Kane v. Advanced Care Staffing, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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Nickie Kane,

Plaintiff, MEMORANDUM AND ORDER

-against- 21-CV-4306(KAM)(LB)

Advanced Care Staffing, LLC, Sam Klein,

Wilma Mazano, Jubert Ong, Liz Jurado,

Regina Machado, Jan Romwel Labro,

Gianellie Guerra, Olubunmi Lawal,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

Presently before the Court is Defendants’ motion to dismiss

under Federal Rules of Civil Procedure 12(b)(1) for lack of subject

matter jurisdiction, 12(b)(5) for insufficient service of process,

and 12(b)(6) for failure to state a claim. (ECF No. 67-2.)

Plaintiff Nickie Kane (“Plaintiff”), proceeding pro se, brings the

instant action against Defendants Advanced Care Staffing, LLC, Sam

Klein, Wilma Manzano, Jubert Ong, Liz Jurado, Regina Machado, Jan

Romwel Labro, Olubunmi Lawal, and Gianellie Guerra (together,

“Defendants”). (ECF No. 63, Second Amended Complaint (“SAC”).)

She alleges violations by Defendants of Title VII of the Civil

Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112 et seq.,

New York Human Rights Law (“NYHRL”), N.Y. Exec. Law § 296 et seq.,

and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin.

Code § 8-101 et seq. (Id.) Plaintiff asserts failure to

accommodate her disability, discrimination based on national

origin, sex, and religion, and retaliation claims. (Id. at ¶¶ 64-

76.)

For the reasons set forth below, Defendants’ motion to dismiss

is DENIED in part and GRANTED in part.

BACKGROUND

For the purpose of deciding Defendants’ motion to dismiss,

the Court accepts as true the factual allegations in the SAC, and

exhibits attached thereto,1 and draws all reasonable inferences in

Plaintiff’s favor. See Melendez v. City of New York, 16 F.4th

992, 1010 (2d Cir. 2021); see also Nicosia v. Amazon.com, Inc.,

834 F.3d 220, 230–31 (2d Cir. 2016) (holding that courts may

consider on a motion to dismiss “any written instrument attached

to [the complaint] as an exhibit or any statements or documents

incorporated in it by reference” and other documents “integral” to

the complaint).

I. Factual Background

Plaintiff is a transgender woman of Guyanese national origin

and the Muslim faith.2 (ECF No. 63, SAC at ¶ 15.) Plaintiff

1 Though Plaintiff appears to have inadvertently failed to attach exhibits to

her SAC, the Court will consider the exhibits attached to her original complaint

and first amended complaint, given Plaintiff’s pro se status and the fact that

Plaintiff refers in her SAC to the attached exhibits.

2 In Plaintiff’s operative SAC, Plaintiff uses the pronoun “they” as well as

the pronoun “she.” (See ECF No. 63, SAC at 1, ¶¶ 16, 20, 21-24.) Given that

alleges that she suffers from post-traumatic stress disorder

(PTSD), generalized anxiety, social anxiety, and depression.

(Id.)

On January 4, 2021, Plaintiff commenced this action against

her former employer, Defendant Advanced Care Staffing, LLC

(“Advanced Care Staffing”), an employment agency that “hires

clinical and non-clinical staff for nursing homes with which the

company contracts,” and various individuals employed at the

company, including Defendant Sam Klein, chief operating officer

(“COO”); Defendant Liz Jurado, director of human resources;

Defendant Wilma Manzano, human resources manager; Defendant

Olubunmi Lawal, an administrative assistant; and Defendants Jubert

Ong, Regina Machado, Jan Romwel Labro, and Gianellie Guerra,

operations managers.3 (Id. at ¶¶ 3-11; ECF No. 67-2, Memorandum

of Law in Support of Defendants’ Motion to Dismiss, (“Def. Mem.”)

at 4-5.)

Plaintiff alleges that she began working at Advanced Care

Staffing on April 29, 2019, as an “HR Partner” in the human

resources department. (ECF No. 63, SAC at ¶¶ 16, 18.) She was

hired subject to a 90-day probationary period. (Id. at ¶ 18.)

Plaintiff predominately uses the pronoun “she” in the SAC, this Court will use

“she/her” pronouns to refer to Plaintiff, where necessary.

3 In the initial complaint, Luz Lozano, Kashiera Franklyn, and Ola Abudu were

also included as defendants, but they were eliminated as defendants from

Plaintiff’s amended complaints. (See ECF No. 63, SAC at ¶¶ 3-11.)

Plaintiff alleges that she was one of two HR Partners at Advanced

Care Staffing, and that the other HR Partner was a “black female

of Caribbean ancestry, who practiced the Christian faith.” (Id.

at ¶ 19; ECF No. 67-2, Def. Mem. at 5.) One of Plaintiff’s primary

responsibilities was to process paperwork for new hires submitted

by the company’s operations managers. (ECF No. 63, SAC at ¶ 20.)

A. National Origin Discrimination

During her time at Advanced Care Staffing, Plaintiff alleges

that she processed new hires for three operations managers at

Advanced Care Staffing: Defendants Machado, Guerra, and Ong.

Plaintiff alleges that all three operations managers were of

Filipino origin. (ECF No. 63, SAC at ¶ 21.) Plaintiff does not

allege that the three operations managers had supervisory

authority over her or had the authority to exercise decision-

marking regarding her terms and conditions of employment. On her

first day of processing new hire submissions, Plaintiff alleges

that she was “verbally accosted” by Machado. (Id. at ¶ 20.)

Plaintiff alleges that Machado subsequently reported Plaintiff to

Defendant Manzano, the human resources manager. (Id.) Manzano

subsequently assigned Plaintiff to a different operations manager,

Defendant Guerra. (Id. at ¶ 21.)

Approximately one month later, Plaintiff had a “heated email

exchange” with Guerra, who allegedly had requested that Plaintiff

make “special accommodations” for Guerra’s work. (Id. at ¶ 22.)

Plaintiff refused, and Guerra allegedly followed up with a phone

call where she “screamed at Plaintiff.” (Id.) During the

conversation, Plaintiff hung up the phone. Plaintiff alleges that

Guerra alerted Defendant Klein, Advanced Care Staffing’s COO, to

this incident, and complained about Plaintiff’s “rude” conduct.

(Id.) Plaintiff alleges that she explained to Klein that she hung

up because Guerra was “verbally abusive.” (Id.)

On July 10, 2019, Plaintiff was reassigned again to Defendant

Ong, the third operations manager. (Id. at ¶ 27.) Plaintiff

alleges that a similar pattern of behavior emerged, and that Ong

verbally berated Plaintiff. (Id.)

Concerning the above alleged harassment, Plaintiff states

that the operation managers “never berated” nor “acted

aggressively” with the other HR Partner, who was not of Guyanese

national origin. (Id. at ¶¶ 35, 56.) Plaintiff further alleges

that Manzano “gave Plaintiff more and more responsibilities” but

“failed to delegate more work to the other HR partner.” (Id. at

¶ 33.) Plaintiff additionally alleges that one of the other two

Guyanese women at the company was a former HR Partner who was

terminated shortly after Plaintiff finished training for the role.

(Id. at ¶ 56.) She also alleges that she was “one of three females

of Guyanese national origin” at Advanced Care Staffing, and that

she witnessed Ong “berate [] and harass []” the third Guyanese

woman, who was employed in the payroll department. (Id. at ¶ 58.)

Plaintiff finally alleges that “within a short period, all of the

Guyanese employees including Plaintiff were terminated or resigned

due to harassment.” (Id.)

