Kelly v. New York State Office of Mental Health et al

Filing 66

ORDER. For the reasons stated in the annexed memorandum and order, defendants' motion to dismiss is GRANTED in its entirety. Plaintiff's claims are dismissed with prejudice. The Clerk of Court is respectfully directed to serve a copy of this memorandum and order on the pro se plaintiff at her last known address, enter judgment, and close this case. (Jacobson, Jonathan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
SHARON KELLY,
Plaintiff,
MEMORANDUM & ORDER
13-CV-3383 (KAM)(SLT)

-againstNEW YORK STATE OFFICE OF MENTAL
HEALTH and NEW YORK CITY CHILDREN’S
CENTER (FORMERLY KNOWN AS BROOKLYN
CHILDREN’S CENTER),

Defendants.
----------------------------------X
MATSUMOTO, United States District Judge:
Plaintiff Sharon Kelly, a registered nurse proceeding
pro se, commenced this action against her former employers the New
York

State

Office

of

Mental

Health

(“OMH”)

and

the

Brooklyn

Children’s Center (“BCC”) (collectively, “defendants”) 1 asserting
that defendants discriminated against her on the basis of her
disability in violation of the Rehabilitation Act of 1973 (the
“Rehabilitation Act” or the “Act”), 29 U.S.C. § 701 et seq. She
also alleges that she was retaliated against for exercising her

1

Plaintiff originally brought claims also against the New York State Office
for People with Developmental Disabilities, but the parties have since
stipulated to the dismissal of that defendant. (ECF No. 17.) Additionally,
although the parties previously also stipulated to the dismissal of OMH (id.),
OMH was reinstated as a defendant on July 9, 2015. (Docket Entry 7/9/2015.)
Finally, BCC has since been renamed the New York City Children’s Center. (Id.)
For clarity, and consistent with plaintiff’s usage of the prior name, the court
will use the term BCC.

1

rights under the Rehabilitation Act. Defendants have moved to
dismiss the Second Amended Complaint (ECF No. 52, Second Amended
Complaint (“Compl.”)) for failure to state a claim. For the reasons
set forth herein, defendants’ motion to dismiss is GRANTED.
BACKGROUND
I.

Factual Background
The following facts derive principally from the Second

Amended Complaint and are presumed true for purposes of resolving
defendants’ motion to dismiss. See Kassner v. 2nd Ave. Delicatessen
Inc.,

496

F.3d

229,

237

(2d

Cir.

2007).

Despite

defendants’

characterization of their motion pursuant to Fed. R. Civ. P.
12(b)(6),

the

court

also

occasionally

cites

to

plaintiff’s

opposition affirmation (ECF No. 60, Plaintiff’s Affirmation in
Opposition to Motion to Dismiss (“Pl. Opp’n”)) in detailing the
factual background to this action because the Second Amended
Complaint is occasionally difficult to comprehend. See Jackson v.
Elmhurst Hosp. Ctr., No. 10-CV-5248, 2012 WL 868965, at *3 n.4
(E.D.N.Y. Mar. 14, 2012) (“Though generally the Court will not
consider factual allegations first submitted in an opposition
motion, the mandate to read a pro se plaintiff’s papers liberally
makes

it

allegations

appropriate
here,

where

to
they

consider
are
2

plaintiff’s

useful

in

additional

deciphering

her

complaint.” (collecting cases)). Further, it is appropriate for
the court to consider the New York State Division of Human Rights
(“DHR”) decision rejecting plaintiff’s claims (and discussed in
further detail below) on this motion to dismiss, because it is
referenced in the operative complaint. (See Compl. 37.) See Hughes
v. Xerox Corp., 37 F. Supp. 3d 629, 636 (W.D.N.Y. 2014) (“While
matters outside the four corners of a complaint are not typically
relevant for consideration on a motion to dismiss, materials that
are expressly referenced in the complaint and submitted by the
parties in connection with the underlying motion, such as the [U.S.
Equal Employment Opportunity Commission] charge and DHR complaint
at issue in the present motion, may be considered by the Court in
connection with the pending motion.” (citing Brass v. Am. Film
Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993))).
In 2009, plaintiff began working as a registered nurse
at BCC, a facility operated by OMH that provides behavioral health
care services to children with serious emotional disturbances.
(Compl. 2.) 2 The events described in plaintiff’s Second Amended
Complaint

began

in

August

2011.

(Id.)

On

August

22,

2011,

2 Although plaintiff occasionally provides paragraph numbers for the allegations
in her complaint, she does not do so consistently. Accordingly, the court refers
to page numbers when citing to the Second Amended Complaint. Additionally, the
court notes that plaintiff attached exhibits organized by letter in the Second
Amended Complaint. Some exhibits, however, were either inadvertently or
purposefully omitted.

3

plaintiff’s

coworker

Rexford

Cox

allegedly

falsely

accused

plaintiff of “hitting him in the head with a lunch tray.” (Id. 2,
5; see also id., Ex. C; ECF No. 58, Sania Khan Affirmation (“Khan
Aff.”), Ex. A, DHR Determination and Order After Investigation
(“DHR

Op.”)

at

2.)

Plaintiff

alleges

that

fear

of

criminal

repercussions stemming from the purportedly false accusation led
her to “experience[] mental anguish,” caused her blood pressure
(for which she took medication) to become elevated, and aggravated
her hypertension. (Compl. 20-21.) Three days later, on August 25,
2011, plaintiff sought time off from one of her supervisors,
Maryland Johnson, citing “[m]ental [s]tress” on the request form.
(Id. 3-4, 33; DHR Op. at 2.) Johnson granted plaintiff’s request,
but allegedly told plaintiff that “this is the last time I will
ever sign any paper for you.” (Id. 3, 33.)
On the morning of September 1, 2011, plaintiff attended
a staff meeting. (Id. 3; id., Ex. B.) During the meeting, Johnson
allegedly told plaintiff that “good nurses were here and had to
leave, you can take up your bag and leave now.” (Id. 3.) Plaintiff
contends that the comment caused her to “bec[o]me ill,” after which
she sought to leave the meeting. (Id.) Before she could leave, she
felt weak, “knelt down on the floor weeping,” and had a “mental
breakdown.” (Id.) Plaintiff’s co-worker, “Ms. Duke,” subsequently
4

“grabbed [p]laintiff’s head, and held [p]laintiff’s head in her
hands, against [p]laintiff’s will and over her objections.” (Id.;
see also id., Ex. B) According to the Second Amended Complaint,
plaintiff and Duke had previously attended the same church and
“Duke was aware that [plaintiff] did not allow anyone to handle
[her] head.” (Id. 3.) Duke allegedly “refused to let go until
another nurse yelled at her to release [p]laintiff’s head.” (Id.)
Plaintiff states that she asked a receptionist to call
911 after the incident, but “[d]efendants failed and refused to do
so.” (Id. 4, 27; see also Pl. Opp’n at 16.) Instead, defendants
sent a psychologist to speak with plaintiff. (Compl. 4.) Later on
the same day, plaintiff filed a form titled “Brooklyn Children’s
Workplace Violence Reporting Form,” describing Johnson’s comments
and Duke’s alleged assault. (Id. 7; see also id., Ex. B.) Plaintiff
alleges, however, that although a supervisor signed the form, an
unnamed “police officer . . . refused to sign the form.” (Id. 67, 16.) Plaintiff claims that defendants refused to investigate
her complaint about the assault. (Id. 7-8, 21-23, 28, 30.)
On September 4, 2011, plaintiff was examined as a walkin patent at the Kings County Hospital emergency room, where she
was

diagnosed

with

“[u]nspecified

essential

hypertension”

and

discharged a few hours later. (Id. 4; see also id., Ex. K.)
5

According to a physician’s report attached to the Second Amended
Complaint,

plaintiff

complained

of

“stress

at

work”

and

hypertension, but denied “chest pain, headache, [shortness of
breath], numbness, weakness, tingling [and] other symptoms.” (Id.)
The doctor’s report concluded that plaintiff was “not having any
symptoms due to [her] elevated blood pressure.” (Id.) Plaintiff
alleges that she began seeing a psychologist — who diagnosed her
with anxiety and depression — on September 15, 2011. (Compl. 4.)
On September 19, 2011, plaintiff alleges that she again informed
defendants of “her disability,” describing it on a time off request
form as “Mental Stress.” (Id. 4-5.) In addition to mental stress,
plaintiff alleges that she “became disabled under the law” in the
“Fall of 2011,” and that her “[d]iagnosis of [hypertension] was
made known to [defendants] for more than a year before” August
2011. (Compl. 2, 4.)
On October 14, 2011, plaintiff alleges that she was
ordered to work in the same room as Duke. (Id. 8-9, 15.) Because
plaintiff found it “painful to sit and work with Ms. Duke after
the assault,” she contacted a supervisor, Michael Harrigan. (Id.
15-16; see also Pl. Opp’n at 7.) Plaintiff told Harrigan that she
“was going to lock [her]self in the crash cart room until the
matter was addressed.” (Compl. 16, 23, 25, 29; see also id., Exs.
6

E, H.) Plaintiff does not clarify whether she ultimately worked
with Duke on October 14, 2011. Plaintiff alleges that Harrigan
subsequently assigned her and other nurses additional work to
punish plaintiff for her complaint. (Id. 26-27; Pl. Opp’n at 21,
28.) Plaintiff alleges that at some point in the “middle of October
2011,” she told Harrigan that she “was ready to have a meeting”
with Johnson and Duke about the September 1, 2011 event, though
the meeting apparently never occurred. (Compl. 29; id., Ex. C; Pl.
Opp’n at 20.)
On October 27, 2011, plaintiff had a meeting with a
different supervisor, Wendy McIntosh. (Compl. 26; id., Exs. H-I.)
McIntosh told plaintiff that plaintiff “should take some time off
so [McIntosh could] train another nurse.” (Id. 30.) Plaintiff
contends that the remark was effectively an attempt to force
plaintiff’s resignation so that she could be replaced. (Id. 9,
30.) On October 31, 2011, plaintiff alleges that she made a verbal
complaint

to

a

human

resources

department

official

about

McIntosh’s comment. (Id. 9, 30.) Plaintiff also alleges that she
requested certain accommodations at the October 27, 2011 meeting.
She

alleges

that

she

asked

McIntosh

to

have

defendants:

(1)

investigate her internal complaints and take remedial action; (2)

7

ensure that she was not assigned to work with Duke; 3 (3) permit
her to continue her medical treatment without interruption; and
(4) allow plaintiff to “voice[] her concerns and be listened to.”
(Id. 5-8, 32-33.)
In a December 2011 e-mail exchange between plaintiff and
McIntosh regarding the October 27, 2011 meeting, McIntosh wrote to
plaintiff that she intended to help plaintiff because plaintiff
“sounded very distress[ed] so [McIntosh] felt it appropriate to
advi[s]e [plaintiff] to consider taking some time off.” (Id., Ex.
H.) McIntosh explained further: “Remember I did not tell you to
take time off I told you to consider it. If you had taken extensive
leave because of what you were experiencing, yes I would have to
orient someone else to work the clinic until you return because
Ms.

