NOORA ALSARIAA v. ASCEND CHARTER SCHOOLS (2025)

REPORT AND RECOMMENDATION

To the Honorable Analisa Torres, United States District Judge:

Plaintiff Noora D. AlSariaa (“Plaintiff”), proceeding pro se, brings this action alleging that Ascend Charter Schools (“Ascend”) and Amber Charter School Kingsbridge (“Amber”) (collectively, “Defendants”) violated federal and state laws by discriminating against her based on race and national origin. Defendants have filed separate motions to dismiss the case under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. For the reasons described below, the undersigned respectfully RECOMMENDS that Defendants’ motions be GRANTED. Plaintiff's claims should be dismissed without prejudice and with leave to file an amended complaint.

I. FACTUAL BACKGROUND

Plaintiff, who is Iraqi and Arab, works as a substitute teacher. Complaint (“Compl.”), ECF No. 1, at 3–4, 10.¹ She is an “independent contractor teacher” who receives her assignments through Swing Education (“Swing”), a company that serves as an intermediary between schools seeking substitute teachers and the teachers. Id. at 10. These assignments could be for long or short terms. Id.

On March 19, 2024, Plaintiff was assigned to work at Ascend Charter School in Brooklyn. Id. During the day, one of the principals expressed displeasure with Plaintiff's classroom management. Id. Around noon, Plaintiff overheard a conversation in the break room in which other substitute teachers allegedly disparaged the Arabic language and the city of Dubai. Id. at 11.

Although Plaintiff had received a schedule calling for her to work from 7:45 a.m. to 3:30 p.m., one of the principals declared that this was an error and that she should stay until 4:00 p.m. Id. at 10. Plaintiff was unhappy about this change and left work at 3:30 p.m., when she saw several of the other substitutes leaving. Id. When she returned home, Plaintiff saw that her schedule in the Swing application had been changed to have her working until 4:00 p.m. Id.

Upon seeing this change, Plaintiff reached out to Swing, concerned that she would receive negative feedback that would impact her future assignments. Id. at 11. On the morning of March 20, she emailed a principal at Ascend to complain about the schedule change. Id. at 30. In this email, Plaintiff threatened to use the Department of Education or “other investigation offices” to “hold [Ascend] accountable.” Id. That evening, Swing informed Plaintiff that Ascend had requested that she not return to any of its schools in the future. Id. at 11.

On March 20, Plaintiff was assigned to work at Amber Charter School in Harlem. Id. At Amber, Plaintiff alleges that she, for the second time, overheard teachers in the break room disparaging the Arabic language and the city of Dubai. Id. at 12. She returned to Amber on March 21 and, later in the day, Swing informed Plaintiff that Amber had requested that she not be assigned to its schools “because [of her] classroom management.” Id.

Plaintiff believes that an unknown third party may have induced the teachers and principals at both Ascend and Amber to cause problems for Plaintiff to create a justification for removing her. Id. at 13.

Plaintiff alleges that she filed a charge with the Equal Employment Opportunity Commission (“EEOC”) on July 22, 2024 and received a Right to Sue Notice on September 20, 2024. Id. at 6. These documents were not attached to the Complaint.

II. PROCEDURAL HISTORY

Plaintiff filed the Complaint on September 25, 2024. ECF No. 1. On March 12, 2025, Ascend moved to dismiss the Complaint supported by the March 12 Affirmation of Keith Gutstein (“Gutstein Aff.”) and a memorandum of law (“Ascend Mem.”). ECF Nos. 22, 23, 24. On March 25, Amber moved to dismiss the complaint supported by the March 25 Declaration of Leo Dorfman (“Dorfman Decl.”) and a memorandum of law (“Amber Mem.”). ECF Nos. 27, 28, 29.

This case was referred to the undersigned for a Report and Recommendation on the motions to dismiss. ECF No. 26. Plaintiff filed her opposition (“Pl. Opp.”) to both motions on April 3, 2025. ECF No. 33. Ascend and Amber filed their replies on April 17. ECF Nos. 36, 37.

III. LEGAL STANDARDS

A. Rule 12(b)(6) Motion to Dismiss

Rule 12(b)(6) allows a party to move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In considering a Rule 12(b)(6) motion, a court accepts all factual allegations in the complaint as true and draws all reasonable inferences in the plaintiff's favor. See, e.g., Mayor & City Council of Baltimore, Md. v. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013). To survive dismissal, a plaintiff must allege enough facts “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Facial plausibility exists when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “Importantly, the ‘plausibility’ standard applies only to a complaint's factual allegations. [The Court] give[s] no effect at all to ‘legal conclusions couched as factual allegations.’ ” Citigroup, Inc., 709 F.3d at 135 (quoting Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007)).

