Palmese

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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KIMBERLY PALMESE,

Plaintiff,

MEMORANDUM & ORDER

- against - 24-CV-5915 (PKC) (JRC)

NEW YORK CITY DEPARTMENT OF

EDUCATION and ROSALIE FAVUZZA,

Defendants.

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PAMELA K. CHEN, United States District Judge:

Plaintiff Kimberly Palmese, proceeding pro se, brings this employment discrimination

action against the New York City Department of Education (“DOE”) and Principal Rosalie

Favuzza (together, “Defendants”). Plaintiff brings a claim for retaliation pursuant to the Family

and Medical Leave Act (“FMLA”), and claims for retaliation and discrimination pursuant to the

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

(“NYCHRL”). (See generally Am. Compl., Dkt. 17.)

Defendants filed a motion to dismiss the complaint in its entirety pursuant to Rule 12(b)(6)

of the Federal Rules of Civil Procedure. (Defs.’ Mot. to Dismiss, Dkt. 24.) For the reasons

explained below, the Court grants Defendants’ motion to dismiss in part and denies it in part. The

Court dismisses Plaintiff’s NYSHRL discrimination claim for failure to state a claim. Plaintiff’s

FMLA claim, her NYCHRL claims, and her NYSHRL retaliation claim against both Defendants

shall proceed.

BACKGROUND

The following allegations are taken from Plaintiff’s Amended Complaint and are assumed

to be true for the purposes of this Memorandum and Order.

Plaintiff has been employed by the DOE since October 16, 2002. (Am. Compl., Dkt. 17,

at ECF1 8.) She has been working at the District 22 Joan Snow Prekindergarten Center in

Brooklyn, New York since September 2015, when she joined as an Assistant Principal. (Id.)

Defendant Favuzza became Plaintiff’s immediate supervisor in June 2019. (Id.) Plaintiff received

Satisfactory end-of-year ratings every year from September 2015 until the 2019–20 school year,

during which there were no ratings due to the COVID-19 pandemic. (Id.) Plaintiff also received

a Satisfactory end-of-year rating for the 2020–21 school year. (Id.) In June 2021, Defendant

Favuzza’s job title changed from Director to Principal. (Id.)

I. 2021–22 School Year

Plaintiff did not receive any disciplinary letters until October 28, 2021, when Defendant

Favuzza issued Plaintiff a disciplinary letter for insubordination. (Id.) This letter was issued

because Plaintiff “was unable to report to the Coney Island Avenue location after [Defendant]

Favuzza changed [Plaintiff’s] site assignment at the last minute and [Plaintiff] did not have access

to [her] normal means of transportation.”2 (Id.) On May 31, 2022, Plaintiff submitted a rebuttal

1 Citations to “ECF” refer to the pagination generated by the Court’s CM/ECF docketing

system and not the document’s internal pagination.

2 The address of Plaintiff’s usual location of employment is not clear to the Court, but the

Court notes that the New York City Public Schools website lists a “Joan Snow Pre-K Center at

1340 East 29th Street” in Brooklyn, New York for Geographic District 22. The Joan Snow Pre-K

Center at 1340 East 29th Street, New York City Public Schools, https://www.schools.nyc.gov

/schools/Z063 [perma.cc/RW6Y-BWJF]. In contrast, the address Plaintiff lists for her place of

employment when employed by Defendants, as well as the address she lists for Defendant

Favuzza’s place of employment, is the 22K 853 Joan Snow Prekindergarten Center at 1139 Coney

Island Avenue in Brooklyn, New York. (Am. Compl., Dkt. 17, at ECF 2–3.)

letter with supporting documentation to Defendant Favuzza, who placed the rebuttal letter in

Plaintiff’s personnel file but “refused to remove the [disciplinary] letter despite [Plaintiff]’s

rebuttal.” (Id.)

On November 23, 2021, Plaintiff applied for intermittent family leave under the FMLA to

take care of her mother, who was diagnosed with pancreatic cancer. (Id.) Plaintiff’s leave request

was granted that same day. (Id.) Her mother died on December 21, 2021. (Id.)

On January 1, 2022, Plaintiff became sick with COVID-19, and so she remained on leave

until January 11, 2022. (Id.) At 10:00 a.m. on the day Plaintiff returned from leave, January 12,

2022, she “received two disciplinary conference summonses from [Defendant] Favuzza.” (Id. at

ECF 8–9.) On January 14, 2022, Plaintiff emailed Community School District 22 Superintendent

Julia Bove and Deputy Superintendent Matthew Melchiorre “expressing [her] concerns with

[Defendant] Favuzza’s untimely summoning [of Plaintiff] to disciplinary conferences” after

Plaintiff had returned from leave, but Plaintiff “did not receive a response.” (Id. at ECF 9.)

On January 20, 2022, Plaintiff received two more allegedly “unjustified” disciplinary

letters from Defendant Favuzza. (Id.) Five days later, on January 25, 2022, Plaintiff filed a

complaint with New York City’s Special Commissioner of Investigations regarding Defendant

Favuzza’s alleged harassment of Plaintiff, and on January 27, 2022, Plaintiff emailed the receipt

of her complaint submission to Superintendent Bove and Deputy Superintendent Melchiorre, but

again did not receive a response. (Id.)

In the remaining months of the 2021–22 school year, Plaintiff received several more

disciplinary letters and “a 48-hour disciplinary notice from [Defendant] Favuzza to report to three

disciplinary meetings to discuss acts of insubordination and dereliction of duty.” (Id. at

ECF 9–11.) Plaintiff alleges that each of these letters was “unjustified” and based on allegations

that were “untrue,” and though she submitted rebuttals to many of the disciplinary letters, they

were not removed from her file. (Id.)

At some point, Plaintiff scheduled a Special Complaint Hearing with New York City’s

Office of Labor Relations for June 15, 2022.3 (See id. at ECF 11.) The day before the hearing,

the United Federation of Teachers District Representative called Plaintiff’s witnesses and told

them that if they testified at the hearing, the District Representative “could not stop them from

being retaliated against by [Defendant] Favuzza.” (Id.) As a result, the witnesses “advised

[Plaintiff] that they were scared and did not want to testify.” (Id.) On the morning of the hearing,

Plaintiff sent an email withdrawing her complaint. (Id.) Before Plaintiff withdrew her complaint,

her online performance evaluation in the DOE Tenure Notification System for the 2021–22 school

year showed a Satisfactory rating. (Id.) However, later that day, Defendant Favuzza changed

Plaintiff’s annual rating for that school year to Unsatisfactory. (Id.)

Plaintiff received the Unsatisfactory rating for the 2021–22 school year on June 22, 2022.

(Id.) On June 29, 2022, Plaintiff submitted a request to appeal the rating. (Id. at ECF 12.) An

appeal hearing was held on March 28, 2024. (Id.) On May 28, 2024, Plaintiff received a letter

stating that her appeal was denied and the Unsatisfactory rating was sustained. (Id.)

II. 2022–23 School Year

During the 2022–23 school year, Plaintiff received multiple letters from Defendant

Favuzza stating that Plaintiff’s performance was less than satisfactory, as well as several letters to

file, all of which were purportedly based on untrue allegations. (Id. at ECF 12–14.) Plaintiff

3 The Court assumes that the complaint Plaintiff submitted on January 25, 2022 to the

Special Commissioner of Investigations, (see Am. Compl., Dkt. 17, at ECF 9), was the subject of

the scheduled Special Complaint Hearing, since Plaintiff does not state that she submitted a

separate complaint to the Office of Labor Relations, (see generally id.).

continued to email groups of officials, including Superintendent Bove and Deputy Superintendent

Melchiorre, regarding Defendant Favuzza’s conduct towards her. (Id.)

On June 15, 2023, Plaintiff received an Unsatisfactory rating for the 2022–23 school year.

(Id. at ECF 14.) She appealed this rating, and the hearing for the appeal was held on November 26,

2024. (Id.) The outcome of this appeal had not yet been determined by the time Plaintiff initiated

this action or by the time the parties briefed the instant motion to dismiss. (Id.; Defs.’ Mem. Supp.

Mot. to Dismiss (“Defs.’ Mem.”), Dkt. 24-1, at 9.)

III. 2023–24 and 2024–25 School Years

On November 21, 2023, Defendant Favuzza summoned Plaintiff for a disciplinary

conference. (Am. Compl., Dkt. 17, at ECF 15.) On November 28, 2023, Plaintiff received a letter

to file from Defendant Favuzza about Plaintiff’s alleged unprofessional behavior. (Id.) Plaintiff

emailed Defendant Favuzza a rebuttal letter on April 5, 2024, which was placed in her personnel

file. (Id.)

