# Gahfi v. City of New York

> District Court, E.D. New York · February 28, 2025

URL: https://www.frixlaw.com/law-library/cases/10815696

## Case

- **Court:** District Court, E.D. New York
- **Decided:** February 28, 2025
- **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/10815696

## How later opinions describe it (automated extraction)

- holding that plaintiff adequately pled that she was subject to disparate treatment by comparing her treatment to “other middle school principals . . . who were not African American or West Indian”
- reasoning that because the plaintiff did not establish a hostile work environment, “her claim of constructive discharge also fails”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------- X
HADAR GAHFI, :
:
Plaintiff, :
: MEMORANDUM DECISION AND
-against- : ORDER
:
NEW YORK CITY DEPARTMENT OF : 23-cv-1782 (BMC)
EDUCATION and SHENEAN LINDSAY, :
:
Defendants. :
---------------------------------------------------------- X

COGAN, District Judge.

This religious and disability discrimination suit is before the Court on defendants’ motion
to dismiss. For the reasons set forth below, defendants’ motion is granted in part and denied in
part.
SUMMARY OF AMENDED COMPLAINT
Plaintiff practices Hasidic Judaism. She has been employed at the defendant
Department of Education (“DOE”) since 1997. More than twenty years ago, she was assigned to
P.S. 191 as “educational evaluator.” By 2018, she had risen to the level of principal of the
school, a position she held until January 2023.
Her problems stem from her relationship with the manager who was appointed over her
in 2021, defendant Shenean Lindsay, a Community Superintendent for DOE District 17, which
includes P.S. 191. It is alleged that Lindsay (and therefore DOE) discriminated against plaintiff
based on her religion by making disparaging remarks about how Hasidic women had to limit
their contact with men, including telling plaintiff to “get thick skin and get over herself” and that
plaintiff would be subject to disciplinary action if she refused to meet with a male teacher alone.
Lindsay also did not provide plaintiff with kosher meals at district meetings and conferences.
Furthermore, defendants refused to assign plaintiff an assistant principle to shoulder some
of her workload, despite the fact that other schools with non-Hasidic principals were assigned
assistant principals. And Lindsay ordered plaintiff to teach summer school, even though that
activity was generally assigned to assistant principals. When plaintiff refused to teach summer

school without an assistant principal, Lindsay stated “okay, if that’s the way you want this, two
people can play that game.’” Finally, as it relates to plaintiff’s religious discrimination claim,
defendants extended her probationary period and denied her tenure.
Plaintiff also claims that defendants created a hostile work environment and that she was
constructively discharged. She makes these claims based on the above allegations, as well as
Lindsay’s denial of plaintiff’s claim for Line of Duty Injury (“LODI”) benefits related to a work-
related slip and fall injury, her summoning of plaintiff to a disciplinary meeting while plaintiff
was on leave, and Lindsay’s neglect of plaintiff’s complaints about a teacher around whom
plaintiff felt unsafe, Mr. Burgher.
Plaintiff injured herself at school while assessing damages from Hurricane Ida, suffering

a fractured pelvis and a tear in her hip. Her injury caused her to have trouble walking, standing,
sitting, and going to the bathroom. Plaintiff underwent two surgeries and used a cane or a
wheelchair to get around. Plaintiff made a claim for LODI benefits based on this injury, which
Lindsay denied. Lindsay informed plaintiff that she needed to report to work without any
reasonable accommodation within five days of denying plaintiff’s request. Plaintiff was forced
to use 203 of her own vacation (CAR) days, which she accumulated over 25 years. DOE Human
Resources approved plaintiff’s use of these CAR days to take medical leave for the entire school
year based on her injury, but it does not appear that defendants ever approved plaintiff’s LODI
benefits claim, which would have allowed plaintiff to take medical leave without using her CAR
days.
Lindsay refused to acknowledge that Human Resources had approved plaintiff’s medical
leave, and wrote a letter to DOE stating that plaintiff was taking unauthorized leave. While

plaintiff was on authorized leave, Lindsay ordered plaintiff to report to a meeting to discuss
plaintiff’s time and attendance, telling plaintiff that the meeting might result in disciplinary
action. Plaintiff does not allege that any disciplinary action actually resulted from this meeting.
Plaintiff took several actions to protest or oppose defendants’ above-described conduct.
On November 19, 2021, plaintiff filed a notice of claim alleging discrimination and served it on
defendants.1 The notice of claim alleged religious and disability discrimination, among other
claims not relevant here. Plaintiff recited DOE’s failure to assign her an assistant principal,
which “has contributed to an unsafe working environment;” Lindsay’s “trying to force” plaintiff
to work summer school; Lindsay’s failure to provide kosher food; her comments about plaintiff’s
only having limited contact with men; Lindsay’s denial of plaintiff’s LODI claim and demand

that plaintiff report to work “on the next school day;” and her refusal to investigate or otherwise
address plaintiff’s complaints against Burgher.
Plaintiff also filed a dual complaint with the New York State Division of Human Rights
(“NYSHDR”) and the U.S. Equal Employment Opportunity Commission (“EEOC”); contacted
DOE’s District 17 attorney, her union, and Lindsay directly, requesting a transfer or work from
home accommodation based on her perception of a hostile work environment and retaliation; and
filed a complaint with the New York City School District Special Commissioner of

1 Plaintiff lists the date of her notice of claim as November 19, 2022 in her amended complaint. But the notice of
claim plaintiff attached to her amended complaint is dated November 19, 2021, and so is the verification of the
notice, which was sworn before a notary public on November 19, 2021.
Investigation. In addition, she filed four complaints with the DOE Office of Equal Opportunity
and Diversity Management (“OEO”), including one on April 20, 2022 alleging religious and
disability discrimination as well as a hostile work environment.
Based on the above allegations, plaintiff brings the following claims: religious

discrimination in violation of Title VII, the New York State Human Rights Law (“NYSHRL”)
and New York City Human Rights Law (“NYCHRL”); hostile work environment in violation of
Title VII, the NYSHRL, and the NYCHRL; disability discrimination in violation of the
Americans with Disabilities Act (“ADA”), the NYSHRL, and the NYCHRL; and retaliation in
violation of Title VII, the ADA, the NYSHRL, and the NYCHRL.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a
complaint for failure to state a claim upon which relief can be granted. In deciding a motion
under Rule 12(b)(6), the Court must “constru[e] the complaint liberally, accept[ ] all factual
allegations in the complaint as true, and draw[ ] all reasonable inferences in the plaintiff's favor.”

