Adlah v. Emergency Ambulance Services

Filing 22

ORDER denying 18 Motion to Dismiss for Failure to State a Claim. For the reasons set forth herein, the Court denies defendant's motion to dismiss in its entirety. The parties shall proceed with discovery. The Clerk of the Court is directed to mail a copy of this Order to the pro se plaintiff. SO ORDERED. Ordered by Judge Joseph F. Bianco on 6/22/2018. (Baum, Sabrina)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 17-CV-4688 (JFB) (SIL)
_____________________

ABDULLAH M. ADLAH,
Plaintiff,
VERSUS

EMERGENCY AMBULANCE SERVICES,
Defendant.
___________________
MEMORANDUM AND ORDER
June 22, 2018
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff Abdullah Adlah (“plaintiff”),
proceeding pro se, brings this civil rights
action, pursuant to Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C.
§§ 2000e et seq. against Emergency
Ambulance
Services
(“EAS”
or
“defendant”). Presently before the Court is
defendant’s motion to dismiss plaintiff’s
discrimination claims in the Amended
Complaint, pursuant to Federal Rule of Civil

1

The Court notes that the Amended Complaint also
contains a retaliation claim, which was not the subject
of the instant motion.

Procedure 12(b)(6).1 For the reasons set forth
below, the Court denies defendant’s motion.
I. BACKGROUND
A. Facts
The following facts are taken from the
Amended Complaint (“AC,” ECF No. 14)
and are not findings of fact by the Court.
Instead the Court will assume these facts to
be true and, for purposes of the pending
motion to dismiss, will construe them in a
light most favorable to plaintiff, the nonmoving party. In deciding a motion to

dismiss, the Court may take judicial notice of
public records, including court filings.
Kramer v. Time Warner, Inc., 937 F.2d 767,
774 (2d Cir. 1991). The Court also considers
exhibits which are attached or integral to the
complaint. Sira v. Morton, 380 F.3d 57, 67
(2d Cir. 2004).

Lebanese and there’s a huge difference.”
(Id.)
According to plaintiff, Jubinville
remarked “there’s nothing wrong with that
because she doesn’t know there’s a
difference.” (Id.) Plaintiff then alleges that
he asked his supervisor, “is it appropriate to
call a Spanish employee ‘that Mexican kid?’”
(Id.) Jubinville allegedly responded, “that
was different.” (Id.) Plaintiff then asked his
supervisor, “how about an African American
person, is it ok to call him that black kid” to
which Jubinville allegedly responded, “yes
that’s ok because he’s black but that’s not the
same as calling you ‘Arab’ because you are.”
(Id.) Plaintiff’s supervisor allegedly stated
that the dispatcher was just describing
plaintiff because she did not know his name.
(Id.)

Abdullah Adlah, a Lebanese Muslim, was
hired by defendant as an Emergency Medical
Technician (“EMT”) on April 1, 2015. (See
ECF No. 21-2 at 5.) According to plaintiff,
in June 2015, two partners that he worked
with, Matt Lindstat and Victoria Weiss,
referred to plaintiff as “that [A]rab kid” and
were “very brutal and rude towards [him].”
(AC at 5.)
Plaintiff allegedly filed a
complaint with management and was forced
to switch shifts. (Id.) Plaintiff claims that he
was taken off a shift that worked around his
children’s and their school’s schedule. (Id.)
Meanwhile, plaintiff alleges that the two
partners were “rewarded” by allowing them
both to work with one another on the same
ambulance. (Id.)

Plaintiff further alleges that later in
November 2015, while working with another
supervisor, Bob Crawford, he was asked to
stop at Dominos so that Crawford could get
some food. (Id.) When Crawford came back
into the ambulance, he offered plaintiff a slice
of pepperoni pizza.
Plaintiff thanked
Crawford but responded that he did not eat
pork. Crawford then allegedly made fun of
plaintiff and put the pizza in his face telling
him to “try a bite.” (Id.)

In November 2015, plaintiff alleges that
he overheard the dispatcher, Dawn “talking
badly” to their supervisor, Jeremy Jubinville
about him. (Id.) Plaintiff alleges that the
dispatcher referred to him as “that ALLAH
ARAB Kid” and made remarks that plaintiff
was always late. (Id.) Plaintiff allegedly
responded to these remarks stating, “actually
I’m always early and the times you think I’m
late is because Ken [Kriska] who was the
supervisor ‘forgets’ to adjust my schedule for
times he’s previously approved since I was
coming from school and was forced off my
original shift.” (Id.) Plaintiff claims that he
then went to his supervisor, Jubinville, and
told him that he did not appreciate the
dispatcher calling him those names. (Id.) He
further explained, “I’m not Arab I’m

According to the complaint, on
December 7, 2015, plaintiff told Jubinville
that he needed to leave work early on
December 13, to which Jubinville responded
that as long as there were no emergency calls
it would not be a problem for plaintiff to
leave early. (Id. at 6.) On or about December
9, plaintiff had a phone conversation with
Randy2 (the CEO) and management about the
comments made by Dawn and leadership.
(Id.) Randy was unaware of any of the
complaints plaintiff had made. (Id.) Plaintiff
explained to Randy that he had brought his

2

Although it is not entirely clear from the Amended
Complaint, for purposes of the instant motion, the

Court assumes that Randy and Andrew Viskovich,
discussed infra, are the same person, the CEO of EAS.

