Blundell v. Nihon Kohden America et al
DECISION AND ORDER granting in part and denying in part # 14 Defendant's Motion to Dismiss Plaintiff's Amended Complaint for failure to state a claim. The following claims are DISMISSED from Plaintiff's Amended Complaint: (1) Plaint iff's age discrimination claims pursuant to the ADEA and NYSHRL; (2) Plaintiff's disability discrimination claims pursuant to the ADA and NYSHRL; and (3) Plaintiff's failure-to-accommodate claims pursuant to the ADA and NYSHRL, to the extent that they are predicated upon his request for an accommodation to remain seated while teaching. The following claims SURVIVE Defendant's motion: (1) Plaintiff's failure-to-accommodate claims pursuant to the ADA and NYSHRL, to the e xtent that they are predicated upon his requests for use of the company rental car and skycap services to assist in transporting his luggage while traveling on work assignments; and (2) Plaintiff's retaliation claims pursuant to the ADEA, ADA, and NYSHRL. Defendant is directed to file an answer to Plaintiff's Amended Complaint within 14 days of the date of this Decision and Order pursuant to Fed. R. Civ. P. 12(a)(4)(A). This case is referred back to Magistrate Judge Peebles for a Rule 16 conference and the scheduling of pretrial deadlines. Signed by Chief Judge Glenn T. Suddaby on 1/23/17. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
NIHON KOHDEN AMERICA,
LAW OFFICE OF MATTHEW S. PORGES, ESQ.
Counsel for Plaintiff
641 President Street, Suite 205
Brooklyn, NY 11215
MATTHEW S. PORGES, ESQ.
LEWIS BRISBOIS BISGAARD & SMITH LLP
Counsel for Defendant
77 Water Street, Suite 2100
New York, NY 10005
PETER T. SHAPIRO, ESQ.
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this employment discrimination action filed by Paul
Blundell ("Plaintiff") against Nihon Kohden America ("Defendant" or "NKA"), is Defendant's
motion to dismiss Plaintiff's Amended Complaint for failure to state a claim upon which relief
can be granted pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No. 14.) For the reasons set forth
below, Defendant's motion is granted in part and denied in part.
Plaintiff’s Amended Complaint
Generally, in his Amended Complaint, Plaintiff alleges as follows. (Dkt. No. 13.)
Plaintiff's Age, Disability, and Employment with NKA
On May 7, 2013, Plaintiff, 59 years old, participated in a job interview via a Skype call1
with representatives of NKA, a California corporation authorized to conduct business in New
York with a principal place of business in Irvine, California. (Id. at ¶¶ 6, 10, 13.) During the
interview, Tyler Lamb, a clinical application specialist ("CAS") with NKA, asked Kenric
Thompson ("Thompson"), a manager who also took part in the interview, how old Plaintiff was.
(Id. at ¶¶ 13, 16.) Plaintiff was hired and began working for NKA in May 2013 as a CAS with
responsibilities "centered on teaching, but also including set up of equipment and on-site
technical support." (Id. at ¶ 14.)
At some point "[a]round the time of his hire," Plaintiff voluntarily provided his age to
Thompson and Monica Kim ("Kim"), then a member of NKA's human resources staff. (Id. at ¶
16.) Plaintiff also advised Thompson and Kim that he had "nerve damage caused by severe
fractures" in his legs and feet. (Id. at ¶¶ 11, 16.) These disabilities substantially limit Plaintiff's
"neurological and muscular functioning" as well as his ability to walk, stand, lift, run, and bend.
(Id. at ¶ 12.) At the time that he was hired, Plaintiff requested, from Thompson and Kim,
reasonable accommodations in the form of sitting while teaching classes. (Id. at ¶ 17.)
Presumably, Plaintiff refers to the software program that allows users to engage
in, among other things, video conference calls over the internet.
October 2013 – Comments by Coworker
On "multiple occasions" in October 2013, Cynthia Wolk ("Wolk"), Plaintiff's coworker,
stated to Plaintiff that his "age and disability made him unable to perform his job." (Id. at ¶ 18.)
Plaintiff advised Wolk that he was offended by her comments, "complained to" Thompson and
Kim about the comments, and offered to "allow Wolk to take the lead on at least one account . . .
to appease Wolk and to make NKA look more united." (Id. at ¶¶ 18-19.) Thompson did not
accept Plaintiff's offer and failed to take any other corrective action regarding Wolk's comments.
(Id. at ¶ 19.)
December 2013 – Denial of Use of Company Rental Car as a
In December 2013, while working on an assignment in Duluth, Minnesota, in
temperatures as low as approximately negative 10 degrees Fahrenheit, Plaintiff suffered
frostbite, "exacerbat[ing] his disability and ma[king] it more difficult . . . to stand." (Id. at ¶ 20.)
The frostbite occurred after Plaintiff was "twice denied use of the company's rental car," despite
the fact that he had (1) informed NKA that he needed the car as a reasonable accommodation,
and (2) specifically asked the lead CAS on the assignment for use of the car. (Id.) Plaintiff's
similarly situated coworkers were permitted to use the rental car. (Id.)
Other Remarks About Plaintiff's Age and Disability
During the course of Plaintiff's employment with NKA, "many CAS employees . . .
technicians . . . and some contract wire pullers made comments and/or jokes about [Plaintiff's]
limp and/or injured leg." (Id. at ¶ 21.) For example, on or around June 2, 2014, a clinical
consultant named David called Plaintiff "old and gimpy." (Id.) At some point, Lynn Gustafson,
a "senior CAS," referred to Plaintiff as a "gimp." (Id.) On several other occasions, some of
NKA's installers referred to Plaintiff as "the gimp" or "the old gimp." (Id.) Comments about
Plaintiff's age and disability were made by a number of his coworkers in various positions with
NKA. (Id. at ¶¶ 21-22.) Throughout the course of his employment, Plaintiff complained to
Thompson that he was offended by these comments. (Id. at ¶ 22.) Plaintiff also complained
about the comments to the "lead CAS" on assignments on which he was the secondary CAS. (Id.
at ¶ 26.) However, Thompson (as well as lead CASs to whom Plaintiff complained) "did little or
nothing to prevent or stop" the comments or to "penalize" the employees making them. (Id.)
August 2014 – Denial of Skycap Services as a Reasonable
In August 2014, NKA began denying Plaintiff's requests for reimbursement "for skycap
services to help him move his bags when he traveled for" NKA. (Id. at ¶ 24.) Plaintiff had
advised NKA that he needed skycap services as a reasonable accommodation while traveling.
October 2014 – Employee Meeting and Plaintiff's Performance
In October 2014, NKA held a "large employee meeting," during which Thompson
introduced NKA's "gateway security expert," Mike, as "being over sixty (60) years old." (Id. at ¶
25.) Many of Plaintiff's fellow employees "verbally indicated displeasure" with Mike's age, and
Plaintiff conveyed that he "resented that displeasure." (Id.)
At some other point in October 2014, Thompson gave Plaintiff a performance evaluation
which criticized him "for working 'in the corner sitting in a chair[.]'" (Id. at ¶ 27.) This was "a
clear reference to Thompson's distaste for [Plaintiff's] physical inability to stand for periods of
time." (Id.) Thompson also "stated" that Plaintiff was required to "make continuous rounds and
not sit as" he physically required. (Id.)
