HAYES v. G&E REAL ESTATE MANAGEMENT SERVICES

Filing 39

OPINION & ORDER re: 34 MOTION to Dismiss Plaintiff's Amended Complaint filed by G&E REAL ESTATE MANAGEMENT SERVICES. For the foregoing reasons, Newmark's motion is DENIED. The parties are directed to appear for a con ference on April 8, 2025 at 11:30 a.m. in Courtroom 619 of the Thurgood Marshall United States Courthouse, 40 Foley Square, New York, NY 10007. The Clerk of the Court is respectfully directed to terminate the motion, Doc 34. It is SO ORDERED. (Case Management Conference set for 4/8/2025 at 11:30 AM in Courtroom 619, 40 Centre Street, New York, NY 10007 before Judge Edgardo Ramos.) (Signed by Judge Edgardo Ramos on 3/10/2025) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SHANNON HAYES,
Plainti?,
OPINION & ORDER

– against –
G&E REAL ESTATE MANAGEMENT
SERVICES D/B/A NEWMARK,

24-cv-01459 (ER)

Defendant.
RAMOS, D.J.:
Shannon Hayes brings suit against G&E Real Estate Management Services d/b/a
Newmark (“Newmark”), alleging employment discrimination and retaliation in violation
of 42 U.S.C. § 1981. Before the Court is Newmark’s motion to dismiss for failure to
state a claim upon which relief can be granted. Doc. 34. For the reasons discussed
below, the motion is DENIED.
I.

BACKGROUND
A. Factual Background
?e following facts are taken from Hayes’ First Amended Complaint, Doc. 13,

which the Court accepts as true for the purpose of Newmark’s Rule 12(b)(6) motion. See
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56 (2007).
Hayes identi?es as an African American woman and Maryland resident. Doc.
13 ¶¶ 1, 6. On October 21, 2019, Hayes began working as an Assistant Facilities
Manager for Newmark. Id. ¶ 7. As an Assistant Facilities Manager, Hayes “managed
[Newmark’s] o?ces, including two in Washington D.C.” and earned an annual salary of
$58,000. Id. ¶¶ 8, 9. According to Hayes, her duties included working with vendors,
preparing budget and variance reports, and writing certi?cates of insurance, monthly
operating reports, contracts with vendors, and weekly brie?ngs. Id. ¶ 9. Hayes also
conducted building inspections and inventory inspections. Id.

Hayes alleges that she was an excellent employee at all times and that from 2019
to 2020 she received “overwhelmingly positive” performance reviews. Id. ¶¶ 10, 11. As
a result of a positive performance review in 2020, she received a $3,000 raise. Id. ¶ 11.
Until March 2020, Hayes reported to Jason Hughes. Id. ¶ 12.
In May 2020, Newmark hired Cheryl Winkelmann, a white woman. Id. ¶ 13. At
that time, Hayes began reporting to Winkelmann as her primary supervisor. Id.
Between May and July 2020, Hayes made multiple requests for paid time o?
(“PTO”), which were all denied by Winkelmann. Id. ¶¶ 13, 14. Hayes alleges that
requests for PTO by non-African American employees were being granted during the
same time period that her requests were denied. Id. ¶ 14.
In July 2020, in response to the denials of her PTO requests, Hayes made a
complaint of racial discrimination to Tara Molnar, a Vice President of Newmark. Id.
Hayes believed that Winkelmann was denying her PTO requests because of her race
because non-African American employees were granted their PTO requests. Id.
In September 2020, Hayes requested PTO to attend a “Black Lives Matter” rally
in Washington D.C. Id. ¶ 15. In response to her request, Winkelmann approached Hayes
and told her that “Black lives don’t matter.” Id. ¶ 16. Hayes informed Winkelmann that
her comment was inappropriate for the workplace, and Winkelmann responded by saying
“this conversation is appropriate because Black lives do not matter.” Id. ¶¶ 16–18.
In October 2020, during an individual meeting with Hayes, Winkelmann informed
her of the enrollment period for employer provided health insurance, and told Hayes that
she “better enroll in the company insurance because it is better than Obamacare.”
Id. ¶ 20. Hayes alleges that Winkelmann also told her that she “better get it together or
[she] will be looking for another job.” Id. ¶ 22.
Later that month, Hayes made a complaint against Winkelmann with Glenn
Flavinn, Senior Facilities Manager. Id. ¶ 24. During a meeting with Flavinn, Hayes
alleges that she attempted to explain her concerns with Winkelmann’s allegedly
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discriminatory behavior, but Flavinn stopped her midsentence and told her that “Cheryl
[Winkelmann] does not have a negative bone in her body. I am not having this
conversation, this is the end of it.” Id. Hayes alleges that Flavinn and Winkelmann are
also close personal friends. Id. ¶ 25.
In November 2020, Hayes attempted to speak with Flavinn again about
Winkelmann’s conduct. Id. ¶ 26. Flavinn subsequently informed Winkelmann about
Hayes’ attempted contact with him. Id. Winkelmann then told Hayes that if she wished
to speak with Flavinn, she would need to go through Winkelmann ?rst. Id. Hayes
alleges that this command was against Newmark’s internal anti-discrimination policies.
Id. ¶ 27.
In December 2020, during a performance review with both Flavinn and
Winkelmann, Hayes attempted to raise the discrimination complaint again, but was
prevented from doing so. Id. ¶ 28. Hayes does not allege that this performance review
was negative, and it is unclear whether this was one of the positive performance reviews
that led to her raise. Id. ¶¶ 11, 28.
In February 2021, Flavinn left Newmark, leaving the Senior Facilities Manager
position vacant until May 2021. Id. ¶ 29.
In May 2021, Hayes contacted Molnar to complain again that Winkelmann was
denying her PTO requests. Id. ¶ 30. Molnar referred the matter to Pete Crumback,
Facilities Director. Id. In conversations with Crumback, Winkelmann allegedly told him
that she was unable to approve the requests because of software issues. Id. Hayes alleges
that Crumback contacted IT who looked into the issue and informed Molnar that there
was nothing wrong with the software that was preventing Winkelmann from approving
the PTO requests. Id.
Molnar allegedly instructed Winkelmann to approve Hayes’ requests for PTO;
however, Winkelmann continued to deny all of Hayes’ requests. Id. ¶¶ 30, 31.

