DeAngelo v. Maximus et al

Filing 85

OPINION & ORDER re: 71 MOTION for Summary Judgment filed by Maximus. For the foregoing reasons, Defendant's motion for summary judgment is GRANTED. The Clerk of Court is respectfully directed to terminate the pending motion, (ECF No. 71), enter judgment for Defendant, and close the case. SO ORDERED. (Signed by Judge Cathy Seibel on 8/2/2022) (mml) Transmission to Orders and Judgments Clerk for processing.

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 1 of 60

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------x
DEBORAH DEANGELO,
Plaintiff,
- against -

OPINION & ORDER
No. 19-CV-7957 (CS)

MAXIMUS/NY MEDICAID CHOICE,
Defendant.
-------------------------------------------------------------x
Appearances:
Deborah DeAngelo
Greenfield Park, New York
Pro Se Plaintiff
Kathryn J. Barry
Ryan C. Chapoteau
Jackson Lewis P.C.
Melville, New York
Counsel for Defendant Maximus
Seibel, J.
Before the Court is the motion for summary judgement of Defendant MAXIMUS/NY
Medicaid Choice (“MAXIMUS”). (ECF No. 71.)1 For the following reasons, Defendant’s
motion is GRANTED.
I.

BACKGROUND
This case arises out of the alleged discrimination and retaliation that Plaintiff Deborah

DeAngelo claims to have experienced while employed by MAXIMUS.

1According

Mem.”) at 1.)

to Defendant, its correct name is MAXIMUS, Inc. (ECF No. 73 (“D’s

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 2 of 60

Facts
The following facts are based on Defendant’s Local Civil Rule 56.1 Statement, (ECF No.
74 (“D’s 56.1 Stmt.”)), Plaintiff’s Response to Defendant’s Local Rule 56.1 Statement and
Further Statement of Material Facts in Opposition to the Defendant’s Motion for Summary
Judgment, (ECF No. 81 (“P’s 56.1 Stmt.”)),2 and the supporting materials, and are undisputed
except as noted.3
1.

Plaintiff’s Hiring and Initial Position

On or around April 1, 2007, Defendant MAXIMUS hired Plaintiff Deborah DeAngelo as
a field service customer representative, also referred to as a “Client Service Representative –
Outreach” (“CSRO”). (P’s 56.1 Stmt. ¶¶ 16-17.) Defendant is a government services contractor
that partners with state, federal, and local governments to provide health and human services
programs to a variety of communities. (Id. ¶ 9.) Defendant contracts with the New York
Department of Health (“NYSDOH”) to provide outreach, education, and enrollment services for

Plaintiff’s 56.1 Stmt. responds to Defendant’s 56.1 Stmt. and then concludes by stating
that “[a]dditional material facts, for which there is support in the record, are included in
plaintiff’s attached declaration.” (P’s 56.1 Stmt. at 29.) To the extent Plaintiff intended her
declaration, (ECF No. 83 (“P’s Decl.”)), to be incorporated into her 56.1 Statement and
constitute the counterstatement authorized by Local Rule 56.1, it is improper. The declaration
consists of facts that Plaintiff regards as helpful and undisputed, but Local Rule 56.1 permits
only a counterstatement of “additional material facts as to which it is contended that there exists
a genuine issue to be tried.” Local Civ. R. 56.1(b). “There is no provision for a responsive 56.1
Statement to include additional facts that are not in dispute but that a party opposing summary
judgment simply thinks are important; any additional facts should be confined to material facts in
dispute.” Ostreicher v. Chase Bank USA, N.A., 19-CV-8175, 2020 WL 6809059, at *1 n.1
(S.D.N.Y. Nov. 19, 2020). I have nevertheless considered Plaintiff’s submission.
2

In numerous instances, Plaintiff purports to “partially dispute[]” a statement set forth by
Defendant, but her explanation of the “partial[] dispute” reveals that she does not in fact dispute
Defendant’s statement, but rather wants to provide additional facts or context. (See, e.g., P’s
56.1 Stmt. ¶¶ 62, 66, 120, 126.) In those instances, I regard Defendant’s statement as undisputed
and consider Plaintiff’s additional information if relevant.
3

2

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 3 of 60

NYSDOH’s managed care enrollment program, New York Medicaid Choice (“NYMC”). (Id. ¶¶
9-10.)
The outreach and enrollment services that Plaintiff provided as a CSRO included
“education on managed care options and public health programs; assisting individuals with
enrollment and disenrollment processes; reviewing enrollment forms for accuracy and
completeness; and completing various data entry tasks.” (Id. ¶¶ 18-19.) The job required
computer literacy and proficiency in Microsoft Office, including Excel and Word. (Id.)
Defendant estimates that Plaintiff’s role required her to use a computer keyboard “constantly” –
approximately 67%-100% of the workday, (id. ¶ 20) – but Plaintiff testified that in 2015, 2016,
and 2017, she typed for only 30-35% of her day, at least absent special projects, although the
percentage was higher in 2014, (ECF Nos. 72-3, 72-4 (“P’s Depo.”) at 97:8-98:20). On her
application for Social Security Disability Insurance (“SSDI”) benefits dated September 13, 2018,
Plaintiff stated, “I did a lot of typing for my job.” (ECF No. 72-10 at 7.)4
During the time of Plaintiff’s employment, pursuant to Defendant’s contract with the
NYSDOH, CSROs were assigned to provide enrollment services at local government offices
throughout New York, not from a MAXIMUS office, and were required to be present full-time.
(P’s 56.1 Stmt. ¶¶ 23-24.) Defendant did not have any part-time CSROs. (Id. ¶ 30.) From April
2007 until November 2016, Plaintiff worked at the Sullivan County Department of Social
Services and was the only CSRO and only MAXIMUS employee in the building. (Id. ¶ 26.)

4

Citations to ECF No. 72-10, as well as ECF Nos. 72-5, 72-14, 72-21, 72-22, 72-25, and
83-1 refer to the page numbers generated by the Court’s electronic filing system.

3

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 4 of 60

2.

Plaintiff’s Alleged Disability and Subsequent Requests for
Accommodation
a.

2015

On January 15, 2015, Plaintiff reported that she sustained an injury to her right elbow as a
result of a Sullivan County employee opening a steel bathroom door on her arm. (Id. ¶ 27.) On
or about March 9, 2015, Plaintiff submitted a doctor’s note dated February 25, 2015 that read,
“[L]imit repetitive stress to upper extremity to no more than 2 hours per day. No lifting over 5
pounds. Suggest supervisory or advisory work.” (ECF No. 72-11; P’s 56.1 Stmt. ¶ 28.)
Defendant permitted Plaintiff to work a two-hour-per-day reduced schedule from approximately
March 17 to March 19, 2015, (P’s 56.1 Stmt. ¶ 29), but then determined that Plaintiff could not
continue to work part-time and would have to go on a leave of absence starting March 20, 2015,
because Defendant was required to have a full-time CSRO at Sullivan County during regular
business hours and did not employ part-time CSROs, and because Plaintiff’s doctor said she
could not work full-time, (id. ¶¶ 30-32). Plaintiff thereafter “asked about using the computer cart
from [Sullivan County’s] lobby and mentioned that [she] had purchased a mouse cushion,” but
according to Plaintiff, Lydia Cortez, MAXIMUS’s Manager – Outreach OM, (id. ¶ 12), and
Jennifer Herrera, MAXIMUS’s Manager of Human Capital, (id. ¶ 13), told Plaintiff that she
could not return to work unless she had no restrictions, (P’s Depo. at 111:24-112:10). As of
March 2015, no doctor had told P that she could perform the essential functions of her position
on a full-time basis if she used a computer cart. (Id. at 112:24-113:24.)5
On or about July 31, 2015, while Plaintiff was still on leave, she requested (apparently at
the suggestion of Dr. Sohda) that Defendant conduct an ergonomic assessment of Plaintiff’s

5

Plaintiff testified that Dr. Samir Sohda told her on July 31, 2015 that she would be able
to perform her job on a full-time basis if she used the cart. (P’s Depo. at 113:4-17.)

4

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 5 of 60

workstation. (P’s 56.1 Stmt. ¶ 35; ECF No. 72-13.) Defendant retained Travelers to do so, and
on August 17, 2015, Travelers recommended that Defendant install an ergonomic keyboard tray
at Plaintiff’s workstation and provide Plaintiff with an ergonomic mouse, which Defendant did.
(P’s 56.1 Stmt. ¶ 36; see ECF Nos. 72-1, 72-2 (“Herrera Decl.”) Ex. A-3.) On or around August
4, 2015, Plaintiff notified Defendant that she was cleared to return to work, and she returned on
or about August 17, 2015. (P’s 56.1 Stmt. ¶ 37.)
b.

2016

On or about June 7, 2016, Plaintiff took a leave of absence for elbow surgery. (Id. ¶ 38.)
About three weeks thereafter, on June 29, 2016, Plaintiff submitted a note from her doctor that
stated that she was “unable to use [her] right upper extremity in any work capacity” and therefore
could not perform “repetitive type manners” using that arm. (Herrera Decl. Ex. A-5; P’s 56.1
Stmt. ¶ 39.) Defendant granted Plaintiff a leave of absence until or around September 12, 2016,
when she was cleared to return to work. (P’s 56.1 Stmt. ¶ 40.) Once she returned, Plaintiff
occupied the same role, with the same terms, conditions, and accommodations. (Id. ¶ 41.)
On September 27, 2016, Plaintiff reported that again she was struck on her right
forearm/elbow by the bathroom door at the Sullivan County office. (Id. ¶ 42; ECF No. 72-14 at
3.) Around October 3, Plaintiff submitted a note from her doctor that said she could only return
to “[l]ight duty work with no significant use of right upper extremity. If unavailable, then out of
work until further notice.” (P’s 56.1 Stmt. ¶ 43; Herrera Decl. Ex. A-6.) According to
Defendant, there was no “light duty work” where Plaintiff would have “no significant use of
[her] right upper extremity,” so Defendant provided Plaintiff with a leave of absence starting
October 3, 2016. (P’s 56.1 Stmt. ¶¶ 45-46.) Plaintiff disputes when the leave of absence began,

5

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 6 of 60

stating that Defendant required her to leave the Sullivan County office on September 29, 2016 in
order to get medical care. (P’s 56.1 Stmt. ¶ 46.)6
On October 20, 2016, Herrera – who by then was the Senior Manager of Human Capital
at MAXIMUS, (P’s 56.1 Stmt. ¶ 13) – emailed Plaintiff informing her that Defendant was
“working with Traveler’s [sic] and [her] medical provider to explore if there’s a way to bring
[her] back to work with an accommodation or adjusted restrictions,” (ECF No. 72-15). She also
asked Plaintiff to let her know if she had “any suggestions for how [Defendant could] support
[her] return to work while still adhering to [her] doctor’s restrictions.” (Id.) Plaintiff gave
Defendant a note from her doctor, dated October 24. 2016, that stated, “Patient may return to
work, full duty, as of November 14, 2016[, and is] [t]o remain on light duty status until then.”
(ECF No. 72-16.) On October 31, 2016, Plaintiff met with Herrera and informed her that
Defendant did not have authorization to contact her doctor. (P’s 56.1 Stmt. ¶ 48; see ECF No.
83-1 at 33.) On November 14, 2016, Plaintiff returned to work. (P’s 56.1 Stmt. ¶ 49.)
While Plaintiff was on leave of absence, Sullivan County informed Defendant that the
County would no longer allow Defendant’s employees to work in the Sullivan County office.
(Id. ¶ 50.) Defendant so notified Plaintiff in October 2016 and offered to reassign Plaintiff to
work as a CSRO for Orange County in either Middletown or Goshen. (Id. ¶ 52.) Plaintiff chose
Middletown, but before returning to work on November 14, Plaintiff asked Cortez if she could
instead be reassigned to Ulster County, which Cortez said she would “think about.” (Id. ¶¶ 5253.)
On November 14, 2016, Plaintiff reported to the Middletown office and found that the
keyboard tray that had been installed at her workstation at the Sullivan County office was not

6

This dispute is immaterial.

6

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 7 of 60

installed at her workstation in Middletown, but she understood that Defendant did not own the
equipment at the Middletown office. (Id. ¶¶ 54-55.) Plaintiff also had concerns about the
office’s location on the top floor. (Id. ¶ 56.) On November 21, 2016, Defendant transferred
Plaintiff to the Ulster County office, as she had requested, (id. ¶ 53), and installed her keyboard
tray at her new workstation, (id. ¶ 57.) Although Defendant provided Plaintiff with an
ergonomic chair in Ulster County, Plaintiff requested that Defendant deliver the chair that she
had used at the Sullivan County office, which Defendant did, after which Plaintiff had no
concerns with her new workstation. (Id. ¶¶ 58-60.)
Unlike Sullivan County, Ulster County had multiple CSROs assigned to its office, and
they were sometimes required to cover other counties if the lone CSR for that county was out.
(Id. ¶¶ 61-63.) Upon learning that she could be required to provide site coverage to the
Departments of Social Services in Albany, Columbia, and Greene counties, Plaintiff emailed
Cortez on November 29, 2016, “requesting an opportunity to meet with [her] to discuss [her]
expectations for [Plaintiff] to cover other sites should they not meet [her] ergonomic
requirements.” (Id. ¶¶ 64-66; ECF No. 72-17.) She met with Cortez and Herrera on December
2, 2016, and they agreed that Plaintiff would shadow each of the sites at which she might have to
provide coverage to in order to “find out how they work their site” and identify any issues with
the site. (P’s 56.1 Stmt. ¶ 67.) It was further agreed that Plaintiff would not be assigned site
coverage until after she shadowed each site and discussed the results with Herrera. (Id. ¶ 68.)
c.

