Lebowitz v. The New York City Department of Education et al

Filing 56

MEMORANDUM OF DECISION AND ORDER: As set forth in the Court's March 31, 2017 Memorandum of Decision and Order, Defendants' Motion to Dismiss 36 is GRANTED, in part, and DENIED, in part. Defendants' motion is granted as to: Lebowitz& #039;s ADEA and NYSHRL age discrimination claims; Reznikov's disability discrimination claims under the ADA, NYSHRL, and NYCHRL; Reznikov's national origin discrimination claims under Title VII, NYSHRL, and NYCHRL; Plaintiffs' retaliat ion claims under the ADEA, NYSHRL, and NYCHRL; Blacks FMLA retaliation claim; Black and Lebowitz's ADEA and NYSHRL hostile work environment claims; and Plaintiffs' IIED claims. Defendants' motion is denied as to: Reznikov and Black� 39;s ADEA and NYSHRL age discrimination claims; Plaintiffs' NYCHRL age discrimination claims; Reznikov's ADEA and NYSHRL hostile work environment claims; and Plaintiffs' NYCHRL hostile work environment claims. See attached Memorandum of Decision and Order for details. Ordered by Judge LaShann DeArcy Hall on 3/31/2017. (Zdanys, Joanna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------------- x
HERMAN LEBOWITZ, EKATERINA REZNIKOV, and
KEITH BLACK,

MEMORANDUM OF
DECISION AND ORDER

Plaintiffs,

15-cv-2890, 15-cv-5548
(LDH) (ST)

-againstTHE NEW YORK CITY DEPARTMENT OF
EDUCATION, JOHN O’MAHONEY, and LAURA IZZO
(individually and in their official capacities),
Defendants.
-----------------------------------------------------------------------

X

LASHANN DEARCY HALL, United States District Judge:
Plaintiffs Herman Lebowitz, Ekaterina Reznikov, and Keith Black (together, “Plaintiffs”)
bring the instant consolidated actions against the New York City Department of Education
(“DOE”), John O’Mahoney, and Laura Izzo (the “Individual Defendants”) (together,
“Defendants”), alleging violations of Title VII of the Civil Rights Act of 1964, (“Title VII”), the
Americans with Disabilities Act (“ADA”), the Age Discrimination in Employment Act
(“ADEA”), the Family and Medical Leave Act (“FMLA”), the New York State Human Rights
Law (“NYSHRL”), the New York City Human Rights Law (“NYCHRL”), and New York
common law. Defendants move pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss
the Third Amended Complaint (“Complaint”) in its entirety.
BACKGROUND 1
Plaintiffs are former mathematics teachers at Sheepshead Bay High School (“SBHS”) in
Brooklyn, New York. (Compl. ¶¶ 13, 52, 99.) SBHS closed at the end of the 2015-2016 school

1

The Court assumes the facts alleged in the Complaint to be true for purposes of evaluating the instant motion.

1

year. (Id. ¶ 49.) During the relevant time period, O’Mahoney was the principal of SBHS, and
Izzo was the assistant principal for special education. (Id. ¶¶ 10-11.)
Shortly after O’Mahoney became principal of SBHS in January 2012, he informed the
school staff that the school was over budget by millions of dollars. (Id. ¶¶ 14, 16.) O’Mahoney
often asked the older teachers, who typically earned higher salaries than younger, less senior
teachers, when they were going to retire. (Id. ¶ 16.) In addition, he threatened to discharge them
if they did not retire. (Id.) In or about May 2012, O’Mahoney made all of the teachers at SBHS
reapply for their jobs. (Id. ¶ 17.) He then hired back the vast majority of younger teachers. (Id.)
Most, if not all, of the teachers that were not rehired, including Lebowitz, were over forty years
old. (Id.)
In response, Plaintiffs’ union filed a grievance on the basis that O’Mahoney violated the
collective bargaining agreement’s seniority provisions by not rehiring the older teachers. (Id. ¶
18.) In June 2012, an arbitrator ruled in the union’s favor, and Lebowitz and the other
discharged teachers were reinstated to their positions. (See id. ¶¶ 18, 105.) O’Mahoney then
decided not to discharge any teachers, because under the collective bargaining agreement’s
seniority provisions, O’Mahoney would have been required to discharge the younger teachers
first. (Id.) O’Mahoney made it known that he wanted all of the math teachers—all of whom
were over forty years old—to receive a rating of “unsatisfactory” regardless of their
performance. (Id. at ¶ 20.) Plaintiffs also allege that O’Mahoney subjected older teachers to
“unfounded discipline, baseless ratings, and harassment, and strong-arm[ed] them into
retirement, while consistently replacing them with younger teachers.” (Id. ¶ 28.) In addition,
O’Mahoney allegedly tampered with the process for administering diagnostic academic tests so

2

that the older teachers could not rely on student test scores to show how they improved their
students’ performances during the year. (Id. ¶ 107.)
Plaintiffs allege that Izzo also demonstrated a pattern and practice of discrimination
towards teachers over forty years old. (Id. ¶ 55.) Izzo socialized with the younger teachers, and
she excluded teachers over forty years old by saying things like “this conversation is not for
oldies.” (Id. ¶¶ 55-56.) Izzo told several younger teachers that, in order to keep their tenure,
they needed to “be mean to the senior staff.” (Id. ¶ 66.) In or around October 2012, Izzo told the
younger teachers that they would keep their jobs because, by the time SBHS shut down, no older
teachers would be left. (Id. ¶ 56.) During a staff meeting in December 2013, Izzo stated that she
would “take care of” the younger teachers. (Id. ¶ 23.) Izzo made sure that all the younger
teachers had keys to her room, which had a Xerox machine and other supplies, but denied the
senior teachers access to these resources. (Id.) Izzo gave the younger teachers more time and
advance notice to prepare for observations than senior teachers. (Id. ¶¶ 27, 76.) The younger
teachers also received “do-overs” of their observations, such that less successful observations did
not impact their performance evaluations. (Id. ¶ 26.) These opportunities were not afforded to
the older and more senior teachers. (Id. ¶ 26.)
I.

Allegations Specific to Plaintiff Lebowitz
Plaintiff Lebowitz is fifty-nine years old and began his employment with Defendant DOE

in September 1990. (Id. ¶ 12-13.) He began working at SBHS in September 2000. (Id. ¶ 13.)
Historically, Lebowitz had received satisfactory annual reviews. (Id. ¶ 14.) After O’Mahoney
became principal of SBHS, Lebowitz received negative feedback and poor performance
evaluations following classroom observations. (See id. ¶¶ 22, 26, 29, 30, 37-39, 44, 48.) On
several occasions, O’Mahoney allegedly influenced Izzo to change a positive evaluation of

3

Lebowitz to a negative one without any basis for doing so or simply changed the ratings himself.
(See id. ¶¶ 39, 42.) Plaintiffs allege that similarly situated teachers under the age of forty or who
did not complain about discrimination did not receive baseless poor evaluations. (Id. ¶ 22.)
In December 2013, Izzo held a staff meeting during which one younger teacher pointed at
the older teachers in the room and said, “You guys are going to get it.” (Id. ¶ 23.) At that time,
two other teachers repeated an ongoing joke about Lebowitz in which one teacher said, “I have
great news,” and the other teacher, posing as Lebowitz, stated, “I still have a job.” (Id.) On
several occasions, O’Mahoney told Lebowitz that the last years of a teacher’s career were the
“f**k you years” and “f**k you money.” (Id. ¶¶ 21, 40.) During one such interaction,
O’Mahoney told Lebowitz that the union made it “almost impossible” to get rid of senior
teachers, and that doing so would “take years.” (Id. ¶ 40.)
On May 21, 2014, Lebowitz applied and was hired for an integrated co-teaching (“ICT”)
position for the upcoming school year. (Id. ¶ 31.) On September 2, 2014, Lebowitz discovered
that the position had been reassigned to Dr. Lisa Clark, which violated the collective bargaining
agreement’s seniority provisions. (Id. ¶ 32.) When O’Mahoney and Izzo refused to give the
position back to Lebowitz, Lebowitz filed and won a grievance against O’Mahoney and was
allowed to proceed with the ICT position. (Id.)
At the beginning of the 2014-2015 school year, O’Mahoney sent out an email to the
entire staff listing the teachers who were rated as “developing” or “ineffective” and therefore
warranted a Teacher Improvement Plan (“TIP”). (Id. ¶¶ 33-34.) This information was supposed
to be held confidential. (Id. ¶ 34.) Only older and more senior teachers, including Lebowitz,
were listed. (Id. ¶ 33.) Lebowitz was humiliated by the sharing of this information and
experienced ridicule from younger teachers. (Id. ¶ 34.)

