Murtha v. New York State Gaming Commission et al

Filing 28

OPINION AND ORDER: re: 22 MOTION to Dismiss filed by Brian Barry, Stephanie Wolf, Thomas Kotarski. For the foregoing reasons, Defendants' motion to dismiss is GRANTED to the extent that (1) the FAC's third and seventh causes of action are dismissed without prejudice in their entirety, (2) the first and sixth causes of action are dismissed in part without prejudice to the extent they are premised on Plaintiff's allegations of discriminatory termination and hostile work environ ment, (3) the eighth cause of action is dismissed without prejudice as against Defendant Thom Kotarski, and (4) the sixth and eighth causes of action are dismissed without prejudice to the extent that theyseek injunctive relief and punitive damages, and the motion to dismiss is otherwise DENIED. Plaintiff shall have until October 16, 2019, to seek leave to file a second amended complaint as to those claims that are dismissed without prejudice. If Plaintiff does not timely seek leave to further a mend, all claims dismissed pursuant to this Opinion and Order will be dismissed with prejudice, and Defendants shall file answers on or before November 18, 2019. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 22. SO ORDERED., ( Motions due by 10/16/2019.) (Signed by Judge Nelson Stephen Roman on 9/17/2019) (ama)

Case 7:17-cv-10040-NSR Document 28 Filed 09/17/19 Page 1 of 40

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

JAMES MURTHA,
Plaintiff,
-againstNEW YORK STATE GAMING COMMISSION,
BRIAN BARRY, DR. STEPHANIE WOLF, and
THOMAS KOTARSKI,

No. 17 Civ. 10040 (NSR)
OPINION & ORDER

Defendant.

NELSONS. ROMAN, United States District Judge

Plaintiff James Murtha brings this action pursuant to Title I and Title V of the Americans
with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the Age Discrimination in Employment
Act ("ADEA''), 29 U.S.C. § 621 et seq., the Family Medical Leave Act ("FMLA"), 29 U.S.C. §
2601 et seq., and the New York State Human Rights Law ("NYSHRL"), N. Y. Exec. Law § 290 et

seq., seeking redress for Defendants' alleged unlawful employment discrimination. Plaintiff filed
a First Amended Complaint on August 2, 2018. (ECF No. 16.) Plaintiff avers, inter alia, that he
was discriminated against on the basis of his age and alleged disability while working for
Defendant New York State Gaming Commission. (Id.

,r,r 2, 12.)

Presently before the Court is Defendants' motion to dismiss Plaintiffs claims under the
ADEA and the NYSHRL, and Plaintiffs claims sounding in discrimination under the ADA, and
to dismiss in part Plaintiffs claim sounding in retaliation under the ADA, for failure to state a
claim for which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF

. :No. 22.) For the follo:Wing reasons, Defendants' motion is GRANTED in part and DENIED in

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BACKGROUND
I.

Factual Background

The following facts are drawn from the First Amended Complaint (“FAC”) and are
accepted as true for the purposes of this motion.
Between September of 2014 and September 30, 2017, Plaintiff was employed by
Defendant New York State Gaming Commission (“NYSGC”) as a racing inspector at its Yonkers
Raceway. (Id. ¶ 12.) Plaintiff was approximately 53-years-old at the time of his hire. Plaintiff’s
duties included inspecting and testing horses involved in races at Yonkers Raceway. (Id. ¶ 13.)
His work regularly required him to work in the horses’ stalls, where Plaintiff would perform such
tasks as taking urine samples from the horses. (Id.) Plaintiff’s other duties included identifying
horses outside of the stalls (“ID work”). (Id. ¶ 15.)
Plaintiff states that he was offered his job with the NYSGC by Defendant Brian Barry, the
Director of Racing Officials for the NYSGC. (Id. ¶ 9.) According to Plaintiff, Barry interviewed
Plaintiff and offered Plaintiff employment with the NYSGC immediately after the interview,
without consulting with anyone else as to Plaintiff’s hire. (Id.) During the time that Plaintiff
worked for the NYSGC, Barry had the power to fire employees and did so. (Id.) Defendants Dr.
Stephanie Wolf and Thom Kotarski 1 were the Supervising Racing Veterinarian and Supervising
Inspector, respectively, of the NYSGC at Yonkers Raceway. (Id. ¶¶ 10-11.) Wolf and Kotarski
were Plaintiff’s direct supervisors, and Barry was the direct supervisor of Wolf and Kotarski. (Id.
¶¶ 9-11.)
In December of 2014, Plaintiff began to develop the symptoms of a respiratory allergy,
including a burning throat, raspy and hoarse voice, burning and aching sinuses, lung pain,
Defendant Thom Kotarski is incorrectly sued herein as “Thomas Kotarski.” (Defs.’ Mem. Supp. Mot. to Dismiss (ECF
No. 22) 1.)

1

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shortness of breath, and disorientation. (Id. ¶ 15.) The symptoms abated when Plaintiff was
assigned to perform ID work, which took place outside of the horses’ stalls. (Id.) Plaintiff’s
allergic symptoms led to multiple hospitalizations and required Plaintiff to take several periods of
extended leave. (Id. ¶¶ 16-23.) Ultimately, in early 2017, Plaintiff was diagnosed by an
immunologist with occupational induced asthma. (Id. ¶ 24.)
In 2015, Plaintiff told Barry, Kotarski, Wolf, nonparty Presiding Racing Judge Nick
Ferriero, and other nonparty supervisors about his asthma and respiratory issues, and his need to
take medication and fresh air breaks to cope with those issues. (Id. ¶ 25.) In the spring of 2017,
Plaintiff asked to be assigned duties outside of the stalls, particularly performing ID work, but his
requests were denied. (Id. ¶¶ 26-27.) When Plaintiff asked Kotarski if he could be moved out of
the stalls, even temporarily, Kotarski sent Plaintiff to Ferriero, then to Wolf, and then to Barry,
none of who granted Plaintiff’s request. (Id. ¶ 31.)

Plaintiff wrote to Barry about his request to

be moved out of the stalls and about alleged harassment he claimed to be experiencing, as detailed
below, in July of 2017, but Barry took no action in response to Plaintiff’s letter. (Id. ¶ 32.) Instead,
Plaintiff avers that after he made his requests, his supervisors kept him working inside the stalls
for longer periods than any of his co-workers who were also racing inspectors. (Id. ¶ 27.)
Specifically, when Plaintiff informed Wolf that he was having an asthma attack, she insisted that
he stay longer with the horses in the stalls. (Id. ¶ 28.) Plaintiff does not specify when this incident
occurred or allege that similar incidents occurred on other occasions.
Plaintiff states that other racing inspectors were permanently assigned to ID work, even
though they had less experience with ID work than he did. (Id. ¶ 26.) When he was ultimately
told that his supervisors would not assign him to ID work, Plaintiff learned that the assignment

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was given to a younger woman, who had less seniority than Plaintiff but who did not have any
breathing, allergy, or health issues. (Id. ¶ 33.)
In the year prior to his termination, Plaintiff alleges that some of his co-workers began to
harass him and joke about his asthma. (Id. ¶ 34.) One of Plaintiff’ co-workers, who was aware of
Plaintiff’s respiratory condition, shut the air conditioning off in the break room on several
occasions during the summer of 2017 and allegedly hid the remote control for it so that Plaintiff
could not use it when he entered the break room to alleviate his asthma. (Id. ¶ 35.) Plaintiff filed
a written complaint with nonparty Ferriero regarding one such incident on August 18, 2017, but
no action was taken. (Id.)
Plaintiff also complains that other employees smoked cigarettes around him and laughed
when Plaintiff told them that it triggered an asthmatic reaction. (Id. ¶ 36.) Some co-workers would
sarcastically offer Plaintiff cigarettes and invite him to join them. (Id. ¶ 38.) Another co-worker
smoked e-cigarettes in the heated indoor office during the winter, aggravating Plaintiff’s
symptoms. (Id. ¶ 37.) Plaintiff informed Kotarski and others of the e-cigarette incidents, but no
action was taken. (Id.)
During his employment with the NYSGC, Plaintiff alleges that younger employees with
less experience were promoted and given cleaner and more desirable jobs, while Plaintiff remained
in the horses’ stalls despite being verbally promised by his supervisors that he would be moved
out of the stalls within one year of his hire. (Id. ¶¶ 39-40.) Plaintiff also states that his supervisors
routinely pressured older workers into quitting, either by refusing to promote them or demoting
them, or terminated their employment for no reason. (Id. ¶¶ 40-42.) Plaintiff cites the experiences
of two former NYSGC employees as purported evidence of this practice. (Id.)

