Bacchus v. New York City Department of Education (137 F. Supp. 3d 214, 2015)

MEMORANDUM & OPINION

PAMELA K. CHEN, District Judge:

Plaintiff Merlene Bacchus, a former school aide in the New York City public school system, brings this action against the New York City Department of Education (“DOE”), District Council 37 and its affiliate, the Board of Education Employees Local 372 (collectively “Union Defendants” or “Union”), and Renee Pepper (“Pepper”), assistant principal at Public School 259 (“PS 259”). Bacchus alleges that the DOE and Pepper violated Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 1981, the New York State Human Rights Law (“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”) by embarking on a disciplinary campaign against Bacchus that resulted in her termination, subjecting her to a hostile work environment, and retaliating against her after she complained to. the DOE and the New York State Division of Human Rights. Bacchus also alleges that the Union Defendants breached their duty of fair representation to her.

There are three motions currently pending before the Court. The DOE and Pepper (collectively, “the City Defendants” or “the City”) move for summary judgment on Bacchus’s discrimination and retaliation claims. The Union and Bacchus each cross-move for summary judgment with respect to Bacchus’s State and City law claims for breach of the duty of fair representation.

For the reasons set forth below, the Court grants the City Defendants’ motion for summary judgment in part and denies it in part. Specifically, the Court grants summary judgment to the City Defendants on Bacchus’s Title VII and NYSHRL retaliation and retaliatory hostile work environment claims; and NYCHRL retaliation and retaliatory hostile work environment claims. The Court denies summary judgment to the City Defendants on the remainder of Bacchus’s Title VII, NYSHRL, and NYCHRL claims. The Court denies summary judgment to the Union and Bacchus on her State law claim for breach of the duty of fair representation. The Court dismisses Bacchus’s 42 U.S.C. ■ § 1981 claims, her breach of contract claim against the DOE, and her City law claim for breach of the duty of fair representation. Finally, with respect to the claims remaining in this case, the Court dismisses Pepper from Bacchus’s Title VII claims, and the DOE from Bacchus’s NYSHRL and NYCHRL discrimination claims.'

I. BACKGROUND AND FACTS

A. The Union’s Failure To Oppose Bacchus’s 56.1 Statement

Pursuant to Local Rule 56.1(c), “[e]ach numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party.” Local Civ. R. 56.1(c). The Union submitted a Rule 56.1 statement in support of its summary judgment motion (Dkt. 66,' Union Defendants’ Local Rule 56.1 Statement (“Union 56.1”)), but failed to submit an opposing statement to Bacchus’s 56.1 Statement supporting her cross-motion for summary judgment. Bacchus therefore asks the Court to deem all facts in her 56.1 Statement as uncori-tested. (Dkt. 77, Bacchus Reply Memorandum (“Bacchus DFR Reply”), at ECF 1-2.)

“Where the party opposing a motion for summary judgment fails to submit a proper counterstatement of material facts, the court may choose to accept all factual allegations of the opposing part[y] as true for the purposes of deciding the motion.” Mt. Hawley Ins. Co. v. Abraham Little Neck Dev. Grp., Inc., No. 09 CV 3468, 2015 WL 867010, at *5 (E.D.N.Y. Feb. 27, 2015) (internal quotations and citations omitted) (emphasis in original). Alternatively, the Court may opt to conduct an assiduous review of the record. Id. Given the nature of the case, and the competing 56.1 statements filed on the Union’s motion for summary judgment, the Court has elected to conduct such a review of the record rather than accept all factual allegations in Bacchus’s 56.1 statement as true.

B. Facts

The following facts are undisputed unless otherwise noted.

1. Parties and Individuals Relevant to Bacchus’s Claims

Merlene Bacchus, a black woman, is of Guyanese national origin. (DOE 56.1, ¶ 3; PI. DFR 56.1, ¶1.) She worked for the DOE as a School Aide from approximately December 1994 through March 11, 2011. (PI. DFR 56.1, ¶2.) From about September 4, 2007 through March 11, 2011, Bacchus was assigned to PS 259, located in Jamaica, Queens. (PI. DFR 56.1, ¶ 3; DOE 56.1, ¶ 2). Her duties included answering phones, making copies, maintaining book inventory, delivering books to classrooms, supervising students, and performing related work for the principal and PS 259 office staff. (DOE 56.1, ¶ 6.)

The principal of PS 259, Angela Thompson, hired Bacchus. (DOE 56.1, ¶ 2.) Thompson also identified as black. She died in January 2012 and is not a named defendant in this suit. (DOE 56.1, ¶ 4.) Defendant Renee Pepper was an Assistant Principal at PS 259. (DOE 56.1, ¶13.) Barbara Levy began working Thompson’s secretary in August 2007. (DOE 56.1, ¶14.) Colleen O’Connell was a guidance counselor- at PS 259; her duties included táking student statements regarding student problems or conflicts. (DOE 56.1, ¶¶ 15-16.) Jennifer LaBella was a teacher at"PS 259. (Dkt. 79-6 at EOF 3.) Levy, O’Connell, and LaBella are not named as defendants in this suit.

Other school aides who worked at PS 259 during the relevant time frame included: Trina Mixon, who is black and non-West Indian; Katarzyna Lopez, who is white and of Polish national origin; Donna Arjoon, who is West Indian; and Shawn Horton, who is black and non-West Indian. (DOE 56.1, ¶¶ 7-9; Dkt. 70, Affidavit of Donna Arjoon.) In November 2009, PS 259 laid off Lopez and Horton due to budget cuts. (DOE 56.1, ¶ 9.) Lopez and Horton occasionally worked as substitute aides and Lopez returned to PS 259 full-time in January 2011. (DOE 56.1, ¶¶ 11-Í2.)

During her DOE employment, Bacchus belonged to the American Federation of State, County, Municipal Employees, District Council 37 (“District Council 37”) and its affiliate, Local 372, and was a member in good standing. (Pl. DFR 56.1, ¶¶ 4, 7.) The Union officials relevant to this action are Robin Roach, General Counsel for District Council 37 (Pl. DFR 56.1, ¶ 5); Myrna Cabranes, Assistant Director of District Council 37 (Pl. DFR 56.1, ¶6); Phyllis Wambser, Union representative for all School Aides (Pl. DFR 56.1, ¶ 8); and Craig Dickerson, who replaced Wambser as representative upon Wambser’s retirement, (Pl. DFR 56.1, ¶ 10).

A collective bargaining agreement (“CBA”) between the DOE and the Union covered Bacchus’s employment. (Pl. DFR 56.1, ¶¶ 13.a-13.e.) The CBA set forth a four-step grievance procedure. (Union 56.1, ¶ 5.) In cases of suspensions and terminations, the Union could initiate a grievance at the second level (“Step 2”). (Union 56.1, ¶ 6.) If denied at Step 2, the Union could take the grievance to a third level (“Step 3”). (Dkt. 80-5 at ECF 59.) If denied at step 3, the Union could appeal the denial and request that the grievance be arbitrated before a grievance panel. (Union 56.1, ¶ 7.) The CBA provided that “[ujpon request to the head of the school, a Union staff representative shall be permitted to meet with the employees in -the unit during their non-working time, within the school, for the purpose of investigating complaints and grievances[.]” It also provided that a Union representative “shall be permitted to investigate grievances and complaints during working time provided such grievances require inspection of working conditions at the work focation.” (Pl. DFR 56.1, ¶ 13.b (quoting CBA, Article XX).)

