under Section 1983 a plaintiff “must plausibly allege that: (1) defendant[] acted under the color of state law, (2) defendant[] took adverse employment action against [plaintiffs], (3) because [they] complained of or otherwise opposed discrimination.”
How later courts described this case
- under Section 1983 a plaintiff “must plausibly allege that: (1) defendant[] acted under the color of state law, (2) defendant[] took adverse employment action against [plaintiffs], (3) because [they] complained of or otherwise opposed discrimination.”
- “an adverse employment action is any action that could well dissuade a reasonable worker from making or supporting a charge of discrimination.”
- “[W]e certainly see no error or abuse of discretion in the District Court’s dismissal of [the plaintiff’s] complaint with prejudice, as [the plaintiff] did not request leave to re-amend.”
- holding that publicly yelling at plaintiff on the sales floor did not constitute an adverse employment action
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT 9/30/2025
SOUTHERN DISTRICT OF NEW YORK
SHELTON J. HAYNES AND GRETCHEN
K.ROBINSON,
Plaintiffs,
-against-
1:23-cv-08051 (MKV)
EXECUTIVE CHAMBER FOR THE
OFFICE OF THE GOVENOR OF NEW OPINION AND ORDER
YORK, ROOSEVELT ISLAND GRANTING DEFENDANT
OPERATING CORPORATION, ROGER FHALA’S MOTION
MALDONADO, TANIA DISSANAYAKE,
RUTHANNE VISNAUSKAS, DIANA
LOPEZ, ALEJANDRO VALELLA, and BEN
FHALA,
Defendants.
MARY KAY VYSKOCIL, United States District Judge:
Plaintiffs Shelton J. Haynes and Gretchen K. Robinson (collectively, “Plaintiffs”), brought
this action against Defendants Executive Chamber for the Office of the Governor of New York
(the “Chamber”) and Roosevelt Island Operating Corporation (“RIOC”) asserting discrimination
and retaliation claims under Title VII and against Individual Defendants Roger Maldonado, Tania
Dissanayake, Ruthanne Visnauskas, Diana Lopez, Alejandro Valella, and Ben Fhala alleging race
discrimination, retaliation, and hostile work environment claims under Title 42, United States
Code Section 1983 (“Section 1983”), the New York State Human Rights Law (“NYSHRL”), and
the New York City Human Rights Law (“NYCHRL”). The Court previously granted a motion to
dismiss on behalf of Defendants Chamber, Maldonado, Dissanayake, Visnauskas, Lopez, and
Valella. [ECF No. 120].
Before the Court now is a motion by Defendant Ben Fhala to dismiss the Second Amended
Complaint. [ECF No. 112]. Defendant Fhala moved to dismiss pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure [ECF No. 111], however, Defendant Fhala previously filed an
Answer in this action. [ECF No. 96]. As such, the Court construes and resolves the pending
motion pursuant to Rule 12(c).1 For the reasons discussed below Defendants’ motion is
GRANTED.
BACKGROUND2
I. Factual Background
Plaintiff Haynes was the Chief Executive Officer and President of RIOC. SAC ¶ 7.
Plaintiff Robinson was the Vice President and General Counsel of RIOC. SAC ¶ 8.
RIOC is a New York State public benefit corporation responsible for operating Roosevelt
Island, New York. SAC ¶ 10. RIOC has a Board of Directors which governs RIOC, sets RIOC
policy, and is responsible for the business affairs of RIOC. SAC ¶ 23. The RIOC Board is
composed of nine members including the Commissioner of the New York State Division of
Housing and Community Renewal (or his or her designee); the New York State Budget Director
(or his or her designee); and seven public members appointed by the Governor with the advice and
consent of the Senate. SAC ¶ 23. Defendant Fhala was one of the seven public members and he
was nominated and confirmed on or about June 9, 2023 to serve as a RIOC Board Member. SAC
¶ 17.
1 The Second Circuit has made clear that a district court can and should consider an untimely Rule 12(b)(6) pre-answer
motion to dismiss as a Rule 12(c) motion for judgment on the pleadings. See Patel v. Contemp. Classics of Beverly
Hills, 259 F.3d 123, 126–27 (2d Cir. 2001) (“Thus, here, even if [the defendant] had answered the complaint, his
motion to dismiss, although styled as a Rule 12(b)(6) motion, could and should have been considered as a Rule 12(c)
motion for judgment on the pleadings.”).
2 The facts are taken from the Second Amended Complaint, (“SAC,” ECF No. 81]), and are accepted as true for
purposes of the motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[F]or the purposes of a motion
to dismiss we must take all of the factual allegations in the complaint as true.”); see also Patel, 259 F.3d at 126 (“[t]he
standard for granting a Rule 12(c) motion for judgment on the pleadings is identical to that of a Rule 12(b)(6) motion
for failure to state a claim.”).
The New York State Inspector General (“NYSIG”) is responsible for receiving and
investigating complaints concerning allegations of corruption, fraud, criminal activity, conflicts of
interest or abuse in any entity under its jurisdiction, including New York State public benefit
corporations. SAC ¶ 18. The New York State Office of Employee Relations (“OER”) is the New
York State entity charged with investigating complaints of employment-related protected class
discrimination in agencies and departments over which the Governor has executive authority.
SAC ¶ 19. The New York State Commission on Ethics and Lobbying in Government (“COELIG”)
was created to ensure compliance with the ethics and lobbying laws and regulations of the State
and has jurisdiction over New York State public benefit corporations. SAC ¶ 20. The New York
State Department of Human Rights (“NYSDHR”) is the State agency charged with enforcing New
York State’s Human Rights Law. SAC ¶ 21. The Office of the New York State Comptroller is
responsible for providing independent fiscal oversight on the State and local finances. SAC ¶ 22.
