Dawson v. Beebe

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

KIARA DAWSON,

Plaintiff,

24 Civ. 1548 (KPF)

-v.-

OPINION AND ORDER

CORRECTIONS OFFICER ALIEF A. BEEBE,

CORRECTIONS OFFICER NANCY E. RIVERA,

and SUPERINTENDENT SEIVERIGHT W.

MILLER,

Defendants.

KATHERINE POLK FAILLA, District Judge:

Plaintiff Kiara Dawson (“Plaintiff” or “Dawson”) brings this action against

New York State Department of Corrections and Community Supervision

(“DOCCS”) Correction Officers Alief A. Beebe (“Beebe”) and Nancy E. Rivera

(“Rivera”), and DOCCS Superintendent Seiveright W. Miller (“Miller”)

(collectively, “Defendants”), alleging employment discrimination and retaliation

by Defendants under federal, state, and local law in connection with her

employment as a cook at the DOCCS Edgecombe Residential Treatment Facility

in Manhattan (“Edgecombe”). Before the Court are two partial motions to

dismiss certain claims in Plaintiff’s Complaint — one brought by Defendants

Rivera and Miller, and the other brought by Defendant Beebe — pursuant to

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons that

follow, the Court grants in part and denies in part the partial motion to dismiss

brought by Defendants Rivera and Miller, and grants in part and denies in part

the partial motion to dismiss brought by Defendant Beebe.

BACKGROUND1

A. Factual Background

Plaintiff Kiara Dawson is a woman who is employed by DOCCS as a cook

at the Edgecombe Residential Treatment Facility in Manhattan. (Compl. ¶¶ 7,

14a, 58). She alleges that, during an approximately two-month period in 2023,

she was sexually harassed by her supervisor, Alief A. Beebe, the Head Cook in

Edgecombe’s kitchen. (Id. ¶¶ 15a; 13-39).

Plaintiff alleges that Defendant Beebe began by sending her a series of

unwelcome lewd messages. After Defendant Beebe, “under the guise of

friendship, explained to [Plaintiff] that the staff have each other’s phone

numbers and like to send funny memes” to each other (Compl. ¶ 18a), Plaintiff

gave her phone number to Beebe, who then followed her on Instagram (id.

¶¶ 19a-20a). On June 24, 2023, Defendant Beebe sent Plaintiff a meme about

oral sex, prompting Plaintiff to respond that he should “tell [his] wife that.” (Id.

1 This Opinion draws its facts from the Complaint (“Compl.” (Dkt. #1)), the well-pleaded

allegations of which are taken as true for purposes of this Opinion. See Ashcroft v.

Iqbal, 556 U.S. 662, 678-79 (2009). The Court also relies, as appropriate, on the

exhibits attached to the Complaint (“Compl., Ex. [ ]” (Dkt. #1)), each of which is

incorporated by reference in the Complaint. See DiFolco v. MSNBC Cable L.L.C., 622

F.3d 104, 111 (2d Cir. 2010) (explaining that on a motion to dismiss, courts may

consider documents incorporated by reference and documents integral to a complaint).

Because the Complaint has numbered paragraphs 13 through 20 twice (see Compl. 3-

4), the Court refers to the first paragraphs 13 through 20 as “13a” through “20a,” and

to the subsequent paragraphs “13” through “20” as such.

For ease of reference, the Court refers to Defendants Rivera and Miller’s memorandum

of law in support of their motion to dismiss as “Rivera & Miller Br.” (Dkt. #29); to

Defendant Beebe’s memorandum of law in support of his motion to dismiss as “Beebe

Br.” (Dkt. #31); to Plaintiff’s memorandum of law in opposition to both motions to

dismiss as “Pl. Opp.” (Dkt. #35); to Defendants Rivera and Miller’s reply memorandum

of law in further support of their motion to dismiss as “Rivera & Miller Reply” (Dkt.

#36); and to Defendant Beebe’s reply memorandum of law in further support of his

motion to dismiss as “Beebe Reply” (Dkt. #37).

¶¶ 13-14). On another occasion, Defendant Beebe commented on a picture

Plaintiff had posted, “Lemme suck on that bottom lip.” (Id. ¶ 15). And after

Plaintiff expressly rejected yet another advance by Beebe, he responded that

“[a] TRUE side bitch knows her role and play[s] it well.” (Id. ¶¶ 16-18).

Plaintiff alleges that Defendant Beebe then escalated his misconduct by

physically assaulting and harassing her over the course of several weeks. On

July 4, 2023, Defendant Beebe allegedly waited for Plaintiff to leave the

bathroom, followed her, and then grabbed her buttocks. (Compl. ¶¶ 19-24).

When Plaintiff loudly objected, Beebe “pleaded for [Plaintiff] to be quiet.” (Id.

¶¶ 25-26). On another day in July 2023, Plaintiff deliberately avoided Beebe,

and as she left the building received a text message from him saying that he

wanted to grab her buttocks again. (Id. ¶¶ 27-28). And sometime in July

2023, Plaintiff caught Beebe “repeatedly smelling the crotch area of [a pair of]

sweatpants” she had brought as a change of clothes. (Id. ¶¶ 29-30). On or

about August 1, 2023, Plaintiff alleges that Beebe followed Plaintiff “to the

refrigerator, opened the door[,] and — after looking both ways to make sure

there were no witnesses — assaulted [Plaintiff] by grabbing her by the neck

from behind and wrapping his arm across her left arm and torso.” (Id. ¶¶ 35-

37). Plaintiff managed to defend herself and push Beebe away, but her neck

was “red” as a result. (Id. ¶¶ 38-39).

Finally, Plaintiff alleges that Defendant Beebe implied a quid pro quo of

Plaintiff’s preferred work schedule for sexual favors. On June 24, 2023,

Plaintiff requested three days off surrounding the July 4 holiday. (Compl.

¶ 31). When Beebe declined to give Plaintiff the day off on July 3, Plaintiff

renewed her request, and Beebe responded, “I told you what to do if you want

the day. If you don’t do it, you don’t want it.” (Id. ¶¶ 32-33). Plaintiff refused.

(Id. ¶ 34).

Plaintiff alleges that Defendant Rivera, among others, retaliated against

her for complaining about Beebe. On August 8, 2023, Plaintiff filed a formal

written complaint about Beebe’s misconduct. (Compl. ¶ 40). Thereafter,

Rivera — Plaintiff’s union representative2 — allegedly “told [Plaintiff’s] co-

workers not to trust her” and told Plaintiff’s supervisors “falsely[ ] that she was

stealing time.” (Id. ¶¶ 42, 44). Additionally, Rivera physically obstructed

Plaintiff’s pathway, “began asking male officers if [Plaintiff] had sexual

intercourse with them,” and referred to Plaintiff as a “rat” and a “snitch.” (Id.

¶¶ 43, 45-46). This alleged campaign of retaliation culminated in one of

Plaintiff’s co-workers’ placing a cartoon rat sticker on Plaintiff’s November 2,

2023-November 15, 2023 timesheet, with Plaintiff’s surname emblazoned on

the rat’s chest. (Id. ¶ 47).

Plaintiff reported this alleged retaliatory conduct to Defendant Miller, the

highest-ranking officer at Edgecombe. (Compl. ¶¶ 10, 48). However, Plaintiff

alleges that Miller “refus[ed] to accept [her] complaints” because they were not

in writing, and that he “exhibited a shocking indifference to [Plaintiff’s]

2 Rivera maintains that she is an Office Assistant, and not a Correction Officer as Plaintiff

alleges; the difference in title is immaterial to the Court’s analysis. (Rivera & Miller

Br. 10).

complaints, telling her that, ‘If you want to fit in here, you need to be quiet.’”

(Id. ¶¶ 49-50).

Plaintiff brings federal constitutional claims, and claims under New York

state and local anti-discrimination laws — specifically, the New York State

Human Rights Law (the “NYSHRL”), N.Y. Exec. Law §§ 290 to 301, and the New

York City Human Rights Law (the “NYCHRL”), N.Y.C. Admin. Code §§ 8-101 to

8-134 — in connection with these allegations. (Compl. ¶¶ 59-92).