In parallel, on September 27, 2023, “CSA4 filed a special complaint grievance on

[Plaintiff’s] behalf regarding harassment and intimidation.” (Id.) On November 30, 2023, CSA

“filed a request for an anti-retaliation conference” on Plaintiff’s behalf. (Id.) A hearing for the

September 2023 special complaint was held on January 12, 2024. (Id.) On February 29, 2024,

CSA “submitted a request for a Step 2 Special Complaint of Harassment and Intimidation

conference” relating to the September 2023 special complaint. (Id.) On March 8, 2024, “CSA

4 The Court presumes that “CSA” refers to the Council of School Supervisors and

Administrators, which is “the collective bargaining unit” for certain employees of New York City

public schools. See Who We Are, Council of Sch. Supervisors & Adm’rs, https://csa-

nyc.org/about/what-is-csa/ [perma.cc/2M4V-QZ2Q].

submitted a Demand to Arbitrate on [Plaintiff’s] behalf to the American Arbitration Association.”

(Id.)

IV. Effects of Defendants’ Disciplinary Actions

Plaintiff alleges that Defendants’ disciplinary actions have had a range of negative

consequences for her. Generally, she states that her Unsatisfactory ratings rendered her ineligible

to “progress on salary step[s], . . . renew a temporary license, [or to be considered] for career

advancement, transfers, substitute and per session assignments[,] and summer school positions.”

(Id. at ECF 16.)

Specifically, Plaintiff claims that she withdrew her application to the “Assistant Principal

Leadership Institute” in 2022 because the adverse letters in her file rendered her no longer

qualified, (id. at ECF 10); she was unable to supervise the “Summer Rising” program in 2022 due

to her adverse letters and Unsatisfactory rating, (id. at ECF 11); she was unable to apply for

“administrator per session postings” that were eligible for overtime in January 2023, September

2023, and November 2024 due to her Unsatisfactory ratings, (id. at ECF 13, 15–16); and she was

unable to apply for a summer school program in 2025 because the selection criteria required a

rating of at least Satisfactory for the 2022–23 school year, (id. at ECF 16).

Plaintiff also alleges that she was not hired for job positions to which she applied. For

example, she states that she applied for an “Educational Administrator” position in January 2025.

(Id.) The job requirements included “[f]ive years of successful educational leadership in public

school with managerial/supervisory, administrative, and experience at the central, regional or

district office level.” (Id.) She does not specify whether any action was taken on that specific

application. (See generally id.) However, she does allege that she reviewed open administrator

position postings in February 2025 and saw that two positions that she had previously applied for

were re-posted without Plaintiff having had the opportunity to interview, and that Plaintiff “was

not offered these positions,” despite being “more than qualified.” (Id. at ECF 16.)

Finally, Plaintiff claims that she had a $1,250 performance incentive for the 2021–22

school year revoked because of her 2021–22 Unsatisfactory rating, (id. at ECF 14), and that she

was denied a performance incentive for the 2022–23 school year because of her 2022–23

Unsatisfactory rating, (id. at ECF 16).

PROCEDURAL HISTORY

On September 1, 2023, Plaintiff filed a charge with the New York State Division of Human

Rights (the “SDHR”), which accepted the charge on behalf of the Equal Employment Opportunity

Commission (the “EEOC”). (Id. at ECF 6; see also Pl.’s Mem. Opp’n Mot. to Dismiss (“Pl.’s

Opp’n”), Dkt. 24-4, at 5.) On November 24, 2023, Plaintiff’s SDHR charge was dismissed on the

grounds of administrative convenience because Plaintiff sought to pursue her remedies in federal

court.5 (SDHR Determination & Order of Dismissal for Admin. Convenience, Dkt. 26, at

ECF 2–3.) On May 30, 2024, Plaintiff’s EEOC charge was dismissed for the same reason. (Am.

Compl., Dkt. 17, at ECF 17.) The EEOC issued Plaintiff a Right to Sue Letter, which allowed her

to file a lawsuit on the charge within 90 days. (Id.) Plaintiff timely filed this action on

August 23, 2024. (Compl., Dkt. 1.)

On December 13, 2024, Defendants requested a pre-motion conference (“PMC”) in

advance of their anticipated motion to dismiss the complaint. (Defs.’ PMC Request, Dkt. 12.) On

5 A person alleging violations of the NYSHRL or NYCHRL may choose either to file a

claim with a local commission of human rights or to file a lawsuit, but may not do both. See N.Y.

Exec. Law § 297(9); N.Y.C. Admin. Code § 8-502(b); accord York v. Ass’n of Bar of N.Y., 286

F.3d 122, 127 (2d Cir. 2002). However, a person whose case has been dismissed by the local

commission can still bring a lawsuit if the dismissal was because of administrative convenience or

because the election of an administrative remedy had been annulled. N.Y. Exec. Law § 297(9);

N.Y.C. Admin. Code § 8-502(b); York, 286 F.3d at 127 n.2.

December 16, 2024, Defendants filed an amended PMC request, which the Court granted after

ordering Defendants to properly serve Plaintiff and after Plaintiff responded to the PMC request.

(Defs.’ Am. PMC Request, Dkt. 13; 12/17/2024 Dkt. Order; Pl.’s Opp’n to Defs.’ Am. PMC

Request, Dkt. 15; 12/27/2024 Dkt. Order.) The Court held the PMC on January 30, 2025.

(1/30/2025 Min. Entry.)

On February 28, 2025, Plaintiff submitted an Amended Complaint. (Am. Compl.,

Dkt. 17.) On April 16, 2025, Defendants served Plaintiff with their Motion to Dismiss the

Amended Complaint. (See Defs.’ Letter, Dkt. 18.) Plaintiff served her Memorandum in

Opposition on May 19, 2025. (See Pl.’s Opp’n, Dkts. 19 & 24-4.6) Defendants filed their Reply,

along with both sides’ submissions, on June 13, 2025. (See Defs.’ Mot. to Dismiss, Dkt. 24; Defs.’

Mem., Dkt. 24-1; Pl.’s Opp’n, Dkt. 24-4; Defs.’ Reply Supp. Mot. to Dismiss (“Defs.’ Reply”),

Dkt. 24-5.) On June 10 and November 13, 2025, Plaintiff submitted letters informing the Court

of Defendants’ alleged “continuation of harassing and retaliatory acts against [her.]” (Pl.’s

6/10/2025 Letter, Dkt. 23; Pl.’s 11/13/2025 Letter, Dkt. 25.)

LEGAL STANDARD

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)).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting

6 Though Defendants filed both sides’ submissions, including Plaintiff’s opposition, on

June 13, 2025, (see 1/30/2025 Min. Entry; Pl.’s Opp’n, Dkt. 24-4), Plaintiff also filed her

opposition on the day she served it on Defendants, May 19, 2025, (Pl.’s Opp’n, Dkt. 19). The two

opposition memoranda, Dkts. 19 and 24-4, are identical, and the Court cites to Dkt. 24-4 herein.

same at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for

more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting same).

Determining whether a complaint states a plausible claim for relief is “a context-specific task that

requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.

In addressing the sufficiency of a complaint, courts are required to accept the complaint’s

well-pleaded factual allegations as true. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 124

(2d Cir. 2010) (citing Iqbal, 556 U.S. at 678–79; Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88

(2d Cir. 2009)), aff’d, 569 U.S. 108 (2013). However, “the tenet that a court must accept as true

all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556

U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555).

Pro se complaints are held to less stringent standards than pleadings drafted by attorneys,

so the Court reads a plaintiff’s pro se complaint liberally and interprets it to raise the strongest

arguments and claims it suggests. See Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (“We

have noted our obligation to construe pro se complaints liberally . . . . In reviewing the sufficiency

of a pro se complaint . . . , we are constrained to conduct our examination with special solicitude,

interpreting the complaint to raise the strongest claims that it suggests.” (cleaned up)); Triestman

v. Federal Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (per curiam) (“This policy of

liberally construing pro se submissions is driven by the understanding that ‘[i]mplicit in the right

of self-representation is an obligation on the part of the court to make reasonable allowances to

protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal

training.’” (alteration in original) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983))).

Additionally, “[o]n a motion to dismiss, the Court may consider allegations that are contained in a

pro se plaintiff’s opposition papers” in addition to the allegations in the complaint. Kauffman v.

New York Presbyterian Hosp., 762 F. Supp. 3d 309, 314 n.5 (S.D.N.Y. 2025) (citing Burgess v.

Goord, No. 98-CV-2077 (SAS), 1999 WL 33458, at *1 n.1 (S.D.N.Y. Jan. 26, 1999) (collecting

cases)).

