Supreme Court, Kings County, February 2, 2024

Sylvia O. Hinds-Radix, Corporation Counsel, Labor and Employment Law Division, New York City, for defendants.

The Landau Group, New York City, for plaintiff.

{**85 Misc 3d at 238}Plaintiff Joseph Ruiz (plaintiff or Ruiz) was terminated from his position as teacher at the Nathaniel Hawthorne Middle School (Hawthorne) on May 23, 2015. He claims that the various defendants employed by the NYC Department of Education (DOE) and the DOE itself^[FN1] violated the New York State Human Rights Law (SHRL or State HRL or NYSHRL) and the New York City Human Rights Law (CHRL or City HRL or NYCHRL) by subjecting him to a hostile work environment and then engaging in discrimination by terminating him because of his national origin/race. He also claims that he was subjected to selective enforcement in violation of the Due Process Clause of the 14th Amendment to the U.S. Constitution and that the defendants committed various other torts. Defendants now move to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action.

This case had a number of procedural twists before the court including plaintiff's motion for a default judgment and defendants' subsequent motion to dismiss for statute of limitations which precluded this court from even considering the instant motion to dismiss pursuant to CPLR 3211 (a) (7). By decision dated September 28, 2020, this court set forth the procedural history, including the DOE's removal of the case to federal court, the parties' stipulation to remand the case back to state court, defendants' failure to answer the original or amended complaint which led to plaintiff's motion for a default judgment, and defendants' subsequent motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) based upon the statute of limitations and 3211 (a) (7). (2020 NY Slip Op 35593[U] [Sup Ct, Kings County 2020].) This court ultimately vacated the default judgment based upon its finding that defendants had a reasonable excuse for failing to answer the amended complaint and had set forth potentially meritorious defenses.

The court also found, and defendants conceded, that CPLR 3211 (e) precluded defendants from bringing a motion to dismiss based upon the statute of limitations since such defense had to be brought before or at the time the answer was required to be served and any defense based upon 3211 (a) (5) is waived unless raised in a timely motion or in the responsive pleading. The case therefore proceeded solely on the section 3211 (a) (7) motion.

In support of his hostile work environment claim, plaintiff asserts that his supervisors constantly harassed him over{**85 Misc 3d at 239} minor instances that did not warrant discipline, and that they repeatedly called him in for counseling regarding performance concerns. He claims that many of these allegations were "absurd and discriminatory" although not once did plaintiff allege that his supervisors mentioned his national origin. On October 2, 2014, plaintiff met with Assistant Principal (A.P.) Richard Schaefer and defendant A.P. Lisa Perlstein (Perlstein) concerning him telling his class that he had spent the night with his girlfriend at the hospital after introducing her to fried food, since he was not supposed to share personal information with his students. By letter dated October 7, 2014, A.P. Schaefer memorialized his criticisms of Ruiz and instructed him that he should not share his personal experiences with the class and should maximize his classroom instruction time. Schaefer concluded that Ruiz had used poor judgment and that failure to comply with these expectations could be considered an act of insubordination.

On November 14, 2014, Perlstein called Ruiz into a meeting to discuss Ruiz's failure to notify a math teacher two weeks in advance of an IEP meeting and failure to complete and input students progress reports into the ESIS system. Perlstein also told Ruiz that he needed to fill out bimonthly progress reports and that failure to do so would be considered insubordination. Perlstein followed this meeting up with a letter dated November 18th which stated that Ruiz's [*2]actions were unacceptable and continued to demonstrate a lack of professional growth, and that Ruiz was in danger of receiving an adverse rating as well as a recommendation for discontinuance of his services. On December 19, 2014, plaintiff met with defendant Principal Anthony Armstrong (Armstrong) regarding a safety concern over allowing a parent into the school building contrary to security protocols, for which Ruiz was subsequently disciplined at the end of January. In January, Armstrong determined that Ruiz had failed to take daily attendance and again threatened Ruiz with discipline and an adverse rating; the principal also retroactively disciplined Ruiz for failing to turn in grades for progress reports in November. On or about January 30, 2015, Armstrong sent a letter to Ruiz memorializing the December 19th meeting and ordered Ruiz to set up a meeting with the Dean to review safety protocols. Armstrong again warned Ruiz that he was in danger of receiving an adverse rating for the year, being fired, and having his license terminated. It is important to note that the complaint does not assert that any{**85 Misc 3d at 240} of the defendants referred to his national origin/race during these meetings.

Ruiz also contends that in December 2014 Armstrong conducted a 15 minute informal observation in lieu of conducting an annual professional performance review (APPR) and rated Ruiz as "ineffective" in every category and then incorrectly categorized this informal observation as an APPR. The APPR is supposed to be a summative end of year conference consisting of a mandatory face-to-face meeting between a teacher eligible to advance to tenure and the principal and/or other evaluator. The purpose of this collaborative conversation is to review feedback and ratings from being observed, and to identify successes, areas for improvement, and next steps toward the teacher's continued professional growth. The APPR is supposed to happen before the end of the year rating.

Armstrong then failed to provide Ruiz with a copy of this "[s]ham APPR" until March 9, 2015, which violated the collective bargaining agreement (CBA) and prevented Ruiz's ability to appeal it. Armstrong rated Ruiz's teaching performance as "ineffective" for the 2014-2015 school year. The DOE, however, contends that the APPR could only occur between April 24 and June 2, 2015, but that since it discontinued plaintiff's employment on May 23, 2015, the conference could not be held.

Ruiz claims that he was eligible for tenure in or about June 2015. However, as a result of the letters in his file, ineffective ratings, and the alleged sham APPR, the DOE discontinued Ruiz's services in May 2015 and denied him tenure. In "stark contrast" to these actions, Ruiz asserts that he was peer evaluated and interviewed on or about 10 occasions, which were "very positive," and that he always received an effective rating. Peer evaluations are part of the "new rating system" and the peer evaluators are composed of former principals and vice principals supplied by the DOE and the evaluations were spaced out every three months.

Plaintiff claims his workplace was "permeated with discriminatory intimidation, ridicule and insult" that was sufficiently severe or pervasive so as to alter his working conditions and create a hostile working environment. His claim for hostile work environment is based on Armstrong's and Perlstein's constant harassment of him and singling him out for reprimand over petty incidents, that their actions were "grounded in hate and superiority," and that he was treated less well than one Melissa Zinker, a white female special education probationary{**85 Misc 3d at 241} teacher. However, he did not point to one comment made by either Armstrong or Perlstein that referred to his nationality or race, i.e. his membership in a protected class.

Although it is somewhat unclear whether plaintiff alleges that actions following his discontinuance sounded in discrimination, hostile work environment, or retaliation or all of them, plaintiff challenges the series of "unfortunate events" which stemmed from the unlawful discontinuance of his employment. His appeal of his ineffective rating and discontinuance resulted in three further adverse employment actions: in November 2015 his nomination to become a substitute teacher was canceled, he was disqualified from becoming a police officer, and he was denied all job opportunities in many school districts. He also claims that Perlstein stymied his ability to become a police officer by making false statements about his work performance to the New York City Police Department (NYPD). After his discontinuance he was denied access to an online software program and the DOE did this "fraudulently, and in retaliation for [his] filing an appeal." In addition to his claim of hostile work environment, plaintiff asserts that these actions constituted separate torts of intentional infliction of emotional distress, fraudulent misrepresentation and concealment, defamation, and tortious interference with business relationships.

Plaintiff claims that the DOE retaliated against him, in violation of the State and City HRLs, for appealing his discontinuance and that the DOE decision upholding his discontinuance was retaliatory and based on "misrepresented facts." He asserts that the decision upholding his discontinuance "effectively destroyed any chance of [him] ever teaching in NYC and greatly impaired his ability to procure employment as a teacher any where else." He also raises a number of other procedural and substantive challenges to the appeal process.^[FN2] Because, as set forth below, these actions subsequent to his termination are a continuum of the discriminatory treatment and hostile work environment plaintiff endured while working at Hawthorne, these claims rise and fall upon this court's ruling on whether defendants violated the City and State HRLs in the first instance.{**85 Misc 3d at 242}

Plaintiff claims that defendants' negative employment actions constituted national origin and race discrimination in violation of the State and City HRLs as he was the only male Hispanic teacher and one of four Hispanic teachers at the school, and was among a small handful of teachers who were not from Long Island, or raised in New York City. He recalls times when "he felt singled out due to his origin and race." Out of roughly 75 teachers at Hawthorne, there is currently (as of the date of the complaint in 2017) only one Hispanic and one African American teacher, minority representation being less than three percent of the staff. Of the four Hispanic teachers at the school in 2014-2015, one left, and Ruiz and another teacher were let go. "Shockingly, Mr Ruiz was replaced by a white female teacher from Long Island"—Stephanie Kushner—who, upon information and belief, was not subjected to the same or similar treatment that Ruiz had received as a probationary teacher. He also claims that he was treated less favorably than a "similarly situated white female" special education teacher—Melissa Zinker—whose services were not discontinued although she allegedly also received letters to the file and is currently teaching at Hawthorne. He contrasts these biased actions with those of the allegedly [*4]neutral peer evaluators who found that he was an effective teacher.

