12-CV-248, 2014 WL 3868027, at *11 (D. Conn. Aug. 6,
2014).
Further, in reviewing the sufficiency of a complaint's allegations, a plaintiff's “feelings
and perceptions of being discriminated against are not evidence of discrimination.” Brodt v. City
of New York, 4 F. Supp. 3d 562, 568 (S.D.N.Y. 2014) (quoting Bickerstaff v. Vassar Coll., 196
F.3d 435, 456 (2d Cir. 1999) (alterations and quotation marks omitted)). Indeed, “without

sufficient facts, even the most sincerely held beliefs [of discrimination] do not comprise a
sufficient basis for withstanding a 12(b)(6) attack.” Williams v. Wellness Medical Care,
P.C., No. 11-CV-5566, 2013 WL 5420985, at *6 (S.D.N.Y. Sept. 27, 2013). Plaintiff therefore
“does nothing more than allege the familiar faulty syllogism: something bad happened to me at
work; I am (fill in the blank with one or more protected categories); therefore, it must have
happened because I am (fill in the blank with the applicable protected categor[ies]).” House v.
Wackenhut Servs., Inc., No. 10-CV-9476, 2012 WL 4017334, at * 1 (S.D.N.Y. Aug. 20, 2012);
see also Jackson v. Elmhurst Hosp. Ctr., No. 10-CV-5248, 2012 WL 868965, at *7 (E.D.N.Y.
Mar. 14, 2012) (dismissing discrimination claims where the plaintiff “offer[ed] virtually no
connection between any disability” and her leave time denial, her attempt to take a sick day, and

a warning issued by her employer for inappropriate behavior).
In sum, Plaintiff fails to plausibly allege discriminatory intent, and therefore, Plaintiff’s
discrimination claims cannot survive Defendants’ Motion.
3. Retaliation Claims
“As in discrimination claims, the elements of a retaliation claim based on an equal
protection violation under § 1983 mirror those under Title VII.” Vega, 801 F.3d at 91; see also
Kessler v. Westchester Cty. Dep't of Soc. Servs., 461 F.3d 199, 205 (2d Cir. 2006) (finding that
“the same standards and burdens apply to [retaliation] claims under both” Title VII and the
ADEA); Patterson, 375 F.3d at 225 (“Most of the core substantive standards that apply to claims
of discriminatory conduct in violation of Title VII are also applicable to claims of discrimination
in employment in violation of § 1981 or the Equal Protection Clause.”). “To make out a prima
facie case of retaliation, a plaintiff must demonstrate that ‘(1) []he engaged in protected activity;
(2) the employer was aware of that activity; (3) the employee suffered a materially adverse

action; and (4) there was a causal connection between the protected activity and that adverse
action.” Kelly v. Howard I. Shapiro & Assocs. Consulting Engineers, P.C., 716 F.3d 10, 14 (2d
Cir. 2013) (quoting Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir. 2012)).
First, an employee’s complaint may qualify as protected activity, satisfying the first
element of this test, “so long as the employee has a good faith, reasonable belief that the
underlying challenged actions of the employer violated the law.” Gregory v. Daly, 243 F.3d 687,
701 (2d Cir. 2001). A “protected activity” does not have to “rise to the level of a formal
complaint.” Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000). It includes activities
such as “making complaints to management,” id. (quoting Sumner v. United States Postal Serv.,
899 F.2d 203, 209 (2d Cir. 1990)), and may be in the form of an informal “objection voiced to

the employer.” Barcher v. New York Univ. Sch. of Law, 993 F. Supp. 177, 184 (S.D.N.Y. 1998),
aff’d, 172 F.3d 37 (2d Cir. 1999). Plaintiff alleges that he engaged in protected activity on two
occasions: first, in April 2018, by making “an oral, but formal complaint . . . that unlike
everybody else in the Defendants’ business office, all of whom were white, American-born, and
mostly younger than Plaintiff[,] that he was not being paid for the considerable overtime that he
had been performing,” (Am. Compl. ¶ 47), and second, in early April 2019 by making a formal
discrimination complaint after an incident which resulted in Seno allegedly pushing Plaintiff out
of his office, (see id. ¶¶ 55 –62).
Puzzlingly, Defendants use a First Amendment analysis to argue that Plaintiff did not
engage in protected activity. (See Defs.’ Mem. at 11–13.) Defendants seem to be confusing
“protected speech” and “protected activity.” Although plaintiffs can bring claims for First
Amendment retaliation, see Montero v. City of Yonkers, 890 F.3d 386, 393 (2d Cir. 2018),