The Union maintains that it has established procedures that are initiated upon the filing of a grievance by a union member. (Union 56.1, ¶ 8.) With respect to a denial of a grievance at the Step 3 level, the grievance representative submits an internal request for arbitration to one of the Union’s Assistant Directors. (Union 56.1, ¶ 9.) The Assistant Director reviews the request and then forwards the case to the Union’s Legal Department. (Union 56.1, ¶ 9; PLAJnion 56.1 Opp., ¶9.) The Associate General Counsel of the Union conducts a merit review of arbitration requests sought by Union members. (Union 56.1, ¶¶ 13-15.)

2. Bacchus’s Affidavit in Opposition to the City Defendants’ Motion

Before recounting the events relevant to> Bacchus’s claims, the Court addresses the City’s objection to the July 29, 2014 affidavit Bacchus submitted in opposition to the City’s motion. (DOE Reply Memo at ECF 2-4.) The City contends that the affidavit makes certain allegations that appear for the first time in the affidavit; Bacchus apparently did not raise these allegations in her rebuttal statements to the DOE, her complaints to the DOE’s Office of Equal Employment (“OEO”), her complaints to the NYSDHR, or her deposition. (Mat ECF 3.)

“[A] party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or , addition, contradicts the affiant’s previous deposition testimony.” Hayes v. New York City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir.1996) (citing Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969)). “[Factual issues created solely by an affidavit crafted to oppose a summary judgment motion are not ‘genuine’ issues for trial.” Id. Thus, “statements in an affidavit filed in response to a summary judgment motion' [do] not create material factual disputes where none existed without such affidavit.” Id. (citing Perma Research, 410 F.2d at 578).

Accordingly, while the Court does not reject Bacchus’s affidavit in its entirety, it does reject the portions of the affidavit identified by the City as raising factual issues for the first time. Specifically, the Court disregards Bacchus’s contentions that: (1) Pepper,' Thompson, Levy and non-Defendant teacher LaBella made derogatory remarks or insulting comments about her national origin (Bacchus DOE Aff., ¶ 13); (2) Thompson stated that West Indian women were stupid (Bacchus DOE Aff., ¶ 15); (3) Thompson frequently corrected Plaintiff s' pronunciation of words in front of staff and visitors, and stated “Mer-lene, what are you saying? You sound like you’re saying blah blah blah ...” (Bacchus DOE Aff., ¶ 16.); and (4) LaBella called Bacchus an “ugly monkey” while making animal noises. (Bacchus DOE Aff.-, ¶ 17.)

3. Bacchus’s Employment at PS 259

Prior to working at PS 259, Bacchus had never had disciplinary charges brought against her. (Dkt. 79-6, Bacchus Complaint to DOE Office of Equal Employment (“OEÓ Compl.”) at ECF 5.) The events relevant to her claims began in 2009, approximately a year and a half after she began wdrking at PS 259. From November 2009 to February 2011, Bacchus contends that staff at PS 259 fabricated incidents against her and manipulated students into accusing her of verbal abuse and corporal punishmént.

Bacchus testified that between 20Ó9 and 2011, she frequently overheard Thompson say that she did not like West Indian women and that they could not speak English. (DOE 56.1, ¶ 17.) Bacchus further testified that Thompson regularly shouted at her and mocked her, that Thompson told her to “learn to speak the English language”, and that Thompson, Pepper and Levy regularly mimicked Bacchus’s accent and laughed at Bacchus when she spoke. (P1./DOE 56.1 Opp., ¶ 17.) Bacchus .also testified - that LaBella would make comments about Bacchus such as “look at the mad old lady” and referred to her as “Aunt Jemima” at least twice a week. (Dkt. 78-2, Bacchus Dep. at ECF 72.)

Letter of Instruction. On May 26, 2009, Pepper met with Bacchus and union representative Wambser to discuss an incident on May 19, 2009, in which Bacchus brought a fourth-grade class from the auditorium to the students’ classroom without instruction from a supervisor. (DOE 56.1, ¶ 26.) Bacchus disputes the incident happened as Pepper alleged. (P1./DOE 56.1 Opp., ¶ 26.) Pepper issued a letter of instruction to Bacchus regarding the incident; Bacchus concedes that the letter was not a disciplinary letter. (DOE 56.1, ¶ 27; P1./DOE 56.1 Opp., ¶ 27.) Pepper also issued a letter of instruction to Mixon regarding the same May 19, 2009 incident, but Bacchus contends that the letter to Mixon was an “after-thought” because it was not signed by Pepper, and Mixon received it a week after Bacchus received hers. (DOE 56.1, ¶ 28; P1./DOE 56.1 Opp., ¶ 28,)

Box Dispute. On several occasions in September 2009, Thompson and Pepper ordered Bacchus to lift heavy boxes onto a flatbed cart. (DOE 56.1, ¶ 18; P1./DOE 56.1 Opp., ¶¶ 18-19.) Though Bacchus contends that no other school aides were asked to lift heavy boxes, the record, including Bacchus’s own OEO complaint, plainly contradicts her. (Compare PI./ DOE 56.1 Opp., ¶ 18 with Dkt. 78-11, Deposition of Katarzyna Lopez (“Lopez Dep.”) at ECF 63 (“we do lift boxes”) and OEO Compl. at ECF 3 (noting Bacchus and another aide were asked to do heavy lifting.)) Bacchus thereafter hurt her back and presented the school with a doctor’s note stating that she could not lift heavy-objects. (P1./DQE 56.1 Opp., H 20.) Thompson then requested that Bacchus undergp a medical examination by the DOE. (DOE 56.1, ¶ 20.) Following a DOE-ordered medical examination on December 2, 2009, Bacchus was deemed fit for duty. (DOE 56.1, ¶¶ 21-22.)

At about the same time that,Bacchus was ordered for a medical examination in 2009, Thompson also requested that Trina Mixon undergo a medical examination following Mixon’s refusal to carry two reams of paper. (DOE 56.1, ¶ 23.) Following a DOE-ordered medical examination on December 1, 2009, Mixon was deemed fit for duty. (DOE 56.1, ¶ 24.)

November 23, 2009 Incident with M.P.: A fourth-grade student, M.P., alleged that on November 23, 2009, Bacchus grabbed her by the shoulders. (DOE 56.1, ¶29.) Bacchus maintains that M.P.’s statement is subject to certain irregularities: (1) M.P. delayed in reporting the incident to the school, and only did so. at O’Connell’s behest; (2) M.P. alleged that the incident happened outside, but Thompson, Pepper and/or O’Connell could not provide an eyewitness to the incident; (3) M.P.’s, statement appears to be written in at least two different handwritings; (4) M.P. reported that “it was starting to rain”, but it did not rain on the date, in question; and (5) a different version of M.P.’s statement omits the statement “it was starting to rain.” (P1./DOE 56.1 Opp., ¶ 29.), (See Dkt. 79-5 at ECF 122 (“starting to rain”); Dkt. 79-7 at ECF 18 (no mention of rain).)

