# Fellah v. City University of New York

> District Court, S.D. New York · September 30, 2022

URL: https://www.frixlaw.com/law-library/cases/10344965

## Case

- **Court:** District Court, S.D. New York
- **Decided:** September 30, 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/10344965

## How later opinions describe it (automated extraction)

- explaining that on a motion to dismiss pursuant to Rule 12(b)(6), the court must “assum[e] all facts alleged within the four corners of the complaint to be true, and draw[] all reasonable inferences in plaintiffs’ favor”
- rejecting argument that “a supervisor’s mere knowledge of his subordinate’s discriminatory purpose amounts to the supervisor’s violating the Constitution”
- holding that discrimination based on the plaintiff’s Muslim religion was not actionable under section 1981

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------------- X
:
TARIK FELLAH, :
:
Plaintiff, :
: 20 Civ. 6423 (JPC)
-v- :
: OPINION AND ORDER
CITY UNIVERSITY OF NEW YORK, HUNTER :
COLLEGE, JOSEPH FOELSCH, ROBERT LYONS, :
MICHELLE MILLER, and JOSE GUZMAN, :
:
Defendants. :
:
---------------------------------------------------------------------- X

JOHN P. CRONAN, United States District Judge:
Plaintiff Tarik Fellah brings employment discrimination claims against his former
employer, the City University of New York (“CUNY”), CUNY’s Hunter College, and several of
his supervisors, Joseph Foelsch, Robert Lyons, Michelle Miller, and Jose Guzman. Fellah faults
Defendants for their handling of the conduct of one of his coworkers, Daniel Cregan, who
subjected Fellah to racial, religious, and anti-immigrant harassment for several years culminating
in a brutal physical attack on February 27, 2019. Miller has moved to dismiss the seven claims
brought against her.
Miller’s motion is granted in part and denied in part. Because Fellah has failed to
adequately plead Miller’s personal involvement in discriminatory conduct or the requisite
discriminatory intent, his claims against Miller under 42 U.S.C. §§ 1981 and 1983 are dismissed.
His claim against Miller for aiding and abetting a hostile work environment under the New York
State Human Rights Law (the “NYSHRL”) fails for a similar reason. Fellah alleges that Miller
was a Peace Officer at CUNY, which does not qualify as an “employer” for purposes of the
NYSHRL. His hostile work environment claim against her under section 296(1)(h) of that statute
therefore cannot survive. Similarly, because Fellah has failed to plead that Miller was Cregan’s
supervisor, his negligent supervision and retention claim against Miller must be dismissed. Fellah
has adequately pleaded “employee” liability for a hostile work environment under section 8-

107(1)(a) of the New York City Human Rights Law (the “NYCHRL”), as well as aiding and
abetting a hostile work environment under the NYCHRL. The Court declines to determine prior
to discovery whether Miller’s conduct in this regard is more properly adjudicated under the aiding
and abetting or direct liability provision of the NYCHRL.
The hostile work environment claim against Miller under a direct liability theory pursuant
to NYSHRL section 296(1)(h) is dismissed with prejudice because a Peace Officer does not qualify
as an “employer” as a matter of New York human rights law. The other dismissals are without
prejudice to Fellah filing a Second Amended Complaint in the event he is able to cure the pleading
deficiencies discussed below.
I. Background

A. Facts1
CUNY operates higher educational programs in New York City, including Hunter College.
Am. Compl. ¶¶ 8-9. Fellah worked as a Campus Security Assistant with Hunter College’s
Department of Public Safety for approximately six years until Cregan’s assault on February 27,
2019. Id. ¶¶ 1, 7, 14. Starting in approximately 2016, Fellah was assigned to work as a security

1 The following facts, which are assumed true for purposes of this Opinion and Order, are
taken from the Amended Complaint. Dkt. 37 (“Am. Compl.”); see also Interpharm, Inc. v. Wells
Fargo Bank, Nat’l Ass’n, 655 F.3d 136, 141 (2d Cir. 2011) (explaining that on a motion to dismiss
pursuant to Rule 12(b)(6), the court must “assum[e] all facts alleged within the four corners of the
complaint to be true, and draw[] all reasonable inferences in plaintiffs’ favor”).
guard at Hunter College’s Voorhees Building, an annex located several miles from the main
college campus. Id. ¶¶ 16-17.
As Hunter College’s Director of Public Safety, Foelsch oversaw all public safety staff at
the college including Fellah. Id. ¶ 10. Lyons, who was one of Fellah’s senior supervisors, reported

to Folesch. Id. ¶ 11. Both Foelsch and Lyons had the power to hire and fire employees, establish
and pay their wages, maintain employment records, and receive, review, and remedy
discrimination complaints. Id. ¶¶ 10-11. Miller and Guzman, both CUNY Peace Officers, were
two of Fellah’s immediate supervisors, and would assign work duties, ensure Fellah and other
employees were performing their duties, and receive, review, and remedy discrimination
complaints. Id. ¶¶ 12-13.
At the Voorhees Building, Fellah worked with Cregan, a facilities maintenance engineer.
Id. ¶¶ 15, 17. Fellah alleges that unspecified Defendants had “received prior complaints about
Cregan’s violent, racist, bigoted, and anti-immigrant behavior,” and that “[a]s a result of these
prior incidents Cregan, who had previously worked on the main campus of Hunter College and at