Plaintiffs allege that the prior CEO and President of RIOC, Susan Rosenthal, was
terminated by the Defendant Chamber following an investigation by the OER, which revealed
numerous instances in which Rosenthal spoke to subordinates using racist and sexually
inappropriate language. SAC ¶ 52. Plaintiff Haynes was appointed to the role of acting President
of RIOC by the RIOC Board and later appointed to the permanent position of CEO and President
of RIOC. SAC ¶¶ 53–54. Plaintiffs, both of whom are African American, SAC ¶ 1, allege that
they have received an unprecedented level of scrutiny and hostility because of their race since the
promotion of Plaintiff Haynes to CEO and President of RIOC. SAC ¶¶ 55–56. On June, 16, 2023,
Chamber and HCR received a letter from Plaintiffs’ counsel requesting a litigation hold and citing
racial discrimination and retaliation. SAC ¶ 141.
Plaintiffs allege that approximately one month after Defendant Fhala was confirmed to the
RIOC Board, he sent an email, on which Plaintiffs were not included, requesting that he be added
to the Audit Committee and asking to create a new committee for transportation and parking. SAC
¶ 143. Plaintiffs further allege that Defendant Fhala ignored the practice of how an RIOC Board
Member should contact stakeholders. SAC ¶¶ 145–46. Plaintiffs also allege that Defendant Fhala
contacted sister agencies and other RIOC staff without first reaching out to Plaintiff Haynes. SAC
¶ 147. Plaintiffs allege that Defendant Fhala sent an email with respect to an upcoming RIOC
Board meeting that accused Plaintiff Robinson of deliberately delaying the upcoming RIOC Board
meeting. SAC ¶ 148. This email was sent to the RIOC Board, Plaintiff Haynes, Plaintiff Robinson,
the RIOC Legal Department, Senator Krueger, Assemblymember Seawright, and others, which
allegedly breached the general practice of not sending emails pertaining to internal RIOC Board
matters to non-RIOC parties. SAC ¶ 148.
At the subsequent RIOC Board meeting, on or about August 7, 2023, Defendant Fhala
allegedly accused Plaintiff Haynes of blocking his appointment to committee positions and
accused Plaintiff Robinson of misrepresenting the RIOC Board bylaws to prevent him from being
appointed to committee positions. SAC ¶ 149. Plaintiffs claim that Defendant Fhala acted in an
antagonistic manner and was rude and condescending. SAC ¶ 149. Shortly thereafter, Defendant
Fhala emailed Lopez, Visnauskas, Valella, Robinson and other staff in RIOC’s Legal Department
stating that he did not believe he was under an obligation to keep internal RIOC matters
confidential. SAC ¶ 151. Plaintiff Haynes emailed Plaintiff Robinson and Visnauskas, Lopez,
Valella, Dissanayake, and Maldonado in response to complain about Defendant Fhala’s
disrespectful and condescending behavior. SAC ¶ 151. Plaintiffs allege that despite being
instructed otherwise, Defendant Fhala continued to ignore the standard procedures by which RIOC
Board Members were expected to abide, including communicating with Plaintiffs in an
antagonistic manner and criticizing and demeaning Plaintiffs. SAC ¶¶ 152–53
Plaintiffs further allege that within approximately one week of the filing their initial
complaint in this action, September 12, 2023, Defendant Fhala, who was not named in the original
complaint, had taken steps to reduce the scope of Plaintiffs’ authority, initiated a new frivolous
investigation against them, and criticized Plaintiffs to the media. SAC ¶ 155. In particular,
Defendant Fhala sought an “emergency” board meeting to reduce Plaintiff Haynes’ monetary
approval thresholds. SAC ¶ 156. Plaintiffs further allege that Defendant Fhala initiated another
investigation into Plaintiffs, by emailing both the office of NYSIG and the COELIG to suggest
that Plaintiffs’ procurement of a contract with a digital reputation management company was
improper. SAC ¶¶ 163–67. Plaintiffs further allege that Defendant Fhala has sent several emails
critical of Plaintiff Haynes to a local blogger Rick O’Conor and local elected officials. SAC ¶¶
168–74.
Plaintiffs further allege that Defendant Fhala showed up at RIOC headquarters and
demanded meetings with staff. SAC ¶¶ 172, 175–76. Plaintiffs allege that Defendant Fhala has
repeatedly “scolded” Plaintiffs and spoken to them in a condescending, derogatory manner. SAC
¶ 177.
On or about December 8, 2023, Plaintiffs filed the amended complaint in this action, and
added the Chamber, RIOC, and Fhala as defendants. SAC ¶ 180. Thereafter, on or about January
12, 2024, Defendant Fhala sent an email asserting that at the upcoming RIOC Operations Advisory
Committee meeting, he planned to publicly scrutinize the procurement contract with the digital
reputation management company and specifically mentioned that Plaintiff Haynes may oppose.
SAC ¶¶ 187–88.
II. Procedural Background
Plaintiffs commenced this action on September 12, 2023 against Defendants Maldonado,
Dissanayake, Lopez, Valella, and Visnauskus. [ECF No. 1]. Subsequently, Plaintiffs filed an
amended complaint adding Defendants Chamber, RIOC, and Fhala. [ECF No. 43]. Thereafter,
Plaintiffs filed a Second Amended Complaint, their operative complaint. [ECF No. 81].
Defendant Fhala filed an Answer, [ECF No. 96], and then subsequently filed a pre-motion letter
seeking leave to file a motion to dismiss [ECF No. 109]. The Court, in response to the parties’
letters, set a briefing schedule. [ECF No. 111]. The Court previously granted a motion to dismiss
the Second Amended Complaint filed by Defendants Chamber, Dissanayake, Lopez, Maldonado,
Valella, and Visnauskus pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. [ECF
No. 120].
