The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Scott E. Friedberg,
Plaintiff,
-v- 2:24-cv-4072
(NJC) (ST)
New York Institute of Technology, Daniel Quigley, Tiffany
Blake, Junius Gonzalez, Katherine Zuliani, Cheryl
Monticciolo, Carlyn Annunziata, and Catherine Flickinger,
Defendants.
OPINION AND ORDER
NUSRAT J. CHOUDHURY, United States District Judge:
Plaintiff Scott E. Friedberg brings this action for damages against the New York Institute
of Technology (“NYIT”), Daniel Quigley, Tiffany Blake, Katherine Zuliani, Cheryl Monticciolo,
Catherine Flickinger (collectively, the “Moving Defendants”), Junius Gonzalez, and Carlyn
Annunziata.1 Friedberg alleges that NYIT terminated his employment in violation of its
collective bargaining agreement (the “CBA”) with Friedberg’s labor union and that Quigley,
1 Gonzalez and Annunziata have not appeared in this action. Therefore, only NYIT, Quigley,
Blake, Zuliani, Monticciolo, and Flickinger are referred to as the “Moving Defendants.”
On September 24, 2025, this Court ordered Plaintiff to “show cause why the claims against
Gonzalez and Annunziata in this action should not be dismissed without prejudice pursuant to
Rule 4(m), Fed. R. Civ. P., due to Friedberg’s failure to serve Gonzalez and Annunziata or to
otherwise show good cause for the failure to do so.” (Order to Show Cause, ECF No. 20 at 2–3.)
The Order indicated that “[f]ailure to respond to this order to show cause by October 1, 2025 will
result in dismissal of the claims against Gonzalez and Annunziata in this action without
prejudice.” (Id. at 3.) Plaintiff failed to respond to the Court’s Order or otherwise demonstrate
that Plaintiff had timely served Gonzalez and Annunziata pursuant to Rule 4(m). Accordingly,
Plaintiff’s claims against Gonzalez and Annunziata are dismissed without prejudice.
Blake, Zuliani, Monticciolo, Flickinger, and Gonzalez (the “NYIT Administrator Defendants”)
discriminated against him based on his age, disability, religion, and veteran status. The Amended
Complaint brings the following claims: (1) a state law breach of contract claim (against NYIT
only); (2) a claim under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185
(“LMRA Section 301”), for breach of NYIT’s collective bargaining agreement with the
American Association of University Professors at NYIT (the “Union”), the union to which
Friedberg allegedly belongs (against NYIT only); (3) claims under state and federal law for
violation of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) (against
NYIT and Annunziata only);2 (4) claims alleging disparate treatment on the basis of veteran
status and disability under the New York State Human Rights Law, N.Y. Exec. Law § 296
(“NYSHRL”) (against the NYIT Administrator Defendants);3 (5) claims alleging a hostile work
environment on the basis of veteran status and disability under the NYSHRL (against the NYIT
Administrator Defendants); (7) claims alleging a hostile work environment on the basis of
religion under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2 (“Title VII”)
(against unspecified Defendants); (8) Title VII claims alleging disparate treatment on the basis of
religion (against unspecified Defendants); (9) claims for disparate treatment on the basis of
2 Although the Amended Complaint alleges that Friedberg brings state law claims to enforce his
rights under the HIPAA, it fails to identify the specific state laws that serve as the basis for such
state law claims. (See Am. Compl. ¶¶ 34–40.)
3 The third cause of action in the Amended Complaint alleges violations of the NYSHRL’s
prohibition on discrimination on the basis of veteran status and disability and is brought
“AGAINST THE DEFENDANTS NYIT AND CARLYN ANNUNZIATA,” however the
paragraphs within the third cause of action only address the conduct of NYIT and the NYIT
Administrator Defendants. (Am. Compl. at 10; see id. ¶¶ 47–51, 53–54.) The parties’ briefing on
the Motion to Dismiss confirms that Friedberg’s NYSHRL claims set forth in the third cause of
action are against NYIT and the NYIT Administrator Defendants, not Annunziata. (See Mem. at
14–17; Opp’n ¶ 29.)
disability under the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12112 et seq
(“ADA”) (against unspecified Defendants); and (10) claims for disparate treatment under the
Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621, et seq (“ADEA”) (against
unspecified Defendants). (Am. Comp. ¶¶ 5–6, 21–83.)
Before me is the Moving Defendants’ Motion to Dismiss (“Motion to Dismiss”). (Mot.,
ECF No. 17.) For the reasons set forth below, I grant the Motion to Dismiss in its entirety, but
nevertheless grant Friedberg leave to file a second amended complaint as follows:
(1) The Federal and State Law HIPPA Claims and the Title VII Claims Challenging
an Alleged Hostile Work Environment on the Basis of Religion: Friedberg
abandoned these claims by failing to oppose the Moving Defendants’ arguments in
his opposition brief. Accordingly, these claims are dismissed with prejudice.
(2) The Breach of Contract and LMRA Section 301 Claims: Friedberg’s breach of
contract claim under New York common law is preempted by LMRA Section 301
and is therefore dismissed with prejudice. Moreover, the LMRA Section 301 claim is
also dismissed with prejudice because the Amended Complaint fails to allege that
Friedberg attempted to exhaust, or actually did exhaust, the grievance and arbitration
procedures for terminated employees under the relevant provisions of the CBA,
which is a condition precedent to bringing his LMRA Section 301 claim. The CBA is
both incorporated by reference in, and integral to, the Amended Complaint and
therefore properly is considered in assessing the Rule 12(b)(6) motion. Accordingly,
Friedberg’s breach of contract and LMRA Section 301 claims are dismissed with
prejudice.
(3) The Title VII Claims Challenging Disparate Treatment and an Alleged Hostile
Work Environment on the Basis of Religion: As noted above, Friedberg failed to
oppose the Moving Defendants’ arguments that his Title VII claims challenging an
alleged hostile work environment, and I dismiss those claims with prejudice.
Additionally, Friedberg failed to exhaust his administrative remedies before filing this
action with respect to his Title VII claims challenging disparate treatment and a
hostile work environment on the basis of religion and, accordingly, all of Friedberg’s
Title VII claims are dismissed with prejudice.
(4) The ADEA Disparate Treatment Claims: The ADEA does not provide for liability
against individuals, and the Amended Complaint fails to allege any facts to support a
plausible inference that Friedberg’s age was the but-for cause of NYIT’s decision to
terminate his employment. Accordingly, Friedberg’s ADEA disparate treatment
claims against the NYIT Administrator Defendants are dismissed with prejudice.
However, I dismiss the ADEA claim against NYIT without prejudice and grant
Friedberg leave under Rule 15(a)(2), Fed. R. Civ. P., to amend the Amended
Complaint to allege facts that plausibly demonstrate that his age was the but-for cause
of NYIT’s termination of his employment.
(5) The ADA Disparate Treatment Claims: The ADA does not provide for liability
against individuals, and the Amended Complaint fails to allege any facts that support
a plausible inference that Friedberg’s disability was the but-for cause of NYIT’s
decision to terminate his employment. Accordingly, Friedberg’s ADA disparate
treatment claims against the NYIT Administrator Defendants are dismissed with
prejudice. However, I dismiss the ADA claim against NYIT without prejudice and
grant Friedberg leave under Rule 15(a)(2) to amend the Amended Complaint to allege
facts that plausibly demonstrate that his PTSD was the but-for cause of the
termination of his employment.
(6) The NYSHRL Claims: The Amended Complaint fails to state any federal claims,
and there is no independent basis for subject matter jurisdiction over Friedberg’s
remaining NYSHRL claims for disparate treatment and a hostile work environment
on the basis of veteran status and disability, such as diversity jurisdiction under 28
U.S.C. § 1332(a). I decline to exercise supplemental jurisdiction over the NYSHRL
claims pursuant to 28 U.S.C. § 1367(c)(3). However, because Friedberg may file a
second amended complaint with respect to the ADEA and ADA disparate treatment
claims, he may assert any NYSHRL claims—including any claims based on his
veteran status, age, religion, and disability—in any second amended complaint for
future analysis.
JURISDICTION AND VENUE
This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331
because the Amended Complaint alleges violations of federal laws, including Title VII, the
ADEA, and the ADA. (Am. Compl. ¶ 7.) Venue in the Eastern District of New York is proper
under 28 U.S.C. § 1391(b)(2) because the alleged events took place in the Eastern District of
New York. (Id. ¶ 8.)
FACTUAL BACKGROUND
The following facts are taken from the Amended Complaint and documents that are
incorporated by reference in it, or deemed integral to it, as addressed below in Discussion § I.
