# Ricciardo v. NYU Hospitals Center

> District Court, E.D. New York · August 4, 2025

URL: https://www.frixlaw.com/law-library/cases/11114219

## Case

- **Court:** District Court, E.D. New York
- **Decided:** August 4, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11114219

## How later opinions describe it (automated extraction)

- finding a jury could infer pretext from the inconsistent justifications given to the EEOC and in the subsequent Title VII suit, coupled with close temporal proximity of the discharge and protected activity
- holding that “an employee is not required to demonstrate an actual denial of benefits to establish a violation of [the FMLA] and that interference or restraint alone, which includes discouragement, is enough to establish such a violation” (citation omitted)
- affirming that the plaintiff “failed to make a prima facie showing of discrimination under the ADA” where he “did not adduce evidence that his supervisor had knowledge of his disability” (citing Raytheon Co. v. Hernandez, 540 U.S. 44, 54 n.7 (2003))
- finding no inference of retaliation where the adverse employment actions were the product of “an extensive period of progressive discipline” that began “a full five months prior to” the protected activity

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------
BASILIA RICCIARDO,

Plaintiff, MEMORANDUM & ORDER
22-CV-4952 (MKB)
v.

NYU HOSPITALS CENTER and NYU LANGONE
HOSPITAL-LONG ISLAND,

Defendants.
---------------------------------------------------------------
MARGO K. BRODIE, United States District Judge:
Plaintiff Basilia Ricciardo commenced the above-captioned action against Defendants
NYU Hospitals Center and NYU Langone Hospital – Long Island1 on the basis of federal
question jurisdiction, asserting claims of disability discrimination under the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq. (the “ADA”), and the New York State Human Rights
Law, N.Y. Exec. Law § 290 et seq. (“NYSHRL”), and retaliation under the Family Medical
Leave Act, 29 U.S.C. § 2611 et seq. (the “FMLA”). (Compl. ¶¶ 50–72, Docket Entry No. 1.)
Plaintiff alleges Defendants fired her because of her disability and in retaliation for taking FMLA
leave and falsely claimed the termination was due to her sleeping or appearing to be asleep on
April 12, 2021 “against [the Defendants’] conduct of employees policy.” (Id. ¶¶ 49, 54, 56, 62,
67, 68.) On October 17, 2022, Defendants answered the Complaint and asserted several
affirmative defenses. (Answer ¶¶ 50–72, Docket Entry No. 9.)

1 Defendants note that NYU Hospitals Center should be named NYU Langone Hospitals
(“NYULH”) and that NYULH should be the sole named defendant because NYU Langone
Hospital – Long Island is part of NYULH and not a separate corporate entity. (Defs.’ Mem. in
Supp. of Defs.’ Mot. for Summ. J. (“Defs.’ Mem.”) 1, Docket Entry No. 28-1; Defs.’ Reply in
Supp. of Defs.’ Mot. for Summ. J. (“Defs.’ Reply”) 1 n.1, Docket Entry No. 28-83.)
Currently before the Court is Defendants’ motion for summary judgment pursuant to
Rule 56 of the Federal Rules of Civil Procedure; Plaintiff opposes the motion.2 For the reasons
discussed below, the Court grants Defendants’ motion as to Plaintiff’s ADA and FMLA claims
and declines to exercise supplemental jurisdiction over Plaintiff’s NYSHRL claim.

2 (Defs.’ Mot. for Summ. J. (“Defs.’ Mot.”), Docket Entry No. 28; NYULH Emp.
Handbook, annexed to Defs.’ Mot. as Ex. C, Docket Entry No. 28-6; Oct 2014 Hum. Res. Pol’ys
& Procs. Manual, annexed to Defs.’ Mot. as Ex. D, Docket Entry No. 28-7; Hum. Res. Pol’ys &
Procs. Chapter 4: Workplace Conduct, annexed to Defs.’ Mot. as Ex. E, Docket Entry No. 28-8;
April 2021 Hum. Res. Pol’ys & Procs. Chapter 1014: Attendance & Lateness, annexed to Defs.’
Mot. as Ex. F, Docket Entry No. 28-9; Apr. 12, 2021 Disciplinary Action Notice, annexed to
Defs.’ Mot. as Ex. S, Docket Entry No. 28-22; April 13, 2021 Email, annexed to Defs.’ Mot. as
Ex. V, Docket Entry No. 28-25; Apr. 14, 2021 Text Message, annexed to Defs.’ Mot. as Ex. Y,
Docket Entry No. 28-28; Apr. 14, 2021 E-mail, annexed to Defs.’ Mot. as Ex. Z, Docket Entry
No. 28-29; Apr. 14, 2021 Emails 001515, annexed to Defs.’ Mot. as Ex. BB, Docket Entry 28-
31; Apr. 15, 2021 Text Message, annexed to Defs.’ Mot. as Ex. EE, Docket Entry 28-34; Apr.
22, 2021 Email, annexed to Defs.’ Mot. as Ex. MM, Docket Entry 28-42; Notification of FMLA
Request, annexed to Defs.’ Mot. as Ex. NN, Docket Entry No. 28-43; CIGNA Leave Status
Determination Ltr., annexed to Defs.’ Mot. as Ex. OO, Docket Entry No. 28-44; Final
Termination Ltr., annexed to Defs.’ Mot. as Ex. RR, Docket Entry No. 28-47; Decl. of Derek
Forte in Supp. of Defs.’ Mot. (“Forte Decl.”), annexed to Defs.’ Mot. as Ex. WW, Docket Entry
28-88; Pl.’s Opp’n to Defs.’ Mot. (“Pl.’s Opp’n”), annexed to Defs.’ Mot., Docket Entry No. 28-
50; Equal Employment Opportunity Charge, annexed to Defs.’ Mot. as Ex. 1, Docket Entry No.
28-53; Basilia Ricciardo Dep. Tr. (“Ricciardo Tr.”), annexed to Defs.’ Mot. as Ex. 3, Docket
Entry No. 28-55; Genevieve Ramclam Dep. Tr. (“Ramclam Tr.”), annexed to Defs.’ Mot. as Ex.
4, Docket Entry No. 28-56; Dorothy Gionesi Dep. Tr. (“Gionesi Tr.”), annexed to Defs.’ Mot. as
Ex. 6, Docket Entry No. 28-58; Texts Messages & Voicemail, annexed to Defs.’ Mot. as Ex. 7,
Docket Entry No. 28-59; Emails, NYULH 000344-46, annexed to Defs.’ Mot. as Ex. 8, Docket
Entry No. 28-60; Emails, NYULH 001515-1526, annexed to Defs.’ Mot. as Ex. 10, Docket Entry
No. 28-62; Emails, NYULH 000144-146, annexed to Defs.’ Mot. as Ex. 12, Docket Entry No.
28-64; Emails, NYULH 000308-310, annexed to Defs.’ Mot. as Ex. 14, Docket Entry No. 28-66;
Emails, annexed to Defs.’ Mot. as Ex. 17, Docket Entry No. 28-69; Tisa Hall Dep. Tr. (“Hall
Tr.”), annexed to Defs.’ Mot. as Ex. 21, Docket Entry No. 28-73; Termination Approval,
annexed to Defs.’ Mot. as Ex. 27, Docket Entry No. 28-79.)
Because the exhibits except for deposition transcriptions are not paginated consistently,
the Court refers to the page numbers assigned by the electronic filing system.
I. Background
On or about July 9, 2018, Defendants hired Plaintiff as a full-time Physician Assistant.3
(Defs.’ 56.1 ¶ 1; Pl.’s Counter 56.1 ¶ 4.) Plaintiff began her employment at Defendants’ Glen
Cove Primary Care Ambulatory Practice at NYU Langone Hospital – Long Island. (Defs.’ 56.1

¶ 2; Pl.’s Counter 56.1 ¶ 6.) In or around October of 2018, Defendants transferred Plaintiff to
NYU Langone Medical Associates – Carle Place Family Medicine Practice (“Carle Place”).
(Defs.’ 56.1 ¶ 3.) Genevieve Ramclam, Practice Manager at Carle Place, Faculty Group
Practice, directly supervised Plaintiff. (Defs.’ 56.1 ¶¶ 3, 5; Pl.’s Counter 56.1 ¶ 7.) Plaintiff’s
responsibilities as a Physician Assistant included providing direct medical care and treatment for
scheduled patients. (Defs.’ 56.1 ¶ 4; Pl.’s Counter 56.1 ¶ 5.)
a. Defendants’ human resources policies and procedures
At the start of her employment, Plaintiff received, reviewed, and signed Defendants’
Employee Handbook. (Defs.’ 56.1 ¶ 7.) The Employee Handbook provides that “[e]mployees
who have chronic absence or lateness habits will be subject to the discipline process” and refers
to the Defendants’ Human Resources Policies & Procedures (“HRPP”). (Ex. C at 12; Defs.’ 56.1

¶ 6.) Policy 1014 of the HRPP governs attendance and the version in effect at the start of
Plaintiff’s employment provided that “habitual absence or lateness may be cause for corrective
action, up to and including discharge” and included the following four-step Disciplinary Action
process that would “progressively escalate[]” with each infraction within a 12-month period: (1)
verbal counseling, (2) written warning, (3) final written warning/suspension, and (4) termination

3 (Defs.’ 56.1 Stmt., Docket Entry No. 28-2; Pl.’s Resp. to Defs.’ 56.1 & Pl.’s 56.1
Counterstatement, Docket Entry No. 28-51; Defs.’ Reply to Pl.’s 56.1 Resp. (“Defs.’ 56.1”) &
Defs.’ Reply to Pl.’s Counter 56.1 (“Pl.’s Counter 56.1”), Docket Entry No. 28-84.) The facts
are undisputed unless otherwise noted.
(“Attendance Policy”). (Ex. D at 2, 4; Defs.’ 56.1 ¶¶ 7–8.) Defendants revised the Attendance
Policy in April of 2021 to similarly “require[ ] that a manager address an employee’s
absenteeism and/or lateness in a progressive manner that moves to more serious forms of
corrective action if the absenteeism and/or lateness continues,” with “the last step in the process”

being “termination of employment.” (Ex. F at 8; Defs.’ 56.1 ¶¶ 11–12.)
Policy 4.6 of the Defendants’ HRPP sets forth “Rules of Conduct” and the version in effect
from January of 2021 through the end of Plaintiff’s employment with Defendants provides that
certain infractions including “[s]leeping, or the appearance thereof, while on duty” “may lead to
disciplinary action . . . up to and including termination when deemed appropriate” (“Workplace
Conduct Policy”). (Ex. E at 2–3; Defs.’ 56.1 ¶ 10.) The Workplace Conduct Policy provides a
“Step-by-Step Procedure” for addressing the infractions that directs “supervisors [to] contact
Employee & Labor Relations prior to taking disciplinary action against an employee in order to
make a proper determination regarding how to address what has occurred.” (Ex. E at 3.) The
Workplace Conduct Policy states that “[n]othing in this policy shall serve to modify in any way

[NYULH’S] employment-at-will policy.” (Id.) Defendants’ human resources (“HR”) department
has final approval authority on terminations. (Pl.’s Counter 56.1 ¶ 59.)
b. Plaintiff’s health challenges and reduced work schedule.
Plaintiff suffers from complex migraines and diabetes and takes medication for her
conditions. (Id. at ¶¶ 1–2.) She shared with Ramclam and others at Carle Place her medical
conditions and that she had survived breast cancer. (Id. ¶ 10.) Ramclam’s supervisor, Assistant
Regional Director Linda Palazzotto, also knew that Plaintiff suffered from a neurological
condition and complex migraines. (Id. ¶ 13.) From at least November of 2018, Defendants
approved Plaintiff working a reduced work schedule of four days per week on Monday, Tuesday,
Thursday, and Friday starting at 8:30 A.M. due to her medical conditions. (Defs.’ 56.1 ¶ 15;
Pl.’s Counter 56.1 ¶ 12.) Plaintiff told Ramclam and others at Carle Place that she went to
doctor’s appointments on her day off. (Pl.’s Counter 56.1 ¶ 10.)
In January of 2021, Plaintiff underwent cataract surgery and Defendants granted her
request for FMLA leave from December 31, 2020 to February 2, 2021. (Defs.’ 56.1 ¶ 16.)

Plaintiff subsequently returned to work, maintained her reduced work schedule, and did not
request an additional reduction in hours or other change to her schedule. (Id. ¶ 17; Ricciardo Tr.
74:10–75:3.)
c. April 12, 2021 incident
In April of 2021, Carle Place was undergoing renovations to create new and refurbished
patient rooms. (Defs.’ 56.1 ¶ 33; Pl.’s Counter 56.1 ¶ 15.) Due to the ongoing construction,
Defendants assigned Plaintiff a patient examination room as a temporary office. (Defs.’ 56.1
¶ 33; Pl.’s Counter 56.1 ¶ 15.)
On April 12, 2021, Plaintiff reported to work late. (Defs.’ 56.1 ¶¶ 34–35.) Subsequently,
Ramclam prepared a Disciplinary Action Notice for Plaintiff’s “[f]ailure to follow Policies &
Procedures” that addressed Plaintiff’s late arrival on April 12, 2021, as well as Plaintiff arriving

three minutes late on March 16, 2021 and two minutes late on March 29, 2021. (Ex. S at 2;
Defs.’ 56.1 ¶ 36.) The Disciplinary Action Notice indicated that “[f]ailure to improve will result
in further disciplinary action up to and including termination.” (Ex. S at 2.)
Later that same day, some time after lunch, Plaintiff “suddenly got an explosive
migraine” and took medication. (Pl.’s Counter 56.1 ¶ 16.) After taking her medicine, Plaintiff
vomited and laid down on the examination table “because of her gait” and because she was
“afraid” as “[e]verything happened so quickly.” (Id. ¶¶ 18, 21.) Plaintiff was unable to call the
front desk to communicate that she was not feeling well because the phone in the patient
examination room did not work due to the ongoing construction. (Id. ¶ 17.) Plaintiff turned off
the light to mitigate the auditory and light sensitivity she was experiencing due to the migraine.
(Id. ¶ 19.) She left the door ajar and laid on her side so that she did not aspirate and closed her
eyes. (Id. ¶ 20; Ricciardo Tr. 139:10–23; see Ex. 1 ¶ 31.)
Around the same time, Dorothy Gionesi, Office Assistant at Carle Place, received a call

on the main office number from a patient requesting to speak with Plaintiff. (Defs.’ 56.1 ¶ 38;
Pl.’s Counter 56.1 ¶ 22; Gionesi Tr. 44:6–45:19.) Carle Place did not have a paging system or
intercom system, and it was Gionesi’s general practice even before the renovations to search for
Plaintiff when she needed to get in touch with her. (Pl.’s Counter 56.1 ¶¶ 9, 22.) Gionesi placed
the call on hold to look for Plaintiff and eventually located her in her temporary office with the
door slightly ajar and the lights off.4 (Pl.’s Counter 56.1 ¶ 23; Defs.’ 56.1 ¶ 40.) Gionesi
knocked, called out Plaintiff’s name quietly, and receiving no response, knocked again after a
few moments, opened the door a little more, and called out Plaintiff’s name in a louder voice, at
which point, Plaintiff got off of the examination table. (Gionesi Tr. 48:9–49:3, 52:2–15; Pl.’s
Counter 56.1 ¶¶ 23–24; Defs.’ 56.1 ¶ 41.) Gionesi stood at the door the entire time, never

entered the room, and testified that she could not see Plaintiff’s face nor if Plaintiff’s eyes were
closed. (Pl.’s Counter 56.1 ¶ 24; Gionesi Tr. 49:12–25.) When Plaintiff came out of the room,
she explained to Gionesi that she had a migraine. (Pl.’s Counter 56.1 ¶¶ 24–25.)

