Barot v. St. John's University

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

Shrikant Barot

Plaintiff,

22-cv-4823 (NRM) (LKE)

v.

MEMORANDUM AND ORDER

St. John’s University

Defendant.

NINA R. MORRISON, United States District Judge:

Plaintiff Shrikant Barot brings this case against St. John’s University (“SJU”),

alleging a breach of contract, violations of New York General Business Law § 349

(“GBL § 349”), and discrimination on the basis of national origin under the New York

State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law

(“NYCHRL”), on behalf of himself and others similarly situated.

Presently before the Court is SJU’s motion for summary judgment and Barot’s

motion for class certification. For the reasons to follow, the Court grants SJU’s

motion for summary judgment in full. As this leads to a dismissal of the action, it is

unnecessary for the Court to decide Barot’s motion for class certification, which is

dismissed as moot.

FACTUAL BACKGROUND

The Court views the following facts “in the light most favorable to the non-

moving party,” Overton v. N.Y. State Div. of Mil. & Naval Affs., 373 F.3d 83, 89 (2d

Cir. 2004), and “resolve[s] all ambiguities and draw[s] all permissible factual

inferences in favor of the party against whom summary judgment is sought.” Sec.

Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004).

In considering SJU’s motion for summary judgment and Barot’s opposition, the

Court has carefully reviewed the parties’ Rule 56.1 Statements and has

independently assessed the underlying record to determine whether genuine issues

of material fact exist and summary judgment is appropriate. See Victory v. Pataki,

814 F.3d 47, 59 (2d Cir. 2016) (“If, as to the issue on which summary judgment is

sought, there is any evidence in the record from which a reasonable inference could

be drawn in favor of the nonmoving party, summary judgment is improper.” (quoting

Rodriguez v. City of New York, 72 F.3d 1051, 1061 (2d Cir. 1995))). The Court deems

admitted those factual assertions that are not specifically controverted with citations

to admissible evidence. See Local Civ. R. 56.1(c)–(d); Vt. Teddy Bear Co., Inc. v. 1-800

Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004).1

I. Plaintiff and the Graduate Assistantship Program

Plaintiff is Dr. Shrikant Barot, a former graduate student at SJU, who received

his degree in Pharmaceutical Sciences in May of 2021. Def. Response to Pl. Obj. to

Def. 56.1 St. (“Def. Resp. 56.1”) ¶ 2, ECF No. 54; Pl. Barot Dep. at 26, Anderson Decl.

Ex. B, ECF No. 48-2. Barot was a foreign student attending SJU on an F1 visa, Def.

1 The Court has incorporated the necessary relevant facts for analysis of each

issue into the discussion section of this order. As such, the following recitation of

facts is simply a brief overview of the circumstances that give rise to this action.

Resp. 56.1 ¶ 60, and he applied to SJU sometime in 2014 from India, Pl. Barot Dep.

at 21.2

SJU offers Graduate Assistantship (“GA”) programs, which allow graduate

students to “supplement [their] coursework with practical experience.” Def. Resp.

56.1 ¶¶ 3–4. Barot participated in the program, which was governed by 14 paragraph

Agreements made between the Barot and SJU at the beginning of each school year

or summer term, the first of which was entered into between Barot and SJU on July

27, 2016, and the last on July 27, 2020. See GA Agreements at 2, 15, Anderson Decl.

Ex. C, ECF No. 48-3. The GA Agreements provided that a GA would be required to

work up to 20 hours a week; in exchange, SJU provided the GA with tuition credits

and a stipend. See generally id. Barot participated in the GA program during his

time at SJU, from September of 2016 until he graduated and received his degree in

Pharmaceutical Sciences in 2021. See id.; Def. Resp. 56.1 ¶ 2.

II. Barot’s Job Responsibilities

Barot testified at his deposition about various aspects of the work he performed

as a GA, and the Court accepts that testimony as true and draws all reasonable

inferences from that testimony in Barot’s favor for purposes of resolving SJU’s motion

for summary judgment. Although Barot’s contract provided that he would only be

required to work a maximum of 20 hours a week, he conservatively estimates he

worked 25 hours per week during the school year. Pl. Barot Dep. at 151. On top of

2 All page-number pincites to the record indicate the ECF generated page

number, not the internal pagination, except for citations to deposition transcripts,

which refer to the internal pagination of the transcript.

teaching labs, he had to do extensive prep work for those labs. Id. at 37. This

included, inter alia, setting up for the labs, cleaning up after the labs, doing journal

clubs, attending lab prep sessions, and ensuring he fully understood the “lab guide”

prepared by Laboratory Director Dr. Felicia Carvalho. Id. at 37–39.

In addition to the work he performed while school was in session, Barot was

required to be on campus all day every day before each semester to prepare for the

lab sessions. Id. at 80. At least some semesters, he was required to begin work at

least two weeks prior to the actual start of school. See, e.g., 8/1/2019 Festa Email,

Anderson Decl. Ex. K (“8/1/2019 Festa Email”), ECF No. 48-11.

Additionally, while the semester was in session, Barot had to be “on-call” 24/7.

Pl. Barot. Dep. at 151. There was a general expectation that during the semester,

GAs were “on campus during research.” Korlipara Dep. at 32, Anderson Decl. Ex. F,

ECF No. 48-6. If Barot wanted to leave campus during the semester, he had to get

permission from the lab director and find a replacement to teach on his behalf. Pl.

Barot Dep. at 124.

III. Graduate Assistants Complain

Barot and others eventually complained to the faculty at SJU about these

working conditions. In 2017, Barot brought his concerns to his research guide. Id. at

68. In 2019, he complained to the Department Chair, Dr. Vijaya Korlipara. Id. at 69.

Dr. Woon-Kai Low, the head of the Pharmacy and Health Sciences Department, then

initiated a focus group to address these complaints as “graduate students were

communicating that they were having too much of their time taken away from their

own graduate studies by the duties associate with acting as GAs.” Low Dep. at 10–

11, Anderson Decl. Ex. E, ECF No. 48-5. In the focus group, Dr. Low found that many

students complained about being overworked, with at least one anonymous student

saying they worked up to “30 hours a week.” Id. at 102–03. Out of these focus groups,

a document was created which reported “[h]igh levels of dissatisfaction” and

“[e]xcessive weekly (hourly) workload.” Assessment of Graduate Assistant Job

Satisfaction at 6, Anthony Decl. in Opposition to Motion to Certify Class Ex. P, ECF

No. 39-16.

