Molina v. John Jay Institute For Justice and Opportunity/City University of New York et al

Filing 83

OPINION AND ORDER re: 61 MOTION to Dismiss the First Amended Complaint. filed by Research Consortium of John Jay, John Jay Institute For Justice and Opportunity/City University of New York, 64 MOTION to Dismiss Amended Com plaint. filed by Ann Jacobs, 66 MOTION to Dismiss the Amended Complaint. filed by Research Foundation For CUNY, Susan Batkin, Katheryne Ralph. For the foregoing reasons, Defendants' motions to dismiss Plaintiff's First Amended Complaint are GRANTED. The Clerk of Court is respectfully requested to terminate ECF Nos. 61, 64, 66, to mail a copy of this Order to pro se Plaintiff, and to close the case. SO ORDERED. (Signed by Judge Dale E. Ho on 9/24/2024) (tg) Transmission to Docket Assistant Clerk for processing. Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JUAN A. MOLINA,
Plaintiff,
v.

23 Civ. 1493 (DEH)

JOHN JAY INSTITUTE FOR JUSTICE AND
OPPORTUNITY/CITY UNIVERSITY OF
NEW YORK, et al.,

OPINION
AND ORDER

Defendants.

DALE E. HO, United States District Judge:
This is an action brought by Plaintiff Juan A. Molina against the John Jay Institute for
Justice and Opportunity/City University of New York (“CUNY”), Research Consortium of John
Jay, Research Foundation of The City University of New York (“RF CUNY”), and individual
Defendants Ann Jacobs, Susan Batkin, and Katheryne Ralph. 1 Plaintiff brings claims of
retaliation under the Federal False Claims Act (“FCA”), 2 New York False Claims Act (the
“NYFCA”); 3 and discrimination on the basis of race and sexual orientation, hostile work
environment, and retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”), 4 Civil
Rights Act of 1866, 42 U.S.C. § 1981 (“Section 1981”), the New York State Human Rights Law
(“NYSHRL”), 5 and the New York City Human Rights Law (“NYCHRL”). 6 Before the Court

1

See First Am. Compl. (“FAC”), ECF No. 58.

2

31 U.S.C. § 3729, et seq.

3

N.Y. State Fin. Law §§ 187-194.

4

42 U.S.C. § 2000e.

5

N.Y. Exec. Law § 290 et seq.

6

N.Y.C. Admin. Code § 8-101.

are Defendants’ three unopposed motions to dismiss. 7 For the reasons set forth below,
Defendants’ motions to dismiss are GRANTED.
BACKGROUND
“The following facts are drawn from the [Amended] [C]omplaint and are assumed to be
true for the purposes of this motion.” 8
I.

The Parties
Plaintiff Molina “identifies as an Afro-Latino pansexual male,” who has a bachelor’s

degree and “over 20 years of applicable professional experience.” 9 Plaintiff has “completed the
coursework for a master’s in public administration from NYU.” 10 Plaintiff is a resident of New
Jersey. 11 Plaintiff has two prior convictions and “he was incarcerated from 1998 to 2007 and
again from 2016 to 2019.” 12
Defendant John Jay Institute for Justice and Opportunity (the “Institute”) is part of the
public City University of New York (“CUNY”), which provides “a continuum of services within
correctional facilities and in the community that engages with system impacted people wherever
they are in their academic journey, connecting them to programs at CUNY and services within

7

First, John Jay Institute for Justice and Opportunity/City University of New York and Research
Consortium of John Jay filed a motion to dismiss, see ECF No. 61. Second, Defendant Ann
Jacobs filed a motion to dismiss, see ECF No. 64. Third, Defendants Susan Batkin, Katheryne
Ralph, and RF CUNY filed a motion to dismiss, see ECF No. 66.
8

Cooper v. Templeton, 629 F. Supp. 3d 223, 228 (S.D.N.Y. 2022), aff’d sub nom. Cooper v.
Franklin Templeton Invs., No. 22 Civ. 2763, 2023 WL 3882977 (2d Cir. June 8, 2023). All
references to Rules are to the Federal Rules of Civil Procedure. In all quotations from cases, the
Court omits citations, alterations, emphases, internal quotation marks, and ellipses, unless
otherwise indicated.
9

FAC ¶¶ 6, 10, 11.

10

Id. ¶ 10.

11

Id. ¶ 9.

12

Id. ¶ 8.
2

New York City.” 13 The Institute has between 40 and 50 employees, and employed Plaintiff and
individual Defendants Jacobs, Batkin, and Ralph. 14
Defendant Research Consortium of John Jay “operates under John Jay College’s[] Office
for the Advancement of Research” and is part of the public CUNY, with the purpose of
addressing “challenges of the criminal justice community and protecting the public’s safety.” 15
Defendant RF CUNY is a private 501(c)(3) organization based in New York and a
separate legal entity distinct from CUNY. 16 RF CUNY “processed the I[nstitute]’s payroll;
presided over the administration of the I[nstitute]’s budgets; implemented/enforced personnel
decisions; and implemented/enforced complaint procedures that involved employees who
worked for or provided services at the I[nstitute].” 17 RF CUNY is the employer of record for
Plaintiff and individual Defendants Batkin and Ralph. 18 RF CUNY “dictated the terms and
conditions” of individual Defendant Jacobs’ employment and Jacobs acted as an agent of RF
CUNY. 19
Individual Defendant Ann Jacobs is a “Caucasian homosexual woman” without a record
of conviction, and served as the Executive Director of the John Jay Institute during Plaintiff’s

13

Id. ¶ 15.

14

Id. ¶¶ 16, 17.

15

Id. ¶ 29.

16

Id. ¶¶ 18-20.

17

Id. ¶ 24.

18

Id. ¶ 25.

19

Id. ¶¶ 26-27.
3

employment. 20 Jacobs was Plaintiff’s supervisor throughout his term of employment from May
2019 to November 2021 with the “ability to hire, fire, promote and or demote P[laintiff].” 21
Individual Defendant Susan Batkin is a “Caucasian cis-gendered/heterosexual woman”
without a record of conviction, and worked as Deputy Director of Programs at the Institute. 22
Batkin was Plaintiff’s supervisor from September 2019 to November 5, 2021 with the “ability to
hire, fire, promote and or demote P[laintiff].” 23 Batkin was directly supervised by Jacobs. 24
Individual Defendant Katheryne Ralph is an “African American cisgendered/heterosexual woman” without a record of conviction, and worked as the Director of
Human Resources at the Institute. 25 Ralph had the “ability to hire, fire, promote and or demote
P[laintiff]” and reported directly to Jacobs. 26
II.

Refusal to Hire Claim
Plaintiff applied in March 2019 for the Director of Career Pathways position at the

Institute and interviewed with Defendant Jacobs and Sasha Graham. 27 Plaintiff had previously
worked before for CUNY’s College Initiative Program as an academic counselor from 2008 to
2011. 28 Jacobs determined that Plaintiff was not qualified for the Director position and instead
hired Drew Oldfield, a Caucasian heterosexual male with a high school diploma and a prior

20

Id. ¶¶ 40, 45, 46.

21

Id. ¶¶ 41, 43.

22

Id. ¶¶ 32, 37, 38.

23

Id. ¶¶ 33, 34.

24

Id. ¶ 35.

25

Id. ¶¶ 48, 55, 56.

26

Id. ¶¶ 50-53.

27

Id. ¶¶ 64-65.