2017

Around January 24, 2017, Herrera provided Plaintiff with a note for Plaintiff’s medical
provider, in which Herrera explained that Defendant could not install a keyboard tray or a
Tempur-Pedic chair at every site that Plaintiff may cover and asked for “suggestions on possible
alternatives, such as footrests and back supports,” along with “[a]ny additional guidance or
7

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 8 of 60

accommodation suggestions.” (Id. ¶ 70; ECF No. 72-19.) Plaintiff does not remember whether
she provided this note to her medical provider. (P’s 56.1 Stmt. ¶ 71.)
Between December 2016 and March or April 2017, Plaintiff shadowed individuals at the
Albany, Columbia, and Greene offices. (Id. ¶ 69.) She was not required to use a computer while
shadowing. (Id. ¶ 67.) Thereafter Plaintiff spoke to Cortez and Herrera to discuss the setup at
each office and any issues Plaintiff may have with them. (Id. ¶ 69.) As it turned out, Plaintiff
was never required to provide site coverage. (Id. ¶ 72.)
Around May 24, 2017, Plaintiff submitted a note from her physician that stated, “No
repetitive stress to right upper extremity. NO lifting. Suggest supervisory or advisory until
reassessed at next appointment on 6/28/17.” (Id. ¶ 73; Herrera Decl. Ex. A-8.) Later that day,
Plaintiff spoke with Cortez and Herrera over the phone and Herrera suggested Plaintiff consider
using a left-handed keyboard so she could continue working. (P’s 56.1 Stmt. ¶¶ 74-75.)
According to Plaintiff, Herrera “was enthusiastic about researching the potential of [Plaintiff]
staying on with this keyboard, and that it could be ordered within 24 hours.” (Id. ¶ 74; P’s Depo.
at 174:14-175:4.) Herrera requested that Plaintiff submit a note from her medical provider
stating that Plaintiff could return to work if she used a left-handed keyboard. (P’s 56.1 Stmt. ¶
76.) In the meantime, based on the May 24, 2017 doctor’s note, Defendant granted Plaintiff a
leave of absence, effective that day. (Id. ¶ 77.)
On June 8, 2017, Plaintiff submitted another doctor’s note, which stated, “Please allow
Deborah Deangelo to use a left handed keyboard at her request in order to not inflict anymore
damage to her previous injury. She is scheduled for surgery on July 18, 2017.” (Id. ¶ 78; ECF
No. 72-20.) On June 14, 2017, Herrera and Plaintiff discussed which type of left-handed
keyboard Plaintiff would prefer, (P’s 56.1 Stmt. ¶ 79), and a left-handed keyboard was in place

8

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 9 of 60

by the time Plaintiff returned to work on July 6 or 7, 2017, (id. ¶ 80; P’s Depo. at 180:5-10).
Plaintiff then requested a different left-handed keyboard because she was having difficulties
using the one that Defendant had obtained, (id. ¶ 81), and Defendant provided the new one on or
about July 26, 2017, (id. ¶ 82).
Around August 15, 2017, Defendant granted Plaintiff another leave of absence for a
second surgery on her elbow. (Id. ¶ 83.) Plaintiff then submitted a doctor’s note dated October
23, 2017, that stated Plaintiff should remain out of work until “re-eval” on November 27, 2017.
(Id. ¶ 84; Herrera Decl. Ex. A-9.)7 Plaintiff then submitted another doctor’s note, dated
November 27, 2017, that stated Plaintiff should remain out of work until further notice. (P’s
56.1 Stmt. ¶ 85; Herrera Decl. Ex. A-10.) Defendant then continued Plaintiff’s leave of absence.
(P’s 56.1 Stmt. ¶ 86.)
d.

2018

Around January 24, 2018, Plaintiff submitted a doctor’s note that stated that Plaintiff
could return to work without physical restrictions but only for 17.5 hours per week. (Id. ¶ 87;
Herrera Decl. Ex. A-11.) On January 29, Herrera connected with Plaintiff to discuss her doctor’s
note and potential accommodations. (P’s 56.1 Stmt. ¶ 88.) Plaintiff told Herrera that she could
work up to 20 hours a week, and the two discussed the option of Plaintiff working in the CSR –
Call Center (“CSRCC”) position. (Id. ¶¶ 88, 90.) This position required answering calls from
the public, prospective Medicaid enrollees, and individuals assisting enrollees; tracking and
documenting inquires; facilitating requests for materials; transferring or referring calls to

Defendant’s 56.1 Statement states that the October 23, 2017 doctor’s note stated
“Plaintiff was to remain out of work until November 17, 2017,” (D’s 56.1 Stmt. ¶ 84), but the
note itself states “[Plaintiff] is to remain out of work until November 27, 2017,” (Herrera Decl.
Ex. A-9).
7

9

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 10 of 60

appropriate entities; and escalating calls as necessary. (P’s 56.1 Stmt. ¶ 91.) The position
required typing but also allowed for part-time work and work from home. (Id. ¶¶ 90-91.)
Around February 5, 2018, Herrera sent Plaintiff a letter, dated February 4, which stated:
In response to your request for a part-time schedule, the Outreach Department
does not have part-time positions, and we are not able to create a part-time
position in the department. As an alternative, we briefly discussed the possibility
of working from home as a telecommuter for the NYMC Call Center in a CSR Call Center position . . . If you would like to discuss this possibility, I would be
happy to provide more information.
(Id. ¶ 92.) At that time, Defendant required all employees who worked remotely to enter into a
telecommuter agreement, so Herrera sent Plaintiff a copy of this agreement on February 5. (Id.
¶¶ 93-94.) On February 6, Plaintiff provided a new note that stated she could return to work 20
hours per week, but – like the previous note – the note did not specify how long Plaintiff would
need to work part-time. (Id. ¶¶ 88-89; Herrera Decl. Ex. A-12.)
Around February 16, 2018, Plaintiff had a conversation with Herrera and John Ramirez,
the Manager for the NYMC’s Call Center, (Herrera Decl. ¶ 52), in which they discussed the parttime CSRCC position and Ramirez explained to Plaintiff that she would be required to attend an
in-person training in New York City before she could begin working in that capacity. (P’s 56.1
Stmt. ¶ 95.) Plaintiff testified that they also discussed “the initial training that could be . . . two
to three months, and then [they] discussed [Plaintiff’s] experience, and then [Ramirez] said
maybe two to three weeks.” (P’s Depo. at 209:6-13.) Defendant required all CSRCCs to attend
this in-person training before starting work and the trainings were scheduled in group sessions
that began once a month. (P’s 56.1 Stmt. ¶¶ 97-98.) Plaintiff “gave [Herrera] a verbal
commitment that [she] . . . wanted to accept the [CSRCC] position.” (P’s Depo. at 220:5-12; P’s
56.1 Stmt. ¶ 99.) She also told Herrera that she “needed to secure funds” for the training –

10

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 11 of 60

presumably for the commuting costs – but claims she expected to begin her training on March
12, 2018. (P’s 56.1 Stmt. ¶ 100; P’s Depo at 226:2-17.)
On April 13, 2018, Plaintiff sent Herrera an email, in which she said, “I would like to
move forward and am presently working on securing finances for the training.” (Herrera Decl.
Ex. A-13.) According to Defendant, before Herrera received this email from Plaintiff, she did
not believe that Plaintiff had made a final decision about whether she was accepting the CSRCC
position. (P’s 56.1 Stmt. ¶102.) Plaintiff disputes this, stating that text messages between
Plaintiff and Herrera from January 24, 2018 to April 13, 2018 show Plaintiff’s efforts to commit.
(Id.) In response to Plaintiff’s April 13 email, Herrera responded, “That’s great news! I'm glad
to hear that. I’ll draft a transfer letter which should be ready by Thursday, COB. I’ll also put
you in touch with John Ramirez again to discuss timelines.” (Herrera Decl. Ex. A-13.)
According to Defendant, sometime between February 15 and April 23, 2018, Plaintiff
asked Herrera whether Defendant could provide her with an ergonomic workstation to use at
home. (P’s 56.1 Stmt. ¶ 106.) Plaintiff states that during a February 28 call with Herrera,
Plaintiff asked if the equipment she was using at the Ulster site could be provided to her at home
and that on March 16, Herrera texted that Defendant could provide her with the chair, keyboard,
and keyboard tray to use at home. (Id.) Plaintiff also asked Herrera if Defendant could provide
her with voice-recognition software for her home computer and if Defendant could reimburse her
for travel expenses or provide a hotel to stay overnight for the training in New York City. (Id.
¶ 107.)
On April 23, 2018, Herrera wrote Plaintiff a letter “to confirm your transition from the
Outreach Department to the Call Center Department as a Telecommuting CSR 1 – Call Center.
The transition will be effective after a successful home inspection is completed. This will be a

11

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 12 of 60

permanent transition.” (ECF No. 72-21 at 2.) In the letter, Herrera also stated that Defendant
would provide Plaintiff with an ergonomic chair, a keyboard tray, and a left-handed keyboard but
Defendant would not reimburse her for travel expenses. (Id.) Regarding Plaintiff’s request for
voice-recognition software, Herrera wrote that while the software would be available on her
computer, it could only be used for offline activities, which only take up a small amount of the
workday. (Id.) The next day, Plaintiff emailed Herrera saying “[I] [j]ust wanted to follow up
with you regarding the training for the telecommuter program. I was able to secure funds for my
commute to training and they should be available to me within the next two weeks.” (Herrera
Decl. Ex. A-13.)
Defendant required a “home inspection” before any remote employee could start working
from home. (P’s 56.1 Stmt. ¶ 110.) Plaintiff’s home inspection took place on May 3, 2018,
when Plaintiff also signed the telecommuter agreement. (Id. ¶ 111.) On May 10, Plaintiff
emailed Herrera asking a variety of questions based on the telecommuter agreement, including
about the “telecommuters requirement to report to 30 broad street, if system not available.”
(ECF No. 72-22 at 9; Ps’ 56.1 Stmt. ¶ 112.) Plaintiff asked, “Would I be required to do so, if yes
is there reimbursement for expenses? If not, would I be paid for time or required to use pto.”
(ECF No. 72-22 at 9; Ps’ 56.1 Stmt. ¶ 112.)8 Plaintiff also asked about a security program that
had to be installed on her cell phone; she wanted to know if Defendant “will provide cell phone
reimbursement.” (ECF No. 72-22 at 9; Ps’ 56.1 Stmt. ¶ 112.)9 Herrera responded to Plaintiff’s
requests by email. (ECF No. 72-22 at 6-8.) In a May 14, 2018 email Plaintiff was informed,

8

The Court presumes that “pto” stands for “paid time off.”

This program seems to be a two-factor authentication program that generates a “key” or
“token” needed to access some of MAXIMUS’s online systems. (See ECF No. 72-22 at 8-9.)
9

12

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 13 of 60

among other things, that although the agreement stated that telecommuters would have to report
to New York City if the system was not available, in the event of system unavailability Plaintiff
could choose between reporting to the city or taking time off (“PTO” or “LWOP”), 10 in light of
the distance from her home to the city. (Id. at 8.) She also advised Plaintiff that MAXIMUS did
not reimburse for cellphones. (Id.) On the same date Plaintiff also expressed concerns about
spotty cellphone service at her residence, and Herrera assured her that the systems manager had
confirmed that the phone-based security system would work even with spotty service, and noted
that she (Herrera) had never had problems despite a weak cell signal at her home. (Id. at 6-7.)
Plaintiff was scheduled to return to work and begin training for her new part-time
telecommuter position on May 15, 2018. (P’s 56.1 Stmt. ¶ 118.) But on May 14, 2018, at
5:21 p.m., Plaintiff emailed Herrera and said, “I am requesting to postpone tomorrows [sic]
training.” (ECF No. 72-22 at 6.) Herrera responded by asking why Plaintiff was no longer going
to come to the training, (id. at 5), to which Plaintiff replied, “As per my previous email, I
requested to put the training on hold. I will be reaching out to Mr. Cohen,” (id.).11 Plaintiff
testified that she did not attend the training “because of concerns [she] had about the
telecommuter agreement,” and when asked whether the concerns she had about the telecommuter
agreement were related to her physical health, Plaintiff responded, “One item, not specifically,
but the other one, possibly.” (P’s Depo. at 230:4-14.) She testified that the “other one” was
whether she would have to travel to the city if the system went down, and that she did not, at the

10

The Court presumes that “LWOP” stands for “leave without pay.”

Plaintiff has not explained what “Mr. Cohen” had to do with her training, but she states
that he was “the person listed on my workers compensation correspondence, I thought I could
speak with him for guidance. He advised he was a point of contact.” (P’s 56.1 Stmt. ¶ 120.)
11

13

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 14 of 60

time she postponed the training, recall having been informed (earlier that day) that time off,
rather than going to the city, was an option. (Id. at 230:15-25.)
On May 15, Herrera again asked Plaintiff why she put off the training, and in response
the next day, Plaintiff inquired about (among other things) the status of the promised workstation
accommodations, mentioned again her concern about spotty cell service, and asked if there were
alternatives to PTO or going to the city if her system was not working. (ECF No. 72-22 at 3-4.)
Herrera responded, advising (among other things) that the equipment would be delivered before
Plaintiff started working from home, that the spotty cell service was not an issue, and that she
could not think of alternatives if the system went down but invited Plaintiff to share her thoughts
on that subject. (Id. at 2-4.) She also noted that the window for the May training had closed so
they would need to find out when the next training would be. (Id. at 2.) Plaintiff responded the
next day, again raising the spotty service and also asking if she could receive the training
module, if insurance would cover the value of her equipment in the event of a loss, and when the
next training would be. (Id.) She also said she would email a doctor’s note that confirmed she
could work full days for the training. (Id.)
Around June 7, Herrera told Plaintiff she could begin training later that month and in
response, Plaintiff asked about the new position’s training requirement, cell phone service
requirements, and when she would need to report service interruptions to the call center. (P’s
56.1 Stmt. ¶ 124.) Plaintiff was rescheduled to begin training on June 25, 2018. (Id. ¶ 126.) On
June 21, Herrera sent Plaintiff a letter confirming that Plaintiff was scheduled for training on
June 25, 2018, that the security program did not require a cell phone connection, and that in the
unlikely event that she experienced a systems outage lasting longer than a day, she would have to
report in person or take time off. (ECF No. 72-23.) On June 21, Herrera asked Plaintiff to

14

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 15 of 60

confirm by 4 p.m. the next day that she would start training on June 24. (Herrera Decl. Ex. A16.) Plaintiff responded the next day that she was “unable” to meet that deadline and that she
would “f[ol]low up with [Herrera] next week.” (Id. at 21.) According to Plaintiff, she did not
report to training as scheduled because the June 21 letter “didn’t necessarily translate to the
timeline. And [she] also received a notification from the Workers’ Compensation Board that
said [she] had – that Maximus had advised them that [she] did not – that I wanted like more time
to be out, something to that effect.” (P’s Depo. at 232:8-234:19.) She “wasn’t understanding
what was happening.” (Id. at 249:19-25.)
On July 26, 2018, Herrera sent Plaintiff a letter stating that she was expected to report for
training on August 6 and if she failed to do so, “it will be assumed that [she has] voluntarily
resigned from [her] position.” (ECF No. 72-24; P’s 56.1 Stmt. ¶ 131.) Plaintiff understood that
this was her third and final opportunity to do the training. (P’s 56.1 Stmt. ¶ 132.) On August 1,
Plaintiff responded stating “I have an appointment scheduled for August 22, 2018 that I have
been trying to get scheduled sooner and was put on a waiting list. In light of my upcoming
appointment, [I] am unsure and at the interest of all parties, to move fo[r]ward with the August
6th training date.” (ECF No. 72-26.) Plaintiff did not state what kind of appointment it was.
(Id.; P’s 56.1 Stmt. ¶ 134.)12 Plaintiff had been told that the training would take at least two
weeks, (Herrera Decl. Ex. A-15, 72-25 at 2; P’s 56.1 Stmt. ¶ 135), depending on her progress,
(ECF No. 72-22 at 3). When asked why an appointment on August 22, 2018 would impact her
ability to attend the August 6 training, Plaintiff said, “To me, it was all this time had passed and I
didn’t know how this doctor was going to respond to the issues I was having. So I thought,

12

The appointment, as it turned out, was at the Hospital for Special Surgery in
Manhattan, (ECF No. 72-29) where the training was to take place.

