Naula v. New York City Department of Education

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

MARY NAULA,

Plaintiff,

24-cv-333 (NRM) (LB)

v.

MEMORANDUM AND

NEW YORK CITY DEPARTMENT OF ORDER

EDUCATION, RENEE KLAGER,

Defendants.

NINA R. MORRISON, United States District Judge:

Mary Naula, proceeding pro se, brings this action against the New York City

Department of Education and Renee Klager pursuant to Title VII of the Civil Rights

Act of 1964, New York State Human Rights Law, New York City Human Rights Law,

and 42 U.S.C. § 1983. Naula, who identifies as Hispanic and Ecuadorian, broadly

claims that she experienced racial discrimination while employed as a guidance

counselor at College Point Collaborative Middle School in New York City. She alleges

that this discrimination culminated in her termination from her position, the

Department of Education opposing her unemployment benefits, and initiating an

investigation against her.

Defendants move to dismiss Naula’s claims under Federal Rule of Civil

Procedure 12(b)(1) for lack of subject matter jurisdiction, and Federal Rule of Civil

Procedure 12(b)(6) for failure to state a claim. For the reasons to follow, Defendants’

motion is GRANTED in part and DENIED in part.

BACKGROUND

The following facts are taken from Plaintiff’s Complaint (“Compl.”), ECF No.

1,1 and are accepted as true and construed in the light most favorable to Plaintiff for

the purposes of this motion.

Naula was employed as a guidance counselor at College Point Collaborative

Middle School from February 2019 until July 8, 2022. Compl. ¶ 1. Broadly, she

alleges that after she raised concerns with Principal Klager about the disparate

treatment that Hispanic Students and staff experienced, including Naula herself, she

was subjected to poor performance reviews, disciplinary letters, and eventual

termination. Id. ¶ 3.

Throughout the 2021–2022 school year, Naula raised the concerns of a

significant number of Hispanic students to Principal Klager about disparate

treatment. Id. ¶¶ 2–3. For example, in early April of 2022, Naula spoke to Principal

Klager about several minority students who felt targeted when accused of wrongdoing

by Caucasian students, but complained that when Hispanic students reported the

misconduct of Caucasian students, those reports were ignored. Id. ¶ 6. On April 8,

2022, Naula was brought into Klager’s office to speak with a parent of a Hispanic

student who reported being bullied at school, and Naula advised the parent to

schedule a meeting with Principal Klager and the administration. Id. ¶¶ 7–9. After

that conversation, which Naula alleges Principal Klager overheard, she was issued a

disciplinary letter for leaving a student unsupervised, even though Naula contends

1 Pincites refer to page numbers generated by CM/ECF, and not the

document’s internal pagination.

that this never happened, and a social worker was present with the student. Id. ¶¶

10–11. Naula argues that this disciplinary action was in direct retaliation for

“guiding a Hispanic parent on how to make a complaint with the school.” Id. ¶ 12.

Additionally, Naula contends that she was disciplined for not reporting a

complaint of bullying. Id. ¶ 16. Naula alleges that she in fact translated a letter

reporting this bullying incident (from Spanish into English) to Dean Johnsen, a white

colleague. Id. Despite also not reporting the incident, Dean Johnsen did not receive

any discipline. Id.

After receiving an unsatisfactory rating from Principal Klager, Naula was

informed that Klager had elected to discontinue her probationary service on June 6,

2022, and on July 8, 2022, that discontinuance was affirmed by the Superintendent.

Id. ¶¶ 18–19.

Naula alleges that the adverse actions did not cease after her discontinuance.

Id. ¶ 21. In October of 2022, she filed a complaint with the New York State Division

of Human Rights, which was attached to her instant Complaint. See NYSDHR

Compl., ECF No. 1 at 15–23. In it, she alleged the same wrongdoing as in the instant

Complaint, except for the allegations of the investigation into her by the DOE

discussed infra, as that happened after filing her administrative complaint. See id.

