Luzunaris v. Baly Cleaning Servs.

Full title: GABRIELLE LUZUNARIS, Plaintiff, v. BALY CLEANING SERVICES, et al.…

Court: United States District Court, S.D. New York

Date published: Jul 29, 2024

23-CV-11137 (GHW) (RFT) (S.D.N.Y. Jul. 29, 2024)

Opinion

23-CV-11137 (GHW) (RFT)

07-29-2024

GABRIELLE LUZUNARIS, Plaintiff, v. BALY CLEANING SERVICES, et al., Defendants.

TO THE HONORABLE GREGORY H. WOODS, UNITED STATES DISTRICT JUDGE:

REPORT AND RECOMMENDATION

TO THE HONORABLE GREGORY H. WOODS, UNITED STATES DISTRICT JUDGE:

Plaintiff Gabriella Luzunaris (“Luzunaris”) brings claims under federal, state, and city law against Defendants Baly Cleaning Services, Inc. (“Baly Cleaning”) and Nade Coulibaly-Doucoure (“Coulibaly-Doucoure”) for alleged discrimination based on sex and pregnancy and for retaliation. (See ECF 1, Compl.) Pending before the Court is Defendants' motion to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. Having carefully reviewed the parties' submissions, and for the reasons set forth herein, I respectfully recommend that Defendants' motion be GRANTED IN PART and DENIED IN PART, as specified below.

FACTUAL BACKGROUND

For purposes of the pending motion to dismiss, the Court must accept Plaintiff's well-pleaded allegations as true and draw all reasonable inferences in her favor. See City of Providence v. BATS Glob. Mkts., Inc., 878 F.3d 36, 50 (2d Cir. 2017). Plaintiff's allegations are summarized below.

Plaintiff was hired as a janitorial cleaner by Baly Cleaning around February 28, 2022 in connection with its contract to provide cleaning services to sites administered by the New York City Housing Authority (“NYCHA”). (See ECF 1, Comp. ¶¶ 28-29.) Coulibaly-Doucoure was the owner of Baly Cleaning and Plaintiff's supervisor. (See id. ¶ 26.) Plaintiff was to work 40 hours per week at the rate of $39.36 per hour. (See id. ¶ 8.) For the first few weeks of her employment, Plaintiff was assigned to multiple NYCHA sites. (See id. ¶ 32.) During that time, Plaintiff learned that she was pregnant and “immediately” told Coulibaly-Doucoure. (See id. ¶ 34.) Coulibaly-Doucoure advised Plaintiff that her pregnancy would not be an issue and asked Plaintiff about the timing of her maternity leave; Coulibaly-Doucoure said that she had few female employees and was unsure about how to handle maternity leave. (See id. ¶¶ 35-36.)

Coulibaly-Doucoure next assigned Plaintiff temporarily to NYCHA's Washington-Lenox Houses, where Plaintiff's tasks were modified by that site's superintendent after Coulibaly-Doucoure told the superintendent that Plaintiff was pregnant. (See id. ¶¶ 38-39.) Coulibaly-Doucoure did not inform the superintendents at subsequent NYCHA sites to which Plaintiff was assigned of the pregnancy, and so Plaintiff's work was not adjusted. (See id. ¶ 41.) Plaintiff was unable to perform certain assigned tasks, which created tension between her and her coworkers. (See id. ¶¶ 42-43.)

On May 6, 2022, Coulibaly-Doucoure held a mandatory video conference over Zoom for all of Plaintiff's co-workers “to discuss Plaintiff's pregnancy.” (See id. ¶ 44.) Following the Zoom meeting held around May 6, 2022, Plaintiff asked Coulibaly-Doucoure why the other superintendents had not been told of the pregnancy so that Plaintiff's tasks could be adjusted. (See id. ¶¶ 45-46.) Coulibaly-Doucoure did not respond. (See id. ¶ 47.) Plaintiff was then scheduled for only four days of work the next week. (See id. ¶ 50.) Plaintiff complained that her hours had been cut and asked whether Coulibaly-Doucoure had made accommodation requests on Plaintiff's behalf to superintendents at other NYCHA sites. (See id. ¶ 51.) Coulibaly-Doucoure did not respond. (See id. ¶ 52.) Plaintiff was not assigned any work during the week of May 16, 2022. (See id. ¶ 53.)

Around May 25, 2022, Plaintiff complained again to Coulibaly-Doucoure. (See id. ¶ 56.) Coulibaly-Doucoure's response was that none of the available work was suitable for Plaintiff, but that Baly Cleaning would find work for Plaintiff. (See id. ¶¶ 58-59.) For several weeks, Plaintiff was not assigned any work. (See id. ¶¶ 70-71.)

In June 2022, Plaintiff was assigned to Brooklyn Outdoor Gardens, where Plaintiff was required to work outside and on her feet throughout her entire shift. (See id. ¶¶ 73-74.) She left 30 minutes early due to pregnancy symptoms, including swelling ankles. (See id. ¶ 75.) On June 23, 2022, Coulibaly-Doucoure told Plaintiff that she was trying to look the other way but that she had concerns that Plaintiff was not working. (See id. ¶ 78.) Coulibaly-Doucoure said she had an assignment that was only three hours a day but that she was concerned that Plaintiff has been rejecting assignments. (See id. ¶ 79.) Plaintiff had refused to take on assignments that were less than full time or at a lower pay rate ($25.00 per hour) than the $39.36 per hour she had been promised. (See id. ¶¶ 80-81.)

