Khademi v. AANIKA Biosciences, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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FARSHAD KHADEMI,

Plaintiff,

MEMORANDUM AND ORDER

- against- 24-CV-05130 (OEM) (JRC)

AANIKA BIOSCIENCES, INC., et al.,

Defendants.

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ORELIA E. MERCHANT, United States District Judge:

Plaintiff Farshad Khademi (“Plaintiff”) brings this workplace discrimination action against

defendants AANIKA Biosciences Inc. (“AANIKA”), Vishaal Bhuyan (“Bhuyan”), and Ellen

Jorgensen (“Jorgensen”) (“Defendants”). Specifically, Plaintiff alleges the following: (1)

Americans with Disabilities Act (“ADA”) discrimination; (2) ADA retaliation; (3) New York State

Human Rights Law (“NYSHRL”) disability discrimination; (4) NYSHRL sex/gender

discrimination; (5) NYSHRL retaliation; (6) New York City Human Rights Law (“NYCHRL”)

disability discrimination; (7) NYCHRL sex, height, and weight discrimination; (8) NYCHRL

failure to engage in interactive process of providing work accommodation; (9) NYCHRL

retaliation. First Amended Complaint (“FAC”), ECF 9 ¶¶ 121-324.

Before the Court is Defendants’ fully briefed motion to dismiss the FAC.1 For the

following reasons, Defendants’ motion is granted in part and denied in part.

1 Defendants’ motion to dismiss the FAC (“Defs’ Mot.”), ECF 11; Defendants’ Memorandum in Support of Motion to

Dismiss (“Defs’ Mem.”), ECF 11-1; Plaintiff’s Opposition (“Pl’s Opp.”), ECF 12; and Defendants’ Reply in Support

of Motion to Dismiss (“Defs’ Reply”), ECF 13.

BACKGROUND2

The following facts are drawn from the FAC and are accepted as true for purposes of the

instant motion. See Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir. 1993).

A. The Parties

Plaintiff Khademi is male. FAC ¶ 38. Plaintiff holds a PhD degree, has completed three

postdoctoral fellowships, and has more than twenty-three years of experience in molecular

microbial biology and pharmaceutical biotechnology. Id. ¶ 56. Plaintiff worked for AANIKA as

“lead fermentation scientist” from approximately January 2022 to August 30, 2022, at AANIKA’s

facility in Brooklyn, New York. Id. ¶¶ 55, 61. As part of his job, Plaintiff designed laboratories

and implemented fermentation processes to grow agricultural biological mass (“bio-mass”). Id. ¶

58. His responsibilities included “providing technical advice to customers,” and “assisting in”

patent applications, contracts, and “projects requiring fermentation/bioreaction expertise.” Id. His

duties also entailed preparing cells for bio-mass growth or production. Id. ¶ 59.

AANIKA is a Delaware corporation authorized to conduct business in New York state. Id.

¶ 8. The corporation ran a bio-mass fermentation production facility in Brooklyn, New York. Id.

¶¶ 11, 26. ANNIKA sold bio-mass developed by Plaintiff to customers across multiple states. Id.

¶ 26.

AANIKA employed Plaintiff along with more than fifteen others. Id. ¶¶ 9,14. Bhuyan

was the owner, founder, “chair executive officer”, and general manager of AANIKA, when

Plaintiff was employed at AANIKA. Id. ¶ 28. On or about August 30, 2022, Bhuyan told Plaintiff

2 The Court draws the following facts from the facts and allegations contained in the complaint and in any documents

that are either incorporated into the complaint by reference or attached to the complaint as exhibits. See Blue Tree

Hotels Inv. (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004).

he was fired. Id. ¶ 31. Jorgensen was the chief scientific officer of AANIKA while Plaintiff was

employed there. Id. ¶ 32.

B. The Incident

According to Plaintiff, on or about May 18, 2022, Jorgensen “directed Plaintiff to move a

large shaker machine weighing over 200 lbs. [] used in another male scientist named Jamie

Richards’ [] laboratory to the street[.]” Id. ¶ 39. “Based on Jorgenson’s [sic] orders, Richards

shifted the entire weight of the subject machine onto Plaintiff for Plaintiff to carry the machine

outside by himself[,] . . . [which] caused Plaintiff to fall onto the floor with the machine falling on

top of him.” Id. ¶ 65. Plaintiff alleges that none of the female scientists present, including

Jorgensen, who observed the incident, attempted to lift the machine off Plaintiff or call for

assistance. Id. ¶ 40. Instead, Plaintiff alleges that Jorgensen walked away while Plaintiff remained

on the floor, beneath the machine, “as if nothing had happened.” Id. As a result of his fall, Plaintiff

sustained serious, disabling injuries to his left knee, lower spine and upper back (thoracic spine

injuries). Id. ¶ 65.

Plaintiff alleges that Jorgensen and Bhuyan had ordered Plaintiff to lift the machine “to

avoid the cost of hiring movers or an industrial waste removal company with physically qualified

staff with proper tools.” Id. ¶ 41.

Plaintiff further alleges that “Jorgenson [sic] and Bhuyan unreasonably ordered Plaintiff to

remove the excessively heavy machine that caused him disabling injuries solely because he was a

male employee approximately 6 feet tall and 200lbs[.]” Id. ¶ 42. “Based on Plaintiff’s male

sex/gender[,] Defendants took adverse employment action against Plaintiff by assigning him tasks

that were ‘arduous and dirtier[.]’” Id. ¶ 43. According to Plaintiff, Jorgensen and Bhuyan did not

order the female staff scientists “who were relatively smaller in physical stature” to move or assist

Plaintiff with moving the subject machine. Id. ¶ 44. “But for Plaintiff’s male sex/gender,

Jorgensen and Bhuyan would not have ordered Plaintiff to move the [] machine that was [the]

proximate cause of his subject injuries.” Id. ¶ 45.

C. AANIKA’s Response to Plaintiff’s Accommodations Request

On or about May 18, 2022, Plaintiff informed Josh Koch, AANIKA’s director of human

resources (“HR”), that he was injured as a result of moving the machine. Id. ¶¶ 46-47. According

to Plaintiff, Koch responded by instructing Plaintiff to use his accrued paid-time-off (“PTO”)

and/or sick hours for the time Plaintiff needed to attend his medical appointments and to recover

from his injuries. Id. ¶ 48.

