Yehudah v. Optoid Print3D Eyewear

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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:

BARBARA YEHUDAH,

:

Plaintiff,

:

– against – : MEMORANDUM DECISION AND

ORDER

:

OPTOID PRINT3D EYEWEAR, and JAMES

24-CV-1672 (AMD) (JAM)

KIM, OD, FAAO :

:

Defendants. :

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A NN M. DONNELLY, United States District Judge:

The plaintiff brings this action against her forme r employer for race discrimination in

violation of 42 U.S.C. § 1981 and constructive discharg e and hostile work environment based on

race, religious and sexual orientation discrimination in violation of 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- 502 et seq. Before the Court are the pro

se defendant James Kim’s motion to dismiss and motion pursuant to New York’s Anti-Strategic

Litigation Against Public Participation (anti-SLAPP) law. As explained below, the defendant’s

motions are denied.

BACKGROUN D1

On June 1, 2022, the defendant James Kim hired the plaintiff, who “identifies as a Black,

Jewish bisexual Israelite,” as a medical assistant for his practice at the defendant Optoid Print 3D

1 The facts are based on the allegations in the complaint, which the Court is required to accept as true on a

motion to dismiss. See Williams v. Richardson, 425 F. Supp. 3d 190, 200 (S.D.N.Y. 2019) (“In

considering a motion to dismiss, a court must accept as true all well-pleaded facts alleged in the

complaint.”).

Eyewear. (ECF No. 1 ¶¶ 14, 21.) The plaintiff’s duties included “scheduling patients,

pre-testing patients and ensuring patient satisfaction” and she “performed her duties in an

exemplary manner.” (Id. ¶ 15.) In November 2022, the plaintiff and a colleague approached the

defendant to “discuss calculations on their paychecks.” (Id. ¶ 17.) Instead of “engaging them in

a good faith discussion,” the defendant “suggested that his calculations were more accurate than”

the plaintiff’s because of the defendant’s race; he said “the math is correct, trust me, I’m the

Asian one.” (Id. (emphasis in original).) Also in November 2022, the defendant sent the

plaintiff the following text message, which the plaintiff says includes a “retaliatory sick leave

policy:”

Hey just a quick word about paid sick days. I’ve been thinking about

how I should handle it because calling out for a sick day, yeah you

can use it. But the rate I pay is going to be $15/hr. That way you can

still use sick days for personal time off and I can still discourage the

usage of sick days for that purpose. If you give me a doctor’s note

or some proof you had to take a family member to the hospital or

something necessary like that, I will pay your normal rate.

(Id. ¶ 18 (emphasis in original).) The plaintiff responded “that this practice was illegal.” (Id.

¶ 19.)

By January 2023, the defendant had “created a hostile work environment . . . that was rife

with illegal and inappropriate comments;” the defendant made “inappropriate and illegal

comments anywhere from three to four times a week.” (Id. ¶¶ 20–21.) “On multiple occasions,”

the defendant “rant[ed] about the Jewish religion, calling Jews ‘pedophiles’ and ‘Nazis,’ and

would routinely remark that those who identify as LGBTQ had been raped and in turn became

rapists themselves.” (Id. ¶ 22.) The plaintiff kept her “head down in a state of utter shock and

disturbance,” but the defendant did not stop. (Id. ¶ 23.)

On February 14, 2023, the defendant texted the plaintiff and her colleague a

“pornographic Satanic symbol, which included a graphic image of male genitalia.” (Id. ¶ 24.)

The plaintiff did not respond. (Id. ¶ 25.) On February 17, 2023, the defendant sent additional

inappropriate photographs to the plaintiff and her colleague, with the message that plaintiff says

referred to Jewish people: “[D]on’t forget why your people worshipped cats,” and “tonight being

Sabbath for the Ashkenazi ‘Jewish’ Hebrews . . . just felt like spitting some real rabbinical

knowledge.” (Id. ¶ 26.) The plaintiff responded that she was taking a sick day the next day

because “she was too offended to be in his presence at work.” (Id. ¶ 27.) On March 4, 2023, the

defendant texted the plaintiff and her colleague that Jewish people were “always fleeing a god

they think doesn’t exist with their little brain (dicks) right down to the most satanic orgy ever.