March 2015 – Suspension of Plaintiff's Employment
On or about March 17, 2015, NKA suspended Plaintiff's employment with pay. (Id. at ¶
29.) The suspension was based on multiple false allegations. (Id.) First, NKA asserted that
Plaintiff made "racist comments to [an] African-American woman during a visit with an
account." (Id.) In actuality, Plaintiff had no interaction with an African-American woman on
the account at issue. (Id.) Second, NKA falsely asserted that Plaintiff "wore improper attire"
and had "dirty clothes," "body odor," and "bad teeth." (Id.) Notably, NKA terminated Kim in
January 2015, approximately two months after she had "circulated a memorandum stating that
there was to be no discrimination or retaliation in the work place." (Id. at ¶ 28.)
April 2015 – Termination of Plaintiff's Employment
After Plaintiff was suspended, NKA's new Human Resources Director, Betzy Estrada
("Estrada"), and a Nurse Executive (and later Vice President for Clinic Excellence Programs),
Veffa Devers ("Devers"), began investigating Plaintiff's claims that he had been subjected to
discrimination. (Id. at ¶¶ 30-31.) On April 18, 2015, after "spending approximately a month
reviewing [Plaintiff's] claims of discrimination," Devers and Estrada elevated Plaintiff's
suspension to a termination of his employment. (Id. at ¶ 31.) Defendant provided "multiple
changing and false reasons" for Plaintiff's termination, including alleged "racist comments" that
he had made, his "lack of product knowledge," and "the alleged hygiene and attire issues" that
were the (partial) basis for his suspension. (Id. at ¶ 35.) Devers and Estrada also concluded that
Plaintiff's claims of discrimination were unsupported and that he "had acted improperly with
respect to Wolk," in contradiction of Plaintiff's earlier complaints about Wolk. (Id. at ¶ 32.)
Based upon the foregoing allegations, Plaintiff appears to assert the following claims, set
forth in a single paragraph of his Amended Complaint: (1) a claim for discrimination based on
his age, in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29
U.S.C. §§ 621 et seq., and an identical state law claim pursuant to New York Executive Law §
296; (2) claims for discrimination based on his disability and failure to provide reasonable
accommodations, in violation of the Americans with Disabilities Act of 1990 ("ADA"), 42
U.S.C. §§ 12111 et seq., and identical state law claims pursuant to New York Executive Law §
296; and (3) claims for retaliation, in violation of the ADEA, ADA, and New York Executive
Law § 296. (Id. at ¶ 36.)
Parties' Briefing on Defendant's Motion to Dismiss
Defendant's Memorandum of Law
Generally, in support of its motion to dismiss Plaintiff's Amended Complaint, Defendant
advances five arguments. (Dkt. No. 14, Attach. 2 [Def.'s Memo. of Law].)
First, Defendant argues that Plaintiff's age discrimination claims must be dismissed for
the following reasons: (a) Plaintiff has not alleged facts plausibly suggesting that his
employment was terminated due to his age (id. at 7-8); (b) Wolk's statements, made
approximately 18 months prior to Plaintiff's termination, constitute mere stray remarks unrelated
to Plaintiff's suspension or termination (id. at 8-9); and (c) Thompson's reference to a computer
expert's age at the employee meeting was facially neutral, and any disapproval voiced by
unidentified coworkers cannot plausibly be attributed to NKA management (id. at 9).
Second, Defendant argues that Plaintiff's disability discrimination claims must be
dismissed because he has failed to allege facts plausibly suggesting that the termination of his
employment was causally connected to his disability for the following reasons: (a) there is no
basis for imputing the comments allegedly made by coworkers to NKA decision-makers; (b)
Thompson's criticism in conjunction with Plaintiff's performance review that Plaintiff worked "in
the corner sitting in a chair" did not reflect improper animus, but rather that Plaintiff was not
aggressive enough in advancing NKA's business; (c) he has not alleged facts plausibly
suggesting that he advised NKA that he needed skycap services as a reasonable accommodation,
that he had previously been granted this accommodation, or that he complained to appropriate
personnel when he was denied this accommodation; and (d) in any event, these incidents were
too remote in time from his termination to plausibly suggest a causal connection. (Id. at 11-14.)
Third, Defendant argues that Plaintiff's failure-to-accommodate claims must be dismissed
for the following reasons because Plaintiff has failed to allege facts plausibly suggesting that
NKA refused to engage in the interactive process or refused to furnish reasonable
accommodations for the following reasons: (i) Plaintiff's allegations reflect that he requested to
sit while teaching, and that NKA granted and never rescinded this accommodation; (ii)
Thompson's alleged criticism in Plaintiff's performance evaluation does not plausibly suggest
that Thompson breached his obligation to engage in the interactive process or rescinded the
accommodation; (iii) Plaintiff has not alleged that NKA personnel knew that he needed skycap
services as a reasonable accommodation, or that NKA personnel denied the accommodation or
otherwise responded negatively to a request for these services; (iv) Plaintiff has not alleged facts
plausibly suggesting that he advised those individuals with whom he spoke about skycap
services or the rental car that he needed either as an accommodation, that those individuals were
in a position to grant or deny those accommodations on NKA's behalf, or that Plaintiff raised
these issues with NKA personnel in a position to address his concerns; and (v) with respect to
skycap services, Plaintiff actually received skycap services, and NKA's denial of his claim for
reimbursement after the fact did not constitute a failure to accommodate because Plaintiff has
failed to allege facts plausibly suggesting that he sought this accommodation at the outset of his
employment. (Id. at 14-16.)
Fourth, Defendant argues that Plaintiff's retaliation claims related to his complaints of
age discrimination must be dismissed for the following reasons: (a) Plaintiff has failed to allege
facts plausibly suggesting that he made any recent complaints about discriminatory conduct
based on his age such that NKA would have been on notice that discrimination was occurring;
and (b) Plaintiff's complaints about Wolk's October 2013 comments were too remote in time to
plausibly suggest a causal connection between those complaints and the termination of his
employment in April 2015. (Id. at 18-21.)
Fifth, Defendant argues that Plaintiff's retaliation claims related to his complaints of
disability discrimination must be dismissed for the following reasons: (a) Plaintiff has failed to
allege facts plausibly suggesting that decision-makers regarding his termination were aware of
his protected activity at the time of the decision to terminate his employment; (b) Plaintiff's
complaints to supervisors about Wolk in 2013, and to Thompson about coworkers' "gimp"
comments as late as June 2014, are too remote in time to plausibly suggest a causal connection
between those complaints and his suspension (in March 2015) and termination (in April 2015);
(c) because Plaintiff's suspension preceded his complaints to Estrada and Estrada's investigation
into those complaints, his complaints to Estrada were not causally connected to his suspension;
and (d) NKA furnished legitimate, nonretaliatory reasons for suspending and terminating
Plaintiff's employment, and Plaintiff has failed to allege facts plausibly suggesting that those
reasons were pretextual.2 (Id. at 21-23.)