4 There is conflicting evidence in the record as to whether Gionesi called Plaintiff before
searching for her. Ramclam testified that Gionesi told her that “she tried to contact [Plaintiff] via
telephone” before searching for her but that “there was no answer.” (Ramclam Tr. 133:16–22.)
Gionesi testified that she did not try to call Plaintiff from the front desk because she did not
know Plaintiff’s temporary office location and testified that it was customary practice to look for
Plaintiff when she had a call because there was no intercom system in place and that she never
attempted to transfer a call to Plaintiff nor did she recall telling Ramclam that she attempted to
page Plaintiff. (Defs.’ 56.1 ¶ 38; Pl.’s Counter 56.1 ¶ 22; Gionesi Tr. 53:14–55:12, 60:24–61:8,
61:9–13, 63:12–20.) The parties rely on Gionesi’s account in their respective 56.1 statements.
(Pl.’s Counter 56.1 ¶ 22; Defs.’ 56.1 ¶ 40.)
Gionesi returned to her workstation and immediately relayed the incident to Karen Hill,
another office assistant. (Pl.’s Counter 56.1 ¶ 26; Defs.’ 56.1 ¶ 42.) Hill told Gionesi that she
was going to report the incident to Ramclam and Gionesi asked her not to report it because
“[she] thought it was odd that [she] found [Plaintiff] in the room,” that there was never an

occasion prior to that where she looked for Plaintiff and found her laying on an examination
table, and “didn’t want anybody to get in trouble.” (Gionesi Tr. 58:20–59:21; Pl.’s Counter 56.1
¶ 27.) Hill reported the incident to Ramclam. (Pl.’s Counter 56.1 ¶ 28; Defs.’ 56.1 ¶ 42; Gionesi
Tr. 58:20–25.) Ramclam then confirmed the incident with Gionesi.5 (Defs.’ 56.1 ¶ 43; Pl.’s
Counter 56.1 ¶ 29; Gionesi Tr. 60:19–23:61–8; id. at 40:20–24, 43:19–44:2.)
After speaking with Gionesi, Ramclam approached Plaintiff about the incident and told
her that an employee found her sleeping. (Defs.’ 56.1 ¶ 43; Ricciardo Tr. 97:8–21.) Plaintiff
told Ramclam that she was not sleeping. (Pl.’s Counter 56.1 ¶ 31; Defs.’ 56.1 ¶ 44.) Plaintiff
informed Ramclam that she had gotten sick, had a migraine, could not call her, had to lay down,
and had to take medication immediately for the migraine.6 (Pl.’s Counter 56.1 ¶ 30.) Ramclam

5 Although the undisputed facts in the parties’ respective 56.1 statements indicate that
Hill initially reported the incident to Ramclam and Ramclam then approached Gionesi to confirm
what Hill had told her, (see Defs.’ 56.1 ¶¶ 42–43; Pl.’s Counter 56.1 ¶¶ 28–29), Ramclam
testified that Gionesi went to Ramclam to report what she had seen and made no mention of
Gionesi reporting the incident to Hill initially. (Ramclam Tr. 129:24–130:6.) Gionesi denied
going directly to Ramclam to report the incident and testified that Ramclam approached her to
discuss what Hill had reported to her. (Gionesi Tr. 40:20–42:23.)
6 The parties dispute the rest of Ramclam and Plaintiff’s conversation. Defendants
contend based on Ramclam’s deposition testimony that (1) Ramclam told Plaintiff that it was
reported that she was found sleeping or appearing to be sleeping, and Plaintiff responded “Yes, I
know”; (2) that “Plaintiff then indicated she was fine when Ramclam asked about her headache
and changed the subject of the conversation to patient scheduling”; and (3) Plaintiff was
“dismissive” and “unapologetic” after Ramclam gave her the written warning. (Defs.’ 56.1 ¶ 46;
Pl.’s Counter 56.1 ¶ 31; Ramclam Tr. 159:9–19, 160:16–25.) Plaintiff denies Ramclam’s
account and contends that she apologized to Ramclam for getting sick at work and told Ramclam
that she was not sleeping. (Pl.’s 56.1 Resp. ¶ 44; Pl.’s Counter 56.1 ¶ 31; Ricciardo Tr. 98:4–22–
gave Plaintiff the previously drafted Disciplinary Action Notice addressing Plaintiff’s attendance
and timeliness issues.7 (Defs.’ 56.1 ¶ 47.).
d. Actions by Plaintiff and Defendants after the April 12, 2021 incident
i. April 13, 2021
The next day, on April 13, 2021 at 6:34 A.M., Plaintiff texted Ramclam that she would
be taking a sick day because she had a headache, writing “I am sick as I told you yesterday I had

a bad migraine during work [but was] not sleeping as someone reported to you. I am taking a
sick day today 4/13/21 because I am having a severe headache and difficulty walking must go for
medical care.” (Ex. 7 at 2; Defs.’ 56.1 ¶ 49; see Pl.’s Counter 56.1 ¶ 32.) Ramclam shared the
text message with Palazzotto, Senior Director of HR Karin Wiesenberger, and two HR
Generalists, Mariel Kimura and Caroline Rodriguez. (Pl.’s Counter 56.1 ¶¶ 34, 42, 45.)
The same day at approximately 11:23 A.M., Ramclam emailed Kimura and Rodriguez,
copying Palazzotto, that she had shared the signed Disciplinary Action Notice with Plaintiff and
reported the April 12, 2021 incident as follows:
Due to current renovations at the practice, [Plaintiff] was utilizing
[an] exam room C as her office for the day. On 4/12/21 at
approximately 3:00pm, a front desk staff reports that a patient called
in to speak to [Plaintiff]. When she did not get a response over the
phone, she proceeded to [Plaintiff’s] seating area to tell her there is
a patient on the phone returning her call. She reports that the lights
were off in the room and she found [Plaintiff] laying on the exam

99:4, 99:14–100:7.) Defendants’ dispute that Plaintiff apologized and said she was not sleeping.
(Pl.’s Counter 56.1 ¶ 31.)
7 The parties dispute when Ramclam gave Plaintiff the Disciplinary Action Notice.
Defendants rely on Ramclam’s testimony and assert that Ramclam did not give Plaintiff a written
warning for being late when she conversed with Plaintiff about the April 12, 2021 incident but
may have handed Plaintiff the warning “soon after.” (Ramclam Tr. 160:5–12; Defs.’ 56.1 ¶ 47.)
Plaintiff testified that Ramclam gave her the notice “at the same time” the two discussed the
incident. (Ricciardo Tr. 97:8–100:7; Pl.’s 56.1 Resp. ¶ 47.)
table, sleeping.8 She called out her name which startled her and she
quickly sat up.
When asked about the matter, [Plaintiff] stated “I was not sleeping,
I was ‘getting a headache and decided to close my eyes.[’]” I asked
if she was ok or if she needed anything to which she responded “yes,
I am fine, I was just getting a headache[.]”
I explained to [Plaintiff] that it was not appropriate, especially when
the staff find a provider in this position during work hours.
[Plaintiff] was very dismissive stating “I know, I understand” and
proceeded to change the subject to the 4pm patient who appeared to
be a late or a no show.”
(Ex. V at 2; Defs.’ 56.1 ¶ 48; Pl.’s Counter 56.1 ¶ 44.) Kimura forwarded Ramclam’s email to
Weisenberger, writing, “[s]haring this with you . . . in addition to being issued a written warning
for lateness, [Plaintiff] was discovered laying on an example [sic] table during work hours by
another employee” and noting that she had advised Ramclam “yesterday to question [Plaintiff]
regarding this incident” and to “mention/ensure that no retaliation occurs since the witness is
another employee in the practice.” (Ex. 8 at 3; Pl.’s Counter 56.1 ¶ 45.) Kimura shortly
thereafter responded to Ramclam that she and Weisenberger spoke and agreed that Plaintiff’s
conduct warranted a “written warning” because Plaintiff “was sleeping while on duty,” “failed to
communicate with her manager that she needed a break (if that is in fact what she needed),” and
“if she only had her eyes closed, then how did she not hear the call from the front desk or the
employee entering her temporary office for the day?” (Ex. 8 at 2; Defs.’ 56.1 ¶ 50; Pl.’s 56.1
Resp. ¶ 47). Kimura noted in her email that it was “also concerning that [Ramclam’s] perception

8 The evidence before the Court is inconsistent as to whether Gionesi reported to
Ramclam that Plaintiff was asleep as Ramclam’s email indicates. Gionesi testified that when she
found Plaintiff in the patient exam room, Gionesi stood at the door the entire time, never entered
the room, and could not see Plaintiff’s face nor if Plaintiff’s eyes were closed. (Gionesi Tr.
49:12–25.) She also testified that she did not recall telling Hill that she saw Plaintiff sleeping
and that she relayed to Ramclam the same information she told Hill. (Gionesi Tr. 49:12–25,
57:18–58:19.) Ramclam testified that Gionesi told her that Plaintiff “appeared to be sleeping”
when Gionesi found her. (Ramclam Tr. 133:16–23; id. at 135:9–11.)
is that [Plaintiff] was dismissive and unapologetic about the situation.”9 (Ex. 8 at 2.)
ii. April 14, 2021
The next day, April 14, 2021, Plaintiff left Ramclam a message that she would not be
coming into work that day, was going to obtain a Magnetic Resonance Imaging (MRI) scan of her
brain, and that her neurologist informed her that she could not work until the MRI results were

available. (Defs.’ 56.1 ¶ 56; Ex. Y at 2; Ex. Z at 3.) Ramclam later reported to Palazzotto that she
advised Plaintiff to contact HR to initiate the FMLA process. (Defs.’ 56.1 ¶ 57; Ex. Z at 2–3.)
That same morning, at approximately 10:02 A.M., Weisenberger emailed David Kaplan,
Senior Director for Ambulatory Operations, copying Tisa Hall, Director of the Faculty
Ambulatory Group Practice, writing:
David[,] the [Physicians Assistant] in Family Practice that there is
consideration of eliminating the position [for] was hired July 2018.
She is the only mid-level in the practice. So as it turns out this does
not matter. We may be able to manage her out. She is currently
written up for excessive lateness. Checking her record we are
talking 15 minutes to one hour or more. Yesterday they found her
asleep on the exam room (also serving as her office during
construction) table. A patient called to speak with her and they
paged her . . . no answer. Front desk went to look for her and found
her asleep. When she went up to her she appeared asleep. When she
called her name loudly she jumped up. She claims not be sleeping
but rather she felt headache coming on. She was resting[] her eyes
because of headache. Once again she failed to alert the manager
that she needed a break. If not asleep why did she not answer the
page. We can talk about what our plan to exit can be let me know
when you have some time.

(Ex. BB at 2; Defs.’ 56.1 ¶ 52; Pl.’s Counter 56.1 ¶ 52.) Kaplan forwarded Weisenberger’s
email to Joshua Swirnow, NYULH Vice President, writing “[s]ee below for the [Physicians

9 As discussed supra, see note 6, Plaintiff disputes that she was dismissive when
Ramclam confronted her about the April 12, 2021 incident and testified that she apologized to
Ramclam for getting sick at work and told Ramclam that she was not sleeping. (Pl.’s Counter
56.1 ¶ 31; Defs.’ 56.1 ¶ 44.)
Assistant] at Carle Place. Unreal” and noting that he “spoke with [Weisenberger] and told her
enough is enough, this person needs to be terminated for her ridiculous behavior” and that
“[Weisenberger] agreed and is working on this now.” (Ex. BB at 3; Defs.’ 56.1 ¶¶ 53–54; Pl.’s
Counter 56.1 ¶¶ 54, 56.) Swirnow responded “terminate.” (Ex. BB at 3; Defs.’ 56.1 ¶ 54.)

Kaplan forwarded Swirnow’s response to Hall, noting that he “spoke to Karin and . . . think she
is moving ahead with termination, but don’t want her wavering on this, see [Swirnow’s] email
below. Any help to ensure this happens will be appreciated.” (Defs.’ 56.1 ¶ 55; Pl.’s Counter
56.1 ¶ 57; Ex. 10 at 7.) Kaplan did not have the authority to terminate an employee without
receiving approval from HR. (Pl.’s Counter 56.1 ¶¶ 59–60.)
At 12:11 P.M., Palazzotto emailed Kaplan and HR Senior Director of Ambulatory
Operations Jean-Marie Addeo that Plaintiff had informed her that she was “gravely ill,” “getting
an MRI of the brain,” and “not sure when she will be back.” (Ex 10 at 4; Defs.’ 56.1 ¶ 60; Pl.’s
Counter 56.1 ¶ 64.) Palazzotto noted she told Plaintiff “that if she did not feel well she should
have communicated with the practice manager so [Ramclam] would have been aware prior so an

incident could have been avoided” and “to contact [Ramclam] if she would not be reporting to
work” the next day. (Ex 10 at 4.) She forwarded the email thread from April 13, 2021 among
herself, Ramclam, Weisenberger, Kimura, Rodriguez, where Ramclam initially reported the
April 12, 2021 incident and Kimura stated that she and Weisenberger had agreed that Plaintiff’s
conduct warranted a written warning. (Id. at 4–6.) Kaplan forwarded Palazzotto’s email to Hall,
writing “[Palazzotto] just sent me this. I suspect this will come up.” (Id. at 4; Pl.’s Counter 56.1
¶ 64.) At 12:51 P.M., Hall responded to Kaplan, copying Weisenberger, and stated that she was
“looping in [Weisenberger] [who] also just found out [Plaintiff] is looking to go on leave” and
noted that “[Plaintiff] also spoke to [Ramclam] and [Weisenberger] is getting the info . . . since

we already planning to layoff this employee due to not needing the role.” (Ex 10 at 4 (omission
in original); Pl.’s Counter 56.1 ¶ 65.)
iii. April 15, 2021
The following morning, April 15, 2021 at 9:50 A.M., Weisenberger emailed Ramclam
that the situation was “taking on life of its own” and that she needed for Ramclam to send her
“all the notes” she has on Plaintiff as “[l]egal is going to review to see if we can let go now or

have to wait till after leave if she applies for one.” (Ex 11 at 3; Pl.’s Counter 56.1 ¶ 66.) Her
email directed Ramclam to call her so that she can fill in the details. (Pl.’s Counter 56.1 ¶ 66; Ex
11 at 3.) That afternoon, Plaintiff left Ramclam a voicemail around 2:00 P.M. that she had called
HR, who informed her that FMLA “only kicks in if it is a week that [she is] absent,” that
“therefore, for this week” Ramclam would “have to use [her] sick time or whatever [Ramclam
thought] is appropriate,” and that she “ha[s] to be out one full week before submitting that form.”
(See Ex. EE at 2; Ramclam Tr. 179:17–180:11; Defs.’ 56.1 ¶ 62.) That evening, Kaplan emailed
Hall and Weisenberger asking “[w]ere we able to finalize things related to [Plaintiff] today?”
(Pl.’s Counter 56.1 ¶ 67; Ex 10 at 11.)

e. Actions by Plaintiff and Defendants from April 16, 2021 until April 23, 2021
Plaintiff remained out of work for medical care and treatment through April 23, 2021,
and continued texting Ramclam updates, and Ramclam in turn shared with Palazzotto, Kaplan,
Weisenberger, and others the various text messages and voicemails received from Plaintiff.
(Defs.’ 56.1 ¶¶ 63–65; Pl.’s Counter 56.1 ¶¶ 35, 41–42.) On Wednesday, April 21, 2021,
Plaintiff informed Ramclam that she would be out of work the following two days and that “[i]f
things go well I am hoping for Monday.” (Ex. 12 at 3; Defs.’ 56.1 ¶ 65.) Ramclam emailed a
screenshot of the text to Weisenberger, Kimura, Addeo, Palazzotto, and Kaplan marked with
high priority, writing “Below is the message I just received from [Plaintiff] indicating that she
hopes to be in on Monday” and asked them to advise. (Ex. 12 at 2–3.) Two minutes later,
Addeo, writes separately to Kaplan, “I know you said that [Plaintiff] is not to return to the office
but that’s on HR to handle correct?” (Id. at 2; Pl.’s Counter 56.1 ¶ 69.) Kaplan forwarded
Addeo’s email to Hall, copying Weisenberger, writing that it “seems [Plaintiff] wants to return to
the office on Monday. We thought she was going on FMLA, but doesn’t seem to be the case.

