Okafor v. New York State Insurance Fund

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

────────────────────────────────────

ISAAC OKAFOR,

Plaintiff, 24-cv-5680 (JGK)

- against - MEMORANDUM OPINION

AND ORDER

NEW YORK STATE INSURANCE FUND, ET

AL.,

Defendants.

────────────────────────────────────

JOHN G. KOELTL, District Judge:

The plaintiff, Isaac Okafor, brought this action against

the New York State Insurance Fund (“NYSIF”), David Wertheim,

James Fiedler, Charley McKay, and Michael Totaro (together with

Wertheim, Fiedler, and McKay, the “individual defendants”),

alleging age discrimination and retaliation in violation of the

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621

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 plaintiff

also alleges retaliation and discrimination on the basis of

national origin, race, and color in violation of Title VII of

the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et

seq.; 42 U.S.C. § 1981 (“§ 1981”); 42 U.S.C. § 1983 (“§ 1983”);

the NYSHRL; and the NYCHRL.

The defendants have moved to dismiss the Amended Complaint

for lack of subject-matter jurisdiction under Federal Rule of

Civil Procedure 12(b)(1) and for failure to state a claim under

Rule 12(b)(6). For the reasons stated below, the defendants’

motion is granted in part and denied in part.

I.

Unless otherwise indicated, the following facts are taken

from the Amended Complaint and are accepted as true for purposes

of deciding this motion.

A.

The plaintiff is a 66-year-old Black attorney of Nigerian

national origin who has been employed by NYSIF, a state agency,

since 2002. Am. Compl. ¶¶ 3, 15, 17–18, 47, ECF No. 25. The

plaintiff alleges that he has had a “long and distinguished

career” at NYSIF, served in various roles of increasing

responsibility over the years, and received satisfactory

performance reviews throughout his employment. See id. ¶¶ 49,

56. From 2002 to 2016 and from 2017 to May 28, 2024, the

plaintiff has worked in the Legal Collections Department of

NYSIF.1 Id. ¶ 50.

0F

At all relevant times, the individual defendants were

employees of NYSIF. See id. ¶¶ 19–38. Wertheim, a white male in

his 50s, served as Acting General Counsel of NYSIF; Fiedler, a

1 From April 2016 to January 2017, Okafor was employed by the New York State

Workers’ Compensation Board as a Workers’ Compensation Law Judge. Am. Compl.

¶ 51.

white male in his 60s, served as the Managing Attorney of NYSIF.

Id. ¶¶ 19–20, 24–25. McKay, a white male in his 60s, was the

Director of Legal Collections at NYSIF until he retired on April

27, 2023. Id. ¶¶ 29–30. Beginning April 27, 2023, Totaro, a

white male in his early 40s, was the Director of Legal

Collections at NYSIF. Id. ¶ 34. The plaintiff alleges that the

individual defendants were responsible for ensuring that

employees in NYSIF’s Legal Department and NYSIF’s Legal

Collections Department were not subjected to discriminatory or

retaliatory practices, and that the individual defendants had

authority to recommend the plaintiff for promotion. Id. ¶¶ 21,

26, 31, 36. The plaintiff has sued each individual defendant in

the defendant’s personal capacity for money damages and in the

defendant’s official capacity for injunctive relief. Id. ¶¶ 23,

28, 33, 38.

On April 20, 2023, the plaintiff learned from an email from

McKay, the plaintiff’s supervisor, that McKay would be retiring

from NYSIF and that Totaro, another attorney in the Legal

Collections Department, would replace McKay, effective April 27,

2023. Id. ¶¶ 57–58. According to the plaintiff, the Director of

Legal Collections position was never posted, and Totaro was

selected without an interview process—in violation of the

policies of NYSIF and the State of New York. Id. ¶¶ 66–67.

Totaro, a younger white male, was allegedly less experienced and

less qualified than the plaintiff. See id. ¶¶ 59–65. The

plaintiff alleges that: Totaro did not join the Legal

Collections Department (“Department”) until around 2012, long

after the plaintiff first joined the Department; when Totaro

joined the Department, the plaintiff was one of the attorneys

who trained Totaro on legal collection procedures; and since

2021, Totaro has continued to ask the plaintiff questions and

otherwise seek guidance from the plaintiff. See id. ¶¶ 62–65,

102.

The Director of Legal Collections (“Director”) position is

the “highest” and “most prestigious” position in the Department.

Id. ¶¶ 74–75. The position’s benefits include promotion to a

“Grade 30 Supervising Attorney position” and a salary increase

of about $30,000 per year. Id. ¶ 76. At the time of McKay’s

retirement, the plaintiff held a Grade 28 position with NYSIF.

Id. ¶ 72.

On April 24, 2023, the plaintiff and McKay discussed

Totaro’s appointment. Id. ¶¶ 68–69. During this conversation,

McKay allegedly told the plaintiff that Totaro had “made a

pitch” to Wertheim and Fiedler, and that Wertheim, Fiedler, and

McKay decided that Totaro should replace McKay as Director. Id.

¶¶ 69–70. The plaintiff alleges that McKay also inquired about

“how many more years [the plaintiff] intended to remain at

NYSIF,” to which the plaintiff responded, “between three and

five years.” Id. ¶ 71. According to the plaintiff, McKay then

stated that Totaro was selected because Totaro was “younger and

would be there far longer.” Id. At that point, the plaintiff was

eligible to retire, while Totaro, who was at least 20 years

younger, was not. Id. ¶¶ 73, 78. The plaintiff claims that the

decision to promote Totaro instead of the plaintiff is a “clear

indication of unlawful age discrimination.” Id. ¶ 80.

In May 2023, the plaintiff emailed Wertheim and Fiedler,

asking why the Director position was never posted. Id. ¶ 82.

Fiedler then met with the plaintiff in person. Id. ¶¶ 84–85. The

plaintiff alleges that Fiedler claimed that Totaro had been

selected based on McKay’s recommendation. Id. ¶ 85. Fiedler

allegedly also claimed that the plaintiff was “not . . .

reachable on the civil service list” because there were two

other attorneys in the Department who scored higher in the

promotional examination for that position, and the plaintiff

needed to be promoted first to the title of Supervising

Attorney. Id. ¶ 86.

The plaintiff alleges that this explanation was false and

pretextual. Id. ¶ 87. According to the plaintiff, he did not

need to be promoted first to Supervising Attorney before being

made Director. Id. In fact, the plaintiff had interviewed

previously for the Director position in 2018, the last time the

position was vacant; McKay was selected for the role instead.

Id. ¶¶ 88–89.

The plaintiff further alleges that NYSIF has a history and

pattern of failing to promote Black employees and employees of

Nigerian national origin to leadership positions—for example,

the plaintiff alleges that, since 2002, no Black employee has

been selected as Director. Id. ¶¶ 93–95. Instead, since the

plaintiff’s employment at NYSIF began in 2002, the plaintiff has

allegedly been supervised by six white Directors. Id. ¶ 93.

B.

On May 29, 2023, the plaintiff filed a complaint with the

New York State Division of Human Rights (“DHR”), alleging

discrimination based on race, color, and age.2 Id. ¶ 96. On

1F

August 30, 2023, NYSIF submitted a Position Statement responding

to the DHR complaint, asserting that the selection of Totaro as

Director was “not a promotional appointment but rather the

filling of a functional role,” which is why the position was not

posted. Id. ¶ 97. On September 11, 2023, the plaintiff submitted

a rebuttal to NYSIF’s Position Statement. Id. ¶ 100. On April 3,

2024, at the plaintiff’s request, the DHR complaint was

dismissed for administrative convenience. Id. ¶ 101.

2 The plaintiff’s DHR complaint did not expressly allege national origin

discrimination. Am. Compl. ¶ 96.

The plaintiff claims that the defendants have retaliated

against him after he filed the DHR complaint. Id. ¶ 103.

According to the plaintiff, Totaro has directed “threats,

harassment, unwarranted criticism and excessive scrutiny” at him

that have not been leveled at similarly situated employees. Id.

¶ 105. For example, the plaintiff alleges that, on March 8,

2024, Totaro physically threatened the plaintiff when the

plaintiff complained to Totaro about an incident of unwarranted

criticism and excessive scrutiny. Id. ¶ 106. Four days later,

the plaintiff allegedly reported Totaro’s threat to NYSIF and

Fiedler, and requested a transfer to another NYSIF department.

Id. ¶¶ 106–07. The plaintiff alleges that Wertheim, Fiedler, and

NYSIF “condoned” Totaro’s behavior and failed to address the

plaintiff’s complaints or transfer request for months. See id.

¶¶ 109–11. Finally, in late May 2024, the plaintiff was

transferred to the Litigation Division. Id. ¶ 111.

