Freyre v. New York City School Construction Authority

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

ANTHONY FREYRE,

Plaintiff,

23-cv-4222 (NRM) (JRC)

v.

MEMORANDUM AND ORDER

NEW YORK CITY SCHOOL

CONSTRUCTION AUTHORITY,

Defendant.

NINA R. MORRISON, United States District Judge:

Anthony Freyre, proceeding pro se, brings this action against the New York

City School Construction Authority (“NYCSCA”) pursuant to Title VII of the Civil

Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act of 1967

(“ADEA”), and the Americans with Disabilities Act of 1990 (“ADA”). Freyre, who was

born in 1961, alleges that he was discriminated against based on his race, disability,

and age at the hands of his supervisor, Gregory Glasgow, while employed at

NYCSCA. He alleges that this discrimination resulted in him being forced to quit his

position, thereby forfeiting his retirement benefits.

Defendant NYCSCA moves to dismiss Freyre’s claims under Federal Rule of

Civil Procedure 12(b)(6) for failure to state a claim. For the following reasons,

Defendants’ motion is GRANTED in part and DENIED in part.

BACKGROUND

The following facts are taken from the plaintiff’s Complaint and Letter in

Opposition to the Defendant’s Motion to Dismiss. “In evaluating the legal sufficiency

of a pro se plaintiff's claims, a court may rely on the plaintiff's opposition papers.”

Parks v. Montefiore Med. Ctr., No. 23-CV-4945 (JPO) 2025 WL 370830, at *3

(S.D.N.Y. Feb. 3, 2025) (quoting Vlad-Berindan v. MTA N.Y.C. Transit, No. 14-CV-

675 (RJS), 2014 WL 6982929, at *6 (S.D.N.Y. Dec. 10, 2024). Additionally, the Court

considers the emails Freyre has attached to his opposition. See Tannerite Sports,

LLC v. NBCUniversal News Grp., 864 F.3d 236, 247 (2d Cir. 2017) (“In determining

the sufficiency of [plaintiff’s] complaint, we may consider documents attached to

it . . . .”).

Anthony Freyre worked as a Manager of Operations at NYCSCA since March

3rd, 1998. See Plaintiff’s Complaint (“Compl.”), ECF No. 1, at 8 (Jun. 6, 2023).1 As

part of his duties, he performed contract compliance reviews, made site visits,

attended onsite project meetings, participated in outreach, met with SCA contractors,

and assisted in other related activities. See Plaintiff’s Letter in Opposition to

Defendant’s Motion to Dismiss (“Pl.’s Opp. Letter”), ECF No. 28 at 6 (Oct. 15, 2024).

1 Pincites refer to page numbers generated by CM/ECF, and not the

document’s internal pagination.

He has Coronary Artery disease, has undergone open heart surgery and a coronary

angioplasty, and has received a stent placement. See Pl.’s Opp. Letter at 2. During

the COVID-19 pandemic, Freyre received an accommodation to work remotely due to

his health conditions. See Compl. at 8. Beginning in May 2021, Freyre’s supervisor,

Gregory Glasgow, began to comment on this accommodation. See id. at 4 (indicating

that the discrimination occurred between May 2021 and September 2022).

Freyre alleges that Glasgow harassed him “almost every day because [of his]

age and [] disability.” Compl. at 9. In a June 2022 email to Glasgow and Vice

President of the Department Suzanne Veira, Freyre said that Glasgow’s “derogatory

comments” and “micro aggressions[sic]” had “created a “[h]ostile [w]ork

[e]nvironment” for him and other team members. Pl.’s Opp. Letter at 8. For instance,

during a team call, Glasgow told Freyre’s coworkers that they could “[g]ive [the work]

to [the Plaintiff], he’s home doing nothing.” Id. at 8; Pl.’s Opp. Letter at 8. Glasgow

also regularly told Freyre that he couldn’t supervise him remotely and would accuse

Freyre of not performing certain job duties. Compl. at 8. In May 2022, Freyre’s

remote work accommodations were extended by NYCSCA, and he was assigned

additional responsibilities outside his job description to “supplement [his] remote

work.” Pl.’s Opp. Letter at 6. Glasgow also commented on Freyre’s age and race,

calling him the “old guy of the team” and “the old Spanish guy.” Id. at 2.