28

Id. ¶ 61.
4

conviction. 29 Jacobs directed Plaintiff to the Mentoring and Alumni Coordinator position, which
is less senior and paid “$25,000 less,” 30 presumably per year. Jacobs ultimately hired Plaintiff
for the Mentoring and Alumni Coordinator position, and Plaintiff worked in that title throughout
his employment at the Institute from May 6, 2019 until November 24, 2021. 31 Ralph conveyed
to Plaintiff that Jacobs commented to Ralph that “[Plaintiff’s] pants were too tight; [Plaintiff]
was flamboyant; and that [Plaintiff] was rude and catty,” and “these were the reasons that
[Jacobs] did not initially hire him for the Director position.” 32 Plaintiff believes that “[a]s a
homosexual woman, J[acobs] knew about the invidiously discriminatory connotations of the
term flamboyant, and the stereotypical ascription of unprofessionalism associated with
[Plaintiff]’s presentation.” 33
III.

Failure to Promote Claim
Plaintiff worked under Carlos Quintana and Antonia Salerno until Quintana resigned in

May 2021. 34 As Mentoring and Alumni Coordinator, Plaintiff had the following responsibilities:
“develop curriculum for peer mentor training; train, manage and coach professional development
of peer mentors[;] leverage relationships with partners to drive program participation; create
digital and media content for I[nstitute] platforms; form alumni network and community
advisory boards; and represent the I[nstitute] at events throughout New York.” 35 Quintana
encouraged Plaintiff to apply for a “Director position” again and believed that “Plaintiff was an

29

Id. ¶¶ 67, 70, 71, 74.

30

Id. ¶¶ 67-68.

31

Id. ¶¶ 89-90.

32

Id. ¶ 84.

33

Id. ¶ 82.

34

Id. ¶¶ 95, 97.

35

Id. ¶ 94.
5

ideal fit for the position, based on [Plaintiff]’s performance, experience and commitment to the
participants.” 36 When Plaintiff applied in May 2021 following Quintana’s resignation, Jacobs
would not interview Plaintiff. 37 After Solerno and eventually Batkin resigned, Plaintiff
continued to pursue a Director or other managerial position between June 2021 and November
2021. 38 Defendants did not fill the Director position until Plaintiff left the Institute, during
which time Plaintiff performed his own job functions along with those of Quintana and
Salerno. 39 Plaintiff performed the work of three people for at least four months without an
increase in title or pay. 40 After Plaintiff left the Institute, Jacobs and Ralph filled the position
with an African American heteronormative-presenting male, who had less professional
experience than Plaintiff and did not have a criminal record. 41
Ralph conveyed to Plaintiff that Jacobs would not promote him for the same reasons that
he was not initially hired, and also so that he would not “be her direct report in a
Director/Managerial capacity.” 42 “At all times relevant, all of J[acobs’] direct reports presented
in a heteronorm[ative] fashion and did not have records of prior convictions.” 43
IV.

Hostile Work Environment Claim
Thirteen Black or Latino staff persons who have complained to Plaintiff, Jacobs, Batkin,

36

Id. ¶¶ 97-98.

37

Id. ¶ 99.

38

Id. ¶¶ 100-101.

39

Id. ¶¶ 184-186.

40

Id. ¶ 179.

41

Id. ¶¶ 88, 102.

42

Id. ¶ 84

43

Id. ¶ 87. The Court notes that Jacobs hired Oldfield for the initial opening of the Director
position when Plaintiff first applied in March 2019, and the Complaint alleges that Oldfield does
have a criminal conviction. Oldfield was terminated soon after his hiring and before Plaintiff
started his position in May 2019.
6

or Ralph about a racially hostile work environment and/or discrimination have resigned, been
terminated, or constructively discharged. 44 Plaintiff and the thirteen former employees “had one
of any number of the following complaints about the individually named Defendants: Defendants
refused to consider or hire them for managerial positions; Defendants insisted on paying them
lesser salaries; Defendants denied them the resources to perform their job functions; and
Defendants demeaned them, used discriminatory language and openly discredited their work.” 45
As HR director, Ralph did not report or investigate any of the thirteen former employees’
discrimination claims. 46 Nor did Ralph report or investigate Jacobs’ comments regarding
Plaintiff’s sexual orientation. 47
Batkin “frequently ignored, belittled and disrespected minority staff members.” 48
Specifically, Batkin interrupted Plaintiff at meetings when he spoke, diminished Plaintiff’s
achievements amongst staff and management, and accused Plaintiff of failing to complete
assignments that Plaintiff alleges he completed. 49 “On more than one occasion, P[laintiff] heard
Defendants make the comment that he and others with prior convictions ought to be glad they
had jobs.” 50
V.

Retaliation Claims
In June 2021, Plaintiff complained to Batkin “about her disparate treatment and

44

Id. ¶¶ 106-107.

45

Id. ¶ 111.

46

Id. ¶ 108.

47

Id. ¶¶ 85-86.

48

Id. ¶ 122.

49

Id. ¶ 123.

50

Id. ¶ 125. The Court notes that unlike other allegations, Plaintiff did not specify which
individual Defendants made the comments.
7

microaggressions towards racial minorities and or employees with prior convictions at the
Institute.” 51 Around the same time, Plaintiff had a dispute with Batkin regarding which
subordinates to “write up.” 52 On or around July 15, 2021, Plaintiff submitted his work plan to
Batkin, and Batkin responded “insinuat[ing] that [Plaintiff] had used sarcastic language to
describe staff morale.” 53 Plaintiff resubmitted his work plan following Batkin’s instructions on
the tone on or around July 18, 2021, but Batkin “ignored” it. 54
On or around August 23, 2021, Jacobs pressured staff to input inaccurate performance
data into the Salesforce system to ensure more funding going forward. 55 Between August 31,
2021, and September 2, 2021, Plaintiff reported his concerns about the veracity of data submitted
to the District Attorney’s Office of New York and pointed out the disparities between the
number of participants actually served and the data entered into Salesforce. 56 On or around
September 2, 2021, Batkin “wrote an email where she stated that she consistently inflated the
number of mentors to mentees, and that she padded the budget to [e]nsure more funding.” 57
Another staff member, Nakia Greene, accused Jacobs of demanding that staff record
performance using Excel instead of Salesforce to avoid leaving a paper trail on Salesforce. 58

51

Id. ¶127.

52

Id. ¶ 129.

53

Id. ¶¶ 132-133.

54

Id. ¶137.

55

Id. ¶¶ 156, 158.

56

Id. ¶¶157-158.

57

Id. ¶ 160.

58

Id. ¶ 206.
8

Plaintiff alleges that they have only provided services to approximately 150 clients, even though
Jacobs, Batkin, and Ralph reported that they had provided services to 753 clients. 59
On or around September 9, 2021, Plaintiff “approached Jacobs with the Voices of
Change Initiative,” to which Jacobs responded with “feigned enthusiasm.” 60 Batkin accused
Plaintiff of proceeding without a budget and inappropriately soliciting other units for funds,
“even though Jacobs initially approved” the Initiative. 61
On September 17, 2021, Plaintiff complained of discrimination in an email and noted that
“had he been a 57 year old white male or female, he would have been promoted by BATKIN and
JACOBS based on his credential, job experience and the additional responsibilities he had
performed.” 62 Besides HR Director Ralph, all other direct reports under Batkin and Jacobs
during the relevant time were white. 63 None of the direct reports under Batkin or Jacobs had
prior convictions. 64 In the same email, Plaintiff pointed out that the Institute lost five employees
of color under Batkin’s supervision in the past year. 65 Plaintiff concluded the email stating that
he sought mediation with Batkin and that he sought to file a discrimination complaint with Ralph
or RF CUNY. 66 Plaintiff sought discrimination complaint forms from Ralph. 67 Within days of
the September 17th Complaint, Batkin removed the staff persons under Plaintiff’s supervision

59

Id. ¶ 208.

