Medina

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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GREIBY JANAKY MEDINA,

Plaintiff, REPORT &

RECOMMENDATION

-against-

25-CV-4275 (JHR) (JW)

HUNTER COLLEGE OF THE CITY

UNIVERSITY OF NEW YORK, et al.,

Defendants.

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To the Honorable Jennifer H. Rearden, United States District Judge:

Plaintiff Greiby Janaky Medina (“Medina”), proceeding pro se, brings this

action against Hunter College of the City University of New York (“CUNY”), and

several other defendants (who have not been served). Medina asserts she suffered

discrimination, retaliation, and a hostile work environment in violation of the

Americans with Disability Act of 1990, 42 U.S.C. § 12101 et seq. (the “ADA”), Title IX

of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., and New York state

law. CUNY has moved to dismiss the complaint in its entirety pursuant to Rules

12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons stated

below, this Court recommends GRANTING in part and DENYING in part CUNY’s

motion to dismiss.

BACKGROUND

A. Procedural history

On January 27, 2025, Plaintiff filed a complaint against Defendants, including

CUNY, in New York State Supreme Court. Dkt. No. 1-1 (“Compl.”). On May 14,

2025, CUNY received a copy of the summons and complaint in the state court action.

Dkt. No. 1. On May 21, 2025, CUNY removed the action to federal court pursuant to

Rule 81(c) of the Federal Rules of Civil Procedure. Dkt. No. 1.

On June 13, 2025, CUNY filed a memorandum of law in support of its motion

to dismiss and supporting papers. Dkt. Nos. 17–19. On August 28, 2025, Plaintiff

filed an opposition to CUNY’s motion to dismiss. Dkt. No. 31. On October 23, 2025,

CUNY filed a reply in support of its motion to dismiss. Dkt. No. 36. The Court

considers CUNY’s motion to dismiss fully briefed.

While the complaint names eleven other Defendants, only CUNY has been

served with the complaint.

B. Factual background

The following facts are primarily drawn from the complaint and are accepted

as true for the purposes of this motion. Because Medina is proceeding pro se, the

Court also considers allegations made for the first time in her opposition brief. See

Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013) (“A district court deciding a

motion to dismiss may consider factual allegations made by a pro se party in his

papers opposing the motion.”). The Court only recounts facts relevant to CUNY’s

motion to dismiss.

Plaintiff is a resident of New York City and a former student at CUNY’s

Hunter College. Compl. ¶ 4. While at Hunter College, Medina registered with the

Office of AccessABILITY in August 2023 due to her documented disabilities of

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obsessive-compulsive disorder (“OCD”), attention-deficit/hyperactivity disorder

(“ADHD”), and cerebral palsy. Id.; Dkt. No. 31 (“Opp.”) at 3.

a. Intimate partner violence allegations

On or around September 25 to October 10, 20241, Plaintiff “reported an

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incident of intimate partner violence [with Plaintiff’s ex-partner] to Hunter College’s

Title IX office and sought assistance, including enforcement of a Temporary Order of

Protection (TOP).” Compl. ¶ 9. Despite her reports, the Title IX office “failed to act,

investigate, or enforce the protections required under federal law, allowing [her ex-

partner] to maintain contact and influence on campus.” Id. at ¶ 10. Hunter College

ignored Plaintiff’s “repeated pleas for help and failed to provide accommodations” or

to address “the ongoing discrimination and retaliation.” Id. at ¶¶ 11, 15. The office

also allegedly ignored Plaintiff’s “emails and other requests for assistance.” Id. at ¶

17.

The complaint further asserts that Nicholas Di Carlo2, an adjunct professor at

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Hunter College, “demonstrated gross misconduct” by texting Plaintiff’s ex-partner

“during the period of reported intimate partner violence, despite knowledge of the

Temporary Order of Protection.” Compl. ¶ 12. Di Carlo allegedly texted students “at

all hours of the night” and used his authority over students to “manipulate and

1 The complaint alleges that the incident occurred in September or October 2025.

However, given the action was filed on May 21, 2025, and based on a review of

Plaintiff’s New York State Division of Human Rights complaint (see Dkt. No. 19-1),

the Court construes the year the alleged incident occurred as 2024, not 2025.