Around this time, Plaintiff became aware that Coulibaly-Doucoure had assignments available at the Washington-Lexington Houses, where Plaintiff had previously received an accommodation. (See id. ¶ 82.) When Plaintiff asked Coulibaly-Doucoure about those assignments, Coulibaly-Doucoure demanded to know how Plaintiff knew about them. (See id. ¶¶ 83-84.) When Plaintiff refused to disclose her source, Coulibaly-Doucoure asked Plaintiff's co-workers if they had informed Plaintiff of the Washington-Lenox assignments. (See id. ¶¶ 8586.) Plaintiff's co-workers then reported Coulibaly-Doucoure's inquiry to Plaintiff. (See id. ¶ 87.)

Around June 24, 2022, Plaintiff told Coulibaly-Doucoure that her doctor had written a letter requesting reasonable accommodations. (See id. ¶ 89.) Plaintiff raised with Coulibaly-Doucoure her calls to other employees and told Coulibaly-Doucoure that she wanted to speak to an attorney about Coulibaly-Doucoure's unwillingness to accommodate her pregnancy. (See id. ¶¶ 90-92.) Coulibaly-Doucoure said that she would “see [Plaintiff] in court,” at which time Plaintiff's coworkers would be called to testify against Plaintiff. (See id. ¶¶ 93-94.) Plaintiff construes those statements by Coulibaly-Doucoure as actually terminating her from her position; in the alternative, Plaintiff takes the position that her mistreatment by Defendants, which culminated in the threat of litigation with her co-workers testifying against her, constituted constructive termination. (See id. ¶¶ 105-08, 122.)

PROCEDURAL HISTORY

On September 28, 2023, the EEOC issued Plaintiff a “Right-to-Sue” Letter. (See ECF 1-1, Letter). On December 22, 2023, Plaintiff timely filed a complaint alleging claims arising out of her employment with Baly Cleaning. (See ECF 1, Compl.)¹ The Court issued an order of reference to Magistrate Judge Sarah L. Cave for general pretrial supervision and for dispositive motions. (See ECF 15, Order.) The reference was reassigned to me on December 28, 2023.

1 Plaintiff alleged multiple causes of action against Baly Cleaning and Coulibaly-Doucoure: employment discrimination and retaliation based on sex and pregnancy under Title VII and the Pregnancy Discrimination Act (see id. ¶¶ 136-49, 151-64); employment discrimination and retaliation based on disability or perceived disability under the Americans with Disabilities Act (see id. ¶¶ 148-85); pregnancy and disability discrimination and retaliation under the New York State Human Rights Law (see id. ¶¶ 270-98); and pregnancy and disability discrimination and retaliation under the New York City Human Rights Law (see id. ¶¶ 229-37, 253-69). Additionally, Plaintiff brings two causes of action against Coulibaly-Doucoure in her individual capacity pursuant to the New York State Human Rights Law and the New York City Human Rights Law aiding and abetting provisions. (See id. ¶¶ 229-37, 253-69.) In her opposition to the motion to dismiss, Plaintiff states that the Complaint alleges that Defendants discriminated against her because of a disability (pregnancy) or the perception of having a disability (pregnancy) but that she does not oppose dismissal of her federal disability discrimination claim because it is “duplicative of other claims in the Complaint.” (See ECF 27, Pl.'s Opp. at 24-25.) She continues to maintain her claim of retaliation under the Americans with Disabilities Act.

Defendants filed a motion to dismiss on March 31, 2024. (See ECF 22, Defs.' Mem. in Supp. of Mot. To Dismiss.) In support of their motion, Defendants annexed 12 documents, including affidavits from each defendant, one of Plaintiff's co-workers, and a NYCHA employee (see ECF 22-1, Aff. of Baly Cleaning Services, Inc.; ECF 22-8, Aff. of Nade Coulibaly-Doucoure; ECF 22-13, Aff. of April Thorpe; ECF 22-14, Aff. of Kahlil Hill); the offer of employment to Plaintiff (see ECF 22-2); Baly Cleaning's employee handbook and employee handbook receipt (see ECF 22-3; ECF 22-4); a “New Employee Info - Policy Guide” (see ECF 22-7); and copies of Plaintiff's pay stubs (see ECF 22-5). Defendants' motion was fully briefed by April 29, 2024.² (See ECF 27, Pl.'s Opp.; ECF 36, Defs.' Reply Mem.)

2 Citations to the parties' filings reference the page numbers identified by the ECF page header.

LEGAL FRAMEWORK ON A MOTION TO DISMISS

Judgment on a Rule 12(b) motion for “failure to state a claim upon which relief can be granted” is appropriate when the complaint does not “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. In deciding a Rule 12(b)(6) motion for failure to state a claim, the Court “must accept as true all of the allegations contained in a complaint[,]” but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (internal quotations marks and citation omitted). Determining whether a complaint states a plausible claim is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. (internal quotation marks and citation omitted).

