# Mitchell, Jr. v. Planned Parenthood of Greater New York, Inc.

> District Court, S.D. New York · June 30, 2025

URL: https://www.frixlaw.com/law-library/cases/11087401

## Case

- **Court:** District Court, S.D. New York
- **Decided:** June 30, 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/11087401

## How later opinions describe it (automated extraction)

- observing that adverse employment actions include “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits” (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998))

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SAMUEL RICARLOS MITCHELL, JR.,
Plaintiff,
-against-
Case No. 1:23-cv-01932 (JLR)
PLANNED PARENTHOOD OF GREATER NEW
OPINION AND ORDER
YORK, INC., WENDY STARK, ANDREA
HAGAN, GILLIAN DEAN, KEITH CORSO, and
ANNE DAVIS,
Defendants.
JENNIFER L. ROCHON, United States District Judge:
Samuel Ricarlos Mitchell, Jr. (“Plaintiff”) brings this action against Wendy Stark
(“Stark”), Andrea Hagan (“Hagan”), Gillian Dean (“Dean”), Keith Corso (“Corso”)
(collectively, the “Individual Defendants”), and Planned Parenthood of Greater New York,
Inc. (“PPGNY”) (together with the Individual Defendants, “Defendants”). Dkt. 49 (“TAC”).
Plaintiff, PPGNY’s former Chief Operating Officer, asserts claims arising under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, the Age
Discrimination in Employment Act (ADEA) of 1967, 29 U.S.C. § 621 et seq., the Americans
with Disabilities Act (ADA) of 1990, 42 U.S.C. § 12101 et seq., the New York State Human
Rights Law (NYSHRL), N.Y. Exec. Law § 290 et seq., and the New York City Human Rights
Law (NYCHRL), N.Y.C. Admin. Code § 8-101 et seq. The Court previously granted in part
and denied in part Defendants’ motion to dismiss the Second Amended Complaint for failure
to state a claim, but granted Plaintiff leave to amend. See generally Mitchell v. Planned
Parenthood of Greater N.Y., 745 F. Supp. 3d 68 (S.D.N.Y. 2024) (Mitchell I). Defendants
now move to dismiss the Third Amended Complaint for failure to state a claim. Dkt. 50.1 For
the reasons set forth below, Defendants’ motion is granted in part and denied in part.
BACKGROUND2
I. Procedural History
On March 7, 2023, Plaintiff filed this suit against Defendants, asserting claims for
race, age, gender, sex, and disability discrimination and retaliation under section 1981, the
NYCHRL, and NYSHRL, “age, race, gender/sex, and disability harassment” under the

NYCHRL and NYSHRL, and a hostile work environment claim under the NYSHRL and
NYCHRL. See generally Dkt. 1 (“Compl.”). On March 13, 2023, Plaintiff filed a charge
with the U.S. Equal Employment Opportunity Commission (“EEOC”). Dkt. 41-5 at 2-3, 22.
Before any Defendant responded to the Complaint, Plaintiff filed a First Amended Complaint
on April 11, 2023. Dkt. 14 (“FAC”). After Defendants moved to dismiss the FAC and the
parties fully briefed the motion, Dkts. 18 to 20, Plaintiff received a right-to-sue letter from the
EEOC on July 28, 2023, TAC ¶ 6. On August 8, 2023, Plaintiff sought leave to amend again,
Dkt. 27, which Defendants did not oppose, Dkt. 31. The Court granted the request, mooting

1 Defendants erroneously move to dismiss the TAC under Federal Rule of Civil Procedure
(“Rule”) 12(b)(1), rather than Rule 12(b)(6), see Dkt. 50 at 1, but their other motion papers
cite Rule 12(b)(6), see, e.g., Dkt. 50-1 ¶ 2; Dkt. 50-7 at 2; Dkt. 57 at 10. “[W]here a motion is
brought under Federal Rule of Civil Procedure 12(b)(1) in error, a court ‘may “construe the
motion as one to dismiss under 12(b)(6) . . . .”’” Cox v. DOJ, 504 F. Supp. 3d 119, 144
(E.D.N.Y. 2020) (quoting Basile v. Levittown United Tchrs., 17 F. Supp. 3d 195, 206
(E.D.N.Y. 2014)), aff’d, 111 F.4th 198 (2d Cir. 2024); see also McLearn v. Cowen & Co., 660
F.2d 845, 849 (2d Cir. 1981) (“The failure of plaintiff’s counsel to refer to the proper rule
number does not prevent [the Court] from granting the relief that plaintiff in substance asked
for, especially where defendants had notice of and argued against that relief.”). Therefore, the
Court will treat Defendants’ motion as one under Rule 12(b)(6), rather than Rule 12(b)(1).

2 Unless otherwise noted, the facts stated herein are taken from the TAC and are accepted as
true for purposes of this motion. See Empire Merchs., LLC v. Reliable Churchill LLLP, 902
F.3d 132, 139 (2d Cir. 2018); Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56-57 (2d Cir.
2016).
the motion to dismiss, Dkt. 32, and Plaintiff filed the Second Amended Complaint on August
22, 2023, Dkt. 34 (“SAC”). The SAC principally added claims against PPGNY under Title
VII, the ADEA, and the ADA. See id.; Dkt. 27 at 1. Defendants moved to dismiss the SAC
on September 8, 2023. Dkt. 35. After briefing by the parties and supplemental briefing
addressing the impact of the Supreme Court’s decision in Muldrow v. City of St. Louis, 144 S.
Ct. 967 (2024), see Dkts. 40, 42 to 45, the Court granted the motion in part and denied it in

part, but granted Plaintiff leave to amend, see Mitchell I, 745 F. Supp. 3d at 81.
On September 13, 2024, Plaintiff filed the TAC. See generally TAC. Defendants
moved to dismiss the TAC on September 27, 2024. Dkt. 50; Dkt. 50-7 (“Br.”). Plaintiff filed
his opposition on November 15, 2024, Dkt. 56 (“Opp.”), and Defendants filed their reply on
December 16, 2024, Dkt. 57 (“Reply”). The motion is thus fully briefed.
II. Factual Background
Plaintiff, a Black, African American, heterosexual man in his 40s, is an ordained
pastor and suffers from a disabling neurological condition that causes him to stutter and
stammer excessively and involuntarily in the face of stressful situations. TAC ¶¶ 10-12, 41;
Mitchell I, 745 F. Supp. 3d at 81-82. On or about September 27, 2021, PPGNY hired Plaintiff

as its interim Chief Operating Officer (“COO”) and he was hired in a full-time role on or
about February 23, 2022. TAC ¶¶ 36, 112. He was the only disabled, Christian, Black,
African American, heterosexual man on PPGNY’s executive leadership team. TAC ¶ 41.
Plaintiff’s responsibilities included managing the “day-to-day operations of the entire
affiliate,” with 75 percent of the workforce, including “External Affairs/Comms/Marketing,”
reporting to his office. TAC ¶¶ 43, 143.
At all relevant times, PPGNY employed Stark as its President and CEO; Hagan as the
Board Treasurer; Dean as the Chief Medical Officer; Corso as the Chief Development Officer;
and Davis as the Associate Chief Medical Officer. TAC ¶¶ 17-29. Stark, Hagan, Dean, and
Davis are all white women, TAC ¶¶ 18, 20, 23, 29; Corso is a white, homosexual man, TAC
¶ 26. Plaintiff alleges that each of these Individual Defendants held supervisory positions
within PPGNY and that they controlled tangible aspects of Plaintiff’s job duties. TAC ¶¶ 18-
30. However, in another section of his TAC, he alleges that he “solely reported to the
President & CEO [Stark] and did not report to or answer to the Board.” TAC ¶ 87.

According to Plaintiff, he had to complete several layers of background checks when
he joined PPGNY in September 2021 and was the “only employee who had to endure such
intrusive invasiveness.” TAC ¶ 50; see also TAC ¶¶ 47-53. From September 27, 2021, to
October 14, 2021, Plaintiff was required to “respond to several questions daily defending his
background all stemming/originating from the Board.” TAC ¶¶ 54, 66. Plaintiff also alleges
that at some unspecified point, several members of the PPGNY board, including Hagan, ran
unauthorized, unsolicited, and unconsented-to independent background checks on Plaintiff.
TAC ¶ 52.
In or around October 2021, PPGNY and its board members, including Hagan,
discovered that Plaintiff is an ordained pastor. TAC ¶ 67. Almost immediately thereafter,