2

complaints to the attention of the managers
on multiple occasions and nothing had been
done. (Id.) During that conversation,
Andrew Viskovich allegedly commented that
the company was upset that plaintiff had told
a logistics worker that he felt targeted and
was going to sue the company. (Id.)
Management also allegedly stated to plaintiff
that dispatchers and logistics employees are
not leadership, though plaintiff alleges that,
in a previous conversation, management had
told him the contrary. (Id.) Plaintiff further
alleges that Jubinville agreed that plaintiff
could leave his December 13 shift an hour
early, but that he did state at some point that
the dispatcher has the final say. (Id.) On
December 14, plaintiff was sent into the
manager’s office with Jubinville, who
informed him that he had to write him up for
leaving early the day before. (Id.) Jubinville
allegedly stated that after their phone
conversation on December 9, their discussion
about leaving work an hour early was “null
and void” since the CEO overrode his
decision to allow plaintiff time off. (Id.
(“Anything approved prior to the
conversation on the 9th is irrelevant.”).)
Plaintiff agreed to sign the write-up as long
as he was able to write on it that Jubinville
had given him approval prior to December
13. (Id.)

Viskovich that he did feel targeted and he
would appreciate his opening a file: “I told
him I had an issue stating I feel targeted and
they had an issue with the fact I was
defending my religious beliefs.”
(Id.)
Plaintiff alleges that Viskovich stated that he
did not have an issue with plaintiff defending
himself, but had an issue with plaintiff stating
that he felt targeted. (Id.) With regard to the
June incident and the comments that were
made, plaintiff alleges that—in the course of
this conversation—Viskovich began by
claiming that he did not know about it, and
then stated that he “took care” of it. (Id.)
Viskovich allegedly stated “it’s how
[plaintiff] take[s] it in” and “it’s okay for
them to say the Muslim kid” when referring
to him because plaintiff is Muslim. (Id.)
According to the complaint, somewhere
between December 17 and December 20,
dispatcher Kim3 informed plaintiff that the
supervisors had switched him from his
normal ambulance and partner to another
ambulance. (Id.) According to plaintiff, this
switch was significant because the new
ambulance he was put on was a standby
hospital, which a worker cannot leave until
relieved by the next crew. (Id.) Plaintiff
allegedly stayed on his entire shift but was
told that the covering medic was running late
and they would have to wait for him. (Id.)
Plaintiff spoke with the dispatcher, who then
sent over another EMT to relieve plaintiff
from his shift. (Id.) Plaintiff was then
allegedly suspended for this until he could
meet with management. (Id.) Plaintiff
alleges that he was forbidden by management
from saying that he felt he was being treated
unfairly. (Id.) On December 23, plaintiff
was asked to meet with management. (Id.)
In a conversation with Kriska, Viskovich and
Omri Asta, Human Resource Director,

According to the complaint, on
December 16, plaintiff had a conversation
with Viskovich in which Viskovich allegedly
stated that plaintiff was not being singled out.
(Id.) Plaintiff alleges, “the Supervisors told
me the CEO specifically stated, ‘Abdullah is
not to be let out early’ and I felt that statement
singled me out.” (Id. at 7.) Viskovich
allegedly stated, “they’re not targeting [you]”
and offered to open a case if that was how
plaintiff felt. (Id.) Plaintiff allegedly told

3

Plaintiff did not provide Kim’s full name in the
Amended Complaint.

3

plaintiff was informed that he was being
terminated because the company did not feel
comfortable employing him due to his
“‘blatant insubordination’ of conversing with
people stating that [he] felt targeted.” (Id.)

23, 2018, and defendant filed its reply on
April 9, 2018.4
II. STANDARD OF REVIEW
In reviewing a motion to dismiss pursuant
to Rule 12(b)(6), the Court must accept the
factual allegations set forth in the complaint
as true and draw all reasonable inferences in
favor of the plaintiff. See, e.g., Cleveland v.
Caplaw Enters., 448 F.3d 518, 521 (2d Cir.
2006); Nechis v. Oxford Health Plans, Inc.,
421 F.3d 96, 100 (2d Cir. 2005). “In order to
survive a motion to dismiss under Rule
12(b)(6), a complaint must allege a plausible
set of facts sufficient ‘to raise a right to relief
above the speculative level.’” Operating
Local 649 Annuity Tr. Fund v. Smith Barney
Fund Mgmt. LLC, 595 F.3d 86, 91 (2d Cir.
2010) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). This standard
does not require “heightened fact pleading of
specifics, but only enough facts to state a
claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570.