Plaintiff's Opposition Memorandum of Law
Generally, in opposition to Defendant's motion to dismiss, Plaintiff advances three
arguments. (Dkt. No. 18 [Plf.'s Opp'n Memo. of Law].)
First, Plaintiff argues that his age discrimination claims should not be dismissed for the
following reasons: (a) he has alleged facts plausibly suggesting that his employment was
suspended and terminated under circumstances giving rise to an inference of discrimination,
specifically, that NKA (i) "failed to stop or correct" his coworkers' age-based comments and (ii)
provided "multiple changing and false reasons" for his termination; (b) he has alleged facts
plausibly suggesting that the reasons cited by NKA for taking adverse employment action
against him were not credible but were pretextual; and (c) his coworkers' discriminatory age-
Defendant argues that, to the extent that Plaintiff's Amended Complaint may be
understood to advance claims for hostile work environment under the ADA, ADEA, and
NYSHRL, these claims should be dismissed for the following reasons: (a) Plaintiff has failed to
allege facts plausibly suggesting that he suffered age-based or disability-based harassment that
was sufficiently severe or pervasive to alter the conditions of his employment; (b) Plaintiff has
not identified conduct related to his age that may plausibly be imputed to NKA; (c) the
comments allegedly made by Wolk in October 2013, by Gustafson on a single occasion, and by
installers on unknown dates constitute merely episodic incidents; and (d) the allegedly harassing
conduct cannot be imputed to NKA because Plaintiff has failed to allege facts plausibly
suggesting that NKA (i) failed to provide a reasonable avenue for complaints about the conduct
(particularly in light of Kim's support of Plaintiff until her termination in January 2015) or (ii)
failed to take corrective action. (Dkt. No. 14, Attach. 2, at 10, 16-18 [Def.'s Memo. of Law].)
However, in his opposition memorandum of law, Plaintiff asserts that he has not advanced a
hostile-work-environment claim, and asserts no arguments in support of such a claim. (Dkt. No.
18 at 10 n.3 [Plf.'s Opp'n Memo. of Law].)
based comments may be imputed to NKA because Plaintiff made "repeated complaints" to alert
NKA about the comments, and NKA's failure to correct and/or prevent this behavior amounted
to "a virtual opposite to the Faragher/Ellerth defense." (Id. at 10-15.)
Second, Plaintiff argues that his disability discrimination claims and failure-toaccommodate claims should not be dismissed for the following reasons: (a) his allegation that
Thompson criticized him for "working 'in the corner sitting in a chair'" despite Thompson's
knowing that Plaintiff required the ability to sit while lecturing, plausibly suggests that NKA
harbored animus regarding his disability; and (b) NKA has not articulated any legitimate reason
for why it refused his request to use the company rental car during his assignment in Minnesota.
(Id. at 15-16.)
Third, Plaintiff argues that his retaliation claims should not be dismissed for the
following reasons: (a) NKA should not be permitted to rely on the lack of temporal proximity
between his complaints of discriminatory comments and his suspension and termination because
NKA "failed to investigate [his] complaints for months" and thereby contributed to the lack of
temporal proximity; (b) he made complaints on numerous occasions prior to Estrada's postsuspension investigation, and the fact that his employment was terminated only after Estrada
more-closely examined his complaints plausibly suggests that his complaints and termination
were causally connected; (c) he has alleged facts plausibly suggesting that Estrada and Devers
"intertwined Estrada's alleged investigatory findings with the reasons for Plaintiff's termination,"
and thus, that the discrimination about which he complained was "freshly in the[ir] mind[s] . . .
when they terminated" his employment; (d) he has alleged facts plausibly suggesting that NKA
took adverse employment actions against him other than his suspension and termination,
specifically, (i) "removing reimbursement for" his skycap services, (ii) "attempting to
discourage" him from sitting while lecturing, and (iii) denying him the use of the company rental
car on his assignment in Minnesota; and (e) as with the factual allegations supporting his age
discrimination claims, the factual allegations supporting his retaliation claims plausibly suggest
that the reasons cited by NKA for taking adverse employment action against him were not
credible but were pretextual. (Id. at 17-20.)
Defendant's Reply Memorandum of Law
Generally, in reply to Plaintiff's opposition, Defendant reiterates the arguments asserted
in its memorandum of law and, moreover, argues as follows: (1) in his Amended Complaint,
Plaintiff did not assert a claim of discriminatory discharge (based on either his age or disability)
and cannot allege new facts or theories supporting such a claim in his opposition memorandum
of law; (2) even assuming that Plaintiff did assert a discriminatory discharge claim, (a) Plaintiff
has not alleged facts plausibly suggesting that NKA (which hired him when he was 59 years old)
discharged him because of discriminatory animus newly acquired by NKA's decision-makers, (b)
isolated comments made by Wolk, "Dave," and other coworkers cannot serve as a basis to "infer
that [NKA's] legitimate termination decision was actually a pretext for discrimination," and (c)
while the comments of Plaintiff's coworkers may be relevant to establishing the existence of a
hostile work environment (a claim that Plaintiff acknowledges he has not asserted), NKA's
purported failure to address or stop such comments does not support a claim of discriminatory
discharge; (3) with regard to Plaintiff's failure-to-accommodate claims, he has not alleged facts
plausibly suggesting that he requested the company rental car as an accommodation through
proper channels within NKA and that, in response, NKA failed to engage in the interactive
process in good faith and failed to provide the accommodation; (4) indeed, it is "evident that" the
unnamed "lead CAS" to whom Plaintiff directed his request for use of the rental car (a) was "not
aware that Plaintiff's request . . . was part of an accommodation request," and (b) "would not
have been the person tasked with" addressing such a request for an accommodation; and (5) with
regard to Plaintiff's retaliation claims, his allegation that NKA intertwined its reasons for
terminating him with its investigation into his complaints constitutes merely an attempt "to
prevent his own termination by belatedly engaging in putatively protected activity after being"
warned of NKA's concerns about his conduct. (Dkt. No. 19 at 1-11 [Def.'s Reply Memo. of
GOVERNING LEGAL STANDARD
Legal Standard Governing Motions to Dismiss for Failure to State a Claim
It has long been understood that a dismissal for failure to state a claim upon which relief
can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds:
(1) a challenge to the “sufficiency of the pleading” under Fed. R. Civ. P. 8(a)(2); or (2) a
challenge to the legal cognizability of the claim. Jackson v. Onondaga Cty., 549 F. Supp. 2d
204, 211, nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de
Because such dismissals are often based on the first ground, a few words regarding that
ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a
pleading contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). In the Court’s view, this tension between
permitting a "short and plain statement" and requiring that the statement "show" an entitlement
to relief is often at the heart of misunderstandings that occur regarding the pleading standard
established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the “short and plain”
pleading standard under Fed. R. Civ. P. 8(a)(2) as "simplified" and "liberal." Jackson, 549 F.
Supp. 2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has
held that, by requiring the above-described “showing,” the pleading standard under Fed. R. Civ.
P. 8(a)(2) requires that the pleading contain a statement that "give[s] the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it rests." Jackson, 549 F. Supp. 2d at
212, n.17 (citing Supreme Court cases) (emphasis added).
