Pardo v. Tomas Infernuso DVM, P.C. et al

Filing 55

MEMORANDUM & ORDER: Defendants' Motion to Dismiss 38 is DENIED. ORDER ATTACHED. Ordered by Judge Natasha C. Merle on 9/24/2024. (ERB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MARIANA PARDO,
Plaintiff,
MEMORANDUM & ORDER
24-cv-00190 (NCM) (ST)

– against –
TOMAS INFERNUSO DVM, P.C., doing
business as Animal Surgical Center;
TOMAS INFERNUSO in his individual
and professional capacities,
Defendants.

NATASHA C. MERLE, United States District Judge:
Before the Court is defendants’ partial Motion to Dismiss, ECF No. 38, 1 plaintiff’s
retaliation claims, counts II, IV, and V of plaintiff’s amended complaint, ECF No. 19
(“AC”), with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff
Mariana Pardo brings this action against Tomas Infernuso DVM, P.C., doing business as
Animal Surgical Center (“ASC”), and Tomas Infernuso (together, “defendants”) for
alleged discrimination and retaliation in violation of Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq.; the New York State Human Rights Law
(“NYSHRL”), N.Y. Exec. Law §§ 290 et seq.; and the New York Labor Law (“NYLL”), N.Y.
Lab. Law § 740 (“Section 740”). The Court heard oral argument on the Motion on
September 5, 2024. For the reasons stated below, defendants’ Motion is DENIED.

The Court hereinafter refers to the Memorandum of Law in Support of Defendants’
Motion to Dismiss, ECF No. 39, as the “Motion”; plaintiff’s Memorandum of Law in
Opposition to Defendants’ Partial Motion to Dismiss, ECF No. 40, as the “Opposition”;
and the Reply Memorandum of Law in Support of Defendants’ Motion to Dismiss, ECF
No. 42, as the “Reply.”
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BACKGROUND
Plaintiff Dr. Mariana Pardo is a veterinarian who was employed as the Emergency
and Critical Care Medical Director at defendant ASC from September 2022 to May 2023.
AC ¶¶ 1, 8, 36, 121. Prior to her employment at ASC, Dr. Pardo was an emergency
veterinarian at another practice in New York. AC ¶ 28. Dr. Pardo has also served as an
Intensive Care Unit (“ICU”) Head Veterinary Technician, completed internships and a
residency in emergency and critical care, and published articles regarding veterinary
practice and diversity and inclusion in the profession. AC ¶¶ 24–26.
Defendant Dr. Tomas Infernuso is ASC’s founder, owner, and medical director.
AC ¶ 10. In 2021, Dr. Infernuso began recruiting Dr. Pardo to develop an Emergency
Room (“ER”) and ICU at ASC. AC ¶¶ 27–35. In July 2022, Dr. Pardo agreed to join ASC
as the Veterinary Critical Care Specialist. AC ¶ 35. In that role, she “was tasked with setting
up standard protocols” for ASC’s ER, “recruiting employees, creating staff schedules[,]
and marketing the emergency care practice.” AC ¶ 37. Dr. Pardo’s duties at ASC also
included: treating patients, hiring and onboarding doctors and staff, establishing training
and protocols, reviewing and organizing invoices and sales, “addressing performance
reviews” with employees, and contributing to marketing efforts. AC ¶¶ 39–41.
Plaintiff’s complaint describes several instances of alleged unlawful conduct at ASC
“from the outset” of her employment. AC ¶ 45. Specifically, Dr. Pardo alleges that
defendants tasked unlicensed staff with administering medicine in violation of state law,
AC ¶ 50; did not properly maintain drug records in violation of state law, AC ¶¶ 60–62;
failed to meet “general standards of care for veterinarians,” AC ¶ 65; “used highly
offensive and inappropriate language” with staff regarding euthanasia decisions, AC ¶ 91;
“made insensitive and discriminatory comments about [an employee’s] body and
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posture,” AC ¶ 97; and “mistreat[ed]” plaintiff after she announced that she was pregnant,
AC ¶ 110. For example, in early 2023 Dr. Pardo sent an email raising concerns about the
danger, stress, and unlawfulness of ASC’s practice of assigning “non-credentialed
assistants who had not completed the requisite schooling” for tasks such as “monitoring
anesthesia, performing venipuncture[,] and administering intravenous medication”
without proper supervision. AC ¶¶ 50–56.
Plaintiff alleges that she “promptly escalated” to Dr. Infernuso and ASC’s Director
of Human Resources (“HR”), William Welsh, several of her concerns about unlawful and
unethical practices during her time at ASC. AC ¶¶ 46, 116. Plaintiff further alleges that
defendants responded to her complaints with overt hostility and, ultimately, termination.
AC ¶¶ 47, 48.
LEGAL STANDARD
When deciding a motion to dismiss, a district court must “accept[] all factual
claims in the complaint as true, and draw[] all reasonable inferences in the plaintiff’s
favor.” Lotes Co. v. Hon Hai Precision Indus. Co., 753 F.3d 395, 403 (2d Cir. 2014).2
Factual disputes are typically not the subject of the Court’s analysis, as Rule 12 motions
“probe the legal, not the factual, sufficiency of a complaint.” Plastic Surgery Grp., P.C. v.
United Healthcare Ins. Co. of N.Y., Inc., 64 F. Supp. 3d 459, 468–69 (E.D.N.Y.
2014). That is, “the issue” on a motion to dismiss “is not whether a plaintiff will ultimately
prevail,” but instead whether a plaintiff is “entitled to offer evidence to support the
claims.” Sikhs for Just. v. Nath, 893 F. Supp. 2d 598, 615 (S.D.N.Y. 2012). Accordingly,
“[d]ismissal is inappropriate unless it appears beyond doubt that the plaintiff can prove
Throughout this Opinion, the Court omits all internal quotation marks, footnotes,
and citations, and adopts all alterations, unless otherwise indicated.