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In July 2021, Hayes met with Molnar again to complain about discrimination and
the continued denial of PTO requests by Winkelmann. Id. ¶ 32. Molnar informed Hayes
that she would refer the matter to Human Resources (“HR”), but Hayes alleges that HR
never contacted her. Id. Molnar later reached out to Hayes and informed her that she had
spoken with Winkelmann who denied making the “Black lives don’t matter” comment or
any other comments concerning race. Id.
Although the complaint does not make clear when, Hayes subsequently informed
Molnar that because the Senior Facilities Manager vacated by Flavinn remained open,
she would like to apply for the position in Washington D.C. Id. ¶ 33. Hayes also said
that she would accept the position at the same pay rate as her current position as Assistant
Facilities Manager. Id.
Molnar informed Hayes that the Washington D.C. o?ce, and the East Region did
not need a Facilities Manager. 1 Id. ¶ 34. Lisa Moore, a white woman, was “soon after”
promoted from Assistant Facilities Manager to Facilities Manager for the East Region.
Id. Hayes alleges that upon receiving the promotion, Moore called Hayes to inform her
of the promotion and said “I don’t know shit, but they promoted me.” Id. Moore
received a pay raise as part of the promotion. Id. ¶ 35.
In September 2021, Hayes submitted an expense report for the period of May
through July 2021. Id. ¶ 36. Winkelmann refused to approve Hayes’ expense report, and
instead accused Hayes of ?ling a fraudulent report and reported her to HR. Id. However,
following an investigation, HR concluded that Hayes’ expense report was not fraudulent.
Id. ¶¶ 36, 37. Hayes alleges that Winkelmann did not make any similar allegations
against white employees under her supervision. Id. ¶ 38.
Also in September 2021, Ben Leake was hired as Senior Facilities Manager for
the East Region. Id. ¶ 39. Hayes alleges that Winkelmann isolated her from Leake and

1

?e Washington D.C. o?ce is a part of the East Region. Id. n. 4.

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did not inform her of meetings with Leake concerning important matters related to her
job duties. Id. ¶ 40.
On December 7, 2021, Hayes met with Leake and Winkelmann for a performance
review. Id. ¶ 42. Hayes alleges that they gave her a negative performance review and
that this cost her the opportunity to earn a bonus and potential raise. Id. Hayes
“suspects” that this negative performance review cost her between $4,000 and $5,000.
Id. Hayes also alleges that the negative performance review was a result of her prior
complaints of discrimination and her December 30, 2021 ?ling with the U.S. Equal
Employment Opportunity Commission (“EEOC”). Id.; Doc. 36-2.
Although Hayes alleges that she ?led the complaint with the EEOC in September
2021, Doc. 13 ¶ 41, the complaint, which is before the Court, re?ects that it was not ?led
until December 30, 2021. Doc. 36-2. 2 ?erefore, the allegation that Newmark received
notice of her complaint at some point between September 2021 and December 2021 prior
to her negative performance review is not possible. Doc. 13 ¶ 41; Doc. 36-2. ?is Court
has held that the truth of factual allegations that are contradicted by properly considered
documents need not be accepted on a motion to dismiss. See, e.g., In re Van der Moolen
Holding N.V. Securities Litigation, 405 F. Supp. 2d 388, 396 (S.D.N.Y. 2005) (citing
Rapoport v. Asia Electronics Holding Co., Inc., 88 F. Supp. 2d 179, 184 (S.D.N.Y.
2000)); BYD Company Ltd., v. VICE Media LLC, 531 F. Supp. 3d 810, 825 (S.D.N.Y.
2021).

?e Court may consider Hayes’ EEOC Charge of Discrimination without converting the motion to one for
summary judgement because it is “a public document ?led in an administrative proceeding, and is integral
to plainti?’s [discrimination] claims … .” Percy v. New York (Hudson Valley DDSO), 264 F. Supp. 3d 574,
586 n. 8 (S.D.N.Y. 2017) (internal quotation marks omitted) (quoting Jordan v. Forfeiture Support
Associates, 928 F. Supp. 2d 588, 591 n. 1 (E.D.N.Y. 2013) (“Although plainti?’s EEOC Charge was
submitted by defendant, the [c]ourt takes judicial notice of [p]lainti?’s EEOC charge on a motion to
dismiss.” (citation and internal quotation marks omitted))); see also Morris v. Broadridge Financial
Services, Inc., No. 10-cv-1707 (JS) (AKT), 2010 WL 5187669, at *3 n. 2 (E.D.N.Y. Dec. 14, 2010) (“?e
Court takes judicial notice of Plainti?’s EEOC charge on a motion to dismiss.”).
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In February 2022, Hayes and Newmark attended a mediation before the EEOC
concerning her allegations of discrimination, harassment, and retaliation. Id. ¶ 43. ?e
mediation was unsuccessful. Id. Hayes alleges that Newmark and Winkelmann retaliated
against her after the mediation. Id. For example, Hayes alleges that Newmark and
Winkelmann refused to meet with her concerning her job duties and performance.
Id. ¶ 44. Additionally, Hayes alleges that Winkelmann withheld instructions and
deadlines for projects she was involved with, gave her “dummy work” and menial tasks,
increased scrutiny of her work, and reported her to Amy O’Brian in HR for reasons not
identi?ed in the complaint. Id. ¶ 45. According to Hayes, O’Brian then told her that “we
are trying to come up with a solution to make Cheryl [Winkelmann] comfortable so she
can work with you.” Id.
In March 2022, Hayes informed Molnar and Crumback that since her ?ling and
mediation with the EEOC, Winkelmann’s behavior had gotten worse. Id. ¶ 46.
In April 2022, Crumback informed Hayes that she was not allowed to
communicate with anyone other than Winkelmann and that if “I [Crumback] ?nd out that
you have communicated with anyone other than [Winkelmann] I will ?re you on the spot!
I will also ?re you immediately, even if you say Hi to anyone!” Id. ¶ 47.
?at month, Newmark hired Christine Geitner as a Facilities Manager. Id. ¶ 48.
Because Hayes would soon be reporting to Geitner, Hayes attempted to obtain her contact
information. Id. When Winkelmann discovered this, she allegedly became irate and
instructed Hayes not to contact Geitner. Id.
Hayes alleges that based on the events described above, she was convinced her
termination was imminent and resigned in May 2022. Id. ¶ 49.

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B. Procedural Background
Hayes ?led this action against RELX d/b/a Lexis-Nexis (“Lexis-Nexis”) 3 and
Newmark in Superior Court for the District of Columbia on January 23, 2023. See Doc.
1. ?e claim was removed to the United States District Court for the District of
Columbia on March 22, 2023. Doc. 1. On April 12, 2023, Newmark moved to transfer
the case to the United States District Court for the Southern District of New York based
on the forum selection clause in Hayes’ employment agreement, or alternatively to
dismiss the complaint for failure to state a claim pursuant to Rule 12(b)(6). Doc. 9.
Lexis-Nexis ?led a motion to dismiss that same day. Doc. 10.
In response, Hayes amended the complaint on May 12, 2023, naming Newmark
as the sole defendant. Doc. 13. On June 2, 2023, Newmark renewed its motion to
transfer the case to the United States District Court for the Southern District of New
York, or alternatively to dismiss the complaint for failure to state a claim. Doc. 14. On
February 5, 2024 the District Court for the District of Columbia granted Newmark’s
motion to transfer, without ruling on the motion to dismiss. Doc. 19.
On April 18, 2024, Newmark ?led its motion to dismiss the complaint for failure
to state a claim. Doc. 34.
II.