See Clark v. Hanley, 89 F.4th 78, 93 (2d Cir. 2023) (holding that, on a Rule 12(b)(6) motion to
dismiss, district courts may consider “facts stated on the face of the complaint, documents
appended to the complaint or incorporated in the complaint by reference, matters of which
judicial notice may be taken, [and] documents not expressly incorporated by reference in the
complaint that are nevertheless ‘integral’ to the complaint”).4
Friedberg is a 61-year-old Jewish veteran who suffers from post-traumatic stress disorder
(“PTSD”). (Am. Compl. ¶¶ 42, 61, 67, 76.) Friedberg “was employed as a faculty member in the
math department of the NYIT College of Arts and Sciences for certain academic terms during
the period between 2012 and January 2022,” until his employment was terminated on January
22, 2022. (Am. Compl. ¶¶ 1, 21.)
I. The Collective Bargaining Agreement
During his employment with NYIT, Friedberg “was a member in good standing of
the . . . [U]nion.” (Id. ¶ 22.) At the time of his termination, there was a collective bargaining
agreement (the CBA) in place between NYIT and the Union. (Id. ¶ 5; see also Toren Aff. Ex. C
(“CBA”), ECF No. 17-1 at 26–39.) 5 Specific articles of the CBA address “Grievance and
Arbitration Procedures” (“the Grievance and Arbitration Article”) and “Discipline and Dismissal
Other Than For Reduction in Force” (“the Discipline and Dismissal Article”) (CBA arts. XXIII,
XXIV), which lay out procedures that are “required in order for tenured or non-tenured faculty
members to be dismissed or suspended.” (Am. Compl. ¶ 24.) The CBA’s Discipline and
Dismissal Article provides that:
4 Unless otherwise indicated, case quotations omit all internal quotation marks, alterations,
brackets, and citations.
5 The CBA is attached to the Toren Affidavit. (ECF No. 17-1 at 26–39.) As discussed above, I
consider the CBA because it is both incorporated by reference in the Amended Complaint and
integral to it. See supra Discussion § I.
Tenured and non-tenured faculty members may be dismissed or suspended only
for serious professional misconduct, material and substantial misrepresentation of
facts with respect to professional and academic qualifications, previous
employment, academic credentials, publications, and other professional
achievements, or gross neglect of duties.
(CBA art. XXIV, § 1(a).) It further provides that:
In the event that [NYIT] determines to suspend or dismiss a faculty member, the
individual shall be advised in writing by email (with return receipt) of the
charge(s) and disciplinary action against him or her. A copy of such notice shall
simultaneously be sent by overnight delivery (signature required) to the [Union].
Notice to the [Union] shall be served on its Presidents. If the disciplinary action is
based on a complaint made by an individual, NYIT must submit a written
statement setting forth with particularity all of the allegations giving rise to the
complaint. Said statement will be delivered to the employee who is the subject of
the disciplinary action and the [Union] at the same time and in the same manner
as the notice of the disciplinary action.
(CBA art. XXIV, § 1(b).)
The CBA’s Discipline and Dismissal Article also provides: “The faculty member or the
[Union] may file a grievance concerning the suspension or dismissal of the faculty member.
Except as otherwise set forth herein, the parties shall utilize the Grievance and Arbitration
procedures as set forth in Article XXIII of the [CBA].” (CBA art. XXIV § 1(e).) It further states
that “[g]rievances for faculty suspended or dismissed . . . will commence at Article XXIII, 4.
Internal Procedures for the Resolution of Grievances - Step 2.” (Id. § 1(c).) Under Section 4 of
the Grievance and Arbitration Article, a Union member may file a grievance relating to the
member’s dismissal in writing with NYIT within 30 “calendar days after it was found to exist or
reasonably should have been found to exist . . . .” (Id. art. XXIII, § 4(a)–(c).)
Friedberg “was never notified in writing of the charges and disciplinary actions against
him” and “was never provided with written statement(s) setting forth with particularity all of the
allegations giving rise to any complaint(s) against him.” (Am. Compl. ¶¶ 28–29.) Before
terminating Friedberg’s employment on January 22, 2022, NYIT did not “initiate[] or
complete[]” any “of the procedures outlined and required by the [CBA], including but not
limited to Grievance and Arbitration procedures . . . .” (Id. ¶ 30.)
II. Disclosure of Protected Health Information
Friedberg “was a patient at the Veterans Affairs Medical Center located in Northport,
New York.” (Am. Compl. ¶ 35.) Annunziata, “an employee of the Veteran’s Affairs Medical
Center, had access to the plaintiff’s confidential medical records.” (Id. ¶ 36.) On October 12,
2021, she “communicated and released” to Quigley, Monticciolo, and other NYIT employees,
Friedberg’s “individually identifiable health information regarding his past, present and future
physical or mental health and conditions and the provisions of health care rendered to [him]
including” his “diagnosis and treatment for” PTSD, without his “authorization.” (Id. ¶ 37.) The
Amended Complaint alleges that Quigley, Monticciolo, and other NYIT employees “knowingly
and willfully accepted the protected health information” and that the NYIT Administrator
Defendants “relied upon and used” this knowledge of Friedberg’s PTSD diagnosis and treatment
“to take adverse employment action against” him. (Id. ¶¶ 38–39.)
III. Employment Discrimination
The Amended Complaint alleges that “at various times and places,” the NYIT
Administrator Defendants, to whom Friedberg refers as the “individual NYIT Defendants,”
“described [Friedberg] as ‘crazy’ and . . . a danger to his students based upon his mental state
and PTSD.” (Am. Compl. ¶ 47; see also id. ¶¶ 20, 48.)6 “QUIGLEY and other individual NYIT
defendants made invidious comments and statements critical of [Friedberg] in degrading terms
6 The terms “NYIT Administrator Defendants” as used in this Opinion and Order and “individual
NYIT Defendants” as used in the Amended Complaint are interchangeable and refer to Quigley,
Blake, Zuliani, Monticciolo, Flickinger, and Gonzalez.
relating to his PTSD and the symptoms thereof . . . .” (Id. ¶ 72.) Friedberg’s “immediate
supervisors, Roy and Silverstein stated that [he] was ‘acting like a child.’” (Id. ¶ 49.)7
“Beginning in December of 2021 and continuing through his termination on January 20,
2022, the individual NYIT [D]efendants . . . made accusations against [Friedberg] that he was
acting inappropriately with his students, that his students were uncomfortable with him, that he
was guilty of sexual misconduct, that he was not keeping appropriate distance from his students
and that he posed a risk of harm to students.” (Id. ¶ 51; see also id. ¶ 72.) These remarks and
accusations “occurred with great frequency” from December 2021 to January 2022, constituted
“severe,” “insulting and humiliating” conduct toward Friedberg, and “unreasonably interfered
with [his] work performance.” (Id. ¶ 52.)
The Amended Complaint also alleges that NYIT forced into retirement or terminated four
“other employee[s]/professors in similar situations to” Friedberg, two of whom were 80 years old
and two of whom were “elderly.” (Id. ¶ 81.)
IV. The EEOC Charge
On November 25, 2025, Friedberg filed a Charge of Discrimination with the U.S. Equal
Employment Opportunity Commission (“EEOC”) against NYIT using an EEOC form. (Am.
Compl. ¶ 3; see also Toren Aff. Ex. B (“EEOC Charge”), ECF No. 17-1 at 24.)8 The EEOC form
asks, “Why do you think you were discriminated against?” and provides several checkboxes next
7 The Amended Complaint does not include either Roy or Silverstein’s first names or any other
allegations about them. The original Complaint, filed by Friedberg acting pro se, mentions
“Ranja Roy” and “Anna Silverstein.” (Compl. ¶¶ 1, 34.)
8 The EEOC Charge is attached to the Toren Affidavit. (Toren Aff. Ex. B, ECF No. 17-1 at 24.)
As discussed below, I consider the EEOC Charge because it is both incorporated by reference in
the Amended Complaint and integral to it. See infra Discussion § I.
to various reasons for the alleged discrimination including: “Religion,” “Age,” “Disability,” and
“Retaliation.” (EEOC Charge.) On Friedberg’s EEOC Charge, the checkboxes next to “Age,”
“Disability,” and “Retaliation” are checked, but the checkbox next to “Religion” is not checked.
(Id.) This section of Friedberg’s EEOC Charge also includes the following handwritten notation:
“I am a veteran with PTSD.” (Id.) In the next section of the EEOC Charge, the form asks, “What
happened to you that you think was discriminatory?” and provides space for a brief description.
(Id.) In that section, Friedberg wrote:
I was the victim of character assasination [sic] for having mental illness. I have
PTSD. I am a veteran. I was spied on, surveilled. I received no due process. I was
talking to a student on Jan 24, 2022 and was fired for talking to that student.
Based on my mental illness and a false accusation. No Due Process.
(Id.)
PROCEDURAL HISTORY
On February 1, 2024, Friedberg, acting pro se, brought this action in the Supreme Court
of the State of New York, County of Nassau. (Not. Removal Ex. A (“Compl.”), ECF No. 1 at 4–
11.) On June 6, 2024, the Moving Defendants removed this action to this Court. (Not. Removal,
ECF No. 1.) Following removal, counsel for Friedberg filed a notice of appearance. (ECF No. 7.)