After death.” (Id. ¶ 28.) He also sent a “photoshopped photo of his face on a Pharaoh,” and

wrote “by the actual Allah(swt) … just some wisdom from your pharoh [sic].” (Id. ¶ 29.)

In May 2023, the plaintiff noticed that the frogs in the office’s fish tank were “looking at

her.” (Id. ¶ 30.) When she told the defendant in passing that the “frogs always look at her when

she walks by,” the defendant responded, “they are from Madagascar, which is by Africa, so they

probably recognize you.” (Id.) The plaintiff did not respond, “hoping her silence would make it

evident that these comments were discriminatory, offensive and inappropriate in the workplace.”

(Id. ¶ 31.) However, the defendant “continued to routinely share his bigoted views about [the

plaintiff’s] Jewish faith, sexual orientation, and race.” (Id. ¶ 32.) There was no human resources

department to which the plaintiff could complain. (Id. ¶ 34.) On August 13, 2023, the plaintiff

resigned “to remove herself from the incredibly hostile work environment [the defendant] had

created.” (Id. ¶ 35.)

The plaintiff brought this action on March 5, 2024, alleging racial discrimination in

violation of 42 U.S.C. § 1981, hostile work environment based on sexual orientation, religious

discrimination, and racial discrimination in violation of the NYSHRL and NYCHRL, and

constructive discharge in violation of the NYSHRL and NYCHRL. (Id. ¶¶ 36–78.) She seeks a

declaration that the defendants’ practices are unlawful, an injunction preventing the defendants

from engaging in the unlawful practices, an order preventing the defendants from retaliating

against her, compensatory and punitive damages, pre-judgment and post-judgment interest and

costs. (Id. at 12–13.) The defendant asks the Court to dismiss the complaint for lack of subject

matter jurisdiction, insufficient service of process, and failure to state a claim. (ECF No. 23.)2

The defendant also filed a motion pursuant to New York’s anti-SLAPP law. (ECF No. 24.)

LEGAL STANDARD

“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.” Makarova v.

United States, 201 F.3d 110, 113 (2d Cir. 2000). “A plaintiff asserting subject matter jurisdiction

has the burden of proving by a preponderance of the evidence that it exists.” Id. “Where a

motion to dismiss asserts a lack of subject matter jurisdiction under Federal Rule of Civil

Procedure 12(b)(1) as well as other grounds for dismissal, ‘the court should consider the Rule

12(b)(1) challenge first.’” Burlington Ins. Co. v. MC&O Masonry, Inc., No. 17-CV-2892, 2018

WL 3321427, at *1 (E.D.N.Y. July 5, 2018) (quoting Rhulen Agency, Inc. v. Alabama Ins. Guar.

Ass’n, 896 F.2d 674, 678 (2d Cir. 1990)). “[I]n resolving a Rule 12(b)(1) motion, ‘a district

court . . . may refer to evidence outside the pleadings.’” Molokotos-Liederman v. Molokotos, No.

23-CV-1654, 2023 WL 5977655, at *5 (S.D.N.Y. Sept. 14, 2023) (quoting Makarova, 201 F.3d

at 113).

To survive a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, a complaint

must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.

2 The corporate defendant answered the complaint in October 2024. (ECF No. 16.)

v. Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed

factual allegations” are not required, “[a] pleading that offers ‘labels and conclusions’ or a

‘formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting Twombly,

550 U.S. at 555). Pleadings are construed in the light most favorable to the plaintiff. Hayden v.

Paterson, 594 F.3d 150, 160 (2d Cir. 2010).

DISCUSSION

I. Subject Matter Jurisdiction

The defendant argues that the Court lacks subject matter jurisdiction because the plaintiff

did not receive a “Letter to Sue” from the Equal Employment Opportunity Commission (EEOC).