4

On September 12, 2014, Lebowitz applied for the position of cafeteria supervisor. (Id. ¶
35.) Per union rules, the position was meant for only one teacher, and preference was to be
given in order of seniority. (Id.) O’Mahoney divided the position in two between Lebowitz and
another, less senior teacher. (Id.) Lebowitz filed and won a grievance and became the sole
cafeteria supervisor. (Id.) In March 2015, O’Mahoney assigned Lebowitz to teach an additional
geometry class. (Id. ¶ 41.) This additional class resulted in Lebowitz teaching four classes,
each in a different area of mathematics, in violation of the collective bargaining agreement. (Id.)
Plaintiffs allege that, because of the “baseless negative ratings” Lebowitz received, he
was prevented from applying to additional positions within the DOE, including after-school jobs,
tutoring, or college teaching. (Id. ¶ 49.) Plaintiffs also contend that, given the closing of SBHS,
Lebowitz’s negative ratings will impede his ability to find another job and will result in him
remaining on absent teacher reserve (“ATR”). 2 (Id.)
II.

Allegations as to Plaintiff Reznikov
Plaintiff Ekaterina Reznikov is fifty-seven years old and is of Russian descent. (Id. ¶¶

51-52.) She began teaching mathematics at SBHS in 1999. (Id. ¶ 52.) In her years at SBHS,
Reznikov historically received “glowing reviews” from her principals. (Id. ¶ 53.)
In October 2013, Reznikov took four days off to seek treatment for a condition that was
suspected to be cancer. (Id.¶ 60.) On November 14, 2013, Izzo informed Reznikov that, at

2

In opposition to Defendants’ motion, Plaintiffs argue that the DOE has brought charges against Lebowitz under
New York Education Law § 3020-a, with the intent to discharge him. (Pls.’ Opp’n 5, 7, ECF No. 37.) Plaintiffs
also provide affidavits by Lebowitz and his counsel stating the same and attach as an exhibit the specifications and
bill of particulars brought against Lebowitz. (See Lebowitz Aff., ECF 37-1; Lebowitz Aff., Ex. A, ECF No. 37-2;
Ehrlich Decl., ECF No. 37-3.) However, Plaintiffs have not sought leave to file a fourth amended complaint, and
these new allegations are not properly before the Court. See Smith v. City of New York, 290 F. Supp. 2d 317, 319
n.2 (E.D.N.Y. 2003) (citing Bennett v. Cardinal Health Marmac Distribs., No. 02-cv-3095, 2003 WL 21738604, at
*2 (E.D.N.Y. July 14, 2003)) (declining to consider plaintiff’s affidavit containing new allegations because the court
would not convert motion to dismiss into one for summary judgment, and in evaluating a 12(b)(6) motion, the court
could not consider such an extraneous document).

5

O’Mahoney’s directive, Reznikov would receive a disciplinary letter for those absences. (Id. ¶
63.) When Reznikov began to cry, Izzo stated that she would not issue the disciplinary letter, but
Reznikov later found that letter in her file. (Id.) On May 14, 2014, Reznikov needed to leave
work early for a biopsy, which conflicted with a scheduled meeting with Izzo. (Id. ¶ 79.) Izzo
informed Reznikov, “These meetings are important, please schedule to be sick in the summer.
You remind me of my mother, she had cancer, but she never died.” (Id.) Izzo instructed
Reznikov to find out for herself what happened at the meeting because Izzo would not repeat
herself. (Id.) Reznikov felt harassed and cried. (Id.) On May 23, 2014, Izzo told Reznikov that
she would rate Reznikov as ineffective because she “need[ed] to leave the system.” (Id. ¶ 83.)
When Reznikov responded that she needed her medical benefits for her cancer, Izzo responded,
“Oh, die already!” (Id.)
Plaintiffs contend that Defendants continued to interfere with Reznikov’s medical needs
by not allowing her to use the bathroom. (Id. ¶¶ 87-90.) On June 17, 2014, during the Regents
exams, Reznikov was assigned to proctor an exam and sit in the library for most of the day. (Id.
¶¶ 86-87.) When Reznikov asked Izzo if she would be able to break for lunch or to use the
bathroom, Izzo replied, “I don’t believe you need any of those things.” (Id. ¶ 88.) After being
further admonished by Izzo, Reznikov felt so bullied that she could not walk home, and she
suffered from abdominal pain because she was not given bathroom breaks. (Id. ¶ 89.) On June
20, 2014, Reznikov asked another teacher to relieve her so she could take a bathroom break. (Id.
¶ 90.) The teacher refused, stating that he did not want to get in trouble with Izzo. (Id.)
Plaintiffs allege that Reznikov was shaking so badly from not taking bathroom breaks that
doctors could not perform a procedure on her later that day. (Id. ¶ 91.)

6

Plaintiffs also allege that Defendants made repeated remarks about Reznikov’s Russian
accent. In February 2014, O’Mahoney and other school administrators asked Reznikov’s
students questions like, “Do you understand her?” and “Does her accent seem unpleasant to
you?” (Id. ¶ 67.) On March 13, 2014, while discussing students who spoke English as a second
language, assistant principal Mario Ford stated, “We can improve the kids, but we can’t improve
the teachers, although we don’t want them, there is nothing we can do about it.” (Id. ¶ 73.)
Plaintiffs allege that it was clear to Reznikov that Ford was referring to her. (Id.)
An evaluation dated February 25, 2014, criticized Reznikov for not using her computer or
smart board during a lesson, despite the fact that her classroom was not equipped with that
technology. (Id. ¶ 65.) At a post-observation conference on March 4, 2014, O’Mahoney leaned
over his desk and told Reznikov, “You are the worst teacher in this school. I want you to leave
this school and leave this profession. You are a disgrace.” (Id. ¶ 70.) When Reznikov
responded that her students were passing their exams, O’Mahoney yelled that she should not talk
when he was talking. (Id.) Reznikov was so upset that she could barely walk, and Lebowitz had
to help her walk back to her classroom. (Id.) The next day, O’Mahoney gave Reznikov a rating
of “ineffective” for his observation of her, which Plaintiffs contend was baseless. (Id. ¶ 71.) In
April 2014, the state conducted observations of SBHS. (Id. ¶ 78.) The administration assured
the teachers that they would not be subject to simultaneous internal observations by school
leadership while the state observations were in progress. (Id.) Izzo observed Reznikov anyway.
(Id.) When Reznikov asked Izzo why she had conducted the observation at that time, Izzo
responded, “I did that because I want all the senior teachers out of here.” (Id.) In June 2014,
Izzo rated Reznikov as “ineffective,” without having any basis for doing so. (Id. ¶ 85.)

7

On June 26, 2014, which Plaintiffs allege was Reznikov’s last day at SBHS, Izzo invited
Reznikov and her union representative to Izzo’s office. (Id. ¶ 93.) Izzo informed Reznikov that
she would receive a disciplinary letter for taking an hour for lunch instead of the allotted fortytwo minutes. (Id.) When Reznikov stated that the accusation was untrue, Izzo replied, “Fact or
no fact, you are going to be rated ineffective, you are going to lose your license.” (Id.)
Reznikov remarked, “You just don’t want me to be alive,” to which Izzo responded, “Exactly.”
(Id.) Later that day, when Reznikov received a copy of her file, she noticed that all of her letters
of commendation were missing. (Id. ¶ 94.) Reznikov received an overall ineffective rating for
the 2013-2014 school year at SBHS and was placed on ATR. (Id. ¶ 95.) During the 2014-2015
school year, Reznikov taught at Franklin Delano Roosevelt high school and received a rating of
“highly effective.” (Id.) In June 2015, Reznikov was returned to ATR. (Id.)
III.