Plaintiff does not allege that his First Amended rights were violated. Rather, Plaintiff alleges
that Defendants retaliated against him in violation of his rights under the Fourteenth
Amendment, not the First, (see Am. Compl. ¶ 123 (Defendants “violated the Equal Protection
and Due Process Clauses of the 14th Amendment of the United States Constitution as made
actionable by 42 U.S.C. [§] 1983.”)). Thus, Defendants’ arguments miss the mark.
Many district courts have found that the plaintiffs engaged in protected activity when
they filed internal or external discrimination complaints against their employer. See, e.g.,
Gonzalez v. City of New York, 377 F. Supp. 3d 273, 290 (S.D.N.Y. 2019) (finding that the
plaintiff engaged in protected activity by filing an internal grievance complaining of racial
discrimination); Lewis v. Roosevelt Island Operating Corp., 246 F. Supp. 3d 979, 990–91

(S.D.N.Y. 2017) (finding that the plaintiff engaged in protected activity when he reported his
concerns about discriminatory conduct toward him and others); Friel v. Cty. of Nassau, 947 F.
Supp. 2d 239, 253 (E.D.N.Y. 2013) (finding that the plaintiff engaged in protected activity when
she “filed [an] EEOC charge complaining of gender discrimination”); Rodriguez v. Beechmont
Bus Serv., Inc., 173 F. Supp. 2d 139, 150 (S.D.N.Y. 2001) (finding that the plaintiff
“successfully allege[d] that he was engaged in a protected activity” when he “lodg[ed] . . .
several internal complaints regarding [the] defendants’ discriminatory conduct.”). As previously
mentioned, Plaintiff alleges that he made his informal oral complaint to Sira, Senno, and Baird,
(Am. Compl. ¶ 47), and his formal complaint to Baird, (id. ¶ 55). Plaintiff has thus adequately
alleged that he engaged in protected activity by making his two complaints.
Second, Defendants do not appear to dispute that they were aware of Plaintiff’s
complaints. Plaintiff has thus adequately alleged the second element.

Third, in the context of a retaliation claim, “an adverse employment action is any action that
‘could well dissuade a reasonable worker from making or supporting a charge of
discrimination.’” Vega, 801 F.3d at 90 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 57, (2006)). Plaintiff alleges that, as a result of the complaints he made, Defendants
placed a negative counseling memo in Plaintiff’s personnel file. (See Am. Compl. ¶ 63.)
However, like in the discrimination context, “[c]ounseling memoranda do not constitute adverse
employment actions in retaliation claims under Title VII . . . .” Verdi v. City of New York, 306 F.
Supp. 3d 532, 544 (S.D.N.Y. 2018) (citing Tepperwien, 663 F.3d at 570). “Further, Plaintiff
provides the Court with no reason to believe that the criticism was unwarranted or that the
criticism had any tangible job consequences.” Pacheco v. New York Presbyterian Hosp., 593 F.

Supp. 2d 599, 629 (S.D.N.Y. 2009). Rather, Plaintiff claims that the counseling memo “was
designed to dissuade Plaintiff from making other complaints and to build a paper-trail for his
eventual separation from service.” (Am. Compl. ¶ 65.) But Plaintiff cannot allege an adverse
employment action that has not yet happened. Indeed, Plaintiff is still employed by the School
District. (See Defs.’ Mem. at 1 (“Plaintiff is, and has been, an accountant for the [School]
District, for over 20 years” (citing Am. Compl. ¶1))). Thus, “[t]here is no evidence that [the
counseling memo] had any actual material, as opposed to a speculative, impact on [Plaintiff’s]
job.” Bowen-Hooks v. City of New York, 13 F. Supp. 3d 179, 214 (E.D.N.Y. 2014); see also
Stoddard v. Eastman Kodak Co., 309 Fed. App’x 475, 478–79 (2d Cir. 2009) (finding that a
“single memorandum criticizing [the plaintiff's] job performance,” did not constitute an adverse
employment action, since memorandum did not “result[ ] in any alteration of her working
conditions or job responsibilities.”).
Plaintiff also alleges other adverse employment actions, including Sira “mock[ing] Plaintiff’s