LEGAL STANDARD
When considering a motion to dismiss pursuant to Rule 12(b)(6), a court accepts

all factual allegations in the complaint as true and draws all reasonable inferences in the
plainti?’s favor. Koch v. Christie’s International PLC, 699 F.3d 141, 145 (2d Cir. 2012).
But “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not su?ce.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In Hayes’ original complaint, she identi?ed Lexis-Nexis as her joint employer with Newmark. Doc. 1-1 at
1. While Hayes worked at a physical Lexis-Nexis o?ce in Washington D.C., Lexis-Nexis is a client of
Newmark to whom Newmark provides property management services. See Doc. 1-1 ¶ 1–3; Doc. 9-1 at 3 n.
2. Hayes removed Lexis-Nexis as a defendant in her amended complaint after Lexis-Nexis ?led a motion
to dismiss arguing it was not her joint employer. See Doc. 10-1 at 5–7.
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“To survive a motion to dismiss, a complaint must contain su?cient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal,
556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
claim is facially plausible “when the plainti? pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. ?is standard “is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S.
at 556). To state a plausible claim, the plainti? must “ ‘raise a reasonable expectation
that discovery will reveal evidence’ of the wrongdoing alleged, ‘even if it strikes a savvy
judge that actual proof of those facts is improbable.’ ” Citizens United v. Schneiderman,
882 F.3d 374, 380 (2d Cir. 2018) (quoting Twombly, 550 U.S. at 556). If the plainti? has
not “nudged [the] claims across the line from conceivable to plausible, [the] complaint
must be dismissed.” Twombly, 550 U.S. at 570.
III.

DISCUSSION
Hayes alleges that Newmark discriminated against her based on her race and

retaliated against her for her participation in protected activity in violation of 42 U.S.C. §
1981. ?e Court will address each claim in turn.
A. Framework for § 1981 Discrimination and Retaliation Claims
Hayes’ § 1981 claims for employment discrimination and retaliation are both
analyzed under the three-step burden-shifting framework set forth by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Littlejohn v. City of
New York, 795 F.3d 297, 312 (2d Cir. 2015) (applying the McDonnell framework to
§ 1981 claims); Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005)
(“[A] retaliation claim follows the familiar [McDonnell] burden-shifting framework
developed to evaluate allegations of disparate treatment.”). ?e McDonnell framework
requires that a plainti? must ?rst establish a prima facie case of discrimination.
McDonnell, 411 U.S. at 802. If a plainti? successfully establishes a prima facie case, the

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burden shifts to the defendant who must then rebut the presumption by o?ering a
legitimate non-discriminatory reason for the adverse employment action in plainti?’s
prima facie case. Id. at 802–03. If the defendant satis?es its burden, the burden shifts
back to the plainti? to show that the reason given by the defendant is pretextual. Id. at
804. At the pleading stage, however, the facts alleged must merely “give plausible
support to the reduced requirements that arise under McDonnell Douglas in the initial
phase of … litigation.” Littlejohn, 795 F.3d at 311. ?us, the question on a motion to
dismiss is whether the plainti? has adequately pleaded a prima facie case. Ramirez v.
Temin & Company, Inc., No. 20-cv-6258 (ER), 2021 WL 4392303, at * 5 (S.D.N.Y. Sept.
24, 2021).
B. Discrimination
To establish a § 1981 prima facie discrimination claim, Hayes must show that:
(1) she is a member of a protected class; (2) was quali?ed for the position; (3) was
subject to an adverse employment action; and (4) the adverse action occurred under
circumstances giving rise to an inference of discriminatory intent. Id. (citing Terry v.
Ashcroft, 336 F.3d 128, 137–38 (2d Cir. 2003)). Although a plainti? is not required to
plead facts proving each element of a prima facie case of discrimination at the pleading
stage, her allegations must provide “plausible support” for a “minimal inference” that the
employer was motivated by discriminatory intent. Littlejohn, 795 F.3d at 311. When
evaluating whether a complaint meets this standard, the Court “must be mindful of the
‘elusive’ nature of intentional discrimination.” Vega v. Hempstead Union Free School
District, 801 F.3d 72, 86 (2d Cir. 2015) (quoting Texas Department of Community A?airs
v. Burdine, 450 U.S. 248, 255 n.8 (1981)). “[R]arely is there direct, smoking gun,
evidence of discrimination,” and so a plainti? “usually must rely on bits and pieces of
information to support an inference of discrimination, i.e., a mosaic of intentional
discrimination.” Id. (citation and internal quotation marks omitted). Nonetheless, the