Allegations as to Plaintiff Black
Plaintiff Keith Black is a forty-eight-year-old male who has taught mathematics at SBHS

since 1999. (Id. ¶¶ 98-99.) In 2012, Black requested FMLA leave to care for his ailing mother.
(Id. ¶ 103.) Defendants approved Black’s request for leave from February 13, 2012, through
June 30, 2012. (Id.) Black returned for the fall 2012 semester. (Id. ¶ 108.) On December 5,
2012, Black received a review of “satisfactory” following a formal observation. (Id. ¶ 110.) On
January 3, 2013, Black received a negative evaluation, which Plaintiffs contend was baseless.
(Id. ¶ 111.) As a result, Black began to suffer from severe anxiety and panic attacks, which
required him to stay out of school for three weeks, using his accrued sick days. (Id. ¶¶ 112-13.)
On March 20, 2013, Black received correspondence from O’Mahoney stating that Black must
either provide O’Mahoney with medical documentation, return to work immediately, or resign.
(Id. ¶ 115.) Plaintiffs allege that, after Black returned to work from this period of sick leave,

8

O’Mahoney “consistently harassed Black and disciplined or attempted to discipline Black for
falsified and baseless reasons.” (Id. ¶ 120.) Plaintiffs allege that in May 2013, O’Mahoney told
another teacher that he would “get Black the following year” because Black “[knew] how to beat
the system.” (Id. ¶ 125.) The next year, O’Mahoney gave Black ten ineffective ratings. (Id. ¶
131.) Similarly, Izzo gave Black poor ratings, which Plaintiffs contend “had no basis in fact and
could not be supported.” (Id. ¶ 139.)
Plaintiffs allege that O’Mahoney went out of his way to humiliate Black, and that
“[s]imilarly situated younger teachers and those teachers who did not take FMLA leave were not
humiliated.” (Id. ¶ 133.) Plaintiffs allege that “O’Mahoney’s plan to mentally and emotionally
break the senior teachers was taking its toll on Black” and that Black was ultimately diagnosed
with Post-Traumatic Stress Disorder (“PTSD”). (Id. ¶ 136.) Black and numerous other staff
members were “subjected to looks of disdain and disgust from O’Mahoney, who did not show
this contempt to similarly situated younger teachers and staff.” (Id. ¶ 141.) In the spring of
2014, Black made several requests to be transferred out of SBHS. (Id. ¶ 145.) Those requests
were denied. (Id.) In June 2014, Black was “excessed” out of SBHS, but then was sent back to
teach at SBHS for the 2014-2015 school year. (Id. ¶¶ 146, 150.) Black took medical leave
beginning in February 2015 to address his anxiety and PTSD. (Id. ¶¶ 150-51.) On May 4, 2015,
O’Mahoney allegedly sent an investigator to Black’s house to confirm that he was, indeed, ill
and not engaging in outside work. (Id. ¶ 155.) The investigation was later dropped. (Id.)
Ultimately, in June 2015, Black was informed that he would be excessed from SBHS for the
2015-2016 school year. (Id. ¶ 156.)

9

STANDARD OF REVIEW
To withstand a motion to dismiss, a complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
facially plausible when the alleged facts allow the court to draw a “reasonable inference” of a
defendant’s liability for the alleged misconduct. Id. Although this standard requires more than a
“sheer possibility” of defendant’s liability, id., “[i]t is not the Court’s function to weigh the
evidence that might be presented at trial” on a motion to dismiss. Morris v. Northrop Grumman
Corp., 37 F. Supp. 2d 556, 565 (E.D.N.Y. 1999). Instead, “the court must merely determine
whether the complaint itself is legally sufficient, and, in doing so, it is well settled that the court
must accept the factual allegations of the complaint as true.” Id. (internal citation omitted).
DISCUSSION
I.

Plaintiffs’ Age Discrimination Claims
A. Age Discrimination under the ADEA and NYSHRL
Under the ADEA and NYSHRL, a prima facie case of age discrimination consists of four

elements: (1) the plaintiff’s membership in a protected class; (2) the plaintiff’s qualification for a
particular position of employment; (3) an adverse employment action by the defendant employer;
and (4) some minimal evidence suggesting an inference that the employer acted with
discriminatory motivation. See Littlejohn v. City of New York, 795 F.3d 297, 307 (2d Cir. 2015)
(outlining prima facie case of employment discrimination). However, the complaint need not
allege facts establishing each element of a prima facie case of discrimination to survive a motion
to dismiss. Alleyne v. NAACP Legal Defense and Educ. Fund, Inc., No. 14-cv-6675, 2015 WL
6869731, at *2 (E.D.N.Y. Nov. 6, 2015) (collecting cases). Instead, a plaintiff need only plead

10

facts to give plausible support to his or her claim. See id. At the pleading stage, a plaintiff
alleging employment discrimination must allege that the employer took adverse action against
him or her at least in part for a discriminatory reason. 3 Vega v. Hempstead Union Free Sch.
Dist., 801 F.3d 72, 87 (2d Cir. 2015). He or she may do so either directly, by alleging facts that
show an intent to discriminate, or indirectly, by alleging circumstances that give rise to a
plausible inference of discrimination. Id.
1. Adverse Employment Action
Defendants argue that dismissal is warranted because Plaintiffs have not sufficiently
alleged that they suffered any adverse employment action. (See Defs.’ Mot. 6-7, ECF No. 36.)
A plaintiff sustains an adverse employment action if he or she endures a materially adverse
change in the terms and conditions of employment. Vega, 801 F.3d at 85. Such a change must
be “more disruptive than a mere inconvenience or an alteration of job responsibilities.” Id.
(citing Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003)). Common examples of materially
adverse changes include termination of employment, a demotion evidenced by a decrease in
wage or salary, a less distinguished title, a material loss of benefits, significantly diminished
material responsibilities, or other indices unique to a particular situation. Id.
Here, Plaintiffs allege a number of purportedly adverse actions. Plaintiffs rely
principally, however, on the allegation that they each received negative evaluations from their
supervisors. (See Pls.’ Opp’n 4-10.) Criticism of an employee in the course of evaluating and
correcting his or her work is not, in and of itself, a materially adverse employment action.

3
As discussed in further detail below, to plead a claim of age discrimination under the ADEA and NYSHRL, a
plaintiff must also plausibly allege that age was the “but for” cause of the adverse employment action. See, e.g.,
Fagan v. U.S. Carpet Installation, Inc., 770 F. Supp. 2d 490, 496 (E.D.N.Y. 2011) (explaining that at the pleading
stage, a plaintiff alleging age discrimination need not show that age was the only cause of discrimination, but that
the plaintiff must show that the adverse action could not have occurred without the consideration of age).

11

Dimitracopoulos v. City of New York, 26 F. Supp. 3d 200, 213 (E.D.N.Y. 2014) (citing Weeks v.
N.Y. State Div. of Parole, 273 F.3d 76, 86 (2d Cir. 2001). And, “a thin-skinned worker’s
reaction to such criticism will not support a claim of age discrimination.” Id. (collecting cases
holding that an unsatisfactory evaluation alone does not constitute an adverse employment
action). Negative evaluations may be adverse, however, if they trigger other negative
consequences in the terms and conditions of a plaintiff’s employment. Id. (citing Treglia v.
Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002)).
With respect to Lebowitz, Plaintiffs allege that negative evaluations prevented him from
applying to additional positions within the DOE, including “after school jobs, tutoring, or college
teaching,” and hampered his ability to find another job. (Compl. ¶ 49.) This sort of “per
session” employment could potentially be considered a materially adverse change. See
Dimitracopoulos, 26 F. Supp. 3d at 214 (allowing ADEA discrimination claim to proceed where
negative evaluation letter led to loss of per session assignments). Such a charge, however, must
go beyond mere speculation. See Trachtenberg v. Dep’t of Educ. of City of New York, 937 F.
Supp. 2d 460, 470 (S.D.N.Y. 2013) (finding that a negative review was not adverse where
teacher argued she would have been terminated if she had not retired first). Lebowitz does not
allege that he ever applied for other employment, rendering speculative his claim that he was
denied other potential work opportunities.
Unlike Lebowitz, Black and Reznikov allege that their negative evaluations actually led
to concrete adverse consequences. (Compl. ¶¶ 93, 95, 146, 156.) Reznikov was placed on ATR
after receiving an ineffective overall rating for the 2013-2014 school year and again on in June
2015. (Compl. ¶¶ 93, 95.) Similarly, Black was twice excessed from the school. (Id. ¶¶ 146,
156.) Placement on ATR and being excessed from a teaching position have been construed to be