60

Id. ¶ 161-162.

61

Id. ¶¶ 164-165.

62

Id. ¶ 167.

63

Id. ¶ 168.

64

Id.

65

Id. ¶ 169.

66

Id.

67

Id. ¶ 170.
9

and removed the counseling function from Plaintiff’s job. 68 Batkin justified these decisions
based on Plaintiff’s failure to provide her with his work plan and his poor job follow-through. 69
Plaintiff alleges that he submitted his work plan on time and that Jacobs and Batkin continued to
increase his workload until he complained of discrimination. 70 Plaintiff later followed up with
Ralph and RF CUNY about his complaint, but RF CUNY Labor and Employment Relations
stated that they had not received his complaint and Ralph stated that it is not the policy of the
Institute or RF CUNY to further investigate the complaint since Batkin’s last day was November
1, 2021. 71
Plaintiff then filed a complaint with the State Division of Human Rights. 72 On or around
November 18, 2021, Plaintiff continued to complain about discrimination, and Jacobs scheduled
a meeting with him. 73 Jacobs missed the meeting and blamed Plaintiff via email. 74 On
November 24, 2021, Jacobs met with Plaintiff. 75 At the meeting, Plaintiff complained again of
discrimination and false reporting, and Jacobs demanded that Plaintiff hand in his letter of
resignation by close of business that day. 76 When Plaintiff tendered his resignation as requested
on November 24, 2021, both Jacobs and Ralph told him that his discrimination complaints had
not been investigated. 77
68

Id. ¶¶ 171-173.

69

Id. ¶¶ 174-75.

70

Id. ¶ 175.

71

Id. ¶¶ 187-189.

72

Id. ¶ 190.

73

Id. ¶ 197.

74

Id. ¶ 198.

75

Id. ¶ 199.

76

Id. ¶¶ 200-201.

77

Id. ¶ 210.
10

By the time Jacobs left the Institute on or around December 14, 2022, at least 95% of the
43 staff members employed by CUNY/ RF CUNY had resigned or were terminated by Jacobs in
the span of 18 months. 78 At least 70 percent of the staff that left were Black and/or Latino. 79
For example, Jacobs and Ralph fired a Black staff member when the staff member made repeated
attempts to seek a higher position, even though Jacobs and Ralph praised the employee’s
performance before the vacancy and did not criticize the employee’s performance when firing
her. 80
VI.

Procedural History
Plaintiff filed suit against his former employers on February 24, 2023. 81 On August 15,

2023, Plaintiff filed his First Amended Complaint, the operative pleading in this suit.82 On
September 19, 2023, Defendants separately filed three motions to dismiss now before the
Court. 83 On September 20, 2023, Plaintiff sought and was granted a 22-day extension to oppose
the motions (i.e., until October 25). 84 On October 11, 2023, the case was reassigned to the
undersigned. 85 On October 20, 2023, Plaintiff sought a second extension, this time until
November 10, 2023, which the Court also granted. 86 On November 8, 2023, Plaintiff’s counsel

78

Id. ¶¶ 202, 211.

79

Id. ¶ 203.

80

Id. ¶¶ 192-194.

81

See ECF No. 4.

82

See generally FAC.

83

John Jay Institute for Justice and Opportunity/City University of New York and Research
Consortium of John Jay filed motion to dismiss, see ECF No. 61. Defendant Ann Jacobs filed
motion to dismiss, see ECF No. 64. Defendant Susan Batkin, Katheryne Ralph, and RF CUNY
filed motion to dismiss, see ECF No. 66.

84

See ECF No. 73.

85

See Oct. 11, 2023, Min. Entry.

86

See ECF Nos. 75, 77.
11

notified the Court that Plaintiff was in the process of retaining new counsel, and requested an
additional 90 days to oppose the motions to dismiss, which the Court granted in part, giving
Plaintiff an additional 60 days (or until January 8, 2024) to oppose the motions to dismiss. 87
Plaintiff was apprised that “no further extensions [would] be granted.” 88 Ultimately, Plaintiff did
not retain new counsel, and did not file a response brief by January 8, 2024. 89 The Court deemed
the motions fully briefed on January 10, 2024. 90 On January 12, 2024, the Court granted
Plaintiff’s counsel’s motion to withdraw. 91
LEGAL STANDARDS
“To survive 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.’” 92 The Court accepts “all
[non-conclusory] factual allegations as true, and draw[s] all reasonable inferences in the
plaintiff’s favor.” 93 “In assessing the complaint, [a court] must construe it liberally, accepting all
factual allegations therein as true and drawing all reasonable inferences in the plaintiffs’
favor.” 94 However, a court must disregard any “conclusory allegations, such as ‘formulaic
recitations of the elements of a cause of action.’” 95

87

See ECF Nos. 78, 79.

88

See ECF No. 79.

89

See ECF No. 80.

90

Id.

91

See ECF No. 82.

92

Sacerdote v. N.Y. Univ., 9 F.4th 95, 106 (2d Cir. 2021) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)).
93

Francis v. Kings Park Manor, Inc., 992 F.3d 67, 72 (2d Cir. 2021).

94

Sacerdote, 9 F.4th at 106-07.

95

Id. at 107 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
12

In considering a motion to dismiss, a court must accept as true all well-pleaded facts
alleged in the complaint and must draw all reasonable inferences in the plaintiff’s favor. 96 A
complaint need not make “detailed factual allegations,” but it must contain more than “a
formulaic recitation of the elements of a cause of action.” 97 While all allegations contained in
the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” 98
“A case 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.” 99 “A plaintiff
asserting subject matter jurisdiction has the burden of proving by a preponderance of the
evidence that it exists.” 100
Moreover, “[a] document filed pro se is to be liberally construed and a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal pleadings
drafted by lawyers.” 101 Here, Plaintiff’s then-counsel drafted and filed Plaintiff’s First Amended
Complaint, but Plaintiff is now proceeding pro se. 102 Because a lawyer “drafted” the “formal
pleadings” in this matter, it does not have “to be liberally construed.” 103 Nevertheless, out of an
abundance of caution due to Plaintiff’s now pro se status, the Court still liberally construes the
pleadings 104 and interprets them to raise the “strongest [claims] that they suggest.” 105 Even so, a
96

Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007).

97

Iqbal, 556 U.S. at 678.

98

Id.

99

Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

100

Id.

101

Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008) (emphasis added).

102

See ECF No. 82.

103

Boykin v. KeyCorp, 521 F.3d at 214.

104

See Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009).

105

Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis in original).
13

court must dismiss a complaint that does not plead sufficient facts “to state a claim to relief that
is plausible on its face.” 106 To state a claim, a plaintiff must show “more than a sheer possibility
that a defendant has acted unlawfully” 107 and cannot rely on mere “labels and conclusions” to
support a claim. 108 In other words, “the Court’s duty to liberally construe a [pro se] plaintiff’s
complaint is not the equivalent of a duty to re-write it.” 109 If a pro se plaintiff has not pled
sufficient facts to state a claim that is plausible on its face, a court must dismiss his complaint.110
DISCUSSION
Plaintiff brings claims of racial and sexual orientation discrimination under Title VII,
Section 1981, and various state and city law provisions. The Court considers each in turn below.
I.

Timeliness of Refusal to Hire Claim

As a threshold matter, the Court considers CUNY’s argument that Plaintiff’s refusal to
hire allegations are time-barred under Title VII. 111 It is well-established that under Title VII,
plaintiffs must file a complaint with the EEOC or New York State Division of Human Rights
within 300 days of the alleged discriminatory act. 112 CUNY contends that the refusal to hire
claim is time-barred because Plaintiff did not file “any administrative charge or claim within 300

106

Twombly, 550 U.S. at 570.