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no set of facts which would entitle him or her to relief.” Fat Brands Inc. v. Ramjeet, 75
F.4th 118, 125 (2d Cir. 2023).
In order to survive a motion to dismiss pursuant to Rule 12(b)(6), a plaintiff must
state “a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); see also 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.’” Matson v.
Bd. of Educ. of City Sch. Dist. of N.Y., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Iqbal, 556
U.S. at 678). Although the Court takes all factual allegations contained in the complaint
as true, it does not do so for legal conclusions or “[t]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements” in a complaint. Iqbal, 556
U.S. at 678.
Defendants move to dismiss each of plaintiff’s retaliation claims for failure to state
a claim. For the reasons stated below, the Court finds that plaintiff has adequately alleged
retaliation in violation of Title VII, the NYSHRL, and Section 740.
DISCUSSION
Courts in this circuit generally consider state and federal retaliation claims “in
tandem” because “New York courts rely on federal law when determining claims under
the New York Human Rights Law.” Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1177 (2d
Cir. 1996); see also Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C., 716
F.3d 10, 14 (2d Cir. 2013) (“The standards for evaluating . . . retaliation claims are
identical under Title VII and the NYSHRL.”); see also Thacker v. HSBC Bank USA, N.A.,
No. 22-cv-07120, 2023 WL 3061336, at *7 (S.D.N.Y. Apr. 24, 2023) (“assum[ing] without
deciding” that the Title VII standard applies to Section 740 claims).
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Workplace retaliation claims under Title VII and the NYSHRL are “reviewed under
the burden-shifting approach of McDonnell Douglas.” Zann Kwan v. Andalex Grp. LLC,
737 F.3d 834, 843 (2d Cir. 2013) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802–04 (1973)). The first step under McDonnell Douglas requires a plaintiff to “establish
a prima facie case of retaliation,” after which the burden shifts to the defendant to
“articulate some legitimate, non-retaliatory reason” for the adverse employment action.
Zann Kwan, 737 F.3d at 844, 845. To establish a prima facie case of retaliation, a plaintiff
must show that “(1) [plaintiff] engaged in protected activity, (2) the defendant was aware
of that activity, (3) [plaintiff] was subjected to a retaliatory action, or a series of retaliatory
actions, that were materially adverse, and (4) there was a causal connection between the
protected activity and the materially adverse action or actions.” Carr v. N.Y.C. Transit
Auth., 76 F.4th 172, 180 (2d Cir. 2023).
However, these elements are “relaxed” at the pleading stage. Littlejohn v. City of
New York, 795 F.3d 297, 307, 316 (2d Cir. 2015); see also Duplan v. City of New York,
888 F.3d 612, 626 (2d Cir. 2018). In order to survive a motion to dismiss a retaliation
claim, a plaintiff must “plausibly allege that: (1) defendants discriminated—or took an
adverse employment action—against [plaintiff], (2) because [plaintiff] has opposed any
unlawful employment practice.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72,
90 (2d Cir. 2015).
To satisfy the requirement that plaintiff engaged in protected activity by opposing
an employer’s practice, a plaintiff need only allege “a good faith, reasonable belief that the
underlying employment practice was unlawful,” whether or not it actually was unlawful.
Zann Kwan, 737 F.3d at 843.

