The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CHERYL A. LEWIS,
Plaintiff,
20-CV-1860-LJV
v. DECISION & ORDER
KALEIDA HEALTH,
Defendant.
On December 16, 2020, the plaintiff, Cheryl A. Lewis, commenced this action,
alleging that the defendant, Kaleida Health (“Kaleida”), violated Title VII of the Civil
Rights Act of 1964 (“Title VII”); the Age Discrimination in Employment Act of 1967
(“ADEA”); and the Americans with Disabilities Act of 1990 (“ADA”). Docket Item 1.
Kaleida moved to dismiss the complaint, Docket Item 8, and on June 24, 2021, this
Court granted the motion to dismiss in part. Docket Item 14. Specifically, the Court
dismissed Lewis’s claims based on discrete discrimination that occurred before January
12, 2019, but gave Lewis leave to amend her other claims to correct the deficiencies
noted in the June 24 decision. Id. at 21-22.
On August 23, 2021, Lewis filed an amended complaint. Docket Item 15. A
month later, Kaleida moved to dismiss the amended complaint. Docket Item 16. On
October 20, 2021, Lewis responded, Docket Item 19, and two weeks later, Kaleida
replied, Docket Item 20.
For the following reasons, Kaleida’s motion to dismiss is granted in part and
denied in part.1
LEGAL PRINCIPLES
When deciding a motion to dismiss a complaint, the Court “accept[s] all factual
allegations as true and draw[s] all reasonable inferences in favor of the plaintiff.” Trs. of
Upstate N.Y. Eng’rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016)
(citing City of Pontiac Policemen’s & Firemen’s Ret. Sys. v. UBS AG, 752 F.3d 173, 179
(2d Cir. 2014)). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (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. (citing Twombly, 550 U.S. at 556). “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Id.
DISCUSSION
I. DISCRIMINATION CLAIMS
As this Court explained in its prior decision, an employment-discrimination
plaintiff must plead “enough nonconclusory factual matter to nudge her claim[s] across
1 This Court assumes familiarity with the underlying facts and its prior decision
and order, Docket Item 14, and will refer only to the facts necessary to explain its
decision.
the line from conceivable to plausible.”2 Mandala v. NTT Data, Inc., 975 F.3d 202, 208
(2d Cir. 2020) (alterations, citations, and internal quotation marks omitted). More
2 Rather than respond to the arguments made by Kaleida in support of its motion
to dismiss, counsel for Lewis largely responds by rehashing arguments made to—and
rejected by—this Court in response to the first motion to dismiss. Compare Docket Item
11 at 2-11 (response to first motion to dismiss), with Docket Item 19 at 2-5 (response to
second motion to dismiss). Specifically, counsel argues that by invoking “plausibility,”
Kaleida—and this Court—are holding Lewis to a heightened pleading standard. See,
e.g., Docket Item 19 at 2 (asserting that this Court “has ignored the plain language of
black letter Supreme Court law”), 3 (“Defendant, while ignoring black letter Supreme
Court case law which refutes its position, clings zealously to a term offered in a different
Supreme Court case; ‘plausibility’ or its antonym. This Defendant has gleaned from
Twombly.”).
But “plausibility” is not something that the defendant or this Court created or
inappropriately “gleaned from Twombly”; rather, the United States Supreme Court
imposes the “plausibility” requirement. See Iqbal, 556 U.S. at 678; supra at 2 (reciting
the motion to dismiss standard as stated in Iqbal). Although “[o]ver a series of a
opinions, [the Second Circuit] clarified that Iqbal does not require a plaintiff to plead a
prima facie case,” it also has made clear that an employment-discrimination plaintiff
must “assert [enough] nonconclusory factual matter . . . to nudge [her] claim[ ] across
the line from conceivable to plausible to proceed.” Mandala v. NTT Data, Inc., 975 F.3d
202, 208 (2d Cir. 2020) (citations omitted). As noted above—and in this Court’s prior
decision—that requires a plaintiff to plead facts “giv[ing] plausible support to a minimal
inference of discriminatory motivation.” Vega v. Hempstead Union Free School Dist.,
801 F.3d 72, 84 (2d Cir. 2015) (citation omitted). Accordingly, although Lewis need not
allege “specific facts,” she still must allege something to plausibly suggest a
discriminatory motive. Contrary to the suggestion in Lewis’s response, see Docket Item
19 at 2-5, pleading that the plaintiff is a member of a protected class, that she suffered
an adverse action, and that because discrimination occurs in the United States it must
have occurred here, see id. at 4-5, is simply not enough.