15

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 16 of 60

respectfully, instead of having people start to train me and then have a doctor’s appointment, I
thought – and, again, I didn't know what the timeline was. There was no schedule provided. It
was just the start date. I thought it was best to just wait until after the appointment.” (P’s Depo.
at 255:12-25.)
On August 7, Herrera sent Plaintiff a letter stating that because it did not appear that
Plaintiff was willing to resume work, MAXIMUS was assuming that she was voluntarily
resigning from her position, but that Plaintiff should contact a colleague of Herrera’s by August
15 if that was not accurate. (ECF No. 72-27.) On August 13, Plaintiff emailed the colleague
stating, “[M]y decision not to attend the training was due to my appointment scheduled for
8/22/18 [and] [t]his decision was in consideration of Maximus and not intended to appear as
unwilling to resume duty or to voluntarily resign from my position.” (ECF No. 72-28 at 3.) On
August 22, Plaintiff submitted a doctor’s note that stated Plaintiff “is to remain out of work for
next 6 weeks.” (ECF No. 72-29.)
On September 18, 2018, Defendant notified Plaintiff by letter that it would be terminating
her employment effective immediately, noting that Plaintiff had provided a doctor’s update on
August 22 stating that Plaintiff was to stay out of work for an additional six weeks, but
explaining that “[a]t this point, we cannot continue to extend your leave further.” (P’s 56.1 Stmt.
¶ 141.) According to Awilda Martinez, MAXIMUS’s Vice President of U.S. Health and Human
Services, she concluded that there was no accommodation that they could offer Plaintiff that
would allow her to return to work, given that Plaintiff had already passed up three opportunities
to train for the CSRCC position. (Id. ¶ 140.)
On September 13, 2018 Plaintiff filed an application for SSDI benefits. (Id. ¶ 142; see
ECF No. 72-10.) On her application, Plaintiff wrote that she stopped working on July 15, 2017

16

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 17 of 60

“[b]ecause of [her] condition,” and that her end date at Defendant was August 2017. (ECF No.
72-10 at 6-7.) She also wrote
I did a lot of typing for my job. I cannot type without doing myself harm. I am in
constant pain. The headaches and neck injury, [sic] are bad enough to make me
vomit at times. Sitting is becoming increasingly hard to do for any length on
time. plantar facetious [sic]. [H]urt all the time. It hurts to walk and it is now
interfering with the nerves in my feet.
(Id. at 7.) On January 9, 2020, after a hearing at which Plaintiff testified, U.S. Administrative
Law Judge (“ALJ”) Brian W. Lemoine determined that Plaintiff “has been under a disability as
defined in the Social Security Act since August 14, 2017, the alleged onset date of the
disability,” and awarded her SSDI benefits. (ECF No. 72-30 at 7; P’s 56.1 Stmt. ¶ 144.) The
ALJ’s decision stated, “She indicated that this pain prevented her from handling and holding
items such as a coffee cup, typing, or handling small objects, or fastening clothing or shoes with
her right dominant hand.” (ECF No. 72-30 at 2.) He also found that she is “unable to perform
any past relevant work” and that “[t]he demands of [her] past relevant work exceed the residual
functional capacity.” (Id. at 7.)
Plaintiff had not requested any other accommodations to her workstation besides the
ergonomic equipment, and had she actually started working from home, Defendant would have
provided her with the ergonomic equipment that she had had at the Ulster County office. (P’s
56.1 Stmt. ¶ 146.) Plaintiff notes that a date for delivery of that equipment was never set. (Id.)
When asked if there was anything that Defendant could have offered that would have allowed
her to work, Plaintiff said, “I believe, if anything, I would have liked the opportunity to try to
possibly resume to my prior position, with all the ergonomic work equipment that had previously
been provided to me.” (P’s Depo. at 273:5-12.) She testified that she believed that her previous
position as a CSRO was less physically demanding that the CSRCC position but she “didn’t
really know.” (Id. at 274:13-275:2.) When asked how a “part-time client service representative
17

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 18 of 60

position” would have addressed the issues she had listed in her SSDI application, she said “I’m
not sure.” (Id. at 275:21-25.) Plaintiff also testified that “[b]ased on the doctor’s note,” as of
September 18, 2018, she could not perform the role of a part-time call center representative. (Id.
at 337:17-21.) And as of October 3, 2018, Plaintiff testified that she was not cleared to
physically perform the part-time call center representative role. (Id. at 337:22-338:2.) When
asked, as of September 18, 2018 and as of October 3, 2018, “what, if any, accommodation could
Maximus have given you that would have allowed you to return to the part-time call center
representative role?” Plaintiff said, “I don’t know.” (Id. at 364:3-17.) She further testified that
she had not been cleared to work full-time in any position. (Id. at 365:13-16.)
During the course her employment with MAXIMUS, Plaintiff filed several workers’
compensation claims, including in December 2011, March 2012, January 2015, and September
2016, and believes Defendant retaliated against her because of them and because she reported an
incident involving the Sullivan County Commissioner of Social Services. (P’s 56.1 Stmt. ¶¶
164-167.)
Plaintiff initially reached out to the U.S. Equal Employment Opportunity Commission
(“EEOC”) in June 2018 after receiving a notice from the workers compensation board that stated
that she had not attended a training. (P’s 56.1 Stmt. ¶ 1.) Plaintiff testified that she contacted the
EEOC because she was “struggling with the fact that [she] didn’t understand why things were
evolving the way they were.” (P’s Depo. at 331:20-332:1.) On or about March 4, 2019,
Defendant received a notice, dated February 28, 2019, that Plaintiff had filed a Charge of
Discrimination dated December 10, 2018. (P’s 56.1 Stmt. ¶ 1; ECF No. 72-5.) In the charge,
Plaintiff alleged that Defendant had unlawfully discriminated against her on the basis of
disability – an injury to her right arm; failed to reasonably accommodate her; subjected her to a

18

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 19 of 60

hostile work environment; and retaliated against her for engaging in protected activity. (ECF
No. 72-5 at 4.) On or about May 24, 2019, the EEOC issued a Dismissal and Notice of Right to
Sue. (ECF No. 72-6.)
Procedural History
Plaintiff brought this suit, pro se, on August 22, 2019, against Defendants MAXIMUS
and Sullivan County Department of Social Services, asserting claims of wrongful termination,
failure to accommodate, retaliation, and hostile work environment under the Americans with
Disabilities Act of 1990 (“ADA”), the Rehabilitation Act of 1973 (“RA”), and New York State
Human Rights Law (“NYSHRL”). (ECF No. 2 (“Compl.”) at 4-5.) The case was ordered to
mediation on October 31, 2019. (ECF No. 8.) On January 10, 2020, Defendant Sullivan County
submitted a pre-motion letter in anticipation of its motion to dismiss, (ECF No. 14), and on
February 7, 2020, I held a pre-motion conference, where I granted Plaintiff leave to amend her
complaint, (Minute Entry dated Feb. 7, 2020). Plaintiff did not file an amended complaint.
MAXIMUS answered, (ECF No. 23), and Sullivan County filed its motion to dismiss, (ECF No.
28). On December 4, 2020, I issued a bench ruling granting Sullivan County’s motion.
Plaintiff’s discrimination claim against Sullivan County was dismissed with prejudice and her
personal injury claims, to the extent any were intended, were dismissed without prejudice.
(Minute Entry dated Dec. 4, 2020.)
After discovery, Defendant submitted a pre-motion letter in anticipation of its motion for
summary judgment. (ECF No. 68.) On January 5, 2022, the Court held a pre-motion
conference, (Minute Entry dated Jan. 5, 2022), and the instant motion followed. (ECF Nos. 7174, 81-84).

19

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 20 of 60

II.

LEGAL STANDARD
Motion for Summary Judgment
Summary judgment is appropriate when “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). “[T]he dispute about a material fact is ‘genuine’ . . . if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it “might affect the outcome of the suit
under the governing law . . . . Factual disputes that are irrelevant or unnecessary will not be
counted.” Id. On a motion for summary judgment, “[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255.
The movant bears the initial burden of demonstrating “the absence of a genuine issue of
material fact,” and, if satisfied, the burden then shifts to the non-movant to “present evidence
sufficient to satisfy every element of the claim.” Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d
Cir. 2008). “The mere existence of a scintilla of evidence in support of the [non-movant’s]
position will be insufficient; there must be evidence on which the jury could reasonably find for
the [non-movant].” Anderson, 477 U.S. at 252. Moreover, the non-movant “must do more than
simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), and “may not rely on conclusory
allegations or unsubstantiated speculation,” Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423,
428 (2d Cir. 2001) (cleaned up).
“A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by . . . citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations . . .

20

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 21 of 60

admissions, interrogatory answers, or other materials . . . .” Fed. R. Civ. P. 56(c)(1). Where a
declaration is used to support or oppose the motion, it “must be made on personal knowledge, set
out facts that would be admissible in evidence, and show that the . . . declarant is competent to
testify on the matters stated.” Id. 56(c)(4); see Major League Baseball Props., Inc. v. Salvino,
Inc., 542 F.3d 290, 310 (2d Cir. 2008). In the event that “a party fails . . . to properly address
another party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact
undisputed for purposes of the motion” or “grant summary judgment if the motion and
supporting materials – including the facts considered undisputed – show that the movant is
entitled to it.” Fed. R. Civ. P. 56(e).
Pro Se Plaintiffs
Submissions by pro se plaintiffs are to be examined with “special solicitude,” Tracy v.
Freshwater, 623 F.3d 90, 102 (2d Cir. 2010), interpreted “to raise the strongest arguments that they
suggest,” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), and “held to less stringent standards
than formal pleadings drafted by lawyers,” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (per curiam)
(cleaned up), “particularly where motions for summary judgment are concerned,” Jackson v. Fed.

Express, 766 F.3d 189, 195 (2d Cir. 2014). “It is through this lens of leniency towards pro se
litigants that this Court must consider a defendant’s motion for summary judgment against a pro
se plaintiff.” Adams v. George, No. 18-CV-2630, 2020 WL 5504472, at *5 (S.D.N.Y. Sept. 8,
2020). Pro se status “does not, however, excuse a pro se litigant from making the showing
required to defeat summary judgment; he or she must offer more than ‘bald assertions,
completely unsupported by evidence’ to overcome the motion.” Keesh v. Quick, No. 19-CV-

21

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 22 of 60

8942, 2022 WL 2160127, at *4 (S.D.N.Y. June 15, 2022) (quoting Wisdom v. Loiodice, No. 17CV-04837, 2020 WL 4431590, at *4 (S.D.N.Y. July 31, 2020)).13
III.

DISCUSSION
Plaintiff alleges discrimination based on disability, failure to accommodate, retaliation,

and hostile work environment, in violation of the ADA, the RA, and the New York State Human
Rights Law (“NYSHRL”). (See Compl. at 4-5; P’s 56.1 Stmt. ¶ 153.) Defendant argues that it is
entitled to summary judgment on all claims.
Time Bar
Defendant argues that the majority of Plaintiff’s claims are time barred under the ADA,
RA, and NYSHRL. (D’s Mem. at 3-4.)
1.

ADA Claims

Under the ADA, a plaintiff has 300 days from the date of the alleged unlawful action to
file a complaint with the EEOC. See 42 U.S.C. § 2000e-5(e)(1); Harris v. City of N.Y., 186 F.3d
243, 247-48, 248 n.2 (2d Cir. 1999). “It has long been settled that a claim of employment
discrimination accrues for statute of limitations purposes on the date the employee learns of the

In her papers, Plaintiff notes, “Portions of this document may have been prepared with
assistance from NYLAG’s Legal Clinic for Pro Se Litigants in the SDNY.” (ECF No. 82 (“P’s
Opp.”) at 1 n.1; P’s 56.1 Stmt. at 1 n.1.) The wording “may have” is meaningless, because
Plaintiff either prepared her papers with help from the New York Legal Assistance Group or she
did not. Use of that locution seems intended to be a semantic dodge. Some courts have limited
or withdrawn special solicitude where a pro se plaintiff has received help from NYLAG. See,
e.g., Bizelia v. Clinton Towers Hous. Co., No. 20-CV-8065, 2022 WL 1747763, at *3 (S.D.N.Y.
May 31, 2022); Littlejohn v. Consol. Edison Co. of New York, Inc., No. 18-CV-6336, 2019 WL
3219454, at *1 n.1 (S.D.N.Y. July 17, 2019). “The Court remains cognizant, however, that if
pro se litigants who receive limited assistance from NYLAG lose all protections afforded to
them, NYLAG faces a catch-22: providing less than full representation will harm litigants by
eliminating the special care otherwise afforded.” Karupaiyan v. CVS Health Corp., No. 19-CV8814, 2021 WL 4341132, at *6 (S.D.N.Y. Sept. 23, 2021) (cleaned up). I “need not resolve this
conflict at this time,” as Plaintiff's opposition to the motion is insufficient to avoid summary
judgment “even when read with special solicitude.” Id. (cleaned up).
13

22

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 23 of 60

employer’s discriminatory conduct.” Flaherty v. Metromail Corp., 235 F.3d 133, 137 (2d Cir.
2000); see Alleyne v. Am. Airlines, Inc., 548 F.3d 219, 222 (2d Cir. 2008). The EEOC received
Plaintiff’s complaint on December 17, 2018. (ECF No. 72-5 at 4.) Thus, any ADA claims
arising prior to February 20, 2018 are time-barred.
Plaintiff argues that the “continuing violation” doctrine should apply, allowing redress for
events occurring before the 300-day time frame. (P’s Opp. at 2-3.) “The continuing violation
doctrine states that when ‘a plaintiff has experienced a continuous practice and policy of
discrimination . . . commencement of the statute of limitations period may be delayed until the
last discriminatory act in furtherance of it.’” Pattanayak v. Mastercard Inc., No. 21-CV-2657,
2022 WL 564047, at *3 (S.D.N.Y. Feb. 24, 2022) (quoting Washington v. County at Rockland,
373 F.3d 310, 317 (2d. Cir. 2004)). But this doctrine does not apply to discrete employment
actions, including “termination, failure to promote, denial of transfer, or refusal to hire,” Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 112 (2002), and “the rejection of a proposed
accommodation is a single completed action when taken” even if “the effect of the employer’s
rejection continues to be felt by the employee for as long as he remains employed,’” Gomez v.
N.Y.C. Police Dep’t, 191 F. Supp. 3d 293, 302 (S.D.N.Y. 2016) (emphasis in original) (cleaned
up); see O’Leary v. Town of Huntington, No. 11-CV-3754, 2012 WL 3842567, at *8 (E.D.N.Y.
Sept. 5, 2012) (“[A]n employee who continues working after the denial of a reasonable
accommodation may not claim a continuing violation . . . .”).
Plaintiff’s discrimination, failure-to-accommodate, and retaliation claims are based on
discrete acts, including placing her on leaves of absences, declining to schedule a meeting with
upper management, giving her an “urgent” assignment a few days before scheduled surgery
when she was just getting used to a new keyboard, and her eventual termination. (P’s 56.1 Stmt.