2 While Mr. Di Carlo is named as a Defendant in this case, he has not yet been served.

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control situations for their personal benefit, including fostering a toxic environment

of fear and mistrust.” Id. at ¶¶ 13–14. Di Carlo also allegedly “collud[ed]” with

Plaintiff’s ex-partner and other students and “leverage[ed] his authority” over

students so they would side with him and protect his employment. Id. at ¶¶ 20–21.

This caused Plaintiff emotional distress and “compromised [her] education.” Id. at ¶

22.

Plaintiff asserts that Hunter College “failed to exercise reasonable care in

hiring, training, and supervising Nicholas Di Carlo” and “exhibited deliberate

indifference by failing to take action against Plaintiffs’ [ex-partner] or those complicit

in the harassment.” Id. at ¶¶ 30, 35. Plaintiff also broadly avers that “Defendants”

created a hostile educational environment by “allowing Di Carlo’s misconduct,

ignoring Plaintiff’s disability accommodations, and failing to act on Plaintiff’s reports

of violence and harassment,” which “severely interfered” with Plaintiff’s access to

education and participation in campus life. Id. at ¶¶ 33–34.

b. Denial of disability accommodations

In 2023, Plaintiff requested and received accommodations for her documented

disabilities by the Office of AccessABILITY. Compl. ¶ 15. Plaintiff received the

following accommodations: flexible deadlines for assignments, extended time for

exams, assistance with classroom participation, academic support for note-taking and

executive function, and access to a disability desk for mobility and posture needs.

Opp. at 5, 8. While CUNY approved these accommodations, Plaintiff alleges faculty

at Hunter College did not allow her to utilize the accommodations.

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For instance, Plaintiff asserts that Di Carlo “ignored” Plaintiff’s disability

accommodations “outlined in Plaintiff’s disability letter” and “failed to provide

required modifications and support” while she was a student in Di Carlo’s class.

Compl. at ¶¶ 18–19; Opp. at 8. The complaint and opposition do not detail which

accommodations Di Carlo “ignored.” See id.; Opp. at 8. Other Hunter College staff,

such as Stacey Lawrence and Dr. Robyn Brown Manning3, also “knowingly

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disregarded these accommodations,” including denying Plaintiff extensions, use of

her disability desk, and peer support. Opp. at 8, 15.

Although unclear as to timeline, Plaintiff alleges that she founded a peer group

on campus called Disability Rights Now to advocate for disabled students on campus.

Opp. at 22.

Plaintiff also asserts that Hunter College’s dean “retaliated against Plaintiff

by filing a false welfare report with government authorities, despite no evidence of

neglect or harm, in an attempt to shield the college from accountability and create a

narrative of due diligence.” Compl. at ¶ 40. She also alleges that CUNY pressured

Plaintiff into withdrawing from campus and fired her from her position at the Hunter

College library. Opp. at 5.

3 Dr. Robyn Brown Manning is named as a Defendant in this case, but has not been

served.

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LEGAL STANDARD

C. Rule 12(b)(1)

“[F]ailure of subject matter jurisdiction is not waivable and may be raised at

any time by a party or by the court sua sponte. If subject matter jurisdiction is

lacking, the action must be dismissed.” Biener v. Credit Control Servs., Inc., No. 21

Civ. 2809 (KMK), 2023 WL 2504733, at *3 (S.D.N.Y. Mar. 14, 2023) (citations

omitted). “A federal court has subject matter jurisdiction over a cause of action only

when it has authority to adjudicate the cause pressed in the complaint.” Id.

“Determining the existence of subject matter jurisdiction is a threshold inquiry[,] and

a claim is properly dismissed for lack of subject matter jurisdiction under Rule

12(b)(1) when the district court lacks the statutory or constitutional power to

adjudicate it.” Id. (citing Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d

Cir. 2008) (citation omitted), aff’d, 561 U.S. 247 (2008)).

D. Rule 12(b)(6)

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

“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 547 (2007). A claim will only have “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.” Ashcroft v. Iqbal,

556 U.S. 662, 663 (2009).

A complaint is properly dismissed where, as a matter of law, “the allegations

in a complaint, however true, could not raise a claim of entitlement to relief.”