On July 22, 2024, the Moving Defendants filed a letter requesting a pre-motion conference on an
anticipated motion to dismiss the Complaint. (ECF No. 8.) On July 24, 2024, Friedberg, through
counsel, filed a response in which Friedberg requested leave to file an amended complaint. (ECF
No. 9.) Upon review of the parties’ letters, on July 25, 2024, I waived the pre-motion conference
requirement and issued a briefing schedule on the Moving Defendants’ anticipated motion to
dismiss, which permitted Friedberg to file an amended complaint. (ECF No. 10.)
Friedberg filed the Amended Complaint on September 5, 2024. (Am. Compl.) On
September 19, 2024, the Moving Defendants filed their letter requesting a pre-motion conference
concerning an anticipated motion to dismiss this pleading. (ECF No. 14.) On September 23,
2024, Friedberg filed a response in opposition. (ECF No. 15.) After reviewing the parties’
submissions, I waived the pre-motion conference requirement and issued a briefing schedule on
the Moving Defendants’ motion to dismiss the Amended Complaint. (Elec. Order, Oct. 7, 2024.)
On December 16, 2024, the Moving Defendants filed their fully-briefed Motion to
Dismiss in accordance with this Court’s recommended bundling practices. (Mot.; Mem., ECF
No. 17-3; Opp’n, ECF No. 18; Reply, ECF No. 19.) Both the Moving Defendants and Friedberg
attached factual material in support of their submissions on the Motion to Dismiss.
The Moving Defendants attached to the Motion to Dismiss the affidavit of their counsel,
Stefanie Toren (“Toren Affidavit”) (Toren Aff., ECF No. 17-1 at 1–2) and the affidavit of
Bernadette Calabro (“Calabro Affidavit”) (Calabro Aff., ECF No. 17-2 at 1–3), a “Manager,
Academic Affairs” at NYIT. The following exhibits are attached to the Toren Affidavit:
(1) a copy of the Amended Complaint (Toren Aff. Ex. A, ECF No. 17-1 at 3–22);
(2) Friedberg’s EEOC Charge (EEOC Charge, ECF No. 17-1 at 23–24); and
(3) excerpts of the CBA in effect during the period from September 1, 2017 to August 31,
2022 (CBA, ECF No. 17-1 at 25–39).
The following documents are attached to the Calabro Affidavit:
(1) Friedberg’s faculty compensation sheets for the Fall 2018, Spring 2019, Fall 2019 and
Fall 2021 semesters (Calabro Aff. Ex. A, ECF No. 17-2 at 4–16);
(2) Friedberg’s faculty compensation sheets for the Spring 2021 semester (Calabro Aff.
Ex. B, ECF No. 17-2 at 17–20); and
(3) Friedberg’s appointment letter for the Spring 2022 semester (Calabro Aff. Ex. C, ECF
No. 17-2 at 21–23).
Friedberg attached to his opposition brief two emails sent to him by “AAUP-AFT
Adelphi” in September and October 2024, which Friedberg forwarded to his counsel in this
action. (ECF No. 18-1.)
LEGAL STANDARDS
To avoid dismissal under Rule 12(b)(6), a complaint must plead sufficient facts to “state
a claim to relief that is plausible on its face.” Cardinal Motors, Inc. v. H&H Sports Prot. USA
Inc., 128 F.4th 112, 120 (2d Cir. 2025) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In
determining whether a claim is sufficiently plausible to withstand dismissal under Rule 12(b)(6),
a court “accept[s] all factual allegations in the complaint as true” and “draw[s] all reasonable
inferences in the plaintiff’s favor.” Herrera v. Comme des Garcons, Ltd., 84 F.4th 110, 113 (2d
Cir. 2023). Nevertheless, a court is “not required to credit conclusory allegations or legal
conclusions couched as factual allegations.” Melendez v. Sirius XM Radio, Inc., 50 F.4th 294,
307 (2d Cir. 2022). “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.” Iqbal, 556 U.S. at 678. The plausibility standard requires “more than a sheer possibility
that a defendant has acted unlawfully.” Id.; accord Schiebel v. Schoharie Cent. Sch. Dist., 120
F.4th 1082, 1106 (2d Cir. 2024). While “detailed factual allegations” are not required, “[a]
pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of
action will not do.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). A complaint fails
to state a claim “if it tenders naked assertion[s] devoid of further factual enhancement.” Id.
(internal quotation marks omitted).
DISCUSSION
I. Extrinsic Evidence
As a threshold matter, I address whether I may consider facts set forth in the following
documents, which are attached to the Motion and to Friedberg’s opposition brief, when deciding
the Motion to Dismiss under Rule 12(b)(6):
• Friedberg’s EEOC Charge (EEOC Charge, ECF No. 17-1 at 23–24);
• excerpts of the CBA in effect during the period from September 1, 2017 to
August 31, 2022 (CBA, ECF No. 17-1 at 25–39);
• the Calabro Affidavit, including the following exhibits;
o Friedberg’s faculty compensation sheets for the Fall 2018, Spring 2019,
Fall 2019, and Fall 2021 semesters (Calabro Aff. Ex. A);
o Friedberg’s faculty compensation sheets for the Spring 2021 semester
(Calabro Aff. Ex. B); and
o Friedberg’s appointment letter for the Spring 2022 semester (Calabro Aff.
Ex. C); and
• two emails sent to Friedberg by “AAUP-AFT Adelphi” in September and October
2024, which Friedberg forwarded to his counsel in this action (ECF No. 18-1.)
At the Rule 12(b)(6) stage, a court may consider documents that are attached to,
incorporated by reference in, or integral to the complaint or are otherwise the subject of judicial
notice. Clark, 89 F.4th at 93. A document may be incorporated by reference where the complaint
“makes a clear, definite and substantial reference to” the document. Trump v. Vance, 977 F.3d
198, 210 n.8 (2d Cir. 2020); see also Jajati v. JPMorgan Chase Bank, N.A., 711 F. Supp. 3d 169,
173 (E.D.N.Y. 2024). A document is “integral to a complaint” where the “complaint relies
heavily on its terms and effect,” even if the “document is not expressly incorporated by
reference.” Revitalizing Auto Cmtys. Env’t Response Tr. v. Nat’l Grid USA, 92 F.4th 415, 436
(2d Cir. 2024). However, a plaintiff’s “mere notice or possession is not enough” for a document
to be deemed integral to the complaint. United States ex rel. Foreman v. AECOM, 19 F.4th 85,
106 (2d Cir. 2021).
Friedberg’s EEOC Charge and the CBA are incorporated by reference in the Amended
Complaint, which makes clear and substantial references to both documents. (See Am. Compl.
¶¶ 3–4 (alleging that Friedberg’s claims “were presented to the . . . EEOC . . . on or about
November 25, 2022,” and that he was “issued a ‘right to sue letter’ by the EEOC”); id. ¶¶ 5, 23–
32 (alleging claims for breach of contract under state law and LMRA Section 301 for violation of
the CBA and quoting the relevant provisions).) Based on these references, Friedberg’s EEOC
Charge and the CBA are also integral to the Amended Complaint because Friedberg had actual
notice of these documents and relied upon them when framing the Amended Complaint. See
Jajati, 2024 WL 99659, at *2. It is therefore appropriate to consider the EEOC Charge and CBA
in deciding the Motion to Dismiss. Clark, 89 F.4th at 93.
However, I do not consider the facts set forth in the Calabro Affidavit or the faculty
compensation sheets and Spring 2021 appointment letter that are attached to it, or the two emails
from “AAUP-AFT Adelphi” to Friedberg in resolving the Moving Defendants’ Rule 12(b)(6)
Motion. None of these documents are attached to the Complaint. Nor are they public documents
of which the Court may take judicial notice. The Amended Complaint makes no reference to
these documents, let alone “a clear, definite and substantial reference” sufficient to incorporate
these documents by reference. Trump, 977 F.3d at 210 n.8. Finally, because the Amended
Complaint does not rely on these documents at all, they are not properly considered as integral to
the Amended Complaint. See Clark, 89 F.4th at 93 n.18.
II. Abandoned Claims
The Moving Defendants argue that Friedberg failed to oppose their motion to dismiss the
“HIPAA claim set forth in [the] Second Cause of Action,” the “Title VII religious discrimination
claims set forth in the Fourth Cause of Action,” and the “veteran status discrimination claim set
forth in [the] Third Cause of Action,” and thereby abandoned these claims, warranting their
dismissal. (Reply at 6–7.)
“It is well-settled that the failure to oppose an argument raised in a motion to dismiss is
deemed a concession of the argument and abandonment of the claims.” Mulgrew v. United States
Dep’t of Transp., 750 F. Supp. 3d 171, 202 (S.D.N.Y. 2024); Massie v. Wells Fargo Bank, N.A.,
734 F. Supp. 3d 196, 202 n.4 (D. Conn. 2024), appeal dismissed sub nom. Massie v. Wells Fargo
Bank, Nat’l Ass’n, No. 24-2116, 2024 WL 6471199 (2d Cir. Nov. 27, 2024) (same).