This is not the first time counsel has pressed this argument in this case, nor is
this the first case in which she has pressed this argument before this Court. In fact, this
Court previously has rejected the same argument in another case, as have other courts
in this District. See Sayers v. Niagara Falls City Sch. Dist., 2022 WL 682640, at *3-4
(W.D.N.Y. Mar. 8, 2022) (“Therefore, even though [the plaintiff] is correct that she need
not plead a prima facie case of discrimination as contemplated by McDonnell Douglas,
she still must give ‘plausible support to a minimal inference of discriminatory motive.’”
(citing Vega, 801 F.3d at 84)); Mazur v. N.Y. State Dep’t of Corr., 2021 WL 6774997, at
*3 (W.D.N.Y. Jan. 20, 2021) (McCarthy, M.J.) (“Plaintiff does not directly respond to
[defendants’] argument but instead argues generally against the imposition of a
‘heightened pleading standard’ on its ADA and Title VII claims. . . . Plaintiff is correct
that . . . he is not required to establish a prima facie case of discrimination at the
specifically, to defeat a motion to dismiss a gender-discrimination or disability-
discrimination claim, an employment-discrimination plaintiff “need only give plausible
support to a minimal inference of discriminatory motivation” behind an adverse
employment action. Vega v. Hempstead Union Free School Dist., 801 F.3d 72, 84 (2d
Cir. 2015) (Title VII); Dooley v. JetBlue Airways Corp., 636 F. App’x. 16, 22 (2d Cir.
2015) (summary order) (applying Vega to ADA claims); Littlejohn, 795 F.3d at 306, 311.
On the other hand, “a plaintiff asserting an employment[-]discrimination complaint [for
age discrimination under the ADEA] must plausibly allege that . . . her age was the ‘but-
for’ cause of the adverse action.”3 Marcus v. Leviton Mfg. Co., 661 F. App’x 29, 31-32
(2d Cir. 2016) (summary order). But in any discrimination case, the plaintiff must plead
a plausible basis for her belief that the defendant discriminated against her.
An inference of discrimination can be drawn from a number of circumstances.
See Littlejohn, 795 F.3d at 312. For example, a plaintiff might allege that her employer
criticized her performance in terms that are degrading to her protected class. See id.
pleading stage. Nonetheless, he must ‘alleg[e] facts that directly show discrimination or
facts that indirectly show discrimination by giving rise to a plausible inference of
discrimination.’” (quoting Vega, 801 F.3d at 86)), report and recommendation adopted,
2021 WL 1110583 (W.D.N.Y. Mar. 23, 2021) (Sinatra, J.); Grastorf v. Cmty. Bank, N.A.,
2020 WL 6777496, at *3 (W.D.N.Y. Nov. 17, 2020) (Skrenty, J.) (“[Plaintiff] either
misreads or ignores recent cases from the Second Circuit requiring that a complaint
allege some minimal facts to support an inference of discrimination. . . . ‘[B]its and
pieces of information’ can suffice, and a Court must take those as true at the motion-to-
dismiss stage. But [plaintiff’s] complaint lacks even bits and pieces of information that
would suggest that [defendant’s] reasons were unlawful.”), reconsideration denied, 2021
WL 1100686 (W.D.N.Y. Mar. 23, 2021).
3 For some forms of discrimination—such as discrimination covered by Title VII or
the ADA—“the plaintiff’s membership in a protected class need only be a motivating
factor in the adverse employment action taken; for age discrimination claims, however,
the age of the plaintiff must be the ‘but-for’ cause.” Marcus, 661 F. App’x at 23, n.1
(emphasis in original).