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Twombly, 550 U.S. at 558. Although the Court must accept as true all well-pled

factual allegations in the complaint and draw all reasonable inferences in the

plaintiff’s favor, Steginsky v. Xcelera Inc., 741 F.3d 365, 368 (2d Cir. 2014), that tenet

is “inapplicable to legal conclusions.” Ashcroft, 556 U.S. 662, 678.

“Pro se plaintiffs receive special solicitude from courts. Courts must ‘liberally

construe pleadings and briefs submitted by pro se litigants, reading such submissions

to raise the strongest arguments they suggest.’” Robinson v. US Dep't Just. US DEA,

No. 19 Civ. 459 (AT), 2019 WL 2603530, at *1 (S.D.N.Y. June 24, 2019) (quoting

Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007)). “However, even for a pro

se plaintiff, ‘conclusory allegations masquerading as factual conclusions [] are

insufficient to defeat a motion to dismiss.’” Id. (quoting Jackson v. Cty. of Rockland,

450 F. App'x 15, 19 (2d Cir. 2011)).

DISCUSSION

Plaintiff asserts various causes of action under federal and New York state

law. The Court addresses each claim in turn.

A. ADA claims

a. ADA discrimination claim

Title II of the ADA mandates that “no qualified individual with a disability

shall, by reason of such disability, be excluded from participation in or be denied the

benefits of the services, programs, or activities of a public entity, or be subjected to

discrimination by any such entity.” 42 U.S.C. § 12132. To state a claim under Title

II, the plaintiff must allege that (1) the plaintiff is a qualified individual with a

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disability; (2) the defendant is subject to the ADA; and (3) the plaintiff was denied

the opportunity to participate in or benefit from the defendant's services, programs,

or activities, or was otherwise discriminated against by the defendant, by reason of

the plaintiff's disability. Shomo v. City of New York, 579 F.3d 176, 185 (2d Cir. 2009)

(citation omitted).

The third element of a Title II claim can take “any of the three theories of

liability: disparate treatment (intentional discrimination), disparate impact, or

failure to make a reasonable accommodation.’” Hamilton v. Westchester Cnty., 3

F.4th 86, 91 (2d Cir. 2021) (citation omitted); see also Meekins v. City of N.Y., No. 06

Civ. 6473 (SAS), 524 F.Supp.2d 402, 406–07 (S.D.N.Y. 2007). In asserting a failure

to accommodate claim, a plaintiff must show that “(1) plaintiff is a person with a

disability under the meaning of the ADA; (2) [a defendant] covered by the statute had

notice of [her] disability; (3) with reasonable accommodation, plaintiff could perform

the essential functions of the job at issue; and (4) [defendant] has refused to make

such accommodations.” Rodal v. Anesthesia Grp. of Onondaga, P.C., 369 F.3d 113,

118 (2d Cir. 2004).

Here, Plaintiff proceeds solely under a failure-to-accommodate theory to allege

the discrimination element of the ADA claim. First, there appears to be no dispute

that Plaintiff, who suffers from “OCD, ADHD, and cerebral palsy,” which

“substantially limit[s] major life activities like concentrating, sleeping, and

processing information,” qualifies as an “individual with a disability” under Title II.

Opp. at 3. Second, while CUNY asserts that it is “unclear” whether CUNY is subject

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to the ADA (see Dkt. No. 18 at 5, n. 5), CUNY does not put forth any arguments

disputing that it is not subject to the ADA. See Dkt. No. 18 at 5 n.5. Third, CUNY

does not address whether Plaintiff sufficiently pleads that she could perform “the

essential functions” as a student with reasonable accommodations. See Dkt. No. 36

at 2–3. Thus, the only outstanding question for this Court to resolve is whether

Plaintiff has plausibly alleged that CUNY refused to make such accommodations.

The Court finds that Plaintiff has met her burden.

CUNY argues that Plaintiff does not sufficiently allege discrimination under a

failure-to-accommodate theory because the complaint does not assert that Plaintiff

was denied any of the accommodations outlined in the letter. Dkt. No. 36 at 2–3.

