Solomon v. County of Nassau

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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SUSAN SOLOMON,

OPINION AND ORDER

Plaintiff, CV 20–5227 (AYS)

-against-

COUNTY OF NASSAU,

Defendant.

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SHIELDS, Magistrate Judge,

Plaintiff Susan Solomon (“Solomon” or “Plaintiff”) commenced this action on October

29, 2020, against defendant the County of Nassau (the “County” or “Defendant”) alleging

violations of 42 U.S.C. § 1983; Title VII of the Civil Rights Act of 1964 (“Title VII”), and 42

U.S.C. § 12101 et seq. (Americans with Disabilities Act (“ADA”)). Plaintiff alleges that

Defendant subjected her to discrimination, a hostile work environment and retaliation based on

her disability while she worked for Defendant as an Accounting Assistant. See Compl., Docket

Entry (“DE”) [1].

Presently before this Court is Defendant’s motion to dismiss the Complaint pursuant to

Rule 12(b)(6) of the Federal Rules of Civil Procedure. See DE [13]. For the reasons set forth

below, the motion is granted in part and denied in part. Specifically, the motion is denied with

respect to Plaintiff's municipal liability claims, discrimination and retaliation claims under the

ADA. The motion is granted with prejudice regarding Plaintiff's Fourteenth Amendment equal

protection and due process claims, and the timeliness of Plaintiff’s claims. Finally, the motion is

granted without prejudice with respect to Plaintiff’s constructive discharge claim.

BACKGROUND

I. Documents Considered

As is required in the context of this motion to dismiss, the factual allegations in the

Complaint, though disputed by Defendant, are accepted to be true for purposes of this motion,

and all reasonable inferences are drawn therefrom in favor of the Plaintiff.

While facts to consider in the context of a Rule 12 motion to dismiss are generally limited

to those set forth in the pleadings, a court may consider matters outside of the pleadings under

certain circumstances. Specifically, a court may consider: (1) documents attached to the

Complaint as exhibits or incorporated by reference therein; (2) matters of which judicial notice

may be taken; or (3) documents upon the terms and effects of which the Complaint “relies

heavily” and which are, thus, rendered “integral” to the Complaint.” Chambers v. Time Warner,

Inc., 282 F.3d 147, 152-153 (2d Cir. 2002); see Int’l Audiotext Network, Inc. v. Am. Tel. and

Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995). Moreover. “[a] court may take judicial notice of a

documents filed in another court not for the truth of the matters asserted in the other litigation,

but rather to establish the fact of such litigation and related filings.” Glob. Network Commc’ns,

Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006) (quoting Int’l Star Class Yacht

Racing Ass’n Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998)).

The Court turns now to discuss the facts set forth in Plaintiff’s Complaint, construed in

her favor.

II. Facts

A. The Parties

Plaintiff is a female resident of the County of Nassau, State of New York, who suffers

from asthma and severe environmental allergies. Compl. ¶¶ 5, 7. Defendant is a municipal

corporation and public employer. Id. ¶ 6. In 1993, Defendant hired Plaintiff as an Account

Assistant I in the Comptroller’s Office. Id. ¶ 8. Defendant transferred Plaintiff to the Department

of Public Works in 1995 and ultimately promoted her to an Accounting Assistant IV. Id.

In 2011, the office building where Plaintiff had worked was renovated, which included

tarring the roof and epoxying the floor. Id. ¶ 10. Plaintiff became sick from the fumes, sought

medical treatment, and was diagnosed with severe asthma and environmental allergies. Id. Due

to these conditions, Plaintiff suffers from respiratory problems and faces a risk of anaphylaxis

when exposed to dust, pollen, venomous insects, perfumes, certain cleaning products, and other

noxious vapors. Id. During this period, Plaintiff advised Kenneth Arnold, the Deputy

Commissioner of Public Works, and Jim Moore, an employee of the Building Division, of her

asthma and allergy-related health issues. Id. ¶ 11. Likewise, Plaintiff advised several of her

coworkers concerning her sensitivity to perfumes. Id. Most of her colleagues empathized with

her condition and agreed to refrain from wearing perfume in Plaintiff’s presence. Id.

B. August 2015 Complaint

In 2015, Diane Pyne, a co-worker with knowledge of Plaintiff’s health condition, refused

to not wear perfume in Plaintiff’s presence, and, according to Plaintiff, began purposefully

exposing Plaintiff to her perfume by unnecessarily passing by Plaintiff’s workspace while

wearing large amounts of perfume and rubbing perfume into documents she knew Plaintiff

would be handling. Id. ¶ 12. Plaintiff, consequently, became sick and missed a substantial

amount of work due to her allergic reaction. Id.

In August 2015, Plaintiff filed a complaint with Defendant’s Equal Employment Office

regarding her exposure to perfume in the office. Id. ¶ 13. Mary Elizabeth Osterman, the HR and

EEO Representative, responded to this complaint by offering Plaintiff an opportunity to change

offices. Id. Plaintiff did not agree to change offices since the offices offered were closer to

Pyne’s office, and would have resulted in Plaintiff being further exposed to perfume. Id.

Consequently, throughout the remainder of 2015 and 2016, Plaintiff’s exposure to perfume and

scented products worn by Pyne and other colleagues persisted, which aggravated her condition.