Now before the Court is a separate motion filed by Defendant Fhala to dismiss the Second
Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. [ECF No.
112]. Defendant Fhala is named in Count Three (race discrimination in violation of 42 U.S.C. §
1983), Count Four (retaliation in violation of 42 U.S.C. § 1983), Count Five (hostile work
environment in violation of 42 U.S.C. § 1983), Count Six (race discrimination in violation of
NYSHRL), Count Seven (retaliation in violation of NYSHRL), Count Eight (hostile work
environment in violation of NYSHRL), and Count Nine (race discrimination in violation of
NYCHRL), Count Ten (retaliation in violation of NYCHRL), and Count Eleven (hostile work
environment in violation of NYCHRL). In support of his motion, Defendant submitted a
memorandum of law. [ECF No. 113, (“Def. Mem.”)]. In opposition, Plaintiffs filed a
memorandum of law. [ECF No. 115, (“Pls. Opp.”)]. In further support, Defendant field a reply.
[ECF No. 116, (“Def. Reply”)].
LEGAL STANDARD
The Second Circuit has made clear that even if a defendant has answered a complaint, a
“motion to dismiss, although styled as a Rule 12(b)(6) motion, could and should [be] considered
as a Rule 12(c) motion for judgment on the pleadings.” Patel, 259 F.3d at 126. Furthermore,
“[t]he standard for granting a Rule 12(c) motion for judgment on the pleadings is identical to that
of a Rule 12(b)(6) motion for failure to state a claim.” Id.; see also Pelczar v. Maimone, No. 23-
7283, 2024 WL 4690347, at *1 n.1 (2d Cir. Nov. 6, 2024) (summary order). In the context of both
Rule 12(b)(6) and 12(c) motions, “the district court must accept all allegations in the complaint as
true and draw all inferences in the non-moving party’s favor.” Patel, 259 F.3d at 126.
Thus to survive a Rule 12(b)(6) or 12(c) motion to dismiss, a complaint must plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007); see also Matzell v. Annucci, 64 F.4th 425, 433 (2d Cir. 2023). A claim is facially
plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). More specifically, a plaintiff must allege sufficient facts to show “more than a sheer
possibility that a defendant has acted unlawfully.” Id. In analyzing a motion to dismiss, the Court
must “accept[ ] all of the complaint’s factual allegations as true and draw[ ] all reasonable
inferences in the plaintiff’s favor.” Siegel v. HSBC North America Holdings, Inc., 933 F.3d 217,
222 (2d Cir. 2019) (quoting Giunta v. Dingman, 893 F.3d 73, 78–79 (2d Cir. 2018)).
On a Rule 12(c) motion, motion for judgment on the pleadings, “courts may consider all
documents that qualify as part of the non-movant’s ‘pleading,’ including (1) the complaint or
answer, (2) documents attached to the pleading, (3) documents incorporated by reference in or
integral to the pleading, and (4) matters of which the court may take judicial notice.” Lively v.
WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293, 305–06 (2d Cir. 2021). As such, in resolving the
pending motion the Court limits itself only to those materials.
DISCUSSION
I. Plaintiffs Have Not Alleged Sufficient Facts to Establish
Liability Under Section 1983 With Respect to Defendant Fhala.
Plaintiffs assert claims for race discrimination, retaliation, and hostile work environment
under Section 1983 against Defendant Fhala in his individual capacity. See SAC ¶¶ 219–85.
Section 1983 provides that:
[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the District
of Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured . . . .
42 U.S.C. § 1983. As an initial matter, to state a claim under Section 1983 a plaintiff must establish
that the person was acting under the color of state law. Vincent v. Annucci, 63 F.4th 145, 151 (2d
Cir. 2023) (“plaintiff must establish that a person acting under the color of state law deprived him
of a right guaranteed by the Constitution or the laws of the United States”).
Plaintiffs sufficiently allege, and Defendant does not dispute, that Defendant Fhala, in his
role as board member of RIOC, was acting under color of law when he engaged in the purported
discriminatory conduct. See SAC ¶ 220. Accordingly, since the color of law requirement is
satisfied, the Court examines Plaintiffs’ Section 1983 claims against Defendant Fhala under the
same standards governing Title VII claims with the addition of the requirement of personal
involvement by each Defendant. See Vincent, 63 F.4th at 151; see also Baltas v. Maiga, 119 F.4th
255, 269 (2d Cir. 2024) (A Section 1983 claim is the same as a Title VII claim except that it
requires allegations of “[p]ersonal involvement of defendants in [the] alleged constitutional
deprivations.”). The Second Circuit has held that “personal involvement” means “direct
participation, or failure to remedy the alleged wrong after learning of it, or creation of a policy or
custom under which unconstitutional practices occurred, or gross negligence in managing
subordinates.” Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996); see also Whitton v. Williams, 90
F. Supp. 2d 420, 427 (S.D.N.Y. 2000).
A. Discrimination
To plausibly allege a claim of discrimination under Section 1983, Plaintiffs must allege
that (1) they are members of a protected class, (2) they were qualified for their position, (3) they
suffered an adverse employment action, and (4) there is “at least minimal support for the
proposition that the employer was motivated by discriminatory intent.” Buon v. Spindler, 65 F.4th
64, 79 (2d Cir. 2023). Plaintiffs must allege facts demonstrating “[p]ersonal involvement of [the
defendant] in alleged constitutional deprivations.” Baltas, 119 F.4th at 269.