PROCEDURAL HISTORY

Barot brought this action on behalf of himself and all other similarly situated

Graduate Teaching Assistants in the College of Pharmacy and Health Sciences

(“PHS”) at SJU on August 8, 2022. See Compl. at 1, ECF No. 1. The operative

Amended Complaint was filed on November 2, 2022. See Am. Compl., ECF No. 14.

The Amended Complaint alleges a class defined as “[a]ll Graduate Teaching

Assistants at the College of Pharmacy and Health Sciences at St. John’s University

from August 16, 2016, to the present,” id. at 17, and alleges claims in breach of

contract and violation of the covenant of good faith and fair dealing, violation of GBL

§ 349, and violation of the NYSHRL and the NYCHRL for discrimination and

disparate impact based on national origin, id. at 21–29.

On December 20, 2024, Barot filed his fully briefed motion for class

certification. See ECF. No. 36. On May 16, 2025, SJU filed its fully briefed motion

for summary judgment on all of Barot’s claims. See ECF No. 42. For the reasons to

follow, SJU’s motion for summary judgment is granted in full.

LEGAL STANDARD

Summary judgment is appropriate “if 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). “A dispute about a ‘genuine issue’ exists for

summary judgment purposes where the evidence is such that a reasonable jury could

decide in the non-movant’s favor.” Beyer v. County of Nassau, 524 F.3d 160, 163 (2d

Cir. 2008) (quoting Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir. 2007)). A fact is

material “when its resolution ‘might affect the outcome of the suit under the

governing law.’” SCW W. LLC v. Westport Ins. Corp., 856 F. Supp. 2d 514, 521

(E.D.N.Y. 2012) (ADS) (AKT) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986)). In considering a summary judgment motion, the Court “is required to

view the record in the light most favorable to the party against which summary

judgment is contemplated and to resolve all ambiguities and draw all factual

inferences in favor of that party.” NetJets Aviation, Inc. v. LHC Commc’ns, LLC, 537

F.3d 168, 178 (2d Cir. 2008).

“The moving party has the initial burden of demonstrating the absence of a

disputed issue of material fact.” Thorpe v. City of New York, No. 19-cv-5995 (CM)

(RWL), 2021 WL 3811238, at *4 (S.D.N.Y. Aug. 25, 2021). “Once such a showing has

been made, the non-moving party must present ‘specific facts showing that there is a

genuine issue for trial.’” Id. (quoting Fed. R. Civ. P. 56(e)). “The party opposing

summary judgment ‘may not rely on conclusory allegations or unsubstantiated

speculation.’” Id. (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)).

“Finally, the nonmoving party ‘must do more than simply show that there is some

metaphysical doubt as to the material facts.’” Id. (quoting Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “To withstand a summary

judgment motion, sufficient evidence must exist upon which a reasonable jury could

return a verdict for the nonmovant.” Id.

The only claims brought by Barot on behalf of himself and the putative class

are claims sounding in state law: breach of contract, violation of GBL § 349, violation

of the NYSHRL, and violation of the NYCHRL. See Am. Compl. ¶¶ 71–108. Thus,

this Court’s jurisdiction is based on the diversity of the parties and the amount in

controversy under 28 U.S.C. § 1332(d)(2), and it will apply New York law to Barot’s

substantive claims. See Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427

(1996).

DISCUSSION

I. Breach of Contract and Violation of the Covenant of Fair Dealing

Barot’s breach of contract claim is based on his allegations that: (1) he was

required to work in excess of 20 hours per week; (2) he was not provided the total

class credits he was promised in the contracts; (3) he was required to work two weeks,

rather than just one, prior to the start of each semester; (4) he was required to be “on

call” 24/7 throughout the semester; and (5) he was required to work during holidays.

See Am. Compl. ¶ 75. SJU argues both that Barot waived his right to bring a breach

of contract claim and that, even if it was not waived, the claim fails on its merits. See

Def. Mem. at 18–26, ECF No. 45. For the reasons that follow, the Court agrees with

SJU in both respects.

A. Barot Waived His Breach of Contract Claim

SJU argues that because Barot entered into his first GA Agreement in 2016

and continued to enter into agreements with the same essential terms through his

graduation in 2021, he has waived his right to bring a breach of contract claim based

on those agreements. See Def. Mem. at 19. “[W]here a party to an agreement has

actual knowledge of another party’s breach and continues to perform under and

accepts the benefits of the contract, such continuing performance constitutes a waiver

of the breach.” Nat’l Westminster Bank, U.S.A. v. Ross, 130 B.R. 656, 675 (S.D.N.Y.

1991) (SWK). This form of waiver has long been accepted in New York law. See, e.g.,

New York Tel. Co. v. Jamestown Tel. Corp., 26 N.E.2d 295, 297–98 (N.Y. 1940)

(“Acceptance of benefit under the contract with knowledge of the wrong constitutes a

waiver of the wrong.”). This well-settled rule is grounded in principles of fairness. It

requires a party who has knowledge of another’s alleged breach to make that

grievance known in a reasonably prompt fashion; the party cannot simply keep that

knowledge to herself and then, only after receiving all the benefits of the contract,

turn around and sue for breach of contract.

It is undisputed that, for every academic year he worked as a GA, Barot was

provided with a standard written contract, which specified that in exchange for

working a “maximum [of] twenty hours a week,” he “would receive a stipend and

tuition coverage for a specified number of credits per semester.” Def. Resp. 56.1 ¶¶

93b–94b (internal quotation marks omitted).3 Barot entered into his first of these

agreements in July of 2016 and subsequently entered into six more agreements that

reiterated these core terms, covering his time as a GA until the spring of 2021. See

generally GA Agreements. The final agreement was entered into on July 27, 2020,

and it provided that SJU engaged his services through May 31, 2021. Id. at 14. It is

also undisputed that Barot graduated from SJU in May of 2021 as a Doctor of

Philosophy. Def. Resp. 56.1 ¶ 93b.

According to Barot, he told his research guide as early as 2017 that he was

working in excess of 20 hours a week. See Pl. Barot Dep. at 68. He made a complaint

again in 2018 and took that complaint to the Department Chair in 2019. Id. at 69.

He did not make any more complaints in 2020 or 2021. Id. at 70.

