# Harriram v. Fera

> District Court, S.D. New York · March 27, 2023

URL: https://www.frixlaw.com/law-library/cases/10349811

## Case

- **Court:** District Court, S.D. New York
- **Decided:** March 27, 2023
- **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/10349811

## How later opinions describe it (automated extraction)

- affirming dismissal of a Title VII discrimination claim where “plaintiff had failed to allege that the position plaintiff sought was one that remained open and for which the hospital continued to seek applicants”

## Opinion text

UNITED STATES DISTRICT COURT EDLOECC#T: RONICALLY FILED
SOUTHERN DISTRICT OF NEW YORK DATE FILED:

PRIYA HARRIRAM,

Plaintiff,
No. 21-CV-3696 (RA)
v.
MEMORANDUM
JOSEPH LUIS FERA, LEHMAN OPINION & ORDER
COLLEGE, and CITY UNIVERSITY OF
NEW YORK,

Defendants.

RONNIE ABRAMS, United States District Judge:

Plaintiff Priya Harriram brings this pro se action against Defendants Joseph Luis Fera,
Lehman College,1 and the City University of New York (“CUNY”) for violations of 42 U.S.C.
§ 1981, Title IX, Title VII, and the New York City Human Rights Law (“NYCHRL”). Defendants
now move to dismiss the Second Amended Complaint pursuant to Federal Rules of Civil
Procedure 12(b)(1) and (b)(6). For the reasons that follow, Defendants’ motion is granted, albeit
without prejudice.
BACKGROUND
The following facts are drawn primarily from Plaintiff’s Second Amended Complaint
which, on a motion to dismiss, the Court must assume to be true. 2 See Lynch v. United States, 952
F.3d 67, 74-75 (2d Cir. 2020). They are based as well on Plaintiff’s opposition to the motion to

1 Although Plaintiff names both Lehman College and CUNY as defendants, “Lehman College is a senior
college within CUNY and has no separate legal existence.” Ross v. State of New York, 2016 WL 626561,
at *3 (S.D.N.Y. Feb. 16, 2016) (citing Clissuras v. City Univ. of New York, 359 F.3d 79, 81 n.2 (2d Cir.
2004)). The claims against Lehman College are thus dismissed.
2 As Defendants point out, although the operative complaint is labeled “(3rd) Amended Complaint” on the
docket, ECF No. 56, this is actually Plaintiff’s Second Amended Complaint, because the amended
complaint that she attempted to file on October 19, 2021, ECF No. 28, was never considered operative. See
ECF No. 31, 34. The Court will thus refer to the operative complaint as the “Second Amended Complaint.”
dismiss, as courts are “permitt[ed] . . . to consider facts alleged for the first time in a pro se
plaintiff’s opposition to a motion to dismiss,” which “must be construed liberally and interpreted
to raise the strongest arguments they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
474 (2d Cir. 2016); see also Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (considering the
allegations in a pro se plaintiff’s opposition to a motion to dismiss, in addition to the allegations

in his complaint).
Plaintiff self-identifies as a “West Indian/Caribbean” and Trinidadian woman. Second Am.
Compl. at 3, 5. She has a Bachelor’s degree in Mathematics and a Master’s degree in Math
Education, “with teaching experience in College.” Id., Attachment at 3; Opp. at 2. Plaintiff alleges
that she has “been a part of CUNY for at least 14 years in the capacity of working, taking courses,
or both,” Opp. at 3, although she does not specify when she was a student and when she was an
employee in that fourteen-year time frame.
The primary allegations that the Court can glean from the Second Amended Complaint
center on the three times Plaintiff applied for a math adjunct lecturer position at Lehman College,

in February, March, and April of 2020. As noted, however, Plaintiff does not specify whether she
was a student at CUNY, an employee at CUNY, or unaffiliated with the school during this time
period. In February 2020, Plaintiff alleges that she approached Defendant Fera—whose title
Plaintiff does not specify—in his office and gave him a copy of her resume. According to Plaintiff,
they then had the following colloquy: Plaintiff announced that she was “applying for the Math
Adjunct position,” to which Fera responded, “I was having a better day until you came, why don’t
you just go somewhere else, why do you keep coming to Lehman?” Second Am. Compl.,
Attachment at 1. Plaintiff then said, “Mr. Gants said to hand in my resume to you and he wants
applicants with a Masters, so why is Rafael hired?” Id. Fera allegedly responded, “I don’t even
know why I am talking to you! Remember I am the Math Department.” Id. Twice in the next
two months, on March 3, 2020 and April 14, 2020, she allegedly emailed her resume to Fera and
asked about the status of her application. Id. at 2. Fera did not respond to either email. Id.
Plaintiff identifies four men—Rafael Gonzalez, Christopher Bowman, Eduardo Ovadiah,
and Jonathan Hernandez—who she claims were hired for the math adjunct position despite having