23

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 24 of 60

¶¶ 154-157, 161, 164-165.) None of these constitute “acts of a continuing nature” and are not
actionable under the “continuing violation” doctrine. See Anderson v. N.Y.C. Dep’t of Finance,
No. 19-CV-7971, 2020 WL 1922624, at *3-4 (S.D.N.Y. Apr. 21, 2020) (cleaned up).
But the “continuing violations” doctrine must be analyzed separately in relation to
Plaintiff’s hostile work environment claim. Hostile work environment claims are “composed of
a series of separate acts that collectively constitute one unlawful employment practice.”
Morgan, 536 U.S. at 117 (cleaned up). If any one act contributing to the claim occurs within the
applicable time frame, then the Court may consider acts that on their own would have been time
barred, as long as at least one alleged act occurred within the prescribed time frame. Id. But if
the acts outside the relevant time frame are unrelated to the acts within the time frame, the
employee cannot allege the prior acts as part of the same hostile work environment claim. Id. at
118. Plaintiff’s hostile work environment claim is predicated on allegations relating to
transferring assignments for Sullivan County to other employees; initially telling Plaintiff (but
then retracting) that attendance at a holiday party was mandatory; not initially providing Plaintiff
with the chair she used at Sullivan County after her transfer to Ulster County; removing her
original keyboard from her workstation after providing her with a left-handed keyboard;
assigning Plaintiff an “urgent” assignment before surgery; placing another employee’s personal
effects in Plaintiff’s workstation while she was out in 2017; and initially declining Plaintiff’s
request to be reassigned to Ulster County. (P’s 56.1 Stmt. ¶ 158; P’s Depo. 191:12-205:21.)
None of these acts occurred after February 20, 2018, given that Plaintiff was not working
remotely or in-person, part-time or full time, after February 20, 2018. All of the incidents
alleged in relation to her hostile work environment claim occurred before the filing period,
rendering the “continuing violations” doctrine inapplicable.

24

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 25 of 60

Therefore, Plaintiff’s ADA hostile work environment claim is time-barred, and for her
remaining ADA claims, any allegations arising prior to February 20, 2018 are time-barred.
2.

NYSHRL and RA Claims

NYSHRL and RA claims for disability discrimination are subject to a three-year statute
of limitations. Hernandez v. City of N.Y., No. 11-CV-6644, 2015 WL 321830, at *25 (S.D.N.Y.
2015) (NYSHRL); Martinez-Tolentino v. Buffalo State Coll., 715 N.Y.S.2d 554, 555 (App. Div.
2000) (NYSHRL); O’Quinn v. City of N.Y., No. 19-CV-9663, 2021 WL 4429787, at *9
(S.D.N.Y. Sept. 27, 2021) (RA). “A continuing violation doctrine applies to NYSHRL claims
and is coterminous with the scope of the continuing violation doctrine that applies to federal civil
rights claims.” Cruz v. City of N.Y., No. 21-CV-1999, 2021 WL 5605139, at *5 (S.D.N.Y. Nov.
30, 2021); see Harris v. City of N.Y., 186 F.3d 243, 248 (2d Cir. 1999) (applying the continuing
violations doctrine to RA claims).
Plaintiff filed this action on August 22, 2019. (Compl.) Absent some basis for tolling the
statute of limitations, her NYSHRL and RA claims based on discriminatory or retaliatory acts
occurring before August 22, 2016 are time-barred. But “[t]he Second Circuit has not yet
determined whether the filing of a charge with the EEOC serves to automatically toll the statute
of limitations on claims asserted under the NYSHRL and NYCHRL.” Rogers v. Fashion Inst. of
Tech., No. 14-CV-6420, 2017 WL 1078572, at *9 n.5 (S.D.N.Y. Mar. 21, 2017) (cleaned up).
“Nevertheless, numerous courts in the Second Circuit have held that the filing of an EEOC
charge does indeed toll the limitations period [for NYSHRL claims].” Zagerson v. N.Y.C. Dep’t
Educ., No. 20-CV-11055, 2022 WL 292917, at *8 (S.D.N.Y. Jan. 31, 2022); see Esposito v.
Deutsche Bank AG, No. 07-CV-6722, 2008 WL 5233590, at *5 (S.D.N.Y. Dec. 16, 2008)
(collecting cases). Giving Plaintiff the benefit of that rule tolls Plaintiff’s time for file for 158

25

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 26 of 60

days, as she filed her charge with the EEOC on December 17, 2018, (ECF No. 72-5 at 4), and the
EEOC issued its Notice of Right to Sue letter on May 24, 2019, (ECF No. 72-6 at 2). Adding
this number to the original three-year limitations period, any NYSHRL claims arising before
March 17, 2016 are time barred. 14
But filing a grievance with the EEOC does not toll the statute of limitations as to RA
claims. Solomon v. N.Y.C. Bd. of Educ., No. 95-CV-1878, 1996 WL 118541, at *4 (E.D.N.Y.
Mar. 6, 1996); Pajak v. N.Y. State Off. of Temporary & Total Disability, No. 16-CV-899, 2018
WL 4268915, at *6 n.3 (W.D.N.Y. Sept. 7, 2018). Therefore, Plaintiff’s RA claims based on
discriminatory or retaliatory acts occurring before August 22, 2016 are time barred.
Discrimination Claims
Plaintiff’s disability discrimination claims under federal and state law 15 are analyzed
under the familiar burden-shifting framework established by the Supreme Court in McDonnell

14

In its brief, Defendant states any acts prior to March 11, 2016 should be time barred
after applying the tolling provision. (D’s Mem. at 4.) But Defendant does not explain how it
came up with this date. In any event, the difference between March 11 and March 17, 2016 is
immaterial.
“Claims of employment discrimination under the [RA] – as well as claims brought
under the NY[S]HRL – are generally analyzed under the same standards that govern
employment-discrimination claims under the [ADA] . . . .” Williams v. MTA Bus Co., No. 17CV-7686, 2020 WL 1922911, at *5 (S.D.N.Y. Apr. 20, 2020), appeal filed, No. 20-2985 (Sept.
2, 2020); see Graves v. Finch Pruyn & Co., 457 F.3d 181, 184 n.3 (2d Cir. 2006) (“A claim of
disability discrimination under the New York State Human Rights Law is governed by the same
legal standards as govern federal ADA claims.”) (cleaned up). The New York state legislature
amended the NYSHRL, effective August 12, 2019, directing courts to construe the law “liberally
for the accomplishment of the remedial purposes thereof, regardless of whether federal civil
rights laws, including those laws with provisions worded comparably to the provisions of [the
NYSHRL], have been so construed.” N.Y. Exec. Law § 300. The effect of the amendments is to
make the standards for NYSHRL claims closer to the more liberal standards of the New York
City Human Rights Law. Moore v. Am. Fed’n of State, Cnty. & Mun. Emps. Loc. 1095, No. 17CV-0704, 2022 WL 262347, at *10 n.13 (W.D.N.Y. Jan. 28, 2022), report and recommendation
adopted, 2022 WL 1497959 (W.D.N.Y. May 12, 2022), appeal filed, No. 22-1123 (2d Cir. May
23, 2022). But these amendments only apply to claims that accrued on or after October 11,
15

26

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 27 of 60

Douglas Corp. v. Green, 411 U.S. 792 (1973). See Kovaco v. Rockbestos-Surprenant Cable
Corp., 834 F.3d 128, 136 (2d Cir. 2016); McMillan v. City of N.Y., 711 F.3d 120, 125 (2d Cir.
2013); Munoz-Nagel v. Guess, Inc., No. 12-CV-1312, 2013 WL 1809772, at *4 n.5 (S.D.N.Y.
Apr. 30, 2013).
Under that framework, plaintiff must first establish a prima facie case of
discrimination, which causes the burden of production to shift to the defendant to
offer a legitimate, nondiscriminatory rationale for its actions. If the defendant
satisfies its burden of production, then the presumption raised by the prima facie
case is rebutted and drops from the case, such that at the final stage, the plaintiff
then has the opportunity to demonstrate that the proffered reason was not the true
reason for the employment decision.
Kovaco, 834 F.3d at 136 (cleaned up). In demonstrating that the employer’s proffered reason
was not the true reason for the employment decision, a plaintiff “must produce not simply some
evidence, but sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the defendant were false, and that more likely than not
discrimination was the real reason for the employment action.” Weinstoc k v. Colum. Univ., 224
F.3d 33, 42 (2d Cir. 2000) (cleaned up). “In short, the question becomes whether the evidence,
taken as a whole, supports a sufficient rational inference of discrimination.” Id. The plaintiff
must “prove that [disability] discrimination was the but-for cause of any adverse employment
action.” Natofsky v. City of N.Y., 921 F.3d 337, 348 (2d Cir. 2019).
To establish a prima facie case of discrimination based on disability, a plaintiff must
show: “(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

2019. Wellner v. Montefiore Med. Ctr., No. 17-CV-3479, 2019 WL 4081898, at *5 n.4
(S.D.N.Y. Aug. 29, 2019). Because Plaintiff’s allegations are based on events from before this
date, the amendments do not apply retroactively to Plaintiff's claims here.

27

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 28 of 60

without reasonable accommodation; and (4) he suffered an adverse employment action because
of his disability.” Cameron v. Cmty. Aid for Retarded Child., Inc., 335 F.3d 60, 63 (2d Cir.
2003) (cleaned up). For purposes of the instant motion, Defendant contests the third and fourth
elements, arguing that Plaintiff cannot show that she was qualified for the CSRCC role or point
to any adverse employment action that occurred because of her disability. (D’s Mem. at 5-15.)
1.

Whether Plaintiff Was Qualified for the CSRCC Role

Defendant argues that Plaintiff’s termination did not violate the ADA or NYSHRL
because she was not qualified for the CSRCC position, which she accepted at the end of
February 2018 but never started. (Id. at 5-12.) Under the ADA, a person “is not otherwise
qualified unless he is able, with or without reasonable accommodation, to perform the essential
functions of the job in question.” Stamey v. NYP Holdings, Inc., 358 F. Supp. 2d 317, 323
(S.D.N.Y. 2005); see 42 U.S.C. § 12111(8). “This inquiry is made with respect to the
individual’s condition at the time of the alleged adverse employment action.” Silver v. Entergy
Nuclear Operations, Inc., 290 F. Supp. 3d 234, 244 (S.D.N.Y. 2017). “‘Essential functions’ are
duties that are ‘fundamental’ to the job in question.” Vandenbroek v. PSEG Power, CT LLC, 356
F. App’x 457, 459 (2d Cir. 2009) (summary order) (cleaned up). “In determining which duties
are fundamental, [courts] accord ‘considerable deference to an employer’s judgment.’” Id.
(quoting D’Amico v. City of N.Y., 132 F.3d 145, 151 (2d Cir. 1998)). But “a plaintiff can
discharge their burden by demonstrating that they possess the basic skills necessary for the
performance of the job.” Makinen v. City of N.Y., 53 F. Supp. 3d 676, 693 (S.D.N.Y. 2014)
(cleaned up).
The responsibilities of the CSRCC position include “answering incoming calls from the
public, prospective Medicaid enrollees and people assisting Medicaid enrollees or acting on their

28

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 29 of 60

behalf; tracking and documenting all inquiries; facilitating the fulfillment of requests for
materials via mail, email or download; transferring or referring callers to appropriate entities;
and, escalating calls or issues as appropriate.” (P’s 56.1 Stmt. ¶ 91.) Critically, the position
requires typing. (Id.)
Defendant argues that Plaintiff cannot establish she is a “qualified individual” under the
ADA because in her September 13, 2018 application for SSDI benefits, which was submitted
five days before her termination, (Herrera Decl. Ex. A-17), Plaintiff claimed she had been
disabled since July 15, 2017, and was unable to type, (ECF No. 72-10 at 6-7; P’s 56.1 Stmt.
¶ 143). Indeed, in her SSDI application, Plaintiff stated, “I did a lot of typing for my job. I
cannot type without doing myself harm. I am in constant pain.” (ECF No. 72-10 at 7.) In her
testimony before the ALJ, Plaintiff said that “this pain prevented her from handling and holding
items such as a coffee cup, typing, or handling small objects, or fastening clothing or shoes with
her right dominant hand.” (ECF No. 72-30 at 2.)16 Plaintiff clearly stated that she cannot type
without pain and harm, thereby claiming disability on the basis that she could not perform an
essential function of the CSRCC position – typing. These statements are inconsistent with
Plaintiff’s claim here that following her latest request for leave on August 22, 2018, she intended
to and was able to return to work.
The Supreme Court in Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999), held
that a plaintiff may properly claim that she was totally disabled in one context and disabled but
able to work with reasonable accommodation in another: “an ADA suit claiming that the
plaintiff can perform her job with reasonable accommodation may well prove consistent with an

16

This testimony occurred on December 10, 2019, (ECF No. 72-30 at 1), but Plaintiff
was describing her condition from August 2017, when she had a second surgery, forward, (see
ECF No. 72-30 at 2.)