Incident with Pepper. On November 25, 2009, Pepper shouted at Bacchus. (DOE 56.1, ¶ 25.) While the City contends that Pepper disciplined Bacchus for her failure to. line up students in. the gym, Bacchus contends that Pepper yelled at her without cause. (DOE-56.1, ¶ 24; PI./ DOE 56.1 Opp., ¶ 25.)

Incidents on November 25, 2009 and November 30, 2009: Two fourth-grade students, M.S. and P.H., alleged that on November 25, 2009, Bacchus grabbed them by their collars and yelled, “you are in trouble.” (DOE 56.1, - ¶ 32.) Bacchus states that while the school claims that the incidents happened .at the same time, the school reported them ■ as separate incidents, and made the reports on different dates. (P1./DOE 56.1 Opp., ¶ 32.)

Another fourth-grade student, M.A., alleged that on November 25, 2009, Bacchus grabbed him by the wrist. Students K.Z. and T.W. provided witness statements regarding that incident. •. (DOE 56.1, ¶¶ 33-34.) Bacchus states that T.W.’s and KZ.’s statements contain two different kinds of handwriting; and that M.A.’s statement, which was originally given in Spanish, does not exactly match O’Connell’s translation. (P1./DOE 56.1 Opp., ¶'33-34.)

On November 30, 2009, the grandmother of fourth-grader I.D. called the school to report that I.D. came home crying because Bacchus had yelled at him and his class, calling them “jerks.” (DOE 56.1, ¶35.) Bacchus points out that O’Connell’s initial report on the incident states that I.D.’s grandmother calléd O’Connell personally, but during O’Connell’s deposition, she maintained that the report was made to Thompson. (P1./DOE 56.1 Opp., ¶ 35.)

■ Disciplinary Meeting- on Student Allegations. Bacchus met with Thompson and Wambser on December 9, 2009, to discuss the allegations by students M.P., M.S., P.H., M.A. and I.D. (DOE 56.1, ¶¶29, 36.) Thompson deemed the incidents substantiated, stated that Bacchus’s actions “were a result of extreme poor judgment”, and issued Bacchus a letter to file. (DOE 56.1, ¶¶ 31, 37-39.)

December 3, 2009 Incident with J.T.: The mother of fourth-grade student J.T. alleged that on December 3, 2009, Bacchus called him “stupid.” (DOE 56.1, ¶¶ 40-41.) Bacchus states that J.T.’s mother did not speak English (Pl./DOE 56.1 Opp., ¶41), and O’Connell could not recall how the report was made (Dkt. 80-1, Deposition of Colleen O’Connell (“O’Connell Dep.”) at ECF 8.) ■

On February 5, 2010, Thompson deemed the allegation substantiated and issued Baechus a letter to file; (DOE 56.1, ¶¶ 42-43.) The letter recommended that Bacchus avail herself of the Union’s Personal Service Unit for training (id), but Bacchus maintains the Union had no such unit. (Pl./DOE 56.1 Opp., ¶ 42.)

Bathroom, Incident. On January 6, 2010, Pepper asked Bacchus whether she was on the clock as Bacchus was heading to the bathroom. (DOE 56.1, ¶ 54.) Bacchus responded that she was, and then said, “Now I am being followed to the bathroom.” (DOE 56.1, ,¶ 54.)' According to the DOE,, when Bacchus returned from the bathroom, she laughed and said to Pepper, “wipe my butt.” (DOE 56.1, ¶ 55.) Witness statements from O’Connell and Levy state that they heard Bacchus say, “Are you going to wipe my butt too?” (DOE 56.1, ¶ 56.) However, Bacchus maintains she never said the phrase “wipe my butt”, and disputes O’Connell’s presence during the incident. (P1./DOE 56.1 Opp., ¶ 56.)

On January 15, 2010, Bacchus met with Pepper, Wambser, Thompson and O’Con-nell to discuss the January 6, 2010 bathroom incident. (DOE 56.1, ¶ 53.) During the meeting, Wambser told Bacchus that it was within Pepper’s purview to ask whether she was on the clock, and that making a comment to a supervisor about being followed to the bathroom was not appropriate. (DOE 56.1, ¶¶ 59-60.) Wambser recommended that Bacchus meet with the Union’s Personal Service Unit for training, which Bacchus contends does not exist. (DOE 56.1, ¶ 61; P1./DOE 56.1 Opp., ¶61.) It is undisputed that Bacchus did not attend any training. (DOE 56.1, ¶ 62.)

Pepper issued a disciplinary letter to Bacchus’s file dated January 19, 2010, stating that Bacchus’s behavior was unsatisfactory and unprofessional. (DOE 56.1, ¶ 64.) Bacchus submitted a rebuttal, denying that she had ever uttered the phrase “wipe my butt,” stating that Levy, Pepper, and Thompson lied about the incident, and accusing Levy of “perjur[ing] herself to try to have [Bacchus] dismissed” and have the school aides she preferred re-hired. (Dkt. 79-6, Bacchus Letter dated 1/28/2010, at ECF 10.)

Umbrella and Handbag Incident. On April 15, 2010, Pepper met with Bacchus and Wambser to discuss two incidents: (1) Bacchus’s use of an open umbrella while supervising students outside and her carrying a handbag while supervising students in the lunchroom; and (2) Bacchus’s failure to immediately report an incident between two students. (DOE 56.1, ¶¶ 65, 68.) Bacchus states that other school aides carried their handbags and umbrellas, but that she was the only one written up for doing so. (P1./DOE 56.1 Opp., ¶ 65; see also Dkt. 61-7, Bala Dep. at ECF 18; Dkt. 79-4, Pepper Dep., at ECF 22.)

With respect to the incident between the two students, a fifth grader had reported to Bacchus that another student had slapped her in the bathroom between 11:20 am and 12:00 pm, but Bacchus did not report the incident to school administrators until 2:35 pm. (DOE 56.1, ¶ 68.) Pepper found that Bacchus had failed to use good judgment by not reporting the incident immediately, but Bacchus disputes Pepper’s finding, given that she made a report and that the student who reported the incident was laughing at the time of the report, and was not injured. (DOE 56.1, ¶ 68;- P1./DOE 56.1 Opp., ¶68.) Wambser pointed out that the school’s incident-reporting policy did not specify that such reports should be made immediately and that Bacchus had technically complied with the policy. (P1./DOE 56.1 Opp., ¶¶ 68.a-68.b.) Pepper issued Bacchus a warning letter on both incidents. (DOE 56.1, ¶ 70.)

Bacchus notes that in 2009, a parent complained to the school that Lopez had failed to properly supervise students during a lunch period, thereby alleging one student- to pull on her daughter’s neck/ back brace. (P1./DOE 56.1 Opp., ¶ 68.e.) Pepper did not counsel Lopez,- discipline her, or issue a letter to Lopez’s file. (PL/ DOE 56.1 Opp., ¶ 68.f.) Lopez testified that she did not report or log the incident because the students were fine. ¡■(See Lopez Dep. at ECF 56-57.)