(ECF No. 23 at 3.)3 The plaintiff responds that the defendant conflates the requirements for

Section 1981 lawsuits with the requirements for lawsuits pursuant to Title VII of the Civil Rights

Act of 1964. (ECF No. 30 at 8.) A plaintiff seeking relief under Title VII must first file a

complaint with the EEOC, and receive a right to sue letter, before she can file a Title VII

complaint in federal court. That rule does not apply to a plaintiff seeking relief under Section

1981, as the plaintiff is in this case. See Commodari v. Long Island Univ., 89 F. Supp. 2d 353,

375 (E.D.N.Y. 2000), aff’d, 62 F. App'x 28 (2d Cir. 2003) (“It should be noted that § 1981 has

no administrative filing requirements.”); Campbell v. Grayline Air Shuttle, Inc., 930 F. Supp.

794, 801 (E.D.N.Y. 1996) (“[A]n employee may [] bring an action against an employer under

Section 1981 without exhausting Title VII’s administrative procedures.”); Brown v. Castleton

3 The defendant also argues that the plaintiff does not plead facts showing that the alleged discrimination

was a “but-for” cause of the challenged action, as required by Section 1981. (ECF No. 23 at 3–5.)

However, this argument relates to the plaintiff’s substantive claim and does not impact whether the

Court has subject matter jurisdiction.

State Coll., 663 F. Supp. 2d 392, 399 (D. Vt. 2009) (“[The plaintiff] was not required to exhaust

his administrative remedies before bringing the § 1981 lawsuit.”).4 Accordingly, the motion to

dismiss for lack of subject matter jurisdiction is denied.

II. Service of Process

The defendant also maintains that the plaintiff did not serve him properly, because an

“anonymous and unidentified server,” not the plaintiff, served the complaint on a “current female

employee,” who placed “the papers” on his office desk. (ECF No. 23 at 5–6.) The plaintiff

argues that service was proper under the federal rules, and that she also filed an affidavit of

service. (ECF No. 30 at 11–12.)5

Federal Rule of Civil Procedure 4(e), which governs service of process for federal

lawsuits, lists methods of service. As relevant here, Rule 4(e) provides that an individual “may

be served in a judicial district of the United States by: (1) following state law for serving

a summons in an action brought in courts of general jurisdiction in the state where the district

court is located or where service is made.” Fed. R. Civ. P. 4(e)(1). Under New York law, one of

the ways “[p]ersonal service upon a natural person shall be made” is:

(2) by delivering the summons within the state to a person of

suitable age and discretion at the actual place of business, dwelling

place or usual place of abode of the person to be served and by either

mailing the summons to the person to be served at his or her last

known residence or by mailing the summons by first class mail to

4 As the defendant notes, the plaintiff brings only one federal claim — the Section 1981 claim. However,

the Court has supplemental jurisdiction over the plaintiff’s state and city claims brought under the

NYSHRL and NYCHRL because they relate to the same conduct that forms the basis of the plaintiff’s

federal claim. See Baker v. MTA Bus Co., No. 18-CV-12231, 2023 WL 4896686, at *5 (S.D.N.Y. Aug.

1, 2023) (“The court exercises supplemental jurisdiction over plaintiff's claims brought under the

NYSHRL and NYCHRL pursuant to 28 U.S.C. § 1367(a), as these claims ‘form part of the same case or

controversy’ as plaintiff’s federal law claims.” (quoting 28 U.S.C. § 1367(a))).

5 The defendant appears to argue that the plaintiff “omi[tted] the server’s affidavit in her Proof of

Service,” but also says that the plaintiff “knew to include the Court’s Affidavit of Service itself.” (ECF

No. 23 at 5.) Regardless, the plaintiff filed affirmation of service for both the individual and corporate

defendants. (See ECF Nos. 5, 6.)

the person to be served at his or her actual place of business in an

envelope bearing the legend “personal and confidential” and not

indicating on the outside thereof, by return address or otherwise, that

the communication is from an attorney or concerns an action against

the person to be served, such delivery and mailing to be effected

within twenty days of each other; proof of such service shall be filed

with the clerk of the court designated in the summons within twenty

days of either such delivery or mailing, whichever is effected later;

service shall be complete ten days after such filing; proof of service

shall identify such person of suitable age and discretion and state the

date, time and place of service . . .

New York Civil Practice Law and Rules (“CPLR”) § 308. “Actual place of business” includes

“any location that the defendant, through regular solicitation or advertisement, has held out as its

place of business.” Id.

