# Robles v. Medisys Health Network, Inc.

> District Court, E.D. New York · June 19, 2020

URL: https://www.frixlaw.com/law-library/cases/10304412

## Case

- **Court:** District Court, E.D. New York
- **Decided:** June 19, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10304412

## How later opinions describe it (automated extraction)

- concluding that complaint alleging Title VII discrimination claim—whose prima facie case has similar elements to that for FMLA retaliation—“need only give plausible support to a minimal inference of discriminatory motivation.”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

Jose Robles,
19-cv-6651 (ARR) (RML)
Plaintiff,

— against —

Medisys Health Network, Inc.; John Does 1–10; and Jane
Roes 1–10,
Opinion & Order
Defendants.

ROSS, United States District Judge:

The plaintiff, Jose Robles, brings this action against defendant Medisys Health Network,
Inc. d/b/a Jamaica Hospital Medical Center (“the Hospital,” “Jamaica Hospital,” or “Medisys”),
along with ten John Doe and ten Jane Roe defendants. In his First Amended Complaint, the
plaintiff alleges claims under the Americans with Disabilities Act and the Family and Medical
Leave Act, as well as claims under state and local law. The Hospital moves to dismiss the claims
asserted against it pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth
below, the Hospital’s motion is granted in part and denied in part.
FACTUAL AND PROCEDURAL BACKGROUND
The plaintiff, Jose Robles, alleges that defendant Medisys operates Jamaica Hospital in
Queens, New York. First Am. Compl. ¶ 9, ECF No. 15 (“FAC”). Medisys is a not-for-profit
corporation that employs more than fifty people on a full-time or full-time-equivalent basis. Id. ¶¶
8, 10. Robles worked full time at Jamaica Hospital as a Patient Navigator—responsible for
arranging follow-up appointments for patients—from approximately April 2017 until November
5, 2018, when the Hospital fired him. See id. ¶¶ 8–9, 15–18.
Jamaica Hospital also happened to be the local hospital serving Robles’s community, and
Robles himself received treatment there. See id. ¶ 11. In particular, in May 2018, Robles
experienced “mental health related symptoms.” Id. ¶ 23. He was hospitalized at Jamaica Hospital
for approximately one week and was diagnosed with bipolar disorder. Id. The Hospital granted
Robles time off from work so that he could undergo treatment during that week; therefore, Robles

believes that the Hospital must have learned of his “medical condition” at that time. Id. ¶ 24.
Notwithstanding his week-long hospitalization in May 2018, Robles remained “able to
perform the essential functions of his job, without accommodation” until his mental health
symptoms worsened on October 27, 2018. Id. ¶ 21. On that date, the adult daughter of Robles’s
live-in girlfriend died suddenly in a “domestic violence incident that caused her to suffer a brain
aneurism.” Id. ¶ 26. This death was traumatic for Robles, and, as a result, he “immediately began
to experience severe mental health symptoms associated with depression, anxiety, and bi-polar
disorder.” Id. ¶ 29. Accordingly, on that same day, he requested leave from work. Id. ¶ 30. He
asserts that this leave “qualified as FMLA1 leave[.]” Id. The Hospital granted his request for leave,

with Robles scheduled to return to work on November 5, 2018. Id. ¶ 31.
Robles’s symptoms continued to worsen during his leave. On November 2, 2018, he
attended his girlfriend’s daughter’s funeral. See id. ¶¶ 32–33. He experienced trauma and grief,
which “further exa[cerbated]” his “symptoms.” Id. ¶ 33. He became “unable to concentrate” and
“had extreme difficulties breathing,” and he became “incapacitated in a manner that disabled him
from handling major life activities. As such, he was unable to work until his condition was
stabilized through further treatment.” Id. ¶ 34. “While [Robles’s] symptoms were severely
exa[cerbated] by the recent trauma, his underlying conditions were not temporary or a mere

1 “FMLA” stands for the Family and Medical Leave Act, 29 U.S.C. §§ 2601–2654.
impairment.” Id. ¶ 35.
The next day, Robles “suffered a mental breakdown and was found lying in the street.” Id.
¶ 36. An ambulance brought him to the emergency room at Jamaica Hospital, where he received
treatment “for intoxication, depression, and bipolar disorder.” Id. He received medication and
stayed in the emergency room overnight, from November 3 until November 4, 2018. Id. ¶ 37.2

During Robles’s emergency room stay, his girlfriend also underwent treatment at Jamaica
Hospital, for depression. Id. ¶ 38. Robles wanted to see his girlfriend, but a nurse refused to allow
him to do so. Id. ¶ 39. Robles then “got into a verbal altercation with” this nurse. Id. ¶ 40.
On November 5, 2018—the day that Robles was scheduled to return to work—a human
resources representative for Jamaica Hospital called Robles and told him “that he was terminated
from his job ‘due to events over the weekend.’” Id. ¶¶ 31, 45. When Robles asked what those
events were, the representative responded that “we are not going to discuss that.” Id. ¶ 46. Robles
believes that the representative “was referencing [his] hospitalization, as no other relevant events
occurred during the prior weekend.” Id. ¶ 47. Robles told the human resources representative that

“his supervisors and co-workers knew that he requested leave because of the exa[cerbation] of his
mental health symptoms due [to ]the death of his partner’s daughter.” Id. ¶ 48. Robles asked to

2 Actually, the FAC states that Robles’s release from the hospital occurred on November 4, 2019.
FAC ¶ 37. However, the year “2019” appears to be a typographical error, as Robles alleges that he
went to the hospital on November 3, 2018, and remained there “overnight . . . until he was
released[.]” Id. ¶¶ 36–37. Robles also alleges that he remained in the emergency room during his
overnight stay, which would not be consistent with a year-long hospitalization. Id. ¶ 37.
Subsequent allegations in the FAC also imply that Robles’s hospitalization lasted only one night—
and not one year. See id. ¶¶ 45–47 (alleging that Robles’s employer fired him “due to events over
the weekend” and that such “events” referenced his hospitalization). Therefore, I assume that
Robles’s release from the hospital occurred on November 4, 2018, and not in 2019. Because I am
allowing Robles to amend the claims that I am dismissing, as discussed below, this assumption is
not prejudicial to him. If Robles does amend the FAC, he is instructed to either fix this
typographical error or notify me that it is not, in fact, an error.
speak with his supervisors so that he could explain his medical condition and “the events that
occurred.” Id. ¶ 50. The representative “refused to give [Robles] permission to speak to anyone
else regarding his termination, his condition, or events associated with his hospitalization.” Id. ¶
51. Robles “subsequently received a letter from Defendants stating that he would be arrested if he
was found on the premises of Jamaica Hospital.” Id. ¶ 52.

On the day of his firing, the Hospital knew that Robles had depression and bipolar disorder
and that he was “disabled within the meaning of the ADA[.]3” Id. ¶¶ 62–63. However, neither the
human resources representative nor any other Hospital representative “attempted to engage with
[Robles] to determine if he could be accommodated or to offer him additional FMLA leave.” Id. ¶
53. Nor did the Hospital ever inform Robles of his rights under the ADA or the FMLA. Id. ¶¶ 64–
65. If the Hospital had given Robles “a reasonable accommodation of additional leave”—which
“would have been a definite period of time”—Robles “would have been able to treat the symptoms
of his mental health conditions in a manner that would have enabled him to return to work and
perform the essential functions of his job.” Id. ¶¶ 54–55. Robles was later—on an unspecified

date—“readmitted to Jamaica Hospital for treatment.” Id. ¶ 56.
The only way that Robles’s supervisors could have learned about his verbal altercation
with the nurse would have been by “obtaining his records or being directly informed by staff”
members who gave medical care to Robles during his November hospitalization. Id. ¶ 44. Robles
alleges this fact based on his belief that “the only potential witnesses” to the altercation were care
providers; Robles’s supervisors themselves could not have witnessed the altercation, and Robles
did not inform his coworkers or any other hospital staff members about it. Id. ¶¶ 41–43.
Accordingly, Doe and Roe defendants 1–5 must have “transmitted confidential information

3 The Americans with Disabilities Act, 42 U.S.C. §§ 12101–12213.
pertaining to [Robles’s] treatment for medical and psychiatric conditions” to Doe and Roe
defendants 6–10 “for the purpose of, and with the foreseeable consequence of, using that
information as grounds for terminating [Robles] from his position as a Patient Navigator at Jamaica
Hospital.” Id. ¶ 59.
Robles filed his Complaint in this case in November 2019. See Compl., ECF No. 1. After

the Hospital requested a pre-motion conference in anticipation of bringing a motion to dismiss,
Robles amended the complaint. See Letter, Feb. 3, 2020, ECF No. 10; FAC. The First Amended
Complaint asserts eight causes of action. In the first cause of action, Robles alleges that the
Hospital discriminated against him, failed to accommodate his disability, and retaliated against
him in violation of the ADA and that the Hospital impermissibly engaged in interference, coercion,
or intimidation with respect to his ADA-protected rights. See FAC ¶¶ 69–76. In the second cause
of action, Robles alleges that the Hospital interfered with the exercise of his rights under the FMLA
and retaliated against him for exercising such rights. Id. ¶¶ 77–83. In the third cause of action,
Robles alleges that all defendants discriminated and retaliated against him on the basis of his

disability in violation of the New York State Human Rights Law. See N.Y. Exec. Law
(“NYSHRL”) §§ 296(1)(a), 296(7) (McKinney 2020); FAC ¶¶ 84–88. In the fourth cause of action,
Robles alleges that the individual Doe and Roe defendants aided and abetted discrimination and
retaliation in violation of the NYSHRL. See NYSHRL § 296(6); FAC ¶¶ 89–91. In the fifth cause
of action, Robles alleges that all defendants discriminated and retaliated against him in violation
of the New York City Administrative Code. See N.Y.C. Admin. Code (“NYCHRL”) § 8-107(1)(a)
(2020); FAC ¶¶ 92–96. In the sixth cause of action, Robles alleges that the individual Doe and Roe
defendants aided and abetted discrimination and retaliation in violation of the NYCHRL. See
NYCHRL § 8-107(6); FAC ¶¶ 97–101. In the seventh cause of action, Robles alleges that all
defendants breached their fiduciary duty to maintain the confidentiality of his medical records.
FAC ¶¶ 102–05. Finally, in the eighth cause of action, Robles alleges that the Hospital is liable for
negligent hiring, training, retention, and/or supervision. See id. ¶¶ 106–11.
The Hospital filed the instant motion to dismiss, seeking to dismiss only those claims
asserted against it—and not those asserted against the Doe and Roe defendants—for failure to state

a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). See Notice of Mot., ECF No. 22;
Mem. of Law in Supp. of Mot. to Dismiss 1 n.1, ECF No. 22-1 (“Def.’s Br.”). Thus, the Hospital
moves to dismiss the first, second, third, fifth, seventh, and eighth causes of action as asserted
against it. Def.’s Br. 1 n.1.
DISCUSSION
Under Federal Rule of Civil Procedure 12(b)(6), a party may move for dismissal for
“failure to state a claim upon which relief can be granted[.]” Fed. R. Civ. P. 12(b)(6). In deciding
a Rule 12(b)(6) motion to dismiss, the court must “accept[] all factual allegations in the complaint
as true” and “draw[] all reasonable inferences in the plaintiff’s favor.” Lundy v. Catholic Health

Sys. of Long Island Inc., 711 F.3d 106, 113 (2d Cir. 2013) (quoting Holmes v. Grubman, 568 F.3d
329, 335 (2d Cir. 2009)). Nonetheless, the complaint’s “[f]actual allegations must be enough to
raise a right to relief above the speculative level[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). In particular, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555). “While legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.” Id. at 679. Further, “[o]nly a complaint that states
a plausible claim for relief survives a motion to dismiss.” LaFaro v. N.Y. Cardiothoracic Grp.,
PLLC, 570 F.3d 471, 476 (2d Cir. 2009) (quoting Iqbal, 556 U.S. at 679). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. To
determine whether a claim is plausible, the court must “draw on its judicial experience and
common sense.” Id. at 679. A plaintiff need not show that a defendant’s liability is a “probability,”
but a plaintiff must raise “more than a sheer possibility that a defendant has acted unlawfully.” Id.

at 678 (quoting Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and
plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557).
Certain employment discrimination claims—once they reach the evidentiary stage of
litigation—implicate the McDonnell Douglas burden-shifting framework. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973). This framework requires that a plaintiff
“carry the initial burden under the statute of establishing a prima facie case of . . . discrimination.”
Id. at 802. However, “an employment discrimination plaintiff need not plead a prima facie case of
discrimination[.]” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002) (emphasis added). In