29

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 30 of 60

SSDI claim that the plaintiff could not perform her own job (or other jobs) without it.” Id. at 803
(emphasis omitted). That is, under certain statutes – such as the ADA – the definition of
disability takes into account “reasonable accommodations” that enable an individual to work,
while others – such as SSDI – do not. The distinction drawn by the Supreme Court has been
applied in ADA cases in this Circuit. See Kovaco, 834 F.3d at 137-38; Tse v. N.Y. Univ., 190 F.
Supp. 3d 366, 370 (S.D.N.Y. 2016); Clough v. Westchester Med. Ctr., No. 04-CV-631, 2006 WL
8461802, at *7 (S.D.N.Y. May 19, 2006).
But the Supreme Court recognized that “in some cases an earlier SSDI claim may turn
out genuinely to conflict with an ADA claim.” Cleveland, 526 U.S. at 805. “[A] plaintiff’s
sworn assertion in an application for disability benefits that she is, for example ‘unable to work’
will appear to negate an essential element of her ADA case – at least if she does not offer a
sufficient explanation.” Id. at 806. Thus when, as here, “a plaintiff’s previous sworn statement
[is] asserting ‘total disability’ or the like, the court should require an explanation of an apparent
inconsistency with the necessary elements of an ADA claim.” Id. at 807. The plaintiff’s
“explanation must be sufficient to warrant a reasonable juror’s concluding that, assuming the
truth of, or the plaintiff's good-faith belief in, the earlier statement, the plaintiff could nonetheless
‘perform the essential functions’ of her job, with or without ‘reasonable accommodation.’” Id.;
see Kovaco, 834 F.3d at 138-39.
In her opposition, Plaintiff states she made the statements in her benefits application
“because at the time she was not cleared to return to work and because Defendant had not
provided her with the promised ergonomic workstation and voice recognition software.” (P’s
Opp. at 7.) She states, “In light of the timing of the benefits application – before Plaintiff had
been cleared to return to work and before she had been given a chance to try out an ergonomic

30

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 31 of 60

workstation at home – a reasonable juror could conclude that Plaintiff could have been able to
perform her job if offered the right reasonable accommodation.” (Id.) Plaintiff’s explanation
makes clear, and confirms the statement in her SSDI benefits application, that she could not
perform an essential function of her position – typing – without an accommodation. But she
contends that she could perform the essential functions of her job with a reasonable
accommodation – specifically, the promised ergonomic workstation and voice recognition
software.
The first part of Plaintiff’s claim is plainly incorrect. At the time of her disability
benefits application, she had been medically cleared to return to work part-time as a CSRCC,
(P’s 56.1 Stmt. ¶¶ 88, 90), and had even been cleared to work full days during the training,
(Herrera Decl. Ex. A-14). Further, Defendants are correct, (ECF No. 84 (“D’s Reply”) at 4), that
it is undisputed that Defendant told Plaintiff that it would provide her with voice recognition
software and ergonomic equipment to use at home. (P’s 56.1 Stmt. ¶ 146.) And it is clear that
“the only reason [Plaintiff] didn’t have an ergonomic workstation was because [she] hadn’t yet
started working at home.” (P’s Depo at 271:11-272:3.) But it is seemingly disputed whether
Plaintiff could have performed the essential functions of her job, mainly typing, with the
assistance of the promised ergonomic workstation and voice recognition software, because she
never had a chance to use them as she never started working from home. Plaintiff’s proffered
explanation is that because she had not yet received the promised ergonomic workstation and
voice recognition software at the time she filed for SSDI benefits, a reasonable jury could find
that she could type without doing herself harm and being in constant pain with the help of those
items. In other words, she contends that had she received the workstation and software, she
believes she could have been able to type and perform the other essential functions of the

31

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 32 of 60

CSRCC position. Cf. Kovaco, 834 F.3d at 140 (plaintiff’s SSDI statements were inconsistent
because he did have access to the reasonable accommodation mentioned when he stated in his
application that he was unable to work, “belying his explanation that he was only ‘unable to
work’ because he lacked reasonable accommodation”).17
I find it unlikely that a jury would agree, but I cannot say that the argument is so
implausible as to permit estoppel. Plaintiff manages to provide a sufficient explanation to
address the inconsistencies here – that at the time she filed for benefits, she was in constant pain
and could not type, but had she actually been provided the workstation and software, she could
have performed the essential functions of her job. This explanation is barely “sufficient to
warrant a reasonable juror’s concluding that . . . the plaintiff could nonetheless ‘perform the
essential functions’ of her job, with . . . ‘reasonable accommodation.’” Cleveland, 526 U.S. at
807.
Defendant also argues that, even ignoring the statements made by Plaintiff in connection
with her disability application, she admits that she could not physically perform the essential
functions of the CSRCC when she was terminated. (D’s Mem. at 12.) Defendant overstates
Plaintiff’s admission. When asked, “As of September 18, 2018 could you physically perform the
part-time call center representative role,” Plaintiff said, “Based on the doctor’s note, no.” (P’s
Depo. at 337:3-21.) But neither the question nor the answer makes clear whether it is addressed
to working with or without a reasonable accommodation. Further, when asked, “[A]s of
September 18, 2018 what, if any accommodation could Maximus have given you that would
have allowed you to return to the part-time call center representative role?” Plaintiff answered, “I

17

That ALJ Lemoine found Plaintiff unable to perform past work also does not preclude
her from taking the position that she could have performed the work with an accommodation.
See Kovaco, 834 F.3d at 139.

32

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 33 of 60

don’t know.” (Id. at 364:3-10.) Defendant contends that Plaintiff’s inability to identify any
accommodation that would have allowed her to perform the essential functions of her job as of
the day she was terminated shows that she was not qualified. (D’s Mem. at 12.) This testimony
is indeed strong evidence that Plaintiff could not do the CSRCC job, period. But the question is
not clear as to whether it referred to any accommodation beyond those Defendant had already
offered, or if it meant any accommodation at all. Given the context of the deposition, Plaintiff
could have interpreted the question as referring to the former. If so, she has identified a
reasonable accommodation – the use of the ergonomic workstation and voice recognition
software. And as discussed above, while Defendant did grant this accommodation, Plaintiff was
never in position to use the workstation or software, so – although I believe Defendant has the
better of the argument – a fact issue remains as to whether she was able to perform the essential
functions of her job with a reasonable accommodation.
2.

Whether Plaintiff Was Subjected to an Adverse Action Due to Her
Disability

Defendant also argues that Plaintiff has not provided evidence of any adverse
employment action imposed because of her disability. (D’s Mem. at 13-15.) To carry her
burden on the fourth element of the prima facie case, Plaintiff “has a de minimis burden to
produce direct or circumstantial evidence that would lead a reasonable fact-finder to conclude
that her discharge occurred under circumstances giving rise to an inference of discrimination.”
Duprey v. Prudential Ins. Co., 910 F. Supp. 879, 885 (N.D.N.Y. 1996); see Schwapp v. Town of
Avon, 118 F.3d 106, 110 (2d Cir. 1997) (“[E]ven in the discrimination context, a plaintiff must
provide more than conclusory allegations of discrimination to defeat a motion for summary
judgment.”); Clark v. Jewish Childcare Ass’n, Inc., 96 F. Supp. 3d 237, 252 (S.D.N.Y. 2015)
(“The relevant question, therefore, is whether Plaintiff presented sufficient evidence that her

33

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 34 of 60

termination was ‘because of’ her disability to satisfy her ‘minimal burden’ of establishing a
prima facie case of discrimination under the McDonnell Douglas framework.”) Courts must
“carefully distinguish between evidence that allows for a reasonable inference of discrimination
and evidence that gives rise to mere speculation and conjecture.” Bickerstaff v. Vassar Coll., 196
F.3d 435, 448 (2d Cir. 1999).
For purposes of the prima facie case,
An inference of discrimination can arise from circumstances including, but
not limited to, the employer’s criticism of the plaintiff’s performance in . . .
degrading terms [relating to a protected characteristic]; or its invidious comments
about others in the employee’s protected group; or the more favorable treatment
of employees not in the protected group; or the sequence of events leading to the
plaintiff’s discharge. . . .
[A]n inference of discrimination also arises when an employer replaces a
terminated or demoted employee with an individual outside the employee’s
protected class.
Littlejohn v. City of N.Y., 795 F.3d 297, 312-13 (2d Cir. 2015) (cleaned up). The record here
contains no circumstantial evidence (let alone direct evidence) suggesting that Defendant acted
with discriminatory intent. Indeed, in her opposition Plaintiff fails to address any of Defendant’s
arguments relating to this element. See Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir.
1996) (non-moving party “cannot defeat” a summary judgment motion “by relying on the
allegations in [its] pleading or on conclusory statements”) (cleaned up). There is no evidence of
any criticism of Plaintiff’s performance (let alone in terms relating to her condition), invidious
comments, or favorable treatment toward others on the part of Defendant.18

18

Nor can Plaintiff rely on any alleged temporal proximity between her injury and her
termination, given that she initially injured her right elbow in January 2015, underwent an initial
surgery on June 7, 2016, had a second surgery in August 2017, and was not terminated until
September 2018. These gaps are too long to infer causation or discriminatory intent. Payne v.
Cornell Univ., No. 21-CV-109, 2022 WL 453441 at *3 (2d Cir. Feb. 15, 2022) (no inference of

34

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 35 of 60

The sequence of events leading up to Plaintiff’s termination makes clear that Defendant
bore no animus toward Plaintiff based on her disability. In order to accommodate Plaintiff,
Defendant granted her various leaves of absence to recover from her surgery and, upon learning
about her limitations, identified a new position for Plaintiff. (P’s 56.1 Stmt. ¶ 90.) Defendant
then engaged in lengthy conversations, emails and texts with Plaintiff over a period of months to
address her work-from-home needs and her questions relating to the new position and the
telecommuter agreement. (Id. ¶¶ 95, 101, 103-108, 112, 114-116; ECF No. 72-21; ECF No. 7222; ECF No. 72-23.) Only after Plaintiff did not appear for the mandatory training on three
occasions did Defendant then terminate her one month later, after receiving a doctor’s note
stating that she could not work for the next six weeks, (ECF No. 72-29 at 3), because it could not
further extend a leave that had already exceeded a year, (Herrera Decl. Ex. A-17). This is not
evidence of discrimination; if anything, it is the opposite.
Plaintiff appears to have fallen victim to the fallacy that because she was disabled, the
adverse action of termination must have been discrimination based on her disability. See
Varughese v. Mount Sinai Med. Ctr., No. 12-CV-8812, 2015 WL 1499618, at *42 (S.D.N.Y.
Mar. 27, 2015) (“fallacy” for plaintiff to say: “I belong to a protected class; something bad
happened to me at work; therefore, it must have occurred because I belong to a protected class”)
(cleaned up), aff’d, 693 F. App’x 41 (2d Cir. 2017) (summary order). “[T]he facts that [P]laintiff
is disabled and that [Defendant] fired her [are] insufficient to raise [a]n inference of
discrimination.” Duprey, 910 F. Supp. at 885; see Grillo v. N.Y.C. Transit Auth., 291 F.3d 231,

but-for causation where decisions had valid business justifications and “record [was] clear
that . . . the adverse employment actions . . . occurred well after the disclosure of [plaintiff’s]
disability”).

35

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 36 of 60

235 (2d Cir. 2002) (“[Plaintiff] has done little more than cite to his alleged mistreatment and ask
the court to conclude that it must have been related to his [protected status].”) (cleaned up).
Therefore, Plaintiff has not established a prima facie case for disability discrimination
under the ADA/RA or NYSHRL.
3.

Whether Defendant Offers a Legitimate, Nondiscriminatory Reason
for Its Actions

Even if Plaintiff had made out her prima facie case, Defendant offers a legitimate,
nondiscriminatory reason for Plaintiff’s termination actions: “Awilda Martinez’s decision that
there was no accommodation MAXIMUS could offer that would allow Plaintiff to return to
work, as it had already offered her three opportunities to attend the CSR – Call Center training,
and she had refused to attend every one.” (D’s Mem. at 15.). The record supports Defendant’s
proffered reasoning.19
Defendant terminated Plaintiff after informing her that she had to attend this mandatory
training, (P’s 56.1 Stmt. ¶¶ 95, 97), and giving her three opportunities across four months to
complete it, (ECF No. 72-22 at 3-4; ECF No. 72-23; ECF No. 72-24). Further, Plaintiff declined
to attend the first training only one day before, (ECF No. 72-22 at 5-6), and the second training
three days before, (Herrera Decl. Ex. A-16). Five days before the third training date, Plaintiff

19

To the extent Plaintiff suggests that the delay between February and April in
scheduling her training was an adverse action – and the Court does not see that she does, but
Defendant has so construed her claim in an excess of caution, (D’s Mem. at 13-14) – Defendant
sets forth a legitimate reason for that delay: “Herrera’s belief that Plaintiff had not reached a
final decision on whether to transfer positions,” (Id. at 15). The record supports this contention.
Despite Plaintiff stating in February 2018 that she accepted the CSRCC position, she did so
conditionally, stating she needed to accumulate funds for the training commute. (P’s Depo. at
220:5-221:18.) She then posed a series of questions about the job, the training and her
equipment. (Herrera Decl. Ex. A-13.) Herrera’s joyful reaction to Plaintiff’s April statement
that was ready to move forward, (id.), shows that Herrera did not, until that time, believe
Plaintiff had committed to taking the job.

36

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 37 of 60

emailed Herrera, “In light of my upcoming appointment, I am unsure and at the interest of all
parties, to move foward [sic] with the August 6th training date.” (ECF No. 72-26.) For the first
training, Plaintiff simply requested to postpone the training and when asked why, she simply
said, “I requested to put the training on hold.” (ECF No. 72-22 at 5-6.) For the second training,
Plaintiff stated, “With additional items pending confirmation, I am unsure if I am able to meet
your 4pm deadline [to confirm attendance]” and “I am regretfully unable to meet your 4 pm
deadline today.” (Herrera Decl. Ex. A-16.) And for the third training, she canceled “due to [her]
appointment scheduled for 8/22/18.” (ECF No. 72-28.) Given these last-minute and/or
unjustified refusals to attend the training, it is little wonder that Defendant concluded that “[a]t
this point, it does not appear that you are willing to resume duty at this time and, therefore, we
have no other option but to consider that you are voluntarily resigning from your position.”
(ECF No. 72-27.) Even though Plaintiff responded that she was “not intend[ing] to appear as
unwilling to resume duty or to voluntarily resign from [her] position,” she added that she was
“seeking the assistance of the EEOC,” and gave no indication of any interest in rescheduling.
(ECF No. 72-28.) Nine days later, on August 22, she submitted a doctor’s note that she was not
to work for six more weeks. (ECF No. 72-29.) The year of absence, months of postponements,
and lack of assurance that Plaintiff would actually be returning created a legitimate,
nondiscriminatory reason for Defendant’s decision to terminate Plaintiff. “Many courts have
found job abandonment and excessive absenteeism to be legitimate business reasons for
termination.” Constance v. Pepsi Bottling Co. of NY, No. 03-CV-5009, 2007 WL 2460688, at
*24 (E.D.N.Y. Aug. 24, 2007) (collecting cases); see Hernandez v. Int’l Shoppes, LLC, 100 F.
Supp. 3d 232, 263 (E.D.N.Y. 2015) (“Federal courts do not have a roving commission to review
business judgments, and may not sit as super personnel departments, assessing the merits – or

37

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 38 of 60

even the rationality – of employers’ non-discriminatory business decisions. Typically, it is not
for courts to second-guess the quality or wisdom of the reason, so long as it is not unlawfully
discriminatory.”) (cleaned up). Thus, Defendant has proffered a legitimate, nondiscriminatory
reason for Plaintiff’s termination: her continued absence and the uncertainty of her returning to
her newly assigned position.
4.