On a motion to dismiss under CPLR 3211 (a) (7), the court must consider "whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action" (Polite v Marquis Marriot Hotel, 195 AD3d 965, 966-967 [2d Dept 2021]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Morales v Triborough Podiatry, P.C., 184 AD3d 754, 755 [2d Dept 2020]; Thompson Bros. Pile Corp. v Rosenblum, 121 AD3d 672, 673 [2d Dept 2014]; Reaves v New York City Dept. of Educ., 2020 NY Slip Op 32480[U] [Sup Ct, Queens County 2020]; Krause v Lancer & Loader Group, LLC, 40 Misc 3d 385, 391 [Sup Ct, NY County 2013]). The court must accept the complaint's allegations as true, afford them a liberal construction, and draw all reasonable inferences in plaintiff's favor and "determine only whether the facts as alleged fit within any cognizable legal theory." (Nonnon v City of New York, 9 NY3d 825, 827 [2007]; Kassapian v City of New York, 155 AD3d 851, 853 [2d Dept 2017]; Harris v IG Greenpoint Corp., 72 AD3d 608, 609 [1st Dept 2010]; Pepler v Coyne, 33 AD3d 434, 435 [1st{**85 Misc 3d at 243} Dept 2006]; Artis v Random House, Inc., 34 Misc 3d 858, 863 [Sup Ct, NY County 2011].) However, allegations consisting of bare legal conclusions, as well as factual claims inherently incredible or flatly contradicted by documentary evidence, are not entitled to such consideration. (O'Neill v Wilder, 204 AD3d 823 [2d Dept 2022]; Polite, 195 AD3d at 967; Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1st Dept 1999].)

The court is not concerned with determinations of fact or the likelihood of success on the merits. (Reaves at *3, citing Detmer v Acampora, 207 AD2d 477 [2d Dept 1994].) Whether the complaint will later survive a motion for summary judgment or the plaintiff will ultimately be able to prove its claims "plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss" (Kassapian, 155 AD3d at 853; Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38 [2d Dept 2006]). In reviewing a CPLR 3211 (a) (7) motion to dismiss, the court may not rely on facts alleged by defendants to defeat the claims "unless the evidence demonstrates the absence of any significant dispute regarding those facts and completely negates the allegations against the moving defendants." (Artis, 34 Misc 3d at 863; Harris, 72 AD3d at 609; see Lawrence v Graubard Miller, 11 NY3d 588, 595 [2008].)

Employment discrimination cases are reviewed under notice pleading standards, so that a plaintiff need not plead specific facts establishing a prima facie case of discrimination "but need only give 'fair notice' of the nature of the claim and its grounds." (Vig v New York Hairspray Co., L.P., 67 AD3d 140, 145 [1st Dept 2009]; Taylor v Baylar, 2020 NY Slip Op 33610[U] [Sup Ct, NY County 2020]; Krause v Lancer & Loader Group, LLC, 40 Misc 3d 385 [Sup Ct, NY County 2013].) Therefore, in determining a motion to dismiss the court does not consider whether a plaintiff can ultimately establish its allegations. (Melamed v Americare Certified Special Serv., Inc., 2014 NY Slip Op 33296[U], *16-17 [Sup Ct, Kings County 2014], citing EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005].) Although "a complaint may be inartfully drawn [or] illogical,'' the court must deem it to allege "whatever can be implied from its statements 'by fair and reasonable intendment.' " (Melamed, 2014 NY Slip Op 33296[U], *17, citing Shields v School of Law of Hofstra Univ., 77 AD2d 867, 868 [2d{**85 Misc 3d at 244} Dept 1980].) The court's inquiry is limited to determining whether the complaint states any cause of action, not whether there is evidentiary support for it. (Krause, 40 Misc 3d at 391, citing Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976].) Pleadings under the City HRL, in particular, must be construed broadly in favor of discrimination plaintiffs. (Morales, 184 AD3d at 755.)

The Second Circuit's analysis of the de minimis pleading burden placed upon a plaintiff at the motion to dismiss phase, in an employment discrimination case, is controlling in the instant manner.^[FN3] In Littlejohn v City of New York (795 F3d 297 [2d Cir 2015]), the Second Circuit concluded that in order to withstand a motion to dismiss, a complaint in an employment discrimination lawsuit need not contain specific facts establishing a prima facie case of discrimination under the framework set forth in McDonnell Douglas Corp. v Green (411 US 792 [1973]). (Id. at 307-308, citing Swierkiewicz v Sorema N. A.,{**85 Misc 3d at 245} 534 US 506, 508 [2002].) McDonnell Douglas established that a plaintiff could establish a prima facie case of discrimination without evidence to show discriminatory motivation if he showed that he (1) was a member of a protected class; (2) was qualified for employment in the position; (3) suffered an adverse employment action; and (4) had some minimal evidence suggesting an inference that the employer acted with discriminatory motivation. (411 US 792, 802 [1973]; see St. Mary's Honor Center v Hicks, 509 US 502, 506-507 [1993]; Texas Dept. of Community Affairs v Burdine, 450 US 248, [*5]253-254 [1981].) After satisfying these requirements, a presumption of discriminatory intent arises in the plaintiff's favor at which point the burden of production shifts to the employer in a summary judgment motion to provide a nondiscriminatory reason.

As this standard governs what a plaintiff needs to show to establish a prima facie case when facing a summary judgment motion, it would be "incongruous to require a plaintiff, in order to survive a motion to dismiss," to plead facts additional to what he might ultimately need to succeed on the merits if direct evidence of discrimination is discovered. (Littlejohn, 795 F3d at 311, citing Swierkiewicz, 534 US at 511-512.) Since the discrimination complaint, by definition, arises in the first stage of litigation, the complaint "also benefits from the temporary presumption and must be viewed in light of the plaintiff's minimal burden to show discriminatory intent." (Littlejohn, 795 F3d at 311, citing Swierkiewicz, 534 US at 511-512.)

Thus, at the motion to dismiss phase, a plaintiff does not need to prove discrimination or even allege facts establishing every phase of the prima facie case, but must allege facts that "give plausible support to the reduced requirements that arise under McDonnell Douglas in the initial phase of a Title VII litigation." (Littlejohn at 311-312; see Alvarez v New York City Dept. of Educ., 2021 WL 1424851, *7, 2021 US Dist LEXIS 73056, *20-21 [SD NY, Apr. 15, 2021, 20-CV-255 (VSB)].) The requirements for establishing a prima facie case under McDonnell Douglas do not apply to the pleading standard on a motion to dismiss. (Powell v Delta, 145 F Supp 3d at 196, quoting Swierkiewicz, 534 US at 511.) "Rather, because 'a temporary "presumption" of discriminatory motivation' is created under the first prong of the McDonnell Douglas analysis, a plaintiff 'need only give plausible support to a minimal inference of discriminatory motivation.' " (Vega v Hempstead Union Free{**85 Misc 3d at 246} Sch. Dist., 801 F3d 72, 84 [2d Cir 2015], quoting Littlejohn, 795 F3d at 307, 311.)

There is no dispute that as a Hispanic, plaintiff is a member of a protected class due to either his race or national origin. (Village of Freeport v Barrella, 814 F3d 594, 607 [2d Cir 2016]; Vega v Hempstead Union Free Sch. Dist., 801 F3d at 88-89 [plaintiff's Hispanic ethnicity was a motivating factor in the employment decisions]; Rivera v Rochester Genesee Regional Transp. Auth., 743 F3d 11, 15-16 & n 3, 23 [2d Cir 2014]; Santiago-Mendez v City of New York, 136 AD3d 428, 428 [1st Dept 2016]; Valentin v Fox Bus. Network, 2016 NY Slip Op 30372[U], *12 [Sup Ct, NY County 2016] [race].) A number of courts have addressed the confusion or uncertainty as to whether "Hispanic" is better characterized as a race or a national origin, and have ultimately concluded it is a nonissue. In Freeport, supra, the Second Circuit found that title VII "protected characteristics" or "protected classes" are not mutually exclusive; that under title VII " 'race' encompasses ethnicity"; that claims based on race and national origin "may substantially overlap or even be indistinguishable depending on the specific facts of a case" and that "a claim of discrimination based on Hispanic ethnicity or lack thereof may also be cognizable under the rubric of national-origin discrimination, depending on the particular facts of each case." (814 F3d at 606-608 [emphasis omitted]; see Alonzo v Chase Manhattan Bank, N.A., 25 F Supp 2d 455, 459-460 [SD NY 1998] ["Alonzo's claims of racial discrimination are reasonably related to his claims of national origin discrimination as they fall within the reasonable scope of EEOC investigation"]; Serrano v New York State Dept. of Envtl. Conservation, 2013 WL 6816787, *5, 2013 US Dist LEXIS 178939, *12 [ND NY, Dec. 20, 2013, No. 12-CV-1592 (MAD/CFH)] ["since (p)laintiff asserted an EEOC national origin charge and described herself as Hispanic, the national origin charges are reasonably related to racial claims"]; see also United States v Brennan, 650 F3d 65 [2d Cir 2011] [considering "Hispanic" to be a national origin].)