Duke

cannot

work

alone.”

(Id.

(emphasis

in

original).)

Separately, at some point in December 2011, plaintiff alleges that
Juliet Skeete, another supervisor, told her: “If I am at a place
and no one wants me there, I would not hang around, I would leave.” 4
(Id. 18, 22, 26, 34.) Skeete’s comment caused plaintiff to cry.

3 Plaintiff also states that she told McIntosh in the October 27, 2011 meeting
that she “was seeing a psychologist and had “addressed the issue with [the
psychologist] so now [plaintiff] was able to work with [Duke].” (Compl. 30.)
4 On November 13, 2011, plaintiff alleges that she placed a time off request
form in Skeete’s mailbox. (Compl. 22.) Plaintiff asserts that the form was found
two days later by another employee and contends that “[s]omeone” removed the
form from Skeete’s box. (Id.)

8

(Id. 18.) Plaintiff claims that the comments from McIntosh and
Skeete amounted to a constructive discharge from BCC. (Id. 18-19,
26-28 31.)
On December 27, 2011, plaintiff’s physician diagnosed
her with hypertension “from Dec. 27-29, 2011.” (Id., Ex. D.) The
physician wrote, however, that plaintiff could “return to work on
Dec. 30, 2011.” (Id.) On December 30, 2011, plaintiff submitted a
letter to defendants stating that she “was separating from her job
as a result of harassment.” (Id. 9; DHR Op. at 1 (“[Plaintiff]
resigned on 12/30/2011.”).) On January 12, 2012, plaintiff filled
out a form – it is not clear whether the form was submitted —
complaining about McIntosh’s October 27, 2011 statement. (Compl.,
Ex. I.) On January 16, 2012, plaintiff’s separation from BCC became
“effective.” (Id. 9.) Plaintiff alleges that she has since been
replaced by another nurse who is not disabled. (Id.)
Plaintiff also complains about a number of other undated
events that allegedly occurred during her time at BCC:
•

An unspecified nurse told plaintiff “[g]et out of my
way” after plaintiff was apparently walking slowly. (Id.
18.)

•

Duke told plaintiff to “shut up.” (Id. 8.)

•

McIntosh told plaintiff to “go look for Mr. Cox and leave
Ms. Duke alone.” (Id. 9.)
9

•

II.

McIntosh said to plaintiff, “[Y]ou teach the children
coping skills why don’t you use them yourself,”
suggesting that plaintiff not seek medical treatment.
(Id.)

Procedural Background
On August 21, 2012, plaintiff filed a complaint with the

DHR alleging discrimination on the basis of her disability. (DHR
Op. at 1.) On February 25, 2013, the DHR issued an opinion
concluding that there was no evidence that plaintiff’s allegations
had “anything to do with [plaintiff’s] protected class/disability”
or that plaintiff had “suffered any adverse employment action due
to her disability.” (DHR Op. at 2-3.) Accordingly, the DHR found
no probable cause to believe that defendants had engaged in any of
the unlawful discriminatory practices about which plaintiff had
complained. (Id. at 1-2.) The U.S. Equal Opportunity Employment
Commission adopted the DHR’s findings and dismissed plaintiff’s
complaint on March 28, 2013. 5 (Khan Aff., Ex. B.)

5

Although it does not appear that plaintiff administratively exhausted all of
the claims she brings in this action, exhaustion is not necessary when nonfederal employees bring claims under the Rehabilitation Act. See Finley v.
Giacobbe, 827 F. Supp. 215, 219 n.3 (S.D.N.Y. 1993) (“There is no requirement
under the Rehabilitation Act that nonfederal employees exhaust administrative
remedies.”); see also Lee v. City of Syracuse, No. 03-CV-1329, 2005 WL 6779366,
at *5 n.4 (N.D.N.Y. Feb. 15, 2005) (same); Worthington v. City of New Haven,
No. 94-CV-00609, 1999 WL 958627, at *7 (D. Conn. Oct. 5, 1999) (same). To the
extent defendants argue otherwise (Def. Mem. at 26-27 (“Even assuming . . . she
exhausted her administrative remedies . . . .”)), they are incorrect.

10

On June 13, 2013, plaintiff filed her initial complaint
in the instant action, alleging violations of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. (ECF No. 1,
Complaint.) On March 5, 2015, the court dismissed plaintiff’s
initial complaint on the basis of Eleventh Amendment immunity.
(ECF No. 38.) Although the court held that on the facts of her
original complaint that plaintiff had failed to state a claim under
the Rehabilitation Act, plaintiff was granted leave to amend her
complaint to bring claims under the Act. (Id.)
Plaintiff filed an amended complaint (ECF No. 40) and,
subsequently, the operative Second Amended Complaint. (Compl.)
Defendants moved to dismiss the Second Amended Complaint for
failure to state a claim and filed a memorandum in support of the
motion. (ECF No. 57, Defendants’ Memorandum in Support of Motion
to

Dismiss

(“Def.

Mem.”).)

Plaintiff

filed

a

memorandum

in

opposition (Pl. Opp’n), to which defendants replied. (ECF No. 61,
Defendants’ Reply in Support of Motion to Dismiss (“Def. Reply”).)
Construing

the

Second

Amended

Complaint

liberally,

plaintiff brings claims under the Rehabilitation Act for: (1)
disparate treatment; (2) failure to accommodate; (3) hostile work

11

environment; (4) constructive discharge; and (5) retaliation. 6
(Compl. 1, 5-7, 9-10, 20-23.)
LEGAL STANDARD ON A MOTION TO DISMISS
“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 Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A complaint providing only “labels and
conclusions” or “a formulaic recitation of the elements of a cause
of action will not do.” Twombly, 550 U.S. at 555. Additionally,
courts are “obligated to construe a pro se complaint liberally.”
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). Thus, a court
must interpret pro se complaints “to raise the strongest arguments
that they suggest.” Harris v. City of New York, 607 F.3d 18, 24
(2d Cir. 2010) (internal quotation marks and citation omitted).
Still,

pro

se

“complaints

allegations

to

meet

the

must

contain

plausibility

sufficient

standard.”

factual

Green

v.

McLaughlin, 480 F. App’x 44, 46 (2d Cir. 2012).

6

Plaintiff appears also to allege that unnamed police officers violated New
York State Human Rights Law, N.Y. Exec. L. art. 15 (“Article 15”) by failing to
investigate certain complaints that plaintiff made to defendants. (Compl. 7,
21-22.) Defendants have not addressed plaintiff’s Article 15 allegations in
their briefing. Plaintiff has not named any police officers in her complaint,
or suggested that any of the named defendants are accountable under Article 15.
Accordingly, if plaintiff intended to assert any claims under Article 15, they
are dismissed with prejudice.

12

“[A] complaint in an employment discrimination lawsuit
[need not] contain specific facts establishing a prima facie case
of discrimination” under the framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Swierkiewicz v. Sorema
N. A., 534 U.S. 506, 508 (2002). Although the “pleading standard
for employment discrimination complaints is somewhat of an open
question”

in

the

Second

Circuit,

“at

a

minimum,

employment

discrimination claims must meet the standard of pleading set forth
in Twombly and Iqbal, even if pleading a prima facie case is not
required.” Hedges v. Town of Madison, 456 F. App’x 22, 23 (2d Cir.
2012). “The elements of a prima facie case do, however, provide an
outline of what is necessary to render [a plaintiff’s employment
discrimination] claims for relief plausible.” Pahuja v. Am. Univ.
of Antigua, No. 11-CV-4607, 2012 WL 6592116, at *9 (S.D.N.Y. Dec.
18, 2012) (internal quotation marks and citation omitted). “Courts
therefore ‘consider these elements in determining whether there is
sufficient factual matter in the complaint which, if true, gives
Defendant a fair notice of Plaintiff’s claim and the grounds on
which it rests.’“ Id. (quoting Murphy v. Suffolk Cty. Cmty. Coll.,
No. 10-CV-251, 2011 WL 5976082, at *5 (E.D.N.Y. Nov. 29, 2011)).

13

DISCUSSION
The court will first provide some background on the
Rehabilitation Act, and then turn to plaintiff’s claims.
I.

The Rehabilitation Act of 1973
Section

504

of

the

Rehabilitation

Act

provides,

in

relevant part, that “[n]o otherwise qualified individual with a
disability in the United States . . . shall, solely by reason of
her or his disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination under
any

program

or

assistance . . . .”

activity
29

U.S.C.

receiving
§

794(a).

Federal
“The

financial

Rehabilitation

Act . . . establishes a comprehensive federal program aimed at
improving the lot of the handicapped. Among its purposes are to
promote and expand employment opportunities in the public and
private

sectors

for

handicapped

individuals

and

place

such

individuals in employment.” Mary Jo C. v. New York State & Local
Ret. Sys., 707 F.3d 144, 157 n.4 (2d Cir. 2013) (internal quotation
marks and citations omitted). “Although its terms are broadly
drawn, the Rehabilitation Act incorporates the standards of the
Americans with Disabilities Act [(“ADA”)].” Cheung v. Donahoe, No.
11-CV-122, 2016 WL 3640683, at *5 (E.D.N.Y. June 29, 2016); see
also Rodriguez v. City of New York, 197 F.3d 611, 618 (2d Cir.
14

1999)

(considering

ADA

and

Rehabilitation

claims

“in

tandem”

because “Section 504 of the Rehabilitation Act and the ADA impose
identical requirements”). The only significant difference between
the two statutes is that the Rehabilitation Act, unlike the ADA,
requires that the alleged discrimination take place “solely due to
an individual’s disability.” Amie v. Shinseki, 806 F. Supp. 2d
641, 644 (W.D.N.Y. 2011) (citations omitted).
Generally, a plaintiff can base a discrimination claim
under

the

Rehabilitation

Act

on

“one

of

three

theories

of

liability: disparate treatment, disparate impact, or failure to
make a reasonable accommodation.” Davis v. Shah, 821 F.3d 231, 260
(2d Cir. 2016) (citation omitted). Plaintiff’s first two claims
(for disparate treatment and failure to accommodate) fall within
the Second Circuit’s recognized theories of liability under the
Rehabilitation Act. Plaintiff’s third and fourth claims are based,
respectively,
discharge
claim

on

hostile

(essentially

(see

infra

affirmatively

an

Part

recognized

work

environment

aggravated

V))

theories

under

the

hostile
that

and

constructive

work

have

environment

not

Rehabilitation

yet

Act

by

been
the

Second Circuit. As discussed further below, the court assumes
without deciding that plaintiff can bring claims for hostile work
environment and constructive discharge under the Rehabilitation
15

Act. Plaintiff’s fifth claim, for retaliation, is actionable under
the Rehabilitation Act.
II.