The Supreme Court has explained that such fair notice has the important purpose of
"enabl[ing] the adverse party to answer and prepare for trial" and "facilitat[ing] a proper decision
on the merits" by the court. Jackson, 549 F. Supp. 2d at 212, n.18 (citing Supreme Court cases);
Rusyniak v. Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing
Second Circuit cases). For this reason, as one commentator has correctly observed, the "liberal"
notice pleading standard "has its limits." 2 Moore’s Federal Practice § 12.34[b] at 12-61 (3d
ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding
that a pleading has failed to meet the "liberal" notice pleading standard. Rusyniak, 629 F. Supp.
2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atl. Corp. v. Twombly, the Supreme Court reversed an appellate
decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1.
Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court "retire[d]" the
famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that "a complaint
should not be dismissed for failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief."
Twombly, 127 S. Ct. at 1968-69. Rather than turn on the conceivability of an actionable claim,
the Court clarified, the "fair notice" standard turns on the plausibility of an actionable claim. Id.
at 1965-74. The Court explained that, while this does not mean that a pleading need "set out in
detail the facts upon which [the claim is based]," it does mean that the pleading must contain at
least "some factual allegation[s]." Id. at 1965. More specifically, the "[f]actual allegations must
be enough to raise a right to relief above the speculative level [to a plausible level]," assuming
(of course) that all the allegations in the complaint are true. Id.
As for the nature of what is "plausible," the Supreme Court explained that "[a] claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at
1949. "[D]etermining whether a complaint states a plausible claim for relief . . . [is] a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense. . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged–but it has not show[n]–that the pleader is
entitled to relief." Id. at 1950 (internal quotation marks and citations omitted). However, while
the plausibility standard "asks for more than a sheer possibility that a defendant has acted
unlawfully," id., it "does not impose a probability requirement." Twombly, 550 U.S. at 556.
Because of this requirement of factual allegations plausibly suggesting an entitlement to
relief, "the tenet that a court must accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by merely conclusory statements, do not suffice." Iqbal, 129 S. Ct. at 1949.
Similarly, a pleading that only "tenders naked assertions devoid of further factual enhancement"
will not suffice. Id. (internal citations and alterations omitted). Rule 8 "demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (citations omitted).
Legal Standards Governing Plaintiff's Claims
Because the parties have (in their memoranda of law) demonstrated an adequate
familiarity with the legal standards governing Plaintiff’s claims, the Court will not recite in detail
those legal standards in this Decision and Order, which is intended primarily for the review of
the parties. Rather, the Court will discuss those legal standards only where necessary below, in
Part III of this Decision and Order.
Whether Plaintiff's Age Discrimination Claims Must Be Dismissed
After carefully considering the matter, the Court answers this question in the affirmative
for the reasons set forth in Defendant's memoranda of law. (Dkt. No. 14, Attach. 2, at 6-9 [Def.'s
Memo. of Law]; Dkt. No. 19 at 1-4 [Def.'s Reply Memo. of Law].) To those reasons, the Court
adds the following analysis, which is intended to supplement, and not to supplant, those reasons.
In his opposition memorandum of law, Plaintiff expressly acknowledges that the alleged
comments made by coworkers, upon which he relies to state his age discrimination claims, "were
not made by decision-makers in close proximity to [his] termination." (Dkt. No. 18 at 14 [Plf.'s
Opp'n Memo. of Law].) Despite this acknowledgment, however, Plaintiff argues that he has
alleged facts plausibly suggesting circumstances from which an inference of age discrimination
may be drawn because "Defendant's lack of action with respect to the comments by co-workers
establishes a virtual opposite to the Faragher/Ellerth defense." (Id. at 14.)
The Court finds Plaintiff's argument to be a misplaced attempt to repackage the inverse of
an employer's affirmative defense to hostile-work-environment claims into factual allegations
sufficient to state a discriminatory discharge claim. "Against employee claims of hostile work
environment and constructive discharge, the employer may have recourse to the so-called
Faragher/Ellerth affirmative defense." Ferraro v. Kellwood Co., 440 F.3d 96, 101 (2d Cir.
2006) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 807  and Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742, 765 ). "The defense comprises two elements: that (1) the
employer exercised reasonable care to prevent and correct promptly any [discriminatory]
harassing behavior, and (2) the plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to avoid harm otherwise."
Ferraro, 440 F.3d at 101 (internal quotation marks omitted); accord, e.g., Szwalla v. Time
Warner Cable LLC, No. 15-3479, 2016 WL 7018340, at *1 (2d Cir. Dec. 1, 2016).
The Faragher/Ellerth defense is typically invoked with respect to a plaintiff's hostilework-environment claim because such a claim requires not only that the harassment was
"sufficiently severe or pervasive to alter the conditions of the victim's employment and create an
abusive working environment," but also "that a specific basis exists for imputing the
objectionable conduct to the employer." Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002)
(internal quotation marks omitted); accord, Gorzynski v. JetBlue Airways Corp., 596 F.3d 93,
103 (2d Cir. 2010) ("Beyond demonstrating a hostile work environment, a plaintiff must show a
basis for imputing the objectionable conduct to the employer."); Terry v. Ashcroft, 336 F.3d 128,
148 & n.20 (2d Cir. 2003) (noting that "[t]he same standards [applicable to Title VII hostile
work environment claims also] apply to hostile work environment claims brought under the
ADEA," and holding that, "[t]o prevail on a hostile work environment claim against the INS,
Terry must also show that there is a specific basis for imputing the conduct he complains of to
INS"); Campbell v. New York City Transit Auth., 93 F. Supp. 3d 148, 164 (E.D.N.Y. 2015)
(imposing same requirements with respect to ADEA hostile-work-environment claim); Stofsky v.
Pawling Cent. Sch. Dist., 635 F. Supp. 2d 272, 295 (S.D.N.Y. 2009) (noting that "[t]he
Faragher/Ellerth defense also applies to claims of hostile work environment in violation of the
ADEA").3 In short, neither the Faragher/Ellerth defense nor its inverse is applicable to claims
based on a plaintiff's change in employment asserted directly against an employer. See, e.g.,
Finnerty v. William H. Sadlier, Inc., 176 F. App'x 158, 163 (2d Cir. 2006) (summary order)
("The Faragher/Ellerth affirmative defense is about the extent to which an employee's
misbehavior may be attributed to his or her employer under principles of vicarious liability. It
has no role in analyzing [the defendant employer's] direct liability to [plaintiff] for its own
actions with respect to the change of her employment position subsequent to her complaints of
harassment, and her alleged subsequent termination."); see generally Sarkis v. Ollie's Bargain
Outlet, 10-CV-6382, 2013 WL 1289411, at *11 n.10 (W.D.N.Y. Mar. 26, 2013) ("The
Faragher/Ellerth defense does not apply to retaliation claims brought directly against the
See also Stapp v. Curry Cty. Bd. of Comm'rs, No. 16-2067, 2016 WL 7093897, at
*4 (10th Cir. Dec. 6, 2016) (noting the "developing consensus" that the Ellerth/Faragher defense
applies not only to sexual harassment claims, but to a "full range" of harassment and hostile
work environment claims, and collecting cases) (internal quotation marks omitted).