accent by way of facial gestures,” “having obligatory meetings” with Senno over “false inter-
personnel [sic] issues,” (Am. Compl. ¶ 53), having Sira accuse Plaintiff of either doing work he
had already done or asking him to do work that was not “within Plaintiff’s work purview,” (id. ¶
77), and Plaintiff not initially being provided with a laptop to work from home, (id. ¶¶ 87–92).
However, “Plaintiff's allegations describe petty slights and minor annoyances, and do not depict
adverse actions sufficient to support a viable retaliation claim.” Sosa v. New York City Dep't of
Educ., 368 F. Supp. 3d 489, 518 (E.D.N.Y. 2019) (quoting Collymore v. City of New York, No.
16-CV-8270, 2018 WL 3014093, at *9 (S.D.N.Y. June 14, 2018)). Indeed, courts have routinely
found similar allegations to be insufficient to support a finding of adverse employment actions.
See Blessing v. J.P. Morgan Chase & Co., 394 F. Supp. 2d 569, 577 (S.D.N.Y. 2005)

(employee's subjective dissatisfaction with employment action does not constitute evidence of
adverse employment action); Cramer v. Fedco Auto. Components Co., No. 01-CV-757, 2005
WL 839671 at *9, *11 (W.D.N.Y. Apr. 12, 2005) (That defendant “enforced break time and
phone usage policies in a discriminatory manner, refused to grant [plaintiff] time off on a few
occasions and made one sarcastic comment” did not constitute adverse employment actions
because “[s]uch minor inconveniences, absent some other negative result, are not, as a matter of
law, adverse employment actions.”); Pomilio v. Wachtell Lipton Rosen & Katz, No. 97-CV-
2230, 1999 WL 9843, at *8 (S.D.N.Y. Jan. 11, 1999) (“[The] plaintiff's allegations with respect
to any sarcastic comments, demeaning comments, insults, threats, and intimidation do not
constitute an adverse employment action” (quotation marks omitted)).
In sum, Plaintiff fails to allege an adverse employment action, and Plaintiff’s retaliation
claims are therefore dismissed.

4. Hostile Work Environment Claims
“A hostile work environment claim requires a showing [1] that the harassment was
‘sufficiently severe or pervasive to alter the conditions of the victim's employment and create an
abusive working environment,’ and [2] that a specific basis exists for imputing the objectionable
conduct to the employer.” Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (quoting Perry v.
Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)); Perkins v. United States Dep’t of the
Treasury, No. 18-CV-8911, 2022 WL 19772, at *15 (S.D.N.Y. Jan. 3, 2022) (same). This
standard applies to Plaintiff’s Title VII, § 1981, and § 1983 claims. See Cano v. SEIU Loc.
32BJ, No. 19-CV-8810, 2021 WL 4480274, at *5 (S.D.N.Y. Sept. 30, 2021) (“Hostile work
environment claims under Title VII [and] Section 1981 . . . are judged by the same standard.”);

Isbell, 316 F. Supp. 3d at 591 (analyzing § 1981 and § 1983 hostile environment claims under
the same standard). A plaintiff must also plausibly allege “that the hostile work environment
was caused by animus towards her as a result of [him] membership in a protected class.”
Bermudez, 783 F.Supp.2d at 573 (citation omitted). “It is ‘axiomatic that mistreatment at work,
whether through subjection to a hostile environment or through other means, is actionable . . .
only when it occurs because of an employee's protected characteristic,’ such as race or gender.”
Lloyd v. Holder, No. 11-CV-3154, 2013 WL 6667531, at *11 (S.D.N.Y. Dec. 17, 2013) (quoting
Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001)).
The Second Circuit has held that “[p]roving the existence of a hostile work environment
involves showing both ‘objective and subjective elements: the misconduct shown must be severe
or pervasive enough to create an objectively hostile or abusive work environment,’ and the
victim must also subjectively perceive that environment to be abusive.” Feingold, 366 F.3d at