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I.

Protected Activity
Federal law prohibiting retaliation in the workplace operates to “prevent[] an

employer from interfering (through retaliation) with an employee’s efforts to secure or
advance enforcement of [a statute’s] basic guarantees.” Burlington N. & Santa Fe Ry. Co.
v. White, 548 U.S. 53, 63 (2006). While anti-discrimination law seeks “to prevent injury
to individuals based on who they are, i.e., their status,” anti-retaliation law seeks “to
prevent harm to individuals based on what they do, i.e., their conduct.” Id. The conduct
protected by anti-retaliation law is defined by the underlying statutes’ prohibitions—here,
discrimination pursuant to Title VII and the NYSHRL, and unlawful or dangerous
conduct pursuant to NYLL Section 740. See Duplan, 888 F.3d at 625 (equating protected
activity with “oppos[ing] any unlawful employment practice”).
A. Title VII & NYSHRL Claims
Defendants contend that plaintiff’s Title VII and NYSHRL claims should be
dismissed for failure to state a claim because plaintiff has not sufficiently alleged that she
engaged in “protected activity” leading up to the alleged retaliation. Mot. at 20. 3 In
response, plaintiff points to her allegations that she “supported, and advocated for, an
employee who was being discriminated against due to his disabilities,” Opp’n at 24, and
“complain[ed] about the lack of” pregnancy-related accommodations, Opp’n at 26, as
sufficient to constitute protected activity under federal and state discrimination laws. For
the reasons stated below, the Court finds plaintiff’s allegations sufficient to state a claim
for retaliation under Title VII and the NYSHRL.

Throughout this Opinion, page numbers for docket filings refer to the page
numbers assigned in ECF filing headers.

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Plaintiff alleges that she was terminated from her employment at ASC against a
multitude of complaints she made regarding unlawful disability and pregnancy-related
discrimination by defendants. Specifically, plaintiff alleges that she “mediat[ed] a
conversation” between Dr. Infernuso and another employee regarding “insensitive and
discriminatory comments about [the employee’s] body and posture.” AC ¶¶ 97–100. The
NYSHRL protects against discrimination based on disability, N.Y. Exec. Law § 291.1,
which is broadly defined to include any “medically diagnosable impairment.” Ugactz v.
United Parcel Serv., Inc., No. 10-cv-01247, 2013 WL 1232355, at *14 (E.D.N.Y. Mar. 26,
2013). Contrary to defendants’ argument, 4 plaintiff’s allegations that the employee’s
“appearance and gait were related to a serious accident he suffered when he was younger
and had previously caused him severe depression and resulted in suicidal ideation,” are
sufficient to support an inference that she reasonably believed Dr. Infernuso’s repeated
discriminatory comments violated antidiscrimination law, at least at the state level. See
Karupaiyan v. CVS Health Corp., No. 19-cv-08814, 2021 WL 4341132, at *17 (S.D.N.Y.
Sept. 23, 2021) (“[D]isability is defined more broadly under the NYSHRL . . . than it is
under Title VII[.]”).
Furthermore, the fact that plaintiff facilitated the conversation between Dr.
Infernuso and the employee does not at this stage transform Dr. Pardo’s opposition to
defendants’ practices into an avenue “merely to convey others’ complaints.”

