Ivankovskaya v. Metropolitan Transit Authority et al

Filing 34

DECISION AND ORDER: Accordingly, I conclude the following: (1) the defendant's motion with respect to the plaintiffs hostile work environment claim is granted and dismissed with prejudice; (2) the defendant's motion to dismiss the plaintiff s retaliation claim is denied; and (3) while I dismiss the plaintiffs discrimination claim pursuant to the ADA, I do so without prejudice, and allow the plaintiff thirty days from this order to submit a final, amended complaint pursuant to Rule 15(a)(2), to establish this claim. SO Ordered by Judge Ann M Donnelly on 8/3/2017. (Ramesar, Thameera)

FILED
IN CLERK'S OFFICE

UNITED STATES DISTRICT COURT

US DISTRICT COURT E.D.

^

EASTERN DISTRICT OF NEW YORK

AU6 0 3 2017 5

BROOKLYN OFFICE
TATYANAIVANKOVSKAYA,

Plaintiff,
DECISION AND ORDER

- against 15-CV-5727(AMD)
(MDG)
METROPOLITAN TRANSPORTATION

AUTHORITY BUS COMPANY,
Defendant.

ANN DONNELLY,District Judge.

The plaintiff, an employee ofthe Metropolitan Transportation Authority("MTA")Bus
Company,alleges that the MTA Bus Company violated the Americans with Disabilities Act
("ADA")by discriminating against heron the basis of her disability, failing to accommodate her
disability, subjecting her to a hostile work environment, and suspending her without pay. The
defendant moves to dismiss the plaintiffs amended complaint. For the reasons set out below,
the defendant's motion is granted in part and denied in part.
BACKGROUND^

The plaintiff began work as a bus operator for the MTA Bus Company in 2006. (First
Amended Complaint("FAC")

9-10.) In 2006, she was diagnosed with disc hemiation, which

she claims affected her ability to sit, stand, and walk. (FAC HIT) As a result of her alleged
disability, the plaintiff needed an adjustable seat in her assigned bus; with that accommodation,
she was able to do her job. (FAC HH 12-13.)

'
The facts alleged in the first amended complaint are largely consistent with those set out in the initial pleading.
1

In her amended complaint, the plaintiff claims that she spoke up about her need for an
adjustable seat every time that she was assigned a bus without an adjustable seat, and that she
was "often denied her requested accommodation." (FAC

14-15.)

On March 21,2014, she was given a bus with a non-adjustable seat. (FAC ^ 16.) When

she complained, a supervisor by the name of"Randy" yelled at her, and said that she was
"always having a problem with the seat." (FAC T| 16.) Randy told the plaintiff to speak with
Chris Tortora, the General Superintendent of MXA Bus Company, who accused the plaintiff of

"always having a problem" with her assigned buses. (FAC H 17.) The plaintiff does not contend
that the defendant refused to give her a different bus, nor does she allege that she was disciplined
as a result of the March 21, 2014 incident.

On April 23, 2014,the plaintiff was given a bus with a seat that was not adjustable in the
way she needed. (FAC

18-19.) When the plaintifftold Tortora that she could not drive the

bus because of her disability, he "demanded that [the plaintiff] sit behind the wheel of the bus in
an aggressive manner." (FAC H 20.) Tortora then instructed the plaintiffto reach under the seat
to move it forward, which she was able to do, but which "exacerbated her disability;" as a result,

she "ended up on disability leave for one week." (FAC UK 21, 24.) While the plaintiff complains
that the seat's back support and its height could not be adjusted, she does not assert that she was
required to drive that bus. (FAC K 21.) The plaintiff does not allege that she was disciplined as a
result ofthe April 23,2014 incident, nor that she was denied leave when she hurt herself
reaching under the seat.

On June 4,2014,the plaintiff was driving a bus, and smelled what she believed was gas.^
(FAC K 25.) Believing that there was a leak, she reported the issue to her supervisor,"Benny,"

This bus appeared to have the requisite seat.

who said he did not smell anything unusual, and instructed her to drive the bus. (FAC ^ 25.)

According to the plaintiff, she felt "dizzy and lightheaded" after driving the bus, and asked for an
ambulance. (FAC 1125.) Shehadabloodpressureof 190/120, and went to the hospital. (FACH
25.)

When the plaintiff retumed to work almost two weeks later, on June 13,2014, Tortora

called her to his office, and told her that the bus with the reported gas leak had been inspected,
and there was "nothing wrong with the bus." (FAC f 26.) Tortora accused the plaintiff of
making a false report, and suspended her without pay. (FAC H 26.)