If SJU’s actions in overworking its GAs were to be considered a “breach” of the

GA Agreements (which will be discussed infra), Barot had knowledge of the breach

in 2017. Thus, it is undisputed that after Barot had knowledge that SJU “breached”

the agreements, he continued to perform under the agreements, sign new agreements

with the same conditions, and receive the benefits — a stipend and tuition credits —

that SJU was to provide him under the agreements. On its face, this performance

3 There appears to have been a scrivener’s error in the drafting of Plaintiff’s

statement of additional facts not in genuine dispute, in which some of the paragraph

numbers duplicate previously used paragraph numbers used by Defendant in its

original 56.1 statement. As such, the Court will designate any paragraph numbers

used in the Plaintiff’s statements of additional material facts as “b.”

and acceptance by Barot appears to be a “waiver of the wrong.” New York Tel. Co.,

26 N.E.2d at 298.

Barot argues, however, that he did not waive his right to sue for breach of

contract because SJU was on notice that its faculty had breached the GA contracts.

Pl. Mem. at 27, ECF No. 46. Here, he relies on the rule that “a party to an agreement

who believes it has been breached may elect to continue to perform the agreement

rather than terminate it, and later sue for breach . . . where notice of the breach has

been given to the other side.” Nat’l Westminster Bank, 130 B.R. at 675 (emphasis

supplied); see also Medinol Ltd. v. Boston Scientific Corp., 346 F. Supp. 2d 575, 620

(S.D.N.Y. 2004) (AKH) (“If a party chooses to continue performance, it must give

notice of breach to the other side, or it waives its right to sue the breaching party.”).

This general principle, reflected in New York law and that of numerous other states,

allows a non-breaching party to “save” a contract by informing the other party of its

breach and attempting to induce performance by the breaching party rather than

itself ceasing performance. For instance, in Posik v. Layton, a Florida appeals court

analyzed a situation where two people had entered into a contract which provided

that the plaintiff would move into the defendant’s house and do the housework in

exchange for being written into the defendant’s will. 695 So. 2d 759, 760 (Fla. Dist.

Ct. App. 1997). After a year of living together, the defendant still had not written

plaintiff into the will. The court held that the plaintiff had not waived her right to

sue by continuing to perform her end of the bargain during that time, because during

that year she expressly informed defendant that she had breached the contract and

attempted to induce performance by “consistently urg[ing] [the defendant] to make

the will.” Id. at 762.

But Barot’s evidence of “notice” to SJU, even construed in the light most

favorable to him, falls short of the mark. Barot argues that not only did he complain

to his research guide and Department Chair about his excessive work hours, as noted

supra, but at least some GAs made similar reports in a focus group conducted by Dr.

Woon-Kai Low in the academic year 2019-2020. See Low Dep. at 10–11. One

anonymous GA whose comments were cited in the report that emerged from Dr. Low’s

focus group indicated that “[p]reparation for labs is excessive” and the work required

of GAs could take “30 hours a week.” Low Dep. at 102. From that focus group study,

Dr. Low recorded that 45.5% of GAs reported an “excessive required number of

weekly work hours and excessive rigid weekly work hour requirements,” and that

72.7% of GAs reported “excessive time required for preparation, including lab prep

time, general lab meeting time, workshops and evaluations.” Assessment of

Graduate Assistant Job Satisfaction at 12.

Barot has certainly presented facts to indicate that faculty at SJU were on

notice that at least some GAs believed they were being required to work over 20 hours

a week. However, Barot has presented no evidence from which a jury could infer that

notice was given to SJU that it was in breach of his contract. A Northern District of

California case is instructive and analogous here. Interpreting New York law, the

court in Roling v. E*Trade Securities LLC found that in order to not waive a claim of

breach by continuing to perform and receive benefits under a contract, the non-

breaching party must not simply notify the breaching party that they were

dissatisfied with their performance, but must specifically notify the party that they

are in breach of contract. 860 F. Supp. 2d 1035, 1040 (N.D. Cal 2012) (“[W]hile [the

plaintiff] expressed unhappiness with the amount of the fee assessment, he never

alerted [the defendant] to the fact that he was disputing its legal right to charge the

fees in the first place. In short, he did not assert the fees were in breach of the

contract.”). Similarly, while a reasonable jury could certainly find that Barot

“expressed unhappiness” with his working conditions, he has presented no evidence

that any of his complaints expressly or even implicitly indicated that he believed SJU

was in breach of the GA Agreements. Nor could a reasonable factfinder conclude that

because there were anonymous complaints made in a focus group that at least some

GAs worked over 20 hours a week, SJU was on notice that it was in breach of one or

more terms of Barot’s own GA Agreements.

This is especially true because Barot continued to affirm the contracts’ validity

by entering into successive agreements with the same terms even after making his

complaints. Cf. Melnitzky v. Sotheby Parke Bernet, Inc., 750 N.Y.S.2d 859, 859 (N.Y.

App. Div. 2002) (finding a claim of breach of contract waived when plaintiff

“continued to actively affirm the contract’s validity by accepting benefits

thereunder”). Indeed, at Barot’s deposition, he acknowledged that he did not make

any complaints in 2020 or 2021. See Pl. Barot Dep. at 70. Thus, after having

knowledge of the alleged breach since at least 2017, and even after SJU failed to

rectify the situation after his complaints, Barot went on to sign a new GA Agreement

with the same conditions in July of 2020 and made no further complaints. See GA

Agreements at 14. Barot received tuition credits and a stipend in return and

graduated in 2021 with a PhD. See Pl. Barot Dep. at 115–16; Def. Resp. 56.1 ¶ 2.

Nor is this a situation in which the non-breaching party (Barot) made a

reasonable decision not to terminate the contract immediately after the alleged

breach in the hopes that he could induce the breaching party to perform, thereby

defeating a defendant’s waiver claim. See, e.g., Seven-Up Bottling Co. (Bangkok) v.

PepsiCo, Inc., 686 F. Supp. 1015, 1023 (S.D.N.Y. 1988) (KC) (“[A] party’s reluctance

to terminate a contract upon a breach and its attempts to encourage the breaching

party to adhere to its obligations under the contract do not necessarily constitute a

waiver of the innocent party’s rights in the future.”). Instead, Barot repeatedly

renewed the contract over the course of three years after he was aware of SJU’s

alleged breach and continued to reap the benefits from those contracts. Thus, because

he had “actual knowledge of [SJU’s] breach and continue[d] to perform under and

accept[] the benefits of the contract,” Nat’l Westminster Bank, 130 B.R. at 675, Barot

has waived his claims under breach of contract and the covenant of fair dealing.

B. Merits of Breach of Contract Claim

Even if Barot had not waived his claim for breach of contract, SJU would be

entitled to summary judgment because no reasonable trier of fact could find for Barot

on the merits of that claim.

To establish a claim for breach of contract under New York law, a Plaintiff

must show “(1) the existence of an agreement, (2) adequate performance of the

contract by the plaintiff, (3) breach of contract by the defendant, and (4) damages.”

Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168,

177 (2d Cir. 2004) (quoting Harsco Corp. v. Segui, 91 F.3d 337, 348 (2d Cir. 1996)).

SJU contends that the evidentiary record provides no grounds to find that it breached

any term of the seven GA Agreements. Def. Mem. at 20–23. This Court agrees.

The relevant portions GA Agreement provided the following:4

“1. The University hereby engages Recipient and Recipient hereby

accepts the position of Teaching/Clinic Assistant[] [i]n the

Department/Division of Pharm Pharmaceutical Sci for the period

beginning 01-SEP-2020 and ending 31-MAY-2021. STIPEND

AMOUNT $12000.00 paid in 18 equal semi-monthly installments and

tuition coverage for 9 credit(s) per semester.

2. During the term of this Agreement and to the exclusion of any other

professional or business commitment, Recipient agrees to devote

himself/herself diligently and cooperatively for a maximum of 20 hours

per week to the duties of a Graduate Assistant . . . .

. . .

6. The contract term for all standard one-year Doctoral Fellows and

Graduate Assistants is one week prior to the first day of classes in the

Fall semester through the last day of final exams in the Spring semester.

. . . If a Doctoral Fellow or Graduate Assistant is required to work during

holidays or breaks it must be stated in his/her GA description and must

be approved by the Office of the Provost.”

GA Agreements at 14. While Barot claims five separate “breaches” on the part of

SJU, they can be grouped into two categories: (1) not giving Barot all the tuition

credits to which he was entitled under the contract; and (2) requiring Barot to work

4 The following language is from the final GA Agreement between Barot and

SJU, covering the 2020/2021 academic year. All of the agreements contained

substantially the same language with different dates, with the one major difference

being that the first GA Agreement, for the 2016-2017 academic year, provided tuition

coverage for “12 credit(s) per semester.” GA Agreements at 2.

more than maximum twenty hours per week provided in the contract. The Court will

address each in turn.

a. Tuition Credits

Barot argues that SJU breached the GA Agreements by “fail[ing] to provide

tuition coverage for the total number of credits each semester as represented in the

GA contracts.” Pl. Mem. at 25. The GA Agreement for the 2016-2017 academic year

stated that SJU would provide Barot with “tuition coverage for 12 credit(s) per

semester.” GA Agreements at 2. The subsequent GA Agreements stated that SJU

would provide Barot with nine credits a semester, except for the summer terms,

where Barot would be provided with three credits. See id. at 4–14.

Barot does not argue that he was denied tuition credits for classes that he took

while under contract. In fact, he confirmed in his deposition that “[w]hile [he] was on

[the] graduate assistantship program” he did not pay for “any of the credits” he

received “[u]ntil [he] graduated.” Pl. Barot Dep. at 55. Rather, he argues that “SJU

would not permit [him] to register” for the amount of credits for which the contract

obligated SJU to provide coverage. Pl. Mem. at 25.5 SJU argues that because Barot

has not presented any evidence that it denied him the opportunity to use a tuition

5 In his memorandum of law, Barot also argues that in the first year when the

GA Agreement provided for coverage for 12 tuition credits, “it was SJU’s policy to

provide tuition coverage for a maximum of 9 credits per semester.” Pl. Mem. at 25.

However, the cited portion of the record for that assertion comes from Barot’s

deposition where he stated that the “underlying policy from school which was stated

to me by my colleagues and my advisor was I can only register for nine credits per

semester.” Pl. Barot Dep. at 129 (emphasis supplied).

credit he intended to use, his claim for breach of contract based on unused tuition

credits is “devoid of legal merit.” Def. Mem. at 24. This Court agrees.

In attempting to defeat a motion for summary judgment “[t]he non-moving

party may not rely on conclusory allegations or unsubstantiated speculation.” Scotto

v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Rather, the party opposing summary

judgment “must produce specific facts indicating that a genuine factual issue exists.”

Id. (internal quotation marks omitted).

At his deposition, Barot testified that if he wanted to take any courses outside

of his program, he had “to get things signed [by his] advisors.” Pl. Barot Dep. at 128.

He then outlined a process in which it was actually the “associate division dean” who

would approve the registration and register a student for a course. Id. This, he

contends “is a very long, bureaucratic process for registering for a course.” Id. SJU

also admits, and it is stated in the GA Manual, that “[t]uition waivers for credit

beyond the number required for a student’s degree program require approval from

his/her supervisor.” GA Manual at 4, Gillespie Decl. Ex. 1 (“GA Manual”), ECF No.

44-1.

This would surely be enough evidence for a reasonable jury to conclude that it

was procedurally difficult for Barot to enroll in classes outside of his program.

However, he has not pointed this Court to any evidence that SJU did not allow him

to register for nine credits a semester (or 12 credits for the 2016-2017 academic year).

He does not provide any documentation of attempting to enroll in a course and being

denied. He does not provide a single email or any sort of message which indicates

that he attempted to use credits and was denied. Additionally, in his deposition, he

did not even identify a single course that he attempted to enroll in but was not allowed

to take. The closest he comes to offering evidence that he was not allowed to take the

number of classes he was contractually allowed to take is that he indicated that, for

the entire time he was there, the “underlying policy from the school which was stated

to me by my colleagues and my advisor was I can only register for nine credits per

semester,” Pl. Barot Dep. at 129, and yet in the 2016-2017 academic year he was

entitled to 12 credits. See GA Agreements at 2. However, as already stated, he has

failed to put forward any evidence that he even attempted to enroll in 12 credits a

semester in the 2016-2017 semester and that the attempt was rebuffed, nor has he

provided any evidence that such a policy actually existed. Thus, this Court finds that

Barot has failed to provide admissible evidence from which a reasonable jury could

conclude that SJU breached the terms of the GA Agreements.

b. Extra Hours Worked

Barot also claims that SJU breached the GA Agreements by (1) requiring him

to work in excess of 20 hours per week; (2) requiring him to work two weeks, rather

than just one, prior to the start of each semester; (3) requiring him to be “on call” 24/7

throughout the semester; and (4) requiring him to work during holidays. See Am.

Compl. ¶ 75.

SJU responds by contending that Barot has not provided “any evidence of . . .

work . . . that lasted over 20 hours each week,” and simply makes “self-serving

statements that are implausible.” Def. Mem. at 21 (internal quotations omitted).

