# Graham v. New York City Department of Education

> District Court, E.D. New York · March 20, 2025

URL: https://www.frixlaw.com/law-library/cases/10828170

## Case

- **Court:** District Court, E.D. New York
- **Decided:** March 20, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10828170

## How later opinions describe it (automated extraction)

- stating a plaintiff must “demonstrate that [he or she] suffered an adverse employment action under circumstances giving rise to an inference of discriminatory intent” to prevail on a discrimination claim

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
enn ne ne een □□ cenen K
KENTON GRAHAM, :
Plaintiff, :
v. MEMORANDUM & ORDER
: 21-CV-6885 (WFK) (LB)
NEW YORK CITY DEPARTMENT OF :
EDUCATION et al., :
Defendants. :
nnn nee □□□ □□ encennnnene K
WILLIAM F. KUNTZ, II, United States District Judge:
By Second Amended Complaint, pro se Plaintiff Kenton D. Graham (“Plaintiff”) brings this action
against Defendants Department of Education of the City of New York (“DOE”), Vernon Johnson,
Melanie Werner, and Sharaz Scofield (collectively, “Defendants”) alleging discrimination based
on national origin and disability; retaliation; and hostile work environment in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et. seg. (“Title VII”); Rehabilitation Act of
1973, 29 U.S.C. § 701, ef. seq. (“Rehabilitation Act”); Americans with Disabilities Act of 1990,
42 U.S.C. § 12101, et. seg. (“ADA”); New York State Human Rights Law, N.Y. Exec. Law § 290,
et. seq. (““NYSHRL”); and New York City Human Rights Law, N.Y.C. Admin. Code § 8-101, et.
seg. (“NYCHRL”). After Defendants moved to dismiss the Second Amended Complaint and the
parties had fully briefed the motion (see ECF Nos. 38-39), Plaintiff moved for leave to file a Third
Amended Complaint (ECF No. 49). For the reasons stated below, Defendants’ motion to dismiss
Plaintiff's Second Amended Complaint is GRANTED, and Plaintiff's request for leave to file a
Third Amended Complaint is DENIED.
I. BACKGROUND
Plaintiff Kenton Graham, proceeding pro se, is a former math teacher at the Brooklyn
High School for Law and Technology (“Brooklyn High School”). Plaintiff commenced this
action on December 5, 2021, in the Southern District of New York. Complaint, ECF No. 1. The
Southern District of New York transferred this case to the Eastern District of New York on
December 6, 2021, and this Court accepted jurisdiction on December 14, 2021. Transfer Order,
ECF No. 6; Receipt of Case Transfer, ECF No. 7.
On November 7, 2022, Plaintiff filed a Second Amended Complaint setting forth
discrimination claims against the DOE and individual administrators at Brooklyn High School

(Principal Vernon Johnson and Assistant Principals Melanie Werner and Sharaz Scofield).
Plaintiff alleges discrimination based on national origin and disability; retaliation; and hostile
work environment in violation of Title VII, the Rehabilitation Act, the ADA, the NYSHRL, and
the NYCHRL. See Second Am. Compl. (“SAC”), ECF No. 34.
Plaintiff is Jamaican Caribbean, speaks with a Jamaican accent, and has a speech
impediment. See SAC, Addendum {ff 2-3. Plaintiff alleges he suffered unequal treatment and a
hostile work environment because of his protected characteristics. See, e.g., SAC, Addendum {
25. Plaintiff claims he experienced retaliation for filing (1) a complaint with the New York State
Division of Human Rights in April 2021, and (2) the instant federal lawsuit in December 2021.
See, e.g., id. JJ 14, 26. On August 10, 2022, Plaintiff received a letter from Brooklyn North HS
Superintendent Janice Ross, dated July 29, 2022, informing him the DOE would end his
employment “as of the close of business 60 days from the date of this letter or the probation
completion date listed above [September 7, 2022], whichever occurs first.” Zachary T. Ellis
Decl. in Opp’n to Pl.’s Third Mot. to Amend (“Ellis Decl.”), Ex. B, Denial of Completion of
Probation Letter, ECF No. 46-2; see also SAC, Addendum § 36. Plaintiff's employment ended
on September 7, 2022. Ellis Decl., Ex. B, Verification of Employment.
On December 2, 2022, Defendants moved to dismiss Plaintiff's Second Amended
Complaint pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6) for failure to state a
claim. See Defs.’ Mem. in Supp. of Mot. to Dismiss (“Defs. Mem.”), ECF Nos. 35, 39-2.
Plaintiff filed his opposition to Defendants’ motion to dismiss on January 20, 2023. See Pl.’s
Mem. in Opp’n to Defs.” Mem. (“Opp’n to Defs. Mem.”), ECF No. 38. Defendants filed their
reply on February 17, 2023. See Defs.’ Reply in Further Supp. of Defs.” Mot. (“Reply to Defs.
Mem.”), ECF No. 39.