After an arbitration hearing on July 28, 2014,the disciplinary charges against the plaintiff
were dismissed. (FAC 125.) The plaintiff alleges that she "remains out of work without pay
while she waits for her formal reinstatement at work." (FAC H 29.) The defendant denies this
allegation, and claims she "was not terminated." See (Defs.' Mem. at 11.)

The plaintiff filed an administrative complaint with the Equal Employment Opportunity

Commission("EEOC").^ (FAC f 4.) She claims that she received the right-to-sue letter on July
9,2015; the letter, however, was dated March 31, 2015. (FAC % 4.)

On October 2, 2015,the plaintiff brought this action against the "Metropolitan Transit
Authority" and Tortora. The defendants moved to dismiss the initial complaint on March 18,

2016. (ECF No. 11.) I granted the defendants' motion, and dismissed the complaint in its
entirety on October 5, 2016. (Oct. 5,2016 Decision(ECF No. 19).) In that decision, I rejected

the defendants' contention that the lawsuit was not timely, but dismissed the complaint because

^ The plaintifffiled a complaint with the New York State Division of Human Rights against the "Metropolitan
Transit Authority" and Chris Tortora on August 11,2014. In an opinion listing the"MTA Bus Company" and
"MTA New York City Transit," the New York State Division of Human Rights dismissed the plaintiffs complaint
and advised that she had the right to request review by the EEOC. The EEOC adopted the findings ofthe state
agency, copied"MTA New York City Transit," and advised the plaintiffthat she had the right to sue, but that suit
must be filed within ninety days.

the plaintiff named the wrong defendant, the Metropolitan Transportation Authority (sued as
"Metropolitan Transit Authority"); the plaintiff was employed by the MTA Bus Company,and
pursuant to New York statute, employees of an MTA subsidiary, like the MTA Bus Company,
are not employees of the MTA. (Oct. 5, 2016 Decision at 4-7.)

Thereafter, on December 12, 2016,the plaintifffiled a second motion to amend the

complaint, which I granted.^ (ECF No. 23; Dec. 13,2016 Order.) The plaintifffiled her
amended complaint on December 14, 2016("Amended Complaint"). The parties proceeded with
discovery.
DISCUSSION

For purposes ofthis motion, I assume that the facts alleged in the complaint are true, and
draw all reasonable inferences in the plaintiffs favor. Town ofBabylon v. Fed. Hons. Fin.

Agency,699 F.3d 221,227(2d Cir. 2012). Nevertheless, the complaint must allege "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). A claim is plausible when the plaintiff"pleads factual content that allows 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). This standard requires more than an "unadorned,
the-defendant-unlawfully-harmed-me accusation." Id. at 678 (citing Twombly,550 U.S. at 555).

In the context of a discrimination action, the plaintiff must allege sufficient non-conclusory facts
to "nudge" her claim "across the line from conceivable to plausible." Vega v. Hempstead Union
Free Sch. Dist., 801 F.3d 72,87(2d Cir. 2015)(citations omitted).

The plaintiff initially filed a motion to amend the complaint on November 18, 2016, which I denied. (ECF Nos.
21-22.) That proposed amended complaint named Chris Tortora as a defendant, but individuals are not subject to
liability under the ADA. See Spiegel v. Schulmann,604 F.3d 72,79(2d Cir. 2010); see also Bartone v. Mattera,
No. 15-CV-6362(MKB),2016 WL 6537957, at *5 n.lO (E.D.N.Y. Nov. 3, 2016).

My review is "limited to the factual allegations in plaintiff['s][] complaint, which are

accepted as true, to documents attached to the complaint as an exhibit or incorporated in it by
reference, to matters of which judicial notice may be taken, or to documents either in plaintiff's]
possession or of which plaintiff ]had knowledge and relied on in bringing suit." Faconti v.
[
Potter, 242 F.App'x 775,111(2d Cir. 2007).
A. The Scope of the PlaintifTs Amendment

The defendant argues that the plaintiff"changed the allegations[from her initial
pleading] to broaden their scope and materially exaggerate the extent ofthe alleged
discrimination to ward offa foreseeable Rule 12(b)(6) motion." (Defs.' Mem. at 4.) The

defendant takes issue with the plaintiffs allegation that she alerted the defendant to her need for
an adjustable seat each time she was assigned a bus that did not have one, that she was "often
denied her requested accommodation," and her inclusion of"example[s]" ofthis conduct.
(Defs.' Mem. at 4.) The defendant argues that permitting "without permission or consent the

amendment of a pleading to allege claims opposite from those initially plead [sic]" leaves "the
door ... open for Plaintiff to fabricate whatever she wants whenever she wants." (Defs.' Mem.
at 5.)

