Felix v. New York City Department of Education

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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:

CYNTHIA FELIX, :

Plaintiff, :

: 21 Civ. 6109 (LGS)

-against- :

: OPINION AND ORDER

NEW YORK CITY DEPARTMENT OF :

EDUCATION, :

Defendant. :

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LORNA G. SCHOFIELD, District Judge:

Plaintiff Cynthia Felix brings this employment discrimination action against Defendant

New York City Department of Education (the “DOE”). Plaintiff claims violations of the

Americans with Disabilities Act (the “ADA”) in the form of discrimination on the basis of her

disability, failure to accommodate, retaliation and hostile work environment. Defendant moves

for summary judgment on all of Plaintiff’s claims. For the reasons below, Defendant’s motion is

granted in part and denied in part.

BACKGROUND

The following facts are drawn from the parties’ Rule 56.1 statements and other

submissions on this motion. The facts are undisputed or based on record evidence drawing all

reasonable inferences in favor of Plaintiff as the non-moving party. See N.Y. State Teamsters

Conf. Pension & Ret. Fund v. C & S Wholesale Grocers, Inc., 24 F.4th 163, 170 (2d Cir. 2022).

In considering Defendant’s motion for summary judgment, the Court is “required to accept all

sworn statements by [Plaintiff] as to matters on which she [is] competent to testify, including

what she did, what she observed, and what she was told by company managers.” Davis-Garett v.

Urban Outfitters, Inc., 921 F.3d 30, 46 (2d Cir. 2019). The Court also “must disregard all

evidence favorable to [Defendant] that the jury is not required to believe,” that is, “give credence

to the evidence favoring [Plaintiff] as well as that evidence supporting [Defendant] that is

uncontradicted and unimpeached, at least to the extent that that evidence comes from

disinterested witnesses.” Id. (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

151 (2000)). The facts as summarized below reflect these principles.

A. Plaintiff’s Experience at the DOE

Plaintiff started working for the DOE in 1991 as a teacher in Harlem, New York. From

2017 to 2019, Plaintiff was the Senior Director of Bilingual Programs for the Division of

Multilingual Learners. Plaintiff worked in an office in downtown Manhattan known as the

“Tweed Courthouse” (“Tweed”).

Plaintiff suffers from several medical conditions. As a child, Plaintiff was diagnosed

with asthma. In 2006, Plaintiff was diagnosed with atrial septal defect. In 2014 or 2015,

Plaintiff was diagnosed with Chronic Obstructive Pulmonary Disease (“COPD”), pulmonary

fibrosis and hypertension. In 2016 or 2017, Plaintiff was diagnosed with atrial tachycardia and

flutter and arrhythmia.

B. Plaintiff’s New Position as an Instructional Specialist

On July 24, 2019, Plaintiff met with Alicia Roman,1 former Chief Operating Officer for

the Office of the Chief Academic Officer, and Mirza Sanchez-Medina, Plaintiff’s then immediate

supervisor. Plaintiff’s job title was changed to “instructional specialist,” a position that Plaintiff

currently holds. An instructional specialist is responsible for reviewing home instruction plans

submitted by parents who homeschool their children and providing those parents with guidance

1 Defendant refers to Alicia Roman née Dorsey as “Ms. Roman,” which is assumed to be her

preference. Plaintiff uses “Ms. Dorsey,” as that name appears in the record. This opinion uses

“Roman” rather than “Dorsey.”

and support concerning the guidelines on homeschooling. Roman and Sanchez-Medina

informed Plaintiff that her new job would be located in Long Island City, New York, and that as

of July 25, 2019, Plaintiff would no longer be working at Tweed. Plaintiff explained that she

could not medically tolerate the long commute to Long Island City (“LIC”) and asked Roman if

she could be assigned to an office in Brooklyn. Plaintiff never refused the LIC assignment nor

did she indicate that she would be returning to Tweed the next day.

When Plaintiff left Tweed on July 24, 2019, she left her Tweed ID on her desk. Tatevik

Garibyan, former division chief of operations, acting on the advice of Roman, submitted a

request to deactivate the ID. As a result of Garibyan’s request, the Department of Citywide

Administrative Services (the “DCAS”) created a “security alert” for Plaintiff. Garibyan and

Roman were aware of the alert and allowed it to remain in place. Between July 24, 2019, and

August 1, 2019, a photograph of Plaintiff was posted at the first-floor security desk at Tweed.

The photograph had a red banner above Plaintiff’s picture that stated “Alert.” Plaintiff felt upset

by the posting of her photograph.

On August 1 and 2, 2019, Garibyan and Carl Giaimo, a former DOE director, requested

DCAS to move Plaintiff’s photograph to a less visible location in deference to employee privacy.

On August 2, 2023, DCAS stated that it could not “honor this request as we do not have

permanent personnel assigned to the building. This is to ensure that individual does not walk by

the guard on duty.” On August 12, 2019, Giaimo emailed DCAS and requested that the alert

placed on Plaintiff be removed because her Tweed ID had been deactivated and requested that

Plaintiff be permitted to enter Tweed when escorted by another Tweed employee.

C. Plaintiff’s Accommodation Requests

On August 6, 2019, Plaintiff submitted an accommodation request form (the “August 6

Request”) to DOE Human Resources. In the August 6 Request, Plaintiff wrote:

I have a complex medical history that includes [congenital] heart disease, cardiac

[arrhythmia], COPD, pulmonary hypertension and neuropathy. I am unable to

travel long distances and have limits set by my doctor due to my disability. . . . I

am requesting a job location in Brooklyn NY as an EA 41 (my current position).

The supervisory postings (NYC DOE careers) have [comparable] positions in

Brooklyn that would allow me to fulfill my job duties without compromising my

health. I cannot travel to Vernon Blvd location as it [is] a medical hardship.

On August 9, 2019, the DOE granted the August 6 Request. Plaintiff was assigned office

space on Court Street in Brooklyn, New York (“Court Street”). Plaintiff’s salary, duties

and responsibilities stayed the same after her August 6 Request was granted.

On August 26, 2019, Plaintiff reported to Court Street. She was assigned office

space in Room 411, on the fourth floor. Plaintiff described the room as an interior office

with stuffy and poor air quality, no windows, no Wi-Fi, no ventilation and no air

conditioning. Plaintiff and some members of her team were assigned to the same room

because it was “important that they stay together.”

