DiPiano v. The New York City Department of Education

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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DIANA DIPIANO, :

: MEMORANDUM DECISION AND

Plaintiff, : ORDER

:

- against - : 24-cv-4901 (BMC)

:

THE NEW YORK CITY DEPARTMENT :

OF EDUCATION and THE CITY OF NEW :

YORK, :

:

Defendants. :

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COGAN, District Judge.

Plaintiff alleges that defendants subjected her to discrimination, retaliation, and a hostile

work environment because of her sex and sexual orientation. Before the Court is defendants’

motion for summary judgment. For the reasons set forth below, defendants’ motion is granted in

part and denied in part.

BACKGROUND

Plaintiff began working for the New York City Department of Education (“DOE”) in

2010 as a special education teacher. From Fall 2018 to Spring 2023, plaintiff worked as a

behavior coach at P.S. K004 (“P4k”), a school network in District 75. Plaintiff maintained an

office at Site 667 (“P.S. 667”) during the 2021-2022 and 2022-2023 school years but, as an “out-

of-classroom” instructor, worked with teachers all over the district and responded to incidents at

all sites within the district. For the 2021-2022 and 2022-2023 school years, the principal for all

P4k sites was Rebecca Schropfer, and the assistant principal for P.S. 667 was Pamela Duarte.

Beginning in Fall 2021, Duarte would remark, to plaintiff and others, that plaintiff

“look[ed] like a gym teacher” and wore outfits that were “gym type like.” She continued to

make these comments throughout the 2021-2022 and 2022-2023 school years. In January 2022,

plaintiff was supervising hallway lunch with Schropfer, Duarte, and two other coworkers when

Schropfer told Duarte, “Pam, I think my boobs smell. Smell them.” Supposedly, she had spilled

something on her shirt. Duarte responded, “[E]w, Dip’s gay, you [plaintiff] do it.” Although

plaintiff is gay, at that time, she had not come out to her coworkers.

From the winter of 2022 until the end of the 2022-2023 school year, Duarte would tell

plaintiff, while gagging, that she didn’t know how gay people – or plaintiff – did “it,” would say

how messy “it” is and that she was disgusted by it, and would announce that she personally was

“strictly dickly.” Duarte made the “strictly dickly” comment twenty or more times during this

period. Plaintiff never confronted Duarte, but she told Schropfer in passing that Duarte was

distasteful, unprofessional, and rude.

In August 2022, while plaintiff was a classroom teacher for the Summer 2022 session,

Duarte placed paraprofessional Jennings in plaintiff’s classroom as a substitute for plaintiff’s

absent paraprofessional. Plaintiff had previously seen Jennings working at P4k and had become

aware of several uncomfortable interactions between him and female co-workers, including

asking female coworkers for hugs and dates. During one of plaintiff’s lessons, Jennings sat in

plaintiff’s line of view and proceeded to eat an ice cream sandwich in a manner that plaintiff

interpreted as suggestive of oral sex (the “August 4, 2022 Jennings incident”) – an interpretation

which Jennings denied when plaintiff removed him from the classroom. Plaintiff does not know

why Jennings was placed in her classroom that day as opposed to a different paraprofessional.

Plaintiff spoke to Duarte after the incident, who told plaintiff there was nothing she could do

about it. But Jennings was never again placed in plaintiff’s classroom.

In January 2023, plaintiff learned in a meeting with Duarte and Schropfer that she would

be substituting for a gym teacher at P.S. 81. This gym teacher assignment lasted two to three

months. Then, in May 2023, Duarte assigned plaintiff a substitute gym teacher role at P.S. 667.

Save for a brief return to her behavior coach role around March/April 2023, plaintiff was a

substitute gym teacher from January 2023 through May 2023 for approximately three to four

months total. Out-of-classroom instructors such as plaintiff received substitute assignments

before classroom teachers, and plaintiff’s employment contract stated that she might need to

substitute for five periods a week. Although plaintiff did not have a physical education license,

she did not need one to substitute for the gym teachers on a temporary basis.

On May 30, 2023, plaintiff filled out a preference sheet for the 2023-2024 school year,

ranking her top three preferences for school site location and student-teacher-paraprofessional

ratio. Plaintiff and other P4k instructors completed this form each year. The preferences were

not binding on school administrators, and there was no guarantee that an instructor would receive

any of her three preferences. Plaintiff identified her preferences as, in order: (1) P.S. 667 and an

8:1:1 ratio; (2) P.S. 667 and a 12:1:1 ratio; and (3) P.S. 667 and an 8:1:1 ratio. A June 2023

tentative organization sheet placed plaintiff at P.S. 667 with an 8:1:1 ratio. But in August 2023,

Duarte informed plaintiff that her official placement would be at P.S. 65 with a 6:1:1 student-

teacher-paraprofessional ratio.