Whether Plaintiff Demonstrates that Defendant’s Reason Is
Pretextual

Because Defendant has met its burden by offering a legitimate, nondiscriminatory reason
for terminating Plaintiff, the burden shifts back to Plaintiff to produce evidence that Defendant’s
reasoning is pretextual. See Sista v. CDC Ixis N. Am., Inc, 445 F.3d 161, 169 (2d Cir. 2006). A
plaintiff “must produce not simply some evidence, but sufficient evidence to support a rational
finding that the legitimate, nondiscriminatory reasons proffered by the defendant were false, and
that more likely than not discrimination was the real reason for the employment action.”
Weinstock, 224 F.3d at 42 (cleaned up). “In short, the question becomes whether the evidence,
taken as a whole, supports a sufficient rational inference of discrimination.” Id. “[A] reason
cannot be proved to be a pretext for discrimination unless it is shown both that the reason was
false, and that discrimination was the real reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 515 (1993) (emphasis in original) (cleaned up). Here, Plaintiff fails to provide any evidence
demonstrating that Defendant’s nondiscriminatory reason for terminating her was pretextual as
she does not address Defendant’s proffered reason at all in her opposition. Nor does the record
reveal any evidence of pretext.

38

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 39 of 60

Accordingly, Plaintiff’s disability discrimination claims under the ADA, RA and
NYSHRL are dismissed.20
Failure to Accommodate
Defendant construes some of Plaintiff’s allegations as failure-to-accommodate claims –
that is, by terminating Plaintiff instead of continuing her leave of absence, and by placing
Plaintiff on unpaid leaves on October 3, 2016 and May 24, 2017 and denying her the
“opportunity to work,” Defendant failed to accommodate her disability. (D’s Mem. at 15-20.)
Given the differing limitations periods applicable under the ADA and RA/NYSHRL, Plaintiff’s
allegation that Defendant failed to accommodate Plaintiff’s disability by terminating her instead
of continuing her leave of absence will be analyzed under all three statutes, and Plaintiff’s
allegation that she was denied the “opportunity to work” by being placed on leaves of absences
in October 2016 and May 2017 will be analyzed only under the NYSHRL and RA.

20

To the extent Plaintiff attempts to allege claims of discrimination based on other events
– such as denial of her requests for a meeting with upper management; denial of work on
Sullivan County projects and (initially) a transfer to Ulster County; being without a keyboard
tray for a week; being asked to provide site coverage after her transfer to Ulster; being instructed
(initially) to attend a holiday party; the temporary absence of her “original” keyboard and
preferred ergonomic chair; being given “urgent” assignments; and a co-worker putting personal
effects in Plaintiff’s workspace while she was on leave, (P’s 56.1 Stmt. ¶¶ 155, 158) – none of
these are materially adverse employment actions because they were not “more disruptive than a
mere inconvenience or an alteration of job responsibilities.” Williams v. R.H. Donnelley, Corp.,
368 F.3d 123, 128 (2d Cir. 2004) (cleaned up) (materially adverse actions include “a termination
of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title,
a material loss of benefits, [and] significantly diminished material responsibilities”) (cleaned up);
see Norris v. N.Y.C. Hous. Auth., No. 02-CV-6933, 2004 WL 1087600, at *17 (S.D.N.Y. May
14, 2004) (withholding office equipment is not an adverse change, but rather a mere
inconvenience); Kelly v. N. Shore-Long Island Health Sys., 166 F. Supp. 3d 274, 286 (S.D.N.Y.
2016) (“[R]eassignment to a position that is more inconvenient, or demotion that does not
include a change in responsibilities, benefits, compensation, or prestige do not constitute material
adverse employment actions.”); Castro v. City of N.Y., 24 F. Supp. 3d 250, 264 (E.D.N.Y. 2014)
(“Although Plaintiff argues that other staff members were not required to [perform undesirable
tasks], simply being assigned undesirable work duties is insufficient to establish adverse
employment action . . . .”) (cleaned up).

39

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 40 of 60

To make out a prima facie case of failure to accommodate, a plaintiff must establish 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 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 Prod. Mfg. Co., 583 F.3d 92, 97 (2d
Cir. 2009) (cleaned up). Defendant argues that Plaintiff’s claim founders on the third and fourth
elements. (D’s Mem. at 16-17.)
The third element asks whether Plaintiff could have performed her essential job functions
if provided reasonable accommodation for her disability. According to regulations promulgated
under the ADA, as pertinent here, “reasonable accommodation” means “[m]odifications or
adjustments to the work environment, or to the manner or circumstances under which the
position held or desired is customarily performed, that enable an individual with a disability who
is qualified to perform the essential functions of that position.” 29 C.F.R. § 1630.2(o)(1)(ii)
(2022). Where “the employer has already taken (or offered) measures to accommodate the
disability, the employer is entitled to summary judgment if, on the undisputed record, the
existing accommodation is plainly reasonable.” Noll v. Int’l Bus. Machs. Corp., 787 F.3d 89, 94
(2d Cir. 2015) (cleaned up). “Reasonable accommodation may take many forms, but it must be
effective.” Id. at 95. “At the same time, employers are not required to provide a perfect
accommodation or the very accommodation most strongly preferred by the employee.” Id.
1.

Plaintiff’s Termination

Defendant primarily contests the third and fourth elements, arguing Plaintiff could not
perform the essential functions of her job with a reasonable accommodation, and even if she
could, it did not refuse a reasonable accommodation because a request for additional leave was

40

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 41 of 60

not reasonable. I have already determined above that there is a fact issue as to whether Plaintiff
could perform the essential functions of the CSRCC position with reasonable accommodations. I
will therefore focus on whether Plaintiff’s August 22, 2018 request for an additional six weeks of
leave can be considered a reasonable accommodation.
Defendant argues that affording Plaintiff yet another leave of absence would not have
been reasonable, as Plaintiff did not establish that by receiving such an accommodation, she
would be able to then return to work and perform the essential functions of her job. (D’s Mem.
at 16-17.) “The Second Circuit has held that a leave of absence for a finite period may be a
reasonable accommodation if an employee shows that leave will enable him to perform the
essential functions of the job when he return[s] to work.” Manns v. United Airlines, No. 13-CV3668, 2016 WL 6826761, at *9 (E.D.N.Y. Nov. 17, 2016); see Graves, 457 F.3d at 186 n.6
(leave of absence may be reasonable accommodation where “finite” and “reasonably likely to
enable the employee to return to work”). But “[w]hile temporary leave, for a specified period of
time, with clear prospects for recovery, could be a reasonable accommodation, an indefinite
leave of absence is not.” Booker v. Soho Studio Corp., No. 17-CV-5426, 2020 WL 363912, at *5
(E.D.N.Y. Jan. 22, 2020) (cleaned up); see Parker v. Columbia Pictures Indus., 204 F.3d 326,
338 (2d Cir. 2000) (“[T]he duty to make reasonable accommodations does not, of course, require
an employer to hold an injured employee’s position open indefinitely while the employee
attempts to recover . . . .”); Vangas v. Montefiore Med. Ctr., 823 F.3d 174, 181-82 (2d Cir. 2016)
(request for indefinite leave of absence is not reasonable accommodation under NYSHRL).
Plaintiff, as the employee, “bears the burdens of both production and persuasion as to the
existence of some accommodation that would allow her to perform the essential functions of her
employment.” McBride, 583 F.3d at 97.

41

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 42 of 60

Defendant argues that it had no assurance that a six-week leave of absence would have
enabled Plaintiff to return to work. (D’s Mem. at 16-17.) Plaintiff responds that the doctor’s
note from her August 22, 2018 medical appointment supported her request for an additional six
weeks of leave, (P’s Opp. at 6), but she does not confront the fact that all this doctor’s note states
is that “Deborah Deangelo was seen and evaluated in my office today. She is to remain out of
work for next 6 weeks.” (ECF No. 72-29.)21 Defendant points out correctly that this note fails to
explain why Plaintiff required this leave and how it could plausibly result in her return to work.
See Hall v. Verizon N.Y., Inc., No. 13-CV-5518, 2017 WL 3605503, at *6 n.4 (S.D.N.Y. July 26,
2017) (employer “not required to be satisfied with . . . doctor’s notes” that, like those here, lack
“explanation, reasoning or basis”) (cleaned up); Bielski v. Green, 674 F. Supp. 2d 414, 425-26
(W.D.N.Y. Dec. 11, 2009) (where plaintiff provided a doctor’s note that “gave no explanation,
reasoning or basis” for the requested accommodation, plaintiff failed to demonstrate a triable
issue of fact) (collecting cases).
This note is the only evidence to which Plaintiff points as support for her request for more
leave, demonstrating that Defendant at the time did indeed lack adequate assurances that Plaintiff
would be able to return to work after this six-week leave and perform the essential functions of
her job. See Graves, 353 F. App’x 558, 560 (2d Cir. 2009) (summary order) (“[Leaves of
absence] must enable the employee to perform the essential functions of his job. Moreover, the
employee must make a showing that the reasonable accommodation would allow him to do so at
or around the time at which it is sought.”); Manns, 2016 WL 6826761, at *9 (“[Plaintiff] has still

21

This note came from a different doctor than the one who had written notes for Plaintiff
since August 2017 and who on May 24, 2018 had cleared her to work full time for shadowing
and part-time otherwise. (Compare ECF No. 72-29, with Herrera Decl. Exs. A-8, A-9, A-10, A11, A-14.)

42

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 43 of 60

failed to provide any medical evidence that [a fixed period of leave] would allow him to perform
the essential functions of his position. He has offered no medical testimony or reports to support
his assertion that had he been given additional time off from work he would have been able to
recover.”); Perkins v. U.S. Dep’t of Treasury, No. 18-CV-8911, 2022 WL 19772, at *13
(S.D.N.Y. Jan. 3, 2022) (“Plaintiff has failed to allege how taking sick leave would have enabled
her to perform the essential functions of her job once she returned.”). Therefore, Plaintiff
provided Defendant no “reasonable assurance that [she] could and would resume an essential
function of her job on a date certain if given the accommodation of another leave of absence.”
Hall, 2017 WL 3605503, at *6.
Further, Plaintiff’s request for a six-week leave starting August 22, 2018 came after she
had already been away from work for over a year, starting August 15, 2017. During this time,
Defendant granted Plaintiff an initial leave of absence for her to undergo surgery, (P’s 56.1 Stmt.
¶ 83), an extension until November 27, 2017, (id. ¶ 84), and a second extension after November
27, 2017 based on a doctor’s note stating Plaintiff should “be out of work until further notice,”
(id. ¶ 85-86; Herrera Decl. Ex. A-10). Plaintiff was cleared to work starting January 24, 2018
based on a doctor’s note that stated she could return to work without physical restrictions but
could only work 17.5 hours per week – later amended to 20 hours per week – until further notice.
(Herrera Decl. Exs. A-11, A-12.) Plaintiff remained out of work during early 2018 as Defendant
worked to find suitable accommodations and alternative positions. (P’s 56.1 Stmt. ¶¶ 88, 90, 92,
95, 103.) Once Defendant had identified the CSRCC position for Plaintiff in late January, (id.
¶ 90), and Defendant and Plaintiff engaged in lengthy, repetitive back-and-forth in which
Defendant was unusually patient with Plaintiff’s repeated purported concerns about issues as to
which she had already been given assurances, (see id. ¶¶ 92, 94-96, 100-109, 112, 114-116, 121-

43

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 44 of 60

125, 127-129), Plaintiff refused to attend mandatory training three times between May 2018 and
August 2018, (see id. ¶¶ 119, 129, 133), despite being cleared to return to work full time for that
purpose, (Herrera Decl. Ex. A-14).
Where previous requests for leave do not result in the employee’s return, the employer,
without more, has no reason to believe that another leave would do the trick, and in those
circumstances the latest request “amount[s] to a request for an indefinite leave, which is an
unreasonable accommodation.” Hall, 2017 WL 3605503, at *6. While Plaintiff here requested a
specific period, the request followed previous requests that were granted, which already had
extended her time away from work to beyond a year. See Powers v. Polygram Holding, Inc., 40
F. Supp. 2d 195, 201 (S.D.N.Y. 1999) (courts may conclude as a matter of law that an
accommodation of “a very long leave of absence, such as one year,” is unreasonable). By the
time Plaintiff was terminated, she “was no longer working toward an accommodation of h[er]
disability, but was effectively seeking an indefinite leave of absence. Such a leave simply cannot
be a reasonable means of accommodation, and termination as a result of indefinitely continuing
absence does not subject the employer to ADA liability.” Donofrio v. N.Y. Times, No. 99-CV1576, 2001 WL 1663314, at *7 (S.D.N.Y. Aug. 24, 2001).
In short, there is insufficient evidence for a reasonable jury to conclude that Plaintiff’s
request for a six-week leave – on the heels of a year of leave and months of procrastination –
constituted a reasonable accommodation. See Parker, 204 F.3d at 338 (“The duty to make
reasonable accommodations does not, of course, require an employer to hold an injured
employee’s position open indefinitely while the employee attempts to recover, nor does it force
an employer to investigate every aspect of an employee’s condition before terminating him based
on his inability to work.”); McNamara v. Tourneau, Inc., 496 F. Supp. 2d 366, 377 (S.D.N.Y.

44

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 45 of 60

2007) (“An employer cannot reasonably be expected to hold a job open for an employee without
some indication that the employee is likely to return and some idea of when that is likely to
happen.”), aff’d, 326 F. App’x 68 (2d Cir. 2009) (summary order); Forgione v. City of N.Y., No.
11-CV-5248, 2012 WL 4049832, at *9 (E.D.N.Y. Sept. 13, 2012) (reasonable leave request
gives, among other things, indication that limitations necessitating leave would be resolved and
that the employee would upon return be able to perform essential functions of job).
2.