On August 26, 2019, Plaintiff submitted another accommodation request form

(the “August 26 Request”). In this request, Plaintiff stated:

I have a complex medical history including [congenital] heart disease, cardiac

[arrhythmia] [and] pulmonary disease. I was recently diagnosed with job related

chronic stress, anxiety and depression that affects my mental health [and]

exacerbates my cardiovascular disease and has caused increased abnormal heart

heart [sic] rhythms. This has been caused by the retaliatory actions of Ms. Alicia

[Roman] who after I asked for an [sic] location accommodation and she denied it

she placed my picture at Tweed Courthouse with restricted access causing me

great stress and anxiety affecting my disability.

Plaintiff requested that she be reassigned to a vacant position in Brooklyn for which she

applied and was qualified. Plaintiff’s August 26 Request was denied because it was “not

medically warranted.”

On August 27, 2019, Plaintiff emailed Vivian Walton-Smalls, a DOE disability

attorney, complaining that Room 411 was a “large windowless room that has no air

conditioning, unclear office surfaces, has boxes all over the space and it has poor wireless

service.” Plaintiff explained that she is dependent on wireless service for her heart

monitor and suffered from a COPD episode and migraine due to the poor air circulation

in the room. Plaintiff reiterated her request for a new position and asked to “be assigned

to another space that is more appropriate.”

On August 30, 2019, Walton-Smalls informed Plaintiff, “Your department tried

but unfortunately could not locate another desk/space for you in 65 Court Street.” The

DOE ordered Plaintiff an air purifier and told her that, because wireless service could be

good or spotty, even within a floor, she could “takes breaks as necessary to reconnect

with the service and to allow for better readings.” On September 4, 2019, Plaintiff

reported to Walton-Smalls, “The conditions of the room remain the same. The air quality

is very poor and stifling. I continue to feel ill and have had to increase the use of my

inhaler from the effects. I would like to inform you that the room has 2 air purifiers and

they have not helped my respiratory or cardiac conditions.” On September 11, 2019,

Walton-Smalls informed Plaintiff that “it would be an undue burden for your department

to relocate you again since you work with your team and there is no space in 65 Court

Street that can house your team size at this time.”

Plaintiff subsequently retained the services of Disability Rights New York, a legal

services organization. On November 20, 2019, Disability Rights New York renewed

Plaintiff’s request to be moved to an appropriate office. On February 20, 2020, the DOE

offered Plaintiff a “desk on the 10th floor” of Court Street. Plaintiff understood the office

to be the room where teachers and supervisors were assigned when disciplinary action

was pending and was also known as the “Rubber Room.” Plaintiff also had concerns

about being situated on the tenth floor because her work materials were received on the

fourth floor. On February 25, 2020, Plaintiff rejected the DOE’s proposed

accommodation of space on the tenth floor of Court Street as an unreasonable proposal

that “would entail a lot of up and down between the 10th and 4th floor.” Plaintiff

suggested other rooms on the fourth floor as alternatives.

On March 16, 2020, Defendant informed Plaintiff that there were no desks

available to Plaintiff’s team on the fourth floor and asked whether Plaintiff would like the

desk on the tenth floor. On March 27, 2020, Plaintiff again turned down Defendant’s

offer, stating that it would not permit Plaintiff to “perform the essential functions of her

job” as, during this time, parents submitted the home instruction plans primarily in hard

copy to the fourth floor.

In March 2020, Plaintiff began working remotely from her home due to the

closure of offices stemming from the COVID-19 pandemic. In October 2021, Plaintiff

and her team were moved to the second floor of Court Street. The space on the second

floor of Court Street has windows and allows Plaintiff to connect to Wi-Fi.

D. Incidents at the DOE

Plaintiff has identified a number of incidents that, in her view, demonstrate retaliation by

the DOE.

1. Galaxy System

On July 27, 28 or 29, 2019, Plaintiff received an email from Linda Chen, a former DOE

officer, requesting to meet to discuss an allegation of reported misconduct. On July 30, 2019,

Chen met with Plaintiff to discuss Plaintiff’s alleged unauthorized use of the DOE’s Galaxy data

system.

According to Garibyan, on June 19, 2023, Plaintiff viewed confidential information on

Galaxy by accessing it with another DOE employee who was permitted access. On August 30,

2019, Plaintiff received a letter to file as a result of the alleged misconduct. Plaintiff did not

inform Chen or Garibyan on July 24, 2019, or thereafter, that she requested a reasonable

accommodation from Roman on that date.

2. Entering Tweed

On September 18, 2019, Plaintiff entered Tweed to drop off paperwork and pick up her

paystub. At the DCAS desk, Plaintiff was told that she could not enter the building. Plaintiff

felt mortified, distressed and humiliated. On September 19, 2019, Giaimo emailed DCAS about

the incident. He referred DCAS to his August 12, 2019, email and stated “there is to be no

further restriction on [Plaintiff] entering the building once a site employee has been contacted

and she has someone to escort her, per normal building procedure.” On the same day, DCAS

apologized to the DOE for its “mix up” and instructed the front desk to allow Plaintiff entry to

Tweed with a DOE employee without restriction. Soon after, Roman emailed DCAS stating:

“Just to be clear, [Plaintiff] can enter the building just like any other DOE employee. She

doesn’t need an escort.” Since September 19, 2019, Plaintiff has entered Tweed and her access

has not been denied.

3. Job Title and Leave Day

On October 4, 2019, Plaintiff was asked to confirm her current title for a workshop

where Plaintiff was scheduled to appear. Plaintiff provided information about her title to a

program facilitator assigned to her.

Plaintiff obtained approval to use leave to attend the event and so advised Ilene Altschul,

Plaintiff’s then supervisor. The program materials distributed at the event on October 21, 2019,

identified Plaintiff as “Senior Director of Bilingual Programs NYC DOE,” which was not

Plaintiff’s title at the time.

On November 8, 2019, Altschul and Plaintiff met to discuss Plaintiff’s alleged failure to

obtain approval prior to taking leave on October 21, 2019. On December 3, 2019, the two met

again to discuss whether Plaintiff misrepresented her title at the workshop. Plaintiff denies any

such wrongdoing. On January 9, 2020, a letter from Altschul regarding the November 8 and

December 3, 2019, incidents was placed in Plaintiff’s file. Plaintiff did not receive any other

discipline and Plaintiff’s salary, job benefits and job duties and responsibilities did not change as

a result of the January 9, 2020, letter being placed in her file.

Plaintiff filed a charge of unlawful discrimination and retaliation against Defendant with

the Equal Employment Opportunity Commission (“EEOC”) on December 11, 2020, and

received a Notice of Right to Sue on July 13, 2021.