B. Standards for Pro Se Litigants

While pro se complaints are read liberally “to raise the strongest arguments they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (citations omitted), they still must state a plausible claim for relief. Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013). Thus, a district court should dismiss a pro se plaintiff's complaint if it “fail[s] to meet minimum pleading requirements.” Kinsey v. Bloomberg, No. 12-CV-8936 (PAE) (JCF), 2014 WL 630670, at *3 (S.D.N.Y. Feb. 18, 2014) (citations omitted).

Submissions made by pro se plaintiffs are held “to less stringent standards than formal pleadings drafted by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (courts are “obligated to construe a pro se complaint liberally.”). As a result, the Court may consider allegations that appear in a pro se plaintiff's motion papers or other submissions to the Court as well as in her pleadings. See, e.g., Freud v. N.Y.C. Dep't of Educ., No. 21-CV-2281 (MKV), 2022 WL 889213, at *4 (S.D.N.Y. Mar. 25, 2022) (citing Walker, 717 F.3d at 122 n.1) (courts “may also consider factual statements made in the pro se Plaintiff's opposition to the motion to dismiss.”). Nevertheless, pro se plaintiffs are not excused from the normal rules of pleading; “dismissal ․ is proper if the complaint lacks an allegation regarding an element necessary to obtain relief.” Geldzahler v. N.Y. Med. Coll., 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009) (cleaned up).

IV. ANALYSIS

Plaintiff brings claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., for discrimination based on national origin, 42 U.S.C. § 1981, for discrimination on the basis of race, and the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law §§ 290–97, for discrimination based on national origin. Compl. at 3–4. Plaintiff brings claims for retaliation under all three statutes. See Id. at 3–5. In her Complaint, she also brought claims for hostile work environment under Title VII, Section 1981, and the NYSHRL, but she expressly disclaimed these causes of action in her opposition and the Court should consider them abandoned. Pl. Opp. at 15.

A. Plaintiff's Discrimination Claims

Defendants argue that Plaintiff's Title VII discrimination claim should be dismissed for failure to exhaust her administrative remedies, that all her discrimination claims should be dismissed because Defendants are not her employers, and that all her discrimination claims should be dismissed because she has failed to plead an adverse employment action and facts allowing an inference of discrimination. These arguments are addressed in turn.

1. Plaintiff's Title VII Claim Should Not Be Dismissed for Failure to Exhaust Administrative Remedies

Defendants seek dismissal of Plaintiff's Title VII claim on the basis that she failed to exhaust her administrative remedies before suing. Because failure to exhaust is an affirmative defense on which Defendants bear the burden of pleading, this issue should not be decided against Plaintiff on a Rule 12 motion.

“[A] plaintiff seeking to bring a claim pursuant to ․ Title VII ․ must exhaust administrative remedies through the EEOC or [the state administrative agency].” Soules v. Connecticut, Dep't of Emergency Servs. & Pub. Prot., 882 F.3d 52, 57 (2d Cir. 2018). To exhaust administrative remedies, a plaintiff “must file a charge of discrimination with the EEOC ‘within three hundred days after the alleged unlawful employment practice occurred,’ 42 U.S.C. § 2000e-5(e)(1), and must then file an action in federal court within 90 days of receiving a right-to-sue letter from the agency, id. § 2000e-5(f)(1).” Duplan v. City of N.Y., 888 F.3d 612, 621–22 (2d Cir. 2018). However, failure to exhaust is an affirmative defense and the defendant bears the burden of pleading such failure. Hardaway v. Hartford Pub. Works Dep't, 879 F.3d 486, 491 (2d Cir. 2018).² Thus, exhaustion can only provide a proper basis for a Rule 12(b)(6) motion to dismiss “if failure to exhaust appears on the face of the complaint.” Frederic v. NFC Amenity Mgmt., No. 17-CV-5769, 2018 WL 4735715, at *2 (S.D.N.Y. Sept. 28, 2018).