The plaintiff met the service requirements under New York law. As the defendant

concedes, the plaintiff’s process server delivered the summons and complaint to an employee at

the defendant’s office, who placed the papers on his desk. (ECF No. 23 at 5–6.) The plaintiff

filed an affirmation of service, which identified the person served and the date and time of

service. (ECF No. 5.) The affirmation also states that in addition to personal service on a

“suitable person,” the process server also mailed a copy of summons and complaint to the

defendant’s office on the same day, which complied with CPLR § 308. (Id.) The “process

server’s affidavit establishes a presumption of proper service,” and the defendant has not

submitted a counter-affidavit “aver[ing] specific facts to rebut the process server’s affidavit.”

Templos v. Luna Cuisine, Inc., 738 F. Supp. 3d 325, 330 (E.D.N.Y. 2024).

III. Failure to State a Claim6

The defendant argues that the plaintiff does not state a claim under Section 1981, the

NYSHRL, or the NYCHRL. According to the defendant, the plaintiff does not allege a prima

6 The Court does not consider the defendant’s exhibits — customer service reviews (Exhibit 1), another

employee’s resignation (Exhibit 3), and the plaintiff’s paystubs (Exhibit 4) — because they are not

facie case of employment discrimination because she omits “other factors unrelated to [her] race,

religion, or sexual orientation;” he says that “her voluntary departure from employment” would

have still occurred because of “her own unprofessionalism and verbal misconduct towards

patients.” (ECF No. 23 at 7–8.) The defendant also argues that his “intentions behind the

statements” were “not directed to the Plaintiff individually and served only to relay their own

experiences also not having the same equal rights as ‘white citizens.’” (Id. at 8.)7 Finally, the

defendant asserts that the plaintiff’s allegations about the sick leave policy “did not translate to

actual loss of pay.” (ECF No. 23 at 8.) The plaintiff responds only that she alleged sufficient

facts to meet the “flexible” motion to dismiss standard, (ECF No. 30 at 12–13), and does not

address the standards for stating a claim under Section 1981, the NYSHRL, and the NYCHRL.

a. Race Discrimination Under Section 1981

Employment discrimination claims under Section 1981 are analyzed under the burden-

shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). “Under that framework, the plaintiff must first establish a prima facie case

of discrimination;” the burden then “shifts to the defendant to offer a legitimate,

nondiscriminatory reason for its actions,” and if the defendant satisfies its burden, “the burden

shifts back to the plaintiff to demonstrate that the proffered reason is pretextual.” Noh v.

Admarketplace, Inc., No. 24-CV-2107, 2025 WL 965882, at *7 (S.D.N.Y. Mar. 28, 2025) (citing

McDonnell Douglas Corp. 411 U.S. at 802–03). While the plaintiff must ultimately “prove that

the defendant acted with discriminatory motivation,” at the pleading stage, “the facts alleged

“appended to the complaint,” “incorporated in the complaint by reference,” or “integral to the

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

7 The defendant says that the etymology of “black,” “Israelite,” and “Jewish” shows that it is antisemitic

and racist to identify as a Black, Jewish bisexual Israelite, so he could not have discriminated against the

plaintiff. (ECF No. 23 at 8–12.)

must merely ‘give plausible support to the reduced prima facie requirements that arise

under McDonnell Douglas in the initial phase’ of the case.” Id. (quoting Littlejohn v. City of

New York, 795 F.3d 297, 307 (2d Cir. 2015)). The question on a motion to dismiss is therefore

“whether the plaintiff has adequately pleaded a prima facie case.” Id.

To plead a prima facie case under Section 1981, a plaintiff must allege “(1) that she is a

member of a protected class; (2) that she was qualified for employment in the position; (3) that

she suffered an adverse employment action; and, in addition, [she] has (4) some minimal

evidence suggesting an inference that the employer acted with discriminatory motivation.”

Kiseleva v. Greenspan, 755 F. Supp. 3d 367, 377 (S.D.N.Y. 2024) (quoting Littlejohn, 795 F.3d

at 307). “To survive a Rule 12(b)(6) motion to dismiss, ‘a plaintiff must allege that the employer

took adverse action against her at least in part for a discriminatory reason, and she may do so by

alleging facts that directly show discrimination or facts that indirectly show discrimination by

giving rise to a plausible inference of discrimination.’” Id. (quoting Vega v. Hempstead Union

Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015)).