Friedberg’s opposition to the Motion to Dismiss makes no reference to either his state or
federal HIPAA claims. Nor does it present any argument to counter the Moving Defendants’
position that there is no private right of action to enforce the HIPAA’s requirements. Therefore,
he has failed to oppose the Motion to Dismiss with respect to the HIPAA claims and I deem
these claims abandoned. (Compare Mem. at 6–7 with Opp’n.) Accordingly, the federal HIPAA
claim is dismissed with prejudice. Additionally, as noted above, the Amended Complaint states
that Friedberg brings state law claims to enforce his HIPAA rights, but does not identify the state
law basis for such claims. Nevertheless, as set forth below in Discussion § VII, I decline to
exercise supplemental jurisdiction over any state law claims alleging a violation of the HIPAA,
to the extent that Friedberg is alleging any such claims.
With respect to the Title VII religious discrimination claims, such claims concern an
alleged hostile work environment and disparate treatment. Friedberg’s opposition brief, however,
only responds to the Moving Defendants’ arguments regarding his Title VII disparate treatment
claims. Specifically, Friedberg makes no explicit reference to his religious identity in opposition
to the Motion to Dismiss, but argues generally that under Title VII, he “is not required to show
that the employer’s proffered reasons were false or played no role in the employment decision,
but only that they were not the only reasons and that the prohibited factor was at least one of the
‘motivating’ factors.” (Opp’n ¶ 46 (emphasis added).) Friedberg’s reference to an “employment
decision,” his termination, and an “adverse action” confirm that these arguments pertain only to
his Title VII disparate treatment claims—not any Title VII hostile work environment claims.
(See id. ¶¶ 46–48.) Therefore, Friedberg has failed to oppose the arguments for dismissal of his
claims under Title VII that he was subjected to a hostile work environment based on his religion,
and accordingly, these claims are dismissed with prejudice. I address Friedberg’s Title VII
disparate treatment claims further below. See infra Discussion § IV.
As discussed in greater detail below, I decline to exercise supplemental jurisdiction over
Friedberg’s state law claims, which include claims under the NYSHRL that he was subjected to
discrimination based on his veteran status and disability. See infra Discussion § VII.
Accordingly, I do not address the Moving Defendants’ argument that Friedberg abandoned the
NYSHRL claims.
III. Breach of Contract and LMRA Section 301 Claims Against NYIT
Relying on extrinsic evidence not integral to the Amended Complaint, the Moving
Defendants argue that the Amended Complaint fails to plead plausible claims for breach of
contract under New York common law and LMRA Section 301 because, at the time his
employment with NYIT was terminated, Friedberg was an at-will employee, not a member of the
Union covered by the CBA. (Mem. at 9–10.) The Moving Defendants assert that, as a part-time
employee, Friedberg “would have had to teach a minimum of 12 [equivalent lecture hours] per
academic year during the three consecutive years prior to his termination in January 2022” to be
covered by the CBA, a requirement that Friedberg did not meet. (Id. at 10.)
The Moving Defendants also assert that the Amended Complaint’s allegation that
Friedberg was a member of the Union is “not well-pleaded” because Friedberg “alleges that he
was employed by NYIT for ‘certain academic terms during the period between 2012 and January
2022,’ without specifying those terms, which is integral to the analysis of Plaintiff’s claim.” (Id.
at 10 (quoting Am. Compl. ¶ 21).) In the alternative, they make two arguments. First, that the
LMRA Section 301 claim should be dismissed because Friedberg did not “exhaust the grievance
and arbitration procedure set forth in the CBA,” which is a condition precedent to bringing a
“pure” LMRA Section 301 claim. (Mem. at 10.) According to the Moving Defendants, the CBA
does in fact “provide[] a mechanism for a covered faculty member to grieve their dismissal.”
(Reply at 6.) Second, the Moving Defendants argue that the Amended Complaint does not
“allege[] that the Union breached its duty of fair representation,” which is a condition precedent
to a “hybrid” LMRA Section 301 claim. (Mem. at 10–11.)
Finally, the Moving Defendants argue for dismissal of the New York common law breach
of contract claim on the basis that Friedberg was an at-will employee at the time of his
termination, and, alternatively, because LMRA Section 301 preempts the state law breach of
contract claim. (Id. at 11.)
Friedberg argues that I should not consider exhibits extrinsic to the Amended Complaint,
which the Moving Defendants attached to their Motion and on which they rely in arguing for
dismissal of the breach of contract and LMRA Section 301 claims. (Opp’n ¶¶ 12–16, 18–19, 27.)
According to Friedberg, the Amended Complaint properly alleges that, at the time his
employment was terminated, Friedberg was a member of the Union, a CBA was in effect, the
CBA had specific provisions regarding grievances, arbitration, discipline, and dismissal, and
NYIT breached those CBA provisions. (Id. ¶ 17.) He asserts that the question of whether he is a
member of the union “present[s] factual issues that should not be decided in this motion to
dismiss.” (Id. ¶¶ 19–20, 28.) Friedberg also argues he was not required to exhaust any grievance
procedures with respect to the CBA’s “Discipline and Dismissal” procedures. (Id. ¶¶ 25–26.)
As a preliminary matter, Friedberg’s breach of contract claim under New York common
law is preempted by LMRA Section 301 according to the plain text of the statute. “Section 301
of the LMRA preempts claims that are ‘inextricably intertwined with consideration of the terms
of a labor contract.’” Wall v. Constr. & Gen. Laborers’ Union, Loc. 230, 224 F.3d 168, 178 (2d
Cir. 2000) (quoting Allis–Chalmers Corp. v. Lueck, 471 U.S. 202, 213 (1985)); see also Sullivan
v. Gelb, 735 F. Supp. 3d 282, 297 (S.D.N.Y. 2024), aff’d, No. 24-1917-cv, 2025 WL 1692670
(2d Cir. June 17, 2025) (same). “Any suit in state court ‘alleging a violation of a provision of a
labor contract must be brought under § 301 and be resolved by reference to federal law.’”
Sullivan, 735 F. Supp. 3d at 297 (quoting Allis-Chalmers Corp., 471 U.S. at 210). Here, the
Amended Complaint alleges that NYIT breached the CBA, a labor contract, by terminating
Friedberg’s employment in January 2022, in violation of specific CBA provisions. (Am. Compl.
¶¶ 5, 23–32.) Accordingly, LMRA Section 301 preempts Friedberg’s breach of contract claim
under New York common law premised on the violation of the CBA’s provisions.
LMRA Section 301 permits individuals to bring suits against their employers for breach
of the collective bargaining agreement to which the employer is bound. 29 U.S.C. § 185.
“Ordinarily, however, an employee is required to attempt to exhaust any grievance or arbitration
remedies provided in the collective bargaining agreement.” DelCostello v. Int’l Broth. of
Teamsters, 462 U.S. 151, 163 (1983). These suits are essentially breach of contract claims where
the relevant contract is the underlying collective bargaining agreement, and, accordingly, courts
have generally “borrowed” the applicable state statute of limitations governing contract claims.
Id. at 162–63. Still, exhaustion is often not possible where “the union representing the employee
in the grievance/arbitration procedure acts in such a discriminatory, dishonest, arbitrary, or
perfunctory fashion as to breach its duty of fair representation.” Id. at 164. In such cases, the
individual may instead bring a “hybrid” suit, which essentially comprises two causes of action:
(1) an LMRA Section 301 claim against the employer and (2) a claim against the union for
breach of the duty of fair representation, which is “implied under the scheme of the National
Labor Relations Act” (“NLRA”). Id. at 164. While the plaintiff need not sue both the employer
and the union, she must plead and prove both claims. Id. Here, the Amended Complaint does not
allege that the Union breached its duty of fair representation, so the claim set forth in the
Amended Complaint is a “pure” rather than “hybrid” LMRA Section 301 claim. See id. at 163–
64; see generally Am. Compl.
Contrary to Friedberg’s argument, the CBA—which Friedberg maintains applies to
him—plainly sets forth grievance procedures that an employee must exhaust before filing a
claim in federal court against an employer for failure to comply with the CBA terms governing
termination of employment. (See Opp’n ¶¶ 25–26.) The CBA’s Discipline and Dismissal Article,
which the Amended Complaint selectively quotes (Am. Compl. ¶¶ 25–26), sets forth not only the
procedures that NYIT was required to follow when terminating Friedberg’s employment, but
also the procedures by which Friedberg was required to grieve the termination. Specifically, the
CBA provides:
The faculty member or the [Union] may file a grievance concerning the suspension or
dismissal of the faculty member. Except as otherwise set forth herein, the parties shall
utilize the Grievance and Arbitration procedures as set forth in Article XXIII of the
[CBA].
(CBA art. XXIV § 1(d).) The CBA further provides that “[g]rievances for faculty suspended or
dismissed . . . will commence at Article XXIII, 4. Internal Procedures for the Resolution of
Grievances - Step 2.” (Id. § 1(c).) Section 4 of the Grievance and Arbitration Article, in turn,
requires that the Union member file a grievance for dismissal in writing with NYIT within 30
“calendar days after it was found to exist or reasonably should have been found to exist . . . .”