DISCUSSION

Plaintiff alleges violations of the FMLA, NYSHRL, and NYCHRL.7 (Am. Compl.,

Dkt. 17, at ECF 4.) She states that she was discriminated against based on disability and retaliated

against for taking FMLA leave.8 (Id. at ECF 16.)

Defendants move to dismiss the Amended Complaint on multiple grounds. With respect

to Plaintiff’s FMLA retaliation claim, Defendants argue that: (1) Plaintiff “does not plausibly

allege any adverse actions as a result of requesting or taking FMLA leave”; (2) “Plaintiff does not

allege facts . . . that even suggest that Plaintiff taking FMLA leave was a motivating factor for any

of the alleged adverse employment action[s]”; and (3) “Plaintiff’s claims for individual liability

against [Defendant] Favuzza must be dismissed because [she] is not an ‘employer’ under the

FMLA.” (Defs.’ Mem., Dkt. 24-1, at 1.) With respect to Plaintiff’s NYSHRL and NYCHRL

claims, Defendants argue that: (1) Plaintiff has failed to sufficiently allege (a) retaliatory intent for

her retaliation claims, and (b) a basis for imposing individual liability on Defendant Favuzza; and

7 Plaintiff’s original complaint alleged violations of the Americans with Disabilities Act

(“ADA”). (Compl., Dkt. 1, at ECF 3.) However, Plaintiff’s Amended Complaint does not include

an ADA claim. (See Am. Compl., Dkt. 17, at ECF 3.)

8 Plaintiff states, “I believe I have been and continue to be retaliated against for disability

discrimination and after taking FMLA leave.” (Am. Compl., Dkt. 17, at ECF 16.) The Court

assumes that Plaintiff does not mean that she was retaliated against for herself engaging in

disability discrimination; rather, construing Plaintiff’s pleading to raise the strongest claims it

suggests, the Court assumes that Plaintiff is alleging (1) that she was discriminated against based

on her disability, and (2) that she was retaliated against for taking FMLA leave.

(2) these claims “are almost entirely barred because [Plaintiff] did not file a notice of claim [under

New York Education Law § 3813(1)] until August 9, 2024.”9 (Id.)

I. FMLA Claim

The Court first addresses Defendants’ argument that Plaintiff has failed to state a retaliation

claim under the FMLA.10 (Defs.’ Mem., Dkt. 24-1, at 1, 14–17; Defs.’ Reply, Dkt. 24-5, at 3–4.)

The FMLA entitles eligible employees to take up to 12 weeks of unpaid leave during any

12-month period for certain qualifying reasons, including “[i]n order to care for the spouse, or a

son, daughter, or parent[] of the employee, if such spouse, son, daughter, or parent has a serious

health condition.” 29 U.S.C. § 2612(a)(1)(C). The FMLA makes it unlawful for an employer “to

interfere with, restrain, or deny the exercise” of “any right” provided in the FMLA. 29 U.S.C.

§ 2615(a)(1); see also Woods v. START Treatment & Recovery Ctrs., Inc., 864 F.3d 158, 167 (2d

Cir. 2017) (holding that retaliation claims based on employee taking FMLA leave are actionable

under 29 U.S.C. § 2615(a)(1)).

9 Defendants do not provide any argument (aside from conclusory/perfunctory statements)

that Plaintiff failed to state a claim of discrimination under the NYSHRL and NYCHRL.

Nonetheless, as discussed below, the Court concludes that her NYSHRL discrimination claim must

be dismissed, but her NYCHRL discrimination claim may proceed.

10 As the Court construes it, Plaintiff’s Amended Complaint alleges a willful violation of

the FMLA, which is subject to a three-year statute of limitations. 29 U.S.C. § 2617(c)(2); see

Offor v. Mercy Med. Cntr., 676 F. App’x 51, 54 n.2 (2d Cir. 2017) (summary order) (“[R]etaliating

against an employee for exercising FMLA rights is almost by definition a ‘willful’ violation.”).

Plaintiff initiated this action on August 23, 2024, (see Compl., Dkt. 1), which is less than three

years after Plaintiff returned from FMLA leave in January 2022, (see Am. Compl., Dkt. 17, at

ECF 8). Therefore, her FMLA claim is timely pled. Furthermore, as Defendants have not argued

that Plaintiff failed to allege willfulness and that her FMLA claim is therefore untimely,

Defendants have waived that argument. See Whiteside v. Hover-Davis, Inc., 995 F.3d 315, 319

(2d Cir. 2021) (“Generally, ‘[t]he lapse of a limitations period is an affirmative defense that a

defendant must plead and prove.’” (alteration in original) (quoting Staehr v. Hartford Fin. Servs.

Grp., 547 F.3d 406, 425 (2d Cir. 2008))).

“Courts in this circuit analyze FMLA retaliation claims, at the evidentiary stage, under the

McDonnell Douglas burden-shifting framework.”11 Robles v. Medisys Health Network, Inc.,

No. 19-CV-6651 (ARR) (RML), 2020 WL 3403191, at *18 (E.D.N.Y. June 19, 2020) (citing

Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 429 (2d Cir. 2016)). In order to make out a

prima facie case at the first step of that framework, a plaintiff must establish that: (1) they

“exercised rights protected under the FMLA,” (2) they were “qualified for [their] position,”

(3) they “suffered an adverse employment action,” and (4) “the adverse employment action

occurred under circumstances giving rise to an inference of retaliatory intent.” Graziadio, 817

F.3d at 429 (quoting Donnelly v. Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134, 147 (2d

Cir. 2012)). “If the plaintiff makes out a prima facie case, the defendant must demonstrate a

legitimate, non-discriminatory reason for its actions; if the defendant does so, the plaintiff must

then show that defendant’s proffered explanation is pretextual.” Id. The plaintiff can show that

the defendant’s proffered explanation is pretextual “‘by demonstrating weaknesses,

implausibilities, inconsistencies, or contradictions in the [defendant]’s proffered’ reason, or by

providing evidence such that a reasonable factfinder could conclude that the prohibited reason was

a ‘motivating factor’ in the adverse employment action.” Greenberg v. State Univ. Hosp. -

Downstate Med. Ctr., 838 F. App’x 603, 606 (2d Cir. 2020) (summary order) (citations omitted)

(first quoting Graziadio, 817 F.3d at 430; and then quoting Woods, 864 F.3d at 168–69).

11 In Graziadio v. Culinary Institute of America, 817 F.3d 415 (2d Cir. 2016), the Second

Circuit left open the question of whether, in FMLA retaliation cases, a test more favorable to

claimants should apply than the McDonnell Douglas test described here. See Graziadio, 817 F.3d

at 429 n.7 (discussing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1993) (Title VII)).

The Second Circuit found it unnecessary to decide “whether an easier test should govern” because

the plaintiff in that case met the stricter McDonnell Douglas test. Id. This Court takes the same

approach.

“[A] plaintiff does not need to plead specific facts establishing a prima facie case of FMLA

retaliation in order to survive a motion to dismiss.” Robles, 2020 WL 3403191, at *18 (cleaned

up) (quoting Ziccarelli v. NYU Hosps. Ctr., 247 F. Supp. 3d 438, 448 (S.D.N.Y. 2017)).

Nonetheless, to determine whether a plaintiff has stated a plausible claim for relief, the Court may

look to the elements of the prima facie case. Id.

Here, Defendants do not dispute that Plaintiff exercised rights protected by the FMLA and

was qualified for her position. (See generally Defs.’ Mem., Dkt. 24-1, at 1, 14–15.) Therefore,

the Court turns directly to the third and fourth elements of the prima facie case: adverse action and

retaliatory intent.

A. Plaintiff Sufficiently Alleges Adverse Action

Defendants assert that Plaintiff “fails to state a claim of retaliation under the FMLA

because she does not plausibly allege any adverse actions as a result of requesting or taking FMLA

leave.” (Defs.’ Mem., Dkt. 24-1, at 1.) However, after making this assertion in their preliminary

statement, Defendants do not return to it in their argument. (See generally id. at 12–18.) “Where

a party refers to an issue in only a perfunctory manner, unaccompanied by any effort at developed

argumentation, it must be deemed waived—or, more precisely, forfeited.” O’Sullivan v. PHH

Mortg. Corp., No. 2:22-CV-4420 (NJC) (ARL), 2025 WL 1835926, at *16 (E.D.N.Y. July 3, 2025)

(cleaned up) (quoting In re Demetriades, 58 F.4th 37, 54 (2d Cir. 2023)). Thus, Defendants have

forfeited this argument.