inferior credentials to her. Id.; see also Opp. at 2. According to Plaintiff, Bowman is African
American, and the other three individuals are Dominican. Gonzalez “has a Bachelors and no
Masters with no experience in teaching”; Ovadiah “has a Bachelors with no Masters and his first
job in Lehman was a Math tutor, prior to that he has no teaching experience in a College setting”;
and Hernandez has “a Bachelor’s degree while working on a Master’s degree.” Second Am.
Compl., Attachment at 2-3. Plaintiff makes no allegations about Bowman’s credentials.
According to Plaintiff, two of these individuals—she does not specify who—told her, “all
[you] have to do is just ask the defendant and he will give [you] the job because it’s a form of
discrimination if he doesn’t give it to you.” Id. at 3. She also alleges that individuals named David

Gants, Walter Valerio, and Steve Wycoff told her that she “had the credentials” and must apply
for the position through Fera, who “is the only one who hires for their math programs.” Id. Gants
allegedly said, “you have the credentials and teaching experience I’m sure Joe will hire you just
give him your resume or email him.” Id. Plaintiff does not specify when any of these comments
were made.
Plaintiff also alleges that she was “forced against [her] will several times to perform oral
sex to Fera,” and that he “retaliated against me” because “he could not handle rejections from me.”
Opp. at 2, 4. She does not indicate when these purported incidents occurred. Plaintiff claims that
Fera’s “sexual advances” included “fondling and grabbing my hand or staring at my breasts
throughout the years of going to school and working at Lehman College.” Opp. at 2. She further
asserts that when she “told him to stop touching my hand[,] he said something is wrong with me.”
Id. at 4. She does not plead any other specifics about these alleged incidents. According to
Plaintiff, she reported this sexual misconduct to “a case worker, Jose Rodriguez,” as well as “three
employees of Lehman College”: “the defendant’s boss, Nicolas Hanges”; “a secretary for the Math

Department, Myrsa Bonilla whom did not want to get involved”; and “my co-worker who did not
want to help me, Stephen Castellano.” Second Am. Compl., Attachment at 4. She does not specify
when she allegedly made these reports.
In her opposition to the motion to dismiss, Plaintiff makes additional allegations regarding
events that purportedly took place in October and November 2021. She appears to indicate that
she was employed at Lehman College at this time, but does not specify what position she held. In
particular, she alleges that, in October 2021, she “made two formal sex abuse complaints to CUNY
about the two Math Professors at Lehman College, one of them being the defendant in question.”
Opp. at 2, 5. On October 12, 2021, Plaintiff was interviewed by a Title IX Coordinator, Dawn

Ewing Morgan. Id. at 6. The day after her Title IX interview, on October 13, 2021, CUNY
allegedly “eliminated [Plaintiff’s] primary job function by disabling the database
(ADManagerPlus) which is used to reset passwords.” Opp. at 5. In addition, Plaintiff asserts that
“[f]rom October 13, 2021 till my termination, November 8, 2021, I was harassed by Public Safety
when entering the premises to attend work.” Id. She “filed a Whistleblower Complaint” on
November 1, 2021, and was allegedly terminated on November 8, 2021. Id. She also alleges that,
due to her termination, she “lost [her] Educational Tuition Reimbursement Benefit from DC 37”
and is “blocked from accessing [her] free Lehman College Alumni Email.” Opp. at 11.
On November 19, 2020, Plaintiff filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (“EEOC”) alleging discrimination based on her sex and
national origin. Second Am. Compl. at 9. The EEOC dismissed her complaint on March 12, 2021.
See id. at 10.
Plaintiff filed this federal action on April 26, 2021. After Defendants moved to dismiss

the original complaint, Plaintiff filed a First Amended Complaint on November 2, 2021, which
Defendants again moved to dismiss. Once Defendants’ second motion to dismiss was fully
briefed, Plaintiff successfully sought to amend her pleadings again. Plaintiff filed the operative
complaint—the Second Amended Complaint—on March 8, 2022. Plaintiff alleges violations of
42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., the New
York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-101, et seq., and Title IX
of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. Defendants now move to dismiss
the Second Amended Complaint for lack of subject matter jurisdiction and failure to state a claim.
LEGAL STANDARD

“To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556). The Court must accept as true all factual allegations and
draw all reasonable inferences in Plaintiffs’ favor, Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir.
2008), but it need not credit “mere conclusory statements,” Iqbal, 556 U.S. at 678 (citing Twombly,
550 U.S. at 555). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, 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.” Twombly, 550 U.S. at 555 (internal citations and alterations omitted).
“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but not ‘shown’—‘that the pleader is entitled to relief,’”

and the complaint must be dismissed. Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)
when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000). “A plaintiff asserting subject matter jurisdiction
has the burden of proving by a preponderance of the evidence that it exists.” Id.
DISCUSSION
I. Title VII
Liberally construed, the Second Amended Complaint alleges claims of discrimination,
retaliation, and hostile work environment under Title VII. The Court will address each in turn.