4. Bacchus’s Suspension

Student E.S. alleged that on December 1, 2009, Bacchus pulled E.S.’s hair when she walked out of line without Bacchus’s permission. (DOE 56.1, ¶ 44.) E.S. reported the incident after LaBella heard other students discussing it. (DOE 56.1, ¶45.) Students B.B. and R.R. provided witness statements. (DOE 56.1, ¶ 46.) Bacchus points to issues with the reports of the incident: (1) Thompson stated the incident happened beyond the double doors, but the statements by E.S., R.R. and B.B. indicate that it happened in the lunch room; (2) Thompson did not interview other school staff present in the lunch room; and (3) the allegation was reported to the DOE’s Office of Special Investigation (“OSI”) on December 10, 2009 at 2:53 p.m., but the student did not make the allegation until December 10, 2009 ‘at 3:00 pm. (P1./DOE 56.1 Opp., ¶¶ 44-45.)

On January 15, 2010, Bacchus met with Thompson and Wambser. (DOE 56.1, ¶47.) Thompson deemed the allegation substantiated, and suspended Bacchus without pay for two weeks. (DOE 56.1, ¶ 47.)

Bacchus challenged the suspension through her union. (Union 56.1, ¶26.) Roach initially declined to take the suspension grievance to an arbitration panel, and mailed Bacchus a letter stating her reasons for the declination. (Union 56.1, ¶28.) The.letter was addressed to Bacchus at her residence on 106th Avenue. (Union 56.1, ¶29.) Bacchus met with Roach to contest the decision, and the Union thereafter took the suspension grievance before an arbitration panel. (Union 56.1, ¶ 31.)-

- E.S. testified at the hearing, and the arbitrator found her to be “truthful and consistent with her prior written statement” and “very credible.” (DOE 56;1, ¶ 49.) • Bacchus also testified at the hearing, and denied that the incident happened. (Pl./DOE 56.1 Opp., ¶49.a.)'The arbitrator found that inconsistencies in the witnesses’ statements were minor and immaterial. (DOE 56.1, ¶ 50.) The arbitrator found Bacchus “less than credible, and determined that her deniál, without anything more, did not outweigh the evidence supporting E.S.” (DOE 56.1, IT 51; Pl./DOE 56.1 Opp., ¶¶ 49.c-49.d.) The grievance panel denied Bacchus’s grievance and upheld the suspension, with the District Council 37 grievance panelist dissenting. (DOE 56.1, ¶ 52; Pl./DOE 56.1 Opp., ¶ 52.)

5. Bacchus’s Termination

In February 2011, two female sixth-graders approached Pepper about issues they were having with Bacchus, and Pepper told them to write statements documenting the issues. (DOE ¡56.1, ¶71.) Their statements alleged that on February 2,-2011, Bacchus called another sixth-grader, A.A., “fat boy” while the class was in the auditorium. (DOE 56.1, ¶ 72.) Pepper asked A.A. to provide a statement, and he stated that Bacchus had called him “fat boy.” (DOE 56.1, ¶73.) Bacchus alleges that Pepper manipulated the students into providing these statements. (Pl./DOE 56.1 Opp., ¶¶ 71, 73.) The school secured additional student statements on the incident, some of which Bacchus also disputes as having been coerced and/or manipulated by the school. (DOE 56.1, ¶ 75; P1./DOE '56.1 Opp., ¶¶71, 75.) Bacchus did not become aware of these additional statements until discovery was exchanged in this action. (P1./DOE 56.1 Opp., ¶ 75,a.)

On February 16, 2011, Pepper convened a disciplinary conference attended by Pepper, Bacchus, and Wambser. (PI. DFR 56.1, ¶ 14; DOE 56.1, ¶ 76.) Pepper told Bacchus that two students had reported that Bacchus had called A.A. “fat boy” on February 2, 2011. (Pl. DFR 56.1, ¶¶ 14-15; Dkt. .79-2 at ECF 14.) At the conference, Bacchus wrote a statement in her defense, stating that the incident, never happened. (Pl. DFR 56.1, ¶ 15; Dkt. 79-2 at ECF 19).'.

At the meeting, Bacchus’s log book came under scrutiny. Bacchus had not made an entry for February 2, 2011. In addition, although she stated that on February 4, 2011, she had called a student’s- parent about the student’s behavior, Bacchus had failed to report the call to the administration, or by noting it in her school log book. (DOE 56.1, ¶¶ 77-80.) Bacchus disputes the school’s position that she was required, under the school’^ policy, to make entries in her log book regarding the events of February 2, 2011 and.February 4, 2011. (P1./DOE 56.1 Opp., ¶ 79.)

Thompson deemed the allegations against Bacchus regarding the A.A. incident to.be substantiated, and terminated Bacchus on March 11, 2011. (DOE 56.1, ¶ 82.) The termination . letter cited the verbal abuse incident and other disciplinary issues, including the previous incidents with students and Bacchus’s failure to follow school policy regarding her log book. (Dkt. 79-2 at ECF 14-18.) The letter also stated that the school had conducted individual interviews with the victim and witnesses, all of whom were separated from each other prior to conducting these interviews. (Dkt. 79-2 at ECF 14.) It further stated that the school found the victim and witnesses credible, and Bacchus’s written statement not credible. (Dkt. 79-2 at ECF 18.)

6. Bacchus’s Discharge Grievance

On March-15, 2011, Bacchus initiated a discharge grievance. (DOE 56.1, ¶ 85.) Roach initially approved the discharge grievance to proceed directly to arbitration. (PI. DFR 56.1, ¶ 35.) The DOE would not consent to directly arbitrating the grievance, so the grievance began at the Step 2 level. (Union 56.1, ¶¶ 34-37; PI. DFR 56.1, ¶ 37.)

Wambser represented Bacchus at the Step 2 grievance hearing, which took place on May 11, 2011. (PI. DFR 56.1, ¶ 38.) Prior to the hearing, Bacchus asked Wambser to interview Arjoon and school safety agent Parker as witnesses to the alleged verbal abuse incident inyolving A.A. on February 2, 2011. (Bacchus DFR Aff., ¶ 18.) However, at the hearing, the Union did not present any witness statements or other evidence that corroborated Bacchus’s version of the events. (PI. DFR 56.1, ¶ 39.) The DOE did not respond or render a decision on the Step 2 discharge grievance. (PI. DFR 56.1, ¶ 40.)

On July 2, 2011, the Union filed a Step 3 grievance on behalf of Bacchus. (PI. DFR 56.1, ¶ 41.) Bacchus again verbally asked Wambser to interview Arjoon and Parker as witnesses to the February 2nd A.A. incident. (Bacchus DFR Aff., ¶18.) On September 23, 2011, Wambser, Bacchus, and Dickerson attended a Step 3 hearing. (PI. DFR 56.1, ¶ 42.) The Union again did not present any witness statements or other evidence that corroborated Bacchus’s version of the events. ■ (PI. DFR 56.1, ¶43.) On October 21, 2011, the Step 3 grievance panel denied Bacchus’s grievance. (PI. DFR 56.1, ¶ 45; DOE 56.1, ¶ 84.)