B. Procedural Background

Plaintiff initiated this action by filing the Complaint — the operative

pleading — on February 29, 2024. (Dkt. #1). After the Court granted two

requests for additional time to answer or otherwise respond to the Complaint

(Dkt. #10-11, 13-14), on May 28, 2024, Defendants Rivera and Miller filed a

pre-motion letter seeking leave to file a partial motion to dismiss certain of

Plaintiff’s claims. (Dkt. #15). After the Court granted a brief extension request

(Dkt. #16-17), Plaintiff filed a letter in opposition on June 7, 2024 (Dkt. #18).

On June 13, 2024, the Court scheduled a pre-motion conference regarding this

anticipated partial motion to dismiss for August 6, 2024. (Dkt. #19).

Defendant Beebe then requested additional time to answer or otherwise

respond to the Complaint, which request the Court granted on June 26, 2024.

(Dkt. #20-21). On July 29, 2024, Beebe filed a letter requesting a pre-motion

conference regarding an anticipated partial motion to dismiss certain of

Plaintiff’s claims. (Dkt. #24). The Court endorsed this letter to say that it

would discuss Beebe’s anticipated motion at the previously scheduled

conference concerning the other two Defendants’ anticipated motion. (Dkt.

#25).

On August 6, 2024, the Court held a pre-motion conference regarding

these two partial motions to dismiss. (August 6, 2024 Minute Entry). Because

Plaintiff indicated during this conference that she planned to amend the

Complaint, the Court ordered that Plaintiff file her amended complaint by

September 30, 2024, along with a proposed briefing schedule. (Id.). Plaintiff

did not file an amended complaint. Instead, on October 2, 2024, Plaintiff filed

a letter proposing a briefing schedule for the respective partial motions to

dismiss (Dkt. #26), which letter the Court endorsed on October 3, 2024. (Dkt.

#27).

On December 5, 2024, Defendants Rivera and Miller filed their partial

motion to dismiss (Dkt. #28) and a memorandum of law in support thereof

(Dkt. #29). On the same date, Defendant Beebe filed his partial motion to

dismiss (Dkt. #30) and a memorandum of law in support thereof (Dkt. #31).

After the Court granted a brief extension request (Dkt. #32-33), Plaintiff filed

her memorandum of law in opposition to both partial motions to dismiss on

March 3, 2025 (Dkt. #35). Defendants Rivera and Miller filed their reply

memorandum on April 9, 2025 (Dkt. #36), and Defendant Beebe filed his reply

memorandum on April 10, 2025 (Dkt. #37).

DISCUSSION

A. Applicable Law

1. Federal Rule of Civil Procedure 12(b)(1)

Defendants seek dismissal under Rules 12(b)(1) and 12(b)(6) of the

Federal Rules of Civil Procedure, and so the Court considers the legal

standards for both. A complaint may be dismissed for “lack of subject-matter

jurisdiction” pursuant to Federal Rule of Civil Procedure 12(b)(1). “A ‘case is

properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)

when the district court lacks the statutory or constitutional power to

adjudicate it.’” Nike, Inc. v. Already, LLC, 663 F.3d 89, 94 (2d Cir. 2011)

(quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)).

Challenges to subject matter jurisdiction under Rule 12(b)(1) can be

either facial or fact-based. Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56-57

(2d Cir. 2016); see also Katz v. Donna Karan Co., L.L.C., 872 F.3d 114, 119 (2d

Cir. 2017). A facial Rule 12(b)(1) motion is one “based solely on the allegations

of the complaint or the complaint and exhibits attached to it.” Carter, 822 F.3d

at 56. A plaintiff opposing such a motion bears “no evidentiary burden,” id.,

and the court’s task is to determine whether the complaint and its exhibits

allege facts that “affirmatively and plausibly suggest” that the plaintiff has

standing to sue, id. (quoting Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d

140, 145 (2d Cir. 2011) (per curiam)). In making that determination, the court

must accept the complaint’s allegations as true “and draw[ ] all reasonable

inferences in favor of the plaintiff.” Id. at 57 (quoting Lunney v. United States,

319 F.3d 550, 554 (2d Cir. 2003)).

“Alternatively, a defendant is permitted to make a fact-based Rule

12(b)(1) motion, proffering evidence beyond the Pleading.” Carter, 822 F.3d at

57; see also MMA Consultants 1, Inc. v. Republic of Peru, 719 F. App’x 47, 49

(2d Cir. 2017) (summary order) (defining fact-based Rule 12(b)(1) motion as one

where “the defendant puts forward evidence to challenge the factual

contentions underlying the plaintiff’s assertion of subject-matter jurisdiction”).

“In opposition to such a motion, [the plaintiff] must come forward with evidence

of their own to controvert that presented by the defendant, or may instead rely

on the allegations in the[ir p]leading if the evidence proffered by the defendant

is immaterial because it does not contradict plausible allegations that are

themselves sufficient to show standing.” Katz, 872 F.3d at 119 (second

alteration in original) (internal quotation marks omitted). If a defendant

supports its fact-based Rule 12(b)(1) motion with “material and controverted”

“extrinsic evidence,” a “district court will need to make findings of fact in aid of

its decision as to” subject matter jurisdiction. Carter, 822 F.3d at 57.

2. Federal Rule of Civil Procedure 12(b)(6)

Under Federal Rule of Civil Procedure 12(b)(6), a complaint may be

dismissed for “failure to state a claim upon which relief can be granted.” Fed.

R. Civ. P. 12(b)(6). When considering a motion to dismiss under Rule 12(b)(6),

a court must “draw all reasonable inferences in [the plaintiff’s] favor, assume

all well-pleaded factual allegations to be true, and determine whether they

plausibly give rise to an entitlement to relief.” Faber v. Metro. Life Ins. Co., 648

F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted); see also

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff is entitled to relief if she

alleges “enough facts to state a claim to relief that is plausible on its face.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also In re Elevator

Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (“While Twombly does not

require heightened fact pleading of specifics, it does require enough facts to

nudge [a plaintiff’s] claims across the line from conceivable to plausible.”

(internal quotations marks omitted) (citing Twombly, 550 U.S. at 570)).

That said, a court is “not bound to accept conclusory allegations or legal

conclusions masquerading as factual conclusions.” Rolon v. Henneman, 517

F.3d 140, 149 (2d Cir. 2008) (internal quotation marks omitted); see also

Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (“[A]lthough a court must accept

as true all of the allegations contained in a complaint, that tenet is inapplicable

to legal conclusions, and threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” (internal

quotation marks omitted and alteration adopted) (quoting Iqbal, 556 U.S. at

678)). Moreover, “[w]here a complaint pleads facts that are merely consistent

with a defendant’s liability, it stops short of the line between possibility and

plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678 (internal quotation

marks omitted).

On a motion to dismiss pursuant to Rule 12(b)(6), “[t]he Court may

consider any written instrument attached to the [c]omplaint as an exhibit, any

statements or documents incorporated by reference in the [c]omplaint,

documents that are ‘integral’ to the [c]omplaint even if they are not

incorporated by reference, and matters of which judicial notice may be taken.”

Donoghue v. Gad, No. 21 Civ. 7182 (KPF), 2022 WL 3156181, at *2 (S.D.N.Y.

Aug. 8, 2022) (citing Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d

Cir. 2002); Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016)).

B. Analysis

Certain of the claims in Plaintiff’s seven-count Complaint are not

contested in Defendants’ motions to dismiss; the Court will therefore not

address those claims. Conversely, certain claims have been expressly or

implicitly abandoned by Plaintiff; the Court dismisses these claims with

prejudice.

To begin, Defendant Beebe does not seek to dismiss Count I (Fourteenth

Amendment) or Count II (deliberate indifference); he only seeks to dismiss

Counts III through VII (claims for, respectively, violation of the New York

Constitution; NYCHRL gender discrimination; NYSHRL gender discrimination;

NYCHRL retaliation; and NYSHRL retaliation). (See generally Beebe Br.).