After a careful review of Plaintiff’s complaint and opposition, the Court finds

otherwise. For instance, Plaintiff asserts that she requested and was granted the

following accommodations by the Office of AccessABILITY in 2023: flexible deadlines

for assignments, extended times for exams, assistance with classroom participation,

and academic support for note-taking and executive function, and access to a

disability desk. Opp. at 4, 8. Despite this, CUNY faculty denied Plaintiff extensions,

use of her disability desk, and peer support. Opp. at 8, 15. As such, the Court finds

that Plaintiff has plausibly stated a discrimination claim under a failure-to-

accommodate theory.

The Court therefore recommends that the motion to dismiss the ADA

discrimination claim be DENIED.

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b. ADA retaliation claim

“[T]he elements of a retaliation claim under [] the ADA are ‘(i) a plaintiff was

engaged in protected activity; (ii) the alleged retaliator knew that plaintiff was

involved in protected activity; (iii) an adverse decision or course of action was taken

against plaintiff; and (iv) a causal connection exists between the protected activity

and the adverse action.’” Weixel v. Bd. of Educ. of N.Y.C., 287 F.3d 138, 148 (2d Cir.

2002) (citation omitted). A plaintiff can satisfy the fourth element—a causal

connection—by “(a) indirectly showing that the protected activity was followed closely

by discriminatory treatment; (b) indirectly though other evidence such as disparate

treatment of fellow employees who engaged in similar conduct; or (c) directly through

evidence of retaliatory animus.” Freckleton v. Mercy Coll. NY, No. 22 Civ. 1985

(KMK), 2023 WL 2648827, at * 11 (S.D.N.Y. Mar. 27, 2023) (citing Romano v. A360

Media, LLC, No. 20 Civ. 8988 (LTS), 2023 WL 348459, at *10 (S.D.N.Y. Jan. 20,

2023)).

Further, “[a]s a threshold matter, courts in this Circuit have held that an

activity comprising a plaintiff's failure-to-accommodate claim, cannot also constitute

a protected activity such as that required in retaliation claims.” Vega v. Dep’t of

Educ., No. 18 Civ. 6221 (ER), 2020 WL 1505564, at *10 (S.D.N.Y. Mar. 30, 2020).

Because Defendant does not appear to dispute that Plaintiff has met the second

element—that CUNY knew plaintiff was involved in protected activity—the Court

will assess the remaining three factors.

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First, Plaintiff sufficiently alleges that she engaged in a protected activity,

which is an “action taken to protest or oppose statutorily prohibited

discrimination.” Natofsky v. City of New York, 921 F.3d 337, 354 (2d Cir. 2019)

(citation omitted). Plaintiff’s activity of founding “Disability Rights Now, a peer

group advocating for disabled students on campus” appears to fit squarely within this

broad definition. See Opp. at 22. However, Plaintiff’s remaining activities do not

qualify as protected activity. For one, most of her activities appear to “be premised

upon [Plaintiff’s] request for an accommodation” and should therefore not be

considered for the purposes of the retaliation claim. Daley v. Cablevision Sys. Corp.,

No. 12-6316 (NSR), 2016 WL 880203, at *7 (S.D.N.Y. Mar. 7, 2016). These activities

include Plaintiff registering with the AccessABILITY office requesting

accommodations, requesting that her accommodations be enforced, and filing internal

complaints when her accommodations were denied. Opp. at 5–6, 16–17. Lastly,

Plaintiff reporting intimate partner violence to the Title IX office does not constitute

protected activity under the ADA since it does not relate to disability.

Further, Plaintiff sufficiently asserts an adverse action by alleging that CUNY

pressured Plaintiff into withdrawing from campus and fired her from her position at

Hunter College’s library. Opp. at 5. However, Plaintiff’s other allegations of CUNY

faculty denying her accommodations “amounts to an impermissible attempt to

bootstrap her reasonable accommodation claim into a retaliation claim.” Pinto v. New

York City Admin. for Child.’s Serves., No. 18 Civ. 1852 (KBF), 2018 WL 4333990, at

*11 (S.D.N.Y. Sept. 11, 2018).

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However, Plaintiff’s ADA retaliation claim falters for failure to assert a causal

connection between the protected activity and the adverse action. Here, Plaintiff

merely alleges causation was “direct” because the alleged adverse actions “followed

closely” after Plaintiff engaged in protected activity, such as accommodation requests

and complaints. Opp. at 17. While the Court agrees with Plaintiff that a causal

connection can be satisfied by a showing of temporal proximity, Plaintiff’s failure to

provide dates—exact or approximate—of when these events occurred is fatal to her

complaint. “[W]ithout a clear timeline of the events[,] a court is unable to determine

whether the protected activity and the purported adverse action were close enough

in time to allow for an inference of causation.” Washburn v. Kingsborough Cmty.