The Complaint alleges that Plaintiff filed a Charge of Discrimination with the EEOC on July 22, 2024, and received a Right to Sue letter on September 20, 2024. Compl. at 6. These items are not attached to the Complaint, but Plaintiff filed with her opposition to the motion a September 20, 2024 Right to Sue letter from the EEOC. ECF No. 33-1. This letter did not identify either defendant. Id. Plaintiff also filed what she says is the Charge of Discrimination she submitted to the EEOC, which is dated July 22, 2024. ECF No. 33-2. But this document does not contain the Charge Number, the identifier used by the EEOC to track complaints. Id. Thus, it might not be the final version of the Charge of Discrimination reviewed by the EEOC. Id. It also names only “Ascent [sic] Charter Schools” as the party that discriminated against her, not Amber. Id. Plaintiff also submitted a complaint form for the New York State Division of Human Rights that is dated April 14, 2025. ECF No. 33-3. As a result, it is not entirely clear what Plaintiff filed with the EEOC or a state administrative agency.

Ascend has submitted an affidavit stating it has never received an EEOC Charge or Notice of Right to Sue Letter related to this matter. Gutstein Aff. ¶ 6.³ Amber also submitted a declaration stating that it has not received an EEOC Charge or Notice of Right to Sue. Dorfman Decl. Ex. 1, ECF No. 28-1. It contacted the EEOC and inquired via a freedom of information request whether there was an outstanding charge against it; the EEOC responded that it was unable to find one. Id. However, Defendants’ evidentiary submissions cannot be considered on a motion to dismiss, which must be decided based on the four corners of the complaint. See Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998). Further, Rule 12.1 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York provides:

A represented party moving to dismiss or for judgment on the pleadings against a party proceeding pro se, who refers in support of the motion to matters outside the pleadings as described in Fed. R. Civ. P. 12(b) or 12(c), must serve and file the following notice with the full text of Fed. R. Civ. P. 56 attached at the time the motion is served.

Defendants, who are represented by counsel, failed to serve and file the required notice to Plaintiff, who is proceeding pro se. Thus, they cannot obtain dismissal based on these matters outside the pleadings.

While there are serious questions as to whether Plaintiff properly filed a charge and obtained a right-to-sue letter as to the claims she asserts here, failure to exhaust administrative remedies is an affirmative defense for which Defendants bear the burden of pleading. Hardaway, 879 F.3d at 491. Because a failure to exhaust “is not plain on the face of her complaint,” Frederic, 2018 WL 4735715, at *4, or from the documents integral thereto, the Complaint should not be dismissed on this basis.

2. Plaintiff Sufficiently Alleges that Defendants Are “Joint Employers”

Defendants argue that because Plaintiff was an independent contractor, not an employee, she cannot bring discrimination claims against them. Amber Mem. at 5–8; Ascend Mem. at 15.⁴ This argument should be rejected at the pleading stage because the Complaint, generously read, alleges facts that are sufficient to plead application of the joint employer doctrine. Additionally, this argument does not apply to Plaintiff's NYSHRL claim because that statute expressly covers independent contractors.

Title VII prohibits an “employer” from “fail[ing] or refus[ing] to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2. The Second Circuit has held that “[o]nce a plaintiff is found to be an independent contractor and not an employee—whether on summary judgment or after a trial—the Title VII claim must fail.” Salamon v. Our Lady of Victory Hosp., 514 F.3d 217, 226 (2d Cir. 2008).

However, “in certain circumstances” an employee may “assert employer liability against an entity that is not formally his or her employer.” Arculeo v. On-Site Sales & Mktg., L.L.C., 425 F.3d 193, 197 (2d Cir. 2005). Under this “joint employer doctrine,” a plaintiff may bring a Title VII claim when “an employee, formally employed by one entity” is “assigned to work in circumstances that justify the conclusion that the employee is at the same time constructively employed by another entity.” Id. at 198. The joint employer doctrine also applies to Section 1981 claims. See Barbosa v. Continuum Health Partners, Inc., 716 F. Supp. 2d 210, 216, 219 (S.D.N.Y. 2010) (denying defendants’ motion to dismiss on grounds that defendants were not plaintiff's employers). Additionally, the Second Circuit has recognized that the NYSHRL was amended in 2019 to include independent contractors. Karupaiyan v. Experis US Inc., No. 24-580, 2025 WL 615179, at *2 n.1 (2d Cir. Feb. 26, 2025) (summary order). Thus, this argument cannot defeat Plaintiff's NYSHRL claims regardless of whether the joint employer doctrine applies.