STANDARD

Summary judgment is appropriate where the record establishes that “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). “An issue of fact is genuine if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Frost v. N.Y.C. Police Dep’t, 980 F.3d 231, 242 (2d

Cir. 2020) (quoting SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009)).

“Only disputes over facts that might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby Inc., 477 U.S.

242, 248 (1986); accord Saleem v. Corp. Transp. Grp., 854 F.3d 131, 148 (2d Cir. 2017).

In evaluating a motion for summary judgment, a court must “construe the record

evidence in the light most favorable to the non-moving party and draw all reasonable inferences

in its favor.” Torcivia v. Suffolk Cty., 17 F.4th 342, 354 (2d Cir. 2021). When the movant

properly supports its motion with evidentiary materials, the opposing party must establish a

genuine issue of fact by citing to particular parts of materials in the record. See Fed. R. Civ. P.

56(c)(1)(A). “A party opposing summary judgment normally does not show the existence of a

genuine issue of fact to be tried merely by making assertions that are based on speculation or are

conclusory.” S. Katzman Produce Inc. v. Yadid, 999 F.3d 867, 877 (2d Cir. 2021).

DISCUSSION

A. Discrimination Claim

Plaintiff alleges that she was discriminated against on the basis of her disability.

Defendant’s motion for summary judgment is granted with respect to the discrimination claim.

The ADA provides that “[n]o covered entity shall discriminate against a qualified

individual on the basis of disability in regard to . . . the hiring, advancement, or discharge of

employees . . . and other terms, conditions, and privileges of employment.” 42 U.S.C.

§ 12112(a). “Claims alleging disability discrimination in violation of the ADA are subject to the

burden-shifting analysis originally established by the Supreme Court in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973).” McMillan v. City of New York, 711 F.3d 120, 125 (2d

Cir. 2013).2 “Under this framework, a plaintiff bears the initial burden of establishing a prima

facie case of discrimination.” Smith v. N.Y. & Presbyterian Hosp., 440 F. Supp. 3d 303, 328

(S.D.N.Y. 2020). To establish a prima facie case of discrimination under the ADA, a plaintiff

must show by a preponderance of the evidence that: (1) her employer is subject to the ADA; (2)

she was disabled within the meaning of the ADA; (3) she was otherwise qualified to perform the

essential functions of her job, with or without reasonable accommodation and (4) she suffered

2 Unless otherwise indicated, in quoting cases, all internal quotation marks, alterations,

emphases, footnotes and citations are omitted.

adverse employment action because of her disability. See Woolf v. Strada, 949 F.3d 89, 93 (2d

Cir. 2020).

“Once a plaintiff has established a prima facie case, a presumption arises that more likely

than not the adverse conduct was based on the consideration of impermissible factors.” Vega v.

Hempstead Union Free Sch. Dist., 801 F.3d 72, 83 (2d Cir. 2015). “At that point, the burden of

production shifts to the employer to ‘articulate some legitimate, nondiscriminatory reason’ for

the disparate treatment.” Smith, 440 F. Supp. 3d at 328 (quoting Vega, 801 F.3d at 83); see also

Walsh v. N.Y.C. Hous. Auth., 828 F.3d 70, 75 (2d Cir. 2016).

“If the employer carries that burden, the plaintiff’s admissible evidence must show

circumstances that would be sufficient to permit a rational finder of fact to infer that the

defendant’s employment decision was more likely than not based in whole or in part on

discrimination.” Walsh, 828 F.3d at 75. “To avoid summary judgment in an employment

discrimination case, the plaintiff is not required to show that the employer’s proffered reasons

were false or played no role in the employment decision, but only that they were not the only

reasons and that the prohibited factor was at least one of the ‘motivating’ factors.” Holcomb v.

Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008); accord Smith, 440 F. Supp. 3d at 328.

Defendant argues that the discrimination claim should be dismissed because (1) Plaintiff

does not have a disability within the meaning of the ADA and (2) Plaintiff did not suffer any

adverse employment action.

1. Disability under the ADA

A triable question of fact exists as to whether Plaintiff has a disability within the meaning

of the ADA. “Courts apply a three-part test to determine whether a plaintiff has an actual

disability under the ADA.” Cody v. Cty. of Nassau, 577 F. Supp. 2d 623, 637 (E.D.N.Y. 2008)

(quoting Sussle v. Sirina Prot. Sys. Corp., 269 F. Supp. 2d 285, 296 (S.D.N.Y. 2003)), aff’d, 345

F. App’x 717 (2d Cir. 2009). “[A] plaintiff must: (1) show that she suffers from a physical or

mental impairment; (2) identify the activity claimed to be impaired and establish that it

constitutes a major life activity; and (3) show that her impairment substantially limits the major

life activity previously identified.” Norman v. NYU Langone Health Sys., 492 F. Supp. 3d 154,

163 (S.D.N.Y. 2020) (quoting Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 147 (2d

Cir. 2002)), aff’d, 2021 WL 5986999 (2d Cir. Dec. 17, 2021).

EEOC regulations implementing the ADA define physical or mental impairment to

include “[a]ny physiological disorder or condition, cosmetic disfigurement, or anatomical loss

affecting one or more body systems, such as neurological, musculoskeletal, special sense organs,

respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary,

immune, circulatory, hemic, lymphatic, skin, and endocrine.” 29 C.F.R. § 1630.2(h)(1).

“Under the ADA, ‘major life activities’ include, but are not limited to, ‘caring for oneself,

performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending,

speaking, breathing, learning, reading, concentrating, thinking, communicating, and working,’ 42

U.S.C. § 12102(2)(A), as well as the operation of major bodily functions, including

‘neurological, brain, respiratory, circulatory, endocrine, and reproductive functions,’ id.

§ 12102(2)(B).” Norman, 492 F. Supp. 3d at 163.

“To determine what constitutes a ‘substantial limitation’ of a major life activity, courts

have looked to the EEOC regulations implementing the ADA. Although the regulations are not

binding, courts in the Second Circuit afford them significant deference.” Id. In 2008, Congress

amended the ADA and “instructed courts that the definition of disability . . . shall be construed in

favor of broad coverage of individuals, and that an impairment that substantially limits one major

life activity need not limit other major life activities in order to be considered a disability.”

Woolf, 949 F.3d at 94. The “principal purpose” of these amendments was to “make clear that the

substantial-limitation requirement in the definition of ‘disability’ is not an exacting one.” Id.