B. Failure to Accommodate Plaintiff’s Disabilities

Plaintiff alleges that she disclosed her mental health

conditions — including PTSD, generalized anxiety, social anxiety,

and depression — to Manzano, the human resources manager, after

employees from a company on the same office floor as Advanced Care

Staffing complained to Manzano about Plaintiff’s aloof

disposition. (Id. at ¶ 23.) She notified Manzano that her mental

health conditions made “social situations difficult for her,” and

specifically that her social anxiety made “prolonged eye contact,

group interactions, and meeting new people very triggering.” (Id.

at ¶ 24.) Plaintiff does not allege facts regarding any medical

diagnosis of her mental health condition. Plaintiff alleges that

Manzano did not alert other staff about Plaintiff’s conditions,

but continued to tell Plaintiff about complaints that Manzano

received regarding Plaintiff’s disposition. (Id.) Plaintiff also

alleges that Manzano stated, on several occasions, that Plaintiff

was “too shy.” (Id.)

Plaintiff additionally alleges that she asked to be relocated

from her desk in a “high-traffic area” to a desk that was in a

quieter part of the office, as “idle cit [sic] chat and small talk”

activated her social anxiety. (Id. at ¶ 25.) Manzano refused to

allow Plaintiff to move, and instead requested that Plaintiff sit

in front of her. (Id.)

Plaintiff further alleges that she was asked to “sit two to

three times a week at the front desk for at most half an hour,” a

responsibility that was outside her scope of work as an HR Partner.

(Id. at ¶ 26.) She does not allege whether the only other HR

Partner was also required to sit at the front desk. On June 20,

2019, Plaintiff alleges that she was at the front desk when

Defendant Labro walked over and “threw a stack of papers at [her].”

(Id.) Shortly after, Defendant Lawal asked Plaintiff for paperwork

with which Plaintiff was unfamiliar; when Plaintiff could not

produce the paperwork, Plaintiff alleges that Lawal “walked off in

a fury.” (Id. at ¶ 37.) After Labro and Lawal went to Klein and

complained that “Plaintiff was rude and not doing things

correctly,” Klein and Manzano scheduled a meeting among Plaintiff,

Labro, and Lawal. (Id. at ¶ 38.)

At the meeting, Plaintiff alleges that Lawal and Labro “took

turns yelling” at the Plaintiff. (Id. at ¶ 39.) Plaintiff alleges

that she told Manzano during the meeting that the yelling was

“triggering her PTSD” and requested to leave the room, but Manzano

refused her request. (Id.) Plaintiff also asked whether Klein

could review the office cameras to confirm whether Labro threw the

papers at Plaintiff, but Klein refused to do so. (Id. at ¶ 40.)

C. Sex Discrimination

Plaintiff alleges that in June 2019, Ong openly discussed

Plaintiff’s body with co-workers, saying that Plaintiff “sometimes

had breasts and sometimes didn’t.” (Id. at ¶ 28.) That same

month, Ong stood over Plaintiff and “looked down her T-shirt as

she sat working.” (Id.)

Plaintiff also contends that Klein sexually harassed her.

She alleges that in June 2019, Klein stood so close to her that

“his crotch was inches away from her face”; he then “looked down

at her and bit his lower lip.” (Id. at ¶ 29.) Later that month,

after Plaintiff returned from a day off, she alleges that Klein

approached her and said, “I missed you yesterday” in a “low sad

sounding voice without making eye contact.” (Id. at ¶ 30.) In

July 2019, Plaintiff alleges that she turned around at work to

find Klein’s eyes “fixed at the level where Plaintiff’s crotch/rear

end would be,” with a “grin on his face.” (Id. at ¶ 45.) Plaintiff

“realized [that] he was staring at her rear before she turned

around.” (Id.)

Plaintiff alleges that the work environment “was causing her

panic attacks and affecting her health,” and that her symptoms

worsened to such an extent that a psychiatrist prescribed her

medication for panic attacks. (Id. at ¶ 31.)

D. Religious Discrimination

Plaintiff also alleges that Advanced Care Staffing failed to

accommodate her dietary restrictions as a Muslim. Per her Muslim

faith, Plaintiff does not eat pork; she alleges that at office

parties, only Filipino food was served, which always contained

pork. (Id. at ¶ 61.) She also alleges that for Jewish employees,

the company “made sure [the food] was Kosher.” (Id.)

Further, Plaintiff argues that Jewish employees were favored

with respect to holidays. Plaintiff alleges that Advanced Care

Staffing employees were provided only one “floating holiday,”

which could only be used on “one of two Jewish holidays.” (Id. at

¶ 62.) She also alleges that the company’s Jewish employees were

allowed to leave work early on Fridays. (Id.)

E. Retaliation

Plaintiff alleges that she suffered retaliation after she

refused repeated requests of Advanced Care Staffing’s operations

managers that she violate company policies and procedures, and

that they “expected and demanded the rules be bent for them.” (Id.

at ¶¶ 20-22, 42-43, 72-76.) She alleges that Defendant Machado

provided incomplete new hire submissions but then “demanded . . .

new hires be accepted”; after Plaintiff refused to do so, Defendant

Manzano told Plaintiff that she “ha[d] to be a team player.” (Id.

at ¶ 20.) Plaintiff allegedly was “screamed at” by the operation

managers, who “lashed out when she would not bend the rules,” and

Plaintiff was left “to enforce the [new hire] policy alone.” (Id.

at ¶ 21.) Plaintiff also refused to “process applications that

had not been signed by . . . applicants but rather had a typed-in

signature with a script font,” which Defendants Manzano and Jurado

refused to acknowledge was wrong. (Id. at ¶¶ 42-43.)

Plaintiff alleges that on July 16, 2019, Defendant Klein

retaliated against her for refusing to bend rules and violate

company policy, and terminated her employment, but that Klein

stated only that “things [were] not working out” and that she “did

nothing wrong.” (Id. at ¶ 46.) Klein allegedly offered Plaintiff

three weeks’ pay if she resigned; in a follow-up email to Klein,

on July 17, 2019, Plaintiff refused to resign, and instead raised

complaints that she had been discriminated against. (Id. at ¶¶

47-48.) Plaintiff alleges that Klein subsequently refused to

communicate with her and directed her to speak with Advanced Care

Staffing’s counsel. (Id. at ¶ 49.)

Plaintiff alleges that after her termination by Advanced Care

Staffing, as part of her job search, she applied to Shema Kolainu,

a school in Brooklyn. (Id. at ¶ 50.) She alleges that the

application asked for a prior employment verification form, but

that Advanced Care Staffing — through counsel — refused to provide

a letter “stating her hire date, end date, and position.” (Id. at

¶ 51.) Finally, Plaintiff alleges that she did not receive a

paystub for her last payment from Advanced Care Staffing. (Id. at

¶ 52.) Because she did not have proof of her final earnings, she

alleges that she was unable to file for unemployment benefits.

(Id.)

Based on the above allegations, the Court construes the SAC

to assert claims of discrimination based on national origin, sex,

and religion, hostile work environment, disability and denial of

reasonable accommodation, and retaliation.

II. Procedural History

A. State and EEOC Administrative Proceedings

On August 27, 2019, Plaintiff filed a charge of discrimination

with the New York State Division of Human Rights (“NYSDHR”), which

was cross-filed with the Equal Employment Opportunity Commission

(“EEOC”), alleging discrimination based on race/ethnicity,

national origin, religion, gender identity, and sex.4 (Id. at ¶

53; ECF No. 67-1, Certification of Jacqueline Voronov with Exhibits

at 5-10.) Plaintiff also alleged retaliation “for having opposed

her employer’s discriminatory conduct.” (ECF No. 63 at ¶ 53.)

The NYSDHR made a finding of “no probable cause” because, inter

alia, Defendants stated that Plaintiff had been terminated for

poor performance and insubordinate behavior; Plaintiff’s

corroborating witness did not appear for an NYSDHR interview

despite multiple attempts at contact; Plaintiff appeared to have

conflicts with multiple employees, regardless of protected class,

4 Defendants attached Plaintiff’s NYSDHR complaint and NYSDHR’s finding to their

motion to dismiss. (ECF No. 67-1.) The Court finds that these documents are

incorporated into the complaint by reference by Plaintiff, and thus the Court

may consider them when deciding Defendants’ motion to dismiss. See Nicosia,

834 F.3d at 230–31 (courts may consider on a motion to dismiss “any statements

or documents incorporated in [the complaint] by reference”).

including calling a Black gay employee a “princess”; and NYSDHR

presumes that discrimination is absent where, as here, an employee

is hired and fired within a short period of time by the same

superior, absent other evidence to the contrary, and Plaintiff was

fired after working as a probationary employee for less than three

months. (ECF No. 67-1 at 12-14.) On September 29, 2020, the EEOC

adopted the NYSDHR’s determination and issued Plaintiff notice of

her right to sue, which she received on October 4, 2020. (Id. at

55; ECF No. 63 at ¶ 53.)

