Obrien v. City of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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SAMUEL O’BRIEN,

Plaintiff, MEMORANDUM AND ORDER

22-CV-3117 (KAM)(LB)

-against-

CITY OF NEW YORK,

DEPARTMENT OF EDUCATION,

Defendant.

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MATSUMOTO, United States District Judge:

Plaintiff Samuel O’Brien (“Mr. O’Brien” or

“Plaintiff”) commenced this action on May 26, 2022, against

Defendant City of New York, Department of Education (the “DOE”

or “Defendant”) and the City of New York alleging discrimination

on the basis of race, national origin, sex and religion, and

retaliation, pursuant to Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e (“Title VII”) and Section 296 of the New

York State Human Rights Law, N.Y. Exec. Law § 296 (“NYHRL”), as

well as intentional infliction of emotional distress (“IIED”).

(See ECF Nos. 1, Complaint; 20, Amended Complaint (“AC”).) The

City of New York was terminated from this action on August 7,

2022, when Plaintiff filed the Amended Complaint. (AC ¶ 20.)

Before the Court is Defendant’s motion to dismiss the

Amended Complaint, pursuant to Federal Rule of Civil Procedure

12(b)(6), which was filed on August 7, 2022 (ECF No. 20, AC), on

the grounds that Plaintiff has failed to state a claim upon

which relief can be granted. (See generally ECF Nos. 37-5,

Motion to Dismiss (“Mot. To Dismiss”); 38, “Reply”). Plaintiff

opposes Defendant’s motion to dismiss his claims. (ECF Nos. 42,

“Opp.”; 46, “Sur-Reply”.) For the reasons set forth below,

Defendant’s motion to dismiss is GRANTED in part and DENIED in

part.

BACKGROUND

“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) (internal quotation marks

omitted). The Court reviews the operative Amended Complaint,

accepting the factual allegations in the Amended Complaint as

true, for the purposes of the Defendants’ 12(b)(6) motion, and

drawing all reasonable inferences in Plaintiff’s favor.

Melendez v. City of New York, 16 F.4th 992, 1010 (2d Cir. 2021).

To the extent Plaintiff draws “legal conclusion[s] couched as

factual allegation[s]” however, the Court is not bound to accept

such statements as truth. Drimal v. Tai, 786 F.3d 219, 223 (2d

Cir. 2015) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

The Court must dismiss Plaintiff’s Amended Complaint

if he has failed to plead “enough facts to state a claim to

relief that is plausible on its face.” 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.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009).

Based on the foregoing, this Court accepts as true the

following allegations.

I. Factual Background

A. Plaintiff’s Hiring at the High School for Youth and

Community Development

Mr. O’Brien identifies as a man of “Afro-Indian”

descent, originally from “the Caribbean Island of Trinidad.”

(AC ¶ 2.) Starting in January 2020, Mr. O’Brien enrolled in a

work-study program while pursuing a master’s degree in Special

Education at Long Island University. (Opp. at p. 2.) Through

this program, Plaintiff states that he learned from experienced

teachers, attended skill-building sessions, underwent a

screening and background check, and obtained a Special Education

teaching certification. (Id.) Upon graduating from the program

in June 2020, Mr. O’Brien sought employment as a Special

Education teacher. (Id.) Mr. O’Brien received an offer of

probationary employment from the High School for Youth and

Community Development (“HSYCD”) and commenced his role as a

Special Education teacher on September 20, 2020, approximately

12 days after the school year began. (AC ¶ 6.) During the 2020

– 2021 school year, Plaintiff worked as a teacher for HSYCD on a

probationary basis. (Mot. To Dismiss at p. 5).

B. Plaintiff’s Issues Accessing his Preferred Bathroom

On September 29, 2020, shortly after beginning his

tenure as a Special Education teacher at the HSYCD, Mr. O’Brien

was given a bathroom key by a custodial worker of Trinidadian

descent, referred to as "Mr. G,” who advised Mr. O’Brien that

the key was for the bathroom on the fifth floor. (AC ¶ 6.) On

September 30, 2020, Mr. O’Brien went to the fifth-floor bathroom

and noticed it was designated by signage as a female bathroom

and returned the key provided to him. (AC ¶ 7.) It is not

alleged whether Mr. O’Brien attempted to use the key to access

the fifth-floor restroom or any other restroom in the building,

including the several unisex bathrooms in the building or the

men’s restroom on the fourth floor, all of which HSYCD officials

stated Mr. O’Brien had access to. (AC, Ex. K) (“[T]here are a

total of 3 staff restrooms on the floors that are unisex . . .

[and a] 4th floor . . . men’s only bathroom” that Mr. O’Brien

“[has] access to[.]”) When Mr. O’Brien returned the bathroom

key to Mr. G and another staff member, Ms. Desdunes, he informed

them that he had been given a key to a female restroom and

requested a key that would facilitate access to a men’s

restroom. (AC ¶ 7.) Mr. O’Brien was told by Mr. G. that he

would not be given another key, but that he could access the

unisex restroom on the third floor with the help of Mr. G, who

sat in the third-floor hallway and could use his own key to

facilitate Mr. O’Brien’s restroom access, at Mr. O’Brien’s

request. (AC ¶ 8.) Mr. O’Brien made repeated follow-up

requests to Mr. G. and Mr. Joffe, an Assistant Principal (“AP”),

for a personal key to “either a male or unisex restroom” to

avoid having to ask Mr. G for help accessing the restroom every

time the need arose. (Id.) Mr. O’Brien’s requests were either

rejected or ignored by Mr. G and Mr. Joffe and he did not

receive a key. (Id.) Instead, Mr. O’Brien was encouraged to

either use a different restroom or to ask Mr. G to open the

third-floor restroom whenever Mr. O’Brien had cause to use the

restroom. (Id.) No other employees belonging to Mr. O’Brien’s

protected classifications were told to request a key from the

custodian in order to use the restroom, which Plaintiff cites as

evidence of discrimination. (AC ¶ 10.)

Mr. O’Brien recalls one “particularly humiliating”

experience, which occurred on October 6, 2020, when he had to

interrupt a male Jewish teacher’s class to ask to borrow his

bathroom key because Mr. O’Brien was unable to otherwise access

his preferred restroom. (AC ¶ 11.) Mr. O’Brien reached out to

another staff member, Ms. Silberstein, to complain that his

repeated requests for a personal key to a unisex or men’s

restroom were being ignored and that the resulting situation was

beginning to impact his professional relationships and

performance, as well as his health. (Id.) Mr. O’Brien stated

that Ms. Silberstein reassured him that she would direct Mr.

Joffe to give him a key to the fourth-floor unisex bathroom,

which Mr. O’Brien alleges “seemed to have rectified the

problem.” On October 9, 2020, however, Mr. O’Brien still had to

request Mr. G.’s assistance to enter the restroom because “the

key [he] was given didn’t reflect [his] gender,” and he informed

Ms. Silberstein of his intention to contact the Department of

Education to seek further assistance. (AC, Ex. H.) On October

18, 2020, Mr. O’Brien followed up with Mr. Joffe and Ms.

Silberstein via email regarding a key to the fourth-floor

restroom, though his email went unanswered by Mr. Joffe. (AC ¶

12.)

On November 4, 2020, Mr. O’Brien learned that a sign

reflecting unisex designation of the fifth-floor restroom was

added to the door of the restroom, which previously appeared to

be designated for women and for which Mr. O’Brien had originally

received and returned a key. (AC ¶ 13; AC, Ex. J.) The older

sign appearing to designate the restroom for women was still

visible on the door as well. (Id.) Mr. O’Brien alleges this

sign reflecting unisex designation was added to the fifth-floor

restroom in lieu of providing him with a personal key to a

unisex or men’s restroom. (AC ¶ 13.)

Ms. Silberstein responded to Mr. O’Brien’s email in a

November 12, 2020 email, to inform him that she had looked into

the bathroom access issue and was assured by Mr. Joffe that Mr.

O’Brien had access to both a men’s restroom on the fourth floor

as well as the multiple unisex bathrooms in the building. (AC ¶

14; AC, Ex. K.) Mr. O’Brien alleges that Ms. Silberstein’s

impression was false and that he did not have a key to any

toilet facility within the building after he returned the

initial key. (Id.) Ms. Silberstein encouraged Mr. O’Brien to

reach out to Mr. Cochran, the HSYCD chapter leader of the United

Federation of Teachers (“UFT”), with any further questions.

(Id.) Following Ms. Silberstein’s email, Mr. O’Brien reached

out to Mr. Cochran, who advised Mr. O’Brien that prior to his

employment at HSYCD, male teachers also used the fifth-floor

restroom for which Mr. O’Brien had originally received and

returned a personal key. (AC ¶ 16.) Mr. O’Brien advised Mr.

Cochran that, as a function of his “strong religious beliefs[,]”

he did not feel comfortable entering a women’s restroom. (Id.)