Disparate Treatment
To state a claim for disparate treatment based on a

disability

under

the

Rehabilitation

Act,

a

plaintiff

must

demonstrate that: “(1) she is disabled within the meaning of the
Act; (2) she was otherwise qualified to perform the essential
functions of her job, with or without a reasonable accommodation;
(3) she suffered an adverse employment action due solely to her
disability;

and

(4)

her

employer

receives

federal

financial

assistance.” Cheung, 2016 WL 3640683, at *5.
Plaintiff contends, and defendants do not dispute, that
defendants receives federal financial assistance. (Compl. 11; Pl.
Opp’n at 19.) Defendants argue that plaintiff is not disabled
within the meaning of the Act and that she did not suffer an
adverse action solely due to her disability. (Def. Mem. at 10-18.)
A.

Plaintiff is Not Disabled Within the Meaning of the
Rehabilitation Act
Plaintiff first must sufficiently allege that she is

disabled within the meaning of the Rehabilitation Act. Both the
ADA and the Rehabilitation Act define “disability” as “(A) a
physical or mental impairment that substantially limits one or
more major life activities of such individual; (B) a record of
16

such an impairment; or (C) being regarded as having such an
impairment.”

42

U.S.C.

§ 12102(1);

29

U.S.C.

§

705(20)(B).

Plaintiff alleges that she is disabled within the meaning of each
of the three categories. (Compl. 11-12.) The court addresses each
category in turn.
i.

Plaintiff Has Not Adequately Pled That She Has An
Actual Disability

To establish that she suffers from an actual disability,
a plaintiff must: “(1) show that [s]he suffers from a physical or
mental impairment; (2) identify an activity claimed to be impaired
and establish that it constitutes a major life activity; and (3)
show that [her] impairment substantially limits the major life
activity.” Sternkopf v. White Plains Hosp., No. 14-CV-4076, 2015
WL 5692183, at *5 (S.D.N.Y. Sept. 25, 2015) (citing Colwell v.
Suffolk Cty. Police Dep’t, 158 F.3d 635, 641 (2d Cir. 1998),
superseded on other grounds by 42 U.S.C. § 12102(3)(A)).
(a)
First,

Impairment
the

court

considers

whether

plaintiff

has

adequately alleged that she suffers from a physical or mental
impairment within the meaning of the Rehabilitation Act. Liberally
construing plaintiff’s complaint, she alleges that she suffers

17

from “anxiety and depression” as well as hypertension. 7 (Compl. 4,
24, 29, 34.)
Regulations
establish

that

interpreting

“[a]ny

mental

or

the

Rehabilitation

psychological

disorder,

Act
such

as . . . emotional or mental illness” qualifies as a physical or
mental impairment. 45 C.F.R. § 84.3(j)(2)(i)(B); see also 29 C.F.R.
§ 1630.2(h)(2) (analogous regulation in ADA context). Depression
and anxiety can therefore be considered mental impairments. See
Dean v. Westchester Cty. P.R.C., 309 F. Supp. 2d 587, 593 (S.D.N.Y.
2004) (“Depression is considered a physical or mental impairment
under the ADA.”); see also Jones v. HCA, 16 F. Supp. 3d 622, 632
(E.D.

Va.

2014)

(finding

that

“depression

and

anxiety

meet

the . . . definition of ‘mental’ impairment” (citation omitted));
Crawford v. New York Life Ins. Co., No. 04-CV-1853, 2006 WL
2792779, at *6 (E.D.N.Y. Sept. 27, 2006) (“An anxiety disorder can
be considered by a court to be a disability if it substantially
limits

the

disabled

individual’s

ability

to

communicate

with

others.”). Additionally, “hypertension . . . qualif[ies] as [a]
physical impairment[].” Raffaele v. City of New York, No. 00-CV-

7

Plaintiff alleges that she suffered from “HTN” (Compl. 29, 34), which the
court construes as indicating hypertension. See 8 Attorneys Medical Advisor
§ 85:7 (“HTN: hypertension.”); Milien v. Astrue, No. 10-CV-2447, 2010 WL
5232978, at *3 (E.D.N.Y. Dec. 16, 2010) (construing “HTN” as hypertension).

18

3837, 2004 WL 1969869, at *13 (E.D.N.Y. Sept. 7, 2004); see also
Boughton v. Town of Bethlehem, No. 13-CV-1583, 2015 WL 5306077, at
*4 (N.D.N.Y. Sept. 10, 2015) (“[T]he record supports the inference
that

Plaintiff

had

a

physical

impairment,

i.e.,

hypertension . . . .”).
Plaintiff has adequately pled that she suffers from two
mental impairments (depression and anxiety) as well as a physical
impairment (hypertension).
(b)

Major Life Activities

Plaintiff must next plausibly identify a “major life
activity” within the meaning of the Rehabilitation Act that is
affected by her impairments. Plaintiff alleges that the major life
activities affected by her impairments are: “(a) brisk walking;
(b)

emotional

Inferiority;

disturbance;

(e)

running

(c)
and

sleeping;

attending

(d)

feeling

church[;

and]

of
(f)

skipping.” (Compl. 4.)
Under the Rehabilitation Act and regulations, major life
activities “include, but are not limited to, caring for oneself,
performing
walking,

manual

tasks,

standing,

seeing,

lifting,

hearing,

bending,

eating,

speaking,

sleeping,
breathing,

learning, reading, concentrating, thinking, communicating, and
working.”

42

U.S.C.

§

12102(2)(A);
19

see

also

45

C.F.R.

§

84.3(j)(2)(ii) (defining “major life activities” as “functions
such as caring for one’s self, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working”). As
an initial matter, brisk walking, running, and skipping do not
constitute

major

life

activities

within

the

meaning

of

the

Rehabilitation Act and regulations. See Schroeder v. Suffolk Cty.
Cmty. Coll., No. 07-CV-2060, 2009 WL 1748869, at *6 n.2 (E.D.N.Y.
June 22, 2009) (“[R]unning and jumping have been held to not
constitute major life activities within the meaning of the ADA.”
(collecting cases)); Rutherford v. Wackenhut Corp., No. 04-CV1216, 2006 WL 1085124, at *4 (E.D. Wis. Apr. 25, 2006) (finding
that “skipping” is not a major life activity); Nedder v. Rivier
Coll., 908 F. Supp. 66, 76 (D.N.H. 1995) (“[T]he inability to walk
at

a

brisk

pace

for

extended

periods

does

not

constitute

a

significant limitation on the major life activity of walking.”).
Further,
“feeling

plaintiff’s
of

purported

Inferiority”

are

“emotional

more

properly

disturbance”
characterized

and
as

impairments than major life activities (and are encompassed in the
court’s

analysis

regarding

plaintiff’s

alleged

depression

and

anxiety above). (See supra Discussion Part II-A-i-(a)).
Sleeping, by contrast, is a major life activity. See 42
U.S.C. § 12102(2)(A) (including “sleeping” in a list of “major
20

life

activities”

for

purposes

of

the

ADA);

29

C.F.R.

§

1630.2(i)(1)(i) (same); Mary Jo C., 707 F.3d at 165 (recognizing
sleeping as a major life activity); Price v. Mount Sinai Hosp.,
458 F. App’x 49, 51 (2d Cir. 2012) (same).
Church

attendance

presents

a

closer

call.

Compare

Barfield v. Bell S. Telecomms., Inc., 886 F. Supp. 1321, 1324-25
(S.D.

Miss.

1995)

(assuming

without

deciding

that

church

attendance can be a major life activity, but finding that plaintiff
had not shown a substantial limitation of that activity), with
Bear v. Exxon Mobil Corp., No. 03-CV-798, 2004 WL 2603727, at *6
(E.D. La. Nov. 15, 2004) (“[A]lthough the Court recognizes that
attending

religious

services

certainly

is

important

to

many

people, the Court does not find that it has the same legal
significance to daily life as do the activities that have been
specifically identified by the regulations and jurisprudence as
constituting

major

life

activities,

e.g.,

breathing,

seeing,

walking, bathing, brushing one’s teeth, and working.”). Although
plaintiff’s Second Amended Complaint contains nothing beyond the
conclusory allegation that her ability to attend church has been
affected (Compl. 3), the court will grant plaintiff the benefit of
the doubt and assume without deciding that church attendance
constitutes a major life activity.
21

(c)

Substantial Limitation

To establish an actual disability, plaintiff finally
must show that that her alleged impairment substantially limits a
major life activity. The only major life activities plaintiff
plausibly

alleges

are

impacted

by

her

purported

impairments

(depression, anxiety, and hypertension) are sleeping and church
attendance. (Compl. 4; see also supra Discussion Part II-A-i-(b).)
The term “substantially limits,” is “construed broadly
in favor of expansive coverage” and “is not meant to be a demanding
standard.” 29 C.F.R. § 1630.2(j)(1)(i). Thus, “[a]n impairment
need not prevent, or significantly or severely restrict, the
individual from performing a major life activity in order to be
considered

substantially

limiting.”

Id.

§

1630.2(j)(1)(ii).

Plaintiff must still, however, comply with Fed. R. Civ. P. 8 by
pleading sufficient facts to “raise a right to relief above the
speculative level” and “nudge . . . claims across the line from
conceivable to plausible.” Twombly, 550 U.S. at 555, 557, 570;
Gaube v. Day Kimball Hosp., No. 13-CV-1845, 2015 WL 1347000, at *7
(D. Conn. Mar. 24, 2015) (“Notwithstanding the . . . direction to
broadly construe the term ‘substantially limits,’ an ADA claimant
still must satisfy the pleading requirements of Fed. R. Civ. P.
8 . . . .”); see also Swierkiewicz, 534 U.S. at 508 (“We hold that
22

an employment discrimination complaint need not [contain specific
facts establishing a prima facie case of discrimination] and
instead must contain only ‘a short and plain statement of the claim
showing that the pleader is entitled to relief.’” (quoting Fed. R.
Civ. P. 8(a)(2))).
Difficulty sleeping, the Second Circuit has recognized,
is “extremely widespread.” Colwell, 158 F.3d at 644. A substantial
limitation on sleeping must be “worse than is suffered by a large
portion of the nation’s adult population.” Id.; see also 29 C.F.R.
§ 1630.2(j)(1)(ii) (“An impairment is a disability within the
meaning of this section if it substantially limits the ability of
an individual to perform a major life activity as compared to most
people in the general population.” (emphasis added)). Conclusory
statements regarding sleep difficulties are therefore insufficient
to adequately allege a substantial limitation. In Gaube v. Day
Kimball Hospital, for example, the plaintiff’s only allegation
regarding sleep was that her depression, migraines, and insomnia
“substantially
sleep.”

2015

plaintiff’s

limited
WL

“bare

[her] . . .