In any event, Plaintiff has adequately alleged adverse actions. An adverse action in the

retaliation context is “any action by the employer that is likely to dissuade a reasonable worker in

the plaintiff’s position from exercising [their] legal rights.” Millea v. Metro-North R.R. Co., 658

F.3d 154, 164 (2d Cir. 2011). Courts in this circuit have routinely found that employer actions

analogous to those alleged by Plaintiff, such as negative performance evaluations and disciplinary

letters, constitute adverse actions in the FMLA retaliation context. See Ziccarelli, 2021 WL

797668, at *7 (S.D.N.Y. Feb. 27, 2021) (collecting cases). Since Plaintiff describes “a barrage of

disciplinary letters and poor performance ratings” after she returned from FMLA leave, (Am.

Compl., Dkt. 17, at ECF 9), the Amended Complaint sufficiently alleges that Plaintiff suffered

adverse actions.

B. Plaintiff’s Allegations Raise an Inference of Retaliatory Animus

Defendants claim that the “alleged adverse acts . . . cannot establish retaliatory animus.”

(Defs.’ Mem., Dkt. 24-1, at 15.) Defendants make three arguments in support of that claim. First,

Defendants argue that “Plaintiff solely relies on temporal proximity to try [to] establish retaliatory

animus,” and “any alleged adverse acts that occurred more than two or three months after Plaintiff

took FMLA leave [are] too temporally remote to establish causation.” (Id.) Second, Defendants

argue that Plaintiff’s allegations of multiple adverse employment actions within the three months

following her return from FMLA leave “cannot establish retaliatory animus because Plaintiff

admits that she received a disciplinary letter for insubordination” before she applied for or took

FMLA leave, which they argue defeats any inference of retaliation based on temporal proximity.

(Id.) Third, Defendants argue that Plaintiff has “not allege[d] any facts that even suggest that

[Defendant] Favuzza knew Plaintiff applied for, was granted, or took . . . FMLA leave,” and “[a]t

best, Plaintiff merely speculates that [Defendant] Favuzza retaliated against her.” (Id. at 15–16.)

As to their first argument, Defendants miss the mark by arguing that adverse acts that

occurred more than two or three months after Plaintiff’s FMLA leave are too remote to establish

retaliatory animus. Defendants are correct that some courts within the Second Circuit have found

the passage of four months between a plaintiff’s FMLA leave and the alleged adverse employment

action too attenuated to establish causation when a plaintiff is relying on temporal proximity alone.

See Davis v. Power of Auth., No. 19-CV-0792 (KMK), 2022 WL 309200, at *19 (S.D.N.Y.

Feb. 2, 2022) (collecting cases). Here, though, Plaintiff is not solely relying on temporal proximity

to establish causation on her FMLA retaliation claim, as she alleges “escalating negative actions

toward her combined with . . . allegedly false explanations” for the disciplinary letters and

summonses. Behringer v. Lavelle Sch. for the Blind, No. 08-CV-4899 (JGK), 2010 WL 5158644,

at *15 (S.D.N.Y. Dec. 17, 2010); (see Am. Compl., Dkt. 17, at ECF 8–16). These factors

strengthen the inference of retaliation in her allegations. See Behringer, 2010 WL 5158644, at *15.

Still, looking solely at the timing of Plaintiff’s allegations, she received two disciplinary

conference summonses the morning she returned from FMLA leave, as well as two disciplinary

letters less than one week later. (Am. Compl., Dkt. 17, at ECF 8–9.) In the months that followed,

she received several more disciplinary letters and a warning that she was in danger of receiving an

Unsatisfactory rating for the school year. (Id. at ECF 9–10.) These disciplinary letters and the

warning are sufficiently close in time to allow an inference of causation. See Lambert v. Trump

Int’l Hotel & Tower, 304 F. Supp. 3d 405, 423 (S.D.N.Y. 2018) (collecting cases to show that

courts in this circuit consider temporal proximity of about two months or less to be sufficient to

establish causal inference); De Figueroa v. City of New York, 403 F. Supp. 3d 133, 158

(E.D.N.Y. 2019) (finding temporal proximity of less than one week “very close” and sufficient to

establish retaliatory intent at the motion-to-dismiss stage (citing Lambert, 304 F. Supp. 3d at 423)).

Second, the Court disagrees with Defendants’ argument that Plaintiff’s pre-FMLA

disciplinary history negates the inference of retaliatory animus. While Plaintiff admits to receiving

one disciplinary letter for insubordination in October 2021, before she applied for and then took

FMLA leave, (Am. Compl., Dkt. 17, at ECF 8; Defs.’ Mem., Dkt. 24-1, at 15), Plaintiff was not

subjected to any additional adverse employment actions between that letter and when she applied

for FMLA leave, (Am. Compl., Dkt. 17, at ECF 8). And, prior to the October 2021 letter, Plaintiff

had never received a disciplinary letter. (Id.) This almost negligible history of pre-FMLA-leave

disciplinary actions distinguishes Plaintiff’s allegations from the cases on which Defendants rely.

(See Defs.’ Mem., Dkt. 24-1, at 15–16 (first citing Woolf v. Strada, 792 F. App’x 143, 146 (2d

Cir. 2020) (summary order); and then citing Elliot-Leach v. N.Y.C. Dep’t of Educ., 710 F. App’x

449, 452 (2d Cir. 2017) (summary order)).)

In Woolf, the Second Circuit affirmed a district court’s grant of summary judgment because

“‘the adverse employment actions were both part, and the ultimate product, of an extensive period

of progressive discipline which began’ before [the plaintiff] engaged in any protected activity.”

792 F. App’x at 146 (quoting Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2001)).

Here, in contrast, there was no period of progressive discipline before Plaintiff engaged in

protected activity—at most, she had received a single disciplinary letter over the course of six

years before applying for FMLA leave. (Am. Compl., Dkt. 17, at ECF 8.) And in Elliot-Leach,

unlike here, the plaintiff’s “disciplinary issues [predating her leave] were well-documented.”

Elliot-Leach, 201 F. Supp. 3d 238, 244–45 (E.D.N.Y. 2016), aff’d, 710 F. App’x 449.

Furthermore, in Elliot-Leach, the temporal gap between the plaintiff’s FMLA leave and the alleged

adverse action was eight months, Elliot-Leach, 710 F. App’x at 452, in stark contrast to Plaintiff’s

allegations here that she received two disciplinary summonses the very morning she returned from

FMLA leave, (Am. Compl., Dkt. 17, at ECF 8–9). These cases are materially distinguishable, and

Plaintiff’s minimal disciplinary history prior to her FMLA leave does not defeat the inference that

her post-leave discipline was retaliatory.

Third, the Court disagrees with Defendants’ argument that Plaintiff has not “sufficiently

alleged [retaliatory] animus” because she does not state “facts that even suggest that [Defendant]

Favuzza knew Plaintiff applied for, was granted, or took . . . FMLA leave.” (Defs.’ Mem.,

Dkt. 24-1, at 15–16.) Plaintiff clearly alleges, and Defendants do not dispute, that Defendant

Favuzza was Plaintiff’s “immediate supervisor” at all relevant times. (Am. Compl., Dkt. 17, at

ECF 8.) Plaintiff alleges that, following her “return from . . . FMLA leave, [Defendant] Favuzza

completely changed how she treated” Plaintiff. (Id. at ECF 9.) Implicit in these claims is that

Plaintiff alleges that Defendant Favuzza was aware of Plaintiff’s FMLA leave. Drawing all

inferences in Plaintiff’s favor, Plaintiff has stated sufficient facts to suggest that Defendant

Favuzza knew that Plaintiff took FMLA leave.

C. Plaintiff Sufficiently Alleges That Defendant Favuzza Was Her Employer

Under the FMLA

Finally, the Court disagrees with Defendants’ argument that Plaintiff’s FMLA claims

against Defendant Favuzza must be dismissed because Plaintiff purportedly failed to plead that

Defendant Favuzza acted as an “employer” under the FMLA. (Defs.’ Mem., Dkt. 24-1, at 17.)

Under the FMLA, employer status is determined by the “economic reality test,” which is “a factual

inquiry that does not bear on the sufficiency of the pleadings.” Ziccarelli, 247 F. Supp. 3d at 446

(first citing Graziadio, 817 F.3d at 422; and then quoting Smith v. Westchester County, 769 F.

Supp. 2d 448, 475 (S.D.N.Y. 2011)). “Thus, to survive a motion to dismiss, Plaintiff need not

allege sufficient facts to satisfy the economic reality test; instead, [she] must simply ‘plead that the

proposed [i]ndividual [d]efendants had substantial control over the aspects of employment alleged

to have been violated.’” Id. (quoting Smith, 769 F. Supp. 2d at 475–76). As Plaintiff has alleged

that Defendant Favuzza was her “immediate supervisor” and had powers that included the ability

to issue disciplinary letters, disciplinary summonses, and Satisfactory/Unsatisfactory ratings, (see

Am. Compl., Dkt. 17, at ECF 8–15), Plaintiff has met that standard.