PPGNY board members made unidentified comments insinuating that Christians and pastors
were not welcome to work at PPGNY, “shunned” him, and gave him the cold shoulder. TAC
¶¶ 68, 70-71. PPGNY board members also “conspired to force” PPGNY’s then-CEO, Joy
Calloway, to “interrogate Plaintiff’s pastor” to obtain a statement about his church’s stance on
abortion, allegedly to “paint Plaintiff and/or Plaintiff’s church as ‘pro-life’ in a particularly
invasive attempt to terminate Plaintiff’s employment.” TAC ¶ 72; see TAC ¶ 77.
On October 14, 2021, Plaintiff formally complained to Calloway and a board member,
Leslie Lindenbaum, “about the offensive and illegal race, color, and gender discrimination as
well as the intimidating and humiliating, hostile work environment he was being subjected to
by PPGNY executive board members, including specifically Hagan.” TAC ¶ 77. PPGNY did
not take “any immediate or appropriate corrective action in response,” nor did it reprimand
any of the PPGNY employees or board members involved. TAC ¶¶ 78-79. According to
Plaintiff, this inaction “emboldened” Hagan, Dean, and Davis, resulting in a “targeted
campaign against Plaintiff in retaliation for his protected conduct.” TAC ¶¶ 80, 82. For

example, after Plaintiff’s complaint, Hagan began “disproportionately and excessively
monitoring and micromanaging Plaintiff.” TAC ¶ 84.
In November 2021, Corso mocked Plaintiff’s southern drawl and difficulty
pronouncing a white woman’s name in front of several colleagues. TAC ¶ 90. This continued
when Plaintiff met with Corso, who allegedly suggested that “Plaintiff was ill fit for his duties
due to his disability” and that “Plaintiff had difficulty working with homosexuals due to what
Corso called homosexual ‘dramatics.’” TAC ¶ 90. The same month, Plaintiff complained to
Calloway “about the hostile work environment to which he was being subjected as a result of
Corso’s discriminatory misconduct,” but PPGNY did not take corrective action. TAC ¶¶ 92-
93. Shortly thereafter, Corso confronted Plaintiff, stating, “What’s wrong Samuel, have you

never worked with gay men before? We are very dramatic and it’s clear you are not cut out
for this job!” TAC ¶ 95 (further capitalization and emphasis omitted).
In December 2021, Dean and Davis began making discriminatory comments based on
Plaintiff’s age, race, color, and gender, including referring to him with terms like “angry,”
“offensive,” “out of control,” “harsh,” and “aggressive.” TAC ¶ 98. They used these words
with “Plaintiff’s direct reports, to the Board, to Davis and Dean’s direct reports, and in certain
community settings.” TAC ¶ 103. Plaintiff alleges the tone and context of the words were
“always delivered in a condescending manner designed to ‘other’” him and ensure he felt he
did not belong at PPGNY. TAC ¶ 98. In or around January 2022, Davis informed Plaintiff
that his use of red text in emails was “aggressive.” TAC ¶ 99. When Plaintiff explained that
he used the red text to highlight or provide commentary on prior communications, Davis
suggested blue or green as “more fitting.” TAC ¶¶ 100-101. About a month later, Dean and
Davis used red text in their communications, which Plaintiff “called out” as “discriminatory
and hypocritical.” TAC ¶ 102. Plaintiff alleges that Davis’s and Dean’s use of such

“microaggressions” was part of “an aggressive and pervasive plot to cripple Plaintiff’s
character and credibility throughout the organization, especially with the Clinical/Medical
teams.” TAC ¶ 103.
In February 2022, Dean called Merle McGee, PPGNY’s Chief Equity and Engagement
Officer and one of Plaintiff’s direct reports, a “loud black woman.” TAC ¶ 105. Plaintiff
alleges that in so doing, Dean and Davis sought to “undermine Plaintiff’s office and his black
and brown employees who sought to hold them accountable for their discriminatory conduct.”
TAC ¶ 105. On February 22, 2022, Plaintiff emailed Dean about complaints he had received
“throughout the organization” about harm “done to black and brown women during the
delivery of patient care.” TAC ¶ 111. On March 3, 2022, Plaintiff also emailed Calloway and

Lisa Williams, PPGNY’s Chief of Staff, challenging certain medical practices of deep
sedation for patients seeking abortions. TAC ¶¶ 121-124. On March 28, 2022, Plaintiff
formally complained to Calloway and Williams about “the offensive and illegal race and
gender discrimination he was being subjected to by Dean and Davis.” TAC ¶ 125. PPGNY
did not “take any immediate or corrective action in response” to Plaintiff’s complaint, nor did
PPGNY reprimand Dean or Davis. TAC ¶ 126.
On April 22, 2022, Plaintiff emailed Calloway, Williams, and PPGNY’s VP of
Compliance, Lori Lahn, VP of Research & Evaluation, Lisa Colarossi, and General Counsel
and Chief Compliance Officer, Dawn McClary. TAC ¶ 128. Plaintiff characterizes this email
as “exemplif[ying] Dean’s quest to dismantle the protections the organization had in place to
protect the interests of patients, who are predominantly black and brown women.” TAC
¶ 128.
In July 2022, Dean and Davis “deliberately and unreasonably refuted, debated, and
refused Plaintiff’s plan to engage world-renowned African American thought leader Dr.

Ronald Wyatt,” an “authority in creating frameworks, systems and workflows to protect black
and brown people from clinical and medical harm in healthcare settings,” “as a consultant for
PPGNY.” TAC ¶ 131. On July 20, 2022, “an email was sent” (the TAC does not specify by
whom) to Dean and several members of PPGNY’s medical and operational leadership teams
that highlighted how Dean and Davis were “encouraging and inciting a rebellion amongst the
registered nursing staff against the Plaintiff’s operational staff.” TAC ¶ 132.
Plaintiff “yet again formally complained” to PPGNY’s VP of Human Resources, Toi
Eaton, in some unspecified month in 2022, about Dean and Davis’s “race and age
discrimination” against Plaintiff. TAC ¶ 133. Plaintiff copied McClary, Lahn, Colarossi, and
Calloway on the email. TAC ¶ 133. PPGNY did not “take any immediate or appropriate

corrective action in response” to Plaintiff’s complaint. TAC ¶ 134.
At some point “[s]hortly following Plaintiff’s complaint,” PPGNY announced that
Rosalba Messina, a white woman who was then CFO, would assume the duties of PPGNY
interim CEO. TAC ¶¶ 136, 146. As COO, Plaintiff was second in command, and “under long
standing policy and custom he should have been elevated to the position of interim CEO.”
TAC ¶ 137. According to Plaintiff, he was “qualified for the position,” TAC ¶ 139, and was
also “better qualified, more experienced, and . . . better positioned to succeed in the interim
CEO position” than Messina since he “already managed the day-to-day operations of the
entire affiliate, with 75% of the workforce reporting to his office,” TAC ¶ 143. Plaintiff
alleges that Messina’s selection violated PPGNY’s Recommendation for Promotion process,
TAC ¶ 143, and that there was “no vetting process” or “application to apply through,” TAC
¶ 146. He also alleges that Messina told him that PPGNY board members had “reached out to
her directly to offer her the Acting CEO role,” which “confirm[ed] . . . it was not a posted role
and that the Plaintiff could [not] apply for the promotion.” TAC ¶ 140 (emphasis omitted).

On August 15, 2022, McClary emailed Williams, Corso, Dean, Plaintiff, and Messina
a compilation of emails submitted to her office from unidentified PPGNY employees. TAC
¶ 145. The emails discussed PPGNY staff’s “frustration with the Board of Directors for their
selection of both the permanent and Acting CEO appointments,” including disappointment
with the “broken promise of having a black woman as permanent CEO,” “fatigue[]” with “a
third CEO in 1.8 years,” that “equitable processes were not followed or transparent,” and that
the PPGNY board “encourages systemic racism and bigotry.” TAC ¶ 145.
Plaintiff next takes issue with PPGNY’s remote-work policy and practices. At some
point during Plaintiff’s employment, PPGNY adopted a policy under which the COO was
entitled to work remotely 40 percent of the time. TAC ¶ 147. Despite the policy, Plaintiff

was required to work 100 percent of the time in the office. TAC ¶ 63. Messina was permitted
to work remotely 95 percent of the time as both CFO and interim CEO. TAC ¶ 147. PPGNY
further elected to forgo a residency requirement that would have required Messina to relocate
from Connecticut to New York City. TAC ¶ 149. In contrast, PPGNY required Plaintiff to
have a New York City residence, even though he had a home in Florida. TAC ¶ 150.
Plaintiff alleges he and Messina were “similarly situated” because they were “chief-level
executives with the same reporting lines” and “headcount responsibilities.” TAC ¶ 147.
PPGNY also allowed Zoee Davidson (a white female resident of Illinois) and Virginia Morin
(a white female resident of Utah), who had “critical supervisory jobs in Human Resources and
the Equity & Learning Departments requiring them to be onsite,” to work remotely 100
percent of the time without changing their residencies to New York. TAC ¶¶ 148, 150.
On September 14, 2022, while attending an executive-level meeting for the Planned
Parenthood Clinical Health Network for Transformation (“CHN”), Hagan “singled out and
ridiculed Plaintiff with an onslaught of disparaging comments” in front of Karen Seltzer, chair

of PPGNY’s board. TAC ¶ 152. During this meeting, Hagan also approached Franklin
Rosado, CHN’s Chief Information Officer, and accused Plaintiff of “not being a good partner
to CHN.” TAC ¶ 154. Hagan encouraged Rosado to “report out in front of the entire
membership.” TAC ¶ 154. Plaintiff immediately complained about Hagan’s comments.
TAC ¶ 159.
In September 2022, during an executive-committee meeting, a white woman holding a
position at a lower level than Plaintiff presented a report authored by Plaintiff that he was
“meant to present . . . but was unable to do so due to the effects of [his] disabling condition.”
TAC ¶ 162. Seltzer and unnamed “executive board committee members” told the CFO that
the subordinate employee was “a much better communicator” than Plaintiff, TAC ¶ 163,

which Plaintiff understood to be a “direct, discriminatory reference to the symptoms of
Plaintiff’s disabling condition,” TAC ¶ 164.
On September 15, 2022, Plaintiff formally complained to McClary, Lahn, and Eaton
about experiencing racial discrimination on the executive leadership team and being subjected
by Hagan to a hostile work environment. TAC ¶ 165. The email also discussed concerns
Plaintiff had about Hagan’s “commingled Board Management obligations to both PPGNY and
CHN, to whom she has both donated substantial amounts of monies to.” TAC ¶ 165. PPGNY
did not “take any immediate or appropriate corrective action in response” to Plaintiff’s
complaint or reprimand Hagan. TAC ¶ 168. When Plaintiff inquired about his complaint,
McClary allegedly told Plaintiff that the board told her and Lahn not to investigate it.
TAC ¶ 167.
On September 21, 2022, during a full executive board meeting, a white, male board
member suggested that Plaintiff refrain from replacing or backfilling three critical operational
positions until Stark, the “new permanent white, Caucasian, female hire assumed the role of

