Guerrero v. Albany Med Health System

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

DENISE GUERRERO,

Plaintiff,

vs. 1:24-cv-01344

(MAD/DJS)

ALBANY MED HEALTH SYSTEM,

Defendant.

____________________________________________

APPEARANCES: OF COUNSEL:

DENISE GUERRERO

6406 State Route 66

East Nassau, New York 12062

Plaintiff pro se

BOND, SCHOENECK & KING, PLLC ROBERT F. MANFREDO, ESQ.

22 Corporate Woods Blvd., Suite 501 NATALIE C. VOGEL, ESQ.

Albany, New York 12211

Attorneys for Defendant

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff commenced this action on November 5, 2024, after receiving a right-to-sue letter

from the Equal Employment Opportunity Commission ("EEOC") on August 29, 2024. See Dkt.

Nos. 1, 1-2. She alleges employment discrimination in violation of Title VII of the Civil Rights

Act of 1964 ("Title VII"), the Americans with Disabilities Act of 1990 ("ADA"), and the New

York Human Rights Law ("HRL"). See Dkt. No. 1. She also alleges intentional infliction of

emotional distress ("IIED") under New York law. See id. Plaintiff, who is proceeding pro se,

filed an amended complaint on February 10, 2025, to invoke the relation back doctrine with

respect to her IIED claim. Dkt. Nos. 16, 19. With the Court's permission, Plaintiff filed a second

amended complaint on February 25, 2025. Dkt. No. 25. In response, on March 11, 2025,

Defendant filed a motion to dismiss the second amended complaint. Dkt. Nos. 26, 26-1. Plaintiff

then requested leave to file a third amended complaint to remedy defects with her IIED claim,

which the Court denied. See Dkt. Nos. 29, 30. Instead, the Court instructed Plaintiff to file a

response to Defendant's motion to dismiss, and that the response should include "any facts she

believes are relevant to the timeliness of [her] IIED claim." Dkt. No. 30. Plaintiff filed a

memorandum in opposition to the motion to dismiss on March 31, 2025. Dkt. No. 32. Defendant

filed a reply on April 7, 2025, Dkt. No. 33, and Plaintiff filed a sur-reply on April 14, 2025, Dkt.

No. 35.

Currently before the Court is Defendant's motion to dismiss the second amended

complaint under Federal Rule of Civil Procedure 12. Dkt. No. 26-1. Defendant asserts that

Plaintiff failed to sufficiently allege claims of disability discrimination, failure to accommodate a

disability, race discrimination, retaliation, hostile work environment, and IIED. See id.

Additionally, Defendant alleges that Plaintiff's IIED claim is time-barred. See id.

II. BACKGROUND

At the time of the alleged discrimination, Plaintiff was employed by Defendant as an

administrative support associate ("ASA"). Dkt. No. 25 at 3. In January of 2023, Defendant

transferred Plaintiff from Valatie Medical Arts in Valatie, New York to Columbia Memorial

Health in Hudson, New York. Id. at 6. During an introductory meeting at her new work location,

Plaintiff told her supervisor that she has a traumatic brain injury. Id. According to Plaintiff, her

brain injury has negatively affected her vision, motor function, memory, and cognitive abilities.

Id. at 4, 7. She also suffers from post-traumatic stress disorder, anxiety, claustrophobia, and

lockjaw. Id. at 4. Plaintiff attests that stress exacerbates her symptoms associated with these

conditions. Id.

On January 31, 2023, Plaintiff alleges that she was the only ASA "on the back end of the

clinic" at Columbia Memorial. Id. at 7. Two other ASAs worked at the "front end." Id. Plaintiff

identifies herself as Filipina and the other two ASAs as Caucasian. Id. at 4, 7. That morning, she

had an altercation with her supervisor, Margaret Warner. Id. at 7-8. Plaintiff alleges that when

she asked Warner to help "room" patients for one of the physicians (who "has the same coloring"

as Plaintiff), Warner "yelled [at Plaintiff] with hatred" and insisted the physician could "room her

own patients." Id. According to Plaintiff, Warner roomed several patients for a white male

physician. Id. at 8.

That same day,1 Plaintiff alleges that Warner "lunged" at her, "hover[ed] over" Plaintiff

while she was seated at her desk, threw a piece of paper in Plaintiff's face, and yelled in Plaintiff's

face. Id. According to Plaintiff, Warner was angry with her for printing documents to a

physician's printer and "impl[ied] . . . she was stupid." Id. Plaintiff further alleges that later the

same afternoon, Warner "harassed, intimidated[,] and discriminated" against her by "using

[Plaintiff's] last name in a degrading tone of voice." Id. Plaintiff says she told Warner that she

has a "big presence" and that her behavior was "aggressive and rude," which at least one other

individual witnessed. Id. The following day, Warner published a Facebook post that seemingly

referred to the incident with Plaintiff. Id. at 9; Dkt. No. 25-1 at 38. The post received several

comments in response, including one that read, "Get it girl. Put em [sic] straight . . . ." Dkt. No.

1 In her second amended complaint, Plaintiff alleges that the altercation with Warner occurred on

January 31, 2024. Dkt. No. 25 at 8. However, investigative notes referenced in the second

amended complaint as Exhibit F show that the altercation took place on January 31, 2023. Dkt.

No. 25-1 at 36.

25 at 9; Dkt. No. 25-1 at 39. Plaintiff alleges that she felt "threatened, bullied[,] and subjected to

discrimination and harassment based on her race and disability." Dkt. No. 25 at 9.

On February 2, 2023, Warner issued Plaintiff a written warning for "unprofessional,

disrespectful," and disruptive behavior. Dkt. No. 25-1 at 41. Specifically, Warner stated that

Plaintiff had improperly printed documents to a physician's printer for the fourth time in two days,

and when asked to make sure she did not print to the physician's printer, Plaintiff "yell[ed] across

the office . . . after being asked to lower her voice." Id. Plaintiff contends that a technical issue

caused her to print to the wrong printer and that she did not yell. Id. at 42. She characterizes the

written warning as harassment. See Dkt. No. 25 at 9. On February 3, 2023,2 Plaintiff filed a

complaint with the human resources department. See id. at 10; Dkt. No. 25-1 at 46-47.

Plaintiff also alleges that in February 2023,3 Defendant treated her differently from at least

two white ASAs by denying her access to voicemail. See Dkt. No. 25 at 9. She contends that she

handled twice the workload of the other ASAs and could never leave her workstation because she

had no voicemail box. See id. The other ASAs, according to Plaintiff, had voicemail boxes and

could leave their desks. Id. However, in an email from Warner that is referenced in the second

amended complaint as Exhibit I, Warner mentions that numerous patients complained about

unreturned phone calls before Plaintiff's voicemail access was revoked. Dkt. No. 25-1 at 44.