In sum, because the Faragher/Ellerth affirmative defense concerns hostile-workenvironment and harassment claims for which an employer may be vicariously liable (claims
that, again, Plaintiff expressly acknowledges that he does not assert), it provides little guidance
with respect to whether Plaintiff has, in the first instance, properly pleaded a discrimination
claim based on his suspension and/or termination. Rather, the appropriate rubric by which to
analyze the sufficiency Plaintiff's age discrimination claim is to examine the alleged remarks
upon which this claim is largely predicated.
"Remarks may raise an inference of discrimination if there is a nexus between the
remarks and an adverse employment decision." Mesias v. Cravath, Swaine & Moore LLP, 106
To the extent that Plaintiff may be understood to rely upon a "cat's paw" theory to
state his discrimination claims, or, for that matter, any of his other claims (an argument not
expressly asserted anywhere in his opposition memorandum of law), the Court finds that
Plaintiff has failed to properly plead his claims pursuant to such a theory. The cat's paw theory
"refers to a situation in which an employee is fired or subjected to some other adverse
employment action by a supervisor who himself has no discriminatory motive, but who has been
manipulated by a subordinate who does have such a motive and intended to bring about the
adverse employment action[.]" Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d 267, 272
(2d Cir. 2016) (quoting Cook v. IPC Intern. Corp., 673 F.3d 625, 628 [7th Cir. 2012]). In
Vasquez, the Second Circuit held for the first time, in a Title VII retaliation case, that "an
employer may be held liable for an employee's animus . . . regardless of the employee's role
within the organization, if the employer's own negligence gives effect to the employee's animus
and causes the victim to suffer an adverse employment action." Vasquez, 835 F.3d at 276. Here,
even assuming that the Second Circuit's holding applies to ADA, ADEA, and/or NYSHRL
discrimination claims, Plaintiff has not alleged facts plausibly suggesting that any NKA
decision-maker was "manipulated" into taking an adverse employment action against him, or that
a non-decision-maker with an "impermissible bias played a meaningful role in the
[decisionmaking] process" so as to induce the adverse employment actions. Id. at 272 (quoting
Holcomb v. Iona Coll., 521 F.3d 130, 143 [2d Cir. 2008]); see also Boston v. Taconic
Eastchester Mgmt. LLC, 12-CV-4077, 2016 WL 5719751, at *8 (S.D.N.Y. Sept. 30, 2016)
(granting in defendant's motion for summary judgment because, inter alia, the record did not
support the proposition that plaintiff's supervisor harbored discriminatory animus or that the
employer "negligently relied on" the supervisor's statements in terminating plaintiff).
F. Supp. 3d 431, 438 (S.D.N.Y. 2015). "In determining whether a remark is probative" of
discriminatory animus, courts in the Second Circuit consider (1) "who made the remark (i.e., a
decision-maker, a supervisor, or a low-level co-worker)," (2) "when the remark was made in
relation to the employment decision at issue," (3) "the content of the remark (i.e., whether a
reasonable juror could view the remark as discriminatory)," and (4) "the context in which the
remark was made (i.e., whether it was related to the decision-making process)." Henry v. Wyeth
Pharmaceuticals, Inc., 616 F.3d 134, 149 (2d Cir. 2010); accord, Martinez v. New York City
Transit Auth., No. 15-3159, 2016 WL 7036823, at *3 (2d Cir. Dec. 2, 2016) (summary order);
accord, Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 115 (2d Cir. 2007) (observing that
"remarks made by someone other than the person who made the decision adversely affecting the
plaintiff may have little tendency to show that the decision-maker was motivated by the
discriminatory sentiment expressed in the remark"), abrogated on other grounds by Gross v.
FBL Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009).
For the reasons set forth in Defendant's memoranda of law, the Court concludes that,
even accepting Plaintiff's allegations as true, the remarks that he complains of do not give rise to
a reasonable inference that NKA subjected him to age discrimination in relation to his
suspension or termination. (Dkt. No. 14, Attach. 2, at 7-9 [Def.'s Memo. of Law]; Dkt. No. 19 at
2-4 [Def.'s Reply Memo. of Law].) As Plaintiff acknowledges, the alleged comments were not
made by decision-makers and were not made "in close proximity to" his termination. (Dkt. No.
18 at 14 [Plf.'s Opp'n Memo. of Law].) For example, Wolk (Plaintiff's coworker) allegedly
stated that Plaintiff's "age and disability made him unable to perform his job" in October 2013,
approximately 16 months before Plaintiff was suspended in March 2015. (Dkt. No. 13 at ¶ 18.)
Moreover, Plaintiff's Amended Complaint does not reasonably support the inference that Wolk's
comments were in any way related to Plaintiff's much-later suspension and/or termination.
Similarly, other employees made "comments and/or jokes" that Plaintiff was "old" in 2014; but
Plaintiff does not allege that these remote comments or jokes were made by supervisors or
decision-makers. (Id. at ¶ 21.) Moreover, Plaintiff's allegation that unnamed "fellow
employee[s]" at a meeting in October 2014 "verbally indicated displeasure" regarding the age of
another employee does not plausibly suggest that Plaintiff was–months later–suspended and
terminated due to his age. (Id. at ¶ 25.) See also Sicular v. N.Y.C. Dep't of Homeless Servs.,
2010 WL 423013, at *20 n.28 (S.D.N.Y. Feb. 4, 2010), adopted, 2010 WL 2179962, at *1
(S.D.N.Y. May 28, 2010) (explaining that "stray comments are not evidence of discrimination if
they are not temporally linked to an adverse employment action or if they are made by
individuals without decision-making authority"), aff'd, 455 F. App'x 129 (2d Cir. 2012)
(summary order); Belardo v. Con-Way Transp. Servs., Inc., 02-CV-5406, 2005 WL 885016, at
*4 (E.D.N.Y. Mar. 28, 2005) (concluding, on summary judgment, that certain comments directed
at plaintiff, including that coworkers "sometimes referred to him as 'old man,'" were not facially
discriminatory, "were made by individuals who had no involvement in [p]laintiff's termination,"
and were therefore insufficient to raise an inference of discrimination).
For these reasons, as well as those set forth in Defendant's memoranda of law, the Court
concludes that Plaintiff has not alleged facts plausibly suggesting that his age was the but-for
cause of his suspension or termination. Accordingly, Plaintiff's age discrimination claims are
Whether Plaintiff's Disability Discrimination Claims Must Be Dismissed
After carefully considering this matter, the Court answers this question in the affirmative
with respect to Plaintiff's failure-to-accommodate claim predicated upon his request to remain
seated while lecturing for the reasons set forth in Defendant's memoranda of law. (Dkt. No. 14,
Attach. 2, at 15-16 [Def.'s Memo. of Law]; Dkt. No. 19 at 6 [Def.'s Reply Memo. of Law].)