CEO.” TAC ¶ 173. The hiring delay “negatively impacted Plaintiff’s ability to do his job.”
TAC ¶ 174.
On September 30, 2022, an email was sent to McClary and Eaton discussing Hagan’s
practices of “shunning and utterly disrespecting the Plaintiff in audiences of other white Board
Members, including the Plaintiff’s peer.” TAC ¶ 178. The TAC does not identify who sent
the email. TAC ¶ 178. The complaint “landed on deaf ears.” TAC ¶ 178.
In October 2022, Plaintiff complained by email to McClary and Eaton, highlighting a
verbal complaint Plaintiff had made earlier in the year about Dean’s and Davis’s request that
he stop using red in emails, despite Dean’s own use of red text in emails. TAC ¶ 169.
Plaintiff also complained that Dean had commented “it’s so nice to work with you not being

so upset, angry, or having the feeling of being slapped down,” which Plaintiff found to be
“extremely offensive.” TAC ¶ 170.
In November 2022, Williams and Lori Trzop (PPGNY’s Senior Vice President of
Health Center Operations) accompanied Stark on a tour of PPGNY health centers. TAC
¶ 180. During the tour, Williams told Trzop — in front of Stark — that Messina was “a
bitch.” TAC ¶ 181. “[N]othing was done” in response to the comment, “signaling that
women at PPGNY could do and say anything without recourse or correction.” TAC ¶ 181.
Plaintiff also notes that Stark let Williams wear a shirt saying “Woman [sic] Run Shit” while
at work. TAC ¶ 191 (emphasis and further capitalization omitted).
During a December 2022 meeting of the executive leadership team, Stark “rudely,
condescendingly and with utter disdain, chastised Plaintiff by responding to a point he raised
as follows: ‘Samuel, I don’t care and I don’t agree with you!’” TAC ¶ 184 (capitalization
omitted). Plaintiff alleges the tone used, as well as the fact that the remark was “made in front

of a large audience of executives,” “demeaned and diminished [Plaintiff] in front of his
peers.” TAC ¶ 184. Stark repeated the statement multiple times in the presence of Corso,
Dean, Messina, Williams, and two others. TAC ¶ 185. Stark also challenged Plaintiff’s
questioning of certain operational deficiencies, though she agreed with Corso’s criticism
about other operational issues. TAC ¶¶ 187.
On February 27, 2023, Andy Herz (a white, male PPGNY board member) asked a
Black female PPGNY employee who wore her hair in twists: “Hey Dawn, how do you get
your hair all on one side, I can’t do that?” TAC ¶ 193. Plaintiff witnessed the interaction,
which “emotionally sickened” him, and he filed a complaint about it. TAC ¶ 194. The
complaint was “ignored and not remedied.” TAC ¶ 194.

On March 7, 2023, Plaintiff commenced the instant action, asserting claims under
section 1981 for discrimination and retaliation, and under the NYCHRL and NYSHRL for
discrimination, harassment, retaliation, and hostile work environment based on age, race,
gender, sex, and disability. See generally Compl. The Complaint stated that Plaintiff was
“[s]imultaneous[ly]” filing a charge with the EEOC and that he intended to amend the
Complaint to add Title VII, ADA, and ADEA claims once “given a right to sue.” Compl. ¶ 5.
In response, “PPGNY’s retaliatory and discriminatory misconduct intensified dramatically.”
TAC ¶ 197. Plaintiff was “subjected to a campaign of discrimination,” including “rampant
incivility,” “being excommunicated from key operational and fiscal stakeholder meetings,”
“having several key responsibilities transitioned to female PPGNY employees,” “recording of
meeting without Plaintiff’s knowledge or consent,” and unspecified Defendants “meeting with
Plaintiff’s direct reports without his consent.” TAC ¶ 197.
On March 16, 2023, an email was sent to Stark and others complaining about Dean’s
disregard for Plaintiff’s office, work, and decisions, her intent to “sabotag[e] Plaintiff’s

work,” and attempts “to pit Plaintiff’s direct reports against Plaintiff by sowing seeds of
discord and discourse.” TAC ¶ 198. The TAC does not identify who sent this email.
TAC ¶ 198. Plaintiff further alleges that he had not been “welcomed to any budgetary
conversations pertinent to the organization with Stark and Messina” and had been excluded
from Messina and McClary’s work crafting a new vendor/workflow process, which fell into a
division reportable to the COO. TAC ¶ 202.
On the morning of March 23, 2023, two of Plaintiff’s “newest team members,”
Christopher Castro-Gonzalez and Melissa Dorado, informed Plaintiff that they “had also been
victim to and experienced environmental hostilities, acts of discrimination, and witnessed
outward expressions of not wanting to participate in equity commitment[] by Dean.” TAC

¶¶ 199, 203. On March 28, 2023, Plaintiff sent an email forwarding a complaint on behalf of
two “new members” of the PPGNY Human Resources team. TAC ¶ 200. About six hours
later, PPGNY terminated Plaintiff’s employment. TAC ¶ 204.
LEGAL STANDARD
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.” Francis v. Kings Park Manor, Inc.,
992 F.3d 67, 72 (2d Cir. 2021) (en banc) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). The court draws all reasonable inferences in the plaintiff’s favor and accepts as true
all nonconclusory allegations of fact. Id. However, a complaint must allege “more than a
sheer possibility that a defendant has acted unlawfully” and more than “facts that are ‘merely
consistent with’ a defendant’s liability.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556, 557 (2007)). Determining whether a complaint states a
plausible claim is “a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Id. at 679.

DISCUSSION
I. Title VII, ADEA, and ADA Claims (Counts VI, VII, VIII, IX, X, and XI)
The Court begins with Plaintiff’s claims against PPGNY for (1) discrimination under
Title VII (race, color, sex, and religion), the ADEA (age), and the ADA (disability) (Counts
VI, VIII, and XI); (2) retaliation under Title VII and the ADA (Counts VII and IX); and
(3) hostile work environment under the ADA (Count X).
A. Timeliness of Claims
Defendants argue that Plaintiff’s Title VII, ADEA, and ADA discrimination and
retaliation claims are time barred to the extent they are premised on discrete acts that took
place before May 17, 2022 — that is, more than 300 days before Plaintiff filed his EEOC
complaint. Br. at 6-7. The Court agrees.
Plaintiffs “must first pursue available administrative remedies and file a timely

complaint with the EEOC” as a precondition to filing a Title VII, ADEA, or ADA
discrimination claim in federal court. Hardaway v. Hartford Pub. Works Dep’t, 879 F.3d 486,
489 (2d Cir. 2018) (citation omitted); see Mitchell I, 745 F. Supp. 3d at 87 (collecting cases).
A plaintiff “must file a charge with the EEOC ‘within 180 [days] or, in states like New York
that have local administrative mechanisms for pursuing discrimination claims, 300 days “after
the alleged unlawful employment practice occurred.”’” King v. Aramark Servs., Inc., 96 F.4th
546, 559 (2d Cir. 2024) (alteration in original) (quoting Vega v. Hempstead Union Free Sch.
Dist., 801 F.3d 72, 78-79 (2d Cir. 2015)). “This statutory requirement ‘operate[s] as a statute
of limitations.’” Banks v. Gen. Motors, LLC, 81 F.4th 242, 259 (2d Cir. 2023) (quoting Zipes
v. Trans World Airlines, Inc., 455 U.S. 385, 394 (1982)). “Because a discrete discriminatory
act is individually actionable and ‘occurs’ on the day that it ‘happened,’ the 300-day
limitations period begins running on the day of each occurrence, meaning each discrete act

claim carries its own 300-day limitations period.” King, 96 F.4th at 559 (quoting Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002)). “Claims concerning discrete acts
outside this window will be time barred,” Buon v. Spindler, 65 F.4th 64, 77 (2d Cir. 2023), but
untimely events may be used “as background evidence in support of a timely claim,” Morgan,
536 U.S. at 113.
The Court discussed this issue at length in Mitchell I, see 745 F. Supp. 3d at 87-89,
and Plaintiff has not identified any reason, nor pleaded any additional facts, that would justify
the Court departing from its earlier conclusion that many of Plaintiff’s claims are untimely.
Plaintiff filed his EEOC complaint on March 13, 2023. TAC ¶ 5. May 17, 2022 was 300
days before that date. As the Court previously explained, insofar as “Plaintiff’s Title VII,