107

Iqbal, 556 U.S. at 678.

108

Twombly, 550 U.S. at 555.

109

Thomas v. N.Y.C. Dep’t of Educ., No. 15 Civ. 8934, 2016 WL 4544066, at *2 (S.D.N.Y. Aug.
31, 2016).
110

See Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011).

111

CUNY Mem. in Support of Mot. to Dismiss (“CUNY Mem.”) 14-15, ECF No. 62. Plaintiff
does not seek redress for refusal to hire claim under other statutes, see FAC ¶¶ 213-223.
Accordingly, the Court cabins its timeliness analysis to Title VII.

112

See 42 U.S.C. § 2000e-5(e)(1); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109
(2002); Cetina v. Longworth, 583 F. App’x 1, 2 (2d Cir. 2014).
14

days of the alleged 2019 refusal to hire.” 113 Here, Plaintiff filed two administrative claims on
November 23, 2021, and June 22, 2022, both dates that are well beyond the 300-day window. 114
Plaintiff’s refusal to hire claim is therefore untimely. Accordingly, the Court dismisses
Plaintiff’s Title VII refusal to hire claim as to all Defendants.
II.

Discrimination Claims
A.

Title VII and Section 1981 115

Title VII “prohibits employment discrimination on the basis of race, color, religion, sex
[including sexual orientation], 116 or national origin.” 117 Section 1981 prohibits discrimination
“on account of [a person’s] race, ancestry, or ethnic characteristics,” but not sexual orientation or
criminal history. 118 While Plaintiff alleges discrimination on the basis of criminal history, Title
VII “do[es] not protect against employment discrimination based upon a prior conviction.” 119
Where, as here, the plaintiff does not purport to present “direct evidence of
discrimination” but instead relies on circumstantial evidence of intent, his complaint must
instead “be plausibly supported by facts alleged in the complaint [] that the plaintiff is a member

113

CUNY Mem. 14.

114

See Lawson Decl., ECF Nos. 55-1, 55-2.

115

Courts apply the same standards in Title VII cases as in cases brought under 42 U.S.C. §
1981. See Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000); Cadet v.
All. Nursing Staffing of N. Y., Inc., 632 F. Supp. 3d 202, 222 (S.D.N.Y. 2022) (“Hostile work
environment, disparate treatment, and retaliation claims are analyzed in the same manner and
under the same tests under both Title VII and Section 1981.”). Accordingly, throughout its
analysis of Plaintiff’s federal claims, the Court cites both Title VII and Section 1981 caselaw.
116

A person’s sexual orientation is a protected characteristic under Title VII, since it falls within
the protected characteristic of a person’s sex. See Bostock v. Clayton Cnty., 590 U.S. 644
(2020).

117

Ricci v. DeStefano, 557 U.S. 557, 577 (2009).

118

Zemsky v. City of New York, 821 F.2d 148, 150 (2d Cir. 1987).

119

See McClarence v. Int’l Union of Operating Engineers Loc. Union, No. 16 Civ. 6614, 2017
WL 3887883, at *2 (E.D.N.Y. Sept. 5, 2017).
15

of a protected class, was qualified, suffered an adverse employment action, and has at least
minimal support for the proposition that the employer was motivated by discriminatory
intent.” 120 “Generally speaking, a plaintiff’s burden of establishing a prima facie case in the
context of employment discrimination law is minimal.” 121
The Court considers each of Plaintiff’s discrimination claims based on his race and
sexual orientation under Title VII, Section 1981, NYSHRL and NYCHRL, as follows: first, the
Court considers his failure to promote claims, and then his hostile work environment claims.
1.

Failure to Promote Claim
a.

Legal Standards

For a plaintiff to establish a claim for failure to promote under Title VII, 122 he must
demonstrate that “(1) [he] is a member of a protected class; (2) [he] applied and was qualified for
a job for which the employer was seeking applicants; (3) [he] was rejected for the position; and
(4) the position remained open and the employer continued to seek applicants having the
plaintiff’s qualifications.” 123 Under the second prong, “the plaintiff must allege that she or he
applied for a specific position or positions and was rejected therefrom, rather than merely
asserting that on several occasions she or he generally requested promotion,” 124 or that “(1) the
vacancy at issue was not posted, and (2) the employee either had (a) no knowledge of the
vacancy before it was filled or (b) attempted to apply for it through informal procedures

120

Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015).

121

Collins v. N.Y.C. Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002).

122

To state a claim for a failure to promote claim under NYSHRL and NYCHRL, the caselaw
mirrors that under Title VII.

123

Petrosino v. Bell Atl., 385 F.3d 210, 226 (2d Cir. 2004); accord Brown v. Coach Stores, Inc.,
163 F.3d 706, 710 (2d Cir. 1998).

124

Clarke v. Leading Hotels of the World, Ltd., No. 15 Civ. 8, 2015 WL 6686568, at *3
(S.D.N.Y. Oct. 29, 2015) (quoting Brown, 163 F.3d at 710).
16

endorsed by the employer.” 125 This latter exception is narrow because this application
requirement “protects employers from the unfair burden of having to keep track of all employees
who have generally expressed an interest in promotion and to consider each of them for any
opening.” 126 The Complaint must also contain “a description of the responsibilities or duties” of
the position “from which one could infer that the plaintiff was qualified for that position.” 127
b.

Application

The parties do not dispute that Plaintiff is a member of a protected class. 128 CUNY
contests the second element, arguing that Plaintiff does not specify “which precise position(s) he
supposedly applied for—or whether he submitted any purported ‘application’ at all,” and does
not allege that he was qualified. 129 Defendants also argue that Plaintiff does not adequate allege
facts to give rise to an inference of discrimination. 130
Plaintiff’s qualifications. Plaintiff does not clearly state which specific position(s) he
applied for in May 2021. He states that he “applied for the Director position again,” 131 and that
he continued to pursue the “Director/managerial positions,” 132 “either informally or formally,”
between June 2021 and November 2021. 133 But it is unclear from the face of the FAC which
position(s) Plaintiff is referencing. Plaintiff’s alleges that he applied “again” for a position,

125

Petrosino, 385 F.3d at 226-27.

126

Id. at 227.

127

Mendelsohn v. Univ. Hosp., 178 F. Supp. 2d 323, 328-29 (2d Cir. 2002).

128

See FAC ¶ 6.

129

CUNY Mem. 15 (emphasis in original).

130

Id. at 17-20; see also Jacobs’ Mem. in Support of Mot. to Dismiss (“Jacobs’ Mem.”) 20-22,
ECF No. 65.
131

FAC ¶ 97.

132

Id. ¶ 101.

133

Id. ¶¶ 100-101.
17

which suggests that he applied for the “Director of Career Pathways” position—a role for which
he had applied previously in March 2019. 134 But as to his qualifications, the FAC does not set
forth the qualifications expected of a “Director of Career Pathways” position, and it is therefore
impossible to tell if Plaintiff was qualified for it. Plaintiff alleges that he received positive
feedback from his outgoing supervisor Quintana, who advised him that he was “an ideal fit for
[Quintana’s former] position, based on [Plaintiff’s] performance, experience and commitment to
the participants.” 135 But Quintana held a different position; he did not hold the Director of
Career Pathways position, which according to the FAC, was held by someone else, Drew
Oldfield. 136 And the FAC is ambiguous as to whether Plaintiff actually applied for Quintana’s
position, stating confusingly that he “continued to apply for and or express interest in in the
Director/Managerial position vacated by Quintana, Salerno and eventually Batkin.” 137
Accordingly, he has not adequately pled that he applied for a position for which he was
qualified. 138
Inference of Discrimination. Even if Plaintiff had adequately alleged that he applied for
a position for which he was qualified, his race discrimination claim would still fail because he

134

Id. ¶ 64-65.