Defendants Rivera and Miller seek to dismiss all claims against Miller, and all

claims brought against Rivera (which are Counts I, IX, V, VI, and VII), except

for Count VI (NYCHRL retaliation). (See generally Rivera & Miller Br.).

The scope of Defendants’ partial motions to dismiss was further

narrowed by Plaintiff’s express abandonment of certain claims. Although

Plaintiff did not amend her Complaint, Plaintiff in her opposition brief states

that she “withdraws all claims against Defendant Miller except her deliberate

indifference claim,” and “also withdraws the following claims against Rivera:

[i] the Section 1983 discrimination claims; [ii] gender discrimination and

harassment claims under [the] NYCHRL; and [iii] gender discrimination claims

under NYSHRL. Finally, [Plaintiff] withdraws all New York State Constitution

claims.” (Pl. Opp. 1 n.1). Defendants Rivera and Miller request that the Court

dismiss these claims with prejudice. (Rivera & Miller Reply 3). Claims that are

expressly withdrawn in an opposition to a motion to dismiss are considered to

be abandoned, and courts have dismissed such claims with prejudice. See,

e.g., Jennings v. Hunt Cos., 367 F. Supp. 3d 66, 69-70 (S.D.N.Y. 2019)

(dismissing with prejudice claims that plaintiff had expressly abandoned in his

opposition brief); see also Jingle Kids USA, LLC v. In Colour Cap. Inc., No. 22

Civ. 7089 (JHR), 2023 WL 6392725, at *2 (S.D.N.Y. Oct. 2, 2023) (collecting

cases). Accordingly, the Court dismisses these expressly abandoned claims

with prejudice.

That leaves the Court to address in this Opinion Plaintiff’s remaining

claims of: (i) retaliation in violation of the Equal Protection Clause against

Defendant Rivera (Count I); (ii) deliberate indifference under federal law against

Defendant Miller (Count II); (iii) gender discrimination and harassment under

the NYSHRL against Defendant Beebe (Count V); (iv) gender discrimination and

harassment under the NYCHRL against Defendant Beebe (Count IV);

(v) retaliation under the NYSHRL against Defendants Beebe and Rivera (Count

VII); and (vi) retaliation under the NYCHRL against Defendant Beebe (Count

VI). The Court addresses each claim in turn.

1. Plaintiff Has Adequately Pleaded a Section 1983 Retaliation

Claim as to Defendant Rivera

Plaintiff brings a cause of action for deprivation of federal rights under 42

U.S.C. § 1983, specifically, that Defendants under color of state law deprived

her of “the rights, privileges and immunities guaranteed to citizens of the

United States by the Fourteenth Amendment[ ] to the Constitution of the

United States of America, and [the] Equal Protection [C]lause, in violation of 42

U.S.C. § 1983.” (Compl. ¶¶ 62-64). After withdrawing her “section 1983

discrimination claim” against Rivera (Pl. Opp. 1 n.1), Plaintiff in her opposition

maintains that Defendants Rivera and Miller did not seek to dismiss her

“Section 1983 retaliation claim” (id. at 4), which she admits “could have been

set forth with greater clarity in the Section 1983 claim” of her Complaint (id. at

4 n.4). The Court agrees, but notes that in fact Plaintiff does refer to

“Defendant Rivera’s retaliation” in the paragraph immediately preceding

Count I under a section titled “The Constitutional Violations” (Compl. ¶ 61),

and she alleges retaliatory conduct by Rivera in earlier paragraphs (id. ¶¶ 40-

47). Accordingly, the Court reads Plaintiff’s Complaint to allege a claim of

retaliation against Rivera in violation of the Equal Protection Clause, through

the vehicle of § 1983.3

3 Defendants Rivera and Miller characterize this claim as “[a] newly pled First

Amendment retaliation claim against Ms. Rivera.” (Rivera & Miller Reply 1). But

Plaintiff says nothing about the First Amendment, nor does her claim sound in the First

Amendment. (Cf. Compl. ¶¶ 40-47, 61-64). Although Defendants Rivera and Miller

Section 1983 provides a cause of action against any

person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State … , subjects,

or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws[.]

42 U.S.C. § 1983. “To state a claim under [Section 1983], a plaintiff must

allege both that: [i] a right secured by the Constitution or laws of the United

States was violated, and [ii] the right was violated by a person acting under the

color of state law.” Golian v. N.Y.C. Admin. For Child. Servs., 282 F. Supp. 3d

718, 727 (S.D.N.Y. 2017) (citing West v. Atkins, 487 U.S. 42, 48 (1988)).

“Section 1983 itself creates no substantive rights; it provides only a

procedure for redress for the deprivation of rights established elsewhere.”

Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citing City of Oklahoma City

v. Tuttle, 471 U.S. 808, 816 (1985)). Simply put, “there is no such thing as a

standalone § 1983 claim untethered to a substantive right.” Boykin v.

Westchester Cnty. Jail, No. 22 Civ. 10513 (CS), 2024 WL 4252040, at *7

raise the specter of a “First Amendment” retaliation claim multiple times in their reply

brief (Rivera & Miller Reply 1, 5, 6), they characterize “Plaintiff’s First Amendment

retaliation claim” as rising and falling according to “Plaintiff’s NYSHRL retaliation claim”

(id. at 6-7). In other words, Defendants Rivera and Miller call this a First Amendment

claim but do not treat it as one. By contrast, and in line with a broad reading of the

allegations in the Complaint, Plaintiff elaborates in her opposition brief that the

retaliation claim she brings through § 1983 is one for retaliation in violation of her

equal protection rights. (See Pl. Opp. 5-8). The Court analyzes it as such. The Court

further notes that Defendants Rivera and Miller have not waived any argument in favor

of dismissing the constitutional retaliation claim because they say that the same

standard as a NYSHRL retaliation claim applies to a constitutional retaliation claim,

and the Court agrees that, had Plaintiff more clearly alleged constitutional retaliation,

Defendant Rivera “would clearly have moved to dismiss it as well.” (Rivera & Miller

Reply 6).

(S.D.N.Y. Sept. 20, 2024). Therefore, to the extent Count I of Plaintiff’s

Complaint can be read to raise a standalone claim under Section 1983 (see

Compl. ¶¶ 62-65), she cannot bring such a claim.

The Fourteenth Amendment to the United States Constitution provides

that “[n]o state shall … deny to any person within its jurisdiction the equal

protection of the laws.” U.S. Const. amend. XIV, § 1. Under the Fourteenth

Amendment, “public employees [have] the right to be ‘free from

discrimination.’” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d

Cir. 2015) (quoting Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006)).

“Consequently, public employees aggrieved by discrimination in the terms of

their employment may bring suit under 42 U.S.C. § 1983 against any

responsible persons acting under color of state law.” Id. (citing Back v.

Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122-23 (2d Cir.

2004)). That said, “[a]n individual can be held liable under § 1983 ‘only if they

are personally involved in the alleged deprivation.’” Miller-Sethi v. City Univ. of

N.Y., No. 21 Civ. 8591 (JPO), 2023 WL 419277, at *9 (S.D.N.Y. Jan. 26, 2023)

(quoting Littlejohn v. City of New York, 795 F.3d 297, 314 (2d Cir. 2015)).

Personal involvement may be shown through evidence of (i) direct participation

in the constitutional violation; (ii) failure to remedy after being informed of a

constitutional violation; (iii) creating or allowing the continuance of an

unconstitutional policy or custom; (iv) grossly negligent supervision of

subordinates who committed wrongful acts; or (v) deliberate indifference by

failing to act on information indicating unconstitutional acts were occurring.

Littlejohn, 795 F.3d at 314; accord Fay v. Barbera, No. 24-3016-cv, 2025 WL

1554491, at *2 (2d Cir. June 2, 2025) (summary order).

Plaintiff alleges retaliation by Rivera in violation of Plaintiff’s equal

protection rights. (Compl. ¶¶ 40-47, 61-64). “[T]o establish a prima facie case

of retaliation, a plaintiff must demonstrate that [i] [the plaintiff] engaged in

protected activity, [ii] the defendant was aware of that activity, [iii] [the plaintiff]

was subjected to a retaliatory action, or a series of retaliatory actions, that were

materially adverse, and [iv] there was a causal connection between the

protected activity and the materially adverse action or actions.” Carr v. N.Y.C.