Plaintiff complained to the new principal of P4k, Ashley Hodge,1 about her placement at

P.S. 65. In an introductory email to Hodge, plaintiff questioned the decision while

acknowledging that placement decisions “must be made based on site/student need.” Hodge met

with plaintiff and plaintiff’s union representative on September 9, 2023 to discuss the issue

1 Principal Schropfer resigned in June 2023, after the tentative organization sheet was distributed. Hodge replaced

Schropfer in August 2023, a few weeks before the official organization sheet was distributed.

further. At this meeting, plaintiff told Hodge, among other things, that she believed her

placement at P.S. 65 was a result of Duarte discriminating against her because of her sexual

orientation. Hodge asked plaintiff whether she was familiar with DOE’s Office of Equal

Opportunity and Diversity Management (“OEO”). She then reminded plaintiff that she should

be making formal complaints to OEO, given that plaintiff’s allegations concerned matters that

occurred before Hodge became principal. Plaintiff was ultimately placed at P.S. 65 with a 6:1:1

student-teacher-paraprofessional ratio for the 2023-2024 school year.

On September 7, 2023, a day prior to the meeting with Hodge, plaintiff made a complaint

to the Special Commission for Investigations (“SCI”) alleging sexual orientation discrimination

and hostile work environment against Duarte. SCI forwarded this complaint to OEO. On

September 17, 2023, plaintiff made a complaint to OEO directly, again alleging discrimination

against Duarte.2 On September 21, 2023, plaintiff filed a notice of claim with defendants in

connection with her allegations in this case. Finally, on October 16, 2023, plaintiff filed a charge

of discrimination with the EEOC, alleging sex discrimination and retaliation.

In November 2023, while plaintiff was teaching at P.S. 65, Assistant Principal Valerie

Edouard visited plaintiff’s classroom for an informal evaluation. Edouard had become assistant

principal the month prior. After the evaluation, plaintiff complained to her union representative

that Edouard improperly conducted the evaluation without a paraprofessional present. As a

result, Hodge removed the evaluation from plaintiff’s file and had Edouard conduct a new

evaluation a few days later. In that evaluation, Edouard ranked plaintiff as “developing” or

ineffective” in five out of the eight categories.

2 OEO administratively closed plaintiff’s referred and direct OEO complaints upon learning that plaintiff had filed a

parallel complaint with the EEOC. OEO then referred the matter to DOE’s Office of the General Counsel.

In May 2024, plaintiff was involved in an altercation with paraprofessional Laspina.

Plaintiff confronted Laspina because plaintiff had heard rumors that Laspina was telling other

paraprofessionals not to trust her. Things escalated, culminating with plaintiff calling the police

and filing a police report. After the altercation, Laspina texted a coworker and said, among other

things, “I’m going to smoke that dyke bitch.” Plaintiff alerted Hodge and Edouard via email

about the incident and submitted a complaint to SCI, reporting Laspina’s alleged threats.

Laspina was removed from P.S. 65 shortly thereafter and Hodge submitted a “Do Not Use” form

for him, notifying the District that Laspina was not to return to P4k. Meanwhile, Assistant

Principal Byrdsong investigated the incident.

On May 31, 2024, the EEOC issued plaintiff a right-to-sue letter in connection with her

EEOC complaint against defendants. On July 15, 2024, plaintiff commenced the instant action.

On January 8, 2025, after interviews with plaintiff and four witnesses, Byrdsong issued

his report on the Laspina incident. He concluded that plaintiff and Laspina “got involved in an

extremely heated verbal altercation in front of students.” On January 21, 2025, Hodge issued a

non-file letter for plaintiff, substantiating Byrdsong’s report and finding that plaintiff engaged in

inappropriate and/or unprofessional behavior.

LEGAL STANDARD

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is

warranted where the “movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court must

view all facts in the light most favorable to the nonmoving party. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144,

158-59 (1970)). There is no genuine issue of material fact “where the record taken as a whole

could not lead a rational trier of fact to find for the non-moving party.” Lovejoy-Wilson v.

NOCO Motor Fuel, Inc., 263 F.3d 208, 212 (2d Cir. 2001) (citing Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

A party may not defeat a motion for summary judgment solely through “unsupported

assertions” or conjecture. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d

Cir. 1995). Rather, “‘[t]he nonmoving party must come forward with specific facts showing that

there is a genuine issue for trial.’” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002)

(quoting Matsushita, 475 U.S. at 586-87); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir.

2003) (“Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for

summary judgment when the moving party has set out a documentary case.”); Rexnord

Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). Indeed, the non-moving party

must offer “concrete evidence from which a reasonable juror could return a verdict in [her]

favor.” Anderson, 477 U.S. at 256.

The Second Circuit has instructed district courts to be wary of granting summary

judgment in employment discrimination cases where the employer’s intent is at issue. See Gallo

v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994). “[W]ritings

directly supporting a claim of intentional discrimination are rarely, if ever, found among an

employer’s corporate papers,” so “affidavits and depositions must be carefully scrutinized for

circumstantial proof which, if believed, would show discrimination.” Id. But “even in the fact-

intensive context of discrimination cases,” summary judgment may be appropriate.

Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001). Accordingly, the

function of the court on a motion for summary judgment in an employment discrimination case

“is to determine whether the ‘proffered admissible evidence shows circumstances that would be

sufficient to permit a rational finder of fact to infer a discriminatory motive.’” Cronin v. Aetna

Life Ins. Co., 46 F.3d 196, 204 (2d Cir. 1995) (quoting Chambers v. TRM Copy Centers Corp.,

43 F.3d 29, 38 (2d Cir. 1994)).

I. Timeliness

A. Title VII

“Title VII requires that individuals aggrieved by acts of discrimination file a charge with

the EEOC within ... 300 days ‘after the alleged unlawful employment practice occurred.’”

Militinska-Lake v. Kirnon, No. 22-cv-2667, 2023 WL 7648511, at *3 (2d Cir. Nov. 15, 2023)

(summary order) (quoting Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 78-79 (2d Cir.

2015)). “‘Thus, only events that occurred during the 300-day period prior to filing ... are

actionable under Title VII.’” Hoffman v. Williamsville Sch. Dist., 443 F. App'x 647, 649 (2d Cir.

2011) (quoting Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir.1996)).

But under the “continuing violation” exception, “if a Title VII plaintiff files an EEOC

charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of

discrimination, all claims of acts of discrimination under that policy will be timely even if they

would be untimely standing alone.” Militinska-Lake, 2023 WL 7648511, at *3. “[A] continuing

violation may be found where there is proof of specific ongoing discriminatory polic[i]es or

practices, or where specific and related instances of discrimination are permitted by the employer

to continue unremedied for so long as to amount to a discriminatory policy or practice.”

Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994).

Plaintiff here filed her EEOC complaint on October 16, 2023, which means that discrete

acts that occurred before December 20, 2022 are not actionable under Title VII. Defendants

conclude that plaintiff cannot premise her Title VII discrimination, retaliation, or hostile work

environment claims on the January 2022 Schropfer incident or the August 4, 2022 Jennings

incident because these are discrete acts that occurred before December 20, 2022.

Plaintiff does not argue that the Jennings incident was an adverse action for purposes of

her discrimination or retaliation claims. Plaintiff also does not argue that the Jennings incident

contributed to a hostile work environment. Because plaintiff does not premise any of her claims

on the August 4, 2022 Jennings incident, the Court need not decide whether the incident is

actionable under Title VII.3

Defendants rely on far too narrow an interpretation of the continuing violation doctrine

with respect to the January 2022 Schropfer incident. Duarte’s offensive comments to plaintiff

are at the core of plaintiff’s hostile work environment claim. And although Duarte made such

comments before December 20, 2022, she certainly continued making them throughout the

timely period. Duarte’s conduct toward plaintiff in January 2022 – calling plaintiff gay and

outing her in front of coworkers – is “sufficiently similar” to her conduct toward plaintiff

throughout the timely period “to be considered part of a single policy.” See Dash v. Bd. of Educ.

of City Sch. Dist. of New York, 238 F. Supp. 3d 375, 389 (E.D.N.Y. 2017) (quoting Sotomayor v.

City of New York, 862 F.Supp.2d 226, 233 (E.D.N.Y. 2012), aff’d, 713 F.3d 163 (2d Cir. 2013)).

Accordingly, the January 2022 Schropfer incident is actionable as part of plaintiff’s hostile work

environment claim under Title VII.4

3 Nor could she. For the Jennings incident to form part of plaintiff’s hostile work environment claim, which relies

entirely on Duarte’s conduct, the Court would have to make two inferences that are not supported by the record: that

Duarte placed Jennings in plaintiff’s classroom to harass plaintiff, and that the way Jennings ate his ice cream was

suggestive of oral sex. But plaintiff’s only evidence is her own speculation about Duarte and Jennings’s

motivations.

4 As explained later, the January 2022 Schropfer incident also supports an inference of discriminatory animus with

respect to one of plaintiff’s discrimination claims. But whether the incident is timely with respect to the

discrimination claim is irrelevant because plaintiff is not alleging that the incident was an adverse action; rather, she

is offering it as circumstantial evidence of discrimination.

B. NYSHRL and NYCHRL

“[P]ursuant to New York Education Law §§ 3813(1), (2-b), a one-year statute of

limitations governs NYSHRL and NYCHRL claims against school districts[.]” Riccardo v. New

York City Dep’t of Educ., No. 16-cv-4891, 2016 WL 7106048, at *6 (S.D.N.Y. Dec. 2, 2016)

(citations omitted), report and recommendation adopted sub nom. United States v. New York

City Dep’t of Educ., No. 16-cv-4291, 2017 WL 57854 (S.D.N.Y. Jan. 4, 2017). Defendants

argue that “any SHRL or CHRL claims that accrued more than one year prior to July 15, 2024,”

when plaintiff filed her complaint in this case, “i.e. prior to July 15, 2023, are time-barred.”