135

Id. ¶ 98.

136

Id. ¶ 70.

137

Id. ¶ 100.

138

See, e.g., Grimes v. Sil, No. 19 Civ. 1066, 2020 WL 1516459, at *7 (E.D.N.Y. Mar. 29, 2020)
(dismissing Title VII failure to promote claim where the plaintiff did not “state what the position
was, or the responsibilities and duties it entailed”); Brown v. Montefiore Med. Ctr., No. 18 Civ.
3861, 2019 WL 4454230, at *6 (S.D.N.Y. May 8, 2019), report and recommendation adopted,
No. 18 Civ. 3861, 2019 WL 3282927 (S.D.N.Y. July 22, 2019) (dismissing Title VII failure to
promote claim where, among other things, the plaintiff did “not identify the job title of the
position or the job criteria”).
18

has not met the initial burden of alleging facts that “together give rise to an inference of
discrimination.” 139
Plaintiff alleges that he was told by Ralph that Jacobs “would not promote him so that he
would be her direct report in a Director/Managerial capacity,” citing the same reasons that,
purportedly, had initially led Jacobs to decline to hire him—namely, that “[Plaintiff’s] pants
were too tight; [Plaintiff] was flamboyant; and that [Plaintiff] was rude and catty.” 140 Plaintiff
also notes that “[a]t all times relevant, all of [Jacobs’] direct reports presented in a
heteronorma[tive] fashion.” 141 Notably, after Plaintiff left his job, the “Director” position was
filled with “an African American heteronorma[tive-]presenting male, who had less professional
experience than [Plaintiff].” 142
None of these allegations go to race, as Plaintiff offers no factual allegations,
circumstantial or otherwise, to suggest that he was not promoted on the basis of race.
Accordingly, Plaintiff has not alleged sufficient facts with respect to his claim that he was not
promoted due to racial discrimination.
His failure to promote claim with respect to sexual orientation is a closer call, as Plaintiff
presents at least some allegations that arguably relate to sexual orientation, including statements
from Ralph about what were purportedly Jacobs’ reasons for not promoting Plaintiff. As
Plaintiff notes, however, Jacobs identifies as a gay woman, 143 and “[w]hen the person who
allegedly discriminated against plaintiff is a member of the same protected class as plaintiff, the

139

Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015).

140

FAC ¶ 84.

141

Id. ¶ 87.

142

Id. ¶¶ 88, 102.

143

Id. ¶¶ 45, 82.
19

court applies an inference against discrimination.” 144 Ultimately, the Court need not resolve this
issue conclusively, as Plaintiff’s failure to promote claim fails based on his failure to adequately
allege that he was qualified for a position to which he applied.
2.

Hostile Work Environment Claim

Plaintiff brings hostile work environment claims under federal, state, and city statutes.
For the reasons discussed below, these claims are also dismissed.
a.

Legal Standards

For a plaintiff to state a hostile work environment claim under Title VII, a plaintiff must
allege facts demonstrating 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.” 145 To do so, a plaintiff must plead
“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.” 146 A court “must consider the
totality of the circumstances,” 147 including, “[1] the frequency of the discriminatory conduct; [2]
its severity; [3] whether it is physically threatening or humiliating, or a mere offensive utterance;

144

Meyer v. McDonald, 241 F. Supp. 3d 379, 390-91 (E.D.N.Y. 2017), aff’d sub nom. Meyer v.
Shulkin, 722 F. App’x 26 (2d Cir. 2018).

145

Rivera v. Rochester Genesee Regional Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014).

146

Isbell v. City of New York, 316 F. Supp. 3d 571, 591 (S.D.N.Y. 2018) (citing Littlejohn, 795
F.3d at 321).
147

Littlejohn, 795 F.3d at 321.
20

and [4] whether it unreasonably interferes with an employee’s work performance.” 148 “Isolated
acts, unless very serious, do not meet the threshold of severity or pervasiveness.” 149
NYSHRL was amended in 2019, and its standard is now “closer to” the NYCHRL
standard. 150 “To make out a hostile work environment claim under NYCHRL, a plaintiff need
not allege ‘either materially adverse employment actions or severe and pervasive conduct.’” 151
“Rather, a plaintiff must show only unequal treatment based upon membership in a protected
class.” 152 Because the NYCHRL is not a “general civility code,” Plaintiff must allege facts from
which the Court can plausibly infer that the unwanted conduct was caused by a discriminatory
animus. 153 A discriminatory motive can be shown by pleading direct evidence of discrimination,
including “comments indicating prejudice on account of a protected characteristic.” 154
Comments that a reasonable person would view as only “petty slights and trivial
inconveniences” do not give rise to an inference of discriminatory motive. 155
b.

Application

Applying these standards here, the Court determines Plaintiff has failed to adequately
plead a hostile work environment claim under any applicable statute.

148

Doyle v. Am. Glory Rest. Corp., No. 23 Civ. 7624, 2024 WL 1466161, at *5 (S.D.N.Y. Apr.
4, 2024).

149

Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002).

150

Wheeler v. Praxair Surface Techs., Inc., 694 F. Supp. 3d 432, 451 (S.D.N.Y. 2023).

151

Bautista v. PR Gramercy Square Condo., 642 F. Supp. 3d 411, 427 (S.D.N.Y. 2022) (quoting
Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 114 (2d Cir. 2013)).

152

Id.

153

Rothbein v. City of New York, No. 18 Civ. 5106, 2019 WL 977878, at *9 (S.D.N.Y. Feb. 28,
2019) (quoting Mihalik, 715 F.3d at 110).

154

Bautista., 642 F. Supp. 3d at 428.

155

See Mihalik, 715 F.3d at 111.
21

As noted, Plaintiff alleges that he heard from Ralph that Jacobs said that “[Plaintiff’s]
pants were too tight; [Plaintiff] was flamboyant; and that [Plaintiff] was rude and catty.” 156
Plaintiff further alleges Batkin would “often belittle and engage in tone policing,” “interrupt
[Plaintiff] at meetings,” diminish Plaintiff’s achievements amongst staff and management, and
accused Plaintiff of failing to complete assignments that Plaintiff alleged he completed. 157 These
allegations are relatively slim. The allegations about Batkin, while perhaps indicating rudeness
or hostility, do not suggest that Batkin’s conduct was because of Plaintiff’s race or sexual
orientation. And as for the allegations about what Ralph stated about Jacobs’ views, Plaintiff
does not allege that he heard Jacobs’ alleged comments first-hand. 158
Ultimately, even liberally construing Plaintiff’s pleadings, the Court concludes that the
remarks he complains about amount to, at most, “petty slights and trivial inconveniences,” which
do not amount to an actionable hostile work environment under the various laws at issue here. 159
Certainly, “[n]o reasonable juror could find that [Plaintiff] was subjected to conduct that was
sufficiently severe or pervasive, either in isolation or when viewed as a whole, to create a hostile
work environment” under Title VII. 160 While Jacobs’ comments are plausibly related to
Plaintiff’s sexual orientation, a “stray remark[] of a decision-maker, without more, cannot prove

156

FAC ¶ 84.

157

Id. ¶¶ 120-123.

158

See, e.g, Gerzhgorin v. Selfhelp Cmty. Servs., Inc., No. 18 Civ. 4344, 2022 WL 912523, at *5
(E.D.N.Y. Mar. 29, 2022), aff’d, No. 22 Civ. 808, 2023 WL 2469824 (2d Cir. Mar. 13, 2023)
(holding “an employee cannot prevail on a hostile work environment claim that is premised on
conduct the employee did not himself witness”); Sletten v. LiquidHub, Inc., No. 13 Civ. 1146,
2014 WL 3388866, at *7 (S.D.N.Y. July 11, 2014) (noting that secondhand statements “are not
as impactful on one’s environment as are direct statements; consequently, they are less
persuasive in stating a hostile work environment claim”).