(Id. art. XXIII, § 4(a)–(c).) However, the Amended Complaint does not allege that Friedberg
attempted to file, let alone actually filed, a written grievance with NYIT to challenge the NYIT’s
termination of his employment according to the procedures laid out in the CBA. The Amended
Complaint therefore fails to allege that Friedberg “attempt[ed] to exhaust any grievance or
arbitration remedies provided in the” CBA, which is a condition precedent to bringing his pure
LMRA Section 301 claim. DelCostello, 462 U.S. at 163. Moreover, in opposition to the Motion
to Dismiss, Friedberg does not request leave to amend the Amended Complaint to include any
factual allegations showing that he attempted to exhaust grievance remedies set forth in the CBA
prior to filing suit in federal court to enforce the terms of the CBA. (See generally Opp’n.)
Accordingly, the Amended Complaint fails to plead plausible claims for breach of
contract under New York common law and LMRA Section 301. The breach of contract claim
isdismissed with prejudice under Rule 12(b)(6) because the dismissal is on preemption grounds
and cannot be cured. The LMRA Section 301 claim is dismissed without prejudice under Rule
12(b)(6) and with leave to amend as discussed below.9
IV. Title VII Religious Discrimination Disparate Treatment Claims Against NYIT
and the NYIT Administrator Defendants
The Moving Defendants move to dismiss Friedberg’s Title VII religious discrimination
claims on the following grounds.10 First, they argue that the Title VII claims against the NYIT
9 In light of the Court’s dismissal of Plaintiff’s LMRA Section 301 claim on this threshold issue,
the Court declines to reach any additional arguments for dismissal of this claim, including that
the Amended Complaint does not plausibly allege that Friedberg was a member of the CBA.
10 As discussed above in Discussion § II, Friedberg abandoned his claims under Title VII that he
was subjected to a hostile work environment on the basis of his religion. Accordingly, this
Section only discusses Friedberg’s claims under Title VII that he was subjected to disparate
treatment on the basis of his religion.
Administrator Defendants must be dismissed because there is no individual liability under Title
VII. (Mem. at 2.) Second, the Moving Defendants argue that the Title VII disparate treatment
claims should be dismissed because Friedberg failed to exhaust his administrative remedies. (Id.
at 21–23 (citing EEOC Charge).) Specifically, the Moving Defendants assert that Friedberg did
not allege any discrimination on the basis of his religion in his EEOC Charge and that the claims
of discrimination on the basis of religion are not “reasonably related” to the allegations in the
EEOC Charge. (Id.) Third, the Moving Defendants argue that NYIT’s alleged failure to provide
Friedberg with a Director-level stipend because of his Jewish faith is time-barred as the failure
took place in 2018 (as alleged in the original Complaint) and is therefore outside the 300-day
statute of limitations based on the entry of the EEOC Charge on November 25, 2022. (Id. at 23.)
Fourth, they argue that the Amended Complaint fails to plead plausible claims for disparate
treatment on the basis of religion both because it “fails to allege that Defendants were aware of
[Friedberg’s] unidentified religion,” which is needed “to infer discriminatory intent,” and
because it fails to allege any non-conclusory facts to support the allegation that the termination
of Friedberg’s employment was because of his Jewish faith. (Id. at 24–25.)
Friedberg does not make any arguments to counter the Moving Defendants’ argument
that the Title VII claims should be dismissed for failure to exhaust and as outside the 300-day
statute of limitations, and he also appears to concede that there is no individual liability under
Title VII. (See Opp’n ¶ 29.) Accordingly, any such arguments are therefore deemed abandoned.
See Mulgrew, 750 F. Supp. 3d at 202 (“It is well-settled that the failure to oppose an argument
raised in a motion to dismiss is deemed a concession of the argument and abandonment of the
claims.”).
With respect to the Moving Defendants’ arguments for dismissal of the Title VII claims
for disparate treatment on the basis of religion, Friedberg argues that the Amended Complaint
“demonstrates” that he “is a member of a protected class, . . . that he was qualified for his
position,” and “that he suffered an adverse employment action,” and also pleads
“facts . . . sufficient to satisfy [his] minimal burden of showing facts suggesting an inference of
discriminatory motivation.” (Opp’n ¶ 11; see also id. ¶¶ 33–34.) Friedberg also generally argues,
without specific reference to his religious discrimination claims, that he “is not required to
establish that the decision to terminate him was caused solely by any one discriminatory motive”
and that he “is not required to prove separately and distinctly that the adverse action was the ‘but
for’ cause.” (Id. ¶ 48.)
When an employee is not satisfied with the outcome of an administrative proceeding
addressing claims for discrimination under Title VII, the employee may bring a lawsuit in federal
district court. Duplan v. City of New York, 888 F.3d 612, 621 (2d Cir. 2018) (requiring a Title
VII plaintiff “to exhaust the administrative remedies provided by the statute” prior to filing suit
in federal court). In the Second Circuit, “claims that were not asserted before the EEOC may be
pursued in a subsequent federal court action if they are reasonably related to those that were
filed with the agency.” Buon v. Spindler, 65 F.4th 64, 77 (2d Cir. 2023) (emphasis added). A
claim regarding conduct that took place before an EEOC charge is filed is reasonably related to
charges filed with the EEOC if “the conduct complained of would fall within the scope of the
EEOC investigation which can reasonably be expected to grow out of the charge of
discrimination.” Mathirampuzha v. Potter, 548 F.3d 70, 76 (2d Cir. 2008); see also Terry v.
Ashcroft, 336 F.3d 128, 151 (2d Cir. 2003) (recognizing three situations “in which claims not
raised in an EEO[C] charge are sufficiently related to the allegations in the charge,” only one of
which is applicable to conduct that occurred prior to the EEOC charge). “Claims that introduce a
wholly different type of discrimination from that in the administrative charge are typically
deemed to be not reasonably related.” Jennings v. Suny Health Sci. Ctr. at Brooklyn (Downstate
Med. Ctr.), 201 F. Supp. 3d 332, 336 (E.D.N.Y. 2016) (emphasis added).
Friedberg did not allege any religious discrimination in his EEOC Charge. (See EEOC
Charge.) As set forth above, Friedberg filed his EEOC Charge by completing and submitting an
EEOC form, which asks, “Why you think you were discriminated against?” and provides a
checkbox where the employee can report discrimination on the basis of “Religion.” (Id.) On
Friedberg’s EEOC charge, the checkbox next to Religion is not checked. (Id.) Instead, only the
“Age,” “Disability,” and “Retaliation” checkboxes are checked.11 (Id.) Moreover, none of
Friedberg’s notes on the EEOC charge reference religion or Friedberg’s Jewish faith. Thus,
Friedberg fails to mention his religious identity, let alone his concern that he was the victim of
religious discrimination, anywhere in his EEOC Charge. (See id.)
Moreover, the Title VII claims against disparate treatment based on religion are not
reasonably related to the discriminatory conduct alleged in Friedberg’s EEOC Charge because it
is premised on “a wholly different type of discrimination.” Jennings, 201 F. Supp. 3d at 336. In
addition to only checking boxes relating to discrimination on the basis of his age, disability, and
veteran status, Friedberg wrote:
I was the victim of character assasination [sic] for having mental illness. I have
PTSD. I am a veteran. I was spied on, surveilled. I received no due process. I was
talking to a student on Jan 24, 2022 and was fired for talking to that student.
Based on my mental illness and a false accusation. No Due Process.
11 In this section of Friedberg’s EEOC Charge, Friedberg has also handwritten the notation, “I
am a veteran with PTSD.” (EEOC Charge.)
(EEOC Charge.) This statement is the only allegation of discriminatory conduct by NYIT in the
EEOC Charge. (Id.) Thus, based on the EEOC charge itself, including this statement and the fact
that the “Religion” checkbox is not marked, the charge primarily focuses on Friedberg’s
disability and veteran status and only cursorily refers to his age and allegation that he was
subjected to retaliation. (Id.) Nothing in the EEOC charge suggests that claims of disparate
treatment based on religion “would fall within the scope of the EEOC investigation” into the
conduct alleged in the EEOC Charge, which naturally would focus on Friedberg’s allegations
that he was subjected to discrimination because of his disability and age and that he was targeted
with retaliation. Mathirampuzha, 548 F.3d at 76; see also Jennings, 201 F. Supp. 3d at 336–37
(finding the plaintiff’s race and retaliation claims were not “not reasonably related to those in her
charge,” which only alleged age discrimination and the “[t]he scope of the EEOC’s
investigation . . . understandably focused on age”).
Thus, even if Friedberg has not conceded the issue of exhaustion by failing to address it
in his opposition to the Motion to Dismiss, the Amended Complaint fails to plausibly allege that
Friedberg exhausted his administrative remedies with respect to his Title VII claims for disparate
treatment based on religion. Moreover, Friedberg does not provide in his opposition brief any
indication that he could amend the Amended Complaint to address this problem. The Amended
Complaint additionally fails to state plausible Title VII claims against the NYIT Administrator
Defendants because Title VII does not provide for individual liability. Accordingly, the Title VII
claims for disparate treatment on the basis of religion against NYIT and the NYIT Administrator
Defendants are dismissed with prejudice under Rule 12(b)(6). I therefore need not address the
Moving Defendants’ other arguments for dismissal of these claims.