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Plaintiff further alleges that younger employees were able to commit various infractions,
including arriving late to work, leaving early, or watching television during work hours, without
being punished. (Id. ¶¶ 43-45.) Plaintiff states that some younger employees, including Kotarski,
would play baseball or basketball with the specimen cups that were meant to be kept sterile and
used only for horses, and then would place damaged cups back for official use after their games.
(Id. ¶ 44.) Plaintiff spoke to Kotarski and another employee about the damaged cups leaking and
requested that the games stop, but his complaint was met with laughter. (Id.)
In July of 2017, Plaintiff applied for medical leave pursuant to the FMLA. (Id. ¶ 46.) On
August 17, 2017, Plaintiff was granted a general approval of up to twelve weeks of leave. (Id.)
However, Plaintiff did not take that leave, because he heard from Kotarski, Wolf, and other
employees that Barry was very angry with him for applying for FMLA leave. (Id. ¶¶ 47-48.)
On July 26, 2017, Plaintiff filed a Charge of Discrimination (the “EEOC Charge”) with the
United States Equal Employment Opportunities Commission (“EEOC”) by completing the
EEOC’s Intake Questionnaire. (Id. ¶ 50.) In the Intake Questionnaire, Plaintiff states that he
identified the NYSGC as his employer and listed his employer’s address as Yonkers Raceway.
(Id.) By letter dated September 18, 2017, an EEOC investigator informed Plaintiff, inter alia, that
it had notified Plaintiff’s employer that Plaintiff had filed the EEOC Charge. (Id. ¶ 50; Ex. A.)
Plaintiff states that the EEOC’s letter was copied to the NYSGC at the Yonkers Raceway. (Id. ¶
50.) Plaintiff received his notice of right to sue from the EEOC on September 30, 2017. (Id. ¶ 5.)
On September 22, 2017, and September 23, 2017, Ferriero called Plaintiff on the phone
and told him not to report to work, but refused to explain the basis for his directives. (Id. ¶¶ 5252.) Shortly thereafter, Ferriero met Plaintiff at the Yonkers Raceway and told Plaintiff that he
was no longer allowed on the premises. (Id. ¶ 53.) On September 30, 2017, Plaintiff was told by

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Ferriero that he was fired because he “didn’t fit.” (Id. ¶ 54.) Plaintiff’s termination was confirmed
by letter dated October 4, 2017. (Id.)
II.

Procedural Background

Plaintiff commenced this action on December 22, 2017. (ECF No. 1.) Plaintiff filed the
FAC on August 2, 2018. (ECF No. 16.) Plaintiff sues: (1) Barry, in his official capacity, under
Title I and Title V of the ADA, the ADEA, and the FMLA, and (2) all Defendants in their
individual capacities under the NYSHRL. (FAC ¶¶ 56-85.) Plaintiff alleges that Defendants
discriminated and retaliated against him on the basis of his age and disability. (Id.) Plaintiff seeks
restoration of his employment and related relief under all four statutes, and compensatory and
punitive damages under the NYSHRL. (Id.)
Defendants move to dismiss Plaintiff’s claims sounding in discrimination under the ADA,
ADEA, and NYSHRL, and retaliation under the ADEA and NYSHRL, pursuant to Federal Rule
of Civil Procedure 12(b)(6). (Defs.’ Mem. Supp. Mot. to Dismiss (“Defs.’ Mem.”) (ECF No. 22)
1-2.) Defendants also move for partial dismissal of Plaintiff’s ADA retaliation claim, to the extent
that the claim is based on Defendants’ alleged retaliation for Plaintiff’s filing of the EEOC Charge.
Defendants do not move to dismiss Plaintiff’s fifth cause of action for retaliation pursuant to the
FMLA. Plaintiff opposes the motion. (ECF No. 24.)

LEGAL STANDARD UNDER RULE 12(B)(6)
To survive a Rule 12(b)(6) motion, a complaint must plead “enough facts to state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
claim is facially plausible when the factual content pleaded allows a court “to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “While legal conclusions can provide the framework of a complaint, they must be
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supported by factual allegations.” Id. at 679. In considering a Rule 12(b)(6) motion, the Court
must take all material factual allegations as true and draw reasonable inferences in the non-moving
party’s favor, but the Court is “not bound to accept as true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986))
(internal quotation marks omitted). Similarly, the Court is not required to credit “mere conclusory
statements” or “[t]hreadbare recitals of the elements of a cause of action.” Iqbal, 556 U.S. at 678.
Further, a court is generally confined to the facts alleged in the complaint for the purposes
of considering a motion to dismiss pursuant to Rule 12(b)(6). Cortec Indus. v. Sum Holding L.P.,
949 F.2d 42, 47 (2d Cir. 1991). A court may, however, consider documents attached to the
complaint, statements or documents incorporated into the complaint by reference, matters of which
judicial notice may be taken, public records, and documents that the plaintiff either possessed or
knew about, and relied upon, in bringing the suit. See Kleinman v. Elan Corp., 706 F.3d 145, 152
(2d Cir. 2013).
A “discrimination complaint need not allege facts establishing each element of a prima
facie case of discrimination to survive a motion to dismiss,” but must “at minimum assert
nonconclusory factual matter sufficient to nudge its claims across the line from conceivable to
plausible.” EEOC v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 254 (2d Cir. 2014) (citations
omitted); see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002). Thus, “courts in this District
have ‘held that elements of a prima facie case provide an outline of what is necessary to render a
plaintiff’s employment discrimination claims for relief plausible.’” Mesias v. Cravath, Swaine &
Moore LLP, 106 F. Supp. 3d 431, 436 (S.D.N.Y. 2015) (quoting Johnson v. Morrison & Foerster
LLP, No. 14-CV-428(JMF), 2015 WL 845723, at *3 (S.D.N.Y. Feb. 26, 2015)).

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DISCUSSION
The FAC contains a total of eight causes of action. Plaintiff’s first and third causes of
action allege that Defendant Barry, in his official capacity, violated the ADA and the ADEA, by
discriminating against Plaintiff on the basis of his alleged disability and age, respectively.
Plaintiff’s second, fourth, and fifth causes of action allege that Defendant Barry, in his official
capacity, violated the ADA, ADEA and FMLA by retaliating against Plaintiff on the basis of his
engagement in a protected activity. Plaintiff’s sixth, seventh, and eighth causes of action allege
that Defendants Barry, Wolf, and Kotarski, in their individual capacities, violated the NYSHRL
based on the same conduct underlying Plaintiff’s first through fifth causes of action.
Defendants move to dismiss Plaintiff’s first, third, fourth, sixth, seventh, and eighth causes
of action in their entirety, and to dismiss Plaintiff’s second cause of action in part. The Court
considers the sufficiency of those claims below.
I.

Plaintiff’s ADEA Discrimination Claims
The ADEA provides that it is “unlawful for an employer ... to discharge any individual or

otherwise discriminate against any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). This
protection extends to employees who are over the age of 40. See id. § 631(a). To establish a prima
facie case of age discrimination under the ADEA, a plaintiff must demonstrate that (1) he was
within the protected age group, (2) he was qualified for his position, (3) he suffered an adverse
employment action, and (4) the adverse employment action occurred under circumstances giving
rise to an inference of impermissible age discrimination, such as the fact that the plaintiff was
replaced by someone “substantially younger.” Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d
Cir. 2001) (quoting O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313 (1996)); see

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Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 107 (2d Cir. 2010). An ADEA discrimination
plaintiff may demonstrate age discrimination based on overt conduct, disparate treatment, or a
hostile work environment. 2
Plaintiff states that he suffered discrimination under the ADEA because he was discharged
and subjected to a hostile work environment due to his age. On the instant motion, Defendants do
not dispute that Plaintiff is within the ADEA’s protected age group, that he was qualified for his
position as racing inspector, and that his discharge constitutes an adverse employment action.
However, Defendants contend that (1) to the extent Plaintiff’s ADEA discrimination claim is based
on Defendants’ failure to permanently assign Plaintiff to ID work, Plaintiff fails to allege an
additional adverse employment action, (2) Plaintiff fails to plausibly allege that he was discharged
under circumstances giving rise to an inference of age discrimination, and (3) Plaintiff fails to
plausibly allege that he was subjected to a hostile work environment based on his age. (Defs.’
Mem. 8.) The Court agrees with Defendants on all counts.
a. Adverse Employment Action
“A Plaintiff sustains an adverse employment action if he or she endures a materially
adverse change in the terms and conditions of employment.” Vega v. Hempstead Union Free Sch.
Dist., 801 F.3d 72, 85 (2d Cir. 2015) (internal quotation marks omitted) (citing Galabya v. N.Y.C.
Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)). To be “materially adverse,” a change in working

As Defendants note in their moving papers, (Defs.’ Mem. 8-9), a plaintiff alleging age discrimination is ultimately
required to establish that age was the “but for” cause of the employer’s adverse action, and not merely that it was
a motivating factor. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009). However, courts in this District have
disagreed as to whether a plaintiff in an ADEA case must plead “but for” causation to survive dismissal, or whether
he may satisfy the pleading standard by “merely providing minimal support for the proposition that the defendant
was motivated by discriminatory intent.” Zoulas v. N.Y.C. Dep’t of Educ., No. 1:18-CV-2718(GHW), 2019 WL 4090057,
at *14 (S.D.N.Y. Aug. 29, 2019) (comparing cases); see Tweedy v. City of New York, No. 1:18-CV-1470 (ALC), 2019 WL
1437866, at *4 (S.D.N.Y. Mar. 29, 2019); Fagan v. U.S. Carpet Installation, Inc., 770 F. Supp. 2d 490, 496 (E.D.N.Y.
2011). Since Plaintiff fails to show that age was a mere motivating factor in his termination, let alone the “but for”
factor, the Court need not rule on this issue.
2

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conditions must be “more disruptive than a mere inconvenience or an alteration of job
responsibilities.” Id. (internal quotation marks omitted) (citing Terry v. Ashcroft, 336 F.3d 128,
138 (2d Cir. 2003)). Examples of materially adverse changes include “termination of employment,
a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of
benefits, [or] significantly diminished material responsibilities.” Id. at 85 (quoting Terry, 336 F.3d
at 138). In contrast, “[e]veryday workplace grievances, disappointments, and setbacks do not
constitute adverse employment actions.” Chukwuka v. City of New York, 795 F. Supp. 2d 256, 260
(S.D.N.Y. 2011). While a denial of a promotion may be considered an adverse employment action,
a plaintiff must “allege that she or he applied for a specific position or positions and was rejected
therefrom, rather than merely assert[] that on several occasions she or he generally requested
promotion.” Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir. 1998); see also Smith v. City
of New York, 385 F. Supp. 3d 323, 337 (S.D.N.Y. 2019); Barett v. Forest Labs, Inc., 39 F. Supp.
3d 407, 442 (S.D.N.Y. 2014).
It is beyond dispute that Plaintiff’s discharge qualifies as an adverse employment action.
However, Defendants’ refusal to grant Plaintiff’s request to be placed on permanent ID work or
otherwise “promote[] and give[] easier jobs” to Plaintiff, (FAC ¶ 39), does not constitute a change
in Plaintiff’s working conditions sufficient to alter the terms and conditions of Plaintiff’s
employment.