Plaintiff admits that she is an independent contractor. Compl. at 10. But that admission does not dispose of her claims because she could still argue that Defendants are liable under the joint employer doctrine. Determining whether a defendant constitutes a joint employer involves a highly fact-intensive analysis. Factors that a court must consider include:

[T]he hiring party's right to control the manner and means by which the product is accomplished ․ [;] the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in the business; the provision of employee benefits; and the tax treatment of the hired party.

Gulino v. N.Y. State Educ. Dep't, 460 F.3d 361, 371 (2d Cir. 2006) (quoting Comm. for Creative Non-Violence v. Reid, 490 U.S. 730, 751–52 (1989)).

The main authority discussed by Amber (and the only authority cited by Ascend) is the Second Circuit's decision in Felder v. U.S. Tennis Ass'n, 27 F.4th 834 (2d Cir. 2022). Ascend Mem. at 15; Amber Mem. at 11–13. While that decision held that the defendant was not the plaintiff's joint employer, it can be distinguished from the instant case. Felder, 27 F.4th at 847. To start, Felder recognized that, “[a]t the motion to dismiss stage, a plaintiff's burden to answer this question [i.e., whether defendant is a joint employer] is not great. It must only be plausible and not merely speculative, that [defendant] ․ exerted significant control over the terms and conditions of his employment ․” Id. at 845.

Amber identifies several factors that the Supreme Court enumerated in Reid weighing against a finding of a joint employer arrangement, including that it did not hire, compensate, provide benefits for, assign or discipline Plaintiff. See Amber Mem. at 11, 13–14. But the Second Circuit has held that, in anti-discrimination cases, “courts should not ordinarily place extra weight on the benefits and tax treatment factors enumerated in Reid, and should instead place special weight on the extent to which the hiring party controls the ‘manner and means’ by which the worker completes her assigned tasks.” Eisenberg v. Advance Relocation & Storage, Inc., 237 F.3d 111, 117, 119 (2d Cir. 2000) (reversing grant of summary judgment that plaintiff was not an “employee” within the meaning of Title VII) (emphasis in original).

Plaintiff alleges facts, not present in Felder, suggesting that Defendants exercised control over the “manner and means” by which she taught in their schools, which arguably pleads a joint employer arrangement. Reading the Complaint liberally to raise the strongest arguments it suggests and drawing all reasonable inferences in her favor, Plaintiff has met the “not great” burden of plausibly alleging that Defendants “exerted significant control over the terms and conditions of [her] employment.” See Felder, 27 F.4th at 845. In particular, Plaintiff alleges that Defendants (1) had power to “change[ ] my assignment schedule” (Compl. at 10); (2) oversaw what she did in the classroom (id. at 10, 12) (the school principal “showed up for two minutes” after Plaintiff was not given a lesson plan and Plaintiff “talked about next week assignments” with another teacher); and (3) provided critiques of her supervision of students (id. at 10–12) (the school principal told Plaintiff students had a “problem at lunch time with you” and Plaintiff asserts that “they tried to create problem with classroom management” and “make problem over students going to the bathroom”).

Further, unlike Felder, where the Second Circuit noted the defendant was not in the “security guard business,” Defendants here are very much in the business of employing teachers. Felder, 27 F.4th at 846. Indeed, given her role as a substitute teacher, it is logical to infer that, once she arrived onsite at one of Defendants’ schools, Plaintiff performed essentially the same work as Defendants’ regular employees, and was subject to the same daily oversight of her teaching. These facts stand in contrast to those in Felder, where the plaintiff's “only allegation about the control [defendant] exerted is that it could effectively reject [the contractor's employees] by refusing to issue them credentials.” Id. Plaintiff alleges more control than that here.

Plaintiff's allegations of Defendants’ day-to-day control over her work, while thin, are sufficient to sustain at the pleading stage a claim that Defendants were joint employers with Swing. While Defendants might ultimately prevail on this argument after discovery, Plaintiff's Title VII and Section 1981 claims should not be dismissed on these grounds now. Plaintiff's NYSHRL claims should not be dismissed on these grounds because that statute expressly applies to contractors and employees of contractors and vendors. See N.Y. Exec. Law § 296-d (“An employer may be held liable to a non-employee who is a contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace ․”).