12

adverse employment actions. 4 See Saunders v. New York City Dep’t of Educ., No. 07-cv-2725,
2010 WL 2816321, at *25, 27 (E.D.N.Y. July 15, 2010) (finding ATR assignment to be adverse
employment action in discrimination and retaliation contexts and construing “excessing” as
adverse employment action). As such, these allegations suffice to plead an adverse employment
action.
Plaintiffs also maintain that the denials of Black’s requests to be transferred to another
school were adverse employment actions. (Pls.’s Mem. Supp. 8 (citing Compl. ¶ 146).) A
denial of a request for transfer indeed may constitute an adverse employment action when “an
employee is forced to move to or to stay in a unit with more cumbersome job responsibilities or
lower compensation.” Taylor v. N.Y. City Dep’t of Educ., No. 11-cv-3582, 2012 WL 5989874, at
*8 (E.D.N.Y. Nov. 30, 2012) (quoting Pimentel v. City of New York, 74 F. App’x 146, 148 (2d
Cir. 2003)). Such a denial does not constitute an adverse employment action, however, “if the
terms, privileges, duration, or condition of a plaintiff’s employment do not change.” Id. Black
purportedly sought a transfer because his continued placement at SBHS caused him anxiety and
distress. (See Compl. ¶ 145.) He alleges no facts that would indicate what effect, if any, such a
transfer would have on the terms and conditions of his employment. There is no allegation, for
example, that his responsibilities would have been altered or that his compensation would have
been increased. Cf. Taylor, 2012 WL 5989874, at *8. Accordingly, the Court declines to find
that the alleged denials of Black’s requests for a transfer were adverse employment actions.
The other actions that Defendants purportedly took against Plaintiffs similarly fail to rise
to the level of adverse employment actions. For example, Defendants’ conduct in assigning

4

Defendants argue that, because SBHS closed at the end of the 2015-2016 school year, all SBHS teachers were
ultimately “excessed to the ATR.” (Defs.’ Mem. Supp. 8.) The Court finds that this issue is more appropriately
resolved on summary judgment.

13

Black and Lebowitz to teach certain math classes in violation of the collective bargaining
agreement, denying Black and Lebowitz desired cafeteria duty, and denying Lebowitz a desired
ICT classroom position in violation of the collective bargaining agreement were not adverse.
See Dimitracopoulos, 26 F. Supp. 3d at 213 (finding that scheduling and assignment issues
involving course loads are generally not materially adverse employment actions unless they are
so burdensome as to constitute a departure from normal academic practice and that assignments
that violate a collective bargaining agreement are “garden-variety academic organizational
changes, grievable under union agreements”). Nor do disciplinary memoranda or the circulation
of the TIP list amount to adverse employment actions. See Campbell v. New York City Transit
Auth., 93 F. Supp. 3d 148, 168 (E.D.N.Y. 2015). “[D]isciplinary memoranda and evaluations are
adverse employment actions only if they affect ultimate employment decisions such as
promotion, wages, or termination.” Regis v. Metro. Jewish Geriatric Ctr., No. 97-cv-0906, 2000
WL 264336, at *8 (E.D.N.Y. Jan. 11, 2000) (citing Johnson v. Frank, 828 F. Supp. 1143, 1153
(S.D.N.Y. 1993).
In light of the foregoing, the only adverse employment actions at issue are Reznikov’s
placement on ATR and Black’s being “excessed” from SBHS.
2. Discriminatory Motive
To bring a successful claim of age discrimination under the ADEA, a plaintiff must
demonstrate, among other things, that age was the “but-for” cause of the challenged action. See
Bohnet v. Valley Stream Union Free Sch. Dist., 30 F. Supp. 3d 174, 180 (E.D.N.Y. 2014), aff’d,
594 F. App’x 53 (2d Cir. 2015) (citing Gross v. FBL Financial Services, Inc., 557 U.S. 167, 180
(2009)). Defendants argue that Plaintiffs have failed to do so. (Defs.’ Mem. Supp. 11-12, ECF
No. 36-1.) However, at the motion to dismiss stage, a complaint need not allege that age was the

14

employer’s only consideration, but rather that the adverse employment action would not have
occurred without it. Fagan v. U.S. Carpet Installation, Inc., 770 F. Supp. 2d 490, 496 (E.D.N.Y.
2011) (citing Gross, 557 U.S. at 176); see also Bohnet, 30 F. Supp. 3d at 180 (explaining that the
complaint need only allege sufficient facts to make plausible the conclusion that a plaintiff would
not have endured an adverse employment action “but for” her age). In addition, the Second
Circuit has “assumed, without deciding, that the [ADEA’s requirement of] but-for causation is
also required under the NYSHRL for age discrimination claims . . . .” See, e.g., Szewczyk v. City
of New York, No. 15-cv-918, 2016 WL 3920216, at *9 n. 8 (E.D.N.Y. July 14, 2016) (citations
omitted). Defendants maintain that Plaintiffs fail to meet this standard. (Defs.’ Mem. Supp. 1112.)
Plaintiffs make a number of statements that plausibly allege that age was the but-for
cause behind Reznikov and Black’s ATR status. The Complaint contains numerous allegations
of Izzo stating that she wanted to rid the school of senior teachers. For example, Plaintiffs allege
that Izzo stated, “We don’t want senior teachers here with your stale methods. I just don’t want
any senior teachers in this department and this school, period.” (Compl. ¶ 60.) Similarly, when
Reznikov asked Izzo when the teachers would receive their Regents exam preparation books for
their classes, Izzo responded, “You are not going to get them. When all the senior teachers are
gone next year, Ms. Castillo will get the books.” (Id. ¶ 84.) Black alleges that he received a
negative evaluation with respect to the physical appearance of a classroom that he shared with a
younger teacher, Mr. Vidal. (Id. ¶ 131.) Despite sharing the same space with Black, Mr. Vidal
did not receive a negative evaluation with respect to the classroom’s appearance. (Id.) Although
these allegations do not rise to the level of adverse employment actions, they nevertheless
support an inference of discrimination. See Littlejohn, 795 F.3d at 312 (“An inference of

15

discrimination can rise from circumstances including, but not limited to . . . invidious comments
about others in the employee’s protected group[] or the more favorable treatment of employees
not in the protected group . . . .” (internal quotation marks omitted)). Accordingly, Plaintiffs
have sufficiently pleaded a claim of age discrimination under the ADEA and NYSHRL as to
Black and Reznikov.
B. NYCHRL Age Discrimination Claim
The pleading standard for a discrimination claim under the NYCHRL is far more liberal
than for federal and state discrimination claims. As such, courts analyze NYCHRL claims
“separately and independently from any federal and state law claims, construing the NYCHRL’s
provisions broadly in favor of discrimination plaintiffs, to the extent that such a construction is
reasonably possible.” Thomson v. Odyssey House, No. 14-cv-3857, 2015 WL 5561209, at *24
(E.D.N.Y. Sept. 21, 2015) (citing Mihalik v. Credit Agricole Cheuvreux N. Am. Inc., 715 F.3d
102, 109 (2d Cir. 2013)). To state a claim for discrimination under the NYCHRL, a plaintiff
need only show differential treatment of any degree based on a discriminatory motive. Id. (citing
Gorokhovsky v. N.Y.S. Hous. Auth., 552 F. App’x 100, 102 (2d Cir. 2014)); accord Awad v. City
of New York, No. 13-cv-5753, 2014 WL 1814114, at *5 (E.D.N.Y. May 7, 2014). The NYCHRL
requires neither a materially adverse employment action, nor severe and pervasive conduct.
Awad, 2014 WL 1814114, at *5. However, even under this more liberal pleading standard, a
plaintiff must still plausibly allege that he or she was subjected to unequal treatment because of a
protected characteristic. Thomson, 2015 WL 5561209, at *24.
The Complaint makes frequent reference to the way Defendants treated Plaintiffs
differently from younger teachers, including, among other things, giving younger teachers more
lenient evaluations, providing younger teachers with better supplies and resources, and telling

16

younger teachers to be mean to the senior teachers. (Compl. ¶¶ 26-27, 56, 66, 76.) The
Complaint also alleges overt statements by Defendants regarding their desire to rid the school of
older teachers. (Id. ¶¶ 40, 78.) Because Plaintiffs must merely allege differential treatment of
any degree, all three Plaintiffs have pleaded an age discrimination claim under the NYCHRL.
II.