Coll., No. 20 Civ. 0395 (DLI) (MMH), 2023 WL 2682521, at *9 (E.D.N.Y. Mar. 29,

2023) (citing Cowan v. City of Mount Vernon, No. 14 Civ. 8871 (KMK), 2017 WL

1169667, at *12 (S.D.N.Y. Mar. 28, 2017)).

Thus, Defendant’s motion to dismiss the ADA retaliation claim should be

GRANTED.

B. Title IX claims

Title IX of the Education Amendments of 1972 prohibits discrimination on the

basis of gender in educational programs and activities receiving federal financial

assistance, providing, with certain exceptions, that “[n]o person in the United States

shall, on the basis of sex, be excluded from participation in, be denied the benefits of,

or be subjected to discrimination under any education program or activity receiving

Federal financial assistance.” 20 U.S.C. § 1681(a). Title IX was “enacted to

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supplement the Civil Rights Act of 1964's bans on racial discrimination in the

workplace and in universities.” Doe v. Columbia Univ., 831 F.3d 46, 53 (2d Cir. 2016).

There is no dispute that Title IX applies to CUNY.

Federal courts have long recognized an implied private right of action under

Title IX. See Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 255 (2009); Hayut

v. State Univ. of New York, 352 F.3d 733, 749–50 (2d Cir. 2003). It is also well

established that courts interpret “Title IX by looking to the body of law developed

under Title VI, as well as the caselaw interpreting Title VII.” Yusuf v. Vassar Coll.,

35 F.3d 709, 714 (2d Cir. 1994) (citations omitted).

Plaintiff asserts a retaliation claim and hostile educational environment claim

under this statute. The Court addresses each below.

a. Title IX retaliation claim

“[R]etaliation against individuals because they complain of sex discrimination

is intentional conduct that violates the clear terms of [Title IX].” Jackson v.

Birmingham Bd. Of Educ., 544 U.S. 167, 183 (2005) (cleaned up). To state a Title IX

retaliation claim, a complaint must allege “(1) protected activity by the plaintiff; (2)

knowledge by the defendant of the protected activity; (3) adverse school-related

action; and (4) a causal connection between the protected activity and the adverse

action.” Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 91 (2d

Cir. 2011) (citation omitted). “Even if the agents who carried out the adverse action

did not know about the plaintiff's protected activity, the ‘knowledge’ requirement is

met if the legal entity was on notice.” Id. at 92 (citing Gordon v. N.Y.C. Bd. of Educ.,

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232 F.3d 111, 113–14 (2d Cir. 2000)). An adverse action is an action that “could well

dissuade a reasonable [person] from making or supporting a charge of

discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006).

With respect to the causation element, a plaintiff claiming retaliation is required to

prove only that “retaliatory motive play[ed] a part in adverse [] actions[,]” not that it

was the “sole cause.” Papelino, 633 F.3d at 92 (citing Terry v. Ashcroft, 336 F.3d 128,

140–41 (2d Cir. 2003)). “Close temporal proximity between the plaintiff's protected

activity and the . . . adverse action may in itself [be] sufficient to establish the

requisite causal connection.” Id.

Further, at the pleading stage, “a plaintiff need not plead facts giving plausible

support to the ‘ultimate question’ of whether an adverse action was attributable to

the discrimination; rather, the facts need only give plausible support to a ‘minimal

inference’ of discriminatory motivation.” Bailey v. New York Law School, No. 16 Civ.

4283 (ER), 2017 WL 835190, at *7 (S.D.N.Y. March 1, 2017) (citing Littlejohn v. City

of New York, 795 F.3d 297, 311 (2d Cir. 2015)); see also Dawson v. N.Y.C. Transit

Auth., 624 Fed.Appx. 763, 770 (2d Cir. 2015) (summary order) (“At the pleading stage,

district courts would do well to remember this exceedingly low burden that

discrimination plaintiffs face ....”).