* * *

In sum, Plaintiff has alleged sufficient facts to state a claim for retaliation under the FMLA.

The Court therefore denies Defendants’ motion to dismiss that claim.

II. NYSHRL and NYCHRL Claims

Turning to Plaintiff’s state and municipal law claims, Defendants argue that Plaintiff’s

claims under the NYSHRL and NYCHRL should be dismissed on the following grounds:

(1) failure to provide a notice of claim (as to Defendant DOE only); (2) failure to state a claim of

retaliation; and (3) failure to state claims that establish Defendant Favuzza’s individual liability.

(Defs.’ Mem., Dkt. 24-1, at 1, 12–18.) Defendants do not provide any argument, aside from

conclusory/perfunctory statements, that Plaintiff failed to state a claim of discrimination under the

NYSHRL and NYCHRL. (See generally id.) Nonetheless, the Court addresses Plaintiff’s

discrimination claims in addition to her retaliation claims.

A. Plaintiff Provided Notice of Her Claims Under New York Education Law

Section 3813(1)

Defendants assert that Plaintiff’s NYSHRL and NYCHRL claims against the DOE must

be dismissed because Plaintiff did not timely file a notice of claim under New York Education

Law § 3813(1) (“Section 3813(1)”).12 (Defs.’ Mem., Dkt. 24-1, at 12–14.) Section 3813(1) states

that no action shall proceed against a school district “unless it shall appear by and as an allegation

in the complaint or necessary moving papers that a written verified claim upon which such

action . . . is founded was presented to the governing body of said district or school within three

12 As Defendants concede, Section 3813(1)’s notice-of-claim requirement does not apply

to Plaintiff’s claims against Defendant Favuzza. (See Defs.’ Reply, Dkt. 24-5, at 1); see also

Bacchus v. N.Y.C. Dep’t of Educ., 137 F. Supp. 3d 214, 235 (E.D.N.Y. 2015) (holding that

Section 3813(1) does not apply to claims against school administrators, such as principals or

assistant principals, who “do[] not hold district-wide office” (citing Benedith v. Malverne Union

Free Sch. Dist., 38 F. Supp. 3d 286, 312 (E.D.N.Y. 2014))).

months after the accrual of such claim.” N.Y. Educ. Law § 3813(1). “This notice requirement

applies to all state and municipal claims,” including claims under the NYSHRL and NYCHRL.

Gehlaut v. N.Y.C. Dep’t of Educ., No. 22-CV-7862 (AMD) (LB), 2024 WL 456822, at *7

(E.D.N.Y. Feb. 6, 2024) (citing Smith v. N.Y.C. Dep’t of Educ., 808 F. Supp. 2d 569, 578

(S.D.N.Y. 2011)), aff’d, No. 24-1741, 2025 WL 2586770 (2d Cir. Sep. 8, 2025). The notice of

claim requirement “is a condition precedent to file an action in New York against [a] school board”

such as the DOE. Id. (citing same); see also Jacobs v. N.Y.C. Dep’t of Educ., No. 11-CV-5058

(MKB), 2013 WL 12425672, at *5–7 (E.D.N.Y. Feb. 1, 2013) (dismissing NYSHRL and

NYCHRL discrimination claims against DOE for failure to file notice of claim under

Section 3813(1)). “[T]he failure to serve the proper public body with a notice of claim ‘is a fatal

defect mandating dismissal of [the] action.’” Wesley-Dickson v. Warwick Valley Cent. Sch. Dist.,

973 F. Supp. 2d 386, 411 (S.D.N.Y. 2013) (quoting Parochial Bus Sys., Inc. v. Bd. of Educ., 470

N.Y.S.2d 564, 568 (1983)), aff’d, 586 F. App’x 739 (2d Cir. 2014) (summary order).

1. Plaintiff Filed a Notice of Claim in August 2024

Plaintiff’s Amended Complaint states that she filed a “notice of claim” against the DOE on

August 9, 2024. (Am. Compl., Dkt. 17, at ECF 16.) Defendants do not contest, and thereby

concede, that Plaintiff’s notice satisfies Section 3813(1) for claims that accrued in the three months

preceding August 9, 2024. (See Defs.’ Mem., Dkt. 24-1, at 13; Defs.’ Reply, Dkt. 24-5, at 3.)

However, Defendants argue that the Court cannot consider any of Plaintiff’s state or municipal

law claims against the DOE that are predicated on acts that occurred outside of that three-month

period. (See Defs.’ Mem., Dkt. 24-1, at 13–14; Defs.’ Reply, Dkt. 24-5, at 3.)

Section 3813(1) does not require a plaintiff to provide a notice of claim within three months

of each act that will eventually be described in their complaint. Rather, it requires plaintiffs to

provide a notice of claim “within three months after the accrual of [the] claim.” N.Y. Educ. Law

§ 3813(1). Generally, “[t]he accrual of a claim, as that term is employed in [Section] 3813(1),

occurs when damages have matured and become certain and ascertainable.” Williams v. N.Y.C.

Dep’t of Educ., No. 19-CV-1353 (CM), 2019 WL 4393546, at *18 (S.D.N.Y. Aug. 28, 2019)

(internal quotation marks omitted). “That determination, in turn, requires courts to ‘look at the

crux of the challenge being asserted.’” Id. (quoting Bd. of Educ. v. N.Y. State Pub. Emp. Relations

Bd., 681 N.Y.S.2d 391, 394 (3d Dep’t 1998)); cf. Olivieri v. Stifel, Nicolaus & Co., 112

F.4th 74, 87 (2d Cir. 2024) (explaining that “[w]ithin each body of law, there are different accrual

rules depending on the nature of the cause of action”).

Here, Plaintiff’s claims are based primarily on what she describes as “a barrage of adverse

disciplinary letters” and “poor evaluations” she received after returning from FMLA leave. (Pl.’s

Opp’n, Dkt. 24-4, at 1.) “[N]egative performance ratings” and “letters to file . . . are discrete acts”

that could, on their own, give rise to cognizable discrimination or retaliation claims. Sotomayor

v. City of New York, 862 F. Supp. 2d 226, 250 (E.D.N.Y. 2012), aff’d, 713 F.3d 163 (2d Cir. 2013).

Those claims would “accrue” under the NYSHRL and NYCHRL on the dates each act occurred.

See Williams, 2019 WL 4393546, at *19–20 (collecting cases for propositions that

“[d]iscrimination claims under the NYSHRL and NYCHRL accrue under Section 3813 when an

employer takes an adverse action that results in readily ascertainable damages” and that

“[r]etaliation claims under the NYSHRL and NYCHRL accrue on the date on which the retaliatory

act is taken”). To the extent Plaintiff brings such discrete claims, Defendants are correct that

Plaintiff’s August 9, 2024 notice of claim only covers claims based on events that occurred in the

preceding three months.

2. Plaintiff’s September 2023 SDHR/EEOC Charge Also Constitutes a

Notice of Claim

However, Plaintiff argues that in addition to her formal notice of claim, she complied with

Section 3813(1) by filing a timely SDHR/EEOC charge on September 1, 2023. (Pl.’s Opp’n,

Dkt. 24-4, at 5.) Although courts have disagreed over whether Section 3813(1) requires the formal

“notice of claim” described in New York General Municipal Law § 50-e, the Court holds that it

does not. See Berrie v. Bd. of Educ., No. 14-CV-6416 (CS), 2017 WL 2374363, at *8

(S.D.N.Y. May 31, 2017) (describing history of disagreement in the Second Circuit and New York

state courts and concluding formal notice of claim is not required), aff’d, 750 F. App’x 41

(2d Cir. 2018) (summary order); Walsh v. Scarsdale Union Free Sch. Dist., 375 F. Supp. 3d 467,

481–82 (S.D.N.Y. 2019) (citing Berrie, inter alia, and concluding same); Hatcher v. N.Y.C. Dep’t

of Educ., No. 23-CV-3510 (NRM) (LB), 2024 WL 4333643, at *3 (E.D.N.Y. Sep. 27, 2024)

(similar). Therefore, “an EEOC or SDHR complaint may satisfy the notice of claim requirement,

[but] Plaintiff must still plausibly allege that the administrative complaint met Section 3813’s

requirements.” Hatcher, 2024 WL 4333643, at *3 (cleaned up). In other words, Plaintiff must

plead that the administrative complaint was presented to the DOE within three months of when

her claims accrued, and it must have been sufficiently detailed to allow the DOE to investigate her

claims. See N.Y. Educ. Law § 3813(1); Berrie, 2017 WL 2374363, at *8.