Reznikov’s Additional Discrimination Claims
A. Reznikov’s Disability Discrimination Claims
1. Exhaustion of Remedies under the ADA
As a threshold matter, Defendants argue that Reznikov’s ADA discrimination claims

must be dismissed for failure to exhaust her administrative remedies. (Defs.’ Mem. Supp. 3-5.)
As a condition precedent to bringing a claim under the ADA, a plaintiff must show that she
exhausted her administrative remedies. See Benjamin v. Brookhaven Science Assocs., LLC, 387
F. Supp. 2d 146, 154-55 (E.D.N.Y. 2005) (explaining exhaustion of remedies requirement in
ADA context). A plaintiff may do so by pleading the claims at issue in a charge before the Equal
Employment Opportunity Commission (“EEOC”). See id.; see also Stewart v. U.S. I.N.S., 762
F.2d 193, 198 (2d Cir. 1985) (“[T]he purpose of the exhaustion requirement . . . is to give the
administrative agency the opportunity to investigate, mediate, and take remedial action . . . .”).
However, claims not explicitly pleaded in an EEOC charge nevertheless may be brought in
federal court if they are “reasonably related” to the claim filed with the agency. Williams v.
N.Y.C. Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006) (citing Butts v. City of New York Dep’t of
Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993)). The Second Circuit has deemed
federal claims to be “reasonably related” to the claims in an EEOC charge when those claims are
within the scope of the EEOC investigation likely to result from the EEOC charge. Hurt v.

17

Donahoe, No. 07-cv-4201, at *3 (E.D.N.Y. Feb. 24, 2011) (citing Butts v. N.Y. Dep’t of Hous.
Pres. & Dev., 990 F.2d 1397, 1402-03 (2d Cir. 1993)).
When determining whether claims are reasonably related, the focus should be “on the
factual allegations made in the EEOC charge itself, describing the discriminatory conduct about
which plaintiff is grieving.” Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2004) (quoting
Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 637 (9th Cir. 2002)). Although merely
checking a box on the EEOC form charge identifying the basis of the charge does not necessarily
control the scope of an EEOC charge, the absence of a checkmark weighs against concluding
that the plaintiff has alleged discrimination on the basis of the claim designated by that box. See
Holmes v. Fresh Direct, No. 13-cv-46757, 2015 WL 4885216, at *5-6 (E.D.N.Y. Aug. 5, 2015)
(dismissing with prejudice claims of race discrimination, gender discrimination, and retaliation,
where plaintiff’s EEOC charge of disability discrimination was devoid of any reference to race
or gender discrimination or retaliation); cf. Williams, 458 F.3d at 71 (finding that a claim of
sexual harassment was reasonably related to retaliation claim filed with EEOC where, even
though plaintiff did not check box marked “sex” in EEOC charge of discrimination, the EEOC
complaint’s descriptions of sexually harassing conduct were sufficient to put the EEOC on notice
of a potential sex discrimination claim).
Here, in her October 28, 2014 EEOC charge, Reznikov left blank the box that would have
indicated that she brought her claim pursuant to the ADA and failed to check the “disability” box
in the categories of “circumstances of discrimination” and “cause of discrimination.” (Defs.’
Mem. Supp., Ex. C. (“Reznikov EEOC Charge”), at 1, ECF No. 36-5.) Reznikov’s failure to
select “ADA” or “disability” at these three junctures in her intake form weighs against a finding
that she brought her disability claim before the EEOC. See Holmes, 2015 WL 4885216, at *5.

18

However, Reznikov’s written narrative to her EEOC charge contains factual allegations that are
nearly identical to those in Plaintiffs’ federal complaint. (Compare, e.g., Reznikov EEOC
Charge 7-8, with Compl. ¶¶ 60, 63, 79, 83.) When a claim in a federal complaint is “simply a
newly articulated cause of action that grows directly out of the factual allegations of the EEOC
charge, the claim can be brought in district court.” Benjamin, 387 F. Supp. 2d at 154 (citation
omitted). Accordingly, Reznikov’s ADA discrimination claim is reasonably related to her EEOC
complaint, and Reznikov did not fail to exhaust her administrative remedies as to this claim.
2. Reznikov’s Substantive Disability Discrimination Claims
To survive Defendants’ motion to dismiss her ADA, NYSHRL, and NYCHRL disability
discrimination claims, Reznikov must allege facts to show that her employer took adverse action
against her, and that the action was taken because of her disability or perceived disability.
Thomson, 2015 WL 5561209, at *16, *18 (articulating pleading standard under ADA and
applying same to NYSHRL and NYCHRL claims). As to this claim, there is little in the
Complaint to support that the adverse action in question here—Reznikov’s placement on ATR—
was at all related to her perceived disability. Reznikov alleges that she took four days off to seek
treatment for a condition that was “suspected to be cancer.” (Id. ¶ 60.) The Complaint’s only
reference to any mention of Reznikov’s health condition is Izzo’s statement that Reznikov
reminded her of her mother, who “had cancer” but “never died,” and Izzo’s exclamation of “Oh,
die already!” in response to Reznikov’s statement that she needed her health benefits for her
cancer. (Id. ¶¶ 79, 83.) These allegations do not support the inference that Reznikov was placed
on ATR because of her perceived disability, and there are no other allegations in the Complaint
from which the Court may draw such an inference.
To the extent that Reznikov’s disability discrimination claim is premised on a theory of a

19

failure to accommodate Reznikov’s perceived disability, such a claim also fails. A plaintiff
pleads a claim of discrimination on a failure to accommodate theory under the ADA, NYSHRL,
and NYCHRL where she alleges: (1) that she was a person with a disability within the meaning
of the statute; (2) her employer is a covered entity; (3) the plaintiff could perform the essential
functions of her job with an accommodation; and (4) the defendant refused to make such an
accommodation. Thomson, 2015 WL 5561209, at *18 (citing McMillan v. City of New York, 711
F.3d 120, 125-26 (2d Cir. 2013)) (articulating ADA pleading standard and finding that single
allegation did not give rise to plausible inference of failure to accommodate); Fernandez v.
Windmill Distrib. Co., 159 F. Supp. 3d 351, 366 (S.D.N.Y. 2016) (applying similar standard to
NYSHRL and NYCHRL disability discrimination claims).
Reznikov premises her ADA failure to accommodate claims on Defendants’ refusal to
allow her to use the bathroom while proctoring Regents exams and Izzo’s apparent refusal to
allow Plaintiff to attend a biopsy appointment that conflicted with a meeting. (See Compl. ¶¶ 79,
86-91.) As to Defendants’ refusal to allow Reznikov to use the bathroom, the Complaint is
devoid of any facts that would indicate that Reznikov’s perceived cancer was in any way related
to her need for restroom breaks or that Defendants were aware that Reznikov needed such breaks
as an accommodation for her perceived condition. Further, the Court notes that it was a fellow
teacher, not Defendants, who declined to relieve Reznikov. (Id. ¶ 90.) As to the biopsy
procedure that conflicted with a meeting with Izzo, there is no allegation that Izzo prevented
Reznikov from attending her biopsy. (Id. ¶ 79.) Rather, Reznikov alleges only that Izzo
informed her that she would need to find out what she missed at the meeting. (Id.) Although
perhaps insensitive, this allegation leads to the reasonable inference that Izzo did not hinder
Reznikov from attending her biopsy. Because Reznikov does not plead facts demonstrating that