Courts are divided regarding whether filing an EEOC complaint tolls the one-year statute

of limitations on NYSHRL and NYCHRL claims against school districts. See id. This Court

finds that there is “no apparent reason” that an EEOC complaint should toll the three-year statute

of limitations in NYSHRL and NYCHRL claims that are not against school districts and their

officers but not toll the one-year statute of limitations in NYSHRL and NYCHRL claims against

school districts and their officers. See id. at *7. Accordingly, the one-year statute of limitations

for NYSHRL and NYCHRL claims against school districts is tolled while an EEOC charge is

pending. See id.

“A complaint is pending before the EEOC during the period between the filing of an

EEOC charge and the issuance by the EEOC of a right-to-sue letter.” Id. at *7 (internal quotation

marks and citation omitted). Plaintiff filed her EEOC complaint on October 16, 2023 and

received a right-to-sue letter on May 31, 2024. On July 15, 2024, forty-five days after receiving

the right-to-sue letter, plaintiff filed her complaint in this case. Thus, claims that accrued on or

after November 30, 2022 – 320 days before plaintiff filed her EEOC complaint – are within the

one-year statute of limitations.

As a result, the only incidents that could theoretically be time-barred are Duarte’s “gym

teacher” comments to plaintiff before November 30, 2022 and the January 2022 Schropfer

incident. But the continuing violation doctrine saves these claims. The NYSHRL’s continuing

violation doctrine “mirrors that of Title VII,” although the NYCHRL’s continuing violation

doctrine is “more generous.” Taylor v. City of New York, 207 F. Supp. 3d 293, 302 (S.D.N.Y.

2016). The Court has already held that the January 2022 Schropfer incident is part of a

continuing violation under Title VII, so claims premised on this incident are timely under the

NYSHRL’s same standard and the NYCHRL’s more generous standard. The Court further holds

that any of Duarte’s “gym teacher” comments that occurred before November 30, 2022 are also

timely under the NYSHRL and NYCHRL as part of that same continuing violation. Duarte

repeatedly made these comments throughout the timely period. And, as explained later, a

reasonable person could infer that these comments were rooted in Duarte’s discriminatory

stereotypes about how women should look and how lesbian women do look and act, particularly

in the context of Duarte’s more direct comments about lesbian sex.

II. Discrimination

Plaintiff’s sex and sexual orientation discrimination claims under Title VII, the NYSHRL,

and the NYCHRL are analyzed under the three-step burden shifting framework set forth by the

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Montgomery v.

New York City Transit Auth., No. 17-cv-6522, 2019 WL 1258482, at *3 (S.D.N.Y. March 19,

2019), aff’d, 806 F. App’x 27 (2d Cir. 2020).

The plaintiff must first establish a prima facie case of discrimination. Tex. Dep’t of

Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). If the plaintiff satisfies her prima facie

case, there is an inference of discrimination which shifts the burden to the defendant to proffer a

legitimate, nondiscriminatory business rationale to justify its adverse employment action. Id. at

253 (citing McDonnell Douglas, 411 U.S. at 802-03). If the defendant satisfies its burden, the

burden shifts back to the plaintiff to raise a factual issue that the defendant’s offered reasons

were a pretext for discrimination, or that her prima facie case, even when considered against the

defendant’s evidence, is sufficiently compelling that a jury could reasonably find that she was

discriminated against because of her class membership. See Bonaffini v. City Univ. of New

York, 751 F. Supp. 3d 67, 74 (E.D.N.Y. 2024). In determining whether the plaintiff has met this

burden, the court must take a “case-by-case” approach that weighs “‘the strength of the

plaintiff’s prima facie case, the probative value of the proof that the employer’s explanation is

false, and any other evidence that supports or undermines the employer’s case.’” James v. N.Y.

Racing Ass’n, 233 F.3d 149, 156 (2d Cir. 2000) (cleaned up) (quoting Reeves v. Sanderson

Plumbing Prods. Inc., 530 U.S. 133, 148-49 (2000)). “In short, the ultimate burden rests with the

plaintiff to offer evidence ‘sufficient to support a reasonable inference that prohibited ...

discrimination occurred.’” Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005)

(quoting James, 233 F.3d at 156).

As explained below, the Court grants summary judgment on plaintiff’s title VII,

NYSHRL, and NYCHRL claims premised on her placement at P.S. 65 for the 2023-2024 school

year, and denies summary judgment on plaintiff’s Title VII, NYSHRL, and NYCHRL

discrimination claims premised on her gym teacher assignments throughout January 2023 to May

2023.

A. Plaintiff’s Prima Facie Case

The following well-established four-factor test is used to determine whether there is a

prima facie case of discrimination: (1) plaintiff must belong to a protected class; (2) plaintiff

must have been qualified for the job; (3) plaintiff must have suffered an adverse employment

action; and (4) the circumstances surrounding the adverse employment action must give rise to

an inference of discrimination. See, e.g., Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir.

2000). In considering whether the plaintiff has made her prima facie showing, a court should

consider only the plaintiff’s proffered evidence, not the defendant’s evidence in response to it.