Freyre complained to NYCSCA’s internal EEOC Officer Mariann Egri several

times but never received any follow-up or resolution to his complaints. Compl. at 9–

10. The constant pressure and stress of Glasgow’s comments made Freyre sick on

multiple occasions, to the point of requiring “cardiac intervention.” Id. at 9. After

sixteen months of these comments and alleged harassment from Glasgow, the

“unnecessary stress” from Glasgow caused to Freyre to resign in September 2022. Id.

On March 6, 2023, Freyre filed an administrative complaint with the EEOC.

Id. He received a “Determination and Notice of Rights” letter from the agency a week

later, which informed him that while the agency would “not proceed further with its

investigation,” it “ma[de] no determination about whether further investigation

would establish violations of the statute.” Id. at 10.

Freyre brought this action against NYCSCA on June 6, 2023, claiming that

Glasgow discriminated against him due to his disability under the ADA, his age

under the ADEA, and his race under Title VII. Id. at 3–5. He also alleged that he

was retaliated against for complaining about Glasgow’s behavior. Id. at 8–9; Pl.’s

Opp. Letter at 2. Freyre is seeking $31,000 of retirement contributions accumulated

during his twenty-four-year career at NYCSCA, along with damages for the harm to

his reputation, pain and suffering, and court fees. Compl. at 6. Defendant NYCSCA

filed this instant motion on November 8, 2024, to dismiss for failure to state a claim

under Federal Rule of Civil Procedure 12(b)(6). See ECF No. 29.

LEGAL STANDARDS

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). When reviewing a motion to dismiss, the Court

must accept as true all factual allegations in the complaint and draw all reasonable

inferences in favor of the Plaintiff. Olson v. Major League Baseball, 29 F.4th 59, 71

(2d Cir. 2022). To “evaluat[e] the legal sufficiency of a pro se plaintiff’s claims, [the

Court] may rely on the plaintiff’s opposition papers.” Parks, 2025 WL 370830, at *3

(S.D.N.Y. Feb. 3, 2025) (quoting Vlad-Berindan, 2014 WL 6982929, at *6 (S.D.N.Y.

Dec. 10, 2024)).

Under Title VII, to survive a motion to dismiss, a plaintiff need not “plead a

prima facie case under McDonnell Douglas,” Vega v. Hempstead Union Free Sch.

Dist., 801 F.3d 72, 84 (2d Cir. 2015), but must merely show that “absent direct

evidence of discrimination,” their pleadings “plausibly” support the facts in the

complaint. Buon v. Spindler, 65 F.4th 64, 79 (2d Cir. 2023). Specifically, he must

show that he “(1) is a member of a protected class, (2) was qualified, (3) suffered an

adverse employment action, and (4) has at least minimal support for the proposition

that the employer was motivated by discriminatory intent.” Id. (quoting Littlejohn v.

City of New York, 795 F.3d 297, 311 (2d Cir. 2015). “The same requirements apply

for claims under the ADEA and the ADA except that under the fourth prong, the

plaintiff’s age or disability must be a but-for cause (rather than a motivative cause)

of the plaintiff’s injury.” Mitchell v. Planned Parenthood of Greater New York, Inc.,

745 F. Supp. 3d 68, 89 (S.D.N.Y. 2024) (JLR) (citing Lively v. WAFRA Inv. Advisory

Grp. Inc., 6 F.4th 293, 302–03, 302 n.3 (2d Cir. 2021), and Natofsky v. City of New

York, 921 F.3d 337, 348 (2d Cir. 2019)). For pro se litigants, courts are “obliged to

construe the plaintiff’s pleadings liberally;” the complaint should be read to raise “the

strongest arguments” possible, “particularly so when the pro se plaintiff alleges that

his civil rights have been violated.” Ninying v. Fire Dep’t, 416 F. Supp. 3d 175, 178

(E.D.N.Y. 2017) (LDH) (internal citations omitted).

DISCUSSION

I. Title VII Discrimination Claims

NYCSCA argues that Freyre’s claim alleging it racially discriminated against

him must fail because the Plaintiff does not meet Title VII’s exhaustion requirement.

Def. Mem. at 8–9, ECF No. 29-1. This Court agrees.

