Polanco v. New York City School Construction Authority

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JESSENIA POLANCO,
Plaintiff,
- against -
NEW YORK CITY SCHOOL
CONSTRUCTION AUTHORITY,
Defendant.
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MEMORANDUM DECISION AND
ORDER
25-cv-5815 (BMC)
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COGAN, District Judge.
Plaintiff, a Hispanic woman from the Dominican Republic, alleges that her supervisor at
the New York City School Construction Authority (“SCA”) frequently disparaged Dominican
employees, mocked plaintiff’s accent, and criticized plaintiff’s ability to write in and speak
English. Months after her supervisor’s comments subsided, plaintiff complained of
discrimination and harassment to SCA’s internal Equal Employment Opportunity office
(“internal EEO”); a year after that, she filed a complaint with the Equal Employment
Opportunity Commission (“EEOC”). Plaintiff was ultimately fired.
Plaintiff now brings claims for national origin discrimination, hostile work environment,
and retaliation under Title VII, the New York State Human Rights Law (“NYSHRL”), and the
New York City Human Rights Law (“NYCHRL”).1 In addition, plaintiff brings claims for
1 Accent is not an independent protected category under Title VII, the NYSHRL, or the NYCHRL. However,
“accents are perhaps the most recognizable indication of one’s national identity, and accent and national origin are
obviously inextricably intertwined in many cases.” Pibouin v. CA, Inc., 867 F. Supp. 2d 315, 324 (E.D.N.Y. 2012)
(internal quotation marks and citations omitted). The Court therefore analyzes plaintiff’s accent and national origin
discrimination claims together.
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disability discrimination under the NYSHRL and NYCHRL based on SCA’s refusal to provide
her with a reasonable accommodation after she was diagnosed with functional neurological
disorder (“FND”).
Before the Court is defendant’s motion to dismiss. Defendant’s motion is granted in part
and denied in part as set forth below.
SUMMARY OF AMENDED COMPLAINT
Plaintiff began working for SCA in August 2010 as an Administrative Assistant and was
promoted to Senior Program Coordinator in 2015. In the latter position, she coordinated
citywide programs, ensured projects were appropriately funded and scheduled, and liaised
between her department and the Operations Department as well as other New York City agencies
and departments. For most of plaintiff’s career at SCA, she received performance evaluation
grades of “Meets Expectations” or “Exceeds Expectations.”
In January 2022, Diana Mendez became plaintiff’s supervisor. It appears that plaintiff
did not experience issues with Mendez until October 11, 2023, when Mendez “publicly mocked
[p]laintiff’s accent in front of [p]laintiff and her colleagues.”2 Then, from October 2023 through
December 2024 (fourteen months), Mendez would:
• 	on a monthly basis, tell plaintiff that “Dominican employees do not communicate
properly,” that “Dominican employees make too many mistakes,” and that “Dominican
employees cannot write or speak English”;
• 	on a monthly basis, say that plaintiff’s Dominican peers were incompetent and should not
be in management positions;
• 	on a weekly basis, tell plaintiff’s colleagues that she excluded plaintiff from meetings
because she could not write in or speak English;
2 In plaintiff’s complaints to the internal EEO and EEOC (which defendant submits with its motion to dismiss),
plaintiff says that on October 11, 2023, Mendez criticized plaintiff in front of a colleague for not knowing how to
write in English after she misspelled words in meeting notes.
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• 	on a weekly basis, publicly mock plaintiff’s accent at meetings; and
• 	on a weekly basis, tell plaintiff that she did not know how to write in or speak English in
front of plaintiff’s colleagues.
Plaintiff maintains that her prior supervisors never complained about her accent, and that her
accent did not impair her ability to perform her job responsibilities – including writing in
English.
Plaintiff believes that Mendez’s behavior harmed her physical and mental health. In
December 2023, plaintiff was hospitalized and diagnosed with Functional Neurological Disorder,
a debilitating condition that impairs plaintiff’s mobility and ability to speak. Although plaintiff
alleges, and her neurologist opines, that the disorder was triggered by Mendez’s behavior,
plaintiff received this diagnosis only one month after Mendez’s behavior purportedly began.
Plaintiff submitted a request for reasonable accommodation a month after receiving her
diagnosis. She does not indicate what accommodation she requested but notes that this
accommodation would have enabled her to effectively accomplish all of her job responsibilities.
SCA denied plaintiff’s request.