Construing the record evidence in the light most favorable to Plaintiff as the non-moving

party, a reasonable jury could find that Plaintiff has a disability under the ADA. First, she

suffers from, among other conditions, COPD, congenital heart disease and cardiac arrhythmia,

which qualify as physiological disorders or conditions affecting the respiratory and

cardiovascular systems. There is no genuine dispute that Plaintiff suffered from those conditions

during the events at issue. Second, Plaintiff has identified breathing and the operation of the

circulatory system as major life activities that have been impaired by her medical condition.

These are major life activities under the ADA. 42 U.S.C. § 12102(2)(A); Shine v. N.Y.C. Hous.

Auth., No. 19 Civ. 4347, 2020 WL 5604048, at *7 (S.D.N.Y. Sept. 18, 2020) (“[B]reathing is a

major life activity under the ADA and the operation of major bodily functions, including

respiratory functions, constitutes a major life activity.”). Third, by causing Plaintiff to

experience episodes of fainting, dizziness and asthma attacks, Plaintiff’s medical conditions limit

her major life activities. “[T]he substantial-limitation requirement in the definition of ‘disability’

is not an exacting one.” Woolf, 949 F.3d at 94. The EEOC regulations provide that “[a]n

impairment is a disability within the meaning of this section if it substantially limits the ability of

an individual to perform a major life activity as compared to most people in the general

population.” 29 C.F.R. § 1630.20(j)(1)(ii). A reasonable jury could conclude that, as compared

to most people in the general population, experiencing difficulty breathing, fainting, episodes of

dizziness and asthma attacks due to, among other conditions, COPD, congenital heart disease

and cardiac arrhythmia, constitutes a substantial limitation of a major life activity.

Defendant’s arguments to the contrary are unavailing. Defendant suggests that Plaintiff

identifies for the first time in her memorandum of law “breathing” and the “operation” of the

circulatory system as the major life activities, and that doing so is improper. But the Amended

Complaint discusses Plaintiff’s “history of fainting due to some of her medical conditions,” her

need for “proper ventilation” in the office and reliance on her “cardiac monitor.” These

allegations sufficiently identify the activities Plaintiff claims to be impaired. Defendant argues

also that Plaintiff does not cite any medical evidence in the record and therefore cannot establish

that she is disabled. However, the “Second Circuit has not taken a clear position on [the] issue

. . . that medical evidence is . . . absolutely necessary to support a claim of disability under the

ADA.” Anderson v. Nat’l Grid, PLC, 93 F. Supp. 3d 120, 137 (E.D.N.Y. 2015). Plaintiff

provided sworn testimony that she was diagnosed with COPD, atrial tachycardia and flutter and

arrhythmia, among other conditions.

2. Adverse Employment Action

Plaintiff raises five factual theories of how the DOE discriminated against her: by

(1) refusing to engage in the interactive process, (2) denigrating and humiliating Plaintiff by

stating she was terminated when she was not, (3) demeaning Plaintiff by posting her photograph

at headquarters with a statement that she was denied access, (4) wrongfully accusing Plaintiff of

unprofessional conduct and (5) assigning Plaintiff to work in Room 411, a dirty, windowless

room. Construing the record in the light most favorable to Plaintiff and drawing reasonable

inferences in her favor, none of theories one through four constitutes an adverse employment

action for purposes of a discrimination claim.

“To qualify as an adverse employment action, the employer’s action toward the plaintiff

must be materially adverse with respect to the terms and conditions of employment.” Davis v.

N.Y.C. Dept. of Educ., 804 F.3d 231, 235 (2d Cir. 2015). It must be “more disruptive than a

mere inconvenience or an alteration of job responsibilities.” Id. “Examples of such a change

include termination of employment, a demotion evidenced by a decrease in wage or salary, a less

distinguished title, a material loss of benefits, significantly diminished material responsibilities,

or other indices . . . unique to a particular situation.” Sanders v. N.Y.C. Human Resources

Admin., 361 F.3d 749, 755 (2d Cir. 2004); accord Smith v. City of New York, No. 16 Civ. 9244,

2018 WL 3392872, at *3 (S.D.N.Y. July 12, 2018).

As to the theory that the DOE failed to engage in the interactive process, the failure to

provide a reasonable accommodation in and of itself does not equate to an adverse employment

action, see Fox v. Costco Wholesale Corp., 918 F.3d 65, 72 (2d Cir. 2019); accord Timmer v.

City Univ. of New York, No. 20 Civ. 2554, 2021 WL 3603465, at *5 (E.D.N.Y. Aug. 13, 2021),

though it can be the basis for a separate failure to accommodate claim as discussed below. The

next three theories -- that Plaintiff was denigrated and humiliated, demeaned and wrongfully

accused of unprofessional conduct -- are also insufficient. While these might be the basis for a

hostile work environment claim if motivated by discriminatory animus or a retaliation claim if

motivated by retaliatory animus, they are not adverse employment actions sufficient to support

an ADA discrimination claim. The record identifies no evidence that the DOE’s actions were

“materially adverse with respect to the terms and conditions of employment.” Davis, 804 F.3d at

235. Plaintiff’s salary, job benefits and job responsibilities remained the same. Any “alleged

embarrassment, humiliation, harm to reputation, depression, disability, [or] general decrease on

‘quality of life’ did not impact the terms or conditions of [Plaintiff’s] employment and are

likewise not adverse employment actions.” Castro v. Mitchell, No. 9 Civ. 3754, 2011 WL

10901797, at *4 (S.D.N.Y. Aug. 25, 2011); see also Linell v. N.Y.C. Dep’t of Educ., No. 15 Civ.

5085, 2018 WL 1611370, at *7 (E.D.N.Y. Mar. 30, 2018) (“Reprimands or negative evaluation

letters constitute adverse employment actions only when they trigger negative consequences to

the conditions of employment.”).

Assuming without deciding that the fifth theory -- Plaintiff’s assignment to work in

Room 411 -- constitutes an adverse employment action, the DOE articulates a legitimate, non-

discriminatory basis for the assignment: that the room was large enough to accommodate

Plaintiff and her team, and it was “important that they stay together.” Plaintiff offers no

evidence in rebuttal “that would be sufficient to permit a rational finder of fact to infer that the

defendant’s employment decision was more likely than not based in whole or in part on

discrimination.” Walsh, 828 F.3d at 75. Neither the timing nor the context gives rise to the

inference that Plaintiff’s assignment was bound up with her disability -- that some members of

Plaintiff’s team did not work at Court Street but instead were located in Manhattan does not,

without more, overcome the DOE’s justification. Accordingly, Defendant’s summary judgment

motion as to the discrimination claim is granted.