1347000,

at

ability

*8.

allegation

that

The

to

court

her

get

a

restful

concluded

health

that

conditions

substantially limited her ability to ‘get a restful sleep’ is . . .
devoid of further factual enhancement showing that her ability to
23

sleep is substantially limited as compared to that of the general
population.” Id. (finding that plaintiff had not plausibly alleged
that her ability to sleep was substantially limited). Similarly,
in Krachenfels v. North Shore Long Island Jewish Health System,
No. 13–CV–243, 2014 WL 3867560 (E.D.N.Y. July 29, 2014), the
plaintiff’s allegation that her skin inflammation caused her “some
difficulty sleeping, without any more detail,” was insufficient to
defeat summary judgment on the issue of whether her sleep issues
were substantially limited. Id. at *13. Finally, in Dancause v.
Mount Morris Central School District, No. 13-CV-6019, 2013 WL
2946063 (W.D.N.Y. June 14, 2013), aff’d, 590 F. App’x 27 (2d Cir.
2014), a plaintiff’s conclusory allegation that her gum disease
prevented

her

from

“adequately . . .

sleeping”

was

deemed

insufficient to survive a motion to dismiss. Id. at *5.
Here,

plaintiff’s

only

allegation

regarding

sleep

appears in a list of “major life activities” she alleges were
impacted by her anxiety, depression, and hypertension. (See Compl.
4 (“Plaintiff’s disabilities substantially limited Plaintiff’s
major life activities, including among others (a) brisk walking
(b) emotional disturbance; (c) sleeping . . . .”).) Plaintiff does
not provide any further factual support for her purported sleep
problems in the Second Amended Complaint. She does not “describe
24

in any detail the frequency, duration, or severity of [her] sleep
impairment”

or

actually

state

that

her

alleged

impairments

“cause[] [her] sleep impairment” Telemaque v. Marriott Int’l,
Inc., No. 14-CV-6336, 2016 WL 406384, at *9 (S.D.N.Y. Feb. 2, 2016)
(finding allegations

regarding

sleep

problems

insufficient

to

defeat a motion to dismiss). Like the plaintiffs’ sleep-related
claims in Gaube, Dancause, and Telemaque — which were rejected on
motions to dismiss — plaintiff’s sleep-related claims here do not
plausibly allege that her sleep was substantially limited.
Further, even assuming religious practice qualifies as
a major life activity, plaintiff’s allegations regarding church
attendance suffer from the same insufficiencies as her sleeprelated claims. She merely includes “church attendance” in a list
of major life activities. (Compl. 4.) Plaintiff does not explain
whether she can no longer attend church at all, whether she simply
must

attend

gratification
plaintiff’s

less
from

frequently,
religious

complaint

was

or

whether

services.

insufficient

For

she
the

derives
same

regarding

her

less

reasons
sleep

difficulties, it is insufficient regarding her church attendance. 8

8

Even if the court were to look beyond the Second Amended Complaint and evaluate
plaintiff’s opposition memorandum, her allegations regarding both sleep and
church attendance fall short. Plaintiff does not even mention church attendance
in her opposition brief, and her allegations regarding sleep are no more
detailed. (E.g., Pl. Opp’n at 24 (allegation that plaintiff’s “anxiety
level . . . disrupted her ability to sleep”).) Although plaintiff adds “eating,”

25

ii.

Plaintiff Has Not Adequately Pled That She Has a
Record of Disability

Plaintiff

next

alleges

that

she

had

a

record

of

hypertension “for more than a year before the incidents” described
in the Second Amended Complaint. (Compl. 4.) “The ADA’s definition
of disability may be satisfied if a plaintiff demonstrates a record
of an impairment that substantially limits one or more major life
activities.” Levine v. Smithtown Cent. Sch. Dist., 565 F. Supp. 2d
407, 425 (E.D.N.Y. 2008) (internal quotation marks and citation
omitted).

To

show

establish

that

a

she

record
“has

a

of

impairment,

history

of

an

a

plaintiff

must

impairment

that

substantially limited one or more major life activities when
compared to most people in the general
misclassified

as

having

had

such

an

population,
impairment.”

or

was

29 C.F.R.

§ 1630.2(k)(2).
Plaintiff’s failure to plausibly allege a substantial
limitation to a major life activity (see supra Discussion Part IIA-i-(c)) precludes her from asserting that she has a record of
disability. See Darcy v. Lippman, No. 03-CV-6898, 2008 WL 629999,

“hearing,” and “walking” to a list of affected major life activities for the
first time in her opposition (id. at 5, 11, 19), she provides no detail about
how her impairments limit her ability to eat, hear, or walk. (See id. at 19
(“The excessive stress without relief later affected plaintiff’s walking,
hearing, sleeping and eating.”); id. at 11 (“My walking is substantially
limited. I have substantial hearing loss in left ear also. Sleeping and eating
was affected also.”).)

26

at *16 (S.D.N.Y. Mar. 10, 2008) (rejecting record-based disability
claim

where

plaintiff

“fail[ed]

to

plead

that

he

had

a

substantially limiting impairment when he returned to work”);
Rodriguez v. Verizon Telecom, No. 13-CV-6969, 2014 WL 6807834, at
*5 (S.D.N.Y. Dec. 3, 2014) (finding that plaintiff failed to
sufficiently plead a record of disability where he “allege[ed] no
facts regarding how his impairment substantially limited a major
life

activity”).

As

discussed

above,

plaintiff’s

conclusory

allegation about sleep problems and church attendance (Compl. 4)
are inadequate even at the pleading stage.
iii. Plaintiff Has Not Adequately Pled That She Was
Regarded As Having a Disability
Plaintiff finally alleges that she is “regarded as”
having

a

disability.

“Under

the

third

category

of

the

ADA’s

definition of disability” — the “regarded as” disabled prong — “a
plaintiff must allege that he has been subjected to an action
prohibited by the ADA . . . because of an actual or perceived
impairment that is not both transitory and minor.” Rodriguez, 2014
WL 6807834, at *5 (internal quotation marks and citation omitted).
“A transitory impairment is defined as ‘an impairment with an
actual or expected duration of [six] months or less.’” Hernandez
v. Int’l Shoppes, LLC, 100 F. Supp. 3d 232, 250 (E.D.N.Y. 2015)
(quoting 42 U.S.C. § 12102(3)(B)).
27

To establish that she is regarded as having a disability,
a plaintiff need not “present evidence of how or to what degree
[defendants] believed the impairment affected him.” Hilton v.
Wright, 673 F.3d 120, 129 (2d. Cir. 2012); see also 42 U.S.C. §
12102(3) (“An individual meets the requirement of ‘being regarded
as having such an impairment’ if the individual establishes that
he or she has been subjected to an action prohibited under this
chapter because of an actual or perceived physical or mental
impairment whether or not the impairment limits or is perceived to
limit a major life activity.”). For example, in Rodriguez, a
plaintiff plausibly alleged that he was regarded as suffering from
drug and alcohol addiction where “his manager falsely concluded
that he was under the influence based on the manager’s perception
that plaintiff ha[d] a history with addiction.” 2014 WL 6807834,
at *5. The Rodriguez plaintiff did not need to plead that his
alcoholism and drug addiction substantially limited any major life
activity.
Liberally

construing

the

Second

Amended

Complaint,

plaintiff alleges that she repeatedly told BCC supervisors that
she was experiencing mental health issues. (Compl. 4 (“Employer
was

made

aware

that

plaintiff

was

experiencing

mental

anguish . . . .”).) Plaintiff, however, fails to plausibly assert
28

that she did not have an “impairment with an actual or expected
duration

of

[six]

months

or

less.”

42

U.S.C.

§ 12102(3)(B).

Plaintiff alleges that she “became disabled under the law” around
“the Fall of 2011.” (Compl. 2.) Her mental health issues were,
however, according to her own complaint, sporadic. For example,
she occasionally requested time off and informed her supervisors
that her requests were due to her impairments. (Id. 18, 22, 30.)
At least some of her requests were granted. (Id. 33.) Additionally,
she attached as an exhibit a letter from a physician stating that
plaintiff “had Hypertension from Dec. 27-29 2011 and she was
disabled to work” but the physician also wrote that plaintiff could
“return

to

work

on

Dec.

30,

2011.”

(Id.,

Ex.

D.)

Further,

McIntosh’s statement to plaintiff that she “should take some time
off” does not plausibly allege that McIntosh believed plaintiff to
be suffering from an impairment that would last or could be
expected to last over six months. (Id. 30.)
Accordingly, plaintiff has not adequately pled that she
was regarded as having a disability. See Horsham v. Fresh Direct,
136 F. Supp. 3d 253, 264 (E.D.N.Y. 2015) (“[A]s the facts are
currently

pleaded,

Defendant

appears

to

have

perceived

that

Plaintiff had only a transitory impairment. As a result, Plaintiff
has not sufficiently alleged that he was disabled under the ADA.”).
29

B.

Adverse Action
Further, even if plaintiff had adequately alleged that

she was disabled within the meaning of the Rehabilitation Act, she
has not plausibly alleged that she suffered any adverse employment
action. Here, reading the Second Amended Complaint liberally,
plaintiff

alleges

seven

adverse

employment

actions:

(1)

Duke

allegedly assaulted her on September 1, 2011; (2) defendants
allegedly failed to adequately investigate her complaints about
Duke’s purported assault; (3) she was allegedly forced to work
with Duke on October 14, 2011; (4) she was given additional work
by Harrigan; (5) McIntosh stated to her that she should “take some
time off”; (6) co-workers and supervisors allegedly made assorted
mean-spirited

comments

to

her;

and

(7)

she

was

purportedly

constructively discharged. 9
“A plaintiff sustains an adverse employment action if he
or she endures a ‘materially adverse change’ in the terms and
conditions of employment.” Galabya v. New York City Bd. of Educ.,
202 F.3d 636, 640 (2d Cir. 2000). To qualify as materially adverse,
a change in working conditions must be “‘more disruptive than a
mere inconvenience or an alteration of job responsibilities.’”