See id. Plaintiff’s burden at this stage is de minimis. See Weinstock v. Columbia Univ., 224 F.3d

33, 42 (2d Cir. 2000).

1. Adverse Employment Actions

It is undisputed that plaintiff belongs to a protected class and was qualified for her job.

As for adverse employment actions, plaintiff claims two: (1) her placement at P.S. 65 for the

2023-2024 school year and (2) her substitute gym teacher assignments throughout January 2023

to May 2023.

The Supreme Court’s decision in Muldrow v. City of St. Louis, 601 U.S. 346, 355 (2024),

clarified that a plaintiff alleging an adverse employment action under Title VII “does not have to

show ... that the harm was significant[] [o]r serious, or substantial, or any similar adjective

suggesting that the disadvantage to the employee must exceed a heightened bar.” (Internal

quotation marks and citation omitted). Instead, plaintiff need only show “some harm respecting

an identifiable term or condition of employment.” Id. The allegedly adverse action – in

Muldrow, the plaintiff’s transfer – “must have left her worse off, but need not have left her

significantly so.” Id. at 359. The Second Circuit recently held that Muldrow “overruled [Second

Circuit] precedent, which required that the changes to a term or condition of employment be

materially adverse.” Back v. Hapoalim, No. 24-cv-1064, 2024 WL 4746263, at *2 (2d Cir. Nov.

12, 2024) (citing Muldrow, 601 U.S. at 353, 353 n.1).5

5 As this Court has expressed previously, it is doubtful that Muldrow went that far. See Bonaffini v. City of New

York, 751 F. Supp. 3d 67, 75-77 (E.D.N.Y. 2024). Rather, Muldrow clarified the requirements of Title VII and

Pre-Muldrow, this Court held that a reassignment in the educational context would be

materially adverse only “if the new responsibilities [were] ‘materially less prestigious, materially

less suited to [a plaintiff’s] skills and expertise, or materially less conducive to career

advancement.’” See, e.g., Diaz v. Poly Prep Day Sch., No. 21-cv-6611, 2022 WL 2803259, at *6

(E.D.N.Y. July 18, 2022) (emphases added). Now, post-Muldrow, the term “materially” is

disfavored – courts must make more precise measurements of the actual harm suffered.

Consequently, to satisfy the third element of her prima facie case of Title VII discrimination,

plaintiff must show only that the allegedly adverse assignments – the teaching role at P.S. 65 for

the 2023-2024 school year and the substitute gym teaching roles throughout January 2023 to

May 2023 – were less prestigious, less suited to her skills and expertise, or less conducive to her

career advancement, thereby leaving her worse off with respect to an identifiable term or

condition of her employment.

Even with this more specific threshold, and viewing all evidence in the light most

favorable to plaintiff, plaintiff’s placement at P.S. 65 for the 2023-2024 school year was not an

adverse action. It is undisputed that plaintiff completed a preference sheet regarding her

assignment for the 2023-2024 school year. It is also undisputed that plaintiff did not identify P.S.

65 as her preferred school site or 6:1:1 as her preferred student-teacher-paraprofessional ratio in

any of her three listed preferences. But plaintiff was not entitled to receive any of her

preferences. And the fact that plaintiff historically always received one of her preferences did

instructed the lower courts against using qualifiers like “material” and “significant” to construe the scope of adverse

employment actions more narrowly than Title VII envisions. Id. at 75. As this Court noted in Bonaffini, the problem

was that terms like “material” and “significant” had been so narrowly construed by other Circuits that even

egregious harm did not fall within them. If one drills down into the facts of the Second Circuit cases, in contrast, one

sees that had never been a problem in the Second Circuit – the Second Circuit cases cited in Muldrow were fully

consistent with the standard Muldrow announced, even though those Second Circuit cases used terms like “material”

and “significant.” This Court believes, therefore, that the proper interpretation of Muldrow is to convey caution to

lower courts not to apply too exacting a standard in determining whether harm rises to the level of an adverse

employment action, regardless of the adjective used.

not entitle her to continue receiving her preference, or even make it more likely than not that she

would continue receiving her preference. Finally, working as an in-classroom teacher at P.S. 667

was not a term or condition of plaintiff’s employment, as is quite clear from the fact that prior to

the 2023-2024 school year, plaintiff was an out-of-classroom behavior coach (with no student-

teacher-paraprofessional ratio at all). For these reasons, plaintiff cannot show any harm relating

to an identifiable term or condition of employment.

Even if plaintiff were able to show that the placement at P.S. 65 affected an identifiable

term or condition of her employment, she does not show how the placement was less prestigious,

less suited to her skills and expertise, or less conducive to her career advancement. Plaintiff

points to several reasons why being a teacher at P.S. 65 with a 6:1:1 ratio was worse than being a

teacher at P.S. 667 with an 8:1:1 or 12:1:1 ratio – but she is making the wrong comparison.

Plaintiff was “transferred” from a behavior coach role at P.S. 667 to a teaching role at P.S. 65.