Indeed, it involves no change at all to Plaintiff’s preexisting job duties and

conditions of employment.
Moreover, Plaintiff does not allege an adverse employment action under a failure to
promote theory because Plaintiff does not identify with specificity a promotion that he sought and
was denied, nor does he assert that he has ever applied for a promotion or that there were open
positions into which he could have been promoted. See Wheeler v. Bank of N.Y. Mellon, 256 F.

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Supp. 3d 205, 217-18 (N.D.N.Y. 2017) (ADEA plaintiff’s failure to promote claim dismissed
because plaintiff failed to allege sufficient facts about promotion, including qualifications expected
of applicants for that position, or her own qualifications for that position); Dickens v. Hudson
Sheraton Corp., 167 F. Supp. 3d 499, 521 (S.D.N.Y. 2016) (plaintiff’s failure to show that
employer was seeking applicants for position plaintiff sought, or that there were any vacancies into
which plaintiff might be placed, was fatal to plaintiff’s failure to promote claim on motion for
summary judgment).
While Plaintiff asserts that he requested reassignment to permanent ID work, he does not
plead that permanent ID work was superior to the work he was performing in the stables in any
material respect, other than its being generally “easier.” 3 For instance, Plaintiff does not state that
employees directed to perform permanent ID work have increased salaries or benefits, or otherwise
enjoy tangibly better working conditions than employees working in the stables. Instead, Plaintiff
states that he wrote a letter to Defendant Barry seeking an assignment of permanent ID work as a
“reasonable accommodation” for his alleged disability, and asked for the same on other occasions
because he “had performed IDs in the past and was more experienced at it than some of the
employees who were assigned to do the work permanently.” (Id. ¶ 29.) In sum, even Plaintiff
does not characterize ID work as a promotion.
Accordingly, Defendants’ failure to promote Plaintiff or assign him to permanent ID work
does not constitute adverse employment action.

As an aside, Plaintiff’s subjective dissatisfaction with his own work assignment would be insufficient to allege an
adverse employment action, even if Plaintiff had pled that he was assigned to permanent ID work before being
reassigned to work in the stables. See Smith v. City of New York, 385 F. Supp. 3d 323, 336 (S.D.N.Y. 2019) (police
officer’s reassignment from training to mail duty was not adverse employment action).

3

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b. Inference of Discrimination
Circumstances that may “give rise to an inference of discriminatory motive” include
“actions or remarks made by decisionmakers that could be viewed as reflecting a discriminatory
animus,” as well as “preferential treatment given to employees outside the protected
class.” Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996). Thus, a plaintiff may
sustain an age discrimination claim by pleading facts showing direct discriminatory animus or by
pleading disparate treatment. A plaintiff claiming disparate treatment must allege that he was
“similarly situated in all material respects” to the individuals with whom he seeks to compare
himself. Graham v. Long Island R. R., 230 F.3d 34, 39 (2d Cir. 2000); see Mandell v. Cty. of
Suffolk, 316 F.3d 368, 379 (2d Cir. 2003).
With respect to disparate treatment, a plaintiff merely alleging that he was passed over for
promotions or terminated, while others outside of his protected class were not, does not state an
ADEA discrimination claim. “Without any specificity as to the qualifications considered for each
position and without any reference to specific statements or individual circumstances that suggest
discriminatory treatment, [a plaintiff’s] allegations do not support a finding that defendants acted
with a discriminatory purpose.” Burgis v. N.Y.C. Dep’t of Sanitation, 798 F.3d 63, 69 (2d Cir.
2015); see also Johnson v. Andy Frain Servs., Inc., 683 F. App’x, 68, 70-71 (2d Cir. 2016) (finding
ADEA discrimination claims properly dismissed where plaintiff claimed she was fired while coworker outside of her protected class was not because Plaintiff failed to allege that her co-worker
had similar job descriptions or responsibilities); Delaney v. Bank of Am. Corp., 908 F. Supp. 2d
498, 505 (S.D.N.Y. 2012) (ADEA plaintiff failed to establish an inference of discrimination by
identifying two older employees that were laid off because plaintiff did not provide any evidence

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as to whether, inter alia, the older employees were terminated by the same individual that
terminated the plaintiff or were replaced by younger workers).
Here, Plaintiff does not allege any discriminatory comments or other overt discriminatory
conduct directed against him or other employees based on their age. Instead, Plaintiff alleges that
younger employees were treated more favorably than older employees. (FAC ¶¶ 39, 43-45.)
Plaintiff states that younger employees “were promoted and given easier jobs even though Plaintiff
had seniority and was the more reliable and dependable worker.” (FAC ¶ 39.) Plaintiff, who
worked for the NYSGC for three years and alleges no prior experience or expertise in performing
his job as racing inspector, provides no facts tending to support his conclusory categorization of
himself as “more reliable and dependable” than his younger colleagues. More importantly,
Plaintiff does not specifically identify any employee who received a promotion while he was
working for the NYSGC. As to younger employees who received “easier jobs,” Plaintiff names
one “younger woman,” Lauren Spencer, who allegedly received the permanent ID work
assignment Plaintiff sought. (Id. ¶ 33.)

Plaintiff states that Spencer “had less seniority than

[Plaintiff]” but was nevertheless given the assignment.

(Id.)

Plaintiff provides no other

information about Spencer or the assignment, including her qualifications relative to his own or
the date on which Spencer was assigned. 4 Thus, even if the Court were to credit Plaintiff’s
conclusory statement that he was generally a “more reliable and dependable” worker than his
younger colleagues, Plaintiff falls far short of pleading that he was “similarly situated in all
material respects” to Spencer. Given the facts presented in the FAC, Spencer’s assignment to ID

Plaintiff supplements this claim in his Memorandum of Law in Opposition to Defendants’ Motion to Dismiss the
Amended Complaint (“Plaintiff’s Memorandum”) by stating that Spencer was assigned ID work in “July/August
2017.” (Pl.’s Mem. 19.)

4

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work in July or August of 2017 does not raise an inference of age discrimination as to Plaintiff’s
termination.
Plaintiff also alleges that “younger employees such as Terrell Hill and Tyrone Stephens
[were given] more leeway for lateness and other work infractions.” (FAC ¶ 43.) Specifically,
Plaintiff complains that such employees were not punished for their alleged infractions, which
included playing games with specimen cups meant to be kept sterile. (Id. ¶ 44.) Significantly,
Plaintiff does not state that he or any employee was punished for the same or comparable behavior.
Contrary to Plaintiff’s contentions, a uniform failure to discipline employees for certain infractions
does not support an inference that Plaintiff was terminated due to his age.
Finally, Plaintiff avers that it was “common for [Defendants] to pressure older workers
into quitting or to terminate them outright for no reason, due to their age.” (Id. ¶ 39.) Plaintiff
cites to the treatment of two employees to support this proposition. One “older employee, Jim
Perkowski, was eligible and qualified for a promotion, but was passed over for a much younger,
less qualified individual.” (FAC ¶ 41.) Perkowski quit “soon thereafter.” (Id.) The second
employee, Mike Dinger, was 58 years old when he was demoted from recording judge to inspector
after working for the NYSGC for 35 years. (Id. ¶ 42.) Plaintiff allegedly heard from colleagues
that “supervisors were hoping that the demotion would force Dinger to leave.” (Id.) Dinger was
eventually fired by Defendant Barry after being told by Barry, “[W]e are going in a new direction
and no longer need your services.” (Id.)
Plaintiff’s allegations do not support an inference of discrimination as to his own
termination. Even accepting as true Plaintiff’s conclusory assertion that neither Perkowski’s being
denied promotion nor Dinger’s being demoted and fired were for cause, there is no indication in
the FAC, explicit or implicit, that those employment decisions were based on the employees’ ages.

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See Burgis, 798 F.3d at 69-70 (black plaintiffs’ assertion that they were demoted or passed over
for promotions while white colleagues were not demoted and received promotions did not
constitute circumstances giving rise to an inference of discrimination).