9 The court addresses, and rejects, plaintiff’s constructive discharge claim
separately infra. (See Discussion Part V.)

30

Vale v. Great Neck Water Pollution Control Dist., 80 F. Supp. 3d
426, 434 (E.D.N.Y. 2015) (quoting Galabya, 202 F.3d at 640).
“Examples

of

materially

adverse

employment

actions

include

termination of employment, a demotion evidenced by a decrease in
wage or salary, a less distinguished title, a material loss of
benefits,

[and]

significantly

diminished

material

responsibilities . . . .” Feingold v. New York, 366 F.3d 138, 152
(2d Cir. 2004) (internal quotation marks and citation omitted).
Because

the

meaning

of

an

adverse

employment

action

in

Rehabilitation Act and ADA discrimination actions is the same as
in Title VII discrimination actions, see Medcalf v. Thompson Hine
LLP, 84 F. Supp. 3d 313, 329 n.14 (S.D.N.Y. 2015) (“An adverse
employment action has the same meaning in ADA discrimination claims
as it does in the Title VII context.” (citing Adams v. Festival
Fun Parks, LLC, 560 F. Appx. 47, 49 (2d Cir. 2014))), the court
also

refers

to

Title

VII

cases

below

in

evaluating

whether

plaintiff sustained an adverse employment action.
None
plaintiff

of

qualify

the
as

purportedly
adverse

adverse

employment

actions

actions.

alleged
The

by

alleged

assault by Duke, who held plaintiff’s head when she kneeled to the
floor crying, did not alter the terms or conditions of plaintiff’s
employment. Compare Mathirampuzha v. Potter, 548 F.3d 70, 73, 79
31

(2d Cir. 2008) (finding no adverse employment action on summary
judgment where an indirect supervisor “grabbed the plaintiff’s
arm, punched him in the shoulder and the chest, spit in his face,
and poked him in the eye”), with Compl. 3 (“Ms. Duke . . . held
Plaintiff’s

head

in

her

hands.”).

Additionally,

defendants’

purported failure to investigate plaintiff’s complaints does not
constitute an adverse employment action. See Fincher v. Depository
Trust & Clearing Corp., 604 F.3d 712, 721 (2d Cir. 2010) (“[A]n
employer’s failure to investigate a complaint of discrimination
cannot

be

considered

retaliation

for

an

the

adverse

filing

of

employment
the

action

same

taken

in

discrimination

complaint.”). Plaintiff’s allegations that she was forced to work
with a hostile co-worker and was ignored by her supervisors are
not

adverse

employment

actions.

See

Carpenter

v.

City

of

Torrington, 100 F. App’x 858, 860 (2d Cir. 2004) (“Although she
claims she was forced to share an office with a hostile co-worker
and was given a ‘silent treatment,’ these claims do not amount to
a ‘materially adverse change’ in the terms and conditions of
employment.”).
Plaintiff also appears to argue that she was given
additional work in retaliation for exercising her rights under the
Rehabilitation Act. (Compl. 30 (“I was retaliated against because
32

I

asked

Supervisors

to

address

complaint.

Mr.

Harrigan

gave

plaintiff additional work.”).) “[A]ssignments that are part of an
employee’s normal responsibilities are not ‘adverse employment
actions’ where . . . the rate of pay and benefits remains the
same.” Rodriguez v. Coca Cola Refreshments USA, Inc., No. 12–CV–
234, 2013 WL 5230037, at *3 (E.D.N.Y. Sept. 16, 2013) (collecting
cases); see also Potash v. Fla. Union Free Sch. Dist., 972 F. Supp.
2d

557,

584

(S.D.N.Y.

2013)

(“Changes

in

assignments

or

responsibilities that do not ‘radically change’ the nature of work
are

not

typically

adverse

employment

actions.”

(alteration

omitted) (citing Galabya, 202 F.3d at 640)). Here, plaintiff does
not allege the nature of the additional work. Nor does she allege
that

the

additional

work

was

outside

of

her

general

responsibilities. Additionally, she does not plausibly contend
that

there

was

a

radical

change

in

the

nature

of

her

work

responsibilities. Plaintiff’s allegation regarding additional work
is far too conclusory to constitute an adverse employment action. 10
Plaintiff

also

appears

to

argue

that

McIntosh’s

statement on October 27, 2011 that plaintiff should “take some

10

Even if the additional work did constitute an adverse employment action,
plaintiff did not adequately plead a causal nexus between the additional work
and her disability. For example, plaintiff stated that other employees (who she
does not allege suffered from any disabilities) were asked to do more work as
well. (Compl. 16, 26.)

33

time off so [McIntosh could] train another nurse” (Compl. 30; see
also id., Ex. H) constituted an adverse employment action. No
action was taken after the meeting, however. Plaintiff was not
terminated, she was not demoted, she did not lose benefits, and
she did not have fewer responsibilities. See Feingold, 366 F.3d at
152. No consequences of any kind flowed from McIntosh’s statement,
according

to

plaintiff’s

complaint.

plaintiff

on

October

2011,

“‘materially

adverse

27,

change’

in

McIntosh’s

statement

therefore,

did

not

the

and

conditions

terms

effect

to
a
of

[plaintiff’s] employment.” Galabya, 202 F.3d at 640.
Plaintiff also alleges a series of comments directed at
her

from

supervisors

and

co-workers

were

adverse

employment

actions. For example, plaintiff alleges that she was told to “shut
up,” to use her “coping skills” and to “get out of [the] way” by
other nurses and supervisors. (Compl. 8-9, 18, 28.) Additionally,
plaintiff alleges that: (1) Johnson told her that “good nurses
were here and had to leave, you can take up your bag and leave
now” and (2) Skeete stated, “If I am at a place and no one wants
me there, I would not hang around, I would leave.” (Id. 3, 18.)
The Supreme Court has held, however, that “simple teasing, offhand
comments, and isolated incidents (unless extremely serious) will
not amount to discriminatory changes in the terms and conditions
34

of employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998)

(internal

comments

about

quotation
which

marks

plaintiff

and

citation

complains

omitted).
are

The

properly

characterized as “offhand comments” and “isolated incidents.” See
Malgieri v. Ehrenberg, No. 12-CV-2517, 2012 WL 6647515, at *7
(S.D.N.Y.

Dec.

21,

2012)

(finding

that

“being

told

to

‘shut

up’ . . . hardly constitutes adverse action” for purposes of a
retaliation claim); Maysonet v. Thompson, No. 03-CV-5223, 2005 WL
975897, at *9 (S.D.N.Y. Apr. 25, 2005) (“[R]emarks that make an
employee feel ‘frightened’ or ‘intimidated’ do not constitute an
adverse employment action unless the employee suffered a material
adverse change in the terms and conditions of employment.” (citing
Torres v. Pisano, 116 F.3d 625, 639-40 (2d Cir. 1997))). The
comments about which plaintiff complains did not alter the terms
and conditions of her employment. 11

11

The court provides a more detailed claim-by-claim analysis regarding the
adverse actions plaintiff alleges she suffered when addressing plaintiff’s
retaliation claim. (See infra Discussion Part VI.) The Rehabilitation Act’s
anti-retaliation protections extend beyond its substantive anti-discrimination
protections. See Vale, 80 F. Supp. 3d at 439 (“[U]nlike claims of
discrimination, which limit what qualifies as an ‘adverse employment action’ to
changes in the terms and conditions of employment, adverse employment actions
in the context of a claim of retaliation are much broader.” (internal quotation
marks and citations omitted)). The bar for establishing an adverse action in
the retaliation context is therefore lower than in the discrimination context.
In addition, adverse actions in the retaliation context can be viewed in the
aggregate, whereas adverse actions in the discrimination context must be
evaluated individually. See Lewis v. Boehringer Ingelheim Pharm., Inc., 79 F.
Supp. 3d 394, 412 (D. Conn. 2015) (“Although incidents may be considered in the
aggregate in the retaliation context . . . , courts have not yet recognized

35

III. Failure to Accommodate
Plaintiff

next

alleges

that

defendants

failed

to

accommodate her disabilities. Plaintiff asserts that defendants
should have accommodated her by: (1) investigating her internal
complaints and taking remedial action; (2) ensuring that she was
not assigned to work with Duke; (3) permitting her to continue her
medical treatment without interruption; and (4) allowing plaintiff
to “voice[] her concerns and be listened to.” (Compl. 5-8, 32-33.)
A

plaintiff

can

state

a

claim

for

employment

discrimination premised on an employer’s failure to accommodate
her disability by alleging facts showing that: “(1) [P]laintiff is
a person with a disability under the meaning of the ADA; (2) an
employer covered by the statute had notice of his disability; (3)
with

reasonable

accommodation,

plaintiff

could

perform

the

essential functions of the job at issue; and (4) the employer has
refused to make such accommodations.” McBride v. BIC Consumer

such claims in the discrimination context.” (internal quotation marks and
citations omitted)). The court’s conclusion that plaintiff has not plausibly
alleged an adverse action for purposes of her retaliation claim (infra
Discussion Part VI-A) therefore provides even further support for the conclusion
that she has not alleged an adverse employment action for purposes of her
discrimination claim. See Bailey v. Wash. Metro. Area Transit Auth., 810 F.
Supp. 2d 295, 302 (D.D.C. 2011) (“If the severance package and discussion do
not constitute adverse employment action for the purpose of Plaintiff’s
retaliation claim, a fortiori, they do not constitute such for her
discrimination claim.”).

36

Products Mfg. Co., 583 F.3d 92, 96-97 (2d Cir. 2009); Lyons v.
Legal Aid Soc., 68 F.3d 1512, 1515 (2d Cir. 1995) (recognizing
that the elements of a failure-to-accommodate discrimination claim
under the ADA and § 504 of the Rehabilitation Act are identical,
other than § 504’s requirement that the employer receive federal
funding). An employer must make “reasonable accommodations to the
known physical or mental limitations of an otherwise qualified
individual with a disability who is an applicant or employee,
unless such covered entity can demonstrate that the accommodation
would impose an undue hardship on the operation of the business of
such covered entity.” 42 U.S.C. § 12112(b)(5)(A); Henrietta D. v.
Bloomberg,

331

F.3d

261,

273

(2d

Cir.

2003)

(applying

§ 12112(b)(5)(A) in Rehabilitation Act context).
Here, as discussed earlier (see supra Discussion Part
II-A),

plaintiff

has

not

plausibly

alleged

that

she

has

a

disability within the meaning of the Rehabilitation Act. Because
a plaintiff must adequately plead that she has a disability to
state a claim for failure to accommodate, plaintiff’s failure to
accommodate claim must fail. See Fairbrother v. Donahoe, No. 12CV-6321, 2014 WL 4685298, at *4 (W.D.N.Y. Sept. 19, 2014) (“To
establish a claim for failure to accommodate, a plaintiff must
demonstrate that . . . he was ‘disabled’ within the meaning of the
37

[Rehabilitation

Act] . . . .”

(internal

quotation

mark

and

citation omitted)); see also McBride, 583 F.3d at 96-97 (same).
IV.