B. Failure to Accommodate Claim

Plaintiff alleges that the DOE failed to grant her a reasonable accommodation in violation

of the ADA. The DOE contends that Plaintiff is not disabled -- addressed above -- and was in

fact granted accommodations. Defendant’s motion for summary judgment is denied with respect

to this claim.

Failure to accommodate is a type of disability discrimination that also follows the

McDonnell Douglas burden-shifting scheme. See Berger v. N.Y.C. Police Dep’t, 304 F. Supp. 3d

360, 368 (S.D.N.Y. 2018). The standard for a failure-to-accommodate claim is identical to that

of a discrimination claim except that, “for the fourth factor, [Plaintiff] must show by a

preponderance of the evidence that [her] employer refused to make a reasonable

accommodation.” Owens v. City of New York Dep’t of Educ., No. 21-2875, 2022 WL 17844279,

at *1 (2d Cir. Dec. 22, 2022).

Although “[t]he reasonableness of an employer’s accommodation is a ‘fact-specific’

question that often must be resolved by a factfinder,” where an “employer has already taken (or

offered) measures to accommodate the disability, the employer is entitled to summary judgment

if, on the undisputed record, the existing accommodation is ‘plainly reasonable.’” Noll v. Int’l

Bus. Machines Corp., 787 F.3d 89, 94 (2d Cir. 2015); see also Gronne v. Apple Bank for Sav., 1

F. App’x. 64, 67 (2d Cir. 2001) (summary order) (“Summary judgment is . . . appropriate where

a plaintiff fails to identify a facially reasonable accommodation that the defendant refused to

provide, or when the employer offers an accommodation that is plainly reasonable.”). If the

proposed accommodation is “plainly reasonable,” “[t]here is no need to engage in further

burden-shifting to consider whether the employee’s requested accommodation would have been

reasonable.” Noll, 787 F.3d at 94; see also Kelly v. Starwood Hotels & Resorts Worldwide, Inc.,

15 Civ. 6309, 2017 WL 1133433, at *3 (S.D.N.Y. Mar. 24, 2017) (explaining that where an

employer has “allegedly declined to offer a reasonable accommodation . . . courts apply the

[McDonnell Douglas] burden-shifting framework,” but that if the employer has taken or offered

measures to accommodate the disability, the employer is entitled to summary judgment if the

accommodation is “plainly reasonable”).

“A reasonable accommodation is one that ‘enables an individual with a disability who is

qualified to perform the essential functions of that position . . . or to enjoy equal benefits and

privileges of employment.’” Noll, 787 F.3d at 94 (quoting 29 C.F.R. § 1630.2(o)(1)). A

reasonable accommodation can “take many forms, but it must be effective.” Id. at 95; see also

Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Scis., 804 F.3d 178, 189 (2d Cir. 2015)

(“The hallmark of a reasonable accommodation is effectiveness.”). However, an employer is

“not required to provide a perfect accommodation or the very accommodation most strongly

preferred by the employee.” Noll, 787 F.3d at 95; see also Goonan v. Fed. Reserve Bank of N.Y.,

916 F. Supp. 2d 470, 479 (S.D.N.Y. 2013) (“[T]he employer providing the accommodation has

the ultimate discretion to choose between effective accommodations, and may choose the less

expensive accommodation or the accommodation that is easier for it to provide.”). Given that

the determination of whether something constitutes a reasonable accommodation “is necessarily

fact-specific . . . determinations on this issue must be made on a case-by-case basis.” Wernick v.

Fed. Rsrv. Bank of New York, 91 F.3d 379, 385 (2d Cir. 1996).

Under the burden-shifting framework applied in these cases, after the plaintiff satisfies

her burden of “production and persuasion as to the existence of an accommodation that is

facially reasonable,” the burden “shifts to the defendant to rebut the reasonableness of the

proposed accommodation,” which “is in essence equivalent to the burden of showing, as an

affirmative defense, that the proposed accommodation would cause the defendant to suffer an

undue hardship.” Wright v. N.Y. State Dep’t of Corr., 831 F.3d 64, 76 (2d Cir. 2016). An undue

hardship is defined as “an action requiring significant difficulty or expense.” 42 U.S.C.

§ 12111(10)(A). Factors to be considered by the employer in determining whether an

accommodation would impose an undue hardship may include: “(i) the nature and cost of the

accommodation . . . ; (ii) . . . the number of persons employed at [the] facility [involved]; the

effect on expenses and resources, or the impact otherwise of such accommodation upon the

operation of the facility; (iii) . . . the overall size of the business of a covered entity with respect

to the number of its employees; and (iv) . . . the composition, structure, and functions of the

workforce of such entity.” Id. § 12111(10)(B). “[A]n employer seeking to meet its burden of

persuasion must evaluate the hardship sought to be imposed through the lens of the factors listed

in the regulations, and show special (typically case-specific) circumstances demonstrating undue

hardship in the particular circumstances.” Greenbaum v. N.Y.C. Transit Auth., No. 21-1777,

2022 WL 3347893, at *4 (2d Cir. Aug. 15, 2022).

A reasonable jury could find that the DOE failed to make reasonable accommodation for

Plaintiff’s disability by denying her request to transfer out of Room 411. The office had stuffy

and poor air quality, poor ventilation, no windows, a moldy odor, no Wi-Fi and, in fact, caused

Plaintiff to develop a migraine and a COPD episode within hours. The DOE provided two air

purifiers, which did not improve Plaintiff’s respiratory and circulatory conditions. Such

conditions would reasonably inhibit someone with Plaintiff’s disability from performing “the

essential functions of [her] position” and from enjoying “equal benefits and privileges of

employment.” See Noll, 787 F.3d at 94. That Plaintiff did not specifically request an office

space with windows or Wi-Fi connection does not, as Defendant suggests, make the

accommodation necessarily reasonable. On August 27, 2019, Plaintiff emailed Walton-Smalls

explaining why Room 411 was not suitable for her health and requested to “be assigned to

another space that is more appropriate.” On August 30, 2019, Plaintiff was informed that her

department tried, but failed, to locate another office for her in Court Street. Plaintiff reiterated

her request on September 4, 2019, as she continued to feel ill and had to increase the use of her

inhaler. On September 11, 2019, the DOE denied the request as an undue burden.

Viewing the record in a light most favorable to Plaintiff, Plaintiff has met her initial,

“modest” burden of proposing “the existence of a plausible accommodation, the costs of which,

facially, do not clearly exceed its benefits.” Greenbaum, 2022 WL 3347893, at *3. Plaintiff

suggested other empty rooms on the fourth floor, including the space next to Room 411, as

reasonable alternatives that would allow her to perform the essential functions of her

employment. See id. Rooms 403 or 405 had windows, were on the same floor as her then office

and would make it “much more feasible for her to obtain the instructional plans for review” than

an office on the tenth floor. These rooms suffice as plausible accommodations. Plaintiff’s

testimony that she was “aware of other vacant desks” on her floor is not, as Defendant suggests,

mere “[s]peculation and conjecture” that such offices were available and therefore possible

alternatives.

