Sosa v. N.Y.C. Dep't of Educ. & Marcy Berger (368 F. Supp. 3d 489, 2019)

United States District Court for the Eastern District of New York 2019-03-25

Judiciary and Judicial Procedure Labor The Public Health and Welfare

Citations

Full opinion text

PAMELA K. CHEN, United States District Judge:

Plaintiff Alice Sosa ("Plaintiff") brings this action against the New York City Department of Education and Marcy Berger ("Defendants"), alleging violations of 42 U.S.C. § 1981, 42 U.S.C. § 1983, 42 U.S.C. § 2000e et seq. ("Title VII"), 42 U.S.C. § 12101 et seq. ("American with Disabilities Act" or "ADA"), New York State Executive Law § 296 et seq. ("New York State Human Rights Law"), and the New York City Administrative Code § 8-101 et seq. and § 8-107(15) ("New York City Human Rights Law"). On June 8, 2018, Defendants filed a motion to dismiss. (Dkt. 18.) On June 12, 2018, the motion was referred to the Honorable Sanket J. Bulsara, United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.1(d). On November 13, 2018, Judge Bulsara ordered additional briefing on the issue of exhaustion as a defense. In his Report and Recommendation ("R & R"), issued January 22, 2019, Judge Bulsara recommends that the Court (1) dismiss Plaintiff's federal claims; (2) decline to exercise supplemental jurisdiction over Plaintiff's state law claims; and (3) grant Plaintiff leave to amend. (See R & R, Dkt. 30, at 2.) On February 5, 2019, Plaintiff timely filed objections to Judge Bulsara's R & R. (See generally Plaintiff's Objections to Report and Recommendation ("Pl.'s Objs."), Dkt. 31.) Finding no merit to Plaintiff's objections and no error in Judge Bulsara's decision, the Court adopts the R & R in its entirety and grants Defendants' motion to dismiss.

STANDARD OF REVIEW

A district court reviewing a magistrate judge's recommended ruling "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). With respect to a magistrate judge's recommendation on a dispositive matter, the Court reviews de novo those determinations as to which a party has specifically objected. See id. ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made."); Fed. R. Civ. P. 72(b)(3) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to."). However, "objections that are merely perfunctory responses argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original papers will not suffice to invoke de novo review." Frankel v. New York City , No. 06-CV-5450, 2009 WL 465645, at *2 (S.D.N.Y. Feb. 25, 2009) (quotation and brackets omitted). Accordingly, "[g]eneral or conclusory objections, or objections which merely recite the same arguments presented to the magistrate judge, are reviewed for clear error." Chime v. Peak Sec. Plus, Inc. , 137 F.Supp.3d 183, 187 (E.D.N.Y. 2015) (quotation omitted).

DISCUSSION

Plaintiff raises four objections to the R & R. Specifically, she argues that the R & R erroneously analyzed whether she adequately alleged:

(1) that she sustained an adverse employment action, as part of her unlawful discrimination claims;

(2) that her workplace was characterized by objectively hostile conduct, as part of her hostile work environment claims;

(3) that her hostile work environment was caused by Defendants' racial animus, as part of her hostile work environment claims; and

(4) that she is similarly situated to her colleagues, as part of her disparate treatment claims.

On a motion to dismiss, the Court treats the elements of a prima facie case as "an outline of what is necessary to render a plaintiff's employment discrimination claims for relief plausible." Barrett v. Forest Labs., Inc. , 39 F.Supp.3d 407, 429 (S.D.N.Y. 2014) (internal quotations and citation omitted); see Littlejohn v. City of New York , 795 F.3d 297, 308 (2d Cir. 2015) (the standard for prima facie case sufficiency is not a pleading requirement, but an evidentiary standard). Thus, for the Court to deem a set of factual allegations plausible, and therefore adequate to defeat a motion to dismiss, Plaintiff must allege facts that allow the Court, in substance, to infer the essential elements of a prima facie case. See Knight v. State Univ. of New York at Stony Brook , No. 13-CV-0481 (JS) (GRB), 2014 WL 4639100, at *5 (E.D.N.Y. Sept. 16, 2014).

I. Plaintiff's Objection to the R & R's Adverse Employment Action Analysis

Plaintiff objects to the R & R's conclusion that she did not sustain an adverse employment action. "A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment." Galabya v. N.Y.C. Bd. of Educ. , 202 F.3d 636, 640 (2d Cir. 2000). "A materially adverse change is a change in working conditions that is more disruptive than a mere inconvenience or an alteration of job responsibilities." Vale v. Great Neck Water Pollution Control Dist. , 80 F.Supp.3d 426, 434 (E.D.N.Y. 2015) (internal quotations and citation omitted). "Examples of materially adverse employment actions include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation." Feingold v. New York , 366 F.3d 138, 152 (2d Cir. 2004) (internal quotations and citations omitted).

Plaintiff alleges several adverse employment actions:

Defendants [sic] intentional failure to accommodate her medically approved and requested scheduling preferences, the partial accommodation provided, (Sosa II Compl. ¶¶ 37-39, 47-55), Berger's intentional failure to interact with Sosa during the accommodations process, (id. ¶¶ 40-46), Defendants' allegations of misconduct, (id. ¶¶ 61-63), and the inconsistent application of workplace rules as between Sosa and her colleagues, (id. ¶¶ 60).

(Pl.'s Objs. at 11.) As a result of these actions, Plaintiff alleges that she has suffered significant harm including an increase in her "anxiety, depression, nausea, insomnia and bladder issues ... [and] damage to her professional reputation amongst her colleagues." (Id. ) Plaintiff argues that the R & R therefore incorrectly concluded "that Defendants['] conduct was de minimis ... [and] completely disregards the impact of Defendant's [sic] conduct on the disabled plaintiff ...." (Id. at 12.) The Court disagrees with Plaintiff.

An employer's behavior does not constitute an adverse employment action because the employee sustained some generalized harm; the harm must be related to the employee's terms and conditions of employment. See Hill v. Rayboy-Brauestein , 467 F.Supp.2d 336, 352 (S.D.N.Y. 2006) (An employee must allege "material harm from [the employer's actions], such as a failure to promote or a loss of career advancement opportunities."); see also Alfano v. Costello , 294 F.3d 365, 373 (2d Cir. 2002) ("An adverse action may or may not entail economic loss but there must be a link between the discrimination and some tangible job benefits such as compensation, terms, conditions or privileges of employment.") (internal quotations and citation omitted); Smalls v. Allstate Ins. Co. , 396 F.Supp.2d 364, 371 (S.D.N.Y. 2005) ("[T[he Court also notes here that being yelled at, receiving unfair criticism, receiving unfavorable schedules or work assignments... do not rise to the level of adverse employment actions ... because they [do] not have a material impact on the terms and conditions of Plaintiff's employment.") (internal quotations and citation omitted). The conduct that Plaintiff describes, despite the significant impact that she alleges it had on her physical and mental health, does not rise to such a level as to constitute a "materially adverse change in the terms and conditions of [Plaintiff's] employment." Galabya , 202 F.3d at 640.