Assume this changes our termination/layoff stance? Please let me know your thoughts.” (Ex. 12
at 2; Pl.’s Counter 56.1 ¶ 70.)
On April 21, 2021, Derek Forte from NYULH Employee Relations emailed Kimura and
asked, “[d]id they decide to not discipline her for sleeping on the job?” (Pl.’s Counter 56.1 ¶ 71;
Defs.’ 56.1 ¶ 51.) Kimura responded to Forte’s email and copied Weisenberger and Rodriguez,
writing “[t]hey were waiting for her to report to work to issue the discipline for sleeping while on
duty. She hasn’t reported to work since the incident.” (Pl.’s Counter 56.1 ¶ 72.)
On April 22, 2021, at 3:56 P.M., Kimura emailed Ramclam, copying Weisenberger,
Palazzotto, Kaplan, and others that Plaintiff would need to provide Ramclam with a doctor’s note
indicating the date that she is cleared to return to work, and that when Plaintiff returns, Ramclam

should “issue a written warning as she was discovered sleeping while on duty.” (Ex. 14 at 3;
Pl.’s Counter 56.1 ¶ 73; Defs.’ 56.1 ¶ 68.) On April 22, 2021, Ramclam received notification
that Plaintiff had requested FMLA leave for April 13, 2021 through April 23, 2021. (Ex. NN at
2; see Pl.’s Counter 56.1 ¶ 40.) Plaintiff then called Ramclam to notify her that she could return
to work on April 26, 2021. (Ex. MM at 2–3; Ex. 14 at 2–3.) Shortly after the call, Ramclam
emailed Kimura, copying Weisenberger, Palazzotto, Kaplan, and others, Plaintiff’s scheduled
return date, that she had advised Plaintiff of the need for a doctor’s note to return, that Plaintiff
told her that she had applied for FMLA, and Ramclam had received acknowledgment of the
FMLA request. (Pl.’s Counter 56.1 ¶ 74; Ex. MM at 2; Ex. 14 at 2.)
f. Plaintiff’s termination
On April 23, 2021, Kaplan, Weisenberger, and Hall met with Forte. (Pl.’s Counter 56.1
¶ 84; Defs.’ 56.1 ¶ 69.) This meeting was “the very first time, Defendants got Forte involved in
the decision-making process.” (Pl.’s Counter 56.1 ¶ 80.) They asked Forte how NYULH had
handled prior incidents of other employees sleeping on the job and Forte informed them that the

employees had been terminated. (Pl.’s Counter 56.1 ¶¶ 80–81; Defs.’ 56.1 ¶ 69.) This meeting
resulted in a decision to terminate Plaintiff for sleeping while on duty. (Pl.’s Counter 56.1 ¶ 84.)
Palazzotto received an email indicating that the termination date was April 23, 2021. (Ex. 27 at
2.) Kaplan emailed Swirnow, copying Hall, writing “Just wanted to update you that after a
number of conversations with HR the decision was made today to proceed with the termination
of [Plaintiff]. This is slated to occur on Monday next week.” (Ex. 10 at 13; Pl.’s Counter 56.1
¶ 85.) Between April 23 and 26, 2021, Weisenberger led her team and Ramclam in drafting and
circulating four versions of a termination letter as they decided the details to include in
explaining the termination.10 (Defs.’ 56.1 ¶ 73; Pl.’s Counter 56.1 ¶ 92.)

10 One version of the termination letter stated that Plaintiff’s employment “[was]
terminated effective April 23, 2021 due to the incident on April 12, 2021 where [she was] found
sleeping on the exam table” and provides no other detail on the incident. (Ex. 17 at 8.) A second
version states that “[o]n April 23, 2021, [Plaintiff was] found sleeping on the exam table in
violation of [NYULH’s] Policy,” “[o]n April 15, 2020, [Plaintiff was] issued a Final Written
Warning for being no call/no show,” and “[d]espite the Final Written Warning, [her] attendance
record has not improved to an acceptable level.” (Id. at 12, 25.) A third version makes no
mention of Plaintiff’s attendance record and details the April 12, 2021 incident, noting that on
that date, a Carle Place employee “was calling [Plaintiff] in an effort to transfer a call from a
patient,” Plaintiff’s “lack of response prompted this employee to look for [Plaintiff] in the
practice,” Plaintiff was “then discovered sleeping on the exam table during work hours,”
Plaintiff’s “demeanor was dismissive and apologetic” when “questioned regarding this incident,”
and “[t]his behavior goes against the organization’s conduct of employees and sleeping while on
duty policy.” (Id. at 13, 27.) A fourth version states that Plaintiff was “being terminated from
employment for behavior that does not align with our organizational standards” and indicates
that she was “found sleeping on an exam table during work hours . . . in direct violation of
[NYULH’s] Employee Code of Conduct policy.” (Id. at 26.)
On April 26, 2021, Ramclam called Plaintiff to inform her of Defendants’ decision to
terminate her employment and read to Plaintiff the contents of the termination letter.11 (Defs.’
56.1 ¶¶ 76–77; Pl.’s Counter 56.1 ¶ 102.) Plaintiff’s FLMA leave for April 13, 2021 through
April 26, 2021 was approved on May 6, 2021.12 (Ex. OO at 2.)

II. Discussion
a. Standard of review
Summary judgment is proper only when “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); Capitol
Recs., LLC v. Vimeo, Inc., 125 F.4th 409, 418 (2d Cir. 2025) (quoting Fed. R. Civ. P. 56(a)); see
Radwan v. Manuel, 55 F.4th 101, 113 (2d Cir. 2022) (same) (quoting Fed. R. Civ. P. 56(a)). The
court must “constru[e] the evidence in the light most favorable to the nonmoving party,”
Radwan, 55 F.4th at 113 (alteration in original) (quoting Kuebel v. Black & Decker Inc., 643
F.3d 352, 358 (2d Cir. 2011)), and “resolve all ambiguities and draw all permissible factual
inferences in favor of the party against whom summary judgment is sought,” Koral v. Saunders,

11 The final termination letter, dated April 26, 2021 and signed by Ramclam, discussed
the events of April 12, 2021, including that Plaintiff was found “sleeping on the exam table
during work,” that Defendants “questioned” Plaintiff regarding the incident, and that Plaintiff
“stated that [she] had [her] eyes closed because [she] had a headache.” (Ex RR at 2.) The letter
noted that Plaintiff “did not notify [her] manager that [she was] taking a break” and explained
that “[t]his behavior goes against the organization’s conduct of employees policy. As a result,
and after careful review and consideration, [Plaintiff was] being terminated from employment
with NYU Langone–Long Island in [her] position as Physician Assistant –– FGP, effective
immediately.” (Id.)
12 Plaintiff disputes the date her FMLA leave request was approved, relying on Hall’s
deposition testimony, including her answering “yes” to the question “[w]as [Plaintiff] approved
for Family Medical Leave after the incident at work where she was allegedly sleeping and prior
to her termination?” (Pl.’s 56.1 Resp. ¶ 70; Hall Tr. 41:18–24.) The FMLA approval letter
unequivocally shows that Plaintiffs’ FMLA leave request was approved on May 6, 2021, after
her termination, (see Ex. OO), and Plaintiff provides no support for Hall’s testimony that
Plaintiff’s leave request was approved before her termination.
36 F.4th 400, 408 (2d Cir. 2022) (quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003));
see also Qorrolli v. Metro. Dental Assocs., 124 F.4th 115, 122 (2d Cir. 2024) (“In determining
whether there is a genuine dispute as to a material fact, we must resolve all ambiguities and draw
all inferences against the moving party.” (quoting Garcia v. Hartford Police Dep’t, 706 F.3d

120, 126 (2d Cir. 2013))). The role of the court “is not to resolve disputed questions of fact but
only to determine whether, as to any material issue, a genuine factual dispute exists.” Lara-
Grimaldi v. County of Putnam, 132 F.4th 614, 633 (2d Cir. 2025) (quoting Porter v. Dartmouth-
Hitchcock, 92 F.4th 129, 147 (2d Cir. 2024)); see Kee v. City of New York, 12 F.4th 150, 167 (2d
Cir. 2021) (same) (quoting Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010)). A
genuine issue of fact exists when there is sufficient “evidence on which the jury could reasonably
find for the [nonmoving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
The “mere existence of a scintilla of evidence” is not sufficient to defeat summary judgment.
Id.; Solid 21, Inc. v. Breitling U.S.A., Inc., 96 F.4th 265, 276 (2d Cir. 2024) (“The mere existence
of a scintilla of evidence in support of the non-movant’s position will be insufficient; there must

be evidence on which the trier of fact could reasonably find for the non-movant.” (quoting Sports
Auth., Inc. v. Prime Hosp. Corp., 89 F.3d 955, 960 (2d Cir. 1996))). The court’s function is to
decide whether, “after resolving all ambiguities and drawing all inferences in favor of the
nonmovant, a reasonable jury could return a verdict for the nonmovant.” Miller v. N.Y. State
Police, No. 20-3976, 2022 WL 1133010, at *1 (2d Cir. Apr. 18, 2022) (first citing Anderson, 477
U.S. at 248; and then citing Garcia, 706 F.3d at 127, 129); see also Capitol Recs., 125 F.4th at
418 (“[A] genuine dispute as to a material fact precludes summary judgment ‘where the evidence
is such that a reasonable jury could decide in the non-movant’s favor.’” (quoting Lucente v.
County of Suffolk, 980 F.3d 284, 296 (2d Cir. 2020))).

In cases that involve claims of discrimination, courts must use “an extra measure of
caution” in determining whether to grant summary judgment “because direct evidence of
discriminatory intent is rare” and “the court must scrutinize affidavits and depositions carefully
for circumstantial evidence that, if credited by the factfinder, could reasonably be interpreted as
showing discrimination.” Moll v. Telesector Res. Grp., 94 F.4th 218, 228 (2d Cir. 2024) (first

quoting Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001), abrogated in part on other
grounds by Gross v. FBL Fin. Servs., 557 U.S. 167, 169 (2009), and then citing Gallo v.
Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994)); Schiano v. Quality Payroll
Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006(“[A]n extra measure of caution is merited in
affirming summary judgment in a discrimination action because direct evidence of
discriminatory intent is rare.” (quoting Holtz, 258 F.3d at 69)). However, “the salutary purposes
of summary judgment [—] avoiding protracted and harassing trials [—] apply no less to
discrimination cases than to . . . other areas of litigation.” Tolbert v. Smith, 790 F.3d 427, 434
(2d Cir. 2015) (quoting Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000)). Striking
this balance requires that “a plaintiff must provide more than conclusory allegations to resist a

motion for summary judgment,” Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008) (citing
Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)); see also Gorzynski v. JetBlue Airways Corp.,
596 F.3d 93, 101 (2d Cir. 2010), and courts may grant summary judgment against
“discrimination claims in cases lacking genuine issues of material fact,” Holtz, 258 F.3d at 69
(first quoting McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997), and then citing Abdu–
Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001)). “Because the district court is
not to resolve issues of fact on a summary judgment motion, ‘its determination of whether the
circumstances give rise to an inference of discrimination must be a determination of whether the
proffered admissible evidence shows circumstances that would be sufficient to permit a rational

finder of fact to infer a discriminatory motive.’” Abdelal v. Police Comm’r, 857 F. App’x 30, 31
(2d Cir. 2021) (quoting Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 38 (2d Cir. 1994)).
b. Plaintiff’s ADA discrimination claim
Plaintiff brings a claim for disability discrimination under the ADA, alleging that
Defendants discriminated against her on the basis of her disability by terminating her
employment. (See Compl. ¶¶ 50–64.)

The ADA “makes it unlawful for a covered employer to ‘discriminate against a qualified
individual on the basis of disability.’” Stanley v. City of Sanford, 145 S. Ct. 2058, 2063 (2025)
(quoting 42 U.S.C. § 12112); Yerdon v. Poitras, 120 F.4th 1150, 1156 (2d Cir. 2024) (explaining
that the ADA prohibits covered employers from “discriminat[ing] against a qualified individual
on the basis of disability” (alteration in original) (quoting 42 U.S.C. § 12112)); see also
Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 179 (2012)
(“The ADA prohibits an employer from discriminating against a qualified individual on the basis
of disability.”). Discrimination claims brought under the ADA “are subject to the burden-
shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).”
Parker v. Israel Disc. Bank of N.Y., Inc., No. 24-688, 2025 WL 1779219, at *1 (2d Cir. June 27,

2025) (citing McMillian v. City of New York, 711 F.3d 120, 125 (2d Cir. 2013)); Forrester v.
Prison Health Servs., Inc., 651 F. App’x 27, 28 (2d Cir. 2016) (first citing McMillian, 711 F.3d
at 125; then citing Cortez v. MTA N.Y.C. Transit, 802 F.3d 226, 231 (2d Cir. 2015)); see also Bey
v. City of New York, 999 F.3d 157, 165 (2d Cir. 2021). There are three steps to this burden-
shifting analysis: (1) “[a] plaintiff must establish a prima facie case”; (2) “the employer must
offer through the introduction of admissible evidence, a legitimate non-discriminatory reason for
the discharge”; and (3) “the plaintiff must then produce evidence and carry the burden of
persuasion that the proffered reason is a pretext.” Blanton v. Educ. Affiliates, Inc., No. 21-1221,
2022 WL 1505124, at *2 (2d Cir. May 12, 2022); see Porter v. Dartmouth-Hitchcock Med. Ctr.,
92 F.4th 129, 145–46 (2d Cir. 2024) (explaining the burden-shifting framework (citing
McDonnell Douglas, 411 U.S. at 802–07)); see also Parker, 2025 WL 1779219, at *1 (same);
Genova v. County of Nassau, 851 F. App’x 241, 242 (2d Cir. 2021) (quoting Sista v. CDC Ixis N.
Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006)) (same).