Under Title VII, prior to bringing a suit in federal court, a claimant must file

a timely complaint with the EEOC and obtain a right-to-sue letter. See Williams v.

N.Y.C. Hous. Auth., 458 F.3d 67, 69 (2d Cir. 2006); Legnani v. Alitalia Linee Aeree

Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001). The requirement to exhaust

administrative remedies before bringing suit is designed to give the EEOC an

opportunity to investigate all alleged bases of discrimination properly. Shah v. N.Y.

Dep’t of Civ. Serv., 168 F.3d 610, 614 (2d Cir. 1999). Recognizing that employees often

complete EEOC complaints without the benefit of counsel, courts allow pro se

litigants to raise additional claims in their federal complaint so long as they are

“reasonably related” to a claim made in the administrative charge. Williams, 458

F.3d at 70; Butts v. N. Y. Dep’t of Hous., Preservation & Dev., 990 F.2d 1397, 1402 (2d

Cir. 1993). To determine if claims are reasonably related, a court must evaluate the

“specific factual allegations” in the administrative complaint. Williams, 458 F.3d at

71 (finding a sex discrimination claim survived exhaustion because, while the

plaintiff had only explicitly pled retaliation in their EEOC complaint, the facts

showed evidence of sexual harassment such that the EEOC should have been on

notice to investigate any underlying Title VII discrimination claims). However,

courts in this Circuit have generally held that claims in a federal complaint alleging

discrimination based on a protected classifications distinct from those asserted in

administrative filings are not reasonably related. See, e.g., Culbertson v. Charosa

Found. Corp., No. 03-CV-3742 (SJF), 2004 WL 2370686, at *3 (E.D.N.Y. Oct. 18, 2004)

(finding that an administrative complaint alleging gender discrimination was not

reasonably related to claims of age, race, and religious discrimination); see, e.g.,

Murray v. Brooklyn Pub. Libr., No. 96-CV-2786 (JG), 1997 WL 1048899, at *3

(E.D.N.Y. June 13, 1997) (dismissing a gender discrimination charge where

administrative complaint had only alleged discrimination on the basis of race and

age).

In his administrative complaint, Freyre did not complain of nor make any

reference to racially discriminatory actions or statements made by Glasgow or anyone

else. See Compl. at 8–9. As such, he did not provide the EEOC with the required

notice about potential race-based discrimination. See, e.g., Little v. Nat’l

Broadcasting Co., Inc., 210 F. Supp. 2d 330, 375 (S.D.N.Y. 2002) (SAS) (finding that

the reasonably related exception does not apply because there were no descriptions

of racial harassment or racial discrimination, or any mention of race at all in the

plaintiff’s administrative complaint). While he may have complained to NYCSCA’s

internal EEOC employee about such comments, see Pl.’s Opp. Letter at 2, Freyre did

not do so in his formal administrative charge to the EEOC. As such, all Title VII

claims, including any race-based retaliation claims, must be dismissed.

II. Intentional Discrimination Claims

NYCSCA argues that the Plaintiff’s intentional discrimination claims under

the ADA and ADEA must be dismissed under Rule 12(b)(6). Def. Mem. at 9–12, 15–

18. For the following reasons, the Court disagrees, and denies this aspect of

NYCSCA’s motion.

a. ADA Claim

To establish a prima facie discrimination case under the ADA, a plaintiff must

show that: (1) his employer was subject to the ADA; (2) he was disabled within the

meaning of the ADA; (3) he was otherwise qualified to perform the essential functions

of his job; and (4) he suffered adverse employment action because of his disability.

McMillan v. City of New York, 711 F.3d 120, 125 (2d Cir. 2013) (citing Sista v. CDC

Ixis N. Am. Inc., 445 F.3d 161, 169 (2d Cir. 2006)). NYCSCA does not argue that

Freyre did not meet the first or third factors, but does claim that Freyre failed to

plead that he has a qualifying disability and that an adverse employment action was

taken. Def. Mem. at 15–18. The Court disagrees.

i. Disability As Defined Under the ADA

Under the ADA, a disability is defined as “(a) a physical or mental impairment

that substantially limits one or more major life activities of such individual; (b) a

record of such an impairment; or (c) being regarded as having such an impairment.”