Likewise, the plaintiff might base her claim of discrimination on her employer’s “invidious
comments about others in the employee’s protected group; or the more favorable
treatment of employees not in the protected group; or the sequence of events leading to
the plaintiff’s discharge[; or the replacement of] a terminated or demoted employee with
an individual outside the employee’s protected class.” Id. at 312-13.
A. Disability
As relevant here, the ADA prohibits discrimination “against a qualified individual
on the basis of disability in regard to . . . discharge of employees.” 42 U.S.C. §
12112(a). “A plaintiff asserting an ADA claim must allege and prove four elements: ‘(1)
the defendant is covered by the ADA; (2) [the] plaintiff suffers from or is regarded as
suffering from a disability within the meaning of the ADA; (3) [the] plaintiff was qualified
to perform the essential functions of the job, with or without reasonable accommodation;
and (4) [the] plaintiff suffered an adverse employment action because of his disability or
perceived disability.’” Hendrix v. Pactiv LLC, 488 F. Supp. 3d 43, 51 (W.D.N.Y. 2020)
(quoting Capobianco v. City of New York, 422 F.3d 47, 56 (2d Cir. 2005)).
The ADA defines “disability” to include (1) “a physical or mental impairment that
substantially limits one or more major life activities of [an] individual;” (2) “a record of
such an impairment;” or (3) “being regarded as having such an impairment.” 42 U.S.C.
§ 12102(1). “Not every impairment is a ‘disability’ within the meaning of the ADA;
rather, there are two requirements: the impairment must limit a major life activity and the
limitation must be substantial.” Capobianco, 422 F.3d at 56. “[T]he substantial-
limitation requirement in the definition of ‘disability’ is not an exacting one,” Woolf v.
Strada, 949 F.3d 89, 94 (2d Cir. 2020) (citing ADAAA, Pub. L. No. 110–325, § 2(b), 122
Stat. 3553, 3554 (2008)), and “[t]he term ‘substantially limits’ [should] be construed
broadly in favor of expansive coverage,” 28 C.F.R. § 35.108(d)(1)(i). To determine
whether a major life activity is substantially limited, “courts consider ‘the nature and
severity of the impairment; its duration or expected duration; and the existence of any
actual or expected permanent or long[-]term impact.’” Mazzeo v. Mnuchin, 751 F. App’x
13, 15 (2d Cir. 2018) (summary order) (quoting Capobianco, 422 F.3d at 57).
Although the statute expressly recognizes working as a major life activity, 42
U.S.C. § 12102(2)(A), the “inability to perform a single, particular job does not constitute
a substantial limitation in the major life activity of working.” Woolf, 949 F.3d at 94; see
also Mazzeo, 751 F. App’x at 15. “Rather, an employee alleging a substantial limitation
in the major life activity of working must show that the limitation affects the ability to
‘perform a class . . . or broad range of jobs.’” Woolf, 949 F.3d at 94 (emphasis in
original). Therefore, when a plaintiff alleges a substantial limitation in working, the
complaint must “support[] a plausible inference that [the p]laintiff’s [impairment] prevents
[her] from performing a broader class of jobs.” Telemaque v. Marriott Int’l, Inc., 2016
WL 406384, at *7 (S.D.N.Y. Feb. 2, 2016).
In its prior decision, this Court found that Lewis had “failed to plead that she has
a disability within the meaning of the ADA” and therefore did not raise a viable claim of
disability discrimination. Docket Item 14 at 12. Specifically, this Court noted that Lewis
“does not say—or include any facts from which the Court can infer—that [her chronic
migraines and cervicalgia] substantially limit her ability to perform any major life
activities.” Id. at 10.