150. “[I]ncidents must be more than ‘episodic; they must be sufficiently continuous and
concerted in order to be deemed pervasive.’” Alfano, 294 F.3d at 374 (quoting Perry, 115 F.3d
at 149). “Isolated acts, unless very serious, do not meet the threshold of severity or
pervasiveness.” Id. “Hostile work environment claims are meant to protect individuals from
abuse and trauma that is severe. They are not intended to promote or enforce civility, gentility or
even decency.” Isbell, 316 F. Supp. 3d at 591. “[E]xcessive criticism and rudeness do not
constitute a hostile work environment.” Ramirez v. Temin & Co., No. 20-CV-6258, 2021 WL
4392303, at *8 (S.D.N.Y. Sept. 24, 2021).
In Littlejohn, 795 F.3d at 321, the Second Circuit found that the plaintiff’s allegations
that the employer made negative statements about the plaintiff, was impatient and used harsh

tones with the plaintiff, distanced herself and declined to meet with the plaintiff, required the
plaintiff to recreate work, wrongfully reprimanded the plaintiff, increased the plaintiff's schedule,
and was sarcastic to the plaintiff, did not support a finding of a severe or pervasive hostile work
environment sufficient to survive a motion to dismiss. And in Isbell, 316 F. Supp. 3d at 591–92,
the court found that plaintiff failed to state a claim for hostile environment where the employer
allegedly refused to authorize overtime pay, criticized the plaintiff’s work, used a “harsh and
sarcastic tone,” conducted a corrective interview with the plaintiff, and disciplined the plaintiff
for inadequate work product.
Here, Plaintiff’s allegations are similar to those in Littlejohn and Isbell. For example,
Plaintiff alleges that he was denied overtime, (Am. Compl. ¶¶ 47–49); that Sira mocked
Plaintiff’s accent through “facial gestures and shaking of her head” and allegedly falsely claimed
not to understand Plaintiff, (id. ¶ 53(a)); that Sira accused Plaintiff of failing to do tasks that he

had already performed and accused Plaintiff of failing to do tasks that she knew were not “within
Plaintiff’s work purview,” (id. ¶ 77); that Plaintiff received a “negative counseling memo,” (id. ¶
63–64), and that Defendants did not initially provide him with a laptop to enable him to work
from home, (id. ¶¶ 86–97). Like in Littlejohn and Isbell these types of allegations are
insufficient to survive a motion to dismiss.
Similarly, Plaintiff’s contention that he was subjected to an unspecified “spate of micro-
aggressions,” (see Am. Compl. ¶ 51), is insufficient to plausibly allege a hostile work
environment claim. See Murray v. Dutchess Cty. Exec. Branch, No. 17-CV-9121, 2019 WL
4688602, at *5 (S.D.N.Y. Sept. 25, 2019) (dismissing plaintiff’s hostile work environment claim
despite his allegation that he suffered multiple, specified “micro-inequities”); Ariz, 2019 WL

2613476, at *6 (dismissing plaintiff’s hostile work environment claim despite his allegations that
he was subjected to unspecified micro-aggressions and two-race based comments made by a
coworker).
Even Plaintiff’s claim that Senno physically pushed him out of his office is insufficient to
support a claim for hostile work environment. As one court noted, “[c]ourts rarely find limited
incidents of physical violence without a sexual element to establish a hostile work environment.”
De La Pena, 953 F. Supp. 2d 393, 417 (E.D.N.Y. 2013), aff’d, 552 F. App'x 98 (2d Cir. 2014)
(quoting Gerald v. Locksley, 849 F. Supp. 2d 1190, 1234 (D.N.M. 2011)); see also Divers v.
Metropolitan Jewish Health Systems, No. 06-CV-6704, 2009 WL 103703, at *16 (E.D.N.Y. Jan.
14, 2009) (noting that the plaintiff's allegations of physical contact were not sufficient to support
a hostile work environment claim because “it was an isolated occurrence”), aff’d, 383 Fed.
App’x. 34 (2d Cir. 2010); Aina v. City of New York, No. 05-CV-7533, 2007 WL 401391, at *1,
*6 (S.D.N.Y. Feb. 6, 2007) (dismissing a hostile work environment claim after the court

concluded that the “isolated” incident, which involved a supervisor “slam[ing] the door in such a
violent manner that it almost hit [plaintiff's] knee” did not support a cause of action.); Ricks v.
Conde Nast Publications, Inc., 92 F. Supp. 2d 338, 348 (S.D.N.Y. 2000) (holding that an
allegation that a defendant hit the plaintiff on the shoulder and pushed her out of her office was
insufficiently severe to establish a hostile work environment claim), aff’d, 6 Fed. App’x. 74 (2d
Cir. 2001).
Finally, Plaintiff fails to establish causation—namely, that the conduct that Plaintiff
claims created a hostile environment was the result of his race, nationality, or age. Plaintiff
makes no allegations establishing a connection between the alleged hostile environment and his
protected characteristics. His allegations are wholly conclusory. The Second Circuit and district