Other Instances

Plaintiff in her opposition attempts to rely on new allegations relating to alleged failures
to accommodate, which she never previously raised or alleged. “It is black letter law that a party
may not raise new claims for the first time in opposition to summary judgment.” Manley v.
Grossman, No. 13-CV-1974, 2017 WL 4326541, at *11 (S.D.N.Y. Sept. 27, 2017) (cleaned up)
(collecting cases). This rule has been applied to pro se litigants. See Avillan v. Donahue, 483 F.
App’x 637, 639 (2d Cir. 2012) (summary order) (“The district court did not err in disregarding
allegations [the pro se plaintiff] raised for the first time in response to [the defendant's] summary
judgment motion.”); Wright v. Jewish Child Care Ass’n of N.Y., 68 F. Supp. 3d 520, 529
(S.D.N.Y. 2014) (pro se plaintiffs are not permitted to assert new claims in opposition to a
motion for summary judgment); Harvey v. N.Y.C. Police Dep’t, No. 93-CV-7563, 1997 WL
292112, at *2 n.2 (S.D.N.Y. June 3, 1997) (disregarding claims that a pro se plaintiff asserted for
the first time in opposition to a motion for summary judgment). But in an excess of caution, I
will address Plaintiff’s new allegations here.
Plaintiff argues that “it is not clear that Defendant was justified in taking the position that
it would have been unreasonable to expect them to allow her to work at her original position in a
part time capacity.” (P’s Opp. at 4.) I interpret this as a roundabout way of suggesting that

45

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 46 of 60

Defendant should have allowed Plaintiff to work part-time as a CSRO. But Defendant was
justified in not doing so, as it is undisputed that at the time, MAXIMUS did not employ part-time
CSROs, nor did it have such a position available. (P’s 56.1 Stmt. ¶ 90.) “[T]he ADA does not
require an employer to create a new position or to eliminate an essential function of a job, as
these are not considered reasonable accommodations.” Clark v. Coca-Cola Beverages Ne., Inc.,
No. 20-CV-4040, 2022 WL 92060, at *3 (2d Cir. Jan. 10, 2022) (emphasis in original); see
Harvin v. Manhattan & Bronx Surface Transit Operating Auth., 767 F. App’x 123, 126 (2d Cir.
2019) (summary order) (reassignment to vacant position is reasonable accommodation, but ADA
does not require employers to create entirely new positions, and employee’s burden to show that
reasonable accommodation exists includes existence of vacant position for which she is
qualified); Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 99 (2d Cir. 1999) (employer need
not reassign employee if no position is vacant, nor is employer obliged to create new position to
accommodate employee); Parnahay v. United Parcel Serv., Inc., 20 F. App’x 53, 56 (2d Cir.
2001) (summary order) (affirming grant of summary judgment where plaintiff offered no
evidence that alternative position for which he was qualified existed and was available).
Plaintiff also suggests that she had “valid reasons” for rejecting Defendant’s offered
accommodations and that Defendant failed to accommodate by not addressing the “legitimate
problem[s]” she raised. (P’s Opp. at 4-6.) Specifically, Plaintiff suggests that Defendant failed
to accommodate her disability by never delivering the ergonomic keyboard and chair, lefthanded keyboard, and voice recognition software to her home, even though it had agreed to do
so. (Id. at 5; see ECF No. 72-21 (Defendant agreeing in writing to provide to Plaintiff’s home
the same equipment “previously provided in connection with accommodations”).) This
argument is absurd, as Plaintiff never even undertook the preliminary training that would have

46

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 47 of 60

allowed her to begin working at home as a CSRCC. It is wholly unreasonable to impose ADA
liability on an employer for not providing promised accommodations when the employee refuses
to start the position.
Next Plaintiff states that Defendant, before the May training, refused to address her
concerns about the telecommuter agreement, and particularly her concern that if the system went
down, she would have to report to work in New York City. (P’s Opp. at 5.) This claim is untrue,
evidenced by the e-mails from Herrera to Plaintiff at 12:27 am on May 14 in which Plaintiff was
assured that in the event of an outage she would “paid for the time while Systems is working on
the problem,” and “[i]f Systems is not able to resolve the problem immediately,” she would
“given the distance,” be permitted to choose between reporting to the city or taking time off.
(ECF No. 72-22.) That Plaintiff did not like those choices hardly makes them unreasonable.
“[E]mployers are not required to provide a perfect accommodation or the very accommodation
most strongly preferred by the employee.” Noll, 787 F.3d at 95.
Plaintiff further argues that she did not attend the June training because Defendant had
not addressed her concerns regarding cell phone connectivity. (P’s Opp. at 5-6.) This is again
untrue, as Plaintiff had been assured repeatedly, as early as May 14, that spotty cell service was
not a problem. (ECF No. 72-22.) Further, she provides no explanation for why she could not
have commenced the training even if that issue in fact had not yet been addressed. She next
claims that she refused the August 6, 2018 training because if it had gone beyond two weeks, she
might have missed her August 22 medical appointment. (P’s Opp. at 6.) There is no indication
that that appointment would not have been accommodated had Plaintiff’s progress at the training
necessitated third week. Further, when Plaintiff was advised on July 26 that she had to commit
to the August 6 training by August 1, (ECF No. 72-24), and she responded that she could not do

47

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 48 of 60

so because of an August 22 appointment, she did not ask if she could be excused from the
training to go to the appointment if necessary,22 but rather said she would be contacting the
EEOC, (ECF No. 72-26), effectively shutting down the conversation. Defendant was entirely
justified in concluding that Plaintiff’s alleged “valid reasons” for refusing the training were not
in fact valid but were excuses to put off a return to work. During months of communicating with
Plaintiff, Herrera continuously worked to provide her with as much information as possible, and
gave her opportunities to share her thoughts and ask for more information. (See, e.g., ECF No.
72-22 at 2 (“Please confirm if the responses below answer your questions and whether you are
ready to move forward.”); 4; (“If you have any further questions or concerns, I am glad to
answer them.”); 8 (“Let me know if you need any further information on this.”)). Many
employers would have become frustrated with Plaintiff’s repetitious and irrelevant inquiries long
before Defendant. Even if Plaintiff had “valid reasons” for declining the proposed
accommodations, that does not mean that the accommodations were not reasonable or that
Defendant violated the ADA in offering them. But the invalidity of Plaintiff’s reasons further
supports the conclusion that the accommodations were reasonable.
3.

Plaintiff’s October 2016 and May 2017 Leaves of Absences

To the extent Plaintiff alleges Defendant denied her the opportunity to work by placing
her on leaves of absences in October 2016 and May 2017, her failure-to-accommodate claim –
which is time-barred under the ADA but timely under the NYSHRL and RA – also fails.
Plaintiff appears to argue that instead of providing her with leaves of absences, Defendant should

22

Such an inquiry would be particularly appropriate, had Plaintiff really wanted to work,
given that the training and the August 22, 2018 doctor’s appointment were both in Manhattan.
(See ECF No. 72-29 (appointment at Hospital for Special Surgery on East 72nd Street); P’s Depo.
at 212:6-9 (training at 30 Broad Street).)

48

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 49 of 60

have provided her with a part-time schedule or another accommodation where she could have
kept working as a CSRO, and thus failed to accommodate her.
Based on Plaintiff’s doctor’s notes, Plaintiff was unable to perform the essential functions
of the CSRO position without an accommodation. According to its job description, the CSRO
position required computer literacy and proficiency in Microsoft Excel and Word. (P’s 56.1
Stmt. ¶ 18; see ECF No. 72-9.) Further, the role required using a computer keyboard at least a
third and possibly two-thirds or more of the workday. (P’s 56.1 Stmt. ¶¶ 20-21.) Additionally, a
CSRO was not permitted to work from home and had to be present at the office during regular
business hours. (Id. ¶¶ 24-25.)
In October 2016, Plaintiff submitted a doctor’s note that stated, “Light duty with no
significant use of right upper extremity. If unavailable, then out of work until further notice.”
(Herrera Decl. Ex. A-6.) Given that Plaintiff is right-handed, (P’s 56.1 Stmt. ¶ 44), and typing
was an essential function, Defendant reasonably believed, in light of the above restrictions
outlined by her doctor, that there was no way she could perform the necessary functions of the
CSRO position, so it provided her with a leave of absence. (Herrera Decl. ¶ 20.). Similarly, in
May 2017, Plaintiff provided a doctor’s note that said, “No repetitive stress to right upper
extremity. NO lifting. Suggest supervisory or advisory until reassessed at next appointment on
6/28/17.” (Herrera Decl. Ex. A-8.) Defendant therefore again provided Plaintiff with a leave of
absence. (Id. ¶ 34.)
That Plaintiff wanted other accommodations instead – such as a part-time schedule –
does not mean that Defendant failed to provide a reasonable accommodation. As explained in
section III.C.2 above, Defendant was under no obligation to create a part-time CSRO position.
Leaves of absences are considered reasonable accommodations under the ADA where the leave

49

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 50 of 60

would “likely enable an employee to return to work.” See Wenc v. New London Bd. of Educ.,
No. 14-CV-840, 2016 WL 4410061, at *13 (D. Conn. Aug. 16, 2016) (collecting cases). The
first doctor’s note explicitly states Plaintiff should be out of work if “light duty” is unavailable.
And the second imposed restrictions that would have made it impossible for Plaintiff to perform
the essential functions of her job. Under such circumstances, leaves of absence are a reasonable
accommodation. See id. at *14 (collecting cases); 29 C.F.R. § 1630 app. (2022) (“[T]he
employer providing the accommodation has the ultimate discretion to choose between effective
accommodations, and may choose the less expensive accommodation or the accommodation that
is easier for it to provide.”) Thus where, as here, an “employer has already taken (or offered)
measures to accommodate the disability, the employer is entitled to summary judgment if, on the
undisputed record, the existing accommodation is plainly reasonable.” Noll, 787 F.3d at 94
(cleaned up). Because the leaves of absences here are “plainly reasonable,” “[t]here is no need to
engage in further burden-shifting to consider whether the employee's requested accommodation
would have been reasonable.” Id. (cleaned up).
Therefore, Plaintiff fails to establish a prima facie failure-to-accommodate claim and
summary judgment is granted as to that claim.23

23

If Plaintiff intends to suggest that Defendant failed to engage in the required interactive
process to explore accommodations, (see P’s Opp. at 4), that contention would be frivolous.
Even if failure to engage in the interactive process were itself a violation of the ADA, which it is
not, McBride, 583 F.3d at 101-02; Noll, 787 F.3d at 98, the record here shows that Defendant,
over a period of years, patiently, courteously, and creatively interacted with Plaintiff to give her
every opportunity to keep her job. In October 2016, Herrera informed Plaintiff that she was
working with Travelers and Plaintiff’s doctor to find ways to have Plaintiff back at work with
appropriate accommodations and/or restrictions. (ECF No. 72-15.) Herrera also met with
Plaintiff on October 31, 2016. (P’s 56.1 Stmt. ¶ 48.) Between November 2016 and April 2017,
Defendant worked with Plaintiff on providing her with ergonomic equipment and ensuring that
she would not have to cover other offices unless her needs could be met. (ECF No. 72-17; ECF
No. 72-18; ECF No. 72-19.) In May 2017, Herrera and Cortez spoke with Plaintiff on the phone

50

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 51 of 60

Hostile Work Environment
Plaintiff alleges that various incidents at her workplace created a hostile work
environment. This claim can only be analyzed under the NYSHRL and the RA, not the ADA, as
all of the incidents on which she relies occurred before February 20, 2018, and the continuing
violation doctrine does not apply.
“The standard for demonstrating a hostile work environment is the same under Title VII,
the ADA, the Rehabilitation Act, and the NYSHRL.” Zabar v. N.Y.C. Dep’t of Educ., No. 18CV-6657, 2020 WL 2423450, at *6 n.7 (cleaned up).
A prima facie hostile work environment claim under NYSHRL requires that the
complained of conduct “(1) be objectively severe or pervasive – that is, creates an
environment that a reasonable person would find hostile or abusive; (2) creates an
environment that the plaintiff subjectively perceives as hostile or abusive; and (3)
creates such an environment because of the plaintiff’s protected status.”
Kugel v. Queens Nassau Nursing Home Inc., 568 F. Supp. 3d 253, 262-63 (E.D.N.Y. 2021)
(quoting Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (per curiam)); see Bilitch v. N.Y.C.
Health & Hosp. Corp., 148 N.Y.S.3d 238, 245 (App. Div. 2021) (under the NYSHRL, “[a]
plaintiff . . . must show that the workplace is permeated with discriminatory intimidation,

and Herrera suggested Plaintiff use a left-handed keyboard so she could return to work. (P’s
56.1 Stmt. ¶ 74.) Plaintiff was able to return to work, after being cleared by her doctor to use this
kind of keyboard. (ECF No. 72-20.) After Plaintiff was limited to part-time work, Defendant
identified a position and made herculean efforts to get Plaintiff the necessary training. (ECF No.
72-21; ECF No. 72-22; ECF No. 72-23; ECF No. 72-24.) These efforts clearly show Defendant
engaged in the interactive process. See Vangas v. Montefiore Med. Ctr., 6 F. Supp. 3d 400, 420
(S.D.N.Y. 2014) (“An interactive process may involve a meeting with the employee who
requests an accommodation, requesting information about the condition and what limitations the
employee has, asking the employee what he or she specifically wants, showing some sign of
having considered the employee’s request, and offering and discussing available alternatives
when the request is too burdensome.”) (cleaned up). Further, the interactive process is not even
required “when the end it is designed to serve – reasonable accommodation – has already been
achieved,” such as here, “when the accommodations provided to the employee were plainly
reasonable.” Noll, 787 F.3d at 98.

51

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 52 of 60

ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the plaintiff’s
employment and create an abusive working environment”). To be sufficiently pervasive, the
conduct “must be more than episodic; it must be sufficiently continuous and concerted.” Kugel,
568 F. Supp. 3d at 253 (cleaned up). In determining whether a hostile work environment existed,
“a court must consider all the circumstances, including the frequency of the discriminatory
conduct, its severity, whether it was physically threatening or humiliating, or a mere offensive
utterance, and whether it unreasonably interfered with the plaintiff's work performance.” Bilitch,
148 N.Y.S.3d at 245. “The allegedly abusive conduct must not only have altered the conditions
of employment of the employee, who subjectively viewed the actions as abusive, but the actions
must have created an objectively hostile or abusive environment – one that a reasonable person
would find to be so.” Clarke v. Metro. Transp. Auth., 57 N.Y.S.3d 491, 493 (App. Div. 2017)
(cleaned up).
Plaintiff alleges that Defendant created a hostile work environment by (1) transferring
assignments for Sullivan County to other employees; (2) telling Plaintiff to attend a holiday party
despite her request not to (an instruction promptly withdrawn, (P’s Depo. at 194:11-195:2));
(3) not initially providing her with the chair she had used at Sullivan County after she was
transferred to Ulster County; (4) removing her original keyboard from her workstation after
providing her with a left-handed keyboard; (5) giving her an assignment shortly before she was
supposed to go on leave for surgery; (6) permitting another employee’s personal items to be
placed at Plaintiff’s workstation when she was out on leave in 2017; and (7) initially declining
her request to be reassigned to Ulster County. (P’s 56.1 Stmt. ¶ 158.) But these incidents –
taken together – do not rise to the level of seriousness or pervasiveness necessary for a hostile
work environment claim.