Hostile Work Environment
Plaintiff next alleges that defendants subjected her to

a hostile work environment. The Second Circuit “has not yet decided
whether a hostile work environment claim may be made under the
ADA.” Wesley-Dickson v. Warwick Valley Cent. Sch. Dist., 586 F.
App’x 739, 745 n.2 (2d Cir. 2014); see also Preston v. Bristol
Hosp., No. 15-1150, 2016 WL 1253872, at *2 n.3 (2d Cir. Mar. 31,
2016) (same). The court will assume for purposes of this decision
that a hostile work environment claim is actionable under the ADA,
and, therefore, is also actionable under the Rehabilitation Act.
The court will employ the standards applicable to a hostile work
environment claim in the Title VII context. See Wesley-Dickson,
586 F. App’x at 746 (applying Title VII standards to ADA hostile
work environment claim).
A hostile work environment claim requires a plaintiff to
prove two principal elements. First, she must show that “the
workplace is permeated with discriminatory intimidation, ridicule,
and insult . . . that is sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create an abusive
working environment.” Lekettey v. City of New York, 637 F. App’x
38

659, 661 (2d Cir. 2016) (internal quotation marks and citation
omitted). The complained-of conduct must be objectively hostile or
abusive; the plaintiff must subjectively perceive the conduct as
hostile or abusive; and the conduct must create the environment
because of the plaintiff’s disability. See Patane v. Clark, 508
F.3d 106, 113 (2d Cir. 2007); Gregory v. Daly, 243 F.3d 687, 691–
92 (2d Cir. 2001). If a plaintiff relies on multiple events, “[t]he
incidents must be more than episodic; they must be sufficiently
continuous and concerted in order to be deemed pervasive.” Perry
v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997) (internal
quotation marks and citations omitted); see also Petrosino v. Bell
Atl., 385 F.3d 210, 223 (2d Cir. 2004) (“Simple teasing, offhand
comments,

or

isolated

incidents

of

offensive

conduct

(unless

extremely serious) will not support a claim of discriminatory
harassment.”). Courts examine “the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or
humiliating,

or

a

mere

unreasonably

interferes

offensive
with

an

utterance;

employee’s

and

work

whether

it

performance.”

Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993) (calling
for totality of the circumstances inquiry).
Second, a plaintiff must show that “a specific basis
exists

for

imputing

the

conduct
39

that

created

the

hostile

environment

to

the

employer.”

Lekettey,

637

F.

App’x

at

661

(internal quotation marks and citation omitted). “When harassment
is perpetrated by the plaintiff’s coworkers, an employer will be
liable if the plaintiff demonstrates that the employer either
provided

no

reasonable

avenue

for

complaint

or

knew

of

the

harassment but did nothing about it.” Perry, 115 F.3d at 149
(internal quotation marks and citation omitted). “[W]here a lowlevel supervisor does not rely on his supervisory authority to
carry

out

the

harassment,

indistinguishable

from

the

cases

situation
in

which

will
the

generally

be

harassment

is

perpetrated by the plaintiff’s co-workers . . . .” Karibian v.
Columbia Univ., 14 F.3d 773, 780 (2d Cir. 1994).
Here, plaintiff’s hostile work environment claim cannot
succeed. As an initial matter, as discussed earlier (see supra
Discussion Part II-A), plaintiff has not adequately pled that she
has a disability within the meaning of the Rehabilitation Act, a
prerequisite to stating a claim for a hostile work environment in
the disability context. See Smith v. Cingular Wireless, 579 F.
Supp. 2d 231, 240-41 (D. Conn. 2008) (“As a prerequisite for
bringing her hostile work environment and wrongful termination
claims

under

the

ADA,

[a

plaintiff]

must

show

that

she

is

‘disabled’ within the meaning of the ADA.” (citation omitted));
40

Caruso

v.

Camilleri,

No.

04-CV-167,

2008

WL

170321,

at

*28

(W.D.N.Y. Jan. 15, 2008) (“As a threshold matter, as the court has
determined

that

Plaintiff

has

not

established

that

he

is

a

qualified person with a disability under the ADA, Plaintiff’s
hostile work environment claim based on his alleged disability
must also fail.”).
Even assuming plaintiff had adequately pled that she
suffers from a disability, her hostile work environment claim fails
for two additional reasons. First, plaintiff does not allege a
causal relationship between many of the incidents underlying her
complaint and her alleged disabilities (hypertension, anxiety, and
depression). Second, the isolated incidents about which plaintiff
complains (those causally related to her purported disabilities)
do

not

establish

intimidation,

a

workplace

ridicule,

and

“permeated

insult . . .

with
that

discriminatory
is

sufficiently

severe or pervasive to alter the conditions of [her] employment
and create an abusive working environment.” Lekettey, 637 F. App’x
at 661 (internal quotation marks and citation omitted).
A.

Plaintiff Fails to Allege a Causal Relationship Between
Her Impairments and Much of the Purported Discrimination
First, plaintiff does not allege a causal relationship

between the vast majority of the incidents underlying her complaint
and

her

alleged

disabilities
(hypertension,
41

anxiety,

and

depression). See Missick v. City of New York, 707 F. Supp. 2d 336,
355

(E.D.N.Y.

2010)

(recognizing

that

a

plaintiff

“must

demonstrate that she suffered such abuse because of her membership
in a protected class; i.e., she must establish a causal link
between

an

employer’s

discriminatory

animus

and

the

hostile

conduct complained of”); see also Adams v. New York State Educ.
Dep’t, No. 08-CV-5996, 2010 WL 4970011, at *3, *10 (S.D.N.Y. Dec.
8, 2010) (sanctioning attorney who “reassert[ed] a hostile work
environment claim without alleging a causal connection between
plaintiffs’ membership in a protected class and the ‘hostile’ [work
environment], even though [the court] had dismissed those claims
on that basis”), report and recommendation adopted in relevant
part sub nom. Adams v. New York State Dep’t of Educ., 855 F. Supp.
2d 205 (S.D.N.Y. 2012).
As set forth below, there are insufficient facts in the
operative complaint to establish a plausible connection between
plaintiff’s alleged disability and the allegedly hostile work
environment:
•

Plaintiff’s vague allegation that a coworker falsely accused
her of hitting him with a lunch tray is not linked to her
purported impairments. (Compl. 2, 20; id., Ex. C.)

•

Plaintiff does not allege that Duke inappropriately “grabbed”
her head (id. 3) because of plaintiff purported impairments.

42

•

Plaintiff does not plausibly allege that she was ordered to
perform additional work by Harrigan (id. 16) or ordered to
work with Duke (id. 15) because of her purported impairments.

•

Plaintiff’s ambiguous allegation regarding a time-off form
disappearing from Skeete’s mailbox (id. 22; Pl. Opp’n at 20
(“I cannot blame anyone for this . . . .”)) is not connected
by any alleged facts to her purported impairments.

•

Plaintiff does not allege that other nurses told her to “shut
up” and to “get out of [their] way” (Compl. 8, 18) because of
her purported impairments.

•

Plaintiff does not allege that there was any connection
between
her
purported
impairments
and
the
following
statements by her supervisors: (1) “[G]ood nurses were here
and had to leave, you can take up your bag and leave now.”
(id. 3, 33); (2) “[G]o look for Mr. Cox and leave Ms. Duke
alone.” (id. 9); (3) “If I am at a place and no one wants me
there, I would not hang around, I would leave.” (Id. 18, 22,
26, 34.)
In similar cases involving mental health issues, even

where hostile work environment claims were dismissed, the alleged
discrimination

was

far

more

directly

linked

to

the

alleged

disability. E.g., Robinson v. Purcell Const. Corp., 859 F. Supp.
2d 245, 251-52, 255, 261 (N.D.N.Y. 2012) (granting summary judgment
to

defendants

on

hostile

work

environment

claim

brought

by

plaintiff who had been taking medication to treat her anxiety,
depression, and post-traumatic stress disorder and who alleged
that defendants asked her why her medication made her “all weird,”
joked that she “must not’ve taken [her] meds” on a particular day,
and stated that she was “too hyper on [her] medicine”).
43

Many of plaintiff’s allegations suggest that the alleged
harassment triggered her impairments (rather than the impairments
eliciting the harassment). Plaintiff has, in other words, reversed
cause

and

effect.

(See

Compl.

24

(alleging

that

plaintiff’s

“supervisors underst[ood] that inflicting pain could . . . cause
someone to become sick thus affecting activity of daily living”);
id.

34

(“After

humiliation

complaint

from

BCC,

of

I

harassment,

was

faced

discrimination

with

great

and

emotional

distress.”).) For example, under the heading “Causal connection
Between Protected Activity and Adverse Action,” plaintiff alleges
that she “was experiencing mental anguish after Mr. Cox accused me
of hitting him with a lunch tray.” (Id. 33 (emphasis added).)
Similarly, she contends that that one of Skeete’s statements to
her (“If I am at a place and no one wants me there, I would not
hang around, I would leave”) caused her to “cry” and to see a
psychologist. (Id. 18.)
Only
remotely

linked

three
to

of
her

plaintiff’s
alleged

allegations

disability:

(1)

appear

even

plaintiff’s

allegation that Johnson resented plaintiff’s “mental stress” and
therefore, after signing off on a leave request, stated “this is
the last time I will ever sign any paper for you” (id. 3); (2)
McIntosh’s statement to plaintiff, in light of her mental health
44

issues, that she “should take some time off so [McIntosh] [could]
train another nurse” (id. 30); and (3) McIntosh’s statement that
plaintiff “teach[es] the children coping skills,” and so should
“use them [her]self.” (Id. 9.)
B.

Plaintiff’s Work Environment Was Not Hostile
The court turns next to an analysis of whether the three

incidents described above — the only incidents causally linked to
plaintiff’s alleged impairments — state a plausible hostile work
environment claim. Evaluated individually or collectively, the
court concludes that they would not establish a plausible hostile
work environment claim. First, the incidents were not frequent
(only three total events allegedly touch on plaintiff’s claimed
disabilities) or severe. Plaintiff’s complaint that Johnson stated
“this is the last time I will ever sign any paper for you” was, in
fact, followed by Johnson signing off on a leave request. (Id. 3,
33.) Plaintiff’s complaints regarding McIntosh’s statements that
plaintiff
depression

should
and

use

should

her

“coping

“take

some

skills”
time

off”

to

deal

cannot

with
fairly

her
be

objectively characterized as particularly insulting, abusive, or
intimidating. See Feingold, 366 F.3d at 150 (“[T]he misconduct
shown must be severe or pervasive enough to create an objectively
hostile or abusive work environment . . . .” (internal quotation
45

marks and citation omitted)). Second, none of the three statements
suggested any potential physical threat. Finally, the statements
would not significantly interfere with a reasonable individual’s
work performance. See Harris, 510 U.S. at 23 (instructing courts
to consider frequency and severity of discriminatory conduct,
whether

it

was

physically

threatening

or

a

mere

offensive

utterance, and whether it would unreasonably interfere with a
reasonable employee’s work performance). Instead, the “isolated
incidents” more closely resemble “offhand comments” or “[s]imple
teasing”

that

“will

not

support

a

claim

of

discriminatory

harassment.” Petrosino, 385 F.3d at 223; Robinson v. Dibble, 613
F. App’x 9, 13 (2d Cir. 2015) (“[Plaintiff has offered] evidence
of crude and offensive comments directed at her gender or mental
health issues that were delivered sporadically by coworkers which,
while condemnable, did not rise to the level of creating an abusive
and hostile workplace environment.”).
Even taking all of plaintiff’s allegations as true — and
considering both the allegations plausibly related to plaintiff’s
impairments as well as the allegations unrelated to her impairments
— she cannot make a prima facie showing that her “workplace [was]
permeated

with

insult . . .

discriminatory

sufficiently

severe
46

intimidation,
or

pervasive

ridicule,
to

alter

and
the

conditions of [her] employment and create an abusive working
environment.” Lekettey, 637 F. App’x at 661 (internal quotation
marks and citation omitted). (See also DHR Op. at 2 (“The record
does now show that Complainant suffered any adverse employment
action due to her disability.”).)
V.