42 U.S.C. § 12102(1). This definition shall be construed “in favor of broad coverage

of individuals . . . to the maximum extent permitted by the terms [of the ADA].” 42

U.S.C. § 1202(4). “Factors to consider in determining whether a major life activity is

substantially limited include: the nature and severity of the impairment; its duration

or expected duration; and the existence of any actual or expected permanent or long

term impact.” Capobianco v. City of New York, 422 F.3d 47, 57 (2d Cir. 2005).

NYCSCA does not contest that Freyre’s heart condition is a physical

impairment, nor that working is a “major life activity.” See Def Mem. at 16; see 42

U.S.C. § 12102(2) (“[M]ajor life activities include . . . working”). Rather, they argue

that he “has not plausibly pleaded that his [impairment] substantially limits” his

ability to work. Def. Reply, ECF No. 29-3 at 11 (quoting 42 U.S.C. § 12102(1))

(emphasis supplied).

However, whether a disability substantially limits a plaintiff’s ability to work

is a fact-intensive question. Where courts have found that a heart condition was not

a qualifying disability, they have typically done so at summary judgment, after

finding that the plaintiff did not present the required evidence from which a jury

could infer substantial limitations. See, e.g., Villanti v. Cold Spring Harbor Cent.

Sch. Dist., 733 F. Supp. 2d 371, 378–79 (E.D.N.Y. 2010) (ADS), reconsidered on other

grounds, No. 08-CV-434, 2011 WL 13302730 (2011) (granting in part the defendant’s

motion for summary judgment on the plaintiff’s ADA claim because the medical

evidence of her heart condition was insufficient to show that she was substantially

limited in working); Scott v. Flaghouse, Inc., 980 F. Supp. 731, 734 (S.D.N.Y. 1997),

vacated in part on other grounds, 159 F.3d 1348 (2d Cir. 1998) (granting summary

judgment for the employer because the court found the plaintiff was not actually

disabled as her heart condition was considered benign by doctors and she was “fairly

asymptomatic”). Here, Freyre’s pleadings alleged that his heart condition did impact

his ability to perform his job, see Pl.’s Opp. Letter at 4 (alleging that emails were sent

between parties in which Freyre asked to move a meeting because he had to recover

from a medical procedure), and his employer even recognized as much, providing him

with accommodations to work from home and not attend in person meetings because

of his condition, see Compl. at 8. Freyre has clearly pled that his disability

substantially limited his ability to work.

NYCSCA argues that a “diagnosis alone” cannot establish a disability under

the ADA. Def. Mem. at 16 (citing Ibela v. Allied Universal, 2022 WL 1418886, at *2

(2d Cir. May 5, 2022) (summary order) (finding that dismissing a complaint was

appropriate where the plaintiff simply submitted a diagnosis without alleging “any

facts showing that his [impairment] impacted, let alone substantially limited, a major

life activity”). Freyre, however, has pled more than a “diagnosis alone.” He not only

pled that his condition was such that he was given accommodations by his employer,

see Compl. at 8, but also that — combined with the extreme stress of his job — it

forced him to seek “cardiac intervention,” id. at 9.

NYCSCA also argues that the plaintiff is not “significantly restricted” from

performing a broad range of jobs. Def. Mem. at 17. In Darcy v. Lippman, a case cited

by NYCSCA, the Second Circuit relied on the fact that the plaintiff “conceded that he

was able to perform his own job without accommodation” in holding that plaintiff was

not restricted from performing a broad range of jobs. 356 Fed. App’x 434, 437 (2d Cir.

2009) (summary order). But here, Freyre has affirmatively pled that he needed

accommodations to perform his job, and for a time, his employer did provide them.

See Compl. at 8. NYCSCA’s reliance on Woolf v. Strada for the proposition that

Freyre did not plead that he was significantly restricted from performing a broad

range of jobs is similarly inapposite, as the Second Circuit in that case affirmed a

grant of summary judgment, noting that the plaintiff had not presented sufficient

evidence from which a jury could find that his impairment “limited his ability to work

in a . . . broad range of jobs.” 949 F.3d 89, 95 (2d Cir. 2020). Freyre has certainly

pled that his heart condition limited his ability to work in a broad range of jobs.