Since it is “equally

possible” that the employment actions taken against Perkowski and Dinger were taken for “valid,
non-discriminatory reasons,” they do not support an inference of age discrimination. Id. at 70; see
Iqbal, 556 U.S. at 678 (“Where a complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to
relief.” (internal quotation marks omitted)).
c. Hostile Work Environment
The ADEA prohibits “‘requiring people to work in a discriminatorily hostile or abusive
environment.’” Davis-Garett v. Urban Outfitters, Inc., 921 F.3d 30, 41 (2d Cir. 2019) (quoting
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)). The standards for assessing a hostile
work environment claim under the ADEA are analogous to those utilized under 42 U.S.C. § 2000e
et seq. (“Title VII”). See id. (analyzing ADEA hostile work environment claim based on standards
announced in cases involving claims of hostile work environment discrimination under both Title
VII and the ADEA). Thus, the ADEA is “violated when ‘the workplace is permeated with
discriminatory intimidation, ridicule, and insult . . . that is sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create an abusive working environment.’” Id.
Under the ADEA, “[a] work environment will be considered hostile if a reasonable person would
have found it to be so and if the plaintiff subjectively so perceived it because of conduct based on
the plaintiff’s over-40 age.” Id. at 41 (quotation marks omitted) (citation omitted). “As a general
rule, incidents must be more than ‘episodic; they must be sufficiently continuous and concerted in
order to be deemed pervasive.’” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (quoting

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Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)). To assess a hostile work environment
claim, courts consider “the frequency of the discriminatory conduct, its severity, whether it is
physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably
interferes with [the] employee’s work performance.” Harris, 510 U.S. at 23. “Minor incidents do
not merit relief.” Kasner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 240 (2d Cir. 2007).
Importantly, a plaintiff must “demonstrate that she was subjected to the hostility because
of her membership in a protected class.” Brennan v. Metro. Opera Ass’n, 192 F.3d 310, 318 (2d
Cir. 1999); see Alfano, 294 F.3d at 377 (behavior that is “harsh, unjust, and rude” does not rise to
the level of a hostile work environment where there is no indication that such behavior is linked
or correlated to the claimed ground of discrimination). Thus, to the extent Plaintiff relies on
incidents of alleged hostility that have no connection to his age (i.e., his colleagues’ joking about
his asthma, smoking, and shutting off the air conditioning), he does not state a claim for hostile
work environment under the ADEA. See Pfizenmayer v. Hicksville Pub. Sch., No. 15-CV6987(SJF)(SIL), 2017 WL 5468319, at * 11 (E.D.N.Y. Jan. 24, 2017) (plaintiff did not plausibly
allege hostile work environment where plaintiff alleged a series of acts that were not “connected
to plaintiff’s age”).
The conduct alleged by Plaintiff that bears any arguable relationship to Plaintiff’s age
consists of (1) one younger employee being given an easier job assignment over the Plaintiff, (2)
younger employees committing workplace infractions, for which no employee was ever punished,
without consequence, and (3) two older employees being demoted or fired without cause.
Plaintiff does not allege that any of the foregoing conduct interfered with his work
performance. Furthermore, the mere fact that one older employee was passed over for a promotion,
and another demoted and then fired, over a period of three years, does not establish “a systematic

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pattern of concerted ill-treatment of older . . . employees intended to encourage their resignation,”
Sommersett v. City of New York, No. 09 Civ. 5916(LTS)(KNF), 2011 WL 2565301, at *7
(S.D.N.Y. June 28, 2011), as Plaintiff argues, (Pl.’s Mem. 17-18). In sum, the conduct alleged by
Plaintiff “lack[s] the pervasiveness, ridicule, or intimidation necessary to create a hostile work
environment.” Mendez-Nouel v. Gucci Am., Inc., No. 10 Civ. 3388 (PAE), 2012 WL 5451189, at
*10 (S.D.N.Y. Nov. 8, 2012). Because of these deficiencies, the FAC falls far short of the standard
required for a hostile work environment claim to survive dismissal.
II.

Plaintiff’s ADA Discrimination Claims
The ADA provides that, “[n]o covered entity shall discriminate against a qualified

individual with a disability because of the disability of such individual in regard to job application
procedures, the hiring, advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). To
establish a prima facie case of employment discrimination under Title I of the ADA, a plaintiff
must demonstrate that (1) his employer is subject to the ADA; (2) he was disabled within the
meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job,
with or without reasonable accommodation; and (4) he suffered adverse employment action
because of his disability. McMillan v. City of New York, 711 F.3d 120, 125 (2d Cir. 2013) (citing
Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006)). As with ADEA discrimination
claims, a plaintiff may demonstrate discrimination under the ADA through overt discriminatory
conduct or disparate treatment.
An employer may also violate the ADA by failing to provide a reasonable accommodation.
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 disability; (3) with reasonable
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accommodation, plaintiff could perform the essential functions of the job at issue;
and (4) the employer has refused to make such accommodations.

McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 97 (2d Cir. 2009) (quotation marks
omitted). A reasonable accommodation to a disability is one that enables the employee “with a
disability to enjoy equal benefits and privileges of employment as are enjoyed by … other similarly
situated employees without disabilities.” 29 C.F.R. § 1630.2(o). A reasonable accommodation
may include job restructuring, modified work schedules, or reassignment to a vacant position,
among other things. 42 U.S.C. § 12111(9)(B).
In addition to stating a prima facie discrimination claim based on isolated adverse
employment actions or a failure to accommodate, the Second Circuit has recently held that an
ADA plaintiff may proceed under a hostile work environment theory. See Fox v. Costco Wholesale
Corp., 819 F.3d 65, 74 (2d Cir. 2019) (holding that “disabled Americans should be able to assert
hostile work environment claims under the ADA. . . and here we so recognize”) (citation omitted).
An ADA hostile work environment claim is governed by the same standards applicable to hostile
work environment claims under the ADEA and Title VII, as described infra pp. 15-16. See id.
(deriving ADA hostile work environment standard from cases addressing Title VII hostile work
environment claims).
Plaintiff claims that Defendant Barry discriminated against him under the ADA when he
refused to provide Plaintiff with a reasonable accommodation for his asthma and when he
terminated Plaintiff due to his asthma. He also avers that Defendant Barry condoned a hostile
work environment. Defendants contend that Plaintiff’s claims fail because (1) Plaintiff’s asthma
is not a disability within the meaning of the ADA, (2) Plaintiff has not plausibly alleged that his
employment was terminated under circumstances giving rise to an inference of discrimination, and

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(3) Plaintiff has not plausibly alleged a hostile work environment. For the reasons discussed
below, the Court finds that Plaintiff has plausibly pled a discrimination claim under the ADA based
on Defendant Barry’s alleged failure to accommodate. However, the Court agrees that Plaintiff’s
claims fail to the extent that they are premised on theories of discriminatory termination and hostile
work environment.
a. Disability Under the ADA
The ADA defines disability as “(A) a physical or mental impairment that substantially
limits one or more of the major life activities of [an] individual; or (B) a record of such an
impairment; or (C) being regarded as having such an impairment.” 5 42 U.S.C. § 1201(2). Plaintiff
attempts to establish his disability under prong (A).
Merely having an impairment is not sufficient to trigger the ADA’s protections. The
statutory definition is not satisfied unless a plaintiff also establishes that the impairment affects
activity that constitutes “major life activity” and “substantially limits” the identified major life
activity “compared to most people in the general population,” 29 C.F.R. § 1630.2(j)(10(ii). See
Jacques v. DiMarzio, 386 F.3d 192, 201 (2d Cir. 2004). “An impairment that is episodic or in
remission is a disability if it would substantially limit a major life activity when active.” 42 U.S.C.
§ 1201(4)(D).
In the instant case, Plaintiff’s asthma qualifies as a physical impairment under the ADA.
See Nugent v. Rogosin Inst., 105 F. Supp. 2d 106, 112 (E.D.N.Y. 2000) (observing that “there can
be no dispute that asthma is a physical impairment as defined by the ADA, since it is a
physiological disorder or condition which affects the respiratory system, one of the bodily systems

Category (C) does not apply to reasonable accommodation claims, because an individual who is merely “regarded
as disabled” is not entitled to a reasonable accommodation. See Brantman v. Fortistar Capital, Inc., No. 15-CV4774(NSR), 2017 WL 3172864, at *8 n.8 (S.D.N.Y. July 22, 2017).

5

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listed in the statute”) (citing 29 C.F.R. § 1630.2(h)(1)). Plaintiff alleges, in effect, that his asthma
impairs his ability to work and to breathe, both of which are explicitly listed in the regulatory
definition of “major life activities,” see 29 C.F.R. § 1630.2(i). Thus, the only inquiry for the Court
is whether Plaintiff plausibly states that his asthma substantially limits either of these two major
life activities.
Whether a plaintiff with asthma is substantially limited in his ability to work or to breathe
is a fact specific question. See Burke v. Niagara Mohawk Power Corp., 142 Fed. App’x 527, 529
(2d Cir. 2005) (noting that “asthma does not invariably impair a major life activity”); Gorbea v.
Verizon N.Y., Inc., No. 11–CV–3758 (KAM)(LB), 2014 WL 917198, at *8 (E.D.N.Y. March 10,
2014) (plaintiff whose testimony indicated that she could perform all regular life activities on a
daily basis without any issues connected to her asthma was not disabled due to asthma under
ADA); Hendler v. Intelecom USA, Inc., 963 F. Supp. 200, 207 (E.D.N.Y. 1997) (“Because one
plaintiff with asthma is substantially limited in the major life activity of breathing does not mean
that every plaintiff with asthma has a qualifying disability under the ADA.”).

To plead a

substantial limitation on the activity of working, a plaintiff must show that he is “significantly
restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes
as compared to the average person having comparable training, skills and abilities.” 29 C.F.R. §
1630.2(j)(3)(i). A plaintiff’s inability to perform a single job at a single, particular location, does
not constitute a substantial limitation to the major life activity of working. See Murphy v. United
Parcel Serv., Inc., 527 U.S. 516, 523 (1999); Muller v. Costello, 187 F.3d 298, 313 (2d Cir. 1999);
Heilweil v. Mount Sinai Hosp., 32 F. 3d 718, 723 (2d Cir. 1994). 6 Here, Plaintiff fails to plausibly

Although Heilweil involved a claim under the Rehabilitation Act, 29 U.S.C. §§ 701-796, its analysis as to this issue
has been applied to ADA claims. See, e.g., Muller v. Costello, 187 F.3d 298, 314 (2d Cir. 1999); Hendler v. Intelecom
USA, Inc., 963 F. Supp. 200, 207 (E.D.N.Y. 1997).
6