Hunter College’s School of Social Work, was transferred to the isolated location at the Voorhees
building.” Id. ¶ 36. “From the first day” of them working together, Cregan harassed Fellah for
being Muslim. Id. ¶ 18. Cregan once tricked Fellah into eating pork, id., repeatedly commented
to Fellah that “Muslims are terrorists,” id. ¶ 19, told Fellah that he “only owns a gun because he
does not trust Muslims,” id., told Fellah that Islam is the “wrong” religion and that he should cease
practicing it, id. ¶ 20 (internal quotation marks omitted), and made comments to Fellah reflecting
“anti-immigrant beliefs,” id. ¶ 21. Fellah complained more than once about Cregan’s behavior to
his supervisors, including Miller and Guzman, who told Fellah to bring his complaints to Lyons.
Id. ¶ 22.
On July 6, 2017, Fellah and Cregan were working at the Voorhees Building with a CUNY
Peace Officer named Ajiokumbo Falade. Id. ¶ 24. When Fellah and Falade turned their cars on
several minutes prior to the end of their shifts, Cregan “became enraged” and removed the key
from Falade’s car. Id. Cregan screamed at Falade and called him obscenities before advancing

towards him and waving his finger in his face. Id. Falade told Cregan that if he had a problem he
should speak to Lyons, Falade’s supervisor. Id. ¶ 25. Cregan responded that he “didn’t ‘give a
fuck about Lieutenant Lyons’” and that he was “the boss of security at the Voorhees Building”
and so “Falade needed to get Cregan’s permission to do anything at the Voorhees Building.” Id.
¶ 26. When Fellah approached Falade and Cregan, Cregan started “screaming and cursing” at
Fellah and pointed his finger in Fellah’s face. Id. ¶ 27. As he left, Cregan told Falade and Fellah
to “watch what’s going to happen to you assholes[.]” Id. (internal quotation marks omitted).
Fellah and Falade reported this incident to Miller and Guzman. Id. ¶ 28. Miller said that
“she did not know what to do” and “shortly thereafter called [Fellah] and Falade back and advised
them to each send a written report of the incident to Foelsch.” Id. Other than offering this advice,

Miller and Guzman “took no other action.” Id.
Fellah did send an email to Foelsch, Lyons, and another public safety supervisor describing
the incident. Id. ¶ 29. A meeting with Fellah, Cregan, Cregan’s supervisor, one of Fellah’s
supervisors, and Falade followed. Id. ¶ 30.2 Fellah was told at this meeting to “try to get along
with everyone” and to “keep the workplace professional” while Cregan was not reprimanded. Id.
Fellah told all present at the meeting that he was not comfortable working with Cregan and
“explained Cregan’s recurring anti-Muslim and anti-immigrant comments,” before requesting a
transfer which was denied. Id. Despite the complaints made by Fellah, Falade, and others,

2 Fellah does not allege that Miller was present at this meeting. Am. Compl. ¶¶ 29-30.
Defendants failed to discipline or train Cregan, or otherwise take steps to protect Fellah from his
harassment, threats, and violence. Id. ¶ 36.
Falade was later transferred out of the Voorhees Building and no other Peace Office
replaced him, resulting in Fellah and Cregan working alone together. Id. ¶ 31. Cregan and Fellah

worked together until February 27, 2019, and “[e]very time they saw each other, Cregan made a
discriminatory and hateful comment about [Fellah]’s religion, race, national origin, ethnicity,
and/or status as an immigrant,” causing Fellah to “repeatedly beg[] for a transfer.” Id. ¶¶ 37-38.
On February 27, 2019, Fellah arrived at work a few minutes late. Id. ¶ 39. When Fellah
exited his car, Cregan began screaming at Fellah, advanced towards him, poked him in the chest,
and said “we need to end this now.” Id. (internal quotation marks omitted). After Fellah told
Cregan not to touch him, Cregan punched Fellah several times, knocking him to the ground. Id.
As Fellah lay on the ground, Cregan struck him multiple times in the head with a metal shovel,
knocking him unconscious. Id. ¶ 40. Cregan continued to strike Fellah after he lost consciousness.
Id. Cregan was arrested by New York City police officers while Fellah was taken to Bellevue