However, the Court answers this question in the negative with respect to Plaintiff's failure-toaccommodate claims predicated upon his requests for use of the company rental car and skycap
services to assist in transporting his luggage while traveling on work assignments for the reasons
set forth in Plaintiff's opposition memorandum of law. (Dkt. No. 18 at 15-16 [Plf.'s Opp'n
Memo. of Law].) To those reasons, the Court adds three points, which are intended to
supplement, and not to supplant, the aforementioned reasons.
First, as discussed above, Plaintiff expressly states in his opposition memorandum of law
that no claims for hostile work environment "ha[ve] been asserted in [his] Amended Complaint."
(Dkt. No. 18 at 10 n.4.) In light of this explicit acknowledgment (and the lack of the words
"hostile work environment" in the Amended Complaint), the Court need not consider whether
Plaintiff's counseled Amended Complaint plausibly alleges a hostile-work-environment claim.
Second, to the extent that Plaintiff's counseled Amended Complaint may be liberally
construed as asserting a disability discrimination claim based on an adverse employment action
(e.g., his suspension and/or termination), he has failed to oppose Defendant's facially meritorious
arguments challenging the pleading sufficiency of this claim. Indeed, Plaintiff's only argument
in support of this claim is that, as part of a performance evaluation approximately five months
before Plaintiff's suspension, Thompson demonstrated a discriminatory animus by "criticizing
Plaintiff for working 'in the corner sitting in a chair'" pursuant to his granted accommodation to
sit while lecturing. (Dkt. No. 18 at 15 [Plf.'s Opp'n Memo. of Law] [quoting Dkt. No. 13 at ¶ 27
(Plf.'s Am. Compl.)].) For the reasons set forth in Defendant's memorandum of law, the Court
concludes that Plaintiff has failed to allege facts plausibly suggesting that he was subjected to an
adverse employment action due to his disability. (Dkt. No. 14, Attach. 2, at 11-14 [Def.'s Memo.
Third, Plaintiff's arguments in opposition to Defendant's motion to dismiss his disabilityrelated claims primarily concern Defendant's alleged denial of Plaintiff's request for use of "the
company rental car during the Minnesota trip as a reasonable accommodation[.]" (Dkt. No. 18 at
"A plaintiff states a prima facie failure to accommodate claim by demonstrating that (1)
plaintiff is a person with a disability under the meaning of the ADA; (2) an employer covered by
the statute had notice of his [or her] disability; (3) with reasonable accommodation, plaintiff
could perform the essential functions of the job at issue; and (4) the employer has refused to
make such accommodations." McMillan v. City of New York, 711 F.3d 120, 125-26 (2d Cir.
2013); accord, Dooley v. JetBlue Airways Corp., 636 F. App'x 16, 18 (2d Cir. 2015) (summary
order). "[G]enerally, it is the responsibility of the individual with a disability to inform the
employer that an accommodation is needed." Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181,
184 (2d Cir. 2006) (internal quotation marks omitted). However, this general rule does not apply
where "the disability is obvious" such that "the employer knew or reasonably should have known
that the employee was disabled." Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 135 (2d Cir.
2008); accord, e.g., Manns v. United Airlines, 13-CV-3668, 2016 WL 6826761, at *8 (E.D.N.Y.
Nov. 17, 2016).
In this case, Plaintiff alleges that, at the outset of his employment, he voluntarily
disclosed to Thompson (a manager) and Kim (a member of human resources) that he had "nerve
damage caused by severe fractures," and requested from Thompson and Kim "reasonable
accommodations in the form of sitting while teaching classes." (Dkt. No. 13 at ¶¶ 16-17 [Plf.'s
Am. Compl.].) Plaintiff further alleges that, during a trip to Minnesota in December 2013,
Plaintiff requested that the lead CAS on the assignment provide use of the company's rental car,
and the lead CAS denied his request, despite the fact that Plaintiff "had informed NKA that he
needed the car as a reasonable accommodation." (Id. at ¶ 20.) With respect to skycap services,
Plaintiff alleges that, in August 2014, NKA began denying his requests for reimbursement for
skycap services that he used while traveling for work, despite NKA's knowledge of his disability
and the fact that Plaintiff had previously requested (and apparently received reimbursement for)
skycap services as an accommodation. (Id. at ¶ 24.)
Plaintiff's allegations with respect to the time and manner of his requests for an
accommodation in the form of the company rental car and the use of skycap services to assist
with transporting his bags while traveling on business are somewhat nonspecific. However, the
Court is mindful that, even if they are not drafted by pro se plaintiffs, complaints must be
liberally construed. See Fed. R. Civ. P. 8(e) ("Pleadings must be construed so as to do justice.").
Liberally construing the Amended Complaint's allegations as a whole, the Court concludes that
Plaintiff has, albeit barely, alleged facts plausibly suggesting that he requested that NKA provide
use of the company's rental car and skycap services as accommodations while traveling on a
work assignment and that, despite these earlier requests and NKA's knowledge of his disability,
his requests were denied. The Court notes that Defendant does not argue that Plaintiff has not
alleged facts plausibly suggesting the first, second, and third elements of his failure-toaccommodate claim, or that use of Defendant's company rental car or skycap services would not
constitute reasonable accommodations. Moreover, the Court offers no opinion as to whether
Plaintiff's failure-to-accommodate claims would survive a motion for summary judgment.
Accordingly, for the reasons set forth above, as well as those in Plaintiff's opposition
memorandum of law, Plaintiff's failure-to-accommodate claims related to the company rental car
and skycap services pursuant to the ADA and NYSHRL survive Defendant's motion to dismiss.5
Whether Plaintiff's Retaliation Claims Must Be Dismissed
After carefully considering the matter, the Court answers this question in the negative for
substantially the reasons set forth in Plaintiff's opposition memorandum of law. (Dkt. No. 18 at
17-20 [Plf.'s Opp'n Memo. of Law].) To those reasons, the Court adds the following analysis.
To state a claim for retaliation under the ADA, a plaintiff must allege facts plausibly
suggesting that (1) "[he or s]he engaged in an activity protected by the ADA; (2) the employer
was aware of this activity; (3) the employer took an adverse employment action against [him or
her]; and (4) a causal connection exists between the alleged adverse action and the protected
activity." Caskey v. Cty. of Ontario, 560 F. App'x 57, 58 (2d Cir. 2014) (summary order)
(quoting Treglia v. Town of Manlius, 313 F.3d 713, 719 [2d Cir. 2002]). The same standard
Disability discrimination claims under the NYSHRL and ADA are governed by
the same standards. See Noll v. Int'l Bus. Mach. Corp., 787 F.3d 89, 94 (2d Cir. 2015)
(explaining that the same standard applies to failure-to-accommodate claims brought under both
the ADA and NYSHRL); Morse v. JetBlue Airways Corp., 941 F. Supp. 2d 274, 292 (E.D.N.Y.
2013) ("A claim of disability discrimination under the NYSHRL is governed by the same legal
standards as govern federal ADA claims. 'Thus, to the extent that [a plaintiff] brings a state-law
disability-discrimination claim, it survives or fails on the same basis as [plaintiff's] ADA
claim.'") (citation omitted) (quoting Graves, 457 F.3d at 184 n.3).
applies to retaliation claims asserted pursuant to the ADEA and NYSHRL. See Kessler v.