Swierkiewicz, the Supreme Court of the United States held that such a plaintiff need only plead “a
short and plain statement of the claim showing that the pleader is entitled to relief.” Id. at 508
(quoting Fed. R. Civ. P. 8(a)(2)). After deciding Swierkiewicz, however, the Supreme Court
decided Twombly and Iqbal, which clarified that, under Federal Rule of Civil Procedure 8, a
complaint must allege “enough facts to state a claim to relief that is plausible on its face,” so as to
enable the court to “draw the reasonable inference that the defendant is liable for the misconduct
alleged[.]” E.E.O.C. v. Port Authority of New York and New Jersey, 768 F.3d 247, 253 (2d Cir.
2014) (first quoting Twombly, 550 U.S. at 570, then quoting Iqbal, 556 U.S. at 678). “Reconciling
Swierkiewicz, Twombly, and Iqbal, a complaint need not establish a prima facie case of
employment discrimination to survive a motion to dismiss; however, ‘the claim must be facially
plausible and must give fair notice to the defendants of the basis for the claim.’” Barbosa v.
Continuum Health Partners, Inc., 716 F. Supp. 2d 210, 215 (S.D.N.Y. 2010) (quoting Fowler v.
Scores Holding Co., Inc., 677 F. Supp. 2d 673, 679 (S.D.N.Y. 2009)); see Bakeer v. Nippon Cargo
Airlines, Co., Ltd., Nos. 09 CV 3374 (RRM), 09 CV 3375 (RRM), 09 CV 3377 (RRM), 09 CV

3378 (RRM), 2011 WL 3625103, at *22, *40, *42 (E.D.N.Y. July 25, 2011) (stating the same and
analyzing motion to dismiss ADA and FMLA claims), report and recommendation adopted by
2011 WL 3625083 (E.D.N.Y. Aug. 12, 2011), and adopted sub nom. by 2011 WL 5402642 and
2011 WL 5429642 (E.D.N.Y. Nov. 7, 2011). Further, the elements of a prima facie case of
discrimination “‘provide an outline of what is necessary to render [a plaintiff’s] claims for relief
plausible[,]’ and courts consider these elements in determining whether there is sufficient factual
matter in the complaint which, if true, gives [a] [d]efendant a fair notice of [p]laintiff’s claim and
the grounds on which it rests.” Murphy v. Suffolk Cty. Cmty. Coll., No. 10–CV–0251 (LDW)
(AKT), 2011 WL 5976082, at *5 (E.D.N.Y. Nov. 29, 2011) (quoting Sommersett v. City of New

York, No. 09 Civ. 5916 (LTS) (KNF), 2011 WL 2565301, at *5 (S.D.N.Y. June 28, 2011)).
I. The ADA discrimination and failure to accommodate claims are not dismissed,
and the ADA retaliation, interference, coercion, and intimidation claims are
dismissed.

A. The plaintiff is not bound by the allegations in his original Complaint, and I will
not disregard his amended allegations.

The Hospital first argues that because the First Amended Complaint contradicts certain
allegations raised in the original Complaint, Robles is bound by his initial allegations, and I must
disregard the amended allegations. See Def.’s Br. 3–5. Specifically, in his original Complaint,
Robles alleged that he suffered from a “temporary incapacity due to bereavement” and that he was
“temporarily disabled” or had a “temporary disability.” Compl. ¶¶ 2, 39–40, 49, 62, 64, 70. In the
First Amended Complaint, Robles alleges that, while his “symptoms were severely exa[cerbated]
by the . . . trauma [of his girlfriend’s daughter’s death and funeral], his underlying conditions were
not temporary or a mere impairment.” FAC ¶ 35. The Hospital argues that this revision is
significant because, in its view, “temporary impairments” do not render a person disabled within
the meaning of the ADA; as such, the ADA does not protect individuals with “temporary

impairments.” Def.’s Br. 3 (citing Verdi v. Potter, No. 08 Civ. 2687 (DRH) (WDW), 2010 WL
502959, at *5 (E.D.N.Y. Feb. 9, 2010)). I will address the issue of whether Robles has sufficiently
alleged that he is disabled within the meaning of the ADA below in Section I.B.i. As an initial
matter, Robles is not bound by his original Complaint, and I decide the instant motion based on
the allegations in the First Amended Complaint.
Courts in this circuit have taken various approaches to dealing with allegations in an
amended complaint that directly contradict allegations set forth in a prior version of the complaint.
See Palm Beach Strategic Income, LP v. Salzman, No. 10–CV–261 (JS) (AKT), 2011 WL
1655575, at *5–6 (E.D.N.Y. May 2, 2011) (reviewing different approaches among district courts

and concluding that, in a typical case, a court should accept a complaint’s allegations as true
notwithstanding prior inconsistent pleadings), aff’d, 457 F. App’x 40 (2d Cir. 2012) (summary
order). Some courts have rejected the amended allegations and instead relied on the original
pleading. See Kasparov v. Ambit Tex., LLC, No. 12-CV-3488 (WFK) (JO), 2016 WL 10749156,
at *3 (E.D.N.Y. Mar. 10, 2016) (citing Wallace v. N.Y.C. Dep’t of Corr., No. 95 CV 4404, 1996
WL 586797, at *2 (E.D.N.Y. Oct. 9, 1996)) (disregarding amended complaint when plaintiff
“blatantly contradict[ed] previous factual allegations”), report and recommendation adopted by
2016 WL 6779497 (E.D.N.Y. Nov. 16, 2016); Colliton v. Cravath, Swaine & Moore LLP, No. 08
Civ 0400 (NRB), 2008 WL 4386764, at *6 (S.D.N.Y. Sept. 24, 2008) (accepting as true facts set
forth in original complaint, rather than in amended complaint, when amended complaint blatantly
contradicted original allegations in clear attempt to avoid dispositive defense that defendant had
raised), aff’d, 356 F. App’x 535 (2d Cir. 2009) (summary order). Others have accepted the
amended pleading despite any inconsistencies. See Phillips v. City of Middletown, No. 17-CV-
5307 (CS), 2018 WL 4572971, at *4 (S.D.N.Y. Sept. 24, 2018) (citing cases and concluding that

“because Plaintiff has filed the Amended Complaint, the Court will not import information from
the original Complaint”); In re Parmalat Sec. Litig., 421 F. Supp. 2d 703, 713 (S.D.N.Y. 2006)
(quoting Limited, Inc. v. McCrory Corp., 683 F. Supp. 387, 395 n.5 (S.D.N.Y. 1988)) (“While
prior inconsistent pleadings normally are admissible against a party, they ordinarily are
‘controvertible, not conclusive’ admissions.”). As a related—but distinct—matter, a court may
deny leave to amend a complaint when a plaintiff seeks to omit certain allegations or raise
allegations that directly contradict those in the prior version of the complaint. See Austin v. Ford
Models, Inc., 149 F.3d 148, 155 (2d Cir. 1998) (upholding district court’s denial of leave to file
second amended complaint when plaintiff sought to omit admissions made in first amended

complaint), abrogated on other grounds by Swierkiewicz, 534 U.S. 506; Staten Island Chiropractic
Assocs., PLLC v. Aetna, Inc., No. 12-cv-6239 (CBA) (VVP), 2014 U.S. Dist. LEXIS 140895, at
*22–23 (E.D.N.Y. July 30, 2014) (“Because Plaintiffs’ proposed amended complaint directly
contradicts their earlier admission . . ., allowing leave to amend is inappropriate[.]”); see also
Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d
147, 166–67 (2d Cir. 2003) (quoting Bellefonte Re Ins. Co. v. Argonaut Ins. Co., 757 F.2d 523,
528 (2d Cir. 1985)) (upholding district court’s denial of motion to reconsider, when district court
had denied permission to amend complaint for third time, because allegations in second amended
complaint were “judicial admission[s]” that “bound” plaintiff “throughout the course of the
proceeding”).
Here, the First Amended Complaint does not directly contradict the original Complaint.
Rather, it clarifies the initial characterization of Robles’s disability as “temporary” by explaining
that it was the exacerbation of the symptoms of his condition that was temporary, and not the
underlying condition itself. FAC ¶ 35. Such a clarification does not amount to the sort of “blatant

contradict[ion]” that might justify my disregarding the amended allegations. Kasparov, 2016 WL
10749156, at *3; Colliton, 2008 WL 4386764, at *6. And, even if the amended allegations did
contradict the original Complaint, I would be under no obligation to disregard them entirely, given
the diverging approaches to dealing with contradictory allegations within this circuit. Thus, Robles
is not bound by the allegations in his original Complaint, and the fact that the First Amended
Complaint clarifies earlier allegations is not a ground for dismissal.
B. The plaintiff has stated an ADA discrimination claim.

To state a plausible ADA discrimination claim,

a plaintiff must allege that: ‘(1) the defendant is covered by the ADA; (2) plaintiff
suffers from or is regarded as suffering from a disability within the meaning of the
ADA; (3) plaintiff was qualified to perform the essential functions of the job, with
or without reasonable accommodation; and (4) plaintiff suffered an adverse
employment action because of [plaintiff’s] disability or perceived disability.’

Caskey v. County of Ontario, 560 F. App’x 57, 58 (2d Cir. 2014) (summary order) (quoting
Capobianco v. City of New York, 422 F.3d 47, 56 (2d Cir. 2005)). “Claims alleging disability
discrimination in violation of the ADA are subject to the [McDonnell Douglas] burden-shifting
analysis” at the evidentiary stage of litigation. McMillan v. City of New York, 711 F.3d 120, 125
(2d Cir. 2013) (quoting McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 96 (2d Cir.
2009)). In this case, the Hospital concedes the first element of the ADA discrimination claim—
that it is covered by the ADA—and it assumes for the purposes of the instant motion, but does not
concede, that Robles was qualified to perform the essential functions of his job—the third element.
See Def.’s Br. 6, 7 n.7. Accordingly, I discuss only the second and fourth elements of the ADA
discrimination claim. I will first address whether Robles has plausibly alleged that he has a
“disability” within the meaning of the ADA. I will then address whether Robles has plausibly
alleged that he suffered an adverse employment action because of that disability.

i. The plaintiff has adequately alleged that he has a “disability” within
the meaning of the ADA.

The ADA defines “disability” as “a physical or mental impairment that substantially limits
one or more major life activities of [an] individual[.]” 42 U.S.C. § 12102(1)(A).4 The Equal
Employment Opportunity Commission (“EEOC”) has promulgated regulations that expand upon
this definition. Courts in the Second Circuit “accord ‘great deference’ to the EEOC’s interpretation
of the ADA, since it is charged with administering the statute.” Francis v. City of Meriden, 129
F.3d 281, 283 n.1 (2d Cir. 1997) (quoting Ford v. Bernard Fineson Dev. Ctr., 81 F.3d 304, 309
(2d Cir. 1996)). The EEOC regulations define “major life activities” as including, but not limited
to
[c]aring for oneself, performing manual tasks, seeing, hearing, eating, sleeping,
walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning,
reading, concentrating, thinking, communicating, interacting with others, and
working; and

[t]he operation of a major bodily function, including functions of the immune
system, special sense organs and skin; normal cell growth; and digestive,
genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory,
cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive
functions. The operation of a major bodily function includes the operation of an
individual organ within a body system.