Elias v. Rolling Stone LLC, 872 F.3d 97, 104 (2d Cir. 2017) (quoting Chase Grp. All. LLC v.
City of New York Dep’t of Fin., 620 F.3d 146, 150 (2d Cir. 2010)). To survive a motion to
dismiss, a complaint must 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), and to “allow[ ] 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). Determining whether a complaint states a plausible claim for
relief is a “context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.
“In certain circumstances, the court may permissibly consider documents other than the
complaint in ruling on a motion under Rule 12(b)(6).” Roth v. Jennings, 489 F.3d 499, 509 (2d
Cir. 2007). “When determining the sufficiency of plaintiff[’s] claim for Rule 12(b)(6) purposes,
consideration is limited to the factual allegations in [the] complaint, documents attached to the

complaint as an exhibit or incorporated in it by reference, matters of which judicial notice may
be taken, or documents either in plaintiff[’s] possession or of which plaintiff[ ] had knowledge
and relied in bringing suit.” Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993).
Additionally, “[i]n employment discrimination cases, courts may consider filings with state
administrative agencies or the EEOC to the extent that a complaint necessarily rests upon them.”
Parke v. Assist Ambulance, No. 23-cv-9066, 2025 WL 513266, at *4 (E.D.N.Y. Feb. 17, 2025)
(citing Littlejohn v. City of New York, 795 F.3d 297, 305 n.3 (2d Cir. 2015)).
DISCUSSION
I. Notice of Claim Requirement
Defendants contend that plaintiff’s notice of claim alleges only discrimination, requiring

dismissal of her state law hostile work environment, retaliation, and failure to accommodate
claims. This argument fails as to plaintiff’s hostile work environment and failure to
accommodate claims, but this Court grants dismissal of plaintiff’s state law retaliation claims.
Section 3813 of New York’s Education Law requires a plaintiff to file a notice of claim
before bringing an action against DOE or its officers. N.Y. Educ. Law § 3813(1); see also N.Y.
Gen. Mun. Law § 50-e. This requirement only applies to state law claims, but it applies to such
claims even if they are brought in federal court. Brown v. Cnty. of Westchester, No. 22-cv-6146,
2024 WL 21937, at *10 (S.D.N.Y. Jan. 2, 2024); Smith v. New York City Dep’t of Educ., 808 F.
Supp. 2d 569, 578 (S.D.N.Y. 2011). The notice of claim must be “presented to the governing
body of [the] district or school within three months after the accrual of [the] claim.” N.Y. Educ.
Law § 3813(1).2
“[A] notice of claim must contain sufficient information to permit the [defendant] to
conduct an adequate investigation of the allegations.” Hartley v. Rubio, 785 F. Supp. 2d 165,

185 (S.D.N.Y. 2011) (citations omitted) (cleaned up). To permit a defendant to conduct an
adequate investigation, a notice of claim must include “the nature of the claim, the time when,
the place where and the manner in which the claim arose.” Richard v. New York City Dep’t of
Educ., No. 16-cv-957, 2022 WL 4280561, at *17 (E.D.N.Y. Sept. 15, 2022) (quotation omitted).
These requirements “need not be stated with literal nicety or exactness. . . . Instead, the question
is merely whether the notice of claim includes information sufficient to enable the city to
investigate.” Parise v. New York City Dep’t of Sanitation, 306 F. App’x 695, 697 (2d Cir. 2009)
(quotations omitted) (cleaned up). “Any claim for relief or theory of liability not directly or
indirectly mentioned in the notice of claim against the municipality may not be included in
subsequent lawsuits.” Miranda v. S. Country Cent. Sch. Dist., 461 F. Supp. 3d 17, 30 (E.D.N.Y.

2020) (citation omitted).
Here, plaintiff’s notice contained sufficient information from which defendants could
adequately investigate and understand plaintiff’s hostile work environment and failure to
accommodate claims, but not her retaliation claims. As discussed below, under the NYCHRL

2 “[I]n some instances courts have allowed a complaint of discrimination filed with the EEOC or the NYSDHR to
substitute for the actual notice of claim, [but] they have held plaintiffs to the requirement to serve on the DOE’s
governing board.” Bacchus v. New York City Dep’t of Educ., 137 F. Supp. 3d 214, 234 (E.D.N.Y. 2015). Plaintiff
fails to allege that she served her dual NYSDHR/EEOC complaint or any of her four OEO complaints on the
appropriate governing body, or that she did so within the requisite time period. Accordingly, this Court will not
consider any of these filings as substitute notices of claim, and will only consider the sufficiency of plaintiff’s actual
notice of claim. See Richard v. New York City Dep’t of Educ., No. 16-cv-957, 2017 WL 1232498, at *21
(E.D.N.Y. Mar. 31, 2017) (holding that because plaintiff “does not allege that he served his EEOC charge on any
appropriate entity or individual, or that he did so within the time period required . . . Plaintiff’s EEOC charge does
not satisfy the notice-of-claim requirements” (collecting cases)).
and (at least for purposes of this motion) the NYSHRL, all a plaintiff must show to prevail on a
hostile work environment claim is that she was treated less well because of her religion. In her
notice of claim, plaintiff included allegations that she was not assigned an assistant principal and
thus she was ordered to work summer school, but that similarly situated principals who were not