Transit Auth., 76 F.4th 172, 180 (2d Cir. 2023). Of note, however, these

requirements are “relaxed” at the pleading stage. Littlejohn, 795 F.3d at 307.

For a “retaliation claim based on an equal protection violation under § 1983 …

to survive a … motion to dismiss, the plaintiff must plausibly allege that:

[i] defendants acted under the color of state law, [and] [ii] defendants took

adverse employment action against [her], [iii] because [s]he complained of or

otherwise opposed discrimination.” Vega, 801 F.3d at 91. Here, the Court

finds that Plaintiff adequately pleads a retaliation claim against Defendant

Rivera cognizable under § 1983.

As Defendant Rivera does not appear to contest that Plaintiff acted under

color of state law, the Court begins its analysis with the question of whether

Plaintiff plausibly alleges an adverse employment action. “[T]he elements of a

retaliation claim based on an equal protection violation under § 1983 mirror

those under Title VII [of the Civil Rights Act of 1964],” Vega, 801 F.3d at 91,

and therefore the Court cites authorities on retaliation claims under these

statutes interchangeably. “In the context of retaliation, ‘adverse employment

action’ is broader than it is in the context of discrimination.” Shultz v.

Congregation Shearith Israel of City of N.Y., 867 F.3d 298, 309 (2d Cir. 2017)

(citing Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010)). More specifically,

“adverse employment action” is broader than it is in a hostile work

environment claim, and accordingly a plaintiff need not allege that the adverse

action “alter[ed] the terms and conditions of [her] employment,” but rather only

that “the retaliatory actions she was subjected to were materially adverse,

meaning that the actions ‘well might have dissuaded a reasonable worker from

making or supporting a charge of discrimination.’” Carr, 76 F.4th at 179

(quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).

“[T]he alleged acts of retaliation need to be considered both separately and in

the aggregate, as even minor acts of retaliation can be sufficiently substantial

in gross as to be actionable.” Hicks, 593 F.3d at 165 (internal quotation marks

omitted). The Second Circuit has called these “retaliatory hostile work

environment” claims.” Carr, 76 F.4th at 180 (“A claim of ‘retaliatory hostile

work environment’ must therefore be treated identically to a claim that an

employer took multiple retaliatory actions that were, in the aggregate,

‘materially adverse.’”).

Plaintiff adequately alleges an adverse employment action under the Carr

framework. Plaintiff alleges that, after she filed a formal written complaint

about Defendant Beebe’s conduct on August 8, 2023, Defendant Rivera “told

[Plaintiff]’s co-workers not to trust her”; “would physically obstruct [Plaintiff’s]

pathway in order to intimidate her”; “took [Plaintiff’s] timecards off the rack

and told [Plaintiff’s] supervisors, falsely, that she was stealing time”; “began

asking male officers if [Plaintiff] had sexual intercourse with them”; and called

Plaintiff “a ‘rat’ and a ‘snitch.’” (Compl. ¶¶ 40-46). Additionally, one of

Plaintiff’s co-workers placed on Plaintiff’s time sheet a sticker depicting a

cartoon rat with Plaintiff’s surname on its chest. (Id. ¶ 47; id., Ex. F). These

are more than “trivial harms,” or “those petty slights or minor annoyances that

often take place at work and that all employees experience,” which courts find

not to be materially adverse. Shultz, 867 F.3d at 309 (quoting Tepperwien v.

Entergy Nuclear Operations, Inc., 663 F.3d 556, 570 (2d Cir. 2011) (internal

quotation marks omitted) (quoting Burlington, 548 U.S. at 68)). Rather, as in

Stevenson v. New York State Department of Corrections and Community

Supervision, in the context of the dangerous environment of a correctional

facility such as Edgecombe, accusing Plaintiff of being a “rat” or

“untrustworthy” — and encouraging others to follow suit — are materially

adverse actions. No. 21 Civ. 355 (GWC), 2022 WL 179768, at *8 (W.D.N.Y.

Jan. 20, 2022).4 Viewed in context, and in the aggregate, allegations that

Rivera actively fomented distrust of Plaintiff by labeling her a “rat” and falsely

4 In fact, in Carr, the Second Circuit favorably compared Stevenson’s analysis of a

“retaliatory hostile work environment” as an “alternative way to establish” the adverse

employment action element of a retaliation claim with cases where courts improperly

analyzed “retaliatory hostile work environment” claims under the stricter hostile work

environment standard. Carr v. N.Y.C. Transit Auth., 76 F.4th 172, 181 n.4 (2d Cir.

2023) (quoting Stevenson v. N.Y. State Dep’t of Corr. & Cmty. Supervision, No. 21 Civ.

355 (GWC), 2022 WL 179768, at *6 (W.D.N.Y. Jan. 20, 2022)).

accusing her of stealing time, in combination with allegations that Rivera

physically intimidated Plaintiff, are sufficient to allege materially adverse

retaliatory actions that would dissuade a reasonable worker from making or

supporting a charge of discrimination. Carr, 76 F.4th at 179.

The context of Plaintiff’s dangerous work environment and the degree of

Rivera’s fomentation of distrust distinguish this case from Schultz, where the

Second Circuit found no materially adverse action because the plaintiff had

alleged “mere[ ] … negative comments” that the plaintiff had overheard; that

the defendants had “encouraged employees not to speak with her after her last

day at work”; and that the defendants “distributed a negative statement about

her after the lawsuit was commenced.” 867 F.3d at 309-10. Here, by contrast,

Plaintiff alleges that Defendant Rivera engaged in “more direct hostile conduct”

toward her. Carr, 76 F.4th at 180. Unlike in Schultz, where the defendants’

alleged conduct merely created an air of negativity surrounding the plaintiff,

Rivera’s alleged conduct directly targeted Plaintiff and placed her in the

crosshairs of her co-workers, who followed Rivera’s lead by (literally) labeling

Plaintiff a “rat.” Viewed together, and in the light most favorable to Plaintiff,

these allegations suffice to plead adverse action.

As for the third element of a § 1983 retaliation claim at the pleading

stage — causation — “a plaintiff must plausibly plead a connection between

the act and [her] engagement in protected activity.” Vega, 801 F.3d at 90. “A

retaliatory purpose can be shown indirectly by timing: protected activity

followed closely in time by adverse employment action.” Id. (citing Cifra v. Gen.

Elec. Co., 252 F.3d 205, 217 (2d Cir. 2001)). Furthermore, a plaintiff claiming

an adverse retaliatory action “must plausibly allege that the retaliation was a

‘but-for’ cause of the employer’s adverse action.” Id. In other words, a plaintiff

must plausibly allege that “the adverse action would not have occurred in the

absence of the retaliatory motive.” Id. at 91 (quoting Zann Kwan v. Andalex

Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013)). This does not, however, “alter the

plaintiff’s ability to demonstrate causation … through temporal proximity.” Id.

(omission in original) (quoting Zann Kwan, 737 F.3d at 845).

Here — as Plaintiff points out — Defendants do not contest that the

internal complaint Plaintiff filed regarding Beebe’s conduct constituted

protected activity, or that Plaintiff adequately pleads causation. (Pl. Opp. 7

n.5). The Court nevertheless finds that Plaintiff adequately pleads causation

based on the temporal proximity between her protected activity and Rivera’s

materially adverse conduct. On August 8, 2023, Plaintiff filed a formal internal

complaint about Beebe’s conduct. (Compl. ¶ 40; id., Ex. E). Filing a formal

complaint is considered a “protected activity.” See, e.g., Schaper v. Bronx Leb.