Thus, SJU argues, Barot has not created a dispute of material fact as to whether he

actually did work over 20 hours a week, was required to be on call, and was required

to work two weeks before the start of each semester. Id. at 20–23. This Court

disagrees. There is a factual dispute on this aspect of Barot’s claim, and a jury could

find for Barot on this particular prong.

SJU primarily relies on contrary testimony from the deposition of lab director

Dr. Felicia Carvalho, in which she indicated that GAs were assigned three labs at

most per week, and any given lab could only run for three hours. See Carvalho Dep.

at 28, Anthony Decl. Ex. B, ECF No. 43-2; see also id. at 40 (explaining that each lab

would require no more than eleven meetings a semester). While Barot does not

dispute this, he testified that there was significant work he was required to perform

outside of the actual lab hours which added up to more than twenty hours of work a

week. See Pl. Barot Dep. at 37 (“[O]n top of [the labs], I am doing . . . multiple

activities. I am preparing for lab. I am doing proctoring. I am doing journal clubs. . . .

Even . . . the physical preparation.”). In terms of preparing for the labs, Barot noted

that he was required to create a “lab guide” for students, which included “pre-lab”

and “post-lab” assignments, which he would have to complete. Id. at 39. He indicated

that he could be “quizzed on those lab guides at any moment.” Id. Additionally, Barot

presents deposition testimony from Department Chair Dr. Korlipara in which she

said that GAs were required to pre-take any quizzes that may be given out and have

an understanding of what was going on in the labs. Pl. Korlipara Dep. at 22,

Anderson Decl. Ex. F, ECF No. 48-5. Barot testified that, with all this other work,

and “being very conservative in terms of considering [his] hours,” he estimated that

he worked an average of 25 hours per week. Pl. Barot Dep. at 151.

Barot also presented emails from SJU faculty to show that he was required to

begin work as a GA before “one-week prior” to each semester. See, e.g., 8/14/2018

Festa Email, Anderson Decl. Ex. J, ECF No. 48-10 (“Just a reminder our meeting will

be August 23, at 10am . . . . Please be prepared to spend the entire day and everyday

after until school starts.”); 8/1/2019 Festa Email (“Just a reminder we will be meeting

August 22 . . . . Please make sure you have all your days free leading up to the first

day of classes (September 4). We will have many lab meetings before school starts.”).

Finally, Barot testified that he had to be on call “24/7.” Pl. Barot Dep. at 85.

While SJU may argue that these statements from Barot are “self-serving,” and

his calculation of working 25 hours a week is “implausible,” Def. Mem. at 21, the

Court is required to “view the record in the light most favorable” to Barot, NetJets

Aviation, 537 F.3d at 178. In doing so, the Court concludes that Barot has certainly

created a dispute of fact as to whether he worked more than 20 hours a week, whether

he was required to work more than a week before classes started, and whether he

was required to be on call 24/7.

The question remains, however, whether this is a dispute of material fact. See

Anderson, 477 U.S. at 248 (holding that a fact is material when it “might affect the

outcome of the suit under the governing law”). It is not. This is because, even if a

trier of fact were to credit Barot’s claim that he was required to work 25 hours per

week or more, he has failed to identify any term of the contract that SJU actually

breached.

To prevail on a claim of breach of contract, a plaintiff must show “non-

performance by the other party.” Kramer v. NYC Bd. of Educ., 715 F. Supp. 2d 335,

356 (E.D.N.Y. 2010) (JBW) (quoting RCN Telecom Servs., Inc. v. 202 Centre St. Realty

LLC, 156 F. App’x 349, 350–51 (2d Cir. 2005) (summary order)). To establish non-

performance, the plaintiff “must allege the specific provisions of the contract upon

which the breach of contract claim is based.” Stadt v. Fox News Network LLC, 719 F.

Supp. 2d 312, 318 (S.D.N.Y. 2010) (SAS).

Thus, in order to show that SJU breached the contract, Barot must point to a

specific provision of the GA Agreement which provides for some benefit that SJU

agreed to provide to Barot but did not. See U.S. Engine Production, Inc. v. AGCS

Marine Ins. Co., 769 F. Supp. 2d 626, 628 (S.D.N.Y. 2011) (VM) (“Consideration

consists of some right, interest, profit or benefit accruing to one party, or some

forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the

other.” (internal citations omitted)). Under the agreement, the interest or profit SJU

agreed to provide Barot was (1) a stipend, and (2) tuition credits. See generally GA

Agreements. In return, Barot agreed to “devote himself/herself diligently and

cooperatively for a maximum of 20 hours per week to the duties of a Graduate

Assistant.” Id. The problem with Barot’s breach of contract claim is that he has not

alleged that he did not receive his stipend; nor has he presented any facts, as

discussed supra, from which a trier of fact could conclude that he was denied tuition

credits. Thus, Barot cannot point to any specific non-performance by SJU as per the

agreements, as he cannot identify “either a benefit to [him]” that SJU withheld or a

“detriment to [SJU]” which it failed to enact. Weiner v. McGraw-Hill, Inc., 443 N.E.2d

441, 444 (N.Y. 1982).

While it may be the case that SJU required Barot to work more than 20 hours

a week, be on call 24/7, and begin work prior to one-week before each semester, none

of these actions indicate a lack of performance of its end of the contract. This is not

to say that a GA who was required to work more than 20 hours per week could not

bring a claim for breach of contract under different circumstances. If, for example,

Barot had refused to work more than 20 hours a week, or refused to come to campus

more than one week prior to the start of classes for additional GA-related preparation

work, and in response SJU withheld his stipend or refused to provide tuition credits,

Barot might well have a breach of contract claim, because he would have evidence of

both his own performance under the contract and SJU’s subsequent refusal to

perform. However, what Barot is claiming in this case is that he provided SJU with

a greater benefit than he agreed to provide (i.e., more hours of work), and in response

SJU conferred upon him the exact benefit provided by the contract.

Crediting Barot’s testimony and drawing all reasonable inferences from it, the

Court recognizes that Barot certainly found himself in a difficult situation once it

became clear that he was expected to work longer hours than contemplated by his GA

agreement. As a foreign student on a visa, he had little — if any — negotiating

leverage while in the middle of pursuing his degree, and might well have feared that

had he taken a hard-line stance and refused to work more than 20 hours a week on

the grounds that he believed his contract did not require him to do so, he risked

termination of his GA position and revocation of his student visa. However, the Court

is limited by the causes of action raised by Barot in his lawsuit, and its only task is

to determine whether Barot has presented evidence that satisfies all the elements of

those claims. Here, because Barot has failed to allege or demonstrate any specific

provisions of the GA Agreements that SJU allegedly breached, SJU is entitled to

summary judgment on the merits of Barot’s breach of contract claim. See Magee v.