On November 30, 2022, she was informed that her application for security clearance

could not be processed because of an allegation before DOE’s Office of Special

Investigations, and she was therefore unable to take another position as a school

counselor within the DOE. Compl. ¶ 22–23. Additionally, because “[t]he DOE falsely

claimed that [Naula] failed to provide a valid Guidance Counselor license,” she was

“temporarily prevented from obtaining New York States Unemployment Insurance

benefits.” Id. ¶ 24. After an unemployment insurance hearing where the DOE failed

to produce a witness “who could state with sufficient particularity its reasons for

objecting to [her] entitlement to benefits,” Naula was awarded unemployment

insurance benefits. Id. ¶ 25.

Naula filed the instant action on January 12, 2024, alleging violations of Title

VII of the Civil Rights Act of 1964, as well as violations of the New York State Human

Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”).

See Compl. at 3–4. On June 10, 2024, Defendants filed the instant motion to dismiss

the claims based in state law for lack of subject matter jurisdiction under Federal

Rule of Civil Procedure 12(b)(1), and to dismiss all Naula’s claims for failure to state

a claim under Federal Rule of Civil Procedure 12(b)(6).

LEGAL STANDARDS

“When considering a motion to dismiss pursuant to Rule 12(b)(1), the court

must take all facts alleged in the complaint as true and draw all reasonable inferences

in favor of plaintiff.” Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000). A case is

properly dismissed under Rule 12(b)(1) when the district court “lacks the statutory []

power to adjudicate [the case].” Makarova v. United States, 201 F.3d 110, 113 (2d

Cir. 2000). In resolving such a motion, district courts are empowered to “refer to

evidence outside the pleadings.” Id. Fed. R. Civ. P. 10(c) provides that “[a] copy of a

written instrument that is an exhibit to a pleading is a part of the pleading for all

purposes.” Relying on Rule 10(c), courts have held that “the complaint is deemed to

include any written instrument attached to it as an exhibit or any statements or

documents incorporated in it by reference.” Cortec Indus., Inc. v. Sum Holding L.P.,

949 F.2d 42, 47 (2d Cir. 1991). Additionally, “[a] plaintiff asserting subject matter

jurisdiction has the burden of proving by a preponderance of the evidence that it

exists.” Makarova, 201 F.3d at 113.

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). The Court must accept as true all factual

allegations in the complaint and draw all reasonable inferences in favor of Plaintiff.

Olson v. Major League Baseball, 29 F.4th 59, 71 (2d Cir. 2022). While allegations in

the complaint that “are no more than conclusions[] are not entitled to the assumption

of truth,” Iqbal, 556 U.S. at 679, the Second Circuit has confirmed that the McDonnell

Douglas prima facie case “is an evidentiary standard, not a pleading requirement.”

Buon v. Spindler, 65 F.4th 64, 79 (2d Cir. 2023) (quoting Swierkiewicz v. Sorema N.A.,

534 U.S. 506, 510 (2002)).

Thus, to survive a motion to dismiss on a Title VII discrimination claim, a

plaintiff need not “plead a prima facie case under McDonnell Douglas.” Vega v.

Hempstead Union Free Sch. Dist., 801 F.3d 72, 84 (2015). Rather, “for a

discrimination claim to survive a motion to dismiss, ‘absent direct evidence of

discrimination, what must be plausibly supported by facts alleged in the complaint is

that the plaintiff (1) is a member of a protected class, (2) was qualified, (3) suffered

an adverse employment action, and (4) has at least minimal support for the

proposition that the employer was motivated by discriminatory intent.’” Buon, 65

F.4th at 79. Additionally, at the motion to dismiss stage, “a pro se plaintiff's

complaint ‘must be construed liberally with “special solicitude” and interpreted to

raise the strongest claims that it suggests.’” Guillaume v. Ocwen Loan Servicing,

LLC, No. 17-cv-7187 (WFK) (LB), 2019 WL 8645386, at *1 (E.D.N.Y. Dec. 17, 2019)

(quoting Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013)).