3. Plaintiff Has Alleged an Adverse Employment Action

Defendants seek dismissal of Plaintiff's Title VII claims on the basis that Plaintiff fails to allege an adverse employment action. Ascend Mem. at 15–17; Amber Mem. at 16. While Defendants are correct as to Plaintiff's allegations regarding her schedule, their argument fails as to Plaintiff's allegations that Defendants decided she could no longer work at their schools.⁵

To state a claim under Title VII, a plaintiff must show “(1) that she is a member of a protected class, (2) that she was qualified for the position she sought, (3) that she suffered an adverse employment action, and (4) can sustain a minimal burden of showing facts suggesting an inference of discriminatory motivation.” Littlejohn v. City of N.Y., 795 F.3d 297, 311 (2d Cir. 2015) (emphasis in original).

Defendants do not dispute on this motion that Plaintiff is a member of a protected class or that she was qualified for her position as a substitute teacher. But both argue that she did not suffer any adverse employment action. Ascend Mem. at 15–17; Amber Mem. at 16.

A plaintiff sustains an adverse employment action if she “endures a ‘materially adverse change’ in the terms and conditions of employment.” Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 238 (2d Cir. 2007) (quoting Galabya v. New York City Bd. of Educ., 202 F.3d 636, 639 (2d Cir. 2000). “To be ‘materially adverse’ a change in working conditions must be ‘more disruptive than a mere inconvenience or an alteration of job responsibilities.’ ” Kassner, 496 F.3d at 238 (quoting Galabya, 202 F.3d at 640). “A change that is ‘materially adverse’ could consist of, inter alia, ‘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. Kassner, 496 F.3d at 238 (quoting Galabya, 202 F.3d at 640).

Plaintiff alleges two adverse employment actions: first, that Ascend altered her schedule to have her work an additional 30 minutes; and second, that both Ascend and Amber told Swing that Plaintiff was no longer welcome to teach at their schools. Pl. Opp. at 4–6; Compl. at 10–11.

Extending Plaintiff's shift by 30 minutes does not constitute an adverse employment action. Indeed, courts have repeatedly found that more significant and permanent shift changes are “mere inconvenience[s]” so long as the scheduling “does not occasion a reduction in wages or job responsibilities.” Albuja v. Nat'l Broad. Co. Universal, 851 F. Supp. 2d 599, 608 (S.D.N.Y. 2012); see also Booker v. Fed. Reserve Bank of N.Y., 2003 WL 1213148, at *11 (S.D.N.Y. Mar. 17, 2003) (“Typically, lateral transfers or shift changes without a loss of pay or other material changes in working conditions do not constitute an adverse employment action.”) (citing Richardson v. N.Y.S. Dep't of Correctional Serv., 180 F.3d 426, 446 (2d Cir. 1999).⁶ Plaintiff cannot bring a discrimination case based upon such a minor change in schedule.

However, Defendants’ decisions that Plaintiff could no longer work at their schools are differently situated. Both Defendants argue that their respective determinations not to rehire Plaintiff were not adverse employment actions because, as a temporary worker, Plaintiff was not entitled to future work for them. However, a refusal to offer subsequent work to a temporary worker can constitute an adverse employment action if she had a reasonable expectation of being rehired. See Brown v. Nassau Cnty., No. 10-CV-5062 (JS) (AKT), 2011 WL 6754092, at *2 (E.D.N.Y. Dec. 22, 2011) (“Whether a decision not to rehire a seasonal employee is considered adverse employment action depends on whether the plaintiff had a reasonable expectation of being rehired.”).

Plaintiff alleges that she regularly worked with both Defendants, and claims that around 40 percent of her assignments were with Ascend. Pl. Opp. at 11, 14. She therefore has pled sufficient facts to claim, drawing all inferences in her favor as the non-moving party, that she had a reasonable expectation of being rehired by Defendants. Stated another way, it cannot be determined at the pleading stage that Plaintiff had no reasonable expectation of being rehired. Defendants’ refusal to offer her future work therefore could constitute an adverse employment action. Because she has pled an adverse employment action, her Title VII discrimination claim should not be dismissed on this basis.

4. Plaintiff Does Not Plead Sufficient Facts to Allow a Reasonable Inference of Discrimination

Next, Defendants argue that Plaintiff does not allege enough facts to state a plausible claim that the actions about which she complains occurred for a discriminatory reason. Ascend Mem. at 17–20; Amber Mem. at 15–17. The undersigned agrees and recommends dismissal of all of Plaintiff's discrimination claims on this basis.