B. Instant Action

Plaintiff filed her initial complaint in the Southern

District of New York on January 4, 2021, against Advanced Care

Staffing, Kashieria Franklyn, “Gia Guerra,” Liz Jurado, Sam Klein,

Jan Romwel Labro, Luz Lozano, Regina Machadoa, Wilma Manzano, “Ola

Doe,” and Jubert Ong. (ECF No. 1.) The U.S. Marshals executed

service of the summons and complaint on the named defendants on

March 15, 2021. (ECF Nos. 17-20, Marshal’s Process Receipt and

Return of Service Executed.) On August 2, 2021, venue was

transferred to the Eastern District of New York, as Advanced Care

Staffing is located in Brooklyn, New York. (ECF No. 36 at 1; 38.)

The action was assigned to the undersigned on December 8, 2021.

(12/08/2021 Order.)

After a pre-motion conference on February 8, 2022, during

which the Court explained the bases of Defendants’ proposed motion

to dismiss, the parties engaged in settlement negotiations and

attempted mediation, both of which were unsuccessful. (02/08/2022

Minute Entry; ECF Nos. 50, 52, 60; 06/21/2022 Report.) Plaintiff

was granted leave to and did file an amended complaint on April

29, 2022, withdrawing three defendants and naming “Olubunmi Lawal”

as a defendant. (ECF No. 58, Amended Complaint.) At Defendants’

request, the Court held a second pre-motion conference on August

3, 2022, at which the Court granted Plaintiff a final opportunity

to amend. (08/03/2022 Minute Entry.) Plaintiff filed the SAC on

September 2, 2022, naming the same defendants as the amended

complaint. (ECF No. 63.) Defendants moved to dismiss Plaintiff’s

SAC pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack

of subject matter jurisdiction, Federal Rule of Civil Procedure

12(b)(5) for insufficient service of process on Defendant Lawal,

and Federal Rule of Civil Procedure 12(b)(6) for failure to state

a claim. (ECF No. 67.) The motion to dismiss was fully briefed

on November 28, 2022.5 (Id.)

LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6),

“a complaint must contain sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its

5 Defendants requested oral argument, due to the “numerous factual and legal

issues presented” in Plaintiff’s SAC. (ECF No. 68.) Given the extensive

briefing and Defendants’ presentation of the “numerous factual and legal issues”

in their motion papers, the Court declines to hold oral argument.

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. Although

“detailed factual allegations” are not required, “[a] pleading

that offers labels or conclusions or a formulaic recitation of the

elements of a cause of action will not do.” Id. (internal

quotation marks and citation omitted).]

“A document filed pro se is to be liberally construed, and a

pro se complaint, however inartfully pleaded, must be held to less

stringent standards than formal pleadings drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal

quotation marks, italics, and citations omitted). “Nonetheless,

a pro se complaint must state a plausible claim for relief.” Darby

v. Greenman, 14 F.4th 124, 128 (2d Cir. 2021) (italics omitted)

(internal quotation marks omitted).

DISCUSSION

I. Insufficient Service of Process

Defendants first argue that Plaintiff’s claims against

Defendant Lawal must be dismissed for insufficient service of

process pursuant to Federal Rule of Civil Procedure 12(b)(5).

(Def. Mem. at 18.) They assert that Defendant Lawal was never

served with the summons and complaint after he was added as a party

in Plaintiff’s first and second amended complaints. (Id.)

Under Federal Rule of Civil Procedure 4, a plaintiff must

serve the summons and complaint on a defendant within ninety days

of filing a complaint. Fed. R. Civ. P. 4(c)(1), (m). Rule 4(m)

provides that the Court, upon plaintiff’s failure to timely serve

a defendant, shall either “dismiss the action without prejudice”

or “order that service be made within a specified time.” Any

pleadings “filed after the original complaint” must be served on

every party. Fed. R. Civ. P. 5(a)(1)(B). The Second Circuit has

stated that when district courts consider whether to dismiss a

complaint for failure to properly serve, pro se plaintiffs “should

be granted special leniency.” LeSane v. Hall’s Sec. Analyst, Inc.,

239 F.3d 206, 209 (2d Cir. 2001); see also Thrall v. Cent. New

York Reg’l Transp. Auth., 399 F. App’x 663, 666 (2d Cir. 2010)

(citations omitted).

Here, the docket reflects that Plaintiff failed to serve

Defendant Lawal. (See ECF No. 7.) After the Southern District of

New York granted Plaintiff’s motion to proceed in forma pauperis

on February 3, 2021, the U.S. Marshals served the summons and

complaint on then-defendants Gianellie Guerra, Jan Romwel Labro,

Liz Jurado, Luz Lozano, Wilma Manzano, Regina Machado, Kashieria

Franklyn, Sam Klein, Jubert Ong, Ola Abudu, and Advanced Care

Staffing. (ECF Nos. 10-20.) After the case was transferred to

this Court on July 26, 2021, Plaintiff filed an amended complaint

on April 29, 2022, removing as defendants Kashieria Franklyn, Luz

Lozano and Ola Abudu and adding Olubunmi Lawal as a defendant.

(ECF No. 58, Amended Compl.) The docket does not show service of

the summons and amended complaint on Defendant Lawal. On September

2, 2022, Plaintiff filed a second amended complaint against

Defendants, including Defendant Lawal, but the docket again does

not reflect service of the second amended complaint on Defendant

Lawal. (ECF No. 63.)

Ordinarily, where a party has not been served with a summons

and complaint, this Court must dismiss the complaint without

prejudice. The Court, however, “must extend the time for service

for an appropriate period” if a plaintiff demonstrates “good cause”

for failure to effect service within 90 days. Fed. R. Civ. P.

4(m). Additionally, the Court “has discretion to enlarge the [90-

day] period for service in the absence of good cause.” Green v.

Unwin, 563 F. App’x 7, 8 (2d Cir. 2014) (summary order).

Here, Plaintiff is pro se, and thus is granted special

leniency regarding service, although “a plaintiff’s pro se status

. . . does not automatically amount to good cause for failure to

serve in the allotted time.” Allore v. Specialized Loan Servicing,

LLC, 17-cv-3729(AMD)(VMS), 2018 WL 2048368, at *1 (E.D.N.Y. May 1,

2018) (citation omitted). The Court particularly notes that

service of the original complaint was carried out by the U.S.

Marshals, given Plaintiff’s IFP status. (ECF Nos. 10-20.) More

importantly, however, Defendant Lawal has had notice that

Plaintiff’s amended complaint and second amended complaint named

him as a defendant. Defendant Lawal is represented by the same

counsel as the eight other defendants in the instant action, and

counsel filed a second pre-motion conference request on behalf of

all Defendants, including Lawal, after Lawal was named in

Plaintiff’s amended complaint. (ECF Nos. 58, 61.) Accordingly,

the Court finds that the likelihood of prejudice against Lawal for

Plaintiff’s failure to serve is low. Therefore, the Court denies

Defendants’ motion to dismiss Plaintiff’s claims against Lawal

pursuant to Rule 12(b)(5) for insufficient service of process. As

discussed in detail below, given that this Court finds that the

SAC fails to state any claims against Defendant Lawal, the Court

does not extend the timeline for service.