B. Procedural History
The instant lawsuit arises from the United
States Equal Employment Opportunity
Commission (“EEOC”) charge filed by
plaintiff against his former employer, EAS.
(ECF No. 21-2.) In his administrative
charge, filed on March 15, 2017, plaintiff
alleged that EAS discriminated and retaliated
against him on the basis of his national origin
and religion, in violation of Title VII of the
Civil Rights Act. (See id. at 2.) On June 16,
2017, the EEOC issued a Right to Sue letter
informing plaintiff that “[t]he EEOC found
reasonable cause to believe that violations of
the statute(s) occurred with respect to some
or all of the matters alleged in the charge but
could not obtain a settlement with the
Respondent that would provide relief for
[plaintiff].” (AC at 9-10.)

The Supreme Court clarified the
appropriate pleading standard in Ashcroft v.
Iqbal, setting forth two principles for a
district court to follow in deciding a motion
to dismiss. 556 U.S. 662 (2009). First,
district courts must “identify[] pleadings that,
because they are no more than conclusions,
are not entitled to the assumption of truth.”
Id. at 679. “While legal conclusions can
provide the framework of a complaint, they
must be supported by factual allegations.” Id.
Second, if a complaint contains “well-

Plaintiff filed a Complaint with this Court
on August 10, 2017, alleging a Title VII
claim for discrimination and retaliation based
on national origin and religion. (ECF No. 1
at 1, 3.) On January 10, 2018, plaintiff filed
an Amended Complaint. Defendant filed the
instant motion to dismiss plaintiff’s national
origin and religious discrimination claims as
alleged in the Amended Complaint, pursuant
to Federal Rule of Civil Procedure 12(b)(6)
on February 26, 2018. Plaintiff filed his
opposition to defendant’s motion on March

4

Defendant contends that plaintiff impermissibly
raises a hostile work environment claim for the first
time in his opposition to defendant’s motion to
dismiss. (Def.’s Reply Mem. at 2.) Although a
plaintiff “cannot amend [his] complaint by asserting
new facts or theories for the first time in opposition to
[d]efendants’ motion to dismiss,” K.D. ex rel. Duncan
v. White Plains Sch. Dist., 921 F. Supp. 2d 197, 209
(S.D.N.Y. 2013), the Court is mindful that when

considering a motion to dismiss a pro se complaint, the
Court must construe the complaint liberally and
interpret the complaint “to raise the strongest
arguments they suggest,” Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006). In this
case, as discussed further infra, the Court liberally
construes the complaint to include a hostile work
environment claim.

4

quotation marks omitted)). However, a pro
se plaintiff’s complaint, while liberally
interpreted, still must “state a claim to relief
that is plausible on its face.” Mancuso v.
Hynes, 379 F. App’x 60, 61 (2d Cir. 2010)
(quoting Iqbal, 556 U.S. 662); see also
Harris v. Mills, 572 F.3d 66, 72 (2d Cir.
2009).

pleaded factual allegations, a court should
assume their veracity and then determine
whether they plausibly give rise to an
entitlement to relief.” Id.
The Court notes that in adjudicating a
Rule 12(b)(6) motion, it is entitled to
consider:
(1) facts alleged in the complaint and
documents attached to it or
incorporated in it by reference,
(2) documents ‘integral’ to the
complaint and relied upon in it, even
if not attached or incorporated by
reference,
(3)
documents
or
information contained in defendant’s
motion papers if plaintiff has
knowledge or possession of the
material and relied on it in framing
the complaint, (4) public disclosure
documents required by law to be, and
that have been, filed with the
Securities
and
Exchange
Commission, and (5) facts of which
judicial notice may properly be taken
under Rule 201 of the Federal Rules
of Evidence.

III. DISCUSSION
A. Title VII Discrimination
Title VII prohibits employers from
discriminating against an individual on the
basis of “race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a).
“To
establish a prima facie case of employment
discrimination under Title VII, a plaintiff
must show that ‘(1) he is a member of a
protected class; (2) he was qualified for the
position he held; (3) he suffered an adverse
employment action; and (4) the adverse
action took place under circumstances giving
rise to an inference of discrimination.’”
Chang v. N.Y.C. Dep’t for the Aging, No. 11
CIV. 7062(PAC) (JLC), 2012 WL 1188427,
at *4 (S.D.N.Y. Apr. 10, 2012) (quoting Ruiz
v. Cty. of Rockland, 609 F.3d 486, 492 (2d
Cir. 2010)), report & recommendation
adopted, 2012 WL 2156800 (S.D.N.Y. June
14, 2012).