Around July 2022, Plaintiff alleges that Koch “warned Plaintiff that he was taking too many

hours to go to medical appointments and physical therapy.” Id. ¶ 49. Shortly after Koch’s warning,

Plaintiff’s physician sent Defendants a letter explaining that Plaintiff needed, and his insurance

required him, to attend medical appointments to recover. Id. During that same period, in or about

July 2022, Plaintiff alleges that his doctors diagnosed him as disabled, referred him to physical

therapy twice a week, and directed him to attend follow-up medical appointments. Id. ¶ 85.

On or about August 29, 2022, Plaintiff emailed Koch to request that his accrued PTO and/or

sick hours of about 15 workdays be applied to future physical therapy sessions. Id. ¶ 86. On

August 30, 2022, Bhuyan verbally terminated Plaintiff, and Koch memorialized Plaintiff’s

termination in a subsequent email. Id. ¶ 50.

Plaintiff alleges that his termination was retaliatory because it was in close temporal

proximity to his protected activities including “a) opposing and complaining . . . [about]

Defendants’ employment practices of assigning [Plaintiff] unreasonable physical tasks that were

outside of his work duties that resulted in his injuries and subsequent disability; and b) opposing

Koch’s warning that Plaintiff took too many PTO hours for physical therapy and medical

appointments which included a letter sent by Plaintiff’s medical doctor on Plaintiff’s behalf to

Defendants [.]” Id. ¶ 93. Plaintiff further alleges he was qualified for his position and that the

hours of work he missed because of physical therapy could be remedied by a reasonable

modification of his work schedule. Id. ¶¶ 89-90.

D. Procedural History

On September 17, 2024, Plaintiff filed this action asserting nine causes of action. See FAC.

On December 2, 2024, Defendants filed their fully briefed motion to dismiss.

LEGAL STANDARD

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

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

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A claim is facially plausible when the alleged facts allow the court to draw a “reasonable inference”

of a defendant’s liability for the alleged misconduct. Id. While the Court “must accept as true all

of the allegations contained in a complaint,” this “tenet . . . is inapplicable to legal conclusions.”

Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id. In considering this motion, the Court “must limit itself to the facts

stated in the complaint, documents attached to the complaint as exhibits, and documents

incorporated by reference in the complaint.” Hayden v. Cnty. of Nassau, 180 F.3d 42, 54 (2d Cir.

1999).

DISCUSSION

Defendants argue Plaintiff’s complaint3 should be dismissed for failure to state a claim

upon which relief can be granted. See Defs’ Mem. Plaintiff opposes Defendants’ arguments for

dismissal. See Pl’s Opp.

A. ADA Claims

1. Disability Discrimination Under the ADA

To make out a case under the ADA at the pleading stage,4 a plaintiff must allege that: (1)

his “employer is subject to the ADA”; (2) he is “disabled within the meaning of the ADA”; (3) he

is “otherwise qualified to perform the essential functions of [his] job, with or without reasonable

accommodation”; and (4) he “suffered adverse employment action because of [his] disability.”

Harvin v. Manhattan & Bronx Surface Transit Operating Auth., 767 F. App’x. 123, 127 (2d Cir.

2019) (citing Jacques v. DiMarzio, Inc., 386 F.3d 192, 198 (2d Cir. 2004)). At the pleading stage,

“a plaintiff need only give plausible support to a minimal inference of discriminatory

motivation[.]” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 84 (2d Cir. 2004) (internal

quotations omitted). However, even under this “minimal burden,” Littlejohn v. City of New York,

795 F.3d 297, 311 (2d Cir. 2015), the plaintiff must allege sufficient allegations to “nudge[ ] [his]

3 The FAC contains the following causes of action (1) ADA discrimination; (2) ADA retaliation; (3) NYSHRL

disability discrimination; (4) NYSHRL sex/gender discrimination; (5) NYSHRL retaliation; (6) NYCHRL disability

discrimination; (7) NYCHRL sex, height, and weight discrimination; (8) NYCHRL failure to engage in interactive

process of providing work accommodation; and (9) NYCHRL retaliation. FAC ¶¶ 121-324.

4 The McDonnell Douglas standard does not apply during the pleading stage. “[T]he survival of a complaint under

Rule 12(b)(6) scrutiny in an employment discrimination case ‘does not rest on whether it contains specific facts

establishing a prima facie case under McDonnell Douglas.’” Figueroa v. RSquared NY, Inc., 89 F. Supp. 3d 484, 489

(E.D.N.Y. 2015) (Spatt, J.) (quoting Lax v. 29 Woodmere Blvd. Owners, Inc., 812 F. Supp. 2d 228, 236 (E.D.N.Y.

2011)); Figueroa, 89 F. Supp. 3d at 489; Fanelli v. New York, 51 F. Supp. 3d 219, 231 (E.D.N.Y. 2014); Friel v. Cnty

of Nassau, 947 F. Supp. 2d 239, 251 (E.D.N.Y. 2013); see also Gonzalez v. Carestream Health, Inc., 520 F. App’x 8,

9-10 (2d Cir. 2013) (“To survive a motion to dismiss, a complaint alleging workplace discrimination . . . need not

allege specific facts establishing a prima facie case of discrimination under McDonnell Douglas . . . .”). “The prima

facie case under McDonnell Douglas [] is an evidentiary standard, not a pleading requirement.” Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 510 (2002).

claims across the line from conceivable to plausible,” Vega, 801 F.3d at 87 (first alteration in

original) (quoting Twombly, 550 U.S. at 570).

Here, Defendant AANIKA does not dispute that Plaintiff has stated sufficient facts to

plausibly allege that AANIKA is a qualified employer under the ADA, that Plaintiff was disabled

within the meaning of the ADA, or that Plaintiff was qualified to perform the essential functions

of his job. See Defs’ Mem. Defendant only disputes that Plaintiff has plausibly alleged the fourth

element of an ADA discrimination claim: that he suffered an adverse employment action because

of his disability. See Defs’ Mem. at 19-20. AANIKA argues that Plaintiff fails to allege facts that

show that AANIKA discriminated against Plaintiff “on the basis of” Plaintiff’s disability (his

injured spine and knee). See id.

To survive Defendant AANIKA’s motion to dismiss Plaintiff’s ADA discrimination claim,

Plaintiff’s FAC needs to allege facts making it plausible that he suffered an adverse employment

action in part because of his disability. See Witcher v. New York City Dep’t of Educ., 23-465, 2024

WL 3220264, at *1 (2d Cir. June 28, 2024) (quoting Natofsky v. City of New York, 921 F.3d 337,

348-50 (2d Cir. 2019) (“[T]he ADA requires a plaintiff alleging a claim of employment

discrimination to prove that discrimination was the but-for cause of any adverse employment

action.”)); see also Parker v. Columbia Pictures Indus., 204 F.3d 326, 337 (2d Cir. 2000)

(explaining that the ADA “cover[s] situations in which discrimination on the basis of disability is

one factor, but not the only factor, motivating an adverse employment action[.]”).