V. ADEA Claims Against NYIT and the NYIT Administrator Defendants
The Moving Defendants make three arguments in favor of dismissal of Friedberg’s
ADEA claims on the ground that the Amended Complaint fails to state any claims alleging age
discrimination against any defendant. (Mem. at 17–20.) First, they contend that, to the extent that
these claims are brought against the NYIT Administrator Defendants, the claims must be
dismissed because “there is no individual liability under this statute.” (Id. at 17.) Second, the
Moving Defendants argue that the Amended Complaint fails to plead any factual allegations to
“support a minimal inference of ‘but-for’ causality between [Friedberg’s] age and his
termination” because it offers only “a blanket, conclusory assertion that [Friedberg] is 61 years
old and that ‘his termination from employment was due to plaintiff’s age and was motivated by
discriminatory intent.’” (Id. at 18 (quoting Am. Compl. ¶ 79).) They rely on Marcus v. Leviton
Manufacturing Company, Inc., 661 F. App’x 29, 32 (2d Cir. 2016), for support. (Id. at 19.)
Third, the Moving Defendants argue that the Amended Complaint fails to provide any factual
support for its generic and vague allegations regarding “other employees/professors in similar
situations to” Friedberg who “were allegedly forced into retirement or terminated”—and that the
Amended Complaint therefore fails to plausibly allege disparate treatment on the basis of age.
(Id. at 18–19.) The Moving Defendants reiterate these arguments on reply. (Reply at 7–8.)
In opposition, Friedberg argues that at the Rule 12(b)(6) stage, he “is not required to
allege . . . specific facts” showing “that his age was the but-for cause of his termination” or to
provide “examples showing a pattern of terminating older professors.” (Opp’n ¶¶ 32–33.)
Instead, Friedberg asserts that the Amended Complaint satisfies the requirement to plead facts
sufficient “to give the employer fair notice of what [his] claims are and the grounds upon which
they rest . . . .” (Id. ¶¶ 33–34.) He also generically argues that he “is not required to establish that
the decision to terminate him was caused solely by any one discriminatory motive” and “is not
required to prove separately and distinctly that the adverse action was the ‘but for’ cause.” (Id.
¶ 48.)
As a threshold matter, “in the Second Circuit, individuals may not be held liable under
the ADEA.” Zoulas v. N.Y.C. Dep’t of Educ., 400 F. Supp. 3d 25, 51 n.3 (S.D.N.Y. 2019); see
also Iwelu v. New York State Off. of Mental Health, No. 22-3096-cv, 2024 WL 2175938 at *2 n.5
(2d Cir. May 15, 2024) (summary order) (noting dismissal of ADEA claim against individual
defendants was proper because “there is no individual liability under [the ADEA statute]”).
Therefore, to the extent that the Amended Complaint pleads ADEA disparate treatment claims
against any individual Defendants, such claims are dismissed.
Under the ADEA, it is unlawful for an employer “to fail or refuse to hire or to discharge
any individual or otherwise discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s age” when the
employee is at least 40 years old. 29 U.S.C. § 631(a). To prevail on an ADEA discrimination
claim, a plaintiff must ultimately “prove that age was the ‘but-for’ cause of the employer’s
adverse decision.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009). Hence, to survive a
motion to dismiss under Rule 12(b)(6), a complaint must plausibly allege that the adverse
employment action would not have occurred “but for” the plaintiff’s age. Lively v. WAFRA Inv.
Advisory Grp., Inc., 6 F.4th 293, 303 (2d Cir. 2021); see also Marcus, 661 F. App’x at 32 (“A
plaintiff must plead facts that give plausible support to a minimal inference of the requisite
discriminatory causality.”).
While the Amended Complaint plausibly pleads that Friedberg is covered by the ADEA
because he is 61 years old, it sets forth only conclusory allegations that the termination of
Friedberg’s employment “was due to [his] age,” “was motivated by discriminatory intent,” and
“would not have occurred but for his age.” (Am. Compl. ¶¶ 79–80.) These conclusory allegations
that Friedberg’s age was the but-for cause of the adverse action are made without any factual
elaboration and are therefore insufficient to support a plausible ADEA claim against NYIT. See
Iqbal, 556 U.S. at 678 (holding that a complaint fails to state a claim “if it tenders naked
assertions devoid of further factual enhancement”).
Accordingly, the ADEA disparate treatment claims are dismissed with prejudice as to the
NYIT Administrator Defendants and without prejudice under Rule 12(b)(6) as to NYIT.
VI. ADA Disparate Treatment Claims Against NYIT and the NYIT Administrator
Defendants
The Moving Defendants seek dismissal of Friedberg’s ADA claims against all
Defendants, making three distinct arguments.
First, they argue that the ADA claims against the NYIT Administrator Defendants must
be dismissed because “there is no individual liability under the ADA.” (Mem. at 12–13.)
Second, the Moving Defendants argue for dismissal of the ADA claims against NYIT and
the NYIT Administrator Defendants on the grounds that the Amended Complaint “fail[s] to
allege any facts from which to infer any discriminatory animus, such as . . . that ‘but for’
[Friedberg]’s alleged disability he would not have been terminated,” and instead only offers “a
blanket, conclusory assertion” that Friedberg “suffered an adverse employment action because of
his disability.” (Id. at 13–14; id. at 15 (quoting Am. Compl. ¶ 69).) On this point, they argue that
the Amended Complaint fails to allege when Flickinger, Quigley, and two of Friedberg’s
supervisors made certain alleged discriminatory remarks, or the “context” in which such
statements were made. (Id.) They further argue that the Amended Complaint contains no
allegations supporting the notion that “Defendants were motivated” to accuse Friedberg of
posing a risk of harm to students, acted inappropriately towards them, or engaged in sexual
misconduct with respect to them “because of [Friedberg]’s alleged disability.” (Id. at 14–15.)
They argue, for example, that the Amended Compliant has alleged that any “non-disabled faculty
member was accused of” the same conduct as Friedberg “and was not terminated.” (Id. at 15.)
Third, the Moving Defendants contend that the Amended Complaint’s allegations
regarding “other discriminatory motivations for [Friedberg’s] termination,” including “his age,
veteran status, and religion,” “undermines any claim that the alleged discrimination took place
solely due to any alleged disability.” (Id. at 15.)
In opposition, Friedberg does not respond to the argument that the ADA does not permit
individual liability and instead argues that 28 U.S.C. §§ 1981 and 1983—wholly different
statutes—permit individual liability. (Opp’n ¶ 30.) Friedberg also generally argues that the
Amended Complaint alleges sufficient facts “to at least provide minimal support for the
proposition that [NYIT] was motivated by discriminatory intent and to permit a rational finder of
fact to decide that the decision to terminate [Friedberg’s employment] was motivated by an
improper motive,” and that his employment “was terminated under circumstances which give
rise to an inference of unlawful discrimination.” (Id. ¶ 44.) According to Friedberg, a plaintiff
bringing an ADA disparate treatment claim may allege facts giving rise to “an inference of
discrimination” based on “criticism of a plaintiff in degrading terms[,] . . . through invidious
comments[,] . . . or from the sequence of events leading up to the challenged actions.” (Id. ¶ 36.)
Here, Friedberg argues that Quigley and other NYIT Administrator Defendants allegedly “made
invidious comments and statements critical of [Friedberg] in degrading terms relating to his
PTSD and the symptoms thereof” and that NYIT’s accusations of misconduct were pretextual.
(Id. ¶ 49.)
On reply, the Moving Defendants reiterate their opening arguments and note that, in both
his opposition and the Amended Complaint, Friedberg “fails to plausibly allege . . . how any of
these alleged accusations or remarks have anything to do with his alleged PTSD diagnosis and
symptoms or how they suggest that [Friedberg]’s termination was motivated by ‘assumptions or
attitudes’ concerning PTSD.” (Reply at 9.)
As a threshold matter, the ADA “does not permit plaintiffs to bring damages claims
against individual employees.” Yerdon v. Poitras, 120 F.4th 1150, 1155 (2d. Cir. 2024).
Accordingly, to the extent that the Amended Complaint seeks to bring any ADA disparate
treatment claims against any individual defendants, these claims are dismissed.
The ADA provides that “[n]o covered entity shall discriminate against a qualified
individual on the basis of disability in regard to . . . [the] terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a). The ADA defines “disability” as “(A) a physical or mental
impairment that substantially limits one or more major life activities of such individual; (B) a
record of such an impairment; or (C) being regarded as having such an impairment . . . .” 42
U.S.C. § 12102(1); see also Sharikov v. Philips Med. Sys. MR, Inc., 103 F. 4th 159, 166–67 (2d
Cir. 2024).