On August 13, 2024, before the Court ruled on Defendants’ motion to dismiss, Plaintiff
sought leave from the Court to file a Third Amended Complaint adding two new defendants and
a deprivation-of-rights claim under 42 U.S.C. § 1983. See Pl.’s Third Mot. to Amend (“PI.
Mem.”), ECF No. 41. Defendants filed their opposition to Plaintiffs third motion to amend on
September 7, 2024. See Defs.” Mem. in Opp’n to PL.’s Mot. (“Opp’n to PI. Mot.”), ECF No. 45.
Plaintiff filed his reply on October 11, 2024. See Pl.’s Reply to Defs.’ Opp’n to Pl.’s Mot.
(“Reply to Pl. Mot.”), ECF No. 49.
Il. LEGAL STANDARD
A. Converting the Motion to Dismiss into a Motion for Summary Judgment
The Court first addresses whether to convert Defendants’ motion to dismiss the Second
Amended Complaint under Rule 12(b)(6) into a motion for summary judgment under Rule 56.
Pursuant to Rule 12(d), “[i]f, on a motion under Rule 12(b)(6) . . . [,] matters outside the
pleadings are presented to and not excluded by the court, the motion must be treated as one for
summary judgment under Rule 56. All parties must be given a reasonable opportunity to present
all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d).
A district court “acts properly in converting a motion [to dismiss under Rule 12(b)(6)]
into a motion for summary judgment when the motion presents matters outside the pleadings, but
the rule requires that the court give sufficient notice to an opposing party and an opportunity for
that party to respond.” Hernandez v. Coffey, 582 F.3d 303, 307 (2d Cir. 2009) (internal
quotation marks omitted). “Notice is particularly important for a pro se litigant, who must be
unequivocally informed of the meaning and consequences of conversion to summary judgment.”
Parada v. Banco Indus. De Venezuela, C.A., 753 F.3d 62, 68 (2d Cir. 2014) (internal quotation
marks omitted).

Defendants’ motion to dismiss attaches a document presenting matters outside the
pleadings: an Affidavit of Erin Andrews-Chirila, dated December 1, 2022, ECF 39-3. Plaintiff
received proper notice regarding the possibility and consequences of the Court converting
Defendants’ motion to dismiss into a motion for summary judgment and was given ample
opportunity to respond. In conjunction with their motion to dismiss, Defendants served Plaintiff
with the Notice to Pro Se Litigant and copy of Rule 56 required by Local Civil Rule 12.1.! See
ECF No. 39-1. In their cover letter to Plaintiff, Defendants highlighted their submission of
written materials outside the pleadings. See Defs.’ Letter, ECF No. 35 (“Enclosed please find
Defendants’ Notice of Motion, Affidavit of Erin Andrews-Chirila, and Memorandum of Law in
Support of Defendants’ Motion to Dismiss Plaintiff's Second Amended Complaint.”) (emphasis
added). Plaintiff acknowledged receiving Defendants’ notice in a December 8, 2022 letter to the
Court, stating “Defendants’ motion papers suggest that I need to respond to the[ir] papers as a
potential [Rule] 56.1 motion[.]” Pl.’s Letter to the Court, ECF No. 36.
Accordingly, the Court converts Defendants’ motion to dismiss under Rule 12(b)(6) into
a motion for summary judgment under Rule 56. See, e.g., Parada, 753 F.3d at 68 (finding
district court properly converted motion to dismiss into a motion for summary judgment where
the district court “clearly notified [the then-pro se plaintiff] that the [defendant’s] motion to
dismiss could be converted into a motion for summary judgment,” “the information relevant to
[plaintiffs] claim . . . was within [her] possession,” and “nothing prevented her from submitting”
such relevant evidence); Hall v. Annucci, 19-CV-5521, 2021 WL 4392526, at *10 (S.D.N.Y.

