# Gates

> District Court, E.D. New York · February 25, 2026

URL: https://www.frixlaw.com/law-library/cases/11340411

## Case

- **Full name:** Nicole Gates v. New York City Human Resources Administration
- **Court:** District Court, E.D. New York
- **Decided:** February 25, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11340411

## How later opinions describe it (automated extraction)

- finding sufficient an allegation of a single instance of overtime denial

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

NICOLE GATES,

Plaintiff,
MEMORANDUM & ORDER
v.
24-CV-5310 (NRM)

NEW YORK CITY HUMAN RESOURCES

ADMINISTRATION,

Defendant.

NINA R. MORRISON, United States District Judge:
Plaintiff Nicole Gates, proceeding pro se, brings this action against the New
York City Human Resources Administration (the “HRA” or “Defendant”) under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., the Age Discrimination
in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 et seq., and the Americans
with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12112 et seq. She alleges race,
age, and disability discrimination, and retaliation.
Presently before the Court is Defendant’s motion to dismiss for failure to state
a claim. For the reasons that follow, Defendant’s motion is granted as to Plaintiff’s
age and disability discrimination claims, and the motion is denied as to Plaintiff’s
race discrimination and retaliation claims.
BACKGROUND
I. Factual Background
The following facts are drawn from the Amended Complaint, Amended Compl.
(“FAC”), ECF No. 17, and they are taken as true for the purposes of the instant
motion. See Dorking Genetics v. United States, 76 F.3d 1261, 1263 (2d Cir. 1996).
Plaintiff Nicole Gates is a Black woman who began her employment with HRA
Medicaid, Department of Social Services in Brooklyn, New York in April of 2018. FAC

at 2.1 Gates’s immediate supervisor from 2021 to 2023, Marina Markovic, was a
white Russian woman. Id. “During a significant amount of this time,” Gates was the
only Black employee in her unit of five, with all others in the unit also being of
Russian descent.2 Id. Gates alleges that throughout her time at HRA, she was
“excluded from assignments, given lesser assignments, assigned subpar and less
favorable work compared to colleagues and spoken to in a derogatory tone compared

to her colleagues.” Id.
The Complaint details a range of misconduct on the part of Gates’s coworkers
and supervisors. For example, Gates was “consistently given menial or less
challenging tasks while Russian employees in similar roles [we]re assigned
substantive, higher-profile responsibilities.” Id. She was excluded from overtime
opportunities, with shifts “disproportionately assigned to the Russian employees,
despite [Gates] expressing interest and availability.” Id. Markovic and the other

coworkers frequently communicated in Russian, including in team meetings,
“internally excluding [Gates] from conversations critical to performing [her] job
effectively.” Id. at 3. Finally, Gates was described or publicly criticized as being

1 Unless otherwise indicated, all page references use the pagination provided
by the Electronic Case Filing System.

2 It is unclear from the papers whether Markovic is included in the “Unit of 5”
as described in the Complaint.
“aggressive” or “intimidating,” which Gates alleges were racially charged terms. Id.
One particular incident referenced in the Complaint is described in Gates’s
formal Equal Employment Opportunity (“EEO”) Complaint of Discrimination

alleging age discrimination. See Def. Decl. in Supp. of Mot. to Dismiss, Ex. B (“EEO
Complaint”) at 3–4, ECF No. 32-2.3 On September 21, 2022, Gates received an email
and a Microsoft Teams message indicating that her request for overtime had been
denied. Id. at 4. She went to speak with Director Monica Brown about why the
request had been denied, but Brown was on the phone at the time and motioned for
her to have a seat. Id. Gates then asked her coworker Roberto Sanchez, who was

also in the room and had been included in the email chain, if he could pull up the
Teams message. Sanchez “replied in an aggressive manner IM BUSY!” Id. When
Gates attempted to explain that she wanted to make sure they were on the same page
regarding the overtime messages, Sanchez “jumped up and [belligerently] began
yelling in [her] face get away from my desk.” Gates “felt threatened and afraid by
[Sanchez’s] hostile behavior.” Id. Sanchez then “proceeded to call [Gates] old and
[made] comments in reference to [her] age,” saying that she was “too old.” Id.