159

Russo v. New York Presbyterian Hosp., 972 F. Supp. 2d 429, 450 (E.D.N.Y. 2013).

160

Davis-Molinia v. Port Auth. of N. Y. & N. J., No. 08 Civ. 7584, 2011 WL 4000997, at *11
(S.D.N.Y. Aug. 19, 2011), aff’d, 488 F. App’x 530 (2d Cir. 2012).
22

a claim of employment discrimination.” 161 The Second Circuit has made clear that far more
severe conduct falls short of stating a hostile work environment claim under Title VII. 162 The
general rule is that the hostile incidents “must be more than episodic; they must be sufficiently
continuous and concerted in order to be deemed pervasive.” 163 Here, Plaintiff has not adequately
alleged that he was subject to either “sufficiently severe or pervasive” conduct to create a hostile
work environment. 164 Accordingly, Plaintiff fails to allege a hostile work environment claim.
III.

Retaliation Claims

The Court now turns to Plaintiff’s retaliation claims under three separate theories: (1)
retaliatory hostile work environment, (2) retaliatory workload changes, and (3) retaliatory
constructive discharge. For the reasons discussed below, the Court dismisses Plaintiff’s
retaliation claims.
A. Legal Standards
To plausibly allege a retaliation claim under Title VII, 165 “a plaintiff must show: (i) he
engaged in protected activity; (ii) the defendant was aware of that activity; (iii) [plaintiff]

161

Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir. 2001).

162

See, e.g., Fleming v. MaxMara USA, Inc., 371 F. App’x 115, 119 (2d Cir. 2010) (holding
allegations that the plaintiff was wrongly excluded from meetings, excessively criticized, had
duties arbitrarily imposed outside her normal responsibilities, had books thrown at her, and
received rude emails did not establish hostile work environment); Littlejohn, 795 F.3d at 321
(holding allegations that coworkers and supervisors made negative statements about the plaintiff,
used harsh tones, declined to meet with the plaintiff, replaced the plaintiff at meetings,
wrongfully reprimanded the plaintiff, and increased the plaintiff’s schedule did not state a hostile
work environment claim); Garcia v. N.Y.C. Health & Hosps. Corp., No. 19 Civ. 997, 2019 WL
6878729, at *7 (S.D.N.Y. Dec. 17, 2019) (holding that allegations where a plaintiff’s supervisor
referred to him as a “faggot” in another language, yelled, and was aggressive towards the
plaintiff were insufficient to state a Title VII claim).
163

Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002).

164

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).

165

Retaliation claims under NYSHRL and NYCHRL statutes are governed by the Title VII
framework, with a few differences discussed below. See Hicks v. Baines, 593 F.3d 159, 164 (2d
23

suffered a[n] . . . adverse [employment] action; and (iv) there was a causal connection between
the protected activity and that adverse action.” 166 “[F]or an adverse retaliatory action to be
‘because’ a plaintiff made a charge, the plaintiff must plausibly allege that the retaliation was a
‘but-for’ cause of the employer’s adverse action. If the plaintiff establishes a prima facie case,
the burden then shifts to the defendant to “articulate a legitimate, non-retaliatory reason for the
challenged employment action.” 167 If the defendant does so, a plaintiff must then demonstrate
that the proffered reason “is merely a pretext for impermissible retaliation,” 168 by showing “that
the desire to retaliate was the but-for cause of the challenged employment action.” 169 But-for
causation requires “that the adverse action would not have occurred in the absence of the
retaliatory motive” and may “be shown by direct evidence of retaliatory animus or inferred
through temporal proximity to the protected activity.” 170 It is not enough that retaliation was a
‘substantial’ or ‘motivating’ factor in the employer’s decision.” 171 Informal complaints to
managers will only qualify as “protected activit[ies]” within this definition where the complaints
are “sufficiently specific to make it clear that the employee is complaining about conduct
prohibited by Title VII.” 172 An adverse employment action is an action that is “harmful to the

Cir. 2010) (Title VII, Section 1981, NYSHRL); Mooney v. City of New York, No. 18 Civ. 328,
2019 WL 4392961, at *7 (S.D.N.Y. Sept. 13, 2019) (Title VII and NYSHRL); Schaper v. Bronx
Lebanon Hospital Center, 408 F. Supp. 3d 379, 394 (S.D.N.Y. 2019) (NYCHRL); Craven v.
City of New York, No. 19 Civ. 1486, 2020 WL 2765694, at *6 (S.D.N.Y. May 28, 2020)
(NYCHRL).
166

Livingston v. City of New York, 563 F. Supp. 3d 201, 245 (S.D.N.Y. 2021).

167

Frantti v. New York, 850 F. App’x 17, 21 (2d Cir. 2021).

168

Id.

169

Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 70 (2d Cir. 2015).

170

Duplan v. City of New York, 888 F.3d 612, 625 (2d Cir. 2018).

171

See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d. 72, 90-91 (2d Cir. 2015).

172

Risco v. McHugh, 868 F. Supp. 2d 75, 110 (S.D.N.Y. 2012).
24

point that [it] could well dissuade a reasonable worker from making or supporting a charge of
discrimination.” 173
Retaliation claims brought under the NYCHRL, however, need not allege a formal
“adverse employment action.” 174 Rather, an employee need only allege that her employer
engaged in conduct that was “reasonably likely to deter a person from engaging in protected
activity.” 175 The NYSHRL bars employers from “retaliat[ing] or discriminat[ing] against any
person because he or she has opposed any practices forbidden [by the NYSHRL].” 176 Even
under the state and city provisions’ broad standards, however, a plaintiff alleging retaliation “still
must establish that there was a causal connection between [her] protected activity and the
employer’s subsequent action.” 177
B. Application
Here, Plaintiff alleges three forms of retaliation following his informal complaints about
discrimination. First, Plaintiff says “Defendants created a retaliatory hostile work environment”
for him “and other employees who engaged in protected activities.” 178 Second, following his
September 17th Complaint, Batkin changes Plaintiff’s workload, including by removing several
of Plaintiff’s duties, including his “counseling function.” 179 Finally, Plaintiff states that he was

173

Kessler v. Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d 199, 209 (2d Cir. 2006); accord
Banks v. Gen. Motors, LLC, 81 F.4th 242, 275 (2d Cir. 2023) (same).

174

See Mayers v. Emigrant Bancorp, Inc., 796 F. Supp. 2d 434, 446 (S.D.N.Y. 2011).

175

See Maynard v. Montefiore Med. Ctr., No. 18 Civ. 8877, 2021 WL 396700, at *6 (S.D.N.Y.
Feb. 4, 2021) (NYCHRL).

176

N.Y. Exec. L. § 296(7).

177

Hughes v. Twenty-First Century Fox, Inc., 304 F. Supp. 3d 429, 449 (S.D.N.Y. 2018)
(NYCHRL).
178

FAC ¶ 218.

179

Id. ¶¶ 171-172.
25

constructively discharged in November 2021 following his discrimination complaints. 180 For the
reasons stated below, the Court determines that Plaintiff has failed to establish retaliation and
dismisses these claims.
1.

Retaliatory Hostile Work Environment Claim

a.