Hospital where he was treated for injuries to his head, neck, back, spine, shoulder, and hip. Id.
¶¶ 41-42.
B. Procedural History
Fellah received a right-to-sue letter from the U.S. Equal Employment Opportunity
Commission dated March 4, 2020. Am. Compl. ¶ 4. Fellah initiated this lawsuit in New York
Supreme Court, New York County, on May 26, 2020, and Defendants removed the action to this
Court on August 13, 2020. Dkt. 1; see Am. Compl. ¶ 6. Fellah filed an Amended Complaint on
February 7, 2021, alleging eight claims of discrimination, hostile work environment, and negligent
supervision and retention under federal, state, and New York City law. Id. ¶¶ 44-113. Fellah’s
First Cause of Action is against only CUNY and Hunter College, and alleges that those Defendants
maintained and subjected him to a hostile work environment in violation of Title VII. Id. ¶¶ 44-
54. Fellah brings his Second through Eighth Causes of Action against all Defendants, alleging:
(2) race discrimination in violation of 42 U.S.C. § 1981, id. ¶¶ 55-63; (3) race, ethnicity, national

origin, and religion discrimination in violation of 42 U.S.C. § 1983, id. ¶¶ 64-74; (4) hostile work
environment in violation of NYSHRL section 296, id. ¶¶ 75-83; (5) aiding and abetting a hostile
work environment in violation of NYSHRL section 296, id. ¶¶ 84-89; (6) negligent supervision
and retention, id. ¶¶ 90-100; (7) hostile work environment in violation of NYCHRL section 8-107,
id. ¶¶ 101-108; and (8) aiding and abetting a hostile work environment in violation of NYCHRL
section 8-107, id. ¶¶ 109-113.
On January 17, 2022, Miller moved to dismiss the seven causes of action against her for
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Dkt. 67. Miller primarily
argues that Fellah’s allegations are too conclusory, with her only alleged conduct being that she
advised him to complain to Hunter College’s Department of Public Safety management when he

brought issues concerning Cregan to her attention. Dkt. 68 at 2. No other Defendant has moved
to dismiss, and discovery is scheduled to close on January 3, 2023. Dkt. 82.3
II. Standard of Review
To survive a motion to dismiss, “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, 570 (2007)). A claim is

3 While CUNY asserted sovereign immunity as an affirmative defense in its Answer, see
Dkt. 52 ¶ 120, CUNY has generally participated in this case. Although a defendant’s sovereign
immunity implicates this Court’s subject matter jurisdiction, it is a jurisdictional defect that can be
waived. See Springfield Hosp., Inc. v. Guzman, 28 F. 4th 403, 415-16 (2d Cir. 2022).
plausible “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. 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 the Court must “accept[] as true the factual allegations in the complaint and

draw[] all inferences in the plaintiff’s favor,” Biro v. Conde Nast, 807 F.3d 541, 544 (2d Cir. 2015),
it need not “accept as true legal conclusions couched as factual allegations,” LaFaro v. N.Y.
Cardiothoracic Grp., PLLC, 570 F.3d 471, 475-76 (2d Cir. 2009).
III. Discussion
A. The Federal Claims: 42 U.S.C. §§ 1981 and 1983 Discrimination
Fellah’s Third Cause of Action alleges discrimination based on race, ethnicity, national
origin, and religion, in violation of 42 U.S.C. § 1983, Am. Compl. ¶¶ 64-74, and his Second Cause
of Action alleges discrimination based on race, in violation of 42 U.S.C. § 1981, id. ¶¶ 55-63.
Section 1983 states:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to
the party injured in an action at law.
42 U.S.C. § 1983. “Section 1983, through its application of the Equal Protection Clause of the
Fourteenth Amendment, protects public employees from various forms of discrimination,
including hostile work environment and disparate treatment on the basis of race.” Littlejohn v.
City of New York, 795 F.3d 297, 320 (2d Cir. 2015) (internal quotation marks and alterations
omitted). Section 1981 states, in relevant part, that “[a]ll persons within the jurisdiction of the
United States shall have the same right in every State and Territory . . . to the full and equal benefit
of all laws and proceedings for the security of persons and property as is enjoyed by white
citizens.” 42 U.S.C. § 1981(a).
The analyses under sections 1983 and 1981 are similar, and a plaintiff can establish a
hostile work environment claim under either section by showing 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 and abusive working environment.”

Littlejohn, 795 F.3d at 320-21 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). “This
standard has both objective and subjective components: the conduct complained of must be severe
or pervasive enough that a reasonable person would find it hostile or abusive, and the victim must
subjectively perceive the work environment to be abusive.” Id. at 321 (internal quotation marks
omitted). The conduct at issue “must be sufficiently continuous and concerted in order to be
deemed pervasive” and the court must “consider the totality of the circumstances, including the
frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee’s work performance.” Id. (internal quotation marks omitted).4 Additionally, for an
individual to be liable under section 1981 or section 1983, she must be “‘personally involved in

the alleged deprivation’” of rights, Littlejohn, 795 F.3d at 314 (quoting Back v. Hastings on
Hudson Union Free Sch. Dist., 365 F.3d 107, 127 (2d Cir. 2004)).
To plausibly plead a claim of employment discrimination under section 1983, a plaintiff
must “establish that the defendant’s discriminatory intent was a ‘but-for’ cause of the adverse
employment action or the hostile [work] environment.” Naumovski v. Norris, 934 F.3d 200, 213
(2d Cir. 2019). Ultimately, whether a particular defendant had discriminatory intent is governed
by the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792