Lewis again has pleaded that she has “chronic migraines and cervicalgia,”
Docket Item 15 at ¶ 3,4 and she now adds a few more factual allegations about her
migraines. Specifically, the amended complaint alleges that: (1) “on January 9, 2019,”
Dr. Laszlo Metchler “treated” Lewis for her migraines and “stated that [Lewis’s] chronic
migraines could flare up and prevent [Lewis] from performing the functions of her job[]
(a major life activity) and that if there were flare ups, she may need to be absent from
work as a reasonable accommodation,” id. at ¶ 40; (2) Lewis visited her neurologist
more often during February and March 2019 because “the stress of not taking lunch
breaks exacerbated her migraines,” id. at ¶ 44; (3) Lewis “carried an anti-glare filter
screen” with her to use with computers because the computer screens “triggered
[Lewis’s] migraine headaches” and caused “eye strain and eye fatigue,” id. at ¶ 43; and
(4) when Lewis used the anti-glare screen, a manager once “asked [Lewis] in front of
peers, why her computer screen was dark,” id.
The amended complaint now at least hints at a major life activity that is impacted
by Lewis’s migraines: working. See id. at ¶ 40. Nevertheless, it still does not support a
plausible inference that Lewis’s ability to work was substantially limited. Although Lewis
alleges that Dr. Metchler said that Lewis’s “migraines could flare up and prevent [her]
from performing the functions of her job” and that “if there [are] flare ups,” Lewis “may
4 The amended complaint contains multiple sets of duplicative paragraph
numbers. After the first nine paragraphs, the paragraph numbers restart at 1. Docket
Item 15 at 2. The second set of paragraph numbers stops at paragraph 73 and then
restarts at 1. Id. at 11. All citations are to the second set of paragraph numbers, which
start in the factual background section on page 2 and end in the third cause of action on
page 4, except for those specifically designated as “(1)” or “(3).” Those designated as
“(1)” refer to the first set of paragraph numbers, and those designated as “(3)” refer to
the third set of paragraph numbers.
need to be absent from work,” id. (emphasis added), there are a few problems with
relying on those allegations to support an inference of a substantial limitation in Lewis’s
ability to work.
First, although Dr. Metchler allegedly said that “Lewis’s chronic migraines could
flare up and prevent [her] from” working, id. (emphasis added), that says nothing about
how often her migraines occurred, whether they actually “flare[d] up,” or how often Dr.
Metchler thought that might happen. Likewise, although Dr. Metchler allegedly said that
“if there were flare ups, [Lewis] may need to be absent from work,” id. (emphasis
added), that suggests that there might not be “flare ups” and that even if there were,
they might not result in absences. And while the amended complaint alleges that Lewis
had “increased visits” to her neurologist in February and March 2019, id. at ¶ 44, it does
not suggest that those visits required her to miss work or how much time Lewis took off
from work—or might be expected to take off from work—for her migraines.5 In other
5 The amended complaint alleges that Dr. Metchler opined that Lewis’s migraines
might affect her ability to perform “her job,” see id. at ¶ 40 (emphasis added), but that
does not address her ability “to ‘perform a class . . . or broad range of jobs,’” see Woolf,
949 F.3d at 94 (emphasis omitted); see also Mazzeo, 751 F. App’x at 15. As explained
above, the “inability to perform a single, particular job does not constitute a substantial
limitation in the major life activity of working.” Woolf, 949 F.3d at 94.
And even if by that allegation Lewis meant to suggest that she could not perform
a job as a nurse practitioner on a broader scale, not just her job at Kaleida, that
allegation still would not be enough to survive a motion to dismiss. A complaint needs
to do more than formulaically recite the major life activity limited by her impairment; it
needs to give some detail about how the “alleged disability substantially and actually
affected any major life activity.” Philbert v. City of New York, 2022 WL 94574, at *16
(S.D.N.Y. Jan. 7, 2022) (citation omitted); see Zuckerman v. GW Acquisition LLC, 2021
WL 4267815, at *11 (S.D.N.Y. Sept. 20, 2021) (dismissing ADA claim and noting how
the formulaic claims lacked factual allegations keyed to plaintiff); cf. Philbert, 2022 WL
94574, at *16 (holding that plaintiff “narrowly” pleaded disability because “although the
[complaint] [spoke] in general terms and lack[ed] important details about the effect on
[plaintiff’s] major life activities . . . it contain[ed] a key allegation: that [plaintiff’s]
words, Lewis alleges next to nothing about how or how often her migraines affected her
ability to work and asks this Court to speculate about how often the migraines
required—or might require—Lewis to miss work.