All that matters, then, is whether the P.S. 65 location left plaintiff worse off when compared to

the P.S. 667 location. The only argument plaintiff makes regarding the school sites is that they

“entailed different geographic locations.” Plaintiff does not show how working at a different

geographic location, by itself, made her worse off. Therefore, plaintiff’s Title VII claims

premised on her placement at P.S. 65 for the 2023-2024 school year fail for lack of an adverse

action.

Before the NYSHRL’s amendment in June 2019, employment discrimination claims

under the NYSHRL were historically “analyzed identically to claims under Title VII” – meaning

that a plaintiff had to show that the action alleged to be adverse was materially so. See Desiderio

v. Hudson Techs., Inc., No. 22-cv-0541, 2025 WL 1285278, at *9 (S.D.N.Y. May 2, 2025)

(internal quotation marks and citations omitted). Although this amendment made clear that

NYSHRL claims should be analyzed separately from, and more liberally than, Title VII claims,

“it is as of yet unclear whether these two standards are co-extensive, or whether the NYSHRL

requires something in between federal and local law for discrimination claims.” Nezaj v. PS450

Bar & Rest., 719 F. Supp. 3d 318, 335 n.3 (S.D.N.Y. 2024) (citation omitted). Courts have

consistently recognized that the amended NYSHRL standard has, at least, “come closer” to the

NYCHRL standard, under which a plaintiff must show that she was treated “less well” because

of discriminatory intent. See Desiderio, 2025 WL 1285278, at *9. The Court need not determine

the NYSHRL standard for the purpose of evaluating plaintiff’s discrimination claim relating to

her placement at P.S. 65 because the claim fails even under the NYCHRL’s more liberal

standard. As explained above, plaintiff does not show how the placement at P.S. 65 instead of

P.S. 667 constituted “less well” treatment.

Plaintiff has, however, shown that her substitute gym teacher assignments throughout

January 2023 to May 2023 were adverse employment actions under Title VII and the less-

stringent NYSHRL and NYCHRL. Plaintiff was pulled from her behavior coach position to fill

in as a gym teacher for a total time of three to four months. Plaintiff was not a gym teacher and,

given that she did not have a physical education license, apparently had no aspirations to become

a gym teacher. Although plaintiff’s contract indicated that she may need to cover five periods a

week of any subject, the contract seemingly did not anticipate that plaintiff would have to cover

gym periods for multiple months, sometimes at eight periods a day. A reasonable juror could

find that plaintiff’s frequent assignment to substitute gym teacher roles caused at least some

harm to her with respect to the terms and conditions of her employment.

2. Inference of Discrimination

Thus, only the substitute gym teacher assignments make it to the fourth element of

plaintiff’s prima facie discrimination case. “[T]he ‘ultimate issue’ in an employment

discrimination case is whether the plaintiff has met her burden of proving that an adverse

employment decision was motivated at least in part by an ‘impermissible reason.’” Diaz, 2022

WL 2803259, at *7 (quoting Vega Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir.

2015)). “A plaintiff can meet that burden through direct evidence of intent to discriminate or by

indirectly showing circumstances giving rise to an inference of discrimination.” Id.

“[I]nvidious comments about others in the employee’s protected group,” coupled with a

“showing that such comments perpetuated or were based on ... stereotypes,” may raise an

inference of discriminatory animus. Murphy v. Stonybrook Univ. Hosp., No. 20-cv-1298, 2022

WL 20527322, at *5 (E.D.N.Y. Sept. 13, 2022). It “takes no special training to discern

stereotyping” in the view that a lesbian woman wearing masculine or athletic clothing would be

a good gym teacher. See Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 120

(2d Cir. 2004). Here, it is reasonable to infer that Duarte believed plaintiff would make a good

gym teacher because of her stereotypes about how women should dress (i.e., femininely) and

how lesbian women are (i.e., masculine, interested in athletics).

To be clear, the “gym teacher” comments perhaps would not be enough, on their own, to

raise an inference of discriminatory intent (although it’s close, considering that Duarte made the

remarks on many occasions spanning two school years). But Duarte didn’t say only that plaintiff

looked like a gym teacher. Rather, beginning in January 2022 and through the end of the 2022-

2023 school year, Duarte continually made offensive, blatantly homophobic comments towards

plaintiff. She outed plaintiff in front of coworkers. She expressed disgust at lesbian sex and

feigned gagging. She repeatedly prodded how plaintiff and other lesbian women were able to do

“it.” She told plaintiff that she was “strictly dickly” at least twenty times. This is the

contemporaneous context which informs the Court’s, and plaintiff’s, understanding of Duarte’s

“gym teacher” comments as more than mere observations about plaintiff’s clothing. Plaintiff has

therefore established a prima facie case of discrimination under Title VII, the NYSHRL, and the

NYCHRL concerning the gym teacher assignments between January 2023 and May 2023.