29 C.F.R. § 1630.2(i)(1)(i)–(ii).

4 In addition, “a record of such an impairment” and “being regarded as having such an impairment”
constitute disabilities. § 12102(1)(B)–(C). Because the parties do not discuss these aspects of the
definition of “disability” in their briefs, I do not analyze them here.
The regulations also set forth an extensive explanation of what it means for an impairment
to “substantially limit[]” a major life activity. 42 U.S.C. § 12102(1)(A); see 29 C.F.R. § 1630.2(j).
Notably, the ADA Amendments Act of 2008 (the “ADAAA”) had the “primary purpose” of
making “it easier for people with disabilities to obtain protection under the ADA.” 29 C.F.R. §
1630.1(c)(4). Accordingly, “the definition of ‘disability’ . . . shall be construed broadly in favor of
expansive coverage to the maximum extent permitted by the terms of the ADA.” Id. Therefore,
the EEOC regulations instruct that “the term ‘substantially limits’ shall be interpreted and applied
to require a degree of functional limitation that is lower than the standard for ‘substantially limits’
applied prior to the ADAAA.” Id. § 1630.2(j)(1)(iv). In accordance with the ADAAA’s purpose

of expanding ADA coverage, the regulations specify that “‘[s]ubstantially limits’ is not meant to
be a demanding standard[,]” and “the threshold issue of whether an impairment ‘substantially
limits’ a major life activity should not demand extensive analysis.” Id. § 1630.2(j)(1)(i), (iii). Still,
“not every impairment will constitute a disability[.]” Id. § 1630.2(j)(1)(ii). “An impairment is a
disability . . . if it substantially limits the ability of an individual to perform a major life activity as
compared to most people in the general population.” Id. Further, “[a]n impairment that is episodic
or in remission is a disability if it would substantially limit a major life activity when active.” Id.
§ 1630.2(j)(1)(vii).
A medical diagnosis, without more, “establish[es] only that [a] plaintiff suffered an
impairment,” and “not that his ability . . . was substantially limited by that impairment.” Anderson

v. Nat’l Grid, PLC, 93 F. Supp. 3d 120, 136 n.10 (E.D.N.Y. 2015); see Hedges v. Town of Madison,
456 F. App’x 22, 24 (2d Cir. 2012) (summary order) (rejecting argument that district court should
have inferred that plaintiff was disabled because he alleged merely that he suffered from various
medical conditions). However, the EEOC does accord some weight to certain medical diagnoses.
The regulations explain that “the individualized assessment of some types of impairments will, in
virtually all cases, result in a determination of coverage[.]” 29 C.F.R. § 1630.2(j)(3)(ii). “For
example, . . . it should be easily concluded that . . . major depressive disorder [and] bipolar disorder
. . . substantially limit brain function.” Id. § 1630.2(j)(3)(iii).
In addition, the Second Circuit has explicitly left open the question of “whether temporary

injuries are per se unprotected under the ADA.” Adams v. Citizens Advice Bureau, 187 F.3d 315,
317 (2d Cir. 1999) (per curiam). Nonetheless, in that same case, the Second Circuit concluded that
a plaintiff who suffered injuries to his neck, back, and knee in a car accident and, consequently,
became unable to work for three and a half months “failed to make out a claim that he was disabled
within the meaning of the ADA.” Id. at 316–17. District courts in this circuit, too, have concluded
that certain temporary impairments did not constitute disabilities within the meaning of the ADA.
See Jackson v. Nor Loch Manor HCF, 134 F. App’x 477, 478 (2d Cir. 2005) (summary order)
(upholding district court’s conclusion that plaintiff failed to establish prima facie case of ADA
discrimination when record showed merely that plaintiff had surgery for an abscess that required

temporary absence from work); Soto v. Marist Coll., No. 17-CV-7976 (KMK), 2019 WL 2371713,
at *2, *13–14 (S.D.N.Y. June 5, 2019) (dismissing ADA discrimination claim when plaintiff
suffered bladder illness that required emergency surgery and caused plaintiff to miss several weeks
of work, reasoning that temporary medical conditions do not constitute disabilities because they
are not substantially limiting); Dohrmann-Gallik v. Lakeland Cent. Sch. Dist., No. 14–cv–4397
(NSR), 2015 WL 4557373, at *7 (S.D.N.Y. July 27, 2015) (“[A]n absence from work due to a
temporary condition—even if lengthy—is not, on its own, a substantial limitation of a major life
activity.”); Verdi, 2010 WL 502959, at *1 n.2, *5–6 (concluding that plaintiff did not adequately
allege disability when he alleged that he suffered physical injury that rendered him unable to work
for approximately two months); Pierre v. N.Y. State Dep’t of Corr. Servs., No. 05 Civ. 0275(RJS),
2009 WL 1583475, at *17 (S.D.N.Y. June 1, 2009) (concluding that plaintiff failed to establish
prima facie case of ADA discrimination when she suffered injuries to leg, hip, neck, and shoulder
because she put forth no evidence that those injuries were permanent or long-term or that they
substantially limited a major life activity); Sussle v. Sirina Prot. Sys. Corp., 269 F. Supp. 2d 285,

312 (S.D.N.Y. 2003) (“[W]here an individual finds it difficult to concentrate only on occasion, his
ability to concentrate is not substantially limited.”); Williams v. Salvation Army, 108 F. Supp. 2d
303, 312–13 (S.D.N.Y. 2000) (concluding that plaintiff who suffered head injury did not have a
disability when evidence showed that injury was “temporary and de minimis”). However, many of
these cases—which the Hospital cites in its briefs—were decided before the ADAAA went into
effect or relied on pre-ADAAA case law or regulations. See Adams, 187 F.3d at 317 (decided pre-
ADAAA in 1999); Jackson, 134 F. App’x at 478 (citing Toyota Motor Mfg., Ky., Inc. v. Williams,
534 U.S. 184, 198 (2002), which itself was overturned by ADAAA and relied on since-superseded,
pre-ADAAA version of EEOC regulation that required impairment to have “permanent or long

term” impact); Verdi, 2010 WL 502959, at *5 (citing same pre-ADAAA EEOC regulation);
Pierre, 2009 WL 1583475, at *17 (citing Toyota Motor Mfg., Ky., Inc., 534 U.S. at 198); Sussle,
269 F. Supp. 2d at 311 (citing same pre-ADAAA EEOC regulation); Williams v. Salvation Army,
108 F. Supp. 2d at 312 n.12 (same). Thus, they were decided under a stricter ADA regime, before
the ADAAA expanded “the definition of ‘disability’ . . . [to] be construed broadly in favor of
expansive coverage to the maximum extent permitted by the terms of the ADA.” 29 C.F.R. §
1630.1(c)(4).
In this case, Robles has alleged sufficient facts to make it plausible that he has a disability
within the meaning of the ADA—that is, that he has a mental impairment that substantially limits
one or more of his major life activities. 42 U.S.C. § 12102(1)(A). Robles alleges that he was
diagnosed with bipolar disorder in May 2018. FAC ¶ 23. At that time, his symptoms were serious
enough to require a week-long hospitalization. See id. Robles further alleges that, on November 3,
2018, he had “a mental breakdown and was found lying in the street.” Id. ¶ 36. After an ambulance
brought him to the Hospital, he received treatment for intoxication, depression, and bipolar

disorder. See id. In addition, he alleges that the symptoms that he experienced in early November
2018 resulted in his being “unable to concentrate” and having “extreme difficulties breathing[.]”
Id. ¶ 34. Robles alleges a subsequent, additional hospitalization on an undisclosed date, which I
can infer occurred because of his bipolar disorder. See id. ¶ 56. It is plausible that the symptoms
of Robles’s bipolar disorder limited several of his major life activities, including concentrating and
breathing—as he explicitly alleges—as well as brain function, the impact upon which I can infer
from the fact of his “mental breakdown.” 29 C.F.R. § 1630.2(i)(1)(i)–(ii) (listing major life
activities); FAC ¶¶ 34, 36. It is also plausible that the limitations on these major life activities were
substantial, as Robles describes his difficulty breathing as “extreme,” underwent three

hospitalizations, and, at one point, “was found lying in the street.” FAC ¶¶ 23, 34, 36, 56.
Moreover, the EEOC regulations instruct that I should “easily” conclude that bipolar
disorder substantially limits brain function. 29 C.F.R. § 1630.2(j)(3)(iii). Especially considering
that this case is at the pleading stage—where the face of the First Amended Complaint need only
permit me to draw the reasonable inference that Robles was disabled—and considering the
regulations’ direction, I conclude that the First Amended Complaint plausibly alleges that Robles
has an ADA-covered disability. Compare Mazzocchi v. Windsor Owners Corp., No. 11 Civ. 7913
(AT), 2013 WL 5295089, at *7–8 (S.D.N.Y. Sept. 17, 2013) (finding it plausible, at pleading stage,
that plaintiff had ADA-covered disability when she alleged that she had bipolar disorder and that
it impaired her abilities “to sleep, concentrate, learn, work, and interact with others” and citing
post-ADAAA regulations calling for expansive ADA coverage), with Bonilla v. BOCES, No. 06–
CV–6542, 2010 WL 3488712, at *5–6 (W.D.N.Y. Sept. 2, 2010) (concluding, on summary
judgment, that plaintiff could not establish prima facie case that she was disabled because her
depression and bipolar disorder were not disabilities when plaintiff presented only “limited

evidence” that they substantially limited major life activities), and Horwitz v. L & L.G. Stickley,
Inc., 122 F. Supp. 2d 350, 354–56 (N.D.N.Y. 2000) (applying pre-ADAAA EEOC regulations and
concluding, on summary judgment, that plaintiff presented insufficient evidence to enable a jury
to conclude that her bipolar disorder substantially limited any major life activities).5
I disagree with the Hospital’s assertion that Robles could not have had an ADA-protected
disability because his impairment was “temporary.” Def.’s Br. 3, 8. Robles alleges that he has been
hospitalized three times: once in May 2018, once in November 2018, and once at an undisclosed

5 In a footnote, the Hospital asserts that “employees who are current substance abusers . . . are not
disabled within the meaning of federal law.” Def.’s Br. 3 n.5; see FAC ¶ 36 (alleging that Robles
was treated for intoxication, in addition to depression and bipolar disorder, during his November
2018 hospitalization); Compl. ¶ 35 (referencing Robles’s treatment for “alcoholism” during his
November hospitalization). This assertion is inaccurate and does not impact my analysis. In
Brennan v. N.Y.C. Police Dep’t, which the Hospital cites, the Second Circuit observed that “[t]he
parties do not dispute that . . . a recovering alcoholic[] qualifies as a disabled individual under the
ADA” and proceeded to analyze whether the plaintiff was “otherwise qualified” for his job—a
question not at issue here. No. 97-7779, 1998 WL 51284, at *3 (2d Cir. 1998) (summary order);
Def.’s Br. 7 n.7; see also D’Amico v. City of New York, 132 F.3d 145, 150–51 (2d Cir. 1998)
(concluding that employee with cocaine addiction who had made prima facie case that he had
disability under Rehabilitation Act nonetheless failed to establish that he could perform essential
functions of his job). Although a court in this district has recognized that “[t]he ADA does not
require that employers tolerate misconduct traceable to an employee’s alcoholism, nor does it
protect alcoholics from the consequences of their own behavior,” Klaper v. Cypress Hills
Cemetery, No. 10-CV-1811 NGG LB, 2014 WL 1343449, at *10 (E.D.N.Y. Mar. 31, 2014), aff’d,
593 F. App’x 89 (2d Cir. 2015) (summary order), that case does not stand for the proposition that
a plaintiff who is an alcoholic cannot also be disabled. In addition, discovery is necessary to
determine whether Robles was, in fact, an alcoholic, and whether he engaged in “misconduct
traceable to . . . alcoholism.” Id. at *10.
later time. See FAC ¶¶ 23, 36–37, 56. Accordingly, it is plausible that Robles’s impairment is at
least “episodic,” in which case it “is a disability if it would substantially limit a major life activity
when active.” 29 C.F.R. § 1630.2(j)(1)(vii). As discussed, Robles has plausibly alleged that the
symptoms of his bipolar disorder, when active, substantially limit multiple major life activities.
Moreover, even if Robles’s impairment were merely temporary, it would not be “per se

unprotected under the ADA[,]” Adams, 187 F.3d at 317, and, as discussed, many of the Hospital’s
cited cases denying ADA protection to plaintiffs with temporary impairments were decided before
the ADAAA expanded the ADA’s coverage. Discovery will reveal the full extent of Robles’s
impairment and whether it does, in fact, substantially limit any of his major life activities. At the
pleading stage, Robles has plausibly alleged that it does.6
ii. The plaintiff has adequately alleged that he suffered an adverse
employment action because of his disability.

In order to state a claim for ADA discrimination, a plaintiff must plausibly allege that he
“suffered an adverse employment action because of [his] disability[.]” Caskey, 560 F. App’x at 58
(quoting Capobianco, 422 F.3d at 56). Here, Robles alleges that, during his November 2018 stay
in the emergency room, a nurse “refused to allow [him] to see his girlfriend[,] who was also being
treated in Jamaica Hospital.” FAC ¶ 39. Robles “got into a verbal altercation with” this nurse. Id.
¶ 40. Only “other care providers at the hospital” could have witnessed this altercation. Id. ¶ 41.

6 It is not clear how, if at all, the fact that the November exacerbation of Robles’s symptoms
occurred when he was already on leave is relevant here. See Def.’s Br. 5, 8 n.9. In particular, the
Hospital argues that Robles’s allegations “merely demonstrate that while he was already on leave,
Plaintiff was unable to perform the essential functions of his job.” Id. at 5. The ADA discrimination
standard requires that Robles allege that he was “qualified to perform the essential functions of the
job, with or without reasonable accommodation[.]” Caskey, 560 F. App’x at 58 (emphasis added)
(quoting Capobianco, 422 F.3d at 56). But the Hospital wrote that it assumes that this element is
satisfied for the purposes of the instant motion. Def.’s Br. 7 n.7. In any case, it is not clear how the
Hospital’s argument—that Robles was unable to perform the essential functions of his job only
during a very limited time while he was not working anyway—would help its case.
The Hospital then fired Robles, with a human resources representative informing him that his firing
was “due to events over the weekend.” Id. ¶ 45.
Although it is plausible that the “event[]” to which the representative referred was the
verbal altercation with the nurse, it is also plausible that the term “events” referred to Robles’s
hospitalization and treatment for bipolar disorder. “[D]rawing all reasonable inferences in the

plaintiff’s favor”—as I must do on a motion to dismiss—it is plausible that the care providers who
witnessed the altercation informed Robles’s supervisor that Robles underwent treatment for
bipolar disorder, which led to his termination. Lundy, 711 F.3d at 113 (quoting Holmes, 568 F.3d
at 335).
Robles also alleges that his supervisors and co-workers knew that he had requested leave
on October 27, 2018 “because of the exa[cerbation] of his mental health symptoms due to the death
of his partner’s daughter.” FAC ¶ 48. This allegation also allows me to infer that the Hospital fired
Robles because of his disability, as it shows that Robles’s supervisors knew that he suffered from
mental health symptoms on October 27, 2018, and fired him only shortly thereafter, on November

5, 2018. Id. ¶ 45. Therefore, Robles has adequately alleged that he suffered an adverse employment
action—his firing—because of his disability. Accordingly, Robles has stated an ADA
discrimination claim.
C. The plaintiff has stated a claim for failure to accommodate in violation of the
ADA.

