# Kane v. Advanced Care Staffing, LLC

> District Court, E.D. New York · September 6, 2023

URL: https://www.frixlaw.com/law-library/cases/10310370

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 6, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10310370

## How later opinions describe it (automated extraction)

- finding plaintiff pleaded prima facie retaliation where defendant allegedly “declined to discuss her employment with another car dealership”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

--------------------------------------X
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.

--------------------------------------X
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

45

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10310370. Public record. Not legal advice.