The purpose of Local Civil Rule 12.1 is to “alert[] pro se litigants to the potentially serious
consequences of a motion to dismiss based upon evidence outside the pleadings, and to the
requirements for controverting such evidence.” Comm. Notes, S.D.N.Y. and E.D.N.Y. Local
Civil Rule 12.1.

Sept. 24, 2021) (Karas, J.) (finding defendants’ compliance with Local Civil Rule 12.1 provided
pro se plaintiff with sufficient notice of potential conversion to motion for summary judgment
and the consequences of such a conversion).
B. Motion for Summary Judgment
Summary judgment is appropriate where the “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “An issue of fact is genuine
if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ A
fact is material if it ‘might affect the outcome of the suit under the governing law.’” Roe v. City
of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 US.
242, 248 (1986)).
When deciding a motion for summary judgment, the Court must “construe the facts in the
light most favorable to the non-moving party and must resolve all ambiguities and draw all
reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011)
(quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004)). The movant has
the initial burden of showing there is no disputed issue of material fact, after which the burden
shifts to the non-movant to present specific evidence showing a genuine dispute. See Brown v.
Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011).
Pro se plaintiffs “are afforded special solicitude on motions for summary judgment.”
Henderson v. Alvarez, 17-CV-3977, 2020 WL 2571013, at *6 (S.D.N.Y. May 21, 2020) (Nathan,
J.) (internal quotation marks omitted). But they “cannot defeat a motion for summary judgment
by relying merely on the allegations of a complaint,” and “must come forward with evidence in

admissible form that is capable of refuting those facts.” Ortiz v. Berryhill, 19-CV-171, 2020 WL
4754934, *4 (S.D.N.Y. July 15, 2020) (Freeman, Mag.); see also Henderson, 2020 WL 2571013,
at *6 (“A pro se party’s bald assertion, completely unsupported by evidence, is not sufficient to
overcome a motion for summary judgment.”) (internal quotation marks omitted).
C. Motion to Amend
A district court can deny a motion to amend “for reasons such as undue delay, bad faith,
futility of the amendment or prejudice to the other party.” Crippen v. Town of Hempstead, 07-
CV-3478, 2013 WL 2322874, at *1 (E.D.N.Y. May 22, 2013) (Bianco, J.); see also Burch v.
Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008) (per curiam) (“[Ml]otions to
amend should generally be denied in instances of futility, undue delay, bad faith or dilatory
motive, repeated failure to cure deficiencies by amendments previously allowed, or undue
prejudice to the nonmoving party.”).
“(T]he standard for denying leave to amend based on futility is the same as the standard
for granting a motion to dismiss.” IBEW Loc. Union No. 58 Pension Tr. Fund & Annuity Fund
v. Royal Bank of Scotland Grp., PLC, 783 F.3d 383, 389 (2d Cir. 2015). ““While courts should be
more lenient when considering a pro se party’s motion to amend . . . leave to amend is properly
denied where all indications are that the pro se plaintiff will be unable to state a valid claim.”
Todd v. Fields, 20-CV-3608, 2022 WL 596829, at *6 (S.D.N.Y. Feb. 25, 2022) (Roman, J.)
(citing Valle v. Police Dep’t Cnty. of Suffolk Cent. Records, 10-CV-2847, 2010 WL 3958432, at
*2 (E.D.N.Y. Oct. 7, 2010) (Feuerstein, J.)). The decision whether to grant or deny leave to
amend is ultimately “within the sound discretion of the district court.” Lopez v. Stop & Shop
Supermkt. Co. LLC, 19-CV-9913, 2020 WL 4194897, at *2 (S.D.N.Y. July 21, 2020) (Furman,
J.).