2 In her second amended complaint, Plaintiff alleges that she filed the human resources complaint

on February 3, 2024. Dkt. No. 25 at 10. However, the human resources complaint was

incorporated by reference into the pleading as Exhibit J and is dated February 3, 2023. Dkt. No.

25-1 at 46.

3 In her second amended complaint, Plaintiff alleges that the denial of voicemail access occurred

in February 2024. Dkt. No. 25 at 9. However, an email from Warner dated February 3, 2023,

r eferenced in the second amended complaint as Exhibit I, suggests Plaintiff's voicemail access

was removed in February 2023. Dkt. No. 25-1 at 44.

On March 20, 2023, Plaintiff requested a disability accommodation. Dkt. No. 25 at 10.

Because of her diagnosed traumatic brain injury, post-traumatic stress disorder, and the associated

symptoms, Plaintiff wanted permission to work remotely. See id.; Dkt. No. 25-1 at 49-53. In her

accommodation request form, Plaintiff claimed that telework would reduce her stress and anxiety

from working in a disruptive and hostile environment. See Dkt. No. 25-1 at 49-53. Plaintiff

alleges that Defendant refused to engage in any interactive process regarding the requested

accommodation. Dkt. No. 25 at 11.

On March 21, 2023,4 Plaintiff alleges that two people from human resources "ambushed"

her, including "a large intimidating male." Id. The human resources employees purportedly told

Plaintiff that she could be terminated for misconduct because she clocked in while visiting human

resources and attending an in-house medical appointment. See id. Plaintiff insists that two white

employees conspired to fabricate the misconduct allegation, and that other employees have been

allowed to attend human resources and medical appointments while on the clock. See id. at 11-

12. She also contends that while numerous white employees were interviewed in connection with

the misconduct accusation, she was not. Id. at 11.

Within one week, Plaintiff was terminated. Id. at 12. According to Defendant, the

termination was for "[d]isruptive behavior and misappropriation of time." Dkt. No. 25-1 at 55.

Plaintiff characterizes Defendant's conduct as intentional infliction of emotional distress, partly

because the termination process was "prolong[ed]" through the weekend. Dkt. No. 25 at 12-13.

She also asserts that Defendant's provided reasons for the termination are pretextual. Id. at 12.

4 In her second amended complaint, Plaintiff asserts that this interaction occurred on March 21,

2024. Dkt. No. 25 at 11. However, she later states that she was terminated over the phone on

March 24, 2023. Id. at 12. Documents from Defendant's human resources department, which are

incorporated by reference into the second amended complaint, indicate that Plaintiff's final day of

service was March 27, 2023. Dkt. No. 25-1 at 55, 57.

III. DISCUSSION

A. Standard of Review

A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil

Procedure 12(b)(6) tests the "legal sufficiency" of the party's claim for relief. See Patane v.

Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation omitted). Although a court's review of a

motion to dismiss is generally limited to the facts presented in the pleading, courts may still

consider documents attached to the pleading as an exhibit or incorporated by reference into the

pleading. See Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v.

Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002)). A court may also consider documents

that are "integral" to the pleading, even if they are not physically attached or incorporated by

reference. See id. (quoting Chambers, 282 F.3d at 152-53). In ruling on a motion to dismiss, a

court must accept as true all well-pleaded facts in the pleading and draw all reasonable inferences

in the pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.

2007) (citation omitted). This presumption of truth, however, does not extend to legal

conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

To survive a motion to dismiss, a party need only plead "a short and plain statement of the

claim," see Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is

entitled to relief[,]'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). Under this standard,

the pleading's "[f]actual allegations must be enough to raise a right of relief above the speculative

level," id. at 555 (citation omitted), and present claims that are "plausible on [their] face," id. at

570. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than

a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (citation

omitted). A complaint that "pleads facts that are 'merely consistent with' a defendant's liability"

generally does not meet the pleading standard. See id. (quoting Twombly, 550 U.S. at 557).

However, complaints by pro se parties continue to be accorded more deference than those

filed by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). As such, Twombly and Iqbal

notwithstanding, this Court must continue to "construe [a pro se complaint] broadly, and interpret

[it] to raise the strongest arguments that [it] suggests." Weixel v. Bd. of Educ., 287 F.3d 138, 146

(2d Cir. 2002).

B. IIED

In its motion to dismiss, Defendant asserts that Plaintiff's IIED claim is barred by the

statute of limitations. Dkt. No. 26-1 at 24. Under New York law, the statute of limitations on an

IIED claim is one year. E.g., Arnold v. Town of Camillus, 662 F. Supp. 3d 245, 269 (N.D.N.Y.

2023); Gardner v. St. Bonaventure Univ., 171 F. Supp. 2d 118, 128 (W.D.N.Y. 2001) (citing

N.Y. C.P.L.R. § 215(3)). In other words, for an IIED claim to be timely, a plaintiff generally

must sue within one year of the challenged conduct. See Hammond v. New York, No. 1:24-CV-

0201, 2025 WL 1369275, *5 (N.D.N.Y. May 12, 2025). Exceptions may exist where the statute

of limitations is tolled, see id., or the relation back doctrine applies, see Fed. R. Civ. P. 15(c).

1. Relation Back

The relation back doctrine allows a new claim added by amendment to benefit from the

timeliness of the original pleading, even if the new claim would otherwise be time-barred. See

Fed. R. Civ. P. 15(c). An amendment to a complaint may relate back to the date of the original

complaint when it "asserts a claim or defense that arose out of the conduct, transaction, or

occurrence set out—or attempted to be set out—in the original pleading." Fed. R. Civ. P.

15(c)(1)(B). Alternatively, relation back is allowed where the law providing the statute of

limitations permits it. Fed. R. Civ. P. 15(c)(1)(A).

Here, Plaintiff alleges that Defendant subjected her to IIED while she was an employee,

particularly during the termination process. See Dkt. No. 25. She was terminated in March

2023, Dkt. No. 25-1 at 55, 57, and brought this action in November 2024, Dkt. No. 1, more than

a year and a half later. Also, as Defendant notes in its motion to dismiss, Plaintiff first asserted

her IIED claim in the original complaint. See Dkt. No. 26-1 at 25; Dkt. No. 1 at 2. Thus, the

IIED claim is not newly asserted in the amended complaint, so relation back is not available on

that ground. Furthermore, New York's Civil Practice Law and Rules ("CPLR"), which provide

the one-year statute of limitations, contain a rule allowing relation back to the date of the original

complaint, but not earlier. See N.Y. C.P.L.R. § 203(f) ("A claim asserted in an amended

pleading is deemed to have been interposed at the time the claims in the original pleading were

interposed . . . ."). Accordingly, even if relation back were proper here, Plaintiff's IIED claim

would still be untimely without a significant toll on the statute of limitations.