Plaintiff has done so here. Plaintiff alleges that he had to miss work to attend physical

therapy because of his disability, FAC ¶ 90; that Defendants warned Plaintiff he took too much

time off to attend physical therapy sessions, id. ¶ 49; that after Defendants’ warning, Plaintiff’s

physician wrote a letter explaining that Plaintiff “required physical therapy and medical

appointments to recover[,]” id.; that shortly after Plaintiff asked to apply his accrued PTO/sick

hours to attend medical appointments and physical therapy sessions, Bhuyan verbally terminated

Plaintiff, and Koch emailed Plaintiff confirming the verbal termination, id. ¶¶ 50-51. Thus,

Plaintiff has alleged facts that make it plausible that the medical treatment his disability required

him to obtain was a but-for cause of his termination. Therefore, Plaintiff has plausibly alleged that

he was terminated because of his disability. Defendants’ motion to dismiss Plaintiff’s ADA

discrimination claim is denied.

2. Retaliation for Being Disabled under the ADA

To survive a motion to dismiss an ADA retaliation claim, a plaintiff must plausibly allege

that: “[(1)] he engaged in a protected activity, [(2)] that he suffered an adverse employment action,

and [(3)] that a causal connection exists between that protected activity and the adverse

employment action.” Ibela v. Allied Universal, 21-CV-1995, 2022 WL 1418886, at *2 (2d Cir.

May 5, 2022) (quoting Fox v. Costco Wholesale Corp., 918 F.3d 65, 72-73 (2d Cir. 2019)); Clark

v. Coca-Cola Bevs. Northeast Inc., 2022 WL 92060, at *5 (2d Cir. Jan. 10, 2022) (same).

Plaintiff’s burden as to this showing is “minimal[.]” Perez v. City of New York, 843 F. App’x 406,

407 (2d Cir. 2021) (first citing Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010); and then citing

Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002)). The parties dispute whether the

allegations in the FAC meet the first and third elements.

a. Protected Activity

Plaintiff alleges that he engaged in the following protected activities: (1) “opposing

Defendant[s’] [denial of Plaintiff’s] accrued and unused PTO and/or sick hours or paid medical

leave for medical treatment and rehabilitation purposes during on or about July and August

2022[,]” (2) sending a “letter to Defendants [explaining] that Plaintiff required physical therapy to

recover” from his injuries, through Plaintiff’s physician, (3) sending an email to Bhuyan and Koch

complaining that Plaintiff was in physical pain and had limited mobility because Jorgensen tasked

him with performing “dangerous” and “humiliating work”, and (4) filing a worker’s compensation

claim that was noticed to Defendant by the worker’s compensation board and/or Defendant’s

insurance company that allegedly increased Defendants’ insurance costs. FAC ¶¶ 104-05, 135,

194-95.

Only Plaintiff’s first and second activities constitute protected activities under the ADA.

“The term ‘protected activity’ refers to action taken to protest or oppose statutorily prohibited

discrimination.” Wright v. Monroe Cnty. Hosp., 493 F. App’x 233, 236 (2d Cir. 2012). “When

an employee communicates to her employer a belief that the employer has engaged in a form of

employment discrimination, that communication virtually always constitutes the employee’s

opposition to the activity.” Farmer v. Shake Shack Enters., LLC, 473 F. Supp. 3d 309, 331

(S.D.N.Y. 2020), (emphasis in original) (quoting Littlejohn, 795 F.3d at 317). “A plaintiff’s

complaint qualifies as protected activity so long as the plaintiff had ‘a good faith, reasonable belief

that she was opposing an employment practice made unlawful by [the relevant statute].’” Vaughn

v. Empire City Casino at Yonkers Raceway, 14-CV-10297 (KMK), 2017 WL 3017503, at *20

(S.D.N.Y. July 14, 2017) (citing Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C.,

716 F.3d 10, 14 (2d Cir. 2013)); see also Hazelwood v. Highland Hosp., 763 F. App’x 60, 62 (2d

Cir. 2019).

“Activities protected by the ADA include complaints of ADA discrimination . . . and

requests for reasonable accommodation.” Flieger v. E. Suffolk BOCES, 693 F. App’x 14, 18 (2d

Cir. 2017); see Treglia, 313 F.3d at 720 (“[A]ttempts to assert . . . rights against discrimination are

protected activities.”); Frantti v. New York, 850 F. App’x 17, 21 (2d Cir. 2021) (same); Summa v.

Hofstra Univ., 708 F.3d 115, 126-27 (2d Cir. 2013). “‘A plaintiff seeking to demonstrate that [he]

engaged in protected activity need not show that the behavior [he] opposed in fact violated . . . the

ADA.” Cooper v. New York State Dep’t of Labor, 819 F.3d 678, 680-81 (2d Cir. 2016) (per

curiam); see also Mitchell v. Planned Parenthood of Greater N.Y., 2024 WL 3849192, at *14

(S.D.N.Y. Aug. 16, 2024). Rather, a plaintiff must allege that the protected activity “was

motivated by a good faith, reasonable belief that the underlying employment practice was

unlawful” and was based on a protected characteristic. Mitchell, 2024 WL 3849192, at *14; see

also Kelly, 716 F.3d at 14. “Requesting a reasonable accommodation of a disability is an ADA-

protected activity.” Rodriguez v. Atria Senior Living Grp., Inc., 887 F. Supp. 2d 503, 512

(S.D.N.Y. 2012) (citing Weixel v. Bd. of Educ., 287 F.3d 138, 149 (2d Cir. 2002)); see Weekes v.

JetBlue Airways Corp., 21-CV-1965 (MKB), 2022 WL 4291371, at *14 (E.D.N.Y. Sept. 16, 2022)

(same) (collecting cases).

Plaintiff has plausibly alleged that his complaints about and opposition to Defendants’

denial of accommodations were “motivated by a good faith, reasonable belief that the underlying

employment practice[s] w[ere] unlawful” under the ADA. Rivera v. Rochester Genesse Reg’l

Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2012) (quotation marks and citation omitted). Plaintiff

alleges that following “Koch[’s] warn[ing] [to] Plaintiff . . . that he was taking too much PTO for

medical treatment[,]” Plaintiff “repeatedly demanded” “to use his accrued PTO/ sick hours for

medical treatment from on or about July 2022 through on or about August 29, 2022[.]” FAC ¶

318. Plaintiff had his physician write and send a letter in support of his request to attend those

sessions. Id. ¶ 96. Plaintiff alleged that, despite Koch’s prior warnings, he “made a final request

that Defendants apply his accrued and rightful PTO/sick hours to his medical appointments and

physical therapy[,]” and the day after this request he was fired. Id. Plaintiff alleges that

“Defendants had several work schedule modifications available for Plaintiff to make up work

hours at the time he was warned about taking too much time for medical treatment and at the time

Plaintiff was denied any discussions of and was not given accommodations and/or discharged.”