4 Because Miller does not contest the existence of a hostile work environment caused by
Cregan, the Court assumes that Fellah has pleaded successfully one’s existence for the purposes
of this Opinion and Order.
(1973). But at the motion to dismiss stage, a plaintiff must only “alleg[e] facts that directly show
discrimination or facts that indirectly show discrimination by giving rise to a plausible inference
of discrimination.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015).
“The question is not whether a plaintiff is likely to prevail, but whether the well-pleaded factual

allegations plausibly give rise to an inference of unlawful discrimination, i.e., whether plaintiffs
allege enough to ‘nudge[] their claims across the line from conceivable to plausible.’” Id.
(alteration in original) (quoting Twombly, 550 U.S. at 570).
Fellah’s theory of Miller’s liability under section 1983 appears to be one of supervisory
liability. In essence, he alleges that Miller, as one of Fellah’s supervisors, condoned the hostile
work environment created by Cregan by failing to take appropriate measures upon receiving
Fellah’s complaints about Cregan’s discriminatory and threatening comments. See, e.g., Am.
Compl. ¶¶ 22, 28. In Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020), the Second Circuit
“h[eld] that after Iqbal, there is no special rule for supervisory liability” under section 1983. Id. at
618; see Iqbal, 556 U.S. at 677 (rejecting argument that “a supervisor’s mere knowledge of his
subordinate’s discriminatory purpose amounts to the supervisor’s violating the Constitution”).5

Instead, the Second Circuit emphasized that, just as with claims against any other defendant, “a

5 Prior to Tangreti, plaintiffs in this Circuit could rely on the following five categories of
evidence to establish liability for a supervisory defendant:
(1) the defendant participated directly in the alleged constitutional violation, (2) the
defendant, after being informed of the violation through a report or appeal, failed
to remedy the wrong, (3) the defendant created a policy or custom under which
unconstitutional practices occurred, or allowed the continuance of such a policy or
custom, (4) the defendant was grossly negligent in supervising subordinates who
committed the wrongful acts, or (5) the defendant exhibited deliberate
indifference . . . by failing to act on information indicating that unconstitutional acts
were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
plaintiff must plead and prove ‘that each Government-official defendant, through the official’s
own individual actions, has violated the Constitution.” Tangreti, 983 F.3d at 618 (quoting Iqbal,
556 U.S. at 676).
Fellah makes few allegations with respect to Miller. He claims that Miller had the ability

to assign work duties and remedy discrimination complaints, Am. Compl. ¶ 12; received Fellah’s
complaints “about Cregan’s discriminatory comments” “[o]n more than one occasion,” id. ¶ 22;
told Fellah only to complain to Lyons about those comments (which he did), id. ¶¶ 22-23; received
Fellah’s report about Cregan aggressively confronting Falade and then Fellah on or about July 6,
2017 after they started their personal cars before their shifts ended, id. ¶ 28; see also id. ¶¶ 24-27;
and advised Fellah to make a written report about that July 6, 2017 incident, id. ¶ 28. Although
Fellah levels other allegations about unspecified “Defendants” in general, see, e.g., id. ¶¶ 32, 36,
there are no other allegations specific to Miller and “lumping all the defendants together” with “no
factual basis to distinguish their conduct” is insufficient to state a claim, Atuahene v. City of
Hartford, 10 F. App’x 33, 34 (2d Cir. 2001).

Fellah’s allegations as to Miller fail to state a section 1983 claim. First, Fellah has not
pleaded Miller’s personal involvement in a hostile work environment because at most his
allegations establish that Miller failed to take sufficient action to remedy Fellah’s work situation,
and because they fail to allege that she did anything to actively create a hostile work environment
for Fellah. These allegations, without more, are insufficient to allege Miller’s personal
involvement under section 1983. Cf. Wilson v. Hanrahan, 804 F. App’x 58, 62 (2d Cir. 2020)
(holding that section 1983 claim for hostile work environment against the plaintiff’s supervisor
failed at summary judgment in part because it was unclear what discriminatory events had been
reported to the supervisor, and the supervisor’s own conduct was not sufficient to create a hostile
work environment despite multiple remarks from the supervisor); see also Quinones v. City of
Binghampton, No. 19 Civ. 1460 (GLS) (ML), 2022 WL 43764, at *5 (N.D.N.Y. Jan. 5, 2022)
(holding that the allegation that the defendant “failed to take any ameliorative action after receiving
notice of pervasive racism” was insufficient to demonstrate personal involvement (internal

quotation marks omitted)); Peck v. Cnty. of Onondaga, N.Y., No. 21 Civ. 651 (DNH), 2021 WL
3710546, at *10 (N.D.N.Y. Aug. 20, 2021) (holding that the failure to remedy discriminatory
conduct by others is insufficient to constitute personal involvement following Tangreti).
Second, even if Miller’s alleged actions constituted personal involvement on her part, the
Amended Complaint lacks factual allegations from which to infer that Miller was aware that Fellah
was experiencing a hostile work environment based on his race, ethnicity, nationality, or religion.
Fellah’s allegations that he made “more than one” complaint to Miller about “discriminatory
comments,” Am. Compl. ¶ 22, without any further details of what he conveyed to Miller, do not
establish that the conduct Miller knew of caused “changes in [Fellah’s] ‘terms and conditions of
employment’” since “offhand comments, and isolated incidents (unless extremely serious)” do not