Plaintiff also argues that Defendants' failure to provide reasonable accommodations constitutes an actionable adverse employment action. (Pl.'s Objs. at 13 ("Because the Defendant's [sic] complained of conduct specifically relates to [Plaintiff's] ability to maintain[ ] her routine and therefore the consequences of her health regimen related to her disabilities, Sosa's claim is viable.").) Again, the Court disagrees. "While courts may consider the underlying conduct of an alleged failure to accommodate, a failure to accommodate, by itself, is not sufficient for purposes of establishing an adverse employment action." Sherman v. Cty. of Suffolk , 71 F.Supp.3d 332, 345 (E.D.N.Y. 2014) (internal quotations and citations omitted).

Accordingly, given that Plaintiff has not alleged sufficient facts to show how Defendants' conduct constituted a "materially adverse change in the terms and conditions of [Plaintiff's] employment," Galabya , 202 F.3d at 640, and there is no error in the R & R regarding this issue, the Court adopts the R & R's recommendation that Plaintiff's § 1981, Title VII, and ADA claim of unlawful discrimination be dismissed.

II. Plaintiff's Objection to the R & R's Severe and Pervasive Hostile Environment Analysis

Plaintiff also objects to the R & R's recommendation that her hostile work environment claims under § 1981, Title VII, and the ADA be dismissed. However, Plaintiff's objection merely restates facts alleging that a hostile work environment existed and notes the standard for deciding hostile work environment claims under § 1981. (See Pl.'s Objs. at 14.) "General or conclusory objections, or objections which merely recite the same arguments presented to the magistrate judge, are reviewed for clear error." O'Diah v. Mawhir , No. 08-CV-322 (TJM) (DRH), 2011 WL 933846, at *1 (N.D.N.Y. March 16, 2011) ; Frankel , 2009 WL 465645, at *2. Furthermore, "objections must be specific and clearly aimed at particular findings in the magistrate judge's proposal." N.Y.C. Dist. Council of Carpenters v. Allied Design and Constr., LLC , 335 F.Supp.3d 349, 350 (E.D.N.Y. 2018). The R & R does not directly address whether the facts Plaintiff alleges constituted a severe and pervasive hostile environment. Instead, the R & R assumes arguendo that such conditions did exist, and concludes that Plaintiff's hostile work environment claim would nonetheless be unsuccessful because of a failure to adequately plead causation. (See R & R at 31.) The Court finds that Judge Bulsara did not clearly err when he chose to assume that the facts alleged constituted a severe and pervasive hostile environment, and rely on another required element of a hostile work environment claim to support his recommendation of dismissal.

III. Plaintiff's Objection to the R & R's Causation Analysis

Plaintiff's third objection argues that she adequately pled causation. Plaintiff argues that she "could prove at trial that, but for Defendant Berger's racial animus towards her, Plaintiff would be treated fairly in the workplace, would not be subject to hostility in the workplace, would receive her preferences and accommodations, would not be made ill, and that her job would not be in jeopardy due [to] an every-burgeoning and distorted disciplinary file." (Pl.'s Objs. at 14.) However, the facts alleged by Plaintiff in her complaint and attached exhibits do not support any inference "that a hostile work environment was created and existed because of [her] protected status, either race, color, or national origin." De La Peña v. Metro. Life Ins. Co. , 953 F.Supp.2d 393, 418 (E.D.NY. 2013). Plaintiff's allegations that she "is the only teacher of West Indian Origin in her unit at P4Q@PS213," that she "is the teacher with the darkest skin color," and that she "is the only African American teacher in her unit at P4Q@PS213 with a disability" (Complaint at ¶¶ 16-18) are not enough to support an inference of causation. See Falcon v. City Univ. of N.Y. , 263 F.Supp.3d 416, 430-31 (E.D.N.Y. 2017) ("The fact that Plaintiff may be a member of a minority group and something happens to [her] that [s]he does not like is not nearly sufficient to constitute an employment discrimination claim.") (internal quotations and citation omitted); see also Buckley v. New York , No. 11-cv-5512 (ADS) (AKT), 2012 WL 13055736, at *14, 2012 U.S. Dist. LEXIS 190837, *36-38 (E.D.N.Y. Sept. 29, 2012) ("That type of reasoning-(1) I am a member of a protected class; (2) something bad happened to me at school; (3) therefore, I was discriminated against based upon my status as a member of a protected class-is more than a legal conclusion which this Court is not required to credit: it is a logically-flawed statement.") (internal quotations and citation omitted). Thus, this objection does not provide a basis for rejecting or modifying the R & R and the Court adopts the R & R's recommendation that Plaintiff's § 1981, Title VII, and ADA claims of hostile work environment be dismissed. IV. Plaintiff's Objection to the R & R's Similarly Situated Analysis

Plaintiff objects to the R & R's conclusion that she has not adequately pled that she is substantially similar to her teacher colleagues to support a claim of disparate treatment. An argument that an employee is treated less well that her substantially similar colleagues is another way to raise the inference of discrimination needed for a successful § 1981 and/or Title VII discrimination claim. See Stinnett v. Delta Air Lines, Inc. , 278 F.Supp.3d 599, 611 (E.D.N.Y. 2017) ("One way of raising an inference of discrimination is through a showing of disparate treatment-that is, a showing that an employer treated plaintiff less favorably than a similarly situated employee outside [her] protected group ....") (internal citations and quotations omitted); see also Bermudez v. City of New York , 783 F.Supp.2d 560, 576 (S.D.N.Y. 2011) ("Claims of employment discrimination under Section 1981 are analyzed under the same framework that applies to Title VII claims and claims under Section 1983."). Plaintiff must do more than make conclusory legal allegations that she is substantially similar to her colleagues in order to adequately plead this claim. See Williams v. N.Y.C. Health & Hosp. Corp. , No. 08-CV-4132, 2010 WL 2836356, at *4 (E.D.N.Y. July 16, 2010) (dismissing Title VII claim where plaintiff merely alleged that "[u]pon information and belief, males got paid when they were out sick but females [did] not," and failed to "specify any facts to support her claim that males were indeed treated differently than females in regard to sick-leave pay"). Here, the fact that Plaintiff and her colleagues are all teachers is not enough. See Butts v. N.Y.C. Dep't of Educ. , No. 16-CV-5504 (NGG) (RML), 2018 WL 4725263, at *10 (E.D.N.Y. Sept. 28, 2018) (rejecting claim where the plaintiff "pleaded only one commonality between [a colleague] and herself: they were both paraprofessionals" and the plaintiff "did not plead that they were subject to the same evaluation and discipline standards or that they engaged in comparable conduct").