The ADA’s prohibition on discrimination against an employee based on disability includes
a prohibition on denying “reasonable accommodations to the known physical or mental limitations
of an otherwise qualified individual with a disability who is an . . . employee, unless [the employer]
can demonstrate that the accommodation would impose an undue hardship on the operation of [its]
business[.]” 42 U.S.C. § 12112(b)(5)(A); see McMillan, 711 F.3d at 125–26. To state a claim for
failure to accommodate, “a plaintiff must allege that: (1) []he was an individual with a disability
within the meaning of the ADA; (2) defendant had notice of [his] disability; (3) []he could perform
the essential functions of [his] position with a reasonable accommodation; and (4) defendant
refused to make such an accommodation.” Jordan v. Forfeiture Support Assocs., 928 F. Supp. 2d
588, 608 (E.D.N.Y. 2013) (citing Conley v. United Parcel Serv., 88 F. Supp. 2d 16, 18 (E.D.N.Y.

2000)); see McMillan, 711 F.3d at 125–26 (quoting McBride, 583 F.3d at 97) (listing same
elements as comprising prima facie case for failure to accommodate).
I have already concluded that Robles has adequately alleged the first element—that he has
a disability within the meaning of the ADA. I will now address the third element: whether Robles
adequately alleged that, with a reasonable accommodation, he could have performed the essential
functions of his job. I will then address the second and fourth elements—whether the Hospital had
notice of Robles’s disability and whether the Hospital refused to make an accommodation—
together. See Costabile v. N.Y.C. Health & Hosps. Corp., 951 F.3d 77, 81–82 (2d Cir. 2020)
(analyzing second and fourth elements together).

i. The plaintiff has plausibly alleged that, with the reasonable
accommodation of a finite period of additional leave, he could have
performed the essential functions of his job.

Robles alleges that, instead of firing him on November 5, 2018, the Hospital should have
granted him the “reasonable accommodation of additional leave,” which would have allowed him
to “treat the symptoms of his mental health conditions in a manner that would have enabled him
to return to work and perform the essential functions of his job.” FAC ¶ 54. He further alleges that
“[t]he period of leave required for [him] to obtain the necessary treatment for stabilizing his
condition would have been a definite period of time.” Id. ¶ 55.
The Second Circuit has never resolved “whether paid or unpaid leave can constitute a
reasonable accommodation under the ADA[.]” Petrone v. Hampton Bays Union Free Sch. Dist.,
568 F. App’x 5, 7 n.2 (2d Cir. 2014) (summary order) (citing Graves v. Finch Pruyn & Co., Inc.,
353 F. App’x 558, 560 (2d Cir. 2009) (summary order) (“Graves II”) and Graves v. Finch Pruyn
& Co. Inc., 457 F.3d 181, 186 n.6 (2d Cir. 2006) (“Graves I”)). However, assuming that leave
could constitute a reasonable accommodation, the Second Circuit has reasoned that such leave

would have to “enable the employee to perform the essential functions of his job.” Id.; see Goodwin
v. MTA Bus Co., No. 14-CV-4775 (RRM) (JO), 2017 WL 1251091, at *5 (E.D.N.Y. Mar. 27,
2017); see also Stevens v. Rite Aid Corp., 851 F.3d 224, 230 (2d Cir. 2017) (quoting Shannon v.
N.Y.C. Transit Auth., 332 F.3d 95, 100 (2d Cir. 2003)) (“A reasonable accommodation can never
involve the elimination of an essential function of a job.”). The Second Circuit has also indicated
that a finite leave of absence—in one case, lasting two weeks—could amount to a reasonable
accommodation. See Graves I, 457 F.3d at 185–86, 186 n.6 (reversing grant of summary judgment
to employer when district court incorrectly found that plaintiff had requested an indefinite amount
of time off). In doing so, the Second Circuit explicitly declined to “reach the question of how

assured the employer must be of an employee’s successful return following a proposed finite leave
of absence in order for the finite leave to be a reasonable accommodation.” Id. at 186 n.6. Still, it
observed that “courts considering this question have concluded that a leave of absence may be a
reasonable accommodation where it is finite and will be reasonably likely to enable the employee
to return to work.” Id. (citing cases). Thus, when a plaintiff made no showing that, at the time of
his request for two weeks of leave, his employer had any assurance that such leave “would allow
him to perform the essential functions of his job[,]” he failed to make a prima facie case that his
requested accommodation was reasonable. See Graves II, 353 F. App’x at 560–61; see also Jarrell
v. Hosp. for Special Care, 626 F. App’x 308, 312 (2d Cir. 2015) (summary order) (“[T]he
accommodation [plaintiff] sought was in essence an indeterminate period of leave and . . . such
accommodation would be unreasonable.”); Parker v. Columbia Pictures Indus., 204 F.3d 326, 338
(2d Cir. 2000) (“The duty to make reasonable accommodations does not, of course, require an
employer to hold an injured employee’s position open indefinitely . . . however, an employee who
proposes an accommodation while still on short-term leave . . . triggers a responsibility on the

employer’s part to investigate that request and determine its feasibility.”); Mitchell v.
Washingtonville Cent. Sch. Dist., 190 F.3d 1, 9 (2d Cir. 1999) (concluding that employer had no
obligation to grant employee indefinite leave of absence). Notably, when the Second Circuit has
addressed this issue, it has done so on summary judgment. See Jarrell, 626 F. App’x at 309;
Petrone, 568 F. App’x at 6; Graves II, 353 F. App’x at 559; Graves I, 457 F.3d at 183; Parker,
204 F.3d at 330; Mitchell, 190 F.3d at 2. These cases do not set forth a pleading requirement for a
plaintiff who claims failure to accommodate based on an employer’s denial of a leave of absence.
In this case, Robles has sufficiently alleged that an additional leave of absence would have
been a reasonable accommodation that would have enabled him to perform the essential functions
of his job.7 Robles alleges that an additional period of leave—which would have lasted for “a

definite period of time”—would have allowed him to treat his symptoms, which, in turn, “would
have enabled him to return to work and perform the essential functions of his job.” FAC ¶¶ 54–
55. The Second Circuit has observed that precisely this set of facts may demonstrate that a leave
of absence is a reasonable accommodation. See Graves I, 457 F.3d at 186 n.6 (citing cases) (“We
note that courts considering this question have concluded that a leave of absence may be a
reasonable accommodation where it is finite and will be reasonably likely to enable the employee
to return to work.”). In addition, Robles alleges that he took one week of leave in May 2018 to

7 The Hospital does not challenge what, precisely, those essential functions were.
treat his bipolar disorder. See FAC ¶¶ 23–24. Subsequently, he “was able to perform the essential
functions of his job” until the October 27, 2018 exacerbation of his symptoms. Id. ¶ 21. These
allegations allow me to infer both that an additional period of leave would have again enabled
Robles to treat his symptoms and return to work and that such a period of leave could plausibly
have been relatively brief—one week, or approximately two weeks when combined with the leave

that he had already taken from October 27 until November 5, 2018. See Graves I, 457 F.3d at 185–
86, 186 n.6 (indicating, without holding, that finite period of leave lasting two weeks could
constitute reasonable accommodation). Therefore, Robles has sufficiently alleged that, with a
reasonable accommodation, he could have performed the essential functions of his job.
ii. Because he alleged that the Hospital knew or should have known that
he had a disability, and that it declined to engage in the interactive
process with him, the plaintiff has plausibly alleged that the Hospital
refused to make a reasonable accommodation.

The remaining elements of the failure to accommodate claim are that the employer must
have had notice of the employee’s disability, and the employer must have refused to make a
reasonable accommodation. See Jordan, 928 F. Supp. 2d at 608 (citing Conley, 88 F. Supp. 2d at
18). “[G]enerally, it is the responsibility of the individual with a disability to inform the employer
that an accommodation is needed.” Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 135 (2d Cir.
2008) (alteration in original) (quoting Graves I, 457 F.3d at 184). However, “an employer has a
duty reasonably to accommodate an employee’s disability if the disability is obvious—which is to
say, if the employer knew or reasonably should have known that the employee was disabled.” Id.;
see Hensel v. City of Utica, 6:15-CV-0374 (LEK/TWD), 2020 WL 1451579, at *10 n.13
(N.D.N.Y. Mar. 25, 2020) (quoting Kho v. N.Y. and Presbyterian Hosp., 344 F. Supp. 3d 705, 721
(S.D.N.Y. 2018)) (“Although some courts have stated categorically that ‘an employer cannot be
liable for failing to provide an accommodation that was never requested,’ . . . under Brady, this
does not appear to be correct[.]”). When an employer knew or reasonably should have known that
an employee was disabled, its obligation was to “engage in the . . . interactive process”—that is,
to work with the employee “to assess whether [the] employee’s disability can be reasonably
accommodated.” Brady, 531 F.3d at 135–36 (quoting Jackan v. N.Y. State Dep’t of Labor, 205
F.3d 562, 566 (2d Cir. 2000)).8 “To trigger the duty to engage in the interactive accommodations

process, the employer must have known, or have had sufficient notice such that the employer
reasonably should have known, that the employee has a disability within the meaning of the
[statute], as opposed to a mere impairment.” Costabile, 951 F.3d at 81 (citing Brady, 531 F.3d at
134 in case arising under Rehabilitation Act, which implicates same failure to accommodate
standard as does the ADA).
In this case, Robles adequately alleges that the Hospital knew, or reasonably should have
known, that he had a disability within the meaning of the ADA. Robles alleges that the Hospital
knew about his bipolar disorder as early as May 2018, when it granted him time off for treatment.
See FAC ¶¶ 23–24. On October 27, 2018, Robles requested leave again, and the Hospital granted

him leave until November 5, 2018. See id. ¶¶ 30–31. During that leave, Robles experienced severe
symptoms of his bipolar disorder that, as discussed above, plausibly would have substantially
limited his major life activities of concentrating, breathing, and brain function. See id. ¶¶ 34–36.

8 It is true that, as the Hospital argues, an employer’s failure to engage in this interactive process,
without more, is not an independent cause of action under the ADA. See McBride, 583 F.3d at 99–
101; Def.’s Br. 11 n.13. However, the Second Circuit has held that “an employer’s failure to
engage in a sufficient interactive process does not form the basis of a claim under the ADA . . .
unless [a plaintiff] also establishes that, at least with the aid of some identified accommodation,
[the plaintiff] was qualified for the position at issue.” Id. at 101. Therefore, the failure of an
employer—who knew or reasonably should have known about an employee’s disability—to
engage in the interactive process is a proper basis for an ADA failure to accommodate claim when,
as alleged here, there was a reasonable accommodation that would have enabled the employee to
perform the essential functions of his job. See id. at 100.
After Robles “suffered a mental breakdown and was found lying in the street[,]” he received
treatment for his bipolar disorder and other conditions at the Hospital. Id. ¶¶ 36–37. Medical staff
members who treated Robles either shared his records with Robles’s supervisors or informed his
supervisors that Robles was hospitalized. See id. ¶ 44. The Hospital then fired Robles. See id. ¶
45. These allegations enable me to draw the reasonable inference that the Hospital, in its capacity

as Robles’s employer, knew that he was receiving treatment for his bipolar disorder at the time of
his termination. It is also plausible that the Hospital knew that the symptoms of Robles’s bipolar
disorder substantially limited several of his major life activities, as presumably Robles’s medical
records would have contained details about the circumstances surrounding his mental breakdown
and his difficulties breathing and concentrating. Cf. Costabile, 951 F.3d at 82 (concluding that
allegation that defendants knew that plaintiff was on disability leave for injuries, without more,
was not plausible allegation that defendants had notice that those injuries constituted a disability
as statutorily defined).
Accordingly, the Hospital had an obligation to engage in the interactive process with

Robles, and Robles has plausibly alleged that it did not engage in such a process. Robles alleges
that on the day that the Hospital had scheduled him to return to work, it fired him. See FAC ¶¶ 31,
45. Robles asked to speak to his supervisors “to explain his condition and the events that
occurred[,]” but the human resources representative “refused to give [him] permission to speak to
anyone else regarding his termination, his condition, or events associated with his hospitalization.”
Id. ¶¶ 50–51. The Hospital did not “attempt[] to engage with [Robles] to determine if he could be
accommodated[.]” Id. ¶ 53. The Hospital went so far as to send Robles a letter “stating that he
would be arrested if he was found on the premises of Jamaica Hospital.” Id. ¶ 52. These facts
provide a plausible basis on which I can conclude that the Hospital failed to engage in the
interactive process with Robles—as it was obligated to do once it knew, or reasonably should have
known, that Robles had a disability—in order to determine whether it could provide him with a
reasonable accommodation. Therefore, Robles has stated a claim for failure to accommodate in
violation of the ADA.
D. The ADA retaliation, interference, coercion, and intimidation claims are
dismissed.