i. Plaintiff has made a prima facie case for discrimination
Defendants “[a]ssum[e] arguendo that Plaintiff can establish the first three prongs of her
prima facie burden,” but contend that “she still cannot demonstrate that her termination was based
on her disability” and therefore fails to meet her prima facie burden. (Defs.’ Mem. 2, 9.)
Defendants argue that Plaintiff relies on facts that “are either not genuinely disputed material[]
facts or are irrelevant, duplicative, or information previously submitted in Defendants’ moving
papers” and “fail to demonstrate inconsistencies and/or factual disputes that are relevant or material
to this summary judgment motion.” (Defs.’ Reply 2.) They also argue that “Plaintiff’s argument
based on the temporal proximity of Plaintiff’s ‘medical episode’ and her termination is an attempt
to distract from her policy violation and the documented deliberative decision-making process that
led to her termination,” as evidenced by “[v]arious emails between Defendants’ [HR]

representatives and the business leadership decision-maker, Kaplan” that “detail the ongoing
discussions about the options for disciplining Plaintiff for her policy violation.” (Id. at 2–3, 7.)
Plaintiff argues that the “sole element of Plaintiff’s prima facie case that is in dispute is
whether her termination was because of her disability (i.e., causation)” and that the record
supports an inference of discriminatory intent that is sufficient to meet her “de minimis burden”
for causation. (Pl.’s Opp’n 5.) In support, Plaintiff relies on (1) Defendants’ awareness of her
disability; (2) that she suffered a medical emergency on April 12, 2021 that “was a result of her
disability”; (3) the “close temporal proximity between her termination and . . . medical episode,
along with [her] medical treatment and . . . recent clearance to return to work”; and (4) email
communications in the two days following her April 12, 2021 medical episode, “one between
Weisenberger and her HR subordinates and the other between Weisenberger and senior level
staff”13 that she argues are a basis for a “jury . . . to find that Weisenberger gave directives to her
subordinates . . . with which she had no intentions of following through” in order “to make it

appear as though Defendants were acting in a nondiscriminatory fashion” while she “collud[ed]
with higher ups to “manage…out” Plaintiff and “demonstrate conflicting motives and call into
question Defendants’ true intent”; and (5) “inconsistent narratives surrounding the events of
April 12, 2021”14 that “at the very least, call into question Defendants’ motive” and make it “not
a far leap to infer that Defendants terminated Plaintiff for an impermissible, discriminatory
reason.” (Id. at 6–10.)
“To establish a prima facie case of discrimination under the ADA, a plaintiff must show
by a preponderance of the evidence that: (1) his employer is subject to the ADA; (2) he was

13 Plaintiff contends that in the first email, dated April 13, 2021, Kimura emailed
Weisenberger, Ramclam, Palazzo, and HR staff that she spoke with Weisenberger and the two
“both agree[d] that the incident requires written warning.” (Pl.’s Opp’n 8.) In the second email,
sent the following day on April 14, 2021, Plaintiff contends Weinberger emailed Kaplan and
Hall describing her plan to “manage [Plaintiff] out” and that she sent this email “despite”
knowing how ill Plaintiff had become” and “representing to Kimura, Rodriguez, Palazzotto, and
Ramclam that the appropriate response to Plaintiff’s alleged misconduct was to issue a written
warning.” (Id.) See also supra Section I.d.i-ii (summarizing correspondence from April 13 and
14, 2021).
14 Plaintiff contends that emails from April 13 and 14, 2021 “conflict with the events as
they actually happened” as Gionesi, “the sole witness of Plaintiff’s alleged misconduct,
witnessed and relayed to Ramclam.” (Pl.’s Opp’n 9.) Plaintiff argues that “Gionesi testified that
before she found Plaintiff laying down in the exam room . . . she did not try to call or page
Plaintiff in the room, as there was no paging system in the office” and “that the door to the exam
room was ajar, and, upon finding her laying down in the exam room, called out her name from
the door, and did not walk up to her” while emails from Kimura’s and Weisenberger’s emails on
April 13, 2021 and April 14, 2021 “tell a completely different narrative,” specifically “that there
was a call or page to Plaintiff’s office, and that Gionesi found Plaintiff asleep and walked up to
her.” (Id. at 9–10.)
disabled within the meaning of the ADA; (3) he was 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.” Woolf v. Strada, 949 F.3d 89, 93 (2d Cir. 2020)
(citing Sista, 445 F.3d at 169); see Daly v. Westchester Cnty. Bd. of Legislators, No. 23-1220,

2024 WL 3264125, at *1 (2d Cir. July 2, 2024) (similar); Gorbea v. Verizon N.Y. Inc., No. 20-
3486, 2021 WL 4851389, at *2 (2d Cir. Oct. 19, 2021) (listing the four requirements for a prima
facie ADA case (quoting Woolf, 949 F.3d at 93)); Jones v. N.Y.C. Transit Auth., 838 F. App’x
642, 643 (2d Cir. 2021) (same); Kinneary v. City of New York, 601 F.3d 151, 155–56 (2d Cir.
2010) (quoting Capobianco v. City of New York, 422 F.3d 47, 56 (2d Cir. 2005)) (same); Donkor
v. Weill Cornell Med. Coll., No. 23-CV-369, 2025 WL 639313, at *3 (S.D.N.Y. Feb. 27, 2025)
(same); see also Adams v. Festival Fun Parks, LLC, 560 F. App’x 47, 48–49 (2d Cir. 2014)
(outlining requirements for prima facie case under the ADA (quoting McMillan v. City of New
York, 711 F.3d 120, 125 (2d Cir. 2013))); Knope v. Garland, No. 20-CV-3274, 2021 WL
5183536, at *2 (2d Cir. Nov. 9, 2021) (outlining requirements for a prima facie case under the

ADA). A plaintiff’s burden at this stage is “minimal.” Banks v. Gen. Motors, LLC, 81 F.4th
242, 270 (2d Cir. 2023); Kelleher v. Fred A. Cook, Inc., 939 F.3d 465, 468 (2d Cir. 2019) (“[A]
plaintiff’s burden to establish an initial prima facie case is, by design, ‘minimal and de
minimis.’” (quoting Woodman v. WWOR–TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005))); see also
Trivedi v. St. Peter’s Health Partners Med. Assocs., P.C., No. 23-7608, 2024 WL 5087524, at *1
(2d Cir. Dec. 12, 2024) (explaining same); Holcomb v. Iona College, 521 F.3d 130, 139 (2d Cir.
2008) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)) (same). “With respect
to the causation requirement, the plaintiff must demonstrate that ‘but for’ his disability or
perceived disability, his employment would not have been terminated.” Daly, 2024 WL

3264125 at *1 (quoting Natofsky v. City of New York, 921 F.3d 337, 347 (2d Cir. 2019)); see
Porter, 92 F.4th at 148 (quoting Natofsky, 921 F.3d at 349); see also Militello v. Visiting Nurse
Ass’n Health Care Servs., Inc., No. 22-CV-7759, 2025 WL 964019, at *4 (E.D.N.Y. Mar. 31,
2025) (“Plaintiff faces a low bar to make a prima facie case of the elements, but still “must
establish but-for causation.” (citations omitted)); Morrison v. Millenium Hotels, No. 18-CV-

6811, 2021 WL 1534293, at *4 (S.D.N.Y. Apr. 19, 2021) (“[T]o survive summary judgment,
[plaintiff] must show that a jury could reasonably conclude that [the defendant] would not have
[terminated his employment] if he . . . did not have a disability.”). “‘[B]ut-for’ causation does
not require proof that [discrimination] was the only cause of the employer’s action, but only that
the adverse action would not have occurred in the absence of the [discriminatory] motive.”
Villetti v. Guidepoint Glob. LLC, No. 21-2059, 2022 WL 2525662, at *5 (2d Cir. July 7, 2022)
(quoting Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 91 (2d Cir. 2015)); see Zann
Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013) (same); Carter v. TD Bank, N.A.,
No. 23-950, 2024 WL 2828470, at *4 (2d Cir. June 4, 2024) (“The plaintiff need not prove that
discrimination was the employer’s sole motivation, but discrimination must be a ‘but-for cause’

of the adverse employment action.” (citing Natofsky, 921 F.3d at 348)).
Plaintiff has met her de minimis burden for establishing a prima facie case of
discrimination. Defendants do not challenge that (1) Defendants are employers “subject to the
ADA,” (2) Plaintiff was “disabled within the meaning of the ADA” due to her medical
conditions, and (3) Plaintiff was “otherwise qualified to perform the essential functions” of her
position as a physician’s assistant “with or without reasonable accommodation.” Woolf, 949
F.3d at 93. As to the fourth prong, Plaintiff has provided sufficient evidence from which a
reasonable factfinder could infer that Plaintiff was terminated because of her medical disability.
First, Defendants fired Plaintiff for sleeping or appearing to sleep while on duty and the

undisputed conduct that gave rise to her termination –– Plaintiff laying on an examination room
table with her eyes closed, lights turned off, and door slightly ajar during work hours –– was
directly caused by symptoms of her medical conditions. See Vives v. N.Y.C. Dep’t of
Corrections, No. 15-CV-6127, 2019 WL 1386738, at *11 (E.D.N.Y. Mar. 27, 2019) (finding
inference of discrimination where plaintiff “was terminated because of her absence and she was

absent because of her medical condition”).
Second, the record supports that Kaplan, Weisenberger, and Hall, decisionmakers
involved in deciding to terminate Plaintiff, were made aware that Plaintiff’s medical condition
caused the incident through email reports in the days following the incident. Moreover, in the
time between Kaplan’s directive and the date Defendants made the official decision to terminate
on April 23, 2021, Plaintiff remained out of work and Ramclam shared the text messages and
voicemails that Plaintiff provided with updates on medical care and treatment with Kaplan and
Weisenberger. (Pl.’s Resp. to Defs.’ 56.1 ¶¶ 63–65; Pl.’s Counter 56.1 ¶ 35, 41–42.) See supra
Section I.e.; Bourara v. N.Y. Hotel Trades Council & Hotel Ass’n of N.Y.C., Inc. Emp. Benefit
Funds, No. 17-CV-7895, 2020 WL 5209779, at *6–*10 (S.D.N.Y. Sept. 1, 2020) (finding the

plaintiff satisfied elements of the prima facie case at summary judgment where he presented
sufficient evidence from which a jury could infer that the sole decisionmaker who recommended
his termination for violating the “employee handbook regarding theft of company time” knew he
had a disability), aff’d, No. 20-3092, 2021 WL 4851384 (2d Cir. Oct. 19, 2021); MacDuff v.
Simon Mgt. Assocs. II, LLC., No. 20-CV-773, 2022 WL 972426, at *5–8 (D. Conn. Mar. 31,
2022) (finding employee established prima facie case for unlawful termination under the ADA
where it was undisputed that the HR director who “approved the decision to terminate [the]
plaintiff’s employment” had “knowledge of [the] plaintiff’s disability and request for
accommodation”); cf. Pacenza v. IBM Corp., 363 F. App’x 128, 130–31 (2d Cir. 2010)

(affirming that the plaintiff “failed to make a prima facie showing of discrimination under the
ADA” where he “did not adduce evidence that his supervisor had knowledge of his disability”
(citing Raytheon Co. v. Hernandez, 540 U.S. 44, 54 n.7 (2003))).
Third, it is undisputed that Defendants made the decision to terminate Plaintiff on April
23, 2021, (Pl.’s Counter 56.1 ¶ 83), eleven days after the April 12, 2021 incident that gave rise to

her termination and the day after she gave notice that she could return to work, (Ex. 14 at 2–3).
Discussions regarding her termination overlapped with her leave for the medical condition that
led to the conduct for which she was terminated and Defendants notified Plaintiff of her
termination on April 26, 2021, the day she was to resume working. See supra Sections I.d–f. At
the prima facie stage, the temporal proximity of these events supports an inference of
discrimination sufficient to establish causation. See Bourara v. N.Y. Hotel Trades Council &
Hotel Ass’n of N.Y.C., Inc. Emp. Benefit Funds, No. 20-3092, 2021 WL 4851384, at *2 (2d Cir.
Oct. 19, 2021) (stating that “[t]he temporal proximity of events may give rise to an inference of
[discrimination] for the purposes of establishing a prima facie case of [discrimination] under [the
ADA]” (alterations in original) (quoting El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d

Cir. 2010), abrogation in part on other grounds recognized in Hale v. Vidal, No. 22-2973, 2023
WL 7211909, at *1 (2d Cir. Nov. 2, 2023))); Stryker v. HSBC Sec. (USA), No. 16-CV-9424,
2020 WL 5127461, at *9 (S.D.N.Y. Aug. 31, 2020) (finding that the “closeness in time between
the [employee’s] return from his second leave of absence” and the immediate start of the
“alleged adverse actions against him raise[d] an inference of discrimination sufficient to satisfy”
causation on summary judgment); see also Acosta v. Kennedy Child.’s Ctr., No. 24-CV-3358,
2025 WL 70141, at *6 (S.D.N.Y. Jan. 10, 2025) (holding that the one week between the
plaintiff’s disclosure of her condition and request for accommodation and termination supported
the inference that the plaintiff was terminated based on her disability (quoting Littlejohn v. City

of N.Y., 795 F.3d 297, 312 (2d Cir. 2015))).
As Plaintiff has made a prima facie case of discrimination, the burden shifts to
Defendants to proffer a legitimate, nondiscriminatory reason for terminating her employment.
ii. Defendants have proffered a non-discriminatory reason for Plaintiff’s
termination
Defendants argue that Plaintiff “being asleep (or appearing to be asleep) while on duty on
April 12, 2021” in violation of their policies “establish[es a] non-discriminatory basis for
Plaintiff’s termination” and they “have proffered ample evidence through deposition testimony and
contemporaneous documentation” and by showing “the progression of discussions within the HR
department and the internal evaluation process.” (Defs.’ Mem. 9, 16.) They argue that the
“decision to terminate Plaintiff’s employment because of the referenced violation is consistent with