Roach conducted a review of Bacchus’s discharge grievance, and determined that it was not suitable for arbitration. (Union 56.1, ¶40.) On November 10, 2011, the Union wrote and mailed Bacchus'a letter informing her of this decision, but the letter was sent to an address on 160th Avenue, not Bacchus’s 106th Street address. (Union 56.1, ¶ 41.) Because of this error, Bacchus did not learn of the Union’s decision not to arbitrate her discharge grievance until March 2012. (Union 56.1, ¶¶ 41, 44.)

7. Bacchus’s Discrimination Complaints

On December 16, 2009, Bacchus made a complaint of discrimination to the OEO. (DOE 56.1, ¶85.) Bacchus alleged that Levy, Pepper, O’Connell and LaBella had discriminated against her based on age, color, ethnicity/national origin, and race. (DOE 56.1, ¶ 86.) Bacchus further alleged that Levy, Pepper, O’Connell and LaBella had coerced students into writing statements of abuse against her, and had actually written the students’ statements themselves. (DOE 56.1, ¶ 87.) Bacchus believed that their aim was to have her fired so that they could replace her with Lopez. (DOE 56.1, ¶ 88.) The OEO complaint did hot mention any remarks 'by Thompson regarding Bacchus’s accent or views on West Indian women, or Pepper, Levy and O’Connell mimicking Bacchus’s accent. (DOE 56.1, ¶ 90.) However, Bacchus’s rebuttal statement referred to Thompson as “having a problem with West Indian ■ women.” • (P1./DOE 56.1 Opp., ¶90.)

On March 3, 2010, Bacchus brought a complaint of discrimination based on race/color and national origin with the New York State Division of Human Rights (“NYSDHR”). (DOE 56.1, ¶ 91.) Bacchus’s complaint stated that she had “been the victim of systemic harassment and discrimination by the administrative staff of PS/IS 295” whose “ultímate goal [was] to ... terminate [her] and fill [her] position with one of their close friends who was previously laid off due to budget constraints.” (Dkt. 79-6, Bacchus NYSDHR Complaint at ECF 20.) The complaint further stated that Thompson “was overheard saying that she has a problem with West Indian women.” (Id.) It also recounted Thompson’s request that Bacchus move heavy boxes, a May 20, 2009 accusation by Pepper of professional misconduct, and Bacchus’s contention that a “series of fabricated incidents or corporal punishments began to surface against [her]” beginning in December 2009. (Id. at ECF 20-21.)

On September 26, 2011, Bacchus brought a complaint of retaliation with the NYSDHR. (DOE 56.1, ¶ 92.) Bacchus’s retaliation complaint was premised on the January 2010 bathroom incident; the April 2010 umbrella and handbag incident; the school’s disciplinary letter regarding Bacchus’s failure to report the slapping of the fifth grade student; and her termination following the February 2011 A.A. incident. (DOE 56.1, ¶ 93.)

At Bacchus’s request, the NYSDHR dismissed both complaints for administrative convenience on January 11, 2012, so that Bacchus could pursue her claims in federal court. (DOE 56.1, ¶ 94; Dkt. 57-1 at EOF 299.)

C. Procedural History

Bacchus commenced" this action on April 4,2012. (Dkt. 1, Compl.) On May 9,2012, Bacchus filed her first Amended Complaint. (Dkt. 9, First Am. Compl.) On July 23, 2012, the Honorable''William F. Kuntz, II endorsed a joint stipulation by the parties dismissing the City of New York from this action and adding the DOE as a defendant. (Dkt. 16.)

On August 17, 2012, the Union moved for judgment on the pleadings, arguing that the court lacked subject matter jurisdiction over Bacchus’s breach of the duty of fair representation claim. (Dkt. 17.)

On August 27, 2012, Bacchus filed her Second Amended Complaint (“SAC”), requesting that the Court approve it nunc pro tunc. (Dkt. 20, Second Am. Compl.) Judge Kuntz granted Plaintiffs request in part and denied it in part, noting that Plaintiff had not sought leave of the Court to amend her claims against the Union Defendants, as required under Federal Rule of Civil Procedure 15. (Order dated August 30, 2012.) Judge Kuntz ultimately deemed the SAC filed, but amended it to strike a reference in paragraph 4 that purported to add a common law claim against the Union Defendants.

On March 29, 2013, Judge Kuntz denied the Union’s motion for judgment on the pleadings, finding that he had subject matter jurisdiction over Bacchus’s breach of the duty of fair representation claim. Bacchus v. City of New York, No. 12 CV 1663, 2013 WL 1345153 (E.D.N.Y. Mar. 29, 2013).

On April 19, 2013, this Court was assigned to the case. On October 23, 2013, the Court granted Defendants leave to file motions for summary judgment, as well as leave to Bacchus to file a cross-motion for summary judgment on. her duty of fair representation, claim. (Order dated October 28, 2013). The parties’ motions were fully briefed, on October 3, 2014.

II. STANDARD OF REVIEW

The Court may grant summary judgment only if the submissions of the parties taken together “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“Liberty Lobby ”). “The moving party bears the burden of establishing the absence of any genuine issue of material fact,” Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir.2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)), after which the burden shifts to the nonmoving party to “come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir.2011) (citing Liberty Lobby, 477 U.S. at 249, 106 S.Ct. 2505); see also F.D.I.C. v. Great American Ins. Co., 607 F.3d 288, 292 (2d Cir.2010). A dispute of fact is “genuine” if “the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505; see also Baez v. JetBlue Airways Corp., 793 F.3d 269, 273 (2d Cir.2015) (“ ‘A genuine issue of material fact exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ”) (quoting Savino v. City of New York, 331 F.3d 63, 75 (2d Cir.2003)).

The nonmoving party can only defeat summary judgment “by coming forward with evidence that would be sufficient, if all reasonable inferences were drawn in [its] favor, to establish the existence of’ a factual question that must be' resolved at trial. Spinelli v. City of New York, 579 F.3d 160, 166 (2d Cir.2009) (internal quotations and citations omitted); see also Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. “ ‘The mere - existence of a scintilla of evidence in support of the [non-movant’s] position will be insufficient; there must be evidence on which., the jury could reasonably find for the [non-movant].’ ” Hayut v. State Univ. of N.Y., 352 F.3d 733, 743 (2d Cir.2003) (quoting Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505) (alterations-in original); see also Lyons v. Lancer Ins. Co., 681 F.3d 50, 56-57 (2d Cir.2012). The nonmoving party cannot avoid summary judgment simply’by relying “on conclusory allegations or unsubstantiated speculation,” Brown, 654 F.3d at 358 (quotations and citations omitted), and must offer “some hard evidence showing that its version of the events is not wholly fanciful.” Miner v. Clinton Cnty., 541 F.3d 464, 471 (2d Cir.2008) (citations and quotations omitted). This is so in employment discrimination cases, though “direct evidence of discriminatory intent is rare[.]” Schiano v. Quality Payroll Sys., 445 F.3d 597, 603 (2d Cir.2006) (quoting Holtz v. Rockefeller, 258 F.3d 62, 69 (2d Cir.2001)). “ ‘[I]n the discrimination context ... a plaintiff must provide more than concluso-ry allegations to defeat a motion for summary judgment.’” Delaney v. Bank of America, 766 F.3d 163, 170 (2d Cir.2014) (quoting Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir.2010)).