The fourth requirement—some minimal evidence suggesting an inference that the employer acted with discriminatory motive—can be satisfied by a showing that an employer replaced a terminated employee with an individual outside the employee's protected class. (Littlejohn at 312-313; see Zimmermann v Associates First Capital Corp., 251 F3d 376, 381 [2d Cir 2001] ["(T)he mere fact that a plaintiff was replaced by someone{**85 Misc 3d at 247} outside the protected class will suffice for the required inference of discrimination at the prima facie stage of the Title VII analysis"]; Dabney v Christmas Tree Shops, 958 F Supp 2d 439, 451-452 [SD NY 2013] ["Plaintiff's replacement by Williams, who is white, is sufficient to make out a prima facie case of racial discrimination"]; Fleming v MaxMara USA, Inc., 371 Fed Appx 115 [2d Cir 2010]; de la Cruz v New York City Human Resources Admin. Dept. of Social Servs., 82 F3d 16, 20 [2d Cir 1996] [plaintiff satisfied the fourth prong of the prima facie case since as Puerto Rican he is a member of the protected class, and he was replaced by a black female]; Murphy v City of Newburgh, 2018 WL 4625806, *1, *7, 2018 US Dist LEXIS 165548, *1, *17 [SD NY, Sept. 26, 2018, 16 Civ. 9372 (JCM)] ["Plaintiff's replacement by DeMora, who is not African American, is sufficient to make out a prima facie case of racial discrimination"]; Henderson v Montefiore Med. Ctr., 2013 WL 1155421, 2013 US Dist LEXIS 39585 [SD NY, Mar. 21, 2013, No. 12 CV 1468(HB)]; Grella v St. Francis Hosp., 149 AD3d 1046, 1048 [2d Dept 2017] [fact that employee was replaced by a substantially younger employee gave rise to inference of discrimination sufficient to make a prima facie case of age discrimination].)

The fact that Stephanie Kushner, a "white female from Long Island," allegedly replaced plaintiff as a teacher following his termination gives rise to an inference of discrimination since she was outside plaintiff's protected class. Plaintiff also claims that Melissa Zinker, a white special education teacher who was similarly situated, was not terminated, and that out of the roughly 75 teachers at Hawthorne, only one is Hispanic and one is black. In discrimination cases, "[s]tatistics are valuable." (Baldwin v Cablevision Sys. Corp., 65 AD3d 961, 966 [1st Dept 2009] [disparity that within a course of a year the number of black officials and managers at Cablevision dropped at more than five times the rate as that of white officials and managers (41.6% versus 8.1%) could support an inference that the personnel reductions at Cablevision were affected by considerations of race, and suffices to raise a triable issue on the discriminatory termination claim].) While statistical analysis is rarely "sufficient to defeat summary judgment[, it] can provide circumstantial evidence of an inference of discrimination in support of a prima facie case." (Zito v Fried, Frank, Harris, Shriver & Jacobson, LLP, 869 F Supp 2d 378, 395-396 [SD NY 2012]; Hudson v Merrill Lynch & Co., Inc., 2014 NY Slip Op 31048[U] [Sup Ct, NY County 2014].){**85 Misc 3d at 248}

As such, plaintiff's allegations of discrimination by virtue of his being terminated from the position and replaced by a white teacher are sufficient to meet the fourth prong and withstand a motion to dismiss under the State and City HRLs.

A hostile work environment claim is "distinct from a disparate treatment claim" and requires a showing that the workplace is "permeated with discriminatory intimidation, ridicule, [*6]and insult that is sufficiently severe or pervasive to alter" the plaintiff's working conditions and create an "abusive working environment." (Littlejohn, 795 F3d at 320-321; Demoret v Zegarelli, 451 F3d 140, 149 [2d Cir 2006]; Gurley v David H. Berg & Assoc., 2022 WL 309442, 2022 US Dist LEXIS 20546 [SD NY, Feb. 2, 2022, 20 Civ. 9998 (ER)]; George v Professional Disposables Intl., Inc., 2016 WL 3648371, *6, 2016 US Dist LEXIS 72912, *20 [SD NY, June 1, 2016, 15-CV-03385 (RA) (BCM)].) To establish a hostile work environment under title VII and the NYSHRL, a plaintiff must plead facts showing

"that the complained of conduct (1) is objectively severe or pervasive—that is, creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff's [protected characteristic]." (Shkoza v NYC Health & Hosps. Corp., 2021 WL 4340787, *4, 2021 US Dist LEXIS 181153, *11 [SD NY, Sept. 22, 2021, 20-CV-3646 (RA)]; see Gorzynski v Jetblue Airways Corp., 596 F3d 93, 102 [2d Cir 2010]; Patane v Clark, 508 F3d 106, 113 [2d Cir 2007] [title VII]; Terry v Ashcroft, 336 F3d 128, 148 [2d Cir 2003] [ADEA]; Tolbert v Smith, 790 F3d 427, 439 [2d Cir 2015] [NYSHRL]; Pall v Roosevelt Union Free Sch. Dist., 144 AD3d 1004, 1005 [2d Dept 2016].)

A plaintiff must show not only that he subjectively perceives the conduct to be abusive and hostile but that the working environment was "objectively" hostile and abusive. (George v Professional Disposables, 2016 WL 3648371, 2016 US Dist LEXIS 72912; Monachino v Bair, 769 F Supp 2d 431, 442 [SD NY 2011].) Whether an environment is hostile or abusive can be determined only by looking at all circumstances, including{**85 Misc 3d at 249} 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 an employee's work performance." (Forrest at 305, 310-311, 326; Reaves at *5; Bilitch v New York City Health & Hosps. Corp., 194 AD3d 999, 1003 [2d Dept 2021].)

At the motion to dismiss stage, to state a claim for a hostile work environment a plaintiff must show that the harassment was of such quality or quantity that "a reasonable employee would find the conditions of her employment altered for the worse." (Patane v Clark, 508 F3d 106, 113 [2d Cir 2007]; Levy v NYC Health + Hosps., 660 F Supp 3d 220 [SD NY 2023].) A hostile work environment claim will be dismissed under the SHRL pursuant to CPLR 3211 (a) (7) where a plaintiff's facts fall short of alleging that the "workplace was permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive" so as to alter the conditions of employment and create an abusive working environment. (Torres v Louzoun Enters., Inc., 105 AD3d 945, 946 [2d Dept 2013] [brackets and ellipsis omitted]; Gookool v Laser, 43 Misc 3d 1232[A], 2014 NY Slip Op 50906[U] [Sup Ct, Suffolk County 2014]; see Lucenti v Potter, 432 F Supp 2d 347, 362 [SD NY 2006] ["Allegations of even constant reprimands and work criticism by themselves are not sufficient to establish a hostile environment claim"].)

Finally, "it is axiomatic" that in order to establish a hostile work environment, a plaintiff must demonstrate that the hostility or harsh treatment that he was subjected to occurred because of his membership in a protected class (Fordham v Islip Union Free Sch. Dist., 662 F Supp 2d 261, 272-273 [ED NY 2009]; Johnson v City of New York, 2019 WL 4468442, 2019 US Dist LEXIS 160198 [ED NY, Sept. 18, 2019, 17-CV-7585 (PKC) (RER)]).

"Although . . . incidents comprising a hostile work environment claim need not make reference to any trait or condition on the basis of which the discrimination has occurred, they must occur under circumstances in which the incidents can reasonably be interpreted as having taken place on the basis of that trait or condition." (Parekh v Swissport Cargo Servs., Inc., 2009 WL 290465, *4, 2009 US Dist [*7]LEXIS 8543, *12 [ED NY, Feb. 5, 2009, No. CV-08-1994 (CPS)] [internal quotation marks omitted].){**85 Misc 3d at 250}

A plaintiff must still plausibly allege that her protected characteristic was causally linked to the adverse employment action. (See Alfano v Costello, 294 F3d 365, 377 [2d Cir 2002].) "It is . . . important in hostile work environment cases to exclude from consideration personnel decisions that lack a linkage or correlation to the claimed ground of discrimination." (Alfano, 294 F3d at 377.) To obviate the "easy" characterization of various suspect classes (real or perceived), and the typically harsh unjust or rude conduct of bosses, the courts must exclude, in hostile discrimination cases, any consideration of personnel decisions that lack a linkage or correlation to the claimed ground of discrimination, so to avoid becoming courts of personnel appeals (Alfano, 294 F3d at 377; see e.g. Byrnie v Town of Cromwell, Bd. of Educ., 243 F3d 93, 103 [2d Cir 2001]).