C. September 2016 Complaints

In September 2016, Plaintiff complained that she was still suffering from the

environment due to the scent of perfume. Id. Defendant’s HR department determined thereafter

that Pyne was purposefully exposing Plaintiff to perfume. Id. ¶ 14. Defendant offered Plaintiff a

choice of two different work locations: (1) a location in Hicksville on Cantiague Rock Road or

(2) a location in East Meadow at Eisenhower Park. Id. After inspecting both locations, Plaintiff

decided to transfer to the Cantiague Rock Road location since the Eisenhower Park location

smelled of mold and mildew that would have exacerbated her asthma. Id. ¶ 15. After moving to

the new location on September 22, Plaintiff was sickened by the scent of cleaning products that

day. Id. ¶ 16. Plaintiff complained to Mike Fasano, the Head of Road Maintenance, who advised

the odor would only be temporary. Id. Plaintiff further stated that a door had been propped open,

which caused flies, bees, and yellow jackets to enter into her office. Id. Plaintiff told Fasano that

she was allergic and carried an Epi-Pen. Id. Although Fasano advised Soloman to close the door,

it propped open again and more insects entered into the office. Id. Plaintiff, consequently,

complained to Osterman about this situation and requested the installation of screens in her

office. Id. Plaintiff's request was ignored so she purchased her own screens. Id.

On September 26, Plaintiff met with Billy Pappas, a County Special Investigator,

regarding her prior EEO complaint and informed him that the Hicksville location did not

accommodate her asthma due to the smell of cleaning products, and the prior incident of stinging

insects flying into the building. Id. ¶ 17. Plaintiff further complained to Richard Millett, the

Chief Deputy Commissioner of Public Works, on September 28 and requested another transfer to

a different location. Id. ¶ 18. While Millett indicated that he would investigate it, he noted that he

did not believe another location would be available. Id.

Plaintiff stated that she was out of the office between September 29 and October 10 after

utilizing two sick days due to a strong chemical odor in the workspace and taking an 11-day

vacation. Id. ¶ 19-20. Upon returning from her vacation on October 11, Plaintiff brought

screening to the office and installed it in the windows herself. Id. ¶ 20. During this process, she

exposed herself to mouse droppings in the windowsill and the smell of scented products wafted

into her office. Id. Plaintiff later requested to be relocated to the Eisenhower Park location and

Millett approved this request. Id.

D. October 2016 Complaint

On October 13, 2016, Plaintiff moved into her new office at Eisenhower Park. Id. ¶ 21.

Plaintiff, however, complained that the workspace also smelled of chemical cleaning products

and an old air conditioner in the vicinity had spewed mold. Id. Plaintiff notified Mike Karcinski,

the Head of Facilities Management, regarding these issues. In response to Plaintiff’s complaint,

Karcinski replied that Plaintiff was lucky to have been moved at all and warned that she better

not start trouble. Id. Millett eventually replaced the air conditioner. Id. Thereafter, however,

Plaintiff states that she was repeatedly sickened by the smell of chemical cleaning products and

fumes emanating from an old industrial heater, which required her to take several sick days. Id. ¶

22. Plaintiff complained to Karcinski and Fred Maroni, the Superintendent of Buildings, on

several occasions during this period, but neither followed through to remedy the issues. Id. In

response to these complaints, Karcinski advised the other employees in Plaintiff’s vicinity to not

speak with her since she was “trouble.” Id. Moreover, Karcinski and Maroni ignored Plaintiff’s

request to keep the door to a nearby carpenter’s bay closed since it was frequently left open

allowing fumes from painting and staining products to waft into Plaintiff’s office. Id. As a result,

Plaintiff made a sign that the outside door be left open so that fresh air could come into the

building, but her sign was thrown in the trash. Id. Under these circumstances, Plaintiff felt the

need to stay inside her office with the door closed and only left to use the bathroom and make

copies. Id. Fumes continued to waft under her door that caused Plaintiff to suffer from frequent

headaches. Id.

E. Summer 2017 Complaint

During the summer of 2017, Plaintiff complained of wasp nests that routinely formed

near her office at the Eisenhower Park location and feared being stung and experiencing a health

emergency. Id. ¶ 23. Although Defendant’s management team removed these wasp nests, new

nests formed and wasps continued to enter from outside through the window vents. Id.

F. May 2018 Complaints

On May 9, 2018, Plaintiff further complained about the wasp problem to Osterman and

was thereafter transferred to a new office location at 1 West Street in Mineola. Id. ¶ 24. Plaintiff,

however, did not feel accommodated by her new office. Id. ¶ 25. For instance, Plaintiff had to

walk through “an open cubicle area that was littered with dusty old broken copy machines, file

cabinets piled high with decades old paperwork and files, and dust and mold laden piles of paper

haphazardly dumped in front of a garbage pail shredder that had apparently not been emptied in

years.” Id. These items emitted a musty odor and threw up dust, chemical fumes, and spores

whenever disturbed, which aggravated Plaintiff’s breathing condition. Id. The area was poorly

ventilated as well. Id. Plaintiff complained about these conditions in the workspace to Osterman

and Kerrin Huber at Human Resources, but they dismissed it. Id. Defendant was also unwilling

to move Plaintiff to another office. Id. Two employees of the Comptroller’s Office who occupied

cubicles outside Plaintiff’s office frequently cleaned their desks with scented cleaners that caused

Plaintiff to experience headaches and dizziness. Id. ¶ 26. Plaintiff explained her health issues to

these employees and asked them to use alcohol or hydrogen peroxide in lieu of their cleaning

products. Id. Further, Plaintiff states that she complained to Osterman about this situation, but

Defendant again refused to rectify this issue. Id.