Hosp. Ctr., 408 F. Supp. 3d 379, 391 (S.D.N.Y. 2019) (“[F]or the purpose[ ] of

establishing a retaliation claim, the Second Circuit recognizes both formal and

informal complaints as protected activity[.]”). In close temporal proximity, the

“rat” sticker was placed on Plaintiff’s time sheet dated November 2, 2023-

November 15, 2023. (Compl. ¶ 47; id., Ex. F). Especially in light of the

allegation that the sticker was the result of Rivera’s campaign of fomenting

distrust of Plaintiff, the three-month period between Plaintiff’s filing of the

complaint and this retaliatory conduct is sufficiently close in time such that

Plaintiff adequately alleges causation. See, e.g., Vega, 801 F.3d at 92 (finding

that the plaintiff plausibly alleged temporal proximity where the retaliatory

conduct occurred two to three months after the protected activity). In sum,

Plaintiff adequately alleges a § 1983 retaliation claim against Defendant Rivera.

2. Plaintiff Has Failed to Plead a Section 1983 Deliberate

Indifference Claim as to Defendant Miller

Separately, Plaintiff alleges that Defendant Miller, in his role as

Edgecombe’s Superintendent, “exhibited a deliberate indifference toward [her]

health, safety, welfare[,] and constitutional rights,” because he “knew

Defendant Beebe, Defendant Rivera[,] and potentially other employees were

retaliating against Plaintiff[,]” and, “[n]otwithstanding this knowledge,” Miller

allowed this retaliation. (Compl. ¶¶ 67-69). Plaintiff appears only to bring this

claim against Defendant Miller, and she brings it under § 1983. (Id. ¶¶ 66-70).

However, Plaintiff’s “deliberate indifference” claim against Miller fails at the

pleading stage for two independent reasons: (i) “deliberate indifference” is not

the applicable standard; and (ii) Plaintiff does not adequately allege Miller’s

personal involvement in the alleged deprivation of her rights.

“Deliberate indifference” is the standard for an Eighth Amendment claim,

and that standard is inapplicable here. Plaintiff styles her claim as one of

“deliberate indifference” to her “health, safety, welfare[,] and constitutional

rights.” (Compl. ¶ 69). In response, Miller treats Plaintiff’s claim as one for

deliberate indifference under the Eighth Amendment. Broadly speaking, post-

conviction prisoners may state a claim under the Eighth Amendment for

deliberate indifference to unlawful conditions of confinement by alleging that

the defendant knew of, and disregarded, “an excessive risk to inmate health or

safety; the [defendant] must both [have been] aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists, and

[the defendant] must also [have] draw[n] the inference.” Vega v. Semple, 963

F.3d 259, 273 (2d Cir. 2020) (quoting Farmer v. Brennan, 511 U.S. 825, 837

(1994)). Miller maintains that “[n]othing Plaintiff pleads shows that

Superintendent Miller had any subjective knowledge of substantial risk of

serious harm to Plaintiff and disregarded it” (Rivera & Miller Br. 7), indicating

that he construes Plaintiff’s claim to be one under the Eighth Amendment. But

Plaintiff is not a post-conviction prisoner, and therefore the Eighth Amendment

standard is inapplicable. The Court instead charitably construes Plaintiff’s

“deliberate indifference” claim to be a § 1983 retaliation claim against Miller in

his capacity as a supervisor.

Plaintiff fails to allege § 1983 retaliation (or any other constitutional

claim) against Defendant Miller because she does not plausibly allege Miller’s

personal involvement in any deprivation of her rights. “In the Second Circuit,

‘there is no special rule for supervisory liability’ under Section 1983.” Brown v.

County of Westchester, No. 22 Civ. 6146 (PMH), 2024 WL 21937, at *9 (S.D.N.Y.

Jan. 2, 2024) (quoting Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir.

2020)). As previously discussed, “[a]n individual can be held liable under

§ 1983 ‘only if they are personally involved in the alleged deprivation.’” Miller-

Sethi, 2023 WL 419277, at *9 (quoting Littlejohn, 795 F.3d at 314).

Consequently, “a plaintiff must plead that each [g]overnment-official defendant,

through the official’s own individual actions, has violated the Constitution.”

Tangreti, 983 F.3d at 616 (quoting Iqbal, 556 U.S. at 676). But Plaintiff alleges

only that Miller — the Correctional Facility Superintendent and highest-

ranking correction officer at Edgecombe (Compl. ¶ 10) — “knew” that

Defendants Beebe and Rivera (and potentially others) were retaliating against

Plaintiff, and nevertheless “allowed” this to happen (id. ¶¶ 67-68; see also id.

¶¶ 48-56).

The only specific allegations of Defendant Miller’s personal involvement

are that Miller “refused to accept any of [Plaintiff’s] verbal complaints” because

he could not “do anything unless it[ was] in writing” (id. ¶ 50), and that Miller

told Plaintiff, “[i]f you want to fit in here, you need to be quiet” (id. ¶ 49).

Neither allegation personally implicates Miller in unconstitutional conduct.

That Miller told Plaintiff that he required a written complaint to take action is a

far cry from personal involvement in a retaliatory hostile work environment.

Rather, this appears to be a straightforward statement of DOCCS policy. And

to the extent Miller’s failure to respond amounts to “tacit[ ] or express[ ]

approv[al] or ratif[ication] [of] the [c]onstitutionally violative behavior,” his

“mere receipt of a … grievance, coupled with the failure to act, is not enough to

sufficiently plead personal involvement.” Ndemenoh v. Boudreau, No. 20 Civ.

4492 (RA), 2023 WL 6122852, at *6 (S.D.N.Y. Sept. 19, 2023) (internal

quotation marks omitted). Furthermore, Miller’s alleged statement that

Plaintiff needed to be “quiet” to “fit in” at Edgecombe is at most indicative of his

tacit or express approval of the constitutionally violative behavior, see id., and

essentially amounts to a “vague” allegation that Miller “aided and abetted

unlawful conduct,” which, “‘without more, [is] insufficient to allege … personal

involvement under [S]ection 1983,’” Brown, 2024 WL 21937, at *9 (second

alteration in original) (quoting Fellah v. City Univ. of N.Y., No. 20 Civ. 6423

(JPC), 2022 WL 4619902, at *6 (S.D.N.Y. Sept. 30, 2022) (collecting cases)).

Accordingly, the Court dismisses Plaintiff’s “deliberate indifference” claim

against Defendant Miller.

3. Defendant Beebe Does Not Have Immunity from Suit Under

New York Corrections Law Section 24

Before addressing the merits of Plaintiff’s claims against Defendant

Beebe under New York law, the Court considers whether — as Defendant

Beebe argues (Beebe Br. 3-5) — he is immune from these claims under New

York Corrections Law § 24 (“Section 24”). The Court finds that he is not.

Section 24 provides in relevant part that:

No civil action shall be brought in any court of the

state … against any officer or employee of the

department [(DOCCS)] … in his or her personal

capacity, for damages arising out of any act done or the

failure to perform any act within the scope of the

employment and in the discharge of the duties by such

officer or employee.

N.Y. Corr. Law § 24(1). Although it refers to civil actions brought in “any court

of the state,” Section 24 has been interpreted to preclude the assertion of such

claims in federal court, too. Bernardi v. N.Y. State Dep’t of Corr., No. 19 Civ.

11867 (KMK), 2021 WL 1999159, at *5 (S.D.N.Y. May 19, 2021) (citing Baker v.

Coughlin, 77 F.3d 12, 15 (2d Cir. 1996)). “The immunity shields employees

from personal liability [for] any state law5 claim for damages related to actions

falling within the scope of their employment.” Id. (citing Ierardi v. Sisco, 119

F.3d 183, 186 (2d Cir. 1997)). “In determining whether Section 24 applies,

courts look to the factors associated with New York’s scope of employment

analysis.” Mrani v. N.Y. State Dep’t of Corr. & Cmty. Supervision, No. 21 Civ.

1072 (NSR) (AEK), 2023 WL 3736781, at *4 (S.D.N.Y. May 31, 2023) (citing

Ierardi, 119 F.3d at 187-88 & n.3 (citing Riviello v. Waldron, 47 N.Y.2d 297,

302 (1979))). These factors include:

the connection between the time, place and occasion for

the act; the history of the relationship between employer

and employee as spelled out in actual practice; whether

the act is one commonly done by [such an] employee;

the extent of departure from normal methods of

performance; and whether the specific act was one that

the employer could reasonably have anticipated.