constitute such a change. Harris v. NYC Hum. Res. Admin., No. 20 Civ. 2011 (JPC), 2021 WL
3855239, at *9 (S.D.N.Y. Aug. 27, 2021) (quoting Clark Cnty. Sch. Dist. v. Breeden, 532 U.S.
268, 271 (2001)). While the July 6, 2017 incident that Fellah reported to Miller, as alleged,
reflected troubling workplace behavior, it involved an escalating dispute between Cregan and
Falade, in which Fellah chose to intervene fearing that Cregan might assault Falade. Am. Compl.
¶¶ 24-27. More importantly, nothing in the Amended Complaint indicates that Cregan’s conduct
on July 6, 2017 was motivated by a protected characteristic or that Cregan made any discriminatory
comments during that day’s dispute. Rather, this dispute, as alleged, concerned Cregan’s negative
and aggressive reaction to employees starting their cars before the end of their shifts. Id. ¶ 24.
Thus, even assuming that Fellah conveyed to Miller all the details set forth in the Amended
Complaint regarding the July 6, 2017 incident, there is no reason to conclude that this incident
arose from any discriminatory conduct by Cregan that would be actionable under section 1983.
Without such allegations, Fellah has not alleged any reason to conclude that Miller possessed

knowledge that this incident contributed to a hostile work environment on the basis of a protected
characteristic.
In the absence of allegations that would allow for the inference of knowledge of such
circumstances on Miller’s part, it is impossible to conclude that Miller had any intent, let alone
discriminatory intent, to subject Fellah to a hostile work environment based on a protected
characteristic. Nor is it possible to conclude that Miller’s responses upon receiving Fellah’s
complaints—i.e., twice telling Fellah that he should report the incidents up the chain—were
insufficient.6 Fellah’s section 1983 claim against Miller fails for this reason as well.
As with a claim for denial of equal protection under section 1983, “discriminatory intent is
a necessary element of a § 1981 claim.” Hill v. Rayboy-Brauestein, 467 F. Supp. 2d 336, 368

(S.D.N.Y. 2006); see Patterson v. Cnty. of Oneida, 375 F.3d 206, 226 (2d Cir. 2004) (“[A] plaintiff
pursuing a claimed violation of § 1981 or denial of equal protection under § 1983 must show that

6 While in the Title VII context an employer has a “duty to take reasonable steps” to
eliminate even a “discriminatory atmosphere in the workplace” once she “ha[s] knowledge” of it,
Russell v. N.Y. Univ., 739 F. App’x 28, 31 (2d Cir. 2018) (internal quotation marks and alterations
omitted), it is unclear whether this theory of liability applies in the section 1983 context following
Naumovski and Tangreti, see Wilson, 804 F. App’x at 62 (requiring higher showing of personal
involvement for section 1983 claims). Additionally, even were that theory available, the actual
context of the atmosphere known to the employer is crucial in determining whether a duty is
triggered. See Eka v. Brookdale Hosp. Med. Ctr., 247 F. Supp. 3d 250, 269 (E.D.N.Y. 2017).
the discrimination was intentional.”). For the same reasons stated above, the Court dismisses
Fellah’s section 1981 claim against Miller.7
B. The New York State and New York City Human Rights Laws Claims
1. Fourth and Seventh Causes of Action: Hostile Work Environment Claims

Fellah’s Fourth Cause of Action brings a hostile work environment claim against Miller
under the NYSHRL, Am. Compl. ¶¶ 75-83, and his Seventh Cause of Action brings such a claim
under the NYCHRL, id. ¶¶ 101-108. Both New York State and New York City law prohibit
employment discrimination, including a hostile work environment, on the basis of race or national
origin.
Section 296(1)(h) of the NYSHRL now makes it
[A]n unlawful discriminatory practice . . . [f]or an employer, . . . to subject any
individual to harassment because of an individual’s race . . . [or] national
origin . . . regardless of whether such harassment would be considered severe or
pervasive . . . . Such harassment is an unlawful discriminatory practice when it
subjects an individual to inferior terms, conditions, or privileges of employment
because of the individual’s membership in one or more of these protected
categories.

7 Fellah’s section 1981 claim must be dismissed for the additional reason that he fails to
allege whether Miller was aware of any racially based comments or actions on the part of Cregan.
As discussed, the Amended Complaint alleges that Fellah complained to Miller about comments
by Cregan that reflected religious bias, and that he alerted her to Cregan’s July 6, 2017 actions
towards Falade and Fellah. Nothing in the Amended Complaint allows for the conclusion that
Cregan’s conduct on July 6, 2017 was racially motivated, let alone that Miller believed it to be so.
Therefore, Fellah’s section 1981 claim against Miller also fails since “[o]nly race discrimination
is cognizable under Section 1981.” Capek v. BNY Mellon, N.A., No. 15 Civ. 4155 (LTS) (AJP),
2016 WL 2993211, at *2 n.2 (S.D.N.Y. May 23, 2016); see also Ahmed v. Mid-Columbia Med.
Ctr., 673 F. Supp. 2d 1194, 1204 (D. Or. 2009) (holding that discrimination based on the plaintiff’s
Muslim religion was not actionable under section 1981).
NYSHRL § 296(1)(h).8 A corporate employee, even if she holds the title of manager or supervisor,
is not subject to suit for discrimination under the NYSHRL. See Patrowich v. Chem. Bank, 473
N.E.2d 11, 12 (N.Y. 1984) (per curiam); accord Doe v. Bloomberg L.P., 167 N.E.3d 454, 459
(N.Y. 2021) (“[A] corporate employee simply does not qualify as an ‘employer,’ regardless of the