A. Discrimination
Title VII discrimination claims are analyzed pursuant to the familiar McDonnell Douglas
burden-shifting framework. See Reddy v. Salvation Army, 591 F. Supp. 2d 406, 421-22 (S.D.N.Y.
2008). “Under this framework, at the summary judgment stage, a plaintiff must first demonstrate
a prima facie case of employment discrimination by showing that: ‘(1) she was within the protected
class; (2) she was qualified for the position; (3) she was subject to an adverse employment action;
and (4) the adverse action occurred under circumstances giving rise to an inference of
discrimination.’” Farmer v. Shake Shack Enterprises, LLC, 473 F. Supp. 3d 309, 324 (S.D.N.Y.
2020) (quoting Menaker v. Hofstra Univ., 935 F.3d 20, 30 (2d Cir. 2019)). “The burden of
production then shifts to the defendant to offer a legitimate, non-discriminatory reason for the
allegedly discriminatory conduct.” Id. (citing Littlejohn v. City of New York, 795 F.3d 297, 307
(2d Cir. 2015)). “Upon such a showing, the plaintiff must demonstrate that the reasons offered by
the defendant are a mere pretext for discrimination.” Id. (citing Littlejohn, 795 F.3d at 307-08).
At the motion-to-dismiss stage, however, “a plaintiff is not required to plead a prima facie

case under McDonnell Douglas.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 84 (2d
Cir. 2015). Rather, “a plaintiff ‘need only give plausible support to a minimal inference of
discriminatory motivation’” for the case to move forward. Id. (quoting Littlejohn, 795 F.3d at
306). “A plaintiff can meet that burden through direct evidence of intent to discriminate, or by
indirectly showing circumstances giving rise to an inference of discrimination.” Id. at 87 (internal
citation omitted).
Plaintiff’s discrimination claim is based on two discernible theories: failure-to-hire and
quid pro quo sexual harassment. “To plead a failure-to-hire claim under Title VII . . . the plaintiff
must demonstrate that: (1) the plaintiff is a member of a protected class; (2) the plaintiff applied

and was qualified for a job for which the employer was seeking applicants; (3) the plaintiff was
rejected despite being qualified; and (4) after this rejection, the position remained open and the
employer continued to seek applicants with the plaintiff’s qualifications.” Harris v. Oscar De La
Renta, LLC, 2022 WL 16963480, at *4 (S.D.N.Y. Nov. 16, 2022) (citing Aulicino v. N.Y.C. Dep’t
of Homeless Servs., 580 F.3d 73, 80 (2d Cir. 2009)). Plaintiff makes no allegation that after she
was rejected for the math adjunct position, “the position remained open and the employer
continued to seek applicants with [Plaintiff’s] qualifications.” Id. Rather, Plaintiff identifies four
men—Gonzalez, Bowman, Ovadiah, and Hernandez—who were purportedly hired for the math
adjunct position despite being less qualified than her, but she does not identify when they were
hired (other than the indirect assertion that Gonzalez was hired before she even applied).3 This is
reason alone to dismiss Plaintiff’s failure-to-hire theory. See Quarless v. Bronx Lebanon Hosp.
Ctr., 75 F. App’x 846, 848 (2d Cir. 2003) (affirming dismissal of a Title VII discrimination claim
where “plaintiff had failed to allege that the position plaintiff sought was one that remained open
and for which the hospital continued to seek applicants”).