G. Summer 2018 Complaints

In June of 2018, Plaintiff regularly became sick from fumes emanating from a candle or

plug in air-freshener located in the office of John Skinner, the Commissioner of Labor, which

was near her office. Id. ¶ 27. Plaintiff explained her health issues and asked the employees in the

office to refrain from using these products, but neither did the employees stop using the air

fresheners and candles, nor did her complaint to Osterman about the situation succeed to rectify

the problem. Id. During the remainder of the summer, Plaintiff attempted to use the air

conditioner in her office. Id. ¶ 28. Considering that the unit was old and had rust, it spewed dust

and particulate matter when turned on and leaked water onto the carpet that grew into mold. Id.

Plaintiff later complained to maintenance about the faulty air conditioner, but the unit was not

properly repaired. Id.

H. September 2018 Complaint

In September 2018, Plaintiff complained to Osterman, Huber, and other HR staff

members concerning mold that had been growing in the stairwell near her office, which made her

sick. Id. ¶ 29. Defendant retained a cleaning company to remediate the mold problem, but this

process involved the use of chemicals that made Plaintiff sick. Id. In response, Plaintiff requested

a fan to control the airflow, but this was not provided. Id.

I. End of 2018 Complaints

In October 2018, the heating system in Plaintiff’s office building broke and the heat was

rerouted from the radiators to the vents, which spewed black soot and caused her to become sick.

Id. ¶ 30. Although a filter from an air conditioning unit was eventually taped over the vent, this

did not satisfy Plaintiff because allergens continued to permeate. Id. Plaintiff against complained

about this to Osterman, Arnold, Maroni, and Huber, but they did not address this issue. Id. In

December 2018, the stairwell in the office building was painted and fumes wafted into Plaintiff’s

office, which made her ill. Id. ¶ 31. Although Plaintiff inquired about this with Osterman,

Osterman told Plaintiff to adjust to these working conditions since they existed throughout the

entire building. Id.

J. Plaintiff’s Retirement

At the end of December 2018, Plaintiff decided to retire from her position as the

Accounting Assistant IV due to her belief that Defendant refused to provide a reasonable

accommodation. Id. ¶ 32. Plaintiff’s termination money was being paid out in accordance with

the Collective Bargaining Agreement (“the Agreement”) that permits a cash payment for unused

leave accruals as a severance payment. Def.’s Mem. of Law at 5. Plaintiff had significant

medical expenses related to her health condition, including out-of-pocket medical expenses and

the need for a whole house air purifier. Compl. ¶ 33. Plaintiff filed for a hardship waiver so that

her severance would be paid in a lump sum severance payment rather than be paid in three

annual installments as required in Section 44-10 of the Agreement. Id. Defendant denied

Plaintiff’s hardship waiver. Id.

III. Procedural History

Plaintiff commenced this action on October 29, 2020 alleging employment

discrimination, hostile work environment, and retaliation claims under the Equal Protection

Clause, 42 U.S.C. § 1983, and the ADA. See Compl., DE [1]. On November 19, 2020,

Defendant filed a motion for an extention of time to file an Answer, which was granted by this

Court. See DE [7]. On Janury 5, 2021, Defendant requested a pre-motion conference in

anticipation of filing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).

On January 6, 2021, this Court denied Defendant’s pre-conference motion to dismiss. See DE

[9]. On March 16, 2021, Defendant filed a motion for extension of time to file its motion to

dismiss and to amend the briefing schedule. See DE [10]. This Court granted Defendant’s motion

on March 17, 2021.1 On May 11, 2021, Defendant filed a motion to dismiss Plaintiff’s complaint

pursuant to Rule 12(b)(6) for failure to state a claim. See DE [13]. Plaintiff thereafter filed a

reply memorandum of law in opposition to Defendant’s motion to dismiss. See DE [14]. Plaintiff

withdrew her hostile work environemnt claim. Id. In response, Defendant filed a memorandum

of law in further support of its motion to dismiss the complaint. See DE [15].

1 Subsequent to this Court granting Defendant’s leave to make the instant motion, the case was

transferred to the undersigned. See DE [12].

IV. The Instant Motion

Defendant moves to dismiss the Complaint for a failure to state discrimination and

retaliation claims against Defendant under the Equal Protection Clause, 42 U.S. § 1983, and the

Americans with Disabilities Act on the basis that her allegations do not extend beyond mere

conclusory assertions, and that her claims are time barred under New York’s statute of

limitations.

Defendant first argues that since Plaintiff filed her complaint on October 30, 2020, all her

claims alleging violations of Section 1983 and the ADA that accrued prior to October 30, 2017

are time barred pursuant to the three-year statute of limitations for tort actions under N.Y.

C.P.L.R. § 214(5). Thus, according to Defendant, Plaintiff’s factual allegations other than her

allegations pertaining to her time at the Mineola office and claims regarding constructive

discharge and denial of a hardship waiver are time-barred.

With respect to Plaintiff’s allegations of Defendant’s Equal Protection Clause violations,

Defendant next argues that (1) a failure to provide a reasonable accommodation cannot form the

basis of an Equal Protection claim because the ADA, Title VII of the Civil Rights Act, and the

Age Discrimination in Employment Act have their own structures for private enforcement and

(2) the Equal Protection Clause does not encompass Plaintiff’s constructive discharge and

harassment and retaliation allegations because it does not apply to public employees asserting a

“class of one” theory. In response to Plaintiff’s Section 1983 claim alleging a violation of due

process under the Fourteenth Amendment, Defendant contends that there is no violation of due

process since Plaintiff has not alleged that the County deprived her of the opportunity to file an

Article 78 proceeding regarding the termination of her employment.