Whether or not he can produce the evidence behind that claim to survive a summary

judgment motion is a question for another day. His complaint, however, readily

satisfies the first prong of an ADA discrimination claim.

ii. Adverse Employment Action via Constructive Discharge

NYCSCA next argues that even if Freyre’s pleadings establish that he had a

disability within the meaning of the ADA, he does not adequately plead that he

suffered an adverse employment action. Def. Mem. at 17–18. The Court disagrees.

“An ‘adverse employment action’ for the purpose of a discrimination claim

pursuant to the ADA is a ‘“materially adverse change” in the terms and conditions of

employment.’” Giambattista v. American Airlines, Inc., 5 F. Supp. 3d 284, 292

(E.D.N.Y. 2014) (ADS) (AKT) aff'd, 584 Fed. App'x 23 (2d Cir. 2014) (quoting Sanders

v. New York City Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004)). Constructive

discharge is “functionally the same as an actual termination” and therefore “is

considered an adverse employment action under Title VII.” Notaro v. Fossil Indus.,

Inc., 820 F. Supp. 2d 452, 459 (E.D.N.Y. 2011) (ADS) (ARL) (quoting Pa. State Police

v. Suders, 524 U.S. 129, 148 (2004)). Because “[a]n adverse employment action has

the same meaning in ADA discrimination claims as it does in the Title VII context,”

a constructive discharge is considered an adverse employment action for the purposes

of an ADA discrimination claim. Kelly v. New York State Office of Mental Health, 200

F. Supp. 3d 378, 396 (E.D.N.Y. 2016) (KAM) (SLT) (quoting Medcalf v. Thompson

Hine LLP, 84 F. Supp. 3d 313, 329 n. 14 (S.D.N.Y. 2015) (ER)).

Constructive discharge occurs when an employer “creates an intolerable work

atmosphere that forces an employee to quit involuntarily.” Flaherty v. Metromail

Corp., 235 F.3d 133, 138 (2d Cir. 2000) (quoting Chertkova v. Conn. Gen. Life Ins. Co.,

92 F.3d 81, 89 (2d Cir. 1996)). To be “intolerable,” working conditions must be “so

difficult or unpleasant that a reasonable person in the employee's shoes would have

felt compelled to resign.” Giambattista, 5 F. Supp. 3d at 292 (E.D.N.Y. 2014) (ADS)

(AKT), (quoting Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987)).

Given this high standard, “mere dissatisfaction with job assignments or criticism

from a supervisor do[es] not, in [itself], give rise to a constructive discharge claim.”

Kalp v. Kalmon Dolgin Affiliates of Long Island Inc., No. 11-CV-4000 (JG), 2013 WL

1232308, at *9 (E.D.N.Y. Mar. 27, 2013).

NYCSCA claims that Freyre was not constructively discharged because he only

made conclusory allegations that failed to show his work environment was

intolerable. Def. Mem. at 18–19. However, Freyre’s pleadings point to several

specific comments Glasgow made directly regarding Freyre’s accommodations, such

as stating that he was “home doing nothing,” and that he couldn’t supervise Freyre

because he was “working remotely,” as well as claiming that there was “nothing

wrong with [him].” Compl. at 8; Pl.’s Opp. Letter at 2. These comments create a

plausible inference that Glasgow held the view that he did not want Freyre to

continue in his position because of these accommodations, comments which would be

discriminatory under the ADA. See Thompson v. State Farm Mut. Auto. Ins. Co., No.

22-CV-8375 (AS), 2024 WL 922820, at *3 (S.D.N.Y. Mar. 4, 2024) (citing cases where

negative comments made about accommodations were seen as evidence of

discriminatory intent). Importantly, Freyre does not allege that these comments

were simply in passing or one-off remarks. Rather, he states that “Glasgow would

harass [him] almost every day because [his] age and [his] disability bothered

him. . . . [Glasgow] kept questioning [Freyre] about what [Freyre] was doing working

remotely.” Compl. at 9. While simply implying that Glasow harassed him daily may

in itself be conclusory, that allegation — combined with the specific remarks Freyre

alleges Glasgow made — certainly permits the inference that his working conditions

were sufficiently “intolerable” and “so difficult or unpleasant that a reasonable person

in [Freyre’s] shoes would have felt compelled to resign.” Lopez, 831 F.2d at 1188.