Plaintiffs sufficiently allege that they are members of a protected class and that they are
qualified for their positions. See SAC ¶¶ 221–22. Defendant does not dispute the sufficiency of
the allegations with respect to these elements. Instead Defendant Fhala argues that Plaintiffs have
not sufficiently alleged personal involvement by Defendant in an adverse action suffered by
Plaintiffs and/or that Defendant Fhala did not engage in any actions because of Plaintiffs’ race.
Def. Mem. at 7–11.
Even if Plaintiffs sufficiently alleged that Defendant Fhala was personally involved in
conduct that constitutes an adverse employment action, to plausibly state a discrimination claim,
Plaintiffs must also allege facts that provide “at least minimal support for the proposition that the
[defendant] was motivated by discriminatory intent.” Buon, 65 F.4th at 79. Plaintiffs have failed
to do so here. “The sine qua non of a [race-based] discriminatory action claim under Title VII is
that the discrimination must be because of [race].” Patane v. Clark, 508 F.3d 106, 112 (2d Cir.
2007) (emphasis in original); see also Bivens v. Institute for Community Living, Inc., No. 14-CV-
7173, 2015 WL 1782290, at *7 (S.D.N.Y. 2015). “A plaintiff can meet that burden
through direct evidence of intent to discriminate, or by indirectly showing circumstances giving
rise to an inference of discrimination.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72,
87 (2d Cir. 2015) (internal citations omitted).
“Direct evidence of discrimination exists where ‘an impermissible criterion,’ like race,
‘was in fact a ‘motivating’ or ‘substantial’ factor in the employment decision.’ ” LaBarbera v.
NYU Winthrop Hosp., 527 F. Supp. 3d 275, 290 (E.D.N.Y. 2021) (quoting de la Cruz v. N.Y.C.
Human Res. Admin. Dep’t of Soc. Servs., 82 F.3d 16, 23 (2d Cir. 1996) (emphasis in original);
Venezia v. Luxoticca Retail N. America Inc., No. 13-CV-4467, 2015 WL 5692146, at *3 (S.D.N.Y.
Sept. 28, 2015) (citation omitted), aff’d, 699 F. App’x 53 (2d Cir. 2017) (an example of direct
evidence of discriminatory intent is an employer’s “remark or action [that] directly reflects a
discriminatory attitude”). Here, Plaintiffs allege no direct evidence of Defendant Fhala’s
purported discriminatory intent. See, e.g., DeMaria v. New York State Unified Ct. Sys., No. 23-
CV-3627, 2025 WL 2298452, at *13 (S.D.N.Y. Aug. 8, 2025) (holding the plaintiff did not offer
any direct evidence of discriminatory intent because he did not point “to any remark or action
indicative of a discriminatory attitude or any workplace policy, practice, or decision based on a
protected characteristic”) (internal quotation marks and citations omitted). That is not uncommon.
“As is well document in this Court’s case law, ‘[w]here an employer has acted with discriminatory
intent, direct evidence of that intent will only rarely be available.’ ” Bart v. Golub Corp., 96 F.4th
566, 569 (2d Cir. 2024) (quoting Halcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008)). Instead
Plaintiffs argue that they plausibly alleged Defendant Fhala’s discriminatory intent through
allegations of disparate treatment. See Pls. Opp. at 17–19.
Plaintiffs are correct that showing disparate treatment “is a recognized method of raising
an inference of discrimination for the purposes of making out a prima facie case.” Ruiz v. Cnty.
of Rockland, 609 F.3d 486, 493 (2d Cir. 2010) (quoting Mandell v. Cnty. of Suffolk, 316 F.3d 368,
379 (2d Cir. 2003)); see also Gordon v. N.Y.C. Bd. Of Educ., 232 F.3d 111, 117 (2d Cir. 2000) (a
plaintiff can plausibly allege a 1983 claim “through other circumstantial evidence such
as disparate treatment of fellow employees who engaged in similar conduct”). Thus to plausibly
allege discriminatory intent based on disparate treatment, a plaintiff must allege that the defendant
treated the plaintiff less favorably than similarly situated comparators. See Cooper v. Templeton,
629 F. Supp. 3d 223, 230–31 (S.D.N.Y. 2022). At this stage Plaintiffs are not required to “present
detailed evidence about comparators” and instead only need to assert “factual allegation[s] that
similarly situated comparators exist.” Mooney v. City of New York, No. 18-CV-328, 2018 WL
4356733, at *3 (S.D.N.Y. Sept. 12, 2018) (citing Vega, 801 F.3d at 86). However, Plaintiffs have
failed to do so here.
As an initial matter, in an attempt to support their claim that Defendant Fhala had
discriminatory intent, Plaintiffs point to allegations in the Second Amended Complaint that pre-
date Defendant Fhala’s nomination and confirmation as a RIOC board member and do not relate
to any alleged conduct of Defendant Fhala. See Pls. Opp. 18–19 (citing SAC ¶¶ 56–93, 75–76,
81–84, 88, 106, 114, 129–31, 133–34). These allegations of disparate treatment of allegedly
similarly situated comparators cannot be used to support an inference of discriminatory intent
attributable to Defendant Fhala because they do not involve him at all. See Reynolds v. Barrett,
685 F.3d 193, 204 (2d Cir. 2012) (“the requisite discriminatory intent must be held by the state
official in his individual capacity. . . . liability for an Equal Protection Clause violation under §
1983 requires personal involvement by a defendant, who must act with discriminatory purpose”)
(emphasis added).