Walt Disney Co., No. 19-cv-10274 (AJN) (SDA), 2021 WL 915339, at *2 (S.D.N.Y. Jan.

22, 2021) report and recommendation adopted, 2021 WL 4312028 (S.D.N.Y. Sept. 22,

2021) (recommending dismissal of a breach of contract claim where plaintiff claimed

he was entitled to more monies when the plaintiff had “not identified any portion of

the [contract] that entitles him to any specific payments” (internal quotation marks

omitted)).6

II. New York General Business Law § 349

New York General Business Law § 349 (“GBL § 349”) provides that “[d]eceptive

acts or practices in the conduct of any business, trade or commerce or in the

6 Barot’s claim that SJU breached its covenant of good faith and fair dealing

presents an arguably closer question. For “[e]ven if a party is not in breach of its

express contractual obligations, it may be in breach of the implied duty of good faith

and fair dealing . . . when it exercises a contractual right as part of a scheme to realize

gains that the contract implicitly denies or to deprive the other party of the fruit (or

benefit) of its bargain.” Elmhurst Dairy, Inc. v. Bartlett Dairy, Inc., 949 N.Y.S.2d 115,

118 (N.Y. App. Div. 2012) (internal quotation marks omitted). However, since this

Court has determined that Barot has waived his right to sue under the express or

implied provisions of the contract, it need not address the merits of this claim.

furnishing of any service in this state are hereby declared unlawful.” GBL § 349.

Barot points to three statements from SJU which he argues are violations of GBL §

349: (1) SJU’s website, which describes the responsibilities of a GA as “assisting the

students with lab techniques, preparing for labs, proctoring exams and participating

in lab meetings and lab trainings,” GA Descriptions at 2, Anderson Decl. Ex. R, ECF

No. 48-18; (2) the portion of the website which represents that “Graduate Assistants

work up to 20 hours per week,” GA Manual at 3; and (3) the portion of the website

which claims that “St. John’s University does not discriminate on the basis of race,

color, [or] national origin . . .,” GA Descriptions at 3. Barot claims that these

statements are all in violation of GBL § 349 because: (1) they fail to disclose that

there are additional responsibilities, like being on call 24/7 and starting work two

weeks prior to the start of each semester; (2) they incorrectly state that the maximum

amount of hours a week worked by a GA is 20; and (3) they falsely claim that they do

not discriminate on the basis of national origin. See Pl. Mem. at 31. SJU argues that

Barot’s claim under § 349 is time-barred. The Court agrees.

“A plaintiff under section 349 must prove three elements: first, that the

challenged act or practice was consumer-oriented; second, that it was misleading in

a material way; and third, that the plaintiff suffered injury as a result of the deceptive

act.” Stutman v. Chem. Bank, 731 N.E.2d 608, 611 (N.Y. 2000). The statute of

limitations on a GBL § 349 claim is three years. See Radin v. Albert Einstein Coll. of

Med. of Yeshiva Univ., No. 04-cv-704 (RPP), 2005 WL 1214281, at *16 (S.D.N.Y. May

20, 2005). “Accrual occurs when plaintiff is injured by the deceptive act or practice

that violated the statute. Such injury occurs when [] all of the factual circumstances

necessary to establish a right of action have occurred, so that the plaintiff would be

entitled to relief.” Statler v. Dell, Inc., 775 F. Supp. 2d 474, 484 (E.D.N.Y. 2011) (JW)

(internal citations and quotation marks omitted).

Barot testified that he applied to SJU sometime in 2014, Pl. Barot Dep. at 21,

that he began the GA program in 2016, id. at 23, that and that he learned about the

GA program from various sources, including the SJU website, prior to arriving in the

U.S., id. As discussed supra, Barot also testified that he first complained about

working more than 20 hours per week in 2017. Id. at 68. This means that, at the

very latest, Barot’s claim accrued sometime in 2017, i.e., when he asserts that he had

both relied on the information on SJU’s website and was injured by that reliance. See

Gaidon v. Guardian Life Ins. Co. of America, 750 N.E.2d 1078, 1083 (N.Y. 2001)

(holding that a claim under § 349 accrued when plaintiffs’ “respective injuries

occurred as a result of the alleged statutory violations.”). Barot filed this action more

than four years later, on August 16, 2022. See Compl. Thus, on its face, his GBL §

349 claim is barred by the applicable three-year statute of limitations.

Barot argues, however, that the statute of limitations should be tolled due to

the “continuing violation” doctrine as “SJU’s deceptive representations about the GA

program and its non-discriminatory practices on its website have continued to this

day.” Pl. Mem. at 33. “Where a § 349 claim is based on a series of allegedly deceptive

acts . . . the continuing violations doctrine . . . effectively tolls the limitations period

until the date of the commission of the last wrongful act.” Breitman v. Xerox Educ.

Servs., LLC, No. 12-cv-6583 (PAC), 2013 WL 5420532, at *4–5 (S.D.N.Y. Sept. 27,

2013). Thus, even if a plaintiff’s original reliance on a misrepresentation is outside

of the statute of limitations, if the misrepresentation continues and the harm from

that misrepresentation is repeated, the claim may not be time-barred.

For example, in Harvey v. Metropolitan Life Ins. Co., a New York appeals court

examined a case where a customer was misled into believing their children would be

covered by insurance after their 25th birthdays, and that customer continued to pay

premiums after the children turned 25, mistakenly believing that they were still

covered. 827 N.Y.S.2d 6, 6 (N.Y. App. Div. 2006). The court there found that, even

though the youngest child had turned 25 four years prior to the commencement of the

suit, the continuing violations doctrine applied because each time the customer paid

the premium, believing that his children were covered, the injury continued. Id.

Similarly, in Stanley v. Direct Energy Servs., LLC, a court in the Southern District of

New York analyzed a claim where the plaintiff was continually billed a monthly rate

for electricity supply that plaintiff alleged was not the “competitive pricing” it had

been promised. 466 F. Supp. 3d 415, 421–22 (S.D.N.Y. 2020) (KMK). The court found

that, even though the allegedly deceptive notice which indicated that it would charge

“competitive” pricing was received more than three years prior to the commencement

of the action, because “each payment pursuant to each charge constitute[d] an

individual wrongful act,” the continuing violations doctrine applied. Id. at 432–33

(internal quotation marks omitted).