B. Defendants’ Legitimate Reasons

Under the McDonnell-Douglas burden-shifting framework, the burden now shifts back to

defendants to show a legitimate non-discriminatory reason for assigning plaintiff to substitute

gym teacher roles in the winter and spring of 2023. Defendants are right that their burden of

production, like a plaintiff’s burden to show a prima facie case, “is not a demanding one” and

that they have met it. See Bickerstaff v. Vassar College, 196 F.3d 435, 446. The parties agree

that plaintiff’s contract stated that she may have to cover for others, and that out-of-classroom

instructors like plaintiff were assigned to cover substitute roles before classroom teachers.

Beyond this, defendants also rely on Schropfer’s statement to plaintiff that the January 2023

position would not have been filled if plaintiff did not accept it, and Duarte’s testimony that

plaintiff, unlike the two other instructional coaches, was not occupied with a set schedule at the

time of the May 2023 assignment. The fact that the gym teacher roles needed to be filled and

that plaintiff’s contract permitted her to fill them constitute legitimate reasons.

C. Pretext

“[U]nless the defendants’ proffered nondiscriminatory reason is ‘dispositive and

forecloses any issue of material fact,’ summary judgment is inappropriate.” Back v. Hastings On

Hudson Union Free Sch. Dist, 365 F.3d at 124 (citation omitted). Plaintiff has clearly produced

sufficient evidence to defeat summary judgment on the discrimination claims based on her gym

teacher assignments. Plaintiff’s prima facie case, even when considered against defendants’

evidence, is sufficiently compelling that a jury could reasonably find that she was given

substitute gym teacher assignments on the basis of her sexual orientation.

III. Retaliation

The McDonnell-Douglas burden-shifting framework applies also to retaliation claims

brought pursuant to Title VII, the NYSHRL, and the NYCHRL. See Edelman v. NYU Langone

Health Sys., 141 F.4th 28, 45 (2d Cir. 2025). Thus, plaintiff must first make out a prima facie

case of retaliation. Id. In the Title VII context, the plaintiff must demonstrate that (1) she

engaged in protected activity; (2) the defendant was aware of that activity; (3) she was subjected

to a retaliatory action, or a series of retaliatory actions, that were materially adverse; 6 and (4)

there was a causal connection between the protected activity and the materially adverse action or

actions. Id. (citation omitted). By contrast, under the NYSHRL and NYCHRL, the plaintiff

“must demonstrate that she took an action opposing her employer’s discrimination and that, as a

result the employer engaged in conduct that was reasonably likely to deter a person from

engaging in such action.” Edelman, 141 F.4th at 45 (internal quotation marks and citation

omitted).

Defendants concede that plaintiff engaged in various protected activities, including: (1)

filing a complaint with SCI on September 7, 2023; (2) complaining about discrimination to

Principal Hodge on September 8, 2023; (3) filing a complaint with OEO on September 17, 2023;

(4) filing a complaint with the EEOC on October 16, 2023; and (5) filing the instant lawsuit on

July 15, 2024. Plaintiff claims two retaliatory actions: (1) Assistant Principal Edouard’s

6 Importantly, Muldrow clarified that the “materially adverse” standard still applies to Title VII retaliation claims.

See Muldrow, 601 U.S. at 357.

November 10, 2023 evaluation and subsequent negative performance review for plaintiff and (2)

the January 21, 2025 non-file letter issued to plaintiff following her altercation with Laspina.

The Court finds that the former does not constitute a materially adverse action, and that the latter

is not causally connected to plaintiff’s protected activities.

Courts in this Circuit have disagreed as to whether a negative performance review,

without further adverse consequences, can amount to a materially adverse action. See Petyan v.

New York City L. Dep’t, No. 14-cv-1434, 2015 WL 4104841, at *5 (S.D.N.Y. July 2, 2015). In

this case, the Court finds that plaintiff has failed to establish that the performance review she

received from Edouard was a materially adverse action. The mere fact that the review was

supposedly negative does not compel the conclusion that it was materially adverse. Further,

plaintiff has not established that the review was actually negative, as opposed to instructive or

constructive. For these reasons and because there were no further adverse consequences,

plaintiff has failed to establish that the performance review was a negative action, let alone an

adverse one, let alone a materially adverse one. Plaintiff’s Title VII, NYSHRL, and NYCHRL

retaliation claims based on the performance review therefore fail.

The non-file letter might constitute a materially adverse action for purposes of retaliation.

It details problematic conduct by plaintiff, warns of potential discipline (including termination),

and stays in plaintiff’s file for future DOE employers to see. But the Court need not make a

definitive determination on this point because plaintiff has not satisfied causation. To prevail on

a Title VII retaliation claim, retaliatory animus must be the but-for cause of the challenged

adverse employment action. Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013).

As for the NYSHRL and NYCHRL, the plaintiff “need only show that retaliatory animus was a

motivating factor, that is, that it played any role at all in the challenged conduct.” Edelman, 141

F.4th at *49 (internal quotation marks and citation omitted).

Plaintiff relies entirely on temporal proximity between her June 21, 2024 complaint to

SCI regarding Laspina and the January 21, 2025 non-file letter to establish causation. “[W]hen a

plaintiff relies on temporal proximity alone to establish causation, courts ‘uniformly hold that the

temporal proximity must be very close,’ which usually means less than three or four months.”