employee’s position or relationship to the employer” under the NYSHRL.); id. (“Accordingly, we
held in Patrowich that the State HRL does not render employees liable as individual employers.”).
Miller, a CUNY Peace Officer, see Am. Compl. ¶ 12, was an employee of CUNY. Because there
is no allegation in the Amended Complaint to allow the conclusion that Miller was an “employer”
within the meaning the NYSHRL, nor is it conceivable how she could be one given her role as a
Peace Officer, Miller cannot have liability under section 296(1). See Stevenson v. N.Y. State Dep’t
of Corr. & Cmty. Supervision, No. 21 Civ. 355 (GWC), 2022 WL 179768, at *20 (W.D.N.Y. Jan.

8 Fellah’s Amended Complaint cites to section 296(1)(h) and the above statutory language.
Am. Compl. ¶ 76. Section 296(1)(h) came into law as a result of an amendment to the NYSHRL
that had the effect of eliminating any requirement that “harassing or discriminatory conduct be
‘severe or pervasive’ for it to be actionable and [adopted] instead a more protective standard that
prohibits conduct that results in ‘inferior terms, conditions or privileges of employment.’”
Maiurano v. Cantor Fitzgerald Secs., No. 19 Civ. 10042 (KPF), 2021 WL 76410, at *3 n.2
(S.D.N.Y. Jan. 8, 2021) (quoting NYSHRL § 296(1)(h)). But that amendment was signed into law
on August 12, 2019, see Europe v. Equinox Holdings, Inc., No. 20 Civ. 7787 (JGK), 2022 WL
4124763, at *7 n.10 (S.D.N.Y. Sept. 9, 2022), with section 296(1)(h) taking effect “on the sixtieth
day” thereafter, i.e. October 11, 2019. S. 6577, 242d Leg. § 16(b) (N.Y. 2019). Thus, section
296(1)(h) does not apply to causes of action accruing before October 11, 2019, such as Fellah’s.
See Europe, 2022 WL 4124763, at *7 n.10 (collecting cases); S. 6594, 242d Leg. § 4(d) (N.Y.
2019) (altering S. 6577’s language such that the relevant revisions made by S. 6577 “shall only
apply to claims accrued under such sections on or after the effective date of such sections”). Prior
to October 11, 2019, allegations of a hostile work environment under the NYSHRL most likely
would have fallen under section 296(1)(a). See, e.g., Mejia v. T.N. 888 Eighth Ave. LLC, 95
N.Y.S.3d 168, 170 (App. Div. 2019). Section 296(1)(a), which was not amended by the legislation
that established section 296(1)(h), makes it unlawful “[f]or an employer or licensing agency” to
discriminate against an individual “in terms, conditions or privileges of employment” based on the
person’s “race, creed, color, national origin,” and other specified characteristics. NYSHRL
§ 296(1)(a). Because the offending individual still must have been an “employer” under this
provision, the above textual analysis would apply with equal force had Fellah brought his claims
under the section 296(1)(a).
20, 2022) (concluding that employees of New York State Department of Corrections cannot be
“employers” under the NYSHRL). Thus, the Fourth Cause of Action is dismissed with prejudice
as to Miller.
Turning to the Seventh Cause of Action, the NYCHRL makes it “an unlawful

discriminatory practice . . . for an employer or an employee or agent thereof, because of the actual
or perceived . . . race . . . national origin . . . or immigration or citizenship status of any person . . . to
discriminate against such person in compensation or in terms, conditions or privileges of
employment.” NYCHRL § 8-107(1)(a). This statutory language is thus similar to the
corresponding language in the NYSHRL, except that the City provision extends to employees.
The New York Court of Appeals explained in Bloomberg that, for purposes of the NYCHRL,
employees “may incur liability only for their own discriminatory conduct, for aiding and abetting
such conduct by others, or for retaliation against protected conduct.” 36 N.Y.3d at 460. Because,
as discussed below, the Court finds that Fellah has stated a claim against Miller under the aiding
and abetting provision of NYCHRL section 8-107(6), it defers until after discovery the question

of whether Miller may be found directly liable as an “employee” under section 8-107(1)(a) or as
an “aider-and-abettor” under section 8-107(6). See Ahmad v. N.Y.C. Health & Hosps. Corp., No.
20 Civ. 675 (PAE), 2021 WL 1225875, at *15 (S.D.N.Y. Mar. 31, 2021) (taking the same approach
with respect to determining liability under the NYSHRL). The Court therefore denies Miller’s
motion to dismiss the Seventh Cause of Action.
2. Aiding and Abetting Discrimination Claims
Fellah also brings claims against Miller of aiding and abetting a hostile work environment
in violation of both the NYSHRL and the NYCHRL in his Fifth and Eighth Causes of Action,
respectively. Am. Compl. ¶¶ 75-83, 109-113. The NYSHRL provides that “[i]t shall be an
unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of
any of the acts forbidden under this article, or to attempt to do so.” NYSHRL § 296(6). Section
8-107(6) of the NYCHRL contains nearly identical language.
To state a claim for aiding and abetting discrimination under the NYSHRL, a plaintiff must