Constructive Discharge
Plaintiff also appears to bring a constructive discharge

claim. (Compl. 9-10, 12.) “Constructive discharge is regarded as
an

aggravated

case

of

hostile

work

environment.”

Ferraro

v.

Kellwood Co., No. 03-CV-8492, 2004 WL 2646619, at *11 (S.D.N.Y.
Nov. 18, 2004). The Supreme Court has described a constructive
discharge claim as a “‘worse case’ harassment scenario, harassment
ratcheted up to the breaking point.” Pa. State Police v. Suders,
542

U.S.

129,

147-48

(2004).

Consequently,

“[w]ithout

an

actionable hostile environment claim, a plaintiff’s constructive
discharge claim must also fail.” O’Neal v. State Univ. of New York,
No. 01-CV-7802, 2006 WL 3246935, at *12 (E.D.N.Y. Nov. 8, 2006)
(internal quotation marks,citation, and alteration omitted); see
also Collazo v. Cty. of Suffolk, No. 12-CV-2196, 2016 WL 660856,
at *10 (E.D.N.Y. Feb. 17, 2016) (same). Here, because plaintiff
has

not

stated

a

hostile

work

environment

claim

(see

supra

Discussion Part IV), a fortiori she has not stated a claim for
47

constructive discharge. See Murphy v. BeavEx, Inc., 544 F. Supp.
2d 139, 153–54 (D. Conn. 2008) (holding that plaintiff “has not
brought

forth

sufficient

evidence

to

support

a

hostile

work

environment claim,” so “any allegation of a constructive discharge
must also fail”).
VI.

Retaliation
Plaintiff

next

alleges

that

defendants

retaliated

against her for lodging complaints about discriminatory behavior.
“The Rehabilitation Act, through regulations promulgated by the
Department of Labor, prohibits retaliation against employees for
their opposition to practices made unlawful by the Act.” Thomas v.
Dep’t of Veterans Affairs, No. 05-CV-5348, 2006 WL 1636738, at *14
(S.D.N.Y. Apr. 3, 2006) (citing 29 C.F.R. § 1614.101), report and
recommendation adopted, 2006 WL 1594481 (S.D.N.Y. June 6, 2006).
A retaliation claim requires a plaintiff to show that: (1) she was
engaged in protected activity; (2) the alleged retaliator knew the
plaintiff was engaged in protected activity; (3) “an adverse
decision or course of action was taken against plaintiff”; and (4)
“a causal connection exists between the protected activity and the
adverse action.” 12 Weixel v. Bd. of Educ. of City of New York, 287

12

“[T]he causation standard for retaliation claims under the ADA . . . and the
Rehabilitation Act . . . has not been definitively resolved . . . .” Gallagher
v. Town of Fairfield, No. 10-CV-1270, 2015 WL 3453342, at *8 n.10 (D. Conn. May

48

F.3d 138, 148 (2d Cir. 2002) (internal quotation marks and citation
omitted), superseded by statute on other grounds by 42 U.S.C. §
12102(3)(A). Significantly, a “claim of retaliation for protected
conduct is a separate claim” from a discrimination claim and “does
not depend on the success of the employee’s disability claim.” 2
Americans with Disab.: Pract. & Compliance Manual § 7:397; see
also Taylor v. Lenox Hill Hosp., No. 00-CV-3773, 2003 WL 1787118,
at *6 (S.D.N.Y. Apr. 3, 2003) (“The fact that plaintiff was not
actually disabled within the meaning of the ADA does not affect
his retaliation claim . . . .”), aff’d, 87 F. App’x 786 (2d Cir.
2004).
A.

Adverse Action
Plaintiff’s retaliation claim fails because she has not

shown that she suffered an adverse action. For an employee to show
adverse action in the retaliation claim context, an “employer’s
actions must be harmful to the point that they could well dissuade
a

reasonable

worker

from

making

or

supporting

a

charge

of

discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 57 (2006). “[P]etty slights, minor annoyances, and simple

29, 2015) (“[S]ubstantial authority suggests that a plaintiff alleging
retaliation must establish that retaliation was a ‘but-for’ cause of the adverse
action and not simply a ‘substantial’ or ‘motivating’ factor.”). Because
plaintiff does not plausibly allege that she was retaliated against on the basis
of her disability under either standard, the court need not resolve the issue
of which causation standard applies.

49

lack of good manners” will not normally constitute adverse actions
for purposes of a retaliation claim.” Id. A plaintiff must show
“material

adversity,”

because

“it

is

important

to

separate

significant from trivial harms.” Id. at 68. “[I]n determining
whether conduct amounts to an adverse employment action, the
alleged acts of retaliation need to be considered both separately
and in the aggregate, as even minor acts of retaliation can be
sufficiently ‘substantial in gross’ as to be actionable.” Hicks v.
Baines, 593 F.3d 159, 165 (2d Cir. 2010); see also Zelnik v.
Fashion Inst. of Tech., 464 F.3d 217, 227 (2d Cir. 2006) (“[T]his
ridicule was considered a part of a larger campaign of harassment
which though trivial in detail may have been substantial in gross,
and

therefore

was

actionable.”

(internal

quotation

marks

and

citation omitted)).
Additionally, the adverse action inquiry is the same
under the Rehabilitation Act, the ADA, Title VII, and the First
Amendment. See Manon v. Pons, 131 F. Supp. 3d 219, 232 n.8
(S.D.N.Y. 2015) (“The standard for an ‘adverse action’ in the
context of First Amendment retaliation is substantially similar to
the same inquiry in the Title VII retaliation context.” (citing
Zelnik, 464 F.3d at 227)); Noon v. Int’l Bus. Machines, No. 12CV-4544, 2013 WL 6504410, at *6 (S.D.N.Y. Dec. 11, 2013) (“Courts
50

use

the

same

definition

for

‘adverse

employment

action’

in

discrimination claims brought under the ADA, Title VII of the Civil
Rights Act of 1964, and the Age Discrimination in Employment Act
of 1967.” (citations omitted)). Accordingly, the court discusses
cases below that arose outside of the disability context.
Here, plaintiff’s retaliation claim is insufficient. She
does not specify the adverse actions taken against her or their
causal connection to protected activity. The court will assume for
purposes of this decision that plaintiff engaged in protected
activity as early as August 25, 2011, when she requested time off
due to her disability. (Compl. 3.) See Weixel, 287 F.3d at 149
(recognizing that requests for accommodation can be protected
activities under the Rehabilitation Act); Sclafani v. PC Richard
& Son, 668 F. Supp. 2d 423, 444 (E.D.N.Y. 2009) (“Plaintiff’s
request for additional leave time as an accommodation of her
disability constituted protected activity under the ADA . . . .”).
Reading
plaintiff

alleges

inappropriately
defendants’

the

Second
seven

holding

failure

to

her

Amended

adverse
head

adequately

Complaint
actions:

on

(1)

September

investigate

liberally,

1,

her

Duke’s

2011;

(2)

allegations

surrounding Duke’s assault; (3) being forced to work with Duke on
October

14,

2011;

(4)

being

given
51

a

single

additional

work

assignment by Harrigan; (5) McIntosh’s statement to plaintiff that
she should “take some time off”; (6) additional assorted allegedly
mean-spirited comments from co-workers and supervisors; and (7)
her

purported

evaluate

the

constructive
potential

discharge. 13

adverse

actions

The

court

will

individually

and

first
then

consider them collectively. See Hicks, 593 F.3d at 165 (directing
courts to evaluate acts of retaliation “both separately and in the
aggregate”).
i.

Alleged Assault

Physical assaults can constitute adverse actions for
purposes of a retaliation claim. See Rivers v. New York City Hous.
Auth., No. 11-CV-5065, 2016 WL 1305161, at *24 (E.D.N.Y. Mar. 31,
2016) (recognizing that “[p]hysical assaults qualify as adverse
employment actions for purposes of a First Amendment retaliation
claim”); Rivera v. Goord, 119 F. Supp. 2d 327, 339-40 (S.D.N.Y.
2000) (same). Even assuming for purposes of this decision that the
assault constitutes an adverse action, however, plaintiff never
suggests that Duke assaulted her because of her disability. (See
also supra Discussion Part II-B.) Any argument that the assault
qualifies as an actionable adverse action must therefore fail.

13

The court has already discussed and rejected
discharge claim. (See supra Discussion Part V.)

52

plaintiff’s

constructive

ii.

Failure to Investigate the Assault

Plaintiff

also

argues

that

defendants’

failure

to

investigate her complaints about Duke’s assault was an adverse
employment action. (See Compl. 7 (“Defendants here violated the
law by failure to investigate a discrimination report linked to
harassment

and

assault.”).

She

appears

to

also

suggest

that

defendants similarly failed to follow up on other unspecified
complaints. (Id. 8, 22-23, 28.)
As an initial matter, generally “an employer’s failure
to investigate a complaint of discrimination cannot be considered
an adverse employment action taken in retaliation for the filing
of the same discrimination complaint.” Fincher, 604 F.3d at 721;
see also Petyan v. New York City Law Dep’t, No. 14-CV-1434, 2015
WL 1855961, at *11 (S.D.N.Y. Apr. 23, 2015) (“[F]ailure to properly
investigate [plaintiff’s] claim does not constitute an adverse
employment action.” (collecting cases)), report and recommendation
adopted, 2015 WL 4104841 (S.D.N.Y. July 2, 2015); Hong Yin v. N.
Shore LIJ Health Sys., 20 F. Supp. 3d 359, 374 (E.D.N.Y. 2014)
(finding, in discrimination context, that “an employer’s failure
to investigate discrimination claims is not an adverse employment
action”).