Plaintiff alleges that "defendants regularly granted the requests of other Caucasian, non-African American teachers for scheduling changes and classroom transfers." (Complaint at ¶ 49.) However, Plaintiff "fails to describe who these people are, what their responsibilities were, how their workplace conduct compared to [hers], or how they were treated." Henry v. NYC Health & Hosp. Corp. , 18 F.Supp.3d 396, 408 (S.D.N.Y. 2014). "Without factual amplification, the generic allegation of disparate treatment related to an unspecified class of Caucasian persons is simply not sufficient to nudge [ ] [her] claims across the line from conceivable to plausible, and thus is insufficient to support her racial discrimination claim." Id. (internal quotations and citations omitted). Accordingly, based on its de novo review, the Court adopts the R & R's recommendation that the Plaintiff's § 1981 and Title VII disparate treatment claims be dismissed.

CONCLUSION

Plaintiff has failed to raise any objection that warrants rejection or modification of the R & R, which the Court does not find to be erroneous. The Court, therefore, adopts the R & R in its entirety. Plaintiff's federal law claims are dismissed, with leave to amend, solely for the purpose of correcting the deficiencies identified in the R & R and herein. The Court declines to exercise supplemental jurisdiction over Plaintiff's state law claims, unless Plaintiff can sufficiently allege federal law claims in her amended complaint. Plaintiff shall file any amended complaint by April 22, 2019.

SO ORDERED.

REPORT AND RECOMMENDATION

BULSARA, United States Magistrate Judge:

On January 21, 2018, Plaintiff Alice Sosa ("Sosa") filed this action against the New York City Department of Education ("NYCDOE") and Marcy Berger ("Berger"), alleging violations of various civil rights statutes, including 42 U.S.C. § 1981, 42 U.S.C. § 1983, 42 U.S.C. § 2000e et seq. (Title VII of the Civil Rights Act of 1964 ("Title VII") ), 42 U.S.C. § 12101 et seq. (Americans with Disabilities Act ("ADA") ), New York State Executive Law § 296 et seq. (New York State Human Rights Law ("NYSHRL") ), and the New York City Administrative Code § 8-101 et seq. and § 8-107(15) (New York City Human Rights Law ("NYCHRL") ). Sosa alleges that Berger and the NYCDOE subjected her to discrimination, harassment, and a hostile work environment based on her race, skin color, national origin, and disability while she worked as a special education teacher. This is the second lawsuit that Sosa has brought against the NYCDOE and Berger. The other lawsuit-pending before Judge DeArcy Hall, No. 14-CV-7094-contains allegations that are intertwined with and similar to those made in this case. In the present case, Sosa alleges that the NYCDOE and Berger retaliated against her for filing the earlier case, No. 14-CV-7094.

On June 8, 2018, Berger and the NYCDOE filed a motion to dismiss. On June 12, 2018, the Honorable Pamela K. Chen referred the motion to the undersigned for a report and recommendation. The Court directed the submission of additional briefing on the issue of exhaustion as a defense. (Order dated Nov. 13, 2018). To date, Sosa's other lawsuit, No. 14-CV-7094, has not reached final judgment.

For the reasons stated below, it is respectfully recommended that the motion to dismiss with respect to the federal claims be granted, and the Court decline to exercise supplemental jurisdiction over the remaining state and city claims. Because this is Sosa's first Complaint, the Court recommends that the dismissal be without prejudice and Sosa be granted leave to file an amended complaint.

Factual Background and Procedural History

The facts, which the Court accepts as true for the purposes of considering a Fed. R. Civ. P. 12(b)(6) motion to dismiss, see Gregory v. Daly , 243 F.3d 687, 691 (2d Cir. 2001), are drawn from the Complaint and its attached exhibits as follows.

I. The Parties

Sosa has been employed with the NYCDOE since 1996 and has been a special education teacher since 2004 at P4Q@213, which is located at 67th Avenue in Queens, New York. (Complaint, Dkt. No. 1 ("Sosa II Compl.") ¶¶ 7, 11-12). P4Q is a program that provides educational, vocational, and behavioral support for special needs students. (Id. ¶ 7). During her employment at the NYCDOE, Sosa has been rated as "highly effective" and is known by her peers for innovative classroom practices. (Id. ¶¶ 13, 15).

Sosa identifies as an African American woman of West Indian origin, with darker-hued skin color. (Id. ¶ 6.) According to Sosa, she is a qualified individual with a disability under the ADA, NYSHRL, and NYCHRL. (Id. ¶ 29). She alleges that she has several disabilities, including breast cancer, carpal tunnel syndrome, spinal injuries, hernia, and anxiety and depression caused largely by discrimination she experienced in her workplace. (Sosa II Compl. ¶¶ 30, 33-34). According to Sosa, Defendants concede that her requests for accommodations due to her disability were medically warranted and her disability is not in question. (Id. ¶¶ 65-66).

Sosa is the only African American teacher with a disability in her unit at P.S. 213. (Id. ¶ 18). There are no other teachers of West Indian origin and only one other teacher with darker-hued skin. (Id. ¶¶ 16-17).

Berger is the Principal and Head Administrator for P4Q, the program that provides support for special needs students at P.S. 213. (Sosa II Compl. ¶¶ 7, 9). Berger has supervisory power over Sosa and the authority to influence Sosa's working conditions and the manner in which other employees interact with her. (Id. ¶¶ 22-23). Berger also has control over teacher scheduling matters for P4Q and P.S. 213. (Id. ¶¶ 20-21).

II. The Current Complaint

The Complaint alleges that since 2006, Sosa has experienced discrimination, harassment, and a hostile work environment based on her race, skin color, national origin, and disability. (Id. ¶ 28). Much of the conduct is identical to the allegations made in her 2014 civil action against Berger and the NYCDOE, which is discussed further below. (See Sosa v. N.Y.C. Dep't of Educ. , No. 14-CV-7094 ("Sosa I "), Complaint, Dkt. No. 1 ("Sosa I Compl.") ¶¶ 20, 38). Her allegations in this case focus on her treatment following her return to work in 2016 and fall into three general categories: (1) Sosa's placement and schedule upon her return to work; (2) the inconsistent application of workplace rules following her return to work; and (3) allegations of professional misconduct following her return to work.

1. From around 2013 to 2015, Sosa went on approved medical leave to obtain treatment for her disabilities. (Sosa II Compl. ¶ 36). In April 2016, Sosa notified the NYCDOE that she wanted to return to work for the upcoming year and requested that she be placed in her previous position as a homeroom teacher at P.S. 213. (Id. ¶ 37). She also submitted an accommodation request with doctors' notes that explained her medical need for a "consistent schedule" and a "structured classroom environment." (Id. ¶¶ 37-38; NYCDOE Verified Answer to New York City Commission on Human Rights dated June 27, 2017, attached as Ex. 4 to Sosa II Compl., Dkt. No. 1 ("NYCDOE Verified Answer"), Ex. A). Specifically, Sosa requested to have a prep during third and eighth period and to have lunch during fifth period. (NYCDOE Verified Answer, Ex. F). However, Defendants initially placed Sosa as a cluster teacher at P4Q@179, another P4Q school, and denied her other requests without explanation. (Sosa II Compl. ¶ 39).