Defendants contend that “comments about somebody’s body or posture are not—
by themselves—[do] not indicate . . . one way or the other whether or not that claim is
based on a disability.” Oral Arg. Tr. 32:22–33:10. However, plaintiff alleges that the
employee’s physical appearance is both the product of a disability and the source of Dr.
Infernuso’s comments. Moreover, as plaintiff’s counsel pointed out, plaintiff need only
allege that she reasonably believed the comments were based on disability. Oral Arg. Tr.
at 37:5–14.

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Littlejohn, 795 F.3d at 318; see Mot. at 23. Plaintiff’s allegations—including the allegation
that Dr. Infernuso told Mr. Welsh that Dr. Pardo had “‘stormed’ into the conference
room,” AC ¶ 101—raise a plausible inference that, by mediating the conversation, plaintiff
was “expressing her own support for that claim” of discrimination. Littlejohn, 795 F.3d at
318. Defendants’ arguments to the contrary regarding plaintiff’s human resources
capacity at ASC amount to factual disputes. Compare Mot. at 23 (contending that plaintiff
alleged she “was responsible for handling employee relations and personnel matters”)
with Opp’n at 25 (noting that plaintiff pleaded “some administrative and managerial
responsibilities”). Such factual disputes are not before the Court at the motion to dismiss
stage. See Plastic Surgery Grp., 64 F. Supp. 3d at 468–69 (Rule 12 motions “probe the
legal, not the factual, sufficiency of a complaint.”); see also Oral Arg. Tr. 16:17–17:25 (draft
on file with Court).
Plaintiff also alleges that after being informed of her pregnancy, Dr. Infernuso
“used [that information] as an opportunity to be vindictive.” AC ¶ 109. In particular, she
alleges that Dr. Infernuso changed plaintiff’s work schedule and requirements in ways
that worked against her “need for pregnancy accommodations,” as communicated to both
Dr. Infernuso and Mr. Welsh. AC ¶¶ 112–16. Title VII prohibits pregnancy-based
discrimination in the workplace. Romero v. St. Vincent’s Servs., Inc., No. 22-cv-o1476,
2023 WL 3477161, at *1 (2d Cir. May 16, 2023) (“In 1978, Congress amended Title VII and
specified that the term ‘because of sex’ prohibits discrimination ‘on the basis of
pregnancy, childbirth, or related medical conditions.’ 42 U.S.C. § 2000e(k).”). Plaintiff’s
allegations that Dr. Infernuso “amplified his mistreatment of her with a clear intent to
push her out” after she announced her pregnancy, AC ¶ 110, and terminated her
employment after she “reported her concerns . . . and her need for pregnancy
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accommodations” to Mr. Welsh, AC ¶ 116, suggest that plaintiff reasonably believed
defendants were violating the prohibition on sex discrimination found in Title VII.
Plaintiff therefore has alleged facts to support that she engaged in protected activity under
Title VII.
Given these state and federal prohibitions of discrimination based on disability and
pregnancy, coupled with plaintiff’s experience in the field of diversity and inclusion in the
veterinary profession, the Court can reasonably infer from the complaint that plaintiff had
a good-faith and reasonable belief that the conduct she complained about at ASC was
unlawful. Accordingly, the Court finds that plaintiff has sufficiently alleged protected
activity under Title VII and the NYSHRL.
B. NYLL Section 740 Claim
Defendants seek to dismiss plaintiff’s Section 740 claim 5 on the grounds that
plaintiff fails to allege retaliation based on complaints of a danger to public safety or any
law, rule, or regulation. Mot. at 12–13. In opposition, plaintiff contends that her amended
complaint demonstrates her reasonable belief that defendants were violating several