Accordingly,

plaintiff’s

allegation

that

defendants

failed to investigate her complaints of discrimination on the basis
53

of her alleged disability fails to state an adverse employment
action. See Fincher, 604 F.3d at 721 (“An employee whose complaint
is not investigated cannot be said to have thereby suffered a
punishment for bringing that same complaint: Her situation in the
wake of her having made the complaint is the same as it would have
been had she not brought the complaint or had the complaint been
investigated but denied for good reason or for none at all.”).
The Second Circuit has indicated, however, that certain
failures to investigate could potentially be considered adverse
employment actions where the failure to investigate a complaint is
in retaliation for “a separate, protected act by the plaintiff.”
See id. at 722. In Fincher, the court discussed Rochon v. Gonzales,
438 F.3d 1211 (D.C. Cir. 2006), in which the defendant (the
Attorney General, through the Federal Bureau of Investigation) was
alleged to have failed to investigate a death threat against an
FBI employee and his wife because he had earlier filed a complaint
of discrimination. See id. at 1219-20 (“The retaliatory conduct
[plaintiff] alleges, to wit, the FBI’s refusal to investigate, as
it would ordinarily do for any member of the public, a death threat
made against him by a federal prison inmate, [constitutes an
adverse action].”). The Second Circuit distinguished the above
potentially actionable scenario from the more common fact pattern
54

in which the purported harm is alleged to have arisen directly
from

the

failure

to

investigate

the

original

complaint

of

discrimination. See Fincher, 604 F.3d at 722.
Here, based on a liberal construction of plaintiff’s
operative

complaint,

she

alleges

that

defendants

failed

to

investigate her complaint regarding Duke’s assault because of her
earlier, protected complaints regarding her disability. (See Pl.
Opp’n at 19 (“Safety Officer did not investigate and did not sign
form.

Safety

Officer

knew

that

this

plaintiff

had

a

mental

breakdown 9/1/2011.”).) The failure to investigate Duke’s alleged
assault is, however, qualitatively different from the failure to
investigate a death threat against an FBI agent and his family.
See Fincher, 604 F.3d at 727 n.7 (“Of course, in Rochon, the
separate complaint that was allegedly ignored as a result of the
filing of the initial complaint was of a particularly serious
nature.”).

The

court

is

not

satisfied

that

the

failure

to

investigate Duke’s assault would “dissuade a reasonable worker
from making or supporting a charge of discrimination.” White, 548
U.S. at 57.
To the extent plaintiff argues that the failure to
contact

emergency

services

after

the

incident

with

Duke

constitutes an adverse action, the court concludes otherwise. By
55

plaintiff’s own account, defendants summoned a psychologist to
speak with plaintiff immediately after the incident. (Compl. 4.)
Plaintiff states that she “walked with the psychologist to the
Human Resources office after she felt better.” (Id.) Plaintiff
explains

further

in

her

opposition

memorandum

that

the

psychologist “sat and spoke with plaintiff for a long time about
the incident,” “[l]istened to plaintiff[,] and was of great help.”
(Pl. Opp’n at 16.) The failure to call emergency services under
the

circumstances

plaintiff

describes

did

not

constitute

an

adverse action.
iii. Request for Assignment Away From Duke
Plaintiff also argues that defendants retaliated against
her by refusing to accommodate her request not to work with Duke.
(Compl. 15 (“On 10/14/2011 BCC ordered that this plaintiff should
report and work with Ms. Duke . . . . I realized BCC was pushing
me over the edge.”).)
Generally, “a failure to provide . . . an accommodation
is not in and of itself an adverse employment action” Ragin v. E.
Ramapo Cent. Sch. Dist., No. 05-CV-6496, 2010 WL 1326779, at *20
(S.D.N.Y. Mar. 31, 2010); Gallagher v. Town of Fairfield, No. 10CV-1270,

2011

(“[Plaintiff]

WL

3563160,

claims

that

at
the

*5

(D.

Conn.

defendants’
56

Aug.

alleged

15,

2011)

failure

to

accommodate her requests constitute an adverse employment action.
While courts may consider the underlying conduct of an alleged
failure to accommodate, a failure to accommodate, by itself, is
not sufficient for purposes of establishing an adverse employment
action.”).

Further,

in

similar

circumstances

where

individual

plaintiffs were made to work with their purported harassers, courts
have refused to find such assignments adverse actions. See E.E.O.C.
v. Bass Pro Outdoor World, LLC, No. 11-CV-3425, 2013 WL 1124063,
at *6 (S.D. Tex. Mar. 18, 2013) (finding no adverse action for
purposes of retaliation claim where employee was “forced to work
with [a] purported harasser”); see also Goodwine v. Conn. Dep’t of
Children & Families, No. 08-CV-532, 2011 WL 130345, at *2, *5 (D.
Conn.

Jan.

14,

2011)

(in

discrimination

context,

finding

defendant’s failure to transfer alleged harasser — who had, inter
alia,

allegedly

“struck

[plaintiff]

on

the

head”

—

did

not

constitute an adverse employment action).
Accordingly, defendants’ failure to adjust plaintiff’s
schedule so she would not have to work with Duke — in order to
accommodate plaintiff’s alleged disability — cannot constitute an
adverse action under the Rehabilitation Act.

57

iv.

Additional Work Assignments

Plaintiff also argues that she was given additional work
in retaliation for exercising her rights under the Rehabilitation
Act.

(Compl.

26

(“I

was

retaliated

against

because

I

asked

Supervisors to address complaint. Mr. Harrigan gave plaintiff
additional work.”).)
Additional

work

assignments

will

generally

not

constitute adverse actions for purposes of a retaliation claim.
See Mutts v. S. Conn. State Univ., 242 F. App’x 725, 727 (2d Cir.
2007) (finding that plaintiff could not show that “assigning her
an

increased

workload

due

to

hiring

freezes”

resulted

in

a

materially adverse change in her working conditions); Delgado v.
Triborough

Bridge

&

Tunnel

Auth.,

485

F.

Supp.

2d

453,

461

(S.D.N.Y. 2007) (concluding, pre-White 14, that a plaintiff could
not state a claim for retaliation where she failed to plead facts
demonstrating that her workload was heavily disproportionate to
others in her department). Here, plaintiff’s bare, conclusory

14

Before White, 548 U.S. at 57, plaintiffs alleging retaliation had to show a
“materially adverse change in the terms, privileges, duration, or conditions of
her employment.” Delgado, 485 F. Supp. 2d at 461 (Title VII context); Treglia
v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002) (same, in ADA context).

58

allegation that she was assigned extra work is insufficient to
show that she suffered an adverse action. 15
v.

McIntosh’s “Take Time Off” Comment

Plaintiff also argues that McIntosh told her to “take
some time off so [McIntosh could] train another nurse.” (Compl.
30;

see

also

id.,

Ex.

H.)

According

to

the

Second

Amended

Complaint, the conversation with McIntosh occurred on October 27,
2011. (Compl. 5, 30; id., Ex. H.) Plaintiff understood McIntosh’s
statement that plaintiff should “take some time off” as effectively
“advising [p]laintiff that she would be replaced.” (Id. 9.) As set
forth in plaintiff’s Second Amended Complaint, on December 12,
2011, plaintiff wrote an e-mail to McIntosh reminding McIntosh of
the October 27, 2011 discussion, and explaining that she was
“trying to give you an answer to your request” (regarding plaintiff
taking time off) and that McIntosh’s “request” made plaintiff “feel
very uncomfortable.” (Id., Ex. H.) McIntosh responded by e-mail on
December 13, 2011:
When we spoke you sounded very distress[ed] so I felt it
appropriate[] to advi[s]e you to consider taking some
time off. Remember I did not tell you to take time off
I told you to consider it. If you had to take extensive
leave because of what you were experiencing, yes I would

15

Even if the additional work here could constitute an adverse action, plaintiff
did not adequately plead a causal nexus between the additional work and her
disability. (See supra Discussion Part II-B.)

59

have to orient someone else to work the clinic until you
return . . . .
(Id. (emphasis in original).)
McIntosh’s statement to plaintiff on October 27, 2011
was not an adverse action. See White, 548 U.S. at 57. Nearly two
months

passed

between

McIntosh’s

statement

to

plaintiff

and

December 30, 2011, when plaintiff “submitted a letter to Defendants
stating that she was separating from her job as a result of
harassment.” (Compl. 9.) McIntosh’s e-mail suggests that she and
plaintiff had no further discussions between October 27, 2011 and
December 30, 2011 regarding the subject of “time off.” During those
two months, there were no changes in plaintiff’s employment status.
There was apparently no follow-up from McIntosh after the October
27, 2011 meeting, so plaintiff appears to have revisited the issue
for the first time with McIntosh on December 12, 2011. Even
assuming McIntosh “told” plaintiff to take significant time off
(or leave BCC), plaintiff apparently did not do so. Instead,
plaintiff continued to work at BCC until December 30, 2011, when
she submitted her letter of resignation. (Id.) Under the alleged
circumstances, McIntosh’s statement to plaintiff telling her to
consider taking time off would not “dissuade a reasonable worker
from making or supporting a charge of discrimination.” White, 548
U.S. at 57.
60

vi.

Additional Comments

Plaintiff finally argues that a number of additional
comments by her co-workers and supervisors were adverse employment
actions.
Plaintiff alleges the following comments occurred while
she was working at BCC:
(1)

“[G]ood nurses were here and had to leave, you can
take up your bag and leave now.” (Compl. 3, 33)

(2)

“If I am at a place and no one wants me there, I
would not hang around, I would leave.” (Id. 18, 22,
26, 34.)

(3)

“Get out of my way.” (Id. 18.)

(4)

McIntosh’s statement that plaintiff “teach[es] the
children coping skills,” so should “use them
[her]self.” (Id. 9.)

(5)

Duke’s statement to plaintiff that she should “shut
up.” (Id. 8, 28.)
Trivial harms, petty slights, and minor annoyances are

not materially adverse actions. See Rivera v. Rochester Genesee
Reg’l Transp. Auth., 743 F.3d 11, 25 (2d Cir. 2014). The sporadic
comments allegedly directed at plaintiff, while perhaps meanspirited and offensive, would not dissuade a reasonable person
from exercising their rights under the Rehabilitation Act.

61

vii. Aggregate Analysis
Whether
individually
materially

or

evaluating
in

adverse

the

the

aggregate,

action.

purportedly
they

Plaintiff’s

did

adverse
not

actions

result

original

in

a

complaints

generally arose from relatively minor interpersonal disputes with
her coworkers. Supervisors and officials responding to plaintiff’s
complaints about these incidents granted plaintiff time off or
told plaintiff to consider taking time off. While some of the
alleged comments about which plaintiff complains suggest that she
might not have been treated kindly at all times by colleagues in
her workplace, she has not plausibly alleged that she suffered an
adverse employment action for purposes of her retaliation claim
under the Rehabilitation Act. 16

16

Further, as noted explicitly above with respect to a number of plaintiff’s
purportedly adverse actions, plaintiff has failed to plausibly allege a causal
nexus between her protected activity (seeking accommodations for her purported
disability) and any of the purportedly adverse actions about which she
complains.

62

CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss
is GRANTED in its entirety. Plaintiff’s claims are dismissed with
prejudice. The Clerk of Court is respectfully directed to serve a
copy of this memorandum and order on the pro se plaintiff at her
last known address, enter judgment, and close this case.
SO ORDERED.
Dated:

August 9, 2016
Brooklyn, New York
_____________/s/_____________
Kiyo A. Matsumoto
United States District Judge

63