In March 2024, shortly after he reported Totaro’s alleged

physical threat, the plaintiff interviewed with Wertheim and

others for a promotion to a Supervising Attorney position in

NYSIF’s Appeals Division. Id. ¶ 112. The plaintiff alleges that

he was well qualified for the position. Id. ¶ 113. However, the

plaintiff was passed over for the role in favor of Rosanne

Nichols, an allegedly younger, less experienced Black female of

non-Nigerian national origin. Id. ¶¶ 113-15. Although Nichols

scored higher than the plaintiff on the promotion examination,

the plaintiff alleges that his “history of excellent performance

handling appeals” rendered him more qualified than Nichols for

the position. Id. ¶¶ 116–18. The plaintiff alleges that the

decision to deny him the promotion to Supervising Attorney in

the Appeals Division was retaliation for his discrimination

complaint and also further evidence of the defendants’

discrimination based on age and national origin. Id. ¶¶ 120–22.

The plaintiff has raised claims alleging discrimination

based on age, race, national origin, and color, as well as

retaliation. The plaintiff seeks compensatory and punitive

damages, and injunctive relief restraining the defendants from

engaging in further retaliation and discrimination against him.

See id. ¶¶ 123–30, 178.

II.

To prevail against a Rule 12(b)(1) motion to dismiss for

lack of subject-matter jurisdiction, the plaintiff bears the

burden of proving the Court’s jurisdiction by a preponderance of

the evidence. Makarova v. United States, 201 F.3d 110, 113 (2d

Cir. 2000).3 In considering such a motion, the Court generally

2F

must accept the material factual allegations in the complaint as

true. See J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107,

3 Unless otherwise noted, this Memorandum Opinion and Order omits all internal

alterations, citations, footnotes, and quotation marks in quoted text.

110 (2d Cir. 2004). However, the Court does not draw all

reasonable inferences in the plaintiff’s favor. Id.

In deciding a Rule 12(b)(6) motion to dismiss for failure to

state a claim, the Court must accept the allegations in the

complaint as true and draw all reasonable inferences in the

plaintiff’s favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d

184, 191 (2d Cir. 2007). The Court’s function on a motion to

dismiss is “not to weigh the evidence that might be presented at

a trial but merely to determine whether the complaint itself is

legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d

Cir. 1985). To survive a motion to dismiss, the plaintiff’s

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). “A claim has facial

plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. While the Court should

construe the factual allegations in the light most favorable to

the plaintiff, “the tenet that a court must accept as true all

of the allegations contained in a complaint is inapplicable to

legal conclusions.” Id.

When presented with a motion to dismiss pursuant to Rule

12(b)(6), the Court may consider documents that are referenced

in the complaint, documents that the plaintiff relied on in

bringing suit and that are either in the plaintiff’s possession

or that the plaintiff knew of when bringing suit, or matters of

which judicial notice may be taken. See Chambers v. Time Warner,

Inc., 282 F.3d 147, 153 (2d Cir. 2002).

When presented with a motion to dismiss a claim under both

Rule 12(b)(1) and Rule 12(b)(6), the Court should consider the

jurisdictional challenge first. See Rhulen Agency, Inc. v. Ala.

Ins. Guar. Ass’n, 896 F.2d 674, 678 (2d Cir. 1990).

III.

A. ADEA (Count I)

In Count I, the plaintiff has sued Wertheim and Fiedler in

their official capacities for injunctive relief, alleging that

Wertheim and Fiedler failed to promote the plaintiff to the

Director of Legal Collections position because of the

plaintiff’s age, in violation of the ADEA. See Am. Compl.

¶¶ 131–44.4 In seeking to dismiss the plaintiff’s ADEA claims,

3F

the defendants argue that (1) the Eleventh Amendment bars the

plaintiff’s claims; and (2) the plaintiff has failed to allege

that his age was the but-for cause of any alleged injury.

4 The plaintiff has not sued McKay for injunctive relief because McKay is

retired and no longer works at NYSIF, thus rendering any potential equitable

relief ordered against McKay futile. Am. Compl. at 16 n.1.

1. Sovereign Immunity

The defendants have moved to dismiss the ADEA claims for

lack of subject-matter jurisdiction, contending that the

Eleventh Amendment bars the plaintiff’s claims and that the Ex

parte Young exception to sovereign immunity does not apply.

“[T]he ultimate guarantee of the Eleventh Amendment is that

nonconsenting States may not be sued by private individuals in

federal court.” Bd. of Trustees of Univ. of Ala. v. Garrett, 531

U.S. 356, 363 (2001). This immunity extends to agencies and

departments of a state, as well as to state officials “when the

state is the real, substantial party in interest.” Pennhurst

State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100–02 (1984).

Although Congress may, pursuant to its authority under § 5 of

the Fourteenth Amendment, abrogate the states’ Eleventh

Amendment immunity, the Supreme Court has held that, “in the

ADEA, Congress did not validly abrogate the States’ sovereign

immunity to suits by private individuals.” Kimel v. Fla. Bd. of

Regents, 528 U.S. 62, 80, 91–92 (2000).

The plaintiff does not dispute that Congress did not

validly abrogate the states’ immunity in the ADEA. Rather, the

plaintiff argues that the narrow exception to immunity set forth

in Ex parte Young, 209 U.S. 123, 159–60 (1908), applies to his

ADEA claims. Ex parte Young held that the Eleventh Amendment

does not prohibit suits for prospective injunctive relief

against state officials acting in violation of federal law. See

id.

The plaintiff seeks prospective injunctive relief—directing

Wertheim and Fiedler to cease their allegedly ongoing,

discriminatory promotion practices and to promote the plaintiff

to the positions that he would have occupied but for their

alleged discriminatory treatment. Am. Compl. ¶¶ 142–43, 178(c)–

(d); see also id. ¶ 136 (“Okafor is entitled to injunctive and

equitable relief, including but not limited to promotion to the

Director of Legal Collections position.”). The plaintiff also

alleges that Wertheim and Fiedler have the authority to promote

him, and that the plaintiff is still employed by NYSIF and

intends to apply for promotions in the future. Id. ¶¶ 22, 27,

125, 141. The plaintiff’s ADEA claims therefore fall comfortably

within the Ex parte Young exception to Eleventh Amendment

immunity. See, e.g., Doran v. N.Y. State Dep’t of Health Off. of

Medicaid Inspector Gen., No. 15-cv-7217, 2017 WL 836027, at *9

(S.D.N.Y. Mar. 2, 2017) (finding Ex parte Young applicable where

the plaintiff sought injunctive relief—in the form of a

promotion—against a state official for an alleged ADEA

violation); Schwartz v. York Coll., No. 06-cv-6754, 2009 WL

3259379, at *3 (E.D.N.Y. Mar. 31, 2009) (observing, on a motion

to dismiss, that the plaintiff’s ADEA claim for prospective

injunctive relief against a state official defendant in the

defendant’s official capacity was “viable”).

The defendants complain that the plaintiff’s request for

prospective injunctive relief is too vague, conclusory, and

contradictory for Ex parte Young to apply. The plaintiff

requests that he be “place[d] . . . in the position he would

have occupied” but for the defendants’ purportedly

discriminatory conduct, Am. Compl. ¶ 178(d), which the

defendants contend is insufficiently specific. Additionally,

according to the defendants, the plaintiff alleges that he was

unlawfully denied promotion to the Director of Legal Collections

job and the Appeals Division Supervising Attorney job, but he

does not identify which of these two positions he now seeks.

However, the defendants’ argument misses the mark. The

defendants rely on cases which found requests for injunctive

relief too conclusory to invoke the Ex parte Young exception,

but those cases are distinguishable. For example, in Falcon v.

City Univ. of New York, the court found Ex parte Young

inapplicable where “[t]he only reference to any kind of

injunctive relief is a single mention of the phrase alongside

every other form of damages remotely available.” No. 15-cv-3421,

2016 WL 3920223, at *9 (E.D.N.Y. July 15, 2016). By comparison,

the plaintiff in this case requests injunctive relief

restraining Wertheim and Fiedler from engaging in future

discriminatory conduct and directing them to “promot[e] Okafor

for the positions that he has applied for and for future

positions.” Am. Compl. ¶ 143. These requests are far from

conclusory, especially when read in conjunction with the

allegations that the plaintiff “will apply for future positions

and promotions” and that Wertheim and Fiedler “have not ceased

their ongoing discriminatory promotion practices of not

promoting qualified employees over age 40.” Id. ¶¶ 141–44.

Insofar as the defendants claim that the plaintiff must

request injunctive relief promoting him to a single position to

the exclusion of all other potential positions, that contention

is also without merit. The defendants cite no cases propounding

such an exacting standard. In any event, the plaintiff’s ADEA

claims focus on the Director of Legal Collections position, not

the Appeals Division Supervising Attorney position. See id.

¶¶ 57–80, 131–44.

Accordingly, Eleventh Amendment immunity does not preclude

the plaintiff’s ADEA claims for injunctive relief against

Wertheim and Fiedler. The defendants’ motion to dismiss Count I

pursuant to Rule 12(b)(1) is therefore denied.