DISCUSSION

I. Naula’s State Law Claims

Defendants’ contend that because Naula brought her claims before the

NYDHR, this Court lacks subject matter jurisdiction over her NYSHRL and

NYCHRL claims pursuant to the election of remedies doctrine. See Def.’s

Memorandum in Support of Motion to Dismiss (“Def. Mem.”) at 15–16, ECF No 23-

3. This Court agrees.

New York Executive Law Section 297(9) bars a person who has “filed a

complaint [with the NYSDHR] or with any local commission on human rights” from

filing a lawsuit for the same cause of action unless the complaint was dismissed on

grounds of “administrative convenience[,] . . . untimeliness[,] . . . [or where] the

election of remedies is annulled.” N.Y. Exec. Law § 297(9). “[T]here is no question

that the election-of-remedies provisions at issue here apply to federal courts as well

as state.” York v. Ass’n of Bar of City of N.Y., 286 F.3d 122, 127 (2d Cir. 2002).

Naula has previously brought a complaint to the SDHR which alleges the same

claims of discrimination and retaliation as she alleges here. See Compl. at 15–23.

Thus, the election of remedies doctrine clearly applies here, and this Court lacks

subject matter jurisdiction to consider Naula’s state law claims. Additionally, even

though Naula did not name Klager in the SDHR complaint, because the allegations

are identical to those here, the election of remedies doctrine applies to the state law

claims against Klager. See Benson v. N. Shore-Long Island Jewish Health Sys., 482

F. Supp. 2d 320, 326 (E.D.N.Y. 2007) (holding that “even though the complaint names

additional parties” than the administrative complaint did, “because the incidents are

identical, this Court lacks jurisdiction over the Plaintiff's NYSHRL claims against all

the Defendants”).

Naula argues that the election of remedies doctrine should not apply because

she did not receive “a full and fair opportunity to litigate [her] claims in the SDHR

proceeding.” Naula Memorandum of Law in Opposition to Def.’s Mot. to Dismiss

(“Naula Opp”) at 15, ECF No. 22. However, there is no indication that her claims

were dismissed for “administrative convenience[,] . . . [or] untimeliness.” N.Y. Exec.

Law § 297(9). Naula relies on Garcia v. NYC Health & Hospital Corporation for the

proposition that if sufficient process is not followed at the administrative complaint

stage, the election of remedies doctrine does not apply. See Naula Opp. at 14–15

(citing to Garcia v. NYC Health & Hosp. Corp., 19-cv-997 (PAE), 2019 WL 6878729

(S.D.N.Y. Dec. 17, 2019)). However, Garcia does not stand for such a proposition.

Garcia held that a lack of process at the NYSDHR stage could allow a plaintiff to

overcome a claim preclusion defense to their § 1981 claim. Garcia, 2019 WL 6878729,

at *13–14. In fact, while noting that the plaintiff’s § 1981 claim survived, the Court

in Garcia actually did dismiss the plaintiff’s NYCHRL claim pursuant to the election

of remedies doctrine. See id. at *16.

Thus, because Naula “elected to pursue her . . . remedies before the state

agency, [this Court] lack[s] jurisdiction” to adjudicate her state law claims. Bleichert

v. New York State Educ. Dep’t, 793 Fed. App’x 32, 35 (2d Cir. 2019) (summary order).

Naula’s NYCDHR and NYSDHR discrimination claims, as well as her retaliation

claims concerning her termination and opposition to her employment benefits, must

be dismissed for lack of subject matter jurisdiction.2

II. Title VII Discrimination Claim

Defendants argue that Naula’s discrimination claim must be dismissed under

Rule 12(b)(6). See Def. Mem. at 19–23. The Court disagrees.

Preliminarily, all Title VII claims against Klager must be dismissed, as

individuals are not subject to liability under Title VII. See Guerra v. Jones, 421 Fed.