On June 6, 2016, Sosa filed a grievance with Berger as a result of this assignment. Berger then failed to schedule a grievance conference as required by the United Federation of Teachers (UFT) contract, (id. ¶ 40), and otherwise "refused to meaningfully interact" with Sosa, (id. ¶ 43). The grievance moved forward without Berger's involvement, (id. ¶ 40), and on July 7, 2016, a month after she made the request, the NYCDOE returned Sosa to P.S. 213. (NYCDOE Verified Answer, Ex. J).

In late June 2016, Sosa emailed Berger asking to be assigned to her former classroom at P.S. 213, to be given the requested schedule, and to be assigned as a homeroom teacher instead of cluster teacher. (Sosa II Compl. ¶ 41). Berger referred the request to the NYCDOE Medical Administration ("HR Connect"), and Sosa submitted another doctor's note supporting her requests. (Id. ¶¶ 42, 47). On August 10, 2016, HR Connect issued a letter partially approving Sosa's requests, giving her a third period prep on every day except Thursday, an eighth period prep every day, and lunch during fifth period every day. (NYCDOE Verified Answer, Ex. D at 1). The August 10 letter denied Sosa's request for use of her usual classroom as not reasonable. (Id. ). However, Berger had already transferred Sosa to her old classroom at P.S. 213 and HR Connect issued a second letter on August 19, 2016 confirming that Sosa would be able to use that classroom. (Id. , Ex. K). Thus, Defendants ultimately granted Sosa's accommodations for everything except her Thursday schedule, that is, everything except an additional prep period on Thursdays. Sosa asserts that Berger and the NYCDOE regularly granted similar requests by Caucasian, non-African American, non-disabled teachers and could easily have granted her this additional accommodation without undue hardship. (Sosa II Compl. ¶¶ 49-51).

2. Sosa also alleges Defendants inconsistently and discriminatorily applied workplace rules. (Id. ¶ 60). Sosa alleges Defendants instituted new rules solely for the purpose of harassing and abusing her. (Complainant's EEOC Rebuttal to NYCDOE Verified Answer dated Aug. 22, 2017, attached as Ex. 5 to Sosa II Compl. ("Rebuttal to Verified Answer") ¶¶ 25, 27). For example, in February 2017, Defendants began prohibiting teachers from using the restroom during breakfast and lunch, soon after Sosa had spoken to her supervisors about needing to use the restroom more frequently during those times. (Id. ¶¶ 22-25). Similarly, Defendants required teachers to lock their classroom doors in order to prevent theft; this affected Sosa's ability to perform her job because she was one of the only teachers without a printer in her room and she needed to enter other teachers' rooms to use their printers. (Id. ¶¶ 26-28, 30). When Sosa attempted to address this issue at a staff meeting on February 13, 2017, she was reprimanded by her supervisors. (Id. ¶ 29). Sosa also alleges that other teachers were not reprimanded for breaking rules by doing things like leaving their classroom unattended while going to the restroom, using their phones during breakfast or lunch, leaving students unattended, and having hot coffee near students. (Id. ¶ 15).

3. Sosa alleges Defendants falsely accused her of professional misconduct, without cause, in a manner that deprived her of "dignity, health, livelihood, professional reputation, and ... employment." (Sosa II Compl. ¶¶ 61-63). Sosa alleges that Berger accused her "of being AWOL" from her job on April 6, 2017 after she became ill at school and left, even though she received the necessary approval to leave early. (Rebuttal to Verified Answer ¶ 56). Sosa points to several other similar instances involving her work absences and Defendants' improper responses, which she believes to be retaliation for the filing of her EEOC Complaint on January 12, 2017. (E.g. , id. ¶¶ 35, 41, 46). These resulted in two disciplinary letters in Sosa's file, one made by Defendant Berger dated February 28, 2017 and one made by another supervisor dated March 15, 2017. (Id. ¶¶ 46-47).

Sosa makes other miscellaneous allegations that do not fit neatly in these categories but are made in connection with her hostile work environment claim. For example, Sosa alleges that one of her supervisors, Ms. Berman, or her union representative, Ms. Thomas, leaked the details of Sosa's March 28, 2017 grievance meeting, during which Sosa disclosed that she had photographs documenting the inconsistent application of workplace rules. (Id. ¶¶ 49, 52). Sosa alleges either Ms. Berman or Ms. Thomas leaked the details of the meeting "in order to foment staff opposition" towards her, (id. ¶ 52), which caused other teachers to do things like allege Sosa was causing a hostile work environment for them, (Rebuttal to Verified Answer ¶ 51). In addition, Defendants excluded Sosa from workplace social events, such as a surprise birthday party for another teacher on March 27, 2017, causing Sosa humiliation and sadness. (Id. ¶ 55).

Sosa describes all these actions as a pattern of willful conduct by Berger and the NYCDOE amounting to a materially adverse and hostile work environment in an attempt to induce her to quit. (Sosa II Compl. ¶¶ 69-70). Sosa alleges Berger's actions were motivated by "racial animus against African American persons with dark skin and ... personal disgust for Ms. Sosa's disabilities," (id. ¶ 53), and that Berger both engaged in discrimination herself as well as directed others under her supervision to do so, (id. ¶¶ 22-25). Sosa further alleges Defendants' conduct was in retaliation for the filing of her complaint in Sosa I . (E.g., id. ¶¶ 80, 93). Such conduct has impacted Sosa's "health, livelihood, and working conditions, causing the plaintiff fear, shame, anxiety, hair loss, nausea and insomnia." (Id. ¶ 68; see also id. ¶¶ 35, 64).

Sosa filed a Verified Complaint with the New York City Commission of Human Rights ("NYCCHR"), on behalf of the Equal Employment Opportunity Commission ("EEOC"), against Defendants under the ADA and the Administrative Code of the City of New York § 8-107(15) on January 12, 2017. (EEOC/NYSHRC Verified Complaint, attached as Ex. 1 to Sosa II Compl., Dkt. No. 1 ("EEOC Verified Compl.") ). Both the NYCCHR and the EEOC dismissed Sosa's Verified Complaint for administrative convenience; the NYCCHR notified Sosa of her right to sue by letter dated September 5, 2017, and the EEOC notified her by letter dated October 23, 2017. (NYCCHR Right to Sue Letter, attached as Ex. 3 to Sosa II Compl., Dkt. No. 1 ("NYCCHR Letter"); EEOC Right to Sue Letter, attached as Ex. 4 to Sosa II Compl., Dkt. No. 1 ("EEOC Letter") ).