2. Failure to State a Claim

On the merits, Wertheim and Fiedler argue that the

plaintiff has failed to allege plausibly that his age was the

but-for cause of the defendants’ adverse action–namely, their

failure to promote him to Director of Legal Collections.5

4F

Under the ADEA, which protects individuals who are at least

40 years old, 29 U.S.C. § 631(a), it is unlawful for an employer

“to fail or refuse to hire or to discharge any individual or

otherwise discriminate against any individual with respect to

his compensation, terms, conditions, or privileges of

employment, because of such individual’s age,” id. § 623(a)(1)

(emphasis added). Therefore, to establish a discrimination claim

under the ADEA, a plaintiff must ultimately “prove that age was

the ‘but-for’ cause of the employer’s adverse decision.” Gross

v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009). Hence, on a

motion to dismiss, an ADEA plaintiff must plausibly allege that

the adverse employment action would not have occurred “but for

his age.” Lively v. WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293,

303 (2d Cir. 2021); see also Marcus v. Leviton Mfg. Co., Inc.,

661 F. App’x 29, 32 (2d Cir. 2016) (summary order) (“A plaintiff

must plead facts that give plausible support to a minimal

inference of the requisite discriminatory causality.”).

The defendants contend that the plaintiff alleges that his

rank and promotional examination score, not his age, were the

5 The defendants also present arguments regarding the Appeals Division

Supervising Attorney job. However, as noted above, the plaintiff’s ADEA-

related allegations principally pertain to the Director of Legal Collections

position, and therefore the Court addresses only the Director role in

assessing whether the plaintiff has stated a plausible ADEA claim.

but-for cause of the defendants’ failure to promote him. The

defendants point to the plaintiff’s allegations that, on May 5,

2023, Fiedler told the plaintiff that the plaintiff was not

selected for the Director position “because [the plaintiff]

would have needed to be promoted to the position of Supervising

Attorney before being made Director,” and because the plaintiff

“would not have been reachable on the civil service list since

there were two other attorneys in his department who scored

higher in the promotional examination.” Am. Compl. ¶ 86.

According to the defendants, the plausible inference to be drawn

from these allegations is that the defendants decided not to

promote the plaintiff because of exam scores and civil service

title-related issues, rather than age discrimination.

However, the defendants fail to address the plaintiff’s

allegations that these proffered reasons for the promotion

decision were pretextual. In particular, the plaintiff alleges

that he had previously interviewed and been considered for the

Director position while holding his current title—Senior

Attorney—and therefore his civil service title could not have

been a genuine obstacle to his being considered for the role

again. See id. ¶¶ 86–88.

The defendants also overlook the plaintiff’s allegations

that McKay expressly told the plaintiff that the plaintiff’s age

was the reason that the plaintiff was denied the promotion.

According to the plaintiff, when the plaintiff asked McKay how

and why Totaro had been promoted over the plaintiff, McKay asked

the plaintiff how much longer the plaintiff intended to remain

at NYSIF. Id. ¶ 71. The plaintiff alleges that, after the

plaintiff responded, “between three and five years,” McKay told

the plaintiff that Wertheim and Fiedler promoted Totaro because

Wertheim and Fiedler “wanted someone in the position who is

younger and would be there far longer.” Id. The plaintiff has

also supplied specific factual allegations that Totaro was less

qualified than the plaintiff for the Director position—and over

twenty years younger than the plaintiff. See id. ¶¶ 35, 59–65.

Furthermore, unlike the plaintiff, Totaro was then ineligible to

retire. Id. ¶ 78. Considered together, these allegations are

“plainly sufficient to give plausible support to a minimal

inference” that the plaintiff was passed over for a promotion

because of his age. Downey v. Adloox Inc., 238 F. Supp. 3d 514,

519 (S.D.N.Y. 2017).

In arguing that the plaintiff has failed to allege but-for

causation, the defendants rely on inapposite cases. In those

cases, the plaintiffs failed to provide specific allegations

suggesting that the individuals chosen to fill a position were

less qualified than the plaintiffs, or offered conclusory,

generalized assertions—wholly devoid of supporting factual

detail—that the plaintiffs were passed over for a promotion

because of their age. See, e.g., Ninying v. N.Y.C. Fire Dep’t,

807 F. App’x 112, 114 (2d Cir. 2020) (summary order) (declining

to credit the plaintiff’s conclusory assertion that “he was

passed over for a promotion because of his age” where the

plaintiff failed to allege any facts to support that assertion).

By contrast, in this case, the plaintiff alleges that McKay

specifically told the plaintiff that Totaro was selected because

Totaro was “younger” and would be in the Director position “far

longer.” Am. Compl. ¶ 71. The plaintiff has also provided

specific factual allegations supporting his assertions that he

was more experienced and qualified for the position than Totaro:

Totaro did not begin working in Legal Collections until around

2012, ten years after the plaintiff joined the Department, id.

¶ 62; the plaintiff trained Totaro on legal collection

procedures, id. ¶ 63; and the plaintiff answered Totaro’s

questions about work procedures, continuing to do so even after

Totaro was promoted to the Director position, id. ¶¶ 63–65.6

5F

6 In their reply brief, the defendants argue that the fact that Totaro, who is

allegedly in his forties, is himself old enough to fall within the scope of

ADEA protection undercuts the inference that the plaintiff was denied a

promotion because of his age. It is true that, in some cases, this fact may

weaken the inference of discrimination. See, e.g., Santana v. Mt. Vernon City

Sch. Dist./Bd. of Educ., No. 20-cv-3212, 2023 WL 2876653, at *11 (S.D.N.Y.

Apr. 7, 2023). However, Totaro’s membership in the protected class is not a

basis to dismiss the ADEA claims in this case because the plaintiff has

alleged that Totaro was substantially younger than the plaintiff and that the

defendants made explicit statements about the plaintiff’s age in direct

connection with their decision to promote Totaro. See O’Connor v. Consol.

Coin Caterers Corp., 517 U.S. 308, 312 (1996) (“The fact that one person in

the protected class has lost out to another person in the protected class is

. . . irrelevant, so long as he has lost out because of his age.”). As

The defendants’ motion to dismiss the plaintiff’s ADEA

claims in Count I pursuant to Rule 12(b)(6) is therefore denied.

B. Title VII Claims (Count II)

In Count II, the plaintiff alleges that NYSIF discriminated

against him based on his race, color, and national origin, in

violation of Title VII. See Am. Compl. ¶¶ 145–50. The plaintiff,

who is Black and Nigerian, claims that NYSIF decided not to

promote him to the Director position for discriminatory reasons.

Title VII prohibits employment discrimination based on

“race, color, religion, sex, or national origin.” 42 U.S.C.

§ 2000e-2(a). To survive a motion to dismiss in a Title VII

discrimination case, the plaintiff “must plausibly allege that

(1) the employer took adverse action against him, and (2) his

race, color, religion, sex, or national origin was a motivating

factor in the employment decision.” Vega v. Hempstead Union Free

Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015). In this case,

because the defendants do not dispute that the denial of a

promotion is an adverse employment action, only the second

element is at issue.

The plaintiff can plead that element by alleging “facts

that directly show discrimination or facts that indirectly show

discrimination by giving rise to a plausible inference of

explained above, the plaintiff’s allegations are more than sufficient to

support a plausible inference of but-for causation.

discrimination.” Id. At this stage, the plaintiff’s burden to

show discriminatory intent is “minimal.” Littlejohn v. City of

New York, 795 F.3d 297, 311 (2d Cir. 2015). The allegations

“need not give plausible support to the ultimate question of

whether the adverse employment action was attributable to

discrimination”; they “need only give plausible support to a

minimal inference of discriminatory motivation.” Id.

“An inference of discrimination can arise from

circumstances including, but not limited to, the employer’s

criticism of the plaintiff’s performance in ethnically degrading

terms; or its invidious comments about others in the employee’s

protected group; or the more favorable treatment of employees

not in the protected group; or the sequence of events leading to

the [adverse action].” Id. at 312. In the context of a failure-

to-promote claim, an inference of discrimination can be drawn if

“the position was filled by someone outside the protected class

who was similarly or less well qualified than the plaintiff.”

Gordon v. City of New York, No. 14-cv-6115, 2015 WL 3473500, at

*7 (S.D.N.Y. June 2, 2015) (citing Yu v. N.Y.C. Hous. Dev.

Corp., 494 F. App’x 122, 125 n.4 (2d Cir. 2012) (summary

order)). To identify proper comparators, the plaintiff “must

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

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

Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000). The

employees’ circumstances need only be “reasonably close,” not

“identical.” Id. at 40.