Nor were the measures offered to accommodate Plaintiff’s disability -- i.e., assignment to

Room 411 or the “Rubber Room” -- “plainly reasonable.” See Noll, 787 F.3d at 94. Assignment

to Room 411 was not plainly reasonable for reasons explained above. The “Rubber Room” was

an office where teachers and supervisors were assigned when a disciplinary action was pending.

Being transferred to the Rubber Room would create the impression of Plaintiff’s wrongdoing,

particularly in light of the security alert issued about her. Further, an office on the tenth floor

would have made it meaningfully more difficult for Plaintiff to do her job, as all of her

paperwork was located on fourth floor, including individual homeschooling plans which were

primarily submitted in hard copy. In response, Defendant argues that Plaintiff inappropriately

proffers facts about the “Rubber Room” for the first time in her memorandum of law in

opposition to summary judgment, and that such facts should not be considered. The argument is

unpersuasive as a plaintiff is not required to plead in her complaint facts surrounding, what

amounts to, an affirmative defense. Accordingly, neither Plaintiff’s existing accommodation nor

the DOE’s proposal of moving Plaintiff to the Rubber Room was “plainly reasonable.”

At step two of the burden-shifting framework, the “undue hardship” issue cannot be

decided on this summary judgment record. Defendant cites only an email sent by Walton-

Smalls, which informed Plaintiff that “it would be an undue burden for your department to

relocate you again since you work with your team and there is no space in 65 Court Street that

can house your team size at this time.” Defendant then claims that “Plaintiff has no evidence to

even suggest that this legitimate, non-discriminatory reason was pretextual.” However, Plaintiff

satisfied her burden of “production and persuasion as to the existence of an accommodation that

is facially reasonable.” Wright, 831 F.3d at 76. The burden therefore “shifts to the defendant to

rebut the reasonableness of the proposed accommodation.” Id. Quoting a single email, and

addressing none of the factors to be considered in determining whether an accommodation would

impose an undue hardship, Defendant fails to meet that burden here.

Finally, Defendant argues that Plaintiff cannot recover on her failure-to-accommodate

claim because Plaintiff was eventually granted the accommodation she requested -- in October

2021, the DOE moved Plaintiff and her team to the second floor of Court Street. The argument

is unavailing, as a reasonable jury could conclude that requiring Plaintiff to work in Room 411

for even six months, when Plaintiff made clear the effects on her health, demonstrates the lack of

“good faith efforts . . . to identify and make a reasonable accommodation.” See 42 U.S.C.

§ 1981a(a)(2). Defendant’s summary judgment motion as to the failure-to-accommodate claim

is therefore denied.

C. Retaliation Claim

Plaintiff alleges that the DOE retaliated against her for requesting a reasonable

accommodation. Defendant’s motion for summary judgment is denied with respect to the

retaliation claim.

The ADA prohibits retaliation “against any individual because such individual has

opposed any act or practice made unlawful by th[e] [ADA] or . . . made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or hearing under this

chapter.” 42 U.S.C. § 12203(a). “Like discrimination claims, retaliation claims are analyzed

using the McDonnell Douglas burden-shifting framework.” Frantti v. New York, 850 F. App’x

17, 21 (2d Cir. 2021) (summary order); Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d

208, 223 (2d Cir. 2001) (“We analyze a retaliation claim under the ADA using the same

framework employed in Title VII cases.”). To establish a prima facie case for retaliation, a

plaintiff must show that “(1) [she] was engaged in an activity protected by the ADA, (2) [her]

employer was aware of that activity, (3) an employment action adverse to the plaintiff occurred,

and (4) there existed a causal connection between the protected activity and the adverse

employment action.” Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d

Cir. 1999). Seeking reasonable accommodation for a disability constitutes a “protected activity,”

and retaliation in response to a plaintiff’s request for reasonable accommodation may violate the

ADA’s prohibition on retaliation. See Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138,

149 (2d Cir. 2002) (“[P]laintiffs do allege that they were seeking reasonable accommodation of

[plaintiff’s] disability -- which constitutes protected activity under Section 504/ADA.”); accord

Rodriguez v. Atria Sr. Living Grp., Inc., 887 F.Supp.2d 503, 512 (S.D.N.Y. 2012). Once a

plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate a

legitimate non-retaliatory reason for the challenged employment action. “If the defendant meets

the burden, the plaintiff must adduce evidence ‘that would be sufficient to permit a rational

factfinder to conclude that the employer’s explanation is merely a pretext for impermissible

retaliation.’” Frantti, 850 F. App’x at 21 (quoting Treglia v. Town of Manlius, 313 F.3d 713,

721 (2d Cir. 2002)).

A causal relationship between the protected activity and the alleged retaliatory act can be

established in one of two ways: “(1) indirectly, by showing that the protected activity was

followed closely by discriminatory [or retaliatory] treatment, or through other circumstantial

evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2)

directly, through evidence of retaliatory animus directed against the plaintiff by defendant.”

Natofsky v. City of New York, 921 F.3d 337, 353 (2d Cir. 2019).

The adverse-action standard for retaliation “covers a broader range of conduct than does

the adverse-action standard for claims of discrimination.” Vega v. Hempstead Union Free Sch.

Dist., 801 F.3d 72, 90 (2d Cir. 2015). It is “any action that could well dissuade a reasonable

worker from making or supporting a charge of discrimination.” Id. (quoting Burlington N. &

Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)). With respect to adverse actions in the

retaliation context, the Supreme Court has cautioned that:

Context matters. The real social impact of workplace behavior often depends on a

constellation of surrounding circumstances, expectations, and relationships which

are not fully captured by a simple recitation of the words used or the physical acts

performed. A schedule change in an employee’s work schedule may make little

difference to many workers, but may matter enormously to a young mother with

school-age children. A supervisor’s refusal to invite an employee to lunch is

normally trivial, a nonactionable petty slight. But to retaliate by excluding an

employee from a weekly training lunch that contributes significantly to the

employee’s professional advancement might well deter a reasonable employee

from complaining about discrimination.

Burlington N. & Santa Fe Ry. Co., 548 U.S. at 69.