courts within it have dismissed similar cases, where the plaintiff makes only conclusory
allegations of causation. See Lucio v. N.Y.C. Dep’t of Educ., 575 F. App’x 3, 5 (2d Cir. 2014)
(affirming dismissal of hostile work environment claims based on failure to plead facts
indicating causation); Sosa, 368 F. Supp. 3d at 516 (dismissing claim where the plaintiff failed to
make any “non-conclusory allegation[s] that suggest[ed] that the conduct that is the basis of the
hostile work environment was as a result of her race or skin color”); Salas v. N.Y.C. Dep't of
Investigation, 298 F. Supp. 3d 676, 684 (S.D.N.Y. 2018) (dismissing claim where the plaintiff
“has not alleged sufficient non-conclusory facts to support her hostile-work-environment claim
under Title VII.”); De La Pena, 953 F. Supp. 2d at 418 (dismissing hostile work environment
claims because the plaintiff “failed to plead that a hostile work environment was created and
existed because of his protected status, either race, color, or national origin” and failed to “plead
a [causal] connection between his protected status and the alleged hostile work environment”).
Accordingly, Plaintiff’s hostile work environment claims are dismissed.

5. Reasonable Accommodation Claim
“Under the Rehabilitation Act, recipients of federal funds must provide ‘reasonable
accommodations’ to qualified disabled individuals that permit such individuals meaningful
access to their programs and services.” Harris v. Mills, 478 F. Supp. 2d 544, 548 (S.D.N.Y.
2007), aff’d, 572 F.3d 66 (2d Cir. 2009) (citing Powell v. National Bd. of Med. Exam’rs, 364
F.3d 79, 85 (2d Cir. 2004)). “The majority of courts that have addressed the discrimination
claims of plaintiffs with moderate vision problems have held that those plaintiffs were neither
‘disabled’ within the meaning of the ADA nor ‘handicapped’ within the meaning of the
Rehabilitation Act.” Sweet v. Elec. Data Sys., Inc., No. 95-CV-3987, 1996 WL 204471, at *5
(S.D.N.Y. Apr. 26, 1996) (collecting cases); see also Stone v. City of Mount Vernon, 118 F.3d

92, 96–97 (2d Cir. 1997) (noting that the analysis of whether a plaintiff is disabled is identical
under the ADA and the Rehabilitation Act).
Plaintiff alleges that Defendants “failed to reasonably accommodate Plaintiff’s vision
disability” under the Rehabilitation Act, (Am. Compl. ¶ 133), after Defendants refused to
reassign one of Plaintiff’s projects when he was experiencing eye strain after he had laser
surgery due to “retina wear and tear” after a prior “retinal detachment surgery,” (id. at ¶ 99 –
100). However, Defendants argue that Plaintiff’s claim must be dismissed because he fails to
allege a disability. (Defs.’ Mem. at 19–20.) The Court agrees.
“The courts that have declined to find a plaintiff disabled have relied on the plaintiff's
ability to engage fully in most major life activities and have concluded on the facts particular to
each case that moderate vision impairment, although certainly an undesirable inconvenience,
does not substantially limit an individual's ability to see, to read, or to work.” Sweet, 1996 WL

204471, at *5 (finding that the plaintiff’s vision problems, which stemmed from his once-
detached retina, did not qualify as a disability under the ADA or Rehabilitation Act even where
the plaintiff could not “read or work on the computer for extended periods without a break,”
because “[v]ision problems, whether caused by faulty structure, overuse, or mistreatment of the
eyes, are commonplace”); see also Sherman v. Peters, 110 F. Supp. 2d 194, 200 (W.D.N.Y.
2000) (finding no disability under the Rehabilitation Act where the plaintiff, who lost vision in
one eye, experienced eye strain in the other eye); accord Meyers v. Bd. of Educ., No. 07-CV-
5058, 2010 WL 4387503, at *5–6 (D.N.J. Oct. 29, 2010) (finding that the plaintiff, who had a
detached retina, was not disabled within the meaning of the ADA).
Accordingly, the Court dismisses Plaintiff’s reasonable accommodation claim because