Gehlaut v. New York City Dep’t of Educ., No. 24-1741, 2025 WL 2586770, at *2 (2d Cir. Sept.

8, 2025) (quoting Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)). Even assuming

that this SCI complaint constitutes protected activity, “[i]n the absence of other factual

allegations supporting causation,” the seven-month gap between plaintiff’s June 21, 2024 SCI

complaint and the January 21, 2025 non-file letter is too long to support a plausible inference of

causation under Title VII, the NYSHRL, and the NYCHRL. See id.; see also Sealy v. State Univ.

of New York at Stony Brook, 834 F. App’x 611, 614 (2d Cir. 2020) (citing Hollander v. Am.

Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir. 1990)) (“[A]dverse employment actions occurring

approximately three months after protected activity are too attenuated to give rise to an inference

of retaliation.”). Plaintiff’s Title VII, NYSHRL, and NYCHRL retaliation claims based on the

non-file letter therefore fail.

The Court also summarily disposes of plaintiff’s NYCHRL retaliation claim based on her

placement at P.S. 65, as it has already explained above that moving to a different geographic

location (the only plausibly harmful difference between plaintiff’s prior role at P.S. 667 and new

role at P.S. 65) is not a cognizable harm.

IV. Hostile Work Environment

Title VII defines a hostile work environment as one “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.” Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 21 (1993) (internal quotation marks and citations omitted). The plaintiff must

show that “the complained of conduct: (1) is objectively severe or pervasive – that is, ... creates

an environment that a reasonable person would find hostile or abusive; (2) creates an

environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an

environment because of the plaintiff’s protected characteristics or protected activity.” Patane v.

Clark, 508 F.3d 106, 113 (2d Cir. 2007) (internal quotation marks and citation omitted). “Factors

that a court might consider in assessing the totality of the circumstances include: (1) the

frequency of the discriminatory conduct; (2) its severity; (3) whether it is threatening and

humiliating, or a mere offensive utterance; and (4) ‘whether it unreasonably interferes with an

employee’s work performance.’” Id. (quoting Harris, 510 U.S. at 23).

Defendants have sought summary judgment on the theory that the conduct at issue was

not sufficiently severe or pervasive to create a hostile work environment, but they have not

argued that the conduct of any of the implicated individuals was improperly imputed to

defendants. Accordingly, the Court addresses only the summary-judgment arguments regarding

severity and pervasiveness that defendants have raised. Even still, for the reasons explained

earlier in this opinion, the Court will not consider the P.S. 65 placement, Edouard’s performance

review, the Jennings incident, and the Laspina incident (and subsequent non-file letter) in its

calculus. Consequently, the question is whether Duarte’s offensive comments and the excessive

gym teacher assignments to plaintiff throughout January 2023 to May 2023 were, together,

sufficiently severe and pervasive to create a hostile work environment. Drawing all reasonable

inferences in plaintiff’s favor, the Court finds that material disputes of fact preclude summary

judgment on plaintiff’s Title VII hostile work environment claim.

Duarte frequently made discriminatory comments towards plaintiff over the course of two

school years. Duarte repeatedly told plaintiff that she looked like a gym teacher and would make

a good one, which a reasonable person could find was based on her stereotypes about how

women should look and how lesbian women do look and act (particularly when coupled with the

offensive comments about lesbian sex). Further, plaintiff was excessively assigned to substitute

gym teacher roles over the course of three to four months, and Duarte was involved in the

assignment decisions. Finally, Duarte outed plaintiff in front of coworkers and, on twenty or

more occasions, told plaintiff that she was “strictly dickly” while expressing disgust at lesbian

sex. These were not “stray remarks.” A reasonable jury could find that plaintiff was subject to

“a steady barrage of opprobrious [discriminatory] comments.” Knox v. CRC Mgmt. Co., LLC,

134 F.4th 39, 51 (2d Cir. 2025) (citation omitted).

Therefore, the Court denies summary judgment as to plaintiff’s Title VII hostile work

environment claim. Further, the Court denies summary judgment as to plaintiff’s hostile work

environment claim premised on the same conduct under the “more lenient” NYSHRL and

NYCHRL standard. See Wheeler v. Praxair Surface Techs., Inc., 694 F. Supp. 3d 432, 451

(S.D.N.Y. 2023).

CONCLUSION

Defendants’ motion for summary judgment is granted in part and denied in part as set

forth above. The following of plaintiff’s claims will proceed to trial: (1) discrimination claims

under Title VII, the NYSHRL, and the NYCHRL based on her substitute gym teacher

assignments throughout January 2023 to May 2023; (2) hostile work environment claims under

Title VII, the NYSHRL, and the NYCHRL based on Duarte’s conduct/comments throughout

2021-2023 and the substitute gym teacher assignments. The remaining claims are dismissed.

SO ORDERED.

U.S.D.J.

Dated: Brooklyn, New York

September 14, 2025

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