Plaintiff's allegations here are insufficient to show that his workplace was permeated with discriminatory intimidation, ridicule, and or insult much less that it was sufficiently severe or pervasive to alter the conditions of his employment so as to violate the State HRL. Plaintiff asserts that almost every week, he either received a letter from the principal or vice principal or was called into a meeting wherein they informed him that he failed to show professional growth or was unable to carry out his professional responsibilities, and that he was in danger of receiving an adverse rating which would cause him to be fired. Ruiz claims that many of the allegations in the letters were for minor instances that the CBA would not allow discipline for, and other allegations were "absurd and discriminatory."

However, Ruiz's pleadings are belied by the very evidence he cites, which shows that in 2014-2015 he received three letters based upon three meetings with administrators over three discrete incidents which hardly rise to the level of severe or pervasive discriminatory conduct, intimidation, ridicule or insult. (Polite, 195 AD3d at 967; see Johnson v City of New York, 2019 WL 4468442, 2019 US Dist LEXIS 160198 [ED NY 2019].) The school administration met with Ruiz and followed up its meeting with letters of reprimand for Ruiz's (1) telling his class that he had spent the night with his girlfriend at the hospital after introducing her to fried food since he was not supposed to share personal information with his students; (2) failing to notify a math teacher two weeks in advance of an IEP meeting and failing to complete and input students progress reports into the ESIS system; the administration then told him that he needed to fill out bimonthly progress reports and{**85 Misc 3d at 251} that failure to do so would be considered insubordination; and (3) regarding a safety concern over allowing a parent into the school building contrary to security protocols, for which he was subsequently disciplined at the end of January.

The courts have consistently found that allegations akin to those made by Ruiz are not so severe or pervasive so as to alter the conditions of a plaintiff's employment and support a hostile work environment claim. (See Littlejohn, 795 F3d at 321 [2d Cir 2015] [finding allegations against supervisors for making negative comments such as "you feel like you are being left out," and that Littlejohn did not "understand the culture" at ACS, impatience, harsh tones, refusals to meet with plaintiff, wrongful reprimands, and increase of plaintiff's schedule, insufficient to state a hostile work environment claim]; Fleming at 119 [no hostile work environment existed even though "defendants wrongly excluded (the plaintiff) from meetings, excessively criticized her work, refused to answer work-related questions, arbitrarily imposed duties outside of her responsibilities, threw books, and sent rude emails to her"]; Johnson v City of New York [supervisor's denying plaintiff vacation time and overtime, increasing his workload, [*8]writing him up, and giving him undesirable work assignments, all conditions that while seemingly unfair and harsh to plaintiff, are insufficient to establish a hostile work environment]; Isbell v City of New York, 316 F Supp 3d 571, 591-592 [SD NY 2018] [finding harsh criticisms, denial of use of company vehicle, discipline for inadequate work product, refusal to authorize overtime, denial of training opportunities did not rise to level of hostile environment].)

Furthermore, Ruiz's allegations pointedly don't even assert that the managers mentioned his national origin and utterly fail to show that any hostility or harsh treatment he was subjected to was due to his national origin. He simply avers that Armstrong and Perlstein's actions were linked to his race and national origin (complaint ¶ 74)^[FN4] (Monachino v Bair, 769 F Supp 2d 431, 442-443 [SD NY 2011] [denying hostile work environment claims premised in part on disputes regarding plaintiff's "leave, time and attendance" and noting that even {**85 Misc 3d at 252}assuming any of this alleged "conduct rose to an actionable level, (the) hostile work environment claims would fail because he (did) not show( ) any 'linkage or correlation' between the conduct, on the one hand, and a protected characteristic, on the other"]; Fordham v Islip Union Free Sch. Dist., 662 F Supp 2d 261, 273 [ED NY 2009] [plaintiff's complaints regarding the planning book meeting, the email and her end of year evaluation contain no suggestion that this conduct was engaged in because of plaintiff's age, let alone that the "workplace (was) permeated with discriminatory intimidation, ridicule, and insult"]; Johnson, 2019 WL 4468442, *7, 2019 US Dist LEXIS 160198, *18-19 [Although plaintiff alleged that he and the only other African-American employee were constantly written up and denied overtime hours, similar treatment for people of the same race is insufficient to state a hostile work environment claim when the acts themselves do not rise to the level of an abusive work environment. Additionally, plaintiff's allegations that non-African-Americans were treated better or differently than plaintiff in a few instances "are far too sporadic and conclusory to support a plausible inference that any unfavorable treatment (p)laintiff received was motivated by racial animus"]).

As such, this court grants the motion to dismiss the complaint of hostile work environment under the State HRL.

The standard to prevail on a hostile work environment claim under the City HRL is lower than its state and federal counterparts (Gurley, 2022 WL 309442, *5, 2022 US Dist LEXIS 20546, *16; Bermudez v City of New York, 783 F Supp 2d 560, 579 [SD NY 2011]), and omits "the requirement that the complained-of conduct be severe or pervasive" (see Moazzaz v MetLife, Inc., 2021 WL 827648, *8, 2021 US Dist LEXIS 40776, *25 [SD NY, Mar. 4, 2021, No. 19-CV-10531 (JPO)]). The City HRL thus sets a "lower standard for maintaining a cause of action for hostile work environment." (Palmer v Cook, 65 Misc 3d 374, 393 [Sup Ct, Queens County 2019].) The conduct alleged must exceed "what a reasonable victim of discrimination would consider petty slights and trivial inconveniences" (Reichman v City of New York, 179 AD3d 1115, 1118 [2d Dept 2020], citing Williams, 61 AD3d at 80; Bilitch, 194 AD3d at 1003; Buchwald v Silverman Shin & Byrne PLLC, 149 AD3d 560, 560 [1st Dept 2017]). The City HRL is not a "general civility code" and "mere personality conflicts" will not suffice to establish a hostile work environment (Forrest, 3 NY3d{**85 Misc 3d at 253} at 309; Golston-Green v City of New York, 184 [*9]AD3d 24, 43 [2d Dept 2020]; Williams, 61 AD3d at 78-80).

However a plaintiff must still demonstrate that he "was treated less well than other employees because of the relevant characteristic" (Reichman v City of New York, 179 AD3d 1115, 1118 [2d Dept 2020] [internal quotation marks omitted]; Shkoza v NYC Health & Hosps. Corp., 2021 WL 4340787, *4, 2021 US Dist LEXIS 181153, *11-12; Doe v City of New York, 73 Misc 3d 1203[A], 2021 NY Slip Op 50916[U] [Sup Ct, Kings County 2021]) or because of his "protected status." (Chin v New York City Hous. Auth., 106 AD3d 443, 445 [1st Dept 2013]; see also Golston-Green v City of New York, 184 AD3d 24, 40-41 [2d Dept 2020].) Thus, to prove a hostile work environment under the City HRL a plaintiff must show "differential treatment," i.e. that he was the recipient of "unequal treatment based upon membership in a protected class" (Spencer v Global Innovative Group, LLC, 2023 WL 6633860, *9, 2023 US Dist LEXIS 184012, *21 [SD NY, Oct. 12, 2023, 17 Civ. 7604 (PGG) (BCM)] [internal quotation marks omitted], citing Fattoruso v Hilton Grand Vacations Co., LLC, 873 F Supp 2d 569, 578 [SD NY 2012]; see also Nieblas-Love v New York City Hous. Auth., 165 F Supp 3d 51, 68 [SD NY 2016]). A plaintiff must plead facts tending to show that actions that created a hostile work environment were taken because of a prohibited factor. (Santiago v ACACIA Network, Inc., 634 F Supp 3d 143, 155 [SD NY 2022]; Syeed v Bloomberg L.P., 568 F Supp 3d 314, 341 [SD NY 2021].) "In other words, all that is required to sustain a NYCHRL 'hostile work environment claim' is 'unequal treatment' based upon membership in a protected class. . . . Questions of 'severity' or 'pervasiveness' go to damages only—not to liability." (Fattoruso, 873 F Supp 2d at 578 [emphasis omitted], citing Williams, 61 AD3d at 76.)