ADEA, and ADA discrimination and retaliation claims are premised on discrete acts that took
place before May 17, 2022, those claims are time-barred.” Mitchell I, 745 F. Supp. 3d at 88.
The Court may consider allegations about conduct before the limitations period as background
information and in resolving the hostile work environment claim. See id. at 87-88. Plaintiff,
as he did in opposition to the prior motion to dismiss, points out that the filing deadlines in
Title VII, ADEA, and ADA cases are “not jurisdictional and may be tolled in certain
situations including ‘when equity so requires.’” Opp. at 8 (quoting Zipes, 455 U.S. at 398).
But Plaintiff still has not explained “why the Court should equitably toll the filing deadlines,”
and the Court still “perceives no basis to do so in this case.” Mitchell I, 745 F. Supp. 3d at 88.
Similarly, Plaintiff’s invocation of the continuing-violation doctrine for his retaliation and
discrimination claims remains meritless. See Opp. at 8-12; Mitchell I, 745 F. Supp. 3d at
88-89. “Plaintiff’s Title VII, ADEA, and ADA claims for discrimination and retaliation
‘allege[] discrete actions — separate instances of alleged unlawful conduct, occurring at
different times and under different circumstances, without a non-conclusory factual

connection — rather than a common policy under which all the actions were carried out.”
Mitchell I, 745 F. Supp. 3d at 89 (quoting Jackson v. New York State, 523 F. App’x 67, 69 (2d
Cir. 2013) (summary order)). Thus, Plaintiff’s discrimination and retaliation claims based on
actions prior to May 17, 2022, are time barred.
B. Discrimination Claims (Counts VI, VIII, and XI)
The Court will next address Plaintiff’s timely discrimination claims against PPGNY
under Title VII, the ADEA, and the ADA. For a claim of discrimination under Title VII to
survive a motion to dismiss “absent direct evidence of discrimination,” Plaintiff must plead
that he “(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 (alteration adopted) (quoting
Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015)). “The same requirements
apply for claims under the ADEA and the ADA except that under the fourth prong, the
plaintiff’s age or disability must be a but-for cause (rather than a motivating cause) of the
plaintiff’s injury.” Mitchell I, 745 F. Supp. 3d at 89 (collecting cases). The parties dispute
whether Plaintiff has plausibly alleged each element of his discrimination claims.
1. Membership in a Protected Class
Defendants briefly argue that Plaintiff “fails to plausibly allege membership in [a]
protected class,” Br. at 8 (initial capitalization omitted), since he did not allege that
Defendants had knowledge of his sexual orientation or disability, id. at 9. The Court is not
convinced: Plaintiff has alleged that he is a member of protected classes based on his race and
color (African American, Black), sex (heterosexual man), religion (Christian), age (over 40),
and disability. TAC ¶¶ 10, 13, 41. Defendants do not cite any case suggesting that to plead

membership in a protected class, Plaintiff also had to plead that Defendants knew of his
membership in that class. This may be relevant to other elements of Plaintiff’s discrimination
claim (such as intent), but is not relevant here. See Mitchell I, 745 F. Supp. 3d at 89 (Plaintiff
adequately pleaded he was a member of protected classes based on identical allegations); cf.
Ibekweh v. Ascend Learning, Inc., No. 22-cv-01587 (EK) (SJB), 2023 WL 6292526, at *6
(E.D.N.Y. Sept. 27, 2023) (plaintiff failed to plead membership in a protected class based on
race where he “referr[ed] to racial bias,” but did “not specify his race”).
2. Qualification
Defendants do not argue Plaintiff was unqualified for his position as COO. Instead,
focusing on Plaintiff’s claim that he was discriminated against based on race and gender when

PPGNY appointed Messina interim CEO instead of him, Defendants briefly contend that
Plaintiff has not adequately alleged that he was qualified for the interim CEO position. Br. at
9. The Court agrees with Defendants. “To satisfy the second element required to plead a
discrimination claim under [Title VII, the ADA, and] the ADEA, a ‘plaintiff must show only
that he possesse[d] the basic skills necessary for the performance of [the] job,’” Zoulas v.
N.Y.C. Dep’t of Educ., 400 F. Supp. 3d 25, 53 (S.D.N.Y. 2019) (third alteration in original)
(quoting Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 92 (2d Cir. 2001)), that is, that
he satisfied “the criteria the employer has specified for the position,” Brown v. S. Shore Univ.
Hosp., 762 F. Supp. 3d 191, 207 (E.D.N.Y. 2025) (quoting Scé v. City of New York, No. 20-
3954, 2022 WL 598974, at *1 (2d Cir. Mar. 1, 2022) (summary order)). Plaintiff has
conclusorily alleged that he was qualified for the interim CEO role, see TAC ¶ 139, but has
not made any allegations about what skills were required for the interim CEO position.
Instead, he asserts that he was “better qualified, more experienced, and was better positioned

to succeed in the interim CEO position” than Messina “as he already managed the day-to-day
operations of the entire affiliate, with 75% of the workforce reporting to his office.” TAC
¶ 143; see also Opp. at 1, 6. While this provides insight into Plaintiff’s role as COO, it fails to
adequately allege that Plaintiff was qualified for the interim CEO position. See DiResta v.
Biz2Credit Inc., No. 21-cv-00208 (LJL), 2021 WL 6052104, at *4 (S.D.N.Y. Dec. 20, 2021)
(plaintiff failed to plead he was qualified for his position when he did “not provide any
information about what the position . . . required or about [his] skills that made him qualified
to perform that job”). The TAC thus fails to state a discrimination claim based on PPGNY’s
failure to promote Plaintiff to interim CEO. However, even if the Court assumed Plaintiff has
adequately pleaded that he was qualified to be interim CEO, he would still fail to state a

discrimination claim based on this incident because he has not alleged facts that support an
inference of discriminatory intent, as discussed below.
3. Adverse Employment Action
Defendants argue that Plaintiff’s timely Title VII, ADEA, and ADA discrimination
claims should be dismissed because Plaintiff has not alleged an adverse employment action.
Br. at 9-11. The Court disagrees.
To allege an adverse employment action, a plaintiff “must show some harm respecting
an identifiable term or condition of employment,” but does not have to show that “the harm
incurred was ‘significant.’” Mitchell I, 745 F. Supp. 3d at 90 (quoting Muldrow v. City of St.
Louis, 144 S. Ct. 967, 974 (2024)). The Court previously held that Plaintiff had satisfactorily
“alleged multiple adverse employment actions during the filing period (that is, on or after May
17, 2022), including Plaintiff’s loss of job responsibilities during March 2023 and Plaintiff’s
termination on March 28, 2023.” Id. at 91. Plaintiff makes the same allegations in the TAC.
Instead of engaging with the Court’s reasoning in Mitchell I, Defendants argue (1) that

the choice of Messina for interim CEO was not an adverse employment action because
Plaintiff never applied to the interim CEO role and (2) that Plaintiff’s termination was not an
adverse employment action because PPGNY terminated him for nondiscriminatory reasons.
Br. at 10-11. The Court is unpersuaded. Defendants’ arguments address causation, not
whether termination or a failure to promote amounts to an adverse employment action —
which they plainly do. See Mormol v. Costco Wholesale Corp., 364 F.3d 54, 57 (2d Cir.
2004) (observing that adverse employment actions include “hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing a significant
change in benefits” (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)));
Vega, 801 F.3d at 85 (similar). Moreover, Defendants’ second argument relies on material

outside the TAC, see Br. at 10-11 (citing SAC ¶ 160), and asks the Court to draw inferences in
Defendants’ favor on a motion to dismiss, see id., which the Court may not do. See Francis,
992 F.3d at 72 (“In assessing the complaint, [the court] ‘accept[s] all factual allegations as
true, and draw[s] all reasonable inferences in the plaintiff’s favor.’” (quoting Austin v. Town
of Farmington, 826 F.3d 622, 625 (2d Cir. 2016))); Goel v. Bunge, Ltd., 820 F.3d 554, 559-60
(2d Cir. 2016) (vacating and remanding because the district court considered sources extrinsic
to the complaint in resolving a motion to dismiss). Plaintiff has satisfactorily alleged multiple
adverse employment actions, as set out in Mitchell I. See 745 F. Supp. 3d at 90-91.
4. Discriminatory Intent
However, Plaintiff’s discrimination claims against PPGNY under Title VII, the
ADEA, and the ADA fail because the TAC still does not plead sufficient facts to provide “at
least minimal support for the proposition that the employer was motivated by discriminatory
intent” based on his race, color, sex, religion, or disability. Buon, 65 F.4th at 79 (quoting
Littlejohn, 759 F.3d at 311).
As an initial matter, the TAC repeats many of the allegations that the Court found

insufficient to support a proposition that PPGNY was motivated by discriminatory intent in
Mitchell I, namely, the fact that Plaintiff was the first Black, African American man on
PPGNY’s executive leadership team and generalized conclusory allegations that he suffered
discrimination based on his race, color, disability, religion, and gender. See TAC ¶¶ 40, 45;
Mitchell I, 745 F. Supp. 3d at 92 (rejecting argument that these allegations supported an
inference of discrimination). These allegations do not support an inference of discrimination
for the same reasons set forth in Mitchell I. See 745 F. Supp. 3d at 92.
Next, Mitchell points to allegations in the TAC that PPGNY employees who lacked
some or all of his protected traits were treated more favorably. See Opp. at 3-5, 15. “A

plaintiff may demonstrate circumstances giving rise to an inference of discrimination by
alleging that he was treated less favorably than similarly situated employees . . . .” Brown v.
Daikin Am. Inc., 756 F.3d 219, 229 (2d Cir. 2014). “An employee is similarly situated to co-
employees if they were (1) subject to the same performance evaluation and discipline
standards and (2) engaged in comparable conduct.” Ruiz v. County of Rockland, 609 F.3d
486, 493-94 (2d Cir. 2010) (internal quotation marks omitted). Plaintiff alleges that
Defendants (1) required Plaintiff to work in the office 100 percent of the time while other
executives were permitted to work remotely, (2) required him to maintain a New York
residence while permitting other executives to reside elsewhere, and (3) passed him over for
promotion to interim CEO in favor of a white woman. Opp. at 3-6. The Court previously
found that similar allegations in the SAC did not support an inference of discrimination
because Plaintiff had alleged insufficient detail about potential comparators and had not
pleaded that he applied for the interim CEO position. See Mitchell I, 745 F. Supp. 3d at 92-
94. Plaintiff has now added more details in the TAC, but he still falls short of stating a claim.