In this case, the defendants have moved to dismiss the

plaintiff’s Title VII claims pursuant to Rule 12(b)(6), arguing

that the plaintiff has failed to allege facts that directly show

discrimination or facts that indirectly establish

discrimination. The defendants are correct that McKay’s alleged

comments to the plaintiff about the decision to promote Totaro

do not constitute direct evidence of discriminatory intent based

on race, color, or national origin. McKay allegedly told the

plaintiff that leadership wanted “someone in the position who is

younger and would be there far longer.” Am. Compl. ¶ 71

(emphasis added). McKay’s statement reflects the defendants’

purported consideration of the plaintiff’s age, not race, color,

or national origin, in deciding to promote Totaro.

However, the plaintiff has provided specific facts to

support his allegation that he was passed over in favor of a

less qualified applicant who was not in the protected class. The

plaintiff plausibly alleges that Totaro, a white, non-Nigerian

employee, was less qualified than the plaintiff to be the

Director. For example, the plaintiff alleges that Totaro joined

the Legal Collections Department ten years after the plaintiff

started working there, that the plaintiff trained Totaro when

Totaro first began working in the Legal Collections Department,

and that Totaro asked—and has continued to ask—the plaintiff for

assistance and guidance on the Department’s procedures

throughout the years. See id. ¶¶ 61–65.7

6F

Courts have found allegations that a position ultimately

went to a less qualified employee not in the protected group

sufficient to establish an inference of discrimination. See,

e.g., Gordon, 2015 WL 3473500, at *7 (denying a motion to

dismiss a Title VII failure-to-promote claim where the plaintiff

alleged that similarly qualified non-African American attorneys

were promoted); Allen v. N.Y.C. Dep’t of Env’t Prot., 51 F.

Supp. 3d 504, 512–13 (S.D.N.Y. 2014) (finding allegations that

the positions for which the Black, Jamaican plaintiff was

rejected were ultimately filled by non-Black and non-Jamaican

individuals who were less qualified than or similarly qualified

as the plaintiff to be sufficient to give rise to an inference

of discrimination).8

7F

7 Insofar as the defendants contend that Totaro and the plaintiff were not

similarly situated because they had different civil service titles, that

argument is unavailing. To be a proper comparator, the circumstances of an

employee outside the plaintiff’s protected class need only be “reasonably

close” to those of the plaintiff, not “identical.” Graham, 230 F.3d at 40.

For the reasons stated above, the plaintiff has presented allegations showing

that the plaintiff was more qualified for the Director position than Totaro,

notwithstanding Totaro’s different civil service title.

8 As for discriminatory intent based on race, the defendants argue that any

inference of such intent is undermined by the plaintiff’s admission that a

Black employee—Rosanne Nichols—was selected for the Appeals Division

Supervisory Attorney position that the plaintiff later applied for. Defs.

Reply Br. at 3, ECF No. 33. Although that detail may be favorable evidence

for the defendants in future stages of the litigation, it does not change the

fact that the plaintiff’s allegations, for purposes of this motion to

dismiss, plausibly support an inference of discriminatory intent with respect

to NYSIF’s decision to promote Totaro to Director of Legal Collections. Even

Accordingly, the plaintiff has stated a Title VII claim

against NYSIF. The motion to dismiss Count II pursuant to Rule

12(b)(6) is denied.

C. 42 U.S.C. §§ 1981 and 1983 (Count III)

In Count III, the plaintiff brings claims pursuant to 42

U.S.C. §§ 1981 and 1983 against Wertheim, Fiedler, and McKay,

alleging that the defendants denied him a promotion based on his

race, color, and national origin in violation of the Equal

Protection Clause. See Am. Compl. ¶¶ 151–56. The defendants

contend that the plaintiff has failed to state a claim under

either statute.

1. Section 1981

The defendants argue—and the plaintiff concedes—that § 1981

provides no private right of action against state actors. See

Pltf. Opp. at 11, ECF No. 32.9 Indeed, the Supreme Court has

8F

squarely held that § 1983 “provides the exclusive federal

damages remedy for the violation of the rights guaranteed by

§ 1981 when the claim is pressed against a state actor.” Jett v.

Dallas Indep. Sch. Dist., 491 U.S. 701, 735 (1989); see also

considering the promotion of Rosanne Nichols, there is at least an issue of

fact as to whether NYSIF acted with a racially discriminatory motivation in

promoting Totaro rather than the plaintiff.

9 Section 1981 provides that “[a]ll persons . . . shall have the same right

. . . to make and enforce contracts, to sue, be parties, give evidence, and

to the full and equal benefit of all laws and proceedings for the security of

persons and property as is enjoyed by white citizens.” 42 U.S.C. § 1981(a).

Duplan v. City of New York, 888 F.3d 612, 620–21 (2d Cir. 2018)

(concluding that there was no indication that Congress’s 1991

amendments to § 1981 were intended to overrule Jett, and

therefore Ҥ 1981 does not provide a separate private right of

action against state actors”). Courts in this District have

interpreted Jett to apply to individuals sued in their

individual capacities who are state actors. See, e.g., Gonzalez

v. City of New York, 377 F. Supp. 3d 273, 285 (S.D.N.Y. 2019);

Whaley v. City Univ. of New York, 555 F. Supp. 2d 381, 400–01

(S.D.N.Y. 2008). In opposition, the plaintiff does not dispute

that Jett applies or that the individual defendants in this case

are state actors; instead, the plaintiff contends that “these

claims should proceed as § 1983 claims.” Pltf. Opp. at 11.

Therefore, the motion to dismiss the plaintiff’s § 1981 claims

is granted.

2. Section 1983

The Fourteenth Amendment gives public employees “the right

to be free from discrimination.” Vega, 801 F.3d at 87.

Consequently, public employees who have experienced employment

discrimination may sue pursuant to § 1983 any responsible

persons acting under color of state law. See id. To state a

claim under § 1983, a plaintiff must allege: “(1) the violation

of a right secured by the Constitution and laws of the United

States, and (2) the alleged deprivation was committed by a

person acting under color of state law.” Id. at 87–88.

In this case, the parties do not dispute that Wertheim,

Fiedler, and McKay, all employees of a State agency, acted under

color of state law in allegedly depriving the plaintiff of equal

employment opportunity. Therefore, the question is whether the

plaintiff has alleged that the defendants violated his right to

equal protection guaranteed by the Fourteenth Amendment.

To state a claim for employment discrimination under

§ 1983, a plaintiff must establish that “the defendant’s

discriminatory intent was a ‘but-for’ cause of the adverse

employment action.” Naumovski v. Norris, 934 F.3d 200, 222 (2d

Cir. 2019). Unlike claims brought under Title VII, an allegation

that discriminatory intent was merely a "motivating factor” of

the defendants’ conduct does not meet the pleading standard

required by § 1983. Id. at 213–14.

In this case, the Amended Complaint fails to allege

plausibly that the plaintiff would have been promoted but for

the defendants’ discrimination against the plaintiff based on

race, color, or national origin.10

9F

Rather, the Amended Complaint alleges that age, not race,

color, or national origin, was the but-for cause of the

defendants’ decision not to promote the plaintiff. As explained

above, the defendants allegedly passed over the plaintiff

because of his age and the possibility of his imminent

retirement. See Am. Compl. ¶ 71. The Amended Complaint also

alleges that the plaintiff was eligible for retirement and

Totaro was not, that the defendants were aware of this

distinction, and that it factored heavily into their decision.

Id. ¶¶ 71, 73, 78. The Amended Complaint contains no specific

factual allegations to support the inference that the plaintiff

would have been promoted but for the fact that he is Black and

of Nigerian origin. See Burgis v. N.Y.C. Dep’t of Sanitation,

798 F.3d 63, 69 (2d Cir. 2015) (“[W]ithout any reference to

specific statements or individual circumstances that suggest

discriminatory treatment, plaintiffs’ [§ 1983] allegations do

not support a finding that defendants acted with a

10 The plaintiff does not plead age discrimination under § 1983 in the Amended

Complaint. Unlike in Counts I, IV, and V, which each refer to age

discrimination, Count III cites only “Race, Color and National Origin

Discrimination.” Am. Compl. at 17; see id. at 16, 18–19. Moreover, the

portions of the plaintiff’s brief pertaining to the plaintiff’s § 1983 claims

address alleged discrimination based on race, color, and national origin, but

make no mention of age. See, e.g., Pltf. Opp. at 9 (arguing that “[p]laintiff

has pled sufficient facts showing that but-for his race, color, and national

origin, he would have been promoted” (emphasis added)).

discriminatory purpose.”); Alfaro Motors, Inc. v. Ward, 814 F.2d

883, 887 (2d Cir. 1987) (“[A]llegations which are nothing more

than broad, simple, and conclusory statements are insufficient

to state a claim under § 1983.”).

In support of his claim, the plaintiff alleges that there

is a “history of failure to promote Nigerians to higher

positions, such as Director positions, within NYSIF.” Am. Compl.

¶ 81. Although this alleged history may support an inference

that race, color, and national origin may have been “motivating

factors” in the defendants’ decision not to promote him, without

more, it does not plausibly allege but-for causation.