Plaintiff does not allege that he advised Mr. Cochran or anyone

else that, after he returned the key he was originally provided,

he was being deprived of a personal key to his preferred

restroom on the basis of his race, national origin or sex. Mr.

O’Brien stated that he also shared his concerns with another

African-American math teacher, Mr. Hamilton, who advised that he

“should not[] mess with [Assistant Principal] Joffe.” (AC ¶

17.)

Mr. O’Brien stated that his difficulty accessing a

restroom that matches his gender identity disrupted his

acclimation process to HSYCD and diminished his experience as a

first-year teacher, including because he was either forced to

undertake the embarrassing endeavor of seeking assistance from

other teachers and staff members to access a restroom, or had to

leave the school grounds entirely to comfortably access a

restroom matching his gender identity. (AC ¶ 18.) Mr. O’Brien

alleges these actions were discriminatory because other teachers

belonging to different races and nationalities had personal

restroom keys that reflected their gender. (Id.) Mr. O’Brien

cited the constant need to seek assistance from other teachers

and staff members, as exemplified by the humiliating experience

of interrupting a class session to ask another teacher for a

bathroom key, as negatively impacting his professional

relationships. (AC ¶ 11.) In light of the ongoing COVID-19

pandemic, Mr. O’Brien also noted that the fact that he “went

without access to a toilet facility for months,” and shared keys

with several individuals risked compromising his personal

health. (AC ¶ 15.)

It should be noted that the actual time period during

which Mr. O’Brien worked on HSYCD premises without a personal

key to his preferred restroom is unclear. The Amended Complaint

alleges that he received and returned a key to the unisex

restroom on the fifth floor on September 29, 2023, and that from

November 19, 2020 to March 22, 2021, the school was closed and

all teachers, including Mr. O’Brien, taught remotely. (AC, Ex.

L.) However, Mr. O’Brien claims that [he] went without access

to a toilet facility for months,” while “all other teachers and

school staff had their personal key to a bathroom facility that

reflected their gender, which they could use at their

convenience.” (AC ¶ 15.) Mr. O’Brien also adds that “other

teachers (all belonging to different races and nationalities

other than myself) employed at [HSYCD], not only had personal

restroom keys, but ones that also reflected their gender.” (AC

¶ 18.) He alleges that no other teacher was of the same “Afro-

Indian male Trinidadian” background. (AC ¶ 15.) Mr. O’Brien

also alleges that Mr. G, who shares Mr. O’Brien’s Trinidadian

heritage, mimicked Mr. O’Brien’s Trinidadian accent when stating

he would “break it down in a language” Mr. O’Brien could

understand when denying Mr. O’Brien access to a personal key.

(Id.) Mr. O’Brien alleges there were no other male teachers

required to use “restroom[s] with a female sign affixed to it.”

(AC ¶ 29.)

C. Plaintiff’s Interactions with Co-Teachers at HSYCD

Mr. O’Brien cites two additional interactions with his

colleagues that he believes are examples of discriminatory

behavior that should have been addressed and rebuked by the

HSYCD administration. (AC ¶¶ 22 – 24.) In the first instance,

Mr. O’Brien recalled that on September 30, 2020, shortly after

beginning his probationary position at HSYCD, he received a

“condescending email” from a co-teacher whom he had asked for

assistance identifying the students with an Individualized

Education Program (“IEP”) in their shared class. (AC ¶ 23.)

Mr. O’Brien did not yet have access to the system through which

he otherwise would have been able to verify the names of

students with an IEP. (Id.) He had mistakenly addressed this

teacher as “Mr.” and she corrected him, stating that she should

have been addressed as “Ms.,” that he should know which students

had an IEP, that she was not a “hand-holder,” and that she did

not wish to meet with him after hours to discuss the class they

were co-teaching. (AC, Ex. L.) Mr. O’Brien relayed the

exchange to his supervisors, and the school principal suggested

that he focus on his other classes and give this teacher “time.”

(Id; AC ¶ 23.)

Mr. O’Brien also describes another instance of alleged

discrimination where a white, Jewish teacher questioned a black

student about the student’s COVID-19 vaccination status in Mr.

O’Brien’s presence. (AC ¶ 24.) When the student, who Mr.

O’Brien alleged was uncomfortable with the teacher’s

questioning, asked Mr. O’Brien about his own vaccination status,

Mr. O’Brien shared his belief that a person’s decisions

regarding vaccinations are “personal” and that maintaining

physical and mental health is “crucial[.]” (Id.) Mr. O’Brien

recalls that the teacher responded to his statement by saying

“[i]t’s people like you who have us in this mess.” (Id.) Mr.

O’Brien alleges that a week later, the principal issued a

memorandum that teachers were strongly encouraged not to ask

students about their vaccination status and that the teacher

involved “was never reprimanded for his insensitive and racist

comment.” (Id.) Mr. O’Brien alleges that Defendant’s position

statement in response to his New York State Division of Human

Rights complaint used this incident to show that he was not able

to work with his peers, and that he was falsely accused of

leaving that class early. (Id.) Mr. O’Brien alleges that in

both interactions, the teachers’ remarks were disparaging and

made on the basis of his racial identity and/or were “racist

comment[s].” (AC ¶¶ 23, 24.)

D. Plaintiff’s Complaints Regarding His Inability to

Obtain a Personal Key to his Preferred Restroom

In addition to making repeated requests directly to

HSYCD officials for a key that would facilitate his access to a

men’s or unisex restroom, Mr. O’Brien filed several complaints,

including with the UFT representative of the HSYCD, the New York

Department of Education’s Office of Equal Opportunity &

Diversity Management (“OEO”), the New York State Division of

Human Rights (“NYDHR”), and the U.S. Equal Employment

Opportunity Commission (“EEOC”).

The first of Mr. O’Brien’s complaints follows a

November 12, 2020 letter from Mr. O’Brien’s colleague, Ms.

Silberstein, encouraging him to reach out to the UFT

representative for HSYCD teachers, Mr. Cochran. (AC ¶ 16.) Mr.

O’Brien complained to Mr. Cochran and also the UFT office later

that same day. (AC, Ex. A.)

The following spring, on April 7, 2021, Plaintiff

filed an ethnicity, gender and race complaint with the OEO,

listing Mr. Joffe as the perpetrator of the alleged

discrimination, and Ms. Silberstein and Ms. Washington as

witnesses. (AC, Ex. B.) Mr. O’Brien asserted in his OEO

complaint that he was given a key to the women’s bathroom, but

requested a key to a men’s or gender-neutral bathroom and was

told by a staff member, presumably the custodian, Mr. G., to

speak with the Assistant Principal, who told him Mr. Joffe would

provide a key to the fourth-floor men’s restroom. (Id.) Mr.

O’Brien asserted that instead of providing him with a personal

key to his preferred restroom, Mr. Joffe placed a unisex sign on

the women’s bathroom on the fifth floor and told Mr. O’Brien he

could use that restroom. (Id.) Mr. O’Brien stated that he

“would like to be treated fairly and with dignity and respect by

the [HSYCD] administration” and alleged that he had been

deprived of access to a men’s restroom. (Id.)

On July 21, 2021, Mr. O’Brien filed a discrimination

complaint with the NYDHR alleging both disparate treatment and

retaliation from the HSYCD administration because of his prior

complaints, specifically “a complaint via letter to [the]

principal [and] UFT.” (AC, Ex. C.)

Finally, Mr. O’Brien exercised the right to request an

EEOC review of the December 22, 2021 NYDHR Determination and

Order After Investigation of his NYDHR complaint. (AC, Ex. S.)

Following that review, the EEOC delivered a Determination and

Notice of Rights to Mr. O’Brien informing him that the EEOC

would “not proceed further with its investigation” and advising

Mr. O’Brien of his right to bring suit under federal law within

90 days of the March 3, 2022 notice. (AC, Ex. T.) Mr. O’Brien

filed the instant action within 90 days of that notice. (ECF

No. 1.)

E. Plaintiff’s Retaliation Claims

After receiving a notice, dated August 20, 2021, that

his probationary employment would not be continued, Mr. O’Brien

was ultimately terminated from his probationary role as an HSYCD

Special Education teacher by the Department of Education on

September 20, 2021, seven (7) days after the start of the new

school year. (AC ¶¶ 5, 19, 20.) Mr. O’Brien states that he was

terminated because he made complaints of discrimination on the

basis of his race, national origin, and sex and that his

termination followed conduct and statements from colleagues that

were also retaliatory. (Sur-Reply at p. 6.)

Mr. O’Brien cites to “false accusations of lateness”

made against him by HSYCD officials, including a June 22, 2021

“time and attendance letter,” (Mot. to Dismiss, Walpole Decl.,

Ex. C.) advising Mr. O’Brien of excessive tardiness on ten days

between April 15 and June 8, 2021 (i.e. arrival at HSYCD

premises after 8:00 am for a total of 128 minutes) and/or

excessive and unauthorized fractional absences (or unsanctioned

early departures) fourteen times for a total of 813 minutes, as

another example of retaliation. (AC ¶¶ 4, 25; ECF No. 37-4,

Mot. to Dismiss, Walpole Decl., Ex. C.)1 Mr. O’Brien claims that

he received a text message from a school official, Ms.