Ill, ANALYSIS
A. Plaintiff’s Second Amended Complaint Fails to State a Claim under Federal or
State Law
1. Plaintiff is Barred from Bringing State and City Claims Against the DOE for
Failure to File a Notice of Claim
Plaintiff is barred from bringing state and city claims against the DOE under the
NYSHRL and NYCHRL because he failed to comply with the notice-of-claim requirement in the
New York Education Law. “New York law requires that a plaintiff plead and prove compliance
with Education Law § 3813’s notice of claim . . . requirement[].” Edwards v. Jericho Union
Free Sch. Dist., 904 F. Supp. 2d 294, 302 (E.D.N.Y. 2012) (Hurley, J.); see also Hall v. New
York City Dep’t of Educ., 23-CV-10385, 2024 WL 4979288, at *6 (S.D.N.Y. Dec. 3, 2024)
(Koeltl, J.) (“The plaintiffs discrimination claims brought pursuant to the NYSHRL, the
NYCHRL, and the NYSCRL must be dismissed for failure to comply with the New York
Education Law because the plaintiff fails to allege that she complied with the applicable notice-
of-claim provisions.”).
The notice-of-claim requirement is set forth at Section 3813(1) of the Education Law,
which states “[nJo action or special proceeding, for any cause whatever, . . . shall be prosecuted
or maintained” against “any school district, board of education, . . . or any officer of a school
district [or] board of education” unless the plaintiff presented “a written verified claim” upon
“the governing body of said district or school.” N.Y. Educ. Law § 3813(1). “[T]he DOE isa
‘board of education’ as that term is defined in the New York Education Law.” Hall, 2024 WL
4979288, at *6.
In the affidavit attached to Defendants’ motion to dismiss, Erin Andrews-Chirila, a
paralegal with the New York City Office of Corporation Counsel, attests Plaintiff did not provide

the DOE with a notice of claim before filing the Second Amended Complaint. Affidavit of Erin
Andrews-Chirila at ff 1-3, 5, ECF No. 39-3 (“The Office of Corporation Counsel and the
Comptroller’s Office are designated to receive notices of claim on behalf of the [DOE]. ... [A]s
of December 1, 2022, no notices of claim on behalf of Plaintiff were served on either the
Comptroller’s Office or the Office of Corporation Counsel.”). Plaintiff provides no evidence to
refute this claim. Because the “failure to abide by” the notice-of-claim requirement “mandates
dismissal of [a plaintiff's] action,” Plaintiffs state and city claims against the DOE are
dismissed. Santana v. Mount Vernon City Sch. Dist./Bd. of Educ., 20-CV-3212, 2021 WL
4523770, at *14 (S.D.N.Y. Sept. 30, 2021) (Roman, J.) (quoting Smith v. N.Y.C. Dep’t of Educ.,
808 F. Supp. 2d 569, 578 (S.D.N.Y. 2011) (Buchwald, J.)).
2. Plaintiff is Barred from Bringing Federal Claims Against Individual
Defendants
Plaintiff is barred from bringing claims against Principal Johnson and Assistant
Principals Werner and Scofield under Title VII, the ADA, and the Rehabilitation Act because
individuals are not subject to liability under these acts. See Cayemittes v. City of New York Dep't
of Hous. Pres. & Dev., 641 F. App’x 60, 62 (2d Cir. 2016) (“Title VII does not provide for
individual liability.”); Perros v. Cnty. of Nassau, 238 F. Supp. 3d 395, 402 n.3 (E.D.N.Y. 2017)
(Wexler, J.)) (“[I]t is well-established that there is no individual liability under the ADA or the
Rehabilitation Act, whether the individual is sued in their official or individual capacity.”).
Accordingly, Plaintiff's claims against Johnson, Wemer, and Scofield under Title VII, the ADA,
and the Rehabilitation Act are dismissed.”

2 Plaintiff himself concedes “individually named defendants are not liable under Title VII, the
ADA, or the Rehabilitation Act[.]” Opp’n to Defs. Mem. at 11.