While I directed the plaintiff to cure specific defects in the original complaint, I did not
limit the scope ofthe amended complaint. {See docket Order dated, November 28,2016). Doing
so would have violated "the letter and spirit ofthe flexible pleading standards ...." Streit v.

Bushnell,424 F.Supp.2d 633,640 n. 4(S.D.N.Y. Mar. 23,2006). Review ofthe amended
complaint shows that the relatively minor adjustments to the original complaint are neither
"blatant" nor "directly contradictory" to her original complaint. See Kermanshah v.

Kermanshah,580 F.Supp.2d 247,(S.D.N.Y. Aug. 11, 2008)(internal citation and quotation
marks omitted).

Accordingly, I reject the defendant's contention, and use the plaintiffs Amended
Complaint to address the remaining arguments.
B. Americans with Disabilities Act Claims

To establish a prima facie case of discrimination under the ADA,a plaintiff must
establish that: (1)the employer is subject to the ADA;(2)the plaintiff suffers from a disability
within the meaning of the ADA;(3)the plaintiff was otherwise qualified to perform the essential
functions ofthe job, with or without reasonable accommodation; and(4)the plaintiff suffered an

adverse employment action because ofthe disability. E.g., Vale v. Great Neck Water Pollution

Control Dist., 80 F.Supp.Sd 426,433(E.D.N.Y. Jan. 20,2015). Here,the defendant argues that
the plaintiff does not satisfy the second and fourth prongs, because she does not suffer from a
disability within the meaning ofthe ADA,and did not suffer an adverse employment action
because of her alleged disability. (Defs.' Mem. at 9.) I agree that the plaintiff has not
demonstrated that she is disabled within the meaning ofthe ADA,and decline to address whether

the plaintiff suffered an adverse employment action because of her alleged disability.
To substantiate a disability within the meaning of the ADA,the plaintiff must

demonstrate: (1)a physical or mental impairment that substantially limits one or more ofthe
major life activities of such an individual;(2)a record ofsuch impairment; or(3)being regarded
as having such an impairment. 42 U.S.C. § 12102(1); see also Delgado v. Triborough Bridge

and Tunnel Authority, 485 F.Supp.2d 453,459(S.D.N.Y. Apr. 26, 2007). Here, the plaintiff
does not allege a record of any impairment, nor does she plausibly allege that she was"regarded

as having such an impairment."^ The remaining question is whether the plaintiff has plausibly
pled a physical impairment that substantially limits one or more of her major life activities.

Major life activities are those that are "of central importance to daily life," and have come
to include, among other things, standing, sitting, and walking. See Levine v. Smithtown Cent.

School Dist., 565 F.Supp.2d 407,422(E.D.N.Y. July 14,2008); McDonald v. City ofNew York,

786 F.Supp.2d 588,607(E.D.N.Y. Apr. 6,2011);Skinner v. City ofAmsterdam,824 F.Supp.2d
317,327(S.D.N.Y. Mar. 30, 2010). To determine whether a limitation is "substantial," courts
consider "the nature and severity of the impairment, the duration or expected duration ofthe

impairment, and the permanent or long term impact of or expected long term impact of or
resulting from the impairment." 29 C.F.R. § 1630(2)(j)(2); see also Levine, 565 F.Supp.2d at
422; Casseus v. Verizon N Y., Inc., 722 F.Supp.2d 326, 347(E.D.N.Y. July 9,2010). The only

information that the plaintiff provides about her condition is that "[i]n 2006,[the plaintiff] was

diagnosed with a disc hemiation throughout her back which impacts her ability to sit, stand, and
walk," and that she requires adjustable seats to "limit the pain she experiences in her back."