II. Threshold Issues

a. Timeliness

“Before a plaintiff may assert claims under Title VII . . .

in federal court, [she] must present the claims forming the basis

of such a suit in a complaint to the EEOC.” Zoulas v. N.Y.C. Dep’t

of Educ., 400 F. Supp. 3d 25, 49 (S.D.N.Y. 2019) (citing Littlejohn

v. City of New York, 795 F.3d 297, 322 (2d Cir. 2015)). The same

is true of claims pursuant to the ADA. See Clark v. Jewish

Childcare Ass’n, Inc., 96 F. Supp. 3d 237, 258 (S.D.N.Y. 2015).

A claim under each of these statutes is time barred if the

plaintiff does not file a charge with the EEOC “within 180 days of

the alleged illegal discriminatory or retaliatory act or file[ ]

a complaint with an appropriate state or local agency within 300

days of the occurrence of the alleged illegal act.” Cruz v. City

of New York, No. 21- cv-1999(DLC), 2021 WL 5605139, at *4 (S.D.N.Y.

Nov. 30, 2021) (citing 42 U.S.C. § 2000e-5(e)(1) (Title VII); 42

U.S.C. § 12117(a) (ADA)).

Here, Plaintiff alleges that the alleged discriminatory and

retaliatory acts occurred between April 2019 and July 2019.

Plaintiff filed a charge of discrimination with NYSDHR on August

27, 2019, well within the 300-day period provided by federal law.

(ECF No. 67-1 at 5-10). Accordingly, because the NYSDHR charge

was cross-filed with the EEOC, Plaintiff’s claims were timely filed

before the EEOC.

b. Administrative Exhaustion

“Under Title VII, a complainant must ‘exhaust’ her

administrative remedies by filing a complaint with the EEOC or an

authorized state agency prior to the commencement of a Title VII

action in federal court, and that complaint must name the

defendant.”6 Belyea v. City of Glen Cove, No. 20-CV-5675 (MKB),

6 The United States Supreme Court held in Fort Bend County, Texas v. Davis, 139

S. Ct. 1843 (2019), that Title VII’s administrative exhaustion requirement is

not a jurisdictional prerequisite and can be waived if not timely asserted.

Here, no waiver issues are present with respect to administrative exhaustion

2022 WL 3586559, at *9 (E.D.N.Y. Aug. 22, 2022) (citing Edo v.

Antika Pizzeria Astoria, Inc., 852 F. App’x 618, 619 (2d Cir. 2021)

(summary order)). Claims not raised in an EEOC complaint, however,

“may be brought in federal court if they are reasonably related to

the claim filed with the agency.” Zarda v. Altitude Express, Inc.,

883 F.3d 100, 110 n.5 (2d Cir. 2018) (en banc) (internal quotation

marks and citation omitted).

“Reasonably related” claims are recognized in three

situations: where (1) the alleged discriminatory conduct “would

fall within the ‘scope of the EEOC investigation which can

reasonably be expected to grow out of the charge of

discrimination’”; (2) the claim is one of “retaliation by an

employer against an employee for filing an EEOC charge”; and (3)

the plaintiff “alleges further incidents of discrimination carried

out in precisely the same manner alleged in the EEOC charge.”

Terry v. Ashcroft, 336 F.3d 128, 151 (2d Cir. 2003) (citations

omitted); see also Carter v. New Venture Gear, Inc., 310 F. App’x

454, 458 (2d Cir. 2009) (summary order). “The central question is

whether the complaint filed with the EEOC gave that agency

‘adequate notice to investigate discrimination on both bases.’”

Ximines v. George Wingate High Sch., 516 F.3d 156, 158 (2d Cir.

2008) (citation omitted).

because Defendants asserted lack of exhaustion as a basis for dismissal. (See

ECF No. 67-2, Def. Mem. at 17‒19.)

Defendants correctly assert that Plaintiff (1) failed to name

Defendant Lawal and (2) did not identify disability as a basis for

discrimination in the NYSDHR complaint. (ECF No. 67-2, Def. Mem.

at 18.) Defendants therefore argue that all claims against Lawal

must be dismissed and that Plaintiff’s ADA claim must be dismissed.

Plaintiff counters that Lawal was the party identified as “Ola

Doe,” whose name was on the NYSDHR complaint. (ECF No. 67-3,

Plaintiff’s Opposition (“Pl. Opp.”) at 3.) She also concedes that

she did not check the disability box on the NYSDHR complaint, but

asserts that she raised allegations related to disability

discrimination in the NYSDHR complaint. (Id. at 2.)

Regarding Defendant Lawal, this Court assumes without finding

that “Ola Doe” was intended to be Lawal, and declines to dismiss

Plaintiff’s claims against Lawal for lack of administrative

exhaustion.

Regarding Plaintiff’s ADA claim, this Court agrees with

Defendants that Plaintiff failed to exhaust her claim. There is

no dispute that Plaintiff failed to check the “disability” box in

her NYSDHR complaint, which was cross-filed with the EEOC. (See

ECF No. 67-3, Pl. Opp. at 6 (“The Plaintiff raised disability

discrimination in her New York State Division of Human Rights

Pleadings despite not checking the disability box.”) Although

checking the box indicating the type of alleged discrimination on

an administrative claim form is not conclusive, “the absence of a

checkmark weighs against concluding that the plaintiff has alleged

discrimination on the basis of the claim designated by that box.”

Lebowitz v. N.Y.C. Dep’t of Educ., 407 F. Supp. 3d 158, 174

(E.D.N.Y. 2017). Further, although Plaintiff asserts in her

opposition that she included allegations related to disability

discrimination in her NYSDHR complaint, that complaint states only

the following allegations:

I was repeatedly harassed[sic] by phillopino[sic] staff.

I was treaeted[sic] less favorably than phillopino

staff. I was sexually harassed by management and staff.

I was asked to do unlawful acts by management. I was

asked to work without overtime. I was given excessive

duties compared to my colluege[sic]. I was denied

employment verification. False complaints were filed

against me.

(ECF No. 67-1 at 9.) None of these allegations directly mention

or provide notice of disability discrimination or failure to

accommodate.

Nor are these allegations “reasonably related” to conduct

that could constitute discrimination on the basis of disability.

See Ximines, 516 F.3d at 158 (“The central question is whether the

complaint filed with the EEOC gave that agency ‘adequate notice to

investigate discrimination on both bases.”). Although Plaintiff’s

allegations in the NYSDHR complaint may be liberally construed as

asserting national origin, race, and sex discrimination and

retaliation claims, the allegations do not – even liberally

construed – support a disability claim. Further, the NYSDHR’s

three-page finding of “no probable cause” described in detail the

agency’s investigation, including reviewing Plaintiff’s written

rebuttal, conducting an interview with Plaintiff, and attempting

to speak to Plaintiff’s witnesses, and does not mention alleged

disability discrimination. (ECF No. 67-1 at 12-14.) Specifically,

the NYSDHR’s three-page finding never mentions that Plaintiff has

a disability, nor that Plaintiff believes that she was

discriminated against based on a disability. (Id.) The Court

therefore finds that Plaintiff’s ADA claims were not raised in the

administrative proceeding, are not reasonably related to her

national origin, race, sex, gender identity, and religious

discrimination and retaliation claims that were raised in the

administrative proceeding, and are barred in this action.

Accordingly, Plaintiff’s ADA claims are dismissed.

III. Failure to State a Claim

a. Discrimination under Title VII

As a preliminary matter, “Title VII does not impose liability

on individuals.” Lore v. City of Syracuse, 670 F.3d 127, 169 (2d

Cir. 2012); see also Reynolds v. Barrett, 685 F.3d 193, 202 (2d

Cir. 2012) (“Employers, not individuals, are liable under Title

VII.”). Accordingly, the Court dismisses Plaintiff’s Title VII

discrimination and retaliation claims against individual

Defendants Klein, Manzano, Ong, Jurado, Labro, Guerra, and Lawal.