Additionally, the very few allegations that Plaintiffs point to in the Second Amended
Complaint that do not pre-date Defendant Fhala’s appointment to the RIOC board and actually
involve conduct of Defendant Fhala, see Pls. Opp at 18–19 (citing SAC ¶¶ 165, 167–70, 184–88),
completely fail to allege disparate treatment. The Second Amended Complaint is devoid of any
allegations that Defendant Fhala treated similarly situated comparators who engaged in similar
conduct more favorably than Plaintiffs. Thus, Plaintiffs have failed to plausibly allege an inference
of discrimination. See Ruiz, 609 F.3d at 495 (dismissing race discrimination claims brought under
Section 1983 because the plaintiff “ha[d] not identified a similarly-situated employee who faced
equally serious allegations and whom [the defendant] allowed to remain on the job, [the plaintiff]
ha[d] failed to raise an inference of discrimination.”); see also Mumin v. City of New York, 760 F.
Supp. 3d 28, 51 (S.D.N.Y. 2024) (dismissing discrimination claim based on a theory of disparate
treatment because the complaint alleges insufficient facts regarding similarly situated
comparators) (collecting cases); Haggood v. Rubin & Rothman, LLC, No. 14-CV-3L, 2014 WL
6473527, at *12 (E.D.N.Y. Nov. 17, 2014) (dismissing discrimination claims because plaintiffs
failed to allege “how they were treated differently by defendants” compared to similarly situated
comparators).
While the Court must draw all reasonable inferences in favor of Plaintiffs as the non-
moving parties, Plaintiffs have failed to establish a prima facie case of discrimination because
Plaintiffs have failed plausibly allege facts to raise an inference of discrimination. See Ruiz, 609
F.3d at 495. Accordingly, Plaintiffs have not “nudged [their] claims across the line from
conceivable to plausible,” Twombly, 550 U.S. at 570, and the Section 1983 discrimination claim
against Defendant Fhala must be dismissed.
B. Retaliation
To prevail on a Section 1983 retaliation claim a “plaintiff must establish a prima facie case
of retaliation by showing 1) participation in a protected activity; 2) the defendant’s knowledge of
the protected activity; 3) an adverse employment action; and 4) a causal connection between the
protected activity and the adverse employment action.” Collymore v. City of New York, No. 23-
1304, 2025 WL 1323784, at *1 (2d Cir. May 7, 2025) (summary order); see also Vega, 801 F.3d
at 91 (under Section 1983 a plaintiff “must plausibly allege that: (1) defendant[] acted under the
color of state law, (2) defendant[] took adverse employment action against [plaintiffs], (3) because
[they] complained of or otherwise opposed discrimination.”); Williams v. Time Warner Inc., No.
09-CV-2962 (RJS), 2010 WL 846970, at *4 (S.D.N.Y. Mar. 3, 2010), aff’d, 440 F. App’x 7 (2d
Cir. 2011) (citing Feingold v. New York, 366 F.3d 138, 156 (2d Cir. 2004).
Defendant Fhala does not dispute that Plaintiffs have sufficiently alleged that Defendant
Fhala acted under the color of state law or that Plaintiffs engaged in protected activity known to
Defendant Fhala. In seeking dismissal, Defendant Fhala only argues that Plaintiffs have not
sufficiently alleged that (1) Plaintiffs faced an adverse employment action as a result of Defendant
Fhala’s individual conduct and/or (2) there is any causal connection between any alleged protected
activity and an adverse employment action. See Def. Mem. at 18.
The Supreme Court has held that an adverse employment action, in the context of a
retaliation claim, is any action that “could well dissuade a reasonable worker from making or
supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53,
57 (2006); see also Vega, 801 F.3d at 90 (“an adverse employment action is any action that could
well dissuade a reasonable worker from making or supporting a charge of discrimination.”)
(internal quotation marks omitted). Accordingly, “an action need not affect the terms and
conditions of a plaintiff’s employment for purposes of a retaliation claim.” Fincher v. Depository
Tr. & Clearing Corp., 604 F.3d 712, 720 n.6 (2d Cir. 2010). Additionally, “in determining whether
conduct amounts to an adverse employment action, the alleged acts of retaliation need to be
considered both separately and in the aggregate, as even minor acts of retaliation can be sufficiently
‘substantial in gross’ as to be actionable.” See Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010)
(quoting Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 227 (2d Cir. 2006)). However, the
Supreme Court has made clear “it is important to separate significant from trivial harms” when
analyzing a retaliation claim because “an employee’s decision to report discriminatory behavior
cannot immunize that employee from those petty slights or minor annoyances that often take place
at work and that all employees experience.” Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68.
Plaintiffs allege that they suffered an adverse employment action because Defendant Fhala
sent emails and communicated with individuals without including Plaintiffs on those
communications or first discussing those matters with Plaintiffs, SAC ¶¶ 143, 145–48, 150, spoke
to Plaintiffs in an antagonistic manner and was “rude and condescending,” SAC ¶¶ 149, 152, 153,
177, took steps to reduce Plaintiff Haynes’ financial approval thresholds, SAC ¶ 156, initiated an
investigation against them, SAC ¶ 163, and criticized Plaintiffs to a local blogger. SAC ¶¶ 168–
72. Plaintiffs argue that these allegations establish a “critical mass” and considered together could
dissuade a reasonable worker from making or supporting a charge of discrimination. Pls. Opp. at
12–13.
The allegations that Defendant Fhala emailed people, including stakeholders and elected
officials, without including Plaintiffs or first discussing those matters with Plaintiffs, do not
amount to an adverse employment action in the context of a retaliation claim. See Crosby v. Stew
Leonard’s Yonkers LLC, 695 F. Supp. 3d 551, 574 (S.D.N.Y. 2023) (concluding that the plaintiff’s
allegation that the defendants excluded the plaintiff “from management-wide emails” did not
amount to an adverse employment action for purposes of a retaliation claim because it amounted
to “a petty slight or minor annoyance”); Kirkland-Hudson v. Mount Vernon City Sch. Dist., 665 F.