Silberstein, explaining that although the school day normally

began at 8:00 am, online learning had shifted the schedule such

that 8:30 am was an acceptable time for Mr. O’Brien to arrive to

work. (AC ¶ 25.) Mr. O’Brien alleges he arrived to work before

1 The Court may consider Exhibit C because Plaintiff’s Amended Complaint

refers to this as the “time and attendance letter,” which Plaintiff claims

makes false accusations. (AC ¶¶ 4, 25.)

8:30 am, as instructed, and that only after he filed complaints

with the UFT, the OEO, and the NYDHR, did school officials raise

the issue of excessive tardiness and unexcused absences. (Id.)

Mr. O’Brien also refers to Defendant’s “biased

performance reviews which contradicted his University (Long

Island University) field officer’s review.” (AC ¶ 4.) Exhibit

L to Plaintiff’s Amended Complaint could be liberally construed

to relate to Mr. O’Brien’s performance review allegations

because Exhibit L mentions a charge of insubordination. The May

21, 2021 “charge[] of insubordination[,]” (Sur-Reply at p. 8;

ECF No. 37-1, Mot. to Dismiss, Walpole Decl., Ex. A) references

a March 26, 2021 incident wherein Mr. O’Brien was alleged to

have “engaged in insubordination by finalizing an IEP without

having it reviewed in violation of school protocols and in spite

of repeated instructions not to finalize IEPs until [Assistant

Principal] Washington or Mr. Hingpis, an experienced special

education teacher conducted a final review for quality control

purposes.” (AC, Ex. L.) The May 21, 2021 letter references an

April 7, 2021 meeting at 11:40 am with the HSYCD UFT

representative, Mr. Cochran, Principal Prendergast, Ms.

Washington, and Mr. O’Brien where Mr. O’Brien was advised that

his finalization of the IEP without final review, in violation

of explicit instruction to obtain a final review, was an act of

insubordination. (ECF No. 37-2, Mot. to Dismiss, Walpole Decl.,

Ex. A.) Based on the time stamp of 1:11 pm on Mr. O’Brien’s OEO

complaint, it appears that Mr. O’Brien filed a complaint with

the OEO immediately after the April 7, 2021 meeting described in

the May 21, 2021 insubordination letter. (Id; AC, Ex. B.)

II. Legal Standard

“Title VII makes an employer liable for discriminating

against its employees based on race or [national origin,

religion, or] gender, or for retaliating against an employee for

having challenged such discrimination.” Sanders v. New York

City Human Resources Admin., 361 F.3d 749, 755 (2d Cir. 2004)

(internal citations omitted). Plaintiff claims that he was

discriminated against in violation of both federal and state

law. Claims under both Title VII and under NYHRL “are generally

treated as analytically identical and addressed together. Both

are governed by the familiar three-step burden shifting

framework set forth in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973).” Farmer v. Shake Shack Enterprises, LC, 473 F.

Supp. 3d 309, 323 – 24 (S.D.N.Y. 2020) (internal citations

omitted). At the motion to dismiss stage, the Court “focus[es]

only on whether the allegations in the [Amended Complaint] give

plausible support to the reduced prima facie requirements that

arise under McDonnell Douglas in the initial phase of a

litigation.” Littlejohn v. City of New York, 795 F.3d 297, 312

(2d Cir. 2015).

“[F]or a discrimination claim to survive a motion to

dismiss, absent direct evidence of discrimination,” an aggrieved

party must show that “[(1)] [he] is a member of a protected

class, [(2)] [he] was qualified, [(3)] [he] suffered an adverse

employment action, and [(4)] [that he] has at least minimal

support for the proposition that the employer was motivated by

discriminatory intent.” Buon v. Spindler, 65 F.4th 64, 79 (2d

Cir. 2023) (citing Littlejohn v. City of New York, 795 F.3d 297,

311 (2d Cir. 2015). Discrimination is not always carried out so

openly as to enable the aggrieved party to point to direct proof

of the alleged discrimination. In such cases, the aggrieved

party may allege facts pointing to circumstantial evidence to

assert their case. Sanders v. New York City Human Resources

Admin., 361 F.3d 749, 755 (2d Cir. 2004).

A “plaintiff bears the initial burden of establishing

a prima facie case of discrimination. If the plaintiff does so,

the burden shifts to the defendant to articulate ‘some

legitimate, non-discriminatory reason’ for its action.” Holcomb

v. Iona College, 521 F.3d 130, 138 (2d Cir. 2008) (internal

citations omitted). “Upon such a showing [by the defendant],

the plaintiff must demonstrate that the reasons offered by the

defendant are a mere pretext for discrimination.” Farmer v.

Shake Shack Enterprises, LLC, 473 F. Supp. 309, 324 (S.D.N.Y.

2020) (citing Littlejohn v. City of New York, 795 F.3d 297, 307

– 08 (2d Cir. 2015). At the motion to dismiss stage however,

“[P]laintiff is not required to plead a prima facie case under

McDonnell Douglas [] as the test was originally formulated[.]”

Buon v. Spinder, 65 F. 4th 64, 79 (2d Cir. 2023). Instead,

plaintiff’s burden of proof to survive a motion to dismiss is

“de minimis.” Farmer v. Shake Shack enterprises, LLC, 473 F.

Supp. 3d 309, 330 (S.D.N.Y. 2020) (internal citations omitted).

“[T]he allegations in the complaint need only give plausible

support to [a] reduced prima facie burden that arise[s] under

McDonnell Douglas in the initial phase of Title VII [and NYSHRL]

litigation.” Duplan v. City of New York, 888 F.3d 612, 625 (2d

Cir. 2018).

An adverse employment action is defined as a

“materially adverse change in the terms and conditions of

employment . . . which is more disruptive than a mere

inconvenience or an alteration of job responsibilities.” Vega

v. Hempstead Union Free School Dist., 801 F.3d 72, 85 (2d Cir.

2015) (internal citations omitted). This includes “termination

of employment . . . or other indices unique to a particular

situation.” Id. (citing Terry v. Ashcroft, 336 F.3d 128, 138

(2d Cir. 2003). This also includes retaliatory harassment

inflicted by co-workers” that an employer “knew about but failed

to take action to abate[.]” Richardson v. New York State Dept.

of Correctional Service, 180 F.3d 426, 446 (2d Cir. 1999).

Title VII and NYHRL also prohibit retaliation against

an employee alleging discrimination, making it unlawful for any

employer to retaliate against an employee because he has “made a

charge, testified, assisted, or participated in any manner in

any investigation, proceeding or hearing under” 42 U.S.C. §

2000e-3 or because he has “filed a complaint, testified or

assisted in any proceeding under” N.Y. Exec. Law § 296(7).

“[T]o establish a prima facie case of retaliation, a plaintiff

must demonstrate that (1) [he] engaged in protected activity,

(2) the defendant was aware of that activity, (3) [he] was

subjected to retaliatory action, or a series of retaliatory

actions, that were materially adverse, and (4) there was a

causal connection between the protected activity and the

materially adverse action or actions.” Carr v. New York City

Transit Authority, 22-CV-792, 2023 WL 5005655, at *5 (2d Cir.

Aug. 7, 2023)).

Protected activity is defined broadly to include

virtually any instance where “an employee communicates to [his]

employer a belief that the employer has engaged in . . . a form

of employment discrimination[.]” Littlejohn v. City of New

York, 795 F.3d 297, 317 (2d Cir. 2015) (citing Crawford v.

Metropolitan Government of Nashville & Davidson County, Tenn.,

555 U.S. 271, 276 (2009)). This includes “filing of formal

charges of discrimination as well as in the making of informal

protests of discrimination[.]” Gregory v. Daly, 243 F.3d 687,

700 (2d Cir. 2001).

In the context of a retaliation claim, materially

adverse retaliatory action is not limited to a “’materially

adverse change in the terms and conditions of employment,’ [as

in] the substantive discrimination context.” Carr, 2023 WL

5005655, at *4 (citing Burlington Northern & Santa Fe Railway

Company v. White, 548 U.S. 53, 60 (2006)). Instead, ”a

‘materially adverse’ action is one that ‘well might have

dissuaded a reasonable worker from making or supporting a charge

of discrimination.” Carr, 2023 WL 5005655, at *5 (citing

Burlington, 548 U.S. at 68.)

Plaintiff may demonstrate a causal connection between

his engagement in protected activity and materially adverse

retaliatory action either “directly, through evidence of

retaliatory animus directed against the plaintiff by the

defendant” or “indirectly, by showing that the protected

activity is followed closely by discriminatory treatment or

through other circumstantial evidence such as disparate

treatment of fellow employees who engaged in similar conduct.”

Hicks v. Baines, 593 F.3d 159, 170 (2d Cir. 2010). “Of course,

in examining the sufficiency of [Plaintiff’s] pleadings of

retaliation, we must omit from consideration those episodes . .