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allege that his asthma substantially limited his ability to work, since he concedes that it only
prevents him from working in a particular location: the stables.
Whether Plaintiff plausibly alleges that his asthma substantially limits his ability to breathe,
on the other hand, is a closer question. Plaintiff states that his asthma, although apparently induced
and aggravated by the stables, affects him significantly even outside of the stables. He states that
his asthma has resulted in medical emergencies including three hospitalizations over a three-month
period in 2015. While Plaintiff does not specifically describe any such extreme emergencies after
March of 2015, he states that as of July of 2017, when Plaintiff applied for leave under the FMLA,
“his breathing and asthma condition progressively was worsening.” (FAC ¶ 46.) Moreover,
although Plaintiff concedes that his condition could worsen based on his degree of exposure to
environmental factors, including cigarette smoke, cold air, and the stables, he does not suggest that
he was unaffected by his asthma outside of work. For example, nothing in the FAC indicates that
he was able to have a normal, active lifestyle outside of work. See Muller, 187 F.3d at 314
(breathing not sufficiently impaired to allege that asthma was a disability where plaintiff was
physically active outside work, “participated in many sports and worked as a member of the
military reserves”); Heilweil, 32 F.3d at 723 (breathing not sufficiently impaired where asthmatic
plaintiff was not barred from exercising). 7
Viewing the facts alleged in the FAC in the light most favorable to Plaintiff, as the Court
must on a motion to dismiss, Plaintiff adequately pleads that his asthma substantially affects his

The Court notes that Muller and Heilweil, in drawing their conclusions that the plaintiffs were not disabled, both
considered the fact that the plaintiffs’ use of asthma medication substantially mitigated their symptoms.
Consideration of such a factor is no longer permissible after Congress enacted the ADA Amendments Act (the
“ADAAA”), which went into effect on January 1, 2009. See ADA Amendments Act of 2008, Pub. L. No. 110-325, 122
Stat. 3553 (Sept. 25, 2008) (adding language prohibiting the consideration of the ameliorative effects of mitigating
measures such as medication or reasonable accommodations in determining whether an impairment substantially
limits a major life activity).
7

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ability to breathe and qualifies as a disability under the ADA. Plaintiff states that he could continue
to perform his job as a racing inspector if he were allowed a temporary or permanent assignment
to work outside the stalls. Since Plaintiff plausibly alleges that he has a disability, that he requested
reasonable accommodations for his disability from Defendant Barry and others, and that such
accommodations were denied, his ADA discrimination claim survives to the extent that it is based
on Defendant Barry’s failure to reasonably accommodate. 8
b. Discriminatory Termination
In addition to claiming that Defendant Barry failed to provide him with reasonable
accommodations for his asthma, Plaintiff avers that his employment with the NYSGC was
terminated because of his disability. 9 As with discrimination claims under the ADEA, a plaintiff
alleging disability discrimination under the ADA pursuant to a theory that his employer took
adverse employment action against him due to his disability may demonstrate circumstances
giving rise to an inference of discrimination through evidence of overt discriminatory conduct or
disparate treatment.
In his Memorandum of Law in Opposition to Defendants’ Motion to Dismiss the Amended
Complaint (“Plaintiff’s Memorandum”), Plaintiff conflates his discriminatory termination claim
with his retaliation claim, claiming that “retaliation for his accommodation requests (his disability)
was a motivating factor in his termination.” (Pl.’s Mem. 11.) Plaintiff’s disability discrimination
claim is separate and distinct from his disability retaliation claim, even though both are brought

Although they argue that Plaintiff’s asthma is not a disability, Defendants do not dispute that Plaintiff has pled a
failure to provide reasonable accommodation.
9
As the Second Circuit recently ruled, the “but for” causation standard announced in Gross also applies under the
ADA. See Natofsky v. City of New York, 921 F.3d 337, 348 (2d Cir. 2019). As with ADEA discrimination claims, it is
not clear whether that standard is also a pleading standard applicable to a motion to dismiss. In any event, since
the Court determines that Plaintiff fails to state a claim for discriminatory termination under either a “but for”
causation standard or a more relaxed standard, the Court need not address this issue.
8

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pursuant to the ADA. 10 To illustrate, consider a disabled plaintiff who is discharged by his
employer days after filing a complaint about discrimination he has experienced at work based on
his disability. Such a plaintiff pleads discriminatory termination by alleging that he was fired
because he is disabled. He pleads retaliation by alleging that he was fired because of his
engagement in a protected activity, i.e., his filing of a discrimination complaint. Even though there
is only one employment decision at issue, the alleged motivation behind the employer’s decision
in each instance differs. Thus, while Plaintiff may properly allege that his termination constitutes
improper retaliation for, inter alia, his reasonable accommodation requests, he does not state a
claim for disability discrimination based on his protected engagement in such activities. Rather,
Plaintiff is required to plausibly allege that he was terminated because he was an asthmatic.
Turning to the allegations in the FAC, there is little in the circumstances surrounding
Plaintiff’s termination to support an inference that Plaintiff’s termination was due to his disability.
Plaintiff asserts that his supervisors refused to enforce a smoke-free environment around Plaintiff
even though they were aware of Plaintiff’s breathing condition and Plaintiff had told them and
other colleagues that smoking triggered his asthma. Relatedly, Plaintiff states that he was laughed
at or ignored when he complained to his colleagues that their smoking interfered with his breathing,
and that one of his supervisors repeatedly shut the air conditioning in the break room over the
summer weeks in spite of such supervisor’s awareness “that his actions caused [Plaintiff]
discomfort and pain,” (id. ¶ 35.). Plaintiff alleges that he informed Defendant Barry of this
“harassment” on July 17, 2017. (Id. ¶ 32.)
None of these allegations suggest that Plaintiff’s termination on September 30, 2017, was
due to Plaintiff’s status as an asthmatic. Rather, the factual allegations surrounding Plaintiff’s

10

For a discussion of the elements of an ADA retaliation claim, see infra pp. 27-28.

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termination appear to center exclusively around the retaliatory animus arising from Plaintiff’s
application for FMLA leave, his filing of disability discrimination charges with the EEOC, and his
complaints about alleged harassment and requests for accommodation. See Penn v. N.Y. Methodist
Hosp., No. 11-CV-9137(NSR), 2013 WL 5477600, at *13 (S.D.N.Y. Sept. 30, 2013) (dismissing
claim for discriminatory termination where “the factual allegations concerning Plaintiff’s
termination center[ed] exclusively around retaliatory treatment after filing charges with the EEOC
and the [New York City Commission on Human Rights]”)
To the extent that Plaintiff relies on allegations of disparate treatment to plead his ADA
discrimination claim, his claim remains inadequate.

Plaintiff points to Lauren Spencer’s

assignment to ID work, (see FAC ¶ 33), as evidence of disparate treatment, because Spencer “did
not have any breathing, allergy or health issues,” (id.). As the Court has discussed, Plaintiff fails
to provide any details tending to suggest that Spencer was “similarly situated in all material
respects” to Plaintiff. Even if Plaintiff had done so, it is unlikely that Spencer’s assignment to ID
work months before Plaintiff’s termination, without any other evidence of disparate treatment,
would be enough to raise an inference of discrimination with respect to Plaintiff’s termination.
Accordingly, Plaintiff’s ADA discrimination claim is dismissed to the extent that arises out
of his allegations of discriminatory termination.
c. Hostile Work Environment
As the Court has observed, an ADA plaintiff claiming discrimination based on the presence
of a hostile work environment is beholden to the same standards as Title VII and ADEA plaintiffs.
To summarize, in order to prevail on a hostile work environment claim, an ADA plaintiff must
show that “the harassment was sufficiently severe or pervasive to alter the conditions of his
employment and create an abusive working environment,” Fox, 918 F.3d at 74 (brackets omitted)

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(quotation marks omitted) (citing Alfano, 294 F.3d at 373), and was based on the plaintiff’s
disability, see Lewis v. Blackman Plumbing Supply L.L.C., 51 F. Supp. 3d 289 (S.D.N.Y. 2014). 11
He must also demonstrate that “a specific basis exists for imputing the objectionable conduct to
his employer.” Fox, 918 F.3d at 74 (quotation marks omitted) (citing Alfano, 294 F.3d at 373).
The incidents Plaintiff alleges as constituting a hostile work environment are as follows:
(1) one of Plaintiff’s supervisors shut off the air conditioning and hid the remote control on several
occasions during the summer of 2017; (2) Plaintiff’s colleagues smoked in his vicinity and laughed
when he complained to them that it interfered with his breathing, and one colleague vaped indoors;
(3) Plaintiff’s supervisors, including Defendant Wolf, tried to keep him in the horses’ stalls longer
after they had been informed of his breathing problems; and (4) Plaintiff’s colleagues sarcastically
offered Plaintiff cigarettes and invited him to smoke with them. Plaintiff also states that “some of
his co-workers openly began to harass Murtha and joke about his disability,” (FAC ¶ 34), but
Plaintiff does not elaborate on this assertion beyond the foregoing incidents. Plaintiff states that
he complained in writing to a nonparty supervisor about the air conditioning incidents on one
occasion, (id. ¶ 35), that he complained to Defendant Kotarski “and others” about the indoor
vaping, (id. ¶ 37), and that he wrote to Defendant Barry in July of 2017 “about the harassment he
was experiencing,” (id. ¶ 32.). Plaintiff does not state that he ever complained of his colleagues’
cigarette smoking to any of the Defendants.
Plaintiff’s allegations with regard to colleagues jokingly offering him cigarettes and
laughing at his complaints plainly fall short of conduct that could be deemed “harassment,” much
less conduct so extraordinarily severe and pervasive as to create an objectively hostile work
environment. This is particularly so because Plaintiff alleges no other instances where his
The court in Lewis assumed, prior to the Second Circuit’s ruling in Fox, that a hostile work environment claim under
the ADA was cognizable.