2. Tolling the Statute of Limitations

With respect to tolling the statute of limitations and potentially extending Plaintiff's time

to sue on that basis, this Court has recognized that "[t]he filing of an EEOC charge does not toll

the applicable statute of limitations for state law . . . claims that arise out of the same events as

[an] underlying Title VII claim." Blackburn v. Eli Lilly & Co., No. 99-CV-0722, 1999 WL

1125048, *5 (N.D.N.Y. Dec. 1, 1999). Thus, because Plaintiff's IIED claim arises from the same

series of events underlying her other claims, her wait for the EEOC's letter does not justify

extension of her time to sue.

In some situations, New York law recognizes disability as a ground to toll a statute of

limitations. See N.Y. C.P.L.R. § 208 (providing "disability because of . . . insanity" as a ground

for tolling a limitations period). The New York Court of Appeals has narrowly interpreted the

CPLR's "insanity" tolling provision and stated that it extends only to "those individuals who are

unable to protect their legal rights because of an all-over inability to function in society."

McCarthy v. Volkswagen of Am., Inc., 55 N.Y.2d 543, 548 (1982) (holding that the statute of

limitations could not be tolled in a personal injury action, despite the plaintiff's diagnosed "post

traumatic neurosis" after a serious car accident, because the plaintiff showed an ability to

comprehend his legal rights). Accordingly, although Plaintiff has alleged that she suffers from

multiple disabilities that profoundly affect her quality of life, she has not alleged insanity within

the meaning of the law. Despite her diagnosed conditions and their associated symptoms, she

pursued this action pro se. Also, at no point did Plaintiff allege an inability to manage her affairs

or understand her legal rights as a result of her diagnosed disabilities, nor did she allege that such

a condition delayed her filing of this action. Thus, the statute of limitations on Plaintiff's IIED

claim was not tolled, and the claim is dismissed as untimely.5

C. Disability Discrimination

5 The Court acknowledges that instead of allowing Plaintiff to amend her complaint again, it

invited Plaintiff to elaborate on the timeliness of her IIED claim via a response to the motion to

dismiss. See Dkt. No. 30. In her response, Plaintiff correctly asserts that this Court may exercise

supplemental jurisdiction over the IIED claim pursuant to 28 U.S.C. § 1367. See Dkt. No. 32 at

23. However, the existence of jurisdiction is distinct from the presence of a statute of limitations,

which dictates how much time a plaintiff has to sue on a cause of action in a court with

jurisdiction. Plaintiff invokes 28 U.S.C. § 1367(d), which "stop[s] the clock" on a state law claim

while it is pending in federal court. See Dkt. No. 32 at 24; Artis v. Dist. of Columbia, 583 U.S.

71, 74-75 (2018). If the federal court declines supplemental jurisdiction and dismisses the state

law claim, the § 1367(d) toll may allow the plaintiff to refile the claim in state court. See Artis,

583 U.S. at 74. The toll does not extend a plaintiff's time to file her claim for the first time in

federal court. See id. at 74-75. Accordingly, the IIED claim is dismissed for untimeliness, not for

lack of jurisdiction.

To plead a prima facie claim of disability discrimination, a plaintiff must allege that: "(1)

[her] employer is subject to the ADA; (2) [she] was disabled within the meaning of the ADA; (3)

[she] was otherwise qualified to perform the essential functions of [her] job, with or without

reasonable accommodation; and (4) [she] suffered [an] adverse employment action because of

[her] disability." Dominelli v. N. Country Acad., No. 1:16-cv-00203, 2016 WL 6833992, *3

(N.D.N.Y. Nov. 18, 2016) (citing Hammond v. Keyspan Energy, 349 Fed. Appx. 629, 630 (2d

Cir. 2009)). With regard to Plaintiff's disability discrimination claim under the HRL, "New York

State disability discrimination claims are governed by the same legal standards as federal ADA

claims." Rodal v. Anesthesia Grp. of Onondaga, P.C., 369 F.3d 113, 117 n.1 (2d Cir. 2004); see

also Brouillard v. Sunrun, Inc., 219 A.D.3d 560, 561-62 (2d Dep't 2023) (explaining the facts a

plaintiff must allege in an HRL disability discrimination claim to survive a motion to dismiss).

1. Employer Subject to the ADA

On the first element, an employer is generally subject to the ADA if it has fifteen or more

employees. See 42 U.S.C. §§ 12111(4)-(5). Plaintiff alleges in her second amended complaint

that Defendant employs more than 15,000 people. See Dkt. No. 25 at 3. Defendant does not

dispute that its workforce surpasses the ADA minimum. Thus, the first element is adequately

pled at this stage.

2. Employee's Disability

On the second element, the ADA defines "disability" as "a physical or mental impairment

that substantially limits one or more major life activities," "a record of such impairment," or

"being regarded as having such an impairment." 42 U.S.C. § 12102(1). Plaintiff alleges that she

suffers from multiple diagnosed conditions, including traumatic brain injury and post-traumatic

stress disorder. See Dkt. No. 25 at 4. The second amended complaint states that Plaintiff

experiences cognitive delays; difficulty with concentration, adaptation, memory, and motor

function; anxiety; vision impairment; lockjaw; and claustrophobia. See id. Construing Plaintiff's

pleading liberally due to her pro se status, the Court reads the second amended complaint as

alleging that Plaintiff's disabilities substantially limit at least one major life activity, and that she

is disabled within the meaning of the ADA. See Phelan v. Thomas, 439 Fed. Appx. 48, 50 (2d

Cir. 2011) (holding that a pro se plaintiff adequately pled his status as an ADA-qualified

individual by alleging diagnoses of traumatic brain injury, neurological impairment, and

attention deficit disorder). Accordingly, Plaintiff has adequately pled the second element.

3. Employee's Qualifications

On the third element, the Second Circuit has stated that "an individual is otherwise

qualified for a job if she is able to perform the essential functions of that job, either with or

without reasonable accommodation." Shannon v. N.Y.C. Transit Auth., 332 F.3d 95, 99-100 (2d

Cir. 2003) (quoting Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 135 (2d Cir. 1995)).

Importantly, "[a] reasonable accommodation can never involve the elimination of an essential

function of a job." Id. at 100 (citing Gilbert v. Frank, 949 F.2d 637, 642 (2d Cir. 1991)).

To this end, Plaintiff's second amended complaint does not address her job qualifications

in much detail. The pleading states in conclusory fashion that Plaintiff was "highly qualified"

and exhibited "poise[] and professional[ism] in all communication to support patients and

providers," but does not elaborate any further. Dkt. No. 25 at 3. Construed liberally, the

pleading seems to specify Plaintiff's job duties as assisting patients upon arrival, confirming their

demographic information, and "coordinating complicated doctors' orders and prescribed testing .