Hasidic were not subjected to this treatment. Plaintiff also included her complaints about
Lindsay’s failure to provide kosher food and Lindsay’s denigrating comments about plaintiff’s
refusal to shake hands with men due to her religion. Moreover, plaintiff referenced that she was
experiencing an “unsafe working environment.” This Court will not bar a claim based on
plaintiff’s use of the word “unsafe” instead of “hostile.” The information plaintiff provided was
more than sufficient to enable defendants to investigate plaintiff’s NYSHRL and NYCHRL
hostile work environment claims.
Plaintiff also included sufficient information in her notice of claim to allow defendants to
investigate her failure to accommodate claim. Plaintiff’s notice of claim put defendants on
notice that plaintiff requested an accommodation in the form of her LODI benefits claim, it was

denied, and no other accommodation was offered to plaintiff (“Respondents . . . demand[ed] that
Claimant return to work on the next school day.”). This level of detail would have allowed
defendants to investigate plaintiff’s failure to accommodate claim.
In contrast, plaintiff made no reference to any retaliatory actions by defendants, so
defendants could not have investigated such claims based on plaintiff’s notice of claim. The fact
that many of plaintiff’s allegations related to her retaliation claims arose after she filed her notice
of claim does not change this analysis. Plaintiff needed to file a new notice of claim, within
three months of the events giving rise to her retaliation claims, to be able to bring these claims.
See Everett v. New York City Dep’t of Educ., No. 21-cv-7043, 2023 WL 5629295, at *10
(S.D.N.Y. Aug. 31, 2023). Accordingly, plaintiff’s retaliation claims based on religion and
disability under both the NYSHRL and NYCHRL are dismissed.
II. Religious Discrimination
A. Title VII
Title VII makes it unlawful for an employer “to discriminate against any individual . . .

because of such individual’s . . . religion.” 42 U.S.C. § 2000e–2(a)(1). To establish a prima
facie case of employment discrimination under Title VII, a plaintiff must ultimately prove that
“(1) she is a member of a protected class; (2) she is qualified for her position; (3) she suffered an
adverse employment action; and (4) the circumstances give rise to an inference of
discrimination.” Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Because Title VII “does not
create liability in individual supervisors and co-workers who are not the plaintiffs’ actual
employers,” Littlejohn, 795 F.3d at 313 (quoting Raspardo v. Carlone, 770 F.3d 97, 113 (2d Cir.
2014)), plaintiff brings this claim only against her employer, DOE.
At the motion to dismiss stage, 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). Instead, “[t]he facts alleged must [only] give plausible support to the reduced
requirements that arise under McDonnell Douglas in the initial phase of a Title VII litigation.”
Littlejohn, 795 F.3d at 311. Specifically, plaintiff must plead facts that plausibly allege that “the
plaintiff is a member of a protected class, was qualified, suffered an adverse employment action,
and has at least minimal support for the proposition that the employer was motivated by
discriminatory intent.” Id.
The parties do not dispute that the first two requirements are satisfied, that plaintiff is a
member of a protected class and that she was qualified for her position. Therefore, this Court
considers whether plaintiff has adequately pled that she suffered an adverse employment action
and whether she has minimal support for the assertion that the adverse employment action(s)
were motivated by discrimination.
i. Adverse Employment Action

A plaintiff plausibly alleges an adverse employment action if she “endures a materially
adverse change in the terms and conditions of employment” that is “more disruptive than a mere
inconvenience or an alteration of job responsibilities.” Raspardo, 770 F.3d at 125-26 (internal
quotation marks and quotations omitted). Examples include “termination of employment, a
demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of
benefits, significantly diminished material responsibilities, or other indices . . . unique to a
particular situation.” Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004) (quotation
omitted). But a “bruised ego,” a “demotion without change in pay, benefits, duties, or prestige,”
or “reassignment to [a] more inconvenient job” are all insufficient to constitute a tangible or
materially adverse employment action. Brand v. New Rochelle City Sch. Dist., No. 19-cv-7263,

2022 WL 671077, at *9 (S.D.N.Y. Mar. 7, 2022) (citing Burlington Indus., Inc. v. Ellerth, 524
U.S. 742, 761 (1998)). Such inconveniences do not constitute adverse employment actions
unless they are accompanied by “some attendant negative result, such as a deprivation of a
position or opportunity.” Id. (quoting Hill v. Rayboy-Brauestein, 467 F. Supp. 2d 336, 354
(S.D.N.Y. 2006) (internal citation and quotations omitted)).
Plaintiff argues that she has adequately pled that DOE took the following adverse
employment actions against her: (1) creation of a hostile work environment, (2) constructive
discharge, (3) refusal to assign an assistant principal, and (4) denial of tenure and extension of
probationary period. Although this Court does not find that plaintiff had adequately pled that
defendants created a hostile work environment or constructively discharged her, see infra Section
III(A), plaintiff has plausibly alleged the other two adverse employment actions she raises.
Regarding DOE’s refusal to assign plaintiff an assistant principal and the resulting
increase in plaintiff’s workload, “‘a disproportionately heavy workload’ can constitute an

adverse employment action,” Pothen v. Stony Brook Univ., 211 F. Supp. 3d 486, 494 (E.D.N.Y.
2016) (quoting Feingold, 366 F.3d at 152-53), but only when “a plaintiff is given a workload
heavier that similarly situated employees.” Kirkland-Hudson v. Mount Vernon City Sch. Dist.,
665 F. Supp. 3d 412, 452 (S.D.N.Y. 2023) (quoting Shukla v. Deloitte Consulting LLP, No. 19-
cv-10578, 2020 WL 8512852, at *8 (S.D.N.Y. Nov. 17, 2020), report and recommendation
adopted, 2021 WL 1131507 (S.D.N.Y. March 24, 2021)). Plaintiff has sufficiently identified
similarly situated employees to survive a motion to dismiss, in the form of principals at other
schools “who were not of Hasidic faith” and who “were assigned assistant principals,” including
“the principals of P.S. 394K and P.S. 399K,” as well as “the substitute principal assigned to
[plaintiff’s] school” while plaintiff was out on medical leave. See Buon v. Spindler, 65 F.4th 64,