In re Merrill Lynch & Co., 273 F. Supp. 2d
351, 356-57 (S.D.N.Y. 2003) (internal
citations omitted), aff’d in part & rev’d in
part on other grounds sub nom. Lentell v.
Merrill Lynch & Co., 396 F.3d 161 (2d Cir.
2005).

At the pleading stage, a Title VII plaintiff
need not allege specific facts establishing
each element of a prima facie case of
discrimination. Vega v. Hempstead Union
Free Sch. Dist., 801 F.3d 72, 84 (2d Cir.
2015). “Under Iqbal and Twombly . . . in an
employment discrimination case, a plaintiff
must plausibly allege that (1) the employer
took adverse action against him and (2) his
race, color, religion, sex, or national origin
was a motivating factor in the employment
decision.” Id. at 86. In his complaint, “a
plaintiff must allege that the employer took
adverse action against [him] at least in part

Finally, where, as here, the plaintiff is
proceeding pro se, courts are “obliged to
construe his pleadings liberally.” Sealed
Plaintiff v. Sealed Defendant, 537 F.3d 185,
191 (2d Cir. 2008) (quoting McEachin v.
McGuinnis, 357 F.3d 197, 200 (2d Cir.
2004)); see also McPherson v. Coombe, 174
F.3d 276, 280 (2d Cir. 1999) (stating that a
pro se plaintiff’s pleadings must be
interpreted “to raise the strongest arguments
that they suggest” (citation and internal
5

To constitute an adverse employment
action in the context of a discrimination
claim, an action must cause “a materially
adverse change in the terms and conditions of
employment.” Henry v. NYC Health & Hosp.
Corp., 18 F. Supp. 3d 396, 404 (S.D.N.Y.
2014) (quoting Mathirampuzha v. Potter, 548
F.3d 70, 78 (2d Cir. 2008)). “[T]here is no
exhaustive list of what constitutes an adverse
employment action. Courts have held that
termination, demotion, denial of promotion,
addition of responsibilities, involuntary
transfer that entails objectively inferior
working conditions, denial of benefits, denial
of a requested employment accommodation,
denial of training that may lead to
promotional opportunities, and shift
assignments that make a normal life difficult
for the employee, among other things,
constitute adverse employment actions.”
Collins v. Potter, No. 05-CV–3474
(JFB)(LB), 2008 WL 4104459, at *4
(E.D.N.Y. Aug. 29, 2008) (quoting Little v.
NBC, 210 F. Supp. 2d 330, 384 (S.D.N.Y.
2002)). An “adverse employment action” is
“more disruptive than a mere inconvenience
or an alteration of job responsibilities.”
Galabya v. N.Y.C. Bd. of Educ., 202 F.3d
636, 640 (2d Cir. 2000) (internal quotation
marks omitted).

for a discriminatory reason, and [he] may do
so by alleging facts that directly show
discrimination or facts that indirectly show
discrimination by giving rise to a plausible
inference of discrimination.” Id. at 87.
“‘[A]t the initial stage of the litigation’ in a
Title VII case, ‘the plaintiff does not need
substantial evidence of discriminatory
intent.’” Johnson v. Andy Frain Servs., Inc.,
638 F. App’x 68, 70 (2d Cir. 2016) (quoting
Littlejohn v. City of New York, 795 F.3d 297,
311 (2d Cir. 2015)). “Rather, what must be
plausibly supported by the facts alleged in the
complaint is that the plaintiff is a member of
a protected class, was qualified, suffered an
adverse employment action, and has at least
minimal support for the proposition that the
employer was motivated by discriminatory
intent.” Id. (citations and internal quotation
marks omitted).
Defendant argues that plaintiff’s
discrimination claims should be dismissed
because most of the alleged actions do not
constitute “adverse employment actions”
under Title VII and the Amended Complaint
does not include sufficient factual allegations
to support a conclusion that any adverse
employment
action
occurred
under
circumstances giving rise to an inference of
discrimination. For the reasons set forth
below, the Court denies defendant’s motion
to dismiss plaintiff’s Title VII discrimination
claims.

The Amended Complaint provides
several incidents that plaintiff claims were
adverse employment actions. First, plaintiff
alleges that his shift changed following his
complaint to management about coworkers
and supervisors allegedly harassing him
about his nationality and religion. (AC at 4.)
Plaintiff alleges that he was forced out of his
shift that worked around his children and
school schedule. (Id. at 5.) Further, plaintiff
alleges that his previously approved time off
was later denied following his complaints to
management
regarding
the
alleged
discriminatory
comments
made
by
coworkers. (Id. at 4.) Finally, plaintiff
alleges that he was suspended following an

1. Adverse Employment Actions
Defendant concedes that plaintiff’s
termination
constitutes
an
adverse
employment action under Title VII, but
argues that plaintiff’s allegations of
unfavorable changes to his schedule, and that
EAS “suspended” him prior to his
termination do not constitute adverse
employment actions. (Def’s. Mem. at 5-6.)