. . ." Id. at 9. Although Plaintiff's requested work-from-home accommodation would arguably

complicate Plaintiff's ability to process patients and potentially eliminate an essential job

function, see id. at 10; Dkt. No. 26-1 at 17, a very generous reading of her second amended

complaint could suggest she was qualified to perform her job functions without the

accommodation.

4. Adverse Employment Action Because of Employee's Disability

On the fourth element, Plaintiff largely fails to satisfy the pleading standard. Although

her second amended complaint recites Defendant's alleged adverse employment actions against

her, most of those actions do not rise to the level of adverse employment actions within the

meaning of the law, and she fails to sufficiently allege that discriminatory animus caused

Defendant's actions.

"To qualify as an adverse employment action, the employer's action toward the plaintiff

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

N.Y.C. Dep't of Educ., 804 F.3d 231, 235 (2d Cir. 2015) (quoting Sanders v. N.Y.C. Hum. Res.

Admin., 361 F.3d 749, 755 (2d Cir. 2004)). The Second Circuit does not recognize a bright-line

rule as to what conduct rises to the level of an adverse employment action, but as a general

matter, the action must be "more disruptive than a mere inconvenience or an alteration of job

responsibilities." Id. (citing Sanders, 361 F.3d at 755).

In its motion to dismiss, Defendant argues that most of its actions do not rise to the level

of adverse employment actions, including Plaintiff's lack of voicemail access, Warner's yelling at

Plaintiff, and the official corrective action taken against Plaintiff. See Dkt. No. 26-1 at 13.

However, as Defendant concedes, termination is regarded as an adverse employment action. See

Vale v. Great Neck Water Pollution Control Dist., 80 F. Supp. 3d 426, 434 (E.D.N.Y. 2015)

(citing Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004)). The Second Circuit has also

recognized certain demotions, loss of benefits, and decreased responsibilities as adverse

employment actions. See Feingold, 366 F.3d at 152. This Court agrees that Defendant's actions,

other than the termination of Plaintiff, likely do not rise to the level of adverse employment

actions because they did not alter the terms or conditions of her employment.

However, even if all of Defendant's alleged conduct constituted adverse employment

actions, the ADA still requires Plaintiff to prove a causal link between the adverse employment

actions and Defendant's alleged discriminatory animus. The Second Circuit has specified that

for ADA claims, a plaintiff must prove but-for causation. See Natofsky v. City of New York, 921

F.3d 337, 348 (2d Cir. 2019). In other words, the plaintiff must prove that absent the defendant's

discriminatory animus, the adverse action would not have occurred. By extension, at the

pleading stage, Plaintiff must allege sufficient facts to support a finding of but-for causation. See

Sharikov v. Philips Med. Sys. MR, Inc., 659 F. Supp. 3d 264, 277 (N.D.N.Y. 2023) (quoting Doe

v. Columbia Univ., 831 F.3d 46, 56 (2d Cir. 2016)) (finding that the plaintiff did not state a

viable claim of disability discrimination because the alleged facts "[could not] support a

plausible inference that [the p]laintiff would not have been terminated or subjected to an adverse

employment action but for a disability").

In her second amended complaint, Plaintiff details Defendant's alleged wrongdoings and

states repeatedly that Defendant mistreated her because of her disability, but she does not plead

other facts to support that causal connection. See, e.g., Dkt. No. 25 at 4 ("Plaintiff suffered

adverse employment actions . . . because of her disability"), 9 ("Plaintiff was threatened,

bullied[,] and subjected to discrimination and harassment based on her race and disability").

Despite the Court's best efforts to construe the pleading liberally, there are simply not enough

facts to construe. As such, Plaintiff's disability discrimination claim is dismissed.

D. Failure to Accommodate Plaintiff's Disability

To plead a prima facie claim of failure to accommodate a disability under the ADA, a

plaintiff must allege that: (1) she is disabled within the meaning of the statute; (2) the employer

had notice of the disability; (3) the employee "could perform the essential functions of the job

with reasonable accommodation"; and (4) the employer "refused to make such

accommodations." Medlin v. Rome Strip Steel Co., 294 F. Supp. 2d 279, 287 (N.D.N.Y. 2003).

The same elements are required for a failure to accommodate claim under the HRL. See Berger

v. N.Y.C. Police Dep't, 304 F. Supp. 3d 360, 368-69 (S.D.N.Y. 2018). As discussed previously,

Plaintiff established that she is disabled within the meaning of the ADA. This portion of the

Court's analysis discusses the remaining elements of a failure to accommodate claim.

1. Employer's Notice of Employee's Disability

The ADA's "notice requirement is rooted in common sense." Felix v. N.Y.C. Transit

Auth., 154 F. Supp. 2d 640, 657 (S.D.N.Y. 2001). An employee may not sue her employer for

failing to accommodate a disability that was unknown to the employer. See id. "Obviously, an

employer who acts or fails to act without knowledge of a disability cannot be said to have

discriminated based on that disability." Id. Accordingly, Plaintiff's second amended complaint

may survive a motion to dismiss if it alleges sufficient facts to support an inference that

Defendant knew about her disability.

Here, Plaintiff's second amended complaint states that she "candidly discussed" her

traumatic brain injury with Warner during an introductory meeting shortly after her transfer.

Dkt. No. 25 at 6. The pleading also mentions that Plaintiff gave Defendant a doctor's note

detailing her anxiety, traumatic brain injury, and post-traumatic stress disorder. See id. at 10.

However, this doctor's note accompanied her accommodations request, and it is unclear whether

she had ever provided documentation of her disabilities at an earlier time. See id.; Dkt. No. 25-1

at 50-53. Notwithstanding, Defendant's motion does not dispute whether it knew about

Plaintiff's disabilities. Construed liberally, Plaintiff's second amended complaint sufficiently

alleges that Defendant had knowledge of her disabilities.

2. Performance of Essential Job Functions with a Reasonable Accommodation

Conversely, the second amended complaint does not sufficiently allege that Plaintiff could

have performed her essential job functions with a reasonable accommodation. The Second

Circuit uses a multi-factor analysis to determine a job's essential functions, including "the

employer's judgment, written job descriptions, the amount of time spent on the job performing

the function, the mention of the function in a collective bargaining agreement, the work

experience of past employees in the position, and the work experience of current employees in

similar positions." McMillan v. City of New York, 711 F.3d 120, 126 (2d Cir. 2013) (citing Stone

v. City of Mt. Vernon, 118 F.3d 92, 97 (2d Cir. 1997)). Ultimately, an essential job function must

be "fundamental" to the job, and not "merely 'marginal.'" Stone, 118 F.3d at 97 (quoting 29

C.F.R. § 1630.2(n)(1)).