On July 29, 2024, plaintiff submitted a complaint to SCA’s internal EEO regarding
Mendez’s conduct which, by plaintiff’s account, had ended over seven months earlier. The
internal EEO investigated her complaint and determined that it was unfounded. However, it is
plaintiff’s belief that the internal EEO could not have independently investigated her claim
because it reported directly to the SCA President, who is a close friend of Mendez.
In response to plaintiff’s internal complaint, Mendez “increased her hostility” towards
plaintiff and gave plaintiff a negative performance evaluation for the period of July 2024 through
March 2025. In fact, Mendez gave plaintiff the lowest possible score for “site visits,” which had
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never been one of plaintiff’s job responsibilities. Mendez also placed plaintiff on a performance
improvement plan (“PIP”), which is SCA’s first step towards terminating an employee.
On July 24, 2025, plaintiff filed a charge of discrimination with the EEOC, alleging
discrimination on the basis of her national origin and disability as well as retaliation for her
complaints. That same day, the EEOC issued plaintiff a Notice of Right to Sue, apparently
without investigating plaintiff’s allegations. In August 2025, SCA terminated plaintiff for poor
performance.
DISCUSSION
I. 	Legal Standard
To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead “enough
facts to state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007), and to “allow[] the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged[.]” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When
deciding a motion to dismiss, the Court must “constru[e] the complaint liberally, accept[] all
factual allegations in the complaint as true, and draw[] all reasonable inferences in the plaintiff’s
favor.” Elias v. Rolling Stone LLC, 872 F.3d 97, 104 (2d Cir. 2017) (quoting Chase Grp. All.
LLC v. City of New York Dep’t of Fin., 620 F.3d 146, 150 (2d Cir. 2010)).
II. 	National Origin Discrimination
“Title VII [] requires a plaintiff asserting a discrimination claim to allege two elements:
(1) the employer discriminated against [her] (2) because of [her] race, color, religion, sex, or
national origin.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015). To
satisfy the first element, a plaintiff must allege that her employer took an adverse employment
action against her. Id. As the Supreme Court clarified in Muldrow v. City of St. Louis, 601 U.S.
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346, 355 (2024), a plaintiff “does not have to show ... that the harm was significant[ ] [o]r
serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee
must exceed a heightened bar.” (Internal quotation marks and citation omitted). Instead, a
plaintiff need only show “some harm respecting an identifiable term or condition of
employment.” Id. To satisfy the second element, a plaintiff must allege that her race, color,
religion, sex, or national origin was a “substantial” or “motivating” factor contributing to the
employer’s decision to take the adverse action. Vega, 801 F.3d at 85.
Plaintiff’s allegations that Mendez mocked her accent, criticized her ability to write in
and speak English, and made disparaging comments about Dominican employees are sufficient
to infer Mendez’s discriminatory intent. But that’s only half of the equation. To sustain her
Title VII claim, plaintiff must connect Mendez’s discriminatory intent to an adverse action.
Although being excluded from meetings and embarrassed in front of one’s colleagues are
undoubtedly negative experiences, they are not legally cognizable adverse actions. See Kurian v.
Forest Hills Hosp., 962 F. Supp. 2d 460, 470 (E.D.N.Y. 2013); Walia v. Napolitano, No. 11-cv-
2512, 2017 WL 10378189, at *10 (E.D.N.Y. Dec. 4, 2017).
It’s worth noting that plaintiff also alleges that she received a negative performance
evaluation, was placed on a PIP, and was ultimately terminated. As the Court explains below in
Section IV, the negative performance evaluation and PIP were not adverse employment actions,
but the termination certainly was. Notwithstanding, paragraphs 37 through 44 of the amended
complaint make explicitly clear plaintiff’s view that the negative performance evaluation, PIP,
and termination resulted from Mendez’s retaliatory animus following plaintiff’s July 2024
internal complaint. Indeed, that section of the amended complaint is titled, “Retaliation.” That
plaintiff “allege[s] a stew of discriminatory animus” by Mendez “does not impart flavor to every
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disciplinary action taken against [p]laintiff[] and thereby transform those actions, even if
unjustified, into discriminatory adverse employment actions.” See Fukelman v. Delta Air Lines,
Inc., No. 18-cv-00002, 2020 WL 2781662, at *3 (E.D.N.Y. May 29, 2020). The Court is not
going to infer that SCA’s termination of plaintiff was discriminatory based solely on Mendez’s
alleged conduct that ended eight months earlier, especially when plaintiff says that the
termination was retaliatory. Thus, plaintiff’s national origin discrimination claim under Title VII
is dismissed.