Plaintiff raises a genuine issue of material fact as to whether she was retaliated against for

seeking a reasonable accommodation. The claim is premised on the following incidents: (1) the

security alert posted at the entrance of Tweed, (2) the “unsanitary workplace” of Room 411 and

(3) allegations of misconduct relating to the Galaxy System, her job title and taking leave. There

is no genuine dispute that Plaintiff engaged in protected activity.

A jury could find that the security alert posted at the entrance of Tweed would deter a

reasonable person from requesting an accommodation. The posting includes a photograph of

Plaintiff and a red banner that reads “Alert,” and was “very visible” to employees walking by.

Viewed in context, the alert implies significant misconduct and would tend to harm one’s

reputation and personal relationships in the workplace. See id. at 57 (In order to support a claim

for retaliation, the adverse action “must be harmful to the point that [it] could well dissuade a

reasonable worker from making or supporting a charge of discrimination.”). That is especially

pertinent here, as Plaintiff has worked with the DOE for over thirty years and “spent years

working to build [her] positive reputation at the DOE.”

A reasonable jury could likewise find a causal connection between Plaintiff’s July 24,

2019, accommodation request and the security alert being posted by August 1, 2019. Although

the Second Circuit has not prescribed a specific time period between protected activity and

adverse employment action that defeats (or establishes) causation, see Burkybile v. Bd. of Educ.

of Hastings-On-Hudson Union Free Sch. Dist., 411 F.3d 306, 314 (2d Cir. 2005), here, the

intervening period was, at most, only one week, cf., e.g., Fitzgerald v. We Co., No. 20 Civ. 5260,

2022 WL 952963, at *7 (S.D.N.Y. Mar. 30, 2022) (“[C]ourts in this Circuit have generally

concluded that a gap of more than three months between the protected activity and the retaliatory

action is insufficient, standing alone to establish a causal connection.”).

Defendant argues that it “never told anyone that Plaintiff’s employment with Defendant

was terminated or directed anyone to post Plaintiff’s picture at Tweed” -- suggesting that DCAS,

a separate agency, acted on its own. The argument is unpersuasive. The record shows that

DCAS acted on the instruction of Garibyan, who depicted Plaintiff as someone who may try to

“resist[]” the collection of her ID. Garibyan, in turn, contacted security on the “advice” of

Roman. But Plaintiff never indicated to Roman, Garibyan, or anyone else at the DOE that

Plaintiff refused her new job assignment, that she would return to Tweed the next day or that she

intended to withhold her ID. That Garibyan nevertheless implied in her email to DCAS that

Plaintiff may be a security threat, construed in the light most favorable to Plaintiff and drawing

reasonable inferences in Plaintiff’s favor, can be viewed as the DOE’s sanctioning the security

alert. That Garibyan later described the “red alert” tag as inappropriate does little to suggest

otherwise. Ultimately, the photograph of Plaintiff stayed up for almost three months. In the

alternative, Defendant argues that there is no record evidence to establish that DCAS knew that

Plaintiff requested an accommodation, thus breaking the causal connection. The argument is

inapposite. Knowledge by the employer -- the DOE -- is sufficient.

The analysis of Plaintiff’s other theories of retaliation -- that she was forced to work in an

unsanitary workplace and accused of misconduct -- is similar. For substantially the reasons

stated in Plaintiff’s memorandum of law, Plaintiff’s other theories raise issues of material fact

that preclude summary judgment on this claim. Defendant’s arguments to the contrary, which do

not address the unsanitary-workplace theory, are unavailing. First, Defendant argues that the

accusations of misconduct were not retaliatory because neither Garibyan nor Chen was aware

that Plaintiff had requested an accommodation. But neither “this nor any other circuit has held

that, to satisfy the knowledge requirement [of a retaliation claim], anything more is necessary

than general corporate knowledge that the plaintiff has engaged in a protected activity.” Gordon

v. N.Y.C. Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000) (retaliation under Title VII); see also

Wilson v. New York, No. 15 Civ. 23, 2017 WL 9674497, at *14 (E.D.N.Y. Jan. 24, 2017), report

and recommendation adopted, 2018 WL 1466770 (E.D.N.Y. Mar. 26, 2018) (“Under this

standard, a plaintiff need not show that the individuals who allegedly retaliated against him had

actual knowledge of his prior protected activity. Rather, a plaintiff alleging retaliation need only

show that any individual employee was aware of the activity in order to impute that knowledge

to the employer organization as a whole.”). Second, Defendant argues that the decision to

investigate and meet with Plaintiff regarding the Galaxy System incident was made prior to any

request for accommodation. But Chen emailed Plaintiff about the meeting, at the earliest, on

July 27, 2019, three days after Plaintiff’s first request for accommodation. Defendant identifies

no record evidence that a decision was made beforehand. Third, Defendant argues that

“[r]eprimands and threats of disciplinary action, in the absence of other negative results do not

constitute adverse actions in the context of a retaliation claim.” However, “[a] formal reprimand

issued by an employer is not a ‘petty slight,’ ‘minor annoyance,’ or ‘trivial’ punishment; it can

reduce an employee’s likelihood of receiving future bonuses, raises, and promotions, and it may

lead the employee to believe (correctly or not) that [her] job is in jeopardy. A reasonable jury

could conclude as much even when . . . the letter does not directly or immediately result in any

loss of wages or benefits, and does not remain in the employment file permanently.” Millea v.

Metro-N. R. Co., 658 F.3d 154, 165 (2d Cir. 2011); accord Bogden-Cozmuta v. Granby Urgent

Care, LLC, No. 20 Civ. 879, 2022 WL 4585442, at *7 (D. Conn. Sept. 29, 2022). Fourth,

Defendant argues that the later allegations of misconduct cannot be retaliatory “because they

occurred three months or longer after Plaintiff requested an accommodation” on July 24, or

August 6, 2019. The argument fails because (1) Plaintiff continued to request accommodation

after August 6, 2019 -- for example, on August 27 and September 4, 2019, in emails to Walton-

Smalls, and on November 20, 2019, through Disability Rights New York, and (2) Altschul met

with Plaintiff about the alleged leave-misconduct on November 8, 2019, i.e., months before a

letter was placed in Plaintiff’s file. The intervening period is sufficiently short that the Court

cannot, as a matter of law, determine the inferred causal relationship severed. See Burkybile, 411

F.3d at 314.