A Rule 12 motion seeks to “foreclose all paths to liability under a certain cause of
action.” In re Am. Express Anti-Steering Rules Antitrust Litig., 343 F. Supp. 3d 94, 101
(E.D.N.Y. 2018). Nonetheless, defense counsel noted at oral argument that “there are
three kind[s] of buckets that [plaintiff is] claiming that support her Labor Law claim: One
is based on New York Education Law, one is on a violation of the Veterinary Guidelines,
and the last is the New York State Controlled Substances Act. Which is why we’re
essentially moving to dismiss the last two; we’re not moving to dismiss the New York
Labor Law claim that’s premised on a violation of the Education Law.” Oral Arg. Tr. 8:7–
14. However, the Motion requests dismissal of Count 5 in its entirety, see Mot. at 28, and
defendants have provided no support for their argument that the Court should dismiss a
portion of a claim based on evidentiary support where a claim is otherwise sufficiently
pled. Nor have defendants argued that the complaint states more than one Section 740
claim. See In re Am. Express Anti-Steering Rules Antitrust Litig., 343 F. Supp. 3d at 100
(“[A] ‘claim’ is a set of facts that can support liability for the defendant under a cause of
action.”). If defendants seek to limit discovery or to strike specific factual assertions, they
must do so through the proper procedural channel.
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specific laws, rules, and regulations, as well as engaging in practices that posed a danger
to public safety. Opp’n at 12–23. For the reasons stated below, the Court finds that
plaintiff has sufficiently alleged facts to support a Section 740 claim at the pleading stage.
Section 740 of the NYLL, otherwise known as New York’s “whistleblower law,”
provides additional state law protection against retaliation for employees reporting
misconduct. Thacker, 2023 WL 3061336, at *6. Specifically, it prohibits any employer
from taking “any retaliatory action” because an employee “discloses, or threatens to
disclose” a practice the employee “reasonably believes is in violation of [a] law, rule or
regulation” or otherwise poses “a substantial and specific danger to the public health or
safety.” NYLL § 740(2)(a). Section 740 “does not require [p]laintiffs to identify the
specific law, rule, or regulation” they reasonably believed their employers violated, but
they must “identify the particular activities, policies or practices in which the employer
allegedly engaged” that form the basis of the employee’s reasonable belief. Komorek v.
Conflict Int’l, Inc., No. 22-cv-09467, 2024 WL 1484249, at *6 (S.D.N.Y. Mar. 29, 2024)
(citing Webb-Weber v. Cmty. Action for Hum. Servs., Inc., 23 N.Y.3d 448, 452 (2014)).
Furthermore, the violation of law requirement is an independent prong such that
plaintiffs need not allege a legal violation that itself posed a danger to public health or
safety. Pierce v. Better Holdco, Inc., No. 22-cv-04748, 2023 WL 6386920, at *4 (S.D.N.Y.
Sept. 29, 2023) (noting that Section 740 was amended in 2022 to broaden its scope and
include retaliation based on an employee’s reasonable belief that the employer is violating
the law, “whether or not the violation relates to public health or safety.”).
Therefore, to state a Section 740 claim, a plaintiff must allege (a) retaliation (b)
based on (c) threatened or actual disclosure of her employer’s activity that she “reasonably
believed either (1) violated a law, rule, or regulation, or (2) posed a substantial and specific
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danger to public health or safety.” Komorek, 2024 WL 1484249 at *6. As to (b), a plaintiff
must allege “some causal connection” between (a) and (c). Thacker, 2023 WL 3061336,
at *6. That is, plaintiff must allege that she was retaliated against because of her
whistleblower activity.
Here, plaintiff has detailed several instances that, taken as true, support a
reasonable belief that defendants were violating New York laws governing education and
controlled substances. Indeed, plaintiff has alleged that defendants violated three specific
laws: N.Y. Educ. Law § 6700 et seq.; N.Y. Comp. Codes, R. & Regs. tit. 10, § 80.48; and
N.Y. Pub. Health Law § 3322 (the “Controlled Substances Act”). AC ¶¶ 51–56; 60–64.
These allegations moot defendants’ argument that plaintiff’s reports of conduct in
violation of state guidelines for veterinarians are insufficient to state a Section 740 claim,
Mot. at 16–18. Whether or not the Court considers violations of the guidelines to
constitute violations of a law, rule, or regulation, plaintiff’s allegations as to violations of
numerous other, specific laws are sufficient at this stage of the case.
Also, contrary to defendants’ argument, Oral Arg. Tr. 31:1–16, this specificity in the
complaint does not work to undermine plaintiff’s Section 740 claim in light of the fact
that she was not required to identify any such laws. Komorek, 2024 WL 1484249, at *6.
To the extent it has merit and is not simply a factual dispute, defendants’ contention that
plaintiff failed to allege a reasonable belief because she did not act “immediately” to
“investigate, correct, or report” those violations, Reply at 8, is contradicted by plaintiff’s
allegations that she addressed several concerns with Dr. Infernuso “immediately.” See,
e.g., AC ¶ 62.
Plaintiff has also sufficiently alleged that she reasonably believed defendants’
mishandling of fentanyl—a highly addictive and dangerous opioid—posed a danger to
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public health and safety. As the Supreme Court has stated, the “opioid epidemic
represents one of the largest public health crises in this nation’s history.” Harrington v.
Purdue Pharma L.P., 144 S. Ct. 2071, 2078 (2024). Plaintiff’s allegations primarily relate
to incorrect administration of fentanyl in a manner that prevented proper record keeping.
AC ¶¶ 62–64.
The Court can reasonably infer that the administration by unlicensed staff of a drug
“known for its high potential for addiction and overdose,” United States v. Brooks, 685 F.
Supp. 3d 476, 479 (E.D. Mich. 2023), may pose a threat to public health. This is especially
true here, where plaintiff has alleged multiple examples that, taken together, suggest a
recurring practice at ASC with the potential to pose a danger to the public at large. See
Villarreal v. Montefiore Med. Ctr., No. 20-cv-00012, 2020 WL 5518382, at *3 (S.D.N.Y.
Sept. 14, 2020) (noting that specific instance of patient neglect “attributable” to a “lack of
training and discipline” could “pose[] § 740’s requisite threat to the health or safety of the
public at large,” in part if it was “ongoing or liable to recur”). Plaintiff may ultimately be
required to more clearly connect the practices of allowing unlicensed staff to administer
fentanyl and engaging in improper record keeping with threats to public health and safety,
but she has satisfied her burden to allege that she reasonably believed defendants’
conduct posed a public health concern.
Accordingly, the Court finds that plaintiff has sufficiently stated protected activity
under NYLL § 740.
II.