Defendants do not argue that Plaintiff’s SDHR/EEOC charge was insufficiently detailed to

allow the DOE to investigate the claims, (see generally Defs.’ Reply, Dkt. 24-5, at 2–3); instead,

Defendants argue that Plaintiff failed to allege that the charge was served on the DOE within three

months of her claims’ accrual, (id. at 2). However, the Court is satisfied by Plaintiff’s statement

that the charge was “presented to the [DOE]” and the DOE “submitted a response . . . dated

October 20, 2023.” (Pl.’s Opp’n, Dkt. 24-4, at 5.) The Court therefore finds that Plaintiff provided

adequate notice for any of her claims based on discrete acts of discrimination or retaliation that

occurred in the three months before she filed her SDHR/EEOC charge. Combined with her formal

notice of claim, that covers discrete acts from June 3–September 1, 2023 (the 90-day period

preceding Plaintiff’s SDHR/EEOC charge), and from May 11–August 9, 2024 (the 90-day period

preceding her formal notice of claim).

3. Plaintiff Alleges Continuing Violations

Most importantly, some of Plaintiff’s claims fall within the continuing violation doctrine,

which affects when those claims accrue. The continuing violation doctrine recognizes that certain

claims, like hostile work environment claims, are “composed of a series of separate acts that

collectively constitute one unlawful employment practice.” Washington v. County of Rockland,

373 F.3d 310, 318 (2d Cir. 2004) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,

111 (2002)). Such a claim “continues to accrue, or reaccrues, each time the defendant engages in

an act that is ‘part of the ongoing, discriminatory practice.’” Olivieri, 112 F.4th at 88 (quoting

King v. Aramark Servs., Inc., 96 F.4th 546, 561 (2d Cir. 2024)) (specifically regarding hostile work

environment claims under Title VII). Put another way, a claim for a continuing violation “first

accrues when the plaintiff has an actionable claim; but because such a claim is a single and

indivisible claim arising from numerous specific acts undertaken in a continuing course, the claim

reaccrues—it is essentially reborn—with each successive act that is part of that continuing course.”

Id. at 85. Therefore, as long as at least one act contributing to the continuing violation occurs

within the statute of limitations or notice period, the entire claim is timely, and the defendant can

be held liable for “the entire time period” of the violation. Id. at 88 (quoting King, 96 F.4th at

560); see also Williams, 2019 WL 4393546, at *18 (explaining that the continuing violation

doctrine modifies when claims “accrue” for purposes of Section 3813(1)’s notice of claim

requirement).

A continuing violation may be found under Title VII if “specific and related instances of

discrimination are permitted by the employer to continue unremedied for so long as to amount to

a discriminatory policy or practice.” King, 96 F.4th at 559 (quoting Van Zant v. KLM Royal Dutch

Airlines, 80 F.3d 708, 713 (2d Cir. 1996)). Hostile work environment claims are a “common type

of claim subject to the continuing violation doctrine” because “unlike discrete acts, ‘[t]heir very

nature involves repeated conduct.’” Olivieri, 112 F.4th at 88 (alteration in original) (quoting

Morgan, 536 U.S. at 115). The NYSHRL’s continuing violation doctrine previously “mirror[ed]

that of Title VII,” while the NYCHRL’s doctrine was “more generous.” Taylor v. City of New

York, 207 F. Supp. 3d 293, 302 (S.D.N.Y. 2016) (citing Sotomayor, 862 F. Supp. 2d at 250). The

New York State Legislature amended the NYSHRL in 2019, “the effect of which [was] to render

the standard for claims closer to the standard under the NYCHRL.” Wellner v. Montefiore Med.

Ctr., No. 17-CV-3479 (KPF), 2019 WL 4081898, at *5 n.4 (S.D.N.Y. Aug. 29, 2019); see also

N.Y. Exec. Law § 300 (requiring that the NYSHRL be construed “liberally for the accomplishment

of [its] remedial purposes,” and that “[e]xceptions to and exemptions from [its] provisions . . . be

construed narrowly in order to maximize deterrence of discriminatory conduct”).

Regardless, even under the stricter Title VII standard, the Court would find that Plaintiff

has sufficiently alleged a continuing violation. Construing the record in the light most favorable

to Plaintiff, she has adequately pled a continuing violation akin to a hostile work environment

claim.13 She describes specific, similar acts—disciplinary letters and negative performance

13 The Court notes that the NYCHRL “does not distinguish between claims of

‘discrimination’ and ‘harassment’ or hostile work environment, which is a term of art borrowed

from the more restrictive Title VII jurisprudence.” Lee v. Riverbay Corp., 751 F. Supp. 3d 259,

287 n.6 (S.D.N.Y. 2024) (quoting Mitura v. Finco Servs., Inc., 712 F. Supp. 3d 442, 452 n.3

(S.D.N.Y. 2024)). And, as discussed above, the NYSHRL’s standard for claims is now “closer to

that of the NYCHRL” than to that of Title VII. Id. at 274.

evaluations—and she alleges these acts were related to each other as “part of a clear, targeted

campaign” that began after she returned from FMLA leave in January 2022. (Pl.’s Opp’n,

Dkt. 24-4, at 11; see also id. at 1–2.) Although the specific acts she alleges might be “discrete

acts” on their own, they could plausibly constitute an ongoing practice of harassment when taken

together. See King, 96 F.4th at 561 (hostile work environment claims are “formed and shaped by

an assemblage of discriminatory acts—including acts that might also support a discrete-act

discrimination claim if timely filed”).

Plaintiff has also alleged at least one act in furtherance of the continuing violation that was

within the statutory period of Section 3813(1). Namely, she alleges that she received an

“Unsatisfactory” annual rating for the 2022–23 school year on June 15, 2023, (Am. Compl.,

Dkt. 17, at ECF 14), less than three months before she filed her SDHR/EEOC charge on

September 1, 2023, (id. at ECF 6). Therefore, Plaintiff has satisfied Section 3813(1)’s

requirements for her continuing violation claim, and the Court will consider all acts that took place

in furtherance of the continuing violation alleged, even if those acts happened outside the June 3–

September 1, 2023 or May 11–August 9, 2024 windows.

This conclusion finds support in the Section 3813(1) case law regarding ongoing violations,

even in cases that do not explicitly invoke the continuing violation doctrine, because it follows

logically that the full extent of damages for ongoing discrimination or retaliation cannot be

accurately assessed until the discrimination or retaliation ends. See, e.g., Hoger v. Thomann, 592

N.Y.S.2d 887, 888–89 (3d Dep’t 1993) (holding that, for purposes of Section 3813(1), the extent

of damages in action for discrimination under NYSHRL could not be determined while

discriminatory acts were ongoing—in that case, as long as plaintiff was employed by allegedly

discriminatory supervisor); Moore v. Middletown Enlarged City Sch. Dist., 871 N.Y.S.2d 211, 212

(2d Dep’t 2008) (requiring plaintiff alleging retaliation to serve Section 3813(1) notice of claim

“within three months of the last alleged retaliatory act” (emphasis added)); Freud v. N.Y.C. Dep’t

of Educ., No. 21-CV-2291 (MKV), 2022 WL 889213, at *5 (S.D.N.Y. Mar. 25, 2022) (requiring

plaintiff alleging NYSHRL and NYCHRL claims against the DOE to file a Section 3813(1) notice

of claim within three months of the “final discriminatory act prior to the notice of claim” (emphasis

added)), aff’d, No. 22-879, 2023 WL 3103588 (2d Cir. Apr. 27, 2023) (summary order).

B. Plaintiff’s Discrimination Claims are Dismissed in Part

Having concluded that Plaintiff’s NYSHRL and NYCHRL claims against the DOE should

not be dismissed for lack of notice of claim, the Court now considers whether these claims should

be dismissed for failure to state a claim under Rule 12(b)(6).

1. Plaintiff’s NYSHRL Discrimination Claim is Dismissed

It is not clear from the Amended Complaint or the motion briefing whether Plaintiff intends

to bring a claim for discrimination under the NYSHRL. In her opposition to Defendants’ motion

to dismiss, Plaintiff states that she intends to “state[] . . . claims for retaliation and discrimination”

under the FMLA, NYSHRL, and NYCHRL. (Pl.’s Opp’n, Dkt. 24-4, at 1 (emphasis added).)

However, neither Plaintiff nor Defendants submitted argument on whether Plaintiff stated a claim

for discrimination under the NYSHRL. (See generally id.; Defs.’ Mem., Dkt. 24-1; Defs.’ Reply,

Dkt. 24-5.)