The complaint must contain factual allegations demonstrating that similarly situated individuals who did not share plaintiff's protected characteristics were treated more favorably than plaintiff. (Whitfield-Ortiz v Department of Educ. of City of N.Y., 116 AD3d 580 [1st Dept 2014]; Askin v Department of Educ. of the City of N.Y., 110 AD3d 621 [1st Dept 2013]; see Levy v NYC Health + Hosps., 660 F Supp 3d 220, 233 [SD NY 2023] [the plaintiff must compare himself to another employee "whose situation is sufficiently similar to the plaintiff's 'to support at least a minimal inference that the difference of treatment may be attributable to discrimination.' " Levy failed {**85 Misc 3d at 254}to meet this standard since she provided no details regarding the situations of the employees who were not reprimanded, such as whether they were "subject to the same standards governing performance evaluation and discipline"], quoting McGuinness v Lincoln Hall, 263 F3d 49, 54 [2d Cir 2001], and Hill v Rayboy-Brauestein, 467 F Supp 2d 336, 356 [SD NY 2006].)

Ruiz has failed to state a cause of action for hostile work environment under the City HRL because the complaint contains no factual allegations that defendants' actions occurred under circumstances that give rise to an inference of discrimination. (See Wolfe-Santos v NYS Gaming Commn., 188 AD3d 622 [1st Dept 2020]; Ji Sun Jennifer Kim v Goldberg, Weprin, Finkel, Goldstein, LLP, 120 AD3d 18, 26 [1st Dept 2014].) In fact, Ruiz did not even assert that either Perlstein or Armstrong ridiculed, insulted or commented about his national origin or race at any time while he was at Hawthorne. (See Brager v Quality Bldg. Servs. Corp., 2022 NY Slip Op 31629[U] [Sup Ct, NY County 2022] [plaintiff cited to no age-based comments made by defendant, nor any intimidation, ridicule, or insult based on age].) Absent sufficient allegations of discriminatory acts, plaintiff's claim against defendants for hostile work environment cannot be sustained under the City HRL and must be dismissed. (Mitchell v City of New York, 2022 NY Slip Op 32234[U] [Sup Ct, NY County 2022]; Wolfe-Santos.) His conclusory allegation that he was treated less favorably than a "similarly situated white female" special education teacher—Melissa Zinker—[*10]whose services were not discontinued and who is currently teaching at Hawthorne does not alter this conclusion.

Under both the State and City HRLs, it is unlawful to retaliate against an employee for opposing discriminatory practices. (Executive Law § 296 [1] [e]; [7]; Administrative Code of City of NY § 8-107 [7].) When a defendant moves to dismiss a cause of action alleging retaliation under either law, he "must demonstrate that the plaintiff cannot make out a prima facie claim of retaliation or, having offered legitimate, nonretaliatory reasons for the challenged actions, that there exists no triable issue of fact as to whether the defendant's explanations were pretextual." (Ananiadis v Mediterranean Gyros Prods., Inc., 151 AD3d 915, 919 [2d Dept 2017].){**85 Misc 3d at 255}

To survive a motion to dismiss on a retaliation claim under title VII and the State HRL a plaintiff must prove that: (1) he has engaged in protected activity, (2) the employer was aware that plaintiff participated in this activity, (3) he suffered an adverse employment action based upon the activity, and (4) there is a causal connection between the protected activity and the adverse action. (Littlejohn, 795 F3d at 315-316; Johnson, 2019 WL 4468442, *11, 2019 US Dist LEXIS 160198, *30; Ellison v Chartis Claims, Inc., 178 AD3d 665, 667 [2d Dept 2019].) As with discrimination claims, the complaint's allegations need only give "plausible support to the reduced prima facie requirements." (Littlejohn at 316.) The elements for a retaliation case under both title VII and the State HRL are the same. (See Collins v City of New York, 156 F Supp 3d 448 [SD NY 2016].)

To establish a prima facie case for retaliation under the City HRL, the first, second and fourth criteria are the same. However, the City HRL offers broader protection to the extent that plaintiff need not prove that he suffered an adverse employment action based on the protected activity, but that his employer engaged in conduct that was reasonably likely to deter a person from engaging in that protected activity. (Bilitch v New York City Health & Hosps. Corp., 194 AD3d 999, 1004 [2d Dept 2021]; Brightman v Prison Health Serv., Inc., 108 AD3d 739, 740 [2d Dept 2013].) "Protected activity" refers to "actions taken to protest or oppose statutorily prohibited discrimination." (Aspilaire v Wyeth Pharm., Inc., 612 F Supp 2d 289, 308 [SD NY 2009]; Ramos v Metro-North Commuter R.R., 2020 NY Slip Op 31061[U] [Sup Ct, NY County 2020].)

The law protects employees in the filing of formal charges of discrimination as well as in the making of informal protests of discrimination. (Matima v Celli, 228 F3d 68, 78 [2d Cir 2000].) Protected activity is one that consists of opposing or complaining about unlawful discrimination; an act complaining of conduct other than unlawful discrimination is not deemed to be a protected activity. (Forrest at 313; Miller v National Prop. Mgt. Assoc., Inc., 191 AD3d 1341, 1341-1342 [4th Dept 2021]; see Witchard v Montefiore Med. Ctr., 103 AD3d 596, 596 [1st Dept 2013] [Requesting an accommodation does not qualify as a protected activity but filing a discrimination claim with the EEOC does].) The conduct that plaintiff complains of need not be prohibited by title VII so long as the plaintiff had a good-faith belief that such conduct was prohibited. (Colas v City of {**85 Misc 3d at 256}Univ. of N.Y., 2019 WL 2028701, *8, 2019 US Dist LEXIS 80279, *23 [ED NY, May 7, 2019, 17-CV-4825 (NGG) (JO)]; see La Grande v DeCrescente Distrib. Co., Inc., 370 Fed Appx 206, 212 [2d Cir 2010]; Matima v Celli, 228 F3d 68, 78 [2d Cir 2000] [employee may report workplace discrimination, whether [*11]that discrimination be actual or reasonably perceived].)

While an employee does not need to lodge a formal complaint of discrimination in order to receive statutory protection (Colas, 2019 WL 2028701, *8, 2019 US Dist LEXIS 80279, *24; see Cruz v Coach Stores, Inc., 202 F3d 560, 566 [2d Cir 2000]), his complaints cannot be so vague or "generalized" that the employer could not "reasonably have understood that the plaintiff's complaint was directed at conduct prohibited by Title VII." (Colas, 2019 WL 2028701, *8, 2019 US Dist LEXIS 80279, *24-25 [brackets omitted], citing Rojas v Roman Catholic Diocese of Rochester, 660 F3d 98, 108 [2d Cir 2011]; Brummell v Webster Cent. Sch. Dist., 2009 WL 232789, *6, 2009 US Dist LEXIS 7644, *17-18 [WD NY, Jan. 29, 2009, No. 06-CV-6437] [When making the complaint, plaintiff must do so in "sufficiently specific terms so that the employer is put on notice that the plaintiff believes he or she is being discriminated against on the basis of (the protected status)"].)

The complaint alleges that Ruiz filed a letter brief and verified notice of claim to the EEOC (U.S. Equal Employment Opportunity Commission) on or about August 26, 2016, and subsequently submitted a formal charge with the EEOC on or about November 10, 2016. Plaintiff claims that in late October 2016, after he had filed his notice of claim with the EEOC, the DOE informed him that he was henceforth being denied any and all job opportunities with any "schools or school districts or vendors" within the scope of the DOE. This portion of his complaint constitutes retaliation in violation of both the State and City HRLs. However, since the complaint alleges that Ruiz only filed a notice of claim and charges against the DOE before the EEOC, the court does not see how the City, and hence the NYC Police Department, would even have been aware of his protected activities. The court therefore dismisses so much of the complaint as alleges that plaintiff was denied a position with the NYC Police Department because he filed an EEOC complaint.

The court also dismisses so much of the claim that the DOE and the individual defendants retaliated against Ruiz for filing an appeal of his discontinuance as a probationary teacher and{**85 Misc 3d at 257} his ineffective rating in the form of taking a year to decide his appeal, denying his applications to become a substitute teacher or search for positions on the DOE database, or denying his application to become a police officer. It is well established that a plaintiff's subjective disagreement with the employer's assessment of his performance is not actionable under the discrimination statutes.^[FN5] This precedent is even stronger when the employer's actions [*12]are challenged by a probationary employee who may be discharged for "almost any reason, or for no reason at all" as long as it is not "in bad faith or for an improper or impermissible reason." (Matter of Duncan v Kelly, 9 NY3d 1024, 1025 [2008]; Matter of Hirji v Chase, 151 AD3d 857 [2d Dept 2017]; Matter of Johnson v County of Orange, 138 AD3d 850, 851 [2d Dept 2016]; Matter of Young v City of New York, 68 Misc 3d 514, 517 [Sup Ct, Kings County 2020].) Simply put, Ruiz's filing of these appeals does not constitute protected activity as Ruiz does not assert in the complaint that any challenge he made in his appeal of his U rating or discontinuance of probationary employment pertained or related to unlawful discrimination. (See Colas, 2019 WL 2028701, *8, 2019 US Dist LEXIS 80279, *24-25; Galdieri-Ambrosini v National Realty & Dev. Corp., 136 F3d 276, 292 [2d Cir 1998].)