The Complaint asserts 18 causes of action. Unless otherwise noted, they are brought against both defendants. They are as follows:

1) Race discrimination and hostile work environment in violation of 42 U.S.C. § 1981 and § 1983 (Count 1);

2) Skin color discrimination and hostile work environment in violation of 42 U.S.C. § 1981 and § 1983 (Count 2);

3) Retaliation for Sosa's opposition to race and skin color discrimination in violation of 42 U.S.C. § 1981 and § 1983 (Count 3);

4) Race discrimination and hostile work environment in violation of Title VII (against NYCDOE only) (Count 4);

5) National origin discrimination and hostile work environment in violation of Title VII (Count 5);

6) Skin color discrimination and hostile work environment in violation of Title VII (Count 6);

7) Retaliation for Sosa's opposition to race and skin color discrimination in violation of Title VII (Count 7);

8) Race discrimination and hostile work environment in violation of the NYSHRL (Count 8);

9) Skin color discrimination and hostile work environment in violation of the NYSHRL (Count 9);

10) Retaliation for Sosa's opposition to race and skin color discrimination in violation of the NYSHRL (Count 10);

11) Race discrimination and hostile work environment in violation of the NYCHRL (Count 11);

12) National origin discrimination and hostile work environment in violation of the NYCHRL (Count 12);

13) Skin color discrimination and hostile work environment in violation of the NYCHRL (Count 13);

14) Disability discrimination and hostile work environment in violation of the NYCHRL (Count 14);

15) Retaliation for Sosa's opposition to race and skin color discrimination in violation of the NYCHRL (Count 15);

16) Same as Count 15;

17) No Count 17 has been pled;

18) Disability discrimination and hostile work environment in violation of the ADA and the NYSHRL (Count 18);

19) Retaliation for Sosa's opposition to disability discrimination in violation of the ADA (Count 19).

III. The 2014 Lawsuit

On December 4, 2014, Sosa filed a Complaint against Berger and the NYCDOE, as well as other individuals (the "Sosa I Defendants"), alleging discrimination based on race, national origin, skin color, and disability, as well as retaliation for opposition to such discrimination. (Sosa I Compl. ¶¶ 20, 33). That Complaint alleges 23 causes of action, (id. at 31), under the ADA, Title VII, 42 U.S.C. §§ 1981 and 1983, 29 U.S.C. § 2601 et seq. ("FMLA"), 29 U.S.C. § 791 et seq. ("Rehabilitation Act"), the NYSHRL, and the NYCHRL. (Id. ¶ 1). These causes of action are largely the same as those asserted in her 2018 Complaint, except that the 2014 Complaint did not allege disability discrimination in violation of the ADA against Berger or retaliation in violation of the ADA against the NYCDOE. (Compare Sosa I Compl., with Sosa II Compl. ¶¶ 122-127).

In her 2014 Complaint, Sosa alleged she qualified as an individual with a disability under the ADA, NYCHRL, NYSHRL, and Rehabilitation Act, as well as an individual with a serious health condition under the FMLA, due to her diagnosis and treatment for breast cancer, carpal tunnel syndrome, and a hernia. (Sosa I Compl. ¶¶ 20, 24-25, 29). Her conditions "substantially limited" her "ability to perform certain major life functions," and she struggled to eat and walk up the stairs. (Id. ¶ 25). In 2008 and 2009, Sosa made multiple requests to leave early for chemotherapy and radiation treatment, which would not have interfered with her class time, but her requests were denied. (Id. ¶¶ 26-27). Sosa's other accommodation requests, including a request for the elevator key because she struggled to walk up the stairs and a request to work with less aggressive students, were denied. (Id. ¶ 28).

According to Sosa, these denials were part of an ongoing pattern of discrimination against her beginning in 2006 based on race, national origin, skin color, disability, and in retaliation for exercising her rights. (Id. ¶¶ 20, 29). For example, in 2006, Defendants denied her a promotion and special job training in favor of similarly or less qualified Caucasian employees. (Sosa I Compl. ¶¶ 22-23). In 2012, after Sosa returned from medical leave due to a resurgence of breast cancer and a hernia, the Defendants subjected her to other instances of discrimination, including denying her the opportunity to be a member of the school's curriculum team and to present at the school's curriculum workshop in favor of other similarly qualified Caucasian employees, conveying numerous disparaging comments to her, and falsely accusing her of criminal assault. (Id. ¶ 29).

After Sosa complained several times to the NYCDOE's Office of Equal Opportunity, Defendants wrote her up at least two times, threatened to fire her or transfer her to another school, and interfered with her application for benefits related to a work injury. (Id. ¶¶ 30, 32, 35). Defendants' conduct damaged Sosa's reputation and caused her "severe and lasting embarrassment, humiliation and anguish, and severe emotional and/or physical distress." (Id. ¶¶ 39-40). On September 20, 2018, the District Court issued a Memorandum and Order dismissing several of Sosa's claims. (Sosa I Memorandum and Order dated Sept. 20, 2018, Dkt. No. 45 ("Sosa I Sept. Order") ). Trial is currently scheduled for February 25, 2019. (Minute Entry dated Oct. 9, 2018).

Judge DeArcy Hall concluded that with respect to Sosa's discrimination claims under § 1983 and § 1981, Title VII, the Rehabilitation Act, and the ADA, Sosa had failed to make out a prima facie case. Specifically, Sosa had failed to demonstrate that she suffered an adverse employment action. (Sosa I Sept. Order at 11). With respect to Sosa's failure to accommodate claims, Judge DeArcy Hall concluded that one allegation-Sosa's request that a dangerous student be removed from her classroom-was a speculative, non-actionable event. (Id. at 15). However, with respect to Sosa's request that her lunch period be shifted to a later time, summary judgment for Defendants on this ADA claim was inappropriate. (Id. at 15-16). As to Sosa's hostile work environment claims-based on discriminatory harassment because of Sosa's race, ethnicity, skin color, and national origin-the alleged statements that were the basis of her claims were too sporadic and trivial to be actionable. (Id. at 17). Finally, with respect to her federal retaliation claims under the ADA, FMLA, Title VII, the Rehabilitation Act, and § 1981 and § 1983, Sosa failed to make out a prima facie case of retaliation. (Id. at 22). The Court declined to exercise supplemental jurisdiction over Sosa's state law claims except to the extent they overlapped with her ADA claim based on a failure to be given a lunch accommodation. (Sosa I Sept. Order at 22-23).

Discussion

I. Legal Standards for Motion to Dismiss

For a 12(b)(6) motion, the Court must "accept as true all of the factual allegations set out in plaintiff's complaint." Gregory , 243 F.3d at 691. The Court then draws "inferences from those allegations in the light most favorable to plaintiff, and construe[s] the complaint liberally." Id. Once the facts are construed in the light most favorable to the plaintiff, to avoid dismissal, there must be sufficient facts that allege a plausible claim. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ("To survive a motion to dismiss [pursuant to Rule 12(b)(6) ], a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.") (quotations omitted). "[A] district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference. Of course, it may also consider matters of which judicial notice may be taken under Fed. R. Evid. 201." Kramer v. Time Warner Inc. , 937 F.2d 767, 773 (2d Cir. 1991).

"Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. A complaint must contain more than "naked assertion[s] devoid of further factual enhancement." Id. (quotations omitted). In other words, a plausible claim contains "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."

Id. ; Fed. R. Civ. P. 8(a)(2). "Factual allegations must be enough to raise a right to relief above the speculative level ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The determination whether a plaintiff has alleged a plausible claim is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 ; see also Escamilla v. Young Shing Trading Co. , No. 17-CV-652, 2018 WL 1521858, at *2 (E.D.N.Y. Jan. 8, 2018), report and recommendation adopted , 2018 WL 1033249 (Feb. 23, 2018).

The Court's analysis proceeds as follows: First , the Court addresses whether the Sosa II claims are barred by res judicata or another similar doctrine, as argued by Defendants in their motion papers. (See Sosa II Memorandum of Law in Support of Defendants' Motion to Dismiss the Complaint, attached as Ex. 3 to Notice of Motion to Dismiss for Failure to State a Claim, Dkt. No. 18 ("Mot. to Dismiss Mem.") at 6-8). Second , the Court examines Sosa's § 1981 and § 1983 claims of unlawful discrimination, disparate treatment, hostile work environment, and retaliation based on Sosa's race and skin color, which Defendants argue should be dismissed for various reasons, including lack of adverse employment action, the conclusory nature of the allegations, and failure to plead causation. (See id. at 8, 10, 25). Third , the Court examines the same claims brought under Title VII based on Sosa's race, skin color, and national origin. Fourth , the Court examines Sosa's ADA claims, namely her claims of unlawful discrimination, failure to accommodate, hostile work environment, and retaliation based on her disability, which Defendants argue should be dismissed for same reasons as the other federal claims-i.e. lack of adverse employment action, the conclusory nature of the allegations, and failure to plead causation. (See id. at 10-18, 24-25). Finally , the Court addresses whether supplemental jurisdiction over Sosa's state and city claims should be exercised and whether Sosa should be given leave to amend her Complaint.

II. Res Judicata

On April 11, 2018, this Court ordered Sosa to show cause as to why her Sosa II claims should not be barred by res judicata based on the Sosa I litigation. (Sosa II Order to Show Cause dated April 11, 2018, Dkt. No. 12 ("Order to Show Cause") ). Sosa responded to the Order to Show Cause on April 25, 2018, arguing the claims in Sosa II were legally significant independent of Sosa I and were not yet ripe at the time discovery was completed in Sosa I . (Sosa II Resp. to Order to Show Cause, Dkt. No. 14 at 1-2). After Defendants filed a motion for pre-motion conference, (Sosa II Letter Motion for Pre-Motion Conference, Dkt. No. 16), the Court ordered a briefing schedule for the current motion to dismiss, (Sosa II Order dated May 9, 2018). There is currently no basis to dismiss Sosa's claims in this case in light of her earlier litigation because a final judgment has not been entered in Sosa I .

Res judicata, or claim preclusion, "forecloses litigation of a claim that has been adjudicated in an earlier suit." Staten v. City of New York , No. 16-CV-5317, 2017 WL 2937698, at *5 (S.D.N.Y. July 10, 2017) (citing Marcel Fashions Grp., Inc. v. Lucky Brand Dungarees, Inc. , 779 F.3d 102, 107-08 (2d Cir. 2015) ). "To prove the affirmative defense [of res judicata] a party must show that (1) the previous action involved an adjudication on the merits; (2) the previous action involved the plaintiffs or those in privity with them; (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action." Monahan v. N.Y.C. Dep't of Corr. , 214 F.3d 275, 285 (2d Cir. 2000).

Summary judgment is an adjudication on the merits, and can have res judicata effect provided that judgment has been entered. See Kremer v. N.Y. State Ins. Dep't , No. 06-CV-9949, 2009 WL 777721, at *4 (S.D.N.Y. Mar. 25, 2009) ("Summary judgment constitutes a final judgment on the merits for purposes of applying res judicata.") (quotations omitted); Rodriguez ex rel. Rodriguez v. Abbott Labs. , 151 F.R.D. 529, 532 (S.D.N.Y. 1993) ("[S]ummary judgment is a final judgment on the merits sufficient to raise the defense of res judicata in a subsequent action between the parties.") (citing 1B James Wm. Moore et al., Moore's Federal Practice ¶ 0.409[1] (2d ed. 1984) ); In re Residential Capital, LLC , 531 B.R. 1, 13 (Bankr. S.D.N.Y. 2015) ("[T]he Summary Judgment Order does not constitute a final judgment on the merits because no judgment was entered by the District Court after entry of the Summary Judgment Order with respect to the Debtor Defendants.").

A partial summary judgment grant operates similarly-there must be final judgment entered as to the dismissed claims. A district court is empowered to enter final judgment pursuant to Rule 54(b) as to those claims dismissed in a partial summary judgment decision. Fed. R. Civ. P. 54(b) ("When an action presents more than one claim for relief[,] ... the court may direct entry of a final judgment as to one or more, but fewer than all, claims ... only if the court expressly determines that there is no just reason for delay."). Otherwise, the partial summary judgment decision acts only as an order that is subject to revision. Id. ("Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims ... does not end the action as to any of the claims ... and may be revised[.]"). And that possibility deprives the partial summary judgment decision of res judicata effect. Nieto v. Vill. Red Rest. Corp. , No. 17-CV-2037, 2017 WL 4539327, at *1 (S.D.N.Y. Oct. 10, 2017) ("[I]f final judgment has not been entered, then a partial summary judgment generally does not have preclusive effects. Because [the Court's] decision only partially resolved the claims in [the first case] and was not entered as a final judgment, res judicata does not apply.") (citations omitted) ); Warner Bros. Inc. v. Am. Broad. Cos. , 720 F.2d 231, 245 n.11 (2d Cir. 1983) ; see also Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 2661 (3d ed.) ("[P]reclusion principles are based on a final judgment so that since a Rule 54(b) judgment is viewed as final, it has binding effect. On the other hand, if no certificate [of judgment] issues, the court's decision or order remains interlocutory and the above effects will not take place.").

Defendants argue that the claims in Sosa's 2018 Complaint are barred by res judicata because they were either decided in the 2014 suit or "do not amount to a new claim ... [because] they are nothing more than additional instances of what was preciously asserted[.]" (Mot. to Dismiss Mem. at 7).

As of the date of this Report and Recommendation, there is no final judgment entered with respect to the § 1981 and § 1983, Title VII, FMLA, ADA, and Rehabilitation Act claims that were dismissed pursuant to the September Sosa I order. As a result, res judicata cannot be applied to bar those claims in this lawsuit.

III. Section 1981 and Section 1983 Claims

Sosa's first three claims allege a combination of race and skin color discrimination, hostile work environment, and retaliation, pursuant to 42 U.S.C. § 1981 and § 1983. (See Sosa II Compl. ¶¶ 71-82).