Barot’s situation is different. Unlike in Harvey, where the plaintiff continued

to pay the insurance premiums believing his children were covered, see Harvey, 827

N.Y.S.2d at 6, Barot has testified that he complained about the working conditions in

2017, and thus could not have reasonably continued to rely on the allegedly

misleading statements on SJU’s website when making his decision to continue

working in the GA program year after year. The court’s reasoning in Basso v. New

York University is instructive and on point. No. 16-cv-7295 (VM), 2017 WL 1019505

(S.D.N.Y. Feb. 24, 2017). There, students who attended Tisch Asia brought a claim

against New York University (“NYU”) for making representations that “the faculty,

equipment, and facilities” at Tisch Asia would be of the same quality as that of its

campus in New York. Id. at *1. The students claimed that this was not the case and

brought a claim under GBL § 349. See id. at *5. While the students enrolled in Tisch

Asia more than three years prior to bringing the claim, since their second and third

years of attendance fell within the statute of limitations, they claimed that the

continuing violations doctrine applied. Id. The Court disagreed, reasoning that after

the first year, when the students learned that NYU’s representations were

misleading, “any continued reliance on the representations . . . would be

unreasonable.” Id. The same is true in Barot’s case. No reasonable jury could

conclude that he reasonably relied on the representations on the SJU’s website

regarding the GA program after he had actively participated in that program for at

least two years and learned first-hand what the reality of the work responsibilities

were.

Perhaps recognizing this potential barrier to proceeding with his GBL § 349

claim, Barot claims that the injury from the misrepresentations was not necessarily

his reliance on them, but rather that the misrepresentations enabled SJU to continue

to recruit more students working as GAs “to satisfy its labor needs without having to

reform its exploitative practices,” harming Barot up to the point of his graduation.

Pl. Mem. at 34. It is true that the reliance on a misleading statement is just one way

an individual can be injured under GBL § 349, as a plaintiff simply “must show that

the defendant’s material deceptive act caused the injury.” Stutman, 731 N.E.3d at

612 (internal quotation marks omitted). Barot contends that his injury is similar to

a “price premium” injury, where a defendant’s misrepresentations cause the general

price of a product to be artificially inflated, harming a plaintiff even if that plaintiff

did not rely on the misrepresentations. Pl. Mem. at 34. A price premium injury has

indeed been recognized in the context of GBL § 349 claims. See In re Columbia Coll.

Rankings Action, No. 22-cv-5945 (PGG), 22-cv-6597 (PGG), 2024 WL 1312511, at *12

(S.D.N.Y. Mar. 26, 2024) (recognizing the plaintiffs suffered a harm in paying a

tuition that was artificially inflated due to allegedly false data contributing to

Columbia’s ranking).

However, at summary judgment, a nonmoving party “must do more than

simply show that there is some metaphysical doubt as to the material fact and may

not rely on conclusory allegations or unsubstantiated speculation.” Brown v. Eli Lilly

& Co., 654 F.3d 347, 358 (2d Cir. 2011) (internal quotation marks and citation

omitted). While it may be hypothetically possible that the statements made on SJU’s

website induced more people to apply for the GA position, thus allowing SJU to

continue its allegedly “exploitative practices,” Barot has pointed to no evidence

adduced in discovery which could lead a reasonable jury to infer this causal chain.

For example, Barot has not pointed the Court to any evidence that other students

relied on the allegedly misleading statements in choosing to apply to the GA program,

nor has he presented any documentation or testimony from which it could be inferred

that SJU’s decision to continue its policies around GA workload was in any way

impacted by the number of GA applications it continued to receive. While the Court

must view all the evidence presented in the “light most favorable” to Barot, On Track

Innovations Ltd. v. T-Mobile USA, Inc., 106 F. Supp. 3d 369, 374 (S.D.N.Y. 2015)

(AJN), there still must be some evidence supporting Barot’s claims. Put simply, Barot

has presented no evidence to support his quasi “price-premium” theory of harm, and

thus this Court cannot find a continuing violation of GBL § 349 based on that harm.

Thus, because Barot’s reliance on the allegedly misleading statements

occurred outside of GBL § 349’s three-year statute of limitations, and he has

presented no evidence to support his claim that the continuing-violations doctrine

should apply, summary judgment must be granted in favor of SJU on this claim.

III. Claims Under the NYSHRL and NYCHRL

Barot brings claims under the NYSHRL and NYCHRL for both disparate

treatment and disparate impact based on national origin. In support of these claims,

Barot points to evidence that most of the GAs were foreign students on visas. See

Korlipara Dep. at 62–63. While Barot acknowledges that all GAs, regardless of their

citizenship, were required to work in excess of 20 hours a week, Pl. Mem. at 35, at his

deposition, Barot stated that F1 visa holders got “more” assignments than U.S.

citizen GAs. Pl. Barot Dep. at 144. He also testified that foreign students have

unequal bargaining power compared to U.S. citizen GAs. See id. at 67 (“[I]if my F1

is cancelled, then I get kicked out of this country.”); id. at 75 (“People who are citizens,

they had . . . more leverage.”); id. at 75–76 (“So the person who is in . . . charge . . . —

they know that you are a citizen, or [that] you are an international student. So they

can — they would retaliate harder against an international person and not against a

citizen.”). But Barot has not provided sufficient evidence to sustain either a

discrimination or a disparate impact claim.

Courts must analyze “NYCHRL claims separately and independently from any

federal and state law claims, construing the NYCHRL’s provisions broadly in favor of

discrimination plaintiffs, to the extent that such a construction is reasonably

possible.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d

Cir. 2013) (internal citations and quotation marks omitted). “The NYCHRL’s liability

standards have always been held to be more lenient” than the federal standards, and

“the NYSHRL’s standards, which have always been held more lenient than those of

§ 1981, today remain no less demanding than those of the NYCHRL.” Kurtanidze v.

Mizuho Bank, Ltd., No. 23-cv-8716 (PAE), 2025 WL 1898927, at *9 (S.D.N.Y. July 9,

2025); see also Moore v. Metro. Transp. Auth., 999 F. Supp. 2d 482, 500 (S.D.N.Y.

2013) (DAB) (noting that the NYCHRL remedial purposes are “uniquely broad”

(quoting Bennett v. Health Mgmt. Sys., Inc., 92 A.D.3d 29, 34 (N.Y. App. Div. 2011)).