Under the ADA, “[n]o person shall discriminate against any individual because such
individual has opposed any act or practice made unlawful by this chapter or because such
individual made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a) (proscribing retaliation). In
addition, the ADA makes it “unlawful to coerce, intimidate, threaten, or interfere with any
individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed,
. . . any right granted or protected by this chapter.” Id. § 12203(b). I will first address why Robles
has failed to state a claim for ADA retaliation. I will then address why Robles has failed to state a
claim for ADA interference, coercion, or intimidation.
i. The plaintiff has failed to state a claim for ADA retaliation because he
has not plausibly alleged that he engaged in an ADA-protected activity
with any causal connection to an adverse employment action.

To state a claim for ADA retaliation, “a plaintiff must allege that: ‘(1)[ ]he engaged in an
activity protected by the ADA; (2) the employer was aware of this activity; (3) the employer took
an adverse employment action against [him]; and (4) a causal connection exists between the
alleged adverse action and the protected activity.’” Caskey, 560 F. App’x at 58 (quoting Treglia v.
Town of Manilus, 313 F.3d 713, 719 (2d Cir. 2002)); Schiavone v. N.Y. State Office of Rent Admin.,
No. 18-cv-130 (NSR), 2018 WL 5777029, at *5 (S.D.N.Y. Nov. 2, 2018) (quoting Sarno v.
Douglas Elliman–Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999)). At the evidentiary
stage, courts analyze ADA retaliation claims “under the same burden-shifting framework
established for Title VII cases.” Treglia, 313 F.3d at 719. Regarding the first element of the
retaliation claim, “[a] plaintiff engages in a ‘protected activity’ under the ADA if []he ‘has opposed
any act or practice made unlawful by this chapter’ or has ‘made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding , or hearing under this chapter.’” Clark

v. Jewish Childcare Ass’n, Inc., 96 F. Supp. 3d 237, 261 (S.D.N.Y. 2015) (quoting 42 U.S.C. §
12203(a)). “[R]equesting a reasonable accommodation of a disability is an ADA protected
activity.” Id. at 262 (quoting Rodriguez v. Atria Senior Living Grp., Inc., 887 F. Supp. 2d 503, 512
(S.D.N.Y. 2012)). Thus, in some cases, an employer’s termination in response to an employee’s
request for a reasonable accommodation may constitute retaliation. See id. However, an
employer’s mere failure to make an accommodation subsequent to an employee’s request simply
gives rise to a failure to accommodate claim and “cannot be bootstrapped into a viable disability
retaliation claim.” Missick v. City of New York, 707 F. Supp. 2d 336, 356 (E.D.N.Y. 2010).
In this case, Robles’s alleged request for leave is not a plausible ADA-protected activity.

Robles alleges that he requested leave on October 27, 2018. FAC ¶ 30. However, the First
Amended Complaint describes this leave as “FMLA leave” and not as an accommodation under
the ADA. Id. Nor does Robles allege sufficient facts to allow me to conclude that this leave could
have constituted an accommodation of a disability under the ADA, as many of the facts that
enabled me to infer that he has a disability—namely, his inability to concentrate, difficulty
breathing, and mental breakdown—did not arise until after October 27. See id. at ¶¶ 34, 36.
Therefore, Robles does not allege that his request for leave on October 27 was a request for a
reasonable accommodation of a disability or any other ADA-protected activity.
Robles does allege that, after the Hospital’s human resources representative fired him on
November 5, he asked for more information and to speak to his supervisors. See FAC ¶¶ 45–46,
50. At most, Robles thereby alleges that he pressed the Hospital to engage in the interactive process
with him. However, even assuming that having one’s employer agree to engage in the interactive
process is an ADA-protected activity, there is no plausible causal connection between any adverse
employment action and that activity, as the Hospital had already terminated Robles when he

attempted to engage in the interactive process. See Caskey, 560 F. App’x at 58 (quoting Treglia,
313 F.3d at 719); FAC ¶¶ 45–46, 50–51. Further, although Robles does allege that he received a
letter from the Hospital “stating that he would be arrested if he was found on the premises of
Jamaica Hospital[,]” he does not allege how, if at all, this letter constituted an adverse employment
action, as the Hospital no longer employed him at that point. FAC ¶¶ 45, 52; see Caskey, 560 F.
App’x at 58 (quoting Treglia, 313 F.3d at 719). Robles’s allegations related to the Hospital’s
failure to engage in the interactive process simply amount to a claim for failure to accommodate
and not for retaliation.
Thus, Robles has failed to state a claim for ADA retaliation. Accordingly, I dismiss this

claim without prejudice. I will further discuss the possibility of Robles’s amending this claim,
along with the others that I dismiss, at the conclusion of this opinion.
ii. Because the plaintiff has not plausibly alleged that the Hospital
interfered with, coerced, intimidated, or threatened him in connection
with his exercise of any ADA-protected right, he has failed to state a
claim for ADA interference, coercion, or intimidation.

Under the ADA, “[i]t shall be unlawful to coerce, intimidate, threaten, or interfere with any
individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed,
. . . any right granted or protected by this chapter.” 42 U.S.C. § 12203(b). “Neither the Supreme
Court nor the Second Circuit has yet outlined a legal test for an interference claim under the ADA.”
E.E.O.C. v. Day & Zimmerman NPS, Inc., 265 F. Supp. 3d 179, 204 (D. Conn. 2017). The plain
terms of § 12203(b) “preclude a party from intimidating or coercing another party not to exercise
his rights under the ADA, as well as barring interference against a person who has exercised his
rights under the ADA.” Id. (quoting Breimhorst v. Educ. Testing Serv., No. C–99–CV–3387, 2000
WL 34510621, at *7 (N.D. Cal. Mar. 27, 2000)). Further, some “courts have noted that the ADA’s
anti-interference provision is similar to a provision in the National Labor Relations Act, 29 U.S.C.

§ 158 (the ‘NLRA’)” and have looked to interpretations of the NLRA as “useful guide[s] to
interpreting similar language in the ADA, as both [statutes] are part of a wider statutory scheme to
protect employees in the workplace nationwide.” Day & Zimmerman NPS, Inc., 265 F. Supp. 3d
at 204–05 (quoting Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 570 (3d Cir. 2002)). “The
Second Circuit has found that an employer’s conduct violates the NLRA’s prohibition on
interference ‘if, under all the existing circumstances, the conduct has a reasonable tendency to
coerce or intimidate employees, regardless of whether they are actually coerced.’” Id. at 205
(quoting N.Y. Univ. Med. Ctr. v. N.L.R.B., 156 F.3d 405, 410 (2d Cir. 1998)). This test is objective;
still, the “subjective impact” of the employer’s action on the employee is relevant, just not

dispositive. Id. (citing Jantz v. Emblem Health, No. 10 Civ. 6076 (PKC), 2012 WL 370297, at *15
(S.D.N.Y. Feb. 6, 2012)).
Here, Robles has alleged no plausible basis for an interference, coercion, or intimidation
claim. The ADA forbids interference, coercion, or intimidation based on an individual’s exercise
of his rights “protected by this chapter.” 42 U.S.C. § 12203(b). As discussed, Robles has not
alleged that the leave that he requested on October 27, 2018 was an ADA-protected right. See FAC
¶ 30. Even if this requested leave were an ADA-protected right, the Hospital granted Robles’s
request, and therefore did not “coerce, intimidate, [or] threaten” him on account of his having
exercised that right, nor did it “interfere with” his exercise of that right. § 12203(b). In addition,
Robles’s termination on November 5 could not have plausibly constituted interference, coercion,
or intimidation. See FAC ¶ 45. As discussed, even assuming that Robles did exercise some ADA-
protected right by attempting to engage in the interactive process, the Hospital fired him before he
tried to initiate that process. See id. ¶¶ 45–46, 50–51. The Hospital’s failure to engage in the
interactive process simply constitutes the basis for a failure to accommodate claim, and not for an

interference, coercion, or intimidation claim. Finally, the letter that Robles received stating that
the Hospital would have him arrested if he returned to the Hospital’s premises is also not a
plausible basis for an interference, coercion, or intimidation claim. See id. ¶ 52. Robles has not
alleged any facts to support the conclusion that the Hospital sent this letter “on account of” his
having attempted to engage in the interactive process. § 12203(b). Rather, the facts alleged support
the plausible conclusion that the Hospital sought to ban him from its property because of the
“verbal altercation” in which he engaged with the nurse. FAC ¶ 43. Nor is it clear how, if at all,
this alleged letter would have the “reasonable tendency to coerce or intimidate” someone with
respect to the exercise of an ADA-protected right in the future—say, filing a complaint with the

EEOC or in a civil lawsuit—as Robles has not alleged why he would need to return to the premises
of Jamaica Hospital in order to exercise such a right. Day & Zimmerman NPS, Inc., 265 F. Supp.
3d at 205 (quoting N.Y. Univ. Med. Ctr., 156 F.3d at 410).
Therefore, Robles has failed to state a claim for ADA interference, coercion, or
intimidation, and this claim is dismissed without prejudice. To summarize thus far, the ADA
discrimination and failure to accommodate claims are not dismissed. The ADA retaliation,
interference, coercion, and intimidation claims are dismissed without prejudice.
II. The FMLA claims are dismissed.
Under the FMLA, “an eligible employee shall be entitled to a total of 12 workweeks of
leave during any 12-month period for” any of several qualifying reasons, including “to care for the
spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has
a serious health condition” and “[b]ecause of a serious health condition that makes the employee
unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(C)–
(D). “There are four principal facets to the scope of the Act: (1) the employers to which it applies,

(2) the employees who are eligible for FMLA leave, (3) the personal or family relationship in
question, and (4) the qualifying reasons for the requested leave.” Coutard v. Mun. Credit Union,
848 F.3d 102, 108 (2d Cir. 2017).
The FMLA makes it “unlawful for any employer to interfere with, restrain, or deny the
exercise of or the attempt to exercise, any right provided under this subchapter.” 29 U.S.C. §
2615(a)(1). The FMLA also makes it “unlawful for any employer to discharge or in any other
manner discriminate against any individual for opposing any practice made unlawful by this
subchapter.” § 2615(a)(2). “In the Second Circuit, these prohibitions give rise to two distinct types
of FMLA claims: interference claims and retaliation claims.” Seitz v. New York, No. 2:18-CV-

4149 (PKC) (LB), 2019 WL 4805257, at *9 (E.D.N.Y. Sept. 30, 2019) (citing Potenza v. City of
New York, 365 F.3d 165, 168 (2d Cir. 2004) (per curiam)); see Woods v. START Treatment &
Recovery Ctrs., Inc., 864 F.3d 158, 167 (2d Cir. 2017). I will first address why Robles has failed
to state a claim for FMLA interference. I will then address why he has failed to state a claim for
FMLA retaliation.
A. The plaintiff has failed to state a claim for FMLA interference.

To show FMLA interference, a plaintiff must show: “1) that [plaintiff] is an eligible
employee under the FMLA; 2) that the defendant is an employer as defined by the FMLA; 3) that
[plaintiff] was entitled to take leave under the FMLA; 4) that [plaintiff] gave notice to the
defendant of [plaintiff’s] intention to take leave; and 5) that [plaintiff] was denied benefits to which
[plaintiff] was entitled under the FMLA.” Coutard, 848 F.3d at 108–09 (quoting Graziadio v.
Culinary Inst. of Am., 817 F.3d 415, 424 (2d Cir. 2016)); see Seitz, 2019 WL 4805257, at *10
(quoting Graziadio, 817 F.3d at 424 and listing same elements on a motion to dismiss); De
Figueroa v. New York, 403 F. Supp. 3d 133, 155 (E.D.N.Y. 2019) (same).

i. The plaintiff has not adequately alleged that he was an eligible
employee, or that the Hospital is an employer, as defined by the FMLA.