3. Plaintiff's Remaining Federal, State, and City Claims Fail as a Matter of Law
a. Plaintiff Fails to Support his Discrimination Claims with Adequate
Evidence of Discriminatory Animus
It is undisputed Plaintiff belongs to a protected class. Plaintiff fails, however, to support
his discrimination claims with evidence he experienced an adverse employment action
motivated, in whole or in part, by discriminatory animus. Discrimination claims under Title VII,
the ADA, and the Rehabilitation Act, require Plaintiff to show “[he] was subjected to an adverse
employment action . . . [and] the adverse employment action took place under circumstances
giving rise to an inference of discrimination based on [his] membership in the protected class.”
Weaver v. Bloomberg L.P., 717 F. Supp. 3d 372, 383-84 (S.D.N.Y. 2024) (Engelmayer, J.)
(citing Ruiz v. Cnty. of Rockland, 609 F.3d 486, 492 (2d Cir. 2010)); see also Dooley v. JetBlue
Airways Corp., 636 F. App’x 16, 21 (2d Cir. 2015) (stating a plaintiff must “demonstrate that [he
or she] suffered an adverse employment action under circumstances giving rise to an inference of
discriminatory intent” to prevail on a discrimination claim) (internal citation omitted).
To defeat summary judgment of his federal discrimination claims, Plaintiff must produce
admissible evidence to “permit a reasonable factfinder to find . . . that the adverse employment
decision was motivated at least in part by an ‘impermissible reason,’ i.e., a discriminatory
reason.” Weaver, 717 F. Supp. 3d at 385 (emphasis in original). Plaintiff's NYSHRL claims
“are governed by the same standards as [his] federal claims.” Richards v. Dep’t of Educ. of City
of New York, 21-CV-338, 2022 WL 329226, at *19 (S.D.N.Y. Feb. 2, 2022) (Liman, J.); see also
Cooper v. New York State Dep’t of Lab., 819 F.3d 678, 680 (2d Cir. 2016) (“Employment
discrimination claims brought under the NYSHRL are analyzed identically to claims under . . .
Title VII[.]”). Even under the NYCHRL’s more lenient standard, Plaintiff “bears the burden of

showing that [Defendants’] conduct is caused by a discriminatory motive. It is not enough that
[Plaintiff] has an overbearing or obnoxious boss.” Richards, 2022 WL 329226, at *20.
“A showing of disparate treatment—that is, a showing that an employer treated plaintiff
‘less favorably than a similarly situated employee outside his protected group’—is a recognized
method of raising an inference of discrimination for the purposes of making out a prima facie
case.” Ruiz, 609 F.3d at 493 (quoting Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir.
2003)). Plaintiff alleges he experienced adverse employment actions in the form of negative
performance evaluations, excessive class assignments, denial of afterschool work, and,
ultimately, the discontinuance of his employment at the end of his probationary period. See
Opp’n. to Defs. Mem. at 14-16. Plaintiff contends similarly situated employees outside his
protected group received preferential treatment from Defendants. Similarly situated employees
are “(1) subject to the same performance evaluation and discipline standards and (2) engaged in
comparable conduct.” Id. at 493-94 (quoting Shumway v. United Parcel Serv., Inc., 118 F.3d 60,
64 (2d Cir. 1997)) (internal quotation marks omitted).
The Second Amended Complaint identifies by name only one allegedly similarly situated
teacher who Plaintiff asserts received preferential treatment. Plaintiff alleges “Principal Johnson
wrote me up for insubordination involving use of google classroom codes, but did not write up
Donald Graham, who is an African American, for the very same misconduct.” SAC, Addendum
412. Plaintiff does not accompany this allegation with any evidence showing he and Mr.
Graham were subject to the same performance evaluation and discipline standards and were,
therefore, similarly situated. See Richards, 2022 WL 329226, at *10 (“[Plaintiffs] pleading falls
short because it either does not identify similarly situated employees or, for the employees it

10

does identify, the pleading does not provide facts to support that they are similarly situated in all
material respects.”).
Plaintiff's other allegations of differential treatment contain even less information about
the allegedly similarly situated teachers. Plaintiff alleges:
e Principal Johnson did not give me my teaching preferences for the 2020-21
school year even though these courses were available to me. Upon
information and belief, he did not deny preferences to nondisabled an/or
non-Jamaican teachers in the math department.
e Jalso have not been assigned my own desk and chair in the school for the
2021-22 school year, in contrast to the other teachers at the school.
e On April 17, 2021, I saw [Assistant Principal] Scofield in the school
staircase and asked him if he did not receive my request to work after
school. AP Scofield replied yes, he did receive it, but he told me he did not
add me to the list to work because of my scholarship report and poor
communication skills (thereby implicating my speech impediment). It is
my understanding that these reasons were not a requirement to work after
school, and as a result, I was treated differently from my other similarly
situated colleagues because of my speech impediment since all teachers
who apply to work after school were hired except me.
e Principal Johnson further retaliated against me by not recommending me
for tenure although I was eligible for tenure and he did not ask me for a
tenure binder. Jt is my understanding that he recommended other
similarly [situated] teachers for tenure.
SAC, Addendum ff 9, 16, 27, 31 (emphases added).
Plaintiff produces no evidence to suggest these unnamed teachers were, in fact, similarly
situated: he does not state they engaged in comparable conduct or were subject to the same
performance evaluations and discipline standards. Plaintiff cannot survive a motion for
summary judgment by merely stating, without producing sufficient admissible evidence, he was
treated worse than others outside his protected group. See Karunakaran v. Borough of
Manhattan Cmty. Coll., 18-CV-10723, 2021 WL 535490, at *5 (S.D.N.Y. Feb. 12, 2021)
(Ramos, J.) (“Simply arguing that employees not in [plaintiffs] protected groups were treated
differently is not sufficient without pleading additional details about specific events and without
11