Furthermore, the DOE would not, as a matter of course, even contemplate that Ruiz was complaining about discrimination when he filed his appeal over the discontinuance of his probation and his U rating. Rather, filing an appeal of discontinuance of probationary employment is the mandated legal procedure to challenge such discontinuance. Article XII ("Personnel") of the bylaws of the Policy Panel for Educational Policy (PEP) sets forth the procedures to be followed when{**85 Misc 3d at 258} charges are preferred against DOE employees, including pedagogical employees. Article 12.4 pertains to "Reviews related to Ratings and/or Recommendations re Probationary Service of Pedagogical Personnel" and provides in 12.4.1 Appeals re Ratings:

"Any person in the employ of the City School District who appears before the Chancellor, or a committee designated by the Chancellor . . . in respect to an appeal from a rating of an other than a satisfactory rating . . . shall be afforded the opportunity for review in the manner set forth herein and in procedures established by the Chancellor. The designated committee shall summon the appellant 'not later than one year from the date of the receipt of the rating by the appellant.' The findings and recommendations of the committee shall be submitted to the Chancellor for a final decision."

12.4.2 Appeals re Discontinuance of Probationary Service provides:

"Any person in the employ of the City School District who appears before the Chancellor, . . . concerning the discontinuance of service during the probationary term . . . , shall have a review of the matter before a committee which shall be designated in accordance with contractual agreements covering employees or by regulations of the Chancellor, as appropriate. After the review, the committee shall forward its advisory recommendation to the community superintendent or to the Chancellor in accordance with contractual agreements."

12.4.3 Committee Reviews:

"Any person who appears before a committee for the purpose of appealing a rating or concerning the discontinuance or denial of completion of probationary service . . . to a non-tenured employee shall receive written notice of the time and place of the review . . . at least one week before the date specified for said review. The notice shall inform the person that he . . . is entitled to appear in person, to be accompanied and advised by an employee of the City School District or a representative of the union recognized by the PEP as the collective bargaining representative for the employee, to be confronted by witnesses, if any, to call witnesses, to examine exhibits and to introduce any relevant [*13]evidence."

{**85 Misc 3d at 259}It is clear that defendant DOE followed its set procedures by affording Ruiz hearings over his appeal of his U rating and discontinuance of his probation. It is ludicrous for Ruiz to allege that by partaking of procedures enacted to allow him to appeal the discontinuance of his probation, the DOE somehow retaliated against him for exercising the very rights afforded to him. Therefore, the court grants the motion to dismiss under both the State and City HRLs for so much of the retaliation claims that pertain to Ruiz's appeals of his U rating and discontinuance of probation under the Chancellors' Regulations and PEP and the results of said appeals including barring Ruiz from working as a police officer, or a substitute teacher or one of the DOE's vendors without required security clearance.

Plaintiff makes bare-bones allegations, without citing any case law, that all defendants engaged in "selective enforcement" in violation of the State and City HRLs by treating plaintiff different than Melissa Zinker, who allegedly was a special education teacher and was "similarly situated" in that she received similar letters in the files and was not terminated. He then claims that this selective treatment was prompted by impermissible considerations such as plaintiff's race and national origin. Plaintiff does not provide any case law that even addresses how a "selective enforcement" claim in violation of the State and City HRLs is different than his hostile environment and discrimination claims and it is not within the province of this court to speculate as to what other constitutional provision supports plaintiff's selective enforcement claim. Moreover, plaintiff's scant and vague allegations about selective enforcement of the Education Law and Chancellors' Regulations concerning termination of probationary employees are insufficient to show intentional discrimination. (See e.g. Matter of Mimassi v Town of Whitestown Zoning Bd. of Appeals, 67 AD3d 1454 [4th Dept 2009] [petitioner's vague allegations that other property owners violated zoning code and did not receive same penalty as petitioner insufficient to show intentional discrimination].)

As plaintiff's selective enforcement claim merely reiterates his discrimination and hostile environment claims, it is not predicated on an independent legal basis and is therefore dismissed.{**85 Misc 3d at 260}

The cause of action sounding in fraud, misrepresentation and concealment is insufficiently pleaded. A party alleging fraud must allege that the defendant asserted a material misrepresentation of an existing fact, made with knowledge of its falsity, with intent to induce the plaintiff's reliance thereon, justifiable reliance upon the misrepresentation, and damages. (Oppedisano v D'Agostino, 196 AD3d 497, 499-500 [2d Dept 2021]; Waknin v Liberty Ins. Corp., 187 AD3d 821, 823-824 [2d Dept 2020].) A cause of action for fraudulent concealment requires, in addition to these four elements, an allegation that defendants failed in their duty to disclose material information. (Wilson v Dantas, 29 NY3d 1051, 1067 [2017]; Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 179 [2011].)

Pursuant to CPLR 3016 (b), the circumstances constituting the wrong shall be stated in detail in order to satisfy the pleading requirement for causes of action based on fraud, misrepresentation and concealment. (Schwatka v Super Millwork, Inc., 106 AD3d 897, 899-900 [2d Dept 2013].) Here, the causes of action sounding in fraud, misrepresentation and concealment were supported only by plaintiff's conclusory allegations that defendants made material misrepresentations and omissions of fact relating to his annual professional performance review (APPR),^[FN6] and in his appeal from his discontinuance. However, plaintiff failed to allege any specific act of material misrepresentation or failure to disclose material information relating to these claims. Furthermore, to the extent plaintiff argues that defendant Perlstein fraudulently concealed information from an NYPD officer, that claim also lacks detail sufficient to satisfy the CPLR 3016 (b) pleading requirement. Accordingly, the motion to dismiss the causes of action for fraud, misrepresentation and concealment is granted.

Plaintiff alleges that on or about May 29, 2014, defendant Perlstein made false and defamatory statements regarding plaintiff's alleged lateness, forgetfulness, laziness, and failure to follow directions to an NYPD investigator who was investigating{**85 Misc 3d at 261} plaintiff's possible employment with the NYPD. Specifically, the complaint alleges that Perlstein stated to the investigator:

• "Candidate appears to be having the same issues with his lesson plans as he did in his previous school, only this time, he doesn't even have the lessons available on the computer. Candidate has been counseled several times, and has signed off on his deficiencies, however, has not made any attempt to rectify deficiencies";

• "Candidate does not follow direction/instruction, and is extremely forgetful";

• "Candidate is excessively late"; takes many shortcuts; and has excuse after excuse for his issues;

• "Had gotten various complaints from parents" (without specifying).

Perlstein also allegedly told the investigator that Mr. Ruiz would be recommended for discontinuation "again," and would not be "recommended for hire." Finally, on or about September 12, 2014, Perlstein informed the NYPD investigator that "Candidate [Ruiz] has been Discontinued."

Plaintiff asserts that all of the foregoing statements made by Perlstein were vindictive, defamatory and untrue, and not opinion, and exposed him to public hatred, shame, obloquy, etc. and thus caused substantial injury to his professional image, and ability to secure employment, including being denied a position as a NYC police officer. Ruiz further asserts that no parents [*15]ever complained about him but that parents in fact wrote positive letters; that he was never discontinued previously or again and that when Perlstein spoke to the police investigator on or about September 12, 2014, Ruiz had not been discontinued because the discontinuance occurred in May 2015. The complaint further asserts that Perlstein's statements and publications tended to disparage plaintiff in his profession because they implied that he was a "terrible teacher and employee," and was not recommended for hire. The complaint also alleges that the slanderous statements were published with actual malice, ill will or spite.

Defendants first assert that plaintiff's May 2016 appeal hearing, and its outcome, undercut any claim that statements made by Perlstein in letters to plaintiff's files or to prospective employers were false and hence defamatory. The hearing was{**85 Misc 3d at 262} specifically held to review plaintiff's ineffective performance rating for the 2014-2015 school year and the subsequent discontinuance of his probation from the middle school. The hearing officer denied the appeal and upheld both the letters placed in plaintiff's file and his probationary discontinuance. Since plaintiff's work performance issues of forming lesson plans, inability to follow directions, excessive lateness, and parental complaints formed the basis of the actions which were upheld on appeal, defendants argue that these statements were true and hence not defamatory.