The Court finds that Plaintiff has met her “exceedingly low burden” of pleading

a Title IX retaliation claim. First, Plaintiff alleged that she engaged in several

protected activities, including reporting intimate partner violence to CUNY’s Title IX

office and “requesting enforcement of accommodations that overlapped with gender-

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based safety needs.” Opp. 25–26. Second, Plaintiff adequately alleged that CUNY

was aware of Plaintiff’s protected activity since she reported it to the Title IX office.

Third, Plaintiff sufficiently pleads that CUNY engaged in adverse school-related

actions against her, including terminating Plaintiff from her library position on

campus, failing to separate Plaintiff from her ex-partner, and refusing to enforce

safety measures for Plaintiff. Opp. at 6, 26.

Lastly, Plaintiff meets her de minimis burden of alleging causation by

asserting that these adverse-school related actions occurred “within weeks” of

Plaintiff engaging in protected activity. Opp. at 27. Accepting Plaintiff’s allegations

as true, the Court concludes that these events are sufficiently close in time to allow

for an inference of causation. See Gorzynski v. JetBlue Airways Corp., 596 F.3d 93,

110 (2d Cir. 2010) (“Though this Court has not drawn a bright line defining, for the

purposes of a prima facie case, the outer limits beyond which a temporal relationship

is too attenuated to establish causation, we have previously held that five months is

not too long to find the causal relationship.”).

For those reasons, the Court recommends that Defendant’s motion to dismiss

the Title IX retaliation claim be DENIED.

b. Title IX hostile educational environment claim

Title IX provides a remedy to a student who is subjected to sexual harassment

by a teacher or professor at an educational institution receiving federal funds. See

Hayut, 352 F.3d at 749–50; Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 280

(1998). For an educational facility to be liable, however, the plaintiff must establish

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that a school official with “authority to address the alleged discrimination and to

institute corrective measures” had “actual knowledge” of the discrimination and

failed to adequately respond. Gebser, 524 U.S. at 290.

A school may be held liable under this theory if it was “deliberately indifferent

to sexual harassment, of which [it] ha[d] actual knowledge, that is so severe,

pervasive, and objectively offensive that it can be said to deprive the victims of access

to the educational opportunities or benefits provided by the school.” Davis v. Monroe

Cnty. Bd. of Educ., 526 U.S. 629, 650 (1999). “Determining whether conduct

is severe or pervasive enough to create a hostile [] environment involves a question

of fact and is generally inappropriate to determine at the pleadings stage of a

litigation.” Harding v. Dorilton Cap. Advisors LLC, No. 22 Civ 01726 (CM), 635

F.Supp.3d 286, 301 (S.D.N.Y. 2022) (citation omitted). A motion to dismiss a hostile

environment claim predicated on a failure to plausibly allege severe or pervasive

harassment is thus properly denied when, based on the facts alleged in the complaint,

the defendant is not “obviously free from potential liability.” Gartenberg v. Cooper

Union, 24 Civ. 2669 (JPC), 765 F. Supp.3d 245, 265 (S.D.N.Y. 2025) (citation omitted).

Lastly, the teacher-on-student harassment forming the basis for a Title IX claim must

be “gender-oriented.” Davis, 526 U.S. at 651.

The Court finds that Plaintiff’s hostile educational environment claim fails for

two reasons. First, Plaintiff has failed in meeting her low burden of alleging

harassing conduct that states a Title IX claim. Plaintiff asserts that Di Carlo denied

her disability accommodations; texted students, including Plaintiff’s ex-partner, “at

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all hours of the night;” and colluded with Plaintiff’s ex-partner despite knowledge of

the Temporary Order of Protection. See Compl. ¶¶ 13–14, 20–21. But even read in

the light most favorable to pro se Plaintiff, the alleged facts are too conclusory and

attenuated to plausibly allege harassment as to Plaintiff. For instance, Plaintiff does

not allege how she knows that Di Carlo was texting students “at all hours of the

night,” or what he was texting students that would rise to harassing conduct.

Further, the complaint includes no facts as to how Di Carlo engaging with other

students (even if inappropriately) amounts to harassing conduct of Plaintiff. Lastly,

the complaint does not allege any action taken by Di Carlo and Plaintiff’s ex-partner

in connection with the alleged collusion.