The plaintiff has stated a claim for race discrimination under Section 1981. The plaintiff

alleges that she is a member of a protected class because she identifies as a Black woman. (ECF

No. 1 ¶ 21.) See Kiseleva, 755 F. Supp. 3d at 378 (“Although Section 1981 does not reference

‘race’, the Supreme Court has construed it as forbidding racial discrimination and has defined

racial discrimination covered by the statute to include discrimination based on ‘ancestry or ethnic

characteristics.’”). The defendant does not contest that the plaintiff was qualified for her

position, and she alleges that she “performed her duties in an exemplary manner.” (ECF No. 1

¶ 15.)

With respect to the third element, the only adverse employment action that the plaintiff

alleges is constructive discharge. (Id. ¶¶ 1, 35.) See Noh, 2025 WL 965882, at *7

(“Adverse employment actions include discharge from employment. Such a discharge may be

either an actual termination of the plaintiff's employment by the employer or a

constructive discharge.” (citation omitted)).8 “To prove adverse employment action based on

constructive discharge, a plaintiff must show that rather than discharging her directly, her

employer intentionally created a work atmosphere so intolerable that she was forced to quit

involuntarily.” Id. (cleaned up). “Work conditions are intolerable if they are so difficult or

unpleasant that a reasonable person in the employee’s shoes would have felt compelled to

resign.” Pryor v. Jaffe & Asher, LLP, 992 F. Supp. 2d 252, 262 (S.D.N.Y. 2014) (cleaned up).

“Dissatisfaction with work assignments,” “routine disagreements with supervisors,” and “mild

criticisms” are “insufficient to establish the sort of intolerable working conditions necessary to

a constructive discharge claim[].’” Nazon v. Time Equities, Inc., No. 21-CV-8680, 2022 WL

18959570, at *15 (S.D.N.Y. Nov. 22, 2022) (quoting Pfizenmayer v. Hicksville Pub. Sch., No.

15-CV-6987, 2017 WL 5468319, at *9 (E.D.N.Y. Jan. 24, 2017)), report and recommendation

adopted, No. 21-CV-8680, 2023 WL 1516905 (S.D.N.Y. Feb. 3, 2023).

The plaintiff alleges that the defendant called Jews “pedophiles” and “Nazis” (ECF No. 1

¶ 22), said that “those who identify as LGBTQ had been raped and in turn became rapists

themselves” (id.), sent the plaintiff a “pornographic Satanic symbol, which included a graphic

image of male genitalia” (id. ¶ 24), said that the plaintiff’s people — the Jewish people —

8 The plaintiff also alleges that the defendant “invoke[d] a retaliatory sick leave policy,” under which she

got paid less if she took sick days “for personal time off;” the defendant would only pay the “normal

rate” if the plaintiff gave him a doctor’s note. (ECF No. 1 ¶ 18.) However, the plaintiff does not allege

that the policy was an adverse employment action. Moreover, the plaintiff does not say anything else

about the “sick leave policy” in her complaint or in opposing the motion to dismiss.

“worshipped cats” (id. ¶ 26) and were “always fleeing a god they think doesn’t exist with their

little brain (dicks) right down to the most satanic orgy ever” (id. ¶ 28), and that frogs in the office

fish tank “are from Madagascar, which is by Africa, so they probably recognize” the plaintiff (id.

¶ 30). These allegations are sufficient at the motion to dismiss stage, since they describe work

conditions that “are so difficult or unpleasant that a reasonable person in the employee’s shoes

would have felt compelled to resign.” Pryor, 992 F. Supp. 2d at 262. The defendant’s alleged

comments about the plaintiff’s race are also sufficient to suggest that the defendant “acted with

discriminatory motivation.” Kiseleva, 755 F. Supp. 3d at 377.

b. NYSHRL and NYCHRL Claims

i. Hostile Work Environment

The plaintiff brings claims for hostile work environment based on racial, religious, and

sexual orientation discrimination under both the NYSHRL and NYCHRL. The standard for

stating a claim for hostile work environment under the NYSHRL used to be the same as the

standard for claims under Title VII of the Civil Rights Act of 1964 — a plaintiff had to show that