Plaintiff has failed to allege that he has a disability under the Rehabilitation Act.
6. FMLA Interference Claim
To establish a claim for FMLA interference, Plaintiff must establish that: (1) he is an
eligible employee under the FMLA; (2) defendants constitute an employer under the FMLA; (3)
he was entitled to leave under the FMLA; (4) he gave notice to defendants of his intention to take
leave; and (5) defendants denied him benefits to which he was entitled by the FMLA. See
Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 424 (2d Cir. 2016); see also Patel v. NYU
Langone Hosps., No. 20-112, 2021 WL 4852426, at *3 (2d Cir. Oct. 19, 2021) (applying same
five-factor test).
Plaintiff alleges that when he took FMLA leave, Defendants “sought to make it difficult
for him to do so and sought to make it difficult for him to quietly enjoy his leave.” (Am. Compl.
¶ 106.) In support Plaintiff cites two allegedly “harassing” emails Senno sent Plaintiff in the
beginning of his leave in October 2020. First, Senno emailed Plaintiff on October 2, 2020,

“explicitly and threateningly stating that he still wanted to speak with Plaintiff about the project
he had requested a reasonable accommodation on when he got back.” (Id. ¶ 107). Second,
Senno emailed Plaintiff on October 14, 2020, asking him if he “had any school district records at
his home, and if so, he would send a courier to pick up those records. In the same email he asked
for the passwords for certain computer files that he believed [P]laintiff had.” (Id. ¶ 108.).
However, “[P]laintiff's few documented work-related communications with [Senno] during h[is]
leave do[es] not rise to the level of FMLA interference as a matter of law.” Reilly v. Revlon,
Inc., 620 F. Supp. 2d 524, 537 (S.D.N.Y. 2009). Defendants concede elements one through four
of the test. (See Defs.’ Mem. at 17.) Defendants argue, however, that Plaintiff does not meet the
fifth element; that is, that Defendants did not deny him benefits to which he was entitled by the

FMLA. (Id. at 17–18.)
“Fielding occasional [communications] about one’s job while on leave is a professional
courtesy that does not abrogate or interfere with the exercise of an employee's FMLA rights.
When limited to the scope of passing on institutional knowledge to new staff, or providing
closure on completed assignments, employers do not violate the FMLA by making such
[communications].” Id. (dismissing FMLA interference claim in part where temporary
replacement called temporary replacement called once or twice to ask, ‘Just where things were in
the computer [and] general direction[s] on where to find certain things.’” (citation omitted)). See
also Museau v. Heart Share Hum. Servs. of New York, No. 12-CV-185, 2014 WL 1277006, at *5
(E.D.N.Y. Mar. 27, 2014) (“[T]o the extent [the defendant] occasionally called or emailed
Plaintiff to discuss [the company’s] operations while she was on leave, his contact does not rise
to the level of interference with Plaintiff's exercise of her rights under the FMLA.”).
The present case can be distinguished from Zahler v. Empire Merchants, LLC, No. 11-

CV-3163, 2012 WL 273698, at *9 (E.D.N.Y. Jan. 31, 2012), in which the court denied the
employer's motion to dismiss where the employer repeatedly called the employee during her
leave and “demanded that [she] use her computer to produce work product.” Id. Here, unlike in
Zaher, Plaintiff only alleges that Senno contacted him twice. In neither email did Senno ask
Plaintiff to produce work product while out on FMLA leave. In the first email, Senno asked
Plaintiff to speak to him about a project when he returned. (Am. Compl. ¶ 107.) And in the
second email, Senno asked for the sort of information sought by the employer in Reilly, 620 F.
Supp. 2d at 537.
Accordingly, Plaintiff fails to state a claim for FMLA interference.
7. Monell Claims

“To state a claim under [§ 1983], the plaintiff must show that a defendant, acting under
color of state law, deprived him of a federal constitutional or statutory right.” Sykes v. Bank of
America, 723 F.3d 399, 405–06 (2d Cir. 2013). However, “Congress did not intend
municipalities to be held liable [under § 1983] unless action pursuant to official municipal policy
of some nature caused a constitutional tort.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691
(1978). Thus, “to prevail on a claim against a municipality under [§] 1983 based on acts of a
public official, a plaintiff is required to prove: (1) actions taken under color of law; (2)
deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that an
official policy of the municipality caused the constitutional injury.” Roe v. City of Waterbury,
542 F.3d 31, 36 (2d Cir. 2008), cert. denied, 558 U.S. 933 (2009); see also Salvatierra v.
Connolly, No. 09-CV-3722, 2010 WL 5480756, at *10 (S.D.N.Y. Sept. 1, 2010) (dismissing a
claim against agencies where the plaintiff did not allege that any policy or custom caused the
deprivation of his rights), report and recommendation adopted, 2011 WL 9398 (S.D.N.Y. Jan. 3,