In determining whether a genuine issue of fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir.2008). Where both parties move for summary judgment, as Bacchus and the Union have done with respect to Bacchus’s claim for breach of the duty of fair representation, “each party’s motion must be examined on its own merits, and ... all reasonable inferences must be drawn against the party whose motion is under consideration.” Morales v. Quintel Entm’t, Inc., 249 F.3d 115, 121 (2d Cir.2001).

III. DISCUSSION

Bacchus asserts the following claims in her SAC: (1) causes of action against the DOE and Pepper under Title VII and- 42 U.S.C. § 1981, for discrimination and hostile work environment (Count One), and retaliation and retaliatory hostile work environment (Count Two); (2) causes of action against the DOE and Pepper under the NYSHRL and NYCHRL, for discrimination and hostile work, environment (Count Three), and retaliation and retaliatory hostile work environment (Count Four); (3) a cause of action against the DOE for breach of the CBA under the Taylor Law' and/or the 'New York City Collective Bargaining Law (Count Five); and (4) a cause of action against the Union for breach of the duty of fair representation under State and City law (Count Six).

A. Dismissal of Bacchus’s State and City Law Discrimination and Breach of Contract Claims Against The DOE For Failure To Comply With Education Law § 3813(1)

The City argues that Bacchus’s State and City law discrimination claims, as well as her breach of contract claim, are barred for failure to comply with New York Education Law § 3813(1) (“Section 3813”). (DOE Memo at ECF 13-15, 32-33.) A plaintiff asserting employment discrimination claims against a school district must comply with the notice of claim requirements in Section 3813. Section 3813 states that no action shall proceed against- a school district unless “it shall appear by and as an allegation in the complaint or necessary moving papers that a written verified claim upon which such action ... is founded was presented' to the governing body of said district or school within three months after the accrual of such claim.” N.Y. Educ. Law § 3813(1); see also. Benedith v. Malverne Union Free Sch. Dist., 38 F.Supp.3d 286, 311 (E.D.N.Y.2014).

It is undisputed that Bacchus did not file a formal notice of claim against the DOE on her State and City law discrimination claims, or her breach of contract claim. And though Bacchus filed a complaint with the NYSDHR prior to filing this action, she served that complaint on the DOE’s legal department, not its governing board. (DOE Memo at ECF 14) (citing DOE 56.1 ¶¶ 91-92).

Though in some instances courts have allowed a complaint of discrimination filed with the EEOC or the NYSDHR to substitute for the actual notice of claim, they have held plaintiffs to the requirement to serve on the DOE’s governing board. “New York’s highest court has noted that ‘the statutory prerequisite is not satisfied' by presentment to any other individual or body, and, moreover, the statute permits no exception regardless of whether the Board had actual knowledge of the claim or failed to demonstrate actual prejudice.’” Brtalik v. S. Huntington Union Free Sch. Dist., No. CV 10 0010, 2010 WL 3958430, at *4 (E.D.N.Y. Oct. 6, 2010) (quoting Parochial Bus Systems, Inc. v. Bd. of Educ. of City of New York, 60 N.Y.2d 539, 470 N.Y.S.2d 564, 568, 458 N.E.2d 1241 (1983)). Brtalik is consistent with the New York Court of Appeals’ 2005 decision rejecting “proposals to compromise the strict statutory notice of claim requirement” under Section 3813(1). See Varsity Transit, Inc. v. Bd. of Educ. of City of New York, 5 N.Y.3d 532, 536, 806 N.Y.S.2d 457, 840 N.E.2d 569 (N.Y.2005). Thus, Bacchus may not rely on her service of her NYSDHR claim on DOE’s general counsel to satisfy Section 3813.

Bacchus further argues, however, that she was excused from complying with Section 3813 because the CBA between her union and the DOE provided for a detailed four-step grievance procedure, implicitly waiving the applicability of Section 3813 to complaints by employees covered by the CBA. (PI. Opp. Memo at ECF 11.) In support of her argument, Bacchus cites cases finding Section 3813’s notice of claim provision waived where the CBA between the parties contains detailed procedures for the submission of grievances plainly inconsistent with Section 3813. See, e.g., Matter of Local 832 Terminal Employees of the City of New York v. Dep’t of Educ. of the City of New York, 60 A.D.3d 567, 570, 876 N.Y.S.2d 30 (N.Y.App.Div.2009) (finding union’s petition to compel arbitration was not barred for non-compliance with Section 3813 because the CBA between the parties contained detailed grievance procedures inconsistent with Section 3813); Matter of Enlarged City School Dist. of Troy v. Troy Teachers Ass’n, 79 A.D.2d 738, 739, 434 N.Y.S.2d 761 (N.Y.App.Div.1980) (finding union’s demand for arbitration was not barred for failure to comply with Section 3813).

The Court finds these cases unavailing. In such cases, the party being excused from complying with Section 3813 was also a party to the CBA. Here, Bacchus attempts to argue that as a member of a union, she should be excused from complying with Section 3813 based on the CBA in effect between District Council 37 and the DOE. Bacchus cites no case whereby an individual member of a union may rely on the grievance procedures set forth in a CBA to excuse her compliance with Section 3813. -Furthermore, because Bacchus’s discharge grievance was never brought to arbitration and did not involve her claims for race discrimination, Bacchus cannot rely on the underlying proceeding to argue that the DOE effectively had notice of her state and city discrimination claims, or her breach of contract claim. Thus, the Court finds that Bacchus’s failure to comply with Section 3813 requires the dismissal of her State and City law discrimination claims and breach- of contract claims against the DOE.

However, the Court does not dismiss Bacchus’s State and City law discrim-inations claims against Pepper for failure to comply with Section 3813. Section 3813 applies to suits against the school district or school -officers. In a recent case, the Honorable Arthur D. Spatt found that a principal is not a school officer because a principal does not hold district-wide office. Benedith, 38 F.Supp.3d at 312. Furthermore, Section 3813(2) indicates that administrators and other school employees are not included within the scope of Section 3813(1). Id. (quoting Carlson v. Geneva City Sch. Dist., 679 F.Supp.2d 355, 367 (W.D.N.Y.2010)). The Court agrees with this analysis. Here, because Pepper is an assistant school principal, and does not hold district-wide office, the Court considers her to be an administrator of PS 259, and not a school officer. ‘Thus, Bacchus’s claims against Pepper are not barred for failure to comply with Section 3813.

In sum, the Court dismisses Bacchus’s State and City law discrimination claims as to the DOE for failure to comply with Section 3813, but not as to Pepper. The Court also dismisses Bacchus’s breach of contract claim against the DOE.

B. Dismissal of Section 1981 Claims

The SAC pleads several causes of action under 42 U.S.C., § 1981 (“Section 1981”) without also pleading a corresponding cause of action under 42. U.S.C. § 1983 (“Section 1983”). (See SAC, ¶¶ 78-86.) Bacchus concedes that she cannot bring a Section 1981 claim without also pleading a claim under Section, 1983, because Section 1983 provides the exclusive federal remedy for violation of the rights guaranteed in Section 1981. (Pl. Opp. Memo at EOF 17); see also Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir.2004). Bacchus requests, through her opposition brief, leave to further amend her complaint to plead a claim under Section 1983.