Ierardi, 119 F.3d at 187-88 (quoting Riviello, 47 N.Y.2d at 303). Although “both

New York and federal courts have on occasion found that the on-the-job

conduct of [DOCCS] employees was outside the scope of employment, such

holdings generally have been limited to cases in which the conduct ‘was

prompted purely by personal reasons unrelated to the employer’s interest,’ or

‘indicate[d] an intentional course of conduct contrary to institutional rules,

5 The Court interprets the scope of Section 24’s immunity, which covers state law, to

reach local law (such as the NYCHRL) too. See, e.g., Yost v. Everyrealm, Inc., 657 F.

Supp. 3d 563, 578 n.10 (S.D.N.Y. 2023) (interpreting the term “State law” in a federal

statute to “encompass local (for example, municipal) laws … such as the NYCHRL” in

part because municipalities are political subdivisions of states (citing United Bldg. &

Constr. Trades Council of Camden Cnty. & Vicinity v. Mayor & Council of City of Camden,

465 U.S. 208, 215 (1984) (finding that a local ordinance must comport with the

Privileges and Immunities Clause because “a municipality is merely a political

subdivision of the State from which its authority derives”))).

training and common sense.’” Degrafinreid v. Ricks, 452 F. Supp. 2d 328, 334

(S.D.N.Y. 2006) (second alteration in original) (internal citation omitted) (first

quoting Ierardi, 119 F.3d at 188, then quoting Spitz v. Coughlin, 557 N.Y.S.2d

647, 648 (3d Dep’t 1990)).

Defendant Beebe argues that Section 24 immunity applies because — in

essence — Plaintiff said so. (Beebe Br. 4-5). The Court disagrees. It is true

that Plaintiff alleges in the Complaint that “[e]ach and all of the acts of the

Defendants alleged herein were done while acting within the scope of their

employment by [DOCCS].” (Compl. ¶ 13a). According to Defendant Beebe,

Plaintiff is bound by this allegation, and, in fact, Defendant Beebe maintains

that he “would not be arguing for the dismissal of Plaintiff’s state law claims in

this action based upon Section 24 immunity” had Plaintiff not specifically

alleged that Beebe was acting within the scope of his employment. (Beebe

Br. 4-5). Indeed, Defendant Beebe acknowledges that “many courts have

declined to extend Section 24 immunity to sexual harassment claims” such as

Plaintiff’s. (Id. at 4 (citing Martin v. N.Y. State Dep’t of Corr. Servs., 224 F.

Supp. 2d 434 (N.D.N.Y. 2002)). However, the scope of Section 24 immunity is a

legal question, and the Court considers Plaintiff’s allegation that Defendants

acted “within the scope of their employment” (Compl. ¶ 13a) to be a “legal

conclusion[ ] masquerading as [a] factual conclusion[ ],” which the Court need

not accept as true at the pleadings stage, Rolon, 517 F.3d at 149. Moreover,

statutory immunity is a matter of subject matter jurisdiction, Makarova, 201

F.3d at 113, and the Court “has an independent obligation to assure itself of its

subject matter jurisdiction,” Buhannic v. TradingScreen Inc., No. 19 Civ. 10650

(ER), 2020 WL 4058949, at *6 (S.D.N.Y. July 20, 2020) (citing Bayerische

Landesbank, N.Y. Branch v. Aladdin Cap. Mgmt. LLC, 692 F.3d 42, 48 (2d Cir.

2012)). Accordingly, the Court cannot and does not construe Plaintiff’s

allegation that Defendants were acting within the scope of their employment to

mean that they, in fact, were.6

Instead, the Court finds as a matter of law that Defendant Beebe was not

acting within the scope of his employment during the course of his alleged

misconduct. As Defendant Beebe himself acknowledges (Beebe Br. 4), “[c]ourts

that have considered the issue have held that personal harassment unrelated

to an employee’s assigned duties does not entitle a corrections department

employee to Section 24 immunity,” Bernardi, 2021 WL 1999159, at *6 (citing

Martin, 224 F. Supp. 2d at 440-42; Ierardi, 119 F.3d at 188). Indeed,

Defendant Beebe concedes that Section 24 immunity does not apply to his

conduct. (Beebe Br. 4-5). For the avoidance of doubt, the Court finds that

Beebe’s alleged conduct falls outside the scope of Section 24. This conduct,

including, inter alia, sending inappropriate messages to Plaintiff on Instagram

and via text (Compl. ¶¶ 13-18, 28); physically assaulting Plaintiff (id. ¶¶ 24-26,

6 Having determined that whether Defendant Beebe was acting within the scope of his

employment for Section 24 immunity purposes is a question for the Court to decide as a

matter of law, the Court need not address Plaintiff’s alternative argument that she did

not allege that Beebe’s acts were “‘within the scope of [his] employment’ and ‘in the

discharge of [his] duties.’” (Pl. Opp. 9 (quoting N.Y. Corr. Law § 24(1))). There is no

support in the case law for the notion that these two clauses refer to two independent

requirements and, moreover, the Section 24 immunity question remains one for the

Court to decide as a matter of law in the first instance.

37-39); and implicitly offering a quid pro quo of time off for sexual favors (id.

¶¶ 33-34), plainly cannot be “act[s] within the scope of [Beebe’s] employment

and in the discharge of [his] duties,” N.Y. Corr. Law § 24(1). “None of these

comments related to [his] job functions. As a result, [Defendant Beebe] is not

entitled to Section 24 immunity for his alleged discriminatory comments.”

Bernardi, 2021 WL 1999159, at *6; see also Ierardi, 119 F.3d at 189 (finding

that similar conduct, “although occurring during the course of [an officer’s]

employment,” was “beyond the ambit of protection provided to correction

officers under Section 24”).

4. Plaintiff Has Adequately Pleaded Certain of Her Gender

Discrimination and Harassment Claims Under State and

Local Law Against Defendant Beebe

a. The Court Dismisses Plaintiff’s Gender Discrimination

and Harassment Claims Under the NYSHRL Against

Defendant Beebe

Having decided that Section 24 immunity cannot shield Defendant Beebe

from liability for his alleged misconduct, the Court turns to whether Plaintiff

plausibly alleges claims against him under New York state anti-discrimination

law. The Court begins with Plaintiff’s NYSHRL gender discrimination and

harassment claim against Beebe. (Count V). Beebe argues that this claim

must be dismissed because he cannot be considered Plaintiff’s “employer,” and

because liability under the NYSHRL only extends to “employers.” (Beebe Br. 6).

The Court agrees.

The NYSHRL provides that “[i]t shall be an unlawful discriminatory

practice … [f]or an employer … because of an individual’s … gender identity or

expression … [or] sex … to discharge from employment such individual or to

discriminate against such individual in compensation or in terms, conditions

or privileges of employment.” N.Y. Exec. Law § 296(1)(a) (emphasis added).

The Court of Appeals has held that the NYSHRL “does not render employees

liable as individual employers.” Doe v. Bloomberg, L.P., 36 N.Y.3d 450, 458

(2021). In Doe, the Court of Appeals characterized the definition of “employer”

under the NYSHRL as “narrow,” and it specifically held that, under the

NYSHRL, “a corporate employee simply does not qualify as an ‘employer,’

regardless of the employee’s position or relationship to the employer.” Id.

(emphasis added). The Court concurs with other courts in this Circuit that

have applied the logic of Doe to public employers — including DOCCS — and

found that individual employees are not “employers” for NYSHRL purposes.

See Belyea v. City of Glen Cove, No. 20 Civ. 5675 (MKB), 2023 WL 1929787, at

*2-3 (E.D.N.Y. Feb. 10, 2023) (finding that mayor was employee of city and

therefore could not be liable as an employer under the NYSHRL (citing

Stevenson, 2022 WL 179768, at *21 (finding that DOCCS supervisor could not

be liable as an employer)); Bonaffini v. City Univ. of N.Y., No. 20 Civ. 5118

(BMC), 2021 WL 2895688, at *2 (E.D.N.Y. July 9, 2021) (finding that college

provost could not be liable as an employer))); see also Okafor v. N.Y. State Ins.