[Defendants’] prior history and internal precedent of ending the employment of workers who were
found to be sleeping, or appearing to be sleeping, during their designated work hours,”
demonstrating “that [their] policies were enforced consistently and without discriminatory intent.”
(Id. at 9–10.) Defendants contend that Plaintiff “sleeping (or appearing to be asleep) on a patient
examination table with the lights off without notifying anyone or asking for an accommodation in
advance were not an anomaly, given her prior history of reporting late and failing to provide
advance notice to [Defendants] about her symptoms or anticipated tardiness.” (Id. at 9.)
Plaintiff argues that Defendants “purported legitimate, non-discriminatory reason” is
“unavailing” because “a termination of Plaintiff’s employment based on the alleged policy
violation” is a “termination based on Plaintiff’s disability” as “had she not had an explosive

migraine on April 12, 2021, she would not have needed to take her medication, turn off the
lights, and lay down and, consequentially, would not have been found by Defendants to have
‘violated’ company policy.” (Pl.’s Opp’n 10–11.) Plaintiff contends that Defendants failed to
produce admissible evidence that (1) Plaintiff was actually sleeping on the job and thus violated
company policy; (2) Defendants “truly believed” she was sleeping on the job and “thus were
motivated by the policy violation in their decision”; and (3) they “have enforced this policy in
the past.” (Id. at 10, 14.)
An “‘employer’s explanation of its reasons must be clear and specific’ in order to ‘afford

the employee a full and fair opportunity to demonstrate pretext.’” Byrnie v. Town of Cromwell,
Bd. of Educ., 243 F.3d 93, 105 (2d Cir. 2001) (quoting Meiri, 759 F.2d at 996–97), superseded in
part on other grounds by Fed. R. Civ. P. 37(e); Claud v. Brown Harris Stevens of Hamptons,
LLC, 676 F. Supp. 3d 100, 129 (E.D.N.Y. 2023) (“The employer bears the burden of production
at this stage to ‘rebut the inference of discrimination that arises from proof of the prima facie
case’ and to ‘frame[] the factual issue with sufficient clarity to afford the employee a full and fair
opportunity to demonstrate pretext.’ ‘To this end, the employer’s explanation of its reasons must
be clear and specific.’” (alteration in original) (quoting Meiri, 759 F.2d at 996–97). “[I]f the
employer adduces such evidence, the plaintiff, in order to avoid summary judgment, must point
to evidence sufficient to permit an inference that the employer’s proffered reason is pretext for

the alleged prohibited discrimination.” Porter, 92 F.4th at 146 (citation omitted)); Spiegel v.
Schulmann, 604 F.3d 72, 80 (2d Cir. 2010) (per curiam) (“If the defendant proffers such a
reason, the presumption of discrimination . . . drops out of the analysis, and the defendant will be
entitled to summary judgment . . . unless the plaintiff can point to evidence that reasonably
supports a finding of prohibited discrimination.” (quoting Dawson v. Bumble & Bumble, 398
F.3d 211, 216 (2d Cir. 2005))). The defendant’s burden “is not a particularly steep hurdle.”
Hyek v. Field Supp. Servs., Inc., 702 F. Supp. 2d 84, 93 (E.D.N.Y. 2010), aff’d, 461 F. App’x 59
(2d Cir. 2012); Anglin v. Hunter, No. 19-CV-219, 2025 WL 968046, at *14 (D. Vt. Mar. 31,
2025) (same). It “is one of production, not persuasion; it ‘can involve no credibility

assessment.’” Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 142 (2000) (quoting Hicks,
509 U.S. at 509); Gopal v. Univ. of Conn., No. 19-CV-1810, 2025 WL 969557, at *13 (D. Conn.
Mar. 31, 2025) (same); O’Neill v. Newburgh Enlarged City Sch. Dist., No. 22-CV-5017, 2024
WL 3185966, at *14 (S.D.N.Y. June 26, 2024) (“[T]he [defendant] need not prove at this stage
that its legitimate, non-discriminatory reason for firing [the p]laintiff was accurate or correct —

it is sufficient to merely articulate such a reason.” (citing Hicks, 509 U.S. at 509)), aff’d, No. 24-
2007, 2025 WL 1554748 (2d Cir. June 2, 2025); Turner v. Delta Airlines, Inc., 658 F. Supp. 3d
123, 132 (E.D.N.Y. 2023) (“Indeed, a court should not second-guess an employer’s proffered
explanation so long as it is not unlawfully discriminatory.” (citing Greene v. Brentwood Union
Free Sch. Dist., 966 F. Supp. 2d 131, 156 (E.D.N.Y. 2013), aff’d, 576 F. App’x 39 (2d Cir.
2014))), appeal withdrawn sub nom. Turner v. Delta Air Lines, Inc., No. 23-451, 2023 WL
4311227 (2d Cir. June 14, 2023).
Defendant has proffered a legitimate, nondiscriminatory reason for Plaintiff’s termination
–– Plaintiff was found sleeping or appearing to sleep while on duty in violation of the Workplace
Conduct Policy. (Defs.’ Mem. 9–10.) The Workplace Conduct Policy prohibits “[s]leeping, or

the appearance thereof, while on duty” (Defs.’ 56.1 Resp. ¶ 10; Ex. E at 2–3), and the record
demonstrates that Plaintiff was reported for conduct on April 12, 2021 that violated the policy.
Specifically, Gionesi found Plaintiff laying down in her temporary office with the lights off,
(Pl.’s Counter 56.1 ¶¶ 23–24; Defs.’ 56.1 ¶ 41); Plaintiff had her eyes closed and was on duty at
the time, (see Pl.’s Counter 56.1 ¶¶ 16–20; Ricciardo Tr. 139:10–23); Gionesi relayed what she
saw to Ramclam, (Pl.’s Counter 56.1 ¶ 29; Defs.’ 56.1 Resp. ¶ 43); and Ramclam reported the
incident to her own supervisor and HR representatives, (Pl.’s Counter 56.1 ¶ 44; Defs.’ 56.1
¶ 48; Ex. V at 2). Under the Workplace Conduct Policy, Defendants have discretion in
determining the “appropriate” disciplinary action including termination. (Ex. E at 2–3; Defs.’

56.1 ¶ 10.) Consistent with this policy, after Ramclam reported the incident, discussions among
Weisenberger, Kaplan, Swirnow, and others ensued regarding disciplinary action, culminating in
the April 23, 2021 meeting where Kaplan, Weisenberger, and Hall decided, after consulting with
Forte, that they would terminate Plaintiff. See supra Section ii.d–f.
Plaintiff’s argument that Defendants have failed to proffer a legitimate, nondiscriminatory

reason because the alleged Workplace Conduct Policy violation is a “termination . . . based on
[Plaintiff’s] disability,” (Pl.’s Opp’n 10), is misguided. As the Second Circuit has explained,
“[t]he ADA does not excuse workplace misconduct because the misconduct is related to a
disability.” Russell v. Westchester Cmty. Coll., No. 23-7572, 2025 WL 1165846, at *2 (2d Cir.
Apr. 22, 2025) (quoting McElwee v. County of Orange, 700 F.3d 635, 641 n.4 (2d Cir. 2012));
Handler v. Dutchess Cnty. Cmty. Coll., No. 21-CV-2637, 2024 WL 343091, at *5 (S.D.N.Y. Jan.
30, 2024) (same), appeal withdrawn, No. 24-412, 2024 WL 3867620 (2d Cir. June 3, 2024); see
Johnson v. L’Oreal USA, No. 21-2914, 2023 WL 2637456, at *5 (2d Cir. Mar. 27, 2023)
(“‘[U]nder the ADA,’ . . . ‘workplace misconduct’ — a category which includes credible
complaints about one’s work performance — ‘is a legitimate and nondiscriminatory reason for

terminating employment, even when such misconduct is related to a disability.’” (alteration in
original) (quoting McElwee, 700 F.3d at 641)); see also BaRoss ex rel. BaRoss v. Greenlawn
Volunteer Fire Dep’t, Inc., No. 16-CV-4805, 2021 WL 930254, at *5 (E.D.N.Y. Mar. 10, 2021)
(concluding that the fire department did not violate the ADA in discipling volunteer firefighter for
misconduct that violated its bylaws but resulted from the firefighter’s Alzheimer’s disease
because “it [was] immaterial that [p]laintiff’s misconduct related to his disability”). Courts
routinely find that sleeping on the job is a legitimate, nondiscriminatory reason to terminate an
employee even when the plaintiff is disabled or otherwise a member of a protected class. See,
e.g., Cruz v. N.Y.C. Transit Auth., No. 23-CV-5272, 2025 WL 551809, at *13–14 (S.D.N.Y. Feb.

19, 2025) (concluding that employer that fired former administrative manager for “sleeping on
duty” in violation of agency rules had articulated a legitimate, nondiscriminatory reason despite
knowing the manager struggled to sleep at night due to known disabilities); Beaton v. Metro.
Transp. Auth. N.Y.C. Transit, No. 15-CV-8056, 2016 WL 3387301, at *2 (S.D.N.Y. June 15, 2016)
(finding employer’s firing of a subway station agent for sleeping while on duty was a legitimate,

nondiscriminatory reason even though the agent claimed he was wrongfully accused and only
appeared to be sleeping on account of drowsiness from his schizophrenia medication); see also
Emmanuel v. Cushman & Wakefield, Inc., No. 13-CV-2894, 2015 WL 5036970, at *5–6 (S.D.N.Y.
Aug. 26, 2015) (holding employer’s termination of pregnant receptionist for falling asleep on a
couch in the reception area during business hours was a legitimate, nondiscriminatory reason).
Plaintiff’s remaining arguments misconstrue Defendants’ burden at this stage of the
McDonnell Douglas framework, and in effect seek to impose a higher burden on Defendants.
Contrary to Plaintiff’s argument, Defendants need not prove that Plaintiff was actually sleeping
on the job, that they truly believed she was sleeping on the job, or that they have enforced this
policy through termination in the past because the issue is not whether Defendants’ proffered

reason is “accurate or correct.” O’Neill, 2024 WL 3185966, at *14; see Gopal, 2025 WL
969557, at *13 (explaining Defendants’ burden “is one of production, not persuasion; it can
involve no credibility assessment” (quoting Reeves, 530 U.S. at 142)); Hicks, 509 U.S. at 509
(“[T]he burden-of-production determination necessarily precedes the credibility-assessment
stage.”). Defendants have proffered that they terminated Plaintiff for violating their Workplace
Conduct Policy and articulated “clear and specific” reasons for doing so. Byrnie, 243 F.3d 93.
This is sufficient to meet their burden.
iii. Plaintiff has failed to demonstrate pretext
Defendants argue “there is no pretext” because they have discretion to terminate
employees “found to be sleeping or resting during their designated work hours” and terminating
Plaintiff “is consistent with its prior history and internal precedent” and “demonstrates that
[Defendants’] policies were enforced consistently and without discriminatory intent.” (Defs.
Mem. 9–10, 13–14.) In support, Defendants argue: (1) they included “Plaintiff’s work history”
in their 56.1 Statement to “provide[] a comprehensive context for the communications among

[HR] and Ambulatory Practice leaders which led to her termination,” (Defs.’ Reply 7), and “the
sequence of events surrounding the decision-making process within the HR department” suggest
“a thorough evaluation rather than a predetermined decision to terminate Plaintiff,” (Defs.’ Mem.
15–16)”;15 (2) Plaintiff’s reduced work schedule accommodation “does not . . . permit Plaintiff
to violate [Defendants’] policies” and the facts support that she violated company policy and her
termination “was completely independent of [her] alleged disability status.” (Defs.’ Reply 8–9;
Defs.’ Mem. 8); (3) the differences between the four drafts of the termination letters “are
immaterial” and insufficient “to support or infer pretext” because they “show that [Defendants]
did not attempt to doctor or manipulate any facts” concerning the April 12, 2021 incident, (Defs.’
Mem. 14–15); (4) Weisenberger’s emails concerning the April 12, 2021 incident are admissible

because “Plaintiff had ample opportunity to depose everyone involved in those email
communications,” “Weisenberger was merely the messenger who relayed the incident as
reported by Plaintiff’s direct manager [Ramclam], who was deposed,” and Kaplan authenticated
the emails during his deposition, (Defs.’ Reply 5–6; Defs.’ 56.1 Reply ¶¶ 51–55); and (5)
Plaintiff “ignores” that Hall’s testimony about Forte’s statement is admissible under the “hearsay
exception for statements that express a declarant’s state of mind at the time,” (Defs.’ Reply 3

15 Defendants also argue that Plaintiff’s argument that “Defendants included numerous
instances of her policy violations in their [56.1 Counterstatement] as a way to distract the Court”
is “truly the pot calling the kettle black” because Plaintiff’s response to Defendants’ 56.1
Statement “is an unavailing attempt to cloud the summary judgment record when in fact it is
clear as to the material facts.” (Defs.’ Reply 2.)
(citing Fed. R. Evid. 803(3)).
Plaintiff argues that Defendants’ proffered reason for her termination is pretextual
because (1) Defendants have offered “inconsistent” and “varying” explanations for her
termination during this litigation16 and the “bulk” of Defendants’ 56.1 Statement is “completely

irrelevant” and “immaterial” facts concerning Plaintiff’s attendance and tardiness violations, on-
going issues with coworkers, and challenges to Plaintiff’s judgment” that Defendants included
“to paint Plaintiff as troublesome employee who deserved to be discharged regardless of
Defendants’ true motive, and to divert the court’s attention away from [their] discriminatory
motive”; (Pl.’s Opp’n 14–16); (2) Defendants’ proffered reason is implausible as whether
Plaintiff was actually sleeping is a disputed fact and emails, deposition testimony, and four draft
termination letters make “clear” that Defendants stalled firing Plaintiff for ten days to “craft an
alleged non-discriminatory reason for Plaintiff’s termination to avoid liability” as they “knew
terminating Plaintiff’s employment after she suffered a medical event due to her disability was
problematic” and that “she had suffered a medical event at work, was undergoing medical

treatment, and was seeking FMLA leave,” (id. at 17–18); and (3) Defendants have not produced
admissible evidence as to the information that Forte provided about “what Defendants had done
in the past when an employee . . . was found sleeping on the job” and “Weisenberger’s email
correspondences, conversations, and communications,” making these statements inadmissible

16 In support, Plaintiff contends Defendants (1) stated in their interrogatory responses
that Plaintiff was terminated for “failure to comply with Defendants’ attendance policies and
procedures on numerous occasions despite being counseled on the same and for her actions on
April 12, 2021,” (2) asserted during depositions that she was terminated for “sleeping on the
exam table during working hours,” and (3) argued in their moving papers that she was “sleeping
or laying in rest with her eyes closed, with the lights out on a patient examination table during
her shift, without providing any notice to her manager that she was purportedly unable to work.
(Pl.’s Opp’n 15.)
hearsay that Defendants cannot rely on to support their proffered reason for terminating Plaintiff
and creating a genuine dispute of material fact as to pretext. (Id. at 2, 11–13.).
In support of her argument that Defendants have not produced admissible evidence
concerning the information Forte provided, Plaintiff contends that she relies on “Hall’s testimony

regarding Forte’s investigation” into “what Defendants had done in the past when an employee
. . . was found sleeping on the job” and that Defendants provide no sworn testimony from Forte.
(Id. at 12.) Plaintiff contends the lack of admissible evidence as to Forte makes it “impossible to
determine whether Defendants’ supposed policy of firing employees who have been found
sleeping on the job has been applied consistently and without discriminatory intent, if at all” and
that testimony from Palazzotto, Addeo, and Ramclam indicating that they did not know of any
employee falling asleep at Carle Place for the entire time they had been in their respective
positions, “supports that it is more likely that there had never been a violation of this policy.”
(Id. at 18–19 (citation omitted).) As to Weisenberger, Plaintiff argues her email
correspondences, conversations, and communications are inadmissible hearsay because