9

allegations must be fact-speci?c. See Grimes v. Fremont General Corp., 785 F. Supp. 2d
269, 296 (S.D.N.Y. 2011). Conclusory or naked allegations will not do. See id.
?e parties do not dispute that Hayes satis?es the ?rst two elements—i.e., that as
an African American woman she was a member of a protected class, and that she was
quali?ed for her position. ?e parties, however, disagree over whether Hayes su?ered an
adverse employment action, and if she did, whether the underlying circumstances give
rise to an inference of discriminatory intent.
Newmark argues that for an employment action to be considered adverse, it must
be a “ ‘materially adverse change’ in the terms and conditions of employment.” Doc. 35
at 10 (quoting Galabya v. New York City Board of Education, 202 F.3d 636, 640 (2d Cir.
2000) (citation omitted)). Although Newmark is correct that the Second Circuit
previously imposed a materiality requirement when evaluating adverse employment
actions, the “landscape has changed with the Supreme Court decision in Muldrow v. City
of St. Louis [601 U.S. 346] (2024).” Ciotti v. City of New York, No. 23-cv-10279 (ER),
2025 WL 308022, at *12 (S.D.N.Y. Jan. 27, 2025) (quoting Anderson v. Amazon.com,
Inc., No. 23-cv-8347 (AS), 2024 WL 2801986, at *10 (S.D.N.Y. May 31, 2024)).
In Muldrow, the Supreme Court rejected the notion that in Title VII cases “the
harm incurred [must be] signi?cant … [o]r serious, or substantial, or any similar adjective
suggesting that the disadvantage to the employee must exceed a heightened bar.” 601
U.S. at 355 (citation and internal quotation marks omitted). After Muldrow, this Court
considered “whether § 1981 di?ers from Title VII in some way that justi?es a continued
materiality rule.” Anderson, 2024 WL 2801986, at *10. ?e Court reiterates today that it
does not. See id.; Ciotti, 2025 WL 308022, at *12 (“[T]he Court follows many others in
extending the holding in Muldrow beyond only Title VII discrimination cases involving
transfers.”). Indeed, the text of § 1981 is devoid of any indication that adverse actions
must be material. It states that “[a]ll persons … shall have the same right … to make and
enforce contracts,” and de?nes “make and enforce contracts” to include “the enjoyment
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of all bene?ts privileges, terms, and conditions of the contractual relationship.” 42
U.S.C. § 1981 (a)–(b) (emphasis added). Like Title VII, “[t]here is nothing in [§ 1981] to
distinguish … between [adverse actions] causing signi?cant disadvantages and [adverse
actions] causing not-so-signi?cant ones. … To demand ‘signi?cance’ is to add words …
to the statute Congress enacted. It is to impose a new requirement on a [§ 1981]
claimant, so that the law as applied demands something more of her than the law as
written.” Anderson, 2024 WL 2801986, at *10 (quoting Muldrow, 601 U.S. at 355).
Although the adverse action does not need to be materially adverse, Hayes still
must establish some harm concerning her employment terms or conditions. Muldrow,
601 U.S. at 354–55. Terms and conditions in an employment discrimination claim cover
more than just “economic or tangible” factors and apply beyond a “narrow contractual
sense,” however, the plainti? must allege some harm that has left her “worse o?.” Id.
(citation omitted); Ciotti, 2025 WL 308022, at *13 (?nding an adverse employment
action where the plainti? was required to engage in unwanted counseling sessions and
was subjected to repetitive and unnecessary urine testing).
Even under Muldrow, moreover, not all workplace events that are unpleasant are
adverse employment actions. Mitchell v. Planned Parenthood of Greater New York, Inc.,
745 F. Supp. 3d 68, 91 (S.D.N.Y. 2024). For example, “mere admonition by a supervisor
without any formal consequences is not an adverse employment action because it does
not represent any disadvantageous change in the terms or conditions of the plainti?’s
employment.” Id. (quoting Rios v. Centerra Grp. LLC, 106 F.4th 101, 112–13 (1st Cir.
2024)).
Here, Hayes alleges that Newmark took adverse action against her by giving her a
negative performance review that she believes cost her an opportunity to earn a bonus or
an increase in her salary. Doc. 13 ¶ 53. She also alleges that she was denied a promotion
for a position that was given to a less quali?ed white woman. Id. ¶ 54. Finally, Hayes
also alleges that Winkelmann discriminated against her by repeatedly preventing her from
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taking PTO, falsely accusing her of fraud, and giving her menial tasks. Doc. 37 at 12–13.
According to Hayes, these actions constituted adverse employment actions that were
taken because of her race. Doc. 13 ¶ 56.
Negative Performance Review
Hayes contends that she su?ciently pleaded an adverse employment action in
connection with the negative performance review she received in 2021 which she
believes cost her the opportunity to earn an additional $4,000 to $5,000 in annual income.
Doc. 13 ¶ 53. Hayes argues that because Newmark “awards bonus[es and raises] based
on positive performance reviews and [that] in 2020, her salary was increased by $3,000
because of her positive performance review[],” the fact that she received a negative
performance review in 2021 is su?cient to allege that she su?ered a tangible loss. See
Doc. 37 at 10–11; Doc. 13 ¶¶ 11, 42.
“[A] negative employment evaluation, if accompanied by negative consequences,
such as demotion, diminution of wages, or other tangible loss, may constitute an adverse
employment action.” Smith v. New York City Department of Education, No. 18-cv-8545
(PGG), WL 6307471, at *8 (S.D.N.Y. Nov. 25, 2019) (quoting Siddiqi v. New York City
Health & Hospitals Corp., 572 F. Supp. 2d 353, 367 (S.D.N.Y. 2008)). However, “a
negative performance review, without any showing of a negative rami?cation, cannot
constitute an adverse employment action.” Natofsky v. City of New York, 921 F.3d 337,
352 (2d Cir. 2019); see also Siddiqi, 572 F. Supp. 2d at 367 (“[N]egative evaluations,
standing alone without any accompanying adverse results, are not cognizable.”)
(quoting Bennett v. Watson Wyatt & Co., 136 F. Supp. 2d 236, 247 (S.D.N.Y. 2001)).
Newmark is correct that Muldrow does not change the understanding that a
negative performance review, without more, does not qualify as an adverse employment
action. See Doc. 38 at 2–3. However, as the Court explained above, Muldrow made clear
that “some harm respecting an identi?able term or condition of employment” covers
more than just “economic or tangible” harms. 601 U.S. at 347, 359 (citation omitted)
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(“?e [action] must have left her worse o?, but need not have left her signi?cantly so.”).
Accordingly, a negative performance review that does not result in immediate economic
consequences may nonetheless qualify as adverse employment action because it leaves
the employee worse o? by dampening the prospects of a promotion, raise, or bonus. See,
e.g., Anderson, 2024 WL 2801986, at *11 (?nding that plainti?’s placement on a
performance improvement plan was an adverse action because it “adversely a?ected [her]
bene?ts, privileges, terms, or conditions of employment by saddling her with more and
worse tasks, tarnishing her permanent record, dampening her prospects of a promotion or
raise, temporarily preventing her from transferring, excluding her from certain meetings
and projects, and so on.”).
Newmark argues that Hayes’ allegations that her negative performance review
cost her the opportunity for a raise or bonus are merely speculative. See Ramirez, 2021
WL 4392303, at *5 (“No matter what the pleading standard is, [a] complaint must at least
contain enough factual allegations that are not made upon information and belief to ‘raise
a right to relief above the speculative level.’ ” (quoting Gilford v. NYS O?ce of Mental
Health, No. 17-cv-8033 (JPO), 2019 WL 1113306, at *6 (S.D.N.Y. Mar. 11, 2019)
(citation and internal quotation marks omitted)); Lebowitz v. New York City Department
of Education, 407 F. Supp. 3d 158, 171 (E.D.N.Y. 2017) (explaining that the alleged
consequences resulting from a negative evaluation “must go beyond mere speculation” to
survive a motion to dismiss). ?e Court disagrees.
Here, Hayes alleges that bonuses, raises, and promotions are based on positive
performance reviews. She also alleges that her positive performance reviews in 2020
resulted in a $3,000 raise. Although a positive performance review does not necessarily
entitle an employee to a raise, bonus, or promotion, it is reasonable to infer that they are
substantially less likely to be awarded when an employee receives a negative
performance review. In other words, Hayes’ negative review plausibly deprived her of
the opportunity to receive a raise or bonus similar to the one she received in 2020.
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Accordingly, the Court ?nds that Hayes has su?ciently alleged that she has su?ered
some harm resulting from the allegedly discriminatory negative performance review.
Hayes has also met her “minimal burden of showing facts suggesting an inference
of discriminatory motivation … .” Littlejohn, 795 F.3d at 311. Remarks made by
colleagues 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 F. Supp. 3d 431, 438 (S.D.N.Y. 2015). To determine whether a colleagues
remark is probative of discriminatory intent, courts consider four factors: “(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 …; and (4) the context in which the remark was made (i.e. whether it was related
to the decision-making process).” Id. (quoting Henry v. Wyeth Pharmaceuticals, Inc., 616
F.3d 134, 149 (2d Cir. 2010)).
Here, Hayes alleges that Winkelmann made allegedly racist remarks in September
2020 when Winkelmann told her that “Black lives don’t matter,” and in October 2020
when Winkelman told her that the company insurance policy was “better than
Obamacare.” Doc. 13 ¶¶ 16, 20. Hayes alleges that Winkelmann later gave her an
allegedly discriminatory performance review on December 7, 2021. Id. ¶ 42.
Where, as here, the same supervisor who made the allegedly racist remarks also
took the adverse action, it is much easier to ?nd an inference of discrimination. See
Anderson, 2024 WL 2801986, at *11 (?nding that the plainti? met her minimal burden of
suggesting an inference of discrimination where the “same bosses who made comments
and took actions that were racially in?ected also took the allegedly adverse actions.”).
However, the Court must also consider the other competing factors. See Henry, 616 F.3d
at 150 (“[W]e caution that none of these factors should be regarded as dispositive… [but]
this framework will provide a useful approach to the admission or exclusion of remarks
not directly related to the adverse action against the plainti? … .”).
14