Plaintiff’s first claim, that PPGNY let other executive-level employes work remotely
while requiring Plaintiff to always work in person, does not support an inference of
discrimination. Plaintiff alleges that Messina, a white, lesbian, Jewish woman who was the
CFO and interim CEO, was permitted to work remotely 95 percent of the time, despite being
“similarly situated” to Plaintiff as a “chief-level executive[] with the same reporting lines” and
“headcount responsibilities.” TAC ¶ 147. Plaintiff alleges that none of the other executive-
level employees were Black men and that they were permitted to work remotely 40 to 100
percent of the time. Id. ¶ 63. Except for Messina, Plaintiff has not alleged any facts about
these executive-level employees “other than their race and gender, thus preventing the Court
from assessing whether they were similarly situated to Plaintiff.” Mitchell I, 745 F. Supp. 3d

at 93 (citing Littlejohn, 795 F.3d at 312). And Plaintiff’s allegations about Messina, while
slightly more robust, do not support an inference of discrimination. Plaintiff has not alleged
any information about Messina’s job duties as CFO or interim CEO, other than the fact that as
CFO she had the same “headcount responsibilities” as Plaintiff, that would permit the Court to
assess whether Plaintiff and Messina “engaged in comparable conduct.” Ruiz, 609 F.3d at
494; see, e.g., Eng. v. City of New York, 715 F. App'x 49, 52 (2d Cir. 2017) (summary order)
(plaintiff failed to allege similarly situated comparators where he failed to “provide[] factual
allegations about her or the comparators’ job duties, skills, efforts, or responsibilities to
demonstrate that their respective jobs were substantially equal”); Lopez v. Advantage
Plumbing & Mech. Corp., No. 15-cv-04507 (AJN), 2016 WL 3950087, at *2 (S.D.N.Y. July
19, 2016) (allegation that proposed comparators were “similarly situated” did not support
discrimination claim where plaintiffs did “not even allege that [they] and [their] co-
coworker[s] had similar job descriptions or responsibilities” (alterations in original) (internal
quotation marks omitted)); Wegmann v. Young Adult Inst., No. 15-cv-03815 (KPF), 2016 WL

827780, at *10 (S.D.N.Y. Mar. 2, 2016) (allegations did not support claim that plaintiff and
male comparators were similarly situated where plaintiff alleged only that “she and each of
the male participants were at some time, for some period, some sort of ‘management’
employee”). Indeed, Plaintiff’s other allegations suggest that he and Messina were not
similarly situated for purposes of remote work, since his role was an operational role that
involved managing the day-to-day operations of the affiliate (unlike Messina’s financial and
later interim CEO role). TAC ¶ 143; cf. Moss v. Bd. of Educ. of Sachem Cent. Sch. Dist., No.
24-2096, 2025 WL 946417, at *1 (2d Cir. Mar. 28, 2025) (summary order) (plaintiff failed “to
plausibly allege that his comparators were similarly situated in all material respects” where he
alleged he had different prior experience than his differently treated coworkers (internal

quotation marks omitted)). Thus, these allegations fail to give “at least minimal support for
the proposition that [Defendants were] motivated by discriminatory intent.” Buon, 65 F.4th at
79 (citation omitted).
Next, Plaintiff again alleges that Messina, Davidson, and Morin (all white women)
were permitted to work remotely without changing their residencies to New York. TAC
¶¶ 147-150. As discussed above, the TAC’s allegations about Messina’s roles at PPGNY do
not demonstrate that she is a suitable comparator and so do not support an inference of
discrimination as to this incident either. The Court also previously found that Plaintiff’s
allegations about Davidson and Morin did not support an inference of discrimination because
he did not plead anything about them except their race and gender. See Mitchell I, 745 F.
Supp. 3d at 93-94. Plaintiff amended the TAC to include an additional detail that Davidson
and Morin “both had critical supervisory jobs in Human Resources and the Equity & Learning
Departments requiring them to be onsite.” TAC ¶ 148. This new allegation does not explain
how Plaintiff, the COO who was in charge of operations throughout the affiliate, was

similarly situated to these employees, both “of whom held different titles, . . . worked in
different departments, or had different levels of seniority than” Plaintiff. Bramble v. Moody’s
Corp., No. 23-506, 2024 WL 705955, at *3 (2d Cir. Feb. 21, 2024) (summary order). Since
“adverse actions taken against employees who are not similarly situated cannot establish an
inference of discrimination,” Littlejohn, 795 F.3d at 312, these allegations do not support an
inference of discrimination.
Next, Plaintiff alleges that he should have been selected as interim CEO in August
2022, rather than Messina, a white woman. TAC ¶¶ 136-137, 139. The Court previously
dismissed this claim because Plaintiff did not allege he applied for the interim CEO role, a
prerequisite for a failure-to-promote claim. See Mitchell I, 745 F. Supp. 3d at 94. Plaintiff

now alleges that Messina’s selection violated PPGNY’s Recommendation for Promotion
process, TAC ¶ 143, and that board members reached out to Messina directly to offer her the
interim CEO position, indicating it was “not a posted role and that the Plaintiff could [not]
apply for the promotion,” id. ¶ 140 (emphasis omitted). He argues this “word-of-mouth hiring
establishes a reasonable inference of discrimination” and that he did not have to plead he
applied for the interim CEO role because PPGNY did not post the role or give Plaintiff an
opportunity to apply. Opp. at 12-13. The requirement that a plaintiff apply for a promotion to
state a failure-to-promote claim can be excused if the employee alleges that “(1) the vacancy
at issue was not posted, and (2) the employee either had (a) no knowledge of the vacancy
before it was filled or (b) attempted to apply for it through informal procedures endorsed by
the employer.” Jimenez v. City of New York, 605 F. Supp. 2d 485, 497 (S.D.N.Y. 2009)
(quoting Petrosino v. Bell Atl., 385 F.3d 210, 227 (2d Cir. 2004)). Plaintiff has not alleged
that he either did not know about the interim CEO vacancy before it was filled or attempted to
apply for it through informal procedures. As such, the fact that Plaintiff did not apply to the

interim CEO role still defeats any potential inference of discriminatory intent. See Mitchell I,
745 F. Supp. 3d at 93 (collecting cases).
The final category of allegations involves statements by people affiliated with PPGNY
that, in Plaintiff’s view, support an inference of discriminatory intent. The Court previously
found that these allegations did not support a plausible discrimination claim because Plaintiff
had not alleged “sufficient contextual information to support a plausible inference” that these
comments were motivated by his membership in a protected class. See Mitchell I, 745 F.
Supp. 3d at 94. In the TAC, Plaintiff repeats his allegations that Dean and Davis began
subjecting him to discriminatory comments based on his race, age, color, and gender like
“angry,” “offensive,” “out of control,” “harsh,” and “aggressive,” TAC ¶ 98, and attempts to

cure his earlier pleading deficiencies by alleging that the “tone and context of these words
were always delivered in a condescending manner,” id.; see Mitchell I, 745 F. Supp. 3d at 94
(explaining SAC’s allegations did not “provide sufficient contextual information to support a
plausible inference that the facially race-neutral terms used by Dean and Davis were in fact
racially motivated”). Plaintiff now alleges that “Davis and Dean’s usage of microaggressions
towards the Plaintiff was an aggressive and pervasive plot to cripple Plaintiff’s character and
credibility throughout the organization, especially with the Clinical/Medical teams,” and that
Dean and Davis used these words with “Plaintiff’s direct reports, to the Board, to Davis and
Dean’s direct reports, and in certain community settings.” TAC ¶ 103. Plaintiff’s additional
conclusory allegations still do not support a plausible inference of discriminatory intent.
Plaintiff does not sufficiently allege the context in which the facially neutral remarks were
made, that they were made in connection with any adverse employment action, or that they
were made by someone with the power to fire Plaintiff or assign him work. “Without more,
[Plaintiff’s] subjective interpretation of [his] co-workers’ use of these critical but facially non-

discriminatory terms does not, itself, reveal discriminatory animus.” Humphries v. City Univ.
of N.Y., No. 13-cv-02641 (PAE), 2013 WL 6196561, at *9 (S.D.N.Y. Nov. 26, 2013).
Plaintiff has supplemented his allegations about an incident in January 2022 when
Dean and Davis told Plaintiff that his use of red text via email was “aggressive” and advised
him to use blue or green text instead. TAC ¶¶ 99-102. The Court previously explained that
these comments by someone who also used red text were at most hypocritical but did not
support an inference of discriminatory intent, particularly since Davis did not have the
authority to fire Plaintiff and there was a long gap between the comment and the timely
adverse employment actions. See Mitchell I, 745 F. Supp. 3d at 94-95. Plaintiff’s new
allegations — elaborating on an email he sent Dean and Davis calling out their