70, 84 (2d Cir. 2023) (holding that plaintiff adequately pled that she was subject to disparate
treatment by comparing her treatment to “other middle school principals . . . who were not
African American or West Indian”). To the extent issues remain as to whether the principals
plaintiff identifies are sufficiently similar, “[o]rdinarily, whether two employees are similarly
situated presents a question of fact, rather than a legal question to be resolved on a motion to
dismiss.” Id. at 85 n.7 (quotation and citation omitted). Thus, plaintiff has adequately alleged an
adverse employment action in the form of a disproportionately heavy workload.
DOE’s denial of tenure and extension of plaintiff’s probationary period also constitutes
an adverse employment action:
Extending an employment relationship by one year by itself may not qualify as an
adverse employment action. But when coupled with the denial of tenure, it is assuredly
an adverse employment action. During the fourth year of probationary employment, a
teacher can be fired at any time for any lawful reason. N.Y. Educ. Law § 2573(l)(a). But
if granted tenure, the teacher may be fired only for cause. Id. §§ 2573(5)(a), 3020-a. The
denial of tenure after three years, when a teacher was otherwise eligible for tenure, does
not become any less an adverse action because the teacher is provided with another year
of probationary employment.

Mace v. Marcus Whitman Cent. Sch. Dist., No. 11-cv-6574, 2015 WL 5682665, at *9
(W.D.N.Y. Sept. 25, 2015), aff’d, 677 F. App’x 26 (2d Cir. 2017) (quoting Tolbert v. Smith, 790
F.3d 427, 436 (2d Cir.2015)).
ii. Discriminatory Intent
“At the pleadings stage . . . a plaintiff must allege that the employer took adverse action
against her at least in part for a discriminatory reason.” Vega, 801 F.3d at 87 (citing Littlejohn,
795 F.3d at 310). “An inference of discrimination can arise from circumstances including, but
not limited to, ‘the employer’s criticism of the plaintiff’s performance in ethnically degrading
terms; . . . the more favorable treatment of employees not in the protected group; or the sequence
of events leading to the plaintiff’s discharge.” Littlejohn, 795 F.3d at 312 (quotation omitted).
Plaintiff includes sufficient allegations of discriminatory intent related to DOE’s failure to
provide her with an assistant principal based on her pleading that other, non-Hasidic principals
received assistant principals.3
Plaintiff alleges that DOE’s denial of tenure and extension of her probationary period
were motivated at least in part by discriminatory intent based on (1) Lindsay’s comment that

3 Defendants argue that plaintiff’s allegations “ignore[ ]” her “knowledge of the budget restraints on hiring an
Assistant Principal.” This argument “displays a misapprehension of Plaintiff’s burden at this stage of the
proceedings.” Levy v. Legal Aid Soc’y, 408 F. Supp. 3d 209, 215 (E.D.N.Y. 2019). “To survive a motion to
dismiss . . . a plaintiff is not required to plead a prima facie case of discrimination, and any inquiry into any non-
discriminatory reasons for a defendant’s conduct is reserved for summary judgment or trial.” Id. (citing Vega, 801
F.3d at 84).
plaintiff needed to “get thick skin and get over herself” in discussing plaintiff’s “religious
practices of not shaking hands with men and not being allowed to be in a room alone with a
man,” (2) Lindsay’s intentional failure to provide plaintiff with kosher food at meetings and
conferences, (3) the fact that plaintiff was treated differently than other similarly situated

principals who were not Hasidic (including the fact that plaintiff was not assigned an assistant
principal and was ordered to work summer school), and (4) Lindsay’s threat towards plaintiff
when she refused to work summer school, even though similarly situated principals who were
not Hasidic were not ordered or expected to work summer school. Additionally, plaintiff pleads
that Lindsay threatened her with disciplinary action if she did not meet with a male teacher
alone, despite plaintiff’s religious practice prohibiting this.
Even though these allegations may not all rise to the level of adverse employment actions
in and of themselves, they do evince several instances of disparate treatment of plaintiff by her
supervisor based on her religion. Such a “series of instances of disparate treatment in the
workplace,” including allegations that plaintiff was “subjected to job requirements and to

discipline that was different than employees outside her protected class” are sufficient to
“support a plausible inference of intentional discrimination” as to DOE’s extension of plaintiff’s
probationary period and denial of tenure. Buon, 65 F.4th at 83-84.
Plaintiff has thus plausibly alleged a Title VII religious discrimination claim based on her
disproportionately heavy workload and denial of tenure.
B. NYSHRL and NYCHRL
Both the NYSHRL and the NYCHRL provide that “[i]t shall be an unlawful
discriminatory practice . . . [f]or an employer” to discriminate against an individual because of
her “creed.” N.Y. Exec. Law § 296(1)(a); N.Y.C. Admin. Code § 8-107(1)(a)(3). To survive a
motion to dismiss a NYCHRL discrimination claim, a plaintiff must plead that “she was treated
less well, at least in part for a discriminatory reason.” Verne v. New York City Dep’t of Educ.,
No. 21-cv-5427, 2022 WL 4626533, at *17 (S.D.N.Y. Sept. 30, 2022). The NYSHRL was
amended in 2019 “to direct courts to construe the NYSHRL, like the NYCHRL, ‘liberally for the
accomplishment of the remedial purposes thereof, regardless of whether federal civil rights laws