The plaintiff cites inapposite cases. For example, the

plaintiff relies on Graham v. Long Island Rail Road, but Graham

involved the “motivating factor” standard for Title VII claims,

not the “but-for” causation standard for § 1983 claims. See 230

F.3d at 38–39. Similarly, the portions of Mandell v. County of

Suffolk relied upon by the plaintiff addressed the plaintiff’s

Title VII claim, not a § 1983 claim. 316 F.3d 368, 381–82 (2d

Cir. 2003).

Accordingly, the plaintiff has failed to state a claim

under § 1983. The defendants’ motion to dismiss Count III

pursuant to Rule 12(b)(6) is therefore granted.

D. NYSHRL and NYCHRL (Counts IV and V)

In Count IV, the plaintiff raises two claims under the

NYSHRL. First, the plaintiff claims that Wertheim, Fiedler, and

McKay denied the plaintiff a promotion to Director of Legal

Collections because of the plaintiff’s age, race, color, and

national origin. Second, the plaintiff claims that Wertheim

denied the plaintiff a promotion to Supervising Attorney because

of the plaintiff’s national origin. See Am. Compl. ¶¶ 157–66. In

Count V, the plaintiff asserts the same two claims under the

NYCHRL. See id. ¶¶ 167–73.

The defendants contend that the NYCHRL claims against the

individual defendants are barred by sovereign immunity; that the

plaintiff cannot allege a primary violation by an “employer” as

required under the NYSHRL, and therefore the aiding-and-abetting

claims under the State law cannot survive; and that the

plaintiff has not stated a claim under either statute.

1. Sovereign Immunity

The defendants argue that the plaintiff’s NYCHRL claims are

barred by the sovereign immunity of New York State, given that

Wertheim, Fiedler, and McKay were acting as state employees

throughout the period described in the complaint.

NYSIF’s sovereign immunity is well-established. See Perry

v. State Ins. Fund, 83 F. App’x 351, 353 (2d Cir. 2003) (summary

order) (noting that NYSIF “is a state agency entitled to

sovereign immunity.”). However, “[c]ourts appear to be divided

on whether state sovereign immunity applies to lawsuits against

state officials in their personal capacities for violations of

the NYCHRL.” Milord-Francois v. N.Y. State Off. of the Medicaid

Inspector General, 635 F. Supp. 3d 308, 321 (S.D.N.Y. 2022).

Where New York law is not clear, this Court is generally bound

“to apply the law as interpreted by New York’s intermediate

appellate courts” unless “persuasive evidence” suggests that the

New York Court of Appeals “would reach a different conclusion.”

Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 134 (2d Cir.

1999). The Court’s task is to predict “on a reasonable basis how

the New York Court of Appeals would rule if squarely confronted

with this issue.” DiBella v. Hopkins, 403 F.3d 102, 111–12 (2d

Cir. 2005).

In arguing that the NYCHRL claims against the individual

defendants in their personal capacities are barred by sovereign

immunity, the defendants rely on a decision from one of New

York’s intermediate appellate courts. See generally Ajoku v.

N.Y. State Off. of Temp. Disability Assistance, No. 159104/18,

2020 WL 886160 (N.Y. Sup. Ct. Feb. 20, 2020), aff’d, 152

N.Y.S.3d 566 (App. Div. 2021). In Ajoku, the New York Supreme

Court held that individual state employees were entitled to

sovereign immunity for acts performed in their “official roles

of hiring, supervising and terminating plaintiff.” Id. at *4. In

affirming the decision, the Appellate Division, First Department

noted that the “plaintiff [had not] identified any independent

duty,” separate from the NYCHRL, owed to him by the individual

state employee. Ajoku v. N.Y. State Off. of Temp. & Disability

Assistance, 152 N.Y.S.3d 566, 567 (App. Div. 2021). The

Appellate Division relied chiefly on Morell v. Balasubramanian,

which held that officers of the State retain sovereign immunity

against claims that “arise[] from actions or determinations of

the officer made in his or her official role and involve[]

rights asserted, not against the officer individually, but

solely against the State.” 514 N.E.2d 1101, 1102 (N.Y. 1987).

Federal courts in this Circuit have concluded that the New

York Court of Appeals would reach a different conclusion than

the Ajoku court. In Feingold v. New York, the Court of Appeals

for the Second Circuit concluded that the plaintiff’s claim

against the Department of Motor Vehicles was barred by state

sovereign immunity, but proceeded to evaluate the plaintiff’s

claims against individual employees on the merits. See 366 F.3d

138, 149, 158–59 (2d Cir. 2004) (citing with approval a district

court decision finding that “an individual may be held liable

under the NYCHRL if he or she engaged in discriminatory acts”).

And after a thorough analysis of this question, a court in this

District concluded that the New York Court of Appeals would

likely “hold that state employees who in the course of their

employment engage in conduct that violates the NYCHRL are not,

by virtue of their state employment alone[,] entitled to

immunity.” Milord-Francois, 635 F. Supp. 3d at 324; see also id.

at 322–23 (collecting other district court cases reaching the

same conclusion).

Milord-Francois relies on a close analysis of Morell, the

case on which the Ajoku court based its holding. See id. at 323–

26; Ajoku, 152 N.Y.S.3d at 567. Departing from Ajoku, the

Milord-Francois court concluded that “[t]he key under Morell is

. . . whether state law imposes the duty individually on the

state employee. If it does, then the fact that the employee

happens to have engaged in the tortious conduct while performing

a state function does not shield [the employee] from liability.”

Milord-Francois, 635 F. Supp. 3d at 324.

The NYCHRL explicitly imposes such an individual duty on an

employee. The statute provides that it is unlawful “for an

employer or an employee or agent thereof . . . [t]o discriminate

against such person in compensation or in terms, conditions or

privileges of employment.” N.Y.C. Admin. Code § 8-107(1)(a)

(emphasis added). Therefore, “[t]he NYCHRL itself imposes an

independent duty on employees—whether they are employees of a

state agency, a city agency, or a private company.” Milord-

Francois, 635 F. Supp. 3d at 326; see also Ya-Chen Chen v. City

Univ. of New York, 805 F.3d 59, 75–76 (2d Cir. 2015)

(considering, on the merits, claims that individual state

employees violated the NYCHRL); Purdie v. City Univ. of New

York, No. 13-cv-6423, 2015 WL 129552, at *6 (S.D.N.Y. Jan. 8,

2015) (holding that NYCHRL claims against individual state

employees are not barred by sovereign immunity because the law

“imposes upon every manager a personal duty not to aid racial

discrimination”).

In accordance with other courts in this Circuit, the Court

is persuaded that “under New York law, a state employee is not

shielded from individual liability [under the NYCHRL] based upon

his or her personal violation of law even if the employee is

doing the state’s work.” Milord-Francois, 635 F. Supp. 3d at

324. Accordingly, the NYCHRL claims against the individual

defendants in Count V are not barred by sovereign immunity.

2. Primary Violation by an “Employer”

The defendants also argue that the plaintiff’s aiding-and-

abetting claims under the NYSHRL should be dismissed. The

defendants contend that there is no predicate violation by a

suable “employer” to which an individual’s secondary liability

can attach.

The NSYHRL provides two theories on which defendants can be

held liable for discrimination. First, the statute provides that

it is “an unlawful discriminatory practice [f]or an employer

. . . to refuse to hire or employ or to bar or to discharge from

employment such individual or to discriminate against such

individual in compensation or in terms, conditions or privileges

of employment” based on, among other things, that individual’s

age, race, color, or national origin. N.Y. Exec. Law § 296(1)(a)

(emphasis added). Second, the statute makes it unlawful “for any

person to aid, abet, incite, compel or coerce the doing of any

of the things forbidden under this article, or to attempt to do

so.” Id. § 296(6) (emphasis added).

The first theory of liability is not viable in this case

because, as the parties agree, the individual defendants are not

“employers” under the statute. See Doe v. Bloomberg, L.P., 167

N.E.3d 454, 458 (N.Y. 2021) (“[T]he State HRL does not render

employees liable as individual employers.”). The individual

defendants therefore cannot be held liable under § 296(1).

However, individual employees can be held liable for aiding

and abetting discriminatory conduct under § 296(6). See, e.g.,

Farmer v. Shake Shack Enters., LLC, 473 F. Supp. 3d 309, 337–38

(S.D.N.Y. 2020). To state an aiding-and-abetting claim against

an individual, “liability must first be established as to the

employer/principal.” Dewitt v. Lieberman, 48 F. Supp. 2d 280,

293 (S.D.N.Y. 1999); see also Patane v. Clark, 508 F.3d 106, 115

n.7 (2d Cir. 2007) (citing DeWitt with approval); Hicks v. IBM,

44 F. Supp. 2d 593, 600 (S.D.N.Y. 1999) (following DeWitt).

After establishing the employer’s predicate liability, the

plaintiff must show that the individual defendant “actually

participate[d] in the conduct giving rise to a discrimination

claim.” Feingold, 366 F.3d at 158.