Section 1981 provides "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts[.]" 42 U.S.C. § 1981(a). The Civil Rights Act of 1991 expanded § 1981 to outlaw discrimination occurring after contract formation "with respect to the enjoyment of benefits, privileges, terms, and conditions of a contractual relationship[.]" Patterson v. County of Oneida , 375 F.3d 206, 224 (2d Cir. 2004). Section 1981, however, does not contain a cause of action against state actors; these claims must be brought through § 1983. Duplan v. City of New York , 888 F.3d 612, 619-21 (2d Cir. 2018) (joining nine other circuits to reaffirm the applicability of Jett v. Dallas Indep. Sch. Dist. , 491 U.S. 701, 733, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989) ) ("[T]he express cause of action for damages created by § 1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981 by state governmental units."); see, e.g. , Gladwin v. Pozzi , 403 F. App'x 603, 605 (2d Cir. 2010) ("[Plaintiff's] § 1981 claims are encompassed by her § 1983 claims, and both are therefore analyzed under § 1983."); Chioke v. Dep't of Educ. of City of N.Y. , No. 15-CV-1845, 2018 WL 3118268, at *15 (E.D.N.Y. June 25, 2018) (analyzing plaintiff's § 1981 claims against the NYCDOE under § 1983 because " § 1981 cannot provide [plaintiff] any relief" against state actors). Section 1983"is not itself a source of substantive rights; instead, it merely provides a method for vindicating federal rights elsewhere conferred, such as those conferred by § 1981." Garrido v. N.Y.C. Dep't of Educ. , No. 16-CV-9464, 2018 WL 1664793, at *5 (S.D.N.Y. Mar. 15, 2018) (quotations omitted).

Here, Sosa identifies both § 1981 and § 1983 in each of her claims of racial discrimination, skin color discrimination, hostile work environment, and retaliation. (Sosa II Compl. ¶¶ 71-82). She alleges "Defendants willfully subject[ed her] to discrimination and harassment in the workplace" and "to unlawful retaliation for her opposition to, her reporting of, and complaints about race and color discrimination" in violation of § 1981. (Id. ¶¶ 72, 76, 80). She asserts that her right to be free from such conduct is secured under § 1983 and that Defendants acted "under color of state law" when engaging in discrimination and retaliation. (Id. ¶¶ 73, 77, 81). Thus the Court interprets Sosa's Complaint to allege substantive violations of § 1981, brought pursuant to § 1983.

"In analyzing whether a plaintiff has sufficiently alleged an employment discrimination claim, the Court must consider ... the three-stage, burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)." Richard v. N.Y.C. Dep't of Educ. , No. 16-CV-957, 2017 WL 1232498, at *5 (E.D.N.Y. Mar. 31, 2017).

At the pleading stage, a plaintiff does not need to prove discrimination or even allege facts establishing every element of the McDonnell Douglas prima facie case, but the facts alleged must give plausible support to the reduced requirements of the prima facie case. Thus, a plaintiff need only plead facts sufficient to give plausible support to the plaintiff's minimal initial burden, which is governed by the statute under which she brings her claims.

Id. at *6 (quotations and citations omitted); see Littlejohn v. City of New York , 795 F.3d 297, 312 (2d Cir. 2015) ("[Plaintiff's] disparate treatment claim under ... § 1981 [ ] and § 1983 is subject to the burden shifting evidentiary framework set forth in McDonnell Douglas .... [B]ecause this appeal involves a review of a motion to dismiss, we focus only on whether the allegations in the complaint give plausible support to the reduced prima facie requirements that arise under McDonnell Douglas in the initial phase of a litigation.").

On a motion to dismiss, courts generally treat the elements of a prima facie case as an outline of what is necessary to render a plaintiff's employment discrimination claims for relief plausible to survive a motion to dismiss. Thus, for the Court to deem a set of factual allegations plausible, Plaintiffs must allege facts that allow the Court, in substance, to infer the essential elements of a prima facie case.

Hill v. City of New York , 136 F. Supp. 3d 304, 332-33 (E.D.N.Y. 2015) (quotations and citations omitted).

A. Unlawful Discrimination (Counts 1 and 2)

Counts 1 and 2 allege race and skin color discrimination under § 1981 and § 1983. (See, e.g. , Sosa II Compl. ¶¶ 72-78). To state such a claim, a plaintiff must allege first that an employer discriminated against her and second that it did so because of her race or color. Vega v. Hempstead Union Free Sch. Dist. , 801 F.3d 72, 85 (2d Cir. 2015) ; Isbell v. City of New York , 316 F. Supp. 3d 571, 590 (S.D.N.Y. 2018).

As to the first element, "[a]n employer discriminates against an employee by taking an adverse employment action, such as termination of employment." Isbell , 316 F. Supp. 3d at 590 (quotations and citations omitted) (applying the framework of a Title VII motion to dismiss to a § 1981 and § 1983 motion to dismiss). "A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment." Vega , 801 F.3d at 85 (quotations omitted).

An adverse employment action must be "more disruptive than a mere inconvenience or an alteration of job responsibilities." Galabya v. N.Y.C. Bd. of Educ. , 202 F.3d 636, 640 (2d Cir. 2000) (quotations omitted). Such actions could include "a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation." Id. (quotations omitted).

As noted above, Judge DeArcy Hall granted summary judgment to Defendants on Sosa's § 1981 and § 1983 claims. Specifically, Judge DeArcy Hall found that Sosa "has not made a prima facie showing that she suffered an adverse employment action" since "none of the alleged conduct constitutes an adverse employment action actionable under law." (Sosa I Sept. Order at 11). Judge DeArcy Hall determined that, even if true, Defendants' offensive racial remarks towards Sosa, the disciplinary letters issued in Sosa's file, Sosa's transfer from P.S. 213 to P.S. 179, and the failure to assign Sosa as a unit coordinator or select her for a particular professional development opportunity could not constitute adverse employment actions because they did not change the terms and conditions of employment. (Id. at 11-13). Sosa I was decided on summary judgment; the present motion is to dismiss. Both, however, require analysis of a prima facie case of discrimination. See Littlejohn , 795 F.3d at 310-11. And the issues that plague Sosa's complaint in her other case are present with this Complaint: a failure to identify and plausibly allege an adverse employment action.

Sosa alleges the following adverse employment actions: the failure to accommodate her medically requested preferences and the delay in receiving the accommodations she was provided, (see Sosa II Compl. ¶¶ 37-39, 47-55), the failure of Defendant Berger to interact with her during the accommodations process, (see id. ¶¶ 40-46), the allegations against Sosa of professional misconduct, (see id. ¶¶ 61-63), and the inconsistent application of workplace rules between Sosa and her colleagues, (see id. ¶ 60). Defendants contend that these do not amount to adverse employment actions. (Mot. to Dismiss Mem. at 20-22). They are correct.