Defendant also contends that Plaintiff has failed to allege municipal liability under

Section 1983 since Plaintiff merely references her own situation instead of any formal policy or

actions taken by a final municipal policymaker. Defendant further argues that Plaintiff has failed

to assert sufficient facts to allege the County’s failure to train its employees and merely makes

the conclusory allegation that “inadequate training/supervision was so likely to result in the

harassment, and/or discrimination that policymakers can reasonably be said to have been

deliberately indifferent to the need to provide better training and supervision.” Compl. ¶ 35.

Defendant contends that Plaintiff has not alleged any facts to support her conclusory

assertions regarding the County’s discrimination and retaliation practices in violation of the

ADA. With respect to Plaintiff’s discrimination claim, Defendant provides two arguments. First,

Defendant argues that Plaintiff’s allegations support the fact that there was no reasonable

accommodation that would allow her to perform the functions of her position at the Department

of Public Works and that the County demonstrated a long-term good faith engagement in the

interactive process since 2015 to find a workable solution to her complaints by transferring her to

at least three different building locations and providing her with modifications in her workspace

and renovation to the building. Second, Defendant argues that Plaintiff’s assertion that her

retirement qualifies as a constructive discharge is conclusory and implausible because the

County attempted to work with Plaintiff to provide a viable workspace.

With respect to Plaintiff’s retaliation claim, Defendant argues that Plaintiff’s assertion

that the County’s denial of a lump sum severance pay-out constitutes retaliation is not actionable

since the County paid the severance amount in accordance with the Collective Bargaining

Agreement. Thus, according to Defendant, the County acted under the usual course of business

rather than conducting an adverse employment action. Further, Defendant argues that Plaintiff

has failed to allege that there was a causal connection between her request for an accommodation

and an adverse employment action. According to Defendant, even if the denial of the lump sum

severance was an adverse employment action, Plaintiff has not alleged a plausible connection to

her request for accommodation, which was initially made in 2015, because the County continued

to engage in an interactive process with her to find an adequate accommodation until December

of 2018.

Having summarized the relevant facts and basis for the motion, the Court turns to the

merits thereof.

DISCUSSION

I. Legal Principles: Standards Applicable on Motions to Dismiss

A. Rule 12(b)(6)

To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain “sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678-79 (2009) (quoting, Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

570 (2007)); see also Arista Records, LLC v. Doe 3, 604 F.3d 110, 119–20 (2d Cir. 2010).

Facial plausibility is established by pleading sufficient factual content to allow a court to

reasonably infer the defendant’s liability. Twombly, 550 U.S. at 556. “Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at

555. Nor is a pleading that offers nothing more than “labels and conclusions” or “a formulaic

recitation of the elements of a cause of action,” sufficient. Iqbal, 556 U.S. at 678 (2009) (quoting

Twombly, 550 U.S. at 555).

With these standards in mind, the Court turns to assess the viability of Plaintiff’s claims.

II. Timeliness of the Claims

The applicable statute of limitations for claims asserted pursuant to 42 U.S.C. § 1983 and

the ADA is New York’s three-year statute of limitations for tort actions under N.Y. C.P.L.R. §

214(5). See Pape v. Board of Educ. of the Wappingers Central School Dist., No. 07-CV-8828

(KMK), 2009 WL 3151200, at *8 (S.D.N.Y. Sept. 29, 2009) (noting that “New York’s three-year

statute of limitations applicable to personal injury actions is the most analogous state statute of

limitations for claims brought under … the ADA, and Section 1983”). A cause of action under

Section 1983 accrues once “the plaintiff knows or has reason to know of the injury which is the

basis of his action.” Veal v. Geracy, 23 F.3d 722, 724 (2d Cir. 1994) (internal quotes omitted).

For statute of limitations purposes, incidents of employment discrimination must be

categorized as either discrete acts or continuing violations. Fleming v. Verizon New York, Inc.,

419 F. Supp. 2d 455, 465 (S.D.N.Y. 2005). A continuing violation may be found “where there is

proof of specific ongoing discriminatory policies or practices, or where specific and related

instances of discrimination are permitted by the employer to continue unremedied for so long as

to amount to a discriminatory policy or practice.” Cornwell v. Robinson, 23 F.3d 694, 704 (2d

Cir. 1994); see also Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999) (stating that a

claimant “must allege both the existence of an ongoing policy of discrimination and some non-

time-barred acts taken in furtherance of that policy”). Conversely, a continuing violation may not

be premised on “discrete incidents of discrimination that are not related to discriminatory

policies or mechanisms.” Little v. Nat’l Broadcasting Co., Inc., 210 F.Supp.2d 330, 366

(S.D.N.Y. 2002); see also Nat'l R.R. Passenger Corp. v. Morgan, 563 U.S. 101, 102 (2002)

(noting that “discrete discriminatory acts are not actionable if time barred, even when they are

related to acts alleged in timely filed charges”). Further, a rejection of a proposed

accommodation is “the sort of ‘discrete act’ that must be the subject of a complaint to the EEOC

within 300 days” even though “the effect of the employer’s rejection continues to be felt by the

employee for as long as he remains employed.” Elmenayer v. ABF Freight System, Inc., 318

F.3d 130, 135 (2d Cir. 2003) (emphasis in original); see also O'Leary v. Town of Huntington,

2012 WL 3842567, at *8 (E.D.N.Y. Sept. 5, 2012) (noting that “an employee who continues

working after the denial of a reasonable accommodation may not claim a continuing violation”).