Weisenberger “is now deceased, did not provide deposition testimony and did not give any
sworn statement regarding her plan to phase Plaintiff out of her position and the reason behind
Plaintiff’s discharge” and reliance on her statements would “deprive Plaintiff of her day in
Court.” (Id. at 2, 13.) She contends a reasonable factfinder could infer that “Weisenberger
harbored discriminatory animus and made false statements about Plaintiff” based on
Weisenberger (1) directing “subordinates to issue a written warning to Plaintiff while, in the
same breath, devising a plan to manage Plaintiff out of the company”; (2) “draft[ing] the
extremely inaccurate email to Kaplan and Hall” on April 14, 2021 “with the knowledge that
Plaintiff suffered a complex migraine, was out sick, had difficulty walking, and sought medical

care and treatment”; and (3) the absence of “any sworn testimony from Weisenberger explaining
what exactly motivated her actions in the decision-making process.” (Id. at 19–20.)
Upon the defendant’s showing of a legitimate, nondiscriminatory reason for the
employment action, the plaintiff must “produce not simply some evidence, but sufficient
evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered

by the defendant were false, and that more likely than not discrimination was the real reason for
the employment action.” Bassi v. N.Y. Med. Coll., No. 23-278, 2024 WL 3717317, at *2 (2d Cir.
Aug. 8, 2024) (quoting Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000)); DiCesare
v. Town of Stonington, 823 F. App’x 19, 24 (2d Cir. 2020) (quoting Van Zant v. KLM Royal
Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996)) (same); Mullins v. City of New York, 626 F.3d
47, 53–54 (2d Cir. 2010) (applying the same framework); see also Santamaria v. Vee Techs.,
Inc., No. 22-CV-4472, 2024 WL 1216579, at *5 (S.D.N.Y. Mar. 21, 2024) (denying summary
judgment in an ADA case based on the plaintiff’s evidence that the employer’s nondiscriminatory
reasons for termination were pretextual). A plaintiff may show pretext “by demonstrating
weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s proffered

legitimate, [non-discriminatory] reasons for its action.” Knox v. CRC Mgmt. Co., LLC, 134 F.4th
39, 50 (2d Cir. 2025) (quoting Zann Kwan, 737 F.3d at 846); Palencar v. N.Y. Power Auth., 834 F.
App’x 647, 651 (2d Cir. 2020) (same) (citation omitted); Graziadio v. Culinary Inst. of Am., 817
F.3d 415, 430 (2d Cir. 2016) (same). “Also probative are whether the employee believed the
conduct was permissible and any procedural irregularities.” King v. Aramark Servs. Inc., 96 F.4th
546, 565 (2d Cir. 2024).
When making this assessment, courts “are decidedly not interested in the truth of the
allegations against [the] plaintiff” but rather “are interested in what motivated the employer.”
Licinio v. New York, No. 24-2564, 2025 WL 1693108, at *1 n.1 (2d Cir. June 17, 2025) (alteration

in original) (quoting McPherson v. N.Y.C. Dep’t of Educ., 457 F.3d 211, 216 (2d Cir. 2006)); see
also Owens v. Centene Corp., No. 22-2765, 2023 WL 5970954, at *2 (2d Cir. Sept. 14, 2023)
(noting that the pretext inquiry is “decidedly not interested in the truth of the allegations against [a
plaintiff, but only] in what motivated the employer” (quoting McPherson, 457 F.3d at 216));
Jacobs v. N.Y.C. Dep’t of Educ., 768 F. App’x 86, 88 (2d Cir. 2019) (finding “unavailing” the

plaintiff’s argument that the report underlying the adverse employment action was “factually
incorrect” because “we are decidedly not interested in the truth of the allegations against plaintiff;
the factual validity of the underlying imputation against the employee is not at issue” (quoting
McPherson, 457 F.3d at 216)); Graham, 230 F.3d at 44 (holding that the plaintiff could not
establish pretext by demonstrating that the results of a failed drug test were not “actually correct”
because “[t]he key question is whether it was reasonable for the employer to rely on the test result
in making its employment decision”); Schneidermesser v. NYU Grossman Sch. of Med., No. 21-
CV-7179, 2024 WL 4135701, at *6 (S.D.N.Y. Sept. 10, 2024) (“Where a plaintiff has been
terminated for misconduct, the question is not whether the employer reached a correct conclusion
in attributing fault [to the plaintiff] . . . , but whether the employer made a good-faith business

determination.” (alterations in original) (quoting Koleskinow v. Hudson Valley Hosp. Ctr., 622 F.
Supp. 2d 98, 111 (S.D.N.Y. 2009))); Klein v. Brookhaven Health Care Facility, No. 17-CV-
4841, 2023 WL 6619377, at *5 (E.D.N.Y. Oct. 11, 2023) (“[T]he fact that an employee disagrees
with the results of an employer’s decision regarding termination, or even has evidence that the
decision was objectively incorrect or was based on a faulty investigation, does not automatically
demonstrate, by itself, that the employer’s proffered reasons are a pretext for termination.”
(quoting Rodriguez v. City of New York, 644 F. Supp. 2d 168, 187–88 (E.D.N.Y. 2008)); Claud,
676 F. Supp. 3d at 130 (“At this step, ‘a fact-finder need not, and indeed should not, evaluate
whether a defendant’s stated purpose is unwise or unreasonable.’ Instead, the question is simply

whether the ‘articulated purpose is the actual purpose for the challenged employment-related
action.’” (quoting DeMarco v. Holy Cross High Sch., 4 F.3d 166, 170–71 (2d Cir. 1993))); Carter
v. TD Bank, N.A., No. 20-CV-1616, 2023 WL 3818589, at *8, *9 (D. Conn. June 5, 2023)
(“Plaintiff’s protestations that he did nothing wrong, and that both the conclusion and process of
[d]efendant’s ethics investigation were flawed, are not sufficient to withstand summary judgment”

because “the veracity of the misconduct allegations levied against [p]laintiff is ‘immaterial to the
question of pretext.’” (quoting Vasquez v. N.Y.C. Dep’t of Educ., 667 F. App’x 326, 327 (2d Cir.
2016))). The Second Circuit has acknowledged the “risk that false negative performance reports or
arbitrary procedures may be employed to cover illegal discrimination” and that “[w]hile such
practice would arguably result in a defensibly ‘legitimate’ reason for the adverse employment
action, bizarre or duplicitous processes might strengthen a plaintiff’s showing of pretext.”
McPherson, 457 F.3d at 216 n.7; Toussaint v. NY Dialysis Servs., Inc., 230 F. Supp. 3d 198, 219–
20 (S.D.N.Y. 2017) (same), aff’d, 706 F. App’x 44 (2d Cir. 2017); cf. Hui-Wen Chang v. N.Y.C.
Dep’t of Educ., 412 F. Supp. 3d 229, 247 (E.D.N.Y. 2019) (granting summary judgment where
“plaintiff offer[ed] no evidence of a bizarre and duplicitous process, motivated by animus based on

race, ethnicity, national origin, or disability, that support[ed] an inference of pretext”).
Plaintiff fails to provide evidence sufficient to find that Defendants proffered reason for
termination is false and that her termination was more than likely due to her disability. As
discussed below, Plaintiffs’ three arguments as to why Defendants’ proffered reason is pretextual
––– that Defendants have offered inconsistent and varying explanations, Defendants’ reason is
implausible, and Defendants have failed to produce admissible evidence –– rely on immaterial or
irrelevant factual issues.
1. Inconsistent and varying explanations
Plaintiff has pointed to examples of Defendants offering varying explanations for her
termination, but the examples offered are immaterial.
An employer’s inconsistent or post hoc reasons for firing an employee can be indicia of
pretext. See Villetti, 2022 WL 2525662, at *7 (concluding “various inconsistencies” between the
employer’s stated justifications for terminating plaintiff and the CEO’s deposition testimony and
in the company’s decision-making process combined with temporal proximity of the termination

and protected activity could support an inference of pretext); Zann Kwan, 737 F.3d at 847
(finding a jury could infer pretext from the inconsistent justifications given to the EEOC and in
the subsequent Title VII suit, coupled with close temporal proximity of the discharge and
protected activity); EEOC v. Ethan Allen Inc., 44 F.3d 116, 120 (2d Cir. 1994) (“From such
discrepancies a reasonable juror could infer that the explanations given by [the defendant] at trial
were pretextual, developed over time to counter the evidence suggesting age discrimination
uncovered by the state investigation.”); DeMarco v. Holy Cross High Sch., 4 F.3d 166, 171 (2d
Cir. 1993) (noting that the pretext inquiry considers “whether the putative non-discriminatory
purpose was stated only after the allegation of discrimination”). Nevertheless, merely having
multiple reasons for firing an employee does not constitute pretext where the differences among

them are not materially inconsistent. See Bohlinger v. Abbott Lab’ys Inc., 843 F. App’x 374, 380
(2d Cir. 2021) (affirming that “any discrepancies” in sales director and supervisor’s testimonies
regarding the employer’s justification were “immaterial” because they were “variations, if that,
on the same theme rather than separate inconsistent justifications’” (quoting Roge v. NYP
Holdings, Inc., 257 F.3d 164, 170 (2d Cir. 2001))); Russell v. Westchester Cmty. Coll., No. 23-
7572, 2023 WL 6162866, at *9 (S.D.N.Y. Sept. 21, 2023) (holding plaintiff failed to demonstrate
“shifting” reasons for the adverse employment action where the evidence “reveal[ed]
consistently that the reason for the decision . . . was because of [p]laintiff’s behavior” even if
different behavior examples were cited), aff’d, 2025 WL 1165846 (2d Cir. Apr. 22, 2025);

Giaccio v. Michael Anthony Contracting Corp., No. 19-CV-4492, 2022 WL 815931, at *9
(E.D.N.Y. Feb. 16, 2022) (The “varying explanations must be materially inconsistent with one
another.” (internal quotation marks omitted) (quoting Matthews v. Huntington, 499 F. Supp. 2d
258, 267 n.6 (E.D.N.Y. 2007))); Mathews, 499 F. Supp. 2d at 267 n.6) (collecting cases); see also
Clawson v. City of Albany Dep’t of Fire & Emerg., No. 23-482, 2024 WL 1044531, at *3 (2d Cir.

Mar. 11, 2024) (rejecting argument that inconsistencies between fire department’s justification and
fire chief’s comments demonstrated pretext because the chief’s comments amounted to “additional
details” that were not inconsistent with the fire department’s “initial explanation” that the adverse
action was due to the plaintiff’s misconduct nor “incompatible” with the fire department’s
argument that plaintiff “engaged in conduct unbecoming of a battalion chief”); accord Zann Kwan,
737 F.3d at 853 (Parker, J., dissenting) (“The record [does not] establish that the allegedly shifting
reasons [the defendant] has asserted are in fact contradictory. Rather, the shift in business focus
and [the plaintiff’s] poor performance are complementary — indeed the shift in focus may in fact
be a cause of at least some of [the plaintiff’s] performance problems.”).
Even where an employer’s failure to state all its reasons for an adverse action creates

some indicia of pretext, a plaintiff must nevertheless show that but-for the plaintiff’s protected
characteristic, the adverse action would not have occurred. See Bassi, 2024 WL 3717317, at *2
(affirming that the plaintiff failed to show pretext because “no reasonable jury could conclude
that [d]efendants were motivated in whole or in part by discriminatory intent”); Rinaldi v. Nice,
Ltd., No. 19-CV-424, 2021 WL 827767, at *8 (S.D.N.Y. Mar. 4, 2021) (“[E]ven assuming that
[the] [p]laintiff could establish pretext, he c[ould] [not] demonstrate that discrimination was the
‘but-for’ cause of his discharge.”), aff’d sub nom. Rinaldi v. Mills, No. 21-2630, 2022 WL
17480081 (2d Cir. Dec. 7, 2022); Palencar v. N.Y. Power Auth., No. 15-CV-1363, 2019 WL
4918426, at *20 (N.D.N.Y. Oct. 4, 2019) (“Even assuming . . . that inconsistencies or other

indicia of pretext [we]re present, they would not here support, either alone or in conjunction with
the other evidence, an inference that discrimination . . . was the real reason for any of the[ ]
allegedly adverse actions” (alterations in original) (quoting Timothy v. Our Lady of Mercy Med.
Ctr., 233 F. App’x 17, 20 (2d Cir. 2007)), aff’d, 834 F. App’x 647 (2d Cir. 2020); see also
Genova v. County of Nassau, No. 17-CV-4959, 2020 WL 813160, at *6 (E.D.N.Y. Feb. 19,

2020) (“Ultimately, . . . the question is whether the evidence relied upon in opposition to
summary judgment allows a reasonable fact-finder to determine that defendant engaged in
discriminatory conduct.” (citation omitted)), aff’d, 851 F. App’x 241 (2d Cir. 2021).
Plaintiff’s arguments that Defendants have “shifted their approach” to explaining
Plaintiff’s termination at different points in this litigation is unavailing because Plaintiff’s
examples show that Defendants maintained that Plaintiff was terminated for the April 12, 2021
incident. (Pl.’s Opp’n 15.) Specifically, Defendants (1) stated in their interrogatory responses
that Plaintiff was terminated for “failure to comply with Defendants’ attendance policies and
procedures on numerous occasions despite being counseled on the same and for her actions on
April 12, 2021,” then (2) asserted during depositions that she was terminated for “sleeping on the

exam table during working hours,” and now (3) contend in their moving papers that she was
“sleeping or laying in rest with her eyes closed, with the lights out on a patient examination table
during her shift,” without providing any notice to her manager that she was purportedly unable to
work.” (Id. at 15–16 (emphasis added).) Moreover, the detail added or removed at each stage of
the litigation are all examples of workplace misconduct that violates Defendants’ policies and
thus amount to “variations . . . on the same theme rather than separate inconsistent
justifications.” Roge, 257 F.3d at 170; see Russell, 2023 WL 6162866, at *9 (finding plaintiff
failed to show employer’s reasons for adverse employment action were “shifting” because the
evidence “reveal[ed] consistently that the reason for the decision . . . was because of Plaintiff’s

behavior” even if different behavior examples were cited); Giaccio, 2022 WL 815931, at *9
(rejecting plaintiff’s argument that “the reasons for his termination shifted over time” when “in
fact each of the proffered reasons fall under the general umbrella of performance issues”); see
also Harrow v. St. Luke’s Cornwall Hosp., No. 09-CV-7847, 2011 WL 13383216, at *5
(S.D.N.Y. Mar. 29, 2011) (explaining that a decisionmaker’s “‘difficulty in identifying . . . which

factor he considered most important to his decision’ does not necessarily amount to an attempt to
shield improprieties sufficient to establish pretext” (quoting Nichols v. Lewis Grocer, 138 F.3d
563, 568 (5th Cir. 1998))), aff’d, 485 F. App’x 488 (2d Cir. 2012).
While the Court agrees that the parties’ 56.1 Statements are muddied and at times unclear
as to whether Plaintiff’s violation of Defendants’ attendance and lateness policies contributed to
the termination decision, Defendants repeat throughout their 56.1 statement that they fired
Plaintiff for the April 12, 2021 incident. (See, e.g., Defs.’ 56.1 ¶¶ 75, 78.)17 In addition, the
record evidence supporting the parties’ 56.1 Statements, e.g., Defendants’ termination letter,
email correspondence, and deposition testimony, amply support Defendants’ proffered
justification. Plaintiff admitted that she closed her eyes while she was laying on the examination

table with the lights off; Ramclam reported to her superiors and HR that Plaintiff was found
asleep while on duty and that when questioned about the incident, Plaintiff denied she had been
sleeping and said she was “getting a headache and decided to close [her] eyes”; and the
decisionmakers involved in discharging Plaintiff relied on Ramclam’s report and the information
provided by Forte concerning how NYULH had handled similar incidents to reach their final
termination decision. See supra Section I.c–f; see also Laiscell v. Bd. of Educ., No. 24-11, 2024