To the extent Plaintiff brings an NYSHRL discrimination claim, the Court dismisses it sua

sponte. The NYSHRL prohibits an employer from discriminating against an individual based on

the “individual’s age, race, creed, color, national origin, citizenship or immigration status, sexual

orientation, gender identity or expression, military status, sex, disability, predisposing genetic

characteristics, familial status, marital status, or status as a victim of domestic violence.” N.Y.

Exec. Law § 296(1)(a). Plaintiff does not allege that she was discriminated against on the basis of

any characteristic protected by the NYSHRL. (See generally Am. Compl., Dkt. 17.) Although

Plaintiff’s SDHR/EEOC charge states that she experienced discrimination on the basis of disability

due to “COVID/FMLA Leave,” (Am. Compl., Dkt. 17, at ECF 22), having contracted COVID-19

does not, on its own, render an individual “disabled” for purposes of the NYSHRL. See Hayes v.

Horizon Village, Inc., No. 24-CV-0882 (JLS) (LGF), 2025 WL 3647584, at *4 (W.D.N.Y.

Sep. 26, 2025) (collecting cases showing that “neither having a COVID-19 viral infection nor

being regarded as having COVID-19 is a cognizable disability under the . . . NYSHRL”), R. & R.

adopted, No. 24-CV-0882 (JLS) (LGF), 2025 WL 3642274 (W.D.N.Y. Oct. 22, 2025); N.Y. Exec.

Law § 292(21) (“The term ‘disability’ means (a) a physical, mental or medical impairment

resulting from anatomical, physiological, genetic or neurological conditions which prevents the

exercise of a normal bodily function or is demonstrable by medically accepted clinical or

laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition regarded

by others as such an impairment . . . .”). Having taken leave under the FMLA also does not

constitute a protected trait under the NYSHRL. See generally N.Y. Exec. Law § 296(1)(a); cf.

Sotomayor, 862 F. Supp. 2d at 262 (in retaliation context, taking FLMA leave is not a “protected

activity” under the NYSHRL). Plaintiff’s NYSHRL discrimination claim is therefore dismissed

for failure to state a claim upon which relief can be granted.

2. Plaintiff’s NYCHRL Discrimination Claim Based on Her Caregiver Status

Is Sufficiently Alleged

Plaintiff similarly has not stated a claim for discrimination based on disability under the

NYCHRL. As with the NYSHRL, having contracted COVID-19 does not, on its own, render an

individual “disabled” for purposes of the NYCHRL. See Acosta v. N.Y. Times Co.,

No. 25-CV-1119 (JPC), 2025 WL 3468042, at *4–6 (S.D.N.Y. Dec. 3, 2025) (comparing cases

and concluding that while serious instances of COVID-19 may render individuals disabled within

the meaning of the NYCHRL, plaintiffs must plead facts to show that they were significantly or

seriously impaired).

However, the NYCHRL also prohibits discrimination on the basis of “caregiver status.”

N.Y.C. Admin. Code § 8-107(1)(a). Plaintiff has adequately alleged that she was a “caregiver”

within the meaning of the NYCHRL because she describes taking leave to take care of her mother,

who was dying from pancreatic cancer. (See Am. Compl., Dkt. 17, at ECF 8–9); N.Y.C. Admin.

Code § 8-102 (defining caregiver as person who provides “direct and ongoing care” for a minor

child or care recipient; defining a care recipient to include, inter alia, a parent with a disability;

and defining a disability to include, inter alia, an “impairment of any system of the body,”

including the digestive and endocrine systems); cf. Marullo v. Ellerbe Becket, Inc.,

No. 95-CV-4561 (FB) (MDG), 2001 WL 282772, at *17 (E.D.N.Y. Mar. 16, 2001) (finding that

plaintiff’s prostate cancer qualified as a “disability” under NYCHRL); Ronen v. RedRoute, Inc.,

763 F. Supp. 3d 319, 332–33 (E.D.N.Y. 2025) (finding NYCHRL caregiver status sufficiently

alleged where plaintiff stated he needed to take care of wife while she recovered from pregnancy

complications and surgery).

“To state a discrimination claim under the NYCHRL . . . , ‘a plaintiff must allege only that

[they were] treated less well because of . . . discriminatory intent, i.e., that the unequal treatment

was based, at least in part, on a protected characteristic.’” Mitchell v. Planned Parenthood of

Greater N.Y., Inc., No. 23-CV-1932 (JLR), 2025 WL 1795378, at *17 (S.D.N.Y. June 30, 2025)

(cleaned up) (quoting Lee, 751 F. Supp. 3d at 275). At this stage, Plaintiff has sufficiently alleged

that she was treated less well because of her status as a caregiver. Plaintiff alleges that immediately

following her return from the leave she took to care for her dying mother, Defendant “Favuzza

completely changed how she treated [Plaintiff], and [Plaintiff] received a barrage of disciplinary

letters and poor performance ratings.” (Am. Compl., Dkt. 17, at ECF 8–9.) Admittedly, it is a

close question whether Plaintiff has established that her treatment was caused—even in part—by

her caregiver status. But given the “close temporal proximity” between Plaintiff’s leave to care

for her mother and the alleged discrimination, as well as the “comparatively relaxed pleading

standards governing NYCHRL claims,” the Court finds that Plaintiff’s “caregiver-discrimination

allegations . . . state a cause of action, if only just.” Pustilnik v. Battery Park City Auth., 147

N.Y.S.3d 357, 371 (Sup. Ct. 2021). Additionally, Defendants do not argue that Plaintiff has failed

to allege sufficient facts to show that she was discriminated against based on her status as a

caregiver. Indeed, they do not present any argument that Plaintiff’s NYCHRL discrimination

claim against the DOE should be dismissed, other than their notice-of-claim argument discussed

above. (See generally Defs.’ Mem., Dkt. 24-1; Defs.’ Reply, Dkt. 24-5.) Plaintiff’s NYCHRL

discrimination claim based on caregiver status may therefore proceed.

C. Plaintiff’s NYSHRL and NYCHRL Retaliation Claims Are Sufficiently

Alleged

Both the NYSHRL and NYCHRL prohibit employers from retaliating against an employee

for engaging in protected activity, which includes “oppos[ing] any practice forbidden” under each

statute, as well as “fil[ing] a complaint, testif[ying,] or assist[ing] in any [related] proceeding.”

N.Y. Exec. Law § 296(7); N.Y.C. Admin. Code § 8-107(7). To make out a prima facie case of

retaliation under the NYSHRL and NYCHRL, the plaintiff must demonstrate that, as a result of

their protected activity, “the employer engaged in conduct that was reasonably likely to deter a

person from engaging in such action.” Edelman v. NYU Langone Health Sys., 141 F.4th 28, 45

(2d Cir. 2025) (quoting Qorrolli v. Metro. Dental Assocs., 124 F.4th 115, 122 (2d Cir. 2024)).

Defendants argue that Plaintiff has not alleged that she “engaged in any protected activity

or that Defendants engaged in any conduct that would be reasonably likely to deter Plaintiff or

anyone else from engaging in protected activity.” (Defs.’ Mem., Dkt. 24-1, at 16–17.) The Court

disagrees.

First, Plaintiff has adequately alleged that she engaged in protected activity. For example,

Plaintiff claims that she began sending emails and submitting internal complaints about

Defendants’ allegedly discriminatory behavior as soon as January 14, 2022, continuing at least

through the initiation of this lawsuit.14 (Am. Compl., Dkt. 17, at ECF 9–16); see also Harper v.

N.Y.C. Hous. Auth., 673 F. Supp. 2d 174, 182 (S.D.N.Y. 2009) (holding that “an employee may

‘oppose’ the employer’s practice by informally complaining to management” and finding that

employee who submitted an internal complaint about diminished duties had adequately alleged

NYSHRL and NYCHRL retaliation claims (citing Crawford v. Metro. Gov’t of Nashville &

Davidson Cnty., 555 U.S. 271, 276–77 (2009))). Plaintiff also filed formal complaints on January

25, 2022, (Am. Compl., Dkt. 17, at ECF 9) (with New York City’s Special Commissioner of

Investigations), and September 1, 2023, (id. at ECF 6) (with SDHR and EEOC), which are clearly

protected activity. See Naula v. N.Y.C. Dep’t of Educ., No. 24-CV-0333 (NRM) (LB), 2025 WL

948100, at *5 (E.D.N.Y. Mar. 30, 2025) (“[T]here is no dispute that filing a formal charge of

discrimination [with the SDHR] . . . is a protected activity.” (citing Matima v. Celli, 228 F.3d 68,

79 (2d Cir. 2000))); Postell v. Fallsburg Lib., No. 20-CV-3991 (NSR), 2022 WL 1092857, at *10

14 Although the Court has concluded that Plaintiff did not allege a plausible violation of

the NYSHRL for discrimination, “a plaintiff in a retaliation case need not establish that the conduct

[they] opposed was in fact a violation of the NYSHRL.” Swiderski v. Urb. Outfitters, Inc.,

No. 14-CV-6307 (JPO), 2017 WL 6502221, at *11 (S.D.N.Y. Dec. 18, 2017) (internal quotation

marks omitted and alterations adopted) (quoting Manoharan v. Columbia Univ. Coll. of Physicians

& Surgeons, 842 F.2d 590, 593 (2d Cir. 1988)). “Instead, ‘[t]he plaintiff must demonstrate a good

faith, reasonable belief that the underlying challenged actions of the employer violated the law.’”