App’x 15, 17 (2d Cir. 2011) (summary order). However, in her opposition, Plaintiff

has requested that the Court construe her complaint as bringing a claim under 42

U.S.C. § 1983 against individual defendant Klager. The Court will do so, and conduct

its analysis simultaneously with the Title VII claim as Naula’s § 1983 Equal

2 As Naula’s NYSHRL and NYCHRL claims are being dismissed pursuant to

the election of remedies doctrine, the Court declines to pass judgment on

Defendants’ timely notice of claim argument.

Protection claim “parallels [her] Title VII claim.” Feingold v. New York, 366 F.3d 138,

159 (2004).

“[F]or a discrimination claim to survive a motion to dismiss, absent direct

evidence of discrimination, what must be plausibly supported by facts alleged in the

complaint is that the plaintiff (1) is a member of a protected class, (2) was qualified,

(3) suffered an adverse employment action, and (4) has at least minimal support for

the proposition that the employer was motivated by discriminatory intent.” Buon, 65

F.4th at 79. Naula has met this standard with respect to her discrimination claims.

Defendants do not dispute that Naula is a member of a protected class or was

qualified. Additionally, as she was terminated from her position, they cannot dispute

that she suffered an adverse employment action. Rather, they argue that her

complaint does not give rise to an inference of discriminatory animus. See Def. Mem.

at 19–23.

There are many ways a Plaintiff can provide at least minimal support that her

employer was motivated by discriminatory intent, including, but not limited to,

invidious comments about others in employee’s protected group, Carmellino v. Dist.

20 of N.Y.C. Dep’t of Educ., 3-cv-5942 (PKC), 2006 WL 2583019, at *6 (S.D.N.Y. Sept.

6, 2006), or that an employer treated Plaintiff “less favorably than a similarly

situated employee outside [the] protected group,” Ruiz v. Cnty. of Rockland, 609 F.3d

486, 493 (2d Cir. 2010). The allegation in the Complaint that Naula was disciplined

for not reporting an incident of bullying when her white colleague, Dean Johnsen,

was not reported, is enough to provide minimal support to the contention of

discriminatory intent. Compl. ¶¶ 14–16.

In arguing that this event does not provide minimal support for the contention

of discriminatory intent, Defendants primarily argue that Naula does not allege facts

showing that Dean Johnsen is similarly situated to her in all material respects. Def.

Mem. at 22–23. They chiefly rely on Back v. Bank Hapoalim, B.M., where a court in

the Southern District found that an executive assistant failed to show that the senior

executives who were allegedly treated better were “similarly situated.” No. 23-cv-

2040 (ER), 2024 WL 1216659, at *8 (S.D.N.Y. Mar. 21, 2024).

However, since Defendants filed their papers in this case, the Back case was

vacated by summary order by the Second Circuit. See Back v. Hapoalim, 2024 WL

4746263 (2d Cir. Nov. 12, 2024) (summary order). The Circuit, in addressing the

question as to whether the executives were “similarly situated” to the plaintiff, held

that the plaintiff was entitled to have “reasonable inferences drawn in her favor . . .

and it was reasonable to infer that department heads . . . would also report directly

to the CEO.” Id. at *4. Broadly, the Circuit held that “questions regarding whether

[a plaintiff’s] and the alleged [] comparators’ positions, responsibilities, and chains of

command were sufficiently similar are fact-intensive ones that are not appropriately

resolved in this case . . . on a motion to dismiss.” Id.

Here, similarly to the situation in Back, Naula is entitled to inferences drawn

in her favor that Dean Johnsen also had a responsibility to report bullying incidents,

and thus was materially similarly situated. The question of their specific duties and

responsibilities is a fact-intensive one that is not appropriate to address at the

pleading stage.