“To state a quid pro quo claim, [the plaintiff] must show a ‘tangible employment action,’
i.e., that an ‘explicit alteration in the terms or conditions of employment’ resulted from her refusal
to submit to [the defendant’s] sexual advances.” Schiano v. Quality Payroll Sys., Inc., 445 F.3d
597, 603 (2d Cir. 2006). To raise an inference of discrimination, a quid pro quo harassment claim
must establish a “causal connection” between the sexual advances and the employment action,
either through a direct link or indirectly through temporal proximity. Cook v. N.Y.C. Dep’t of
Educ., 90 F. App’x 562, 563 (2d Cir. 2004). Plaintiff’s allegations of sexual abuse are undoubtedly
serious. But Plaintiff fails to plausibly plead a causal connection here. She alleges, in conclusory
and opaque fashion, that “[b]ecause Fera can’t handle rejections he used his authority to override

any rational decision making,” and that he “exercised his abusive authority by denying [her] Equal
Employment Opportunity for the Math Adjunct position.” Conclusory statements, however, are
not entitled to the presumption of truth and cannot defeat a motion to dismiss. See Iqbal, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 555). Plaintiff also alleges that when she “told [Fera] to stop
touching [her] hand . . . he said something is wrong with [her].” Second Am. Compl., Attachment
at 4. But, as mentioned above, Plaintiff does not specify when this interaction took place, nor does
she provide any further factual allegations that could plausibly connect Fera’s comment to his

3 Plaintiff alleges that when she first applied in February 2020, she said to Fera, “Mr. Gants said to hand in
my resume to you and he wants applicants with a Masters, so why is Rafael hired?” Second Am. Compl.,
Attachment at 1.
decision not to hire her. See, e.g., Copantitla v. Fiskardo Estiatorio, Inc., 788 F. Supp. 2d 253,
298-99 (S.D.N.Y. 2011) (dismissing a quid pro quo harassment claim where the plaintiff “does
not ground any of [the defendant’s] allegedly harassing behavior in a specific time period, so the
Court can draw no reasonable inference as to the temporal proximity of that behavior to [the
plaintiff’s] alleged firing”).

Plaintiff otherwise fails to plead any facts that plausibly give rise to an inference of
discrimination. The Court cannot infer discriminatory intent from Fera’s facially neutral
statements (“I was having a better day until you came, why don’t you just go somewhere else, why
do you keep coming to Lehman?” and “I don’t even know why I am talking to you! Remember
that I am the Math Department”), or from the fact that Fera purportedly did not respond to two of
her emails. See Williams v. Victoria’s Secret, 2017 WL 384787, at *8 (S.D.N.Y. Jan. 27, 2017)
(quoting Opoku v. Brega, 2016 WL 5720807, at *8 (S.D.N.Y. Sept. 30, 2016)) (dismissing a Title
VII discrimination claim where the plaintiff did not “provide any allegations that would justify an
inference that certain facially neutral comments . . . were actually related to [her] protected

characteristics.”).
Plaintiff also alleges that several other individuals at Lehman College told her she “ha[s]
the credentials and teaching experience” for the job, and that if she doesn’t get the job, “it’s a form
of discrimination.” Second Am. Compl., Attachment at 3. But these stray comments made by
non-decisionmakers do not plausibly suggest that Fera—who Plaintiff alleges was the “only one
who hires for [Lehman College’s] math programs”—acted with discriminatory animus. See
Buckner v. County of Sullivan, 2015 WL 437408, at *5 (quoting De Santis v. City of New York,
2011 WL 4005331, at *10 (S.D.N.Y. Aug. 29, 2011)) (“These stray remarks are not attributed to
. . . named defendants, but to individuals who played no role in the decision, and are therefore
plainly insufficient to demonstrate discriminatory animus.”); Holowecki v. Federal Exp. Corp.,
644 F. Supp. 2d 338, 358 (S.D.N.Y. 2009) (quoting Ezold v. Wolf, Block, Schorr & Solis-Cohen,
983 F.2d 509, 545 (3d Cir. 1992)) (observing that “[s]tray remarks by non-decisionmakers or by
decisionmakers unrelated to the decision process are rarely given weight,” and dismissing the
discrimination claim where “the record is devoid of any evidence of any other words, actions, or

circumstances giving rise to an inference of . . . discrimination”).
Plaintiff’s Title VII discrimination claim is thus dismissed without prejudice.
B. Retaliation
“For a retaliation claim to survive a motion to dismiss, ‘the plaintiff must plausibly allege
that: (1) defendants discriminated—or took an adverse employment action—against her, (2)
because she has opposed any unlawful employment practice.’” McHenry v. Fox New Network,
LLC, 510 F. Supp. 3d 51, 67 (S.D.N.Y. 2020) (quoting Duplan v. City of New York, 888 F.3d 612,
625 (2d Cir. 2018)).
Defendants argue that Plaintiff’s Title VII retaliation claim must be dismissed because she
failed to exhaust administrative remedies. 4 The Court agrees. “As a precondition to filing a Title