Gates called security and reported Sanchez for his hostile behavior. FAC at
17. According to a security incident report prepared by an HRA police officer, HRA
arrived and escalated the issue to the New York Police Department (“NYPD”). FAC

3 Gates did not attach her full EEO complaint form to her Amended Complaint.
However, the Complaint discusses the EEO complaint at length, see FAC at 3–5, and
a court may consider “documents incorporated by reference in the complaint” in
considering a motion to dismiss. DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111
(2d Cir. 2010).
at 18. When NYPD arrived, they spoke to two HRA Directors and informed them
that Sanchez was “not to have contact with [Gates].” Id. They then left without
further incident. Id. Gates disputes that the security incident report accurately

reported the incident and notes that it did not include the substance of her own
statements that she submitted, as well as a statement from a co-worker witness. FAC
at 17. However, Gates has not provided those statements to the Court.
The following day, on September 22, 2022, Gates filed a formal complaint with
the EEO regarding this incident, alleging age and race discrimination. FAC at 3, 16.
Following the complaint, she emailed various individuals in the EEO office

requesting an immediate transfer from her unit, noting that she was being “harassed,
bullied[,] threatened[,] and intimidated” by her managers and coworkers, and that
the resulting environment was having “a major effect on [her] livelihood, mental and
physical health.” FAC at 12, 14 & 15. There is no indication that Gates was ever
transferred, and the complaint was determined unsubstantiated on March 20, 2023.
FAC at 11.
After filing the EEO complaint, Gates “experienced a series of retaliatory

actions by [her] supervisor, Markovic, Directors[] Bernadette Brown and Monica
Brown, and other supervisors including Lisa Bryant and Nancy Rosa, HRA Police
including the captain Wanda Carrington.” FAC at 3. Gates was subjected to
“unwarranted charges and formal complaints about [her] performance and conduct.”
Id. at 4. She was targeted with increased scrutiny by supervisors “at a level that was
unprecedented prior to [her] EEO filing,” including for things that were overlooked
for other employees. Id. She was given reduced opportunities and assignments,
including “menial mail jobs that [we]re out of [her] title of work.” Id. at 5. And she
was removed from her “Grievance Representation” position with the union “due to

disciplinary charges brought [forth] after assignment.” Id. In October 2023, Gates
was suspended due to “baseless and inconsistent” charges. Id. at 4. It is unclear from
the parties’ papers the nature or purported basis of this suspension, and for how long
it lasted.
Gates avers that because of this work environment, she suffered “severe stress,
anxiety, and depression, which substantially limit[ed] major life activities.” Id. at 5.

In March 2023, Gates was hospitalized due to these conditions, and she engaged in
ongoing therapy and mental health care from November 2023 to March 2024. In
March 2024, Gates was evaluated by Dr. Felix Ellis, a psychiatrist, who
recommended that she take medical leave. Id. In April 2024, Gates went on medical
leave and submitted a letter from Dr. Felix asking for reasonable accommodation in
the form of a transfer. Id. at 6, 10. The request was denied, and Gates returned to
work that summer. Id. at 6. She resumed therapy in September 2024, and on

January 2025, was again placed on medical leave for “extreme depression and
anxiety.” Id.
On January 19, 2024, Gates filed a formal charge of discrimination with the
EEOC. Def. Decl. in Supp. of Mot. to Dismiss, Ex. A (“Charge of Discrimination”) at
2, ECF No. 32-1. She received the dismissal of the charge and notice of her right to
sue on April 30, 2024. FAC at 9.
II. Procedural History
Gates, proceeding pro se, filed the instant action on July 25, 2024 against “New
York City-Human Resources Administration.” Compl., ECF No. 1. On October 31,

2024, Defendant moved for a pre-motion conference for a motion to dismiss. Letter
re: Def.’s Intention to File Mot. to Dismiss, ECF No. 13. In response, Gates requested
leave to file an amended complaint, which this Court granted. Order granting Mot.
for Extension of Time to File Amended Compl. dated December 16, 2024. On January
16, 2025, Gates filed the Amended Complaint, alleging race, age, and disability
discrimination, retaliation, and a hostile work environment under Title VII, ADEA,

and the ADA. This motion to dismiss followed. Mot. to Dismiss (“Mot”), ECF No. 31.
DISCUSSION
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). Because Plaintiff is pro se, the Court construes her pleadings
liberally and holds them “to less stringent standards than formal pleadings drafted

by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972); see Estelle v. Gamble, 429
U.S. 97, 106 (1976). “Nonetheless, a pro se complaint must state a plausible claim for
relief.” Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013). Though a court must
accept a plaintiff’s well-pleaded factual allegations as true, “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory statements” are not
sufficient to state a claim. Iqbal, 556 U.S. at 678.
I. HRA as a Non-Suable Entity
As a threshold matter, Defendant argues that Plaintiff’s claims should be
dismissed because the named defendant is the HRA, which is not a suable entity