“the workplace is permeated with discriminatory intimidation, ridicule, and insult that is

sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an

abusive working environment.” Thomson v. Odyssey House, No. 14-CV-3857, 2015 WL

5561209, at *13 (E.D.N.Y. Sept. 21, 2015), aff’d, 652 F. App’x 44 (2d Cir. 2016) (quoting

Littlejohn, 795 F.3d at 320). However, in August 2019, “the NYSHRL was amended to direct

courts to construe the NYSHRL, like the NYCHRL, ‘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 [the NYSHRL] have been so

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

(quoting N.Y. Exec. Law § 300). Critically, the amendment “eliminate[d] the ‘severe or

pervasive’ requirement in favor of a more lenient standard of liability.” Mayorga v. Greenberg,

No. 22-CV-387, 2023 WL 6307994, at *8 (E.D.N.Y. Sept. 28, 2023). A plaintiff “need only

allege that she was subjected to ‘inferior terms, conditions or privileges of employment because

of the individual’s membership in one or more of the[ ] protected categories.’” Id. (quoting N.Y.

Exec. L. § 296(1)(h)).

The plaintiff alleges that she “was subjected to inappropriate and illegal comments

anywhere from three to four times a week;” the defendant made inappropriate comments about

Jewish people on “multiple occasions during the work week”, and he “routinely” made

comments about LGBTQ people. (ECF No. 1 ¶¶ 21–22.) The plaintiff also alleges that the

defendant sent her “graphic” and “sexually inappropriate” text messages, which were

“unprovoked.” (Id. ¶¶ 24, 26.) The plaintiff told the defendant that she was taking a sick day

because “she was too offended to be in his presence at work.” (Id. ¶ 27.) Nevertheless, the

defendant continued to send “inappropriate” messages in a work group chat and made a “racially

discriminatory” comment to the plaintiff in the office (id. ¶¶ 28, 30), conduct that continued for

at least eight months (id. ¶¶ 20, 33). These allegations are sufficient. See Mayorga, 2023 WL

6307994, at *9 (allegations of “multiple instances of the defendant’s discriminatory, offensive,

and sexually harassing behavior that he regularly targeted at the plaintiff” “easily satisfie[d] the

NYSHRL” (cleaned up)); Lewis v. Roosevelt Island Operating Corp., 246 F. Supp. 3d 979, 990

(S.D.N.Y. 2017) (“numerous racially-charged statements” and a “pattern of facially neutral

comments and practices,” “taken together” stated a claim for hostile work environment); La

Grande v. DeCrescente Distrib. Co., 370 F. App’x 206, 210–211 (2d Cir. 2010) (plaintiff “stated

a plausible race-based hostile work environment claim sufficient to survive dismissal” where he

alleged numerous racial comments and was threatened with termination after reporting the

comments).

“The standard to prevail on a hostile work environment claim under the NYCHRL is

lower than the state and federal counterparts;” the plaintiff must show only “unequal treatment

based upon membership in a protected class.” Gurley v. David H. Berg & Assocs., No. 20-CV-

9998, 2022 WL 309442, at *5 (S.D.N.Y. Feb. 2, 2022) (citations omitted). “In other words, a

plaintiff must show that she was treated less well because of discriminatory intent.” Id. (citation

omitted); see also Lenart v. Coach Inc., 131 F. Supp. 3d 61, 69 (S.D.N.Y. 2015) (“[A]ll that is

generally required under the NYCHRL is that the plaintiff proffer evidence of unwanted gender-

based conduct.” (citations omitted)). The plaintiff’s allegations about the defendant’s comments

about her Jewish faith, sexual orientation, and race meet the lower standard under the NYCHRL.

See Quintero v. Angels of the World, Inc., No. 19-CV-6126, 2021 WL 4464123, at *9 (E.D.N.Y.