“discriminatory and hypocritical use of ‘aggressive’ red text” because they “found it
appropriate for use as white women, but not for Mr. Mitchell as a black male,” TAC ¶ 102 —
do nothing to cure these deficiencies.
As in Mitchell I, the remaining comments Plaintiff identifies do not support an
inference of discriminatory intent. The new allegation that Merle McGee, who Dean called a
“loud black woman” in February 2022, “reported directly to the Plaintiff,” TAC ¶ 105, does
not provide the missing connection to “Plaintiff’s termination in March 2023 or any other
adverse employment action by PPGNY during the filing period,” Mitchell I, 745 F. Supp. 3d
at 95. Plaintiff has not elaborated on his allegations about Hagan’s comments in the
September 14, 2022 CHN meeting; as such, “Plaintiff [has] not plausibly connect[ed]
Hagan’s comments to Plaintiff’s race, color, sex, religion, age, or disability,” nor “any adverse
employment actions taken by PPGNY” for the same reasons explained in Mitchell I. Id. at
95-96. Finally, Plaintiff has not pleaded any additional facts about Herz’s comment to a
Black female PPGNY employee about her hair on February 27, 2023, see TAC ¶¶ 193-194,

except to allege he complained about the act afterwards, id. ¶ 194. This does not overcome
the deficiencies identified in Mitchell I, namely that Plaintiff has not “plausibly allege[d] that
[the comment] ‘reflected discriminatory intent,’ let alone that it ‘played a motivating factor in
[any] adverse employment’ action by PPGNY against Plaintiff.” 745 F. Supp. 3d at 96 (third
alteration in original) (quoting Hanks v. City of Syracuse, No. 22-2819, 2023 WL 8889764, at
*2 (2d Cir. Dec. 26, 2023) (summary order)).
Since Plaintiff’s allegations still do not support an inference that any timely adverse
employment action against Plaintiff was motivated by discriminatory intent based on
Plaintiff’s race, color, sex, or religion, or that Plaintiff’s age or disability was a but-for cause
of any adverse employment action, Plaintiff’s Title VII, ADEA, and ADA discrimination

claims are dismissed.
C. Retaliation Claims (Counts VII and IX)
As explained in Mitchell I, Plaintiff has plausibly alleged that Defendants retaliated
against him for filing the Complaint in this case in violation of Title VII and the ADA. 745 F.
Supp. 3d at 96. However, the Court previously dismissed Plaintiff’s retaliation claim insofar
as it was based on his March 28, 2023 email forwarding a complaint by two coworkers
because he failed to allege he participated in protected activity by forwarding that complaint.
See id. at 98-99. The TAC expands slightly on the allegations about the March 28, 2023
email, see TAC ¶ 199, but does not do enough to cure the pleading deficiencies identified in
Mitchell I. The TAC also includes new allegations about other complaints Plaintiff made in
2022, see id. ¶¶ 111, 121-125, 128, 132, 133, but these do not support a claim for the reasons
that follow.
The antiretaliation provisions of Title VII and the ADA are “substantially similar,”
Sharikov v. Phillips Med. Sys. MR, Inc., 103 F.4th 159, 170 (2d Cir. 2024), and courts analyze

retaliation claims under both statutes using the “well-known McDonnell Douglas burden-
shifting framework,” Mitchell I, 745 F. Supp. 3d at 96 (quoting Duplan v. City of New York,
888 F.3d 612, 62 (2d Cir. 2018)) (collecting cases). To plead a retaliation claim under either
statute, the plaintiff must plausibly allege “(1) participation in a protected activity; (2) that the
defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal
connection between the protected activity and the adverse employment action.” Littlejohn,
795 F.3d at 316 (citation omitted). The Court addresses each element in turn.
1. Protected Activity
Title VII and the ADA prohibit employers from “retaliat[ing] on account of an
employee’s having opposed, complained of, or sought remedies for, unlawful workplace

discrimination.” Felder v. U.S. Tennis Ass’n, 27 F.4th 834, 842 (2d Cir. 2022) (quoting Univ.
of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 342 (2013)). “A plaintiff seeking to
demonstrate that he engaged in protected activity need not show that the behavior he opposed
in fact violated Title VII or the ADA, but rather that his protected activity was motivated by a
good faith, reasonable belief that the underlying employment practice was unlawful.”
Mitchell I, 745 F. Supp. 3d at 97 (internal quotation marks and citation omitted).
Plaintiff’s new allegations about the March 28, 2023 email do not support a plausible
retaliation claim under Title VII or the ADA. The Court previously explained that the SAC’s
allegations about that email were insufficient to plead participation in protected activity
because Plaintiff did not provide “information about the ‘details’ of his coworkers’ complaint
against Dean” or “specify what ‘complaint of discrimination’ against Dean” (among several
alleged in the SAC) he believed the coworkers’ complaint “corroborated.” Mitchell I, 745 F.
Supp. 3d at 98. The additions to the TAC do not correct these problems. In fact, Plaintiff
makes no new allegations about the content of the March 28, 2023 email. Instead, Plaintiff

amended the TAC to allege that two of Plaintiff’s “newest” team members informed him on
March 23, 2023, that “they had also been victim to and experienced environmental hostilities,
acts of discrimination, and witnessed outward expressions of not wanting to participate in
equity commitments, by Dean.” TAC ¶ 199. There are no allegations linking the March 23,
2023 conversation between Plaintiff and two of his “newest [team] members” to the March
28, 2023 email, since the TAC still does not provide information about the details of the
complaint discussed in that email or what complaint of discrimination against Dean the
coworkers’ complaint corroborated. The March 28 email thus still does not support a
retaliation claim under either Title VII or the ADA.
Next, the Court turns to Plaintiff’s new allegations about other email complaints he

made during 2022. Plaintiff alleges that on February 22, 2022, he emailed Dean after
receiving complaints about “harm being done to black and brown woman during the delivery
of patient care” and complained about insensitivity to the needs of those patients. TAC ¶ 111.
This does not plausibly allege participation in a protected activity. Title VII and the ADA’s
antiretaliation provisions provide protection for “those opposing discrimination proscribed by
[Title VII or the ADA].” Jute v. Hamilton Sunstrand Corp., 420 F.3d 166, 173 (2d Cir.
2005); accord Natofsky v. City of New York, 921 F.3d 337, 354 (2d Cir. 2019) (ADA).
However, the conduct Plaintiff complained of, disregard for patients based on race, does not
involve disability discrimination and so does not amount to protected activity under the ADA.
See, e.g., Cornetta v. Town of Highlands, 434 F. Supp. 3d 171, 188 (S.D.N.Y. 2020)
(plaintiff’s complaints that defendants engaged in illegal acts of corruption and intimidation
did not contain any language that “could be construed as a complaint — formal or informal —
of disability discrimination”). Plaintiff’s claims of “disregard for the welfare of black and
brown” patients also do not implicate the conduct Title VII prohibits, namely, employment

discrimination. See Felder, 27 F.4th at 841; 42 U.S.C. § 2000e-2; see, e.g., Kelly v. Howard I.
Shapiro & Assocs. Consulting Eng’rs, P.C., 716 F.3d 10, 17 (2d Cir. 2013) (no protected
activity where “nothing in [plaintiff’s] behavior . . . would have allowed her employer to
‘reasonably have understood[] that [plaintiff’s] opposition was directed at conduct prohibited
by Title VII’” (second alteration in original) (quoting Galdieri-Ambrosini v. Nat’l Realty &
Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998)). Thus, the February 22, 2022 email does not
support a retaliation claim under Title VII or the ADA.
Similarly, Plaintiff’s allegation that he emailed Calloway and Williams on March 3,
2022, about certain of PPGNY’s medical practices, see TAC ¶¶ 121-125, and on July 20, 2022
complaining that Dean and Davis were “inciting a rebellion amongst the registered nursing

staff against the Plaintiff’s operational staff,” id.¶ 132, does not amount to participation in a
protected activity. The complained-of activities would not support a good-faith reasonable
belief that the challenged actions were unlawful under Title VII or the ADA, since they did
not involve conduct that could reasonably be understood to complain of employment
discrimination on the basis of race, sex, or, gender, or disability. And insofar as these emails
(as well as another sent April 22, 2022, id. ¶ 128) emphasized Plaintiff’s generalized concerns
that Dean and Davis were insensitive to the needs of PPGNY’s black and brown female
patients, these complaints do not support a retaliation claim under Title VII or the ADA for
the reasons explained above.
On the other hand, Plaintiff has plausibly alleged that emails sent on March 28, 2022,
and on an unspecified date in 2022, support a retaliation claim under Title VII, but not the
ADA. Plaintiff alleges that on March 28, 2022, he complained to Calloway and others “about
the offensive and illegal race and gender discrimination he was being subjected to by Dean

and Davis.” TAC ¶ 125. He also alleges that at a different point in 2022, some time after his
July 20, 2022 email and before Messina’s August 2022 promotion, he “yet again formally
complained” in an email that “detailed the race and age discrimination Mr. Mitchell was
subjected to by Dean and Davis.” Id. ¶ 133. These emails do not mention disability
discrimination and so do not involve protected activity under the ADA. However, the
allegations support an inference that Plaintiff engaged in protected activity under Title VII,
since Plaintiff claims he complained to PPGNY about race and gender discrimination in
employment. See Moore v. Hadestown Broadway Ltd. Liab. Co., 722 F. Supp. 3d 229, 255
(S.D.N.Y. 2024) (allegation that plaintiff complained about “discrimination . . . in the form of
hostility and anti-black sentiment” adequately pleaded participation in a protected activity).