For her Title VII and Section 1981 discrimination claims, Plaintiff must make a showing that she “can sustain a minimal burden of showing facts suggesting an inference of discriminatory motivation.” Lee, 751 F. Supp. 3d at 275 (quoting Littlejohn, 795 F.3d at 311). For her NYSHRL claims, Plaintiff must allege she was “ ‘treated ‘less well’ ․ because of a discriminatory intent,’ i.e., that the unequal treatment was based, at least in part, on a protected characteristic.” Lee, 751 F. Supp. 3d at 275 (quoting Mihalik v. Credit Agricole Cheuvreux N. Am. Inc., 715 F.3d 102, 110 (2d Cir. 2013)).

Against both Ascend and Amber, Plaintiff alleges that she overheard other teachers in the break room disparaging the Arabic language and the city of Dubai in the United Arab Emirates. Compl. at 11–12. She identifies one of the individuals who made these comments at Ascend as another substitute teacher. Compl. at 11, 13. She identifies the offending individuals at Amber as “two teachers” but does not provide further detail. Id. at 12.

In determining whether such remarks are probative of discriminatory intent, courts look to four factors:

(1) who made the remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and (4) the context in which the remark was made (i.e., whether it was related to the decision-making process).

Henry v. Wyeth Pharms., Inc., 616 F.3d 134, 149 (2d Cir. 2010). Although Henry addressed claims that went to trial, courts have applied these same factors in assessing the adequacy of a plaintiff's allegations on a motion to dismiss. Makhsudova v. City of N.Y., No. 20-CV-10726, 2022 WL 1571152, at *1, 7 (S.D.N.Y. May 18, 2022) (applying these factors on a motion to dismiss).

Taking Plaintiff's allegations as true, she does not allege that a supervisor or decisionmaker made the comments in question or even was present when they were made. In fact, the only speaker she identifies was a fellow substitute teacher, an individual with no role in supervising or overseeing her. Compl. at 11. At Amber, she calls the individuals who made the offensive remarks “teachers,” which indicates they also lacked supervisory authority. Id. at 12.

These alleged remarks also had no connection to any decision-making process regarding Plaintiff's schedule or whether she would be offered future positions at Ascend or Amber. Plaintiff alleges that they were casual conversations overheard in the breakroom. Id. at 11–12. Thus, while these remarks were made in close proximity to the decisions that Plaintiff challenges, and further assuming that they were discriminatory,⁷ the fact remains that they were not made by any individual with supervisory authority or in a context related to any decision about rehiring or hours. The remarks that Plaintiff overheard at lunch are insufficient to support an inference of discriminatory intent. See Johnson v. L'Oreal USA, No. 18-CV-9786 (JPC), 2021 WL 4482167, at *12 (S.D.N.Y. Sept. 30, 2021) (finding no inference of discriminatory intent when plaintiff did not suggest “[the] remarks were made in connection with the decision to fire her” and remarks were not made by a decisionmaker).

Plaintiff also attempts to demonstrate Ascend's discriminatory intent through “a showing that the employer treated plaintiff less favorably than a similarly situated employee outside [her] protected group.” Mandell v. Cnty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003) (internal quotation marks and citation omitted). “An employee is similarly situated to co-employees if they were (1) subject to the same performance evaluation and discipline standards and (2) engaged in comparable conduct.” Ruiz v. Cnty. of Rockland, 609 F.3d 486, 493–94 (2d Cir. 2010) (internal quotation marks and citation omitted). The facts and circumstances of the comparator and the plaintiff need not be identical, but must bear a “reasonably close resemblance.” Id. at 494 (citation omitted).

Plaintiff claims that three other substitute teachers who were not white ⁸ did not have their schedules changed and left at 3:30 p.m. Compl. at 11. But Plaintiff fails to plead enough facts about these alleged comparators to support a reasonable inference of discriminatory intent by Ascend. For example, the Complaint does not state whether the alleged comparators were also hired through Swing, whether they had the same start time as Plaintiff, or what classes they taught. Additionally, at least one other substitute teacher also worked until 4:00 p.m. Compl. at 16. Plaintiff also does not provide information about the total number of substitutes and their races.

Because Plaintiff fails to allege facts suggesting an inference of discriminatory motivation or that her unequal treatment was based, at least in part, on a protected characteristic, she fails to plead discrimination in Defendants’ respective decisions about her employment, and her discrimination claims under Title VII, Section 1981, and the NYSHRL should all be dismissed for this reason.

B. Plaintiff Fails to Plead a Claim for Retaliation

Finally, Plaintiff's retaliation claims should be dismissed because she fails to plead facts showing that she engaged in protected activity at either Ascend or Amber.

Claims for retaliation under Title VII and Section 1981 are governed by the McDonnell Douglas framework. Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005); Lee, 751 F. Supp. 3d at 280. To establish a prima facie case of retaliation, a plaintiff must demonstrate “(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.” Jute, 420 F.3d at 173 (quoting McMenemy v. City of Rochester, 241 F.3d 279, 282–83 (2d Cir. 2001). The standard under the NYSHRL is that the plaintiff must show she took an action opposing her employer's discrimination and that, as a result, the employer “engaged in conduct that was reasonably likely to deter a person from engaging in such [protected] action.” Lee, 751 F. Supp. 3d at 284 (quoting Mihalik, 715 F.3d at 112).

1. Plaintiff Fails to Allege Protected Activity

Plaintiff's asserted protected activity was an email she sent to an Ascend official complaining about her schedule change. Compl. at 11, 14, 30. That email is attached to the Complaint and can therefore be considered on this motion to dismiss.

The email in question does not expressly mention any discriminatory conduct. It does not refer to the allegedly discriminatory comments that Plaintiff overheard at lunch, but instead addresses the unwanted schedule change. Compl. at 30. Plaintiff warned that she had “different platforms to hold you accountable. Department of education, community service, other investigation offices.” Id. Ascend argues that this email was not sufficiently specific to qualify as protected activity. Ascend Mem. at 23. Amber argues that even if the email to Ascend constituted protected activity, Amber was completely unaware of it and could not have retaliated against Plaintiff based on it. Amber Mem. at 19–20.

a. Ascend

To qualify as protected activity, an employee's actions must be “ ‘sufficiently specific ․ so that the employer is put on notice that the plaintiff believes [s]he ․ is being discriminated against.’ ” Jaeger v. N. Babylon Union Free Sch. Dist., 191 F. Supp. 3d 215, 232 (E.D.N.Y. 2016) (quoting Ellis v. Century 21 Dep't Stores, 975 F. Supp. 2d 244, 281 (E.D.N.Y. 2013)). “Absent a claim of unlawful discrimination, general complaints about employment concerns do not constitute protected activity under Title VII.” Brummell v. Webster Cent. Sch. Dist., No. 06-CV-6437, 2009 WL 232789, at *5 (W.D.N.Y. Jan. 29, 2009); see Castro v. City of N.Y., 24 F. Supp. 3d 250, 270 (E.D.N.Y. 2014) (quoting Int'l Healthcare Exchange, Inc. v. Global Healthcare Exchange, LLC, 470 F. Supp. 2d 345, 357 (S.D.N.Y. 2007) (“Ambiguous complaints that do not make the employer aware of alleged discriminatory misconduct do not constitute protected activity.”).

Under these standards, Plaintiff does not sufficiently allege that she engaged in protected activity. Nothing in Plaintiff's email would place Ascend on notice that she believed her schedule change was the result of discrimination. The message described the schedule change as “illegal” and “a scam,” but made no reference to Plaintiff's ethnicity, race or the allegedly discriminatory remarks she overheard. Compl. at 30. Instead, Plaintiff charged that “[i]t is illegal changing the contract,” which would indicate that she was complaining about a breach of contract, not discrimination. Id. While there were statements suggesting that Plaintiff had been singled out in some way (“[Ascend] didn't do that [i.e. change the schedule] with other teachers.”; “Answer my question now: why only with me?”), the message never accused Ascend of doing so for discriminatory reasons. Id. Similarly, while Plaintiff threatened to use the “Department of education, community service, other investigation offices” to “hold you accountable,” she made no reference to a discrimination claim or to any agency specifically charged with enforcing anti-discrimination laws. Id.