Legal Standards

To adequately plead a retaliatory hostile work environment claim, the elements are
substantially similar to those for a hostile work environment claim, see supra. But, for the
purposes of establishing an adverse action, the Court need not “consider whether the allegedly
retaliatory actions meet the higher ‘severe and pervasive’ standard.”181 When considering the
third prong of retaliation, “[a]ll that is relevant is whether the actions, taken in the aggregate, are
materially adverse and would dissuade a reasonable employee from making a complaint of
discrimination.”182
b.

Application

Plaintiff fails to allege a causal connection between his complaints about discrimination
and the allegedly retaliatory hostile work environment. To establish a causal connection between
the protected activity and the hostile work environment, “some increase in the discrimination or
harassment—either a ‘ratcheting up’ of the preexisting behavior, or new, additional forms of
harassment—must occur for the employee to make out a viable retaliation claim.”183 “If,
however, the discrimination was just as bad before the employee complained as it was
afterwards, then the employee’s complaints cannot be said to have led to that discriminatory

180

Id. ¶ 209.

181

Carr v. N.Y.C. Transit Auth., 76 F.4th 172, 181 (2d Cir. 2023).

182

Id.

183

Hall v. N.Y.C. Dep’t of Transp., 701 F. Supp. 2d 318, 339 (E.D.N.Y. 2010).
26

behavior.” 184 Here, Plaintiff alleges there was a hostile work environment as early as 2019, 185
but he did not make his complaint until 2021. And he does not allege that the purportedly hostile
work environment that he endured increased in severity as a result of his complaints. There are
no facts alleged suggesting a causal connection between his environment and his complaints of
discrimination. Accordingly, Plaintiff’s retaliatory hostile work environment claim is dismissed.
2.

Retaliatory Workload Changes

Plaintiff also states he was retaliated against following his September 17th Complaint via
two sets of workload changes—a decrease in the range of responsibilities he had, and an increase
in total workload. First, Plaintiff alleges that after his complaint, “B[atkin] removed the
counseling function” from his job. 186 While the Second Circuit has held that “significantly
diminished material responsibilities” may signify an adverse employment action, 187 a “decrease
in workload, without any formal demotion or reduction in pay, does not constitute an actionable
adverse employment action.” 188 Because Plaintiff does not allege that he was demoted or that
his pay was reduced, the reduction in the scope of his work, without more, does not constitute an
adverse employment action.
At the same time, Plaintiff alleges that Batkin “removed the staff persons [Plaintiff] was
assigned upon the departures of Quintana and Salerno,” 189 causing an overall increase in the size
of Plaintiff’s workload. While the Second Circuit has held that a disproportionate allocation of

184

Id.

185

FAC ¶¶ 103-126.

186

Id. ¶¶ 171-172.

187

Vega, 801 F.3d at 85.

188

Bennett v. Watson Wyatt & Co., 136 F. Supp. 2d 236, 248 (S.D.N.Y. 2001), aff’d in part,
appeal dismissed in part, 51 F. App’x 55 (2d Cir. 2002).
189

FAC ¶ 172.
27

work can be an adverse employment action, 190 Plaintiff’s own allegations establish that his initial
workload increases coincided with the departure of two colleagues, Quintana and Salerno, and
did not occur in response to his discrimination complaint. He has, therefore, failed to allege facts
showing a causal connection between his complaint and his workload increase.
3.

Constructive Discharge Claim as Retaliation
a.

Legal Standards

Finally, the Court turns to Plaintiff’s constructive discharge claims under federal, state
and city statutes. 191 While New York state courts have not determined the precise standard for
constructive discharge under the NYCHRL, they often address constructive discharge claims
using language that “mirrors the federal standard.” 192 Under Title VII, a constructive discharge
“occurs when an employer, rather than directly discharging an individual, intentionally creates an
intolerable work atmosphere that forces an employee to quit voluntarily.” 193 A plaintiff must
allege that his “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

190

See Vega, 801 F.3d at 88 (holding that the plaintiff suffered an adverse employment action
when he received a disproportionately heavier workload than colleagues who were similarly
situated).

191

Constructive discharge under Section 1981, NYSHRL, and NYCHRL statutes mirrors the
Title VII framework. See Spires v. Metlife Grp., Inc., No. 18 Civ. 4464, 2019 WL 4464393, at
*9 (S.D.N.Y. Sept. 18, 2019) (collecting cases).
192

Tulino v. City of New York, 813 Fed. App’x 725, 727 n.2 (2d Cir. 2020); see also Blackman v.
Metro. Transit Auth., 169 N.Y.S.3d 653, 656 (2022) (disposing of a NYCHRL constructive
discharge claim mirroring the federal standard, stating that “[a]n employee is constructively
discharged when her or his employer, rather than discharging the plaintiff directly, deliberately
created working conditions so intolerable that a reasonable person in the plaintiff’s position
would have felt compelled to resign”).
193

Serricchio v. Wachovia Sec. LLC, 658 F.3d 169, 185 (2d Cir. 2011).
28

an abusive working environment.” 194 For a plaintiff to properly allege a constructive discharge
claim, they must allege that the defendants “intentionally or deliberately created negative
working conditions . . . so as to compel [the plaintiff] to resign.” 195
b.

Application

The standard for pleading a constructive discharge claim “is higher than the standard for
establishing a hostile work environment” claim under Title VII. 196 Since Plaintiff has not
pleaded sufficient facts to establish the existence of a hostile work environment, his constructive
discharge claims also fail. 197 Plaintiff has failed to provide sufficient evidence to meet the
constructive discharge claim under any standard, as these claims are governed by a “stricter
standard” than those for hostile work environment claims. 198 The Court therefore dismisses
Plaintiff’s constructive discharge claims as to all Defendants.
IV.

False Claims Act

Plaintiff also brings retaliation claims under the Federal FCA and analogous state
NYCFA, which prohibit false claims against government funds. 199
A.

Legal Standards

The federal and state FCAs allow relators to bring suit on behalf of the government
against parties who knowingly defraud the government. 200 Because the NYFCA was modeled
194

Volpe v. N.Y.C. Dep’t of Educ., 195 F. Supp. 3d 582, 595 (S.D.N.Y. 2016) (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).

195

Spires, 2019 WL 4464393, at *10 (emphasis in original).

196

Fincher v. Depository Trust and Clearing Corp., 604 F.3d 712, 725 (2d Cir. 2010).

197

Id. (reasoning that because the plaintiff did not establish a hostile work environment, “her
claim of constructive discharge also fails”).

198

La Porta v. Alacra, Inc., 38 N.Y.S.3d 20, 22 (2016).

199

See 31 U.S.C. § 3729; see also N.Y. State Fin. Law § 189.

200

See 31 U.S.C. § 3730(b)(1) (“A person may bring a civil action for a violation of section 3729
for the person and for the United States Government. The action shall be brought in the name of
29

on the federal FCA, courts regularly rely on federal law when interpreting the NYFCA. 201 To
state a claim for retaliation under the FCA and NYFCA, a plaintiff must demonstrate that “(1) he
engaged in activity protected under the statute, (2) the employer was aware of such activity, and
(3) the employer took adverse action against him because he engaged in the protected
activity.” 202
B.