As to the failure to accommodate and the related delay, Sosa alleges Defendants failed to provide her with a single prep period on one day of the work week, as she had originally requested. Other than that, the only other harm is the delay occasioned from having to wait to be returned to her original classroom and receive the schedule she requested. Sosa does not explain what about a denial of a single accommodation request or delay in receiving other accommodations amounts to a material change in the terms of her employment. For one thing, because she received almost everything she asked for, there was no negative change in her employment conditions; and one prep period cannot be seen as anything but a de minimis change. Batyreva v. N.Y.C. Dep't of Educ. , No. 07-CV-4544, 2010 WL 3860401, at *12 (S.D.N.Y. Oct. 1, 2010) ("Batyreva's purportedly unfavorable teaching schedule for the Fall 2006 semester is not an 'adverse employment action,' ... [T]his new schedule did not significantly diminish [her] material responsibilities, ... or otherwise ha[ve] such a substantial impact on her job as to be considered tantamount to a demotion.") (quotations and citations omitted), aff'd , 464 F. App'x 31 (2d Cir. 2012) ; e.g. , Robinson v. Macy's Retail Holding, Inc. , No. 14-CV-4937, 2015 WL 10793114, at *12 (S.D.N.Y. Aug. 19, 2015) (finding plaintiff's complaint about scheduling-"she says that she was not given full weekends off, or allowed to work on Saturday rather than Sunday"-did not amount to adverse employment action).

And the short delay in receiving her other requests is not enough to constitute adverse employment action, particularly since the accommodations were granted before the school year began and before she returned to work. (See NYCDOE Verified Answer, Ex. K (granting Sosa use of her usual classroom and her requested schedule on all but one day of the week in a letter dated August 19, 2016) ); Williams v. N.Y.C. Hous. Auth. , No. 03-CV-7764, 2008 WL 2695139, at *3 (S.D.N.Y. June 29, 2008) ("A delay in processing paperwork that does not materially change the terms and conditions of a plaintiff's employment is not an adverse employment action[.]"), aff'd , 361 F. App'x 220 (2d Cir. 2010) ; Dechberry v. N.Y.C. Fire Dep't , 124 F. Supp. 3d 131, 147 (E.D.N.Y. 2015) ("[A] delay in the administrative processing of benefits does not generally constitute an adverse employment action."); e.g. , Galabya , 202 F.3d at 640 ("[T]here is no evidence that shows that the delay in reassignment, followed by the mis-assignment to Sara Hale, was an adverse employment action. Appellant does not allege that appellee denied him an available transfer, that appellee failed to pay his salary during the interim period, or that the delay in any way harmed his career.").

As to the allegations of professional misconduct, Sosa alleges Defendants improperly accused her of missing work, which resulted in at least two disciplinary letters in her file. No other impact is alleged. "Like other negative performance evaluations, letters to file do not rise to the level of an adverse employment action where, as here, they do not trigger other adverse consequences, such as loss of pay." Sotomayor v. City of New York , 862 F. Supp. 2d 226, 255 (E.D.N.Y. 2012), aff'd , 713 F.3d 163 (2d Cir. 2013) ; see also Lyman v. NYS OASAS , 928 F. Supp. 2d 509, 520 (N.D.N.Y. 2013) ("District courts within the Second Circuit have often found that reprimands, threats of disciplinary action, and excessive scrutiny do not constitute adverse employment actions in the absence of other negative results such as a decrease in pay or being placed on probation.") (quotations and alterations omitted) (collecting cases); see, e.g. , Vale v. Great Neck Water Pollution Control Dist. , 80 F. Supp. 3d 426, 435 (E.D.N.Y. 2015) (holding "disciplinary charges and written reprimands issued against the Plaintiff do not, even if true, constitute an 'adverse employment action' because none resulted in a loss of pay, suspension, or material change in the terms of the Plaintiff's employment").

Sosa also alleges Defendants reprimanded her when they did not chastise other teachers and created new rules related to bathroom use and locking classrooms solely for the purpose of harassing her. While inconsistent application of certain workplace rules could be considered an adverse employment action in the context of retaliation, see e.g. , Deshpande v. Medisys Health Network, Inc. , No. 07-CV-375, 2008 WL 2004160, at *5 (E.D.N.Y. May 7, 2008), here the rules alleged to be applied inconsistently relate to bathroom breaks and classroom access. Accepting that Sosa was treated differently with respect to these items, there is no allegation they affected her pay, are related to benefits or privileges of employment, or evidenced a demotion. In this context, they again are too ministerial to be the basis of a viable claim. E.g. , Galabya , 202 F.3d at 640 ("As a matter of law, the disparity in working conditions-which reduces to the fact that teachers at Van Arsdale rotate through classrooms whereas teachers at P.S. 4 have their own classrooms-may be characterized as minor."); Gordon v. N.Y.C. Bd. of Educ. , No. 01-CV-9265, 2003 WL 169800, at *7 (S.D.N.Y. Jan. 23, 2003) ("While Gordon has demonstrated that the lack of a permanent classroom was a great inconvenience to her, she has not offered any evidence to show that such undesirable working conditions prevented her from doing her job.").

Without an identifiable adverse employment action, Sosa's claims for race and skin color discrimination under § 1981 and § 1983 must be dismissed. See, e.g. , Hernandez v. City of New York , No. 11-CV-3521, 2013 WL 593450, at *3-4 (E.D.N.Y. Feb. 13, 2013) (dismissing plaintiff's § 1981 claims based on failure to allege adverse employment action); Henry v. N.Y.C. Health & Hosp. Corp. , 18 F. Supp. 3d 396, 405-06, 409 (S.D.N.Y. 2014) (dismissing Title VII and NYSHRL claims, in part, for failure to allege adverse employment action).

B. Disparate Treatment (Counts 1 and 2)

Counts 1 and 2 in Sosa's Complaint can be read to allege disparate treatment under § 1981. (See, e.g., Sosa II Compl. ¶ 49 ("[D]efendants regularly granted the requests of other Caucasian, non-African American teachers[.]"), ¶ 60 ("Defendants have continuously treated Ms. Sosa differently than Caucasian teachers by inconsistently and discriminatorily applying workplace rules.") ). To the extent that disparate treatment is Sosa's means of alleging unlawful discrimination, the claims fail for an independent reason: she has failed to allege that she was similarly situated to those employees she alleges received more favorable treatment.

"A plaintiff may demonstrate circumstances giving rise to an inference of discrimination by alleging that [s]he was treated less favorably than similarly situated employees of other races[.]" Brown v. Daikin Am. Inc. , 756 F.3d 219, 229 (2d Cir. 2014) ; see McGuinness v. Lincoln Hall , 263 F.3d 49, 53 (2d Cir. 2001) ("A showing that the employer treated a similarly situated employee differently is a common and especially effective method of establishing a prima facie case of discrimination.") (quotations omitted). To do so, "a pl