. that preceded [the] protected activity.” Gregory v. Daly, 243

F.3d 687, 701 (2d Cir. 2001). Title VII and NYHRL are “violated

when a retaliatory motive plays a part in [the Defendant’s]

actions . . . whether or not it was the sole cause . . . even if

valid objective reasons for the discharge [also] exist.” Gordon

v. New York City Bd. Of Educ., 232 F.3d 111, 117 (2d Cir. 2000)

(internal citations omitted).

III. Application

This case arises from allegations regarding the

repeated efforts of a probationary Special Education teacher

working in a new school environment to gain access to a key to a

staff restroom that matches his sex. Plaintiff’s core grievance

is that he was given a restroom key to a fifth-floor staff

restroom that was initially marked as a female restroom, but had

been previously used and later marked as a unisex restroom. (AC

¶ 28, Ex. J.) After Mr. O’Brien returned the key to this fifth-

floor restroom on September 30, 2020, he allegedly was not able

to access a unisex or men’s staff restroom without having to ask

his colleagues, or the custodian, Mr. G., for assistance each

time he had to use the bathroom, for two months before the

school converted to remote teaching in November 2020, due to the

COVID-19 virus. It is unclear from the Amended Complaint

whether the first key Plaintiff was given only opened the door

to the fifth-floor restroom, described above and depicted in

Exhibit J to the Amended Complaint. Plaintiff’s Amended

Complaint includes an email from an HSYCD official advising Mr.

O’Brien that he had access to a men’s-only staff restroom on the

fourth-floor and several unisex staff restrooms, (AC, Ex. K),

and also alleges he was advised by the HSYCD UFT representative,

Mr. Cochran, that the fifth-floor restroom he initially received

a key for had been, and was in fact used as a unisex restroom

even before Mr. O’Brien commenced his probationary teaching in

September 2020. (AC ¶ 16; Opp. at p. 11). Nor is it clear from

the Amended Complaint how long after Plaintiff returned the

restroom key on September 30, 2020, he went without access to

the personal key he desired while working on HSYCD premises,

particularly given the claim in “Defendant’s Position statement

to [the] NY State Division of Human Rights[,]” which Plaintiff

includes in his Amended Complaint, that from November 19, 2020

to March 22, 2021, “all teachers at the school, including

[Plaintiff], taught remotely,” due to the COVID-19 pandemic.

(AC, Ex. L.) That same position statement confirms that on

March 21, 2021, the day HSYCD premises reopened, Plaintiff

received a key to the fourth-floor men’s-only restroom and on

March 23, 2021, he confirmed receipt of a key, but Plaintiff

claims he “went without access to a toilet facility for months.”

(AC, Ex. L; AC ¶ 15.) The Amended Complaint and related

exhibits, therefore, include contradictory statements regarding

when Plaintiff eventually obtained a personal key that

corresponded to a restroom matching his sex, and regarding how

long Plaintiff actually worked on HSYCD premises without a

personal restroom key after he returned the initial key on

September 30, 2020.

Nevertheless, for the reasons set forth below,

Plaintiff has failed to adequately plead facts other than his

own ipse dixit statements, that Defendant’s actions, however

unreasonable, were motivated by racial, ethnic, sex or religious

discriminatory intent under Title VII or NYHRL. The Court is

satisfied, however, that Plaintiff’s Amended Complaint provides

plausible factual support under “the reduced prima facie

requirements” for his claim that Defendant engaged in

retaliatory conduct by notifying Plaintiff of his lateness and

unauthorized absences, and in ultimately terminating Plaintiff,

following Plaintiff’s numerous complaints, at least two of which

constitute protected activity. Duplan v. City of New York, 888

F.3d 612, 625 (2d Cir. 2018). By contrast, Plaintiff’s

allegations regarding retaliation based on harassment from

colleagues and regarding biased performance reviews are

insufficient to state a claim.

A. Plaintiff’s Title VII Claim of Discrimination on the

Basis of His Race, National Origin, Sex and Religion

As an initial matter, Plaintiff states that though he

has spiritual and moral values, he does not belong to any

particular religious group and fails to identify a specific

religious affiliation or conviction, on the basis of which the

alleged religious discrimination occurred. (Opp. at p. 4, ¶6)

(“Mr. O’Brien does not belong to any organized religion group,

hence is unable to state a religion for [the] record. Mr.

O’Brien does however hold spiritual and moral values rooted in

stoic philosophy and noted to his UFT representative that it was

against his morals to enter a female bathroom.”) Plaintiff’s

claim that he was discriminated against on the basis of his

religion, in violation of Title VII and NYHRL is belied by his

admission that he does not belong to a religious group, practice

a particular religion or hold specific religious (as opposed to

moral) beliefs that relate to the use of his preferred restroom.

Plaintiff does not plead any facts that support his religious

discrimination claim. Plaintiff, therefore, fails to state a

claim that he was discriminated against on the basis of his

religion. See Equal Opportunity Commission v. United Health

Programs of America, Inc., 213 F. Supp. 3d 377, 394 – 95

(E.D.N.Y.) (explaining that “[t]o determine whether a given set

of beliefs constitutes a religion for purposes of either the

First Amendment or Title VII, courts frequently evaluate: (1)

whether the beliefs are sincerely held and (2) ‘whether they

are, in the believer’s own scheme of things, religious’ . . . In

analyzing [] whether a set of beliefs are, in the believer’s

‘own scheme of things, religious,’ courts look to whether the

belief system involves ‘ultimate concerns’”) (citing Patrick v.

LeFevre, 745 F.2d 153, 157 (2d Cir. 1984)).

Plaintiff’s remaining claims of discrimination on the

basis of his race (black), national origin (Trinidadian), and

sex (male), are presented as interrelated in the Amended

Complaint, so the Court will address them together. First,

Plaintiff is alleging discrimination based on membership in

protected classes. The parties do not dispute that Plaintiff

belongs to three protected classes corresponding to race, sex

and national origin. Plaintiff alleges that he experienced

disparate treatment on the basis of his sex, race, and national

origin by not being provided with a personal key to a restroom

that was consistent with his sex. (AC ¶ 30.) Yet, Plaintiff

alleges that “all other” employees of HSYCD, including men,

black employees, and a custodian whose national origin is

Trinidadian, like Mr. O’Brien, were given keys to staff

restrooms, that were either consistent with their sex, or

unisex, or both. (AC ¶ 15.)

Second, Plaintiff was qualified for his probationary

position. Plaintiff graduated from Long Island University with

a master’s degree in Special Education, (Opp. at p. 2) and was

ultimately hired as a probationary employee by HSYCD presumably

because school officials believed he demonstrated the necessary

qualifications. The Court has considered that the Amended

Complaint attaches as Exhibit S, the NYSDHR decision finding “no

probable cause” to believe that Defendant engaged in

discrimination and retaliation in terminating Mr. O’Brien’s

probationary employment for poor performance, rule violations,

and unprofessional conduct during the 2020 – 2021 academic year,

and noting “contemporaneously recorded documentation of Mr.

O’Brien’s performance deficiencies.” According to the Amended

Complaint, Exhibit S, “[Plaintiff] received the lowest Measures

of Teacher Practice (‘MOTP’) score of all teachers at the school

for his pedagogical deficiencies.” Notwithstanding Defendant's

allegations that Mr. O’Brien exhibited poor performance while on

the job, Defendant does not dispute that Plaintiff was qualified

to be hired for his probationary employment as a Special

Education teacher at HSYCD.

Third, Plaintiff alleges what appears to be two

separate claims regarding adverse employment actions. First,

Plaintiff alleges discriminatory remarks and treatment by his

colleagues, which he claims HSYCD officials were aware of and

failed to redress. Second, Plaintiff alleges that the repeated

and deliberate withholding of a personal key to his preferred

restroom constitutes disparate, discriminatory treatment, and an

adverse employment action.

i. Plaintiff’s Allegations of Discriminatory

Treatment by his Colleagues

Even construing Plaintiff’s allegations regarding the

three alleged instances of discriminatory conduct on the part of

his co-teachers and colleague in the light most favorable to

Plaintiff, the allegations do not give rise to a plausible claim

of discrimination. In the first example wherein Mr. G.

allegedly refused to give Mr. O’Brien another restroom key after

he returned the first key and in response to his request for a

new key, and offers to “‘break it down in a language’ that

[Plaintiff] could understand,” Plaintiff alleges that Mr. G.’s

statement was “offensive[,]” (AC ¶ 15) and was meant to

“mimick[] [Plaintiff’s] accent[.]” (Opp. at p. 4.) Plaintiff

adds that Mr. G. “claimed to be of Trinidadian descent” as well.