11

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colleagues made comments implicitly directed at his disability, and does not refer to a single
incident where a colleague or supervisor explicitly referred to his asthma or breathing difficulties
in any manner. Plaintiff’s claims with regard to the air conditioning are similarly lacking in
severity or pervasiveness, occurring as they did on only a handful of occasions over the last
summer of Plaintiff’s employment. Even if the air conditioning incidents constituted severe and
pervasive behavior, there are no facts in the FAC indicating that the supervisor who allegedly shut
off the air conditioning did so with the intention of aggravating Plaintiff’s asthma.
Plaintiff’s claims with regard to his colleagues’ smoking near him and his supervisors’
assigning him to longer periods of time in the stalls also fail to state a claim for hostile work
environment. Plaintiff attempts to characterize the incidents of smoking as “severe physical
incidents of harassment that subjectively, objectively, and abusively interfered with his job
performance,” (Pl.’s Mem. 16), relying on cases involving significantly more severe conduct,
including threats of assault and sexual violence. See, e.g., Kaytor v. Elec. Boat Corp., 609 F.3d
537, 549 (2d Cir. 2010) (sexual comments and threats of severe violence); Gorzynski, 596 F.3d at
102-03 (multiple sexual comments and defendant grabbed female employees on multiple
occasions). However, Plaintiff’s assertions are belied by the absence of any allegation in the FAC
that smoking interfered with his ability to do his job in a tangible way, or that it ever produced a
severe allergic reaction in Plaintiff. Moreover, the fact that some unnamed colleagues laughed at
Plaintiff when he complained about their smoking around him, without more, does not give rise to
a plausible inference that their smoking was part of a campaign to harass Plaintiff on account of
his asthma. As to the incidents of cigarette smoking in particular, even if such incidents did
constitute harassment, Plaintiff does not state that he notified anyone about them so as to provide
a basis for imputing them to Defendant Barry.

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That Plaintiff’s supervisors assigned him “significantly more time inside the stalls than any
of his co-workers,” (FAC ¶ 27), likewise does not indicate a hostile work environment. As Plaintiff
concedes, working in the stalls and taking urine samples from the horses was part of his job
description. (Id. ¶ 13.) Thus, it was well within the range of activities that an employer such as
Wolf could reasonably require Plaintiff to do. See Agostinello v. Great Neck Union Free Sch.
Dist., No. CV05-5838WDW, 2009 238865, at *17 (E.D.N.Y. Feb. 2, 2009). As to Plaintiff’s
assertion that Wolf insisted he stay longer with the horses in the stalls “when he told her that he
was having breathing issues (a full-blown asthma attack),” (FAC ¶ 28), even if the Court were to
find such an incident to be sufficiently severe and based on Wolf’s animus against Plaintiff due to
his asthma, Plaintiff does not indicate that it occurred on multiple occasions, as would be necessary
to plead that it constituted pervasive harassment.
With respect to Plaintiff’s allegations related to his being assigned more time in the stalls
generally, it appears that Plaintiff is invoking Defendants’ failure to grant him reasonable
accommodation as evidence of a hostile environment. However, a defendant’s failure to provide
a reasonable accommodation does not in itself constitute evidence of a parallel claim for
discriminatory termination or hostile work environment. See Berger v. New York City Police
Dep’t, 304 F. Supp. 3d 360, 368 (S.D.N.Y. 2018).
For the foregoing reasons, Plaintiff’s ADA hostile work environment claim is dismissed.
III.

Plaintiff’s Retaliation Claims
In order to state a claim for retaliation under the ADEA or ADA, as under Title VII, a

plaintiff must plausibly allege that “1) the employee engaged in a protected activity; 2) the
employer was aware of that activity; 3) the employee suffered an adverse employment action; and
4) there was a causal connection between the protected activity and the adverse employment

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action.” Dickens v. Hudson Sheraton Corp., LLC, 167 F. Supp. 3d 499, 522 (S.D.N.Y. 2016)
(quotation marks omitted) (citing Blanco v. Brogan, 620 F. Supp. 2d 546, 553 (S.D.N.Y. 2009))
(Title VII and ADEA); see Muller, 187 F.3d at 311 (1999) (ADA).
With respect to the fourth element,
Proof of causal connection can be established indirectly by showing that the
protected activity was followed closely by discriminatory treatment . . . or through
other evidence such as disparate treatment of fellow employees who engaged in
similar conduct, or directly through evidence of retaliatory animus directed against
a plaintiff by the defendant.
De Cintio v. Westchester Cnty. Med. Ctr., 821 F.2d 111, 116 (2d Cir. 1987) (internal citations
omitted). The Second Circuit “has not drawn a bright line to define the outer limits beyond which
a temporal relationship is too attenuated to establish a causal relationship between the exercise of
a federal constitutional right and an allegedly retaliatory action.” Gorman-Bakos v. Cornell Coop.
Extension, 252 F.3d 545, 554 (2d Cir. 2001).
Plaintiff alleges that Defendant Barry, in his official capacity, retaliated against him after
he filed his EEOC Charge, in which Plaintiff stated that he was discriminated against on the basis
of his age and disability, by terminating Plaintiff’s employment. Plaintiff’s argument is premised
on Defendants’ purported receipt of an EEOC notice of charge (the “Notice of Charge”) explicitly
identifying age and disability as the causes of employment discrimination alleged by Plaintiff. For
purposes of Plaintiff’s retaliation claims, he engaged in protected activity when he filed the EEOC
Charge. 12 See Monterroso v. Sullivan & Cromwell, LLP, 591 F. Supp. 2d 567, 583 (S.D.N.Y.
2008); Bush v. Fordham Univ., 452 F. Supp. 2d 394, 416 (S.D.N.Y. 2006); Senese v. Longwood

The FAC alleges other instances of arguably protected activity undertaken by the Plaintiff prior to his discharge,
including his applications to Defendant Barry and others for accommodations for his asthma and complaints about
other employees’ behavior insofar as it affected Plaintiff’s asthma. Since Defendants do not move to dismiss the
FAC to the extent it states a claim for retaliation under the ADA based on those activities, the Court does not address
them here.
12

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Central Sch. Dist., 330 F. Supp. 3d 745, 774 (E.D.N.Y. 2018). The Notice of Charge was allegedly
sent to Defendant NYSGC on September 18, 2019. (FAC ¶ 50.) Plaintiff alleges that Defendant
Barry would have been informed of the charge by virtue of his position as Director of Racing
Officials. (Id.) Plaintiff was told to stop coming to work four days later and was fired one week
after that. (Id. ¶¶ 51, 54.)
Defendants do not dispute that the temporal relationship between Defendant Barry’s
alleged notification of Plaintiff’s protected activity and Plaintiff’s discharge is sufficiently close
to plead a causal connection between the two events. Instead, Defendants argue that Plaintiff fails
to state a retaliation claim based on the EEOC Charge because Plaintiff cannot allege that anyone
at the NYSGC, including Defendant Barry, had notice of the charge during Plaintiff’s employment.
Defendants’ argument is based on documents attached to the Declaration of Noam Lerer in support
of Defendants’ Motion to Dismiss (the “Lerer Declaration.”). (Lerer Decl. (ECF No. 25) Ex. A.)
These documents consist of materials from Plaintiff’s EEOC file, including Plaintiff’s EEOC
Intake Questionnaire, the EEOC’s right-to-sue letter addressed to Plaintiff, and the Notice of
Charge addressed to “Yonkers Racing Corporation.” (Id.)
As a threshold matter, the Court must determine whether it may properly consider the
foregoing materials, which are not appended to the FAC, without converting the instant motion
into a motion for summary judgment. Defendants contend that the Court may do so because the
documents in question are incorporated by reference in the FAC. (Defs.’ Mem. 5 n.4.) Plaintiff
disagrees, but does not cite to any authority in support of his position. (Pl.’s Mem. 19.) Plaintiff
does not dispute the authenticity of the EEOC documents.
For a document to be incorporated by reference, the complaint must make a “clear, definite,
and substantial reference” to it. N.Y. Dist. Council of Carpenters Pension Fund v. Forde, 939 F.

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Supp. 2d 268, 277 (S.D.N.Y. 2013). “Mere discussion or limited quotation of a document in a
complaint” does not qualify as incorporation. DeMasi v. Benefico, 567 F. Supp. 2d 449, 453
(S.D.N.Y. 2008) (internal quotations omitted).
Here, the FAC alleges that Plaintiff filed a “Charge of Discrimination with the EEOC by
completing an Intake Questionnaire for the EEOC,” (FAC ¶ 50), received a letter from the EEOC
stating that it had notified Plaintiff’s employer that Plaintiff filed a charge of discrimination, (id.),
and received a “Notice of Right to Sue from the EEOC,” (id. ¶ 5). “‘Courts in this Circuit have
repeatedly held that when EEOC charges are expressly referred to in the pleading, they may be
considered incorporated by reference,’ and thus may be considered when deciding a motion to
dismiss.” Taylor v. City of New York, 207 F. Supp. 3d 293, 299 (S.D.N.Y. 2016) (quoting
Muhammad v. New York City Transit Auth., 450 F. Supp. 2d 198, 204 (E.D.N.Y. 2006); see, e.g.,
Segal v. City Univ. of N.Y., 18-CV-4444 (AMD), 2019 WL 2372979, at *1 n.2 (E.D.N.Y. June 4,
2019); Sternkopf v. White Plains Hosp., No. 14–CV–4076 (CS), 2015 WL 5692183, at *4
(S.D.N.Y. Sept. 25, 2015) . Moreover, a Court may take judicial notice of EEOC charges,
including notices of charge and right-to-sue notices, because they are public records.