However, Freyre does not rely on Glasgow’s comments alone to plead a

constructive discharge. Freyre alleges that Glasgow also assigned him additional

duties in response to his purportedly lighter remote workload. See Pl.’s Opp. Letter

at 6. Finally, the fact that Freyre sought to redress the issues with Glasgow through

other avenues prior to filing an administrative complaint — engaging in

conversations with Glasgow and Vice President Veira and making complaints to

NYCSCA’s EEOC officer — supports Freyre’s claim that Glasgow’s actions were

intolerable and led to his constructive discharge. See Pl. Opp. Letter at 2, 8; contra

Culmone-Simeti v. N.Y.C. Dep’t of Educ., No. 17-CV-2313 (ER), 2019 WL 2409736, at

*3–4 (S.D.N.Y. June 7, 2019) (dismissing a constructive discharge claim where

plaintiff did not take advantage of other avenues of redress).

Freyre has sufficiently pled that Glasgow, by repeatedly denigrating Freyre’s

disability and the accommodations he had been granted, created an environment so

intolerable that he was eventually forced to quit. As such, he has met all the elements

of a discrimination claim under the ADA to defeat a motion to dismiss, and NYCSCA’s

motion to dismiss the ADA discrimination claim is denied.

b. ADEA Claim

NYCSCA alleges that Freyre’s ADEA claims also fail. Def. Mem. at 9–12. For

essentially the same reasons as to the ADA claim, this Court disagrees.

ADEA claims are governed by the same four factors as ADA claims. See Buon,

65 F.4th at 79; Lebowitz v. N.Y.C. Dep’t of Educ., 407 F. Supp. 3d 158, 170 (E.D.N.Y.

2017) (LDH) (ST). NYCSCA does not dispute that Freyre was within the protected

age group or qualified for his position, Def. Mem. at 10, but it does argue that he did

not suffer from an adverse employment action. Def. Mem. at 11–12. However, as

discussed supra, Freyre’s pleadings can reasonably make out a constructive

discharge. That constructive discharge was rooted in comments regarding both his

accommodations and age. See Compl. at 8 (“Mr. Glasgow would harass me almost

every day because my age and my disability bothered him.”). As discussed supra, this

is sufficient to meet the adverse employment action requirement for a discrimination

claim.

NYCSCA further alleges that Freyre’s allegations are merely conclusory and

do not rise to an “inference of age discrimination.” Def. Mem. at 11. However, Freyre

does point to specific comments Glasgow made regarding his age. See Pl.’s Opp.

Letter at 2 (referring to Plaintiff as “the old guy of the team” or “the old Spanish guy”).

In light of the Court’s liberal reading of pro se pleadings, Sealed Plaintiff v. Sealed

Defendant, 537 F.3d 185, 191 (2d Cir. 2008), Freyre’s pleadings demonstrate a

plausible inference of age discrimination.

III. Hostile Work Environment

While NYCSCA does not explicitly address the Plaintiff’s hostile work

environment claim, to the extent that it seeks dismissal of that claim, the Court

disagrees.

The standard for evaluating a hostile work environment claim is the same

under Title VII, the ADEA, and the ADA. See Lebowitz, 407 F. Supp. 3d at 181; Fox

v. Costco Wholesale Corp., 918 F.3d 65, 74–75 (2d Cir. 2019). Under Title VII, a

plaintiff can establish a hostile work environment claim by showing that “the

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

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

create an abusive working environment.” Littlejohn, 795 F.3d at 320 (quoting Harris

v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). The “severe or pervasive” standard has

both a subjective and objective component. Raspardo v. Carlone, 770 F.3d 97, 114

(2d Cir. 2014) (citing Harris, 510 U.S. at 21–22). While the court can consider the

“effect of the identified incidents on the employee’s [subjective] psychological well-

being,” the conduct complained of must also be objectively severe or pervasive enough

“that a reasonable person would find it hostile or abusive.” Id. A court can consider

the “totality of the circumstances,” including “facially neutral incidents,” so long as