(AC ¶ 15.) Here, under the alleged circumstances, “[a] well-

recognized inference against discrimination exists where the

person who participated in the allegedly adverse action is also

a member of the same protected class,” here, a black man of

Trinidadian national origin. Drummond v. IPC Int’l, Inc., 400

F. Supp. 2d 521, 532 (E.D.N.Y. 2005). Although this inference

“does not end the inquiry,” Id, Plaintiff does not meet his

burden of alleging that Mr. G.’s conduct and comment were

anything more than a discourteous, stray remark that fails to

raise an inference of discrimination. See Burlington Northern

and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (“it is

important to separate significant from trivial harms [because]

Title VII . . . does not set forth a ‘general civility code for

the American workplace”) (citing Oncale v. Sundowner Offshore

Services, Inc., 523 U.S. 75, 80 (1998)). Moreover, Plaintiff

does not allege that Mr. G. ever refused to open a restroom door

for Mr. O’Brien when Mr. O’Brien asked.

In the second instance of allegedly discriminatory

conduct on the part of his colleagues, Plaintiff attaches as

Exhibit Q to his Amended Complaint, an email exchange on

September 30, 2020 between himself and his co-teacher, Ms.

Shedden, in which she criticized him, apparently because he

addressed her as “Mr.” rather than “Ms.,” asked for the

identities of their students with IEPs, and offered to meet

between 3:00 pm and 5:00 pm that day. Ms. Shedden stated that

he should know the identities of the students with an IEP and

figure out a way to help them, and added that she is “not a hand

holder,” that she would not meet after hours for his

convenience, and referred him to two other teachers to assist

him. (Id.) Mr. O’Brien relayed Ms. Shedden’s message to his

supervisor and the principal, who advised him to focus on his

other classes and give this teacher “time.” (AC ¶ 23.)

Plaintiff describes Ms. Shedden’s statements as condescending

and an “instance of racial discrimination” and alleges that Ms.

Shedden “happened to be a white female[.]” (AC ¶ 23.)

Plaintiff fails to plead facts suggesting that Ms. Shedden’s

remarks were motivated by racial, national origin or sex-based

discriminatory intent. Nor does Mr. O’Brien allege that he

raised any allegation of discrimination when he forwarded Ms.

Shedden’s email to his supervisor and the principal. Mr.

O’Brien sent Ms. Shedden an email apologizing for addressing her

as “Mr.” instead of “Ms.” and acknowledging that his request for

a list of students with an IEP may have been inappropriate.

(AC, Ex. Q.) The fact that Ms. Shedden “happened to be a white

female” and Mr. O’Brien is an “Afro-Trinidadian male” does not

in and of itself create an inference that Ms. Shedden’s

allegedly “condescending” email response stating her

unwillingness to meet with Mr. O’Brien outside of school hours

or suggesting that Mr. O’Brien should already know “WHO HAS THE

IEP[s]” was motivated by discriminatory animus. (AC ¶ 23; AC,

Ex. Q.) “Plaintiff’s subjective belief that [he] was

discriminated against does not sustain a discrimination claim .

. . A complaint consisting of nothing more than naked

assertions, and setting forth no facts upon which a court could

find a violation of [Title VII or NYHRL], fails to state a claim

under Rule 12(b)(6).” Ortiz v. Montefiore Hospital, 18-CV-4857,

2019 WL 1903366, at *3 (E.D.N.Y. Apr. 29, 2019) (internal

citations omitted).

In the third alleged instance, Plaintiff describes a

teacher’s comment during an online class on April 8, 2021 that

“it’s people like you that have us in this mess” following

Plaintiff’s discussion of his beliefs that people should not

rely on the COVID-19 vaccine to protect against contracting the

virus. Plaintiff alleges that Mr. Richter’s statement was a

“racist comment” and notes that Mr. Richter is a white co-

teacher. (AC ¶ 24.) Similarly, Plaintiff does not plausibly

allege that his co-teacher’s comment about “people like you” was

made in reference to Plaintiff’s race, national origin, or sex,

as opposed to Plaintiff’s position on COVID-19 precautions. The

Court recognizes that the COVID-19 pandemic, and in particular

allegations regarding which racial groups or national origins

are to blame for the COVID-19 pandemic, have been weaponized to

justify discriminatory conduct and even violence against

vulnerable populations. Plaintiff, however, has alleged no

facts from which it can be inferred that that Mr. Richter’s

comments stem from racial, national origin, or sex-based animus.

Plaintiff alleges that a week after this incident, the principal

issued a memorandum strongly discouraging teachers from asking

students about their vaccine status. (AC ¶ 24.) Plaintiff

further alleges that he was falsely accused of “storming out

[of] the online class early,” and that the incident was used to

support Defendant’s NYDHR position statement that Mr. O’Brien

was unable to work with his teaching peers. (Id.) Defendant

offers Mr. Richter’s contemporaneous report of the April 8, 2021

incident (which the Amended Complaint describes), in which Mr.

Richter states he understood that Mr. O’Brien expressed

opposition to COVID-19 precautions such as vaccines and face

masks, and that Mr. Richter’s comments did not reference

Plaintiff’s race, but instead responded to Mr. O’Brien’s views.

The Court need not consider Mr. Richter’s contemporaneous report

in determining that Plaintiff has not alleged sufficient facts

to plausibly establish that Plaintiff’s race, color, religion,

sex, or national origin was a motivating factor in Mr. Richter’s

statement. Vega v. Hemsptead Union Free School Dist., 801 F.3d

72, 86 (2d Cir. 2015).

Furthermore, the three instances cited by Plaintiff as

allegedly discriminatory conduct are isolated incidents that do

not rise to the level of an adverse employment action. “Title

VII does not set forth a general civility code for the American

workplace.” Kaytor v. Electric Boat Corp., 609 F.3d 537, 546

(2d Cir. 2010). This Court finds that Ms. Shedden’s email, Mr.

Richter’s statement and Mr. G.’s mimicking of Mr. O’Brien’s

accent, even if they understandably “engender[ed] offensive

feelings in [Plaintiff,]” did not “sufficiently affect the

conditions of [Plaintiff’s] employment to implicate Title VII.”

Khan v. Abercrombie & Fitch, Inc., 35 F. Supp. 2d 272, 276 – 77

(E.D.N.Y. 1999) (quoting Harris v. Forklift Systems, Inc., 510

U.S. 17, 23 (1993)).

ii. Plaintiff’s Allegation that his Inability to

Access his Preferred Restroom Constitutes an

Adverse Employment Action

Plaintiff also alleges that after he returned a

restroom key to the unisex bathroom on the fifth floor on

September 30, 2020, the Defendant’s failure to provide him with

a personal key to his preferred restroom constituted an adverse

employment action. Plaintiff claims that his inability to

access a personal key for a restroom matching his sex had

material, negative consequences for his employment, including

the fact that his requests for assistance from colleagues posed

a “serious impediment to [his] health and relationships at

work.” (AC ¶ 11.) Mr. O’Brien alleges that between September

30, 2020, when he returned the initial bathroom key, and

November 19, 2020, when the school transitioned to online

classes, he did not have a key to a restroom that matched his

sex and that he was provided a key when the school returned to

in-person classes on March 22, 2021. (AC ¶ 14.) According to

Exhibit R, which Plaintiff attaches to his Amended Complaint,

Mr. O’Brien was provided a key to the fifth-floor unisex staff

bathroom due to its proximity to his fifth-floor classroom.

This bathroom could be locked from inside to ensure single

occupancy and had served as a unisex bathroom during the 2020 –

2021 school year and in prior years. AP Joffe had a unisex sign

affixed to the fifth-floor unisex staff bathroom to address

Plaintiff’s concerns. (AC, Ex. R.) HSYCD’s alleged conduct,

“does not constitute an adverse employment action [merely]

because the employee sustained some generalized harm,” though

the Court acknowledges the inconvenience to Mr. O’Brien after he

returned the fifth-floor restroom key and had to ask other

staff, including Mr. G., to access a restroom. Sosa v. New York

City Department of Education, 368 F. Supp. 3d 489, 496 (E.D.N.Y.

2019). “[T]here must be a link between the discrimination and

some tangible job benefits such as compensation, terms,

conditions or privileges of employment.” Alfano v. Costello,

294 F.3d 365, 373 (2d Cir. 2002) (internal citations omitted).

Despite Plaintiff’s allegations that Defendant’s failure to

provide him with a personal key to his preferred restroom had a

“significant impact” on his professional relationships and his

“physical and mental health,” this Court finds that Defendant’s

actions, as alleged in the Amended Complaint, does not rise to

the level of adverse employment action. Sosa v. New York City

Department of Education, 368 F. Supp. 3d 489, 496 (E.D.N.Y.

2019).