The Court denies Bacchus’s informal request to amend her complaint. Though Federal Rule of Civil Procedure 15(a) provides that the Court shall'grant a party leave to amend “when justice so requires,” leave to amend should generally be denied in instances of “futility, undue delay, bad faith or dilatory motive, repeated .failure to cure deficiencies .... or undue prejudice to the non-moving party.” Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir.2008). Here, Bacchus has already amended her complaint twice, filing her-. SAC in 2012, She provides no reason for her delay in seeking to add a Section Í983 claim; indeed, it is apparent to the Court that the delay is attributable to the fact that her counsel only became aware of the error through the City’s summary judgment briefing. {See DOE Memo at ECF 15-16.) This does not constitute good cause for granting leave to amend.

The Court thus dismisses Bacchus’s Section 1981 claims against the DOE and Pepper.

C. Discrimination Claims Pursuant to Title VII and the NYSHRL

1. Dismissal of Title VII Claims against Pepper

The SAC pleads its Title VII claims against both the DOE and Pepper. However, there is no individual liability under Title VII. See Hart v. Affinita Sec. Grp., No. 14 CV 824, 2014 WL 580890, at *2 (E.D.N.Y. Feb. 13, 2014) (citing Wrighten v. Glowski, 232 F.3d 119 (2d Cir.2000); Tomka v. Seiler Corp., 66 F.3d 1295, 1313-17 (2d Cir.1995)). Thus, the Court dismisses Counts One and Two as to Pepper, with prejudice.

2. McDonnell Douglas Burden Shifting Framework

The Court analyzes Bacchus’s Title VII claims against the DOE and her NYSHRL claims against Pepper under the burden-shifting framework set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-805, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Kirkland v. Cablevision Sys., 760 F.3d 223, 225 (2d Cir.2014); Weinstock v. Columbia Univ., 224 F.3d 33, 42 n. 1 (2d Cir.2000) (noting that McDonnell Douglas framework applies to claims brought pursuant to NYSHRL). First, the plaintiff bears the entire burden of proving, i.e., producing evidence and persuading the jury by a preponderance, of the evidence, that she has a prima facie case of employment discrimination. Tex. Dep't of Cmty. Affairs v. Burdine (“Burdine”), 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). To state a prima facie case of race or national origin discrimination, a plaintiff must proffer evidence that (1) she belongs to a protected group; (2) she was qualified for her position; (3) her employer took an adverse action against her; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination. Kirkland, 760 F.3d at 225 (citing Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir.2003)). The plaintiffs burden of proving a prima facie case is “not onerous,” Burdine, 450 U.S. at 253, 101 S.Ct. 1089, and “minimal,” at best, St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506; 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).

Once a prima facie case has been established, the burden of producing evidence, but not persuading the jury, shifts to the defendant, and the defendant is required “to articulate some legitimate, nondiscriminatory reason” for its adverse employment decision. Kirkland, 760 F.3d at 225 (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). If the defendant does so, the burden shifts back to the plaintiff to prove that the defendant’s explanation is a pretext, for discrimination. Id. The plaintiffs “‘admissible evidence must show circumstances that would sufficient to permit a rational finder of fact to infer that the [defendant’s] employment decision was more likely than not based in whole or in part on discrimination.’ ” Id. (quoting Terry, 336 F.3d at 138).

The burden of persuasion, however, “remains at all times with the plaintiff.” Burdine, 450 U.S. at 253, 101 S.Ct. 1089. In other words, even though the defendant’s burden is to produce evidence of their nondiscriminatory reasons, such evidence is not subject to attack byway of a “credibility assessment.” St. Mary’s Honor Ctr., 509 U.S. at 509, 113 S.Ct. 2742; see also Burdine, 450 U.S. at 254, 101 S.Ct. 1089 (“The defendant need not persuade the court that it was actually motivated by the proffered reasons.”).

3. Discrimination

Bacchus alleges that the City Defendants violated- Title VII and the NYSHRL by discriminating against her on the basis of race and/or national- origin. The crux of these claims is that the staff at PS 259 trumped up a series of false disciplinary charges in order to justify firing her and replacing her with Lopez, a white school aide of Polish descent who had previously been laid off due to budget cuts.

a. Prima Facie Case

The City does not dispute the first two elements of Bacchus’s prima facie case— that as a black West Indian, Bacchus belonged to a protected group and that she was qualified to be a school aide at PS 259. Furthermore, there is no dispute that Bacchus’s termination constitutes an adverse employment action. Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir.2006) (“there is no question ... that termination [of employment] is an adverse employment action.”).

Thus, the only potentially disputed issue of fact is whether Bacchus’s termination was motivated by race or national origin discrimination. Bacchus argues that the circumstances of her termination give rise to an inference of discrimination based upon the combination of: (1) the numerous disciplinary charges the City leveled at her before her termination; (2) Thompson’s remarks about West Indians; (3) Thompson, Pepper, Levy and O’Connell mimicking her accent; (4) LaBella calling Bacchus a “mad old lady” and “Aunt Jemi-ma” twice a week; (5) disparate treatment she received in comparison to other aides; and (6) PS 259’s re-hiring of Lopez shortly before terminating Bacchus. (Pl. Opp. at ECF 22-25.) In contrast, the City argues that the circumstances of Bacchus’s termination do not give rise to an inference of discrimination sufficient for her prima fa-cie case because: (1) Lopez returned to PS 259 .before Bacchus was formally terminated and thus cannot be considered Bacchus’s replacement; and (2) any remarks Thompson or others may have made regarding West Indians were at most “stray remarks” not probative of race or national origin discrimination. ' (DOE Memo at ECF 20-23.)

To determine whether remarks are probative of discrimination or are “stray remarks” not probative of .bias, the Court considers “who made the remark, when the remark was made in relation to the employment decision, the remark’s content, and the context in which the remark was made.” Obinabo v. Radioshack Corp., 522 Fed.Appx. 55, 57 (2d Cir.2013) (summary order) (citing Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 149 (2d Cir.2010)). No one factor is dispositive. Henry, 616 F.3d at 149.

Viewing the evidence in the light most favorable to Bacchus, the Court finds a genuine issue of fact with respect to whether Thompson’s remarks were probative of discriminatory animus based on race or national origin. Thompson, was the principal of PS 259, and thus an individual with substantial influence over Bacchus’s employment, thus weighing in favor of a finding that the remarks were probative of discrimination. See Sethi v. Narod, 12 F.Supp.3d 505, 539 (E.D.N.Y.2014). The content of the remarks, that Bacchus should learn to' speak English and that Thompson did not like West Indians, also weighs in favor of a finding of discriminatory animus. Id. at 542. Bacchus also alleges that she overheard Thompson “frequently” make such remarks from 2009 through January 2011, a period coinciding with the period of the warnings and disciplinary proceedings against Bacchus. A reasonable juror could therefore find in Bacchus’s favor, that Thompson’s remarks were more than stray remarks.