Application

Plaintiff’s FCA and NYFCA fail as a matter of law for two reasons. First, they are barred
under the Eleventh Amendment. Second, Plaintiff does not allege he engaged in protected
activity and was subjected to an adverse employment action as a result.
First, the Eleventh Amendment bars the FCA claims against defendants. CUNY is
considered an “arm of the state,” which means that “suits against CUNY are equivalent to suits
against the State of New York and are therefore barred by the Eleventh Amendment.” 203
Because New York’s immunity to retaliation claims has not been abrogated or waived, 204 these
claims are barred on Eleventh Amendment grounds. The FCA and NYFCA claims also fail with

the Government.”); N.Y. State Fin. Law § 190(2)(a) (permitting qui tam civil actions to be
brought “on behalf of the person and the people of the state of New York or a local
government.”).
201

See, e.g., Dhaliwal v. Salix Pharms., Ltd., 752 F. App’x 99, 100 (2d Cir. 2019) (“[B]ecause
‘[t]he NYFCA follows the federal False Claims Act,’ New York courts ‘look toward federal law
when interpreting the New York act.’”); New York ex rel. Khurana v. Spherion Corp., No. 15
Civ. 6605, 2020 WL 918740, at *2 n.2 (S.D.N.Y. Feb. 26, 2020); Ping Chen ex rel. U.S. v.
EMSL Analytical, Inc., 966 F. Supp. 2d 282, 305 (S.D.N.Y. 2013).
202

United States ex rel. Chorches v. Am. Med. Response, Inc., 865 F.3d 71, 95 (2d Cir. 2017).

203

Clissuras v. City Univ. of New York, 359 F.3d 79, 83 (2d Cir. 2004).

204

See Monsour v. N.Y. State Off. for People with Dev. Disabilities, No. 13 Civ. 336, 2014 WL
975604, at *4 (N.D.N.Y. Mar. 12, 2014) (discussing how the Eleventh Amendment barred FCA
and NYFCA retaliation claims asserted against state official sued in her official capacity to the
extent those claims sought monetary damages).
30

respect to the individual defendants because “there is no individual liability for retaliation under”
the federal and state False Claims Acts. 205
Even if Plaintiff’s FCA and NYFCA claims were not barred, they would not survive
because Plaintiff has not alleged that he engaged in protected activity and was subjected to an
adverse employment action as a result. To prove that he engaged in a “protected activity,” a
plaintiff must show that “(1) the employee in good faith believes, and (2) a reasonable employee
in the same or similar circumstances might believe, that the employer is committing fraud
against the government.” 206 Plaintiff does not plausibly allege any specific actions that would
qualify as a protected activity. For example, Plaintiff raised concerns to the named Defendants
about the “disparities between the number of participants served and the data that was being
entered into Salesforce.” 207 Reporting inaccuracies could conceivably qualify as protected
activity if Plaintiff believed that this was sufficiently connected to “exposing or deterring
fraud.” 208 But Plaintiff does not adequately allege he was “discharged, demoted, suspended,
threatened, harassed or in any other manner discriminated against in the terms and conditions of
employment, or otherwise harmed or penalized . . . because of” the protected activity. 209 That is,
Plaintiff does not allege retaliatory action because of “report[ing] the malfeasance to the named
Defendants.” 210 Accordingly, the Court dismisses Plaintiff’s federal and state FCA claims.

205

Parris v. N.Y.C. Hous. Auth., 364 F. Supp. 3d 284, 290 (S.D.N.Y. 2019); see also Diffley v.
Bostwick, No. 17 Civ. 1410, 2017 WL 6948358, at *2 (S.D.N.Y. Dec. 6, 2017); Monsour, 2014
WL 975604, at *10.
206

Ortiz v. Todres & Co., No. 15 Civ. 1506, 2019 WL 1207856, at *4 (S.D.N.Y. Mar. 14, 2019).

207

FAC ¶¶ 156-158.

208

Ortiz, 2019 WL 1207856, at *4.

209

N.Y. State Fin. Law § 191(1).

210

FAC ¶ 159.
31

V.

New York City Fair Chance Act

Plaintiff brings claims under the NYC Fair Chance Act against the individual defendants.
These claims are also dismissed.
A.

Legal Standards

The Fair Chance Act is an amendment to the NYCHRL, which “make[s] it an unlawful
discriminatory practice for most employers, labor organizations, and employment agencies to
inquire about or consider the criminal history of job applicants until after extending conditional
offers of employment.” 211 Among other things, the Fair Chance Act prohibits the “discovery and
use of criminal history before a conditional offer of employment.” 212 “With the aim of
preventing an applicant’s criminal history from tainting initial hiring decisions, the [Fair Chance
Act] regulates precisely when in the hiring process an employer may seek and use information
regarding an applicant’s criminal background.” 213
B.

Application

Plaintiff applied for a Director of Career Pathways position, but Jacobs “unilateral[ly]”
determined that Plaintiff was not qualified, and the position was ultimately filled with another
individual who also had a criminal history. 214 Plaintiff does not allege facts to demonstrate that
his criminal history was at issue during his hiring. Plaintiff also asserts that “[o]n more than one
occasion, [he] heard Defendants make the comment that he and others with prior convictions

211

See N.Y.C. Local Law 63 (2015); see also N.Y.C. Comm’n on Human Rights, Legal
Enforcement Guidance on the Fair Chance Act (“Enforcement Guidance”).

212

Franklin v. Vertex Glob. Sols., No. 20 Civ. 10495, 2022 WL 392913, at *4 (S.D.N.Y. Feb. 9,
2022) (citing Enforcement Guidance at 4).

213

Id.

214

FAC ¶¶ 67, 74.
32

ought to be glad they had jobs.” 215 This statement, however, is not covered by the Fair Chance
Act. Accordingly, the Court dismisses Plaintiff’s Fair Chance Act claim.
VI.

Aiding and Abetting Claims

Plaintiff alleges that Batkin, Jacobs, and Ralph aided and abetted the discrimination and
retaliation to which she was subjected, in violation of NYSHRL and NYCHRL. Below, the
Court considers these Defendants’ individual liability.
A.

Legal Standards

The NYSHRL and NYCHRL “provide for individual liability for persons who aid, abet,
incite, compel, or coerce the doing of any of the acts forbidden thereunder, or attempt to do
so.” 216 The same standard governs aiding and abetting claims under the NYSHRL and
NYCHRL “because the language of the two laws is virtually identical.” 217 “The aider and
abettor need not have had an employer-employee or supervisory relationship with the
plaintiff.” 218 Rather, she need only have (1) “actually participate[d] in the conduct giving rise to
the discrimination,” 219 and (2) “share[d] the intent or purpose of the principal actor.” 220
B.

Application

As explained above, the Court has determined that Plaintiff has failed to state a claim
under the NYSHRL or the NYCHRL. Consequently, his claims for aiding and abetting liability

215

The Court notes that unlike other allegations, Plaintiff did not specify which individual
Defendants made the comments. Id. ¶ 125.

216

Hagan v. City of New York, 39 F. Supp. 3d 481, 514 (S.D.N.Y. 2014) (citing N.Y. Exec. L.
§ 296(6) and N.Y.C. Admin. Code § 8-107(6)).
217

Feingold v. New York, 366 F.3d 138, 158 (2d Cir. 2004).

218

McHenry v. Fox News Network, LLC, 510 F. Supp. 3d 51, 68 (S.D.N.Y. 2020).

219

Feingold, 366 F.3d at 157.

220

Fried v. LVI Servs., Inc., No. 10 Civ. 9308, 2011 WL 2119748, at *7 (S.D.N.Y. May 23,
2011).
33

under those laws also fails. 221
CONCLUSION
For the foregoing reasons, Defendants’ motions to dismiss Plaintiff’s First Amended
Complaint are GRANTED.
The Clerk of Court is respectfully requested to terminate ECF Nos. 61, 64, 66, to mail a
copy of this Order to pro se Plaintiff, and to close the case.

SO ORDERED.
Dated: September 24, 2024
New York, New York

DALE E. HO
United States District Judge

221

See Martin v. Walgreen Co., No. 16 Civ. 9658, 2018 WL 3773987, at *7 (S.D.N.Y. Aug. 9,
2018) (“[L]iability under the [NY]HRL and the NYCHRL must first be established as to the
employer/principal before an individual may be considered an aider and abettor.”).
34