Plaintiff nonetheless states a claim for national origin discrimination under the NYSHRL
and NYCHRL. Under the NYSHRL and NYCHRL, it is enough that a plaintiff alleges that she
was “treated less well at least in part because of” her national origin. Moore v. Hadestown
Broadway Ltd. Liab. Co., 722 F. Supp. 3d 229, 245 (S.D.N.Y. 2024) (citations omitted).
Plaintiff’s allegations that Mendez demeaned Dominican employees, excluded plaintiff from
meetings because of her negative view of Dominican employees, and mocked plaintiff’s accent
and ability to write in and speak English amount to “less well” treatment based “at least in part”
on plaintiff’s national origin. See, e.g., Lee v. Riverbay Corp., 751 F. Supp. 3d 259, 279
(S.D.N.Y. 2024) (“incessant insults” directed toward plaintiff personally and based on his race,
color, and national origin were more than “petty slights or trivial inconveniences”).
III. 	Hostile Work Environment
“To state a claim for a hostile work environment in violation of Title VII, a plaintiff must
plead facts that would tend to show 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 [national origin].” Patane
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v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (internal quotation marks and citation omitted).
“Factors that a court might consider in assessing the totality of the circumstances include: (1) the
frequency of the discriminatory conduct; (2) its severity; (3) whether it is threatening and
humiliating, or a mere offensive utterance; and (4) ‘whether it unreasonably interferes with an
employee’s work performance.’” Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23
(1993)). “Ultimately, ... a plaintiff need only plead facts sufficient to support the conclusion that
she was faced with harassment of such quality or quantity that a reasonable employee would find
the conditions of her employment altered for the worse, and [the Second Circuit has] repeatedly
cautioned against setting the bar too high.” Id. (internal quotation marks and citation omitted)
(cleaned up).
As the basis for her hostile work environment claim, plaintiff alleges that Mendez, for
fourteen straight months, made disparaging comments about Dominican employees, told
plaintiff’s colleagues that she excluded plaintiff from meetings because she could not write in or
speak English, and mocked plaintiff’s accent. In summary, plaintiff alleges a continuous barrage
of negative comments and mistreatment related to her national origin. At the pleadings stage,
these allegations are enough for a hostile work environment claim under Title VII.3 Because the
NYSHRL and NYCHRL standards are less strict, plaintiff’s hostile work environment claims
3 Defendant argues that plaintiff failed to exhaust her administrative remedies with respect to certain allegations
because she did not raise those allegations in her EEOC complaint. Claims not asserted before the EEOC may be
pursued in a subsequent federal court action if the claims are “reasonably related” to those filed with the EEOC –
that is, if they “would fall within the scope of the EEOC investigation which can reasonably be expected to grow out
of the charge that was made.” Richardson v. Suffolk Bus Corp., No. 09-cv-3586, 2010 WL 2606266, at *6
(E.D.N.Y. June 22, 2010) (quoting Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 177 (2d Cir. 2005)). It is true
that the amended complaint alleges, for the first time, that Mendez made comments reflecting a bias against
Dominicans. And it is certainly odd, perhaps incredible, that plaintiff would not mention these comments in her
EEOC complaint if Mendez did, in fact, utter them. Notwithstanding, plaintiff’s EEOC complaint states that she
“experienced persistent discrimination and public humiliation” from Mendez beginning in October 2023 based on
her national origin. The subsequent EEOC investigation, if one were to occur, would reasonably include an
investigation into Mendez’s conduct leading up to the filing of the EEOC complaint.
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under those statutes survive as well. Pullman v. Collins, No. 24-cv-1383, 2025 WL 2673807, at
*16 (S.D.N.Y. Sept. 18, 2025).
One point of clarification is necessary: to the extent that plaintiff is bringing hostile work
environment claims based on her disability, those claims are dismissed. “[D]enials of reasonable
accommodations alone cannot sustain a hostile work environment claim.” Santana v. Mount
Vernon City Sch. Dist./Bd. of Educ., No. 20-cv-3212, 2023 WL 2876653, at *12 (S.D.N.Y. Apr.
7, 2023). Plaintiff’s standalone allegation that she was denied a reasonable accommodation does
not allow the Court to infer that the allegedly hostile work environment was based in any part on
plaintiff’s disability. See id.