(FAC HI 11, 12.) Although the plaintiff refers to major life activities- sitting, standing, and

' plaintiff offers one sentence that might be construed to claim that her employers regarded her as having an
The
impairment: "From 2006 through present, despite her supervisor's knowledge ofher disability and need for
accommodation,[the plaintiff] has been assigned to busses that do not have adjustable seats several times." (FAC
|
14)(emphasis added). Even construing the plaintiffs allegations liberally, this single, conclusory allegation cannot
plausibly support a claim that the defendant regarded the plaintiff as having a disability. See Kelly v. N.Y. State
Office ofMental Health,200 F.Supp.Sd 378, 394-95(E.D.N.Y. Aug. 9,2016)(under 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")(internal citations and quotation marks
omitted); Horsham v. Fresh Direct, 136 F.Supp.3d 253,262-63(E.D.N.Y. Sept. 28,2015). And in fact, the
Amended Complaint appears to suggest that the plaintiffs employer did not regard her as being disabled. For
instance, on the two occasions that the plaintiff describes, the plaintifftold her supervisors that she needed a bus
with adjustable seats, and both responded that the plaintiff was "always having a problem" with the seats; in
response, the plaintiff"explained that she had a back injury." (FAC 16, 17.) The plaintiff does not allege that her
supervisors referred to her disability — indeed,the plaintiff maintains that she had to remind them about her
condition. (FAC 16, 17.) Further, the plaintiffs assertion that she "ended up on disability leave for one week"
does not establish that she was regarded as having a disability, since the plaintiff does not allege that her injury was
not "transitory and minor". See Kelly, 200 F.Supp.3d at 395(internal citations and quotation marks omitted). As
such, the complaint does not plausibly plead that her employer regarded her as having an impairment under the
ADA.

walking -she does not put forth any factual support to demonstrate that her alleged disability has
substantially limited her ability to perform these activities. Merely declaring that these major life

activities are "impact[ed]" and that adjustable seating "limit[s] the pain" says nothing about the

severity, duration, or the long-term impact ofthe disability. See Kelly v. N.Y. State Office of
Mental Health, 200 F.Supp.3d 378, 392-93 (E.D.N.Y. Aug. 9, 2016); but see Dooley v. Jetblue

Airways Corp., No. 15-cv-1356, 2015 WL 9261293, at *5(2d. Cir. 2015)(plausibly alleging

disability under the ADA by stating that the plaintiff"suffered a fracture and also damage to the
ulnar and median nerve distributions, resulting in temporary total disability...and, ultimately,

permanent partial disability with limitations on lifting and repetitive motion")(emphasis added).
Without more,the plaintiffs bare statement of her disability does not"nudge ... the claim[]
across the line from conceivable to plausible." Id.

However,the plaintiff may amend the Amended Complaint pursuant to Federal Rule of

Civil Procedure 15(a)(2). ^
C. Hostile Work Environment Claim

The plaintiff additionally alleges that she was subjected to a hostile work environment.
The standard, however,"is a demanding one, and a plaintiff must establish that the alleged

harassment was offensive, pervasive, and continuous enough to create an abusive working
environment." Monterroso v. Sullivan & Cromwell, LLP,591 F.Supp.2d 567,584(S.D.N.Y.

^ In light of my determination that the plaintiff has not sufficiently pled that she is disabled within the meaning of
the ADA,I decline to consider whether she was subject to adverse employment actions because of her disability.
(Defs.' Mem.at 10-11.) Further, although not raised in the defendant's motion to dismiss, I decline to address
whether the plaintiff has established her claim that the defendant failed to accommodate her disability, because that
claim is partly predicated on whether the plaintiff is disabled within the meaning ofthe ADA. See McMillan v. City
ofNew York,711 F.3d 120, 125-26(2d Cir. 2013). Similarly, the plaintiffs claim that the defendant "fail[ed] to
engage in the interactive process" is related to her failure to accommodate claim. See McBride v. BIG Consumer
Products Mfg. Co., 583 F.3d 92, 100(2d Cir. 2009)(discussing the interplay between a failure to accommodate
claim and an allegation ofa failure to engage in an interactive process); also see (Pis.' 0pp. Mem. at 14.) As such, 1
additionally decline to address this issue.
8

Oct. 28, 2008). Evaluating whether a hostile work environment exists under the ADA requires
an assessment ofthe totality of circumstances and includes consideration of the "frequency ofthe
discriminatory conduct; its severity; whether it [was] physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably interefere[d] with [the plaintiffs] work

performance." Giambattista v. American Airlines, Inc., F.Supp.3d 284,294-95 (E.D.N.Y. Mar.
20, 2014).

Here,the plaintiff cites two incidents in connection with her allegations. First, she claims
that she was assigned a bus on March 21,2014,that did not have adjustable seats. (FAC ^ 16.)