To survive a motion to dismiss an ADA disparate treatment claim, a complaint must
plausibly allege that “(1) [the plaintiff’s] employer is subject to the ADA; (2) [the plaintiff] was
disabled within the meaning of the ADA; (3) [the plaintiff] was otherwise qualified to perform
the essential functions of [the] job, with or without reasonable accommodation; and (4) [the
plaintiff] suffered adverse employment action because of [their] disability.” Woolf v. Strada, 949
F.3d 89, 93 (2d Cir. 2020); see also Patel v. NYU Langone Hosps., No. 20-112-cv, 2021 WL
4852426, at *2 (2d Cir. 2021) (applying Woolf standard on motion to dismiss).
Concerning the “adverse employment action” requirement, I consider the application of
Muldrow v. City of St. Louis, 601 U.S. 346 (2024). In Muldrow, the Supreme Court held that a
plaintiff bringing a Title VII discrimination claim “does not have to show . . . that the harm
incurred was significant[,] . . . serious, or substantial, or any similar adjective suggesting that the
disadvantage to the employee must exceed a heightened bar.” Id. at 355. Rather, the plaintiff
only needs to show “some harm respecting an identifiable term or condition of employment”—
i.e., the plaintiff must have been “left [] worse off” but not necessarily “significantly so.” Id. at
355, 359. Although the Second Circuit has not addressed the application of the Muldrow
standard for an adverse action in the context of an ADA disparate treatment claim, district courts
in this Circuit and several Courts of Appeal have applied the Muldrow standard in this context.
See, e.g., Mitchell v. Planned Parenthood of Greater N.Y., Inc., 745 F. Supp. 3d 68, 90–91
(S.D.N.Y. 2024) (collecting decisions of Courts of Appeal other than the Second Circuit); Reid v.
Metro One Loss Prevention Servs. Grp., No. 23-cv-6303, 2025 WL 2533377, at *8 (E.D.N.Y.
Sept. 3, 2025); Slater v. NYU Langone Health Sys., No. 24-cv-03711, 2025 WL 2208292, at *5
(E.D.N.Y. Aug. 4, 2025); Ciotti v. City of New York, No. 23-cv-10279, 2025 WL 308022, at *13
(S.D.N.Y. Jan. 27, 2025).
With respect to the fourth element of an ADA disparate treatment claim, the facts alleged
in the complaint must plausibly provide “at least minimal support for the proposition that the
employer was motivated by discriminatory intent.” Littlejohn v. City of New York, 795 F.3d 297,
311 (2d Cir. 2015). This requires the allegation of facts making it plausible that the plaintiff
suffered an adverse employment action at least in part “because of” disability. See Witcher v.
New York City Dep’t of Educ., No. 23-cv-465, 2024 WL 3220264, at *1 (2d Cir. June 28, 2024);
see also Natofsky v. City of New York, 921 F.3d 337, 348–50 (2d Cir. 2019) (“[T]he ADA
requires a plaintiff alleging a claim of employment discrimination to prove that discrimination
was the but-for cause of any adverse employment action.”); Parker v. Columbia Pictures Indus.,
204 F.3d 326, 337 (2d Cir. 2000) (explaining that the ADA “cover[s] situations in which
discrimination on the basis of disability is one factor, but not the only factor, motivating an
adverse employment action”).
“[V]erbal comments may raise an inference of discrimination, but not where they lack a
‘causal nexus to the discriminatory decision.’” DeFranco v. N.Y. Power Auth., 731 F. Supp. 3d
479, 491–92 (W.D.N.Y. 2024) (quoting Luka v. Bard Coll., 263 F. Supp. 3d 478, 487 (S.D.N.Y.
2017)). “To determine whether a particular comment is probative of discriminatory animus or is
a mere ‘stray remark,’ a court considers: “(1) who made the remark (i.e., a decision-maker, a
supervisor, or a low-level co-worker); (2) when the remark was made in relation to the
employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror
could view the remark as discriminatory); and (4) the context in which the remark was made
(i.e., whether it was related to the decision-making process).” Lenzi v. Systemax, Inc., 944 F.3d
97, 112 (2d Cir. 2019) (Title VII); see also DeFranco, 731 F. Supp. 3d at 491–92 (ADA). None
of these factors are dispositive. Lenzi, 944 F.3d at 112.
The Moving Defendants do not argue that the Amended Complaint fails to plead any of
the first three elements of an ADA disparate treatment claim. (See generally Mem.) The
Amended Complaint plausibly alleges that NYIT is an employer subject to the ADA, that
Friedberg was disabled within the meaning of the ADA, and that he was otherwise qualified to
perform the essential functions of his job, with or without reasonable accommodation. (Am.
Compl. ¶¶ 66–68; see also id. ¶ 37 (alleging that Friedberg was “diagno[sed] and treat[ed] for
Post-traumatic Stress Disorder (PTSD)”); ¶ 21 (alleging that Friedberg “was employed as a
faculty member” at NYIT “for certain academic terms during the period between 2012 and
January 2022”); ¶¶ 43, 77 (alleging that Friedberg’s “performance reviews at NYIT indicate that
he was sufficiently competent to do his job”).) The Moving Defendants also do not dispute that
the termination of Friedberg’s employment at NYIT constitutes an adverse employment action.
(See Mem at 12–15.) Instead, the Moving Defendants seek dismissal of the ADA disparate
treatment claims on the basis that the Amended Complaint fails to plausibly allege the fourth
element: that NYIT terminated Friedburg “because of” his disability. (See id. at 13–15.)
The Moving Defendants are correct that the Amended Complaint alleges in a conclusory
fashion that Friedberg “suffered an adverse employment action because of his disability” and
that “the adverse employment action would not have occurred but for his disability.” (Am.
Compl. ¶¶ 69–70 (emphasis added).) The limited factual allegations pled in the Amended
Complaint concerning NYIT’s motive for terminating Friedberg’s employment fail to support a
plausible causal link between NYIT’s decision and his disability. See Mitchell, 745 F. Supp. 3d
at 92 (“Naked assertions of discrimination, without any specific allegation of a causal link
between the defendants’ conduct and the plaintiff’s membership in a protected class, are too
conclusory to withstand a motion to dismiss.”).
The only factual allegations in the Amended Complaint relating in any way to any
discriminatory animus on the part of NYIT are the following remarks allegedly made by various
NYIT Administrator Defendants and other NYIT employees:
1) The Amended Complaint alleges that “the individual NYIT defendants, at various
times and places, described [Friedberg] as ‘crazy’ and . . . a danger to his students
based upon his mental state and PTSD” (Am. Compl. ¶ 47 (emphasis added));
2) It alleges that “FLICKINGER stated that [Friedberg] was crazy and a danger to his
students” (id. ¶ 48);
3) It alleges that Friedberg’s “immediate supervisors[] Roy and Silverstein stated that
[he] was ‘acting like a child’” (id. ¶ 49);
4) It alleges that “[b]eginning in December of 2021 and continuing through his
termination on January 20, 2022, the individual NYIT [D]efendants . . . made
accusations against [Friedberg] that he was acting inappropriately with his students,
that his students were uncomfortable with him, that he was guilty of sexual
misconduct, that he was not keeping appropriate distance from his students and that
he posed a risk of harm to students” (id. ¶ 51);
5) It alleges that “QUIGLEY and other individual NYIT defendants made invidious
comments and statements critical of [Friedberg] in degrading terms relating to his
PTSD and the symptoms thereof including [the aforementioned] accusations” (id. at
¶ 72).
Taken together and read in light of the entire Amended Complaint, these remarks do not support
a plausible causal connection between NYIT’s decision to terminate Friedberg’s employment and
his disability for several reasons.
First, the Amended Complaint fails to allege which of the NYIT Administrator
Defendants, if any, were involved in the decision to terminate Friedberg’s role on the NYIT
faculty, making it impossible to assess whether the alleged remarks are “stray” remarks or
comments that are “probative of discriminatory animus.” Lenzi, 944 F.3d at 112; see also Lively,
6 F.4th at 306–07 (“Remarks made by someone other than the person who made the decision
adversely affecting the plaintiff may have little tendency to show that the decision-maker was
motivated by the discriminatory sentiment expressed in the remark.”); Wesolowski v. Polish
Cmty. Ctr. of Buffalo, Inc., No. 21-cv-751, 2022 WL 6784611, at *6–7 (W.D.N.Y. Aug. 12,
2022), report and recommendation adopted, 2022 WL 6817953 (W.D.N.Y. Oct. 7, 2022) (same
applied to an ADA claim).
Second, while the Amended Complaint alleges an array of disparaging remarks made
about Friedberg, it fails to identify approximately when many of these remarks were made.
While the Amended Complaint generally alleges that the NYIT Administrator Defendants began
accusing Friedberg of inappropriate behavior and misconduct towards students “[b]eginning in
December of 2021 and continuing through his termination on January 20, 2022” (Am. Compl.
¶ 51), it fails to allege when other remarks that plausibly implicate disability—i.e., that Friedberg
was “crazy,” a danger to students because of his PTSD, and “acting like a child”—were made.