VII claim in federal court, a plaintiff must first pursue available administrative remedies and file
a timely complaint with the EEOC.” Hardaway v. Hartford Public Works Dep’t, 879 F.3d 486,
489 (2d Cir. 2018) (internal quotation marks omitted). “The purpose of this exhaustion
requirement is to give the administrative agency the opportunity to investigate, mediate, and take

4 Although “the burden of pleading and proving Title VII exhaustion lies with defendants and operates as
an affirmative defense,” Hardaway v. Hartford Public Works Dep’t, 879 F.3d 486, 491 (2d Cir. 2018), and
although “affirmative defenses are most typically asserted in an answer, they may be raised on a motion to
dismiss . . . where the complaint itself establishes the circumstances required as a predicate to finding that
the affirmative defense applies,” Syeed v. Bloomberg L.P., 568 F. Supp. 3d 314, 321 n.6 (S.D.N.Y. 2021).
Here, Plaintiff’s failure to exhaust her remedies before the EEOC is clear from the face of her complaint
and the attached documents. The Court will thus consider Defendants’ exhaustion defense in resolving this
motion to dismiss. See id.
remedial action.” Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 384 (2d Cir. 2015) (quoting
Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir. 1998)). “That purpose ‘would be defeated
if a complainant could litigate a claim not previously presented to and investigated by the EEOC.”
Syeed v. Bloomberg L.P., 568 F. Supp. 3d 314, 321 (S.D.N.Y. 2021) (quoting Miller v. Int’l Tel.
& Tel. Corp., 755 F.2d 20, 26 (2d Cir. 1985)). “An allegation not set forth in an administrative

charge will be barred as unexhausted unless it is reasonably related to the allegations in the
charge.” Hoffman v. Williamsville Sch. Dist., 443 F. App’x 647, 649 (2d Cir. 2011). Because
“retaliation claims ‘represent an entirely distinct theory of liability” from discrimination claims,
they “cannot be viewed as ‘reasonably related’ unless they are specifically included in an EEOC
charge.” Zito v. Fried, Frank, Harris, Shriver & Jacobson, LLP, 869 F. Supp. 2d 378, 392
(S.D.N.Y. 2012) (internal quotation marks omitted).
Plaintiff’s Charge of Discrimination filed with the EEOC does not contain any allegation
of retaliation. In her EEOC complaint, she alleges that her “numerous applications to be to become
[sic] a Math adjunct lecturer” were “denied based on my Trinidadian national origin and sex

(gender-female),” that her application was “rejected off hand by Mr. Fera,” and that she “believe[s]
based on my national origin and sex I have been denied employment in violation of Federal, State
and Local laws.” Second Am. Compl. at 9. Beyond these allegations of discrimination, however,
the EEOC complaint does not assert that Plaintiff ever opposed any unlawful employment practice,
or that retaliatory actions were taken against her. See, e.g., Moguel v. Covenant House/New York,
2004 WL 2181084, at *8 (S.D.N.Y. Sept. 29, 2004) (collecting cases dismissing Title VII
retaliation claims for failure to exhaust administrative remedies where the EEOC complaint did
not include any allegation of retaliation, only discrimination). And while the EEOC complaint
was filed in November 2020—before Plaintiff’s Title IX interview in October 2021 and the
allegedly retaliatory acts that occurred thereafter—she does not allege that she filed another EEOC
complaint regarding the subsequent purported retaliation.
Because Plaintiff failed to exhaust her administrative remedies, her Title VII retaliation
claim is dismissed with prejudice.
C. Hostile Work Environment

“To establish a hostile work environment under Title VII, . . . a plaintiff must show that
‘the workplace is permeated with discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an
abusive working environment.’” Littlejohn v. City of New York, 795 F.3d 297, 320-21 (2d Cir.
2015) (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.” Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir.
2014). “A hostile work environment ‘is actionable . . . only when it occurs because of an

employee’s sex, or other protected characteristic.” Bliss v. MXK Restaurant Corp., 220 F. Supp.
3d 419, 423 (S.D.N.Y. 2016) (quoting Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001)).
Plaintiff’s allegations regarding her applications for the math adjunct position in February,
March, and April 2020 cannot establish a claim for a hostile work environment, because she does
not allege that she was employed at Lehman College at the time. Her allegations regarding Fera’s
alleged sexual misconduct similarly do not establish a hostile work environment claim, because
Plaintiff does not specify whether she was employed at Lehman College when those incidents
occurred, or even when those incidents took place.
Plaintiff’s allegations regarding the events of October and November 2021 also fail to state
a claim, because they do not reflect conduct that is “severe or pervasive enough” to meet the hostile
work environment standard. Losing access to the ADManagerPlus database, which Plaintiff “used
to reset passwords,” Opp. at 3, appears to be a “petty slight” or “trivial inconvenience,” neither of
which is actionable. See Alexander v. Possible Prods., Inc., 336 F. Supp. 3d 187, 195 (S.D.N.Y.