17 (See also Defs. 56.1 ¶¶ 8–9, 11–12 (explaining in reply to Plaintiff that facts
concerning Plaintiff’s violations of NYULH’s time and attendance policy are “presented solely
to articulate the policy’s guidelines and does not detract from the established fact that Plaintiff’s
termination was indeed due to ‘sleeping’ or the ‘appearance’ of sleeping while on the job”).)
WL 5182916, at *2 (2d Cir. Dec. 20, 2024) (finding no pretext where “nothing in the record . . .
suggest[ed] that the [decision-making body] did not believe that [the plaintiff] engaged in
‘unacceptable and wholly unprofessional’ misconduct when it elected to terminate her
employment”). Moreover, despite her pretext arguments, Plaintiff asserts repeatedly in response

to Defendants’ 56.1 Statement that “the summary judgment record is clear that the sole reason
why Plaintiff was fired was for sleeping on the exam table during work hours.”18 (Defs.’ 56.1
¶¶ 18–22, 24–32; see id. ¶¶ 8–9, 11–12; see also Pl.’s Counter 56.1 ¶ 95 (stating “The sole
reason why Plaintiff was terminated was for ‘sleeping on the exam table during work hours.’”).
“Construing the evidence in the light most favorable to [Plaintiff],” Radwan, 55 F.4th at
113, Defendants’ varying explanations might raise questions as to whether attendance and lateness
constituted an additional reason for discharge but “[n]o reasonable jury could find on this record
that [the] Defendants’ proffered explanation for their decision amounted to pretext,” Russell, 2025
WL 1165846, at *2, nor that Plaintiff’s disability was the but-for cause of termination.
2. Implausibility
Plaintiff’s argument that there is a genuine dispute of material fact as to whether Plaintiff

was actually sleeping, (Pl.’s Opp’n 16–18), is incorrect because the Workplace Conduct Policy
prohibits “[s]leeping, or the appearance thereof, while on duty,” and Plaintiff was terminated for
“sleeping or appearing to sleep while on duty.” (Ex. E at 2–3.) No reasonable factfinder could
conclude that Plaintiff laying on her side on the examination table with the lights off and her
eyes closed, (Pl.’s Counter 56.1 ¶ 20; Ricciardo Tr. 139:10–23; see Ex. 1 ¶ 31), did not constitute
misconduct under this policy. Moreover, regardless of whether Plaintiff was asleep, the record

18 Plaintiff also states throughout her responses to Defendants’ 56.1 Statement and her
own 56.1 Counterstatement that time and attendance had “nothing to do with” her termination.
(Pl.’s Counter 56.1 ¶¶ 100; Defs.’ 56.1 ¶¶ 8–9, 11–12; see also id. Pl.’s Counter 56.1 ¶ 99
(“Plaintiff was not fired for violating any time and attendance policy.”).)
supports that Defendants relied on and acted in response to Ramclam’s report that Plaintiff had
been found sleeping (and told Ramclam that she was not sleeping but had her eyes closed), (Ex.
V at 2; Defs.’ 56.1 ¶ 48; Pl.’s Counter 56.1 ¶ 44), and Plaintiff has offered no evidence to
challenge the plausibility of their reliance. See Laiscell, 2024 WL 5182916, at *2 (affirming no

pretext where “nothing in the record . . . suggest[ed] that the [decision-making body] did not
believe that [the plaintiff] engaged in ‘unacceptable and wholly unprofessional’ misconduct
when it elected to terminate her employment”); Argueta, 2003 WL 22670915, at *5 (The
“relevant question is not what happened [ — i.e., whether the employee actually struck her
coworker —] but rather, what the decisionmakers believed happened.”).
Plaintiff’s contention that Defendants stalled firing Plaintiff for ten days to “craft an
alleged non-discriminatory reason for Plaintiff’s termination to avoid liability,” as evidenced by
the draft termination letters, (Pl.’s Opp’n 17), fails because she offers no corroborating evidence
from which a discriminatory motive may be inferred. See Ehrbar v. Forest Hills Hosp., 131 F.
Supp. 3d 5, 32 (E.D.N.Y. 2015) (rejecting the plaintiff’s argument that the employer’s delay in

terminating him demonstrated pretext because there was no evidence to support that the delay
“was in furtherance of some alleged scheme or that [his protected characteristic] was the but-for
cause of [p]laintiff’s firing”); Burke v. Royal Ins. Co., 39 F. Supp. 2d 251, 261 (E.D.N.Y. 1999)
(concluding that the employer waiting to terminate plaintiff until after he returned from short
term disability leave was sufficient to make the prima facie case of discrimination under the
ADA but the “few isolated facts” regarding the timing of dismissal and the delay in termination
were “wholly insufficient to raise an issue of fact for trial” as to pretext in light of the employer’s
proffered basis for termination). While there is evidence that Defendants considered pausing any
disciplinary action against Plaintiff until she returned from leave, (Pl.’s Counter 56.1 ¶¶ 70–73),

Defendants had already begun discussing termination for the April 12, 2021 incident and there is
no evidence that Defendants’ proffered reason for termination changed over time or was
influenced by Plaintiff being on leave. Rather, the record suggests that Defendants were
investigating whether they could terminate Plaintiff while she was on leave. See also Patacca v.
CSC Holdings, LLC, No. 16-CV-679, 2019 WL 1676001, at *11 (E.D.N.Y. Apr. 17, 2019) (“It

would truly turn the law on its head if this court found that a manager who was trying to
understand his obligations under the ADA to extend a leave, was somehow violating the ADA.”
(citation and alterations omitted)); O’Hara v. Mem’l Sloan Kettering Cancer Ctr., No. 99-CV-
2658, 2000 WL 1459798, at *4 (S.D.N.Y. Sept. 29, 2000) (explaining that internal effort to
document the plaintiff’s “job performance problems to protect the [h]ospital from a . . .
discrimination suit” was not indicative of discriminatory animus or pretext because “[i]n the
current era of employment discrimination litigation it is not surprising that a supervisor who is
having doubts” about the performance of an employee in a protected class “would be sensitive to
the fact that she might ultimately have to prove in court that she had a basis to believe that the
employee was not performing her job competently”), aff’d, 27 F. App’x 69 (2d Cir. 2001).

Similarly, the draft termination letters alone do not support a reasonable inference of
discriminatory intent because, while the content varied, each draft as well as the final letter
referenced Plaintiff’s April 12, 2021 conduct as the reason for termination. Turner, 658 F. Supp.
3d at 135–36 (E.D.N.Y. 2023) (finding that defendants’ drafts of plaintiff’s termination letter
that contained some variation in the stated reason for termination did not demonstrate pretext
because all drafts, including the final version, “reflect[ed] the [d]efendant’s proffered reason for
terminating [p]laintiff”).
While the overlapping nature of Defendants’ decision-making process relative to
Plaintiff’s medical episode on April 12, 2021 and subsequent medical leave supports an

inference of discriminatory motive for the prima facie case, see supra Section II.b.i, temporal
proximity alone is not enough to demonstrate that Defendants’ proffered reason is false or
incredible, particularly in light of evidence that Plaintiff’s April 12, 2021 conduct did violate
Defendants’ Workplace Conduct Policy. See Mancini v. Accredo Health Grp., Inc., 411 F. Supp.
3d 243, 255 (D. Conn. 2019) (concluding that “[e]ven with the temporal proximity between [the

plaintiff’s] medical emergency and her termination, the evidence [did] not support the inference
that” disability discrimination was the employer’s “true motive” for termination nor that the
employer’s reasons — the plaintiff’s serious and partially admitted misconduct — was
pretextual); cf. Shu-Chen Kuo v. Winklevoss Consultants, Inc., No. 16-CV-651, 2018 WL
4623023, at *17 (D. Conn. Sept. 26, 2018) (“Absent other evidence of pretext or any basis in the
record to suggest that [d]efendant’s decision to terminate [p]laintiff, however hasty it may have
been, was motivated by discrimination, the [c]ourt declines to second-guess [d]efendant’s
decision to terminate [p]laintiff when it did.”).
Plaintiff has failed to demonstrate implausibilities in Defendants’ reason for termination
that show pretext.

3. Admissible evidence
Plaintiff’s argument that there is a genuine dispute as to pretext because the information
Forte provided to Defendants concerning termination of prior employees for sleeping on the job
and “Weisenberger’s email correspondences, conversations, and communications” are
inadmissible hearsay is misplaced. Although hearsay evidence may not be used to support a
motion for summary judgment, Gerzhgorin v. Selfhelp Cmty. Servs., Inc., No. 22-808, 2023 WL
2469824, at *2 (2d Cir. Mar. 13, 2023) (citing Porter v. Quarantillo, 722 F.3d 94, 97 (2d Cir.
2013)), Defendants have offered most of Forte’s and Weisenberger’s statements not for the truth
of the matters asserted but to demonstrate Defendants’ decision-making process that led to
Plaintiff’s termination and the effect they had on the listener or reader. The challenged evidence
is therefore admissible for this purpose. United States v. Gillier, No. 23-6280, 2024 WL
4344732, at *2 (2d Cir. Sept. 30, 2024) (“If the significance of an offered statement lies solely in
the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement
is not hearsay” (quoting Fed. R. Evid. 801 advisory committee’s note)); United States v. Dupre,

462 F.3d 131, 136–37 (2d Cir. 2006) (finding emails sent to defendants were not hearsay because
they were offered “to provide context for defendants’ messages sent in response to them,
messages whose admissibility is not contested”); Poppito v. Northwell Health, Inc., No. 15-CV-
7431, 2019 WL 3767504, *3 (E.D.N.Y. Aug. 9, 2019) (dismissing the plaintiff’s “attempt[] to
dispute a broad swath of factual assertions” made by employer on hearsay grounds because most
of the assertions were “offered not for the truth of the matter, but rather to provide insight into
defendants’ thought process in taking disciplinary action against [the] plaintiff”).
Even if the information Forte provided was inadmissible,19 it would be inconsequential
for the pretext inquiry. Plaintiff does not dispute Defendants met with Forte, asked Forte how
NYULH handled prior incidents of other employees sleeping on the job, or that Forte informed

them that the employees had been terminated. Nor does Plaintiff offer any basis to cast doubt on
Defendants’ assertion that they relied on information Forte provided in reaching the termination
decision, particularly given that contacting Forte, who worked in NYULH Employee Relations,
is consistent with the Workplace Conduct Policy’s directive for “supervisors [to] contact
Employee & Labor Relations prior to taking disciplinary action against an employee” for policy

19 In response to Plaintiff’s argument that there is no sworn testimony from Forte,
Defendants provided a sworn declaration from Forte with their reply brief. (Defs. Reply 4; Forte
Decl. 6–8.) Forte attests that, based on NYULH electronic records that are maintained in the
course of regularly conducted business, excluding Plaintiff, the hospital system terminated nine
employees for sleeping on the job from 2020 through 2023, including two in 2020, three in 2021,
three in 2022, and one in 2023. (Forte Decl. ¶¶ 6–8.)
violations “to make a proper determination regarding how to address what has occurred.” (Ex. E
at 3.) See Licinio, 2025 WL 1693108, at *1 n. 1 (explaining that for the pretext inquiry, courts
“are interested in what motivated the employer” (quoting McPherson, 457 F.3d at 216));
Laiscell, 2024 WL 5182916, at *2 (affirming no pretext where “nothing in the record . . .

suggest[ed] that the [decision-making body] did not believe that [the plaintiff] engaged in
‘unacceptable and wholly unprofessional’ misconduct when it elected to terminate her
employment” nor “that a ‘bizarre or duplicitous process[ ]’ led the [decision-making body] to
this conclusion” (quoting McPherson, 457 F.3d at 216 n.7)). Plaintiff offers testimony from
Palazzotto, Addeo, and Ramclam indicating that they personally did not know of any employee
falling asleep at Carle Place, but this evidence does not refute that NYULH had terminated
employees in their broader hospital system or even at Carle Place for sleeping while on duty or
create a genuine dispute of material fact as to what motivated Defendants’ termination decision.
Plaintiff’s argument that a jury may infer that Weisenberger had discriminatory intent
fails because she has offered no basis for such an inference to be drawn. Plaintiff points to

evidence establishing that (1) on April 13, 2021, Kimura informed Ramclam and others that
Weisenberger agreed that the appropriate disciplinary action was to issue a written warning to
Plaintiff for sleeping while on duty and less than a day later, Weisenberger emailed Kaplan,
copying Hall, “there is consideration of eliminating the position [for which Plaintiff] was hired
[in] July 2018. [Plaintiff] is the only mid-level in the practice. So as it turns out this does not
matter. We may be able to manage her out,” (Ex. BB at 2; Defs.’ 56.1 ¶ 52; Pl.’s Counter 56.1
¶ 52); and (2) the same day Weisenberger emailed Kaplan, Ramclam emailed Weisenberger
Plaintiff’s message that the April 12, 2021 incident was caused by a migraine, that she was not
sleeping when Gionesi found her, and was seeking medical care for a severe headache and

difficulty walking, (Defs.’ 56.1 ¶ 49; Pl.’s Counter 56.1 ¶ 32; Ex. 7 at 2). Although the Court
acknowledges the peculiarity of Weisenberger appearing to pursue two courses of disciplinary
action simultaneously –– written warning and termination –– and that there is no testimony to
explain Weisenberger’s motives,20 Plaintiff has offered no basis from which a reasonable jury
could make the leap that Weisenberger “harbor[ed] discriminatory animus” towards Plaintiff on

account of her disability. See Lanci v. Andersen, No. 96-CV-4009, 2000 WL 329226, at *6
(S.D.N.Y. Mar. 29, 2000) (“[A] ‘suspicious’ sequence of events does not necessar[ily] allow a
plaintiff’s ADA claim to survive a summary judgment motion.”) The record contains no
indication, for example, that Weisenberger made any discriminatory comments towards or about
Plaintiff or any other disabled employee. See Shimanova v. TheraCare of N.Y., Inc., No. 15-CV-
6250, 2017 WL 980342, at *4 (S.D.N.Y. Mar. 10, 2017) (“[E]vidence of discrimination against
other employees may be relevant to proving discrimination.” (citing Sprint/United Mgmt. Co. v.
Mendelsohn, 552 U.S. 379, 388 (2008))); e.g., Gordon-Mallett v. Mt. Sinai Hosps. Grp., Inc.,
No. 22-CV-1159, 2024 WL 1513910, at *12 (S.D.N.Y. Apr. 8, 2024) (finding inference of
discrimination in termination of the plaintiff’s employment where decisionmaker’s

“inappropriate remarks revealed animus against individuals with [the p]laintiff’s protected
characteristics”); Austin v. Phone2Action, Inc., No. 21-CV-491, 2023 WL 6201409, at *5
(E.D.N.Y. Sept. 22, 2023) (finding evidence of pretext for gender and race discrimination where
one of the decisionmakers behind plaintiff’s termination “made a discriminatory remark to

20 The Court notes that other evidence supports that around the time of the April 12,
2021 incident, Defendants were considering eliminating Plaintiff’s position and laying her off.
For example, on April 14, 2021, in an email to Kaplan and Weisenberger, Hall wrote, “we were
already planning to layoff this employee due to not needing the role.” (Ex 10 at 8; Pl.’s Counter
56.1. ¶ 65.) Combined with Weisenberger’s April 14, 2021 email to Kaplan and Hall that
Plaintiff could be “manage[d] out,” a reasonable factfinder could conclude Weisenberger was
motivated by Defendants’ interest in eliminating Plaintiff’s position. However, no reasonable
factfinder could find this evidence suggestive of discriminatory intent.
another female employee around the same time [the d]efendant terminated [the p]laintiff from
her position” and “that a different female employee had complained to HR that she believed the
[decision-maker] treated her dismissively and disrespectfully because of her gender and race”);
Johnson v. N.Y.C. Dep’t of Educ., 39 F. Supp. 3d 314, 322 (E.D.N.Y. 2014) (holding that the

plaintiff failed to show an inference of discrimination because there was no indication of animus
and no defendant had ever made any discriminatory comments to the plaintiff). Instead, Plaintiff
incorrectly assumes that the absence of any testimony from Weisenberger on account of her
death before being deposed can alone lead to an inference of animus. An inference of
discrimination cannot rise from mere speculation or conjecture alone. See Blanton, 2022 WL
1505124, at *3 (“[C]ourts ‘must . . . carefully distinguish between evidence that allows for a
reasonable inference of discrimination and evidence that gives rise to mere speculation and
conjecture.’” (quoting Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999))); e.g.,
Whitney v. Montefiore Med. Ctr., No. 21-CV-9623, 2023 WL 7386400, at *18 (S.D.N.Y. Nov. 8,
2023) (rejecting that the defendant’s reason for his termination was pretext for disability

discrimination because “only by speculation could one derive from” the email evidence supplied
by the plaintiff “bias on the basis of disability”); see also Cameron v. Cmty. Aid for Retarded
Child., Inc., 335 F.3d 60, 66 (2d Cir. 2003) (rejecting the plaintiff’s argument that an inference
could be drawn that the complaints that led to his termination were fabricated because the
inference “would be based on nothing but speculation, lacking in the ‘concrete particulars’
required to defeat summary judgment” (citing Meiri, 759 F.2d at 998)).
Because Plaintiff has not presented any basis for a reasonable factfinder to conclude that
Defendants’ proffered reason for terminating Plaintiff is not credible or that “her termination was
actually due to discrimination,” Bassi, 2024 WL 3717317, at *2, she has failed to meet her

burden to demonstrate pretext. See Wein v. N.Y.C. Dep’t of Educ., No. 18-CV-11141, 2020 WL
4903997, at *15 (S.D.N.Y. Aug. 19, 2020) (granting summary judgment on disability
discrimination claims because the plaintiff “ha[d] not produced any evidence to suggest that
disability discrimination played a role in — let alone was the but-for cause of — the
[employer’s] challenged employment actions towards him”).