including those laws with provisions worded comparably to the provisions of [the NYSHRL]
have been so construed.’” Nezaj v. PS450 Bar & Rest., 719 F. Supp. 3d 318, 335 n.3 (S.D.N.Y.
2024) (quoting N.Y. Exec. Law § 300). Although this amendment made clear that NYSHRL
claims should be analyzed separately from, and more liberally than, Title VII claims, “it is as of
yet unclear whether these two standards are co-extensive, or whether the NYSHRL requires
something in between federal and local law for discrimination claims.” Id. (citation omitted).
Regardless of the exact standard to be applied in the NYSHRL context, because plaintiff
has met the higher Title VII standard for pleading a claim of religious discrimination, her claim
under the “more lenient” NYSHRL and NYCHRL also survive.
III. Hostile Work Environment

A. Title VII
A hostile work environment is one “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.” Harris v. Forklift Sys., Inc., 510 U.S.
17, 21 (1993) (internal quotation marks and quotations omitted). The “mere utterance of an
epithet which engenders offensive feelings in an employee . . . does not sufficiently affect the
conditions of employment to implicate Title VII.” Id. (quotation omitted) (cleaned up).
As with plaintiff’s religious discrimination claim, individuals who are not a plaintiff’s
actual employers are not subject to Title VII liability, so plaintiff brings this claim only against
DOE. When a plaintiff’s alleged harasser is her supervisor, as long as “the supervisor’s
harassment culminates in a tangible employment action, the employer is strictly liable.” Vance
v. Ball State Univ., 570 U.S. 421, 424 (2013).
At the pleading stage, a plaintiff must allege that “the complained of conduct: (1) is
objectively severe or pervasive – that is, creates an environment that a reasonable person would

find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as
hostile or abusive; and (3) creates such an environment because of the plaintiff’s” religion.
Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (quotation omitted) (cleaned up). “Factors that
a court might consider in assessing the totality of the circumstances include: (1) the frequency of
the discriminatory conduct; (2) its severity; (3) whether it is threatening and humiliating, or a
mere offensive utterance; and (4) ‘whether it unreasonably interferes with an employee’s work
performance.’” Id. (quoting Harris, 510 U.S. at 23). “Ultimately . . . a plaintiff need only plead
facts sufficient to support the conclusion that she was faced with harassment of such quality or
quantity that a reasonable employee would find the conditions of her employment altered for the
worse, and [the Second Circuit has] repeatedly cautioned against setting the bar too high.” Id.

(quotation omitted) (cleaned up).
As the basis for plaintiff’s hostile work environment, she claims that (1) Lindsay
commented that plaintiff needed to “get thick skin and get over herself” in discussing plaintiff’s
religious practice of limiting contact with men and that Lindsay threatened her with disciplinary
action on this basis, (2) Lindsay refused to provide plaintiff with kosher food at meetings and
conferences, (3) plaintiff was not assigned an assistant principal when other similarly situated
principals received assistant principals, (4) Lindsay ordered her to work summer school and
threatened her after she refused to do so, (5) Lindsay denied her LODI application and ordered
her to report to work despite her disability, (6) Lindsay required plaintiff to attend a disciplinary
meeting while plaintiff was on leave and told plaintiff that the meeting might result in
disciplinary action, (7) defendants extended her probationary period and denied her tenure, and
(8) Lindsay ignored plaintiff’s complaints against Burgher and her request for a transfer away
from him, “rendering Plaintiff’s work environment vulnerable and unsafe.”

These allegations do not give rise to what a reasonable person would consider a hostile or
abusive environment, either based on plaintiff’s religion or her disability (as seems to be the
basis for some of plaintiff’s complained of conduct). Over the year and a half during which
plaintiff alleges she was subject to a hostile work environment, she pleads, generously construed,
two separate offensive comments that Lindsay made about her religion and three threats of
unspecified discipline, none of which plaintiff alleges came to pass. Lindsay’s other actions, of
extending plaintiff’s probation, denying her tenure, and not adequately accommodating her (by
failing to provide her kosher food, denying her LODI claim, not assigning her an assistant
principal, and ignoring her complaints against her aggressive employee), although potentially
actionable in the context of other claims, do not qualify as harassment or abuse, even viewed in

the totality of the circumstances. Because plaintiff fails to plead that she was subject to
“objectively severe or pervasive” harassment or abuse, Patane, 508 F.3d at 113, her hostile work
environment claim under Title VII is dismissed.
To state a constructive discharge claim under Title VII, a plaintiff must allege that “[she]
was discriminated against by [her] employer to the point where a reasonable person in [her]
position would have felt compelled to resign.” Green v. Brennan, 578 U.S. 547, 555 (2016).
“[A] constructive discharge cannot be shown simply by the fact that the employee was unhappy
with the nature of her assignments or criticism of her work, or where the employee found the
working conditions merely difficult or unpleasant.” Green v. Town of E. Haven, 952 F.3d 394,
404 (2d Cir. 2020) (internal quotations omitted). Rather, “[a] constructive discharge occurs
when an employer ‘intentionally creates a work atmosphere so intolerable that [the plaintiff] is
forced to quit involuntarily.’” Borski v. Staten Island Rapid Transit, 413 F. App’x 409, 411 (2d
Cir. 2011) (quoting Terry, 336 F.3d at 151-52).