“a reasonable fact-finder could conclude that they were, in fact, based on [the alleged

discrimination].” Kaytor v. Elec. Boat Corp., 609 F.3d 537, 547 (2d Cir. 2010). And

“[w]here an alleged constructive discharge stems from an alleged hostile work

environment, a plaintiff must show working conditions so intolerable that a

reasonable person would have felt compelled to resign,” which is “higher than the

standard for establishing a hostile work environment.” Fincher v. Depository Trust

and Clearing Corp., 604 F.3d 712, 725 (2d Cir. 2010) (internal quotation marks

omitted) (affirming summary judgment against Plaintiff’s hostile work environment

and constructive discharge claims). Therefore, if Freyre’s pleadings defeat a motion

to dismiss his constructive discharge claims, his hostile work environment claim that

stems from the same circumstances is most likely also sufficient to defeat a motion to

dismiss.

Within the time period identified, Glasgow made several comments that allude

to Freyre’s accommodations and age, such as stating that he was “home doing

nothing,” as well as referring to him as “the old guy.” Compl. at 8; Pl.’s Opp. Letter

at 2. While these comments may have subjectively caused the Plaintiff to feel

distress, see Compl. at 9, taken in isolation, it is difficult to infer that any one of these

statements “could be said to [have] substantially interfere[d] with or impair[ed]

[Freyre’s] ability to do his job.” Awad v. City of New York, No. 13-CV-5753 (BMC),

2014 WL 1814114, at *7 (E.D.N.Y. May 7, 2014) (internal quotation marks omitted).

Therefore, it is possible that these comments were not “extraordinarily severe”

enough to meet the high bar required for a hostile work environment claim. Alfano

v. Costello, 294 F.3d 365, 374 (2d Cir. 2002).

However, a hostile work environment can be pled by identifying comments that

are “sufficiently severe or pervasive.” Littlejohn, 795 F.3d at 320 (emphasis supplied)

(quoting Harris, 510 U.S. at 21). As discussed supra, Freyre pleads that Glasgow

regularly made comments regarding Freyre’s accommodations and age for over

sixteen months. Compl. at 8–9, Pl.’s Opp. Letter at 2. Such frequency is not isolated

or episodic. See, e.g., Doyle v. Am. Glory Rest. Corp., No. 23-CV-7624 (PAE), 2024 WL

1466161, at *6 (S.D.N.Y. Apr. 4, 2024) (denying a motion to dismiss for a hostile work

environment claim where the complaint alleged defendants were making sexually

offensive comments daily); Cruz v. N.Y. State Dep’t of Corrs. & Cmty. Supervision,

No. 13-CV-1335 (AJN), 2014 WL 2547541, at *4 (S.D.N.Y. June 4, 2014) (denying a

defendant's motion to dismiss where a plaintiff alleged that his “supervisor made

almost-daily comments for over three years, remarking upon his physical appearance,

gender, and sexual attractiveness while smiling seductively, and implying sexual

intent”). Accordingly, Freyre has pled that Glasgow's statements were pervasive

enough to survive a motion to dismiss his hostile work environment claim.

IV. Retaliation

In addition to intentional discrimination claims, Freyre alleges a broad

retaliation claim. See Compl. at 4. NYCSCA argues that Freyre has not adequately

pled a retaliation claim. Def. Mem. at 12–15. The Court disagrees.

“To establish a prima facie case of retaliation under the ADA, a plaintiff must

establish that (1) the employee was engaged in an activity protected by the ADA, (2)

the employer was aware of that activity, (3) an employment action adverse to the

plaintiff occurred, and (4) there existed a causal connection between the protected

activity and the adverse employment action.” Sarno v. Douglas Elliman-Gibbons &

Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999). The same standard applies to claims

made under the ADEA. See Kessler v. Westchester Cnty. Dep't of Soc. Servs., 461 F.3d

199, 206 (2d Cir. 2006) (quoting Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir.

2001)). The plaintiff “need not establish that the conduct he opposed was actually a

violation of the statute so long as he can establish that he possessed a good faith,

reasonable belief that the underlying challenged actions of the employer violated

th[at] law.” Sarno, 183 F.3d at 159 (internal citations omitted).