Even broadly construing Lewis’s allegations “in favor of expansive coverage,” 28
C.F.R. § 35.108(d)(1)(i), those allegations are not enough. She gives this Court nothing
from which to infer “the nature and severity of the impairment; its duration or expected
duration; and the existence of any actual or expected permanent or long[-]term impact,”
Mazzeo, 751 F. App’x at 15, and she therefore has not pleaded that she has a disability
within the meaning of the ADA.6
For all those reasons, even with the new allegations in the amended complaint,
Lewis still has failed to state a claim for disability discrimination.
migraines were severe enough that she had surgery to treat them, with the surgery
being substantial enough to require substantial time away from work during recovery”).
6 As explained in this Court’s prior decision, “Lewis’s ‘failure to plausibly allege a
substantial limitation to a major life activity . . . precludes her from asserting that she has
a record of disability.’” See Docket Item 14 at 11 (quoting Kelly v. New York State
Office of Mental Health, 200 F. Supp. 3d 378, 394 (E.D.N.Y. Aug. 9, 2015)).
Moreover, the amended complaint does not allege that Kaleida “regarded [Lewis]
as having” a disability, see 42 U.S.C. § 12102(1). And even if that was an oversight, the
factual allegations of the amended complaint fail to suggest that Lewis was “regarded
as having” a disability for all the reasons stated in this Court’s prior decision. See
Docket Item 14 at 11-12. To the extent Lewis argues that her manager’s question about
Lewis’s dark computer screen suggests that Lewis was regarded as having a disability,
that asks too much of a simple question. In fact, the amended complaint itself does not
make such an inferential leap. Rather, it says that Lewis’s manager’s question about
the screen “impl[ied] that [Lewis] was not utilizing her computer properly.” Docket Item
8 at ¶ 43.
B. Age
“To survive a Rule 12(b)(6) motion to dismiss, a plaintiff asserting an employment
discrimination [claim] under the ADEA must plausibly allege that adverse action was
taken against her by her employer, and that her age was the ‘but-for’ cause of the
adverse action.” Marcus, 661 F. App’x at 31-32 (citing Vega, 801 F.3d at 87).
In its prior decision, this Court found that Lewis “failed to ‘plausibly allege that . . .
her age was the “but-for” cause of’” any adverse action.7 Docket Item 14 at 14 (citing
Marcus, 661 F. App’x at 31-32). And it explained how Lewis’s “‘seniority is not a
sufficiently accurate indicator of age’ that, by itself, can support an inference that
adverse actions based on seniority necessarily evidence age discrimination.” Id.
(quoting Cross v. New York City Transit Auth., 417 F.3d 241, 250 (2d Cir. 2005)).
The amended complaint again suggests that it was Lewis’s seniority that
triggered the other nurse practitioners’ resentment towards Lewis. See, e.g., Docket
Item 15 at ¶¶ 61 (“[Lewis] was badgered and harassed about what vacation time she
was going to take in the summer and at Christmas[] because she had seniority over the
younger [nurse practitioners].”), 64 (“[Lewis] was treated in a dismissive manner by
7 In its prior order, this Court also dismissed Lewis’s claims based on discrete
acts of discrimination that occurred before January 12, 2019, because those claims are
time barred. Docket Item 14 at 13-14, 21. The amended complaint continues to allege
several acts that took place before January 12, 2019, or are undated. See Docket Item
15 at ¶¶ 10-17, 20-21, 32-34. To the extent that Lewis continues to claim discrimination
based on those allegations, those claims are dismissed because they are time barred.
The Court still will consider those allegations, however, to the extent that those “prior
acts” serve “as background evidence in support of a timely claim.” Wolf v. Time
Warner, Inc., 2011 WL 856264, at *5 (S.D.N.Y. Mar. 3, 2011) (quoting Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)).
other professionals in her department” because “she had the first right to vacation time
and daily assignments.”). But it also adds one key allegation: Kaleida laid off Lewis,
age 60-61, but two younger nurse practitioners, ages 30-31 and 44-45, retained their
jobs. See Docket Item 15 at ¶ 58. That is sufficient to give rise to a minimal inference
that Kaleida laid Lewis off because of her age.