In sum, Plaintiff has plausibly alleged that he participated in a protected activity under
Title VII and the ADA when he filed the Complaint, and under Title VII when he sent the
March 22, 2022 and undated 2022 email. The Court’s discussion of retaliation under Title VII
and the ADA will focus on these three incidents.
2. Defendants’ Knowledge of the Protected Activity
The second element of a retaliation claim is that the employer knew about the
protected activity. Moll, 94 F.4th at 239. Defendants do not contest that Plaintiff has
sufficiently pleaded this element. See Br. at 13-14; Reply at 5.
3. Materially Adverse Action
The third element of a retaliation claim is a materially adverse action. Moll, 94 F.4th
at 239. “An action qualifies as materially adverse if it is harmful to the point that it could well
dissuade a reasonable worker from making or supporting a charge of discrimination.” Id.
(alteration adopted) (internal quotation marks and emphasis omitted). In Mitchell I, the Court
held that Plaintiff sufficiently alleged materially adverse actions by pleading that after he filed
his Complaint in this case, Defendants excluded him from meetings, reduced his

responsibilities, recorded certain meetings without his consent, and ultimately terminated his
employment. See 745 F. Supp. 3d at 99-100. Defendants do not contest that Plaintiff has
sufficiently pleaded this element in the TAC.
4. Causal Connection
To adequately plead causation for a retaliation claim under Title VII and the ADA,
“the plaintiff must plausibly allege that the retaliation was a but-for cause of the employer’s
adverse action.” Duplan, 88 F.3d at 625; accord Sharikov, 103 F.4th at 170. “Causation may
be shown by direct evidence of retaliatory animus or inferred through temporal proximity to
the protected activity.” Duplan, 888 F.3d at 625.
Plaintiff succeeds in showing a causal link between the filing of his Complaint in this

case and the materially adverse actions identified above, as explained in Mitchell I. See 745
F. Supp. 3d at 100. Defendants do not address the temporal proximity between the materially
adverse actions preceding Plaintiff’s termination and his protected activity. Instead, citing the
SAC, Defendants argue that Plaintiff has not pleaded facts giving rise to an inference of
causation because PPGNY terminated Plaintiff because there were concerns about Plaintiff
falsifying his employment history and having conflict with his colleagues. Br. at 13-14.
These allegations in the SAC are not before the Court, and inferring that PPGNY terminated
Plaintiff because of these other issues would require the Court to draw inferences in
Defendants’ favor, which the Court may not do at this stage. The question before the Court is
whether, drawing all inferences in Plaintiff’s favor, Plaintiff has adequately pleaded causation.
The Court concludes he has.
On the other hand, Plaintiff has not succeeded in showing a causal link between his
emailed complaints in 2022 and the materially adverse actions that began in March 2023.

Almost a year elapsed between Plaintiff’s March 28, 2022 email and the materially adverse
actions that began after he filed the Complaint on March 7, 2023, and courts in this Circuit
have found that time periods of more than a year do not support an inference of causation,
even at the pleading stage. See, e.g., Dimitracopoulos v. City of New York, 26 F. Supp. 3d
200, 217 (E.D.N.Y. 2014) (“[A] gap of more than one year between protected activity and
retaliatory action is generally insufficient[.]” (citation omitted)); Kirkland-Hudson v. Mount
Vernon City Sch. Dist., 665 F. Supp. 3d 412, 464 (S.D.N.Y. 2023) (dismissing retaliation
claim because “approximately six months elapsed between [plaintiff’s] protected act” and the
materially adverse act). Plaintiff has not pleaded in which month he sent the undated 2022
email. See TAC ¶ 133. However, his allegations suggest he sent the email after his July 20,

2022 email, and before Messina was announced as interim CEO in August 2022, dating the
undated email to (at best) eight months before his termination. Likewise, a gap of this length,
without more, does not support an inference of discrimination. See, e.g., Gonzalez v. City of
New York, 377 F. Supp. 3d 273, 291 (S.D.N.Y. 2019) (passage of approximately six months
between protected activity and adverse employment action, without more, did not permit an
inference of causation).
Based on the foregoing, Plaintiff states a claim for retaliation under Title VII and the
ADA based on Plaintiff’s protected activity of filing the Complaint in this case. Defendants’
motion to dismiss those claims is therefore denied.
D. Hostile Work Environment (Count X)
Plaintiff also brings a hostile work environment claim under the ADA. TAC ¶¶ 273-
275. The Court previously dismissed this claim because the only allegations related to
Plaintiff’s alleged disability were that he had to go through a “disproportionate number of

background checks” compared to nondisabled prospective employees and that several board
members commented in September 2022 that they thought Plaintiff’s subordinate was a better
communicator than Plaintiff, and these allegations at most amounted to “stray incidents” that
did not support a hostile work environment claim. Mitchell I, 745 F. Supp. 3d at 101-02.
Plaintiff has amended the TAC to provide more detail about an instance when Corso mocked
his drawl and pronunciation in November 2021, alleging that Corso mimicked his “inability to
pronounce and articulate a white woman’s name correctly due to his disabling condition.” See
TAC ¶¶ 89-90. He also alleges that two non-Black employees were not subjected to the same
background check process, but he does not make any allegation about whether these

employees were disabled. See id. ¶ 57. Plaintiff has not otherwise augmented the allegations
related to his alleged disability. For the reasons explained in Mitchell I, the facts alleged
remain inadequate to give rise to a hostile work environment claim under the ADA, since
“[u]nder federal law, ‘simple teasing, offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the terms and conditions of
employment.” 745 F. Supp. 3d at 101 (quoting Faragher v. City of Boca Raton, 524 U.S. 775,
788 (1998)). The Court grants the motion to dismiss the ADA hostile work environment
claim.
II. Section 1981 Claim (Counts I and IV)
Plaintiff next brings claims against all Defendants under 42 U.S.C. § 1981 for
discrimination and retaliation. TAC ¶¶ 223-229, 244-250. Section 1981 provides that “[a]ll
persons within the jurisdiction of the United States shall have the same right in every State
and territory to make and enforce contracts, . . . as is enjoyed by white citizens.” 42 U.S.C.
§ 1981(a). “[T]he term ‘make and enforce contracts’ includes the making, performance,
modification, and termination of contracts, and the enjoyment of all benefits, privileges,

terms, and conditions of the contractual relationship.” Id. § 1981(b); see also Patterson v.
County of Oneida, 375 F.3d 206, 224 (2d Cir. 2004) (“[Section 1981] thus outlaws
discrimination with respect to the enjoyment of benefits, privileges, terms, and conditions of a
contractual relationship, such as employment . . . .”). Discrimination and retaliation claims
based on race are cognizable under section 1981, and are subject to a four-year statute of
limitations. See Patterson, 375 F.3d at 225 (discrimination); Hawkins v. 1115 Legal Serv.
Care, 163 F.3d 684, 693 (2d Cir. 1998) (retaliation); Banks, 81 F.4th at 260 (statute of
limitations). The Court will discuss Plaintiff’s discrimination claim first and then his
retaliation claim.

A. Discrimination Claim (Count I)
Section 1981 discrimination claims are also analyzed under the McDonnell Douglas
test. See Hamilton v. Siemens Healthcare Diagnostics, Inc., No. 23-cv-07408 (KMK), 2025
WL 863572, at *9 (S.D.NY. Mar. 18, 2025); Kirkland-Hudson, 665 F. Supp. 3d at 449. To
survive a motion to dismiss, a plaintiff must plausibly allege that he “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.” Littlejohn, 795 F.3d at 311; see also Comcast Corp. v. Nat’l Ass’n of African Am.
Owned Media, 140 S. Ct. 1009, 1019 (2020) (“To prevail, a [section 1981] plaintiff must
initially plead and ultimately prove that, but for race, it would not have suffered the loss of a
legally protected right.”). Claims against individuals are cognizable under section 1981, but
“in order to make out a claim for individual liability under § 1981, a plaintiff must
demonstrate ‘some affirmative link to causally connect the actor with the discriminatory
action.’” Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000)

(quoting Allen v. Denver Pub. Sch. Bd., 928 F.2d 978, 983 (10th Cir. 1991), overruled on
other grounds by Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220 (10th Cir. 2000));
accord Moy v. Napoli Shkolnik, PLLC, No. 23-cv-03788 (DEH), 2024 WL 3498131, at *13
(S.D.N.Y. July 22, 2024).
The Court previously dismissed Plaintiff’s section 1981 discrimination claim because
he did not allege race was the but-for cause of his injury, see Mitchell I, 745 F. Supp. 3d at
102-03, and Defendants argue that the TAC still fails to plausibly allege but-for causation, Br.
at 15. The Court agrees with Defendants. “To plead but-for causation, [a plaintiff] need only
allege ‘facts that indirectly show discrimination by giving rise to a plausible inference of
discrimination.’” Kiseleva v. Greenspan, 755 F. Supp. 3d 367, 383 n.8 (S.D.N.Y. 2024)

(quoting Vega, 801 F.3d at 87). While Plaintiff has now conclusorily pleaded that “[b]ut for
Plaintiff’s race as a black, African American, he would not have suffered the loss of his
legally protected rights,” TAC ¶ 226, he has not pleaded facts that give rise to a plausible
inference of discrimination based on race, as set forth above, see supra pp. 19-25.
Accordingly, the Court dismisses Plaintiff’s section 1981 discrimination claim.
B. Retaliation Claim (Count IV)
Plaintiff brings retaliation claims under section 1981 against all Defendants. TAC
¶¶ 244-250. “Retaliation claims under section 1981 are ‘subject to the same standards’ as
retaliation claims under Title VII.” Mitchell I, 745 F. Supp. 3d at 103 (quoting Banks, 81
F.4th at 275). Thus, insofar as Plaintiff states a claim against PPGNY for race-based
retaliation under Title VII, he states a retaliation claim under section 1981 against PPGNY.
As to Plaintiff’s claims against the Individual Defendants, “an individual may be held liable
for retaliation under § 1981 ‘if that individual is personally involved in the alleged
deprivation.’” McFadden v. County of Monroe, 672 F. App’x 81, 83 (2d Cir. 2016) (summary

order) (quoting Littlejohn, 795 F.3d at 314)). Defendants once more argue that Plaintiff’s
allegations do not support retaliation claims against the Individual Defendants under section
1981. Dkt. 41-6 at 21-26; Br. at 5-6. Plaintiff again does not respond to this argument,
effectively conceding it. See Mitchell I, 745 F. Supp. 3d at 103; Opp. at 18-21. Therefore, the
Court dismisses Plaintiff’s section 1981 discrimination claim as to the Individual Defendants.
III. NYCHRL and NYSHRL Claims (Counts II, III, IV, and V)
The Court next turns to Plaintiff’s timely state and city law claims under the NYCHRL
and NYSHRL for discrimination on the basis of race, age, sex/gender, sexual orientation, and
disability; retaliation; and harassment/hostile work environment.3 See Kassner v. 2nd Ave.
Delicatessen, Inc., 496 F.3d 229, 238 (2d Cir. 2007) (“[C]laims under the NYSHRL and the

NYCHRL are time-barred unless filed within three years of the alleged discriminatory acts.”).