Adverse Action

To state a retaliation claim, a plaintiff must also allege that she “was subjected to a
retaliatory action, or a series of retaliatory actions, that were materially adverse.” Carr,
76 F.4th at 180. In the employment context, an action is adverse if it “well might have
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dissuaded a reasonable worker from making or supporting a charge of” unlawful activity,
as defined in the underlying statute, against her employer. Id. (quoting Burlington, 548
U.S. at 68). Whether an employer’s action is adverse is often “a heavily fact-specific,
contextual determination.” Connelly v. Cnty. of Rockland, 61 F.4th 322, 325 (2d Cir.
2023).
Defendants do not challenge that plaintiff has alleged adverse actions. Oral Arg.
Tr. 18:12–17. Indeed, plaintiff has alleged termination, a paradigmatic adverse
employment action. AC ¶ 121. There is no question the idea of being fired might “dissuade”
a reasonable employee from reporting discrimination under Title VII or conduct
prohibited by Section 740. See Burlington, 548 U.S. at 57.
Plaintiff also alleges changes to her terms of employment. AC ¶¶ 76–78, 86. For
example, plaintiff alleges that, in retaliation for her reports of misconduct, Dr. Infernuso
later “decreased the amount of compensation” Dr. Pardo “expected to earn” at ASC,
“suggested that her job duties would extend far beyond what she had understood” from
prior negotiations, and indicated that her bonus would be contingent on “never before
discussed performance indicators.” AC ¶¶ 85–89. A reasonable employee might be
dissuaded from raising her concerns about discriminatory or otherwise unlawful conduct
if those concerns would be met with indications that she would be required to work more
for potentially less pay. See Thacker, 2023 WL 3061336, at *8 (noting that a “bonus
reduction constitutes a . . . paradigmatic materially adverse change” that would satisfy
“Section 740’s threshold” for retaliation).
Accordingly, plaintiff has sufficiently alleged that the breakdown in her
employment contract negotiations and her ultimate termination from ASC are both
adverse actions that may support a retaliation claim pursuant to state and federal law.
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III.