Finally, Defendant argues that the retaliation claim must be dismissed because the only

remedy Plaintiff seeks is an award of compensatory damages which, Defendant contends, are not

recoverable for a retaliation claim under the ADA. Although this remains an open issue in the

Second Circuit, see Pacheco v. Park S. Hotel, LLC, No. 12 Civ. 9127, 2014 WL 292348, at *4

(S.D.N.Y. Jan. 27, 2014); Terpening v. McGinty, No. 21 Civ. 1215, 2022 WL 17418268, at *8

(N.D.N.Y. Oct. 5, 2022), report and recommendation adopted, 2022 WL 17415121 (N.D.N.Y.

Dec. 5, 2022), in the employment discrimination context, the remedies available for violations of

the ADA are generally considered coextensive with the remedies available under Title VII,

which permits employees to recover compensatory and punitive damages, see Richter v. JBFCS-

Jewish Bd. of Fam. & Child. Servs., No. 18 Civ. 6959, 2019 WL 13277316, at *3 (E.D.N.Y.

Mar. 14, 2019); Edwards v. Brookhaven Sci. Assocs., LLC, 390 F. Supp. 2d 225, 234 (E.D.N.Y.

2005) (explaining that “the Second Circuit, without analyzing the issue, has affirmed an award of

compensatory damages in a retaliation case brought under the ADA[]”). Defendant’s argument

is therefore rejected. Summary judgment on the retaliation claim is denied.

D. Hostile Work Environment Claim

Plaintiff asserts that Defendant created a hostile work environment. Defendant’s motion

for summary judgment is denied with respect to the hostile work environment claim.

The Second Circuit has recognized “that hostile work environment claims are cognizable

under the ADA,” Fox, 918 F.3d at 69, and evaluates the claims under the Title VII hostile work

environment framework, id. at 74 (quoting Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002)).

To prevail on such a claim, Plaintiff must show “(1) that the harassment was sufficiently severe

or pervasive to alter the conditions of [her] employment and create an abusive working

environment, and (2) that a specific basis exists for imputing the objectionable conduct to the

employer.” Id.

“Although the victim must subjectively perceive the conduct as abusive, the misconduct

shown also must be severe or pervasive enough to create an objectively hostile or abusive work

environment.” Id.; see Duplan v. City of New York, 888 F.3d 612, 627 (2d Cir. 2018) (describing

plaintiff’s burden of producing enough evidence on a hostile work environment claim as a “high

bar”). “Even an isolated act may be so serious that it requires the conclusion that the terms and

conditions of employment were altered.” Fox, 918 F.3d at 74. “A plaintiff alleging a hostile

work environment claim under the ADA, therefore, must demonstrate either that a single

incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and

concerted to have altered the conditions of her working environment.” Id. “Courts look to the

totality of the circumstances to determine whether a plaintiff has met this burden, including proof

of the frequency of the discriminatory conduct; its severity; whether it was physically threatening

or humiliating, or a mere offensive utterance; and whether it unreasonably interfered with [the

plaintiff’s] work performance.” Id. “The question of whether a work environment is sufficiently

hostile . . . is one of fact,” and “summary judgment is appropriate only if it can be concluded as a

matter of law that no rational juror could view the defendant’s conduct as an intolerable

alteration of the plaintiff’s working conditions.” Holtz v. Rockefeller & Co., 258 F.3d 62, 75 (2d

Cir. 2001); accord Talbott-Serrano v. Iona Coll., No. 21 Civ. 1055, 2022 WL 3718346, at *16

(S.D.N.Y. Aug. 29, 2022).

Construing the record in the light most favorable to Plaintiff and drawing reasonable

inferences in her favor, Plaintiff raises a genuine dispute of material fact as to her hostile work

environment claim. This determination is made by looking to “the totality of the circumstances”

and evaluating allegedly discriminatory incidents “cumulatively,” rather than by asking whether

any “incident of harassment ‘standing alone’ is sufficient to sustain [the] hostile work

environment claim.” Williams v. N.Y.C. Hous. Auth., 61 F.4th 55, 74 (2d Cir. 2023). Courts also

may “analyz[e] each key event in isolation” to determine whether each one is “sufficiently

severe” to sustain the claim on its own. Id.

The incidents and courses of conduct Plaintiff identifies, when taken together, are

sufficient to support a jury finding in her favor. First, Plaintiff asserts that she endured a hostile

work environment because Roman allowed a security alert to exist as if Plaintiff “was a

criminal” that barred her from Tweed. As discussed above, the alert was “very visible” to

employees walking by, remained in place for almost three months and caused Plaintiff to feel

mortified, humiliated and distressed. Second, Plaintiff asserts that Defendant required her to

work in a “dangerous” workplace. Plaintiff identifies a number of doctors’ notes provided to the

DOE in September and October 2019 that “expressed the severity of the situation.” For

example, Plaintiff’s neurologist wrote on September 13, 2019, that Plaintiff “has been getting

constant headache, nausea/vomiting and shortness of breath” and “had to be rushed to the

hospital ER twice,” and Plaintiff’s pulmonologist wrote a letter dated September 19, 2019, that

describes how Plaintiff “has suffered acute asthmatic attacks with transfer to a new office.”

Defendant provided Plaintiff with air purifiers but did not move Plaintiff out of Room 411 for

almost seven months. A reasonable jury could find that Plaintiff subjectively perceived the

above conduct as creating a hostile or abusive environment, and that such environment was

created “because of” her disability, since the security alert was posted just hours after Plaintiff

requested an accommodation and her requests to move offices bear relation to her medical

condition.

A reasonable jury could also find the foregoing incidents “sufficiently severe or

pervasive” enough to constitute an objectively hostile work environment, viewing those incidents

together and considering, among other things, “the frequency of the discriminatory conduct; its

severity; whether it was physically threatening or humiliating or a mere offensive utterance; and

whether it unreasonably interfered with the plaintiff's work performance.” See Fox, 918 F.3d at

74. The alleged hostility went on for almost seven months, was both physically threatening and

humiliating and, in fact, worsened Plaintiff's health. As Plaintiff suggests, a reasonable person

could perceive “a work environment that threatens their very life to be so severe that it altered

the terms and conditions of their employment.” Summary judgment on the hostile work

environment claim is therefore denied.

IV. CONCLUSION

For the foregoing reasons, Defendant’s motion for summary judgment is granted in part

and denied in part. For clarity, Defendant’s motion is granted with respect to Plaintiff's ADA

discrimination claim. Plaintiff's surviving claims are: ADA failure to accommodate, retaliation

and hostile work environment.

Plaintiff's request for an oral argument is denied as moot.

The Clerk of Court is respectfully directed to close the motions at Dkt. Nos. 52 and 73.

Dated: July 24, 2023

New York, New York

UNITED STATES DISTRICT JUDGE

29