Kaleida argues that the retention of the two younger nurses does not give rise to
a minimal inference of age discrimination because Lewis does not “also allege that they
replaced her.” Docket Item 16-4 at 18. In a reduction-in-force case, however, an
employee who was laid-off “is not required to establish that she was replaced by . . . a
younger employee.” Leibowitz v. Cornell Univ., 584 F.3d 487, 503 (2d Cir. 2009)
(emphasis added). Instead, “a variety of circumstances can give rise to an inference of
discrimination,” id., including that during a reduction in force, “the employer has located
new positions for younger, but not older, employees,” Cronin v. Aetna Life Ins. Co., 46
F.3d 196, 204 (2d Cir. 1995) (collecting cases).
Lewis alleges that two nurses who were thirty and sixteen years younger than
Lewis retained their jobs when she was laid-off. Docket Item 15 at ¶ 58. Although
those allegations may be thin, they narrowly give “plausible support to a minimal
inference” of age discrimination, and Lewis’s age discrimination claim therefore survives
the motion to dismiss.8 See Marcus, 661 F. App’x at 32; see also Wolf, 2011 WL
8 Kaleida also argues that “even if [Lewis] had alleged she was replaced by a
younger employee, no inference of discrimination could plausibly be drawn from such a
cursory allegation.” Docket Item 16-4 at 18. (citing Cocca-Rau v. Standard Ins. Co.,
2020 WL 4207442, at *8 (S.D.N.Y. July 22, 2020)). Although the mere fact that a
“younger” individual replaced a plaintiff cannot sustain an age discrimination claim, see
Cocca-Rau, 2022 WL 4207442, at *8, the amended complaint now offers more than
“such a cursory allegation”; it identifies two nurses who were not laid off and provides
856264, at *6 (“While the allegations here are not as strong as the evidence the Second
Circuit found sufficient in Leibowitz, the standard on a motion to dismiss is much lower,
and [p]laintiff’s allegations are enough to clear this fairly low bar.”).
C. Gender
“To support a minimal inference of discrimination, a plaintiff may allege disparate
treatment by showing ‘the more favorable treatment of employees not in the protected
group,’ who are ‘similarly situated in all material respects.’” Carris v. First Student, Inc.,
682 F. App’x 30, 32 (2d Cir. 2017) (summary order) (first quoting Littlejohn, 795 F.3d at
312; and then quoting Brown v. Daikin Am. Inc., 756 F.3d 219, 230 (2d Cir. 2014)).
Generally, an employee is similarly situated to a proposed comparator if the two “were
(1) ‘subject to the same performance evaluation and discipline standards’ and (2)
‘engaged in comparable conduct.’” Stinnett v. Delta Air Lines, Inc., 278 F. Supp. 3d
599, 611 (E.D.N.Y. 2017) (citations omitted); see also Graham v. Long Island R.R., 230
F.3d 34, 39-40 (2d Cir. 2000). “While the law does not require detailed pleadings
regarding the similarly situated comparators, the plaintiff must at least plead allegations
from which it is plausible to conclude that the comparators are similarly situated.”
Wolfinger v. Consol. Edison Co. of N.Y, Inc., 2018 WL 3637964, at *9 (E.D.N.Y. July 31,
2018) (internal citations and quotation marks omitted).
This Court previously found that the complaint failed to raise a viable gender-
discrimination claim because it failed to link any of the “alleged discriminatory behavior
their ages. See Wolf, 2011 WL 856264, at *6 (allegation that two employees under the
age of forty took over plaintiff’s work gave rise to a plausible inference of age
discrimination).
. . . to Lewis’s gender.” Docket Item 14 at 16. What is more, the Court found that
Lewis’s allegation of “disparate treatment regarding attendance” compared to “John
Hawk,” a male co-worker who left “early during his shift and affect[ed] other’s [sic] work,”
failed to raise a gender-discrimination claim because “Lewis d[id] not allege that she
was similarly situated to Hawk—for example, that she tried to leave work early but was
prevented from doing so or was reprimanded in some way.” Id. at 15-16 (citing Docket
Item 1 at ¶ 25).