20

Defendants failed to accommodate her perceived disability, Reznikov’s ADA, NYSHRL, and
NYCHRL disability discrimination claims are dismissed.
B. Reznikov’s National Origin Discrimination Claim
Defendants also move to dismiss Reznikov’s national origin discrimination claim.
Plaintiffs allege several instances in which school administrators made reference to Reznikov’s
Russian accent, which Reznikov perceived to be insulting. Such stray remarks, however, “even
if made by a decisionmaker, ‘without more, cannot get a discrimination suit to a jury.’” Baffa v.
STAT Health Immediate Medical Care, P.C., No. 11-cv-4709, 2013 WL 5234231, at *12
(E.D.N.Y. Sept. 17, 2013) (quoting Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998)).
Plaintiffs fail to plead any additional facts that would suggest that Defendants placed Reznikov
on ATR because she is Russian. Accordingly, Reznikov’s Title VII and NYSHRL national
origin discrimination claims are dismissed. See Soloviev v. Goldstein, 104 F. Supp. 3d 232, 250
(E.D.N.Y. 2015) (dismissing Title VII and NYSHRL national origin discrimination claims where
complaint failed to allege that adverse action occurred because of national origin). Similarly,
despite the NYCHRL’s more “lenient standard” for pleading discrimination claims, Plaintiffs
have not sufficiently pleaded national origin discrimination under the NYCHRL because they
have not demonstrated that Defendants treated Reznikov less well than other teachers in a
manner indicating that Defendants were motivated by animus based on Reznikov’s national
origin. See id. at 241, 250 (finding that comments including “oh another Russkee,” “you
Russians are taking over everything,” and “Russians get everything handed to them” did not
support national origin discrimination claim under NYCHRL). Accordingly, Reznikov’s
national origin discrimination claims are dismissed in their entirety.

21

III.

Plaintiffs’ Retaliation Claims
A. Retaliation under ADEA, NYSHRL, and NYCHRL
To establish a prima facie case of retaliation under the ADEA, NYSHRL, and NYCHRL,

a Plaintiff must show: “(1) participation in a protected activity; (2) that the defendant knew of the
protected activity; (3) an adverse employment action; and (4) a causal connection between the
protected activity and the adverse employment action.” Thomson, 2015 WL 5561209, at *19
(E.D.N.Y. Sept. 21, 2015) (quoting Littlejohn, 795 F.3d at 316). See also Muktadir v. Bevacco
Inc., No. 12-cv-2184, 2013 WL 4095411, at *3 (E.D.N.Y. Aug. 13, 2013) (pleading standard the
same under Title VII, NYSHRL, and NYCHRL); Bohnet v. Valley Stream Union Free Sch. Dist.
13, 30 F. Supp. 3d 174, 181-82 (E.D.N.Y. 2014), aff’d, 594 F. App’x 53 (2d Cir. 2015) (claims
of retaliation under the ADEA analyzed under same standard as Title VII).
Plaintiffs allege that their union filed a grievance against the DOE in May 2012 when the
senior teachers were forced to reapply for their jobs and were not rehired. 5 (See Compl. ¶¶ 1718.) In addition, Plaintiffs allege that they “repeatedly complained to Defendants about the
discriminatory treatment that they endured because of their age.” (Compl. ¶ 166.) These types of
complaints are protected activity. See Ingrassia v. Health & Hosp. Corp., 130 F. Supp. 3d 709,
723 (E.D.N.Y. 2015) (collecting cases and observing that informal complaints of discrimination
to management are protected activity under Title VII and the ADEA). Even still, Defendants
argue that Plaintiffs fail to plead any retaliation claim because there was no adverse employment
action. (Defs.’ Mem. Supp. 7.)

5

Although the Complaint explicitly states that Lebowitz was not rehired, it does not specifically identify Reznikov
or Black as being part of that group. However, because Plaintiffs allege that Defendants did not re-hire “any” of the
older teachers, the Court will construe this group to include Reznikov and Black.

22

Courts in the Second Circuit have taken a “generous” view of adverse employment
actions supporting retaliation claims at the motion to dismiss stage. Ingrassia, 130 F. Supp. 3d at
723 (citing Kelly v. Howard I. Shapiro & Assocs. Consulting Engineers, P.C., 716 F.3d 10, 17
(2d Cir. 2013)). “Any action that ‘could well dissuade a reasonable worker from making or
supporting a charge of discrimination’ may constitute retaliation.” Id. at 724 (quoting LaGrande
v. Decrescente Distrib. Co., 370 F. App’x 206, 212 (2d Cir. 2010)). This generous standard does
not mean, however, that all allegations of retaliatory acts will survive a motion to dismiss.
In their second enumerated cause of action Plaintiffs state in a wholly conclusory manner
that they complained to Defendants about the discriminatory treatment they received and that the
Defendants “intensified the harassment and discrimination.” (Compl. ¶ 166.) Plaintiffs fail to
include any specific facts as to when or how the Defendants’ conduct intensified. Nor do
Plaintiffs include any specific facts linking their complaints to any retaliatory acts. See Buckley
v. New York, 959 F. Supp. 2d 282, 299 (E.D.N.Y. 2013) (dismissing retaliation claim where
plaintiff failed to plead a “ratcheting up” or “increased harassment” beyond mere vague
conclusory allegations).
Plaintiffs do not, for example, allege that they were treated differently than employees
who engaged in similar protected conduct. Cf. Corbett v. Napolitano, 897 F. Supp. 2d 96, 114
(E.D.N.Y. 2012) (noting favorably allegation that employees outside of plaintiff’s protected class
did not face adverse employment actions for engaging in same activity as plaintiff). Nor do
Plaintiffs allege any statements by Defendants referring to—let alone condemning—the
Plaintiffs’ protected activity. See Azeez v. Ramaiah, No. 14-cv-5623, 2015 WL 1637871, at *9
(S.D.N.Y. Apr. 9, 2015) (finding that failure to allege that defendants made statements referring
to plaintiff’s protected activity underscored absence of retaliatory animus). Nor do Plaintiffs

23

allege that Defendants admitted that they took an adverse action against Plaintiffs for improper
reasons. Cf. Stajic v. City of New York, No. 16-cv-1258, 2016 WL 5717573, at *5 (S.D.N.Y.
Sept. 30, 2016) (finding that defendants’ alleged statements that plaintiff’s termination was
unrelated to the quality of her work were plausibly indicative of retaliatory animus). Similarly,
although Lebowitz filed two grievances in September 2014 regarding his denial of his desired
ICT position and cafeteria duty, nothing in the Complaint indicates that any action was taken in
retaliation for those grievances. Indeed, Lebowitz ultimately received the positions he desired.
(Compl. ¶¶ 32, 35.) Accordingly, Plaintiffs’ ADEA, NYSHRL, and NYCHRL retaliation claims
are dismissed. See Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 241-42 (2d Cir. 2007)
(“Notably, the complaint fails to identify any specific acts by defendants against [plaintiff] that
are alleged to have been taken in retaliation for [plaintiff’s] complaints or for her filing of
discrimination charges with the EEOC . . . . We conclude, therefore, that the complaint fails to
state a retaliation claim on behalf of [plaintiff] under the ADEA, the NYSHRL, or the
NYCHRL.”).
B. Black’s FMLA Retaliation Claim
To state an FMLA retaliation claim, Black must plead facts alleging that: (1) he exercised
rights protected under the FMLA; (2) he was qualified for his position; (3) he suffered an adverse
employment action; and (4) the adverse employment action occurred under circumstances giving
rise to an inference of retaliatory intent. See Vaigasi v. Solow Mgmt. Corp, No. 11-cv-5088,
2014 WL 1259616, at *12 (S.D.N.Y. Mar. 24, 2014) (quoting Potenza v. City of New York, 365
F.3d 165, 168 (2d Cir. 2004)).
Black does not plausibly allege a claim of retaliation under the FMLA because he fails to
establish a causal connection between his FMLA leave and any purported adverse action taken