When she told her supervisor. Randy,that she could not take that bus, he "yelled at her,
expressing that she is 'always having a problem with the seat.'" (FAC H 16.) He then told the

plaintiff to speak with Tortora, who also "yelle[d]" that the plaintiff was "'always having a
problem' with the busses to which she was assigned." (FAC ^ 17.)
The second instance to which the plaintiff refers happened about a month later, on April
23,2014, when Tortora assigned the plaintiff a bus with a seat that she did not believe was

adjustable. (FAC 20.) When the plaintiff informed Tortora ofthe seat issue, he "demanded
that [the plaintiff] sit behind the wheel ofthe bus in an aggressive manner...[and] had [her]
bend over and reach under the seat and[]move [it] forward," which the plaintiff was able to do.
(FAC 120.)

While yelling in the workplace may not be particularly pleasant or even appropriate,
these isolated and relatively insignificant incidents do not establish a prima facie case of a hostile
work environment. "The Second Circuit has repeatedly held that isolated, minor acts or

occasional episodes do not warrant relief." Lewis v. Erie County Medical Center Corp.,907

F.Supp.2d 336, 348(S.D.N.Y. Nov. 1, 2012)(also citing Kaytor v. Elec. Boat Corp.,609 F.3d

537,547(2d Cir. 2010)for the proposition that "'[ijsolated incidents.,. will not suffice to
establish a hostile work environment unless they are extraordinarily severe'")(internal citations

and quotation marks omitted); Giambattista, F.Supp.Bd at 294-95 (dismissing hostile work
environment claim where plaintiffs coworkers "made offensive quips about her perceived
disability, including calling her'crazy' and implying that she should be taken away by

psychiatrists"). Moreover, none ofthe comments to which the plaintiff objects seem to have
anything to do with the plaintiffs alleged disability, and there is no suggestion that the
comments, even if delivered at high volume, interfered with the plaintiffs ability to perform her
job, or that the allegedly hostile behavior was pervasive or frequent.

In short, the plaintiff has not supported her claim that she was subjected to a hostile work
environment. I therefore dismiss this claim with prejudice.
D. Retaliation Claim

The ADA prohibits an employer from retaliating against an employee for engaging in an

activity protected under its provisions. See Pediford-Aziz v. City ofNew York, 170 F.Supp.Bd
480,485-486(E.D.N.Y. Mar. 17, 2016). To establish a claim ofretaliation, a plaintiff must
show:(1)that she was engaged in an activity protected by the ADA;(2)that the employer was
aware ofthis activity;(B)that the employer took adverse employment action against her; and(4)
that a causal connection exists between the alleged adverse action and the protected activity. Id.

at 485. "Making requests for reasonable accommodations for a disability is protected activity
within the contemplation ofthe statute." Vale,80 F.Supp.Bd at 4B9(internal citations and

quotation marks omitted). Further, it is not necessary for a plaintiff to allege that she is actually
disabled within the meaning ofthe ADA to pursue a retaliation claim. Id.; Sherman v. County of
Suffolk, 71 F.Supp.Bd BB2, B52(E.D.N.Y. December 29, 2014)("prevailing on a disability

10

discrimination claim under the ADA is not a prerequisite to prevailing on a retaliation claim
imder the ADA").

The plaintiff claims that the defendant retaliated against her because of her "continued
need for accommodations for her disability." (FAC126.) Specifically, the plaintiff contends

that on June 4,2014,approximately two months after her April 23, 2014 complaint and request

for a bus with adjustable seats,"she starting smelling what she believed to be a gas leak" and

asked her supervisor to inspect her bus. (FAC H 25.) The supervisor "indicated he did not smell
anything and directed [the plaintiff] to run her route with the bus []." (FAC f 25.) The plaintiff
was "dizzy and light headed" by the end of her shift, and asked her "command center" to call her
an ambulance, which they did. (FAC H 25.) Because ofthe plaintiffs blood pressure, the EMTs

took her to the hospital. (FAC ^ 25.) After the plaintiff came back to work on June 13, 2014,
Tortora called her into his office and told her that the allegedly defective bus had been inspected,

and there was no gas leak. (FAC H 26.) Tortora "accused [the plaintiff] of making a false report
...[and] suspended [her] without pay on the grounds that she allegedly committed fraud."
(FAC nil 26, 27.) Thereafter,following "multiple levels of disciplinary hearings" and an
arbitration hearing, the charges against the plaintiff were dismissed. (FAC H 28.) The plaintiff
further alleges that she "remains out of work without pay while she waits for her formal
reinstatement at work." (FAC H 29.) The plaintiff claims that the defendant suspended her

without pay, not because she lied about the gas leak, but as a pretext to "retaliat[e]" against her
for her requests for reasonable seat accommodations. (FAC H 26.) While the issue is close, I
find that the plaintiff has put forth a minimally plausible claim to raise an inference of retaliation.
Suspension without pay is "sufficient to constitute adverse employment action" in an
ADA retaliation claim,Lovejoy-Wilson v. NOCO Motor Fuel, Inc.^ 263 F.3d 208,223(2d Cir.