Id. ¶ 247. Plaintiff also alleges that “after Plaintiff applied his accrued sick hours and/or accrued

PTO hours to attend medical appointments and/or physical therapy, Defendant retaliated by

placing a disciplinary note [in] Plaintiff’s employment file and warned Plaintiff for taking too

much paid time off for medical purposes.”5 Id. ¶ 187.

Plaintiff has also plausibly alleged that the letter his physician sent to Defendants was an

extension of his attempt to obtain reasonable accommodations. Defendants argue that the letter

sent by Plaintiff’s physician to Defendants is insufficient to constitute protected activity because

the physician—not Plaintiff—actually wrote and sent the letter. Defs’ Mem. at 23. This argument

is unavailing. The physician’s letter was provided at Plaintiff’s request in support of an ongoing

conversation that Plaintiff initiated when seeking accommodations from his employer. FAC ¶ 49.

Although the physician actually sent the letter to Defendants, id. ¶ 96, the use of the physician’s

letter as part of Plaintiff’s accommodations request is functionally no different than cases where

plaintiffs solicit from their doctor a letter and then personally submit that letter to their employer.

Courts in the Second Circuit have repeatedly held that the latter circumstance constitutes protected

activity. See Hernandez v. Int’l Shoppes, LLC, 100 F. Supp. 3d 232, 268 (E.D.N.Y. 2015)

(“[P]laintiff’s discussion with his supervisor and the provision of a doctor’s note regarding his

back impairment qualifies as participating in protected activity.”). Therefore, the Court rejects

Defendants’ argument that the sending of the letter does not constitute protected activity under the

ADA.

5 Plaintiff alleges this instance of retaliation in relation to his ADA retaliation claim only.

However, Plaintiff has not plausibly alleged that sending his May 19, 2022 email

constitutes protected activity. Plaintiff alleges that he “stat[ed] in an email dated on or about May

19, 2022 to Bhuyan that Plaintiff’s injuries that were sustained and [his] ensuing pain was in

relevant part, ‘Thanks to the humiliation of Sr. scientists by asking them to lift and carry a 200

pound old shaker, or a huge autoclave to/from a parking lot on the other side of the street.’” FAC

¶ 95. Plaintiff alleges that this email “clearly opposed Defendant’s improper employment practices

of assigning unreasonable, dangerous and out of duty tasks to him[.]” Id. ¶ 95. Plaintiff further

alleges that he generally opposed Defendants’ “unlawful employment practice of ordering him, a

scientist[,] to perform dangerous or ‘humiliating’ out of duty tasks to remove the subject

machine[.]” Id. ¶ 194.

Plaintiff’s allegations about his email and general opposition to Defendants’ request to

move the machine do not support a “good faith, reasonable belief that the underlying challenged

actions” were unlawful. Kelly, 716 F.3d at 17 (“Although particular words such as ‘discrimination’

are certainly not required to put an employer on notice of a protected complaint, neither are they

sufficient to do so if nothing in the substance of the complaint suggests that the complained-of

activity is, in fact, unlawfully discriminatory.”). The Second Circuit has “repeatedly held that

generalized grievances about an unpleasant or even harsh work environment, without more, do not

reasonably alert an employer of discriminatory conduct and therefore fail to rise to the level of

protected activity.” Green v. Mount Sinai Health Sys., Inc., 826 F. App’x 124, 125 (2d Cir. 2020).

If anything, Plaintiff’s alleged “protected activity” was taken to protest or oppose perceived

gender-based discrimination—instead of disability discrimination—which is not protected under

the ADA. Molinari v. Costco Cap. Inc., 24-CV-02594 (HG), 2025 WL 1135428, at *5 (E.D.N.Y.

Apr. 17, 2025) (citing Treglia, 313 F.3d at 719-20) (“To establish a retaliation claim under the

ADA, a plaintiff must adequately plead, among other things, that he suffered an adverse

employment action because he engaged in a protected activity under the ADA, such as an attempt

to assert his disability rights.”). Therefore, as pleaded, the May 19, 2022 email and general

opposition do not constitute opposition to an improper employment practice under the ADA and

thus cannot support a retaliation claim under the ADA.

Plaintiff’s filing of a worker’s compensation claim related to the incident also does not

constitute a protected activity under the ADA. “The Second Circuit has made clear that [collecting

a workers’ compensation award] is not protected under the ADA or NYSHRL.” See Bennett v.

Project Renewal, Inc., 627 F. App’x. 29, 31 (2d Cir. 2015) (“discrimination and retaliation based

on [ ] filing of a workers’ compensation claim do not allege membership in any class or

engagement in any activity protected by . . . the ADA”). Therefore, Plaintiff’s worker’s

compensation allegation cannot support an ADA retaliation claim. In sum, the only protected

activities Plaintiff engaged in were those related to his accommodation requests: (1) his PTO

requests and (2) his physician’s letter.

b. Adverse Employment Action

Plaintiff alleges two instances of adverse employment actions: (1) Defendants allegedly

placed “disciplinary notes [in] Plaintiff’s employment file for taking PTO”, FAC ¶¶ 104, 195, and

(2) Defendants terminated Plaintiff from his employment, id. ¶¶ 162, 169.

The Supreme Court held in the Title VII context that to establish an adverse employment

action, a plaintiff “must [merely] show some harm respecting an identifiable term or condition of

employment.” Muldrow v. City of St. Louis, Mo., 601 U.S. 346, 355 (2024). Although the Second

Circuit has not yet clarified whether the standard for an adverse employment action under the ADA

also changed following the Supreme Court’s decision in Muldrow, the definition of an adverse

employment action under Title VII is the same as under the ADA, Richards v. Dep’t of Educ. of

N.Y.C., 21-CV-338 (LJL), 2022 WL 329226, at *8 (S.D.N.Y. Feb. 2, 2022), and courts in this

Circuit have held that Muldrow applies to ADA discrimination cases. See Mitchell v. Planned

Parenthood of Greater N.Y., 745 F. Supp. 3d 68, 91 (S.D.N.Y. 2024); see also Cangro v. N.Y.C.

Dep’t of Fin., 23-CV-10097 (LAP), 2024 WL 4582369, at *2 (S.D.N.Y. Oct. 25, 2024).