In short, Plaintiff's March 20, 2024 email to Ascend failed to mention any protected category or discriminatory conduct, and she does not claim there was any other communication with Ascend that could constitute protected activity. Because Plaintiff failed to adequately plead a protected activity and/or that Ascend was aware of a protected activity, her retaliation claims against Ascend should be dismissed. See Kelly v. Howard I. Shapiro & Assocs. Consulting Eng'rs, P.C., 716 F.3d 10, 17 (2d Cir. 2013) (upholding dismissal of Title VII and NYSHRL claims where “nothing in [plaintiff's] behavior, as described in her complaint, would have allowed her employer to reasonably have understood[ ] that [Plaintiff's] opposition was directed at conduct prohibited by Title VII.”).

b. Amber

Plaintiff fails to allege either that she separately complained to Amber about any discriminatory conduct or that Amber was aware of the complaint she made to Ascend. She makes the conclusory allegation that Ascend or perhaps a third party was directing Amber to retaliate against her, Compl. at 12–13, but alleges no facts that would allow the Court to infer that Amber was aware of any protected activity. As a result, all retaliation claims against Amber should be dismissed.

C. Leave to Amend

“Generally, leave to amend should be freely given, and a pro se litigant in particular should be afforded every reasonable opportunity to demonstrate that [s]he has a valid claim.” Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (citation omitted). “[T]he court should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation omitted). Plaintiff has not yet amended her complaint, and at this juncture, the Court cannot definitively say that Plaintiff could not amend her complaint to plead a viable cause of action.

Accordingly, while the Court should grant Defendants’ motions, Plaintiff should be afforded the opportunity to amend her complaint to cure the deficiencies identified in this Report and Recommendation.

V. CONCLUSION

For these reasons, the undersigned respectfully RECOMMENDS that Defendants’ motions to dismiss be GRANTED with leave to amend.

The Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to the pro se plaintiff.

PROCEDURE FOR FILING OBJECTIONS

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See Fed. R. Civ. P. 6(a), (b), (d). Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Analisa Torres, United States Courthouse, 500 Pearl St., New York, New York 10007-1312. Any requests for an extension of time for filing objections must be directed to Judge Torres.

FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; see Thomas v. Arn, 474 U.S. 140, 155 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).

FOOTNOTES

1.   Citations to the Parties’ filings refer to the ECF page numbers stamped in the header.

2.   Plaintiffs do not need to exhaust administrative remedies before filing a § 1981 claim. See Campbell v. Grayline Air Shuttle, Inc., 930 F. Supp. 794, 801 (E.D.N.Y. 1996).

3.   According to the EEOC, “[w]hen a charge is filed against an employer ․ the EEOC will notify the [employer] within 10 days.” What You Can Expect After a Charge is Filed, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/employers/what-you-can-expect-after-charge-filed.

4.   Ascend's discussion of this issue is very brief and fails to discuss the joint employer doctrine. The only authority that Ascend cites is Felder v. U.S. Tennis Ass'n, 27 F.4th 834 (2d Cir. 2022), which is discussed below.

5.   Unlike Amber, which limits this argument to Plaintiff's Title VII claim (see Amber Mem. at 16), Ascend appears to seek dismissal of Plaintiff's Section 1981 and NYSHRL claims on this basis. See Ascend Mem. at 15–17. But adverse employment action is not an element of the Section 1981 and NYSHRL claims. See Lee v. Riverbay Corp., 751 F. Supp. 3d 259, 275 (S.D.N.Y. 2024) (to state a claim under NYSHRL for claims that accrued after 2019, a plaintiff must allege only that she was treated less well because of discriminatory intent); Felder, 27 F.4th at 848 (2d Cir. 2022) (“To establish a claim under 42 U.S.C. § 1981, a plaintiff must allege facts supporting that (1) the plaintiff is a member of a racial minority; (2) defendant's intent to discriminate on the basis of race; and (3) discrimination concerning one of the statute's enumerated activities.”) (cleaned up).

6.   A supervisor at Ascend told Plaintiff this was not a shift change; the initial assignment had been incorrect and the plan had always been for her to work until 4:00 p.m. Compl. at 10. Plaintiff apparently claims otherwise, and that assertion is credited on a motion to dismiss.

7.   It is possible to construe these remarks as benign. Disliking a language is not the same as harboring animus toward those who speak it. Additionally, one could dislike a particular city for any number of nondiscriminatory reasons. But at this stage, all reasonable inferences are drawn in Plaintiff's favor.

8.   Plaintiff alleges that Ascend discriminated against her as a white person, in contrast to the other substitutes who were people of color and treated more favorably. Compl. at 11.

Henry J. Ricardo United States Magistrate Judge