Alternatively, defendants argue that Perlstein's comments to the NYPD about plaintiff's job performance, made within the context of plaintiff's employment application to the NYPD, are non-actionable as they are, by definition, Perlstein's opinions. Furthermore, a "mere expression of dissatisfaction" with Ruiz's job performance does not constitute slander per se as New York recognizes a qualified privilege to statements made in the context of an employment reference. Finally, defendants are unable to identify with whom Perlstein spoke to at the NYPD about Ruiz's job performance although they do not deny that this conversation was held.

Defamation, consisting of the twin torts of libel (written defamatory words) and slander (spoken defamatory words), is "the invasion of the interest in a reputation and good name." (Albert v Loksen, 239 F3d 256, 265 [2d Cir 2001].) A claim for defamation must allege a " 'false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se' " (Frechtman v Gutterman, 115 AD3d 102, 104 [1st Dept 2014]; O'Neill v New York Univ., 97 AD3d 199, 212 [1st Dept 2012], quoting Salvatore v Kumar, 45 AD3d 560, 563 [2d Dept 2007]). Pursuant to CPLR 3016 (a), a cause of action for defamation must be pleaded with specificity and "must set forth the particular words allegedly constituting defamation, and . . . also allege the time when, place where, and manner in which the false statement was made, and specify to whom it was made" (Emby Hosiery Corp. v Tawil, 196 AD3d 462, 464 [2d Dept 2021]; Kimso Apts., LLC v Rivera, 180 AD3d 1033, 1034 [2d Dept 2020]), "although every statement need not be quoted in haec verba." (Peck v Peck, 2018 NY Slip Op 30990[U], *10-12 [Sup Ct, NY County 2018]; see Glazier v Harris, 99 AD3d 403, 404 [1st Dept 2012].){**85 Misc 3d at 263}

The "threshold issue" in defamation cases is "[w]hether [the] particular words are defamatory," which is a legal question to be resolved by the courts in the first instance. (Celle v Filipino Reporter Enters. Inc., 209 F3d 163, 177 [2d Cir 2000]; Brattis v Rainbow Adv. Holdings, L.L.C., 2000 WL 702921, *2-3, 2000 US Dist LEXIS 7345, *6, *8 [SD NY, May 30, 2000, No. 99 Civ. 10144(NRB)].) The New York Constitution provides for absolute protection of opinions. (Celle, 209 F3d at 178.) It is up to the [*16]court to decide as a matter of law whether the challenged statement constitutes an opinion or an objective fact. (Id. at 178; see Mann v Abel, 10 NY3d 271, 276 [2008]; Kasavana v Vela, 172 AD3d 1042 [2d Dept 2019]; Kamchi v Weissman, 125 AD3d 142, 157 [2d Dept 2014]; Abakporo v Daily News, 102 AD3d 815, 816 [2d Dept 2013].)

"Since falsity is a necessary element of a defamation cause of action and only 'facts' are capable of being proven false, 'it follows that only statements alleging facts can properly be the subject of a defamation action' " (Kasavana, 172 AD3d at 1044-1045, citing Gross v New York Times Co., 82 NY2d 146, 152-153 [1993]; see Davis v Boeheim, 24 NY3d 262, 268 [2014]). Conversely, "[a]n expression of pure opinion is not actionable . . . no matter how vituperative or unreasonable it may be" (Steinhilber v Alphonse, 68 NY2d 283, 289 [1986]). A statement of "pure opinion," which is a statement accompanied by a recitation of the facts upon which it is based, or may not be accompanied by such a factual recitation so long as it does not imply that it is based upon undisclosed facts (Davis, 24 NY3d at 269), is not actionable as a matter of law. (Appel v Schoeman Updike Kaufman Stern & Ascher L.L.P., 2015 WL 13654007, *6-7, 2015 US Dist LEXIS 193133, *22-23 [SD NY, Mar. 26, 2015, 14-cv-2065 (AJN)], citing Steinhilber; see Guerrero v Carva, 10 AD3d 105, 112 [1st Dept 2004].) A mixed opinion is one that implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it and is also actionable. (Guerrero at 112.)

In distinguishing between facts and opinion, the factors the court must consider are whether (1) the specific language has a precise meaning that is readily understood, (2) the statements are capable of being proved true or false, and (3) "either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal . . . readers or listeners that what is being read is likely to be opinion, not fact." (Appel,{**85 Misc 3d at 264} 2015 WL 13654007, *6-7, 2015 US Dist LEXIS 193133, *22-23, citing Doe v White Plains Hosp. Med. Ctr. [WPHMC], 2011 WL 2899174, *2 n 1, 2011 US Dist LEXIS 76076, *6 n 1 [SD NY, July 8, 2011, No. 10 Civ. 5405(GBD)]; Silverman v Daily News, L.P., 129 AD3d 1054, 1055 [2d Dept 2015].) "The essential task is to decide whether the words complained of, considered in the context of the entire communication and of the circumstances in which they were spoken or written, may be reasonably understood as implying the assertion of undisclosed facts justifying the opinion." (Steinhilber, 68 NY2d at 290.) The burden rests with the plaintiff to establish that in the context of the entire communication a disputed statement is not protected opinion. (Celle, 209 F3d at 179.)

In New York, "the evaluation of an employee's performance, even an unsatisfactory evaluation, is a matter of opinion that cannot be objectively categorized as true or false and cannot be actionable." (Brattis v Rainbow Adv. Holdings, 2000 WL 702921, *3-4, 2000 US Dist LEXIS 7345, *10-11; Aronson v Wiersma, 65 NY2d 592, 593 [1985] [an expression of unhappiness with an employee's performance is not libelous as a matter of law]; see McDowell v Dart, 201 AD2d 895, 895 [4th Dept 1994] ["statements made by an employer regarding an employee's work performance are opinion and thus are not actionable"]; Miller v City of New York, 2011 NY Slip Op 30635[U] [Sup Ct, NY County 2011].) Therefore, "statements criticizing [the] plaintiff's performance and comparing her unfavorably to other [employees] are, as a matter of law, nonactionable expressions of opinion." (Miller v Richman, 184 AD2d 191, 193 [4th Dept 1992]; see also Tasso v Platinum Guild Intl., 1998 WL 841489, *5, 1998 US Dist LEXIS 18908, *15 [SD NY, Dec. 1, 1998, No. 94 CIV. 8288(LAP)] [statements that plaintiff was "unethical, untrustworthy and [*17]unprofessional" and "incompetent" to be non-actionable opinion]; Gavenda v Orleans County, 1997 WL 65870, *8, 1997 US Dist LEXIS 1527, *25-26 [WD NY, Feb. 10, 1997, No. 95-Civ.-0251E(Sc)] [finding statements that plaintiff was "incompetent," and "there had been problems with her before and that she wasn't doing her job right" were non-actionable statements of opinion (internal quotation marks omitted)]; Miller v City of New York [poor performance ratings from supervisor, U rating and referral of disciplinary charges against petitioner are not defamatory but reflections of the principal's opinion that the petitioner was not a satisfactory teacher].){**85 Misc 3d at 265}

It is well settled that a principal's statements as to whether a teacher is satisfactory, the issuance of poor performance or U ratings, and a recommendation that a teacher resign are expressions of opinions about an employee's job performance and are not defamatory. (Miller v City of New York [supervisor's opinions are not defamatory even where a teacher prevails in his article 78 proceeding challenging his termination and is reinstated per court order]; Wideberg v Tiffany & Co., 1992 WL 454053, *7, 1992 NY Misc LEXIS 538, *20 [Sup Ct, Westchester County, Dec. 4, 1992, index No. 4534/92] [Statement by supervisor that plaintiff was a "troublemaker" is an opinion].) In Brattis, supra, the Southern District found scores on the yearly evaluation of plaintiff, including the check off "needs development," to be non-actionable opinion. The supervisor's comments on plaintiff's performance deficiencies, such as plaintiff asking inappropriate questions and lack of preparation and technical skills, as well as her comments that the plaintiff was "challenged" and her questioning of the plaintiff's commitment and management style, also fell within the category of opinion. (2000 WL 702921, *4, 2000 US Dist LEXIS 7345, *12-13.) In WPHMC (2011 WL 2899174, *1, 2011 US Dist LEXIS 76076, *3), the termination letter stated that the employee plaintiff lacked nursing knowledge and clinical judgment identified by particulars concerning the cardiac monitor. While the court noted that some of the statements were objective that could be proved true or false, the courts were to avoid the " 'hypertechnical parsing' of . . . words for the purpose of identifying 'possible facts' that might form the basis of a sustainable libel action." (2011 WL 2899174, *3, 2011 US Dist LEXIS 76076, *8-9.)