Thus, “if [Barot’s] . . . national origin-based claims fail under the NYCHRL’s more

permissive standard of liability, it follows that the parallel claims under . . . the

NYSHRL similarly fail.” Kurtanidze, 2025 WL 1898927, at *9. As the Court finds

that Barot’s claims do fail under the NYCHRL, it will refrain from conducting a

separate analysis under the NYSHRL.

a. Discrimination

Section 8-107(1)(a) of the NYCHRL makes it “an unlawful discriminatory

practice for an employer or an employee or agent therefore, because of the actual or

perceived . . . race . . . [or] national origin . . . 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(a)(1). “[T]he plaintiff need only show

differential treatment — that she is treated ‘less well’ — because of a discriminatory

intent.” Mihalik, 715 F.3d at 110. In this sense, a plaintiff proceeding under the

NYCHRL is not necessarily tethered to the McDonnell Douglas balancing test, as

“summary judgment dismissing a claim under the NYCHRL should be granted only

if no jury could find [a] defendant liable under any of the evidentiary routes —

McDonnell Douglas, mixed motive, direct evidence, or some combination thereof.”

Melman v. Montefiore Med. Ctr., 946 N.Y.S.2d 27, 30 (N.Y. App. Div. 2012) (internal

quotation marks omitted). “Under the NYCHRL, a discriminatory motive can be

show either by pleading direct evidence of discrimination, . . . or by pleading facts

showing that comparators were treated better than the plaintiff was.” Kurtanidze,

2025 WL 1898927, at *12. However, “a plaintiff’s mere subjective belief that he was

discriminated against because of his [national origin] does not sustain a [national

origin] discrimination claim.” Joseph v. Owens & Minor Distrib., Inc., 5 F. Supp. 3d

295, 309 (E.D.N.Y. 2014) (MKB) (internal quotation marks omitted).

Direct evidence of discrimination can come in many forms, including comments

directly admitting that an impermissible purpose was considered in making an

employment decision, see Barbano v. Madison Cnty., 922 F.2d 139, 143 (2d Cir. 1990)

(finding direct evidence of discrimination when an interviewer indicated he “would

not consider some woman for the position” (internal quotation marks omitted)), or a

supervisor implementing an informal policy with explicit racial considerations, see

Ames v. Cartier, Inc., 193 F. Supp. 2d 762, 768–69 (S.D.N.Y. 2002) (CBM) (explaining

that a store manager implying that “white male customers were to be served by white

female sales associates” was direct evidence of discrimination). Barot has not pointed

to any such direct evidence of discrimination here.

Rather, Barot argues that he has made a prima facie showing of discrimination

by presenting evidence that members of a similarly situated group were not subject

to the same conditions as F1 visa holders. See Pl. Mem. at 35. In support of this

contention, he points to his deposition testimony in which he said that F1 visa holders

were assigned more work than citizen GAs. Id. He also argues that because foreign

GAs had less bargaining power than citizen GAs, and they were unable to receive

compensation for work over 20 hours a week, “SJU . . . exploited Plaintiff and other

foreign GAs.” Id. at 36. However, aside from his own broad allegation that foreign

GAs were assigned more work than U.S. citizen GAs, Barot has offered no actual

evidence of a U.S. citizen GA being treated better than a foreign GA. He has not

identified a single U.S. citizen GA who worked fewer hours than a foreign GA, was

not required to be on call 24/7, or was not required to begin work prior to one-week

before the start of the semester. While it may be that SJU was in a position to exploit

foreign GAs as compared to U.S. citizen GAs because of their status, the claim that it

did exploit foreign GAs or otherwise treated citizen GAs preferentially is unsupported

by any evidence beyond Barot’s own conclusory statements. While the Court

recognizes that it is a low bar to overcome summary judgment on a discrimination

claim under the NYCHRL, a plaintiff cannot “rely on conclusory statements,

conjecture, and inadmissible evidence, but instead must offer some hard evidence

showing that his version of the events is not wholly fanciful.” Uttarwar v. Lazard

Asset Mgmt. LLC, No. 22-cv-819 (DEH), 2024 WL 1251177, at *4 (S.D.N.Y. Mar. 22,

2024) (internal citations and quotation marks omitted). Because the Court finds that

Barot’s discrimination claim under the NYCHRL does not survive summary

judgment, it must dismiss his NYSHRL claim as well.

b. Disparate Impact

The NYCHRL protects against policies or practices that “result[] in a disparate

impact to the detriment of any group protected” by the NYCHRL. N.Y.C. Admin.

Code § 8-107(17)(a)(1). The rule against disparate impact is designed to protect

against policies that are “fair in form, but discriminatory in operation.” Mandala v.

NTT Data, Inc., 975 F.3d 202, 207 (2d Cir. 2020) (quoting Griggs v. Duke Power Co.,

401 U.S. 424, 431 (1971)). While statistical evidence may not be strictly necessary to

prove a disparate impact claim, “statistical proof almost always occupies center stage

in a prima facie showing of a disparate impact claim.” Fitchett v. City of New York,

No. 18-cv-8144 (PAE), 2021 WL 964972, at *23 (S.D.N.Y. Mar. 15, 2021) (quoting

Adorno v. Port Auth. of N.Y. & N.J., 258 F.R.D. 217, 233 (S.D.N.Y. 2009) (DC). Where

statistical evidence may be impossible to obtain, such as “in cases involving small or

marginal samples, other indicia raising an inference of discrimination must be

examined.” Waisome v. Port Auth. of N.Y. & NJ., 948 F.2d 1370, 1379 (2d Cir. 1991).

Barot’s disparate impact claim must be dismissed for substantially the same

reasons as his discrimination claim. Not only has he produced no statistical evidence

that tends to show that SJU had policies or practices which had a disproportionately

negative effect on foreign students, he has produced no other evidence on this point.

Barot’s claim that “foreign GAs were impacted worse than citizen GAs because they

lacked recourse and alternative work opportunities,” Pl. Mem. at 36, is just that — a

claim. At the summary judgment stage, more is required. Thus, Barot’s NYCHRL

and NYSHRL disparate impact claims must be dismissed. See, e.g., Fitchett, 2021

WL 964972, at *24 (dismissing a disparate impact claim under NYCHRL at summary

judgment where plaintiff had “not identified a facially neutral policy that, with the

data subjected even to minimal rigor, . . .yielded racially disparate” impacts).

CONCLUSION

For the foregoing reasons, the Court grants SJU’s motion for summary

judgment in full. As this outcome disposes of Barot’s lawsuit in its entirety, his

motion to certify the proposed class (ECF No. 36) is moot. The Clerk of Court is

respectfully directed to terminate Barot’s motion for class certification and to close

this case.

SO ORDERED. /s/ Nina R. Morrison

NINA R. MORRISON

United States District Judge

Dated: September 18, 2025

Brooklyn, New York