Fund, No. 24 Civ. 5680 (JGK), 2025 WL 2299172, at *12 (S.D.N.Y. Aug. 8,

2025) (“The [primary NYSHRL] theory of liability is not viable in this case

because, as the parties agree, the individual defendants are not ‘employers’

under the statute.”). Defendant Beebe is an individual employee of DOCCS,

and not Plaintiff’s employer. Therefore, he cannot be held liable for gender

discrimination under the NYSHRL. The Court dismisses Plaintiff’s NYSHRL

claim against Beebe for this reason.

In her opposition brief, Plaintiff maintains that her NYSHRL claim

against Defendant Beebe should not be dismissed because an individual

employee like Beebe can be liable for aiding or abetting an unlawful

discriminatory practice under the statute. (Pl. Opp. 10 (citing N.Y. Exec. Law.

§ 296(6))). The NYSHRL prohibits “‘aiding, abetting, inciting, compel[ling] or

coerc[ing] the doing’ of any unlawful acts of discrimination under” the statute.

McHenry v. Fox News Network, LLC, 510 F. Supp. 3d 51, 68 (S.D.N.Y. 2020)

(alterations adopted) (quoting N.Y. Exec. Law § 296(6)). The NYSHRL allows

individual employees to be held liable for aiding and abetting a liable employer.

Nezaj v. PS450 Bar & Rest., 719 F. Supp. 3d 318, 329-30 (S.D.N.Y. 2024)

(citing Baptiste v. City Univ. of N.Y., 680 F. Supp. 3d 415, 427 (S.D.N.Y. 2023)).

However — as Beebe points out — Plaintiff does not allege that Beebe aided

and abetted a NYSHRL allegation. (Beebe Reply 6; cf. Compl. ¶¶ 79-83).

“[A]iding and abetting liability requires that the aider and abettor share the

intent or purpose of the principal actor.” McHenry, 510 F. Supp. 3d at 68

(internal quotation marks omitted). More fundamentally, “liability must first be

established as to the employer/principal before accessorial liability can be

found as to an alleged aider and abettor.” DeWitt v. Lieberman, 48 F. Supp. 2d

280, 293 (S.D.N.Y. 1999). In other words, a plaintiff must allege that there was

a principal actor — an employer — whose unlawful discriminatory conduct the

alleged aider and abettor was aiding and abetting.

Here, Plaintiff does not bring a NYSHRL claim of aiding and abetting

against Defendant Beebe. (Cf. Compl. ¶¶ 79-83). Accordingly, the Court

cannot and does not read such a claim into the Complaint. See, e.g., Budhani

v. Monster Energy Co., No. 20 Civ. 1409 (LJL), 2021 WL 5761902, at *3

(S.D.N.Y. Dec. 3, 2021) (“[I]t is axiomatic that the [c]omplaint cannot be

amended by the briefs in opposition to a motion to dismiss.” (alteration in

original) (quoting O’Brien v. Nat’l Prop. Analysts Partners, 719 F. Supp. 222,

229 (S.D.N.Y. 1989))). Moreover, even if Plaintiff had specifically alleged aiding

and abetting by Beebe, because she does not assert an NYSHRL discrimination

claim against her employer (DOCCS), any aiding and abetting claim against

Beebe would necessarily fail. See, e.g., Marshall v. Westchester Med. Ctr.

Health Network, No. 22 Civ. 7990 (NSR), 2024 WL 665200, at *15 (S.D.N.Y.

Feb. 16, 2024) (“As Plaintiff has fail[ed] to assert NYSHRL retaliation and

discrimination claims against [her employer], her aiding and abetting claim

against [two other employees] must also fail.”).

b. The Court Sustains Plaintiff’s Gender Discrimination and

Harassment Claims Under the NYCHRL Against

Defendant Beebe

Although Defendant Beebe seeks dismissal of Plaintiff’s NYCHRL gender

discrimination and harassment claim (Count IV) on Section 24 immunity

grounds (see Beebe Br. 3-5 (arguing that all of Plaintiff’s New York state and

local law claims against Beebe should be dismissed pursuant to Section 24);

Beebe Reply 3-5 (same)), he does not address whether the factual allegations in

the Complaint adequately allege an NYCHRL gender discrimination and

harassment claim against him. And although Plaintiff maintains that the

Complaint pleads a claim “for harassment against Beebe under the …

[NYCHRL]” (Pl. Opp. 1), apart from this — and a similar passing reference in

the brief’s conclusion (id. at 12) — she, too, does not explain why the

allegations in the Complaint adequately allege such a claim against Beebe. It is

therefore unclear whether Beebe in fact seeks to dismiss Plaintiff’s NYCHRL

gender discrimination claim against him for failure to state a claim upon which

relief can be granted. To the extent Beebe does seek dismissal of Count IV on

these grounds, the Court denies this motion because Plaintiff plausibly alleges

gender discrimination and harassment on Beebe’s part.

The NYCHRL makes it unlawful “[f]or an employer or an employee or

agent thereof, because of the actual or perceived ... gender ... of any person ...

[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)(3). Unlike the

NYSHRL, an individual employee can be held liable for his participation in

discriminatory conduct under the NYCHRL. See Nezaj, 719 F. Supp. 3d at 330

(citing Doe, 36 N.Y.3d at 459). To state a discrimination claim under the

NYCHRL, a plaintiff need not allege that she suffered an adverse employment

action or that “discriminatory animus was the but-for cause or even the

primary motivation of their alleged mistreatment.” Delo v. Paul Taylor Dance

Found., Inc., 685 F. Supp. 3d 173, 183 (S.D.N.Y. 2023). Rather, she must

allege only that she has been “treated less well at least in part because of [her]

gender.” Id. (quoting Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d

102, 110 (2d Cir. 2013)).

In doing so, a plaintiff must still allege “differential treatment that is

‘more than trivial, insubstantial, or petty.’” Torre v. Charter Commc’ns, Inc.,

493 F. Supp. 3d 276, 285 (S.D.N.Y. 2020) (quoting Gorman v. Covidien, LLC,

146 F. Supp. 3d 509, 530 (S.D.N.Y. 2015)). “That is, … ‘a plaintiff must only

show differential treatment of any degree based on a discriminatory motive[.]’”

Nezaj, 719 F. Supp. 3d at 330 (quoting Gorokhovsky v. N.Y.C. Hous. Auth., 552

F. App’x 100, 102 (2d Cir. 2014) (summary order)). “[T]he NYCHRL thus does

not require a connection between the discriminatory conduct and a materially

adverse employment action.” Id. at 330-31 (internal quotation marks omitted).

Even a “single comment that objectifies women … made in circumstances

where that comment would, for example, signal views about the role of women

in the workplace [can] be actionable.” Williams v. N.Y.C. Hous. Auth., 872

N.Y.S.2d 27, 41 n.30 (1st Dep’t 2009); see also Mihalik, 715 F.3d at 114

(“Williams made clear … that … [the defendant’s] alleged mistreatment of [the

plaintiff] would be actionable under the NYCHRL even if it was unrelated to her

discharge and was neither severe nor pervasive.” (emphasis added) (footnote

omitted) (internal citation omitted)). “While the NYCHRL is ‘not a general

civility code,’ it should be construed ‘broadly in favor of discrimination

plaintiffs, to the extent that such a construction is reasonably possible[.]’”

Delo, 685 F. Supp. 3d at 183 (quoting Mihalik, 715 F.3d at 109, 113).

Here, Plaintiff adequately alleges gender discrimination under the

NYCHRL by Defendant Beebe. She alleges multiple “comment[s] that objectif[y]

women … made in circumstances where that comment would … signal views

about the role of women in the workplace.” Williams, 872 N.Y.S.2d at 41 n.30.