The defendants contend that Wertheim, Fiedler, and McKay

cannot be liable for aiding and abetting because the would-be

principal, NYSIF, is a state agency entitled to sovereign

immunity. According to the defendants, without a claim against

NYSIF under § 296(1), there is no predicate violation as

required by § 296(6), and therefore no viable aiding-and-

abetting claim against the individual defendants.

The Court of Appeals for the Second Circuit has not

squarely addressed whether a state employee can be held

individually liable for aiding and abetting discrimination if

the individual’s employer enjoys sovereign immunity. See

Bonaffini v. City Univ. of New York, No. 20-cv-5118, 2021 WL

2895688, at *3 (E.D.N.Y. July 9, 2021) (noting the open question

and collecting cases reaching opposite conclusions). However,

the Court of Appeals has analyzed a state employee’s individual

liability under the NYSHRL on the merits, rather than dismissing

the claim even when any claim against the state employer would

have been barred by sovereign immunity. See Feingold, 366 F.3d

at 149, 158. Furthermore, a recent case in this District held

that an NYSIF employee could sue her individual co-workers under

§ 296(6), even though NYSIF itself enjoyed sovereign immunity

from a § 296(1) suit. See Kent-Friedman v. N.Y. State Ins. Fund,

No. 18-cv-4422, 2023 WL 6292693, at *9–10 (S.D.N.Y. Sept. 27,

2023).

The cases permitting aiding-and-abetting claims against

individual employees to move forward under these circumstances

“reflect[] the general rule that ‘a procedural bar to seeking

liability against an employer does not prevent claims against an

employee in [the employee’s] individual capacity.’” Bonaffini,

2021 WL 2895688, at *3 (quoting Johnson v. Cnty. of Nassau, 82

F. Supp. 3d 533, 537 (E.D.N.Y. 2015)). For this reason, many

courts in this Circuit have concluded persuasively that

“dismissal of the cause of action against the employer/principal

warrants dismissal of the derivative, aiding and abetting cause

of action only where the dismissal against the

employer/principal was on the merits (i.e. where the employer

was not found to have engaged in a discriminatory practice).”

Daniels v. Wesley Gardens Corp., No. 10-cv-6336, 2011 WL

1598962, at *3 (W.D.N.Y. Apr. 27, 2011) (emphasis added); see

also Bonaffini, 2021 WL 2895688, at *3 (collecting cases). And

“[b]ecause sovereign immunity does not effect a dismissal on the

merits, it does not require a different result.” Bonaffini, 2021

WL 2895688, at *3.

Accordingly, state employees may be liable in their

individual capacities under § 296(6) even though their employer

would enjoy sovereign immunity against claims brought under

§ 296(1). Even if sovereign immunity forecloses a claim for a

primary violation against an employer, an aiding-and-abetting

claim against an individual employee is viable if the plaintiff

can show that the employer violated § 296(1) in substance. In

other words, “a plaintiff can still prove involvement by the

employer even if the employer is procedurally dismissed from the

case (or is not brought as a defendant at all).” Johnson, 82 F.

Supp. 3d at 537.

In this case, the plaintiff has alleged that the individual

defendants’ employer, NYSIF, violated § 296(1) in substance. An

employer violation of the NYSHRL can be found if the plaintiff

shows that the employer “encouraged, condoned, or approved the

discriminatory conduct of a sole employee.” Id. at 536; see also

Charlier v. 21 Astor Place Condo., No. 22-cv-5903, 2024 WL

4026253, at *7 (S.D.N.Y. Sept. 3, 2024) (citing Johnson to find

a plausible employer violation of the NYSHRL where the employer

“condoned” an individual employee’s discriminatory conduct);

Farmer, 473 F. Supp. 3d at 337 (holding that an individual

employee’s actions can “serve as the predicate for the

employer’s vicarious liability, so long as the employer’s

conduct has also been found to be discriminatory under the

NYSHRL”). In this case, the Amended Complaint plausibly alleges

that NYSIF “condoned” the individual defendants’ discrimination

by promoting a purportedly less qualified, younger, white person

of non-Nigerian origin in the plaintiff’s place and failing to

take corrective action. See Am. Compl. ¶¶ 34–35, 60.

The plaintiff has also alleged that the individual

defendants “actually participate[d] in the conduct giving rise

to a discrimination claim.” Feingold, 366 F.3d at 158. Wertheim,

Fiedler, and McKay allegedly selected a less qualified candidate

for the Director of Legal Collections position because the

plaintiff was older, Black, and of Nigerian origin. See Am.

Compl. ¶¶ 79–81.

Therefore, because the Amended Complaint alleges both

NYSIF’s predicate violation and the individual defendants’

actual participation in discriminatory conduct, the plaintiff

has presented a viable theory of aiding-and-abetting liability

against Wertheim, Fiedler, and McKay under the NYSHRL and

NYCHRL.

3. Failure to State a Claim

Next, the defendants argue that the plaintiff has failed to

allege sufficient facts to connect his protected characteristics

to the defendants’ alleged conduct.

This argument is without merit. “A complaint that plausibly

alleges each of the required elements under Title VII also

properly states NYSHRL and NYCHRL claims.” Small v. N.Y.C. Dep’t

of Educ., 650 F. Supp. 3d 89, 97 (S.D.N.Y. 2023). The same is

true for age discrimination claims brought pursuant to the ADEA

and the NYSHRL and NYSCHRL. See, e.g., Santiago v. ACACIA

Network, Inc., 634 F. Supp. 3d 143, 157–58 (S.D.N.Y. 2022). For

the reasons explained above, the plaintiff has adequately stated

claims for discrimination in violation of the NYSHRL and NYCHRL

against the individual defendants named in Counts IV and V. See

supra sections III.A.2 & III.B.

4. Declaratory and Injunctive Relief

The defendants contend that this Court may not grant the

plaintiff’s claims for declaratory or injunctive relief under

the NYSHRL or NYCHRL. The plaintiff does not dispute this point,

arguing instead that such relief is available for the

plaintiff’s federal claims.

“It is well settled that federal courts may not grant

declaratory or injunctive relief against a state agency based on

violations of state law.” Bad Frog Brewery, Inc. v. New York

State Liquor Auth., 134 F.3d 87, 93 (2d Cir. 1998). Accordingly,

insofar as the plaintiff is seeking declaratory or injunctive

relief under the NYSHRL or NYCHRL that would compel the

defendants to act, the motion to dismiss is granted.

However, the plaintiff has otherwise stated NYSHRL and

NYCHRL claims against Wertheim, Fiedler, and McKay. Therefore,

in all other respects, the motion to dismiss Counts IV and V is

denied.

E. Retaliation (Count VI)

In Count VI, the plaintiff claims that Wertheim, Fiedler,

Totaro, and NYSIF retaliated against the plaintiff for his

formal complaint regarding discriminatory practices, in

violation of the ADEA, Title VII, § 1983,11 the NYSHRL, and the

10F

NYCHRL.12 The defendants argue that the Court should dismiss

11F

these claims because the plaintiff has failed to allege a

materially adverse employer action that was causally connected

to the plaintiff’s protected activity.

The Title VII framework for retaliation claims also applies

to the ADEA. See Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir.

2003). Under this framework, 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.” Edelman

v. NYU Langone Health Sys., 141 F.4th 28, 45 (2d Cir. 2025).

11 As explained above in section III.C.I, the Amended Complaint attempts to

bring claims, including retaliation claims, under 42 U.S.C. § 1981. In

subsequent filings, the plaintiff acknowledged that those claims are properly

pleaded under 42 U.S.C. § 1983. “[R]etaliation claims alleging an adverse

action because of a complaint of discrimination are actionable under § 1983.”

Vega, 801 F.3d at 80.

12 The defendants do not argue that the Eleventh Amendment bars the

plaintiff’s claims for retaliation against any of the defendants. Therefore,

the Court does not address that issue in resolving this motion. See Wis.

Dep’t of Corr. v. Schacht, 524 U.S. 381, 389 (1998) (observing that “unless

the State raises the matter [of Eleventh Amendment immunity], a court can

ignore it”); see also Patsy v. Bd. of Regents of State of Fla., 457 U.S. 496,

515 n.19 (1982).

Claims brought under § 1983 are analyzed under the same

principles as well, so long as the plaintiff first establishes

that the defendant was “act[ing] under color of state law.”

Vega, 801 F.3d at 91.

The NYSHRL and NYCHRL share a standard that is “more

liberal” than the federal standard. Edelman, 141 F.4th at 45.

Under the State and City standard, the plaintiff “must

demonstrate that [the plaintiff] took an action opposing [the

plaintiff’s] 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.” Id.