As discussed previously, Plaintiff does not describe her job functions in detail. The

second amended complaint suggests that her essential duties included greeting patients upon

arrival to the clinic, confirming patients' demographic information, and coordinating physician

orders and prescribed testing. See Dkt. No. 25 at 9. Without describing her essential tasks,

Plaintiff cannot adequately plead that she could perform those tasks with a reasonable

accommodation. Beyond the facts alleged in the second amended complaint, the Court will not

speculate about the essential functions of Plaintiff's position.

Because Plaintiff fails to sufficiently plead her ability to perform the essential functions of

her job with a reasonable accommodation, her claim cannot survive a motion to dismiss. In this

context, dismissal is required, whether or not the Defendant refused to provide Plaintiff's

requested accommodations. Accordingly, the failure to accommodate claim is dismissed.

E. Race Discrimination

To state a prima facie claim of discrimination under Title VII, including on the basis of

race, Plaintiff must allege that: (1) she is a member of a protected class; (2) she was qualified for

the position; (3) she was subjected to an adverse employment action; and (4) "the adverse

employment action occurred under circumstances giving rise to an inference of unlawful

discrimination." Garvey v. Wegmans, No. 5:17-CV-01257, 2018 WL 5983374, *4 (N.D.N.Y.

Nov. 14, 2018) (quoting Lewis v. Erie Cnty. Med. Ctr. Corp., 907 F. Supp. 2d 336, 346

(W.D.N.Y. 2012)). The HRL has the same requirements at the pleading stage. See Castro v. City

Univ. of N.Y., 238 A.D.3d 1106, 1107 (2d Dep't 2025) (articulating the same requirements for a

claim of discrimination under the HRL). Thus, for both her claims, Plaintiff must state sufficient

facts to support an inference that Defendant discriminated against her because of her race.

1. Protected Class Membership

The text of Title VII explicitly identifies race as a protected class. 42 U.S.C. § 2000e-

2(a)(1). This means that, no matter an employee's race, an employer may not subject an employee

to termination or other adverse employment actions because of that person's race. See McDonald

v. Santa Fe Trail Transp. Co., 427 U.S. 273, 278-79 (1976). In her second amended complaint,

Plaintiff asserts protected class membership by identifying herself as Filipina, which she alleges

motivated Defendant's conduct. See Dkt. No. 25 at 4. Thus, the pleading standard is satisfied

with respect to this element.

2. Employee's Qualifications for the Position

To prove that she was qualified for her position within the meaning of Title VII, Plaintiff

must allege facts that show she "possesse[d] the basic skills . . . necessary for the position . . . ."

Wooten v. Reconstruction Home, Inc., No. 5:02-CV-01278, 2005 WL 1502149, *6 (N.D.N.Y.

June 24, 2005). As previously discussed in the disability context, Plaintiff's second amended

complaint does not provide much information on her job duties or qualifications. The pleading

makes conclusory statements that Plaintiff was "highly qualified" and exhibited "poise[] and

professional[ism] in all communication to support patients and providers," but does not allege

facts exemplifying her qualifications. Dkt. No. 25 at 3. However, in its motion to dismiss,

Defendant does not dispute Plaintiff's qualifications. Accordingly, the Court assumes arguendo

that Plaintiff was qualified for the position and analyzes the two remaining elements: adverse

employment action and inference of unlawful discrimination.

3. Adverse Employment Action

As discussed previously, Plaintiff's termination constituted an adverse employment action

within the meaning of the applicable law. The rest of Defendant's alleged misconduct does not

rise to this level, although it may be construed as evidence possibly supporting discriminatory

animus behind Plaintiff's termination.

4. Inference of Unlawful Discrimination

Unlike claims arising under the ADA, Title VII discrimination claims do not require a

showing of but-for causation. Rather, a plaintiff's claim can survive if she pleads facts suggesting

that her membership in a protected class was simply a motivating factor behind the alleged

discriminatory conduct. See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85-86 (2d

Cir. 2015); 42 U.S.C. § 2000e-2(m) (clarifying that the alleged motivating factor need not be the

only motivating factor). A plaintiff may prove discrimination through direct evidence of the

employer's intent to discriminate, or indirectly "by identifying 'bits and pieces of evidence' that

together give rise to an inference of discrimination." Vega, 801 F.3d at 87 (citations omitted).

Accordingly, the Second Circuit recognizes that "[a]t the pleadings stage, . . . a plaintiff must

allege that the employer took adverse action against her at least in part for a discriminatory

reason, and she may do so by alleging facts that directly show discrimination or facts that . . .

giv[e] rise to a plausible inference of discrimination." Id.

Importantly, however, "hostility alone is not actionable." Lugo v. Le Pain Quotidien, No.

13-CV-6450, 2015 WL 1808558, *4 (S.D.N.Y. Apr. 13, 2015). When determining whether an

individual's remarks give rise to an inference of discrimination, courts examine several factors.

These factors include who made the remark, whether that person had decision-making power, the

remark's temporal proximity to the adverse employment decision, whether a reasonable person

would interpret the remark as discriminatory, and whether the remark was related to the process

of making the employment decision. See Wooten, 2005 WL 1502149, at *11; see also Abboud v.

Cnty. of Onondaga, 341 F. Supp. 3d 164, 180-81 (N.D.N.Y. 2018) (citing Clark Cnty. Sch. Dist.

v. Breeden, 532 U.S. 268, 273-74 (2001)) (explaining that temporal proximity must be "very

close," and the Supreme Court has recognized a period of four months as too long to support an

inference of discrimination). Furthermore, the Second Circuit has recognized that an "employer's

criticism of the plaintiff's performance in ethnically degrading terms," "invidious comments about

others in the employee's protected group," and "more favorable treatment of employees not in the

protected group" can contribute to an inference of discriminatory intent. See Chambers v. TRM

Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).

Construing Plaintiff's second amended complaint liberally, the Court identifies the

following as Plaintiff's proffered indirect evidence of Defendant's discriminatory intent: (1)

Warner's "yell[ing] with hatred" at Plaintiff that a clinic doctor, who "has the same coloring as

Plaintiff," could "room her own patients"; (2) Warner's throwing a paper in Plaintiff's face and

yelling at her to stop printing documents to a physician's printer; (3) Warner's pronunciation of

Plaintiff's last name in a manner that Plaintiff found degrading and racially offensive; (4)

Warner's Facebook post appearing to reference an altercation with Plaintiff, which garnered

comments in support of Warner and made Plaintiff feel threatened; (5) removal of Plaintiff's

voicemail box while Caucasian ASAs retained their voicemail boxes; (6) Defendant's formal

corrective action against Plaintiff for alleged misconduct; (7) Defendant's singling out Plaintiff

and blaming her for technical issues with a printer, while white employees were not blamed; (8)

Defendant's failure to interview Plaintiff about her own misconduct accusation, while white

employees were interviewed; and (9) Defendant's allowing white employees to attend in-house

doctor's appointments and visit human resources while on the clock, but punishing Plaintiff for

doing so. See Dkt. No. 25 at 7-13.