To take just two examples, Plaintiff alleges that Beebe implied a “quid pro quo

situation where [Plaintiff] would receive [her] requested day off in exchange for

sexual favors” (Compl. ¶ 33), and that Beebe made lewd sexual comments

regarding Plaintiff even after she refused his advances (id. ¶¶ 13-18). Plaintiff

adequately alleges that Beebe treated her “less well at least in part because of

[her] gender,” Delo, 685 F. Supp. 3d at 183, and therefore the Court denies any

motion to dismiss her claim of gender discrimination and harassment under

the NYCHRL as to Beebe.

5. Plaintiff Has Adequately Pleaded Claims for Retaliation Under

the NYSHRL Against Defendant Rivera, But Has Abandoned

Her Retaliation Claims Under the NYSHRL or the NYCHRL

Against Defendant Beebe

Both Defendant Rivera and Defendant Beebe seek to dismiss Plaintiff’s

claims of retaliation against them under the NYSHRL (Count VII). (Rivera &

Miller Br. 11-12; Beebe Br. 6-8). The NYSHRL makes it “an unlawful

discriminatory practice for any person … to retaliate … against any person

because he or she has opposed any practices forbidden under this article or

because he or she has filed a complaint, testified or assisted in any proceeding

under this article.” N.Y. Exec. Law § 296(7). The Court concludes that Plaintiff

adequately alleges retaliation under the NYSHRL against Rivera, but that

Plaintiff has abandoned her NYSHRL retaliation claim (and, for that matter, her

NYCHRL retaliation claim) against Beebe.

Plaintiff argues that her NYSHRL retaliation claim should not be

dismissed because retaliation claims under § 1983 and the NYSHRL are

subject to the same standard. (Pl. Opp. 5-6 (citing Kirkland-Hudson v. Mount

Vernon City Sch. Dist., 665 F. Supp. 3d 412, 459 (S.D.N.Y. 2023))). However,

that is not quite true for the conduct at issue here. The NYSHRL was amended

in 2019 to provide that its provisions “shall be construed liberally for the

accomplishment of the remedial purposes thereof, regardless of whether federal

civil rights laws, including those laws with provisions worded comparably to

the provisions of this article, have been so construed.” N.Y. Exec. Law § 300.

This amendment “appl[ies] to claims that accrue on or after the effective date of

October 11, 2019.” Wellner v. Montefiore Med. Ctr., No. 17 Civ. 3479 (KPF),

2019 WL 4081898, at *5 n.4 (S.D.N.Y. Aug. 29, 2019). “[A] cause of action for

discrimination under the NYSHRL accrues … on the date of the alleged

discriminatory act.” Fair Hous. Just. Ctr., Inc. v. JDS Dev. LLC, 443 F. Supp. 3d

494, 504 (S.D.N.Y. 2020) (internal quotation marks omitted and alteration

adopted). As the alleged conduct here occurred in 2023 (see generally Compl.),

the post-2019 amendment NYSHRL standard applies to it.

Regardless of the precise effect of the 2019 amendment on the NYSHRL’s

retaliation standard, it is more liberal than the federal § 1983 retaliation

standard, and therefore Plaintiff adequately alleges retaliation under the

NYSHRL on the part of Defendant Rivera. “The case law … has yet to

definitively resolve whether the NYSHRL’s liability standard is now coextensive

with that of the [more liberal] NYCHRL, or whether it requires more, so as to

impose a standard between federal and city law.” Wheeler v. Praxair Surface

Techs., Inc., 694 F. Supp. 3d 432, 451 (S.D.N.Y. 2023); see also Nezaj, 719 F.

Supp. 3d at 335 n.3. This Court has previously assumed, for purposes of a

Rule 12(b)(6) motion, that the amended NYSHRL standard aligns with that of

the NYCHRL. See, e.g., Kulick v. Gordon Prop. Grp., LLC, No. 23 Civ. 9928

(KPF), 2025 WL 448333, at *8 (S.D.N.Y. Feb. 7, 2025); Wright v. City of New

York, No. 23 Civ. 3149 (KPF), 2024 WL 3952722, at *6 (S.D.N.Y. Aug. 27,

2024). It does so here as well. Retaliation claims under the NYCHRL (and, for

purposes of this motion, the NYSHRL) are subject to a broader standard than

under § 1983 or Title VII. See McHenry, 510 F. Supp. 3d at 67. Consequently,

the Court concludes that because Plaintiff adequately alleges a § 1983

retaliation claim against Rivera, she adequately alleges a NYSHRL retaliation

against Rivera, and thus the Court denies Rivera’s motion to dismiss this

claim.

As for Defendant Beebe, in his opening brief, he argues that Plaintiff’s

NYSHRL and NYCHRL retaliation claims against him should be dismissed

because Plaintiff fails to allege Beebe’s personal involvement in any retaliatory

conduct. (Beebe Br. 6-7). Although Plaintiff in her opposition brief maintains

that the Complaint adequately pleads claims of retaliation against Defendant

Rivera under the NYSHRL (Pl. Opp. 1), Plaintiff does not address Defendant

Beebe’s motion to dismiss the NYSHRL or NYCHRL retaliation claims against

him. As a result, Beebe argues that Plaintiff has abandoned her state-law

retaliation claims against him. (Beebe Reply 2). The Court agrees. Because

Plaintiff failed to respond to arguments regarding Beebe’s motion to dismiss the

NYSHRL retaliation claim (Count VII) and the NYCHRL retaliation claim (Count

VI) against him, the Court deems Plaintiff to have abandoned these claims and

dismisses them with prejudice. See, e.g., Verdi v. City of New York, 306 F.

Supp. 3d 532, 552 (S.D.N.Y. 2018) (dismissing claims with prejudice where

plaintiff failed to address defendants’ arguments in his opposition (citing

Brandon v. City of New York, 705 F. Supp. 2d 261, 268 (S.D.N.Y. 2010)

(collecting cases))); Hauschild v. United States Marshals Serv., No. 21 Civ. 7580

(CS), 2023 WL 2413934, at *12 (S.D.N.Y. Mar. 8, 2023) (collecting cases), aff’d,

No. 23-778-cv, 2024 WL 158899 (2d Cir. Jan. 12, 2024) (summary order).

6. The Court Will Not Grant Leave to Amend

Plaintiff does not expressly seek leave to amend. (Cf. Pl. Opp.). However,

Defendants Rivera and Miller argue that Plaintiff should not be granted leave to

amend her Complaint because she was expressly permitted an opportunity to

do so but did not. (Rivera & Miller Br. 13-14). It is true that the Court gave

Plaintiff a deadline by which to amend her Complaint (see August 6, 2024

Minute Entry), and that Plaintiff chose not to amend. (See also Dkt. #26

(October 2, 2024 letter in which Plaintiff stated that she did not amend her

Complaint because, regardless of amendment, “defendants were still going to

file their motions to dismiss”)). Accordingly, the Court declines to grant leave

to amend sua sponte. See Hauschild, 2023 WL 2413934, at *12 (declining to

grant leave to amend sua sponte and collecting cases).

CONCLUSION

For the above reasons, the Court GRANTS IN PART and DENIES IN PART

the partial motion to dismiss brought by Defendants Rivera and Miller, and

GRANTS IN PART and DENIES IN PART the partial motion to dismiss brought

by Defendant Beebe. The Court’s decision leaves the following claims against

the following Defendants:

 As to Beebe: Count I (violation of the Fourteenth Amendment’s

Equal Protection Clause) and Count IV (NYCHRL gender

discrimination and harassment); and

 As to Rivera: Count I (retaliation in violation of the Fourteenth

Amendment’s Equal Protection Clause); Count VI (NYCHRL

retaliation); and Count VII (NYSHRL retaliation).

The remaining claims are dismissed with prejudice, and Miller is terminated as

a Defendant in this case.

The Clerk of Court is directed to terminate the pending motions at docket

entries 28 and 30. The parties remaining in this litigation are hereby

ORDERED to file a proposed case management plan on or before September 2,

2025.

SO ORDERED.

Dated: August 19, 2025

New York, New York __________________________________

KATHERINE POLK FAILLA

United States District Judge