Westchester Cty. Dep't of Soc. Servs., 461 F.3d 199, 205-06 (2d Cir. 2006) (applying same
standard set forth above to retaliation claims pursuant to the ADEA and Title VII); Treglia, 313
F.3d at 719 (applying same standard set forth above to NYSHRL retaliation claim). At the
motion-to-dismiss stage, "the allegations in the complaint need only give plausible support to the
reduced prima facie requirements that arise . . . in the initial phase of [employment
discrimination] litigation." Moore v. Verizon, 13-CV-6467, 2016 WL 825001, at *14 (S.D.N.Y.
Feb. 5, 2016) (quoting Littlejohn v. City of New York, 795 F.3d 297, 316 [2d Cir. 2015]).
With respect to engaging in a protected activity, Plaintiff has alleged facts plausibly
suggesting that he informally complained about the comments identified in his Amended
Complaint, made by his coworkers about his age and/or disability. More particularly, Plaintiff's
Amended Complaint alleges that he complained about Wolk's October 2013 comments (although
it is unclear when he did so), as well as comments made by coworkers referring to him as "old,"
"gimp," and/or "gimpy," including one such comment made by "David" in June 2014. (Dkt. No.
13 at ¶¶ 18, 21-22.) Plaintiff alleges that he complained about "these age- and disability-based
comments" "[t]hroughout the course of his employment[.]" (Id. at ¶ 22.) "Informal complaints
may constitute protected activity," so long as the complaints reasonably inform the employer that
the plaintiff was complaining of prohibited conduct. Chukwueze v. NYCERS, 643 F. App'x 64,
65 (2d Cir. 2016) (summary order) (citing Treglia, 313 F.3d at 720 n.5). The Court concludes
that, to the extent that Plaintiff has approximated when and how he made informal complaints,
he has alleged facts plausibly suggesting that he engaged in a protected activity of which
Defendant was aware for purposes of his retaliation claims.
With respect to experiencing adverse employment action, Plaintiff appears to argue that
his suspension and termination constituted such actions, and Defendant does not argue to the
contrary. (Dkt. No. 14, Attach. 2, at 19-22 [Def.'s Memo. of Law, advancing arguments with
respect to the elapsed time between Plaintiff's protected activities and his suspension and
termination].) Plaintiff also argues that he suffered adverse employment action for purposes of
his retaliation claims when Defendant (1) "remov[ed] reimbursement for [his] skycap services"
in August 2014, (2) "attempt[ed] to discourage [him] from sitting while lecturing" in October
2014, and (3) "den[ied] [him the] use of the company rental car in Minnesota in December
2013," shortly after his complaints about Wolk's comments in October 2013. (Dkt. No. 18 at 1920 [Plf.'s Opp'n Memo. of Law].) To satisfy this element of adverse employment action, a
"plaintiff must show that a reasonable employee would have found the challenged action
materially adverse, which in this context means it well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe
Railway Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks omitted); accord, Hicks
v. Baines, 593 F.3d 159, 165 (2d Cir. 2010); Platt v. Inc. Vill. of Southampton, 391 F. App'x 62,
64 (2d Cir. 2010) (summary order).
The lack of clarity in some of the allegations contained in Plaintiff's Amended Complaint
renders analysis of his claims somewhat difficult. However, drawing all reasonable inferences in
Plaintiff's favor, Plaintiff has alleged facts plausibly suggesting that, in August 2014, Defendant
withdrew a disability-related accommodation that it had previously provided (i.e, companyfunded skycap services to assist Plaintiff with luggage while traveling). (Dkt. No. 13 at ¶ 24 ["In
August 2014, NKA began to deny Blundell the reimbursement for skycap services . . . ."]
[emphasis added].) The withdrawal of a disability-related accommodation previously provided
by the employer may constitute an adverse employment action. See generally Welch v. United
Parcel Servs., Inc., 871 F. Supp. 2d 164, 183 (E.D.N.Y. 2012) ("The fact that Welch had been
previously accommodated by being transferred out of the Nassau preload in 2006 lends credence
to the notion that being transferred back to the Nassau preload was retaliatory."); Vinson v. New
York City Dep't of Corr., 01-CV-6900, 2006 WL 140553, at *7 (E.D.N.Y. Jan. 17, 2006)
("[P]laintiff is correct that a transfer resulting in a denial or withdrawal of a reasonable
accommodation can be considered an adverse employment action."); Honey v. Cty. of Rockland,
200 F. Supp. 2d 311, 320 (S.D.N.Y. 2002) ("[If] Chief Britney did refuse to accommodate
plaintiff's disability as he had for the past four months [because plaintiff filed an EEOC
complaint], such a refusal does constitute an adverse employment action."); Adams v. New York
State Thruway Auth., 97-CV-1909, 2001 WL 874785, at *15 n.11 (N.D.N.Y. Mar. 22, 2001)
(Mordue, J.) (noting that a "denial of a request for a reasonable accommodation can be an
adverse employment action").6
Some courts have concluded that an alleged failure to accommodate a disability
under the ADA or NYSHRL "subsequent to an ADA [or] NY[S]HRL . . . protected request
cannot be bootstrapped into a viable disability retaliation claim." Missick v. City of New York,
707 F. Supp. 2d 336, 356 (E.D.N.Y. 2010) (citing Gomez v. Laidlaw Transit, Inc., 455 F. Supp.
2d 81, 90 [D. Conn. 2006] ["To the extent plaintiff claims that defendant's ongoing failure to
accommodate her after May 16, 2003 constituted retaliation, this claim is also insufficient as a
matter of law. Requesting accommodation inevitably carries the possibility that the employer
will not honor the request. If the prospect that an employer might not honor the request would
deter a reasonable employee from even making the request, reasonable employees would not
request accommodation. For this reason, a failure to accommodate cannot constitute retaliation
for an employee's request for accommodation."]); accord, Daley v. Cablevision Sys. Corp., 12CV-6316, 2016 WL 880203, at *7 (S.D.N.Y. Mar. 7, 2016) (concluding that plaintiff's retaliation
claim "cannot be premised upon his request for an accommodation . . ."); Morris v. Town of
Islip, 12-CV-2984, 2014 WL 4700227, at *18 (E.D.N.Y. Sept. 22, 2014) ("[T]here is no
evidence that defendant actually took negative employment actions against plaintiff, or that there
The circumstances surrounding Plaintiff's requests for use of the company rental car as an
accommodation, and the temporal proximity of those requests to the other incidents alleged in
the Amended Complaint, are even murkier. Plaintiff alleges that he "had informed NKA" that he
needed use of the rental car as an accommodation but that, despite his request, he was "twice
denied" use of the car. (Dkt. No. 13 at ¶ 20.) Plaintiff further alleges that he "asked the lead
CAS" on an assignment in Minnesota in December 2013 "for use of the car, but she refused to
allow him to use it[.]" (Id.) The Court is unable to discern whether Plaintiff intends to allege
that he was denied use of the rental car as an accommodation by NKA during the interactive
process, or that his request was actually granted at that time, but that the "lead CAS" on the
Minnesota assignment improperly denied him use of the company car, or some other
permutation of the alleged sequence of events. If Plaintiff intends to allege that NKA denied a
request for use of the company car at the outset of his employment (i.e., when Plaintiff also
allegedly requested, and was granted, the accommodation of sitting while lecturing), then it
appears that NKA would have denied his request to use the company car before he engaged in
any other protected activity, such as complaining about discriminatory treatment.
was any change in his working conditions, when he did not have a helper. Moreover,
defendant's alleged failure to accommodate [plaintiff's] disability subsequent to an ADA . . .
protected request cannot be bootstrapped into a viable disability retaliation claim.") (internal
quotation marks omitted). These cases suggest that this principle is generally invoked where a
plaintiff asserts a retaliation claim based solely on a request for an accommodation (a protected
activity) and the denial of such a request (which may constitute an adverse employment action).