The amended complaint once again alleges that Lewis was treated differently
than Hawk. See Docket Item 15 at ¶¶ 25, 1(3)-6(3). And it now includes some
allegations that Hawk and Lewis were similarly situated. For example, the amended
complaint alleges that Hawk also was also a nurse practitioner “with the same title and
same position as” Lewis. Id. at ¶ 2(3).
But Lewis still has not alleged that she and Hawk behaved in a similar fashion
and that she was penalized but Hawk was not. For example, Lewis still has not alleged
that “she tried to leave work early [as Hawk did] but was prevented from doing so or
was reprimanded in some way.” See Docket Item 14 at 15-16. Likewise, while she
alleges that Hawk brought “specialized beer” to a physician “against workplace policies,”
she does not allege that she did something similar but was punished for it. See Docket
Item 15 at ¶ 5(3). In other words, Lewis does not allege that she and Hawk “engaged in
comparable conduct” and that she was treated differently. See Stinnett, 278 F. Supp.
3d at 611.
For that reason, the amended complaint still fails to state a claim for gender
discrimination.
II. HOSTILE WORK ENVIRONMENT CLAIM
Under the ADEA, “an employee seeking to bring a hostile work environment
claim must show [1] that she . . . is a member of a protected class; [2] that she suffered
unwelcomed harassment; [3] that she was harassed because of her membership in a
protected class; and [4] that the harassment was sufficiently severe or pervasive to alter
the conditions of employment and create an abusive work environment.” Monterroso v.
Sullivan & Cromwell, LLP, 591 F. Supp. 2d 567, 584 (S.D.N.Y. 2008); see Terry v.
Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003).
Lewis alleges that she was subjected to a “hostile work environment based on
[her] age.” Docket Item 15 at 10 (capitalization omitted). In its prior decision, this Court
found that “there is no question that Lewis ‘subjectively perceive[d her] environment [at
Kaleida] to be abusive.’” Docket Item 14 at 18 (citing Alfano v. Costello, 294 F.3d 365,
374 (2d Cir. 2002)). Nevertheless, this Court held that Lewis’s hostile work environment
claim under the ADEA was subject to dismissal because she failed to “tie[] any of
Kaleida’s conduct to her age.” Id. Although, as explained above, the amended
complaint narrowly ties Lewis’s layoff to her age and her age discrimination claim
therefore survives the present motion to dismiss, the amended complaint falls short in
tying any alleged hostile work environment to Lewis’s age.
As in the complaint, Lewis’s allegations in the amended complaint regarding any
alleged “hostile work environment” cite her seniority, not her age. See Docket Item 15
at 10-11 (capitalization omitted). Like the complaint, the amended complaint suggests
that Lewis’s younger co-workers resented Lewis not for her age, but because Lewis’s
greater seniority entitled her to “the first right to vacation time and daily assignments.”
See id. at ¶ 64. And it says that Lewis’s co-workers treated her poorly for that reason,
not because of her age.
As this Court explained in its prior decision, seniority “‘is not a sufficiently
accurate indicator of age’ alone to plead an age-discrimination claim.” Docket Item 14
at 19 (citing Cross, 417 F.3d at 250). That is so because seniority “depend[s] upon the
age at which the employee began to work for the company” and thus “employees with
greater seniority are not necessarily older than employees with less.” Ludovicy v.
Dunkirk Radiator Corp., 922 F.2d 109, 111 (2d Cir. 1990). And although Lewis has
pleaded more than seniority with respect to her claim that she was laid off because of
her age, she has not done the same with her hostile work environment claim.