under Section 396 of the New York City Charter. Mem. in Supp. of Mot. to Dismiss
(“Def. Mem.”) at 13–14, ECF No. 33; see Ximines v. George Wingate High Sch., 516
F.3d 156, 159–60 (2d Cir. 2007); N.Y.C. Charter § 396 (“All actions and proceedings
for the recovery of the penalties for the violation of any law shall be brought in the
name of the city of New York and not in that of any agency . . . .”).
However, it is unclear whether Plaintiff intended to designate HRA or the City

as the defendant. The Amended Complaint lists “New York City Human Resource
Administration - DSS” as the defendant in the case caption. FAC at 1. Additionally,
in the caption of her initial complaint, Plaintiff wrote “NYC-HRA,” “New York City,”
and “Human Resource Administration” in the lines provided for naming the
defendants. Compl. at 1. Though the Court does not consider the allegations
contained in this superseded complaint in evaluating the merits of the pleadings, see
Lopez v. Cajmant LLC, No. 15-CV-593 (ENV), 2020 WL 9814059, at *5 n.7 (E.D.N.Y.

Oct. 26, 2020), the initial caption provides context for interpreting Plaintiff’s
designation of the appropriate defendant.
Finally, courts in this circuit have, in the past, suggested that claims against
the HRA may be evaluated by construing the claims as being made against the City.
See, e.g., Shamilov v. Hum. Res. Admin., No. 10-CV-8745, 2011 WL 6085550, at *5
(S.D.N.Y. Dec. 6, 2011); Rojas v. Hum. Res. Admin., No. 18-CV-6852 (KAM), 2022 WL
3716851, at *6 (E.D.N.Y. Aug. 29, 2022), aff’d, No. 22-2055, 2023 WL 6380820 (2d
Cir. Oct. 2, 2023). Given that Plaintiff has plausibly raised these claims against
either New York City or the HRA, and the Plaintiff is pro se, the Court construes the

action as being brought against New York City, a proper defendant.4
The Court now considers each of Plaintiff’s claims.
II. ADA Claim
Plaintiff claims that Defendant denied reasonable accommodation for her
various mental health conditions as required by the ADA. However, this claim is
unexhausted. “Exhaustion of administrative remedies through the EEOC is ‘an

essential element’ of the . . . [ADA’s] statutory scheme[] and, as such, a precondition
to bringing such claims in federal court.” Germain v. Nielsen Consumer LLC, 655 F.
Supp. 3d 164, 177 (S.D.N.Y. 2023) (quoting Legnani v. Alitalia Linee Aeree Italiane,
S.P.A., 274 F.3d 683, 686 (2d Cir. 2001) (per curiam)). Here, Plaintiff’s charge to the
EEOC includes only allegations of race and age discrimination, and retaliation. See
Charge of Discrimination at 2.
Nevertheless, “[c]laims not raised in an EEOC complaint . . . may be brought

in federal court if they are ‘reasonably related’ to the claim filed with the agency.”
Williams v. New York City Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006). “A claim is
considered reasonably related if the conduct complained of would fall within the
‘scope of the EEOC investigation which can reasonably be expected to grow out of the

4 To the extent that this issue remains a live dispute between the parties
after this Order is issued, the Court sua sponte grants Plaintiff leave to amend her
Complaint to designate “City of New York” as the defendant in the case caption.
charge’ that was made.” Fitzgerald v. Henderson, 251 F.3d 345, 359–60, (2d Cir. 2001)
(quoting Butts v. City of New York Dep’t of Hous. Pres. & Dev., 990 F.2d 1397, 1402
(2d Cir. 1993)).

Plaintiff’s claim that she was denied a reasonable accommodation as required
by the ADA may be “reasonably related” to her other discrimination claims, given
that Plaintiff’s accommodation request — a transfer to a different unit — appears to
be a result of her alleged discriminatory workplace environment. See generally FAC
at 2–6. However, based on her pleadings, Plaintiff only made her reasonable
accommodation request when she took medical leave in April 2024, after the

complaint and charge with EEOC had already been filed. Id. at 6. In other words,
Plaintiff was not subject to the alleged discriminatory action under the ADA until
after her formal EEOC claim.
Generously construed, it is possible to interpret Plaintiff’s earlier, informal
requests for transfers directed towards various individuals in the HRA as requests
for accommodation. However, Plaintiff never alleges that she made known to these
individuals that she was suffering from a disability, a required element of an ADA

claim. See Raytheon Co. v. Hernandez, 540 U.S. 44, 54 n.7 (2003). Some of the
attachments to her complaint show that Plaintiff expressed, with strong language,
the hostile and harassing environment allegedly created by her supervisors and
coworkers, see, e.g., FAC at 12, 14 & 15, but “[j]ob-related stress — particularly that
caused by working with a particular supervisor — is not considered a disability under
the ADA” and is thus insufficient to provide proper notice for a defendant. Chang v.
MetroPlus Health Plan, No. 12-CV-3181 (WHP), 2014 WL 842635, at *6 (S.D.N.Y.
Mar. 4, 2014) (quoting Thompson v. Fed-Reserve Bank of New York, No. 01-CV-11640
(DC), 2004 WL 330243, at *8 (S.D.N.Y. Feb. 23, 2004)), aff’d, 590 F. App’x 74 (2d Cir.

2015); see also Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1062 (7th Cir. 2000)
(“Standing alone, a personality conflict between an employee and a supervisor — even
one that trigger[]s the employee’s depression — is not enough to establish that the
employee is disabled, so long as the employee could still perform the job under a
different supervisor.”).
Plaintiff’s ADA claim is thus not exhausted. Defendant’s motion to dismiss is

granted as to that claim.
III. Age Discrimination
On the other hand, Plaintiff’s age discrimination claim has been exhausted,
but must be dismissed on other grounds.
First, this claim is time-barred. “To sustain a claim for unlawful
discrimination under Title VII and/or the ADEA, a plaintiff must file administrative
charges with the EEOC within 300 days of the alleged discriminatory acts.” Flaherty

v. Metromail Corp., 235 F.3d 133, 136 n.1 (2d Cir. 2000); 42 U.S.C. § 2000e-5(e)(1); 29
U.S.C. § 626(d)(2). Because Plaintiff filed her charge of discrimination on January
19, 2024, Charge of Discrimination at 2, the alleged discriminatory act or acts must
have taken place sometime on or after March 25, 2023.
To be sure, “[a] statute of limitations is an affirmative defense that need not
be addressed in the complaint, and plaintiffs are not required to allege facts in their
complaint to rebut a potential statute of limitations affirmative defense that might
be waived.” Lalonde v. City of Ogdensburg, 662 F. Supp. 3d 289, 334 (N.D.N.Y. 2023)
(internal quotation marks omitted) (quoting Kattu v. Metro Petroleum, Inc., No. 12-

CV-54, 2013 WL 4015342, at *4 (W.D.N.Y. Aug. 6, 2013)). But a defendant may
nevertheless raise such a defense in a motion to dismiss where the “failure is
apparent from the face of the complaint.” Kane v. St. Raymond’s Roman Catholic
Church, No. 14-CV-7028 (AJN), 2015 WL 4270757, at *5 (S.D.N.Y. July 13, 2015).
Here, while Plaintiff alleges a range of misconduct on the part of the HRA, the only
allegation related to age discrimination is the incident with her coworker Sanchez,

which took place on September 21, 2022, well before the 300-day period under the
ADEA.
Moreover, even generously construed, all of Plaintiff’s other allegations of
discrimination do not have any real connection to this sole instance of age
discrimination. And as for the allegation of age discrimination itself, “[i]t is well-
established that stray remarks alone will not support a Title VII discrimination suit.”
Brooks v. Blank, No. 10-CV-8124 (ALC), 2014 WL 1495774 (S.D.N.Y. Mar. 31, 2014)

(citation modified); see Ross v. State of New York, No. 15-CV-3286 (JPO), 2016 WL
626561, at *5 n.5 (S.D.N.Y. Feb. 16, 2016); Moore v. Verizon, No. 13-CV-6467 (RJS),
2016 WL 825001, at *9 (S.D.N.Y. Feb. 5, 2016). Thus, even if the claim were not time-
barred, Plaintiff does not allege sufficient facts to state a claim for age discrimination.
IV. Race Discrimination
A. Statute of Limitations
Plaintiff also raises a claim of race discrimination. Defendant first argues
that this claim is also time-barred because most of the conduct described in the
Complaint is undated, and the few dated incidents took place before the 300-day

statute of limitations. Def. Mem. at 14–16.
It is true that allegations based on undated conduct “are subject to dismissal
based on untimeliness.” Rojas v. Hum. Res. Admin., 2022 WL 3716851, at *7
(E.D.N.Y. Aug. 29, 2022). However, as just noted, a statute-of-limitations claim is an
affirmative defense that plaintiffs need not address in their complaint. Lalonde, 662
F. Supp. 3d at 334. And unlike with Plaintiff’s age-discrimination claim, it is far from

“apparent from the face of the complaint” that the adverse actions that Plaintiff
identifies as racially motivated all took place prior to March 25, 2023. Kane, 2015
WL 4270757, at *5.
The Amended Complaint alleges a range of allegedly discriminatory actions by
Plaintiff’s supervisors against Plaintiff, the only Black employee in her unit at all
relevant times. These include giving Plaintiff menial tasks, excluding her from
overtime opportunities, excluding her from conversations and team meetings, and

subjecting her to derogatory language. See FAC at 2–3. Defendant’s only argument
for why any of these allegations are time-barred is that none of these occurrences
were given specific dates or times in the Complaint.
The Court is unpersuaded. Plaintiff’s pro se complaint is to be construed
liberally, and there is contextual evidence from which the Court may draw a
reasonable inference that much, if not all, of the described conduct was continuing at
or close to the time that Plaintiff filed her charge of discrimination in January 2024.
First, the factual background of the Amended Complaint begins by stating that
Plaintiff was “subjected to racial discrimination by [her] immediate

supervisor . . . from 2021 through 2023.” FAC at 2 (emphasis added). Next, the
section of the Complaint addressing Plaintiff’s retaliation claim describes some
conduct that is similar or related to the conduct described for her race-discrimination
claim. Compare FAC at 2–3 (alleging that she was given “menial or less challenging
tasks” and being subjected to a hostile work environment), with id. at 3–5 (alleging
that she was “assigned fewer or less significant tasks” and supervisors “fostered a

hostile environment”). And because Plaintiff’s EEOC complaint was filed on
September 22, 2022, Plaintiff has at least alleged that relevant discriminatory
misconduct was taking place near the end of 2022. Finally, in the section of the
Complaint outlining Plaintiff’s alleged disability status, Plaintiff notes that she was
hospitalized in March 2023, engaged in ongoing therapy from November 2023 to the
present, and that she took medical leave in April 2024 and January 2025, all
stemming from ongoing discrimination in her workplace. See FAC at 5–6. That

timeline gives rise to the inference that the allegations of race discrimination
continued well into 2024 and the present day. At the very least, it is not “apparent
from the face of the complaint” that these actions or incidents did not continue past
March 25, 2023. Kane, 2015 WL 4270757, at *5.
B. Merits
The Court now addresses whether Plaintiff’s pleadings adequately establish
an actionable race discrimination claim under Title VII.
1. Standard of Review
Defendant correctly observes that employment discrimination claims under

Title VII are governed by the burden-shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that framework, a plaintiff has
the initial burden of establishing a prima facie case of discrimination by showing that:
“(1) she is a member of a protected class; (2) she is qualified for her position; (3) she
suffered an adverse employment action; and (4) the circumstances give rise to an
inference of discrimination.” Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir.

2000).
However, in Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002), the Supreme
Court noted that McDonnell Douglas’s prima facie case was “an evidentiary standard,
not a pleading requirement,” and that it was not to be “transposed into a rigid
pleading standard for discrimination cases.” Id. at 506–07. That holding was put
into question when the Court updated the pleadings standard in Iqbal, but the Second
Circuit has since “clarified that Iqbal does not require a plaintiff to plead a prima

facie case.” Mandala v. NTT Data, Inc., 975 F.3d 202, 208 (2d Cir. 2020). “Under
Iqbal and Twombly, then, in an employment discrimination case, a plaintiff must
plausibly allege that (1) the employer took adverse action against [her] and (2) [her]
race, color, religion, sex, or national origin was a motivating factor in the employment
decision.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015).
The plausibility standard is low, and “simply requires a plaintiff to ‘assert
[enough] nonconclusory factual matter . . . to nudge [her] claim[] across the line from
conceivable to plausible to proceed.’” Mandala, 975 F.3d at 208 (alterations in
original) (quoting EEOC v. Port Auth. of New York & New Jersey, 768 F.3d 247, 254

(2d Cir. 2014)). Additionally, because race must simply be a motivating factor in the
employment decision, “a plaintiff in a Title VII case need not allege ‘but-for’
causation.” Vega, 801 F.3d at 86. Plaintiff has sufficiently pleaded a claim for race
discrimination under this standard.
2. Adverse Employment Action
Defendant first argues that none of the conduct described in Plaintiff’s

allegations amounts to a cognizable “adverse employment action.” Def. Mem. at 21–
23. “An adverse employment action occurs if an employee endures a materially
adverse change in the terms and conditions of employment.” Scott-Monck v. Matrix
Absence Mgmt., Inc., No. 19-CV-11798 (NSR), 2021 WL 4198242, at *4 (S.D.N.Y. Sep.
14, 2021) (internal quotation marks omitted) (quoting Kassner v. 2nd Ave.
Delicatessen Inc., 496 F.3d 229, 238 (2d Cir. 2007)). Though there is “no exhaustive
list of what constitutes an adverse employment action[,] [c]ourts have held that

termination, demotion, denial of promotion, addition of responsibilities, involuntary
transfers that entails objectively inferior working conditions, denial of benefits,
denial of a requested employment accommodation, denial of training that may lead
to promotional opportunities, and shift assignments that make a normal life difficult
for the employee, among other things, can constitute adverse employment actions.”
Cotterell v. Gilmore, 64 F. Supp. 3d 406, 422 (E.D.N.Y. 2014) (quoting Little v. NBC,
210 F. Supp. 2d 330, 384 (S.D.N.Y. 2002)). And although adverse actions “may
include lesser actions than those stated above[,] . . . such lesser actions must have the
effect of changing ‘the total circumstances of [the employee’s] working

environment . . . to become unreasonably inferior and adverse when compared to a
typical or normal, not ideal or model, workplace.’” Id. at 425 (quoting Phillips v.
Bowen, 278 F.3d 103, 117 (2d Cir. 2002)).
Though many of the alleged actions identified in Plaintiff’s complaint do not
constitute adverse employment actions when viewed in isolation, taken together,
Plaintiff has sufficiently pled this element of her claim.

Plaintiff’s strongest allegation is that she was excluded from overtime
opportunities despite expressing interest and availability. Courts in this circuit
regularly find that “denial of overtime can constitute an adverse employment action.”
Mazyck v. Metro. Transp. Auth., 893 F. Supp. 2d 574, 589 (S.D.N.Y. 2012); see, e.g.,
Roache v. Long Island R.R., 487 F. Supp. 3d 154, 171–72 (E.D.N.Y. 2020); Faggiano
v. Eastman Kodak Co., 378 F. Supp. 2d 292, 306 (W.D.N.Y. 2005). That alone is not
dispositive, however, as courts frequently disagree on the severity and frequency of

overtime denial necessary to rise to the level of an adverse action. Compare
Mcloughlin v. Vill. of Southampton, No. 23-CV-6586 (GRB), 2024 WL 4189224, at *3
(E.D.N.Y. Sep. 13, 2024) (“[I]solated or conclusorily alleged instances of overtimed
denial are routinely rejected.”), and Como v. O’Neill, 2002 WL 31729509, at *2
(S.D.N.Y. Dec. 4, 2002) (finding no adverse action where an employer “obviated the
overtime opportunities plaintiff was used to . . . only for a short period.”), with
Kohutka v. Town of Hempstead, 994 F. Supp. 2d 305, 314–15 (E.D.N.Y. 2014) (finding
sufficient an allegation of a single instance of overtime denial).
But even taking into account the more stringent standard applied by some

courts, Plaintiff’s allegations sufficiently make out an adverse employment action.
Though the Amended Complaint does not specify the number of instances of overtime
denial or the amount of loss, it states that overtime shifts “are disproportionately
assigned to the Russian employees,” and that “[w]hen [Plaintiff] requests overtime,
[she] [is] denied with vague reasons, while Russian employees in the same role are
regularly scheduled for extra hours.” FAC at 2. This suggests that denial of overtime

was not a single isolated occurrence but was instead a “regular” one.
Furthermore, Plaintiff alleges other actions taken by her employer that
provide context for understanding these denials as a “materially adverse change” in
Plaintiff’s terms and conditions of employment. Raspardo v. Carlone, 770 F.3d 97,
125–26 (2d Cir. 2014). For example, Plaintiff alleges that she was “consistently given
menial or less challenging tasks while Russian employees in similar are assigned
substantive, higher-profile responsibilities,” and that she was excluded from

conversations and team meetings because the communications were conducted in
Russian. FAC at 2–3. See Ahmad v. New York City Health & Hosp. Corp., No. 20-
CV-675 (PAE), 2021 WL 1225875, at *20 (S.D.N.Y. Mar. 31, 2021) (“Significantly
diminished material responsibilities can constitute an adverse employment action.”);
Cruz v. Southerton, No. 21-CV-6410 (NSR), 2023 WL 8810144, at *6 (S.D.N.Y. Dec.
20, 2023) (noting that an employer’s creation of working conditions that are
“intolerable when, viewed as a whole,” constitutes an adverse employment action).
In any case, courts regularly find that allegations of overtime denials establish
an adverse employment action without details of other misconduct, see, e.g., Awad v.

City of New York, No. 13-CV-5753 (BMC), 2014 WL 1814114, at *3 (E.D.N.Y. May 7,
2014) (“[P]laintiff has also plausibly shown that he suffered an adverse employment
action when [his employer] denied him overtime and compensatory time.”); Kohutka,
994 F. Supp. 2d at 314–15 (finding that plaintiff adequately pled an adverse action
even where there was “nothing to suggest that these overtime opportunities held any
relation to [plaintiff]’s professional growth or to any career advancement”), and

Plaintiff’s case is distinguishable from the cases in which courts found that overtime
denials did not rise to the level of an adverse employment action, see, e.g., James v.
New York City Health + Hosps. Corp. Off. of Legal Affs. Claims. Div., No. 23-CV-1206
(PGG) 2024 WL 5508202, at *10 (S.D.N.Y. Mar. 13, 2025) (finding no adverse action
where the pleadings were unclear as to whether plaintiff “simply did not ask for
overtime hours”); Mcloughlin, 2024 WL 4189224, at *3–4 (finding no adverse action
where “plaintiff only alleged one occasion when she was denied overtime[,] . . . which

she admit[ted] was the first time such an incident occurred in over a decade of
employment”).
Plaintiff has therefore plausibly alleged that she suffered from an adverse
employment action.
3. Inference of Discrimination
Defendant next argues that Plaintiff fails to support an inference of
discriminatory intent. Def. Mem. at 23–25. At the pleadings stage, a plaintiff only
needs to show that 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 indirectly show discrimination by giving rise to a
plausible inference of discrimination.” Vega, 801 F.3d at 87.
Plaintiff’s pleadings fulfill that standard. The Amended Complaint includes
many allegations of disparate treatment on the basis of race, stating that Plaintiff,
as the only Black employee in her unit, was given worse assignments, denied
overtime, and excluded from meetings and conversations, while the same was not

true of her Russian colleagues. “[A] showing of disparate treatment[ is] a common
and especially effective method of establishing the inference of discriminatory intent”
in Title VII cases. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir.
2001); see Mandell v. Cnty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003).
Further, while Plaintiff does not present any direct evidence of discriminatory
intent, she does note that at various points, both her supervisors and coworkers have
used labels like “aggressive” or “intimidating” in describing her. The Second Circuit

has found that “racially charged code words may provide evidence of discriminatory
intent” even without the use of “explicitly racial language.” Mhany Mgmt., Inc. v.
Cnty. of Nassau, 819 F.3d 581, 608–09 (2d Cir. 2016). In any case, a plaintiff “do[es]
not have to allege facts showing animus on the basis of race to survive a motion to
dismiss for a disparate treatment claim. [She] must only meet the ‘minimal’ burden
of facts of showing the possibility of differential treatment, without direct evidence of
discrimination.” Xia v. 65 West 87th Street Hous. Dev. Fund Corp., No. 20-CV-03576
(ER), 2020 WL 7230961, at *7 (Dec. 8, 2020) (internal citation omitted). Here, that
burden is particularly easy to uphold where Plaintiff has alleged that she was the

only Black woman, and indeed, the only non-Russian person, in her unit.
Defendant argues that Plaintiff has failed to demonstrate one of the elements
needed to establish a prima facie of discrimination — namely, that her Russian
employees were “similarly situated in all material respects.” Brown v. Daikin Am.
Inc., 756 F.3d 219, 230 (2d Cir. 2014); see Def Mem. at 24–25. However, the “similarly
situated” question “presents a question of fact, rather than a legal question to be

resolved on a motion to dismiss.” Id. While “it is insufficient for a plaintiff to make
naked assertions of disparate treatment without factual allegations indicating those
employees treated differently were similarly situated,” Sosa v. N.Y.C. Dep’t of Educ.,
368 F. Supp. 3d 489, 514 (E.D.N.Y. 2019), here, Plaintiff has alleged that her Russian
colleagues worked in the same unit, were in “similar” or the “same” roles, and
reported to the same supervisor. That is more than enough at the pleadings stage.
Defendant’s motion to dismiss is therefore denied as to Plaintiff’s race

discrimination claim.
V. Retaliation
To raise a claim of retaliation, plaintiff must plausibly allege “[1] participation
in a protected activity known to the defendant; [2] an employment action
disadvantaging the plaintiff; and [3] a causal connection between the protected
activity and the adverse employment action.” Feingold v. New York, 366 F.3d 138,
156 (2d Cir. 2004) (quoting Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d
Cir. 1998)). Only the second and third elements are of concern here, as Defendant
does not dispute that Plaintiff’s EEOC complaint filed in September 2022 constitutes

a protected activity known to Defendant.
1. Adverse Action
The standard for an adverse action is much lower in the retaliation context
than in the discrimination context. The Supreme Court has held that an employer’s
action is materially adverse for retaliation purposes if “it well might have dissuaded
a reasonable worker form making or supporting a charge of discrimination.”

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation
marks omitted) (quoting Rochon v. Gonzalez, 438 F.3d 1211, 1219 (D.C. Cir. 2006)).
Plaintiff’s allegations easily meet this standard. The Amended Complaint
states that following the EEO complaint, Plaintiff was subjected to unprecedented
levels of scrutiny; suspended based on unwarranted charges and baseless complaints
about her conduct; isolated from her colleagues at the direction of Director Brown;
assigned fewer and more menial tasks outside of her title of work; and removed from

her Grievance Representation position with the union. FAC at 3–5; see Wilkinson v.
New York State, 2019 WL 5423573, at *13 (E.D.N.Y. Oct. 22, 2019) (“[A] reasonable
employee could be dissuaded from making a charge of discrimination if doing so would
result in being relegated to work normally performed by more junior employees.”);
Klaes v. Jamestown Bd. of Pub. Utilities, No. 11-CV-606, 2013 WL 1337188, at *8
(W.D.N.Y. Mar. 29, 2013) (“[C]ourts in this circuit have concluded that the filing of
charges which results in suspensions or other types of discipline constitutes an
adverse employment action sufficient to support claims of discrimination or
retaliation.”).

2. Causal Connection
A causal connection for retaliation “may be established by (1) ‘evidence of
retaliatory animus directed against a plaintiff by the defendant’; or (2) a close
temporal proximity between the protected activity and the adverse employment
action.” Torres v. Gristede’s Operating Corp., 628 F. Supp. 2d 447, 473 (S.D.N.Y.
2008) (quoting DeCintio v. Westchester Cnty. Medical Ctr., 821 F.2d 111, 115 (2d Cir.

1987)). “The ultimate question of retaliation involves a defendant’s motive and
intent, both difficult to plead with specificity in a complaint.” Dougherty v. Town of
North Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 91 (2d Cir. 2002); see also
Sheppard v. Beerman, 18 F.3d 147, 151 (2d Cir. 1994) (“The motive behind [plaintiff’s]
firing in his retaliation claim is clearly a question of fact. Because this question is in
dispute, it was improper for the district court to answer it on a motion for dismissal
on the pleadings.”). As such, at the pleadings stage, “[i]t is sufficient to allege facts

from which a retaliatory intent on the part of the defendants reasonably may be
inferred.” Dougherty, 282 F.3d at 91.
Plaintiff has sufficiently alleged such facts. The Amended Complaint directly
ties many of the allegations of retaliatory conduct to the filing of Plaintiff’s EEOC
complaint. Plaintiff alleges that: “[a]fter reporting discrimination, [she] was
subjected to unwarranted charges and formal complaints about [her] performance
and conduct”; “[s]upervisors began scrutinizing [her] work at a level that was
unprecedented prior to [her] EEO filing”; her “Grievance Representative position with
the Union was revoked with the claim due to disciplinary charges brought [forth] after

assignment”; and she was “assigned fewer or less significant tasks since filing [her]
EEOC complaint.” FAC at 4–5 (emphases added).
Defendant focuses only on the temporal-proximity prong, noting that Plaintiff’s
allegations are largely undated, and that the only dated incident — the October 2023
suspension — was too temporally distant from the protected activity to merit a
presumption of retaliation. Def. Mem. at 27–28. But “evidence of an ongoing pattern

of retaliatory conduct and intent can also establish a causal connection” absent such
proximity. Gusler v. City of Long Beach, 823 F. Supp. 2d 98, 131 (E.D.N.Y. 2011)
(quoting Shub v. Westchester Cmty. College, 556 F. Supp. 2d 227, 246 (S.D.N.Y.
2008)); see also Econ. Opportunity Comm’n of Nassau Cnty., Inc. v. Cnty. of Nassau,
106 F. Supp. 2d 433, 437 (E.D.N.Y. 2000) (“[A] plaintiff can also show retaliatory
intent by establishing unequal treatment, or an ongoing campaign of adverse
action.”).

Plaintiff has thus sufficiently alleged “facts from which a retaliatory intent on
the part of the [Defendant] reasonably may be inferred.” Dougherty, 282 F.3d at 91.
The motion to dismiss is denied as to Plaintiff’s retaliation claim.
CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss is granted as to
Plaintiff’s ADA and age discrimination claims. The motion is denied as to Plaintiff’s
race discrimination and retaliation claims.

/s/ Nina R. Morrison
NINA R. MORRISON
United States District Judge

Dated: February 25, 2026
Brooklyn, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11340411. Public record. Not legal advice.