2018). Although Plaintiff alleges that “CUNY eliminated my primary job function” by disabling
her access to this database, she does not explain what her “primary job function” was; how the
database related to her job; or even what position she held at the time. She further does not allege
that she lost access to the database “because of” a protected characteristic. Without specific
allegations demonstrating that “the workplace [was] permeated with discriminatory intimidation,
ridicule, and insult” that was objectively “severe and pervasive,” Littlejohn, 795 F.3d at 320-21,
Plaintiff’s naked assertion that CUNY “eliminat[ed] [her] key job function” does not plausibly
allege a hostile work environment. Plaintiff’s conclusory allegation that Public Safety “harassed”
her when she entered campus is similarly insufficient. Opp. at 3. She does not specify what this

harassment entailed, nor does she plausibly allege that it occurred because of a protected
characteristic.
Plaintiff’s Title VII hostile work environment claim is thus dismissed, but without
prejudice.
II. 42 U.S.C. § 1981
Defendants next argue that Plaintiff’s claims under 42 U.S.C. § 1981 are barred by
sovereign immunity. “Unless a State has waived its Eleventh Amendment immunity or Congress
has overridden it . . . a State cannot be sued directly in its own name regardless of the relief sought.”
Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985). Congress did not abrogate states’ sovereign
immunity for 42 U.S.C. § 1981, nor has New York waived immunity for those claims. Dimps v.
Taconic Correctional Facility, 802 F. App’x 601, 603 (2d Cir. 2020). And the Second Circuit has
held that CUNY is considered an “arm of the state,” which means that “suits against CUNY are
equivalent to suits against the State of New York and are therefore barred by the Eleventh
Amendment” where applicable. Clissuras v. City Univ. of New York, 359 F.3d 79, 83 (2d Cir.

2004). Moreover, no private cause of action exists against state actors under § 1981. See Duplan
v. City of New York, 888 F.3d 612, 621 (2d Cir. 2018) (quoting Jett v. Dallas Independent Sch.
Dist., 491 U.S. 701, 733 (1989)) (observing that “the express cause of action for damages created
by [42 U.S.C.] § 1983 constitutes the exclusive federal remedy for violation of the rights
guaranteed in § 1981 by state governmental units,” and “§ 1981 does not provide a separate private
right of action against state actors”). Plaintiff’s § 1981 claim against CUNY is thus dismissed with
prejudice.5
The Eleventh Amendment also bars suits for monetary damages against state officials
acting in their official capacity, Tekkno Laboratories, Inc. v. Perales, 933 F.2d 1093, 1097 (2d Cir.

1991), although not for state officials who are sued in their individual capacity, Chinn v. City Univ.
of New York Sch. of L. at Queens Coll., 963 F. Supp. 218, 225 (E.D.N.Y. 1997). Plaintiff does not
specify whether she is suing Fera in his official capacity or individual capacity. The Second Circuit
has cautioned that “the failure of a complaint to specify that claims against government officials
are asserted against them in their individual capacities generally does not warrant an outright
dismissal at the pleading stage, for in many cases, a complaint against public officials will not
clearly specify whether officials are sued personally, in their official capacity, or both, and only

5 To the extent Plaintiff’s § 1981 claim against CUNY can be construed as brought under § 1983, it would
still be barred by sovereign immunity. See Clissuras, 359 F.3d at 80-83.
the course of proceedings . . . will indicate the nature of the liability to be imposed.” Ying Jing
Gan v. City of New York, 996 F.2d 522, 529-30 (2d Cir. 1993) (internal quotation marks omitted).
Construing Plaintiff’s § 1981 claim as brought against Fera in his individual capacity,
however, the Court concludes that Plaintiff fails to state a claim. “To establish a claim under
§ 1981, a plaintiff must allege facts in support of the following elements: (1) the plaintiff is a

member of a racial minority; (2) defendants’ intention to discriminate on the basis of race; and (3)
the discrimination concerned one of the activities enumerated in the statute, such as the right to
enforce a contract, sue and be sued, give evidence, etc.” Robledo v. Bond No. 9, 965 F. Supp. 2d
470, 475 (S.D.N.Y. 2013) (citing Brown v. City of Oneonta, 221 F.3d 329, 339 (2d Cir. 2000)).
“The same elements constitute a claim for employment discrimination under 42 U.S.C. § 1981 as
constitute a claim under Title VII.” White v. Eastman Kodak Co., 368 F. App’x 200, 202 (2d Cir.
2010). For the same reasons discussed above regarding Plaintiff’s Title VII claim, Plaintiff
similarly fails to plead a claim of intentional discrimination under § 1981.
Plaintiff’s § 1981 claim against Fera is therefore dismissed, again without prejudice,