As for Plaintiff’s remaining Title VII claims against

Advanced Care Staffing, Title VII makes it unlawful for an employer

“to fail or refuse to hire or to discharge any individual, or

otherwise to discriminate against any individual with respect to

his compensation, terms, conditions, or privileges of employment,

because of such individual’s race, color, religion, sex, or

national origin.” 42 U.S.C. § 2000e-2(a)(1). To survive a motion

to dismiss, “absent direct evidence of discrimination,” a

plaintiff must plausibly allege that he or she “is a member of a

protected class, was qualified, suffered an adverse employment

action, and has at least minimal support for the proposition that

the employer was motivated by discriminatory intent.” Littlejohn

v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015). Therefore,

in an employment discrimination case, a plaintiff must plausibly

allege that: “(1) the employer took adverse action against him,

and (2) his race, color, religion, sex, or national origin was a

motivating factor in the employment decision.” Vega v. Hempstead

Union Free School Dist., 801 F.3d 72, 87 (2d Cir. 2015).

The parties do not dispute that Plaintiff is a member of a

protected class (or multiple protected classes). (ECF No. 67-2,

Def. Mem. at 22 (“Defendants will not dispute, for purposes of

this Motion, that Plaintiff belongs to various protected

classes.”). Defendants, however, dispute that Plaintiff was

qualified for her position, that she suffered an adverse employment

action, and that a plausible inference of discriminatory intent

has been adequately pleaded. (Id.) Plaintiff alleges that she

had two prior positions as a human resources assistant, which this

Court assumes, without determining, suffices to make her qualified

for the HR Partner position for which Advanced Care Staffing hired

her. (ECF No. 63 at ¶ 19.) Additionally, Plaintiff clearly

suffered an adverse action when she was terminated from Advanced

Care Staffing. See Buon v. Spindler, 65 F.4th 64, 80 (2d Cir.

2023) (“[I]t is also well settled that ‘firing’ . . . constitute[s]

adverse employment action[].”).

Therefore, at issue is only the fourth Littlejohn element —

requiring that the facts alleged provide “at least minimal support

for the proposition that the [adverse action of the] employer was

motivated by discriminatory intent.” 795 F.3d at 311 (“The facts

required by Iqbal . . . need only give plausible support to a

minimal inference of discriminatory motivation.”) A plaintiff can

support such an inference by (a) “demonstrating that similarly

situated employees of a different race or national origin [or

religion or sex/gender] were treated more favorably,” (b) “showing

that there were remarks made by decisionmakers that could be viewed

as reflecting a discriminatory animus,” or (c) “proving that there

were other circumstances giving rise to an inference of

discrimination on the basis of [the] plaintiff’s race or national

origin [or religion or sex/gender].” Nguyen v. Dep’t of Corr. and

Cmty. Serv., 169 F. Supp. 3d 375, 388 (S.D.N.Y. Mar. 11, 2016)

(citing Gelin v. Geithner, No. 06-cv-10176, 2009 WL 804144, at *15

(S.D.N.Y. Mar. 26, 2009) (citations and internal quotation marks

omitted), aff’d, 376 F. App’x 127 (2d Cir. 2010)).

Here, Plaintiff has not plausibly alleged factual

circumstances giving rise to an inference that illegal

discrimination was, in part, a motivating factor in her

termination.

i. National Origin

Plaintiff alleges that three Filipino managers verbally

harassed and berated her, a Guyanese woman. (ECF No. 63 at ¶ 20-

22, 27, 35, 56.) For example, Defendant Machado allegedly stated

that Plaintiff “didn’t know what they were doing” and Defendant

Ong told Plaintiff that she “didn’t know what she was doing” and

“needed to be trained.” (Id. at ¶¶ 20, 27.) Plaintiff, however,

does not allege any specific remarks by the operations managers

showing discriminatory animus towards Guyanese employees, such as

remarks disparaging Plaintiff’s place of national origin or

offensive remarks or slurs based on her national origin. (Id. at

¶¶ 20, 22.) Absent factual allegations of discriminatory acts

bearing on Plaintiff’s Guyanese national origin, Plaintiff’s

interactions with the operations managers, even if deeply

unpleasant, do not rise to the level of discriminatory animus.

Krasner v. HSH Nordbank AG, 680 F. Supp. 2d 502, 513 (S.D.N.Y.

2010) (“Title VII does not prohibit employers from maintaining

nasty, unpleasant workplaces.”).

Plaintiff also alleges that the only other HR partner, a

“black female of Caribbean ancestry,” was treated more favorably

by the same Filipino managers than Plaintiff, and was “never

berated” by the Filipino managers. (Id. at ¶¶ 19, 35, 56.) “A

showing of disparate treatment—that is, a showing that an employer

treated plaintiff less favorably than a similarly situated

employee outside [her] protected group—is a recognized method of

raising an inference of discrimination.” Abdul-Hakeem v.

Parkinson, 523 F. App’x 19, 20 (2d Cir. 2013) (summary order)

(citation omitted). To do so, the other employee must be

“similarly situated to the plaintiff in all material respects.”

Ruiz v. Cnty. of Rockland, 609 F.3d 486, 494 (2d Cir. 2010)

(internal quotation marks omitted).

Here, however, Plaintiff alleges that she was newly hired and

on a 90-day probationary period for the HR Partner role. (ECF No.

63 at 18.) Plaintiff does not allege that the non-Guyanese HR

Partner was also newly hired or on a probationary period.

Probationary and permanent employees often are not similarly

situated for purposes of Title VII claims. Cf. Feingold v. New

York, 366 F.3d 138, 153 (2d Cir. 2004) (holding that plaintiff as

a probationary employee was not similarly situated to the other

employees regarding conditions under which he could be terminated,

although where evidence showed members of one race “were not

disciplined at all” for conduct at issue, discriminatory motive

could be inferred); Woods v. Newburgh Enlarged City Sch. Dist.,

288 F. App’x 757, 760 (2d Cir. 2008) (summary order) (probationary

and permanent employees not similarly situated). Plaintiff

therefore has not plausibly alleged facts to support an inference

of discriminatory treatment and motivation based on national

origin, with regard to the dissimilarly situated comparator.

Finally, Plaintiff alleges that, including herself, there

were three Guyanese women on staff at Advanced Care Staffing,

another of whom was told that she “doesn’t know what she is doing”

and all of whom were terminated or resigned “within a short

period.” (ECF No. 63 at ¶¶ 56, 58.) Yet Plaintiff simply does

not provide sufficient factual allegations regarding the other

Guyanese women to plead “circumstances giving rise to an inference

of discrimination on the basis of . . . national origin.” Nguyen,

169 F. Supp. 3d at 388. Accordingly, Plaintiff’s Title VII claims

of national origin discrimination are dismissed.

j. Religion

Plaintiff alleges that, as a Muslim, she does not eat pork.

(ECF No. 63 at ¶ 61.) She further alleges, in apparent

contradictory fashion, that food provided at Advanced Care

Staffing’s “office parties” always contained pork, but that the

company made sure that any food “provided for Jewish employees”

was kosher. (Id.) Plaintiff does not allege that she could not

or would not eat kosher food offered at the office parties. She

also alleges that employees were offered two “floating holiday[s]”

but were required to use those days “on one of two Jewish

holidays.” (Id. at 62.) She further alleges that Jewish employees

were “allowed to go home early on Fridays.” (Id.) Plaintiff does

not allege that she ever requested to use “floating holidays” to

observe a religious holiday.

Under Title VII, employees may assert two different theories

of religious discrimination: disparate treatment and failure to

accommodate. Livingston v. City of New York, 563 F. Supp. 3d 201,

232 (S.D.N.Y. 2021); see generally Elmenayer v. ABF Freight Sys.,

Inc., 318 F.3d 130 (2d Cir. 2003). To plausibly state a disparate

treatment claim, Plaintiff must allege, inter alia, that she

“suffered an adverse job action under circumstances giving rise to

an inference of discrimination on the basis of . . . religion.”

Tassy v. Buttigieg, 51 F.4th 521, 529 (2d Cir. 2022). None of the

allegations in the SAC give rise to an inference that Plaintiff’s

termination was based on religion, nor does Plaintiff allege any

other adverse employment action that is related to her allegations

concerning her Muslim faith.