allege that the defendant actually participated in the unlawful conduct such that “the aider and
abettor share the intent or purpose of the principal actor.” Rahman v. Limani 51, LLC, No. 20 Civ.
6708 (KMW), 2022 WL 3927814, at *7 (S.D.N.Y. Aug. 31, 2022) (internal quotation marks
omitted); see also McHenry v. Fox News Network, LLC, 510 F. Supp. 3d 51, 68 (S.D.N.Y. 2020)
(same).9 “The same standard governs aiding and abetting claims under the NYSHRL and
NYCHRL ‘because the language of the two laws is virtually identical.’” McHenry, 510 F. Supp.
3d at 68 (quoting Feingold v. New York, 366 F.3d 138, 158 (2d Cir. 2004)). At the same time,
“[c]ourts must analyze NYCHRL claims separately from any federal law claims and should
construe the NYCHRL ‘liberally for the accomplishment of the uniquely broad and remedial
purposes thereof.’” Bueno v. Eurostars Hotel Co., S.L., No. 21 Civ. 535 (JGK), 2022 WL 95026,

at *8 (S.D.N.Y. Jan. 10, 2022) (quoting Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.
3d 102, 109 (2d Cir. 2013)).10

9 Plaintiff must also plead the existence of an employer and actions by the employer in
violation of the Human Rights Laws. McHenry, 510 F. Supp. 3d at 68 n.7 (citing Murphy v. ERA
United Realty, 674 N.Y.S.2d 415 (App. Div. 1998)). Since no party has challenged the sufficiency
of Fellah’s allegations against CUNY, for purposes of this Opinion and Order the Court treats this
requirement as satisfied. See id. (taking the same approach); Rahman, 2022 WL 3927814, at *7
n.10 (same).
10 The recent NYSHRL amendments directed courts to “construe the NYSHRL, like the
NYCHRL, ‘liberally for the accomplishment of the remedial purposes thereof, regardless of
whether federal civil rights laws including those laws with provisions worded comparably to the
provisions of [the NYSHRL] have been so construed.’” Bueno, 2022 WL 96026, at *8 (quoting
N.Y. Exec. Law § 300) (alteration in original). However, this amendment only applies to claims
that accrue as of the amendment’s effective date of August 12, 2019. See Europe, 2022 WL
Because the underlying hostile work environment analysis is the same under the NYSHRL,
Title VII, and section 1983, Fellah’s aiding and abetting claim under the NYSHRL fails for the
same reason as his section 1983 claim. Because Fellah has not pleaded that Miller had knowledge
that he was subjected to a hostile work environment, she cannot be said to have shared the “intent

or purpose of the principal actor” in the existence of that environment. Rahman, 2022 WL
3927814, at *7 (internal quotation marks omitted). Otherwise, any supervisor to which Fellah
complained about any conduct by Cregan could be held liable under an aiding and abetting theory.
While under the NYSHRL a “supervisors’ failure to take adequate remedial measures in response
to a complaint of discrimination can, with proper factual allegations, constitute actual
participation,” McHenry, 510 F. Supp. 3d at 68 (internal quotation marks omitted), the supervisor
needs, at the minimum, to be sufficiently aware of enough of the underlying conduct to understand
its discriminatory nature, see id. at 76-77 (holding that an email to a supervisor reporting a
“intolerable and hostile work environment” was insufficient to plead that the supervisor actually
participated in aiding and abetting harassment when it did not mention underlying sexual

harassment or gender discrimination).
However, “[t]he standard for maintaining a hostile work environment claim is lower under
the NYCHRL than under the [pre-amendment] NYSHRL and Title VII.” Gaughan v. Rubenstein,
261 F. Supp. 3d 390, 414 (S.D.N.Y. 2017). “Under the NYCHRL, a plaintiff need not demonstrate
that the treatment was ‘severe or pervasive’ to demonstrate a hostile work
environment. . . . Instead, a plaintiff need only show that she has been treated ‘less well’ than

4124763, at *7 n.10 (noting that the amendment did not apply retroactively and was signed into
law on August 12, 2019). The Court therefore proceeds under the previous standard.
other employees because of a protected characteristic.” Id. (quoting Williams v. N.Y.C. Hous.
Auth., 872 N.Y.S.2d 27, 36 (App. Div. 2009)).
Fellah’s allegations that he complained about Cregan’s discriminatory comments to Miller
and that Miller took no action to remedy Cregan’s conduct sufficiently state a claim of aiding and