See

Muhammad, 450 F. Supp. 2d at 204-05 (“[P]laintiff’s EEOC charge and the agency’s
determination are both public records, of which this Court may take judicial notice.”). Because
the Court finds that the EEOC Intake Questionnaire, right-to-sue letter, and Notice of Charge are
incorporated by reference in the FAC and are public records of which the Court can take judicial
notice, the Court will consider them without converting Defendants’ argument into a motion for
summary judgment.
The Notice of Charge is addressed to “Yonkers Racing Corporation, Attn: Director of
Human Resources” at “810 Yonkers Avenue, Yonkers, NY 10704.” (Lerer Decl. Ex. A.) In

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Plaintiff’s EEOC Intake Questionnaire, Plaintiff listed his employer as “NYS Gaming Commission
Yonkers Raceway” and provided the same address as listed on the Notice of Charge. (Id.) A letter
from the EEOC to Plaintiff, attached to the FAC, lists “NYS Gaming Commission” as the
“respondent” in the file name and states that the EEOC “notified the employer that [Plaintiff] filed
a charge.” (FAC Ex. A.) Defendants’ argument, in essence, is that the erroneous listing of
“Yonkers Racing Corporation,” rather than the NYSGC, as the addressee on the top of the Notice
of Charge defeats any inference that the NYSGC or Defendant Barry actually received notice of
the charge. The Court disagrees. A plaintiff in an employment discrimination action is not
required to provide proof of its employers’ receipt of an EEOC charge for his retaliation claim to
survive a motion to dismiss. Indeed, a contrary requirement would place an undue burden on
plaintiffs, who are highly unlikely to have access to such proof prior to discovery. On a motion to
dismiss, it is sufficient that Plaintiff has alleged that the Notice of Charge was mailed to his
workplace, that Defendant Barry would receive notice of such occurrences by virtue of his position
of authority within the NYSGC, and that adverse employment action was taken against him mere
days later, without any explanation. See Moran v. Premier Educ. Group, LP, 599 F. Supp. 2d 263,
278 (D. Conn. 2009) (defendant’s termination of plaintiff’s employment less than a week after
plaintiff’s doctor sent letter requesting reasonable accommodation was sufficient to plead a causal
connection between protected activity and alleged retaliation). Accordingly, Plaintiff’s ADEA
retaliation and ADA retaliation claims are well-pled to the extent they rely on Plaintiff’s filing of
the EEOC Charge as the alleged impetus for his termination.

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IV.

Plaintiff’s Age and Disability Discrimination and Retaliation Claims Under the
NYSHRL
The NYSHRL makes it unlawful for an employer to terminate or discriminate against an

individual in compensation or in terms, conditions or privileges of employment because of such
individual’s age or disability, among other characteristics. N.Y. Exec. Law § 296(1)(a). Age
discrimination claims under the NYSHRL are analyzed identically to claims under the ADEA.
See, e.g., Leibowitz v. Cornell Univ., 584 F.3d 487, 498 n.1 (2d Cir. 2009); Abrahamson v. Board
of Educ. of Wappingers Falls Cent. School Dist., 374 F.3d 66, 70 n.2 (2d Cir. 2004); Waters v.
General Bd. of Global Ministries, 769 F. Supp. 2d 545, 556-57 (S.D.N.Y. 2011); Saenger v.
Montefiore Med. Ctr., 706 F. Supp. 2d 494, 505 (S.D.N.Y. 2010). Since the Plaintiff does not state
a discrimination claim under the ADEA, his age discrimination claim under the NYSHRL likewise
fails.
As to Plaintiff’s NYSHRL disability discrimination claim, “the scope of the disability
discrimination provisions of [the NYSHRL] are similar to those of the [ADA] and § 504 of the
Rehabilitation Act, a precursor to the ADA.” Camarillo v. Carrols Corp., 518 F.3d 153, 158 (2d
Cir. 2008) (quotation marks omitted). Accordingly, the legal standards for discrimination claims
under the ADA and the NYSHRL are essentially the same, except to the extent that the NYSHRL
has been interpreted to endorse a broader definition of “disability.” See Rodal v. Anesthesia Group
of Onondaga, P.C., 369 F.3d 113, 117 n.1 (2d Cir. 2004). Since the Court has already determined
that Plaintiff plausibly alleges a disability under the more stringent ADA standard, it need not
address the issue again here. Similarly, for the same reasons Plaintiff fails to state a disability
discrimination claim under the ADA based on his allegations of discriminatory termination and
hostile work environment, his parallel claims under the NYSHRL fail.

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The NYSHRL also prohibits retaliation against any person because he has opposed a
practice forbidden by the NYSHRL. N.Y. Exec. Law § 296(7). A prima facie case of retaliation
under the NYSHRL requires the same elements as retaliation claims under federal employment
anti-discrimination laws including Title VII, the ADEA, and the ADA, as discussed herein. See
Malena v. Victoria’s Secret Direct, LLC, 886 F. Supp. 2d 349, 361-62 (S.D.N.Y. 2012).
An individual is subject to liability under the NYSHRL (1) if he qualifies as an “employer”
or (2) if he aided and abetted the unlawful discriminatory acts of others. N.Y. Exec. Law § 296(1),
(6); see, e.g., Gorman v. Covidien, LLC, 146 F. Supp. 3d 509, 521-22 (S.D.N.Y. 2015);
E.E.O.C. v. Suffolk Laundry Servs., Inc., 48 F. Supp. 3d 497, 523 (E.D.N.Y. 2014).
Defendants argue that Barry, Wolf, and Kotarski cannot be held individually liable under
the NYSHRL on several grounds.

First, Defendants contend that none of the individual

Defendants are “employers” under the NYSHRL. Second, assuming that their initial argument is
successful, Defendants aver that the individual Defendants may not be sued as aiders and abettors
because their employer, the NYSGC, is immune from suit under the Eleventh Amendment. Third,
Defendants argue that Plaintiff does not plausibly allege that any of the individual Defendants
aided and abetted any discriminatory conduct against him. Finally, Defendants urge the Court to
dismiss Plaintiff’s claims for injunctive relief and punitive damages under the NYSHRL.
The Court finds that Plaintiff has sufficiently pled that each of the individual Defendants
can be held liable for failure to accommodate under the NYSHRL, and that Defendants Barry and
Wolf can be held liable for retaliation. However, Plaintiff does not state a claim against Defendant
Kotarski for retaliation. Further, the Court agrees with Defendants that Plaintiff’s claims for
injunctive relief and punitive damages must be dismissed as a matter of law.

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a. Employer Liability
An individual qualifies as an “employer” under the NYSHRL when that individual has an
ownership interest in the relevant organization or the “power to do more than carry out personnel
decisions made by others.” Patrowich v. Chemical Bank, 63 N.Y.2d 541, 542 (1984). Whether a
non-owner individual has the requisite power to be considered an employer is determined based
on “common-law principles,” with greatest emphasis on the alleged employer’s power “to order
and control” the employee in his or her performance of work. Griffin v. Sirva, 29 N.Y.3d 174, 186
(2017) (quotation marks omitted). In assessing the matter of control, courts have asked “‘whether
the alleged employer (1) had the power to hire and fire employees, (2) supervised and controlled
employee work schedules or conditions of employment, (3) determined the rate and method of
payment, and (4) maintained employment records.’” Griffin v. Sirva Inc., 835 F.3d 283, 291-92
(2d Cir. 2016) (quoting Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999)).
The facts in the FAC, accepted as true, are sufficient to support a claim that Barry had the
requisite control over Plaintiff to be considered an “employer” for purposes of the NYSHRL.
Although Barry did not hold an ownership interest in the NYSGC, he was its “Director of Racing
Officials,” who interviewed Plaintiff and offered Plaintiff employment with the NYSGC
immediately after the interview “without consulting with anyone else as to Plaintiff’s hire.” (FAC
¶ 9.) Plaintiff alleges that while he was working for the NYSGC, Barry “had the power to fire
employees and did fire employees,” and that “Barry alone hired almost all of the [NYSGC]
employees, including Kotarski and Wolf.” (Id.) While the Court agrees with Defendants that
Barry’s asking Plaintiff to complete a job application after purportedly hiring him, (Id. ¶ 9), cuts
against Plaintiff’s argument that Barry was his employer, Plaintiff has alleged sufficient facts on
the whole to plausibly plead that Barry had the power to hire and fire employees and exercised

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control over Plaintiff through his management of Plaintiff’s supervisors. That further discovery
may reveal otherwise is not relevant to the Court’s analysis on a motion to dismiss. Accordingly,
Plaintiff has adequately pled that Barry is his employer for purposes of the NYSHRL.
Under the NYSHRL, an employer may be liable for an employee’s discriminatory conduct
only if the employer “became a party to it by encouraging, condoning, or approving
it.” Brown v. City of New York, No. 11 Civ. 2915 (PAE), 2013 WL 3789091, at *18 (S.D.N.Y.
July 19, 2013) (internal quotation marks omitted); see also Doe v. State, 89 A.D.3d 787, 788 (N.Y.
App. Div. 2011) (“It is only after an employer knows or should have known of improper
discriminatory conduct that it can ‘undertake or fail to undertake action which may be construed
as condoning the improper conduct.’” (citations omitted)). Plaintiff claims he informed Defendant
Barry by letter “about his need for a reasonable accommodation,” but Barry “took no action in
response to Plaintiff’s letter.” (FAC ¶ 32.) He further alleges that Defendant Kotarski and others
told him Barry was “openly furious and ‘fuming with anger’” when Plaintiff applied for FMLA
leave, (id. ¶ 47), and that, as Director of Racing Officials, Barry would have been informed of
Plaintiff’s EEOC Charge when the Notice of Charge was delivered, (id. ¶ 50.) In light of the
foregoing, Plaintiff’s allegations are sufficient to state claims against Barry as his employer under
the NYSHRL based on Barry’s failure to accommodate Plaintiff’s disability and retaliatory
discharge of Plaintiff.
b. Accessorial Liability
An individual may be liable for aiding and abetting unlawful discriminatory acts if the
individual “actually participates in the conduct giving rise to a discrimination claim,” even though
that individual lacked the authority to hire or fire the plaintiff. Feingold v. New York, 366 F.3d