This “standard is higher than the standard for establishing a hostile work environment.”
Fincher v. Depository Trust and Clearing Corp., 604 F.3d 712, 725 (2d Cir. 2010) (reasoning that
because the plaintiff did not establish a hostile work environment, “her claim of constructive
discharge also fails”). As plaintiff has not pled sufficient facts to establish that a hostile work
environment existed, her allegation of constructive discharge also fails, whether viewed as an
adverse employment action as part of plaintiff’s religious discrimination or disability
discrimination claims, or viewed or a separate claim.
B. NYSHRL and NYCHRL
In contrast to the Title VII standard, the NYSHRL provides for liability on a claim of
hostile work environment based on a plaintiff being “subjected to ‘inferior terms, conditions or
privileges of employment because of the individual’s membership in one or more . . . protected

categories.’” Wheeler v. Praxair Surface Techs., Inc., 694 F. Supp. 3d 432, 451 (S.D.N.Y. 2023)
(quoting N.Y. Exec. Law. § 296(1)(h)) (citations omitted). To maintain a hostile work
environment claim under the NYCHRL, “all that is required . . . is unequal treatment based upon
membership in a protected class.” Spencer v. Glob. Innovative Grp., LLC, No. 17-cv-7604,
2023 WL 6633860, at *9 (S.D.N.Y. Oct. 12, 2023) (internal quotation marks and quotations
omitted). This is the same standard as the NYCHRL’s discrimination standard. See Adams v.
Equinox Holdings, Inc., 662 F. Supp. 3d 444, 459 n.11 (S.D.N.Y. 2023), aff’d, No. 23-608, 2024
WL 1787108 (2d Cir. April 25, 2024) (citation omitted). In other words, if a plaintiff makes out
a religious discrimination claim under the NYCHRL, she has also made out a hostile work
environment claim under that statute.
As discussed in the religious discrimination context, “case law . . . has yet to definitively
resolve whether the NYSHRL’s liability standard is now coextensive with that of the NYCHRL,

or whether it requires more, so as to impose a standard between federal and city law.” Kulick v.
Gordon Prop. Grp., LLC, No. 23-cv-9928, 2025 WL 448333, at *8 (S.D.N.Y. Feb. 7, 2025)
(quotation omitted) (collecting cases). Because “the amended NYSHRL standard is, at the very
least, closer to the NYCHRL standard,” and “in order to view the Amended Complaint in the
light most favorable to Plaintiff,” at this motion to dismiss stage the Court will apply the
NYSHRL standard as in alignment with the NYCHRL. Id. (internal quotation marks and
quotation omitted).
Having already found that plaintiff has plausibly alleged a religious discrimination claim
under the NYSHRL and NYCHRL, the Court also finds, based on plaintiff’s pleadings of
adverse employment actions motivated by discriminatory intent, that her claims of hostile work

environment under the NYSHRL and the NYCHRL survive defendant’s motion to dismiss.
Plaintiff’s constructive discharge allegation, however, viewed as an adverse employment
action or a separate claim, cannot survive. Under the NYCHRL, “constructive discharge . . .
require[s] deliberate actions taken by the employer sufficient to cause a reasonable person to feel
compelled to resign.” Tulino v. City of New York, 813 F. App’x 725, 727 (2d Cir. 2020)
(summary order). “[E]ven while New York state appellate courts have not determined the
precise standard for constructive discharge under the NYCHRL, they tend to dispose of
constructive discharge claims using language that ‘mirrors the federal standard.’” Thompson v.
Shutterstock, Inc., No. 23-cv-4155, 2024 WL 2943813, at *22 (S.D.N.Y. June 10, 2024) (quoting
Tulino, 813 F. App’x at 727 n.2.). The NYSHRL, analyzed either in total alignment with the
NYCHRL or as drawing a middle ground between the NYCHRL and federal law, would thus be
construed similarly. Drawing all reasonable inferences in favor of plaintiff and viewing the
totality of the circumstances, plaintiff has not made out a NYCHRL or NYSHRL constructive

discharge claim for all of the reasons set forth in Section III(A).
IV. Disability Discrimination
Disability discrimination claims “may be brought under a theory of adverse employment
action or of failure to provide reasonable accommodation.” Kirkland-Hudson, 665 F. Supp. 3d at
457 (citing McMillan v. City of New York, 711 F.3d 120, 125-26 (2d Cir. 2013)). Here, plaintiff
brings claims of disability discrimination under both theories, which she alleges constitute
violations of the ADA, the NYSHRL, and the NYCHRL. Because individual employees are not
subject to liability under the ADA, Yerdon v. Poitras, 120 F.4th 1150, 1155 (2d Cir. 2024),
plaintiff brings her ADA claims only against DOE.
A. Adverse Employment Action Theory
The ADA prohibits discrimination “against a qualified individual on the basis of

disability in regard to . . . terms, conditions, and privileges of employment.” 42 U.S.C. §
12112(a). Just as with plaintiff’s religious discrimination claim, “[c]laims alleging disability
discrimination in violation of the ADA are subject to the burden-shifting analysis originally
established by the Supreme Court in McDonnell Douglas[.]” McMillan, 711 F.3d at 125
(quotation omitted). To establish a prima facie case of employment discrimination under the
ADA, a plaintiff must ultimately prove that “(1) the defendant is covered by the ADA; (2)
plaintiff suffers from or is regarded as suffering from a disability within the meaning of the
ADA; (3) plaintiff was qualified to perform the essential functions of the job, with or without
reasonable accommodation; and (4) plaintiff suffered an adverse employment action because of
his disability or perceived disability.” Richards v. Dep’t of Educ. of City of New York, No. 21-
cv-338, 2022 WL 329226, at *13 (S.D.N.Y. Feb. 2, 2022) (quoting Kinneary v. City of New
York, 601 F.3d 151, 156 (2d Cir. 2010)). “At the pleading stage, a plaintiff ‘need only give
plausible support to a minimal inference of discriminatory motivation’ and ‘need not give