NYCSCA attacks the causation element of Freyre’s retaliation claim, alleging

that it fails because his alleged protected activity was “requesting a reasonable

accommodation on an unspecified date and by filing an EEOC charge.” Def. Mem. at

13. NYCSCA argues that there is no way the EEOC charge caused retaliation

because by the time the administrative complaint had been filed, “[Freyre] had

already chosen to retire.” Id. However, an EEOC charge is not the only protected

activity which can lead to retaliation. Here, the protected activity here stems not

from Freyre’s EEOC claim, nor his request for an accommodation, but from the

internal complaints Freyre made to NYCSCA’s EEOC Officer Mariann Egri during

his employment. Compl. at 8–9; Pl.’s Opp. Letter at 2. This is sufficient to show

engagement in a protected activity. Cf. Crawford v. Metro. Gov’t of Nashville and

Davidson Cnty., Tenn., 555 U.S. 271, 276 (“When an employee communicates to her

employer a belief that the employer has engaged in . . . a form of employment

discrimination, that communication virtually always constitutes the employee’s

opposition to the activity.” (internal quotations omitted)).

NYCSCA was aware of these internal complaints. See Pl.’s Opp. Letter at 7

(writing in a June 2022 email to Freyre that Glasgow and the Plaintiff “can continue

this discussion of how to supervise [his] work with Suzanne or the SCA EEO Officer”).

Construing Freyre’s pleadings liberally in his favor, it can be fairly inferred that there

is a causal nexus between these internal complaints and Glasgow’s behavior,

ultimately resulting in the Plaintiff’s constructive discharge. While it is true that

Freyre does not include specific dates for those internal complaints, see generally id.,

he does plead that he had raised these issues by June 14, 2022, see id. at 7 (attaching

an email from Glasgow to Freyre expressing surprise at Freyre’s complaints). The

lack of specific dates, therefore, does not doom his claim. See DeVore v. Neighborhood

Hous. Servs. of Jamaica Inc., No. 15-CV-6218 (PKC), 2017 WL 1034787, at *11 n.18

(E.D.N.Y. Mar. 16, 2017) (noting that “because Plaintiff is pro se[] and has provided

some dates that tend to support an inference of causation, the Court does not find the

lack of precise dates to be fatal to Plaintiff's retaliation claim at this stage.”).

Even if, as the Defendant suggests, the retaliation was not in response to

Freyre’s internal complaints, see Def. Mem. at 13, nor his initial request for

accommodations in 2020 or 2021, see id. at 14, Freyre can meet his burden by

showing that it came in response to a different protected activity: his request for

continued accommodations in May 2022, see Pl.’s Opp. Letter at 6. As Freyre alleges,

Glasgow continued making his discriminatory comments and assigning additional

duties to him after May 2022, until he was forced to leave the job in September 2022.

See Compl. at 8–9; Pl.’s Opp. Letter at 6. Thus, NYCSCA’s claim that the constructive

discharge was “over a year” after the original accommodation request, and as such

the accommodation request could not have been the “but for” cause of him being

forced to retire, is irrelevant. See Def. Mem. at 14. Only five months passed between

Freyre’s May 2022 request and his resignation in September 2022. Given that Freyre

pled that he was subjected to pervasive harassment by Glasgow during that time,

NYCSCA’s argument that any adverse employment action could not have been

caused by Freyre’s protected activity is without merit. See Espinal v. Goord, 558 F.3d

119, 129 (2d Cir. 2009) (finding that while there is no “bright line to define the outer

limits beyond which a temporal relationship is too attenuated to establish a causal

relationship,” six months between an action and an alleged retaliation “is sufficient

to support an inference of a causal connection”) (first quoting Gorman-Bakos v.

Cornell Co-op Extension., 252 F.3d 545, 554 (2d Cir. 2001)). Freyre’s retaliation claim

thus survives the motion to dismiss.

CONCLUSION

For the reasons stated above, the Defendant’s motion to dismiss Freyre’s Title

VII claim and related retaliation claims against NYCSCA is granted. The

Defendant’s motion to dismiss Freyre’s ADA and ADEA claims alleging intentional

discrimination, hostile work environment, and related retaliation under 12(b)(6) is

denied.

SO ORDERED.

/s/ Nina R. Morrison

NINA R. MORRISON

United States District Judge

Dated: September 29, 2025

Brooklyn, New York