For many of these actions, Plaintiff does not allege facts supporting a nexus between the

conduct and discriminatory animus on Defendant's part. For example, although Warner's yelling

at Plaintiff and throwing a paper in her face may have been intimidating, rude, or otherwise

inappropriate, Plaintiff does not set forth any facts connecting this treatment to her race or her

ultimate discharge. The Court reaches a similar conclusion for the Facebook post. Although it

does appear to reference the tense exchange between Plaintiff and Warner, the post does not refer

to Plaintiff's race or have any other apparent connection to her termination. Furthermore,

although Warner allegedly yelled at Plaintiff about a physician with "the same coloring" as

Plaintiff, the second amended complaint does not contain factual allegations linking that instance

to racial animus or Plaintiff's discharge. Similarly, Plaintiff has not alleged any facts suggesting

that the official corrective action—which Defendant contends was in response to an incident

where Plaintiff yelled across the office and contains no mention of her race—can serve as

evidence of discriminatory animus that motivated her discharge.

Warner's offensive pronunciation of Plaintiff's name is slightly less clear. This Court has

recognized that even blatantly racist comments must still share a nexus with the adverse

employment action giving rise to the complaint. See Abboud, 341 F. Supp. 3d at 180-81 (finding

no inference of discriminatory intent when an employee's superior, who was not the ultimate

decision-maker behind a written reprimand of the employee, reportedly made a remark about

"you fucking Arabs blowing up shit" more than four months before the reprimand). Warner's

offensive pronunciation of Plaintiff's name occurred on January 31, 2023, less than two months

before her discharge. Dkt. No. 25 at 8. Thus, its temporal proximity weighs in favor of an

inference of discrimination. However, while Plaintiff alleges that Warner addressed her in a

racially discriminatory manner, see id., other courts in this circuit have stated that simply making

stray remarks in a certain accent is not tantamount to racial discrimination, see Bellom v. Neiman

Marcus Grp., Inc., 975 F. Supp. 527, 532 (S.D.N.Y. 1997) (holding that mocking a person's

accent "on one or two occasions" did not support a discrimination claim); Boza-Meade v.

Rochester Hous. Auth., 170 F. Supp. 3d 535, 547 (W.D.N.Y. 2016) ("Vague allegations that co-

workers made fun of [the plaintiff's] accent . . . , with no additional supporting factual information

as to the context and frequency of this conduct, . . . do not plausibly allege conduct that is

sufficiently severe so as to alter the terms and conditions of [the p]laintiff's employment"). While

this Court acknowledges that Warner's pronunciation of Plaintiff's name was offensive to

Plaintiff, this conduct, as pled, does not support an inference of discriminatory termination based

on race.

The rest of Defendant's alleged misconduct involves disparate treatment of Plaintiff

relative to her white colleagues. When drawing comparisons to show disparate treatment, a

plaintiff "must show that she was treated differently from [her] 'similarly situated' [colleagues]."

Shumway v. United Parcel Serv., 118 F.3d 60, 64 (2d Cir. 1997). "To be 'similarly situated,' the

individuals with whom [the plaintiff] attempts to compare herself must be similarly situated in all

material respects." Id. For example, in Shumway v. United Parcel Service, the Second Circuit

held that a female employee accused of violating a no-fraternization policy did not meet this

standard because she did not allege any facts showing that male employees were treated

differently under the policy. See id. Importantly, the Second Circuit emphasized that the plaintiff

alleged no facts to show that the male comparators engaged in the same misconduct of which she

was accused. Id. Under the Shumway standard, "a plaintiff must show that her co-employees

were subject to the same performance evaluation and discipline standards[,]" and that the

comparator employees "engaged in comparable conduct." Graham v. Long Island R.R., 230 F.3d

34, 40 (2d Cir. 2000); see also Castro, 238 A.D.3d at 1107-08 ("When plaintiffs seek to draw

inferences of discrimination by showing that they were similarly situated in all material respects

to the individuals to whom they compare themselves, their circumstances need not be identical,

but there should be a reasonably close resemblance of facts and circumstances.") (quoting Diaz v.

Minhas Constr. Corp., 188 A.D.3d 812, 814 (2d Dep't 2020)).

Plaintiff's second amended complaint describes several instances where Defendant

allegedly treated her differently from her white colleagues. For example, Plaintiff contends that

the Caucasian ASAs retained voicemail access while Plaintiff did not; Plaintiff was blamed for

issues with her printer, but her white colleagues did not receive blame for problems with their

printers; Defendant did not interview Plaintiff about her misconduct accusation, but did interview

some of her Caucasian colleagues; and Plaintiff was penalized for attending in-house doctor's

appointments and human resources visits while on the clock, which white colleagues have been

allowed to do without penalty. See Dkt. No. 25 at 9-13. Although Plaintiff alleges numerous

instances of disparate treatment, her second amended complaint does not contain facts that satisfy

Shumway. For instance, rather than pointing to specific examples of white employees attending

medical appointments while on the clock, Plaintiff broadly alleges that it has occurred and that no

punishment followed. See id. at 11-13. With the stated facts, it is impossible for the Court to

infer whether those employees were situated similarly to Plaintiff. Likewise, for the other

allegations, Plaintiff does not plead any facts supporting an inference that the referenced

Caucasian colleagues were situated similarly to her (such as, per Shumway, by engaging in the

same conduct or being subject to the same discipline standards). Although the second amended

complaint alludes to these similarities, they are simply stated in conclusory fashion, which does

not satisfy the pleading standard.

The only potential exception is the revocation of Plaintiff's voicemail access, which the

other two ASAs retained. However, Plaintiff's second amended complaint incorporates by

reference an email from Warner that discusses numerous patient complaints of unreturned phone

calls. See Dkt. No. 25-1 at 44. Thus, to allege disparate treatment and show that her colleagues

are similarly situated, Plaintiff must plead facts showing that the other two ASAs retained phone

access after failing to return phone calls from patients. The complaint does not offer any such

facts. Accordingly, Plaintiff's race discrimination claim is dismissed.

F. Retaliation

The standards for retaliation claims are "substantially similar" under Title VII and the

ADA. Mitchell v. Planned Parenthood of Greater N.Y., Inc., 745 F. Supp. 3d 68, 96 (S.D.N.Y.