Newmark argues that the passage of time between the remarks and the negative
performance review weighs against an inference of discrimination. Doc. 35 at 13–14.
?is argument is undermined by the fact that Winkelmann also allegedly discriminated
against Hayes between September 2020 and December 2021 by repeatedly denying PTO
requests and wrongfully reporting her to HR for ?ling a fraudulent expense report. Doc
37 at 12–13. Regardless of whether these actions also constitute adverse employment
actions, they provide relevant background evidence by shedding light on the context of
Winkelmann’s motivation and thus bolster Hayes’ claim that Winkelmann treated her
di?erently because of her race. Vega v. Hempstead Union Free School District, 801 F.3d
72, 88 (2d Cir. 2015) (“[P]urpose may often be inferred from the totality of the relevant
facts … .” (quoting Washington v. Davis, 426 U.S. 229, 242 (1976)); Anderson, 2024 WL
2801986, at *11; Wright v. New York City O?-Track Betting Corp., No. 05-cv-9790
(WHP), 2008 WL 762196, at *4 (S.D.N.Y. Mar. 24, 2008) (“Stray discriminatory
comments combined with signi?cant disparate treatment can raise an inference of
discrimination.”). Accordingly, ?e Court ?nds that Winkelmann’s allegedly racist
remarks and discriminatory conduct, viewed together, support the minimal inference that
Winkelmann gave Hayes a negative performance evaluation because of her race.
Newmark also argues that there cannot be an inference of discrimination because
Hayes received an “overwhelmingly positive” performance review from Winkelmann.
Doc. 35 at 13–14. However, Hayes makes no allegations that Winkelmann ever
participated in a positive performance review. Although the complaint is not clear about
who gave Hayes the positive reviews, the Court draws the reasonable inference that
Hayes does not allege Winkelmann was the supervisor responsible for her positive
performance reviews and subsequent raise. Indeed, aside from the negative review in
December 2021, the only performance review that Hayes speci?cally references in her
complaint is a December 2020 performance review with Winkelmann and Flavinn where

15

Hayes attempted to raise a complaint of discrimination against Winkelmann and was
prevented from doing so. Id. ¶ 28.
Accordingly, the Court ?nds that Hayes has su?ciently pleaded that her negative
performance constitutes an adverse employment action which occurred under
circumstances giving rise to an inference of discrimination.
Failure to Promote
Hayes also alleges that she su?ered an adverse employment action because she
was denied a promotion that was given to a less quali?ed white woman. Doc. 37 at 15.
Hayes is correct that the failure to promote is an adverse employment action.
Treglia v. Town of Manilus, 313 F.3d 713, 720 (2d Cir. 2002) (“[D]iscriminatory failure to
promote falls within the core activities encompassed by the term adverse actions.”
(citation and internal quotation marks omitted)). In order to make out a failure to
promote claim, a plainti? must show that “(1) she is a member of a protected class; (2)
she ‘applied and was quali?ed for a job for which the employer was seeking applicants’;
(3) she was rejected for the position; and (4) the position remained open and the
employer continued to seek applicants having the plainti?’s quali?cations.” Petrosino v.
Bell Atlantic, 385 F.3d 210, 226 (2d Cir. 2004) (quoting Brown v. Coach Stores, Inc., 163
F.3d 706, 709 (2d Cir. 1998)).
In Brown v. Coach Stores, Inc., the Second Circuit established that a plainti? must
allege that she “applied for a speci?c position or positions and was rejected therefrom,
rather than merely asserting that on several occasions she or he generally requested
promotion.” 163 F.3d at 710. However, the Second Circuit has also made clear that “the
[speci?c application] rule is not in?exible.” Inguanzo v. Housing & Services, Inc., No.
12-cv-8212 (ER), 2014 WL 4678254, at *12 (S.D.N.Y. Sept. 19, 2014), a?’d, 621 F.
App’x 91 (2d Cir. 2015) (quoting Petrosino, 385 F.3d at 227). ?e law recognizes that
the facts of a particular case may sometimes make “a speci?c application a quixotic
requirement.” Id. Indeed, the requirement that a plainti? show that she applied for a
16

speci?c promotion may be excused if she demonstrates that “(1) the vacancy at issue was
not posted, and (2) the employee either had (a) no knowledge of the vacancy before it
was filled or (b) attempted to apply for it through informal procedures endorsed by the
employer.” Petrosino, 385 F.3d at 227.
Hayes alleges that she expressed interest in applying for a Facilities Manager
position in Washington D.C. Doc. ¶ 33. Hayes also allegedly said that she would accept
the position at the same pay as her current position as Assistant Facilities Manager. Id.
After Hayes expressed interest in the D.C. position, Molnar informed her that neither the
Washington D.C. o?ce nor East Region needed a Facilities Manager. Id. ¶ 34.
According to Hayes, the Washington D.C. o?ce is a part of the East Region. Id. n. 4.
Shortly after Hayes expressed interest in applying for the Washington D.C.
position, Lisa Moore, a white woman, was promoted from Assistant Facilities Manager to
Facilities Manager for the East Region. Id. ¶ 34. Hayes alleges that upon receiving the
promotion, Moore called Hayes to inform her of the promotion and said “I don’t know
shit, but they promoted me.” Id.
?ese facts do not plausibly allege that Hayes actually applied for a speci?c
promotion, was rejected, and that someone outside of her protected class was given the
position she applied for. Although Hayes su?ciently alleges that she expressed interest
in applying for the Washington D.C. position, she never alleges that she applied or
expressed interest in applying for the East Region position. Although Hayes does not
make this argument, it is possible that Molnar’s assertion that the East Region did not
need a Facilities Manager and Moore’s statement that she was promoted despite her lack
of requisite experience can be understood together as suggesting that the vacancy was
never posted and Hayes was unaware of the vacancy before the position was ?lled.
However, because Hayes does not make any speci?c factual allegations to that e?ect and
does not raise the argument in her opposition, the Court ?nds that Hayes did not apply for
the position at issue.
17

Even if Hayes could establish that she applied for and was denied the East Region
position given to Moore, Hayes does not make any allegations creating an inference of
discrimination. See Brodt v. City of New York, 4 F. Supp. 3d 562, 570 (S.D.N.Y. 2014)
(explaining that even if a plainti? establishes a prima facie failure to promote claim, they
still must still plausibly allege that they were rejected under circumstances giving rise to
an inference of discrimination).
Here, Hayes never alleges that Winkelmann, who made the allegedly
discriminatory remarks, had anything to do with the decision about who to hire as the
Facilities Manager. See Lively v. WAFRA Investment Advisory Group, Inc., 6 F.4th 293,
307 (2d Cir. 2021) (“[R]emarks made by someone other than the person who made the
decision adversely a?ecting the plainti? may have little tendency to show that the
decision-maker was motivated by the discriminatory sentiment expressed in the remark.”
(quoting Tomassi v. Insignia Financial Group, Inc., 478 F.3d 111, 115 (2d Cir. 2007),
abrogated on other grounds by Gross v. FBL Financial Services, Inc., 557 U.S. 167
(2009))). ?e only allegation connecting Winkelmann to any decision a?ecting Hayes’
potential promotion is that promotions are based on positive performance reviews and
that she received a negative performance review from Winkelmann. Doc. 13 ¶¶ 11, 42.
However, Hayes’ ?rst negative performance review from Winkelmann did not come until
after Hayes had expressed interest in applying for the D.C. position. Id. ¶ 33, 42.
Accordingly, the Court does not discern an inference of discrimination in the decision to
promote Moore to Facilities Manager for the East Region.
Hayes also argues that “the fact that a plainti? was replaced by someone outside
the protected class will ordinarily su?ce for the required inference of discrimination
… .” Littlejohn, 795 F.3d at 313. Hayes is correct, however, in Littlejohn, the Court was
contemplating situations where an employer replaces a terminated or demoted employee
with an individual outside of the employee’s protected class. Id. at 312–13. ?at has not
occurred here.
18

Other Adverse Actions
Although the parties’ briefs focus on the negative performance review and the
failure to promote, Hayes also alleged Winkelmann discriminated against her by
repeatedly denying her PTO requests, falsely accusing her of ?ling a fraudulent expense
report, and giving her menial tasks to perform. See Doc. 13; Doc. 37 at 12–13. Although
these actions might once have been deemed immaterial, see Littlejohn, F.3d at 312 n. 10,
the adverse employment action standard articulated by the Supreme Court in Muldrow
asks whether the action caused some harm altering the “enjoyment of” any “bene?ts,
privileges, terms [or] conditions” of her employment contract, regardless of its
signi?cance. See Anderson, 2024 WL 2801986, at *11 (quoting 42 U.S.C. § 1981).
?e Court ?nds that at this stage, the repeated denial of Hayes’ PTO requests also
quali?es as an adverse action for the purposes of establishing a prima facie
discrimination claim. Hayes was denied multiple PTO requests in May, July and
September 2020. Doc. 13 ¶¶ 13–16. In September 2020, when Hayes requested PTO to
attend a “Black lives matter” rally in Washington D.C., Winkelmann allegedly told Hayes
that “Black lives don’t matter” and denied her request. Id. ¶ 15–16. In May 2021, Hayes
complained to Molnar that Winkelmann was once again refusing to approve her PTO
requests. Id. ¶ 30. Molnar referred the matter to Crumback who investigated the
situation. Id. Winkelmann told Crumback that a software issue was preventing her from
approving the requests, but an investigation revealed that there was nothing preventing
Winkelmann from approving Hayes’ requests. Id. Molnar then directed Winkelmann to
approve Hayes’ requests. Id. Nonetheless, Winkelmann continued to deny Hayes’
requests for paid time o?. Id. ¶ 31. ?is continued through July 2021, at which point
Hayes complained again to Molnar that her requests were still being denied. Id. ¶ 32.
Drawing the reasonable inference, as the Court must at this stage, that the ability of an
employee to take paid time o? is a term or condition of employment, the repeated and
unwarranted denial of Hayes’ requests constitutes an adverse employment action.

19

Hayes has also met her “minimal burden of showing facts suggesting an inference
of discriminatory motivation … .” Littlejohn, 795 F.3d at 311. An inference of
discrimination can arise from circumstances including “the more favorable treatment of
employees not in the protected group … .” Id. at 312 (quoting Leibowitz v. Cornell
University, 584 F.3d 487, 502 (2d Cir. 2009)). Remarks made by colleagues may also be
probative of discriminatory intent—depending upon the circumstances under which the
remarks were made—if there is a nexus between the remarks and the adverse
employment action. Mesias, 106 F. Supp. 3d at 438.
Here, Hayes has alleged that non-African American employees were not being
denied their requests for PTO, Doc. 13 ¶ 14, and that Winkelmann commented “Black
lives don’t matter” directly in response to a request for PTO. Given the “minimal”
showing required, Hayes has alleged enough to survive a motion to dismiss. Littlejohn,
F.3d at 311.
Accordingly, Hayes has su?ciently alleged a prima facie discrimination claim.
C. Retaliation
Similar to discrimination claims, “[r]etaliation claims under Title VII and § 1981
are both analyzed pursuant to Title VII principles and the McDonnell Douglas burdenshifting evidentiary framework.” Littlejohn, 795 F.3d at 315; see also Kirkland-Hudson
v. Mount Vernon City School District, 665 F. Supp. 3d 412, 459 (S.D.N.Y. 2023).
To plead a prima facie retaliation claim, a plainti? must demonstrate (1) that she
engaged in a protected activity; (2) of which the employer was aware; and (3) that she
su?ered a materially adverse action; which (4) was causally connected to the protected
activity. Brown v. Monte?ore Medical Center, No. 19-cv-11474 (ALC), 2021 WL
1163797, at *10 (S.D.N.Y. Mar. 25, 2021); Ramirez, 2021 WL 4392303, at *10.
Hayes alleges that she engaged in protected activity by making multiple
complaints of discrimination and as a result, Newmark subjected her to adverse
employment actions including a negative performance review and conduct that she
20

alleges amounted to a constructive discharge. Doc. 13 ¶ 61. In response, Newmark
argues that Hayes’ retaliation claims should be dismissed because she has failed to allege
an adverse employment action that was causally connected to any protected activity.
Doc. 35 at 20.
Protected Activity
Hayes alleges that she engaged in six protected activities: (1) she complained to
Tara Molnar in July 2020 that she believed Winkelmann was denying PTO requests
because of her race, Doc. 37 at 2–3; (2) in December 2020 during a performance review
with Flavinn and Winkelmann, Hayes tried to raise a complaint of discrimination against
Winkelmann but was prevented from doing so, Id. at 4–5; (3) in July 2021 Hayes
complained to Molnar again about Winkelmann’s continued allegedly discriminatory
denials of Hayes’ PTO requests, Id. at 5; (4) on December 30, 2021, Hayes ?led a
complaint of discrimination with the EEOC, Doc. 36-2, (5) in February 2022 Hayes and
Newmark attended an unsuccessful mediation at the EEOC, Doc. 37 at 7; and (6) in
March 2022, Hayes informed Molnar and Crumback that since her complaint and
mediation with the EEOC, Winkelmann’s retaliatory behavior had gotten worse, Id. at 8.
Protected activities are actions taken by an employee that protest or oppose
discriminatory conduct by their employer which they believe in good faith to have
violated the law. See Cruz v. Coach Stores, 202 F.3d 560, 566 (2d Cir. 2000); Krasner v.
HSH Nordbank AG, 680 F. Supp. 2d 502, 520 (S.D.N.Y. 2010) (“?e law protects
employees [who] … make[] informal protests of discrimination, including making
complaints to management, so long as the employee has a good faith, reasonable belief
that the underlying challenged actions of the employer violated the law.” (citation
omitted)).
Protected activity can be formal, such as ?ling a complaint with an administrative
agency, or informal. See Ramirez, 2021 WL 4392303, at *10. An informal complaint can
be as simple as an oral objection to the discriminatory conduct that is expressed to the
21