The FMLA defines an “eligible employee” as “an employee who has been employed” both
“for at least 12 months by the employer” and “for at least 1,250 hours of service with such
employer during the previous 12-month period.” 29 U.S.C. § 2611(2)(A); 29 C.F.R. § 825.110(a);
Coutard, 848 F.3d at 108 (citing the same). “The determination of whether an employee meets the
hours of service requirement and has been employed by the employer for a total of at least 12
months must be made as of the date the FMLA leave is to start.” 29 C.F.R. § 825.110(d). The
FMLA defines an “employer” as “any person engaged in commerce or in any industry or activity
affecting commerce who employs 50 or more employees for each working day during each of 20
or more calendar workweeks in the current or preceding calendar year[.]” 29 U.S.C. §
2611(4)(A)(i); 29 C.F.R. § 825.104(a).
Robles has not adequately alleged that he was an eligible employee under the FMLA.
Robles alleges that he was employed on a full-time, permanent basis from April 2017 until
November 5, 2018. See FAC ¶¶ 8–9, 16, 22. He also makes the conclusory assertion that he was
an “eligible employee” under the FMLA. Id. ¶ 80. Robles does not make any specific allegations
regarding his hours, other than to assert that he worked “full-time[.]” Id. ¶ 8. While Robles’s factual
allegations allow me to conclude that he was employed for at least twelve months, they do not
allow me to conclude that he was employed for at least 1,250 hours of service during the twelve
months prior to when any particular period of FMLA leave were to start. See 29 U.S.C. §
2611(2)(A); 29 C.F.R. § 825.110(a); Brown v. Omega Moulding Co. Ltd., No. 13–CV–5397 (SJF)
(ARL), 2014 WL 4439530, at *4 (E.D.N.Y. Sept. 9, 2014) (dismissing FMLA claim for failure to
state a claim when plaintiff made no factual allegations that enabled court to reasonably infer that
plaintiff worked for more than 1,250 hours in the twelve months prior to date on which plaintiff

first sought FMLA leave).
Robles also does not adequately allege that the Hospital was an FMLA-covered employer.
Robles alleges that the Hospital “employs over 50 individuals on a full-time or full-time equivalent
basis and thus is subject to all statutes upon which Plaintiff is proceeding herein.” FAC ¶ 10. He
also makes the conclusory allegations that the Hospital is an “employer” within the meaning of
the FMLA. Id. ¶¶ 12, 80. He does not allege that the Hospital employs its more than fifty employees
“for each working day during each of 20 or more calendar workweeks in the current or preceding
calendar year[.]” 29 U.S.C. § 2611(4)(A)(i); 29 C.F.R. § 825.104(a).
Thus, Robles has failed to adequately allege that he is an eligible employee, or that the

Hospital is an employer, within the meaning of the FMLA. I anticipate that Robles can easily
address these shortcomings in a second amendment to the complaint. However, it would be
fruitless for him to make such amendments only for his claim to fail at another element. Therefore,
rather than ending my analysis here, I will proceed to discuss the additional reasons why, as
alleged, Robles’s FMLA interference claim is inadequate.
ii. Because the plaintiff has not pled sufficient facts to support the
inference that he had a serious health condition that made him unable
to perform the functions of his position, he has not plausibly alleged
that he was entitled to FMLA leave.

The FMLA entitles employees to leave for various qualifying reasons, including, in
relevant part, “to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse,
son, daughter, or parent has a serious health condition” and “[b]ecause of a serious health condition
that makes the employee unable to perform the functions of the position of such employee.” 29
U.S.C. § 2612(a)(1)(C)–(D). Here, Robles does not claim that he sought leave to care for a family
member; rather, he sought leave to cope with the trauma that he experienced because of the death
of his girlfriend’s daughter. See § 2612(a)(1)(C); FAC ¶¶ 26, 28–30. Accordingly, Robles argues

that he was entitled to FMLA leave because of his own “serious health condition that ma[de him]
unable to perform the functions of [his] position.” § 2612(a)(1)(D); see Pl.’s Br. 14–15.
The FMLA defines a “serious health condition” as “an illness, injury, impairment, or
physical or mental condition that involves . . . inpatient care in a hospital, hospice, or residential
medical care facility; or . . . continuing treatment by a health care provider.” § 2611(11); 29 C.F.R.
§ 825.113(a); see Pollard v. N.Y. Methodist Hosp., 861 F.3d 374, 379 (2d Cir. 2017) (citing FMLA
and this Department of Labor regulation). According to Department of Labor regulations,
“[i]npatient care means an overnight stay in a hospital, hospice, or residential medical care facility,
including any period of incapacity as defined in § 825.113(b), or any subsequent treatment in

connection with such inpatient care.” 29 C.F.R. § 825.114. “[I]ncapacity means inability to work,
attend school or perform other regular daily activities due to the serious health condition, treatment
therefore, or recovery therefrom.” Id. § 825.113(b).
A “serious health condition” that “involves . . . continuing treatment by a health care
provider,” 29 U.S.C. § 2611(11)(B), includes “[a] period of incapacity of more than three
consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to
the same condition,” 29 C.F.R. § 825.115(a). Such a period of incapacity must also “involve[] . . .
[t]reatment two or more times, within 30 days of the first day of incapacity, unless extenuating
circumstances exist,” or “[t]reatment by a health care provider on at least one occasion, which
results in a regimen of continuing treatment under the supervision of the health care provider.” Id.
§ 825.115(a)(1)–(2). Alternatively, a “serious health condition” that involves “continuing
treatment by a health care provider” includes a “period of incapacity or treatment for such
incapacity due to a chronic serious health condition[,]” which itself is defined in detail in the
pertinent regulation. Id. § 825.115(c). It also includes a “period of absence to receive multiple

treatments (including any period of recovery therefrom) . . . for . . . [a] condition that would likely
result in a period of incapacity of more than three consecutive, full calendar days in the absence of
medical intervention or treatment[.]” Id. § 825.115(e). In sum, in order to constitute a “serious
health condition” under the FMLA, Robles’s health condition must have necessitated either
“inpatient care” or “continuing treatment by a health care provider” as defined in detail in the
regulations. 29 U.S.C. § 2611(11); see Pollard, 861 F.3d at 379–81 (relying on Department of
Labor regulations in its analysis).
Robles has not alleged sufficient facts to allow me to infer that, at the times that he allegedly
took or wanted to take FMLA leave, he was entitled to such leave. First, despite its conclusory

allegation that the leave that Robles requested on October 27, 2018 “qualified as FMLA leave[,]”
the First Amended Complaint does not set forth any facts that make it plausible that Robles had a
serious health condition at that time. FAC ¶ 30. Robles alleges merely that, on October 27, he
experienced “severe mental health symptoms associated with depression, anxiety, and bi-polar
disorder.” Id. ¶ 29. He does not allege any facts to support the conclusion that he received inpatient
care—meaning “an overnight stay in a hospital, hospice, or residential medical care facility” or
“any subsequent treatment in connection with” such a stay—at that time. 29 C.F.R. § 825.114. He
also does not allege sufficient facts to make it plausible that he was receiving continuing treatment
by a health care provider on October 27. Although it is plausible that he experienced “[a] period
of incapacity”—in this case, an inability to work because of his health condition, 29 C.F.R. §
825.113(b)—lasting more than three consecutive days, he has alleged no facts to support the
inference that he was receiving any kind of treatment, id. § 825.115(a); FAC ¶¶ 29–31; see also
29 C.F.R. § 825.115(e). Robles also does not adequately allege that, on October 27, his condition
was “[c]hronic,” as at that point he had undergone treatment only once in 2018. 29 C.F.R. §

825.115(c)(1) (defining “[c]hronic serious health condition” as one that requires visits at least
twice per year for treatment); see FAC ¶ 23. And, even if Robles had plausibly alleged that he was
entitled to FMLA leave on October 27, he could not state a plausible FMLA interference claim
based on his request for leave on that date because the Hospital granted the request. See Coutard,
848 F.3d at 109 (quoting Graziadio, 817 F.3d at 424) (listing as necessary element of FMLA
interference claim that plaintiff must have been denied benefits to which he was entitled); FAC ¶
31.
Second, Robles has not adequately alleged that he was entitled to FMLA leave on
November 5, 2018. In order to be so entitled, Robles must have had a “serious health condition”

that made him “unable to perform the functions of [his] position[.]” 29 U.S.C. § 2612(a)(1)(D).
Here, I find it plausible that Robles had a serious health condition. Robles alleges that he stayed
overnight at the Hospital from November 3 until November 4. See FAC ¶¶ 36–37. He also alleges
that, with additional leave beginning on November 5, he “would have been able to treat the
symptoms of his mental health conditions” and that he needed a definite period of leave “to obtain
the necessary treatment for stabilizing his condition[.]” Id. ¶¶ 54–55. In fact, he “was subsequently
readmitted to Jamaica Hospital for treatment.” Id. ¶ 56. Therefore, it is plausible that Robles
needed “subsequent treatment in connection with . . . inpatient care.” 29 C.F.R. § 825.114.9

9 I do not find it plausible that the “subsequent[]” readmission to the Hospital itself could have
Alternatively, it is plausible that Robles needed “treatment for [an] incapacity due to a chronic
serious health condition[,]” as, by November 5, he had had two visits for treatment for his bipolar
disorder, his bipolar disorder could plausibly have continued “over an extended period of time[,]”
and the symptoms of his bipolar disorder were seemingly “episodic[.]” Id. § 825.115(c); see FAC
¶¶ 21, 23, 29, 34–37.

However, Robles has alleged no facts that give rise to the inference that he was “unable to
perform the functions of [his] position” on November 5. Rather, he makes the conclusory
allegation that, if the Hospital had granted him additional leave, the treatment that he would have
sought “would have enabled him to return to work and perform the essential functions of his job.”
FAC ¶ 54. This allegation provides no factual support for the inference that, on November 5, he
could not perform the functions of his position. The fact that Robles needed additional treatment
does not suffice; it is equally as possible that Robles could have undergone such treatment while
still fully performing the functions of his job as it is that he could not have. See Iqbal, 556 U.S. at
678 (citing Twombly, 550 U.S. at 556) (“The plausibility standard . . . asks for more than a sheer

possibility that a defendant has acted unlawfully.”). Therefore, Robles has not plausibly alleged
that he was entitled to FMLA leave at any time relevant to the FMLA interference claim.
iii. The plaintiff has not plausibly alleged that the Hospital had notice of
his intention to take leave on November 5, 2018.

Next, in order for an employer to be liable for FMLA interference, it must have had notice
of the employee’s “intention to take leave[.]” Coutard, 848 F.3d at 109 (quoting Graziadio, 817
F.3d at 424). “When the approximate timing of the need for leave is not foreseeable, an employee

constituted a period of inpatient care that, standing alone, entitled Robles to FMLA leave on
November 5 because Robles does not allege that this readmission happened on November 5 or on
any other particular date. FAC ¶ 56.
must provide notice to the employer as soon as practicable under the facts and circumstances of
the particular case.” 29 C.F.R. § 825.303(a). This notice must “provide sufficient information for
an employer to reasonably determine whether the FMLA may apply to the leave request.
Depending on the situation, such information may include that . . . the employee . . . has been
hospitalized overnight[.]” Id. § 825.303(b); see Coutard, 848 F.3d at 111.

Here, Robles has not plausibly alleged that the Hospital had the requisite notice of his
intention to take FMLA leave on November 5, 2018. First, he has not alleged that, when he
requested leave on October 27, he in any way indicated that he intended for such leave to extend
beyond November 4. See FAC ¶¶ 30–31. Second, he has not adequately alleged that, on November
5, the Hospital had enough information “to reasonably determine whether the FMLA may apply
to [his] leave request.” 29 C.F.R. § 825.303(b); Coutard, 848 F.3d at 111. To begin with, Robles
does not allege that he made any “leave request” at all on November 5, or at any time between
October 27 and November 5. Rather, he told the human resources representative who fired him
“that his supervisors and co-workers knew that he requested leave because of the exa[cerbation]

of his mental health symptoms due to the death of his partner’s daughter.” FAC ¶ 48. Thus, Robles
alleges merely that he reminded the human resources representative that he had previously
requested leave—presumably referring to the October 27 request—and not that he then, on
November 5, was again requesting any additional leave.
Further, Robles does not allege that, absent any express request for leave, the Hospital had
enough information “to reasonably determine whether the FMLA may apply” to his circumstances.
29 C.F.R. § 825.303(b); Coutard, 848 F.3d at 111. Accepting as true Robles’s allegation that his
supervisors had access to his medical records or information about the medical care that he
received during his overnight hospitalization from November 3 to November 4, see FAC ¶ 44,
those supervisors plausibly would have known that he was hospitalized for one night and had
already been released on November 5. Thus, although “[d]epending on the situation,” the fact that
an employee was “hospitalized overnight” might enable an employer to reasonably determine
whether the FMLA applies, Robles’s was not plausibly such a situation, as he has alleged no facts
to support the conclusion that the Hospital should have realized that his November 3–4

hospitalization somehow necessitated additional leave beginning on November 5. 29 C.F.R. §
825.303(b). For example, Robles does not allege that the medical records to which his supervisors
had access indicated that he would need time off for additional treatment after his release from the
Hospital or that he informed the human resources representative that he needed any such additional
treatment. See FAC ¶¶ 44–55, 62. Thus, Robles has not adequately alleged that the Hospital had
notice of his intention to take leave on November 5, 2018.
iv. The plaintiff has not plausibly alleged that the Hospital denied him
any benefit to which he was entitled under the FMLA.