This allegation regarding Dean Johnsen is enough for Naula’s Complaint to

defeat a motion to dismiss. However, the allegations of the discriminatory treatment

of students at the school also give at least minimal support to the allegation of

discriminatory intent. It is true that the treatment of students is not necessarily

covered by Title VII. However, “allegations of discrimination, even if they do not

independently constitute adverse employment actions, provide ‘relevant background

evidence’ by shedding light on Defendant’s motivation.” Vega, 801 F.3d at 88. The

allegations that the school and Principal Klager may have been discriminatory

towards Hispanic students is relevant background in assessing whether or not their

actions towards Naula, a Hispanic employee, were motivated by discriminatory

intent.

Thus, the Court must deny Defendants’ motion to dismiss Naula’s Title VII

and § 1983 claims of discrimination.

III. Retaliation Claims

Defendants also argue that all retaliation claims must be dismissed under Rule

12(b)(6). See Def. Mem. at 23–33. The Court disagrees.

To survive a motion to dismiss at the pleading stage of a Title VII retaliation

claim, a plaintiff must plead that she (1) participated in a protected activity, (2) the

defendant knew of the protected activity, (3) there was an adverse employment

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

adverse employment action. See Littlejohn v. City of New York, 795 F.3d 297, 315–

16 (2d Cir. 2015).

Defendants argue that Letters to File and Unsatisfactory Ratings are not

actionable adverse employment actions. See Def. Mem. at 26–27. However, there is

no dispute that Naula’s termination in July of 2022 was an adverse employment

action. See Compl. ¶ 19. Additionally, there is no dispute that filing a formal charge

of discrimination under NYSDHR, as Naula did in October of 2022, is a protected

activity. See Matima v. Celli, 228 F.3d 68, 79 (2d Cir. 2000).

Defendants essentially make two arguments: first, that Naula has not pled she

participated in any protected activities before her termination. Def. Mem. at 24–25.

Second, they argue that after the filing of her NYSDHR complaint, no adverse

employment actions were taken against her. Id. at 28–33. For those reasons,

Defendants argue, Naula’s retaliation claims must fail. The Court will take each

argument in turn.

Defendants are correct that simply advocating on behalf of Hispanic students

does not constitute a protected activity, as protected activities are limited to opposing

“any practice made an unlawful employment practice by other provisions of Title VII.”

Gerzhgorin v. Selfhelp Cmty. Servs., Inc., 2023 WL 2469824, at *1 (2d Cir. Mar. 13,

2023) (summary order) (internal quotation marks omitted); see also 42 U.S.C. §

2000e-3(a). Discriminating against students based on race or national origin, while

obviously not legal, is not something that is an unlawful employment practice.

However, in paragraph three of her Complaint, Naula does claim that “shortly

after [she] raised concerns with Principal Renee Klager regarding the disparate

treatment Hispanic students and staff experienced, including [herself], . . . Klager

subjected [her] to poor performance reviews, unwarranted disciplinary letters to file,

and discontinued [her].” Compl. ¶ 3 (emphasis supplied). These concerns fall

squarely in the ambit of protected activities, as “informal protests of discriminatory

employment practices, including making complaints to management,” are protected

by Title VII. Littlejohn, 795 F.3d at 317 (internal quotation marks omitted); see also

Claud v. Brown Harris Stevens of Hamptons, LLC, 676 F. Supp. 3d 100, 128–29

(E.D.N.Y. 2023) (finding that approaching management to express concerns of a

pattern of discriminatory conduct is a protected activity).

Additionally, because Naula alleges that shortly after bringing these concerns

to Klager, disciplinary letters and her eventual discontinuance followed, she has

satisfied the low bar of pleading, through indirect evidence, a causal connection

between these complaints and the adverse employment action of her termination. See

Matos v. Discovery Commc’ns, LLC, No. 23-cv-2218 (KMK), 2024 WL 4290674, at *11

(S.D.N.Y. Sep. 25, 2024) (affirming that a plaintiff may establish causation “through

indirect evidence, by showing that discriminatory treatment closely followed the

protected activity”). The Second Circuit has directed that even when a retaliatory

action came five months after making a complaint, that is “not too long to find [a]

causal relationship.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir.