employer, however, at the very least there must be some form of “professional indicia of
a complaint made against an unlawful activity.” Id. (quoting Moran v. Fashion Institute
of Technology, No. 00-cv-1275 (KMW), 2002 WL 31288272, at *8 (S.D.N.Y. Oct. 7,
2002) (explaining that telling a supervisor to “stay away” and “leave him alone” did not
constitute a protected activity) (citing Cruz, 202 F.3d at 566 (explaining that slapping
one’s harasser, even assuming that it was done in response to unlawful harassment, was
not a protected activity))).
Each of Hayes’ six listed complaints qualify as protected activity. ?e ?rst three
occasions involve allegations that she speci?cally told supervisors that Winkelmann was
engaging in racially discriminatory behavior. Newmark does not contest that these are
protected activities.
Hayes’ formal complaint to the EEOC also clearly quali?es as a protected activity.
Moreover, this Court has also recognized that participation in an EEOC mediation itself
quali?es as a protected activity. See Erasmus v. Deutsche Bank Americas Holding
Corporation, No. 15-cv-1398 (PAE), 2015 WL 7736554, at *10 (S.D.N.Y. Nov. 30,
2015).
Newmark argues that Hayes’ March 2022 complaint to Molnar and Crumback
was not a protected activity because Hayes merely made a conclusory assertion that
Winkelmann’s “retaliatory behavior had gotten worse.” Doc. 35 at 23; Doc. 13 ¶ 46.
However, when Hayes refers to Winkelmann’s conduct as “retaliatory,” she is referencing
the alleged retaliatory behavior that is speci?cally identi?ed in the immediately preceding
paragraphs. Doc. 13 ¶ 43–46. ?e Court ?nds that at the pleading stage Hayes has
su?ciently alleged that the March 2022 complaint was also protected activity.
Accordingly, the Court ?nds that Hayes has su?ciently alleged that she engaged
in protected activity.
Knowledge of the Employer
Newmark does not contest that they were aware of Hayes’ complaints.
22

Adverse Action
An adverse employment action in the retaliation context is di?erent from the
discrimination context. Nnebe v. City of New York, No. 22-cv-3860 (VEC) (SLC), 2023
WL 9100339, at *16 (S.D.N.Y. Nov. 9, 2023) (citing Sosa v. New York City Department
of Education, 368 F. Supp. 3d 489, 517 (E.D.N.Y. 2019)). ?e standards for retaliation
and discrimination are not “coterminous” and consequently the scope of adverse actions
covered by a retaliation claim may be broader than a discrimination claim. See
Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 66–67 (2006).
In the retaliation context, employment actions are adverse if they are “materially
adverse to a reasonable employee.” Id. at 57. An action is “materially adverse” if it is
“harmful to the point that [it] could well dissuade a reasonable worker from making or
supporting a charge of discrimination.” Ciotti v. City of New York, No. 23-cv-10279
(ER), 2025 WL 308022, at *17 (S.D.N.Y. Jan. 27, 2025) (quoting Burlington Northern,
548 U.S. at 57); see also Vega v. Hempstead Union Free School District, 801 F.3d 72, 90
(2d Cir. 2015). Despite the Supreme Court’s decision in Muldrow loosening the adverse
action standard for discrimination claims by discarding the materiality requirement, the
distinction between adverse employment actions in the retaliation context and
discrimination context was left undisturbed. Muldrow, 601 U.S. at 357–58 (explaining
that the Court in Burlington Northern adopted a di?erent adverse employment action
standard for reasons unique to the retaliation context).
?e Supreme Court also explained that the standard is objective, but emphasized
that the signi?cance of a given act of retaliation “will often depend on the particular
circumstances” and that “[c]ontext matters.” Burlington Northern, 548 U.S. at 69 (“?e
real social impact of workplace behavior often depends on a constellation of surrounding
circumstances, expectations, and relationships which are not fully captured by a simple
recitation of the words used or the physical acts performed.” (quoting Onacle v.
Sundowner O?shore Services, Inc., 523 U.S. 75, 81–82 (1998))). For example, the

23

Supreme Court suggested that exclusion of an employee from “a weekly training lunch
that contributes signi?cantly to the employee’s professional advancement might well
deter a reasonable employee from complaining” and thus might be actionable.
Burlington Northern, 548 U.S. at 69.
?is standard does not require the Court to review the nature of the discrimination
that led to the ?ling of the charge, but instead focuses on the materiality of the alleged
retaliatory action and the perspective of an objectively reasonable person in the plainti?’s
position. Id. at 69–70.
a. Negative Performance Review
Hayes argues that her negative performance review in December 2021 was a
materially adverse action in retaliation to her engagement in protected activity. An action
is materially adverse if it would dissuade an objectively reasonable employee from
making a complaint of discrimination. Burlington Northern, 548 U.S. at 57. Despite
Newmark’s argument to the contrary, the Second Circuit has found that “of course, a poor
performance evaluation could very well deter a reasonable worker from complaining.”
Vega, 801 F.3d at 92 (citing Krinsky v. Abrams, No. 01-cv-5052 (SLT) (LB), 2007 WL
1541369, at *11 (E.D.N.Y. May 25, 2007), a?’d, 305 F. App’x 784 (2d Cir. 2009) (“[A]
negative evaluation, or the threat of a negative evaluation, while not an adverse action
that a?ects the terms and conditions of employment, might dissuade a reasonable worker
from making or supporting a charge of discrimination.” (alteration omitted) (internal
quotation marks omitted))). Hayes has su?ciently alleged a materially adverse
employment action in the retaliation context because a negative performance review
could plausibly dissuade a reasonable employee from ?ling a complaint of
discrimination.
b. Individual Adverse Actions
Hayes also alleges that immediately after her mediation with the EEOC: (1)
Winkelmann refused to meet with her to discuss her job duties and performance, Doc. 13

24

¶ 44; (2) Winkelmann withheld instructions and deadlines for projects that involved
Hayes’ job duties, Id. ¶ 45; (3) Winkelmann gave Hayes “dummy work” and menial tasks
to perform, Id.; (4) Winkelmann increased scrutiny of Hayes’ work, Id.; (5) Winkelmann
reported her to Amy O’Brian of HR, Id.; (6) Hayes was informed that she was not
allowed to communicate with anyone other than Winkelmann, and was warned by
Crumback that “if I ?nd out that you have communicated with anyone other than Cheryl
[Winkelmann] I will ?re you on the spot! I will also ?re you immediately, even if you say
Hi to anyone!” Id. ¶ 46–47; and (7) when Hayes attempted to obtain the contact
information for the newly hired Facilities Manager Christine Geitner to discuss her job
duties, Winkelmann became irate and informed Hayes not to communicate with Geitner.
Id. ¶ 48. Hayes argues that any and all of these actions can form the basis for a retaliation
claim. Doc. 37 at 21.
?e question is whether these actions are “harmful to the point that they could
well dissuade a reasonable worker from making or supporting a charge of
discrimination.” Burlington Northern, 548 U.S. at 57. However, to determine “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 su?ciently ‘substantial in gross’ as to be actionable.” Hicks v. Baines, 593 F.3d 159,
165 (2d Cir. 2010) (quoting Zelnik v. Fashion Institute of Technology, 464 F.3d 217, 227
(2d Cir. 2006)); see also Vega, 801 F.3d at 92 (“Some of these actions, considered
individually, might not amount to much. Taken together, however, they plausibly paint a
mosaic of retaliation and an intent to punish Vega for complaining of discrimination.”).
?is is consistent with the Court’s instruction in Burlington Northern to evaluate acts of
retaliation in light of the surrounding circumstances. See 548 U.S. at 69.
?e Court ?nds that at this stage, when viewing the alleged acts in aggregate,
Hayes has alleged a materially adverse employment action. In the three months
following Hayes’ mediation with the EEOC, Hayes alleges that she was refused meetings
25