(Id. ¶¶ 47–50.) The Amended Complaint only vaguely alleges, for example, that the NYIT
Administrator Defendants “at various times and places, described the plaintiff as ‘crazy’ and that
he was a danger to his students based upon his mental state and PTSD.” (Id. ¶ 47 (emphasis
added).) It also fails to allege when Flickinger called plaintiff “crazy and a danger to his
students,” or when Roy and Silverstein described plaintiff as “acting like a child.” See id. ¶¶ 48–
49; see also Lenzi, 944 F.3d at 112; Lively, 6 F.4th at 307 (“[S]tray remarks are rarely given great
weight, particularly if they were made temporally remote from the date of the decision.”);
Wesolowski, 2022 WL 6784611, at *6–7 (same applied to an ADA claim).
Third, the Amended Complaint provides little to no context for any of the alleged
discriminatory remarks and accusations leveled against Friedberg, including pertinent
information such as: to whom and where the remarks were made and, most importantly, how that
context relates to the decision to terminate Friedberg from the NYIT faculty. See Lenzi, 944 F.3d
at 112.
Fourth, the Amended Complaint fails to allege any other factual allegations to support its
conclusory allegations that Friedberg’s disability was the but-for cause of his termination. (See
Am. Compl. ¶¶ 69–70.)
For all of these reasons, the Amended Complaint fails to allege sufficient facts to
plausibly show that NYIT terminated Friedberg’s employment because of his PTSD or his
treatment for that condition. Nevertheless, because the Amended Complaint does include
disparaging comments that may support plausible ADA disparate treatment claims if the
deficiencies identified in this Opinion and Order are addressed, the ADA disparate treatment
claims against NYIT are dismissed without prejudice under Rule 12(b)(6). However, as
addressed above, because the ADA does not allow for individual liability, the ADA claims
against the NYIT Administrator Defendants are dismissed with prejudice.
VII. The State Law Claims
A district court “may decline to exercise supplemental jurisdiction over a claim [where it]
has dismissed all claims over which it has original jurisdiction . . . .” 28 U.S.C. § 1367(c)(3). “In
the usual case in which all federal-law claims are eliminated before trial, the balance of factors
will point toward declining to exercise jurisdiction over the remaining state-law claims.”
Chinniah v. FERC, 62 F.4th 700, 703 (2d Cir. 2023).
Here, the Amended Complaint fails to state any claims under LMRA Section 301,
HIPAA, Title VII, the ADEA, or the ADA, and the federal claims are therefore dismissed as set
forth above. See supra Discussion §§ II–VI. The Amended Complaint does not assert any
independent basis for subject matter jurisdiction over Friedberg’s state law claims under the
NYSHRL and any state law claims regarding violations of the HIPAA, such as diversity
jurisdiction under 28 U.S.C. § 1332(a). (See Am. Compl. ¶ 7.) Because this case is in the early
stages of litigation, pursuant to my discretion under 28 U.S.C. § 1367(c)(3), I decline to exercise
supplemental jurisdiction over these remaining claims. Chinniah, 62 F.4th at 703; see also Tang
v. Grossman, No. 22-464, 2023 WL 2229366, at *3 (2d Cir. Feb. 27, 2023) (summary order)
(noting that district court declining to exercise supplemental jurisdiction “is the proper outcome
when a court has dismissed all claims ‘over which it has original jurisdiction’”); Haczynska v.
Mount Sinai Health Sys., Inc., 738 F. Supp. 3d 300, 323–24 (E.D.N.Y. 2024) (declining to
exercise supplemental jurisdiction over NYSHRL claim after dismissing plaintiff’s Title VII
claim); Brown v. S. Shore U. Hosp., 762 F. Supp. 3d 191, 216 (E.D.N.Y. 2025) (same).
Accordingly, Friedberg’s NYSHRL and HIPAA state law claims are dismissed without prejudice
with leave to be realleged in a second amended complaint.
VIII. Leave to Amend
Rules 15 and 16 of the Federal Rules of Civil Procedure govern a plaintiff’s ability to
amend the complaint, and “when read together, set forth three standards for amending pleadings
that depend on when the amendment is sought.” Sacerdote v. N.Y. Univ., 9 F.4th 95, 115 (2d Cir.
2021). First, Rule 15(a)(1) permits “a plaintiff [to] freely amend her pleadings . . . as of right
without court permission” twenty-one days after a complaint is served or twenty-one days after
service of a responsive pleading or motion under Rule 12(b), (e), or (f). Id. Second, after the time
to amend as of right has passed—“either upon expiration of a specified period [of time] in a
scheduling order or upon expiration of the default period set forth in Rule 15(a)(1)(A)”—a
plaintiff seeking to amend a complaint must either request leave from the court or obtain the
opposing party’s written consent. Id.; Fed. R. Civ. P. 15(a)(2). Rule 15(a)(2) sets forth a lenient
standard under which “[t]he court should freely give leave [to amend] when justice so requires.”
Fed. R. Civ. P. 15(a)(2). “Unless there is a showing of bad faith, undue delay, futility or undue
prejudice to the non-moving parties, the district court should grant leave to amend.” Adlife Mktg.
& Commc’ns Co. v. Best Yet Mkt., Inc., No. 17-cv-2987, 2018 WL 4568801, at *1 (E.D.N.Y.
Sept. 24, 2018) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). Third, Rule 15(a)(2)’s period
of “liberal” amendment ends upon expiration of the date set by the court as the deadline after
which no amendment will be permitted. Sacerdote, 9 F.4th at 115. At that point, Rule 16 also
applies, and a court must balance the “liberal” amendment standard of Rule 15 with Rule
16(b)(4)’s requirement that the plaintiff show “good cause” for an extension of the deadline to
amend. Fed. R. Civ. P. 16(b)(4); Holmes v. Grubman, 568 F.3d 329, 334–35 (2d Cir. 2009); see
also Pasternack v. Shrader, 863 F.3d 162, 174 n.10 (2d Cir. 2017) (plaintiff must satisfy both
Rules 15 and 16 to be permitted to amend after the deadline in the scheduling order has passed).
As addressed above, the claims set forth in the Amended Complaint against NYIT for
disparate treatment under the ADEA and the ADA are dismissed without prejudice due to the
lack of factual allegations to support a plausible inference that Friedberg’s protected
characteristics were the but-for cause of NYIT’s decision to terminate Friedberg’s employment.
However, in an abundance of caution, I afford Friedberg the opportunity to include any
additional, good faith factual allegations that support plausible ADEA and ADA disparate
treatment claims against NYIT. Accordingly, “justice so requires” granting Friedberg leave to
file a second amended complaint under Rule 15(a)(2), Fed. R. Civ. P.
If Friedberg chooses to file a second amended complaint asserting ADEA and ADA
claims against NYIT, NYIT may identify any basis for dismissal of these claims by filing a letter
seeking a pre-motion conference concerning an anticipated motion to dismiss the second
amended complaint.
CONCLUSION
For the reasons set forth above, I grant the Moving Defendants’ Motion to Dismiss under
Rule 12(b)(6) in its entirety. Friedberg’s claims under federal law for violations of the HIPAA,
state law for breach of contract, LMRA Section 301, and Title VII are dismissed with prejudice
because amendment will not cure the bases for dismissal. Friedberg’s claims under the ADEA
and ADA against the NYIT Administrator Defendants are also dismissed with prejudice for the
same reason.
However, Friedberg’s ADEA and ADA disparate treatment claims against NYIT are
dismissed without prejudice. Dismissal of these claims is based on the lack of adequate factual
allegations in the Amended Complaint to plausibly plead that Friedberg’s age and status as an
individual diagnosed with PTSD were the but-for causes of NYIT’s decision to terminate his
employment. At this stage of the action, it is in the interest of justice to permit Friedberg a final
opportunity under Rule 15(a)(2) to amend the Amended Complaint to cure the deficiencies with
the ADEA and ADA disparate treatment claims against NYIT.
Finally, because all claims in the Amended Complaint are dismissed, there is no
independent basis for jurisdiction over Friedberg’s NYSHRL claims and state law claims for
violations of the HIPAA, and I decline to exercise supplemental jurisdiction over those claims
under 28 U.S.C. § 1367(c)(3). Thus, Friedberg’s NYSHRL claims and state law claims for
violations of the HIPAA are dismissed without prejudice. Friedberg may nevertheless assert
these claims in any second amended complaint.
By June 30, 2026, Friedberg may file a second amended complaint addressing only the
claims for disparate treatment under the ADA and the ADEA against NYIT, his claims under the
NYSHRL, and his state law claims to enforce rights under the HIPAA. In the event that
Friedberg chooses to file a second amended complaint, by July 21, 2026, the Moving
Defendants shall file any letter seeking a pre-motion conference concerning any anticipated
motion to dismiss the second amended complaint.
Dated: Central Islip, New York
June 9, 2026
/s/ Nusrat J. Choudhury
NUSRAT J. CHOUDHURY
United States District Judge