Sept. 10, 2021), report and recommendation adopted sub nom. Quintero v. Stoupas, No. 19-CV-

6126, 2021 WL 4463488 (E.D.N.Y. Sept. 29, 2021) (“Because plaintiff has adequately pled a

claim for hostile work environment . . . under . . . the NYSHRL, she has also done so under the

NYCHRL.”).

ii. Constructive Discharge

“The standard for a constructive discharge claim under the NYCHRL is similar to the

federal and NYSHRL standard.” Gonzalez v. N.Y.C. Health & Hosp. Corp., No. 18-CV-2645,

2019 WL 2435622, at *9 (S.D.N.Y. June 11, 2019). “‘To prevail on a claim of constructive

discharge’ under the NYCHRL, ‘the plaintiff must prove that the employer deliberately created

working conditions so intolerable, difficult or unpleasant that a reasonable person would have

felt compelled to resign.’” Id. (quoting Tulino v. Ali, 15-CV-7106, 2019 WL 1447134, at *3

(S.D.N.Y. Feb. 27, 2019)). As explained above, the plaintiff sufficiently pled constructive

discharge as an adverse employment action with respect to her Section 1981 claim. The

complaint therefore also meets the standards under the NYSHRL and NYCHRL.

IV. Anti-SLAPP

The defendant also brings a motion pursuant to New York’s anti-SLAPP law. (ECF No.

24.) He argues that if the Court dismisses the plaintiff’s complaint, it should impose sanctions

on the plaintiff for violating his first amendment rights. (Id. at 1.) Although the defendant’s

argument is not entirely clear, he appears to dispute that he “ever associated the entire Jewish

Diaspora with ‘Satanic’ ‘pedophiles;’” he says the plaintiff “concocted” this claim “solely via

her amalgamation of selective knowledge and confirmation bias from continuations of intra-

office discussions.” (Id. at 1–2.) He also argues that the plaintiff violated his right to “public

participation in expressing his science-based postulates . . . as a spiritual Egyptian Gnostic

Hebrew.” (Id. at 2.)9 He seeks $22,500, which he says cover his “incurred costs of retaining

legal counsel in order to answer the bad faith litigation and professional misconduct” of the

plaintiff’s counsel. (Id. at 15.)10

“‘SLAPP’ is an acronym for ‘strategic lawsuits against public participation.’” Carroll v.

Trump, 590 F. Supp. 3d 575, 580 (S.D.N.Y. 2022). New York is one of multiple states that have

enacted anti-SLAPP laws, which “are intended to deter actions filed to punish or harass a

defendant for participating in public life.” Id. In 2020, the New York state legislature amended

9 The defendant devotes three pages of his motion to describing the origins and principles of “Egyptian

Gnostics.” (ECF No. 24 at 2–4.)

10 In his reply brief, the defendant says that in addition to the $22,500, he is owed $7,000 in “retainer

costs” and $42,414.50 related to an “eviction petition” and “any additional costs needed to answer

potential litigation from” other employees, and costs related to “the need to continue retaining counsel”

for the corporate defendant. (ECF No. 31 at 18.) However, “it is well settled that pro se litigants are

not entitled to attorneys’ fees.” Alcoa, Inc. v. ATM, Inc., No. 04-CV-5225, 2008 WL 5115031, at *1

(E.D.N.Y. Dec. 3, 2008).

its anti-SLAPP laws “to broaden the applicable standards and to provide additional procedural

rights to make those standards more effective.” Id. New York’s anti-SLAPP regime “is codified

across two sections of the New York Civil Rights Law” — Sections 70-a and 76-a — and “two

subdivisions of the New York” CPLR — CPLR 3211 and 3212. Heilbut v. Cassava Scis., Inc.,

778 F. Supp. 3d 551, 564 (S.D.N.Y. 2025). Sections 70-a provides that “a defendant in an action

involving public petition and participation, . . . may maintain an action, claim, cross claim or

counterclaim to recover damages, including costs and attorney’s fees, from any person who

commenced or continued such action.” N.Y. Civ. Rights Law § 70-a(1).11 “A claimant’s

required showing under this provision depends on” whether the claimant seeks (a) “costs and

attorney’s fees,” (b) “other compensatory damages,” or (c) “punitive damages.” Heilbut, 778 F.