6

F.3d 81, 87 (2d Cir. 1996) (noting “one of the
elements of a prima facie case of
discriminatory discharge, as one might
expect, is that the employee was discharged.
This element may be satisfied by a showing
of an actual or constructive discharge.”
(internal citation omitted)). Thus, plaintiff’s
Amended Complaint has adequately pled at
least one adverse employment action
sufficient to survive a motion to dismiss.

incident in which plaintiff, who had already
completed his shift and was waiting to be
relieved by the next crew, swapped with
another EMT who offered to relieve him. (Id.
at 7.)
The Court finds that plaintiff’s
allegations regarding shift changes and
suspension could plausibly qualify as adverse
employment actions depending on the
circumstances. Indeed, “where assignments
fall within the duties of a plaintiff’s position,
receiving unfavorable schedules or work
assignments does not, without more, rise to
the level of an adverse employment action.”
Williams v. Ford Motor Co., No. 12–CV–
0411, 2014 WL 1572302, at *13 (W.D.N.Y.
Apr. 18, 2014) (collecting cases). Thus,
while a “materially adverse change in
working conditions must be ‘more disruptive
than a mere inconvenience or an alteration of
job responsibilities,’” Galabya, 202 F.3d at
640 (quoting Crady v. Liberty Nat’l Bank &
Tr. Co., 993 F.2d 132, 136 (7th Cir. 1993)),
what ultimately constitutes an adverse
employment action is assessed on a case-bycase basis, see Wanamaker v. Columbian
Rope Co., 108 F.3d 462, 466 (2d Cir. 1997).
Thus, this fact-specific determination cannot
be resolved on a motion to dismiss in this
case particularly in light of plaintiff’s pro se
status.

The Court further notes that, even if
plaintiff’s other allegations of discrimination
do not independently constitute adverse
employment actions, they may provide
relevant background evidence regarding the
second factor of plaintiff’s discrimination
claim, namely whether the plaintiff’s national
origin and/or religion was a motivating factor
in the defendant’s decision to fire him. See
Vega, 801 F.3d at 88 (“Vega’s other
allegations of discrimination, even if they do
not independently constitute adverse
employment actions, provide ‘relevant
background evidence’ by shedding light on
[d]efendant’s motivation and thus bolster his
claim that [d]efendants treated him
differently because of his ethnicity.” (quoting
Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 112 S.Ct. 2061, 153 L. Ed. 2d 106
(2002))).
2. Inference of Discrimination

In addition, Plaintiff contends that he was
actually discharged from his employment
without legitimate cause and on the basis of
his national origin and religion. In particular,
plaintiff alleges that, when he was being
terminated, management explained that the
reason for his termination was that the
company did not feel comfortable employing
him due to his “‘blatant insubordination’ of
conversing with people stating that [he] felt
targeted.” (AC at 7.) Such discharge from
employment obviously would be considered
an adverse employment action.
See
Chertkova v. Conn. Gen. Life Ins. Co., 92

Defendant also argues that plaintiff’s
claims fail because the Amended Complaint
does not include sufficient factual allegations
to support a claim that the alleged adverse
employment actions occurred under
circumstances giving rise to an inference of
discrimination. (Def.’s Mem. at 7-11.)
Specifically, defendant argues that plaintiff’s
discrimination claims fail because he did not
allege that any of the adverse employment
actions occurred by EAS’s management or
that such acts occurred due to plaintiff’s
national origin or religion. (Id.) The Court
7

F.3d 219, 229-30 (2d Cir. 2014) (quoting
Graham v. Long Island R.R., 230 F.3d 34, 39
(2d Cir. 2000)). Generally, “[w]hether two
employees are similarly situated . . . presents
a question of fact,” rather than a legal
question to be resolved on a motion to
dismiss.
Id.
At the pleading stage,
allegations that the plaintiff and comparators
worked in the same group and were
accountable to the same supervisors, but were
subjected to disparate treatment may be
sufficient to raise an inference of
discrimination. Id. (concluding that plaintiff
plausibly alleged he and comparator
employees were similarly situated even
though he did not plead facts about the
comparator employees’ job function,
experience, qualifications, and rate of pay).

disagrees and finds that plaintiff has set forth
sufficient allegations to raise a plausible
inference of discrimination.
In general, “[a]n inference of
discrimination can arise from circumstances
including, but not limited to, the employer’s
criticism of the plaintiff’s performance in
ethnically degrading terms; or its invidious
comments about others in the plaintiff’s
protected group; or the more favorable
treatment of employees not in the protected
group; or the sequence of events leading to
the plaintiff’s discharge.” Littlejohn, 795
F.3d at 312 (internal quotation marks
omitted).   The plaintiff may also prove
discrimination by “creating a ‘mosaic’ of
intentional discrimination by identifying ‘bits
and pieces of evidence’ that together give rise
to an inference of discrimination.” Vega, 801
F.3d at 87.