2010). Thus, while it is true that there could be more detail in the Complaint

regarding the specific concerns of Title VII violations Naula brought to Klager, given

the stage of the proceeding and the fact that this is a pro se complaint, it would be

improper to dismiss the retaliation claims on the grounds that Naula did not engage

in any protected activity. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)

(noting that if “a liberal reading of the [pro se] complaint gives any indication that a

valid claim might be stated,” dismissal on the pleadings is improper).

Defendants also argue that any claims alleging that there was retaliation in

reaction to Naula’s NYSDHR complaint must be dismissed because opposition to her

unemployment benefits, her rescinded security clearance, and failure to hire claims

are not adverse employment actions. Def. Mem. at 28–32. The Court disagrees.

Defendants assert that opposition to unemployment benefits cannot be an

adverse employment action. Id. at 28–29. While some courts in this Circuit have

come to that conclusion, see, e.g., Wright v. City of Syracuse, No. 10-cv-661

(GTS/TWD), 2014 WL 1293527, at *20 (N.D.N.Y. Mar. 31, 2014), I am persuaded by

Judge McCarthy’s reasoning in Swain v. Town of Wappinger, where the court

declined to adopt a bright line rule regarding the opposition to unemployment

benefits, and instead “evaluat[ed] the specific facts and circumstances of the case” to

determine how long the plaintiff was left without benefits due to the defendant’s

opposition, No. 17-cv-5420 (JCM), 2019 WL 2994501, at *14 (S.D.N.Y. July 9, 2019);

see also Holleman v. Art Crating Inc., 23-cv-2709 (VMS), 2014 WL 4907732, at *49

(E.D.N.Y. Sep. 30, 2014) (finding that the loss of unemployment benefits for “many

weeks” due to employer’s opposition constituted an adverse employment action).

Given that the Supreme Court has cautioned that “the significance of any given act

of retaliation will often depend upon the particular circumstances,” I also decline to

adopt a bright line rule as to whether the opposition to unemployment benefits is or

is not an adverse employment action. Burlington Northern & Santa Fe Railway Co.

v. White, 548 U.S. 53, 69 (2005).

In this case, Naula asserts that she was terminated in July of 2022, and she

did not receive her unemployment benefits until an unemployment insurance

hearing. Compl. ¶¶ 19, 25. Given the factual nature of whether or not the opposition

to unemployment benefits is an adverse employment action, it would be inappropriate

to dismiss this claim at the pleading stage before it is known for how long Naula was

denied her benefits, and before discovery indicates why the DOE failed to produce

witnesses who could “state with sufficient particularity” why they opposed Naula’s

benefits. Compl. ¶ 25.

Defendants also argue that the DOE’s Office of Special Investigation’s (“OSI”)

allegation against Naula cannot constitute an adverse action because a government

investigation in itself does not amount to an adverse employment action. Def. Mem.

at 29–31. Defendants are correct that while “an employer's investigation may

constitute a cognizable retaliatory action if carried out so as to result in a hostile work

environment, constructive discharge, or other employment consequences of a

negative nature, or if conducted in such an egregious manner as to dissuade a

reasonable worker from making or supporting a charge of discrimination,” Cox v.

Onondaga Cnty. Sheriff's Dep't, 760 F.3d 139, 147 (2d Cir. 2014) (internal quotation

marks omitted), an investigation in itself does not constitute a retaliatory action, see

Little v. NBC, 210 F. Supp. 2d 330, 387 (S.D.N.Y. 2002) (finding that a plaintiff who

produces no “evidence that any disciplinary or other type of action was ever taken

against him as a result of the investigation” cannot maintain a claim of retaliation

(alteration and internal quotation marks omitted)).

However, this argument misreads Naula’s Complaint. Naula alleges that

allegations from the DOE’s OSI, which prevented her from obtaining her security

clearance, were the direct cause of her not being able to obtain another position at

the DOE. Compl. 22–23. As Naula clarifies in her opposition briefing, these actions

by the DOE “resulted in [her] losing a nomination for a DOE position in November

2022.” Naula Opp. at 28. The materially adverse employment action Naula is

alleging is that, by initiating a retaliatory investigation against her, the DOE

prevented her from obtaining another position at the DOE. Thus, her claims

regarding the OSI investigation and her security clearance are properly read as a

failure to hire claim.