Second, Plaintiff fails in alleging that the teacher-on-student harassment

forming the basis of her complaint was “gender-oriented.” To be considered gender-

based, the harassing conduct must “support an inference of discrimination on the

basis of sex.” Nungesser v. Columbia Univ, No. 15 Civ. 3216 (GHW), 244 F.Supp.3d

345, 362–363 (S.D.N.Y. 2017) (“Nungesser II”) (citing Oncale v. Sundowner Offshore

Servs., Inc., 523 U.S. 75, 80 (1998)) (collecting cases). Further, “[i]n evaluating

whether actions against a particular plaintiff were discriminatory, ‘courts have

consistently emphasized that the ultimate issue is the reasons for the individual

plaintiff's treatment.’” Id. (citation omitted) (emphasis in original). “In other words,

was Plaintiff being harassed because of her gender or for some other reason?” Id.

(citation omitted).

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Here, Plaintiff fails to plead facts giving rise to a plausible inference that

CUNY’s actions were motivated by Plaintiff’s gender. Construing Plaintiff’s

complaint and opposition papers liberally, Plaintiff alleges that CUNY created a

hostile educational environment by “allowing Di Carlo’s misconduct” (as discussed

more fully supra) and “and failing to act on Plaintiff’s reports of violence and

harassment.” Compl. ¶ 33. Plaintiff argues these acts were gender-oriented because

her “disclosures of sexual violence were mocked, minimized, and used as leverage to

question [her] integrity as a woman and as a student.” Opp. at 30. But beyond this

conclusory allegation, Plaintiff’s complaint is devoid of specific allegations that state

a plausible inference that Di Carlo’s acts were because of Plaintiff’s gender. See

Nungesser v. Columbia University, No. 15 Civ. 3216 (GHW), 169 F.Supp.3d 353, 366

(S.D.N.Y. 2016) (“Nungesser I”) (dismissing hostile environment claim for failure to

plead facts giving rise to a plausible inference that plaintiff’s actions were motivated

by his gender); Bowman v. Shawnee State Univ., 220 F.3d 456,464 (6th Cir. 2000)

(holding plaintiff was not subjected to a hostile environment for purposes of Title VII

because “[w]hile he may have been subject to intimidation, ridicule, and

mistreatment, he has not shown that he was treated in a discriminatory manner

because of his gender.”).

As such, the Court recommends that the motion to dismiss the Title IX hostile

environment claim be GRANTED.

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C. State tort claims

Plaintiff asserts several state law tort claims—negligent hiring and negligent

supervision, negligent infliction of emotional distress, and breach of fiduciary duty—

against CUNY.

New York Education Law § 6224(4) provides the following:

[E]xclusive jurisdiction is hereby conferred upon the court of claims to

hear, audit and determine the claims of any person against the City

university of New York [“CUNY”]... (b) in connection with causes of

action sounding in tort alleged to have been committed by a senior

college of such university or any officer, agent, servant or employee of a

senior college of such university in the course of his employment on

behalf of such university.

Hunter College is a “senior college” within the City University system. N.Y. Educ.

Law § 6202(5). Relying on this language, courts in this District have consistently

held that the New York Court of Claims has exclusive jurisdiction over such tort

claims brought against CUNY. See Sank v. City of New York, No. 94 Civ. 253 (RWS),

2002 WL 523282, at *9 (S.D.N.Y. Apr. 5, 2002) (holding that the New York Court of

Claims has exclusive jurisdiction over breach of contract claim against New York's

“senior colleges.”); See Chinn v. City Univ. of New York School of Law at Queens

Coll., 963 F. Supp. 218, 227 (E.D.N.Y. 1997) (dismissing tort IIED claim due to lack

of jurisdiction against CUNY).

The Court therefore recommends that CUNY’s motion to dismiss Plaintiff’s

state law tort claims be GRANTED. If Plaintiff chooses to act in the Court of Claims,

she should name CUNY, and not Hunter College, as the real party in interest. See

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Hamid v. John Jay Coll. of Crim. Just., No. 99 Civ. 8669 (WK), 2000 WL 666344, at

*8 (S.D.N.Y. May 19, 2000).