52

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 53 of 60

The events of which Plaintiff complains are isolated and occasional, not pervasive.
“Isolated incidents generally will not suffice to establish a hostile work environment unless they
are extraordinarily severe.” Kaytor v. Elec. Boat Corp., 609 F.3d 537, 547 (2d Cir. 2010); see
Kotcher v. Rosa & Sullivan Appliance Ctr., Inc., 957 F.2d 59, 62 (2d Cir. 1992) (“The incidents
must be repeated and continuous; isolated acts or occasional episodes will not merit relief.”);
Carrero v. N.Y.C. Hous. Auth., 890 F.2d 569, 577 (2d Cir. 1989) (“The incidents must be more
than episodic; they must be sufficiently continuous and concerted in order to be deemed
pervasive.”). Nor do her allegations rise to the level of “severe.” Several were promptly
remedied, and all were no more than “petty office grievances.” Paul v. Postgraduate Ctr. for
Mental Health, 97 F. Supp. 3d 141, 183 (E.D.N.Y. 2015) (collecting cases). They do not “rise
above the level of petty slights and trivial inconveniences,” Marseille v. Mount Sinai Health Sys.,
Inc., No. 18-CV-12136, 2021 WL 3475620, at *11 (S.D.N.Y. Aug. 5, 2021), and thus “do not
rise to the level of a hostile work environment,” Pezzano v. Sears, Roebuck & Co., 131 F.3d 131
(table), 1997 WL 738071, at *3 (2d Cir. 1997). Indeed, far more distressing circumstances have
been found insufficient to constitute a hostile work environment. See, e.g., Abalola v. St. Luke’sRoosevelt Hosp. Ctr., No. 20-CV-6199, 2022 WL 973861, at *10-11 (S.D.N.Y. Mar. 30, 2022);
Postell v. Rochester City Sch. Dist., 136 F. Supp. 3d 492, 502-03 (W.D.N.Y. 2015). In short, the
incidents “were too few, too separate in time, and too mild, under the standard so far delineated
by the case law, to create an abusive working environment.” Alfano v. Costello, 294 F.3d 365,
380 (2d Cir. 2002).
Moreover, “mistreatment at work . . . through subjection to a hostile environment . . . is
actionable . . . only when it occurs because of an employee’s . . . protected characteristic.”
Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001). Here there is no evidence that would

53

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 54 of 60

“support any inference that a hostile work environment was created and existed because of
[Plaintiff’s] protected status.” Sosa v. N.Y.C. Dep’t of Educ., 368 F. Supp. 3d 489, 498
(E.D.N.Y. 2019) (cleaned up). “[A]bsent some evidence to link Defendants’ conduct to
Plaintiff’s protected characteristics, Plaintiff has not raised a triable question of fact on her
hostile work environment claim.” Marseille, 2021 WL 3475620, at *11.
Accordingly, Plaintiff’s hostile work environment claims under the NYSHRL and RA are
dismissed.
Retaliation Claim
Plaintiff alleges Defendant retaliated against her because she filed workers’ compensation
claims and reported an “incident with Joe Todora,” the Commissioner of the Sullivan County
Department of Social Services. (P’s 56.1 Stmt. ¶¶ 164, 166.) “Retaliation claims under the
Rehabilitation Act, ADA, and NYSHRL are governed by the same standards.” Dodd v. City
Univ. of N.Y., 489 F. Supp. 3d 219, 268 (S.D.N.Y. 2020). To establish a prima facie case of
retaliation, an employee must show that (1) the employee “was engaged in protected activity, (2)
the employer was aware of that activity, (3) the employee suffered a materially adverse action,
and (4) there was a causal connection between the protected activity and that adverse action.”
Agosto v. N.Y.C. Dep’t of Educ., 982 F.3d 86, 104 (2d Cir. 2020) (cleaned up).24
Plaintiff filed several workers’ compensation claims during her time at MAXIMUS,
including in December 2011, March 2012, January 2015, and September 2016. (P’s Depo. at

Plaintiff’s opposition, as it appears on the docket, includes a blank page after the
heading “IV. There Are Material Issues of Fact Concerning Plaintiff’s Retaliation Claim.” (P’s
Opp. at 7.) This is the same version that was sent to the Pro Se Intake office, and it appears the
copy to which Defendant refers in its reply also had no content following the heading. (See D’s
Reply at 9 (“[Plaintiff] ignores her retaliation and non-termination-related discrimination
claims.”).)
24

54

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 55 of 60

47:22-48:10). Plaintiff claims she reported the Todora incident to Cortez in October 2016. (Id.
at 280:4-7.) Thus, Plaintiff’s retaliation claims can be analyzed only under the NYSHRL and the
RA, not the ADA, as all the relevant events occurred before February 20, 2018. And given the
three-year statute of limitations of the NYSHRL and RA, the Court can only consider Plaintiff’s
September 2016 workers’ compensation filing and her October 2016 complaint to Cortez.
Protected activity “refers to action taken to protest or oppose statutorily prohibited
discrimination.” Cornetta v. Town of Highlands, 434 F. Supp. 3d 171, 187 (S.D.N.Y. 2020)
(emphasis omitted) (cleaned up). An employee’s “complaint must be sufficiently pointed to be
reasonably understood as a complaint of discrimination.” Goonewardena v. N. Shore Long
Island Jewish Health Sys., No. 11-CV-2456, 2013 WL 1211496, at *9 (E.D.N.Y. Mar. 25, 2013)
(cleaned up), aff’d, 597 F. App’x 19 (2d Cir. 2015) (summary order); see Talwar v. Staten Island
Univ. Hosp., 610 F. App’x 28, 30 (2d Cir. 2015) (summary order) (plaintiff “must allege that
[her employer was] on notice that [her] complaints were about [statutorily prohibited]
discrimination, not just general unsatisfactory or unfair conduct”).
Defendant argues – and the Court agrees – that Plaintiff did not engage in “protected
activity.” She does not allege that Defendant retaliated against her because she opposed
purported discrimination; instead, Plaintiff claims that Defendant retaliated against her for filing
workers’ compensation claims and for reporting an incident she had with a supervisor employed
by Sullivan County. (P’s Depo. at 279:21-280:10, 335:10-25; P’s 56.1 Stmt. ¶ 164.) Filing a
workers’ compensation claim does not constitute a protected activity under the NYSHRL. See
Dipinto v. Westchester County, No. 18-CV-793, 2020 WL 6135902, at *7 (S.D.N.Y. Oct. 19,
2020); Cho v. Young Bin Café, 42 F. Supp. 3d 495, 508 (S.D.N.Y. 2013); D’Amico v. City of
N.Y., 73 N.Y.S.3d 540, 558-59 (App. Div. 2018).

55

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 56 of 60

Nor is Plaintiff’s report to Cortez about the incident with Todora25 a protected activity.
The record contains no evidence of the content of the report, beyond Plaintiff’s inscrutable
testimony that she had shared with Cortez an unidentified concern about the Commissioner –
Cortez “had pushed – she was concerned, so she had pushed me to give her a reason why I was
concerned. And I had told her about an incident, and then she had requested the meeting.” (Id.
at 147:6-12.)26
Plaintiff’s “report” fails to qualify as a protected activity because there is no evidence that
it contained mention of discrimination based on a protected characteristic. At most, Plaintiff
describes a strange incident that would not make an employer aware that the employee was
complaining of discriminatory misconduct. See Brown v. City of N.Y., No. 11-CV-2915, 2013
WL 3789091, at *15 (S.D.N.Y. July 19, 2013) (no Title VII retaliation claim based on gender
discrimination because plaintiff’s purported protected activity “merely chronicles [an
employee’s] bizarre and discordant behavior in the workplace, while making at best glancing
references to any gender-focus on that behavior”). Although Plaintiff may have felt uneasy after
her interaction with Todora, she does not supply evidence of anything she reported that is

25

Plaintiff testified:

I was in my office, and [Todora] had come upstairs through the stairwell, was looking
directly at me, came into the office. Another county employee was in there. We had
been talking about the Beshrew Camp (phonetic) coming to invite me to their holiday
gathering. I did get up to shake his hand and I introduced myself. I advised him that my
name was Debbie DeAngelo and that I work for Maximus. And when I shook his hand,
he pulled my arm forward, and he advised me that he knew exactly who I was.
(P’s Depo. at 149:20-150:12.)
26

If the meeting to which Plaintiff refers is the October 31, 2016 meeting she had with
Cortez, Herrera, and Michelle McFarlane, typed notes from that meeting do not include any
mention of this incident or Plaintiff’s report of it. (ECF No. 83-1 at 33.)

56

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 57 of 60

“sufficiently pointed to be reasonably understood as a complaint of discrimination.”
Goonewardena, 2013 WL 1211496, at *9; see id. at *9-10 (no retaliation claim where plaintiff’s
“protected activity” had no “language that could reasonably be understood to be a complaint of
discrimination on disability”); Cornetta, 434 F. Supp. 3d at 188 (no retaliation claim under the
ADA and NYSHRL where plaintiff’s “protected activity” did not contain any complaints of
informal or formal disability discrimination); Villar v. City of N.Y., 135 F.Supp.3d 105, 134 n.11
(S.D.N.Y. 2015) (“[W]hile complaints about conduct clearly prohibited by the statute need not
mention discrimination or use particular language, ambiguous complaints that do not make the
employer aware of alleged discriminatory misconduct do not constitute protected activity.”)
(cleaned up).
Even if Plaintiff’s “report” to Cortez was a protected activity, Plaintiff fails to
demonstrate there was a causal connection between the protected activity and any materially
adverse employment action. Plaintiff claims that following this report to Cortez, “it just seemed
as though e-mails weren’t being responded to with regards to work. My assignments that I had
done for – even though we were no longer at Sullivan County, those assignments were never
assigned to me. They were assigned to other employees.” (P’s Depo. at 192:2-13.) The
reassignment of work to other employees is not a sufficient adverse employment action. For a
retaliation claim, “a plaintiff must show that a reasonable employee would have found the
challenged action materially adverse, which in this context means it well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.” Kessler v.
Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d 199, 207 (2d Cir. 2006). Examples include
reassignment to arduous tasks, punitive scheduling, loss of supervisory authority and false

57

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 58 of 60

disciplinary reports. See Ward v. Shaddock, No. 14-CV-7660, 2016 WL 4371752, at *12
(S.D.N.Y. Aug. 11, 2016).
Plaintiff fails to demonstrate that the redistribution of Sullivan County work was anything
more than (at most) a mere alteration of job responsibilities that would not have dissuaded a
reasonable worker from making or supporting a charge of discrimination. Plaintiff states that
“assignments were taken from [her] and reassigned to other staff with no explanation,” and she
knew about this “[b]ecause it was a general email, and [she] was included in this e-mail, and I
was only assigned to Ulster County or maybe other counties.” (P’s Depo. at 193:10-21; 194:38.) She does not explain why doing work for Sullivan County was any more desirable than
doing work for Ulster County. While Plaintiff may not have received the assignment she desired
or the one she previously had, there is no indication or allegation that she was given significantly
diminished responsibilities. See Greco v. County of Nassau, 146 F. Supp. 2d 232, 245 (E.D.N.Y.
2001) (“[A] mere undesired lateral move, standing alone, would to be sufficient to constitute
adverse employment action . . . .”) The reassignment of Sullivan County assignments to other
employees after her October 2016 report to Cortez simply does not constitute an adverse
employment action. See Scafidi v. Baldwin Union Free Sch. Dist., 295 F. Supp. 2d 235, 239
(E.D.N.Y. 2003) (“Notably, retaliation laws are intended to protect employees from genuine
workplace mistreatment and harassment; they are not intended to guarantee that employees will
never suffer inconveniences or that their every desire will be fulfilled.”) (cleaned up). Nor is
there any indication that the reassignments were the result of the October 2016 report, as
opposed to the closure of the Sullivan County office while Plaintiff was on leave and her
subsequent assignment to Orange County and then Ulster County. See Mendez-Nouel v. Gucci
Am., Inc., No. 10-CV-3388, 2012 WL 5451189, at *13 (S.D.N.Y. Nov. 8, 2012) (inference of

58

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 59 of 60

causation arising from temporal proximity “may be negated – or, put differently, the causal chain
broken – where an intervening event post-dating the protected conduct provides an independent
basis for the adverse action, or where the uncontroverted evidence otherwise renders the
inference unreasonable in the case at hand”), aff’d, 542 F. App’x 12 (2d Cir. 2013) (summary
order).
Likewise, Plaintiff’s belief that “it just seemed as though e-mails weren’t being
responded to with regards to work” hardly rises to the level of a materially adverse employment
action. Plaintiff never explains what exactly she means by this or provides evidence of any emails that were not responded to at any point. Nor is there any evidence, or even allegation, that
any supposed lack of response affected Plaintiff’s ability to do her job or otherwise would be
serious enough to discourage a reasonable worker from making or supporting a charge of
discrimination. Cf. Graham, 2018 WL 1318988, at *5 (“cutting off communication for days at a
time” does not constitute an adverse employment action under the ADA).
While Plaintiff’s ultimate termination is an adverse employment action, there is no causal
connection between her report to Cortez and her termination. Almost two years elapsed between
those events, and there are no other facts suggesting a causal connection between Plaintiff’s
report and ultimate termination. See Brown, 2013 WL 3789091, at *17 (no causal connection
and no temporal nexus found when there was a six-month period between plaintiff’s protected
activity and the adverse employment action).
Therefore, Plaintiff’s retaliation claims are dismissed.

59

Case 7:19-cv-07957-CS Document 85 Filed 08/02/22 Page 60 of 60

IV.

CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment is GRANTED.

The Clerk of Court is respectfully directed to terminate the pending motion, (ECF No. 71), enter
judgment for Defendant, and close the case.
SO ORDERED.
Dated: August 2, 2022
White Plains, New York
________________________________
CATHY SEIBEL, U.S.D.J.

60