plausible support to the ultimate question of whether the adverse employment action was
attributable to discrimination.’” Id. (quoting Littlejohn, 795 F.3d at 311) (citing Dawson v. New
York City Transit Auth., 624 F. App’x 763, 767 (2d Cir. 2015)).
The parties do not dispute that DOE is covered by the ADA or that plaintiff was qualified
to perform the essential functions of her job. Nor is it seriously disputable that plaintiff suffered
from a disability within the meaning of the ADA. The ADA defines disability as, inter alia, “a
physical or mental impairment that substantially limits one or more major life activities,” such as
“caring for oneself, performing manual tasks . . . walking, standing, lifting, [and] bending[.]” 42
U.S.C. §§ 12102(1)(A), (2)(A). Plaintiff has more than plausibly alleged that she suffered from a
disability as defined by the ADA, stating in the amended complaint that “[b]ecause of her right

hip fracture avulsion and broken pelvis, Plaintiff was in constant pain when walking, standing,
sitting, and going to the bathroom . . . and used a cane at times and a wheelchair other times.” In
light of this statement, the Court finds baseless defendants’ argument that plaintiff “failed to state
how [sic] the alleged impact of her injuries on major life activities.”
The real question is whether plaintiff has plausibly alleged a minimal inference of
discriminatory motivation based on her disability for an adverse employment action. The
adverse employment actions plaintiff states were motivated at least in part by disability
discrimination are DOE’s denial of “her medical leave requests, fail[ure] to accommodate her
disability, and summoning her into a disciplinary meeting while on medical leave regarding her
attendance.” This Court will analyze plaintiff’s failure to accommodate claim separately, see
infra Section IV(B), not as an adverse employment action in and of itself. See Kirkland-Hudson,
665 F. Supp. 3d at 457 (failure to accommodate “does not equate to an adverse employment
action in the disability discrimination context” (internal quotation marks and quotation omitted)).

Scheduling a disciplinary meeting and threatening disciplinary action are not adverse
employment actions unless they are “accompanied by a[ ] materially adverse consequences to the
conditions of Plaintiff’s employment such as demotion, diminution of wages, or other tangible
loss.” Richards, 2022 WL 329226, at *8, *13 (citing Brown v. City of New York, 2014 WL
5394962, at *8 (S.D.N.Y. Oct. 23, 2014), aff’d 622 F. App’x 19 (2d Cir. 2015)) (“The definition
of an ‘adverse employment action’ in the context of disability-based discrimination is the same
as in the context of [Title VII] discrimination.” (quotation omitted)). Plaintiff has not alleged
any accompanying adverse consequence to the conditions of her employment, rendering the
summoning of plaintiff to a disciplinary meeting while on medical leave an insufficient adverse
employment action for the purposes of the ADA.

The denial of plaintiff’s request for medical leave, however, was an adverse employment
action. Although DOE approved plaintiff’s medical leave for which she had to use her CAR
days, it denied her request for LODI benefits, which would have allowed her to take medical
leave without using her CAR days. Having to use CAR days during medical leave, instead of
receiving paid medical leave, is “[i]n effect,” placement on “unpaid leave.” Verne, 2022 WL
4626533, at *9. And being forced to take unpaid leave based on DOE’s denial of plaintiff’s
accommodation request “constitutes an adverse employment action.” Id. (citation omitted).
Plaintiff also plausibly alleges that her placement on unpaid leave was because of her
disability. Lindsay’s summoning of plaintiff to a meeting while she was on approved leave to
discuss her time and attendance and informing plaintiff that the meeting might lead to
disciplinary action, although not an adverse employment action itself, indicates a discriminatory
motivation. Such a lack of regard for plaintiff’s professed and acknowledged disability is
sufficient to infer that Lindsay had an animus towards plaintiff based on her disability, which

quite plausibly also motivated DOE’s denial of plaintiff’s request for LODI benefits. Thus,
plaintiff’s disability discrimination claim on a theory of an adverse employment action survives
defendants’ motion to dismiss.
Given that “the standard for pleading a disability discrimination claim under the
NYSHRL and NYCHR is more lenient than the ADA standard,” Weekes v. JetBlue Airways
Corp., No. 21-cv-1965, 2022 WL 4291371, at *8 (E.D.N.Y. Sept. 16, 2022) (citing Jones v. New
York City Transit Auth., 838 F. App’x 642, 644 n.1 (2d Cir. 2021)), plaintiff’s claims under the
NYSHRL and NYCHRL also survive.
B. Failure to Accommodate Theory
Under a failure to accommodate theory of disability discrimination, plaintiffs must plead

“(1) they are persons with a disability under the meaning of the statute in question; (2) an
employer covered by the statute had notice of the disability; (3) with reasonable accommodation,
the plaintiffs could perform the essential functions of the job at issue; and (4) the employer has
refused to make such accommodations.” Applewhite v. New York City Dep’t of Educ., No. 21-
cv-2928, 2024 WL 3718675, at *9 (E.D.N.Y. Aug. 8, 2024) (quotation omitted) (cleaned up).
This standard is the same under the ADA, the NYSHRL, and the NYCHRL. Nieblas-Love v.
New York City Hous. Auth., 165 F. Supp. 3d 51, 73 (S.D.N.Y. 2016) (collecting cases).
As discussed above, plaintiff has adequately pled that she is a person with a disability.
Moreover, plaintiff’s amended complaint makes clear that defendants had notice of her
disability. Even though they denied her request for LODI benefits, they still approved her
request to take medical leave using her CAR days for almost an entire school year, creating the
inference necessary to survive a motion to dismiss that defendants knew that plaintiff was
disabled. This same factual allegation provides support for the assertion that, with reasonable

accommodation, plaintiff could perform her job: despite being denied LODI benefits, plaintiff
still was absent for almost the entire 2021 to 2022 school year, during which DOE instituted a
substitute teacher at P.S. 191, and then plaintiff returned to perform her role as principal for the
2022 to 2023 school year. “The ADA generally recognizes medical leaves as reasonable
accommodations.” Rogers v. New York Univ., 250 F. Supp. 2d 310, 317 (S.D.N.Y. 2002)
(citing 29 C.F.R. Part 1630, Appendix). A medical leave with LODI benefits clearly could have
been a reasonable accommodation here because plaintiff was able to resume her job after taking
what was, in effect, unpaid leave for the same amount of time she would have received LODI
benefits. Finally, there is no dispute that defendants denied plaintiff’s LODI benefits claim,
thereby refusing to make her requested accommodation.