2011); Arnold v. Westchester County, No. 09-CV-3727, 2010 WL 3397375, at *9 (S.D.N.Y. Jan.
3, 2011) (dismissing a claim against the county because the complaint “[did] not allege the
existence of an unconstitutional custom or policy”), report and recommendation adopted sub
nom., Arnold v. Westchester Cnty. Dep’t of Corr., 2010 WL 3397372 (S.D.N.Y. Aug. 25, 2010).
The fifth element reflects the notion that “a municipality may not be held liable under §
1983 solely because it employs a tortfeasor.” Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown,
520 U.S. 397, 403 (1997); see also Newton v. City of New York, 566 F. Supp. 2d 256, 270
(S.D.N.Y. 2008) (“As subsequently reaffirmed and explained by the Supreme Court,
municipalities may only be held liable when the municipality itself deprives an individual of a
constitutional right.”). In other words, a municipality may not be liable under § 1983 “by

application of the doctrine of respondeat superior.” Pembaur v. City of Cincinnati, 475 U.S. 469,
478 (1986) (italics omitted); see also Vassallo v. Lando, 591 F. Supp. 2d 172, 201 (E.D.N.Y.
2008) (noting that “a municipal entity may only be held liable where the entity itself commits a
wrong”). Instead, there must be a “direct causal link between a municipal policy or custom and
the alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989); see
also City of St. Louis v. Praprotnik, 485 U.S. 112, 122 (1988) (“[G]overnments should be held
responsible when, and only when, their official policies cause their employees to violate another
person’s constitutional rights.”).
“In determining municipal liability, it is necessary to conduct a separate inquiry into
whether there exists a ‘policy’ or ‘custom.’” Davis v. City of New York, 228 F. Supp. 2d 327,
336 (S.D.N.Y. 2002), aff’d, 75 F. App’x 827 (2d Cir. 2003). Normally, “a custom or policy
cannot be shown by pointing to a single instance of unconstitutional conduct by a mere employee

of the [municipality].” Newton, 566 F. Supp. 2d at 271; see also City of Oklahoma City v. Tuttle,
471 U.S. 808, 823–24 (1985) (plurality opinion) (“Proof of a single incident of unconstitutional
activity is not sufficient to impose liability under Monell, unless proof of the incident includes
proof that it was caused by an existing, unconstitutional municipal policy, which policy can be
attributed to a municipal policymaker.”); Brogdon v. City of New Rochelle, 200 F. Supp. 2d 411,
427 (S.D.N.Y. 2002) (“A single incident by itself is generally insufficient to establish the
affirmative link between the municipal policy or custom and the alleged unconstitutional
violation.”).
A plaintiff may satisfy the “policy or custom” requirement by alleging one of the
following:

(1) a formal policy officially endorsed by the municipality; (2) actions taken by
government officials responsible for establishing the municipal policies that caused
the particular deprivation in question; (3) a practice so consistent and widespread
that, although not expressly authorized, constitutes a custom or usage of which a
supervising policy-maker must have been aware; or (4) a failure by policymakers
to provide adequate training or supervision to subordinates to such an extent that it
amounts to deliberate indifference to the rights of those who come into contact with
the municipal employees.

Brandon v. City of New York, 705 F. Supp. 2d 261, 276–77 (S.D.N.Y. 2010) (citations omitted);
see also Roe, 542 F.3d at 36–37 (describing the second category for establishing Monell
liability); Patterson, 375 F.3d at 226–27 (describing methods of establishing Monell liability).
Moreover, a plaintiff must also establish a causal link between the municipality’s policy, custom,
or practice and the alleged constitutional injury. See Tuttle, 471 U.S. at 824 n.8 (“The fact that a
municipal ‘policy’ might lead to ‘police misconduct’ is hardly sufficient to satisfy Monell’s
requirement that the particular policy be the ‘moving force’ behind a constitutional violation.
There must at least be an affirmative link between[, for example,] the training inadequacies
alleged, and the particular constitutional violation at issue.” (emphasis omitted)); Roe, 542 F.3d