In this case, at the pleading stage, the
Court assumes the truth of plaintiff’s factual
allegations for purposes of this motion. After
carefully considering the defendant’s motion,
the Court finds that plaintiff has satisfied the
minimal showing required at this stage to
plausibly allege that the defendant’s adverse
actions towards plaintiff were motivated at
least in part by a discriminatory reason.

Whatever category or combination of
categories of evidence a plaintiff relies on to
allege a discrimination claim, the Second
Circuit has made clear that “at the initial stage
of a litigation, the plaintiff’s burden is
‘minimal’—he need only plausibly allege
facts that provide ‘at least minimal support
for the proposition that the employer was
motivated by discriminatory intent.’” Id.
(quoting Littlejohn, 795 F.3d at 311). Thus,
in making the plausibility determination, a
district court “must be mindful of the
‘elusive’
nature
of
intentional
discrimination” and that “rarely is there
‘direct, smoking gun, evidence of
discrimination.’” Id. (internal quotation
marks and citations omitted).

When pieced together, the Court finds
that the allegations in the Amended
Complaint create a “mosaic” of facts, which
if true, give rise to a plausible inference that
the defendant was motivated by bias against
plaintiff’s national origin and religion. See
Vega, 801 F.3d at 87. Specifically, plaintiff
alleges that coworkers were making
inappropriate comments to plaintiff about his
nationality and religion. (AC at 4-7.) When
plaintiff complained to management, he was
allegedly told that there was nothing wrong
with what his coworkers were saying and that
plaintiff should not tell anyone that he felt
targeted. (Id. at 6-7.) Further, plaintiff
alleges that those coworkers were “rewarded
. . . by allowing both of them to work with
one another on the same ambulance” whereas

In seeking to demonstrate that he
received less favorable treatment than
employees not in a protected group, a
plaintiff may demonstrate he “was similarly
situated in all material respects to the
individuals with whom [he] seeks to compare
[him]self.” Brown v. Daikin Am. Inc., 756
8

because he is Muslim. (Id.) Within a week
of plaintiff’s complaints, he was suspended
and ultimately terminated for allegedly
telling employees and management that he
felt targeted. (Id.) Courts have found these
types of allegations sufficient to satisfy the
minimal pleading burden for discrimination
claims at the motion to dismiss stage. See
Chertkova, 92 F.3d at 91 (“The
circumstances that give rise to an inference of
discriminatory motive include actions or
remarks made by decisionmakers that could
be viewed as reflecting a discriminatory
animus.”); Yang v. Dep’t of Educ. of City of
N.Y., No. 14-CV-7037 (SLT) (RLM), 2016
WL 4028131, at *7-8 (E.D.N.Y. July 26,
2016) (finding that frequent comments made
by a plaintiff’s supervisor pointing out that
the plaintiff was Chinese were sufficient to
give rise to an inference of national origin
discrimination at the motion to dismiss
stage).

plaintiff was removed from his shift that
worked around his children and school
schedule. (Id. at 5.) Though plaintiff does
not specifically identify the religion or
national origin of his coworkers, drawing all
reasonable inferences in plaintiff’s favor, this
is sufficient to state a plausible inference of
discrimination. See Bakeer v. Nippon Cargo
Airlines, Co., No. 09 CV 3374 (RRM), 2011
WL 3625103, at *27-28 (E.D.N.Y. July 25,
2011) (finding plaintiffs’ allegations that
their comparators were offered different
terms and conditions of employment was
sufficient to establish that they were similarly
situated, without pleading additional facts
about how they were similarly situated);
Trachtenberg v. Dep’t of Educ. of City of
N.Y., 937 F. Supp. 2d 460, 471 (S.D.N.Y.
2013) (denying motion to dismiss even
though the complaint was “thin on
specifics—both as to how each comparator
[was] similarly situated to [plaintiff] and
what disparate treatment he or she was
subjected to”).

When viewed together, the plaintiff’s
allegations of EAS’s alleged disparate
treatment of plaintiff and of the
discriminatory comments made by plaintiff’s
coworkers and supervisors, including their
behaviors in reaction to plaintiff’s
complaints, give rise to a plausible inference
of discrimination based on plaintiff’s national
origin and religion.