Because the State and City “claims are to be reviewed more

liberally than Title VII claims,” the Court will first consider

the claims under the Title VII standard. Johnson v. Andy Frain

Servs., Inc., 638 F. App’x 68, 71 (2d Cir. 2016) (summary

order). If the retaliation claims survive under the Title VII

standard, that finding “dictates the same result under the

NYCHRL [and NYSHRL].” Farmer, 473 F. Supp. 3d at 334.

1. Knowledge of Protected Activity

The parties generally agree that the plaintiff has pleaded

the first two elements of a retaliation claim under the federal

standard. However, with respect to the first element—

participation in a protected activity—although the defendants

acknowledge that filing a DHR complaint is protected activity,

the defendants contend that the plaintiff’s alleged subsequent

activity was not protected.

Title VII prohibits an employer from “discriminat[ing]

against any of his employees . . . because he has opposed any

practice made an unlawful employment practice, . . . or because

he has . . . participated in any manner in an investigation,

proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-

3(a). Under Title VII’s opposition clause, an employee’s

complaint or objection to a supervisor about discriminatory

conduct can constitute protected activity. See Reed v. A.W.

Lawrence & Co., Inc., 95 F.3d 1170, 1178–79 (2d Cir. 1996).

Meanwhile, the participation clause of Title VII is “expansive,”

encompassing nearly any action an individual takes in connection

with a formal Title VII proceeding. Deravin v. Kerik, 335 F.3d

195, 203 (2d Cir. 2003); see, e.g., Jute v. Hamilton Sundstrand

Corp., 420 F.3d 166, 173–75 (2d Cir. 2005) (holding that a

plaintiff “participated” in a qualifying proceeding by offering

to testify in another individual’s discrimination lawsuit, even

though the plaintiff ultimately did not testify).

In this case, the plaintiff has alleged that he engaged in

protected activity and that the defendants knew of this

protected activity. On May 29, 2023, the plaintiff filed a

discrimination complaint based on race, color, and age with DHR.

Am. Compl. ¶ 96. Filing such a complaint constitutes

participation in a protected activity. See Moore v. Hadestown

Broadway Ltd. Liab. Co., 722 F. Supp. 3d 229, 246 (S.D.N.Y.

2024); see also Sharpe v. Utica Mut. Ins. Co., 756 F. Supp. 2d

230, 239 (N.D.N.Y. 2010) (noting that formal DHR complaints

“undisputably constitute protected activity”). The plaintiff has

also alleged that the defendants knew of the protected activity:

the defendants responded to the DHR complaint on August 30,

2023. Am. Compl. ¶ 97.

The Amended Complaint identifies three additional instances

in which the plaintiff allegedly engaged in protective activity.

The plaintiff allegedly “participated” in his DHR proceeding on

September 11, 2023, by filing a rebuttal to NYSIF’s position

statement, see id. ¶ 100, and on April 3, 2024, when the DHR

complaint was dismissed on his request, see id. ¶ 101. See

Sanders v. Madison Square Garden, L.P., No. 06-cv-589, 2007 WL

2254698, at *18 (S.D.N.Y. Aug. 6, 2007), withdrawn in other

part, 525 F. Supp. 2d 364 (S.D.N.Y. 2007) (“[T]he expansive

protection provided by the participation clause protects any

conduct of the participant.”). The plaintiff has also alleged

that, on March 8, 2024, the plaintiff “complained to Totaro

about an incident of unwarranted criticism and excessive

scrutiny.” Am. Compl. ¶ 106. This informal complaint constitutes

protected activity because, as alleged, it was founded in the

plaintiff’s opposition to Totaro’s “unwarranted criticism and

execssive scrutiny not otherwise leveled at other employees

similarly situated to [the plaintiff].” Id. ¶ 105.13

12F

2. Adverse Employment Actions

The parties dispute whether the plaintiff has alleged the

third element of a retaliation claim under the federal standard,

which requires an “adverse employment action.” Hicks v. Baines,

593 F.3d 159, 164 (2d Cir. 2010). The defendants appear to agree

that Totaro’s alleged physical threat against the plaintiff was

an adverse action. See Am. Compl. ¶ 106; Defs. Br. at 20, ECF

No. 28. However, the defendants argue that the other alleged

retaliatory actions were not materially adverse.

The federal anti-retaliation laws cover “employer actions

that would have been materially adverse to a reasonable employee

or job applicant.” Burlington Northern & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 57 (2006). “The test of whether [an action]

is a materially adverse employment [action] is whether its

nature is such that it would likely, in the relevant context,

dissuade a reasonable employee from complaining about

discrimination.” Moll v. Telesector Res. Grp., Inc., 94 F.4th

13 In opposing this motion, the plaintiff lists additional allegations about

his participation in this lawsuit—namely, his October 31, 2023 notification

to NYSIF and DHR that he intended to file this lawsuit, and DHR’s December

12, 2023 notification that it was contemplating dismissing the DHR complaint

so that the plaintiff could pursue his remedies in court. See Pltf. Opp. at

20–21. However, because those two events are not alleged in the Amended

Complaint, the Court does not consider them for the purpose of this

Memorandum Opinion and Order.

218, 244 (2d Cir. 2024). The test “separate[s] significant from

trivial harms,” the latter of which include “petty slights or

minor annoyances that often take place at work and that all

employees experience.” Burlington, 548 U.S. at 68.

The plaintiff has alleged three “materially adverse”

actions: Totaro’s physical threat, NYSIF’s delay in transferring

the plaintiff to another department, and the decision not to

promote the plaintiff to Supervising Attorney. The Court will

discuss each in turn.

a. Physical Threat

First, it is plain that Totaro’s alleged physical threat is

materially adverse. On March 8, 2024, the plaintiff “complained

to Totaro about an incident of unwarranted criticism and

excessive scrutiny.” Am. Compl. ¶ 106. Totaro, apparently in

response to complaint, “physically threatened [the plaintiff].”

Id. An action is 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.” Burlington,

548 U.S. at 57. A reasonable worker would think twice about

claiming discrimination if that worker expected to be subject to

physical threats as a result.

The Amended Complaint alleges only that Totaro was involved

in this incident. See Am. Compl. ¶ 106. Accordingly, the motion

to dismiss is granted with respect to the retaliation claims

brought against Fiedler and Wertheim based on the alleged

physical threat.

b. Delay in Approving Transfer

Second, the defendants’ alleged delay in transferring the

plaintiff to another department is a plausible materially

adverse action. See Banks v. Gen. Motors, LLC, 81 F.4th 242,

276–77 (2d Cir. 2023) (concluding that a reasonable jury could

find that the plaintiff’s employer retaliated against the

plaintiff “by requiring her to undergo an additional psychiatric

evaluation that delayed her return to work, which deviated from

[the employer’s] usual practice for employees returning from

leave”).

In this case, the plaintiff allegedly requested a transfer

“for his safety” on March 12, 2024, four days after Totaro’s

physical threat and while the plaintiff’s complaint was still

pending before DHR. Am. Compl. ¶ 108. The transfer was not

approved for over two months, on May 21, and not effected until

May 28. Id. ¶ 111. This delay, which forced the plaintiff to

remain in an allegedly unsafe and discriminatory work

environment for two months longer, could “dissuade a reasonable

employee from making a complaint of discrimination.” Carr v.

N.Y.C. Transit Auth., 76 F.4th 172, 181 (2d Cir. 2023).

c. Denial of Promotion to Supervising Attorney

Third, Wertheim’s and NYSIF’s decision to pass over the

plaintiff for the Appeals Division Supervising Attorney position

was materially adverse. According to the plaintiff, Wertheim and

others interviewed him for the position of Supervising Attorney

on March 15, 2024, and the plaintiff learned on or around April

5, 2024, that the position had gone to someone else. Am. Compl.

¶¶ 112–13. “[I]t cannot be doubted that a denial of promotion is

the sort of adverse action that could dissuade a reasonable

worker from making or supporting a charge of discrimination.”

Hinton v. City Coll. of New York, No. 05-cv-8951, 2008 WL

591802, at *25 (S.D.N.Y. Feb. 29, 2008). Therefore, the denial

of the promotion to Supervising Attorney was a materially

adverse action.14

13F

Because the three actions alleged—Totaro’s threat, the

defendants’ delay in transferring the plaintiff, and Wertheim’s

and NYSIF’s decision not to promote the plaintiff to Supervisory

Attorney—are sufficiently adverse to state a claim under the

Title VII standard, they are also adequate under the NYSHRL and

NYCHRL standards.

14 The Amended Complaint alleges only that Wertheim and NYSIF were responsible

for failing to promote the plaintiff to the Supervising Attorney position.

See id. ¶¶ 112–22. For that reason, this event would not be a basis for

retaliation claims against Fiedler and Totaro.

3. Causal Connection

The fourth and final element of a retaliation claim is a

causal connection between a defendant’s materially adverse

action and the plaintiff’s protected activity. See Hicks, 593

F.3d at 164. In this case, the defendants argue that the

plaintiff has failed to allege a causal connection between his

protected activity and any of the three adverse actions

discussed above.