Supp. 3d 412, 461 (S.D.N.Y. 2023) (“Additionally, exclusion from meetings, failing to be included
on emails, and increased scrutiny do not amount to adverse employment actions” for purposes of
a retaliation claim); Ziyan Shi v. N.Y. Dep’t of State, Div. of Licensing Servs., 393 F. Supp. 3d 329,
338–39 (S.D.N.Y. 2019) (holding that not being included on emails does not amount to an adverse
employment action in the context of a retaliation claim).
Similarly, the allegations that Defendant Fhala spoke to Plaintiffs in an antagonistic or
condescending manner and both privately and publicly criticized Plaintiffs, both fall into the
category of “petty slights or minor annoyances that often take place at work,” Burlington N. &
Santa Fe Ry. Co., 548 U.S. at 68, and do not constitute adverse employment actions. See Richards
v. Dep’t of Educ. of the City of N.Y., No. 21-CV-338, 2022 WL 329226, at *17 (S.D.N.Y. Feb. 2,
2022) (being “screamed at . . . micromanaged and publicly derided . . . fall into the category of
petty slights, minor annoyances, and simple lack of good manners that do not constitute retaliatory
action”); Ziyan Shi, 393 F. Supp. 3d at 338–39 (holding that being yelled and screamed at are not
adverse employment actions for purpose of Title VII retaliation); E.E.O.C. v. Bloomberg L.P., 967
F. Supp. 2d 816, 848 (S.D.N.Y. 2013) (holding that publicly yelling at plaintiff on the sales floor
did not constitute an adverse employment action); Martinez v. N.Y.C. Dep’t of Educ., No. 04-CV-
2728, 2008 WL 2220638, at *12 (S.D.N.Y. May 27, 2008) (“[I]ncidents where [a supervisor]
publicly yelled at [plaintiff] for various reasons or called him ‘shit’ . . . constitute, as a matter of
law, the sorts of petty slights and personality conflicts that are not actionable.”).
Additionally, the allegation that “[w]ithin a week after Plaintiffs filed their initial
Complaint, Defendant Fhala sought an ‘emergency’ Board meeting to reduce [Plaintiff] Haynes’s’
monetary approval thresholds by nearly 50%,” SAC ¶ 156, is also insufficient to constitute an
adverse employment action because based on the allegations in the Second Amended Complaint,
no action occurred. Although Defendant Fhala allegedly wanted to hold an emergency board
meeting to reduce Plaintiff Haynes’ monetary approval thresholds, there are no further allegations
that the board meeting occurred or that Plaintiff Haynes’ monetary approval thresholds were
actually reduced. Therefore, this allegation does not constitute an adverse employment action.
See, e.g., Burlington N. & Santa Fe Ry. Co., 548 U.S. at 67–68, (Title VII “does not set forth a
general civility code for the American workplace” and its “antiretaliation provision protects an
individual not from all retaliation, but from retaliation that produces an injury or harm.”)
(emphasis added); Myers v. Doherty, No. 21-CV-219, 2021 WL 5599502, at *8 (S.D.N.Y. Nov.
30, 2021), aff’d, No. 21-3012-CV, 2022 WL 4477050 (2d Cir. Sept. 27, 2022) (explaining that
there was no adverse employment action in the context of a retaliation claim because although the
plaintiff was notified of a potential future transfer, the transfer never actually “materialize”); see
also Durkin v. Verizon New York, Inc., 678 F. Supp. 2d 124, 139 (S.D.N.Y. 2009) (explaining that
“[i]n this Circuit, an action must actually occur to be considered an adverse employment action”
and so “the threat to demote Plaintiff does not constitute an adverse employment action and
therefore cannot support Plaintiff’s claims of retaliation”) (citing Thomas v. Bergdorf Goodman,
Inc., No. 03-CV-3066, 2004 WL 2979960, at *10 (S.D.N.Y. Dec. 22, 2004)); see also Zimpfer v.
Hilbert Coll., No. 1:21-CV-231, 2025 WL 1758266 (W.D.N.Y. June 25, 2025) (explaining that
the threat of termination does not support a prima facie retaliation claim because the mere threat
of discipline or action does not constitute an adverse employment action) (collecting cases).
Finally, the allegation that Defendant Fhala initiated an “investigation into Plaintiffs” by
“emailing both the NYSIG’s office and the COELIG to suggest that Plaintiffs’ procurement of a
contract with a digital reputation management company was somehow improper,” SAC ¶ 163,
does not constitute an adverse employment action. See Tillery v. New York State Off. of Alcoholism
& Substance Abuse Servs., 739 F. App’x 23, 27 (2d Cir. 2018) (concluding that “[a] government
investigation may constitute an adverse employment action” if it results in further negative
consequences); see also Kirkland-Hudson, 2024 WL 4277940, at *14 (explaining that a negative
performance memo was not an adverse employment action because although the memo was issued
no discipline ever resulted from the negative performance review) (collecting cases); see also Bain
v. Wrend, 2020 WL 1316660, at *8 (D. Vt. Mar. 20, 2020) (holding that “an investigation which
does not result in workplace discipline does not qualify as an adverse employment action” and that
“a referral to a third-party such as a police department for investigation of work-place conduct is
not an adverse employment action”). While Plaintiffs allege that they were ultimately placed on
paid administrative leave, Plaintiffs do not allege that was in connection with the investigation that
Defendant Fhala allegedly initiated. See SAC ¶¶ 190–91. Thus, Defendant Fhala’s email to
NYSIG and COELIG that Plaintiffs did not allege resulted in any discipline does not constitute an
adverse employment action in the context of a retaliation claim.