Defendants’ assertion that plaintiff never formally requested or specified an
accommodation is belied by plaintiff’s allegation that she requested LODI benefits. But even if
true, the failure to request an accommodation would not change this Court’s analysis. See Brady
v. Wal-Mart Stores, Inc., 531 F.3d 127, 135 (2d Cir. 2008) (Regardless of whether plaintiff has
requested an accommodation, “an employer has a duty reasonably to accommodate an
employee’s disability if the disability is obvious – which is to say, if the employer knew or
reasonably should have known that the employee was disabled.”).
Accordingly, plaintiff has plausibly alleged disability discrimination claims under the
ADA, NYSHRL, and NYCHRL, under both adverse employment action and failure to
accommodate theories.
V. Retaliation

“To establish a prima facie case of retaliation, an employee must show (1) participation
in a protected activity known to the defendant; (2) an employment action disadvantaging the
plaintiff; and (3) a causal connection between the protected activity and the adverse employment
action.” Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003) (quotation omitted) (cleaned up).
However, for a retaliation claim to survive a motion to dismiss, a plaintiff need only “plausibly
allege that: (1) defendants discriminated – or took an adverse employment action – against [her],
(2) because [s]he has opposed any unlawful employment practice.” Vega, 801 F.3d at 90
(internal quotations omitted). This same standard applies under Title VII and the ADA. See id.
at 89-90 (Title VII); Bernheim v. New York City Dep’t of Educ., No. 19-cv-9723, 2021 WL
2619706, at *10 (S.D.N.Y. June 25, 2021), report and recommendation adopted, 2021 WL

4198126 (S.D.N.Y. Sept. 15, 2021) (ADA).
An adverse employment action in the context of a retaliation claim “covers a broader
range of conduct than does the adverse-action standard for claims of discrimination,” and is
therefore “not limited to discriminatory actions that affect the terms and conditions of
employment.” Vega, 801 F.3d at 90. An adverse employment action in this context includes any
action that “could well dissuade a reasonable worker from making or supporting a charge of
discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)).
At the motion to dismiss stage, “causation may be inferred from close temporal
proximity.” Chung v. City Univ. of New York, 605 F. App’x 20, 23 (2d Cir. 2015). Although
there is no bright-line rule, “where a plaintiff relies on temporal proximity alone, the protected
activity and adverse action must occur ‘very close’ together.” Sealy v. State Univ. of New York
at Stony Brook, 834 F. App’x 611, 614 (2d Cir. 2020) (quoting Clark Cty. Sch. Dist. v. Breeden,
532 U.S. 268, 273 (2001)). “[A]dverse employment actions occurring approximately three

months after protected activity are too attenuated to give rise to an inference of retaliation.” Id.
(citing Hollander v. Am. Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir. 1990)).
It is not disputed that plaintiff filed several complaints and external charges, constituting
protected activity. As alleged by plaintiff, the protected activity and adverse employment action
closest in time to each other are plaintiff’s April 20, 2022 OEO complaint, alleging religious and
disability discrimination, and DOE’s decision not to grant plaintiff tenure, of which plaintiff was
informed on June 24, 2022. This two-month period is sufficiently short to satisfy the causation
requirement at the motion to dismiss stage. See Dodd v. City Univ. of New York, 489 F. Supp.
3d 219, 247 (S.D.N.Y. 2020) (“Generally, to show causation through temporal proximity alone,
courts in this Circuit require no more than two months to have passed between a protected

activity and an adverse action.” (citing Feliciano v. City of New York, No. 14-cv-6751, 2015
WL 4393163, at *10 (S.D.N.Y. July 15, 2015) (collecting cases))).
DOE’s argument that there is a non-retaliatory reason for its extension of plaintiff’s
probationary period and denial of tenure “is an issue to be decided on summary judgment, not at
the motion to dismiss stage.” Reynoso v. All Foods, Inc., 908 F. Supp. 2d 330, 343 (E.D.N.Y.
2012) (quoting Robinson v. Gucci Am., No. 11-cv-3742, 2012 WL 259409, at *6 (S.D.N.Y. Jan.
27, 2012)). Plaintiff’s retaliation claims under Title VII and the ADA thus survive defendants’
motion to dismiss.
CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss plaintiff's amended complaint is
denied as to plaintiffs religious discrimination claims under Title VH, the NYSHRL, and the
NYCHRL; her hostile work environment claims under the NYSHRL and NYCHRL; her
disability discrimination claims under the ADA, NYSHRL, and NYCHRL; and her retaliation
claims under Title VII and the ADA. Defendants’ motion to dismiss is granted as to plaintiffs
Title VII hostile work environment claim as well as her NYSHRL and NYCHRL retaliation
claims. By separate order, the Court will enter a discovery schedule for the parties to proceed on
the remaining claims.
SO ORDERED.
Busan Wt. Cogan
U.S.D.J.
Dated: Brooklyn, New York
February 28, 2025

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10815696. Public record. Not legal advice.