pleading additional facts that [plaintiff] was similarly situated in all material respects to those
comparator employees.”).’
“An inference of discrimination can [also] arise from . . . [an] employer’s criticism of the
plaintiff's performance in ethnically degrading terms; or its invidious comments about others in
the employee’s protected group.” Richards, 2022 WL 329226, at *10 (quoting Littlejohn v. City
of New York, 795 F.3d 297, 312 (2d Cir. 2015)). Plaintiff alleges Principal Johnson (1) described
his speech as “choppy and incoherent,” (2) evaluated his written and oral communication skills
as “less than professionally expected,” and (3) told him “you Caribbean people love to play the
victim” when Plaintiff complained of unsafe working conditions in his classroom. SAC,
Addendum ff 10-11, 13.
Critical, but facially neutral, remarks do not raise an inference of discrimination unless
accompanied by specific evidence of discriminatory intent. See, e.g., Humphries v. City Univ. of
New York, 13-CV-2641, 2013 WL 6196561, at *9 (S.D.N.Y. Nov. 26, 2013) (Engelmayer, J.)
(“[Plaintiff's] subjective interpretation of her co-workers’ use of [] critical but facially non-
discriminatory terms does not, itself, reveal discriminatory animus.”); Askin v. Dep’t of Educ. of
City of New York, 110 A.D.3d 621, 622 (2013) (“Although plaintiff asserts that defendants’
actions were motivated by age-related bias, she does not make any concrete factual allegation in
support of that claim, other than that she was 54 years old and was treated adversely under the
State law or less well under the City HRL.”). Plaintiff's only evidence of discriminatory intent is

3 Plaintiff seeks to repair these allegations by identifying the unnamed similarly situated
employees in his opposition to Defendants’ motion to dismiss. See Opp’n to Defs. Mem. at 17—
18. It is well-established plaintiffs are barred from raising new allegations in opposition to a
motion to dismiss. See, e.g., Helwing v. City of New York, 18-CV-3764, 2021 WL 781794, at *8
(E.D.N.Y. Mar. 1, 2021) (Matsumoto, J.) (finding the defendant “correctly argues that any newly
raised allegations in opposing a motion to dismiss are improper and should not be considered”),
aff'd sub nom., Helwing v. Pszeniczny, 21-843-CV, 2022 WL 610341 (2d Cir. Mar. 2, 2022).
12

a single, unsubstantiated allegation Principal Johnson made a pejorative comment about people
within Plaintiff's protected group. While troubling, this stray comment cannot support the entire
weight of Plaintiff's discrimination claims. See, e.g., Mete v. New York State Off, of Mental
Retardation & Developmental Disabilities, 21 A.D.3d 288, 294 (1st Dep’t 2005) (“[E]ven a
decision maker’s stray remark, without more, does not constitute evidence of discrimination.”).
b. Plaintiff Does Not Produce Evidence Sufficient to Support his Hostile-
Work-Environment Claims
Plaintiff's failure to produce admissible evidence demonstrating he was treated worse
than others because of his protected characteristics dooms his hostile-work-environment claims.
Plaintiff alleges Defendants created a hostile work environment when, among other things: (1)
Plaintiff was “assigned to teach classes in rooms without the proper classroom supplies and a
dedicated desk”; (2) Principal Johnson and Assistant Principals Scofield and Werner
“undermine[d] [Plaintiff's] classroom authority by removing students from [his] classroom”; and
(3) Assistant Principal Werner “discussed the allegations in [Plaintiff's] federal lawsuit .. . with
one of [Plaintiff's] colleagues.” SAC, Addendum ff 16, 21, and 29.
“A hostile work environment is created [under federal law and the NYSHRL] [w]hen 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.’” Moore v.
DeJoy, 18-CV-9967, 2021 WL 4523503, at *5 (S.D.N.Y. Sept. 30, 2021) (Cronan, J.) (quoting
Harris v. Forklift Sys., 510 U.S. 17, 21 (1993)) (internal quotation marks omitted); see also
Ahmad v. New York City Health & Hosps. Corp., 20-CV-675, 2021 WL 1225875, at *23
(S.D.N.Y. Mar. 31, 2021) (Engelmayer, J.) (“Hostile work environment claims under Title VII
and the NYSHRL are judged by the same standard.”). Under the more lenient NYCHRL, “a
plaintiff claiming a hostile work environment need only demonstrate that he or she was treated