While Plaintiffs urge that these allegations considered in the aggregate could dissuade a
reasonable worker from making or supporting a charge of discrimination, this Court disagrees. It
is true that in determining whether alleged conduct amounts to an adverse employment action in
the context of a retaliation claim courts consider the allegations “both separately and in the
aggregate.” See Hicks, 593 F.3d at 165. However, the Supreme Court has made clear “an
employee’s decision to report discriminatory behavior cannot immunize that employee from those
petty slights or minor annoyances that often take place at work and that all employees experience.”
Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68. Here, as explained above, all the alleged actions
fail individually to allege an adverse employment action in the context of a retaliation claim, and
“they also fail in the aggregate[,]” because “[i]ndividually the actions were trivial, and placed in
context they remain trivial.” See Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556
(2d Cir. 2011); accord Murray v. Town of N. Hempstead, 853 F. Supp. 2d 247, 268 (E.D.N.Y.
2012).
Furthermore, Plaintiffs allege that on or about December 8, 2023, they “filed the amended
complaint, adding the Chamber, RIOC, and Fhala as defendants.” SAC ¶ 180. Retaliation must
plausibly “dissuade a reasonable worker from making or supporting a charge of discrimination.”
Vega, 801 F.3d at 91. Accepting Plaintiffs’ own allegations as true, Plaintiffs in response to all
these aforementioned purported adverse employment actions in turn amended their complaint to
name Defendant Fhala and other defendants. Thus, Plaintiffs themselves were not dissuaded from
raising complaints. See, e.g., Tepperwien, 663 F.3d at 572 (“Indeed, while the test is an objective
one, it is relevant that [the plaintiff] himself was not deterred from complaining—he complained
numerous times.”).
Accordingly, Plaintiffs’ Section 1983 retaliation claim against Defendant Fhala must be
dismissed for failure to plausibly allege an adverse employment action perpetrated by Defendant
Fhala.3
3 Because the Court has concluded Plaintiffs failed to allege an adverse employment action the Court does not reach
the issue whether such actions were causally connected to Plaintiffs’ protected activities.
C. Hostile Work Environment
“To establish a hostile work environment under [] Section 1983, a plaintiff must show that
the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.” Littlejohn, 795 F.3d at 320–21 (internal citations and quotations omitted);
see also Royall v. City of Beacon, No. 24-CV-3, 2024 WL 4266546, at *18 (S.D.N.Y. Sept. 23,
2024). Furthermore, “[a] plaintiff must also demonstrate that she was subjected to the hostility
because of [their] membership in a protected class.” Brennan v. Metro. Opera Ass’n, Inc., 192
F.3d 310, 318 (2d Cir. 1999); Bermudez v. City of New York, 783 F. Supp. 2d 560, 578 (S.D.N.Y.
2011) (A plaintiff must also plausibly allege “that the hostile work environment was caused by
animus towards [him or her] as a result of [his or her] membership in a protected class.”) (citation
omitted); see also Forts v. City of N.Y. Dep’t of Corr., 2003 WL 21279439, at *4 (S.D.N.Y. June
4, 2003) (“[a]n environment that would be equally harsh for all workers, or that arises from
personal animosity, is not actionable under the civil rights statutes”).
The Second Circuit has held that “[p]roving the existence of
a hostile work environment involves showing both ‘objective and subjective elements: the
misconduct shown must be severe or pervasive enough to create an objectively hostile or abusive
work environment,’ and the victim must also subjectively perceive that environment to be
abusive.” Feingold v. New York, 366 F.3d 138, 159 (2d Cir. 2004). In determining whether a
plaintiff has plausibly alleged an actionable hostile environment, courts must look at the “totality
of the circumstances, including the frequency of the discriminatory conduct; its severity; whether
it is physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.” Littlejohn, 795 F.3d at 321
(internal citation and quotations omitted). In addition, a Section 1983 claim requires a plaintiff to
allege facts “that the individual was personally involved.” Abadi, 705 F. Supp. 3d at 185
(underlining in original).
Defendant Fhala argues that Plaintiffs fail to state a hostile work environment claim against
him because Plaintiffs do not allege that his actions “were the result of discriminatory racial animus
or that [Plaintiffs] faced more than mere petty slights or trivial inconveniences.” Defs. Mem. at
13. Plaintiffs allege that Defendant Fhala repeatedly ignored the practice of how a Board Member
should contact stakeholders and elected officials and repeatedly spoke to Plaintiffs in a
discriminatory, antagonistic, demeaning manner, see SAC ¶¶ 145–53, falsely accused Plaintiffs of
blocking his appointment to committee positions and Plaintiff Robinson of deliberately delaying
a RIOC Board meeting, SAC ¶¶ 148–49, and took steps to reduce the scope of Plaintiffs’ authority,
initiated an investigation against them, and criticized Plaintiffs to bloggers, and falsely accused
Plaintiff Haynes of prohibiting his staff from speaking to Board Members. SAC ¶¶ 155–76, 184–
89. Plaintiffs argue that these allegations are sufficiently severe as to create a hostile work
environment. Pls. Mem. at 20.