Supp. 3d at 565 (quoting N.Y. Civ. Rights Law § 70-a(1)). A claimant who seeks costs and

attorney’s fees must demonstrate, “that the action involving public petition and participation was

commenced or continued without a substantial basis in fact and law and could not be supported

by a substantial argument for the extension, modification or reversal of existing law.” Id.

CPLR 3211 and 3212, the “procedural provisions of the anti-SLAPP law,” “are designed

to facilitate the early dismissal of ‘baseless SLAPP suits’ by ‘flip[ping] the burden of proof

ordinarily applied’ under state law to motions to dismiss and motions for summary judgment.”

Id. (quoting Reeves v. Associated Newspapers, Ltd., 232 A.D.3d 10 (1st Dep’t 2024)). As

amended, CPLR 3211(g) applies “when a defendant moves to dismiss a purported SLAPP action

for failure to state a claim;” it “creates an accelerated summary dismissal procedure” where, if

the movant demonstrates that the action “involve[es] public petition and participation,” “the

11 Section 76-a of the New York Civil Rights Law “supplies the definition of an ‘action involving public

petition and participation,’ which the 2020 amendments ‘substantially expanded.’” Heilbut, 778 F.

Supp. 3d at 565 (quoting Gottwald v. Sebert, 40 N.Y.3d 240 (2023)).

burden then shifts to the nonmovant to demonstrate that it has a substantial basis in law or is

supported by a substantial argument for an extension, modification or reversal of existing law.”

Id. (citations omitted).12

Courts in this Circuit are divided over whether New York’s anti-SLAPP laws apply in

federal court. Some courts have held that New York’s anti-SLAPP laws do not apply in federal

court under the Erie doctrine, because New York’s anti-SLAPP “substantial basis” standard

conflicts with the pleading standard in the Federal Rules of Civil Procedure. See e.g. Nat’l Acad.

of Television Arts & Scis., Inc. v. Multimedia Sys. Design, Inc., 551 F. Supp. 3d 408, 431

(S.D.N.Y. 2021) (finding that the “substantial basis” standard conflicts with Federal Rule of

Civil Procedure 12, pursuant to which a plaintiff “need only allege enough facts to state a claim

to relief that is plausible on its face” (citation omitted)); Ginx, Inc. v. Soho All., 720 F. Supp. 2d

342, 366 (S.D.N.Y. 2010), as corrected (Aug. 19, 2010) (“New York’s legislature may have

adopted the Anti-SLAPP law to elevate a plaintiff's burden at the pleading stage above

‘plausibility’ . . . to ‘substantial basis,’ but the United States Congress has thus far declined to

follow suit.”). Other courts have distinguished the procedural and substantive elements of New

York’s anti-SLAPP laws and concluded that federal courts can apply the substantive elements.

See e.g., Bobulinski v. Tarlov, 758 F. Supp. 3d 166, 183 (S.D.N.Y. 2024) (the “only procedural

rule that the Court is applying is a federal rule: Rule 12(b)(6)” and “the only element of New

York’s anti-SLAPP law that the Court is applying is substantive”); Heilbut, 778 F. Supp. 3d at

567 (acknowledging that “New York’s anti-SLAPP law contains provisions with procedural

effects that appear to conflict with Rules 12 and 56” but finding that it “also provides for a

substantive cause of action . . . that allows SLAPP defendants to ‘bring an affirmative anti-

12 “CPLR 3212(h), which the 2020 amendments left unchanged, applies a similar burden-shifting

framework to motions for summary judgment.” Heilbut, 778 F. Supp. 3d at 565.

SLAPP suit’ for damages without reliance on state procedural rules” (quoting Margolies v.

Rudolph, No. 21-CV-2447, 2022 WL 2062460, at *9 (E.D.N.Y. June 6, 2022)).

The Court does not weigh in on this question, because the defendant’s motion is premised

on dismissal of the complaint. As explained above, the Court denies the motion to dismiss. The

defendant’s anti-SLAPP motion is thus also denied.

CONCLUSION

The defendant’s motion to dismiss and anti-SLAPP motion are denied.

SO ORDERED.

_ _ s_/_A_n_n_ _M_._ D_o_n_n_e_l_ly___________

ANN M. DONNELLY

United States District Judge

Dated: Brooklyn, New York

August 25, 2025