IV. 	Retaliation
For a retaliation claim to survive a motion to dismiss, a plaintiff need only “plausibly
allege that: “(1) defendants discriminated – or took an adverse employment action – against
[her], (2) because [s]he has opposed any unlawful employment practice.” Vega, 801 F.3d at 90
(internal quotation marks and citation omitted). “[F]or an adverse retaliatory action to be
‘because’ a plaintiff made a charge, the plaintiff must plausibly allege that the retaliation was a
‘but-for’ cause of the employer’s adverse action.” Id. (quoting Univ. of Texas Sw. Med. Ctr. v.
Nassar, 570 U.S. 338, 360 (2013)). Under the “more lenient” NYSHRL and NYCHRL pleading
standards, a plaintiff can survive a motion to dismiss if she “show[s] that something happened
that was reasonably likely to deter a person from engaging in protected activity.” Moore, 722 F.
Supp. 3d at 247 (citation omitted).
Plaintiff engaged in two protected activities: (1) her July 2024 complaint to the internal
EEO and (2) her July 2025 complaint to the EEOC. Plaintiff fails to state a claim for retaliation
under any standard with respect to the internal EEO complaint because she fails to tie the
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complaint to a negative consequence. She says that Mendez “increased her hostility” towards
her after she filed her internal complaint, but the Court doesn’t know what that means. And
although Mendez gave plaintiff a negative performance evaluation and placed her on a PIP, she
didn’t do so until at least March 2025, eight months later. Although a plaintiff may establish
retaliatory animus “indirectly, by showing that the protected activity was followed closely by
discriminatory treatment, ... the protected activity and adverse action must occur very close
together.” Sealy v. State Univ. of New York at Stony Brook, 834 F. App’x 611, 614 (2d Cir.
2020) (internal quotation marks and citation omitted). In the absence of circumstantial evidence
of retaliatory animus, eight months is far too great a separation to allow the Court to infer a
causal connection between the internal complaint and the negative performance review and PIP.
See id. (“[A]dverse employment actions occurring approximately three months after protected
activity are too attenuated to give rise to an inference of retaliation.”). Besides, for Title VII
purposes, a negative performance review and PIP are not adverse employment actions. McGrath
v. Thomson Reuters, No. 10-cv-4944, 2012 WL 2119112, at *11-12 (S.D.N.Y. Apr. 30, 2012),
report and recommendation adopted, No. 10-cv-494, 2012 WL 2122325 (S.D.N.Y. June 12,
2012), aff’d, 537 F. App’x 1 (2d Cir. 2013).
By contrast, plaintiff was fired a month after filing her EEOC complaint; the complaint
and the adverse action are sufficiently close in time to infer causation. Defendant counters that
plaintiff’s termination was the result of progressive discipline that began before plaintiff filed her
EEOC complaint. This argument is built on a false premise: that plaintiff received progressive
discipline. Plaintiff was issued a negative performance review and PIP months earlier. As
plaintiff states and defendant repeats, the PIP was the “first step” towards termination. Plaintiff
does not allege any other steps.
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The Court also rejects defendant’s argument that plaintiff failed to allege that SCA or any
individual was aware of her EEOC charge after she filed it. It’s true that the amended complaint
does not explicitly say that SCA knew about plaintiff’s EEOC complaint and does not contain
any “facts that could support an inference of corporate knowledge.” See Hunt v. Consol. Edison
Co. of New York, Inc., No. 18-cv-7262, 2021 WL 3492716, at *10 (E.D.N.Y. Aug. 9, 2021).
Further, based on the EEOC’s Notice of Right to Sue (which defendant filed with its motion), it
appears that the EEOC didn’t investigate plaintiff’s dispute. Thus, the Court cannot presume, as
it typically does, that the employer had knowledge of the EEOC charge “because the EEOC
responds to charges of discrimination by investigating the incident with the employer.” See
Bowen-Hooks v. City of New York, 13 F. Supp. 3d 179, 223 (E.D.N.Y. 2014). But the Notice of
Right to Sue settles the debate: on its second page, it shows that SCA and its internal EEO
Director were CC-ed. The Court thus finds no reason to doubt SCA’s knowledge at this stage.
The Court dismisses plaintiff’s retaliation claims based on the internal complaint only.