Under the federal standard, “retaliation claims must be

proved according to traditional principles of but-for causation,

which requires proof that the unlawful retaliation would not

have occurred in the absence of the alleged wrongful action or

actions of the employer.” Zann Kwan v. Andalex Grp. LLC, 737

F.3d 834, 845 (2d Cir. 2013). A plaintiff can establish but-for

causation in either of two ways: directly, with evidence of

“retaliatory animus,” or indirectly, by showing that the

plaintiff’s “protected activity was followed by” the defendants’

adverse action. Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033,

1039 (2d Cir. 1993).

Because the Amended Complaint does not provide any direct

evidence of retaliatory animus, the question is whether a causal

connection is established indirectly based on the temporal

proximity between the plaintiff’s protected activity and the

defendants’ alleged retaliatory actions.

Temporal proximity between an employee’s protected activity

and an employer’s adverse action provides “sufficient evidence

of causality” only when that proximity is “very close.” Clark

Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). There is

no “bright line defining . . . the outer limits beyond which a

temporal relationship is too attenuated to establish causation.”

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

2010). Under some circumstances, even “five months is not too

long to find the causal relationship.” Id.

For the purpose of establishing a causal connection,

temporal proximity is measured from the plaintiff’s protected

activity to the defendant’s adverse action. The instances of

protected activity most relevant to the plaintiff’s claims are

the plaintiff’s March 8, 2024 complaint to Totaro about “an

incident of unwarranted criticism and excessive scrutiny,” and

the April 3, 2024 dismissal of the plaintiff’s DHR complaint at

the plaintiff’s request. Am. Compl. ¶¶ 101, 106.

a. Physical Threat

There is plainly a plausible inference of a causal

connection between the plaintiff’s protected activity and

Totaro’s alleged physical threat. The Amended Complaint alleges

that the Totaro physically threated the plaintiff “when [the

plaintiff] complained to Totaro about an incident of unwarranted

criticism and excessive scrutiny.” Id. ¶ 106 (emphasis added).

b. Delay in Approving Transfer

Similarly, the timing of the defendants’ delay in

transferring the plaintiff to another department supports the

inference of a causal connection between the defendants’ action

and the plaintiff’s protected activity. The plaintiff’s DHR

complaint was dismissed for administrative convenience on the

plaintiff’s request on April 3, 2024. See id. ¶ 101. This action

constitutes “participation” in the plaintiff’s proceedings under

Title VII. At that time, the plaintiff’s transfer request had

been pending for three weeks—and was not approved for another

seven weeks. See id. ¶¶ 108, 111. The plaintiff’s protected

activity on April 3, 2024, was immediately followed by the

alleged retaliatory action—the continued delay in approving the

plaintiff’s transfer request from April 3 until May 21, 2024.

This fact is sufficient to support an inference of a causal

connection.

c. Denial of Promotion to Supervising Attorney

The plaintiff has also alleged a causal connection between

his protected activity and the defendants’ decision not to

promote him to Supervising Attorney. The plaintiff engaged in

protected activity on April 3, 2024, and was denied the

promotion only two days later. See id. ¶ 113. This near-

immediate adverse action plausibly supports an inference of

causation.

The defendants contend that because the plaintiff was

passed over for promotions both before and after he filed his

DHR complaint, the protected activity was not a plausible but-

for cause of the promotion denial that followed. In support, the

defendants argue that an employer’s continued pattern of adverse

actions against a poorly performing employee does not transform

into retaliation simply because the employee submits a

complaint. See Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d

87, 95 (2d Cir. 2001) (“Where timing is the only basis for a

claim of retaliation, and gradual adverse job actions began well

before the plaintiff had ever engaged in any protected activity,

an inference of retaliation does not arise.”)

However, this case is distinguishable from Slattery. In

that case and much of its progeny, the employer’s adverse job

actions “were both part, and the ultimate product, of an

extensive period of progressive discipline.” Id.; see also Deebs

v. Alstom Transp., Inc., 346 F. App’x 654, 657–58 (2d Cir. 2009)

(summary order) (affirming the district court’s grant of summary

judgment against a plaintiff who had a “poor performance

record[] and subsequent legitimate firing on the basis of that

record” before engaging in protected activity); Forrest v.

N.Y.C. Hous. Auth., No. 22-cv-06480, 2023 WL 3203646, at *8–10

(S.D.N.Y. May 2, 2023) (granting a motion to dismiss where the

plaintiff’s protected activity preceded his termination, but

followed months of “gradual adverse job actions” by his

employer). The employers’ actions in those cases share two

traits: they were responsive to employees’ unsatisfactory job

performance and together constituted a gradually escalating

pattern of intervention.

Other cases have found retaliation claims well-pleaded

where an employee alleges similar but discrete adverse actions

before and after engaging in protected activity. Unlike in

Slattery, the defendants’ actions in those cases were not

escalating steps in a “period of progressive discipline,” but

rather individual acts based on the defendants’ alleged

discrimination. Slattery, 248 F.3d at 95. For example, in Syken

v. State of New York, the plaintiff alleged retaliation based on

a job transfer that closely followed his complaint, which itself

had cited a prior failure to promote and other adverse job

actions. See No. 02-cv-4673, 2006 WL 3771095, at *8 (S.D.N.Y.

Dec. 21, 2006). The court identified a well-pleaded causal

connection between the complaint and the later transfer:

“[A]lthough the . . . transfer was certainly part of a string of

events that Plaintiff might characterize as ‘discipline,’ all

date back to or stem from the initial denial of promotion that

plaintiff complains of.” Id.; see also Brown v. City Univ. of

New York, No. 21-cv-854, 2022 WL 4637818, at *19 n.26 (E.D.N.Y.

Sept. 30, 2022) (distinguishing Slattery by concluding that a

plaintiff who was denied tenure both before and after raising

discrimination complaints did not have “an extensive period of

progressive discipline”).

In this case, there is no alleged history of discipline

against the plaintiff, nor are there allegations of

unsatisfactory work. The Amended Complaint alleges distinct

instances in which the plaintiff was denied promotion; indeed,

the only thread connecting these denials is the defendants’

alleged discrimination. The April 5, 2024 failure to promote is

best understood as a distinct event, rather than a continuation

of “progressive discipline.” Therefore, the pre-DHR complaint

denials of promotion do not preclude the plaintiff’s retaliation

claim regarding the defendants’ post-DHR complaint denials of

promotion. Because the denial of promotion occurred merely two

days after the plaintiff requested dismissal of his DHR

complaint, the temporal proximity alleged supports an inference

of causation.15

14F

15 The Amended Complaint also alleges that the plaintiff was excluded from

“all deliberations, meetings and responsibilities to which he would

ordinarily have been a participant, and to which similarly situated

counterparts in NYSIF were routinely invited.” Am. Compl. ¶ 176. These broad-

brush allegations are too vague and conclusory to state a retaliation claim.

See, e.g., Crosby v. Stew Leonard’s Yonkers LLC, 695 F. Supp. 3d 551, 573–74

(S.D.N.Y. 2023) (finding the plaintiff’s “vague and unsupported allegations

that Defendants threatened Plaintiff with disciplinary action . . . without

providing any concrete examples of such threats, dates when they occurred, or

allege any specific information” insufficient to establish an inference of

causation). Therefore, the Court will not consider the alleged exclusion of

the plaintiff from unspecified meetings as a basis for a retaliation claim.

The plaintiff has pleaded claims for retaliation under the

federal standard. Therefore, he has also met the lower burden

imposed by the State and City statutes. See Mihalik v. Credit

Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir.

2013) (“[I]nterpretations of state and federal civil rights

statutes can serve only as a floor below which the City’s Human

Rights law cannot fall.”); Edelman, 141 F.4th at 45 n.9 (noting

that the NYSHRL must be construed “to align with the NYCHRL’s

more liberal pleading standard”).

In sum, the motion to dismiss the plaintiff’s retaliation

claims is denied.

15F

16

16 While the defendants did not specifically argue that there is no individual

liability under Title VII and the ADEA and therefore the individual

defendants cannot be liable for retaliation under those statutes, it is well

established that those statutes do not provide for individual liability. See

Vega, 801 F.3d at 88; Darcy v. Lippman, 356 F. App’x 434, 437 (2d Cir. 2009)

(summary order). Accordingly, the retaliation claims against the individual

defendants under Title VII and the ADEA are dismissed.

CONCLUSION

The Court has considered all of the arguments raised by the

parties. To the extent not specifically addressed, the arguments

are either moot or without merit. For the foregoing reasons, the

defendants’ motion to dismiss is granted in part and denied in

part. The parties are directed to submit a Rule 26(f£) report by

August 22, 2025. The Clerk is respectfully directed to close ail

pending motions.

SO ORDERED.

Dated: New York, New York

August 8, 2025 a

So 2 oo □□ e ;

United States District Judge

54