Causation

Plaintiff has also sufficiently alleged that defendants engaged in retaliatory
conduct because plaintiff opposed alleged discrimination under Title VII and the
NYSHRL, as well as unlawful conduct under Section 740. To establish causation, a
plaintiff must allege that the protected activity was a “but-for” cause of the retaliation.
Vega, 801 F.3d at 90–91. Indeed, a plaintiff must allege that “the adverse action would
not have occurred in the absence of the retaliatory motive.” Id. at 91.
Causation can be supported at the pleading stage with allegations of (i) “direct
evidence of retaliatory animus” or (ii) indirect evidence of causation “through temporal
proximity to the protected activity” or “a backdrop of continuing antagonism and
frustration of [] professional ambitions.” Duplan, 888 F.3d at 625–26. Indirect support
of causation can be established “by showing that the protected activity was closely
followed in time by the adverse employment action.” Tafolla v. Heilig, 80 F.4th 111, 125–
26 (2d Cir. 2023). Although the Second Circuit “has not drawn a bright line defining the
outer limits beyond which a temporal relationship is too attenuated to establish
causation,” it has found that “a period of several months,” including an eight-month gap,
can support causation. Banks v. Gen. Motors, LLC, 81 F.4th 242, 277 (2d Cir. 2023)
(citing Grant v. Bethlehem Steel Corp., 622 F.2d 43, 45–46 (2d Cir. 1980)).
Defendants terminated plaintiff in May 2023, roughly eight months after she
joined ASC. See AC ¶ 121. More specifically, plaintiff’s allegations describe a period of less
than one month between her May termination and the April meeting regarding Dr.
Infernuso’s discriminatory comments based on another employee’s actual or perceived
disability, AC ¶¶ 97–101, and Dr. Pardo’s April pregnancy announcement, AC ¶ 107.
Furthermore, plaintiff’s allegations suggest months of hostility in response to her voicing
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myriad concerns “[f]rom the outset” of her employment at ASC. See AC ¶ 45. This pattern,
as alleged by plaintiff, suggests a “drumbeat of retaliatory animus,” Duplan, 888 F.3d at
626, toward Dr. Pardo. From these allegations, the Court can reasonably infer that
plaintiff’s opposition to defendants’ alleged discrimination based on disability and
pregnancy caused defendants’ alleged retaliatory actions.
Furthermore, plaintiff has alleged facts to support a causal link between her
reports of misconduct and Dr. Infernuso’s actual or suggested changes to her terms of
employment, as discussed supra. Plaintiff provides two specific examples, one from
January 2023 and another from mid-March 2023, regarding her reports to Dr. Infernuso
about unlicensed staff administering medication. AC ¶¶ 54–56. These incidents coincided
with the “early 2023” contract negotiation breakdown, AC ¶¶ 85–89, and occurred just a
few months prior to her May termination, AC ¶ 121. These allegations are sufficient at the
motion to dismiss stage to support the causal connection required to plead a Section 740
claim.
CONCLUSION
For the reasons stated above, the Court DENIES defendants’ Motion.

SO ORDERED.

/s/ Natasha C. Merle
NATASHA C. MERLE
United States District Judge
Dated:

September 24, 2024
Brooklyn, New York
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