The amended complaint therefore fails to state a claim for hostile work
environment based on age.9
III. RETALIATION CLAIMS
To survive a motion to dismiss, a plaintiff asserting a retaliation claim under Title
VII or the ADA “must plausibly allege that: (1) [the] defendants discriminated—or took
an adverse employment action—against [her], (2) ‘because’ [s]he has opposed any
unlawful employment practice.” Vega, 801 F.3d at 90. A plaintiff may state a prima
facie case of retaliation under Title VII or the ADA by “establish[ing] that (1) the
employee was engaged in an activity protected by the ADA [or Title VII], (2) the
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
9 The amended complaint does not allege—or, broadly read, even suggest—that
Lewis was subject to a hostile work environment based on gender or disability.
the adverse employment action.” Sarno v. Doublas Elliman-Gibbons & Ives, Inc., 183
F.3d 155, 159 (2d Cir. 1999); Terry, 336 F.3d at 141.
“‘Protected activity’ includes oppos[ing] a discriminatory employment practice,”
Hubbard v. Total Commc’ns., Inc., 347 F. App’x 679, 680-81 (2d Cir. 2009) (summary
order), and reaches even “informal protests of discriminatory employment practices,
[such as] making complaints to management,” Belton v. Borg & Ide Imaging, P.C., 2021
WL 98392, at *7 (W.D.N.Y. Jan. 12, 2021) (citation omitted). “But such [informal]
complaints must be ‘sufficiently specific so that the employer is put on notice that the
plaintiff believes she is being discriminated against on the basis of a protected
characteristic.’” Id. (internal marks omitted) (emphasis added) (citing Jaeger v. North
Babylon Union Free Sch. Dist., 191 F. Supp. 3d 215, 232 (E.D.N.Y. 2016)). In other
words, “[g]eneralized complaints” are insufficient. McCullough v. John T. Mather
Hospital of Port Jefferson, New York, Inc., 2019 WL 1755436, at *8 (Apr. 19, 2019). “To
the extent that an employee complains about perceived ‘unfair’ treatment relating to job
responsibility, hiring practices, or corporate policy, but fails to link the treatment to
unlawful discrimination or to h[er] protected status, [s]he fails to establish that [s]he was
engaged in [a] protected activity.” Id. (citation omitted).
The amended complaint alleges that Lewis complained to her manager about
inadequate training, about the lack of lunch breaks, about her co-workers’ violations of
work rules, and generally about the “discriminatory hostile environment she was being
subjected to.” See Docket Item 15 at ¶¶ 6, 16, 18, 21, 25, 29, 66. But the amended
complaint does not allege that Lewis complained that she was “being discriminated
against on the basis of” her gender or disability or age. See Belton, 2021 WL 98392, at
*7 (complaints must put employer “on notice that the plaintiff believes she is being
discriminated against on the basis of a protected characteristic” (emphasis added)). In
other words, although Lewis alleges that she complained to management generally
about “perceived ‘unfair’ treatment” and workplace violations, her alleged complaints did
not “link the [perceived unfair] treatment” to any protected status. See McCullough,
2019 WL 1755436, at *8.
Moreover, to the extent that Lewis argues that her FMLA leave request is a
protected activity, see Docket Item 15 at ¶ 51, she is mistaken. “A request for FMLA
leave, without more, cannot constitute a protected activity for the purposes of an ADA
retaliation claim.” Brizzi v. Utica Mut. Ins. Co., 529 F. Supp. 3d 44, 56 (E.D.N.Y. 2021)
(quoting Kastrati v. Progress of Peoples Mgmt. Corp., 2020 WL 6940991, at *5
(E.D.N.Y. Nov. 24, 2020)). As just explained, Lewis does not provide anything more,
and her FMLA request therefore does not constitute a protected activity for her ADA
retaliation claim.
Because Lewis has failed to plead that she engaged in a protected activity, she
has failed to state a retaliation claim under either the ADA or Title VII.
CONCLUSION
For the reasons stated above, Kaleida’s motion to dismiss, Docket Item 16, is
GRANTED IN PART and DENIED IN PART. Lewis’s discrimination and retaliation
claims under the ADA and Title VII are dismissed as is her hostile work environment
claim under the ADEA. Her age discrimination claim based on her layoff, however, may
proceed.
SO ORDERED.
Dated: September 27, 2022
Buffalo, New York
/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE