Bonanno

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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:

KATHLEEN BONANNO, :

:

Plaintiff, : MEMORANDUM DECISION AND

: ORDER

- against - :

: 26-cv-2313 (BMC)

SID TOOL CO. d/b/a MSC INDUSTRIAL :

SUPPLY CO., a subsidiary of MSC :

INDUSTRIAL DIRECT CO. INC., f/k/a :

TOWER FASTENERS, :

:

Defendant.

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COGAN, District Judge.

Plaintiff Kathleen Bonanno brings this action under the Americans with Disabilities Act

(“ADA”), the Age Discrimination in Employment Act (“ADEA”), and the New York State

Human Rights Law (“NYSHRL”), alleging that defendant fired her because of her disability and

age and despite her unblemished 37 years of service. Defendant has filed a motion to dismiss

which attacks from all angles (and was, frankly, difficult to follow). Defendant’s motion is

granted in part and denied in part as set forth below.

BACKGROUND

I. Summary of Amended Complaint

Plaintiff began working for defendant in 1986 as a sales assistant. Throughout her tenure,

plaintiff was an exemplary employee with no disciplinary issues.

During an unidentified time, but “for decades,” plaintiff was subjected to different and

offensive treatment by virtue of being a woman. The owner of the company told her, multiple

times, that she “need[ed] to be raped.” Additionally, her supervisor once physically simulated

that he was having sex with her and, another time, grabbed her breasts, both in front of another

employee. Meanwhile, plaintiff watched male employees get promoted over her despite

producing inferior work to her.

Unrelatedly, plaintiff has suffered from severe heart conditions for decades, including

tachycardia and heart arrhythmias. Her conditions substantially limit her major life activities, as

she regularly experiences chest pains and has difficulty talking, walking (even short distances),

breathing, traveling, and caring for herself.

During the COVID-19 pandemic, defendant temporarily permitted employees to work

remotely. Most employees returned to work in June 2020, but defendant allowed plaintiff and

two other employees with disabilities to continue working remotely. Defendant seems to have

permitted plaintiff to continue working remotely for nearly three years, during which time

plaintiff performed her duties without issue.

In April 2023, plaintiff requested to be able to continue working remotely due to her

worsening heart conditions. Although defendant permitted “other similarly situated, non-

disabled, younger, and/or male employees” to continue working remotely, defendant required

plaintiff and another disabled employee over the age of 60 to return to the office. Defendant’s

Human Resources Director, Danielle Doucett, suggested that plaintiff take vacation time or job-

protected medical leave until her heart conditions improved, but plaintiff preferred instead to

continue working remotely. Doucett then took the decision out of plaintiff’s hands and told

plaintiff that she was going on unpaid, job-protected disability leave effective April 17, 2023.

On April 20, 2023, while plaintiff was on job-protected disability leave, defendant fired

her, claiming that she was a “no-call, no-show” for three days – even though Doucett told

plaintiff that she did not need to call into or report to work while on leave.

II. Procedural History

On February 12, 2024, plaintiff filed a charge of discrimination with the Equal

Employment Opportunity Commission (“EEOC”) against “MSC Industrial Supply Co. Inc. d/b/a

Tower Fasteners.”1 Plaintiff checked the boxes for age, sex, and disability discrimination. In the

box asking for “particulars,” plaintiff set forth all the allegations that would later be part of the

instant lawsuit (and some additional allegations). On May 31, 2024, the respondent –

represented by defense counsel in the instant lawsuit – provided its position statement to the

EEOC.

Plaintiff apparently did not receive notice of respondent’s position until months later.

Beginning in August 2024 and through at least July 2025, plaintiff’s counsel – also her counsel

in the instant lawsuit – repeatedly emailed the EEOC asking for an opportunity to respond to

defendant’s position statement. Plaintiff’s counsel did not get anywhere with these requests and,

in fact, the EEOC ignored most of them.

The rest of the timeline is hazy. All that is clear is that at some point, the EEOC referred

plaintiff’s case to the New York State Division of Human Rights (“NYSDHR”). After that

happened, plaintiff filed a claim with the NYSDHR alleging discrimination (based on her age,

sex, and disability) and retaliation, to which she attached her EEOC charge as background for

her allegations. The NYSDHR rendered its determination on December 12, 2025. On April 17,

2026, the EEOC issued plaintiff a Right to Sue letter.

Plaintiff filed the instant lawsuit the next day, asserting the following causes of action:

(1) disparate treatment discrimination and subsequent retaliation, in violation of the ADA and

1 Most of the facts that follow are taken from documents outside the complaint. The Court may properly refer to

such evidence in resolving defendant’s challenge to subject matter jurisdiction. See Amidax Trading Grp. v.

S.W.I.F.T. SCRL, 607 F. Supp. 2d 500, 503-04 (S.D.N.Y. 2009); see also, infra, “Legal Standards.”

NYSHRL; (2) failure to provide reasonable accommodations, in violation of the ADA and

NYSHRL; and (3) age discrimination, in violation of the ADEA and NYSHRL.

DISCUSSION

I. Legal Standards

“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)

when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v.

United States, 201 F.3d 110, 113 (2d Cir. 2000). To survive a motion to dismiss under Rule

12(b)(1), the plaintiff must “prov[e] by a preponderance of the evidence that [subject matter

jurisdiction] exists.” Id. Where the jurisdictional challenge is fact-based, as it is here, the

defendant may “proffer evidence beyond the pleading,” and the plaintiff “will need to come

forward with evidence of their own to controvert that presented by the defendant ‘if the affidavits

submitted on a 12(b)(1) motion reveal the existence of factual problems’ in the assertion of

jurisdiction.” Carter v. HealthPort Techs., LLC, 822 F.3d 47, 57 (2d Cir. 2016) (alterations

adopted) (quoting Exch. Nat’l Bank of Chi. v. Touche Ross & Co., 544 F.2d 1126, 1131 (2d Cir.

1976)).

To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead “enough

facts to state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007), and to “allow[] the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged[.]” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When

deciding a motion to dismiss, the Court must “constru[e] the complaint liberally, accept[] all

factual allegations in the complaint as true, and draw[] all reasonable inferences in the plaintiff’s

favor.” Elias v. Rolling Stone LLC, 872 F.3d 97, 104 (2d Cir. 2017) (quoting Chase Grp. All.

LLC v. City of New York Dep’t of Fin., 620 F.3d 146, 150 (2d Cir. 2010)).

II. Election of Remedies

Defendant first argues that because plaintiff pursued her claims through final

determination with the NYSDHR, she is precluded from bringing NYSHRL claims based on the

same underlying conduct. Defendant relies on the election of remedies provision in the

NYSHRL, which states that “[a]ny person claiming to be aggrieved by an unlawful

discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for

damages ... unless such person had filed a complaint hereunder or with any local commission on

human rights.” N.Y. Exec. L. § 297(9) (emphasis added). Under this provision, an individual

“must choose whether to press a NYSHRL claim in an administrative forum established under

the NYSHRL (or an equivalent local forum), or in a court of appropriate jurisdiction.” Illie-

Stout v. Barrier Free Living, Inc., No. 08-cv-6388, 2009 WL 81151, at *1 (S.D.N.Y. Jan. 12,

2009). “The bar established by the election of remedies provision is jurisdictional, and where it

applies a federal court may not hear a claim that has already been resolved in the state

administrative forum” unless an exception applies. Stiler v. Amalgamated Life Ins. Co., No. 24-

cv-8962, 2026 WL 867166, at *9 (S.D.N.Y. Mar. 30, 2026).

It is indisputable that plaintiff filed a claim with the NYSDHR and that the NYSDHR

rendered a final determination. However, plaintiff maintains that because she did not

affirmatively choose the NYSDHR forum, an exception to the election of remedies bar applies.

The particular exception on which plaintiff relies “applies when a claim is filed directly

with the EEOC rather than with the [NY]SDHR, and is only thereafter filed with the [NY]SDHR

by the EEOC in accordance with Title VII requirements that all complaints filed with the EEOC

be referred to the local agency.” Forkin v. United Parcel Serv., No. 18-cv-3397, 2020 WL

9816001, at *6 (E.D.N.Y. Nov. 10, 2020) (internal quotation marks and citation omitted).

Although the exception purports to limit its application to where referral is completed “in

accordance with Title VII requirements,” district courts have not always applied the exception so

strictly. For example, some courts have held that a discrimination claim filed with the EEOC

that the EEOC then cross-files with the NYSDHR – notwithstanding its reason for doing so –

does not constitute an election of administrative remedy. See Stiler, 2026 WL 867166, at *10

(collecting cases); see, e.g., Bovell v. City of Mount Vernon, New York, No. 21-cv-1621, 2023

WL 3559544, at *4 (S.D.N.Y. May 18, 2023); Bawa v. Brookhaven Nat. Lab’y, Associated

Universities, Inc., 968 F. Supp. 865, 870 (E.D.N.Y. 1997). In fact, in Bovell, the court declined

to impose the election of remedies bar even though the plaintiff ultimately consented to the

transfer from the EEOC to the NYSDHR. 2023 WL 3559544, at *4

At first glance, plaintiff’s circumstances seem to be somewhere along the blurry line

between bar and exception. On the one hand, plaintiff initially filed her claim with the EEOC

only; the EEOC then transferred her case to the NYSDHR without seeking her consent. On the

other hand, after the EEOC transferred the case to the NYSDHR, plaintiff filed a claim with the

NYSDHR and participated in the NYSDHR’s investigation, and the NYSDHR ultimately

rendered a determination. Plaintiff may not have wanted to be in the NYSDHR forum, but she

never requested that her claim be sent back to the EEOC or otherwise seek to annul the

NYSDHR proceeding to preserve her rights in a judicial forum. If plaintiff had at least tried to

transfer back or withdraw her NYSDHR proceeding, the Court could now conclude that she had

“suffer[ed] from the forced-election predicament that the exception is intended to remedy,” York

v. Ass’n of Bar of City of New York, 286 F.3d 122, 127 (2d Cir. 2002). But that is not the

situation that we’re in.

Plaintiff’s NYSHRL claims are barred by the election of remedies doctrine and are thus

dismissed.

III. Gender Discrimination and Sexual Harassment Allegations

Plaintiff does not bring claims for gender discrimination or sexual harassment, despite

devoting nine paragraphs to such allegations. Thus, whether those nonexistent claims are time-

barred, as defendant contends, is irrelevant. Defendant appears to have brought this challenge

just in case plaintiff intended to assert such claims.

Plaintiff maintains that these allegations serve as background evidence in support of

timely claims. The Court disagrees. As the Court explained at the Initial Status and Premotion

Conference, these allegations, if proven, have no probative value. That is, if defendant

mistreated plaintiff based on her gender, it does not follow that defendant mistreated plaintiff, or

was more likely to have mistreated plaintiff, based on her disability or age.

IV. Timeliness of ADA and ADEA Claims

Before filing a lawsuit under the ADA or ADEA, a plaintiff must exhaust administrative

remedies by filing an EEOC charge within 300 days of the alleged unlawful act. See Kirk v.

Mount Vernon City Sch. Dist., No. 23-cv-7441, 2024 WL 3794591, at *4 (S.D.N.Y. Aug. 13,

2024) (ADA); In re IBM Arb. Agreement Litig., 76 F.4th 74, 82 (2d Cir. 2023) (ADEA).

Plaintiff filed her EEOC charge on February 12, 2024, which means that discrete acts that

occurred before April 18, 2023 are not actionable under the ADA or ADEA. This cut-off poses

no problem with respect to plaintiff’s ADA and ADEA claims that are based on her April 20,

2023 termination, which plaintiff alleges was both discriminatory – based on her age and

disability – and retaliatory – based on her protected activity of requesting a reasonable

accommodation.

However, this cut-off does pose a problem for plaintiff’s failure-to-accommodate claim

under the ADA. Plaintiff was denied her request for a reasonable accommodation on or before

April 17, 2023. “[A] claim of this nature is a discrete act which accrues on the date the

accommodation request is rejected.” Castiblanco v. Am. Airlines, Inc., No. 17-cv-5639, 2019

WL 4751880, at *8 (E.D.N.Y. Sept. 29, 2019) (citing Elmenayer v. ABF Freight Sys., Inc., 318

F.3d 130, 134-35 (2d Cir. 2003) (holding the same with respect to a request for a religious

accommodation)). Plaintiff’s ADA failure-to-accommodate claim is thus dismissed as

untimely.2

V. Exhaustion of ADA Claims

“To pursue an ADA claim in federal court, a plaintiff must exhaust administrative

remedies through the EEOC, which requires that the plaintiff first file a charge of discrimination

with the EEOC.” Wood v. ViacomCBS/Paramount, No. 22-cv-6323, 2025 WL 1237377, at *4

(S.D.N.Y. Apr. 29, 2025) (citing Rosado v. Port Auth. of N.Y. & N.J., No. 22-587-cv, 2024 WL

658776, at *2 (2d Cir. Feb. 16, 2024)). Although administrative exhaustion in the ADA context

is not a jurisdictional prerequisite, a court should grant a motion to dismiss if non-exhaustion “is

clear from the face of the complaint (and incorporated documents).” Anderson v. City of New

York, 712 F. Supp. 3d 412, 426 n.6 (S.D.N.Y. 2024) (citations omitted). In evaluating

defendant’s exhaustion challenge, the Court may consider the EEOC charge because it is a

prerequisite to the federal causes of action and is thus integral to the complaint. See Gates v.

City of New York, No. 20-cv-3186, 2021 WL 3774189, at *1 (S.D.N.Y. Aug. 25, 2021)

(collecting cases).

2 For the avoidance of doubt, the parties are permitted to rely on evidence which predates April 18, 2023 – even

evidence relating to the accommodation request. The accommodation request is, allegedly, the protected activity for

which plaintiff was terminated, which is integral to her retaliation claim.

Defendant argues that plaintiff failed to exhaust administrative remedies with respect to

her disability harassment and retaliation claims under the ADA because she did not raise them in

her EEOC charge. First off, assuming that defendant is equating “harassment” with “hostile

work environment,” plaintiff is not bringing such a claim, despite occasionally using the word

“harassment” in the complaint. Thus, that challenge is denied as unnecessary. As for the

retaliation claim, defendant is right that plaintiff did not expressly raise retaliation in her EEOC

charge. However, clams not asserted before the EEOC may be pursued in a subsequent federal

court action if the claims are “reasonably related” to those filed with the EEOC – that is, if they

“would fall within the scope of the EEOC investigation which can reasonably be expected to

grow out of the charge that was made.” Richardson v. Suffolk Bus Corp., No. 09-cv-3586, 2010

WL 2606266, at *6 (E.D.N.Y. June 22, 2010) (quoting Jute v. Hamilton Sundstrand Corp., 420

F.3d 166, 177 (2d Cir. 2005)).

Upon examining plaintiff’s EEOC charge, the Court concludes that plaintiff’s unraised

retaliation claim would have fallen within the scope of the EEOC’s investigation based on the

claims that plaintiff did raise (that is, of course, if the EEOC, and not the NYSDHR, were to

have undertaken the investigation). In plaintiff’s EEOC charge, she stated that she requested the

reasonable accommodation to work remotely and was fired before she had an opportunity to

provide defendant with documentation showing that the accommodation was necessary. In

investigating the disability discrimination claim, the EEOC would have looked into the

reasonable accommodation request, the termination, and the events in between. This is the exact

investigation that the EEOC would have undertaken if plaintiff brought a retaliation claim. Thus,

despite not explicitly bringing a retaliation claim before the EEOC, plaintiff is not barred from

bringing a retaliation claim in federal court.

VI. Plausibility of ADA Disparate Treatment Claim

Plaintiff brings claims of disability discrimination under two theories: disparate treatment

(also referred to as “adverse action”) and failure-to-accommodate. See Kirkland-Hudson v.

Mount Vernon City Sch. Dist., 665 F. Supp. 3d 412, 457 (S.D.N.Y. 2023) (citing McMillan v.

City of New York, 711 F.3d 120, 125-26 (2d Cir. 2013)). As set forth supra, plaintiff’s failure-

to-accommodate claim is dismissed as untimely. Thus, the Court will evaluate defendant’s

challenges only as they relate to the plausibility of plaintiff’s disparate treatment claim.

The ADA prohibits discrimination “against a qualified individual on the basis of

disability in regard to ... terms, conditions, and privileges of employment.” 42 U.S.C.

§ 12112(a). To establish a prima facie case of disparate treatment discrimination under the

ADA, a plaintiff must ultimately prove that “(1) the defendant is covered by the ADA;

(2) plaintiff suffers from or is regarded as suffering from a disability within the meaning of the

ADA; (3) plaintiff was qualified to perform the essential functions of the job, with or without

reasonable accommodation; and (4) plaintiff suffered an adverse employment action because of

[her] disability or perceived disability.” Richards v. Dep’t of Educ. of City of New York, No.

21-cv-338, 2022 WL 329226, at *13 (S.D.N.Y. Feb. 2, 2022) (quoting Kinneary v. City of New

York, 601 F.3d 151, 156 (2d Cir. 2010)). However, “[a]t the pleading stage, a plaintiff ‘need

only give plausible support to a minimal inference of discriminatory motivation’ and ‘need not

give plausible support to the ultimate question of whether the adverse employment action was

attributable to discrimination.’” Id. (quoting Littlejohn v. City of New York, 795 F.3d 297, 311

(2d Cir. 2015)).

Defendant first contends that plaintiff “admits away” her disparate treatment claim by

admitting in her EEOC charge that “[t]he only reason why [she] was wrongfully fired is because

of [her] age.” The Court disagrees. Statements in an EEOC charge are “in the nature of an

evidentiary admission” as opposed to a judicial one. See Bamba v. U.S. Dep’t of Homeland

Sec.-FPS, No. 19-cv-8646, 2021 WL 4478677, at *6 (S.D.N.Y. Sept. 30, 2021) (collecting

cases). Defendant is free to use this admission against plaintiff on summary judgment and at

trial, but it doesn’t militate dismissal at this stage.3

Defendant next contends that plaintiff does not allege any facts to determine whether she

was disabled within the meaning of the ADA.4 The Court disagrees. The ADA defines

“disability” as among other things, “a physical or mental impairment that substantially limits one

or more major life activities.” 42 U.S.C.A. § 12102(1)(A). The NYSHRL defines “disability”

as, among other things, “a physical, mental or medical impairment resulting from anatomical,

physiological, genetic or neurological conditions which prevents the exercise of a normal bodily

function.” N.Y. Exec. L. § 292(21)(a). Plaintiff expressly alleges that her heart conditions

substantially impaired major life activities, like walking, breathing, and caring for herself. The

Court sees no reason to demand more detail on this point: plaintiff’s condition clearly fits the bill

for disability under both the ADA and NYSHRL.

VII. Plausibility of ADEA Age Discrimination Claim

The ADEA provides in part that “[i]t shall be unlawful for an employer ... to discharge

any individual or otherwise discriminate against any individual ... because of such individual’s

age.” 29 U.S.C. § 623(a). To state a prima facie case of age discrimination, a plaintiff must

allege that: (1) she was in the protected age group (40 years and older); (2) she was qualified for

her position; (3) she experienced an adverse employment action; and (4) such action occurred

3 Defendant raises the same challenge against plaintiff’s ADA retaliation claim. That challenge is likewise denied.

4 Defendant directed this argument at only plaintiff’s failure-to-accommodate claim and not her disparate treatment

claim, but the Court nonetheless considers it.

under circumstances giving rise to an inference of discrimination. Ndremizara v. Swiss Re Am.

Holding Corp., 93 F. Supp. 3d 301, 310 (S.D.N.Y. 2015). “Importantly, a ‘[p]laintiff need not

make out a prima facie case at the pleading stage, and may withstand a motion to dismiss by

providing a short and plain statement of the claim that shows that she is entitled to relief and that

gives [the defendant] fair notice of the age discrimination claim and the grounds upon which it

rests.’” Id. at 311 (quoting Munoz-Nagel v. Guess, Inc., No. 12-cv-1312, 2013 WL 6068597, at

*1 (S.D.N.Y. Nov. 15, 2013)).

Plaintiff alleges that she was terminated, at least in part, because of her age. Plaintiff’s

allegations in support of this conclusion are that defendant permitted “other similarly situated,

non-disabled, younger, and/or male employees” to continue working remotely but required

plaintiff and another disabled employee over the age of 60 to return to the office. These

allegations are pretty thin, and the disjunctive “or” does leave open the possibility that other

employees were treated better because they were non-disabled or male. But plaintiff has alleged

just enough to survive a motion to dismiss.

VIII. Proper Defendant

Plaintiff has attempted, multiple times, to ascertain the right entity to sue. Defendant has

been no help. It says that it has “never attempted to obscure the correct party,” but the Court

does not buy it – the Court has seen many defendants attempt to make themselves judgment-

proof. Defendant now argues in its motion to dismiss that “[t]o the extent that Plaintiff intends to

sue Sid Tool Co. Inc. d/b/a MSC Industrial Supply Co., Defendant respectfully requests that the

Court direct Plaintiff to amend the case caption to remove any reference to non-existent or

associated entities.” Plaintiff responds that it now believes that “All Integrated Solutions, Inc.,”

a subsidiary of MSC Industrial Supply Co., is the right entity. Frankly, the Court has no idea

who plaintiff ought to be suing.

Plaintiff has the Court’s permission to amend the case caption, but defendant is going to

help her do it. It is obvious that defendant, or some entity associated with defendant, was

plaintiff's employer. Defendant better tell plaintiff who.

CONCLUSION

Defendant’s motion to dismiss is granted in part and denied in part. Specifically,

plaintiffs NYSHRL claims and ADA failure-to-accommodate claim are dismissed; plaintiff's

ADA disparate treatment claim, ADA retaliation claim, and ADEA discrimination claim remain.

SO ORDERED.

Buan UW. Cogan

U.S.D.J.

Dated: Brooklyn, New York

August 17, 2026

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