Plaintiff’s allegations similarly fall short of stating a

failure to accommodate claim. The Supreme Court has held that an

employer need not have “actual knowledge” of an employee’s need

for a religious accommodation to be held liable under Title VII

for an employment decision. See E.E.O.C. v. Abercrombie & Fitch

Stores, Inc., 575 U.S. 768, 772-73 (2015). Nevertheless, an

employee must establish that “the employer’s desire to avoid the

prospective accommodation [was] a motivating factor in [an

employment] decision.” Id. at 773-74. None of Plaintiff’s factual

allegations explain how her religious beliefs may have impacted

Advanced Care Staffing’s decision to terminate her employment, or

any other adverse employment action. Accordingly, Plaintiff’s

Title VII claim of religious discrimination is dismissed.

b. Sex Discrimination and Hostile Work Environment under

Title VII

Plaintiff additionally alleges that Defendants Ong and Klein

sexually harassed her. Because Title VII “indirectly prohibits

sexual harassment on the basis that harassment can be a form of

sex discrimination when it leads to a hostile environment,” and

because Plaintiff is pro se, the Court liberally construes the SAC

as attempting to assert a hostile work environment claim. Tubbs

v. Stony Brook Univ., 343 F. Supp. 3d 292, 307 (S.D.N.Y. 2018).

“A hostile work environment claim requires a plaintiff to

show that his or her workplace was so severely permeated with

discriminatory intimidation, ridicule, and insult that the terms

and conditions of [his or] her employment were thereby altered.”

Agosto v. New York City Dep’t of Educ., 982 F.3d 86, 101 (2d Cir.

2020) (internal quotation marks and citation omitted). The Court

must assess objective and subjective elements: “the misconduct

shown must be ‘severe or pervasive enough to create an objectively

hostile or abusive work environment,’ and the victim must also

subjectively perceive that environment to be abusive.” Id.

(quoting Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002)).

“Factors relevant to whether a workplace is objectively hostile

include the frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably interferes with

the employee’s work performance.” Gerzhgorin v. Selfhelp Cmty.

Servs., Inc., No. 22-808, 2023 WL 2469824, at *3 (2d Cir. Mar. 13,

2023) (summary order) (alteration, internal quotation marks, and

citation omitted). It is “axiomatic that in order to establish a

sex-based hostile work environment under Title VII, a plaintiff

must demonstrate that the conduct occurred because of her sex.”

Desardouin v. City of Rochester, 708 F.3d 102, 105 (2d Cir. 2013)

(internal quotation marks and citation omitted). There also must

be a “specific basis for imputing the conduct creating the hostile

work environment to the employer.” Duch v. Jakubek, 588 F.3d 757,

762 (2d Cir. 2009).

Here, in support of her claim that she suffered a hostile

work environment, Plaintiff alleges that (1) Ong stated that

Plaintiff “sometimes had breasts and sometimes didn’t” in front of

coworkers; (2) Ong “looked down her T-shirt” while she worked; (3)

Klein “stood so close to Plaintiff as she sat working” that his

“crotch was inches away from her face” and he “bit his lower lip”;

(4) Klein stated “I missed you yesterday” to Plaintiff in a low

voice after she took a day off; and (5) Klein once stared at “the

level where Plaintiff’s crotch/rear end would be.” (Id. at ¶¶ 28-

30, 45.)

Assuming Plaintiff’s allegations to be true, as the Court

must at the motion to dismiss stage of the proceedings, the Court

finds that this offensive, humiliating, and highly inappropriate

conduct establishes “an objectively hostile or abusive work

environment.” Agosto, 982 F.3d at 101. First, other than Klein’s

alleged comment that he “missed” Plaintiff on her day off, the

alleged discriminatory conduct all explicitly invoked Plaintiff’s

sex and/or gender identity. See Olsen v. Suffolk Cnty., No. 15-

CV-4064(JS)(AYS), 2016 WL 5395846, at *11 (E.D.N.Y. Sept. 27, 2016)

(“[T]he overtly sexual nature of [Defendant’s] conduct leaves no

question that such action took place because of Plaintiff’s

gender.”). And given the context of Klein’s comment — that he

also had placed his “crotch . . . inches away from [Plaintiff’s]

face” and stared at her “crotch/rear end” — the Court finds that

Plaintiff has sufficiently alleged that the harassment occurred

based on the protected characteristic of Plaintiff’s sex and/or

gender identity. (ECF No. 63 at ¶¶ 28-30, 45); see Moll v.

Telesector Res. Grp., Inc., 760 F.3d 198, 203 (2d Cir. 2014)

(“Facially [sex-]neutral incidents may be included . . . among the

‘totality of the circumstances' that courts consider in any hostile

work environment claim, so long as a reasonable fact-finder could

conclude that they were, in fact, based on sex.”).

Additionally, the Court finds that the alleged discriminatory

conduct was frequent and “severely permeated” Plaintiff’s

workplace during her time as an employee. Agosto, 982 F.3d at

101. Courts have determined that discriminatory conduct

“persist[ing] on a weekly basis over an interval that lasted at

least two and perhaps three months” may establish a pervasively

hostile work environment. Desardouin, 708 F.3d at 106. Although

Plaintiff only worked at Advanced Care Staffing for 78 days, she

alleges five separate incidents in which she faced humiliating

“discriminatory intimidation, ridicule, and insult.” Agosto, 982

F.3d at 101. Such frequent conduct is “more than episodic” and

becomes “sufficiently continuous and concerted . . . to be deemed

pervasive.” Id. at 102 (quoting Desardouin, 708 F.3d at 105).

Further, though not physically threatening, the alleged

discriminatory conduct was more than merely offensive,

particularly given that Defendants Ong and Klein both commented on

and interacted with Plaintiff’s body in a sexual manner, with Ong

“look[ing] down her T-shirt” and with Klein placing his “crotch

. . . inches away from her face” as he “bit his lower lip.” (ECF

No. 63 at ¶¶ 28-30, 45). Plaintiff’s allegations concerning the

humiliating nature of the conduct, and its frequency, therefore

sufficiently establish altered working conditions. See Pucino v.

Verizon Wireless Commc’ns, Inc., 618 F.3d 112, 119 (2d Cir. 2010)

(“[A] plaintiff need not show that her hostile working environment

was both severe and pervasive; only that it was sufficiently severe

or sufficiently pervasive, or a sufficient combination of these

elements, to have altered her working conditions.”).

Finally, Plaintiff sufficiently alleges that Advanced Care

Staffing had notice of the hostile work environment and failed to

take remedial action. To establish that Advanced Care Staffing

failed to take appropriate action, Plaintiff must demonstrate:

“(1) someone had actual or constructive knowledge of the

harassment, (2) the knowledge of this individual can be imputed to

the employer, and (3) the employer’s response, in light of that

knowledge, was unreasonable.” Duch, 588 F.3d at 763. Further,

“[t]he employer is charged with actual or constructive knowledge

of harassment where: (1) the official’s status in the management

hierarchy qualifies him as a ‘proxy’ for the company, (2) the

official has ‘a duty to act on the knowledge and stop the

harassment,’ or (3) the official has a ‘duty to inform the company

of the harassment.’” Olsen, 2016 WL 5395846, at *11 (quoting

Torres v. Pisano, 116 F.3d 625, 636-37 (2d Cir. 1997) (citations

omitted)). Although Plaintiff does not make any allegations that

she reported Defendant Ong’s conduct, Defendant Klein — who

allegedly performed most of the discriminatory harassment — is the

COO of Advanced Care Staffing, thus qualifying him as a “proxy.”

Torres, 116 F.3d 636. Accordingly, notice may be imputed to

Advanced Care Staffing of the alleged discriminatory harassment,

based on sex, against Plaintiff.