Even assuming the performance evaluations and comments that Perlstein made to the NYPD could be deemed to be actionable statements of facts, New York recognizes a qualified privilege with respect to communications made by one person who has a corresponding or common interest in that communication. (2000 WL 702921, *4-5, 2000 US Dist LEXIS 7345, *13-14; see Foster v Churchill, 87 NY2d 744, 751 [1996]; O'Neill v New York Univ., 97 AD3d at 212-213.) Under New York law, this qualified privilege generally immunizes from defamation any communications made within the employment context. (Albert v Loksen, 239 F3d at 272; Donofrio-Ferrezza v Nier, 2005 WL 2312477, *6-7, 2005 US Dist LEXIS 21103, *18-19 [SD NY, Sept. 21, 2005, No. 04 Civ. 1162(PKC)]; Phillip v Sterling Home Care, Inc., 103 AD3d 786 [2d Dept 2013] [statement{**85 Misc 3d at 266} by defendant school district to Department of Labor in connection with the plaintiff's application for unemployment benefits that she was discharged for theft was absolutely privileged]; Wideberg v Tiffany & Co., 1992 WL 454053, 1992 NY Misc LEXIS 538 [Sup Ct, Westchester County, Dec. 4, 1992, index No. 4534/92].) This qualified privilege protects alleged defamatory statements made by an employer to others who have an interest in the employer's assessment of plaintiff's work behavior unless the plaintiff can show that statements were motivated solely by malice. (Bayer v City of New York, 60 AD3d 713, 714 [2d Dept 2009] [alleged defamatory statements by supervisor repeatedly accusing plaintiff of misconduct and insubordination protected by qualified privilege as supervisor made statements to those who had an interest in supervisor's assessment of plaintiff]; see Phelan v Huntington Tri-Vil. Little League, Inc., 57 AD3d 503 [2d Dept 2008].)

To overcome this qualified privilege, a plaintiff must allege, and has the burden of showing, that the defendant made the defamatory statement with "actual malice," i.e. that defendant acted out of personal spite or ill will (common-law malice) or with a reckless disregard as to the truth of the statement, or "with a high degree belief that [the] statements were probably false" (constitutional malice). (Sagaille v Carrega, 194 AD3d 92, 95 [1st Dept 2021]; Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 34 [1st Dept 2014]; Dolcimascolo v Board of Mgrs. of Dorchester Towers Condominium, 2022 NY Slip Op 33272[U] [Sup Ct, NY County 2022].) Allegations of malice "may not rest on mere surmise and conjecture." (Pezhman v City of New York, 29 AD3d 164, 168-169 [1st Dept 2006].) Common-law malice means that the spite or ill will were the only cause for the publication. (Shepard-Brookman v O'Donnell, 2017 NY Slip Op 32394[U], *13 [Sup Ct, NY County 2017], citing Liberman v Gelstein, 80 NY2d 429, 439 [1992].) Furthermore, the "spite or ill will" refers not to a defendant's general feelings about the plaintiff but "to the speaker's motivation for making the defamatory statements." (Liberman at 439.) If the statement was to further the interest protected by the privilege it is irrelevant that the defendant may have also despised the plaintiff. (Id. at 439.)

Considering Perlstein's statements to the NYPD investigator as a whole, it is clear that she was conveying her opinion about Ruiz's job performance, based upon various deficiencies she had observed that she either memorialized in his letters to{**85 Misc 3d at 267} Ruiz or verbally told him. These statements included that Ruiz was excessively late, submitted deficient lesson plans, failed to follow directions and was forgetful, took many shortcuts, and always made excuses about his issues, and that she, Perlstein, would not recommend Ruiz for hire and would recommend him for discontinuance again. Plaintiff may disagree with his employer's view of these situations, but that is not enough to state a claim for defamation. (See Appel v Schoeman, 2015 WL 13654007, *7, 2015 US Dist LEXIS 193133, *25; Parks v Steinbrenner, 131 AD2d 60 [1st Dept 1987].) A reasonable reader, taking the statements in context and as a whole, would understand the statements as conveying Perlstein's views about plaintiff. Moreover, this conclusion is supported by precedent cited above that "[u]nder New York law, the evaluation of an employee's performance, even an unsatisfactory evaluation, is a matter of opinion that cannot be objectively categorized as true or false and cannot be actionable." (Brattis, 2000 WL 702921, *3-4, 2000 US Dist LEXIS 7345, *10-11 [SD NY, May 30, 2000], citing McDowell v Dart, 201 AD2d 895 [1994].)

At least one of Perlstein's alleged comments—that she received various complaints from parents (but she could not elaborate on that further)—at this stage of the proceeding might be deemed to be factual, i.e. they "ha[ve] a precise meaning [which can be] proven true or false." (Clark v Schuylerville Cent. School Dist., 24 AD3d 1162, 1164 [3d Dept 2005].) However, this comment is protected by the qualified privilege discussed above. Despite the complaint's pleading that Perlstein's statements were outrageous and untrue, there are no facts to support any assertion that Perlstein's comments were motivated solely by spite or ill will or made for any other reason than to further the common interest Perlstein shared as an employer with the NYPD. As such the cause of action for fraud and slander per se is dismissed.

Plaintiff claims that he had a "business relationship with the NYCPD," and that defendant Perlstein knew of this relationship and interfered with it, acting "solely out of malice" which "amounted to a crime or independent tort." He claims that Perlstein's interference prevented him from getting a job as an NYPD officer. The complaint fails to state a cause of action for tortious interference with contract. To establish a tortious{**85 Misc 3d at 268} interference claim, plaintiff must demonstrate: "(1) the existence of a contract between plaintiff and a third party; (2) defendant's knowledge of the contract; (3) defendant's intentional inducement of the third party to breach or otherwise render performance impossible; and (4) damages to plaintiff." (Klein v Deutsch, 193 AD3d 707, 709-710 [2d Dept 2021].) Since plaintiff did not produce any evidence that he had a contract with the NYPD, he fails to state a cause of action for tortious interference with business relations, and defendants' motion to dismiss this claim is granted.

The cause of action for emotional distress falls within the ambit of plaintiff's defamation claim which, as set forth above, has been dismissed. (See Clark v Schuylerville Cent. School Dist., 24 AD3d at 1164.) Additionally, courts are loathe to sustain a cause of action for emotional distress which is based upon discriminatory conduct. (Mohammed v Great Atl. & Pac. Tea Co., Inc., 44 Misc 3d 396 [Sup Ct, NY County 2014]; see Semper v New York Methodist Hosp., 786 F Supp 2d 566 [ED NY 2011].) Given that this instant claim dovetails plaintiff's claims of defamation and discrimination and hostile work environment, it must be dismissed.

In any event, to establish a cognizable claim for intentional infliction of emotional distress, plaintiff must prove: "(1) extreme and outrageous conduct; (2) the intent to cause, or the disregard of a substantial likelihood of causing, severe emotional distress; (3) causation; and (4) severe emotional distress." (Davydov v Youssefi, 205 AD3d 881, 882-883 [2d Dept 2022].) The complaint must allege conduct that was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency . . . and utterly intolerable in a civilized community." (Chanko v American Broadcasting Cos. Inc., 27 NY3d 46, 56 [2016]; Benjamin v Assad, 186 AD3d 549, 550 [2d Dept 2020].) While a "deliberate and malicious campaign of harassment or intimidation" may, under certain circumstances, meet the rigorous standard, the "conduct must consist of more than mere insults, threats, annoyances, or indignities." (Ratto v Oliva, 195 AD3d 870, 873 [2d Dept 2021].) This court finds that defendants' actions, while annoying and insulting and even deplorable to plaintiff, did not rise to the{**85 Misc 3d at 269} level of outrageous conduct. (See Wideberg v Tiffany & Co., 1992 WL 454053, *7, 1992 NY Misc LEXIS 538, *23 [Sup Ct, Westchester County, Dec. 4, 1992, index No. 4534/92].) It therefore grants defendants' motion to dismiss the claim of intentional infliction of emotional distress.

In light of the above, defendants' motion to dismiss is granted for all claims except the cause of action for discrimination and so much of the cause of action for retaliation which alleges that in late October 2016, after plaintiff had filed his notice of claim with the EEOC, the DOE informed him that he was henceforth being denied any and all job opportunities with any "schools or school districts or vendors" within the scope of the DOE.

In 2019 the State Legislature amended the State HRL to establish that its provisions should be construed liberally even if federal civil rights laws with similarly worded provisions have been construed narrowly. (Deveaux v Skechers USA, Inc., 2020 WL 1812741, 2020 US Dist LEXIS 63356 [SD NY, Apr. 9, 2020, 19cv9734 (DLC)].) The effect of this amendment is to render the standard for claims closer to the NYCHRL. (Syeed v Bloomberg L.P., 568 F Supp 3d 314, 343 [SD NY 2021]; Wellner v Montefiore Med. Ctr., 2019 WL 4081898, 2019 US Dist LEXIS 147844 [SD NY, Aug. 29, 2019, 17 Civ. 3479 (KPF)].) However, these amendments only apply to claims that accrue on or after October 11, 2019. (Syeed.)