V. 	Disability Discrimination
Plaintiff brings her disability discrimination claims under the NYSHRL and NYCHRL
under a failure-to-accommodate theory. See Gahfi v. New York City Dep’t of Educ., No. 23-cv-
1782, 2025 WL 675933, at *9 (E.D.N.Y. Feb. 28, 2025) (explaining that disability
discrimination claims may be brought under a theory of adverse employment action or of failure
to provide reasonable accommodation). To state a failure-to-accommodate claim under the
NYSHRL and NYCHRL, plaintiff must plead that: “(1) [she is a person] with a disability under
the meaning of the statutes; (2) an employer covered by the statute had notice of the disability;
(3) with reasonable accommodation, [she] could perform the essential functions of the job at
issue; and (4) the employer has refused to make such accommodations. Id. (citation omitted).
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Defendant first argues that plaintiff does not allege that she has a disability, “other than
stating a diagnosis following a hospitalization in December 2023.” Sure, the amended complaint
does not explicitly say, “Plaintiff has a disability.” But the Court sees no reason to demand more
detail on this point. The NYSHRL defines “disability” as, among other things, “a physical,
mental or medical impairment resulting from anatomical, physiological, genetic or neurological
conditions which prevents the exercise of a normal bodily function. New York Exec. Law §
292(21)(a). The NYCHRL defines disability as, among other things, “any physical, medical,
mental or psychological impairment.” New York City Admin. Code § 8-102. Plaintiff says that
she was diagnosed with FND, a “debilitating condition that impairs [her] mobility and ability to
speak.” Plaintiff’s condition clearly fits the bill for disability under both the NYSHRL and the
NYCHRL.
Nevertheless, plaintiff’s failure-to-accommodate claims ultimately fail on another basis.
In support of the third element, plaintiff asserts only that she “would have been able to
effectively accomplish all of her job responsibilities had [SCA] approved [her] request for
reasonable accommodations,” and hints that the accommodation she requested was the ability to
work remotely (“Plaintiff had received positive performance evaluations during the COVID-19
pandemic when [she] worked remotely.”). She does not, however, identify the essential
functions of her job (as opposed to her broad responsibilities) or plausibly allege that working
remotely would have allowed her to perform those essential functions. Plaintiff’s allegations are
conclusory, and do not suffice to state a claim. See, e.g., Lewis v. R.L. Vallee, Inc., No. 24-
1438, 2025 WL 1077412, at *2 (2d Cir. Apr. 10, 2025) (affirming dismissal of failure-to-
accommodate claim where plaintiff “d[id] not explain what specific accommodation he sought,
how that accommodation would have allowed him to perform essential job functions, or how
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[defendant] denied him such an accommodation); Stanley v. Phelon, No. 23-731, 2024 WL
1453872, at *5 (2d Cir. Apr. 4, 2024) (affirming dismissal of failure-to-accommodate claim
where plaintiff “d[id] not describe the particulars of his responsibilities” such that the court
“could draw the inference that he could perform his job at home”).
Plaintiff wants the Court to assume that because she worked from home “successfully”
during the pandemic, she must have been able to perform her essential job functions at home.
Even if the Court were to make this assumption (which is doubtful, because expectations were
obviously lower during the pandemic), the amended complaint is devoid of any allegations that
plaintiff could have continued to perform all the essential functions of her job post-pandemic.
See Cangro v. New York City Dep't of Fin., No. 23-cv-10097, 2024 WL 3833971, at *6
(S.D.N.Y. Aug. 14, 2024); see also Zuckerman v. GW Acquisition LLC, No. 20-cv-8742, 2021
WL 4267815, at *12 (S.D.N.Y. Sept. 20, 2021) (“Plaintiff, like millions of other employees, was
initially allowed to work from home because of the COVID-19 pandemic; Plaintiff alleges no
facts from which the Court could infer that she could perform the essential functions of her job
from home after her colleagues and other work contacts returned to their offices.”).
Plaintiff’s disability discrimination claims under the NYSHRL and NYCHRL are thus
dismissed.
CONCLUSION
Plaintiff’s Title VII national origin discrimination claim is dismissed; plaintiff’s
retaliation claims based on her internal complaint are dismissed; and plaintiff’s disability-related
claims are dismissed. Plaintiff’s national origin discrimination claims under the NYSHRL and
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NYCHRL survive; plaintiff’s hostile work environment claims (predicated on national origin)
survive; and plaintiff’s retaliation claims based on her EEOC complaint survive.
SO ORDERED.
____________________________________________
U.S.D.J.
Dated: Brooklyn, New York
March 2, 2026
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