Accordingly, the Court denies Defendants’ motion to dismiss

Plaintiff’s Title VII hostile work environment claims based on sex

discrimination.7

c. Retaliation under Title VII

Title VII prohibits retaliation against an employee who “has

opposed any practice [that is] made an unlawful employment

practice” under Title VII. 42 U.S.C. § 2000e-3(a). Claims of

retaliation are analyzed under the McDonnell Douglas burden

shifting analysis. McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). At the pleading stage, “the allegations in the complaint

need only give plausible support to the reduced prima facie

7 Although Plaintiff did not raise a hostile work environment claim based on

national origin or her religion, this Court notes that Plaintiff’s allegations

fail to establish a national origin or religion-based hostile work environment

claim. As noted previously, none of Plaintiff’s allegations concerning her

interactions with the Filipino operations managers indicate discriminatory

animus on the basis of Plaintiff’s Guyanese national origin, nor does she

otherwise allege discriminatory animus on the basis of her Muslim faith. (ECF

No. 63 at ¶¶ 20, 22, 62.) Accordingly, Plaintiff does not sufficiently allege

that “her workplace was so severely permeated with discriminatory intimidation,

ridicule, and insults” as to create a hostile work environment based on her

national origin or religion classifications. Agosto, 982 F.3d at 101.

requirements that arise under McDonnell Douglas in the initial

phase of a Title VII litigation.” Littlejohn, 795 F.3d at 316.

To plead a prima facie retaliation claim, the Second Circuit

has recently reiterated that a plaintiff must allege: “(1) she

engaged in protected activity, (2) the defendant was aware of that

activity, (3) she was subjected to a retaliatory action, or a

series of retaliatory actions, that were materially adverse, and

(4) there was a causal connection between the protected activity

and the materially adverse action or actions.” Carr v. N.Y.C.

Transit Auth., No. 22-cv-792, 2023 WL 5005655, at *5 (2d Cir. Aug.

7, 2023).

Here, Plaintiff alleges that in performing her duties, she

refused to agree to other employees’ requests that were “in

violation of company policies and established procedures,” for

which she was terminated, and that Advanced Care Staffing

subsequently refused to give Plaintiff an employment verification

letter or a copy of her last paystub. (ECF No. 63 at ¶¶ 72-76.)

Plaintiff’s allegation that she “would not bend the rules” for

other employees regarding internal human resources protocol does

not constitute protected activity under Title VII. “Protected

activity includes opposition to a discriminatory employment

practice or participation in any investigation, proceeding, or

hearing under Title VII.” Hubbard v. Total Commc’ns, Inc., 347 F.

App’x 679, 680–81 (2d Cir. 2009) (summary order) (internal

quotation marks omitted). Because Plaintiff’s refusal to change

human resources practices was not done in opposition to a

discriminatory employment action, it does not constitute protected

activity. See id. Therefore, because this Court finds that

Plaintiff’s refusal to change human resources practices does not

constitute protected activity, Plaintiff fails to state a

retaliation claim on the basis that she refused to “bend the

rules.”

Although the SAC does not identify the post-termination email

that Plaintiff sent to Defendant Klein, Advanced Care Staffing’s

COO, as part of Plaintiff’s retaliation claim (ECF No. 63 at ¶¶

72-76), the Court acknowledges that Plaintiff is pro se and thus

liberally construes Plaintiff’s allegation that her post-

termination email complaining of discrimination and harassment

constitutes protected activity. See Sumner v. U.S. Postal Serv.,

899 F.2d 203, 209 (2d Cir. 1990) (finding that protected activity

may include “informal protests of discriminatory employment

practices, including making complaints to management”). She

alleges that, as a result of her post-termination email to

Defendant Klein, Advanced Care Staffing did not provide her with

a final paystub and did not provide an employment verification

letter. Plaintiff also appears to allege that her termination was

a retaliatory act.

First, although Plaintiff’s termination on July 16, 2019

could constitute a materially adverse action, her termination

occurred before she engaged in protected activity when she emailed

Defendant Klein on July 17, 2019, to complain about the allegedly

discriminatory behavior she experienced. (ECF No. 63 at § 46.)

Therefore, her termination was not causally connected to the July

17, 2019 email. See Rivera v. Rochester Genesee Reg’l Transp.

Auth., 743 F.3d 11, 25 (2d Cir. 2014) (“Title VII does not require

that a causal connection exist between a protected activity and an

adverse employment action that occurred before that activity.”).

Second, Plaintiff’s allegation that Advanced Care Staffing

refused to provide Plaintiff with her final paystub, is not

sufficient to establish a “retaliatory action” that is “materially

adverse.” Carr, 2023 WL 5005655, at *5. Plaintiff does not

provide a date or timeframe concerning the refusal to provide a

paystub, or any specific allegations other than that she “did not

receive her last pay stub which usually was sent to [her] by

email.” (ECF No. 63 at ¶ 52); Osby v. City of New York, No. 23-

CV-1731 (LTS), 2023 WL 2919127, at *3-4 (S.D.N.Y. Apr. 10, 2023)

(dismissing a retaliation claim where Plaintiff alleged a single

date for an allegedly adverse series of actions but no broader

timeframe for when events occurred). Plaintiff does not allege

whether she still had access to her Advanced Care Staffing email

during the time period that she would have received her final pay

stub. Plaintiff also does not allege that she was improperly paid;

indeed, she alleges that she “received her pay by direct deposit.”

(Id.); cf. Marraccini v. Belmont, No. 19-CV-8458 (VB), 2020 WL

5505364, at *6 (S.D.N.Y. Sept. 10, 2020) (finding an adverse

employment action where plaintiff allegedly was “misled into

thinking he would be compensated in accordance with his final

paystub if he resigned”). “Not receiving an earnings statement in

[her] preferred form does not constitute an adverse employment

action that materially altered the terms and conditions of

Plaintiff’s employment.” Ezeh v. Wilkie, No. 6:13-CV-6563 (EAW),

2019 WL 1428822, at *11 (W.D.N.Y. Mar. 29, 2019).

Plaintiff’s allegation, however, that after her employment

was terminated, Advanced Care Staffing’s counsel refused to

provide a letter with her “hire date, end date, and position”

reaches the level of materially adverse retaliatory action. Carr,

2023 WL 5005655, at *5; (ECF No. 63 at ¶ 51 (“Plaintiff asked

[counsel] for a letter stating her hire date, end date, and

position, but [counsel] refused.”). Courts have found that an

employer’s refusal, post-termination, to provide a reference or a

letter of recommendation can constitute an adverse action. See,

e.g., Pantchenko v. C. B. Dolge Co., 581 F.2d 1052, 1055 (2d Cir.

1978) (holding that employer’s alleged refusal to provide a post-

termination reference could violate Title VII); Corbett v.

Napolitano, 897 F. Supp. 2d 96, 113 (E.D.N.Y. 2012) (finding

adverse action where plaintiff alleged that employer circulated

negative references); Abreu v. Suffolk Cnty. Police Dep’t, No. 03-

CV-5927 (JFB) (WDW), 2007 WL 608331, at *12 (E.D.N.Y. Feb. 23,

2007) (refusing to write a letter of recommendation constituted

adverse action). Accordingly, Plaintiff’s allegations regarding

the employment verification suffice to plead an adverse action by

Advanced Care Staffing after her termination. Klem v. Popular

Ford Sales, Inc., 975 F. Supp. 196, 203 (E.D.N.Y. 1997) (finding

plaintiff pleaded prima facie retaliation where defendant

allegedly “declined to discuss her employment with another car

dealership”).

Further, Plaintiff has alleged sufficient facts to establish

a prima facie causal connection between her post-termination email

to Defendant Klein advising him of discrimination and sexual

harassment and Advanced Care Staffing’s refusal to provide her

with the employment verification form. Courts have found that

temporal proximity between protected activity and an adverse

action may provide sufficient evidence of causality where the

temporal proximity is “very close,” such as one month. Clark Cnty.

Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (citing cases

finding that a three-month period is insufficient). Here, although

Plaintiff did not allege a date or timeline for Advanced Care

Staffing’s refusal to provide an employment verification letter,

the Court construes the refusal as occurring between July 17, 2019,

when Plaintiff sent the post-termination email to Klein, and August

27, 2019, when Plaintiff signed the NYSHDR complaint alleging that

she “was denied employment verification.” (ECF No. 67-1, Exhibit

A at 8-10.) A period of six weeks suffices to establish prima

facie causal connection.

Accordingly, the Court denies Defendants’ motion to dismiss

Plaintiff’s Title VII retaliation claim based on the refusal to

provide employment verification after Plaintiff’s post-termination

email complaining of discrimination and sexual harassment.

IV. NYHRL and NYCHRL Claims

a. Election of Remedies Doctrine

Plaintiff also asserts failure to accommodate her disability,

discrimination based on national origin, sex, and religion, and

retaliation claims under NYHRL and NYCHRL. Defendants argue that

Plaintiff’s NYHRL and NYCHRL claims are barred by the election of

remedies doctrine, given that Plaintiff asserted her claims before

the NYSDHR prior to filing this action.

This Court agrees with Defendants that the election of

remedies doctrine applies in the instant action. The Second

Circuit has recognized that, under New York law, “NYHRL and

[NY]CHRL claims, once brought before the NYSDHR, may not be brought

again as a plenary action in another court.” York v. Ass’n of Bar

of City of New York, 286 F.3d 122, 127 (2d Cir. 2002); see also

Malcolm v. Ass’n of Supervisors & Adm'rs of Rochester, 831 F. App’x

1, 4 (2d Cir. 2020) (summary order) (“Under the election of

remedies doctrine, a plaintiff may not bring NYSHRL claims in

federal court if those claims have already been adjudicated before

the NYSDHR.”); Skalafuris v. City of New York, 444 F. App’x 466,

467 (2d Cir. 2011) (summary order) (“[NYHRL] provides an election-

of-remedies limitation, which bars a person who has filed a

complaint hereunder [with the NYSDHR] or with any local commission

on human rights from filing a lawsuit for the same cause of

action.” (internal quotation marks and citation omitted)).

Further, “there is no question that the election-of-remedies

provisions . . . apply to federal courts as well as state.” York,

286 F.3d at 127. Here, Plaintiff raised discrimination claims

based on national origin, sex, and religion, and retaliation claims

in the NYSDHR complaint she filed on August 27, 2019. (ECF No.

67-1, Exhibit A at 8-9.) As the Court found above, however,

Plaintiff did not raise disability discrimination in her NYSDHR

complaint.8 Accordingly, Plaintiff’s NYHRL and NYCHRL claims are

dismissed as to her national origin, sex, and religion

discrimination claims and retaliation claims, but not as to her

claims to failure to accommodate her disability.

8 Although Plaintiff’s federal ADA claim is dismissed for failure to exhaust,

“there is no exhaustion requirement under the [NYHRL] and the NYCHRL.” Cherry

v. N.Y.C. Hous. Auth., 564 F. Supp. 3d 140, 164 (E.D.N.Y. 2021) (citing Ross-

Caleb v. City of Rochester, 512 F. App’x 17, 17–18 (2d Cir. 2013) (summary

order)). Therefore, the Court considers Plaintiff’s claims under NYHRL and

NYCHRL for failure to accommodate her disability.

b. Failure to Accommodate Claims

To establish a prima facie case based on failure to

accommodate a disability under NYHRL, a plaintiff must show that

“(1) plaintiff is a person with a disability under the meaning of

[the statute]; (2) an employer covered by the statute had notice

of [her] disability; (3) with reasonable accommodation, plaintiff

could perform the essential functions of the job at issue; and (4)

the employer has refused to make such accommodations.” Tafolla v.

Heilig, No. 21-2327, 2023 WL 5313520, at *4 (2d Cir. Aug. 18,

2023); see also Graves v. Finch Pruyn & Co., 457 F.3d 181, 184 n.3

(2d Cir. 2006) (“A claim of disability discrimination under the

[NYHRL] . . . is governed by the same legal standards as govern

federal ADA claims.”).

Here, even assuming Plaintiff has alleged sufficient facts

regarding the other prima facie elements — disability and employer

notice — the Court concludes that she failed to sufficiently allege

that she could perform the essential functions of the job with

reasonable accommodations. Plaintiff alleges that she asked for

three reasonable accommodations: (1) when she told Defendant

Manzano that social situations were difficult for her and so she

did not want to say “hi” to employees of another company on the

same floor; (2) she asked to be “moved to an empty desk that was

not in a high-traffic area” because people “stopped to chat with

[her] frequently” even though those people “were not vital to her

position”; and (3) she asked to leave a meeting where Defendants

Lawal and Labro “took turns yelling” at her. (ECF No. 63 at ¶¶

23, 25, 39.) None of these allegations indicate that any of

Plaintiff’s requests relate to “essential functions” of her role

as HR Partner; indeed, Plaintiff specifically alleges that her

interactions with other people “were not part of [her] duties or

vital to her role.” (Id. at ¶ 25.) Nor does Plaintiff otherwise

allege that she had trouble accomplishing her tasks or fulfilling

the functions of the HR Partner position. To the contrary,

Plaintiff alleges that she was highly capable at performing her

role — she alleges that Defendant Manzano “liked the amount of

work Plaintiff was able to accomplish” and was “surprised by the

number of files Plaintiff was able to complete while [Plaintiff’s]

co-worker barely had any done.” (Id. at ¶¶ 59-60.) Accordingly,

the Court finds that Plaintiff fails to sufficiently allege a prima

facie failure to accommodate claim under NYHRL and dismisses

Plaintiff’s NYHRL failure to accommodate claim.

Plaintiff’s claim under NYCHRL similarly fails. The NYCHRL

provides that “an employer make reasonable accommodation to enable

a person with a disability to satisfy the essential requisites of

a job . . . provided that the disability is known or should have

been known by the employer.” Lazzari v. N.Y.C. Dept of Parks &

Recreation, 751 F. App’x 100, 102 (2d Cir. 2018) (summary order)

(alterations, internal quotation marks, and citation omitted). As

above, Plaintiff’s factual allegations do not sufficiently

establish that her accommodations requests related to “essential

requisites” of her job. Accordingly, the Court dismisses

Plaintiff’s NYCHRL failure to accommodate claim.

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss

for lack of subject matter jurisdiction under Federal Rule of Civil

Procedure 12(b)(1) is DENIED; Defendants’ motion to dismiss

Plaintiff’s claims against Defendant Lawal for insufficient

service of process under Federal Rule of Civil Procedure 12(b)(5)

is DENIED; and Defendants’ motion to dismiss Plaintiff’s federal

claims for failure to state a claim under Rule 12(b)(6) is GRANTED

as to Plaintiff’s Title VII claims against the individual

Defendants; GRANTED as to Plaintiff’s national origin and

religious discrimination claims and failure to accommodate claims

against Defendant Advanced Care Staffing under Title VII and

against all Defendants under NYHRL and NYCHRL; GRANTED as to

Plaintiff’s sex discrimination and retaliation claims against all

Defendants under NYHRL and NYCHRL; DENIED as to Plaintiff’s Title

VII sex-based hostile work environment claim against Defendant

Advanced Care Staffing; and DENIED as to Plaintiff’s Title VII

retaliation claim against Defendant Advanced Care Staffing based

on her post-termination email complaint.

The Clerk of Court is respectfully directed to terminate all

defendants other than Advanced Care Staffing. The remaining

parties are directed to engage in discovery under the supervision

of Magistrate Judge Lois Bloom regarding Plaintiff’s Title VII

retaliation and hostile work environment claims, and to engage in

renewed settlement efforts.

Defendants are requested to serve a copy of this Memorandum

and Order on pro se Plaintiff and note service on the docket by

September 8, 2023.

SO ORDERED

Dated: September 6, 2023

Brooklyn, New York b ——~

“Vy e+ tw

HON. KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York

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