Consequently, the Court applies this standard when analyzing Plaintiff’s alleged adverse

employment actions.

Here, because the mere existence of disciplinary notes does not constitute “some harm

respecting an identifiable term or condition of employment[,]” the notes Plaintiff allegedly

received do not constitute adverse employment actions. Plaintiff alleges that he was terminated

on August 30, 2022. This constitutes an adverse employment action. Rodriguez v. Atria Sr. Living

Grp., Inc., 887 F. Supp. 2d 503, 512 (S.D.N.Y. 2012) (“Of course, there is no dispute that

termination is an adverse employment action”); see Weekes, 2022 WL 4291371, at *15 (collecting

cases). Defendants do not dispute that termination is an adverse employment action. Therefore,

the only adverse employment action Plaintiff plausibly alleges under the ADA is his termination.

c. Causal Connection

To plead a retaliation claim, “a plaintiff must show that a causal connection existed between

the protected activity and the adverse action.” Weekes, 2022 WL 4291371, at *15 (cleaned up). A

plaintiff can plead facts sufficient to demonstrate a causal connection: “(1) indirectly, by showing

that the protected activity was followed closely by discriminatory treatment, or through other

circumstantial evidence such as disparate treatment of fellow employees who engaged in similar

conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the

defendant.” Natofsky, 921 F.3d at 353 (quoting Littlejohn, 795 F.3d at 319). “The causal

connection needed for proof of a retaliation claim can be established indirectly by showing that

the protected activity was closely followed in time by the adverse action.” Lovejoy-Wilson v.

NOCO Motor Fuel, Inc., 263 F.3d 208, 224 (2d Cir. 2001) (quoting Cifra v. Gen. Elec. Co., 252

F.3d 205, 216 (2d Cir. 2001)); see Ibela, 2022 WL 1418886, at *2 (quoting Gorman-Bakos v.

Cornell Co-Op Ext. of Schenectady Cnty., 252 F.3d 545, 554 (2d Cir. 2001)) (finding that a gap of

two months between a protected activity and adverse action was sufficient to plausibly allege

causation).

Defendants argue that Plaintiff’s claim that his employment was terminated on August 30,

2022 in response to his August 29, 2022 request to apply his accrued PTO hours to physical therapy

and medical appointments is unfounded. Defendants note that AANIKA had already repeatedly

allowed Plaintiff to take PTO for his injuries.6 Here, construing the facts in Plaintiff’s favor, it is

plausible that Plaintiff’s request on August 29, 2022 was the final straw for Defendants who were

fed up with Plaintiff’s serial accommodation requests and who decided to terminate him.

Therefore, Plaintiff’s termination the day after he requested accommodations was sufficiently

close in time to plausibly suggest causation between the two events. Plaintiff’s “discharge was

also in close proximity [to] the [August 2022] letter sent to Defendants by Plaintiff’s physician

shortly after Koch’s warning, that physical therapy was required for Plaintiff’s recovery and by

the insurance company.” FAC ¶ 182.

Accordingly, the Court finds that Plaintiff has sufficiently alleged a retaliation claim under

the ADA and denies Defendants’ motion to dismiss this claim.

6 Defendants also make additional arguments founded on facts not in the FAC. However, the Court declines to engage

with these facts. As stated above, in considering a motion to dismiss, the Court “must limit itself to the facts stated in

the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the

complaint.” Hayden, 180 F.3d at 54.

B. Claims under NYSHRL

Plaintiff asserts the following claims against AANIKA, Bhuyan, and Jorgensen under the

NYSHRL: (1) discrimination based on disability, (2) discrimination based on sex/gender, and (3)

retaliation. See generally FAC. Defendants seek dismissal of all three claims.

1. Disability Discrimination Under the NYSHRL

The elements of a NYSHRL disability discrimination claim are the same as those of an

ADA disability discrimination claim except the definition of disability is “broader” under the

NYSHRL. Marquez v. Starett City Assocs., 406 F. Supp. 3d 197, 207 (E.D.N.Y. 2017). Here,

however, the parties do not dispute that Plaintiff was disabled under the NYSHRL, and therefore

the Court incorporates its ADA disability discrimination analysis here. See supra Discussion

Section A.1. Moreover, because “the standard for pleading a disability discrimination claim under

the NYSHRL and NYCHRL is more lenient than the ADA standard,” Weekes, 2022 WL 4291371,

at *8 (citing Jones v. New York City Transit Auth., 838 F. App’x 642, 644 n.1 (2d Cir. 2021)), and

Plaintiff plausibly alleges ADA disability discrimination, Plaintiff’s claims under the NYSHRL

also survive.

a. Against AANIKA

As explained above, see supra Discussion Section A.1., Plaintiff has alleged facts sufficient

to make plausible that a discriminatory motive with respect to Plaintiff’s disability was one of the

motivating factors for AANIKA’s termination of Plaintiff. Therefore, Defendants’ motion to

dismiss Plaintiff’s NYSHRL disability discrimination claim against AANIKA is denied.

b. Against Bhuyan and Jorgensen

Having determined that Plaintiff has stated a claim for discrimination against AANIKA,

the employer entity, the Court considers whether the FAC also alleges sufficient facts to state a

claim against Bhuyan and Jorgensen individually under the NYSHRL. Defendants summarily

argue that “[f]or the same reasons why the [First] Amended Complaint fails to plead a disability

discrimination claim against AANIKA under the ADA, it fails to plead such a claim against all

Defendants under the NYSHRL.” Defs’ Mem. at 21.

An employee may be held liable for discrimination under the NYSHRL only under an

aiding and abetting theory, which the Second Circuit has construed “to allow for liability where a

co-worker ‘actually participates in the conduct giving rise to the discrimination claim.’” Lee v.

Riverbay Corp., 22-CV-7504 (LTS), 2024 WL 4312166, at *15 (S.D.N.Y. Sept. 27, 2024) (quoting

Feingold v. New York, 366 F.3d 138, 157-58 (2d Cir. 2004)).

Plaintiff has adequately alleged that Bhuyan is individually liable under the NYSHRL

because Bhuyan was aware of Plaintiff’s injuries, FAC ¶¶ 41, 79-80, and soon after Plaintiff made

an accommodation request related to his injuries and disability, Bhuyan verbally terminated

Plaintiff, id. ¶ 50.

However, while Plaintiff has alleged facts establishing Jorgensen’s role in the incident that

led to Plaintiff’s injuries, Plaintiff has not alleged facts linking Jorgensen to Plaintiff’s termination.