Defendants argue that a failure to hire claim cannot be maintained because an

“essential element of a failure to hire claim is that a plaintiff allege that she applied

for a specific position and was rejected.” Def. Mem. at 31 (quoting Felder v. United

States Tennis Ass’n, No. 17-cv-5045 (ER), 2018 WL 5621484, at *3 (S.D.N.Y. Oct. 30,

2018)). However, this is not a universal requirement of all failure to hire retaliation

claims. It is not necessary “where the facts of a particular case make an allegation of

a specific application a quixotic requirement.” Brown v. Coach Stores, Inc., 163 F.3d

706, 710 (2d Cir. 1998).

Here, Naula’s complaint specifically alleges that she was unable to take any

other position as another school counselor because of her lack of security clearance.

Comp. ¶ 23. It would surely be a “quixotic requirement” to require her to have applied

to a specific posting if, because she could not obtain her security clearance, any

application would have been futile. Thus, Defendants’ arguments that Naula’s

retaliation claim based on the OSI investigation is rejected.

Additionally, because the OSI investigation and failure to hire claim were not

a part of Naula’s NYSDHR complaint, and “[r]etaliation claims under the NYSHRL

are analyzed using the burden-shifting framework of McDonnell Douglas,” Nezaj v.

PS450 Bar and Restaurant, 719 F. Supp. 3d 318, 334–35 (S.D.N.Y. 2024), Naula’s

NYSHRL and NYCHRL claims of retaliation relating solely to those actions also

survive against the DOE and Principal Klager. See Benson, 482 F. Supp. 2d at 326

(holding that claims not included in the original administrative complaint are not

subject to dismissal pursuant to the election of remedies doctrine). Defendants argue

that Principal Klager cannot be held liable under NYSHRL because an individual

may only be held liable under the NYSHRL for aiding and abetting discrimination.

See Def. Mem. at 34 (citing N.Y. Exec Law § 296(6)). But the Court has not dismissed

Plaintiff’s retaliation claim against the DOE; thus, Plaintiff can still seek to hold

Principal Klager individually liable for aiding and abetting discrimination under the

NYSHRL. See Nezaj, 719 F. Supp. 3d at 333 (finding, “as a predicate to claiming

aiding and abetting discrimination, a plaintiff must have pled discrimination by a

principal”).

CONCLUSION

For the reasons stated above, Naula’s New York State and City Human Rights

Law claims, except for those alleging retaliation for failure to hire, are dismissed for

lack of subject matter jurisdiction under Rule 12(b)(1). Defendants’ motion to dismiss

Naula’s Title VII and § 1983 discrimination and retaliation claims against the DOE

and Klager, respectively, is denied. Defendants’ motion to dismiss Naula’s New York

State and City Human Rights Law claims alleging retaliation in the form of failure

to hire is denied.3

SO ORDERED.

/s/ Nina R. Morrison

NINA R. MORRISON

United States District Judge

Dated: Brooklyn, New York

March 30, 2025

3 Defendants argue that any § 1983 Monell claims against the DOE should be

dismissed as Naula has not shown that her “denial of a constitutional right . . . was

caused by an official policy or custom.” Def. Reply Br. at 16, ECF No. 24 (quoting

Bellamy v. City of New York, 914 F.3d 727, 756 (2d Cir. 2019)). It does not appear

that in her Complaint or opposition Naula has alleged any Monell claims against

the DOE. Rather, the § 1983 claims Naula asserts are against Klager. However, to

the extent that Naula’s complaint can be read as to contain any municipal liability

claims under Monell, the Court agrees with Defendants that Naula has not pled

that Klager’s actions were due to any official policy or custom on the part of the

DOE, and those claims are dismissed.