If a continuing violation exists, the exception “extends the limitations period for all

claims of discriminatory acts committed under an ongoing policy of discrimination even if those

acts, standing alone, would have been barred by the statute of limitations.” Annis v. County of

Westchester, 136 F.3d 239, 246 (2d Cir. 1998). As a general rule, however, “courts in the Second

Circuit have viewed continuing violation arguments with disfavor” and only “compelling

circumstances will warrant application of the exception to the statute of limitations.” Quadrozzi

Concrete Corp. v. City of New York, No. 03 Civ.1905 (LAP), 2004 WL 2222164, at *8

(S.D.N.Y. Sept. 30, 2004). Compelling circumstances have been found “where the unlawful

conduct takes place over a period of time, making it difficult to pinpoint the exact day the

violation occurred; where there is an express, openly espoused policy [that is] alleged to be

discriminatory; or where there is a pattern of covert conduct such that the plaintiff only belatedly

recognizes its unlawfulness.” Ruane v. County of Suffolk, 923 F. Supp. 2d 454, 459 (E.D.N.Y.

2013) (internal quotation marks omitted).

Plaintiff contends that Defendant conducted a series of related discriminatory events prior

to October 30, 2020, (the filing date of the Complaint), that culminated into an “ongoing

discriminatory policy and practice by the County, which consistently failed to properly

accommodate Solomon, and instead forced her to work in unsafe and unhealthy environments.”

Pl’s Reply Mem. of Law at 3. For example, Defendant failed to properly install screens in

Plaintiff's office to prevent the spread of insects and dismissed multiple requests to ameliorate

the smell of chemical cleaning products and poor ventilation in Plaintiff's office. While these

instances infer a pattern of neglect towards assuring a fully healthy working environment for

Plaintiff, they equate to discrete actions that do not rise to a level of ongoing conduct that

amounts to a discriminatory practice. Defendant had offered Plaintiff opportunities to change

office locations in Hicksville, East Meadow, and Mineola on several occasions from 2016

through 2018. Further, in October 2016, Millett replaced an air conditioner in the East Meadow

office after Plaintiff's complaints about the odor emanating from chemical cleaning products and

mold spewing from the old unit. Additionally, Defendant retained a cleaning company to

remediate the mold problem in its office stairwell to respond to Plaintiff's complaint in

September of 2018. Only until after Plaintiff had changed office locations a second time to the

Mineola building in May of 2018, did Defendant indicated an unwillingness to move Plaintiff to

another location. Moreover, although Plaintiff realized the negative health effects from the

perfume and cleaning product odors and faulty working conditions, she continued to work even

after the department leaders had ignored her requests to rectify these problems. Thus, Plaintiff

has not pled facts sufficient to invoke the application of the continuing violation exception in

light of Defendant's failure to accommodate her health issues.

In applying the statute of limitations, Plaintiff's claims developing from the factual

allegations prior to October 30, 2017 are time-barred. Plaintiff is permitted, however, to use such

discrete acts as background evidence in support of her claims after October 30, 2017. See

Morgan, 536 U.S. at 102 (stating that the statute of limitations does not “bar an employee from

using the prior acts as background evidence to support a timely claim”).

III. Failure to State a Claim

A. Municipal Liability under 42 U.S.C. § 1983

To state a claim under Section 1983, a plaintiff must allege that the defendant (1) was

acting under color of state law and (2) deprived the plaintiff of rights, privileges or immunities

secured by the Constitution or laws of the United States. Milan v. Wertheimer, 808 F.3d 961,

964 (2d Cir. 2015). Under Monell, a municipal entity “may be liable under 42 U.S.C. § 1983

only if the alleged constitutional violation was caused by the entity's ‘policy or custom.’” Monell

v. Dep't of Soc. Serv. of New York, 436 U.S. 658, 694 (1978). Further, there must be a “direct

causal link” between the municipal policy or custom and the alleged constitutional deprivation.

City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989). “A plaintiff may plead the existence of

an official policy by alleging (1) a formal policy; (2) actions taken by final municipal

policymakers; (3) a practice so persistent and widespread that it implies the constructive

knowledge of policymakers; or (4) a failure to train or supervise municipal employees amounting

to deliberate indifference to the rights of those whom the employees will come into contact.”

Martinez v. New York City Dep't of Educ., 17-CV-3152 (NGG) (CLP), 2018 WL 4054872, at *6

(E.D.N.Y. Aug. 24, 2018). “Deliberate indifference may be inferred if the complaints are

followed by no meaningful attempt on the part of the municipality to investigate or to forestall

further incidents.” Vann v. City of New York., 72 F.3d 1040, 1049 (2d Cir. 1995).

Plaintiff's complaint asserts (a) “[t]he County's custom or practice of discriminating

against and/or harassing Plaintiff based [on] his disability, refusing to provide reasonable

accommodations, and/or engaging in protected activities ... The discrminatory and retaliatory

practices were so persistent and widespread that they constitute the constructive acquiescence of

policymakers;” (b) “[s]upervisors failed to properly investigate and address allegations of

harassment and/or discrimination;” (c) “[i]nadequate training/supervision was so likely to result

in the harassment, and/or discrmination that policymakers can reasonably be said to have been

deliberately indifferent to the need to provide better training and supervision;” and (d)

“[p]olicymakers ... engaged in and/or tacitly condoned the harassment and/or discrimination.”