Even if Plaintiff’s inability to regularly access his

preferred restroom with a personal key did constitute an adverse

employment action, however, Plaintiff does not plead sufficient

facts to support a reasonable inference that his race, national

origin, or sex were “motivating factor[s]” in the Defendant’s

actions. See Vega v. Hempstead Union Free School Dist., 801

F.3d 72, 85 – 86 (2d Cir. 2015) (at the motion to dismiss stage,

“a plaintiff asserting a discrimination claim . . . [must allege

that] (1) the employer discriminated against him (2) because of

his race, color, religion, sex or national origin . . . . [A]n

action is ‘because of’ a plaintiffs race, color, religion, sex,

or national origin where it was a ‘substantial’ or ‘motivating’

factor contributing to the employer’s decision . . . [although]

a plaintiff in a Title VII case need not allege ‘but-for’

causation”); see also Grant v. New York State Office for People

with Developmental Disabilities, No. 12-CV-4729, 2013 WL

3973168, at *6 (E.D.N.Y. Jul. 30, 2013) (“[a]ssuming the most

minimal of notice pleading standards, a plaintiff is still

required to give fair notice to the defendants of the factual

bases for his claims . . . [and] allege the essential elements

of an employment discrimination claim – that plaintiff suffered

discrimination on the basis of protected status”)(internal

citations omitted).

Though Plaintiff alleges he was treated disparately,

as compared to other teachers and staff members, he also alleges

that all staff and teachers, some of whom share the same race,

sex and national origin as Plaintiff, “had [a] personal key to a

bathroom facility that reflected their gender, which they could

use at their convenience.”) (AC ¶ 15.) “A plaintiff relying on

disparate treatment evidence must show [he] was similarly

situated in all material respects to the individuals with whom

[he] seeks to compare [himself].” Mandell v. City of Suffolk,

316 F.3d 368, 379 (2d Cir. 2003) (internal citations omitted).

At the pleading stage, a plaintiff’s allegations that he was

treated differently from similarly situated individuals “outside

the protected class will ordinarily suffice for the required

inference of discrimination[.]” Littlejohn v. City of New York,

795 F.3d 297, 313 (2d Cir. 2015).

Plaintiff, however, claims that “all other teachers

and school staff,” including individuals who share his race, sex

and national origin, had access to a personal bathroom key that

facilitated access to their preferred restroom. (AC ¶ 15)

(emphasis added). Plaintiff alleges that “no other employees

belonging to my protected class were asked to request a key from

the custodian when they needed to use the bathroom.” (AC ¶ 10.)

According to Plaintiff, personal keys were provided to teachers

that share Plaintiff’s race and sex, and to a staff member who

shares his national origin, (AC ¶¶ 11, 15, 17) which undermines

Plaintiff’s claim that his inability to access his preferred

restroom with a personal key was because of his race, sex and/or

national origin.

Plaintiff claims he was “the only Afro-Indian male

Trinidadian immigrant teacher on the [HSYCD] teaching staff,”

(AC ¶ 15) an apparent attempt to narrow the group of similarly

situated employees against which Plaintiff’s treatment by the

Defendant can be compared. Nonetheless, Plaintiff still fails

to allege that he is “similarly situated in all material

respects” with all of the other “teachers and school staff” he

distinguishes as having access to personal bathroom keys,

including as it relates to his probationary status, job

description, professional responsibilities, or otherwise.

Littlejohn v. City of New York, 795 F.3d 297, 312 (2d Cir. 2015)

(finding that “an inference of discrimination can arise from . .

. the more favorable treatment of employees not in the protected

group . . . [but that a plaintiff alleging disparate treatment

must show] []he was similarly situated in all material respects

to the individuals with whom []he seeks to compare [him]self”)

(internal citations omitted). As such, Plaintiff fails to

allege facts supporting an inference that after he returned a

personal key to the unisex fifth-floor bathroom, another

personal key to his preferred bathroom was withheld by HSYCD

officials because of his race, sex and/or national origin in

violation of Title VII and NYHRL.

B. Plaintiff’s Title VII Claim of Retaliation

Plaintiff refers to four instances of retaliatory

conduct on the part of the Defendant, two of which include

adequate allegations to survive Defendant’s motion to dismiss,

as explained in further detail below. The first is Defendant’s

“false accusations of lateness[,]” in the form of a “time and

attendance letter” that was issued on June 22, 2021, after

Defendant learned of Plaintiff’s protected activity in filing an

OEO complaint dated April 17, 2021, and which allegedly

“contradicted the text [Plaintiff] received from AP Silberstein

. . . [instructing him] to arrive at work at 8:30 am[.]” (AC ¶

25.) For the reasons set forth below, Plaintiff sufficiently

alleges that Defendant’s “time and attendance letter”

constitutes an act of retaliation. (Id.)

Second, Plaintiff alleges that Defendant gave him

“biased performance reviews which contradicted [Plaintiff’s]

University (Long Island University) field officer’s review of

the very same lesson plans and live teaching[.]” (AC ¶ 4.)

Plaintiff fails to allege facts supporting an inference that

Defendant’s performance reviews were motivated by racial,

national origin or sex-based animus, or were causally connected

to Plaintiff’s protected complaints. Consequently, Plaintiff

fails to allege sufficient facts that the performance reviews

were retaliatory.

Third, Plaintiff alleges he suffered from “the hostile

actions of staff” that constituted retaliation “by school staff

after he made complaints” to the UFT in November 2020 and to the

OEO on April 7, 2021. (AC ¶ 3.) Plaintiff alleges a single

incident relating to the online class discussion regarding

COVID-19 vaccines on April 8, 2021, that is insufficient to

state a retaliation claim.

Finally, Plaintiff alleges that he was terminated from

his probationary position shortly after filing his NYDHR

complaint, (AC ¶ 5) and that the “eventual loss of his job [was]

a result of retaliation.” (Sur-Reply at p. 6.) Plaintiff’s

claim that his termination was retaliatory meets the de minimis

requirements to survive a motion to dismiss.

As an initial matter, Plaintiff’s UFT complaints do

not constitute protected activities under Title VII and NYHRL.

To adequately plead a claim of retaliation at the motion to

dismiss stage, Plaintiff must allege that “(1) [he] engaged in

protected activity, (2) the defendant was aware of that

activity, (3) [he] was subjected to retaliatory action, or a

series of retaliatory actions, that were materially adverse, and

(4) there was a causal connection between the protected activity

and the materially adverse action or actions.” Carr v. New York

City Transit Authority, 22-CV-792, 2023 WL 5005655, at *5 (2d

Cir. Aug. 7, 2023)). Notwithstanding Plaintiff’s claim that

“[a]ll allegations of misconduct happened only after Mr. O’Brien

made a complaint to the UFT office[,]” (Opp. at p. 14) Plaintiff

does not adequately plead that his complaint to the UFT office

constitutes protected activity within the meaning of Title VII

and NYSHRL.

“For purposes of determining whether an activity is

protected, [Title VII and NYSHRL] include[] ‘both an opposition

clause and a participation clause. The opposition clause makes

it unlawful for an employer to retaliate against an individual

because [he] ‘opposed any practice’ made unlawful by Title VII

[or by NYSHRL], while the participation clause makes it unlawful

to retaliate against an individual because [he] ‘made a charge,

testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under’ Title VII [or

NYSHRL].” Littlejohn, 795 F.3d at 316 (internal citations

omitted). Plaintiff alleges that he complained about the

bathroom key to the UFT representative and UFT main office, and

also that he complained informally to several colleagues about

his difficulty accessing his preferred restroom with a personal

key. Mr. O’Brien does not allege that the UFT complaints made

any reference to his race, national origin, or sex and thus, the

UFT complaints do not constitute protected activities under the

participation clause of either Title VII or NYHRL. Neither do

these UFT complaints constitute protected activities under the

opposition clause because Plaintiff does not allege that he

complained of or opposed discriminatory treatment when

complaining, either to the UFT representative, Mr. Cochran, or

the UFT office on November 12, 2020. Plaintiff’s UFT complaint

that Defendant failed to provide Plaintiff with a key to the

fourth-floor restroom does not itself constitute a “practice

made unlawful by Title VII” or by NYHRL. Littlejohn, 795 F.3d

at 316. Therefore, Plaintiff’s UFT complaint does not

constitute a protected activity under Title VII or NYSHRL.

It was not until Plaintiff’s April 7, 2021 OEO

complaint, wherein Plaintiff lists “ethnicity, gender, [and]

race” as the basis for allegations of discrimination that

Plaintiff engaged in a protected activity under Title VII and

NYHRL.

i. Time and Attendance

Plaintiff’s first allegation of retaliatory conduct

relates to Defendant’s time and attendance warning in a June 15,

2021 meeting with Plaintiff and a June 22, 2021 follow-up

letter, that Plaintiff was “late to and/or fractionally absent

from work” on approximately twenty-four instances between “April

15, 2021 and June 8, 2021.” (AC ¶ 25; ECF No. 37-4, Mot. to

Dismiss, Walpole Decl., Ex. C.) For purposes of Defendant’s

12(b)(6) motion, the Court assumes as true Plaintiff’s

allegations that he was given instruction from Ms. Silberstein

that the school day generally started at or before 8:30 am, and

that Plaintiff’s alleged lateness or early departures were

“never an issue until [he] filed complaints with the . . . OEO

and subsequently, the Human Rights Division.” (AC ¶ 25.)