In November 2015, plaintiff allegedly
complained to his supervisor, Jubinville, that
he did not appreciate the dispatcher calling
him “that Allah Arab Kid.” (AC at 5.) The
supervisor allegedly responded that there was
nothing wrong with that, and that the
dispatcher was just describing plaintiff
because she did not know his name. (Id.)
Another supervisor allegedly put pepperoni
pizza in plaintiff’s face after he explained that
he would not eat a slice because he does not
eat pork. (Id.) In early December 2015,
plaintiff relayed his complaints to the CEO
who responded that the company was upset
that plaintiff stated that he felt targeted. (Id.
at 6.) Subsequent to these complaints,
plaintiff was denied his formerly approved
time off. (Id.) Plaintiff allegedly requested
that the CEO open a file because he felt
targeted. (Id. at 7.) In response, the CEO
allegedly stated that “it’s ok for them to say
the Muslim kid” when referring to plaintiff

Accordingly, defendant’s motion to
dismiss plaintiff’s Title VII discrimination
claims on the basis of national origin and
religion is denied.
B. Hostile Work Environment Claim
1. Scope of EEOC Charge
Defendant argues that plaintiff’s hostile
work environment claim exceeds the scope of
his EEOC charge and, therefore, was not
administratively exhausted. For the reasons
set forth below, the Court disagrees and
9

concludes that plaintiff’s hostile work
environment claim is reasonably related to
the charge he filed with the EEOC.

court. Williams v. N.Y.C. Hous. Auth., 458
F.3d 67, 70 (2d Cir. 2006) (quoting Deravin
v. Kerik, 335 F.3d 195, 201-02 (2d Cir.
2003)).

Generally, to bring a Title VII
discrimination claim in federal district court,
a plaintiff must first exhaust her
administrative remedies by “filing a timely
charge with the EEOC or with ‘a State or
local agency with authority to grant or seek
relief from such practice.’”
Holtz v.
Rockefeller & Co., 258 F.3d 62, 82-83 (2d
Cir. 2001) (quoting 42 U.S.C. § 2000e-5(e)).
However, “claims that were not asserted
before the EEOC may be pursued in a
subsequent federal court action if they are
reasonably related to those that were filed
with the agency.”
Jute v. Hamilton
Sundstrand Corp., 420 F.3d 166, 177 (2d Cir.
2005) (quoting Legnani v. Alitalia Linee
Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d
Cir. 2001) (per curiam)). “Reasonably
related conduct is that which ‘would fall
within the scope of the EEOC investigation
which can reasonably be expected to grow
out of the charge that was made.’” Id.
(quoting Fitzgerald v. Henderson, 251 F.3d
345, 359-69 (2d Cir. 2001)); see also
Mathirampuzha v. Potter, 548 F.3d 70, 77
(2d Cir. 2008) (stating claim is reasonably
related where “administrative complaint can
be fairly read to encompass the claims
ultimately pleaded in a civil action or to have
placed the employer on notice that such
claims might be raised”).5 In determining
whether a claim is “reasonably related” to the
EEOC charge, “the focus should be ‘on the
factual allegations made in the [EEOC]
charge itself,’” and on whether those
allegations “gave the [EEOC] ‘adequate
notice to investigate’” the claims asserted in

Despite defendant’s arguments to the
contrary, the Court finds that plaintiff’s
hostile work environment claim is reasonably
related to the charge he filed with the EEOC.
A hostile work environment exists “[w]hen
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.” Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993) (internal quotations
and citations omitted). To give the EEOC
adequate notice of a hostile work
environment claim, the EEOC charge must
reference “repeated conduct or the
cumulative effect of individual acts” directed
toward the plaintiff.    See Mathirampuzha,
548 F.3d at 77 (finding hostile work
environment claim not reasonably related to
discrimination claim filed with the EEOC
because plaintiff’s “EEOC complaint
recount[ed] nothing more than a single act of
physical and verbal abuse”); see also Pilgrim
v. McGraw–Hill Cos., Inc., 599 F. Supp. 2d
462, 491 (S.D.N.Y. 2009) (finding hostile
work environment claim reasonably related
to EEOC charge because charge referred to
“systemic” discrimination and alleged that
supervisor “demean[ed]” plaintiff with “foul
and offensive” language); cf. Fleming v.
Verizon N.Y., Inc., 419 F. Supp. 2d 455, 464
(S.D.N.Y. 2005) (finding hostile work
environment claim not reasonably related to
EEOC charge because EEOC charge only
made
general
allegations
regarding

5
Two other kinds of claims may be considered
“reasonably related”: those alleging “retaliation by an
employer against an employee for filing an EEOC
charge,” and those alleging “further incidents of
discrimination carried out in precisely the same

manner alleged in the EEOC charge.” Butts v. City of
N.Y. Dep’t of Hous. Pres. & Dev., 990 F.2d 1397,
1402-03 (2d Cir. 1993). Neither is at issue in this case.

10

sufficiently hostile include “the frequency of
the discriminatory conduct; its severity;
whether it is physically threatening or
humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with
an employee’s work performance.” Terry v.
Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003).
A plaintiff is not required to establish a prima
facie case of hostile work environment; he
need only make a short and plain statement of
the claim that shows entitlement to relief and
gives defendant fair notice of the claim for
hostile work environment and the grounds
upon which that claim rests.
See
Swierkiewicz v. Sorema, N.A., 534 U.S. 506,
512 (2002).

employer’s disparate treatment of men and
women).
Here, as defendant admits, plaintiff’s
Amended Complaint includes a narrative
identical to the one he included in his EEOC
charge, which references repeated instances
of inappropriate comments and conduct
sufficient to put the EEOC on notice of a
possible hostile work environment claim.
(Def.’s Reply Mem. at 5; AC at 5-7.)
Although plaintiff only checked the boxes for
“Religion” and “National Origin” in his
EEOC charge, that charge contained the
factual basis for a hostile work environment
claim. Given that the EEOC was clearly
aware of those facts, plaintiff’s hostile work
environment claim is “reasonably related” to
the discrimination and retaliation claims
raised in his EEOC charge. As such,
plaintiff’s hostile work environment claim is
considered exhausted for purposes of this
lawsuit.