3 While Mitchell I did not resolve the effect of the 2019 NYSHRL amendments, see 745 F.
Supp. 3d at 106-07, this Court has since treated NYSHRL discrimination, hostile work
environment, and retaliation claims as analytically similar to NYCHRL claims, as have the
Second Circuit and courts in this district. See Mumin v. City of New York, 760 F. Supp. 3d 28,
44 (S.D.N.Y. 2024) (discrimination); Qorroli v. Metro. Dental Assocs., 124 F.4th 115, 122
(2d Cir. 2024) (retaliation); Lee v. Riverbay Corp., 751 F. Supp. 3d 259, 287 (S.D.N.Y. 2024)
(hostile work environment). In any event, as in Mitchell I, the ultimate resolution of the
effects of the 2019 amendments makes no difference since Plaintiff’s employment
discrimination claims fall short even under the NYCHRL’s more liberal standards. 745 F.
Supp. 3d at 106-07.
A. Discrimination (Count II)
To state a discrimination claim under the NYCHRL and post-amendment NYSHRL,
“a plaintiff must allege only that [he] was ‘treated “less well” . . . because of a discriminatory
intent,’ i.e., that the unequal treatment was based, at least in part, on a protected
characteristic.” Lee v. Riverbay Corp., 751 F. Supp. 3d 259, 275 (S.D.N.Y. 2024) (omission
in original) (quoting Mihalik, 715 F.3d at 110); see also Wolf v. Time Warner, Inc., 548 F.
App’x 693, 696 (2d Cir. 2013) (summary order) (“To state a claim for discrimination [under

the NYCHRL], a plaintiff must only show differential treatment of any degree based on a
discriminatory motive . . . .”).
Unlike Title VII, the NYCHRL and NYSHRL permit suits against individual
supervisors. See McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 157 (2d Cir. 2017) (per
curiam) (NYCHRL); Malena v. Victoria’s Secret Direct, LLC, 886 F. Supp. 2d 349, 365-66
(S.D.N.Y. 2012) (NYSHRL). Individual liability under the NYSHRL is “limited to
individuals with ownership interest or supervisors, who themselves, have the authority to hire
and fire employees.” Malena, 886 F. Supp. 2d at 365-66 (citation omitted). For purposes of
individual liability under the NYCHRL, supervisors include “not just those with formal

managerial or titular authority over a plaintiff,” but also “those who wield any ability to
dictate or administer the compensation, terms, conditions, or privileges of the plaintiff’s
employment.” Russell v. N.Y. Univ., 246 N.E.3d 868, 877 (N.Y. 2024). To be liable under
the NYCHRL and NYSHRL, individual employees must also have “actually participated in
the conduct giving rise to the discrimination.” Espinoza v. CGJC Holdings LLC, No. 23-cv-
09133 (DLC), 2024 WL 3520662, at *5 n.5 (S.D.N.Y. July 23, 2024); accord Mahoney v.
City of Albany, 181 N.Y.S.3d 716, 722 (App. Div. 2022); Feingold v. City of New York, 366
F.3d 138, 157-58 (2d Cir. 2004).
For substantially the same reasons stated above regarding Plaintiff’s claims under Title
VII, the ADEA, and the ADA, and those stated in Mitchell I, Plaintiff does not plausibly
allege that he “has been treated less well [by Defendants] at least in part because of” any
protected characteristic. Mihalik, 715 F.3d at 110 (emphasis, quotation marks, and citation
omitted); see Mitchell I, 745 F. Supp. 3d at 104-05. The Court therefore dismisses Plaintiff’s
discrimination claims under the NYCHRL and NYSHRL.

B. Retaliation (Count IV)
“Retaliation claims under the NYCHRL and NYSHRL are assessed under a ‘similar
but slightly broader standard’” than federal retaliation claims. Ronen v. RedRoute, Inc., 763
F. Supp. 3d 319, 333 (E.D.N.Y. 2025) (quoting Qorroli v. Metro. Dental Assocs., 124 F.4th
115, 122 (2d Cir. 2024)). “[A] plaintiff claiming retaliation must demonstrate ‘that she took
an action opposing her employer’s discrimination and that, as a result, the employer engaged
in conduct that was reasonably likely to deter a person from engaging in such action.’”
Qorrolli, 124 F.4th at 122 (quoting Mihalik, 715 F.3d at 112).
For the reasons articulated in Mitchell I, since Plaintiff states claims against PPGNY
for retaliation under Title VII, the ADA, and section 1981, he also states a retaliation claim

against PPGNY under the NYCHRL. Mitchell I, 745 F. Supp. 3d at 105. The Court
previously dismissed Plaintiff’s retaliation claims against the Individual Defendants (other
than Hagan) because Plaintiff did not allege that any Individual Defendant but Hagan actually
participated in retaliatory acts against Plaintiff. Id. at 105-06. In an attempt to correct this
deficiency, Plaintiff has now alleged that the decision to terminate Plaintiff’s employment was
made by Stark, who was the “only person to whom he reported and who had the authority to
terminate his employment.” TAC ¶ 204. The Court will therefore deny the motion to dismiss
the retaliation claim against Stark. Plaintiff also conclusorily alleges that “Hagan, Stark,
Corso, Davis, and Dean conspired and co-conspired and worked together to terminate
Plaintiff’s employment.” Id. ¶ 219. But Plaintiff does not provide factual allegations that
support his conclusory statement that multiple people conspired to terminate his employment,
especially given his earlier allegation that Stark, as his sole supervisor with authority to fire
him, decided to terminate Plaintiff’s employment. Thus, as with the SAC, Plaintiff does not
allege, except in the most conclusory of ways, that Dean, Davis, or Corso took any retaliatory

actions against Plaintiff. See Mitchell I, 745 F. Supp. 3d at 105-06. The Court therefore
denies the motion to dismiss Plaintiff’s NYSHRL and NYCHRL retaliation claims as to
PPGNY, Hagan, and Stark, but grants it as to the other Individual Defendants.
C. Hostile Work Environment (Counts III and V)
“The NYCHRL does not distinguish between claims of ‘discrimination’ and
‘harassment’ or hostile work environment, which is a term of art borrowed from the more
restrictive Title VII jurisprudence.” Mitura v. Finco Servs., Inc., 712 F. Supp. 3d 442, 452 n.3
(S.D.N.Y. 2024); accord Doolittle v. Bloomberg L.P., No. 22-cv-09136 (JLR), 2023 WL
7151718, at *8 (S.D.N.Y. Oct. 31, 2023) (“Under the NYCHRL, the standard for a hostile-
work-environment claim is the same as for a discrimination claim.”). The NYCHRL and

NYSHRL prohibit employers from discriminating based on race, color, sex, gender, and
sexual orientation, including by creating a hostile work environment. Small v. N.Y.C. Dep’t of
Educ., 650 F. Supp. 3d 89, 97, 99 (S.D.N.Y. 2023). To state a claim, a plaintiff must allege
“unequal treatment based upon membership in a protected class,” Nieblas-Love v. N.Y.C.
Housing Auth., 165 F. Supp. 3d 51, 68 (S.D.N.Y. 2016) (citation omitted), that is, that he “was
treated ‘less well’ because of discriminatory intent,” Colon v. Fashion Inst. of Tech. (State
Univ. of N.Y.), 983 F. Supp. 2d 277, 292 (S.D.N.Y. 2013) (quoting Mihalik, 715 F.3d at 110).
For the reasons stated above regarding the federal and NYCHRL discrimination claims,
Plaintiff still has not plausibly alleged that he was treated less well because of his protected
status and he thus fails to state hostile work environment claims under the NYCHRL. See
Mitchell I, 745 F. Supp. 3d at 106 (collecting cases).
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED in part and
DENIED in part. Specifically, the Court grants the motion to dismiss as to Counts I, II, III, V,
VI, VUI, IX, X, and X. Those claims are dismissed with prejudice. The Court dismisses with
prejudice the Count IV NYSHRL and NYCHRL retaliation claims against Dean, Corso, and
Davis, and Count IV’s section 1981 retaliation claim against all Individual Defendants. The
Court denies the motion to dismiss Count IV in its entirety as against PPGNY. Finally, the
Court denies the motion to dismiss Count VII. The Clerk of Court is respectfully directed to
terminate the motion at Dkt. 57.
Dated: June 30, 2025
New York, New York
SO ORDERED.

tite tego
United States District Judge

39

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11087401. Public record. Not legal advice.