In this case, however, Plaintiff has alleged facts plausibly suggesting that he engaged in
protected activity other than his requests for accommodations (i.e., his informal complaints about
perceived discriminatory behavior), and that NKA took materially adverse employment actions
against him. Accordingly, the Court does not find Plaintiff to be attempting to "bootstrap" his
retaliation claims into his failure-to-accommodate claims.
Additionally, the Court is skeptical that Thompson's single alleged "attempt to
discourage [Plaintiff] from sitting while lecturing" in October 2014, standing alone, constitutes
an adverse employment action because Plaintiff does not allege facts plausibly suggesting that
this attempt would have dissuaded a reasonable worker from making or supporting a charge of
discrimination. Although "[c]ontext matters," Hicks, 593 F.3d at 165, even "[t]hreats of
retaliation standing alone do not generally constitute adverse employment actions." Rivers v.
New York City Housing Auth., 11-CV-5065, 2016 WL 1305161, at *16 (E.D.N.Y. Mar. 31,
2016) (citing Murray v. Town of N. Hempstead, 853 F. Supp. 2d 247, 269 [E.D.N.Y. 2012]);
accord, Gross v. Home Depot U.S.A., Inc., 386 F. Supp. 2d 296, 298 n.2 (S.D.N.Y. 2005).
Plaintiff also has not alleged facts plausibly suggesting that the accommodation permitting him
to sit while lecturing was ever withdrawn or that he suffered any other adverse employment
action in connection with this accommodation.
However, under the circumstances, the Court concludes that, taken together, Plaintiff's
factual allegations plausibly suggest that he was subjected to materially adverse employment
action, and the Court therefore need not parse each individual allegation. See Hicks, 593 F.3d at
165 (observing that, "in determining whether conduct amounts to an adverse employment action,
the alleged acts of retaliation need to be considered both separately and in the aggregate, as even
minor acts of retaliation can be sufficiently 'substantial in gross' as to be actionable") (quoting
Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 227 [2d Cir. 2006]).
With respect to causation, for the reasons set forth in Plaintiff's opposition memorandum
of law, the Court concludes that, despite his somewhat inartful pleading, Plaintiff has alleged
facts plausibly suggesting a causal connection between his protected activities and the adverse
employment actions to which he was subjected. (Dkt. No. 18 at 18-20 [Plf.'s Opp'n Memo. of
Law].) Plaintiff alleges that he was subjected to discriminatory comments from "many"
coworkers based on his age and disability, including in June 2014, that he complained about
those comments, and that, in August 2014, he was advised that he would no longer receive
reimbursement for skycap services (an accommodation that he had previously requested and was
granted). Accepting Plaintiff's factual allegations as true and drawing all inferences in his favor,
the relatively close temporal proximity of these events is "sufficient to plausibly support an
indirect inference of causation." Littlejohn, 795 F.3d at 320.7
Finally, although it is possible that Defendant had legitimate, nonretaliatory explanations
for its actions, Plaintiff's Amended Complaint alleges facts plausibly suggesting that the
proffered reasons for his suspension and termination were false. (Dkt. No. 13 at ¶¶ 29, 35 [Plf.'s
Am. Compl.].) As a result, this issue is more appropriately resolved with the benefit of an
evidentiary record on a motion for summary judgment. See, e.g., Brown v. Daikin Am. Inc., 756
F.3d 219, 230-31 (2d Cir. 2014) ("Whether there existed non-pretextual, non-discriminatory
explanations for the defendants' employment decisions–a question as to which the defendants
bear the burden of production–is not properly decided on a motion to dismiss for failure to state
a claim.") (citation omitted); Amador v. All Foods, Inc., 12-CV-1715, 2013 WL 1306305, at *14
Defendant argues that Plaintiff has not alleged facts plausibly suggesting a causal
connection between his informal complaints and his suspension because Plaintiff "raised his
putative complaints" of discrimination "upon being told he was suspended," and Defendant
suspended Plaintiff "before he brought his discrimination claims to Estrada for the first time."
(Dkt. No. 14, Attach. 2, at 22 [Def.'s Memo. of Law].) Although Defendant is correct that
Plaintiff's suspension and termination were more temporally removed from his informal
complaints than the other events alleged in support of his retaliation claims, Defendant's reading
of Plaintiff's Amended Complaint disregards his express allegations that he complained to
Thompson about discriminatory behavior well before he was suspended.
(E.D.N.Y. Feb. 20, 2013), adopted, 2013 WL 1282353, at *1 (E.D.N.Y. Mar. 27, 2013) (denying
defendant's motion to dismiss plaintiff's retaliation claim based on purported legitimate
explanations because, inter alia, plaintiff alleged that he was reprimanded for complaining about
Accordingly, Defendant's motion to dismiss Plaintiff's retaliation claims is denied.
ACCORDINGLY, it is
ORDERED that Defendant's motion to dismiss Plaintiff's Amended Complaint for
failure to state a claim upon which relief can be granted (Dkt. No. 14) is GRANTED in part
and DENIED in part; and it is further
ORDERED that the following claims are DISMISSED from Plaintiff's Amended
Complaint (Dkt. No. 13):
(1) Plaintiff's age discrimination claims pursuant to the ADEA and NYSHRL;
(2) Plaintiff's disability discrimination claims pursuant to the ADA and NYSHRL; and
(3) Plaintiff's failure-to-accommodate claims pursuant to the ADA and NYSHRL, to the
extent that they are predicated upon his request for an accommodation to remain seated while
teaching; and it is further
ORDERED that the following claims SURVIVE Defendant's motion:
(1) Plaintiff's failure-to-accommodate claims pursuant to the ADA and NYSHRL, to the
extent that they are predicated upon his requests for use of the company rental car and skycap
services to assist in transporting his luggage while traveling on work assignments; and
(2) Plaintiff's retaliation claims pursuant to the ADEA, ADA, and NYSHRL; and it is
ORDERED that Defendant file an answer to Plaintiff's Amended Complaint within
FOURTEEN (14) DAYS of the date of this Decision and Order pursuant to Fed. R. Civ. P.
12(a)(4)(A). This case is referred back to Magistrate Judge Peebles for a Rule 16 conference and
the scheduling of pretrial deadlines.
Dated: January 23, 2017
Syracuse, New York
Hon. Glenn T. Suddaby
Chief U.S. District Judge
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