11

2001); Campbell v. N.Y. City Transit Authority, 93 F.Supp.2d 148,169(E.D.N.Y. Mar. 26,
2015), therefore, the plaintiff has sufficiently alleged that she suffered an adverse employment
action.

With respect to causation, the plaintiff must establish a "but-for" connection between the
protected activity - here the repeated requests for buses with adjustable seats-and the adverse

employment action -the plaintiffs suspension without pay for allegedly filing a false report.
See Riddle v. Citigroup,640 Fed.Appx. 77,79(2d Cir. 2016)(summary order stating,"the

plaintiff must allege that the retaliation was the 'but-for' cause ofthe employer's adverse action
....[i]t is not sufficient for the retaliation to have been 'a substantial or 'motivating' factor in
the employer's decision")(internal citations and quotation marks omitted); see also PedifordAziz, 170 F.Supp.Sd at 486. A causal connection can be demonstrated through circumstantial
evidence, including, a "close temporal proximity between the protected activity and the adverse
action." Id.(internal citations omitted); see also Vale, 80 F.Supp.Sd at 440. Moreover,there is

no "bright line to define the outer limits beyond which a temporal relationship is too attenuated
to establish a causal relationship." E.g., Vale, 80 F.Supp.Sd at 441 (quoting Espinal v. Goord,
558 F.Sd 119,129(2d Cir. 2009)).

Viewing the complaint in a light most favorable to the plaintiff, and construing all
allegations as true, the defendant's action - accusing the plaintiff of making a false report and
subsequently suspending her without pay -raises a barely plausible claim of a pretext for
retaliation -that the defendant suspended her not because ofthe gas leak story, but because she
kept demanding adjustable seats.

The defendant argues that the approximately two-month passage oftime between the

plaintiffs request for accommodation and the adverse employment action is not sufficiently

12

contemporaneous to support an inference ofretaliation, and further, that temporal proximity

alone does not satisfy the plaintiffs burden. I disagree. Other courts in this district have found
that the passage of a few months between the protected activity and the alleged adverse

employment action does not bar a retaliation claim. See, e.g., Infantolino v. Joint Industry Bd. of

Elec. Industry, 582 F.Supp.2d 351, 359-60(E.D.N.Y. Oct. 1, 2008)(the plaintiff established a

prima facie retaliation claim despite a two-month lapse between the protected activity and an
adverse action.); Pediford-Aziz, 170 F.Supp.3d at 486 (plausible inference ofretaliation when
adverse action began eight months after the protected activity).

Moreover,temporal proximity alone — between a request for an accommodation and an
adverse employment action - can give rise to a primafacie inference ofretaliation. See, e.g.,
Abrams v. Dept. ofPublic Safety, 764 F.3d 244,254(2d Cir. 2014)(quoting El Sayed v. Hilton
Hotels Corp.,627 F.3d 931,933(2d Cir. 2010), which states,"temporal proximity of events may

give rise to an inference of retaliation for the purposes of establishing a prima facie case of
retaliation ...."); Magnotti v. Crossroad Healthcare Management,LLC, 126 F.Supp.3d 301,
313(E.D.N.Y. Sept. 3,2015)(a causal connection "may be demonstrated as part ofa prima facie

case simply by temporal proximity between the protected activity and the adverse action")
(internal citations omitted).

Given the relatively close temporal connection between the plaintiffs requests for
accommodation and her subsequent suspension without pay, I find that the plaintiff has plausibly
raised an inference of retaliation. Therefore, I deny the defendant's motion to dismiss the
plaintiffs retaliation claim.

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CONCLUSION

Accordingly,I conclude the following: (1)the defendant's motion with respect to the

plaintiffs hostile work environment claim is granted and dismissed with prejudice;(2)the

defendant's motion to dismiss the plaintiffs retaliation claim is denied; and (3) while I dismiss

the plaintiffs discrimination claim pursuant to the ADA,I do so without prejudice, and allow the
plaintiff thirty days from this order to submit a final, amended complaint pursuant to Rule
15(a)(2), to establish this claim.
SO ORDERED.

s/ AMD
[. Donnelly
United States District Judge

Dated: Brooklyn, New York
August 3, 2017

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