Compl. ¶ 35. Plaintiff alleges discrimination in the form of department supervisors’ inability to

adequately advise her coworkers about the use perfume and chemical cleaning products in

addition to an otherwise failure to remedy the office conditions that were harmful to her health

issues despite repeated complaints. In turn, the Court finds that such allegations are sufficient to

plead a claim of Monell liability. At this early state in the litigation, Plaintiff need not prove that

she would succeed on this claim, but must merely show that she has a plausible claim that would

entitle her to relief.

B. Equal Protection Clause of the Fourteenth Amendment

The Equal Protection Clause is implicated to public employers under Section 1983 when

“the government makes class-based decision in the employment context, treating distinct groups

of individuals differently.” Engquist v. Oregon Dept. of Agr., 553 U.S. 591, 605 (2008).

However, “failure to provide a reasonable accommodation cannot form the basis of an Equal

Protection claim.” O’Leary v. Town of Huntington, No. 11-CV-3754, 2012 WL 3842567, at *14

(E.D.N.Y. Sept. 5, 2012); see also Bd. Of Trs. Of the Univ. of Ala. v. Garrett, 531 U.S. 356, 368

(2001) (stating that “if special accommodations for the disabled are to be required, they have to

come from positive law and not through the Equal Protection Clause”).

Plaintiff contends that “it is well settled that plaintiffs can bring an equal protection claim

based on disability discrimination while alleging a distinct violation of a constitutional right.”

Pl's Mem. of Law at 7. Indeed, a Title VII plaintiff is “not precluded from bringing a concurrent

1983 cause of action, such as a claim for denial of equal protection, so long as the 1983 claim is

based on a distinct violation of a constitutional right.” Patterson v. County of Oneida, New York,

375 F.3d 206, 225 (2d Cir. 2004). There must, however, be a valid basis on which an Equal

Protection claim can stand. Plaintiff's allegations are grounded in Defendant's alleged intentional

condonation or deliberate indifference toward her respiratory conditions in the workplace. In

particular, Plaintiff's complaints concern Defendant's failure to address her coworkers' use of

chemical cleaning products, failure to properly repair a faulty air conditioner unit, and the

inability to further relocate her to another office. As noted, a cause of action for a failure to

provide a reasonable accommodation must instead originate from positive law, such as Title VII,

the ADA, and the ADEA.

While Plaintiff cites to cases in support of her assertion that a party can bring an Equal

Protection Clause claim of disability discrimination, none of her cases involve the court

addressing an equal protection claim based on a failure to provide a reasonable accommodation

as a form of disability discrimination. See Anand v. New York State Dept. of Taxation & Fin.,

2013 WL 3874425, at *10 (E.D.N.Y. July 25, 2013) (noting that the plaintiff's pleadings are

“devoid of sufficient factual assertions to give rise to an inference of discrimination based on

national origin or disability, whether under Title VII or the equal protection clause”); Thomas v.

New York City Dept. of Educ., 938 F. Supp. 2d 334, 352 (E.D.N.Y. 2013); Rogers v. Roosevelt

Union Free Sch. Dist., No. 09-CV-3862 (MKB), 2012 WL 6163130, at *7-9 (E.D.N.Y. Dec. 7,

2012) (holding that the plaintiff had not provided any evidence that would give rise to an

inference of disability discrimination under her equal protection claim for disparate treatment

and dismissing her claim for failure to accommodate under the ADA); Pappas v. New York City

Bd. Of Educ., No. 07-CV-4312 (FB) (MDG), 2011 WL 128509, at *3 (E.D.N.Y. Jan. 14, 2011)

(dismissing the plaintiff's claims for discrimination on the basis of age, race, and national origin);

Stampfel v. City of New York, 2005 WL 3543696, at *3-4 (S.D.N.Y. Dec. 27, 2005) (upholding

the plaintiff's age discrimination claim under Section 1983). Thus, Plaintiff’s Equal Protection

Clause claim is dismissed with prejudice.

C. Due Process Clause of the Fourteenth Amendment

In reviewing a dismissal of a public employee's Section 1983 claim for a violation of her

Fourteenth Amendment procedural due process rights, the court must determine (1) whether the

employee possessed a liberty or property interest and, if so, (2) what process he was due before

he could be deprived of that interest. See Ciambriello v. County of Nassau, 292 F.3d 307, 313

(2d Cir. 2002). Plaintiff generally contends that Defendant has deprived her of “her

constitutional rights, as secured by the Fourteenth Amendment of the United States Constitution,

in violation of 42 U.S.C. § 1983.” Compl. ¶ 35. The Complaint is devoid of any specific facts

that would support an inference of a due process violation. Accordingly, Plaintiff’s claim of a

Fourteenth Amendment due process violation must be dismissed without prejudice.

D. Discrimination under the Americans with Disabilities Act

A claim for discrimination under the ADA survives a motion to dismiss if the plaintiff

alleges facts to support her prima facie case that (1) she is a person with a disability under the

meaning of the ADA; (2) an employer covered by the statute had notice of her disability; (3)

with reasonable accommodation, she could perform the essential functions of the job at issue;

and (4) the employer has refused to make such accommodations. See Morey v. Windsong

Radiology Group, P.C., 794 F. App’x. 30, 32 (2d Cir. 2019). “A disabled individual is qualified

for a particular position if she can perform the essential functions of the job with or without

reasonable accommodation.” Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3d 113, 120

(2d Cir. 2004). EEOC regulations define “essential functions” to mean the “fundamental duties

to be performed in the position in question, but not functions that are merely marginal.” Shannon

v. New York City Transit Auth., 332 F.3d 95, 100 (2d Cir. 2003).