at 37 (holding that “a plaintiff must demonstrate that, through its deliberate conduct, the
municipality was the ‘moving force’ behind the alleged injury” (quoting Brown, 520 U.S. at
404)); Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983) (“Absent a showing of a causal
link between an official policy or custom and the plaintiffs’ injury, Monell prohibits a finding of
liability against the [c]ity.”); Johnson v. City of New York, No. 06-CV-9426, 2011 WL 666161,
at *3 (S.D.N.Y. Feb. 15, 2011) (noting that after demonstrating the existence of a municipal
policy or custom, “a plaintiff must establish a causal connection—an affirmative link—between
the policy and the deprivation of his constitutional rights” (quotation marks omitted)).
Defendants argue that Plaintiff cannot establish Monell liability because Defendants are
not final policymakers. (Defs.’ Mem. at 22–23.) The Court agrees. New York law provides that

the Board of Education “shall have power, and it shall be its duty . . . [t]o establish such rules and
regulations concerning the order and discipline of the schools . . . as [it] may deem necessary to
secure the best educational results.” N.Y. Educ. Law § 1709; see also T.E. v. Pine Bush Cent.
Sch. Dist., 58 F. Supp. 3d 332, 373 (S.D.N.Y. 2014) (same). The Board of Education appoints
superintendents who are delegated with the powers of “supervision and direction of . . . assistant
and other superintendents, directors . . . janitors and other persons employed in the management
of the schools or the other educational activities of the district.” Weinstein v. Garden City Union
Free Sch. Dist., No. CV 11-2509, 2013 WL 5507153, at *17 (E.D.N.Y. Sept. 30, 2013) (quoting
N.Y. Educ. Law § 1711). “Thus, even the personnel decisions and actions of the Superintendent
constitute mere recommendations that must ultimately be adopted by the final policymaking
body, the Board of Education. . . . . Nowhere in the Education Law are assistant superintendents
or directors authorized with any specific authority.” Weinstein, 2013 WL 5507153, at *17
(citation omitted).

Indeed, “[e]ven assuming [Defendants’ alleged] discipline, evaluations, and harassing
behavior were final decisions, those acts did not set final municipal policy because [Defendants]
lacked policymaking authority under state law.” Agosto v. New York City Dep’t of Educ., 982
F.3d 86, 101 (2d Cir. 2020). “Put differently, these [School] District employees could not have
established the purported municipal policies that violated Plaintiff's constitutional rights, and
their [actions therefore] cannot amount to deliberate indifference to Plaintiff's rights.” Shands v.
Lakeland Cent. Sch. Dist., No. 15-CV-4260, 2018 WL 3315738, at *20 (S.D.N.Y. July 5,
2018), aff’d, 771 F. App'x 121 (2d Cir. 2019).
Accordingly, to the extent that Plaintiff attempts to allege Monell violations, those claims
are dismissed.

8. Qualified Immunity
Defendants argue that they are entitled to qualified immunity. (Defs.’ Mem. at 23–24.)
The Court will not opine on whether Defendants are entitled to qualified immunity, however,
because Plaintiff has not plausibly pled that he is entitled to relief. See Posr v. City of N.Y., No.
10-CV-2551, 2013 WL 2419142, at *10 n.8 (S.D.N.Y. June 4, 2013) (“Because [Defendants] did
not violate Plaintiff's [constitutional or statutory] rights, there is no need to consider if
[Defendants] [are] entitled to qualified immunity.”), aff’d sub nom. Posr v. Ueberbacher, 569
Fed. App’x. 32 (2d Cir. 2014).
III.Conclusion
For the reasons explained herein, the Court grants Defendants’ Motion To Dismiss.
Because this is the first adjudication of Plaintiff’s claims on the merits, Plaintiff’s claims are
dismissed without prejudice. If Plaintiff wishes to file a second amended complaint, Plaintiff

must do so within 30 days of the date of this Opinion & Order. Failure to properly and timely
amend will likely result in dismissal of the claims against Defendant with prejudice.
Given the passing of Plaintiff’s counsel, the Court will hold a status conference on April
27, 2022 at 10:00 am. The Clerk of Court is respectfully directed to terminate the pending
Motion, (Dkt. No. 16), and mail a copy of this Opinion & Order to Plaintiff at 9 Kwiecinski
Street, West Haverstraw, NY, 10993.
SO ORDERED.
DATED: March 22, 2022
White Plains, New York
____________________________________
KENNETH M. KARAS
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10339699. Public record. Not legal advice.