Considering the remaining evidence that Bacchus advances in support of her prima facie case, the Court finds that, in light of Bacchus’s minimal burden at this stage, she has proffered sufficient evidence that could allow a reasonable juror to find she was terminated under circumstances- giving rise to an inference of race or national origin discrimination. The Court thus finds a triable issue of fact exists with respect .to Bacchus’s prima facie case of discrimination.

b. Legitimate Reasons Advanced by the DOE and Pepper

The City states that it had legitimate, nondiscriminatory reasons for terminating Bacchus. It points to Bacchus’s history of warnings, letters to file, and disciplinary charges, beginning 22 months before her final termination. (DOE Memo at ECF 23.) It also invokes Bacchus’s suspension, which was upheld by an arbitrator following a hearing where Bacchus testified and was found not credible in her denial of the incident at issue. (Id. at ECF 24.) Finally, it points to the warning letters, its substantiation of the verbal abuse allegation made by A.A., and Bacchus’s admitted failure to report that she had called a student’s parent. (Id.).

The Court finds that the City has met its burden to proffer evidence showing that it had legitimate, nondiseriminatory reasons for terminating Bacchus.

c. Pretext

At the pretext stage, a plaintiff must provide more than conelusory allegations to defeat a motion for summary judgment. See Delaney, 766 F.3d at 170 (citing Gorzynski, 596 F.3d at 101); see also Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir.1985) (explaining that at the' pretext stage, a plaintiffs allegation of discrimination must be “increasingly sharpened and focused”). An employee may satisfy her burden at the pretext stage by setting forth direct evidence of a discriminatory motive or an indirect showing that “the employer’s proffered explanation is unworthy of credence.” Id. at 997 (citing Burdine, 450 U.S. at 256, 101 S.Ct. 1089); see also Brierly v. Deer Park Union Free Sch. Dist., 359 F.Supp.2d 275, 291 (E.D.N.Y.2005) (“A discrimination claimant may show pretext by demonstrating ‘such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence[.]”) (case citations omitted).

Here, Bacchus has pointed to a number of irregularities and inconsistencies in the disciplinary record against her that call the integrity of the DOE’s disciplinary process into question. Specifically, Bacchus points to the two different versions of M.P.’s statement; the possibility that the student statements were written by more than one person; a report made by a parent who allegedly did not speak English; inconsistent accounts of where the incident with E.S. happened; the DOE’s failure to obtain statements from other adult staff members who may have been present during the alleged incidents between Bacchus and students; and witness statements regarding the incident with A.A. that were never produced to Bacchus until this litigation. See Section I.B. Bacchus also points to testimony from other school aides corroborating her account that she was the only school aide disciplined for carrying a handbag and umbrella while other aides did so, and testimony from Lopez stating that she was not disciplined as Bacchus was for a comparable incident with a student. (See Dkt. 61-7, Bala Dep. at ECF 18; P1./DOE 56.1 Opp., ¶ 68.f. (citing Lopez Dep. at ECF 56-57)).

Thus, though the City Defendants have set forth evidence detailing long-running concerns with Bacchus’s conduct, the Court finds that Bacchus has sufficiently rebutted their evidence to create a genuine issue of material fact on the issue of pretext. She has set forth specific facts that call into question the City’s “legitimate,, non-discriminatory” evidence. While “[a] jury might credit all of this proffered evidence, some of it, or none at all,” that is a question left for the jury to decide at trial. Kirkland, 760 F.3d 223 at 227 (citing Rivera v. Rochester Genesee Regional Transp. Auth., 743 F.3d 11, 21 (2d Cir.2014) (internal quotations omitted)).

The Court therefore denies summary judgment to the City Defendants on Bacchus’s Title VII and NYSHRL race and national origin discrimination claims.

4. Hostile Work Environment

Bacchus alleges that the City Defendants subjected her to a hostile work environment in violation of Title VII and the NYSHRL. Hostile work environment claims brought under either statute are analyzed under the same standard. Tolbert v. Smith, 790 F.3d 427, 439 (2d Cir.2015) (citing Summa v. Hofstra Univ., 708 F.3d 115, 123-24 (2d Cir.2013)). To establish a- prima fade case of hostile work environment, Bacchus must show that the conduct at issue was “ “sufficiently severe or pervasive' to alter the conditions of the victim’s employment and create an abusive working environment,” and “that a specific basis exists for imputing” the 'objectionable conduct to the employer.” Id. (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir.1997) (internal quotations omitted)). She must also show that the hostile conduct occurred because of her race- or national origin. Id. (citing Alfano v. Costello, 294 F.3d 365, 374 (2d Cir.2002)). The City Defendants argue that Bacchus cannot show that their actions were, sufficiently severe or pervasive to alter , the conditions., of Bacchus’s employment... (DOE Memo at ECF 27-28.)

When determining whether the plaintiff has met her burden to show that the conduct at issue was “sufficiently severe or pervasive,” the Court examines the totality of the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with the victim’s job performance.” Rivera, 743 F.3d at 20 (citations omitted). The incidents, at issue must be “more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.” Das v. Consolidated School Dist. of New Britain, 369 Fed.Appx. 186, 190 (2d Cir.2010) (quoting Alfano, 294 F.3d at 374); see also Alfano, 294 F.3d at 379 (“There is no fixed number of incidents that a plaintiff must endure ... we view the circumstances in their totality, examining the nature, severity, and frequency of the conduct.”). A plaintiff must link the hostile conduct to her protected characteristics. Id. at 374. While a plaintiff need not present direct evidence that she suffered a hostile work environment on the basis of her protected characteristics, she must at least set forth circumstantial or other indirect evidence to allow the Court to conclude that the any facially-neutral incidents were, in fact, discriminatory. Id. at 378.

The Court therefore examines “the totality of the circumstances” alleged by Bacchus in support of her hostile work environment claim. Most relevant is her assertion that she “frequently” endured mimicking of her accent by Thompson, Pepper and Levy, and that Thompson “frequently”' made comments about how she did not like West Indians. (Bacchus DOE Aff., ¶ 15.) Beyond stating that she endured such conduct frequently, she does not offer any further specifics as to the time or date that these events took place between November 2009 and January 2011. Bacchus also names “several occasions in the Spring and fall of 2010” where Thompson made comments about her proficiency with the English language. (Bacchus DOE Aff., ¶ 16.)

Bacchus also alleges that LaBella would call her a “mad old lady” or “Aunt Jemi-ma” at least twice a week. (Dkt. 78-2, Bacchus Dep. at EOF 72.) In addition, Bacchus claims that Pepper would follow her around, would not allow her to use the bathroom without permission, and subjected Bacchus to excessive scrutiny in comparison to other school aides. (Bacchus DOE Aff., ¶ ll.a.) She states that Pepper would berate her and use a harsh tone of voice whenever they spoke, and that each week Pepper would give her a printout of vacant postings for school aide "positions. (Bacchus DOE Aff., ¶¶ ll.c, ll.d.) Pepper also increased her workload by making her supervise two classes each lunch period, though other school aides only, had one class, and by doing all the photocopying for the school office. (Bacchus DOE Aff., ¶ ll.b.)