abetting discrimination under the NYCHRL. Fellah alleges that Miller was one of his “immediate
supervisors” who had the power to “receive, review and remedy discrimination complaints.” Am.
Compl. ¶ 12. He further alleges that he complained to Miller and others, “[o]n more than one
occasion,” “about Cregan’s discriminatory comments” about his religion and immigration status.
Id. ¶ 22; see also id. ¶¶ 19-21. Following those complaints, Fellah alleges that he reported the July
6, 2017 interaction among Cregan, Falade, and Fellah to Miller, and that Miller took “no other
action to protect [Fellah] from further harassment, threats or violence” other than to advise him to
“make written reports of Cregan’s abuse and threats.” Id. ¶ 28. Given the liberal construction the
Court must afford the NYCHRL, the lower requirements under that statute for actionable conduct
than its state and federal counterparts, and the need to draw all inferences in Fellah’s favor at this

stage, the allegations in the Amended Complaint allow for the inference that Miller shared the
“intent or purpose” of Cregan to treat Fellah “less well” because of his religion and immigration
status, even though a similar inference cannot be reached under the higher bar of the pre-
amendment NYSHRL. Therefore, the Court grants Miller’s motion to dismiss the Fifth Cause of
Action, and denies her motion as to the Eighth Cause of Action.
3. Negligent Supervision and Retention
Fellah’s Sixth Cause of Action alleges negligent supervision and retention against Miller.
Am. Compl. ¶¶ 90-100. To state a claim under New York law for negligent supervision or
retention, a plaintiff must plead three elements in addition to the standard elements of negligence:
(1) that the tort-feasor and the defendant were in an employee-employer
relationship; (2) that the employer knew or should have known of the employee’s
propensity for the conduct which caused the injury prior to the injury’s occurrence;
and (3) that the tort was committed on the employer’s premises or with the
employer’s chattels.
FAT Brands Inc. v. PPMT Cap. Advisors, Ltd., No. 19 Civ. 10497 (JMF), 2021 WL 37709, at *6
(S.D.N.Y. Jan. 5, 2021) (quoting Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir. 2004)).
The Amended Complaint is devoid of any allegations that Miller had an employer-
employee relationship with the alleged violator, Cregan. Rather, the Amended Complaint alleges
that Miller supervised Fellah. Am. Compl. ¶ 12. Fellah’s only response is that “[i]t remains to be
seen what Miller’s role was in connection with Cregan’s employment,” and then points to
allegations that he contends demonstrate Miller’s knowledge of Cregan’s propensity for violence,
awareness of Fellah’s discrimination complaints, and knowledge of Cregan’s unfitness for the job.
Dkt. 69 at 12. But that does not allege an employer-employee relationship between Miller and
Cregan. The Sixth Cause of Action is therefore dismissed.
4. Leave to Amend
Lastly, the Court considers whether to grant leave to amend. Under Rule 15(a) of the
Federal Rules of Civil Procedure, a court “should freely give leave when justice so requires.” Fed.
R. Civ. P. 15(a)(2). Fellah has not asked the Court for leave to amend his Complaint. “But even
when a party does not ask for leave to amend, the Court may grant leave to amend sua sponte.” In
re Garrett Motion Inc. Sec. Litig., No. 20 Civ. 7992 (JPC), 2022 WL 976269, at *18 (S.D.N.Y.
Mar. 31, 2022) (internal quotation marks omitted) (collecting cases). When deciding whether to
grant sua sponte leave to amend, “courts will consider many factors, including undue delay, bad
faith or dilatory motive, repeated failure to cure deficiencies, undue prejudice to the opposing
party, and futility.” Morales v. Kimberly-Clark Corp., No. 18 Civ. 7401 (NSR), 2020 WL
2766050, at *9 (S.D.N.Y. May 27, 2020). After considering these factors, the Court will grant
Fellah leave to file a Second Amended Complaint, in the event Fellah believes he can plead facts
to support his Second, Third, Fifth, and/or Sixth Causes of Action against Miller in a manner that
would adequately state a claim upon which relief may be granted, consistent with this Opinion and
Order. In granting leave to amend, the Court notes that Fellah’s previous amendment was not
prompted by a judicial finding of deficiency of his original Complaint. See Dkt. 32. Additionally,
because some of Fellah’s claims against Miller survive, Miller would not be unduly prejudiced by
an amendment, and she is on notice as to the basic circumstances underlying Fellah’s claims. The
Court emphasizes, however, that Fellah should amend only if he is able to resolve the pleading
deficiencies outlined in this Opinion and Order.
IV. Conclusion
For the foregoing reasons, the Court grants Miller’s motion to dismiss in part and denies it
in part. The Court dismisses Fellah’s Second, Third, Fifth, and Sixth Causes of Action against her
without prejudice and his Fourth Cause of Action against her with prejudice. The Court grants
Fellah leave to amend to replead his Second, Third, Fifth, and Sixth Causes of Action against
Miller, in the event he believes he can replead those claims in a manner that would address the
deficiencies identified herein. Should he choose to file a Second Amended Complaint, Fellah must
do so no later than thirty days from the date of this Opinion and Order. The Court denies Miller’s
motion to dismiss the Seventh and Eighth Causes of Action. The Clerk of the Court is respectfully
directed to close the motion pending at Docket Number 67.
SO ORDERED.
Dated: September 30, 2022 Whe Leay —_
New York, New York JOHN P. CRONAN
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10344965. Public record. Not legal advice.