2024) (quoting Sharikov, 103 F.4th at 170). Both laws require Plaintiff to allege the following:

(1) "she participated in an activity protected by Title VII" or the ADA; (2) the employer knew

about Plaintiff's participation; (3) "the employer 'subjected her to a materially adverse' action

thereafter"; and (4) "a 'causal connection' existed between the 'protected activity' and the adverse

action." Moll v. Telesector Res. Grp., Inc., 94 F.4th 218, 239 (2d Cir. 2024); Tafolla v. Heilig, 80

F.4th 111, 125 (2d Cir. 2023). The same standard applies under the HRL. See Tafolla, 80 F.4th

at 125.

1. Participation in Protected Activity

In the retaliation context, "[p]rotected activity includes opposing an unlawful employment

practice or otherwise making a charge, testifying, assisting, or participating 'in any manner in an

investigation, proceeding, or hearing.'" Banks v. Gen. Motors, LLC, 81 F.4th 242, 275 (2d Cir.

2023) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006)). Importantly,

a retaliation plaintiff does not need to show that the employer's behavior actually violated the law.

See Cooper v. N.Y. State Dep't of Lab., 819 F.3d 678, 680-81 (2d Cir. 2016). Rather, Plaintiff

must show a "good faith, reasonable belief" that her employer's conduct was an unlawful

employment practice. Id. (citations omitted).

To that end, although "[c]omplaints about conduct clearly prohibited by the statute need

not mention discrimination or use particular language," a plaintiff must allege more than just

"ambiguous complaints that do not make the employer aware of alleged discriminatory

misconduct . . . ." Bader v. Special Metals Corp., 985 F. Supp. 2d 291, 318 (N.D.N.Y. 2013). In

Bader v. Special Metals Corp., this Court held that the plaintiff engaged in protected activity by

complaining "that four male supervisors had 'intentionally been making her work environment

unbearable' and that [she] had been 'threatened various times' with suspension and termination[,]"

even though she did not "explicitly invoke 'discrimination' . . . ." Id. at 321-22. The Court also

found that complaints of repeated screaming and yelling were protected activity for purposes of a

retaliation claim, partly because the circumstances gave the defendant employer adequate notice

that the plaintiff was premising her retaliation claim on the complained-of conduct. Id. at 319-20.

As summed up by another court in this circuit, "a [p]laintiff's complaint constitutes a protected

activity so long as she articulated the substance of her complaint in such a way that her employer

would 'reasonably underst[and]' that it was about unlawful discrimination against her." Moore v.

Hadestown Broadway Ltd. Liab. Co., 722 F. Supp. 3d 229, 255 (S.D.N.Y. 2024) (citation

omitted).

In its motion to dismiss, Defendant argues that Plaintiff did not engage in a protected

activity by way of her February 3, 2023 human resources complaint, because that complaint does

not mention harassment or discrimination. Dkt. No. 26-1 at 20. The human resources complaint

does mention that Warner yelled at Plaintiff and behaved aggressively on multiple occasions,

including in front of patients. See Dkt. No. 25-1 at 46-47. However, as Defendant points out,

nothing in the human resources complaint appears to put Defendant on notice of allegations of

unlawful discrimination. While the Court does not question Plaintiff's good-faith belief that

Defendant discriminated against her, and although the human resources complaint describes

Warner's allegedly inappropriate and unprofessional behavior toward Plaintiff, that complaint

does not provide sufficient detail to show Defendant that the complaint concerned unlawful

discrimination. Had the human resources complaint discussed Plaintiff's race or disability in any

capacity, Defendant might have been on adequate notice. Thus, the Court holds that Plaintiff did

not engage in a protected activity by filing a complaint with human resources.

However, the Court reaches a different conclusion on Plaintiff's request for

accommodations, which Defendant challenges as "not a protected activity as a matter of law."

Dkt. No. 26-1 at 21. Defendant cites multiple New York state cases for the proposition that the

HRL does not recognize accommodation requests as a protected activity in retaliation contexts.

This is a correct statement of New York law, and by extension, Plaintiff's accommodation request

cannot support her retaliation claim under the HRL. See Witchard v. Montefiore Med. Ctr., 103

A.D.3d 596, 596 (1st Dep't 2013); see also Graham v. N.Y. State Off. of Mental Health, 154

A.D.3d 1214, 1221 (3d Dep't 2017) (citing Witchard, 103 A.D.3d at 596) (declining to decide

whether the plaintiff's request for reasonable accommodations constituted a protected activity, but

assuming based on existing New York judicial precedent that it would not). Plaintiff's retaliation

claim under the HRL is therefore dismissed.

In a critical distinction not mentioned in Defendant's motion, federal law differs and

produces a different outcome for Plaintiff's retaliation claims under the ADA, at least with regard

to this element. This Court has previously recognized that a request for disability

accommodations is a protected activity for purposes of a retaliation claim under the ADA. See

Sears-Barnett v. Syracuse Cmty. Health Ctr., Inc., 531 F. Supp. 3d 522, 544 (N.D.N.Y. 2021);

Muller v. Costello, No. 94-CV-842, 1996 WL 191977, *6 (N.D.N.Y. Apr. 16, 1996); see also

Conley v. United Parcel Serv., 88 F. Supp. 2d 16, 20 (E.D.N.Y. 2000). Thus, by alleging that she

sought reasonable accommodations, Plaintiff has met the pleading standard for the first prong of

her ADA retaliation claim. Dkt. No. 25 at 10; Dkt. No. 25-1 at 49-53. However, Plaintiff's Title

VII claim is subject to dismissal because the requested accommodation was not protected by Title

VII (unlike, for example, an accommodation for a religious practice or belief).

2. Employer's Knowledge of Employee's Participation

To satisfy the pleading standard with respect to the second element of her surviving

retaliation claim, Plaintiff must allege that her employer knew about her request for reasonable

accommodations. Her second amended complaint states that she filed the request personally at

Defendant's human resources office in Albany, in compliance with Defendant's policy. See Dkt.

No. 25 at 10. Defendant does not contest whether it knew of Plaintiff's accommodations request.

Thus, the Court considers this element sufficiently pled.

3. Materially Adverse Action

An action is considered "materially adverse" if it "could well dissuade a reasonable worker

from making or supporting a charge of discrimination." Moll, 94 F.4th at 239 (quoting

Burlington, 548 U.S. at 57). An objective standard, based on the perceptions of a reasonable

employee, governs whether an employer's action is materially adverse. See id. (quoting

Burlington, 548 U.S. at 69); Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 568

(2d Cir. 2011). Additionally, courts must evaluate alleged retaliatory acts "both separately and in

the aggregate, as even trivial acts may take on greater significance when they are viewed as part

of a larger course of conduct." Tepperwien, 663 F.3d at 568.