Plaintiff’s allegations, related to Jorgensen’s authority and control, Jorgensen’s role in Plaintiff

becoming disabled, and Jorgensen’s refusal to help Plaintiff in the aftermath of the incident, id. ¶

40, do not link Jorgensen to an adverse employment action against Plaintiff. Further, Plaintiff has

not sufficiently alleged some other non-termination adverse action by Jorgensen, against Plaintiff,

because of Plaintiff’s disability. Therefore, Plaintiff has not alleged facts to support his NYSHRL

disability discrimination claim against Jorgensen individually. Accordingly, Defendants’ motion

as to Plaintiff’s NYSHRL claim against Bhuyan is denied and as to Jorgensen is granted.

2. Gender or Sex Discrimination under the NYSHRL

Historically, to bring a gender/sex discrimination claim under the NYSHRL, a plaintiff

needed to allege that “(1) [he] was within the protected class; (2) [he] was qualified for the position;

(3) [he] was subject to an adverse employment action; and (4) the adverse action occurred under

circumstances giving rise to an inference of discrimination.” Farmer, 473 F. Supp. 3d at 324

(quoting Menaker v. Hofstra Univ., 935 F.3d 20, 30 (2d Cir. 2019)). And while the NYSHRL once

aligned with Title VII, the Second Circuit has explained in the context of retaliation claims that “it

was amended in 2019 to align with the NYCHRL’s more liberal pleading standard.” Qorrolli v.

Metro Dental Assocs., D.D.S., 124 F.4th 115, 122-23 (2d Cir. 2024). That reasoning applies with

equal force to NYSHRL disparate treatment claims. Puris v. TikTok Inc., 24-CV-944 (DLC), 2025

WL 343905, at *10 (S.D.N.Y. Jan. 30, 2025).

To state a claim for discrimination for causes of action that accrue after October 11, 2019,

thus under the amended NYSHRL, Lee, 2024 WL 4312166, at *5, a plaintiff must allege only that

the plaintiff was “treated ‘less well’ . . . because of a discriminatory intent, i.e., that the unequal

treatment was based, at least in part, on a protected characteristic.” Mihalik v. Credit Agricole

Cheuvreux N. Am., Inc., 715 F.3d 102, 110 (2d Cir. 2013). Other courts in this Circuit have

“assume[d]” for purposes of a Rule 12(b)(6) motion “that the amended NYSHRL aligns with the

NYCHRL.” Wright v. City of New York, 23-CV-3149 (KPF), 2024 WL 3952722, at *6 (S.D.N.Y.

Aug. 27, 2024). As the amended NYSHRL standard is, at the very least, “closer to” the NYCHRL

standard, Wellner v. Montefiore Med. Ctr., 17-CV-3479, 2019 WL 4081898, at *5 n.4 (S.D.N.Y.

Aug. 29, 2019), to view the Amended Complaint in the light most favorable to Plaintiff, the Court

assumes for purposes of this motion that the amended NYSHRL aligns with the NYCHRL. Under

this standard a plaintiff need not allege that he suffered an adverse employment action or that

“discriminatory animus was the but-for cause or even the primary motivation of their alleged

mistreatment.” Delo v. Paul Taylor Dance Found., Inc., 685 F. Supp. 3d 173, 183 (S.D.N.Y.

2023). Rather, they must allege only that they have been “treated less well at least in part because

of [their] gender.” Id. (alteration in original) (internal quotation marks omitted) (quoting Mihalik,

715 F.3d at 110); Kulick v. Gordon Prop. Grp., LLC, 23-CIV-9928 (KPF), 2025 WL 448333, at

*8 (S.D.N.Y. Feb. 7, 2025). A plaintiff only needs to allege that he was treated “differently from

others in a way that was more than trivial, insubstantial, or petty.” Medcalf v. Thompson Hine

LLP, 84 F. Supp. 3d 313, 329 n.18 (S.D.N.Y. 2015) (quoting Kellman v. Metro. Transp. Auth., 8

F. Supp. 3d 351, 379 (S.D.N.Y. 2014)). For example, even a “single comment that objectifies

women . . . made in circumstances where that comment would, for example, signal views about

the role of women in the workplace [can] be actionable.” Williams v. N.Y.C. Hous. Auth., 872

N.Y.S.2d 27, 41 n.30 (1st Dep’t 2009); see also Mihalik, 715 F.3d at 114 (“Williams made clear .

. . that . . . [the defendant’s] alleged mistreatment of [the plaintiff] would be actionable under the

NYCHRL even if it was unrelated to her discharge and was neither severe nor pervasive.”). “An

inference of discrimination can arise from circumstances including, but not limited to, [an]

employer’s criticism of [a] plaintiff’s performance in ethnically degrading terms; or its 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.” Wu v. Good Samaritan Hosp. Med. Ctr., 815 F. App’x 575, 580 (2d Cir. 2020) (citing

Littlejohn, F.3d at 312) (internal quotation marks omitted).

Plaintiff has sufficiently alleged that he is male and thus is a member of a protected group,

see 42 U.S.C. § 2000e-2(a)(1) (prohibiting employment discrimination on the basis of sex) and

that he was qualified for the position he held. However, Plaintiff has not plausibly alleged that he

suffered an adverse employment action.

Here, Plaintiff fails to allege non-conclusory facts that provide “at least minimal support

for the proposition that the employer” treated Plaintiff less well because of “discriminatory intent.”

Littlejohn, 795 F.3d at 311. Instead, Plaintiff alleges, in a broad and conclusory fashion, that the

singular instance of him being directed to move heavy machinery, without any comment or

indication regarding gender, must have been motivated by discriminatory intent. Plaintiff alleges

no specific facts to lend support for that proposition. According to Plaintiff, his allegations are

“sufficient for the Court to infer that Plaintiff’s male sex/gender and/or weight and height [were]

each, a motivating factor in part, for Defendant Jorgensen to have singled him out for unequal

treatment to move the 200 [pound] machine on or about May 18, 2022.” Pl’s Opp. at 21-22.

Attempting to identify comparators, Plaintiff alleges “[b]ased upon information and belief,

neither Jorgenson [sic] nor Bhuyan ordered any female staff/scientists to move or assist in moving

the subject machine on or about May 18, 2022. But for Plaintiff’s male sex/gender with attributes

of relatively larger height (approximately 6 feet) and/or weight (approximately 200 lbs) than his

female co-workers/scientists, neither Jorgenson [sic] nor Bhuyan would have ordered Plaintiff to

move the subject machine from the lab to the street by himself.” Id. ¶¶ 71-72. These allegations

are conclusory because Plaintiff does not plead facts suggesting that he was similarly situated to

these female co-workers/scientists,7 his allegation pertains to one specific machine on that specific

7 Plaintiff’s allegations do not suggest that his female comparators who were purportedly not asked to move the

machinery “were subject to the same performance evaluation and discipline standards.” Cooper v. Templeton, 629 F.