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138, 158 (2d Cir. 2004) (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995)); see
also Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 107 n.10 (2d Cir. 2011).
There is a disagreement among district courts in this Circuit over whether an individual
can be held liable for aiding and abetting his own conduct giving rise to a claim under the
NYSHRL. See Canosa v. Ziff, No. 18 Civ. 4115 (PAE), 2019 WL 498865, at *9 n.13 (S.D.N.Y.
Jan. 28, 2019) (comparing cases); Gorman v. Covidien, LLC, 146 F. Supp. 3d 509, 522 (S.D.N.Y.
2015) (comparing cases). For example, in Johnson v. Cnty. of Nassau, 82 F. Supp. 3d 533
(E.D.N.Y. 2015), the court held that a plaintiff who brings a claim under the NYSHRL based on
his employer’s having encouraged condoned, or approved the discriminatory conduct of a sole
employee, may rely on the same discriminatory conduct to prove, “perhaps circularly,” individual
liability under the aiding and abetting provision of the NYSHRL. Johnson, 82 F. Supp. 3d at 535
(brackets omitted) (quotations omitted); see also Setty v. Fitness, No. 17-CV-06504 (NGG)
(SMG), 2018 WL 8415414, at *8 (E.D.N.Y. Dec. 18, 2018); Wenchun Zheng v. Gen. Elec. Co.,
No. 1:15-CV-1232 (TJM/CFH), 2016 WL 10859373, at *4-*5 (N.D.N.Y. Jan. 12, 2016); Boston
v. Taconic Mgmt., No. 12–CV–4077 (ER), 2014 WL 4184751, at *2 n. 9 (S.D.N.Y. Aug. 22, 2014);
Conklin v. County of Suffolk, 859 F. Supp. 2d 415, 436 (E.D.N.Y. 2012); Mahar v. Alliance
Mortgage Banking Corp., 650 F. Supp. 2d 249, 262 (E.D.N.Y. 2009); Lewis v. Triborough Bridge
and Tunnel Auth., No. 97 Civ. 0607 PKL, 2001 WL 46986, at *2 (S.D.N.Y. Jan. 18, 2001).
Conversely, in Bliss v. MXK Restaurant Corp., 220 F. Supp. 3d 419 (S.D.N.Y. 2016), the court
stated that “as a matter of law as well as logic, ‘an individual cannot aid or abet his or her own
violation of the [NYSHRL].’” Bliss, 220 F. Supp. 3d at 426 (quoting Hardwick v. Auriemma, 983
116 A.D.3d 465, 468 (N.Y. App. Div. 2014); see also Malanga v. NYU Langone Med. Ctr., No.
14cv9681, 2015 WL 7019819, at *5 (S.D.N.Y. Nov. 12, 2015); Raneri v. McCarey, 712 F. Supp.

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2d 271, 282 (S.D.N.Y. 2010); Hicks v. IBM, 44 F. Supp. 2d 593 (S.D.N.Y. 1999); Falbaum v.
Pomerantz, 891 F. Supp. 986 (S.D.N.Y. 1995).
Courts that have adopted the line of reasoning set forth in Johnson appear to rely on the
Second Circuit’s expansive proposition in Tomka that an individual may be held liable under the
NYSHRL if he actually participated in conduct giving rise to the claim of discrimination. See
Tomka, 66 F.3d at 1317. In Tomka, plaintiff’s allegations that “each of the individual defendants
assaulted her and thereby created a hostile work environment” was held “sufficient to satisfy [the
NYSHRL’s aiding and abetting provision].” Id. One interpretation of that holding is that, since
each of the employees’ actions imposed liability on their employer, the employees aided and
abetted the employer’s violation of the NYSHRL. Alternatively, the Second Circuit may have
reached its conclusion because each of the employees aided and abetted one another’s violations.
Pursuant to the latter rationale, it would appear that a sole employee whose discriminatory conduct
violated the NYSHRL and rendered his employer vicariously liable could not be liable for aiding
and abetting his own violation. The Second Circuit has not clarified the line of reasoning it relied
on in making its decision.
Here, whether the rationale behind the Second Circuit’s decision in Tomka matches the
first or second of the foregoing interpretations is of little import, because, like the plaintiff in
Tomka, Plaintiff alleges that each of the three individual Defendants separately engaged in conduct
contributing to violations of the NYSHRL. Specifically, Plaintiff avers that Defendant Barry, as
his employer, ignored his requests for reasonable accommodation and sanctioned his termination
after Plaintiff applied for FMLA leave and filed charges with the EEOC. (FAC ¶¶ 32, 50.) He
also avers that he asked Defendant Wolf if he could leave the horses’ stalls due to his asthma, but
that she not only denied his request but also “insisted that he stay longer with the horses in the

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stalls.” (Id. ¶ 28.) Finally, Plaintiff states that he asked Defendant Kotarski to be moved out of
the stalls but that Kotarski sent him to Wolf, Barry, and others, none of who granted Plaintiff’s
request. (Id. ¶ 31.)
Based on these assertions, Plaintiff states a claim for discriminatory failure to provide
reasonable accommodations against Barry, and a claim for aiding and abetting such failure as
against both Wolf and Kotarski. Plaintiff also states a claim sounding in retaliation for his
requesting reasonable accommodations against both Barry and Wolf, and sounding in retaliatory
discharge for his filing of an FMLA application and the EEOC Charge as against Barry. 13
However, Plaintiff fails to plead any facts suggesting that Kotarski aided or abetted any alleged
retaliation against Plaintiff.
c. Claims for Injunctive Relief and Punitive Damages
Defendants correctly argue that Plaintiff’s demands for injunctive relief and punitive
damages under the NYSHRL must be dismissed. “It is well settled that federal courts may not
grant declaratory or injunctive relief against a state agency based on violations of state law.” Bad
Frog Brewery, Inc. v. N.Y. State Liquor Auth., 134 F.3d 87, 93 (2d Cir. 1998). Plaintiff may not
circumvent this prohibition by seeking injunctive relief against state officials in their personal

“Unlike claims of discrimination, which limit what qualifies as an ‘adverse employment action’ to changes in the
terms and conditions of employment, adverse employment actions in the context of a claim of retaliation are much
broader.” Jeffries v. Verizon, No. CV 10–2686(JFB)(AKT), 2012 WL 4344197, at *18 (E.D.N.Y. Aug. 31, 2012) report
and recommendation adopted, No. 10–CV–2686 (JFB)(AKT), 2012 WL 4344188 (E.D.N.Y. Sept. 21, 2012); see
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006) (“The scope of the antiretaliation provision extends
beyond workplace-related or employment-related retaliatory acts and harm.”). The expanded definition of adverse
employment action embraced by White in the context of Title VII retaliation claims applies to retaliation claims under
the ADA and ADEA, as the same standard applies to all three. Thus, “the proper question for a retaliation claim is
‘whether the alleged adverse action to which the plaintiff was subject could well have dissuaded a reasonable
employee in his position from complaining of unlawful discrimination.’” Davis-Garett v. Urban Outfitters, Inc., 921
F.3d 30, 44 (2d Cir. 2019). While the Court has generally confined itself to discussing Plaintiff’s allegations of
retaliatory termination, Plaintiff’s allegations that Defendants forced him to work longer in the stalls after he
requested accommodations for his asthma, (FAC ¶¶ 27-28), may also rise to the level of adverse action for the
purpose of Plaintiff’s retaliation claims, even though they are not adverse for the purpose of Plaintiff’s discrimination
claims. Thus, Defendant Wolf may be liable for retaliation under the NYSHRL.
13

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capacity, since injunctive relief against a state official may only be awarded in an official capacity
suit. Further, the “NYSHRL does not provide for punitive damages.” Weissman v. Dawn Joy
Fashions, Inc., 214 F.3d 224, 235 (2d Cir. 2000) (citing Thoreson v. Penthouse Int’l. Ltd., 80
N.Y.2d 490, 496 (1992)).
V.

Amendment
Defendants seek to preclude Plaintiff from further amending his complaint because

Plaintiff waited to file the FAC until after he was served with Defendants’ initial motion to dismiss.
(See Defendants’ August 27, 2018, Letter to Court (ECF No. 20).) Since Plaintiff has already had
the benefit of amending his claims in response to Defendants’ motion, argue Defendants, “any
further amendment would be both futile and unjustifiably dilatory.” (Defs.’ Mem. 2.)
At this juncture, the Court does not find the relief sought by Defendant to be appropriate.
Courts “should freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15.
Accordingly, Plaintiff may make an application to this Court to further amend the FAC as to those
claims that the Court is dismissing without prejudice on or before October 16, 2019, if he be so
advised.

CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED to the extent that
(1) the FAC’s third and seventh causes of action are dismissed without prejudice in their entirety,
(2) the first and sixth causes of action are dismissed in part without prejudice to the extent they are
premised on Plaintiff’s allegations of discriminatory termination and hostile work environment,
(3) the eighth cause of action is dismissed without prejudice as against Defendant Thom Kotarski,

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and (4) the sixth and eighth causes of action are dismissed without prejudice to the extent that they
seek injunctive relief and punitive damages, and the motion to dismiss is otherwise DENIED.
Plaintiff shall have until October 16, 2019, to seek leave to file a second amended
complaint as to those claims that are dismissed without prejudice. If Plaintiff does not timely seek
leave to further amend, all claims dismissed pursuant to this Opinion and Order will be dismissed
with prejudice, and Defendants shall file answers on or before November 18, 2019. The Clerk of
the Court is respectfully directed to terminate the motion at ECF No. 22.

Dated: September 17, 2019

SO ORDERED:

White Plains, New York
NEt3"GN S. ROMAN
United States District Judge

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