Plaintiff filed her disability accommodations request on March 20, 2023. Dkt. No. 25 at

10. Thus, any materially adverse action in retaliation for that request must have happened after

that date. Of the alleged unlawful actions previously discussed, only Plaintiff's termination,

which occurred on March 27, 2023, came after the accommodations request. See Dkt. No. 25-1 at

55. Also, as previously mentioned, terminations are regarded as materially adverse employment

actions. See Vale, 80 F. Supp. 3d at 434 (citing Feingold, 366 F.3d at 152). This conclusion

makes sense, as a sudden job loss could be expected to dissuade a reasonable employee from

engaging in certain protected activities. Accordingly, the Court finds that Plaintiff has

sufficiently pled this element of her ADA retaliation claim.

4. Causal Connection

To fully satisfy the pleading standard on her surviving retaliation claim, Plaintiff must

allege sufficient facts showing that Defendant's materially adverse employment action occurred

because of her participation in a protected activity. Importantly, a retaliation plaintiff must show

but-for causation. Banks, 81 F.4th at 275. In other words, Plaintiff's pleading must be sufficiently

descriptive to support an inference that Defendant fired her because she requested a disability

accommodation, and that her discharge would not have happened absent the accommodations

request. A plaintiff can meet this burden by "showing that the protected activity was followed

closely by discriminatory treatment, or through other circumstantial evidence." Bader, 985 F.

Supp. 2d at 324 (quoting Hicks v. Baines, 593 F.3d 159, 170 (2d Cir. 2010)). "In general, a

temporal gap of less than two months is sufficient to give rise to an inference of causation." Id. at

324-25 (finding a five-day gap to be "strong evidence of causation"); see also Reed v. A.W.

Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996) (finding that a twelve-day gap supports an

inference of causation).

The temporal closeness between Plaintiff's accommodations request and her termination

weighs in her favor. Plaintiff's second amended complaint alleges that her discharge occurred

within a week after she submitted her request—which is far less than two months. See Dkt. No.

25 at 10-13. However, as Defendant points out in its motion to dismiss, the employer's proffered

reasons for terminating Plaintiff are misconduct and time theft. Dkt. No. 26-1 at 22. Plaintiff also

acknowledges these purported motives in her second amended complaint. Dkt. No. 25 at 11-13.

Defendant could well have based Plaintiff's discharge solely on that alleged misconduct and time

theft, but the temporal closeness between her accommodations request and her discharge falls

squarely within the range that this Court has recognized as heavily indicative of retaliatory intent.

At this juncture, the Court finds that Plaintiff has satisfied the pleading standard with

respect to her ADA retaliation claim.

G. Hostile Work Environment

To allege a hostile work environment under Title VII, Plaintiff must show that: (1) the

hostility was objectively severe or pervasive; (2) Defendant's conduct created an environment that

Plaintiff subjectively perceived as hostile or abusive; and (3) Defendant's conduct created a

hostile environment because of Plaintiff's race or disability. See Patane, 508 F.3d at 113. Hostile

work environment claims under the ADA are subject to the same framework. See Sharikov, 659

F. Supp. 3d at 287. "This test has objective and subjective elements: the misconduct shown must

be 'severe or pervasive enough to create an objectively hostile or abusive working environment,'

and the victim must also subjectively perceive that environment to be abusive." Alfano v.

Costello, 294 F.3d 365, 374 (2d Cir. 2002) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21

(1993)). Importantly, Plaintiff need only show that the hostility was severe or pervasive, not

both. See id. The HRL's standard for a hostile work environment claim is similar, requiring a

plaintiff to show that her workplace is "permeated with discriminatory intimidation, ridicule, and

insult that is sufficiently severe or pervasive to alter the conditions of the plaintiff's employment

and create an abusive working environment." Bilitch v. N.Y.C. Health & Hosps. Corp., 194

A.D.3d 999, 1003 (2d Dep't 2021) (citing Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295,

310 (2004)).

Under both federal and state law, repeated incidents are usually required for harassment to

be pervasive, but a single incident can suffice if "it can and does work a transformation of the

plaintiff's workplace." Alfano, 294 F.3d at 374; see Bilitch, 194 A.D.3d at 1003. Also, Title VII,

the ADA, and the HRL all require courts to examine the totality of the circumstances when

evaluating a hostile work environment claim, including frequency of the conduct and whether it

was physically intimidating. See Bilitch, 194 A.D.3d at 1003; Alfano, 294 F.3d at 379.

Here, Plaintiff bases her hostile work environment claims on alleged harassment, denial of

accommodations, and wrongful termination. Dkt. No. 25 at 6. Plaintiff reiterates throughout her

pleading that she found Defendant's conduct subjectively abusive. While a reasonable employee

would likely find the conduct that Plaintiff describes unpleasant, "abusive" is a much higher bar.

However, as with most of her other causes of action, her pleading falls short on the causation

prong.

As discussed already, Plaintiff's second amended complaint alleges that her supervisor

yelled at her, threw a paper in her face, and pronounced Plaintiff's name in a way that made her

feel degraded. See id. at 8. Plaintiff also alleges that her supervisor posted about her on

Facebook, and that the post and its comments made her feel threatened and bullied. See id. at 9.

The second amended complaint claims that Plaintiff's supervisor made the post with

discriminatory animus because of Plaintiff's race and disability, but does not allege further facts to

support that alleged causal connection. See id.

Relatedly, although the second amended complaint alleges that Defendant denied

Plaintiff's request for accommodations, Plaintiff does not plead any facts tending to show that the

denial itself was discriminatory based on her race or disability. Likewise, Plaintiff alleges a

hostile work environment by way of discriminatory termination, but does not allege any facts

supporting an inference that race or disability discrimination motivated her discharge (although,

as discussed prior, she has sufficiently pled a claim of retaliation under the ADA). Rather,

Plaintiff makes conclusory statements about Defendant discriminating against her on the basis of

disability and race, but she does not introduce factual assertions to demonstrate that causal link.

Plaintiff's second amended complaint makes clear that she found many aspects of her

employment unpleasant. However, nearly all of the unpleasant interactions and incidents are

devoid of any facts suggesting that Plaintiff's race or protected activity was a factor. As the

Supreme Court has noted, Title VII "does not set forth 'a general civility code for the American

workplace.” Burlington, 548 U.S. at 68 (quotation omitted). Given the absence of non-

conclusory allegations suggesting unlawful animus, Plaintiff's hostile work environment claims

must be dismissed.

IV. CONCLUSION

After carefully reviewing the entire record in this matter, the parties’ submissions, and the

applicable law, and for the reasons set forth above, the Court hereby

ORDERS that Defendants’ motion to dismiss (Dkt. No. 26) is GRANTED in part and

DENIED in part;° and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision

and Order on the parties in accordance with the Local Rules.

IT IS SO ORDERED.

U.S. District Judge

® As aresult of this Memorandum-Decision and Order, Plaintiff's only remaining claim is

retaliation under the ADA.

30