“Ultimately, to avoid dismissal under
[Rule] 12(b)(6), a plaintiff need only plead
facts sufficient to support the conclusion that
she was faced with ‘harassment . . . of such
quality or quantity that a reasonable
employee would find the conditions of her
employment altered for the worse.’” Patane
v. Clark, 508 F.3d 106, 113 (2d Cir. 2007
(alteration in original) (quoting Terry v.
Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003)).  
In considering plaintiff’s claims, the Court is
mindful of the highly context-dependent
nature of this analysis, which underpins the
Second Circuit’s “repeated[] caution[]
against setting the bar too high” for
workplace discrimination claims facing a
12(b)(6) motion to dismiss. Id. (quoting
Terry, 336 F.3d at 148).

2. Hostile Work Environment
Defendant argues that the conduct
plaintiff refers to in his Amended Complaint
does not state a viable hostile work
environment claim. As set forth below, in
light of plaintiff’s pro se status and the
detailed allegations in his Amended
Complaint, the Court concludes that this
claim should survive the motion to dismiss.
In order to prevail on a hostile work
environment claim, a plaintiff must make two
showings: (1) that the harassment was
sufficiently severe or pervasive to alter the
conditions of the victim’s employment and
create an abusive working environment, and
(2) that there is a specific basis for imputing
the conduct creating the hostile work
environment to the employer. Summa v.
Hofstra Univ., 708 F.3d 115, 123-24 (2d Cir.
2013). Relevant factors to consider in
determining whether an environment is

Nonetheless, “the plaintiff must show
that a specific basis exists for imputing the
objectionable conduct to the employer,” for
example, by showing that the harassing
conduct was by supervisory coworkers or, in
the case of non-supervisory coworkers, by
“showing that the employer knew (or
reasonably should have known) about the
harassment but failed to take appropriate
remedial action.” Fairbrother v. Morrison,
412 F.3d 39, 48-49 (2d Cir. 2005), abrogated
11

on other grounds by Burlington N & Santa
Fe Ry. Co. v. White, 548 U.S. 53 (2006).

action was taken.
Therefore, these
allegations as a whole are sufficient at the
motion to dismiss stage to state a plausible
hostile
work
environment
claim.
Accordingly, defendant's motion to dismiss
plaintiffs hostile work environment claim is
denied.

Applying these standards, the Court finds
that plaintiff has plausibly alleged a claim for
hostile work environment in violation of Title
VII. Plaintiff has plausibly alleged that he
suffered "harassment . . . of such quality or
quantity that a reasonable employee would
find the conditions of [his] employment
altered for the worse." Patane, 508 F.3d at
113. Plaintiff alleges that for approximately
six months he was subjected to repeated
comments about his national origin and
religion from both coworkers and
supervisors. (AC at 4-7.) Plaintiff alleges
that when he informed management that he
felt targeted because of his religion and
national origin, he was told that he was not
allowed to state that he felt targeted. (Id. at
4, 7.) Such allegations are sufficient to state
a plausible claim and give defendant fair
notice of plaintiffs claim. See Kassner v.
2nd Ave. Delicatessen Inc., 496 F.3d 229,
240-41 (2d Cir. 2007) (finding plaintiffs
allegations as to a hostile work environment
sufficient under Swierkiewicz, where plaintiff
alleged that her manager and other managers
"repeatedly made degrading comments"
regarding plaintiffs age). This is sufficient
to state a hostile work environment claim.

IV. CONCLUSION

For the reasons set forth herein, the Court
denies defendant's motion to dismiss in its
entirety. The parties shall proceed with
discovery. The Clerk of the Court is directed
to mail a copy of this Order to the pro se
plaintiff.

!,

I

I·

J SEPH F. BIANCO

United States District Judge
Dated: June 22, 2018
Central Islip, New York

***

Plaintiff is proceeding pro se, 10 Lexington
Court, Coram, New York 11727. Defendant
is represented by Gregory Bennett, Eustace,
Marquez, Epstein, Prezioso & Yapchanyk,
55 Water Street, 29th Floor, New York, New
York 10041.

Furthermore, the alleged harassing
conduct was by both non-supervisory and
supervisory workers. In fact, plaintiff made
numerous complaints to management about
the alleged harassment and no remedial

12