A plaintiff claiming FMLA interference must show that he “was denied benefits to which
[he] was entitled under the FMLA.” Coutard, 848 F.3d at 109 (quoting Graziadio, 817 F.3d at
424). Here, Robles alleges that the Hospital granted the leave that he requested on October 27,
2018. See FAC ¶¶ 30–31. Thus, the Hospital did not plausibly deny him any benefit in connection
with that request. On November 5, 2018, the Hospital fired Robles. Id. ¶ 45. Having concluded
that Robles has not sufficiently alleged that the Hospital had notice of his need for additional leave,
I cannot reasonably infer that his termination constituted the denial of an FMLA benefit, as the
Hospital could not have denied him something that he never requested and that it did not know
that he needed. See Barletta v. Life Quality Motor Sales Inc., No. 13-CV-02480 (DLI) (ST), 2016
WL 4742276, at *6 (E.D.N.Y. Sept. 12, 2016) (“Defendants were not on notice that Plaintiff
planned to request additional leave for his health condition, and Plaintiff, therefore, cannot
establish that Defendants denied him benefits he never requested in the first place.”).
In his brief, Robles argues that the Hospital denied him an FMLA benefit because “before
he could finish [his] leave and return to work, he was terminated.” Pl.’s Br. 15. Accordingly, he
argues, the Hospital “interfered with Plaintiff’s full enjoyment of his leave.” Id. But Robles’s own
allegations show that he finished the leave that the Hospital granted him: on October 27, 2018, the

Hospital granted him leave until November 5. See FAC ¶¶ 30–31. On November 5—the first day
after his leave ended—the Hospital fired him. See id. ¶ 45. Thus, as alleged, the Hospital did not
interfere with Robles’s full enjoyment of his leave by firing him before he finished it, but rather it
fired him after he completed his leave.
Finally, Robles’s allegation that, “[u]pon information and belief,” the Hospital “never
informed [him] of his rights under the FMLA, including his right to medical FMLA leave” does
not change my analysis. Id. ¶¶ 65, 81. “Failure to notify an employee of FMLA procedures does
not, in and of itself, constitute an interference with the exercise of those rights.” Geromanos v.
Columbia Univ., 322 F. Supp. 2d 420, 430 (S.D.N.Y. 2004). That is, “the right to notice under the

[A]ct is not an independent right giving rise to suit where failure to notify in no way affected the
employee’s leave.” Id. (citing Sarno, 183 F.3d at 162). However, “the failure to provide notice that
inhibits or restricts an employee from successfully obtaining leave or the right to reinstatement
does result in a denial of benefits and can result in a cause of action for interference.” Fernandez
v. Windmill Distrib. Co., 159 F. Supp. 3d 351, 363 (S.D.N.Y. 2016) (citing Sarno, 183 F.3d at
162). Robles has not alleged how, if at all, the Hospital’s failure to notify him of his rights under
the FMLA inhibited him from obtaining leave.10 Therefore, Robles has not plausibly alleged that

10 In fact, it would be difficult for me to find such an allegation plausible, as Robles’s allegation
that the Hospital never informed him of his FMLA rights is made only “[u]pon information and
belief[.]” FAC ¶ 65. If Robles does not know whether or not the Hospital ever notified him of his
the Hospital denied him any benefit to which he was entitled under the FMLA, and he has failed
to state a claim for FMLA interference.
Accordingly, the FMLA interference claim is dismissed without prejudice.
B. The plaintiff has failed to state a claim for FMLA retaliation because he has not
adequately alleged that he exercised an FMLA-protected right or that the
Hospital acted with retaliatory intent.

Courts in this circuit analyze FMLA retaliation claims, at the evidentiary stage, under the
McDonnell Douglas burden-shifting framework. See Graziadio, 817 F.3d at 429 (citing Potenza,
365 F.3d at 168). In order for a plaintiff to establish a prima facie case in accordance with this
framework, he “must establish that 1) he exercised rights protected under the FMLA; 2) he was
qualified for his position; 3) he suffered an adverse employment action; and 4) the adverse
employment action occurred under circumstances giving rise to an inference of retaliatory intent.”
Id. (quoting Donnelly v. Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134, 147 (2d Cir. 2012)). A
plaintiff’s “initial burden of establishing a prima facie case . . . is ‘minimal.’” Serby v. N.Y.C. Dep’t
of Educ., No. 09–CV–2727 (RRM) (VVP), 2012 WL 928194, at *7 (quoting Schnabel v.
Abramson, 232 F.3d 83, 87 (2d Cir. 2000)). Further, a plaintiff does not need to “plead specific
facts establishing a prima facie case of [FMLA retaliation] in order to survive a motion to dismiss.”
Ziccarelli v. NYU Hosps. Ctr., 247 F. Supp. 3d 438, 448 (S.D.N.Y. 2017) (quoting Smith v.
Westchester County, 769 F. Supp. 2d 448, 469 (S.D.N.Y. 2011)). Rather, a plaintiff need only
plead “facts sufficient to state a claim to relief that is plausible on its face.” Id. (quoting Smith, 769
F. Supp. 2d at 469). Still, I may determine whether the plaintiff has stated a plausible claim by way
of reference to the elements of the prima facie case. See, e.g., Milne v. Navigant Consulting, No.

FMLA rights, it is not clear how he could plausibly claim that he was unable to obtain leave
because of this lack of notice.
08 Civ. 8964 (NRB), 2010 WL 4456853, at *10 (S.D.N.Y. Oct. 27, 2010). A plaintiff’s burden
with respect to the retaliatory intent element is particularly minimal at the pleading stage. See
Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015) (concluding that complaint
alleging Title VII discrimination claim—whose prima facie case has similar elements to that for
FMLA retaliation—“need only give plausible support to a minimal inference of discriminatory

motivation.”).
Here, Robles has not plausibly alleged that he exercised any FMLA-protected right against
which the Hospital could have retaliated. Robles argues that the Hospital retaliated against him for
“requesting and initiating FMLA leave” by firing him and threatening him with arrest. Pl.’s Br.
17; see FAC ¶¶ 30–31, 45, 52. Robles alleges that the leave that he took from October 27 through
November 4, 2018 was “FMLA leave[.]” FAC ¶¶ 30–31. However, if Robles had any right to leave
under the FMLA during this time period, the allegations allow me to conclude only that such a
right would have existed from November 3 until November 4. During those dates, Robles allegedly
underwent “[i]npatient care” at the Hospital, which, as discussed above, means that he had a

“serious health condition” within the meaning of the FMLA. 29 U.S.C. § 2611(11)(A); 29 C.F.R.
§ 825.114. Further, I can infer that Robles could not “perform the functions of [his] position”
during this hospitalization, as he was receiving treatment after having had a mental breakdown
that led to his collapsing in the street. 29 U.S.C. § 2612(a)(1)(D); see FAC ¶ 36. Thus, it is plausible
that Robles qualified for FMLA leave from November 3 until his release from the Hospital on
November 4.11 However, Robles does not allege that he exercised any FMLA-protected right to

11 This conclusion does not change my analysis in Section II.A.ii above, where, in considering the
FMLA interference claim, I analyzed whether Robles plausibly alleged that he was entitled to
FMLA leave and concluded that he did not. See Coutard, 848 F.3d at 109 (quoting Graziadio, 817
F.3d at 424). There, the ultimate question was whether the Hospital could plausibly have denied
Robles some benefit to which he was entitled under the FMLA. See id. Accordingly, I considered
leave at that time. Rather, he was already on the non-FMLA leave that the Hospital had granted
him on October 27, and he used that time off to receive treatment for his serious health condition.
Even assuming that Robles did exercise an FMLA-protected right simply by virtue of the
fact that his non-FMLA leave became FMLA-protected leave from November 3 to November 4, I
cannot reasonably infer that the Hospital retaliated against him for doing so. I reach this conclusion

notwithstanding the plaintiff’s minimal burden at the pleading stage. That is, I cannot draw even a
“minimal inference” of retaliatory intent. Littlejohn, 795 F.3d at 311; Serby, 2012 WL 928194, at
*7 (quoting Schnabel, 232 F.3d at 87). Again, Robles has not adequately alleged that, at the time
that he began his leave on October 27, he was entitled to leave under the FMLA. If he became so
entitled, it was on November 3–4, and, as alleged, only then. In order to infer that the Hospital
intended to retaliate against Robles for exercising an FMLA-protected right, I would have to
conclude that Robles’s supervisors granted him non-FMLA leave on October 27, subsequently
reviewed Robles’s medical records or otherwise learned the details of his November 3–4
hospitalization, see FAC ¶ 44, determined that the non-FMLA leave that it had already granted

him became FMLA-protected leave on those dates, and decided to fire him and threaten him with
arrest because of this transformation. This chain of inferences is purely speculative and borders on
nonsensical. It is true that, as Robles argues, “[t]emporal proximity between a plaintiff’s exercise
of rights created by [the] FMLA and adverse employment action can give rise to an inference of

whether Robles was entitled to FMLA leave at the only time that the Hospital could have denied
it to him—on November 5. Here, the ultimate question is whether the Hospital could plausibly
have retaliated against Robles for having exercised an FMLA-protected right. See Graziadio, 817
F.3d at 429 (quoting Donnelly, 691 F.3d at 147). In theory, Robles’s exercise of such a right could
have occurred at any time prior to the alleged retaliatory acts, which themselves occurred on
November 5 and thereafter. See FAC ¶¶ 45, 52. Thus, it is relevant here—and not with respect to
the FMLA interference claim above—whether Robles was entitled to FMLA leave on November
3–4.
retaliation.” Reilly v. Revlon, Inc., 620 F. Supp. 2d 524, 538 (S.D.N.Y. 2009); Pl.’s Br. 17.
However, in this case, it does not. In addition, even if Robles had alleged that he in some way
requested additional leave on November 5—which he has not—the Hospital could not plausibly
have fired him in retaliation, as the human resources representative told him that he was fired
before Robles even mentioned his health condition or the fact that he had previously requested

leave. See FAC ¶¶ 45–51.
Thus, Robles has failed to state a claim for FMLA retaliation, and it is dismissed without
prejudice along with his FMLA interference claim.
III. The plaintiff’s NYSHRL claims for discrimination and failure to accommodate
survive, and his NYSHRL claim for retaliation is dismissed as against the
Hospital, because I analyze these claims under the same standards as under the
ADA.

New York state statutory law makes it unlawful for an employer, “because of an
individual’s . . . disability, . . . to discharge from employment such individual or to discriminate
against such individual in compensation or in terms, conditions or privileges of employment.”
NYSHRL § 296(1)(a). This state statute also makes it “an unlawful discriminatory practice for [an
employer] to retaliate or discriminate against any person because he or she has opposed any
practices forbidden under this article or because he or she has filed a complaint, testified or assisted
in any proceeding under this article.” Id. § 296(7). The standards for analyzing disability
discrimination, failure to accommodate, and retaliation claims under the NYSHRL are the same
as the corresponding standards under the ADA. See Graves I, 457 F.3d at 184 n.3 (citing Parker,
204 F.3d at 332 n.1) (disability discrimination); Moore v. City of New York, No. 15-CV-6600
(GBD) (JLC), 2017 WL 35450, at *21 (S.D.N.Y. Jan. 3, 2017) (same), report and recommendation
adopted by 2017 WL 1064714 (S.D.N.Y. Mar. 20, 2017); Lebowitz v. N.Y.C. Dep’t of Educ., 407
F. Supp. 3d 158, 175–76 (E.D.N.Y. Mar. 31, 2017) (failure to accommodate); Lewis v. Erie Cty.
Med. Ctr. Corp., 907 F. Supp. 2d 336, 352 (W.D.N.Y. 2012) (same); Hong Yin v. N. Shore LIJ
Health Sys., 20 F. Supp. 3d 359, 374 (E.D.N.Y. 2014) (retaliation). Therefore, Robles’s claims for
disability discrimination and failure to accommodate under the NYSHRL survive, and his claim
for retaliation in violation of the NYSHRL, as against the Hospital, is dismissed without prejudice.
IV. The plaintiff’s NYCHRL discrimination and retaliation claims survive because
the NYCHRL sweeps more broadly than does the ADA.