13

less well than other employees because of the relevant characteristic.” Bilitch v. New York City
Health & Hosps. Corp., 194 A.D.3d 999, 1003 (2nd Dep’t 2021) (internal citation omitted).
As discussed earlier, Plaintiff fails to produce adequate evidence of mistreatment
motivated by his protected characteristics. See, e.g., Cruz v. Amazon Fulfillment, 21-CV-3092,
2024 WL 1346528, at *3 (E.D.N.Y. Mar. 29, 2024) (DeArcy Hall, J.) (describing plaintiff's
allegations of hostility—including a co-worker saying “fuck you” to plaintiff's mother and
various supervisors trying to “intimidate” and “bully” plaintiff—as “facially neutral incidents
that .. . fail to raise an inference of discrimination”); Milner v. HRA Police Dep’t/Agency, 15-
CV-6320, 2018 WL 1583675, at *7 (S.D.N.Y. Mar. 28, 2018) (Broderick, J.) (finding plaintiff's
allegations that defendant “attempted to have [his] subordinates fabricate negative claims against
him” and issued him “numerous disciplinary write-ups” were “simply insufficient to raise a
plausible claim for a severe or pervasive hostile work environment”).
c. Plaintiff Fails to Establish the Causal Connection Required for a
Retaliation Claim
To prove retaliation under federal law and the NYSHRL, Plaintiff must show Defendants
were aware he participated in a protected activity, and he experienced an adverse employment
action because of his participation in that protected activity. Ruiz v. Armstrong, 85 Misc. 3d 237,
255 (N.Y. Sup. Ct. 2024). Under the NYCHRL, Plaintiff “need not prove that he suffered an
adverse employment action based on the protected activity, but that his employer engaged in
conduct that was reasonably likely to deter a person from engaging in that protected activity.”
Id. (citing Bilitch, 194 A.D.3d at 1004). Both standards require Plaintiff to prove “a causal
connection between the protected activity and the alleged retaliatory conduct.” Jd.
Plaintiff alleges Principal Johnson “retaliated against [him] . . . [for] fil[ing] a proposed
amendment to the instant pending federal lawsuit on July 20, 2022,” by “discontinu[ing]

14

[Plaintiff s] probation with a notice dated July 29, 2022.” SAC, Addendum 32. But Principal
Johnson did not send this letter; Brooklyn North HS Superintendent Janice Ross did. See SAC,
Addendum { 36; Ellis Decl., Ex. B, Denial of Completion of Probation Letter. Plaintiff has not
produced any evidence suggesting the decision to end Plaintiff's employment was made by
Principal Johnson.
Plaintiff alleges Defendants retaliated against him for filing a complaint with the New
York State Division of Human Rights and the instant federal complaint by, inter alia, depriving
him of a classroom, not assigning him his own desk and chair, removing students from his
classroom, assigning him too many classes, reversing a change requested by the teachers’ union
to his class schedule, and using performance evaluations to lower his teacher rating. See SAC,
Addendum ff 14-24, 30-31, 37, 39. “An employee’s decision to report discriminatory behavior
cannot immunize that employee from those petty slights or minor annoyances that often take
place at work and that all employees experience.” Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68 (2006). Plaintiff produces no evidence suggesting these alleged instances of
retaliation were caused by his protected filings and not by a shortage of math teachers, limited
class space, or his actual teaching performance.*