assuming she is bringing the claim against him in his individual capacity.
III. NYCHRL
Defendants argue that Plaintiff’s NYCHRL claims are also barred by sovereign immunity.
“The City of New York does not have the power to abrogate the immunity of the State,” and the
Second Circuit “ha[s] found no evidence that [New York] State has consented to suit in federal
court under the NYCHRL.” Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004). Therefore,
Plaintiff’s NYCHRL claim is dismissed against CUNY with prejudice, as well as against Fera in
his official capacity.
As discussed above, however, sovereign immunity would not bar a claim against Fera in
his individual capacity. Again construing the claim as such, Plaintiff nonetheless fails to state a
claim under the NYCHRL. “[C]laims of employment discrimination under the NYCHRL are
analyzed under the same McDonnell Douglas framework applicable to Title VII, Section 1983,
and NYSHRL claims.” Bermudez v. City of New York, 783 F. Supp. 2d 560, 577 (S.D.N.Y. 2011).

The pleading standard under the NYCHRL is more liberal than Title VII, as “a plaintiff need allege
only that discrimination was a motivating factor for the adverse employment action.” White v.
Bridge Inc., 2019 WL 4805896, at *5 (S.D.N.Y. Sept. 30, 2019). But “[e]ven under the more
liberal NYCHRL, a plaintiff must allege facts giving rise to an inference of discrimination based
on [a protected characteristic] to prevail.” Moore v. Verizon, 2016 WL 825001, at *8 (S.D.N.Y.
Feb. 5, 2016) (citing Gorzynski v. Jet Blue Airways Corp., 596 F.3d 93, 107 (2d Cir. 2010)). For
the reasons discussed in the Court’s analysis of Plaintiff’s Title VII claim, Plaintiff fails to raise a
minimal inference of discrimination based on a protected characteristic. Her NYCHRL
discrimination claim against Fera thus fails.

With respect to a hostile work environment claim under the NYCHRL, “a plaintiff must
show [she] was treated ‘less well than other employees’ on the basis of a protected characteristic.”
Syeed, 568 F. Supp. 3d at 321 (quoting Alvarado v. Nordstrom, Inc., 685 F. App’x 4, 8 (2d Cir.
2017)). Plaintiff does not allege, however, that Fera had anything to do with the alleged
mistreatment she experienced in October and November 2021, when she was allegedly employed
at Lehman College. Her NYCHRL hostile work environment claim thus fails as well.
Plaintiff’s retaliation claim must be dismissed for the same reason. “To establish a prima
facie case of retaliation under the NYCHRL, a plaintiff must show that: (1) [she] participated in a
protected activity; (2) the defendant knew about [her] participation; (3) the defendant took an
employment action that disadvantaged the plaintiff in any manner; and (4) a causal connection
existed between the protected activity and the negative employment action.” Fattoruso v. Hilton
Grand Vacations Co., LLC, 525 F. App’x 26, 27 (2d Cir. 2013) (emphasis omitted). Complaints
about sexual harassment or sexual misconduct qualify as protected activity under the NYCHRL.
See, e.g., McHenry v. Fox News Network, LLC, 510 F. Supp. 3d 51, 71 (S.D.N.Y. 2020); Knight

v. City of New York, 303 F. Supp. 2d 485, 496 (S.D.N.Y. 2004).
Plaintiff plausibly alleges two instances of protected activity: (1) when she reported Fera’s
alleged sexual misconduct “to a case worker, Jose Rodriguez,” and “three employees of Lehman
College,” including “defendant’s boss, Nicolas Hanges,” Second Am. Compl., Attachment at 4;
and (2) when she made two formal Title IX complaints in October 2021. Plaintiff does not allege,
however, that Fera himself was aware of any of these complaints. With respect to her complaints
“to a case worker” and to “defendant’s boss, Nicolas Hanges,” she does not allege when she made
these complaints, whether she was employed at Lehman College at the time, or what responses
she received, if any. She also does not allege that Fera was involved in the decision to terminate

her employment on November 8, 2021; Public Safety’s alleged harassment of her; or the decision
to disable her access to the ADManagerPlus database. Thus, because Plaintiff does not plausibly
allege that Fera was involved in the alleged retaliation she experienced after her reports of sexual
misconduct, her NYCHRL retaliation claim against Fera fails.6