D. NYSHRL and NYCHRL claims

Plaintiff asserts claims under “state anti-discrimination and anti-harassment

statutes.” Compl. ¶ 1. She clarifies in her opposition that these are references to

“New York State Human Rights Law (NYSHRL), New York City Human Rights Law

(NYCHRL), and analogous statutory protections.” Opp. at 27. Construing Plaintiff’s

complaint liberally, the Court finds that Plaintiff is asserting discrimination,

retaliation, and hostile environment claims under NYSHRL and NYCHRL.

Defendant contends that Plaintiff’s NYSHRL claims should be dismissed

pursuant to Rule 12(b)(1) because they are barred by the election of remedies since

Plaintiff filed a complaint with the New York State Division of Human Rights. See

Dkt. No. 19-1. Further, Defendant argues that Plaintiff’s NYCHRL claims against

CUNY are barred by sovereign immunity pursuant to the Eleventh Amendment.

Dkt. No. 36 at 9. While the Court does not completely agree with CUNY’s analysis,

the Court ultimately finds that the NYSHRL and NYCHRL claims are squarely

barred by sovereign immunity and should be dismissed pursuant to Rule 12(b)(1).

“[A]s a matter of law, under the Eleventh Amendment, CUNY is not subject to

suit in federal court for alleged violations of state law,” including NYSHRL and

NYCHRL claims. Humphries v. City Univ. of New York, No. 13 Civ. 2641 (PAE),

2013 WL 6196561, at *11 (S.D.N.Y. Nov. 26, 2013) (citing Clissuras v. City Univ. of

N.Y., 359 F.3d 79, 81 n.2 (2d Cir. 2004)). See also Clissuras, 359 F.3d at 83 (affirming

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dismissal of claims against CUNY on Eleventh Amendment sovereign immunity

grounds); Hoffman v. City College of N.Y., 20 Civ. 1729 (PGG), 2021 WL 1226498, at

*4 (S.D.N.Y. Mar. 30, 2021) (dismissing NYSHRL and NYCHRL claims against

CUNY pursuant to Rule 12(b)(1) on sovereign immunity grounds). Accordingly, the

Court recommends that CUNY’s motion to dismiss Plaintiff’s NYCHRL and NYSHRL

claims be GRANTED and the claims DISMISSED.

LEAVE TO AMEND

Generally, “pro se litigants should be given leave to amend a complaint if ‘a

liberal reading of the complaint gives any indication that a valid claim might be

stated.’” Munoz–Nagel v. Guess, Inc., No. 12 Civ. 1312 (ER), 2013 WL 1809772, at

*7 (S.D.N.Y. Apr. 30, 2013) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d

Cir.2000). Moreover, “[w]ithout the benefit of a ruling, many a plaintiff will not see

the necessity of amendment or be in a position to weigh the practicality and possible

means of curing specific deficiencies.” Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo

Sec., LLC, 797 F.3d 160, 190 (2d Cir. 2015). However, “leave to amend need not be

granted when amendment would be futile.” See Terry v. Inc. Vill. of Patchogue, 826

F.3d 631, 633 (2d Cir. 2016).

As discussed supra, the Court finds the (1) state tort law claims (negligent

hiring and negligent supervision, negligent infliction of emotional distress, and

breach of fiduciary duty) and (2) NYSHRL and NYCHRL claims are uncurable. Thus,

the Court recommends that leave to amend these claims against CUNY be DENIED.

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However, Plaintiff may be able to allege additional facts or cure flaws in the

complaint regarding the following claims against CUNY: (1) ADA retaliation claim

and (2) Title IX hostile educational environment claim. The Court therefore

recommends that leave to amend these claims against CUNY be GRANTED.

RECOMMENDATION

For the foregoing reasons, this Court recommends that CUNY’s motion to

dismiss be DENIED as to the (1) ADA discrimination and (2) Title IX retaliation

claims and GRANTED for all other causes of action.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil

Procedure, the parties shall have fourteen days from service of this Report to file

written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to

objections shall be filed with the Clerk of Court and on ECF. Any requests for an

extension of time for filing objections must be directed to Judge Rearden. Failure to

file objections within fourteen days will result in a waiver of objections and

will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Cephas

v. Nash, 328 F.3d 98, 107 (2d Cir. 2003).

SO ORDERED.

DATED: me York, New York

February 11, 2026

Villa

United States Magistrate Judge

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