The first two elements of this claim are not in dispute. Rather, the parties dispute (1)

whether Plaintiff was qualified to perform the essential functions of her job with or without an

accommodation and (2) whether the County engaged in an interactive process with Plaintiff to

find a reasonable accommodation appropriate for her health conditions. First, Plaintiff's factual

allegations make it plausible for the Court to infer that Plaintiff was qualified to perform the

essential functions of her job for the County. Plaintiff had worked for the County since 1993 and

was ultimately promoted to the title of Accounting Assistant IV. She had performed her job in

“an exemplary manner” throughout her career with the County. Compl. ¶ 9. In addition, Plaintiff

continued to perform her work even while seeking accommodations that would place her in a

work environment that would not exacerbate her respiratory issues.

Discrimination under the ADA includes “not making reasonable accommodations to the

known physical or mental limitations of an otherwise qualified individual with a disability who is

an applicant or employee, unless such covered entity can demonstrate that the accommodation

would impose an undue hardship on the operation of the business of such covered entity.” 42

U.S.C. § 12112(b)(5)(A); accord 29 C.F.R. § 1630.9(a). The individual with a disability

generally has the responsibility “to inform the employer that an accommodation is needed.”

Graves v. Finch Pruyn & Co., 457 F.3d 181, 184 (2d Cir. 2006). Once that request is provided,

the ADA contemplates that “employers will engage in an interactive process with their

employees and in that way work together to assess whether an employee's disability can be

reasonably accommodated.” Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 135 (2d Cir. 2008).

An employer impedes this process when “the employer knows of the employee's disability; the

employee requests accommodations or assistance; the employer does not in good faith assist the

employee in seeking accommodations; and the employee could have been reasonably

accommodated but for the employer's lack of good faith.” Goonan v. Fed. Reserve Bank of New

York, 916 F.Supp.2d 470, 480 (S.D.N.Y. 2013). Further, “[c]ourts must deny motions to dismiss

… when presented with conflicting facts about the provenance of a breakdown [in the interactive

process].” Id.

After reviewing the allegations concerning the willingness of Defendant to address

Plaintiff's complaints and drawing all reasonable inferences in favor of Plaintiff, the Court denies

Defendant's motion to dismiss Plaintiff's claim of discrimination under the ADA. There are

conflicting facts regarding whether Defendant engaged in an interactive process to accommodate

Plaintiff in a satisfactory manner. On the one hand, Defendant offered and transferred Plaintiff to

new office locations in response to her complaints about the perfume odor and wasp problem in

her workspace and retained an outside cleaning company to remediate the mold problem in the

Mineola office. Defendant, however, failed to install screens in Plaintiff's office to prevent

insects from intruding, failed to repair the ventilation issues in the offices, and failed to

adequately warn Plaintiff's colleagues about the harmful effects various odors had on her health.

In addition, Karcinski advised Plaintiff's coworkers to not speak with Plaintiff since she was

“trouble” and warned Plaintiff that she better not start trouble since she was lucky to have moved

offices at all. These incidents reflect Defendant's animosity to act in good faith to accommodate

Plaintiff.

Defendant also argues that Plaintiff's decision to retire does not amount to a constructive

discharge because the County attempted to work with Plaintiff to provide her with a reasonable

workspace. “Constructive discharge is a subset of ‘hostile work environment.’ Conditions that do

not qualify as a hostile work environment under Title VII are, by definition, not sufficiently

intolerable to force an employee to quit.” Zick v. Waterfront Comm’n of New York Harbor, No.

11 Civ. 5093 (CM), 2012 WL 4785703, at *7 (S.D.N.Y. Oct. 4, 2012); see also Davis-Bell v.

Columbia Univ., 851 F. Supp. 2d 650, 672 (S.D.N.Y. 2012) (noting that “[t]he standard for a

hostile work environment claim is demanding, and the plaintiff must prove that the conduct was

offensive, pervasive, and continuous enough to amount to a constructive discharge”) (internal

quotes and citations omitted). Plaintiff has withdrawn her hostile work environment claim.

Likewise, her claim of constructive discharge must be denied without prejudice since the factual

allegations in the complaint do not satisfy the burden for pleading such a claim.

E. Retaliation under the Americans with Disabilities Act

In order to establish a prima face case of retaliation under the ADA, a plaintiff must show

that (i) she was “engaged in protected activity; (ii) the alleged retaliator knew that plaintiff was

involved in protected activity; (iii) an adverse decision or course of action was taken against

plaintiff; and (iv) a causal connection exists between the protected activity and the adverse

action.” Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 148 (2d Cir. 2002).

Plaintiff contends that Defendant retaliated against her after requesting reasonable

accommodations for her health conditions by denying a lumpsum severance payment for her

hardship waiver. In particular, Plaintiff states that “a retaliatory animus is adequately pled, as

Plaintiff pleads that, after her constructive termination, she filed a hardship waiver relating to her

severance that could have been granted, but that it was denied in retaliation for her having made

repeated accommodation requests.” Pl’s. Mem. of Law at 6. The first two elements of a claim of

retaliation are not at issue. Plaintiff has alleged protected activity in the form of requesting

reasonable accommodation in the workplace on multiple occassion. See Weixel, 287 F.3d at 148.