6 Plaintiff does allege that Fera “retaliated against [her] by not providing Equal Employment Opportunity
for the Math Adjunct position at Lehman College since [she] was forced to perform oral sex against [her]
consent several times with the defendant.” Compl., Attachment at 1; see also Opp. at 4 (“Fera decided to
retaliate against me by denying me Equal Employment Opportnity.”). Retaliation claims, however, do not
focus on the underlying misconduct, but rather a plaintiff’s reports or complaints of such misconduct, which
is considered “protected activity.” See Mayers v. Emigrant Bancorp, Inc., 796 F. Supp. 2d 434, 448
(S.D.N.Y. 2011) (“An employee engages in a protected activity when she complains of an employment
practice that she reasonably believes violates the law.”).
Plaintiff’s NYCHRL claim against Fera is therefore dismissed, again without prejudice,
assuming she is bringing the claim against him in his individual capacity.
IV. Title IX
Defendants argue that Plaintiff’s Title IX claims are time-barred. The Court disagrees.
The statute of limitations for Title IX claims brought in New York is three years. Curto v.

Edmundson, 392 F.3d 502, 504 (2d Cir. 2004). Defendants rely on an exhibit attached to Plaintiff’s
First Amended Complaint, in which Dawn Ewing Morgan, the Title IX Coordinator at Lehman
College, writes to Plaintiff on October 5, 2021: “I understand that you sent a letter to the CUNY
Central office describing several incidents of sexual misconduct that occurred when you were a
student.” First Am. Compl. at 14. Defendants also point to Plaintiff’s resume, attached as an
exhibit to Plaintiff’s original Complaint, indicating that Plaintiff received her Bachelor’s degree in
2010 and her Master’s Degree in 2015, both from Lehman College. Compl. at 52. Thus,
Defendants argue, the last plausible instance of sexual misconduct must have occurred in 2015.
But the fact that Plaintiff allegedly experienced sexual abuse when she was a student does

not preclude the possibility that she experienced further sexual misconduct later on, when she was
no longer a student. Indeed, Plaintiff alleges that “[f]rom 2013-2020, Fera would stare at my
breasts and when I was sitting in his office he would fondle my hand without my permission.”
Opp. at 4. Although this allegation is vague—Plaintiff does not clarify whether she was a student
or employee during this time frame, approximately how many times she was subjected to sexual
misconduct, or when the last instance of such misconduct occurred—the Court concludes that it is
sufficient to establish, at this stage, the timeliness of Plaintiff’s Title IX claim. See Triestman v.
Federal Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (“It is well established that the
submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest
arguments that they suggest.”).
Plaintiff’s Title IX claim must still be dismissed, however, because she fails to state a claim.
Sex-discrimination claims under Title IX are also analyzed under the McDonnell Douglas
framework. Vengalattore v. Cornell Univ., 36 F.4th 87, 103 (2d Cir. 2022). “[I]n order to survive

a Rule 12(b)(6) motion to dismiss a claim under Title IX, a complaint showing that the plaintiff
was within the protected class, was qualified for the position, and was subjected to an adverse
action, need only ‘allege facts giving rise to a plausible minimal inference of bias’ on the basis of
sex.” Id. (internal quotation marks omitted). The “standard for pleading discriminatory intent”
under Title IX is the same as under Title VII. Id. at 104; see also Papelino v. Albany Coll. of
Pharmacy of Union Univ., 633 F.3d 81, 89 (2d Cir. 2011) (“[A] Title IX sex discrimination claim
requires the same kind of proof required in a Title VII sex discrimination claim.”). As discussed
above in the Court’s analysis of Plaintiff’s Title VII claim, Plaintiff does not plausibly raise an
inference of discrimination on the basis of any protected characteristic, including sex.

Plaintiff’s Title IX claim is thus dismissed without prejudice.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is granted. Given Plaintiff’s pro
se status, she shall have one more opportunity to amend the Complaint within thirty days, with the
exception of her § 1981 claim against CUNY, her NYCHRL claim against CUNY, and her
retaliation claim under Title VII, all of which are dismissed with prejudice. As a reminder to
Plaintiff, she may wish to once again consult the New York Legal Assistance Group’s legal clinic
for pro se litigants, by visiting its website at nylag.org/pro-se-clinic or by calling (212) 659-6190.
This clinic, which is unaffiliated with the Court, assists pro se litigants with federal civil cases.
The Clerk of Court is respectfully directed to terminate the motion pending at docket number 64.
SO ORDERED.
Dated: = March 27, 2023 Uf /
New York, New York A A
oo,
Ronnie Abrams
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10349811. Public record. Not legal advice.