Plaintiff also alleges that he “was never told by any of [his]

supervisors, the school office staff or AP Jofee that [he] was

arriving late for school.” (Id.)

Defendant cites Chung v. City University of New York,

605 F. App’x. 20, 24 (2d Cir. 2015) in support of its motion to

dismiss Plaintiff’s retaliation claim based on Defendant’s

issuance of a time and attendance letter on June 22, 2021. (ECF

No. 37-4, Mot. to Dismiss, Walpole Decl. Ex. C.) Chung is

distinguishable from the instant action. In Chung, Plaintiff

identified “specific actions [by Defendant] alleged to have

occurred after the filing of his discrimination complaint” which

were “similar to [Defendant’s actions] that pre-dated the”

discrimination complaint. Chung, 605 F. App’x. at 24

(“Plaintiff expressly characterizes [the later adverse

employment action] as a furtherance of the earlier

discrimination”).

In contrast to Chung, Plaintiff in the instant action

explicitly alleges that Defendant’s June 22, 2021 letter and

June 15, 2021 meeting regarding his lateness and unauthorized

absences occurred after Plaintiff filed his OEO complaint on

April 7, 2021, and that Defendant did not take issue with

Plaintiff’s alleged lateness or early departures prior to his

filing of the OEO complaint. (AC ¶ 25.) Regarding Plaintiff’s

retaliation claim relating to Defendant’s time and attendance

letter and meeting with Plaintiff, Plaintiff alleges that his

“protected activity was followed closely by discriminatory

treatment” and further “alleges facts that would be sufficient

to establish the other elements of a prima facie case of

retaliation[.]” (See AC ¶ 25) (“I was issued a time and

attendance letter on June 25, 2021 which outlined that I had

been late for the expected work . . . This was never an issue

until I filed complaints with the UFT, OEO, and subsequently,

the Human rights Division. I was never told by any of my

supervisors, the school office staff or AP Jofee that I was

arriving late for school.”) The Court finds that Plaintiff’s

allegation that Defendant engaged in retaliatory conduct

following Plaintiff’s April 7, 2021 OEO complaint by issuing a

time and attendance letter on June 22, 2021 advising Plaintiff

of excessive lateness and unauthorized absences, allegedly for

the first time, is sufficient to withstand the instant motion to

dismiss the retaliation claim based on time and attendance

warnings.

ii. Performance Reviews

As to Plaintiff’s allegation that he received biased

performance reviews in retaliation for his complaints, “[a]

causal connection in retaliation claims can be shown either ‘(1)

indirectly, by showing that the protected activity was followed

closely by discriminatory treatment . . . or (2) directly,

through evidence of retaliatory animus directed against the

plaintiff by the defendant.” Littlejohn v. City of New York,

795 F.3d 297, 319 (2d Cir. 2015). Plaintiff’s opposition to

Defendant’s motion to dismiss cites the largely neutral or

positive May 2021 review in Plaintiff’s Opposition memorandum at

Exhibit R, (ECF No. 42-1, Opp., Ex. R.) as a “lesson observation

review from [Plaintiff’s] field officer” that “contradict[s] the

school’s lesson analysis[.]” (Opp. at p. 18 - 19; describing

ECF No. 42-1, Opp., Ex. R.) Plaintiff does not clarify, cite,

or explain what biased school reviews by Defendant contradicts

his field officer’s reviews. Nor does he state the timing of

the allegedly biased school reviews by Defendant that were in

relation to Plaintiff’s protected activity.

The only reference in Plaintiff’s pleadings that could

be liberally construed to constitute a negative review of

Plaintiff’s job performance is found in Exhibit L to Plaintiff’s

Amended Complaint, in which Defendant stated that Plaintiff

engaged in insubordination by failing to obtain the necessary

approval from Defendant, contrary to Defendant’s repeated

instructions, before finalizing student IEPs on March 26, 2021.

(AC, Ex. L.) In a May 21, 2021 letter describing the incident,

Plaintiff is alleged to have “finaliz[ed] an IEP without having

it reviewed in violation of school protocols and in spite of

repeated instructions” that a “final review for quality control

purposes” was required. (AC, Ex. L.) Defendant’s May 21, 2021

letter, describing the March 26, 2021 incident, references an

April 7, 2021 meeting with Plaintiff, the UFT representative,

Mr. Cochran, Ms. Washington, and Principal Prendergast, which

took place at 11:40 am and during which Plaintiff was advised

that “on March 26th, 2021 [he] finalized an IEP in SESIS despite

[] repeated instructions . . . not to[.]” (ECF No. 37-2, Mot.

to Dismiss, Walpole Decl. Ex. A. 2) Plaintiff was reminded of

the school’s protocols regarding the IEP process and was “urged

[] to follow the guidance and directions” that he was receiving

from his supervisors and colleagues. (Id.) Plaintiff was also

informed of Ms. Washington’s “concern[] that [he] was not

2 Plaintiff attached Exhibit L to the Amended Complaint regarding the finding

of insubordination and referencing the May 21, 2021 letter from Defendant

advising Plaintiff of his insubordination. The Court thus considers Exhibit

A to the Walpole Declaration in Defendant’s Motion to Dismiss, which is the

May 21, 2021 letter to Plaintiff regarding his insubordination charge based

on his failure to obtain necessary approval before finalizing student IEPs.

See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (finding

that “on a motion to dismiss, a court may consider ‘documents attached to the

complaint as an exhibit or incorporated in it by reference . . . [including]

documents either in plaintiffs’ possession or on which plaintiffs had

knowledge and relied on in brining suit’”) (internal citations omitted).

truthful and forthcoming [] when [] asked [] directly about the

progress [Plaintiff] made on this IEP and [his] outreach to Mr.

Hingpis.” (Id.)

To the extent that this allegedly “false charge of

insubordination” constitutes a biased performance review that

Plaintiff alleges is an act of retaliation, the April 7, 2021,

11:40 am meeting, where Plaintiff was advised of Ms.

Washington’s claim that he engaged in an act of insubordination,

directly preceded Plaintiff’s first complaint of discrimination,

the OEO complaint filed on April 7, 2021 at 1:11 pm. (AC, Ex.

B.) Even though the April 7, 2021 charge of insubordination was

not described or confirmed in writing until the Defendant’s May

21, 2021 letter, Plaintiff was put on notice of the charge of

insubordination at the 11:40 am meeting with Defendant on April

7, 2021, before he engaged in protected activity by filing this

OEO complaint at 1:11 pm on April 7, 2021. Thus, Plaintiff’s

retaliation claim based on the insubordination charge is

dismissed.

iii. Hostile Actions of Staff

Plaintiff’s third claim of alleged retaliation is also

unavailing and is dismissed. Plaintiff claims he suffered from

“the hostile actions of staff” and retaliation “by school staff

after he made complaints” to the UFT in November 2020, and to

the OEO on April 7, 2021. (AC ¶ 3.) The Court has already

addressed the UFT complaints that are not protected activity

under Title VII and NYSHRL. Plaintiff cites “false accusations

by staff on April 21, 2021” as the single retaliatory act by

“school staff” occurring “in close proximity to his complaint.”

(Sur-Reply at p. 8.) Plaintiff describes an allegedly

retaliatory incident on April 21, 2021, in which co-teacher, Mr.

Richter made an allegedly “racist comment” during a class

discussion about COVID-19 vaccines in a virtual classroom

setting, (AC ¶ 24; Opp. at p. 15 - 16) however, the email dated

April 8, 2021 from Mr. Richter describes the same incident as

occurring earlier on the morning of April 8, 2021 – not April

21, 2021. (ECF No. 37-3, Mot. to Dismiss, Walpole Decl., Ex.

B.)3 Although the Second Circuit recognizes “unchecked

retaliatory co-worker harassment, if sufficiently severe” as a

materially adverse action in a prima facie retaliation case,

this Court finds that even if Plaintiff had alleged that Mr.

Richter was aware of Plaintiff’s April 7, 2021 OEO complaint,

which he did not, Mr. Richter’s April 8, 2021 comment does not

rise to the level of “materially adverse” action. Richardson v.

New York State Dept. of Correctional Service, 180 F.3d 426, 446

(2d Cir. 1999); see also Carr v. New York City Transit

Authority, 22-CV-792, 2023 WL 5005655, at *5 - 6 (2d Cir. Aug.

3 This Exhibit is properly considered by the Court because Plaintiff has made

allegations about this incident in his Amended Complaint.