Likewise, it is clear that Defendant had knowledge of this protected activity since Plaintiff

advised her supervisors that the various fumes and odors aggravated her respiratory issues. At

issue in this motion are the elements of adverse action and causation.

To show an adverse employment action in the retaliation context, a plaintiff must

demonstrate that “the challenged action was harmful to the point that it could well dissuade a

reasonable worker from making or supporting a charge of discrimination.” Adams v. City of

New York., 837 F. Supp. 2d 108, 121-22 (E.D.N.Y. 2011) (internal quotes omitted). The analysis

to determine whether certain conduct amounts to an adverse employment action is necessarily

contextual since “the alleged acts of retaliation need to be considered both separately and in the

aggregate, as even minor acts of retaliation can be sufficiently ‘substantial in gross’ as to be

actionable.” Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010). Similarly, a causal connection in

retaliation claims can be shown either “(1) indirectly, by showing that the protected activity was

followed closely by discriminatory treatment, or through other circumstantial evidence such as

disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through

evidence of retaliatory animus direct against the plaintiff by the defendant.” Littlejohn v. City of

New York, 795 F.3d 297, 319 (2d Cir. 2015) (quoting Gordon v. New York City Bd. of Educ.,

232 F.3d 111, 117 (2d Cir. 2000). Plaintiff must plausibly allege that the adverse action would

not have taken place in the absence of a retaliatory motive. See Vega v. Hempstead Union Free

Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015).

Plaintiff in this action asserts the denial of her hardship waiver for a lump sum severance

payment as the basis of Defendant’s alleged retaliation. While an assessment of this denial alone

may not constitute an adverse employment action, a broad construal of Plaintiff's allegations and

a consideration of Defendant’s prior interactions with Plaintiff in the aggregate permit the Court

to hold that Plaintiff has plausibly alleged adverse action and causation sufficient to state a claim

of retaliation. Defendant’s record of dismissing Plaintiff's requests to repair the workplace

conditions and to advise her colleagues about the detriments of wearing perfume and using

cleaning products to Plaintiff's respiratory issues make it plausible to believe that Defendant

possessed a similar animus regarding its denial of Plaintiff's hardship waiver. Further, Plaintiff’s

retirement and subsequent hardship waiver filing occurred during the same month, in December

of 2018, as her last complaint to Osterman regarding the ramifications of the working conditions

on her health. The Second Circuit has “not drawn a bright line to define the outer limits beyond

which a temporal relationship is too attenuated to establish a causal relationship between the

exercise of a federal constitutional right and an allegedly retaliatory and an allegedly retaliatory

action.” Gorman-Bakos v. Cornell Co-op Extension of Schenectady County, 252 F.3d 545, 554

(2d Cir. 2001); see also Summa v. Hostra Univ., 708 F.3d 115, 128 (2d Cir. 2013) (stating that

the Court has discretion to “exercise its judgment about the permissible inferences that can be

drawn from temporal proximity in the context of particular cases”).

Despite the foregoing discussion, Plaintiff should be mindful that upon trial of this

matter, or indeed, at pre-trial dispositive motion practice, there may certainly be a different

result. At that point, Defendant may demonstrate that it administered Plaintiff's severance

payment as a cash payment for unused leave accruals in lieu of her request for a lump sum

amount in accordance with the Collective Bargaining Agreement. See Def's Mem. of Law at 5.

At this stage of the case, however, the Court holds that Plaintiff has pleaded a plausible claim of

retaliation, and that Defendant's motion to dismiss the claim of Title VII and ADA retaliation

must be denied.

IV. Leave to Amend

The Second Circuit has stated that “[w]hen a motion to dismiss is granted, the usual

practice is to grant leave to amend the complaint.” Hayden v. Cnty. of Nassau, 180 F.3d 42, 53

(2d Cir. 1999); see also FED. R. CIV. P. 15(a)(2) (“The court should freely give leave [to

amend] when justice so requires”). “Nonetheless, courts may deny leave to replead where

amendment qualifies as futile.” Herbert v. Delta Airlines, No. 12–CV–1250, 2014 WL 4923100,

at *5 (E.D.N.Y. Sept. 30, 2014) (citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).

The instant motion raises the possibility that amending the constructive discharge claim could

survive a motion to dismiss. However, amendment of the claims pertaining to the timeliness of

Plainitff’s claims and claims under the Fourteenth Amendment would be futile. Accordingly, the

Court grants Plaintiff leave to amend only with respect to her constructive discharge claim.

CONCLUSION

For the foregoing reasons, this Court holds that Defendants’ motion to dismiss for failure

to state a claim, appearing as Docket Entry No. 13 herein, is granted in part and denied in part.

Specifically, the motion is denied with respect to Plaintiff's municipal liability claims,

discrimination and retaliation claims under the ADA. The motion is granted with prejudice

regarding Plaintiff's Fourteenth Amendment equal protection and due process claims and the

timeliness of Plaintiff’s claims. Finally, the motion is granted without prejudice with respect to

Plaintiff’s constructive discharge claim. Should Plaintiff elect to amend the pleadings regarding

her constructive discharge claim, the amendment must be filed by December 29, 2021.

SO ORDERED.

/s/ Anne Y. Shields

Anne Y. Shields

United States Magistrate Judge

Dated: Central Islip, New York

December 1, 2021