The NYCHRL makes it unlawful “[f]or an employer . . . because of the . . . disability . . .
of any person . . . [t]o discriminate against such person in compensation or in terms, conditions or
privileges of employment.” NYCHRL § 8-107(1)(a)(3). “In contrast to NYSHRL claims, claims
under the NYCHRL must be analyzed separately from federal and state law discrimination
claims.” Szewczyk v. Saakian, 774 F. App’x 37, 38 (2d Cir. 2019) (summary order) (citing Velazco
v. Columbus Citizens Found., 778 F.3d 409, 411 (2d Cir. 2015)). “[T]he NYCHRL has a more
liberal pleading standard than its federal or state counterparts,” but, still, it “is not a general civility
code.” Id. (quoting Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 113 (2d Cir.
2013)).
In order “to ‘state a claim for discrimination under the NYCHRL, a plaintiff must only
show differential treatment of any degree based on a discriminatory motive.’” Mauze v. CBS Corp.,
340 F. Supp. 3d 186, 209 (E.D.N.Y. 2018) (quoting Thomson v. Odyssey House, No. 14–CV–3857
(MKB), 2015 WL 5561209, at *24 (E.D.N.Y. Sept. 21, 2015), aff’d, 652 F. App’x 44 (2d Cir.
2016) (summary order)). However, “[e]ven under this more liberal pleading standard, a plaintiff

must plausibly allege that []he was subjected to unequal treatment because of [his] protected
characteristic.” Id. (quoting Thomson, 2015 WL 5561209, at *24).
Here, Robles alleges that the Hospital fired him, refused to allow him to speak to anyone
besides the human resources representative to explain his medical condition, and subsequently
threatened to arrest him if he returned to the premises. See FAC ¶¶ 45–52. The Hospital, in its
capacity as Robles’s employer, knew about Robles’s bipolar disorder when it engaged in these
acts. See id. ¶¶ 24, 36, 44, 48–49. Thus, Robles has adequately alleged that the Hospital treated
him poorly because of his disability. Although Robles does not explicitly allege that the Hospital
treated other employees—without disabilities—better than it treated him, I can infer as much,

especially given the NYCHRL’s liberal pleading standard. Therefore, he has stated a claim for
discrimination in violation of the NYCHRL.
In addition, the NYCHRL retaliation claim is broader than the ADA retaliation claim. See
Chauca v. Advantagecare Physicians, P.C., No. 18-cv-2516 (BMC), 2019 WL 4247495, at *7
(E.D.N.Y. Sept. 6, 2019) (citing Mihalik, 715 F.3d at 109, 112). “[T]o prevail on a retaliation claim
under the NYCHRL, the plaintiff must show that []he took an action opposing [his] employer’s
discrimination, and that, as a result, the employer engaged in conduct that was reasonably likely
to deter a person from engaging in such action.” Id. (alteration in original) (quoting Mihalik, 715
F.3d at 112).

Here, Robles alleges that the Hospital terminated him, which plausibly could have
constituted discrimination. See FAC ¶ 45. In response to his termination, Robles asked for an
explanation and to speak with his supervisors. See id. ¶¶ 46, 50. It is plausible that Robles’s asking
these questions constituted actions opposing the Hospital’s discrimination. The human resources
representative refused to allow him to speak with his supervisors, and the Hospital later threatened
to have him arrested if he returned to the premises. See id. ¶¶ 51, 52. It is plausible that this conduct
was reasonably likely to deter an employee from questioning his termination. Robles’s allegations
are minimal, but, given the NYCHRL’s broad sweep, I conclude that he states a claim.
Therefore, Robles has stated claims for NYCHRL discrimination and retaliation, and these
claims survive.
V. The breach of fiduciary duty claim is dismissed as against the Hospital because
the plaintiff did not adequately allege that the Hospital’s employees acted within
the scope of employment or that their conduct was reasonably foreseeable.

“To state a claim for breach of fiduciary duty, [a] plaintiff must allege ‘(1) the existence of
a fiduciary relationship; (2) a knowing breach of a duty that relationship imposes; and (3) damages
suffered.’” Trautenberg v. Paul, Weiss, Rifkind, Wharton & Garrison L.L.P., 351 F. App’x 472,
474 (2d Cir. 2009) (summary order) (quoting Carruthers v. Flaum, 388 F. Supp. 2d 360, 381
(S.D.N.Y. 2005)). Further, “[u]nder the doctrine of respondeat superior, employers, including
hospitals and medical corporations, may be held vicariously liable for the wrongful acts of their
employees if those acts were within the scope of employment and were committed in furtherance
of the employer’s business.” Ziccarelli, 247 F. Supp. 3d at 451 (citing Doe v. Guthrie Clinic, Ltd.,
5 N.E.3d 578, 580 (N.Y. 2014)). “The New York Court of Appeals has applied this doctrine in the
context of improper disclosure of medical information, holding that, ‘a medical corporation’s duty
of safekeeping a patient’s confidential medical information is limited to those risks that are
reasonably foreseeable and to actions within the scope of employment.’” Id. (quoting Guthrie
Clinic, Ltd., 5 N.E.3d at 580).
An employee’s conduct was within the scope of employment when the employee acted “at
the ‘explicit direction of the employer,’ or where the employees’ actions were a foreseeable,
ordinary, and natural incident or attribute of their employment.” Pizzuto v. County of Nassau, 239
F. Supp. 2d 301, 313 (E.D.N.Y. 2003) (quoting Schiraldi v. AMPCO Sys. Parking, 9 F. Supp. 2d
213, 219 (W.D.N.Y. 1998) and citing Riviello v. Waldron, 391 N.E.2d 1278, 1281 (1979)). The
employer does not need to “have foreseen the precise act or the exact manner of the injury as long
as the general type of conduct may have been reasonably expected.” Id. (quoting Riviello, 391
N.E.2d at 1282). When the employee’s act was foreseeable, the employer can be liable as long as
the employee acted while the employee was “doing his [employer’s] work, no matter how
irregularly, or with what disregard of instructions.” Id. (quoting Riviello, 391 N.E.2d at 1281).
Still, an employer cannot be liable for an employee’s actions that “were not taken in furtherance
of the employer’s interests and which were undertaken by the employee for wholly personal

motives.” Id. (quoting Galvani v. Nassau Cty. Police Indemnification Review Bd., 674 N.Y.S.2d
690, 694 (N.Y. App. Div. 1998)). Although the assessment of whether an employee acted within
the scope of employment “is heavily dependent on factual considerations and is therefore
ordinarily a question for the jury[,]” id. (citing Rounds v. Del., Lackawanna & W. R.R. Co., 64
N.Y. 129, 137–38 (N.Y. 1876)), a court may dismiss a respondeat superior claim at the pleading
stage, see Doe v. Alsaud, 12 F. Supp. 3d 674, 679 (S.D.N.Y. 2014).
Here, Robles alleges that “the only potential witnesses to” his “verbal altercation” with the
nurse “were other care providers at the [H]ospital.” FAC ¶ 41. Therefore, his “supervisors could
only have been made aware of the verbal altercation through obtaining his records or being directly

informed by [medical] staff” members who provided care to Robles Id. ¶ 44. In either case, his
care providers and his supervisors engaged in “an unauthorized and illegal transfer or access of his
confidential medical information.” Id. Robles then alleges that individual defendants Doe 1–5 and
Roe 1–5 “transmitted confidential information pertaining to Plaintiff’s treatment for medical and
psychiatric conditions to” individual defendants Doe 6–10 and Roe 6–10 “for the purpose of, and
with the foreseeable consequence of, using that information as grounds for terminating Plaintiff
from his position as a Patient Navigator at Jamaica Hospital.” Id. ¶ 59. He proceeds to allege that
his “termination was a direct, proximate, and foreseeable result of the disclosure of confidential
information pertaining to Plaintiff’s medical and psychiatric treatment[.]” Id. ¶ 60. Accordingly,
he alleges, the Hospital “is liable [on a respondeat superior theory] for harm to Plaintiff resulting
from actions by [Hospital] employees and agents taken in the course of their employment or
agency on behalf of [the Hospital].” Id. ¶ 61.
Robles has not adequately pled that the Hospital employees who transmitted his
confidential medical information acted within the scope of employment or that the Hospital

reasonably could have foreseen their conduct. All of his allegations in this regard are conclusory.
See Chau v. Donovan, 357 F. Supp. 3d 276, 291–92 (S.D.N.Y. 2019) (dismissing claim premised
on respondeat superior theory when plaintiff made generalized allegations about foreseeability
but did not provide factual allegations in support); Alsaud, 12 F. Supp. 3d at 678 (“Plaintiff must
plead more than conclusory allegations and present sufficient facts to create a reasonable inference
that [the employer’s] business included [the employee’s conduct].”). Without any factual
allegations to support Robles’s claims, I find it implausible that Hospital employees transmitted
his confidential medical information “for the purpose of . . . using that information as grounds for
terminating Plaintiff[.]” Id. ¶ 59. It is purely speculative that these unnamed individuals would

have violated Robles’s confidentiality, on purpose, so that the Hospital could review his medical
information and use it as a basis to terminate him. Robles also has not alleged how such a practice
constituted part of the Hospital’s business. The very concept that the Hospital was in the practice
of obtaining the confidential medical information of its employees—who just so happened to also
be patients at the Hospital—so that it could review that information and then fire those employees
based on their disabilities or medical conditions is quite farfetched. Robles also has not alleged
how the Hospital reasonably could have foreseen the conduct of the unnamed individual
defendants. In fact, even his conclusory allegations with respect to foreseeability are backwards:
Robles seems to allege that the unnamed individual defendants could have foreseen that the
Hospital would use the confidential information with which they provided it as a basis for
terminating Robles, and not that the Hospital could have foreseen that its employees would violate
patient confidentiality. See id. ¶¶ 59–60. Thus, the breach of fiduciary duty claim is dismissed as
against the Hospital.
VI. Because the plaintiff has not alleged any facts that show that the Hospital knew
about its employees’ propensities to disclose confidential medical information or
identified any training deficiencies, he has failed to state a claim for negligent
hiring, training, retention, and/or supervision.

Under New York law, to state a claim for negligent retention or supervision,
in addition to the standard elements of negligence, a plaintiff must show: (1) that
the tort-feasor and the defendant were in an employee-employer relationship, (2)
that the employer knew or should have known of the employee’s propensity for the
conduct which caused the injury prior to the injury’s occurrence, and (3) that the
tort was committed on the employer’s premises or with the employer’s chattels.

Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir. 2004) (citations and quotations omitted).
The negligent hiring claim also requires that a plaintiff allege “that the ‘defendant knew of the
employee’s propensity to commit the alleged acts or that defendant should have known of such
propensity had it conducted an adequate hiring procedure.’” N.U. ex rel. Amar v. E. Islip Union
Free Sch. Dist., No. 16-cv-4540 (SJF) (ARL), 2017 WL 10456860, at *16 (E.D.N.Y. Sept. 15,
2017) (quoting Simpson ex rel. Simpson v. Uniondale Union Free Sch. Dist., 702 F. Supp. 2d 122,
135 (E.D.N.Y. 2010)). “In a negligent training claim, the plaintiff must demonstrate deficiencies
in the training of employees that, if corrected, could have avoided the alleged harm.” Carter v.
Port Authority of New York and New Jersey, No. 03 Civ. 8751 (DLC), 2004 WL 2978282, at *5
(S.D.N.Y. Dec. 20, 2004).
Here, Robles fails to state a claim for negligent retention, supervision, or hiring because he
has alleged no facts to support the inference that the Hospital knew, or should have known, that its
employees had a propensity to improperly disclose confidential medical information. Robles
argues that he has alleged that the Hospital “knew or should have known of the propensity of the
employees to report an incident that occurred while a staff member was under their care[.]” Pl.’s
Br. 21. However, the paragraphs of the First Amended Complaint to which he cites either do not
speak of propensity at all, or merely reference foreseeability in a vague and conclusory fashion.
See FAC ¶¶ 1, 13–14, 40–47, 58–61, 107–11. The First Amended Complaint contains no factual

allegations from which I can infer that the Hospital’s employees had any particular propensity
about which the Hospital knew or should have known.
Nor does the First Amended Complaint identify any training deficiencies. Thus, Robles
has failed to state a claim for negligent hiring, training, retention, and/or supervision, and this claim
is dismissed without prejudice.
CONCLUSION
The Hospital’s motion to dismiss is denied with respect to the following claims, which
survive this opinion: ADA discrimination and failure to accommodate, NYSHRL discrimination
and failure to accommodate, and NYCHRL discrimination and retaliation. In addition, all claims

as asserted against the individual defendants survive. The Hospital’s motion to dismiss is granted
with respect to the following claims, which are dismissed without prejudice: ADA retaliation and
interference, coercion, and intimidation; FMLA interference and retaliation; NYSHRL retaliation
as against the Hospital; breach of fiduciary duty as against the Hospital; and negligent hiring,
training, retention, and/or supervision.
Based on the face of the First Amended Complaint, I have serious doubts that Robles can
allege the facts necessary to make plausible the claims that I am dismissing. Nonetheless, if Robles
is confident that he is able to supply the necessary factual allegations, then he may do so by filing
a Second Amended Complaint within ten days from the date of this opinion.
SO ORDERED.
________/s/____________
Allyne R. Ross
United States District Judge

Dated: June 19, 2020
Brooklyn, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10304412. Public record. Not legal advice.