7, 2023) (finding that in order to “make out a prima facie case”

that Plaintiff was subject to “a retaliatory hostile work

environment[,]” Plaintiff must show “that the allegedly

retaliatory actions, taken either singularly or in the

aggregate, were ‘materially adverse’” and “would ’dissuade a

reasonable worker from making or supporting a charge of

discrimination”)(internal citations omitted). Furthermore,

Plaintiff does not allege that Ms. Shedden’s September 30, 2020

email regarding students with IEPs and Mr. G.’s comment

allegedly mocking Plaintiff’s accent constitute retaliatory

harassment. Nor could he. Both incidents predated his

protected complaints.

iv. Termination of Plaintiff’s Probationary Position

In connection with Mr. O’Brien’s claim that he was

terminated by Defendant in retaliation for filing the protected

complaints, Plaintiff has sufficiently “made out a prima facie

case of retaliation under Title VII [and NYHRL] by alleging in

[his Amended Complaint] that [he] complained” to the OEO on

April 7, 2021 (AC, Ex. B), and to the NYDHR on July 21, 2021

(AC, Ex. C), and that he was given notice of Defendant’s

discontinuance of his employment on August 20, 2021, (AC, Ex. D)

approximately one week after he received confirmation of receipt

of his NYDHR complaint on August 13, 2021. Gorzynski v. JetBlue

Airways Corp., 596 F.3d 93, 111 (2d Cir. 2010) (finding that

because Plaintiff “lodged her complaint within at most two

months of her firing . . . at least for the purposes of making

out a prima facie case, she sufficiently alleged a causal

connection between her protected complaint . . . and her

termination.”) By the time Plaintiff received Defendant’s

August 20, 2021 notice of discontinuance of his probationary

employment, Plaintiff had engaged in multiple instances of

protected activity and Defendant does not dispute that HSYCD was

aware of Mr. O’Brien’s protected complaints. Job termination is

a well-recognized adverse employment action. See Farmer v.

Shake Shack enterprises, LLC, 473 F. Supp. 3d 309, 331 (S.D.N.Y.

2020) (“[Plaintiff’s] termination [is] undisputedly an adverse

employment action”). For the purposes of Defendant’s motion to

dismiss, Plaintiff “sufficiently alleged a causal connection

between [his] protected complaint[s] . . . and [his]f

termination.” Gorzynski, 596 F.3d at 111.

Plaintiff’s claim that he was retaliated against by

Defendant when he was terminated from his probationary

employment after he engaged in protected filings of

discrimination complaints is sufficient to meet the “de minimis”

standard at this stage. Farmer v. Shake Shack enterprises, LLC,

473 F. Supp. 3d 309, 330 (S.D.N.Y. 2020) (internal citations

omitted). Accordingly, the Court denies Defendant’s motion to

dismiss Plaintiff’s claim that he was terminated in retaliation

for his protected discrimination complaints.

IV. Plaintiff’s Claim that he was Subject to Hostile Work

Environment

Plaintiff states that his NYDHR and EEOC complaints

provide notice of his claim that he was subject to a hostile

work environment. (Sur-Reply at p. 7.) Plaintiff asserts this

claim for the first time, however, in his opposition to

Defendant’s motion to dismiss. He did not allege a hostile work

environment in his administrative complaint or his Amended

Complaint. “A party is not entitled to amend its complaint

through statements made in motion papers.” Wright v. Ernst &

Young LLP, 152 F.3d 169, 178 (2d Cir. 1998) (declining to

consider a claim made by Plaintiff “for the first time in [his]

opposition memoranda to the motion to dismiss”).

In any case, Plaintiff’s allegations, in the Amended

Complaint and in subsequent briefing, do not meet the standard

for a hostile work environment claim. “To establish a hostile

work environment under Title VII [or NYHRL], 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). A hostile

work environment claim includes “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).

Plaintiff alleges that “the discriminatory actions of

[HSYCD,] which include the school’s denial of a key to a

bathroom, the bias[ed] treatment based on religious belief,

race, nationality, and gender . . . [and] his feeling like a

second class citizen” all contributed to “the hostile work

environment he experienced at the school.” (Sur-Reply at p. 7.)

Plaintiff also cites the “hostile actions of staff[,]” in

reference to the April 21, 2021 incident with Mr. Richter, as a

“reflect[ion] [of] the negative and hostile environment

[created] by the staff.” (Opp. at pp. 16, 18.)

Putting aside the factual contradictions regarding

whether, and for how long, Plaintiff was denied possession of a

personal key to unisex or men’s restrooms, the other alleged

instances do not rise to the level of a hostile work environment

under Title VII and NYHRL. Mr. Richter’s comment and

Plaintiff’s difficulty accessing his preferred restroom key are

not so “severe or pervasive [as to have] alter[ed] the

conditions of [his] employment and create[d] an abusive working

environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21

(1993). As discussed above, the Court finds that the Amended

Complaint fails to allege plausible facts that Mr. Richter’s

comment constitutes a racial epithet in the context of the class

discussion, but even if it did, a “mere utterance of an epithet

which engenders offensive feelings . . . does not sufficiently

affect the conditions of employment to implicate Title VII.”

Id. at 21. However unfortunate Plaintiff’s experience at HSYCD

seems to have been, Plaintiff’s hostile work environment

allegations are well “beyond Title VII’s [and NYHRL’s] purview.”

Id.

V. Plaintiff’s Claim of Intentional Infliction of Emotional

Distress and his Claim for Punitive Damages

Plaintiff claims Defendant’s actions constituted

“intentional infliction of emotional distress of having [his]

basic human rights violated[,]” (AC ¶ 33) including “an enormous

amount of stress” that “caused [him] to worry about his job, his

bills and providing for his wife and three children.” (Opp. at

p. 18.) Plaintiff adds that he “not only lost his job but his

teaching credentials as well as the ability to complete his

Master’s degree in Education.” (Id.)

Defendant notes, “it is well settled that public

policy bars claims sounding in intentional infliction of

emotional distress against a governmental agency.” J.H. v.

Bratton, 248 F. Supp. 3d 401, 416 n. 10 (E.D.N.Y. 2017).

Similarly, “it is well settled that a municipality is immune

from punitive damages.” Piotrowski on behalf of J.P. v. Rocky

Point Union Free School District, 462 F. Supp. 3d 270, 288

(E.D.N.Y. 2020) (citing City of Newport v. Fact Concerns, Inc.,

453 U.S. 247, 248 (1981); Ciraolo v. City of New York, 216 F.3d

236, 238 (2d Cir. 2000)). Plaintiff failed to allege plausible

facts to sustain his claim for intentional infliction of

emotional distress or to claim punitive damages against the

Department of Education. See J.H. v. Bratton, 248 F. Supp. 3d

401, 416 n. 10 (E.D.N.Y. 2017) (permitting Plaintiff’s “IIED

claim . . . only against the individual [defendants] involved in

the misconduct alleged”); see also Piotrowski, 462 F. Supp. 3d

at 288 - 89 (“[p]unitive damages may be awarded against

individual defendants”). Plaintiff’s claim that Defendant

intentionally inflicted emotional distress upon him and his

request for punitive damages, therefore, must be dismissed.

VI. Conclusion

For the forgoing reasons, Defendant’s motion to

dismiss Plaintiff’s claim of retaliation in violation of Title

VII and NYHRL in connection to Defendant’s June 22, 2021 time

and attendance letter alleging that Plaintiff was excessively

late and departed early without authorization, as well as

Plaintiff’s claim of retaliation relating to Defendant’s

discontinuance of Plaintiff’s probationary employment is DENIED.

Defendant’s motion to dismiss all other claims, including

Plaintiff’s two remaining retaliation claims; Plaintiff’s claims

that he was discriminated against on the basis of his race,

religion, national origin and sex, and that he was subject to a

hostile work environment under Title VII and NYHRL; as well as

Plaintiff’s intentional infliction of emotional distress claim,

and claim for punitive damages is GRANTED and the claims are

DISMISSED.

Federal Rule of Civil Procedure 15(a) dictates that leave

to amend a complaint shall be freely given “when justice so

requires.” Although the Second Circuit has advised that “the

usual practice upon granting a motion to dismiss [is] to allow

leave to replead,” Cortec Indus., Inc. v. Sum Holding L.P., 949

F.2d 42, 48 (2d Cir. 1991) (internal citations omitted), Plaintiff

has already been granted leave to amend his Complaint. (August

2, 2022 Minute Entry,) see Ruotolo v. City of New York, 514 F.3d

184, 191 (2d Cir. 2008) (“leave to amend, though liberally

granted, may properly be denied for . . . failure to cure

deficiencies by amendments previously allowed”) (internal

citations omitted). The Court will nonetheless consider

granting further leave to amend if Plaintiff is able to provide

a proposed Second Amended Complaint that addresses the factual

deficiencies discussed in this Memorandum and Order by September

11, 2023. Plaintiff’s proposed Second Amended Complaint may not

replead claims for intentional infliction of emotional distress,

seek punitive damages, or bring claims that were not

administratively exhausted.

The Defendant is directed to serve Plaintiff with a

copy of this Memorandum and Order and note service on the docket

by August 15, 2023. The parties shall meet and confer and

jointly advised the Court via ECF, no later than September 11,

2023, how they intend to proceed. The parties are urged to

consider settlement of this action.

SO ORDERED.

Dated: August 14, 2023 b -

Brooklyn, New York . f? VY, —

“Vy oye et bee

KIYO A. MATSUMOTO) ——™

United States District Judge

Eastern District of New York

54