While Plaintiffs may have “subjectively perceive[d] the environment to be abusive,” Moll
v. Telesector Res. Grp., Inc., 94 F.4th 218, 229 (2d Cir. 2024), the allegations in the Second
Amended Complaint with respect to Defendant Fhala do not meet the objective standard for
a hostile work environment claim. The handful of incidents that Plaintiffs allege do not indicate
that their workplace was “permeated with discriminatory intimidation, ridicule, and
insult.” Pattanayak v. Mastercard Inc., No. 22-1411, 2023 WL 2358826, at *4 (2d Cir. Mar. 6,
2023) (summary order) (internal citations omitted). Even when considered in the aggregate, the
allegations do not amount to a pervasive hostile work environment. See Boyar v. Yellen, No. 21-
507, 2022 WL 120356, at *3 (2d Cir. Jan. 13, 2022) (summary order) (finding that there was
no hostile work environment where the plaintiff alleged that his supervisor threatened to “wring
[the plaintiff’s] neck,” “ignored him at a meeting,” “yelled at him very loudly,” and “told him he
had 90 minutes to complete two certification exams, when he had 60 minutes to complete
each.”); see also Fleming v. MaxMara USA, Inc., 371 F. App’x 115, 119 (2d Cir. 2010) (summary
order) (allegations that the plaintiff’s supervisor “wrongly excluded [plaintiff] from meetings,
excessively criticized [plaintiff’s] work, refused to answer work-related questions, arbitrarily
imposed duties outside of [plaintiff’s] responsibilities, threw books, and sent rude e-mails” were
insufficient to allege a hostile work environment); Miller-Sethi v. City Univ. of New York, No. 21-
CV-8591, 2023 WL 419277, at *7–8 (S.D.N.Y. Jan. 26, 2023) (allegations that defendant
undermined plaintiff’s authority in the workplace, used microaggression, and sent a “scathing
email” were not severe or pervasive enough to support a hostile work environment claim).
Plaintiff’s allegations, even considered in the aggregate, were not sufficiently severe or pervasive
enough to amount to allege a hostile work environment claim.
Furthermore, even if Plaintiffs’ allegations were found to be sufficiently severe or
pervasive, their claim would nonetheless fail because, for the same reasons the Court explained
above, see Sec. I(A) supra, Plaintiffs have failed to allege facts that
any hostile work environment was caused by an animus Defendant Fhala personally held towards
Plaintiffs because of their membership in a protected class. See Brennan, 192 F.3d at 318. Instead,
Plaintiffs again try to point to others’ alleged disparate treatment of Plaintiffs to demonstrate that
Defendant Fhala’s actions were also motivated by animus. For example, Plaintiffs argue that it is
“reasonable to infer that Fhala’s actions were also racially motivated given the racially charged
atmosphere on Roosevelt Island, the ongoing racial harassment of Plaintiffs, the fact that Plaintiffs
were treated less favorably than previous white RIOC executives, and the fact that Fhala
immediately began to unfairly scrutinize and antagonize Plaintiffs once he joined the Board.” Pls.
Opp. at 21. However, Plaintiffs do not allege that Defendant Fhala treated Plaintiffs less favorably
than he treated similarly situated comparators. As the Court has explained, other people’s alleged
disparate treatment of Plaintiffs cannot be used to support a Section 1983 claim against Defendant
Fhala. See Reynolds, 685 F.3d at 204 (Ҥ 1983 requires personal involvement by a defendant,
who must act with discriminatory purpose”).
As such, Plaintiffs’ hostile work environment claim against Defendant Fhala must be
dismissed because Plaintiffs failed to allege that any of Defendant Fhala’s conduct was caused by
racial animus towards Plaintiffs. See Bermudez, 783 F. Supp. 2d at 606 (dismissing the plaintiff’s
hostile work environment claim because there was “no evidence that [the defendant] participated
in any acts or approved of any acts due to animosity towards [the plaintiff] because of her religion,
race, or gender.”)
Each of Plaintiffs’ federal Section 1983 claims are dismissed for the reasons discussed
above. Plaintiffs have now filed three complaints in this action and in opposing Defendant Fhala’s
motion Plaintiffs did not request further leave to amend, as such these claims are dismissed with
prejudice. See Felder v. United States Tennis Ass’n, 27 F.4th 834, 848 (2d Cir. 2022) (“[W]e
certainly see no error or abuse of discretion in the District Court’s dismissal of [the plaintiff’s]
complaint with prejudice, as [the plaintiff] did not request leave to re-amend.”).
II. NYSHRL and NYCHRL Claims
Counts Six, Seven, Eight, Nine, Ten, and Eleven assert various state and city law claims
against Defendant Fhala. See SAC ¶¶ 219–85. Because, for the reasons outlined above, all of
Plaintiffs’ federal law claims against Defendant Fhala must be dismissed, the Court declines to
exercise supplemental jurisdiction over the alleged state law claims against Defendant Fhala. 28
U.S.C. § 1367(c)(3); see also Camarda v. Snapple Distributors, Inc., 346 F. App’x 690, 693 (2d
Cir. 2009). Accordingly, Counts Six, Seven, Eight, Nine, Ten, and Eleven are dismissed without
prejudice to renewal in state court.
CONCLUSION
For the reasons stated above, IT IS HEREBY ORDERED that the motion filed by
Defendant Fhala is GRANTED and all the federal Section 1983 claims asserted in the Second
Amended Complaint against Defendant Fhala are DISMISSED with prejudice. IT IS FURTHER
ORDERED that Counts Six, Seven, Eight, Nine, Ten, and Eleven are dismissed without prejudice
to renewal in state court.
IT IS FURTHER ORDERED that on or before November 3, 2025, Plaintiffs and Defendant
RIOC, the only remaining defendant in this action, shall submit a joint Proposed Case Management
Plan and Scheduling Order and joint letter, as required by this Court’s Individual Rules of Practice.
The documents should be filed on ECF and sent to this Court via email (in both PDF and Microsoft
Word formats).
The Clerk of Court is respectfully requested to terminate docket entry 112.
SO ORDERED.
_________________________________
Date: September 30, 2025 MARY KAY VYSKOCIL
New York, NY United States District Judge