Supp. 3d 223, 231 (S.D.N.Y. 2022), aff’d sub nom. Cooper v. Franklin Templeton Invs., 22-2763-CV, 2023 WL

3882977 (2d Cir. June 8, 2023) (collecting cases).

day, and Plaintiff makes no allegations about whether female co-workers were asked to move

heavy machinery on other days.

Plaintiff fails to sufficiently alleged that his employers had discriminatory intent or that his

termination occurred under circumstances that establish a plausible inference of sex-based

discrimination. See Jones v. Target Corp., 15-CV-4672 (MKB), 2016 WL 50779, at *3 (E.D.N.Y.

Jan. 4, 2016) (explaining that, “[i]n the absence of direct evidence of the decision maker[’s]

discriminatory intent, courts focus on whether a plaintiff's allegations support a ‘plausible

inference of discrimination.’” (quoting Vega, 801 F.3d at 87). Plaintiff’s allegations are insufficient

to allege unequal treatment based on sex. Plaintiff’s allegations demonstrate that Plaintiff is a man,

and that Defendant Jorgensen directed Plaintiff—instead of his female colleagues—to move a

heavy piece of machinery. Plaintiff does not allege additional facts to support his claim. For

example, Plaintiff does not allege that Jorgensen regularly asked male employees to move heavy

machinery instead of asking equally-available female employees. Nor does Plaintiff allege that

Jorgensen indicated that Plaintiff’s sex motivated her request, or that Defendants exhibited other

discriminatory behavior toward men. This is a sample size of one. Without more, the Court cannot

conclude that these allegations amount to more than an employee’s complaint that he was asked to

do something outside of his job description. As Defendants put it, “[t]he fact that a man was chosen

to perform one task on one occasion is not sufficient to show that he was chosen because he was a

man.” Defs’ Mem. at 17.

Therefore, Defendants’ motion to dismiss Plaintiff’s NYSHRL sex discrimination claim is

granted.

3. Retaliation under the NYSHRL

To state a claim of retaliation under the NYSHRL, that accrued after 2019,8 a plaintiff must

plausibly allege that: (1) he participated in a protected activity; (2) the defendant knew about his

participation in a protected activity; (3) the defendant engaged in an employment action that

disadvantaged the plaintiff in any manner; and (4) a causal connection existed between the

protected activity and the defendant’s conduct. See Palmer v. eCapital Corp., 23-CV-4080, 2024

WL 3794715, at *11 (S.D.N.Y. Aug. 13, 2024) (same) (quoting Fattoruso v. Hilton Grand

Vacations Co., 525 F. App’x 26, 27 (2d Cir. 2013)); see also Wright, 2024 WL 3952722, at *10

(explaining that “[r]etaliation victims are provided with broader protection . . . under the post-

amendment NYSHRL—than their federal counterpart” because a “plaintiff need not prove any

‘adverse’ employment action; instead, [he] must prove that something happened that would be

reasonably likely to deter a person from engaging in protected activity”).

Under the NYSHRL, unlike the ADA, a “request for a reasonable accommodation is not

considered a protected activity.” See Marshall v. Westchester Med. Ctr. Health Network, 22-CV-

7990, 2024 WL 665200, at *14 (S.D.N.Y. Feb. 16, 2024) (explaining that “a request for reasonable

accommodation is not a protected activity for purposes of a retaliation claim” under the NYSHRL

(quoting Mejia v. City of New York, 17-CV-2696, 2020 WL 2837008, at *13 (E.D.N.Y. May 30,

2020))); Scarville v. Living Res. Corp., 21-CV-807, 2022 WL 4365863, at *11 (N.D.N.Y. Sept. 21,

2022) (“[T]he NYSHRL does not include requests for reasonable accommodation as ‘protected

activity.’” (citations omitted)); see also Nofal v. IMCMV Times Square LLC, 22-CV-3104, 2024

8 See Meckeler v. Cornell Univ., 23-CV-773, 2024 WL 3535488, at *11 (N.D.N.Y. July 25, 2024) (“[F]or claims that

accrue on or after the effective date of the NYSHRL October 11, 2019 amendments, the standard for such claims is

‘closer to the standard under the NYCHRL.’” (quoting Wellner, 2019 WL 4081898, at *5 n.4)); Thompson v.

Shutterstock, Inc., 23-CV-4155, 2024 WL 2943813, at *25 (S.D.N.Y. June 10, 2024) (“[T]he legislature amended the

NYSHRL in 2019, and thus any claims based upon acts of . . . retaliation that occurred after October 11, 2019 are

analyzed under a different standard.”).

WL 1138928, at *10 (S.D.N.Y. Mar. 15, 2024) (“The standards used to evaluate retaliation claims

under [the NYSHRL and NYCHRL] either parallel or are more generous to plaintiffs than those

under the ADA.” (citations omitted)); Medina v. AAM 15 Mgmt. LLC, 750 F. Supp. 3d 332, 346

(S.D.N.Y. 2024) (collecting cases).

As explained above, see supra Discussion Section A.2., Plaintiff has alleged that he

engaged in four protected activities: (1) “opposing Defendant’s [denial of Plaintiff’s] accrued and

unused PTO and/or sick hours or paid medical leave for medical treatment and rehabilitation

purposes during on or about July and August 2022[,]” (2) sending a “letter to Defendants

[explaining] that Plaintiff required physical therapy to recover” from his injuries through his

physician, (3) sending an email to Bhuyan and Koch complaining that he was in physical pain and

had limited mobility, because of Jorgensen’s tasking him with performing “dangerous” and

“humiliating work”, and (4) filing a worker’s compensation claim that was noticed to Defendant

by the worker’s compensation board and/or Defendant’s insurance company and thus allegedly

increasing Defendants’ insurance costs. FAC ¶¶ 104-05, 135, 194-95. Of Plaintiff’s four alleged

protected activities, none constitute protected activities under the NYSHRL. Activities one and

two relate to accommodations and activity three is not protected because it is not related to

something unlawful under the NYSHRL,9 and activity four does not constitute protected activity.

See Dipinto v. Westchester Cnty., 18-CV-00793 (PMH), 2020 WL 6135902, at *7 (S.D.N.Y. Oct.

9 The email is silent on gender or any hint of an allegation of discrimination. Therefore, even though the category of

conduct that a person may reasonably believe is illegal is broader under the NYSHRL than the ADA, Plaintiff’s email

is still not a protected activity in this context.