Accordingly, the Court grants Defendants motion for summary judgment as to Plaintiff’s
ADA claim.
c. Plaintiff’s FMLA retaliation claim
Plaintiff brings a claim for FMLA retaliation, alleging that Defendants terminated her
employment “for exercising her rights under the FMLA” and “firing [her] while she was on
approved FMLA leave.” (Compl. ¶¶ 65–72.)
“The FMLA gives eligible employees an ‘entitlement’ to twelve workweeks per year of
unpaid leave ‘[b]ecause of a serious health condition that makes the employee unable to perform
the functions of the position of such employee.’” Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 174
(2d Cir. 2006) (alteration in original) (quoting 29 U.S.C. § 2612(a)(1)(D)); Miller v. N.Y. State
Police, No. 20-3976, 2022 WL 1133010, at *4 (2d Cir. Apr. 18, 2022) (same); Greenberg v. State

Univ. Hosp., 838 F. App’x 603, 605 (2d Cir. 2020) (similar); see also Robbins v. Candy Dig. Inc.,
No. 23-10619, 2024 WL 5056429, at *4–5 (2d Cir. Dec. 9, 2024) (“[A]n eligible employee is
entitled to take up to twelve weeks of leave in a twelve-month period . . . [b]ecause of a serious
health condition that makes the employee unable to perform the functions of the position of such
employee.” (quoting 29 U.S.C. § 2612(a)(1)(D))); Arizmendi v. Rich Prods. Corp., No. 22-1971,
2023 WL 4246106, at *1 (2d Cir. June 29, 2023) (“The FMLA affords qualified employees who
cannot work due to a ‘serious health condition’ up to twelve weeks of leave in a year.” (quoting 29
U.S.C. § 2612(a)(1)(D))). It “‘creates a private right of action to seek both equitable relief and
money damages against any employer . . .’ should that employer ‘interfere with, restrain, or deny
the exercise of’ FMLA rights.’” Sista, 445 F.3d at 174 (quoting Nev. Dep’t Hum. Res. v. Hibbs,
538 U.S. 721, 724–25 (2003)); Woods v. START Treatment & Recovery Centers, Inc., 864 F.3d
158, 166 (2d Cir. 2017) (same); see Linardos v. Juthani, No. 24-CV-962, 2025 WL 887693, at *14
(D. Conn. Mar. 21, 2025) (quoting Sista, 445 F.3d at 174)). “Under the FMLA, an employer may

neither interfere with an employee’s exercise of this entitlement nor retaliate against an employee
for exercising this entitlement.” Greenberg, 838 F. App’x at 605 (citing Woods, 864 F.3d at 166);
see also Kelly v. Hartford Fin. Servs. Grp., Inc., 818 F. App’x 83, 84 (2d Cir. 2020) (“FMLA
claims come in at least two varieties: interference and retaliation.” (quoting Woods, 864 F.3d at
166)); Sista, 445 F.3d at 175 (rejecting claims of interference and retaliation). “[A]n employee
brings an ‘interference’ claim when her employer has prevented or otherwise impeded the
employee’s’ ability to exercise rights under the FMLA.” Woods, 864 F.3d at 166 (citing Graziadio,
817 F.3d at 424); see also Kemp v. Regeneron Pharms., Inc., 117 F.4th 63, 69 (2d Cir. 2024)
(holding that “an employee is not required to demonstrate an actual denial of benefits to establish a
violation of [the FMLA] and that interference or restraint alone, which includes discouragement, is

enough to establish such a violation” (citation omitted)). “At the summary judgment stage,
retaliation claims brought pursuant to the FMLA are analyzed under the burden-shifting test set
forth in McDonnell Douglas.” Alexander v. The Bd. of Educ. of City of N.Y., 648 F. App’x 118,
121 (2d Cir. 2016); see Uttarwar v. Lazard Asset Mgmt. LLC, No. 24-1085, 2025 WL 704278, at
*3 (2d Cir. Mar. 5, 2025) (“Like [plaintiff’s] discrimination claims, his retaliation claims are
analyzed pursuant to the three-step burden-shifting framework set out in McDonnell Douglas.”
(citing Graziadio, 817 F.3d at 429)).
i. Plaintiff has established a prima facie case
Defendants argue that Plaintiff cannot establish a “viable retaliation claim under the
FMLA” because they “began to consider and plan for Plaintiff’s termination shortly after the
April 12, 2021, incident, as early as April 14, 2021, and Plaintiff did not initiate an FMLA request
until April 22, 2021.”21 (Defs.’ Mem. 10–11; Defs.’ Reply 9.) Defendants contend that Plaintiff
cannot “claim an inference of FMLA retaliatory intent based on the temporal proximity” between
her FMLA request and her termination on April 26, 2021 because discussion of her termination

“pre-dates her protected activity.” (Defs.’ Mem. 11; Defs.’ Reply 9.)
Plaintiff argues that “for the purposes of this motion” Defendants have “concede[d] that
Plaintiff exercised her FMLA rights, was qualified for her position, and suffered an adverse
employment action” and that there is sufficient evidence to permit a reasonable factfinder to infer
retaliatory intent because “the decision to fire Plaintiff was made after Plaintiff requested and was

21 Plaintiff alleged that “Defendants violated the FMLA by, inter alia, firing [her] while
she was on approved leave.” (Compl. ¶ 67.) Defendants argue that “[t]o the extent Plaintiff
asserts a claim for interference with the exercise of FMLA” based on this allegation, her
interference claim is “baseless” because the claim is “in essence an unsuccessful retaliation
claim” and “Defendants maintain that [Plaintiff] would have been terminated whether or not she
took FMLA leave.” (Defs.’ Mem. 11–13.) Plaintiff does not respond to Defendants’ arguments
and in her briefing repeatedly and solely refers to an FMLA retaliation claim. Therefore, to the
extent Plaintiff did intend to plead an FMLA interference claim, the Court deems the claim
abandoned. “[W]hen a counseled party moves for summary judgment, a partial response [by the
non-movant] arguing that summary judgment should be denied as to some claims while not
mentioning others may be deemed an abandonment of the unmentioned claims.” Moll v.
Telesector Res. Grp., Inc., 94 F.4th 218, 257 (2d Cir. 2024) (alterations in original) (quoting
Kovaco v. Rockbestos-Surprenant Cable Corp., 834 F.3d 128, 143 (2d Cir. 2016)); Colbert v.
Rio Tinto PLC, 824 F. App’x. 5, 11 (2d Cir. 2020) (“[D]istrict courts frequently deem claims
abandoned when counseled plaintiffs fail to provide arguments in opposition,” a practice that has
been “expressly approved . . . in the context of summary judgment motions[.]”); Dynamic
Concepts, Inc. v. Tri-State Surgical Supply & Equip. Ltd., 716 F. App’x 5, 14 (2d Cir. 2017)
(“Where a partial response to a motion [for summary judgment] is made — i.e., referencing
some claims or defenses but not others . . . in the case of a counseled party, a court may, when
appropriate, infer from a party’s partial opposition that relevant claims or defenses that are not
defended have been abandoned.” (alteration in original) (quoting Jackson v. Fed. Express, 766
F.3d 189, 197–98 (2d Cir. 2014))); see Kovaco v. Rockbestos-Surprenant Cable Corp., 834 F.3d
128, 143 (2d Cir. 2016) (finding that claims were deemed abandoned where the plaintiff “fail[ed]
to argue that they should survive [the defendant’s] motion for summary judgment” while arguing
against the motion as to his other claims); see also Ziming Shen v. City of New York, 725 F.
App’x 7, 17 (2d Cir. 2018) (affirming the district court’s finding that the plaintiff abandoned
claims that she did not address in her opposition to summary judgment).
approved for FMLA leave, and the temporal proximity, which is sufficient for a prima facie
showing, between Plaintiff’s FMLA approval and her termination creates, at the very least, a
genuine issue of fact regarding retaliatory intent.” (Pl.’s Opp’n 2, 22–23.) Plaintiff contends that
the “undisputed facts of the record” indicate that she “applied for FMLA leave shortly after her

medical episode on April 12, 2021 and was approved for FMLA leave before her termination”
and that she “was terminated on April 26, 2021, while still out on FMLA leave and able and
willing to return to work that day.” (Id. at 23; see Pl.’s Counter 56.1 ¶ 36.)
In order to make out a prima facie case of FMLA retaliation, a plaintiff must establish that
“(1) [s]he exercised rights protected under the FMLA; (2) [s]he was qualified for h[er] position;
(3) [s]he suffered an adverse employment action; and (4) the adverse employment action occurred
under circumstances giving rise to an inference of retaliatory intent.” Potenza v. City of New
York, 365 F.3d 165, 168 (2d Cir. 2004); see Carter, 2024 WL 2828470, at *4 (outlining
requirements for prima facie case of FLMA retaliation (quoting Graziadio, 817 F.3d at 429));
Arizmendi v. Rich Prods. Corp., No. 22-1971, 2023 WL 4246106, at *2 (2d Cir. June 29, 2023)

(citing Potenza, 365 F.3d at 167–68) (similar); Offor v. Mercy Med. Ctr., No. 21-2115, 2023 WL
2579040 (2d Cir. Mar. 21, 2023) (citing Potenza, 365 F.3d at 167–68) (same); Donnelly v.
Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134, 147 (2d Cir. 2012) (same). Instead of but-for
causation, however, “a ‘motivating factor’ causation standard applies to’ FMLA retaliation
claims.” Stanley v. Phelon, No. 23-731, 2024 WL 1453872, at *2 (2d Cir. Apr. 4, 2024) (quoting
Woods, 864 F.3d at 166)); C.C. v. Google, LLC, No. 24-CV-7811, 2025 WL 1938809, at *12
(S.D.N.Y. July 15, 2025) (“The FMLA’s causation standard is more lenient than the ADA’s,
requiring only that the protected activity be a ‘motivating factor’ in the adverse employment
action, not its ‘but for’ cause.” (quoting Woods, 864 F.3d at 166)).

In order to exercise rights protected under the FMLA, an employee must request FMLA
leave due to a qualifying illness or condition. See Wahl v. County of Suffolk, 466 F. App’x 17, 20
(2d Cir. 2012); Dighello v. Thurston Foods, Inc., 307 F. Supp. 3d 5, 14 (D. Conn. 2018); Hahn v.
Office & Prof’l Emps. Int’l Union, Loc. 153, No. 13-CV-946, 2016 WL 4120517, at *5 (S.D.N.Y.
July 22, 2016); Nally v. New York, No. 10-CV-1186, 2013 WL 2384252, at *16 (N.D.N.Y. May

30, 2013). “An employee shall provide sufficient information for an employer to reasonably
determine whether the FMLA may apply to the leave request.” 29 C.F.R. § 825.303(b); Coutard
v. Mun. Credit Union, 848 F.3d 102, 109 (2d Cir. 2017) (quoting 29 C.F.R. § 825.303(b));
Wasserman v. N.Y.C. Dep’t of Educ., No. 24-CV-1719, 2025 WL 1906978, at *4 (S.D.N.Y. July
10, 2025) (same). “[I]n the absence of a request for additional information, an employee has
provided sufficient notice to his employer if that notice indicates reasonably that the FMLA may
apply.” Coutard, 848 F.3d at 111; Haynes v. City of New York, No. 19-CV-11008, 2024 WL
5508199, at *20 (S.D.N.Y. Mar. 26, 2024) (“[T]he critical question is whether the information
imparted to the employer is sufficient to reasonably apprise it of the employee’s request to take
time off for a serious health condition.” (quoting Lievre v. JRM Constr. Mgmt., LLC, No. 17-CV-

4439, 2019 WL 4572777, at *14 (S.D.N.Y. Sept. 20, 2019))), report and recommendation
adopted, 2025 WL 946089 (S.D.N.Y. Mar. 27, 2025); cf. Carman-Nurse v. Metro. Dist. Comm’n,
No. 16-CV-1987, 2018 WL 3935025, at *12 (D. Conn. Aug. 15, 2018) (“[U]nder the FMLA, the
employer’s duties are triggered when the employee provides enough information to put the
employer on notice that the employee may be in need of FMLA leave.” (alteration in original)
(quoting Dighello, 307 F. Supp. 3d at 16)).
A causal connection in retaliation claims can be shown: “(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 348 (quoting Littlejohn, 795 F.3d at 319 (citation omitted));
see also Tafolla v. Heilig, 80 F.4th 111, 125 (2d Cir. 2023) (quoting Gordon v. N.Y.C. Bd. of
Educ., 232 F.3d 111, 117 (2d Cir. 2000)) (same); Stanley, 2024 WL 1453872, at *2 (“Proof of
causation can be established either (1) indirectly, by showing that the protected activity was

followed closely by discriminatory treatment, or through other circumstantial evidence or (2)
directly, through evidence of retaliatory animus directed against the plaintiff by the defendant”).
The plaintiff must provide “sufficient evidence of a causal nexus between [her] protected activity
and the alleged adverse employment actions [s]he suffered.” Clark v. Coca-Cola Beverages N.E.,
Inc., No. 20-4040, 2022 WL 92060, at *5 (2d Cir. Jan. 10, 2022) (quoting Fox v. Costco
Wholesale Corp., 918 F.3d 65, 73 (2d Cir. 2019)). “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 v. Allied Universal, No. 21-1995, 2022 WL 1418886, at *1 (2d Cir. May 5, 2022) (“[A]

plaintiff can indirectly establish a causal connection to support a . . . retaliation claim by showing
that the protected activity was closely followed in time by the adverse employment action.”
(alteration in original) (quoting Gorman-Bakos v. Cornell Co-Op Ext. of Schenectady Cnty., 252
F.3d 545, 554 (2d Cir. 2001))); id. (finding that a gap of two months between a protected activity
and adverse action was sufficient to plausibly allege causation); see also Mineo v. Town of
Hempstead, No. 22-CV-4092, 2024 WL 1077874, at *9 (E.D.N.Y. Feb. 23, 2024) (“Courts in this
Circuit tend to look at the tem

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11114219. Public record. Not legal advice.