with Winkelmann to discuss her job duties and performance, given “dummy work” and
menial tasks, deprived of information necessary to her job, threatened with termination if
she spoke to anyone other than Winkelmann, and prevented from obtaining the contact
information of a newly hired supervisor. See Doc. 13. Although these individual acts
may seem minor on their own, considering them together and drawing all reasonable
inferences in favor of Hayes, they could plausibly dissuade a reasonable employee from
making or supporting a charge of discrimination. See Xanthakos v. City University of
New York, No. 17-cv-9829 (VC), 2020 WL 5026930, at *7 (S.D.N.Y. Aug. 24, 2020)
(denying motion to dismiss for failure to state an adverse action where plainti? alleged in
aggregate that she had not recently received a performance review, was stripped of job
responsibilities and reassigned to a smaller project, deprived of information necessary for
doing her job, and excluded from or ignored in meetings and o?ce parties); Schoenadel
v. YouGov America Inc., No. 22-cv-10236 (AS), 2025 WL 371089, at *9 (S.D.N.Y. Feb.
3, 2025) (denying motion for summary judgement for failure to state an adverse action
where plainti? alleged in aggregate that she was isolated and excluded, not invited to
leadership meetings, received infrequent communication with supervisors, and was
ignored when requesting information).
c. Constructive Discharge
?e conduct described above also forms the basis for Hayes’ argument that she
su?ered a materially adverse action because she was constructively discharged. Doc. 37
at 18–19. ?e parties devote a substantial portion of their briefs for this motion to
arguing whether Hayes has been constructively discharged, which occurs when an
employer intentionally creates a work atmosphere so intolerable that an employee is left
with no choice but to resign. See Petrosino, 385 F.3d at 229. However, because the
alleged conduct forming the basis for the constructive discharge claim is su?cient on its
own to plead a materially adverse employment action in the retaliation context, the Court

26

does not need to decide today whether Hayes’ resignation amounted to a constructive
discharge.
Causation
To adequately plead causation, “the plainti? must plausibly allege that the
retaliation was a ‘but-for’ cause of the employer’s adverse action.” Duplan v. City of New
York, 888 F.3d 612, 625 (2d Cir. 2018) (quoting Vega, 801 F.3d at 90). But-for causation
“does not require proof that retaliation was the only cause of the employer’s action,”
rather, a plainti? need only establish that “the adverse action would not have occurred in
the absence of the retaliatory motive.” Kwan v. Andalex Group LLC, 737 F.3d 834, 846
(2d Cir. 2013). “Causation may be shown by direct evidence of retaliatory animus or
inferred through temporal proximity to the protected activity.” Duplan, 888 F.3d at 625;
see also Cifra v. General Electric Company, 252 F.3d 205, 217 (2d Cir. 2001) (“?e
causal connection needed for proof of a retaliation claim can be established indirectly by
showing that the protected activity was closely followed in time by the adverse action.”
(citation and internal quotation marks omitted)).
a. Negative Performance Review
Hayes claims that her December 7, 2021 negative performance review was a
direct response to the “September 2021 ?lings with the EEOC.” Doc. 37 at 20. As
discussed above, the facts before the Court do not support this inference. ?e EEOC
complaint was attached as an exhibit to a declaration ?led contemporaneously with the
motion and Newmark’s memorandum in support. Doc. 36-2. ?e exhibit shows that
Hayes did not ?le her complaint with the EEOC until December 30, 2021. Id.
Accordingly, the negative performance review could not have been in retaliation to Hayes
?ling a charge of discrimination with the EEOC.
b. Other Adverse Actions
With respect to the other adverse actions alleged by Hayes, she has su?ciently
alleged causation. Hayes alleges she was refused meetings with Winkelmann to discuss

27

her job duties and performance, given “dummy work” and menial tasks, received
increased scrutiny of her work, and was deprived of information necessary to her job.
See Doc. 13. ?ese actions allegedly came “within weeks, if not a month” of Hayes’
February 2022 mediation with the EEOC. Doc 37 at 21. Hayes then engaged in
protected activity in March 2022 by complaining to her supervisor that Winkelmann was
retaliating against her because of her mediation with the EEOC. Doc. 13 ¶ 46. ?is led
to Crumback telling Hayes “if I ?nd out that you have communicated with anyone other
than Cheryl [Winkelmann] I will ?re you on the spot! I will also ?re you immediately,
even if you say Hi to anyone!” Id. ¶ 47. Finally, in April 2022 Winkelmann then
prevented Hayes from obtaining the contact information of a newly hired supervisor. Id.
¶ 48.
?e Court ?nds that these allegations support an inference of causation as a result
of the temporal proximity between the alleged adverse actions and the protected activity.
While the Second Circuit has “ ‘not drawn a bright line de?ning … the outer limits
beyond which a temporal relationship is too attenuated to establish causation,’ … [it has]
previously held that a period of several months can demonstrate a causal connection
between the protected activity and the alleged adverse action.” Banks v. General Motors,
LLC, 81 F.4th 242, 277 (2d Cir. 2023) (quoting Gorzynski v. JetBlue Airways Corp., 596
F.3d 93, 110 (2d Cir. 2010)); see, e.g., Gorman-Bakos v. Cornell Cooperative Extension
of Schenectady County, 252 F.3d 545, 555 (2d Cir. 2001) (four months between
employment action and protected activity was su?cient to support an inference of a
causal connection); Vega, 801 F.3d at 92 (holding that an adverse action taken three
months after the plainti?’s EEOC complaint was su?ciently close in time to infer
retaliatory motive).
Here, several adverse actions by Winkelmann allegedly took place, at most,
within a month of Hayes’ EEOC mediation, and the remaining adverse actions all took
place within three months of the mediation. ?e Court ?nds that this brief time period
28

supports an inference of causation. Moreover, the inference is strengthened by the fact
that Crumback threatened Hayes with termination if she spoke to anyone other than
Winkelmann, who was precisely the employee Hayes’ believed was discriminating
against her. See Banks, 81 F.4th at 277–78 (“Where temporal proximity is not the only
evidence that bears on causal connection, we have recognized that the lapse in time
between the protected activity and adverse action can be longer.”). ?reatening Hayes
with termination if she spoke to anyone other than Winkelmann strongly suggests that
Crumback was explicitly trying to discourage Hayes from making any further complaints
of discrimination.
Accordingly, Hayes has su?ciently alleged a prima facie case of retaliation.
IV.

CONCLUSION
For the foregoing reasons, Newmark’s motion is DENIED. ?e parties are

directed to appear for a conference on April 8, 2025 at 11:30 a.m. in Courtroom 619 of
the ?urgood Marshall United States Courthouse, 40 Foley Square, New York, NY
10007. ?e Clerk of the Court is respectfully directed to terminate the motion, Doc 34.
It is SO ORDERED.
Dated:

March 10, 2025
New York, New York
EDGARDO RAMOS, U.S.D.J.

29