‘ Defendants’ motion to dismiss also contends the Second Amended Complaint should be
dismissed on timeliness grounds, arguing: (1) “Plaintiff's claims under Title VII and the ADA
are partially time barred under the applicable statute of limitations”; and (2) “Plaintiffs claims
against the DOE are partially time barred by the one year statute of limitations contained in
Education Law §3813 (2-b).” Defs. Mem. at 1. The Court does not need to address these
arguments. Even if some of the conduct alleged in the Second Amended Complaint is time-
barred, it is undisputed Plaintiff alleges sufficient timely conduct to avoid dismissal on lack-of-
timeliness grounds. Moreover, evidence of untimely conduct may be introduced as background
to support a timely claim. See Davis-Garett v. Urb. Outfitters, Inc., 921 F.3d 30, 42 (2d Cir.
2019) (“[E]ven with respect to a claim of discrete discriminatory or retaliatory acts, expiration of
the limitations period does not bar ‘an employee from using the prior acts as background
evidence in support of a timely claim.’”) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 105 (2002)).
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Because each cause of action asserted in the Second Amended Complaint fails to survive
summary judgment, the Court grants Defendants’ motion to dismiss the Second Amended
Complaint.
B. Plaintiff's Third Motion to Amend is Futile
Plaintiff seeks leave to bring a Third Amended Complaint adding two defendants—
former NYC Public Schools Chancellor David Banks and Brooklyn North HS Superintendent
Janice Ross—and a deprivation-of-rights claim under 42 U.S.C. § 1983 (“Section 1983”). Reply
to Pl. Mot. at 1. Because the Court dismissed Plaintiff's Second Amended Complaint in its
entirety, Plaintiff's motion to amend is futile unless he can state a viable claim under Section
1983. See Bank v. Gohealth, LLC, 21-1287-CV, 2022 WL 1132503, at *1 (2d Cir. Apr. 18,
2022) (“[W]here the plaintiff is unable to demonstrate that he would be able to amend his
complaint in a manner which would survive dismissal, opportunity to replead is rightfully
denied.”) (quoting Hayden v. Cnty. of Nassau, 180 F.3d 42, 53 (2d Cir. 1999)).
Plaintiff's Section 1983 claim rests entirely on the allegation he earned tenure the same
day his employment at the DOE ended. Reply to Pl. Mot. at 4. Plaintiff states:
e Based on a [DOE] verified employment record, dated February 9, 2023, the
Plaintiff discovered that he was “tenured” when he was terminated on
September 7, 2022. Plaintiff asserted that he was deprived of his due
process rights guaranteed under 42 U.S.C. § 1983, and that his termination
was fraudulent and an error of law. Plaintiff should not have been
terminated on September 7, 2022, as he was tenured on that date and entitled
to the process afforded to tenure teachers under N.Y. Education law § 3020
before he can be discontinued.
Pl. Mot. 7 41.
Plaintiff already made this argument in the New York Supreme Court in an Article 78
proceeding challenging the DOE’s denial of his tenure. See Ellis Decl., Ex. A, Kenton v. City of
New York, Index No. 100231/2023, at 1 (N.Y. Sup. Ct. N.Y. Cnty. Feb. 7, 2024), ECF No. 46-1.

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The New York Supreme Court dismissed Plaintiff's challenge, finding he “was not a tenured
teacher when his employment was terminated.” /d. at 2. First, the court noted Plaintiff's DOE
employment verification made clear his “tenure [wa]s contingent upon the completion of
probation and meeting all requirements for the license.” Jd. at 3. As demonstrated by the Denial
of Completion of Probation Letter, Plaintiff did not complete his probation. See Ellis Decl., Ex.
B, Denial of Completion of Probation Letter (“I am denying your Certification of Completion of
Probation with the New York City Department of Education.”) Second, the court held Plaintiff
failed to allege he “actually performed any teaching duties on or after September 7, 2022,” his
probation completion date. Kenton, Index No. 100231/2023, at 3. Third, even if Plaintiff had
worked on September 7, 2022, the court found his “termination on September 7, 2022, was
timely [under New York General Construction Law § 20] and he was not tenured as of that
date.” Jd. at 4.
This Court will not disturb the New York Supreme Court’s well-reasoned finding.
Because Plaintiff's motion to amend is futile, his request for leave to file a Third Amended
Complaint is denied.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss the Second
Amended Complaint and DENIES Plaintiff’s motion for leave to file a Third Amended
Complaint. The Clerk of Court is respectfully directed to enter Judgment against Plaintiff and
close the case. The Clerk of the Court is further directed to mail a copy of this Memorandum
and Order to Plaintiff at his address listed on ECF and file proof of service on the docket.

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SO ORDERED.

s/ WFK
—=—~_ HON. WILLIAM F. KUNTZ, II
UNITED STATES DISTRICT JUDGE
Dated: March 20, 2025
Brooklyn, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10828170. Public record. Not legal advice.