19, 2020) (collecting cases) (“Neither requesting a reasonable accommodation nor filing a

workers’ compensation claim constitute protected activities under the NYSHRL.”).

Therefore, Plaintiff has not adequately plead that he engaged in protected activity under

the NYSHRL so as to give rise to a NYSHRL disability discrimination claim. Defendants’ motion

to dismiss Plaintiff’s NYSHRL retaliation claim as to AANIKA, Bhuyan, and Jorgensen is

granted.

C. Claims under the NYCHRL

Plaintiff asserts the following claims against AANIKA, Bhuyan, and Jorgensen under the

NYCHRL: (1) discrimination based on disability, (2) discrimination based on sex/gender, height

and weight, and (3) failure to engage in the interactive process of providing a work

accommodation. See FAC. Defendants seek dismissal of all three claims.

The NYCHRL is to be construed more broadly than its federal and state counterparts.

Therefore “courts must analyze NYCHRL claims separately and independently from any federal

and state law claims.” Mihalik, 715 F.3d at 109.

1. Disability Discrimination under the NYCHRL

The elements of a disability discrimination claim under the NYCHRL also track those

under the ADA. Kinneary v. City of New York, 601 F.3d 151, 158 (2d Cir. 2010); Pagan v.

Morrisania Neighborhood Family Health Ctr., 12-CV-9047 (WHP), 2014 WL 464787, at *6

(S.D.N.Y. Jan. 22, 2014). “[T]he NYSHRL provides broader protection [that is, a broader

definition of ‘disability’] than the ADA, and the NYCHRL is broader still.” Pagan, 2014 WL

464787, at *6; see also Ugactz v. United Parcel Serv., Inc., 10-CV-1247 (MKB), 2013 WL

1232355, at *14 (E.D.N.Y. Mar. 26, 2013); Reilly v. Revlon, Inc., 620 F. Supp. 2d 524, 541

(S.D.N.Y. 2009) (citing Giordano v. City of New York, 274 F.3d 740, 753 (2d Cir. 2001)) (“neither

statute requires any showing that the disability substantially limits a major life activity.”)).

Because “the standard for pleading a disability discrimination claim under the NYSHRL

and NYCHRL is more lenient than the ADA standard,” Weekes, 2022 WL 4291371, at *8 (citing

Jones, 838 F. App’x at 644 n.1), to the extent that Plaintiff’s claims satisfy the ADA disability

discrimination standard, Plaintiff’s claims under the NYCHRL also survive. Therefore, for reasons

set forth above, Defendants’ motion to dismiss Plaintiff’s NYCHRL discrimination claim as to

AANIKA and Bhuyan is denied and is granted as to Jorgensen.

2. Sex Discrimination under the NYCHRL

For claims accruing after the 2019 amended NYSHRL, the sex discrimination analysis

under the NYCHRL is the same as the sex discrimination analysis under the NYSHRL. See

Deveaux v. Skechers USA, Inc., 19-CV-9734, 2020 WL 1812741, at *5 (S.D.N.Y. Apr. 9, 2020)

(citing Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009)); see generally

Mihalik, 715 F.3d at 110 (explaining that to establish a sex discrimination claim under the

NYCHRL, “the plaintiff need only show differential treatment—that [he]is treated ‘less well’—

because of a discriminatory intent.”). Therefore, the Court incorporates its NYSHRL sex

discrimination analysis here and concludes that Defendants’ motion to dismiss Plaintiff’s

NYCHRL sex discrimination claim is granted as to all Defendants.

3. Failure to Engage in Interactive Process under the NYCHRL

Defendants argue that Plaintiff’s interactive process claim should be dismissed. Plaintiff

alleges that he was disabled under the NYCHRL and Defendants were required to, but did not,

engage in a cooperative dialogue or interactive process with Plaintiff regarding potential

accommodations. FAC ¶¶ 292-312.

“[W]hile failure to engage in an interactive process can serve as evidence tending to show

discrimination, no independent cause of action lies under the NYCHRL for such a failure.” Kueh

v. New York & Presbyterian Hosp., 23-CV-666 (VSB), 2024 WL 4882172, at *7 (S.D.N.Y. Nov.

25, 2024) (citing Frilando v. New York City Transit Auth., 513 F. Supp. 3d 356, 365 (S.D.N.Y.

2021), (“a plaintiff cannot prevail under the . . . NYCHRL solely based on the employer’s failure

to engage in an interactive process” (internal quotation marks omitted)), aff’d, 21-169-CV, 2022

WL 3569551 (2d Cir. Aug. 19, 2022); Wellner, 2019 WL 4081898, at *11. Therefore, Defendants’

motion to dismiss Plaintiff’s failure to engage in interactive process of accommodation claim is

granted.

4. Retaliation under the NYCHRL

The NYCHRL “forbids employers from ‘retaliat[ing]’ against individuals who ‘request[ ]

a reasonable accommodation’ pursuant to the statute. N.Y.C. ADMIN. CODE § 8-107; see also

Limauro, 2021 WL 466952, at *10 (‘New York City . . . amended its Human Rights Law, effective

November 11, 2019, to make clear that requesting a reasonable accommodation is a protected

activity under the NYCHRL.’).” Samuels v. Urb. Assembly Charter Sch. for Computer Sci., 23-

CV-1379 (RA), 2024 WL 4008165, at *11 (S.D.N.Y. Aug. 30, 2024). Accordingly, for the same

reasons as discussed above regarding his ADA retaliation claim, supra, the Court finds that

Plaintiff has stated a NYCHRL retaliation claim, and Defendants’ motion to dismiss this claim is

denied.

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss the FAC is granted in part and

denied in part.

Defendants’ motion is granted as to Plaintiff’s NYSHRL discrimination claim against

Jorgensen, NYSHRL sex discrimination claim against all Defendants, NYSHRL retaliation claim

against all Defendants, NYCHRL disability discrimination against Jorgensen, NYCHRL sex

discrimination claim against all Defendants, and NYCHRL failure to engage in interactive process

claim. Accordingly, these claims are dismissed.

Defendants’ motion is denied as to Plaintiff’s ADA discrimination claim against AANIKA,

ADA retaliation claim against AANIKA, NYSHRL discrimination claim against AANIKA,

NYSHRL disability discrimination claim against Bhuyan, and NYCHRL disability discrimination

claim against AANIKA and Bhuyan. Therefore, the parties shall proceed to discovery on these

claims.

SO ORDERED.

Dated: June 28, 2025

Brooklyn, New York

/s/

ORELIA E. MERCHANT

United States District Judge