24

against him. A plaintiff may establish a causal connection between protected activity and an
adverse action either directly, by pleading facts showing demonstrating retaliatory animus
directed against the plaintiff by the defendant, or indirectly, by showing that the protected
activity was followed closely by discriminatory treatment or through other circumstantial
evidence such as disparate treatment of fellow employees who engaged in similar conduct. See
Robles v. Cox and Co., Inc., 841 F. Supp. 2d 615, 628 (E.D.N.Y. 2012) (outlining pleading
standard for retaliation claim under Title VII); Corrado v. New York Unified Court Sys., No. 12cv-1748, 2016 WL 660838, at * 17 (E.D.N.Y. Feb. 17, 2016) (applying Title VII standard to
FMLA retaliation claim).
First, Black fails to provide direct evidence of retaliatory animus. Specifically,
O’Mahoney’s comments to a third party in May 2013 that he was going to “get” Black and that
Black knew how to “beat the system” (Compl. ¶ 125), while provocative, do not directly address
Black’s FMLA leave. 6 Further, although Assistant Principal Ford threatened to give Black a
disciplinary letter for his repeated spring absences (id. ¶ 124), there is no mention as to whether a
disciplinary letter was ever issued for this reason. Although a disciplinary letter may constitute
an adverse employment action in the retaliation context, Thomson, 2015 WL 5561209, at *21,
the facts of the Complaint indicate that the hypothetical disciplinary letter would have been in
response to Black’s repeated absences, and not to his FMLA leave.

6

The Court does not construe Black’s sick leave in the spring of 2013 as FMLA leave. Black states that he used his
accrued sick days during that absence. (See Compl. ¶ 113.) The use of paid sick leave is outside the scope of the
FMLA’s coverage. See Higgins v. NYP Holdings, Inc., 836 F. Supp. 2d 182, 194 (S.D.N.Y. 2011) (distinguishing
sick days from FMLA leave). Plaintiffs also do not plead facts indicating Black’s leave in February 2015 falls under
the FMLA. Accordingly, the court cannot determine whether Black “exercised rights protected under the FMLA” as
required to withstand a 12(b)(6) motion. See Vaigasi, 2014 WL 1259616, at *12. Further, the Court notes that
Plaintiffs’ fifth cause of action for FMLA retaliation limits Black’s FMLA leave to the time he took to care for his
mother. (See Compl. ¶ 183.)

25

Second, the length of time between Black’s FMLA leave in the spring of 2012 and any
alleged adverse act is temporally too remote to indirectly demonstrate a causal connection. See
Alexander v. Bd. Of Educ. Of City of New York, No. 15-1959, 2016 WL 2610009, at *2 (2d Cir.
May 6, 2016) (finding that plaintiff could not plausibly allege retaliatory intent because of the
length of time between plaintiff’s FMLA leave and discharge); Ashok v. Barnhart, 289 F. Supp.
2d 305, 314 (E.D.N.Y. 2003) (observing that although there is no bright line as to how much
time may pass, “the interval between a protected activity and adverse action that results in a
finding of retaliation is generally no more than several months”). Moreover, the facts as pleaded
demonstrate that Black received a satisfactory review in December 2012 after his return to SBHS
from FMLA leave, before subsequently receiving a negative review in January 2013. (See
Compl. ¶¶ 110-11.) Such a positive review disrupts the causal connection between Black’s
FMLA leave and any subsequent purported adverse conduct. See Dayes v. Pace University, 2 F.
App’x 204, 208 (2d Cir. 2001) (summary order) (finding no causal connection in a Title VII
action where seven months lapsed between protected activity and a negative review, “especially
given [supervisor’s] intervening positive review”). Finally, the Complaint contains no facts that
indicate that any other teachers took FMLA leave, and as such, Plaintiff cannot establish a causal
connection by demonstrating that he was treated differently than other teachers engaging in the
same protected activity. See Robles, 841 F. Supp. 2d at 628. Accordingly, Black’s FMLA
retaliation claim is dismissed.
IV.

Intentional Infliction of Emotional Distress
To plead a claim of intentional infliction of emotional distress, a plaintiff must allege:

“(1) extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial
probability of causing, severe emotional distress; (3) a causal connection between the conduct

26

and the injury; and (4) severe emotional distress.” Conboy v. AT&T Corp., 241 F.3d 242, 258-59
(2d Cir. 2001) (quoting Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999)). This standard is
“rigorous, and difficult to satisfy.” Corrado v. New York Unified Court Sys., No. 12-cv-1748,
2016 WL 660838, at *19 (E.D.N.Y. Feb. 17, 2016) (quoting Conboy, 241 F.3d at 258). To
sustain a claim, “the alleged conduct must be ‘so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in civilized society.’” Corrado, 2016 WL 660838, at *19 (quoting Stuto, 164
F.3d at 827).
Thus, “it has not been enough that the defendant has acted with an intent which is tortious
or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has
been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to
punitive damages for another tort.” Stuto, 164 F.3d at 827 (quoting Restatement (Second) of
Torts § 46 cmt. d (1965)). The Second Circuit has looked to decisions from New York state
courts for guidance as to what rises to the level of intentional infliction of emotional distress,
sustaining such claims where the pleadings involved some combination of public humiliation,
false accusations of criminal or heinous conduct, verbal abuse or harassment, physical threats,
permanent loss of employment, or actions contrary to public policy. Id. at 828 (collecting cases).
Examples of such egregious conduct include refusing to restore a plaintiff’s electricity unless she
legally separated from her husband; threatening to bring falsified charges against a professor to
coerce his resignation; coercing a confession and resignation through the threat of prosecution;
falsely accusing a person of criminal conduct; falsely accusing someone of being responsible for
an accident that resulted in another person’s death; and making recurring physical threats. Id.
(collecting cases).

27

In contrast, other cases have dismissed claims of IIED involving acts of coercion and
misrepresentation related to employment or disability decisions on the ground that such conduct
was not extreme or outrageous. As the court noted in Stuto, conduct fell fall short of the tort’s
“strict standard” where a state court plaintiff alleged a variety of conduct including being
transferred and demoted for reporting fraud, coerced to leave his job by being told he would
never be allowed to advance, discharged and ordered to leave immediately after reporting alleged
in-house illegal conduct, and forcibly escorted from the building by guards. Id. at 827 (citing
Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303 (1983)). The Stuto court also cited
with approval Huzar v. New York, in which the New York Court of Claims determined that a
correction officer out on disability failed to state a claim for intentional infliction of emotional
distress where he was threatened that he would be fired if he did not return to work despite a
legitimate job-related disability that kept him from working and was threatened with the loss of
his compensation and medical benefits. Id. at 828 (citing Huzar v. New York, 156 Misc. 2d 370
(N.Y. Ct. Cl. 1992)).
Here, Plaintiffs allege that they were subjected to negative evaluations and rude and
vindictive comments, such as being told that they were in their “f**k you years” earning “f**k
you money” and to “die already,” and that they were repeatedly told that Defendants wanted to
rid the school of senior teachers. (See Compl. ¶¶ 21, 40, 78, 83.) At one point, Reznikov felt so
bullied that she could barely walk. (Id. ¶ 70.) Such conduct, while certainly insulting and
inappropriate, simply does not rise to the level of “outrageous.” Accordingly, Defendants’
motion to dismiss Plaintiffs’ claims of intentional infliction of emotional distress is granted.

28

V.

Hostile Work Environment
The Complaint, which is fifty pages long and which has been amended three times, does

not plead a discrete hostile work environment claim. However, Plaintiffs state throughout the
Complaint that they were subjected to a hostile work environment, and at a June 2, 2016 premotion conference in this case, Plaintiffs argued that the Court should construe the Complaint as
alleging a hostile work environment claim. Defendants move to dismiss Plaintiffs’ hostile work
environment claims under federal, state, and city law to the extent the Court discerns them.
(Defs.’ Mem. Supp. 9.)
A. Title VII, ADEA, and NYSHRL Hostile Work Environment Claims
The standards for evaluating hostile work environment claims are identical under Title
VII, the ADEA, and the NYSHRL. See Thomson, 2015 WL 5561209, at *13 (citing Kelly, 716
F.3d at 14) (same standard under Title VII and the NYSHRL); Ingrassia, 130 F. Supp. 3d at 722
(applying Title VII pleading standard to ADEA claim). To plead a hostile work environment
claim, “a plaintiff must show that ‘the workplace is permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.’” Thomson, 2015 WL 5561209, at *13
(citing Littlejohn, 795 F.3d at 320-21). This standard has both objective and subjective
components: “the conduct complained of must be severe or pervasive enough that a reasonable
person would find it hostile or abusive, and the victim must subjectively perceive the work
environment to be abusive.” Littlejohn, 795 F.3d at 321 (quoting Raspardo v. Carlone, 770 F.3d
97, 114 (2d Cir. 2014)). A court assesses a work environment’s hostility based on the totality of
the circumstances. See Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). In assessing the totality of the circumstances, a court

29

might consider factors including: (1) the frequency of the discriminatory conduct; (2) its
severity; (3) whether it is threatening and humiliating, or a mere offensive utterance; and (4)
whether it unreasonably interferes with an employee’s work performance. Id. As a general rule,
to constitute a hostile work environment, “incidents must be more than episodic; they must be
sufficiently continuous and concerted in order to be deemed pervasive.” Sotomayor v. City of
New York, 862 F. Supp. 2d 226, 261 (E.D.N.Y. 2012), aff’d, 713 F.3d 163 (2d Cir. 2013)
(quoting Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002)). Isolated acts, “unless very
serious, do not meet the threshold of severity or pervasiveness.” Id. (quoting Alfano, 294 F.3d at
374).
1. Hostile Work Environment as to Reznikov
Reznikov adequately alleges a hostile work environment claim. Plaintiffs plead facts
indicating that Defendants and others at SBHS repeatedly threatened her with her job and her
license, told Reznikov that they wanted to rid the school of senior teachers, slammed the door in
her face, told her she was a disgrace, and threatened and ultimately gave Reznikov negative
ratings because she needed to leave the school system. (See Compl. ¶¶ 70-71, 78, 83, 85, 95.)
On at least one occasion, Reznikov felt “scared and bullied to the point that she could barely
walk.” (Id. ¶ 70.) Under these facts, a reasonable person could objectively perceive the working
environment to be a hostile one, and Reznikov has also pleaded facts demonstrating that she
subjectively perceived it to be so. Accordingly, Reznikov’s federal and state hostile work
environment claims will proceed.
2. Hostile Work Environment as to Black and Lebowitz
Even if discriminatory behavior is not directed at a particular plaintiff, it may still
contribute to an overall hostile work environment. See Patane, 508 F.3d at 114 (determining that

30

defendant’s behavior contributed to hostile work environment even though it was not specifically
directed toward plaintiff). Nevertheless, cases in the Second Circuit have declined to discern a
claim of hostile work environment as to one plaintiff even where a hostile work environment was
successfully pleaded as to another plaintiff. See Kassner, 496 F.3d at 241 (finding that
allegations of hostile work environment as to one plaintiff warranted proceeding to discovery,
whereas allegations as to second plaintiff were too vague to support a hostile work environment
claim).
In contrast to the Complaint’s allegations as to Reznikov, Lebowitz and Black’s
allegations concerning their hostile work environment claims are largely conclusory. Plaintiffs
contend that older teachers were “subjected to unfounded discipline, baseless ratings,
harassment, and strong-armed into retirement.” (Compl. ¶ 28.) Plaintiffs also point to several
discrete occurrences in which they were insulted, including being told on two or three occasions
that they were in their “f**k you years” and earning “f**k you money” (id. ¶¶ 21, 40); being
subjected to an “ongoing” joke about Lebowitz still having a job (id. ¶ 22); being the subject of
an email to staff indicating that Lebowitz and other senior teachers were receiving teacher
improvement plans, resulting in ridicule from the younger teachers (id. ¶ 34); and receiving a
number of unsatisfactory ratings and evaluations (e.g., id. ¶¶ 24, 30, 39, 42, 44, 111, 131, 139,
149). Plaintiffs further allege that, in response to his unfounded negative evaluations, Black
suffered psychological effects including anxiety, depression, and PTSD. (Id. ¶¶ 112-118, 136.)
Black also alleges that, while he was on medical leave in May 2015, O’Mahoney baselessly sent
an investigator to Black’s home to ascertain whether Black was, in fact, ill. (Id. ¶ 155.)
Defendants’ alleged negative evaluations and criticism of Lebowitz and Black are
insufficient to support a hostile work environment. See, Trachtenberg, 937 F. Supp. 2d at 472-

31

73 (finding pleadings were insufficient to support claim of hostile work environment where
plaintiff teacher alleged that she was subjected to excessive scrutiny; that principal would
frequently stand near her and stare at her to intimidate her; and that plaintiff received negative
performance evaluations and letters containing “scurrilous charges,” was moved to a poorly
ventilated, windowless office, and was refused training opportunities). In addition, Plaintiffs’
allegations of ridicule by other teachers do not amount to anything more than “petty slight[s] and
trivial inconvenience[s],” Awad, 2014 WL 1814114, at *7 (quoting Hernandez v. Kaisman, 957
N.Y.S.2d 53, 58 (1st Dep’t 2012)), and Plaintiffs do not plead facts that would lead the Court to
discern that such insults were severe and pervasive. See Alfano, 294 F.3d at 379 (collecting
cases providing examples of severe and pervasive conduct); see also Sotomayor, 862 F. Supp. 2d
at 261 (observing that, unless very serious, incidents must be more than episodic). Although
Black alleges facts that would indicate that he subjectively perceived his work environment to be
hostile, including that he experienced PTSD and anxiety, they do not plead facts showing that it
was objectively so. Accordingly, this claim is dismissed as to Lebowitz and Black.
B. Hostile Work Environment under New York City Human Rights Law
To state a hostile work environment claim under the NYCHRL, a plaintiff need only
allege differential treatment of any degree based on a discriminatory motive. Awad, 2014 WL
1814114, at *7 (citing Gorokhovsky v. N.Y.S. Hous. Auth., 552 F. App’x 100, 102 (2d Cir.
2014)). “Even a single comment may be actionable under [the] NYCHRL ‘in appropriate
circumstances.’” Id. (quoting Gorokhovsky 552 F. App’x at 102.) A claim under the NYCHRL
“should only be dismissed if plaintiff does not allege behavior by defendants that ‘cannot be said
to fall within the broad range of conduct that falls between severe and pervasive on the one hand
and a petty slight or trivial inconvenience on the other.’” Id. (quoting Hernandez, 957 N.Y.S.2d

32

at 58-59). Plaintiffs repeatedly allege that they were treated differently from younger teachers
because of their age, including being evaluated under less advantageous circumstances, having
access to fewer resources at the school, being subjected to insult and ridicule, and receiving
poorer evaluations. Such differential treatment is more than a “petty slight or trivial
inconvenience.” Accordingly, the Court will allow Plaintiffs’ claims of hostile work
environment under the NYCHRL to proceed.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is granted, in part, and denied,
in part. Defendants’ motion is granted as to: Lebowitz’s ADEA and NYSHRL age
discrimination claims; Reznikov’s disability discrimination claims under the ADA, NYSHRL,
and NYCHRL; Reznikov’s national origin discrimination claims under Title VII, NYSHRL, and
NYCHRL; Plaintiffs’ retaliation claims under the ADEA, NYSHRL, and NYCHRL; Black’s
FMLA retaliation claim; Black and Lebowitz’s federal and NYSHRL hostile work environment
claims; and Plaintiffs’ IIED claims. Defendants’ motion is denied as to: Reznikov and Black’s
ADEA and NYSHRL age discrimination claims; Plaintiffs’ NYCHRL age discrimination
claims; Reznikov’s ADEA and NYSHRL hostile work environment claims; and Plaintiffs’
NYCHRL hostile work environment claims.

These claims would be better tested at summary

judgment.

SO ORDERED:
/s/ LDH
LASHANN DEARCY HALL
United States District Judge

Dated: Brooklyn, New York
March 31, 2017
33