Id. (alteration in original) (quoting same); see also McMenemy v. City of Rochester, 241 F.3d 279,

285 (2d Cir. 2001) (holding same in Title VII context). At this early stage of the litigation, Plaintiff

has so demonstrated.

(S.D.N.Y. Apr. 8, 2022) (complaining to EEOC is protected activity under NYSHRL); Weber v.

City of New York, 973 F. Supp. 2d 227, 267 (E.D.N.Y. 2013) (“Plaintiff’s filing of a

complaint . . . with the [SDHR] was protected activity.”); Oshinsky v. N.Y.C. Hous. Auth.,

No. 98-CV-5467 (AGS), 1999 WL 553826, at *3 (S.D.N.Y. July 29, 1999) (“There is no question

that plaintiff, in filing charges with [the SDHR], engaged in a protected activity.”).

Plaintiff has also adequately alleged that Defendants engaged in conduct that would be

“reasonably likely” to deter a person from engaging in protected activity. See Edelman, 141 F.4th

at 45. The numerous disciplinary letters and summonses Plaintiff received, (Am. Compl., Dkt. 17,

at ECF 9–16), could easily provide such deterrence, especially where those disciplinary actions

allegedly stymied Plaintiff’s career advancement. See Millea, 658 F.3d at 165 (in FMLA

retaliation context, holding that a formal disciplinary letter constitutes an adverse action, as it “can

reduce an employee’s likelihood of receiving future bonuses, raises, and promotions, and it may

lead the employee to believe (correctly or not) that [their] job is in jeopardy”).

Finally, Plaintiff has alleged facts sufficient to establish that Defendants’ actions were “as

a result” of her protected activity. For example, Plaintiff alleges that she emailed Superintendent

Julia Bove and Deputy Superintendent Matthew Melchiorre on January 14, 2022, “expressing [her]

concerns with [Defendant] Favuzza’s untimely summoning [of her] to disciplinary conferences”

after Plaintiff’s return from leave. (Am. Compl., Dkt. 17, at ECF 9.) Then, on January 27, 2022,

she emailed the same two individuals a receipt of her complaint submitted to “New York City’s

Special Commissioner of Investigations regarding the harassment by [Defendant] Favuzza.” (Id.)

And then, on February 15, 2022, Defendant Favuzza disciplined Plaintiff for “copying the central

office on emails regarding school level issues including FMLA leave [and] COVID leave,” (id.),

which supports the inference that Plaintiff was disciplined because of her complaints to superiors

about perceived discrimination under the NYSHRL and NYCHRL.

Thus, the Court finds Plaintiff has adequately stated a claim for retaliation under the

NYSHRL and NYCHRL.

D. Plaintiff Sufficiently Alleges that Defendant Favuzza is Individually Liable

Under the NYSHRL and NYCHRL

Finally, the Court addresses whether Defendant Favuzza can be held individually liable for

discrimination and retaliation under the NYSHRL and NYCHRL. Individual defendants can be

held directly liable for retaliation under both the NYSHRL and NYCHRL, as well as for

discrimination under the NYCHRL. N.Y. Exec. Law § 296(7) (making it unlawful for “any

person” to engage in retaliation under the NYSHRL); N.Y.C. Admin. Code § 8-107(7) (same

under the NYCHRL); id. § 8-107(1)(a) (prohibiting discrimination by “an employer or an

employee or agent thereof” under the NYCHRL15 (emphasis added)); but see N.Y. Exec. Law

§ 296(1)(a) (prohibiting discrimination only by “an employer or licensing agency” under the

NYSHRL); Lee, 751 F. Supp. 3d at 289 (explaining that individual employees do not qualify as

“employers” who can be held directly liable for discrimination under the NYSHRL (citing Doe v.

Bloomberg L.P., 143 N.Y.S. 3d 286, 291 (2021))). Plaintiff has adequately alleged that Defendant

Favuzza is directly liable because Defendant Favuzza “actually participate[d] in the conduct giving

15 The Court of Appeals of New York has clarified that direct individual employee liability

for discrimination under the NYCHRL is limited to cases where the employee “ha[s] some

supervisory role over the victim of their discrimination.” Russell v. New York Univ., 42 N.Y.3d

377, 389–90 (2024). “Supervisory role” is construed broadly “to include not just those with formal

managerial or titular authority over a plaintiff, but as applicable to those who wield any ability to

dictate or administer the compensation, terms, conditions, or privileges of the plaintiff’s

employment.” Id. Here, as Defendants admit, Defendant Favuzza is Plaintiff’s “supervisor.”

(Defs.’ Reply, Dkt. 24-5, at 5.) She therefore has sufficient managerial authority over Plaintiff to

be held individually liable for discrimination under the NYCHRL.

rise to” Plaintiff’s claims. Kekovic v. Titan Motor Group LLC, No. 22-CV-2142 (MKB), 2025

WL 2173651, at *15 (E.D.N.Y. July 31, 2025) (alteration in original) (quoting Schaper v. Bronx

Lebanon Hosp. Ctr., 408 F. Supp. 3d 379, 395 (S.D.N.Y. 2019)); (see, e.g., Am. Compl., Dkt. 17,

at ECF 8–15 (describing adverse employment actions taken by Defendant Favuzza)).

Additionally, an individual can be held liable under the NYSHRL and NYCHRL for

“aid[ing], abet[ting], incit[ing], compel[ling,] or coerc[ing]” discrimination or retaliation. N.Y.

Exec. Law § 296(6); N.Y.C. Admin. Code § 8-107(6). Aiding-and-abetting liability requires

plaintiffs to “plead that the [individual] defendant ‘actually participate[d]’ in the unlawful conduct

of the principal actor”—here, the DOE. See Nezaj v. PS450 Bar and Rest., 719 F. Supp. 3d 318,

333 (S.D.N.Y. 2024) (second alteration in original) (quoting Feingold v. New York, 366 F.3d 138,

158 (2d Cir. 2004)). That requires the DOE’s conduct to have “also been found to be

discriminatory [or retaliatory].” Farmer v. Shake Shack Enters., LLC, 473 F. Supp. 3d 309, 337

(S.D.N.Y. 2020) (quoting Xiang v. Eagle Enters., LLC, No. 19-CV-1752 (PAE), 2020 WL 248941,

at *5 (S.D.N.Y. Jan. 16, 2020)). Defendants here argue, in substance, that Defendant Favuzza

“cannot be held individually liable for aiding and abetting [discrimination] or retaliation” because

the DOE is not liable for discrimination or retaliation. (Defs.’ Mem., Dkt. 24-1, at 18.) Since the

Court has found that Plaintiff’s retaliation claims and her NYCHRL discrimination claim survive

dismissal, Defendants’ argument is largely moot. The Court also notes that an individual

defendant “may be held liable for aiding and abetting allegedly unlawful discrimination by her

employer even where her actions serve as the predicate for the employer’s vicarious liability.”

Conklin v. County of Suffolk, 859 F. Supp. 2d 415, 436 (E.D.N.Y. 2012).

Thus, the Court denies Defendants’ motion to dismiss Plaintiff’s individual claims against

Defendant Favuzza under the NYSHRL and NYCHRL.

CONCLUSION

For the reasons explained above, Defendants’ motion to dismiss is granted in part and

denied in part. The Court denies Defendants’ motion to dismiss Plaintiff’s FMLA retaliation

claim, her NYCHRL discrimination claim based on her caregiver status, and her NYSHRL and

NYCHRL retaliation claims. Those claims shall proceed to discovery. The Court grants

Defendants’ motion to dismiss Plaintiff’s NYSHRL discrimination claim.

SO ORDERED.

/s/ Pamela K. Chen

Pamela K. Chen

United States District Judge

Dated: February 2, 2026

Brooklyn, New York