In evaluating a Rule 12(b)(6) motion, “a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). Extrinsic evidence may not be considered by the court, because “a Rule 12(b)(6) motion . . . challenges the complaint as presented by the plaintiff, taking no account of its basis in evidence.” Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016). However, an exception exists for extrinsic documents that are “integral” to the complaint, in that the plaintiff relied heavily upon such documents' “terms and effect” in drafting the complaint, so long as it is “clear on the record that . . . no dispute exists regarding the authenticity or accuracy of the document[s].” Id. “Where a defendant's motion to dismiss improperly includes a document that is neither incorporated by reference in the complaint nor integral to it, a district court must either ignore the extraneous document or convert the motion to dismiss into a motion for summary judgment and allow discovery to proceed before ruling.” Xiang v. Eagle Enterprises, LLC, No. 19-CV-1752 (PAE), 2020 WL 248941, at *3 (S.D.N.Y. Jan. 16, 2020) (citing Fed.R.Civ.P. 12(d)).

DISCUSSION

Defendants seek dismissal of the Complaint pursuant to Rule 12(b)(6) on the ground that Plaintiff fails adequately to plead each of her claims. I set out below the law relevant to each of her causes of action and discuss the adequacy of her factual allegations.

I. Extrinsic Evidence

I have reviewed the 12 extrinsic documents submitted by Defendants in support of their motion to dismiss, and I conclude that none is integral to or incorporated by reference in the Complaint. I therefore respectfully recommend that Your Honor decline to consider them.

Defendants argue that the 12 extrinsic documents are integral to the complaint and should be considered on their motion to dismiss because the documents “[d]iscuss the nature and terms of Plaintiff's employment with Defendant” and “directly relate to documented facts demonstrating” the insufficiency of the Complaint. (ECF 36, Defs.' Reply Mem. at 9-11.) It is not enough, however, for the documents to discuss or relate directly to Plaintiff's employment; for the documents to be integral to the complaint, Plaintiff would have to have relied heavily upon their “terms and effect” in drafting the complaint. Goel, 820 F.3d at 559.

Such is not the case here. The materials submitted by Defendants may be relevant to whether Plaintiff will be able to prove her claims: as Plaintiff points out, the documents go to the truth of her allegations, among others, that she was hired as a full-time employee with an hourly rate of $39.36 (see ECF 27, Pl.'s Opp. at 12-13); the documents also contest Plaintiff's allegations that Defendants' actions were because of her pregnancy as opposed to her job performance and that she was terminated or constructively terminated. (See ECF 22, Defs' Memo. in Support at 21-22; ECF 36, Defs.' Reply Memo. at 5.) However, nothing in the Complaint supports a conclusion that Plaintiff relied on those documents to draft the Complaint, and therefore a conclusion that the materials are integral to the Complaint is not warranted. The documents and affidavits submitted by Defendants fall far outside the scope of the materials a court may consider when evaluating the sufficiency of a complaint on a Rule 12(b)(6) motion.

II. Individual Liability Under Title VII, the New York State Human Rights Law (“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”)

A. Direct Individual Liability Under Title VII, the NYSHRL, and the NYCHRL

Plaintiff brings each of her claims directly against both Baly Cleaning and Coulibaly-Doucoure. However, the Second Circuit has long held that even individual defendants “with supervisory control over a plaintiff may not be held personally liable under Title VII for employment discrimination.” Prudent v. Caspi, No. 04-CV-0725 (RPP), 2004 WL 1907749, at *2 (S.D.N.Y. Aug. 25, 2004) (internal quotation marks and citation omitted). The same is true for claims of pregnancy discrimination under the PDA, see Chauca v. Park Mgmt. Ctr., LLC, No. 10-CV-5304 (ENV) (RER), 2014 WL 12652319, at *3 (E.D.N.Y. Sept. 11, 2014), as well as for claims of retaliation under Title VII and the Americans with Disabilities Act (“ADA”), see Spiegel v. Schulmann, 604 F.3d 72, 79 (2d Cir. 2010). Accordingly, I respectfully recommend that the motion to dismiss the federal claims against Coulibaly-Doucoure be GRANTED.³

3 Defendants correctly argue that Coulibaly-Doucoure cannot be held individually liable for Plaintiff's federal ADA retaliation claim (see ECF 22, Defs' Memo. in Support at 41-42), but Defendants do not address whether Coulibaly-Doucoure can be held individually liable for Plaintiff's claims under Title VII and the PDA. I nevertheless recommend that Your Honor dismiss the Title VII and PDA claims against Coulibaly-Doucoure sua sponte. See Perez v. City of New York, No. 23-CV-0447 (CM), 2024 WL 898943, at *6 (S.D.N.Y. Feb. 29, 2024) (dismissing sua sponte and with prejudice federal employment discrimination claims against the individual defendants even though the individual defendants failed to argue for dismissal of those claims); Mohammed v. NYU, No. 14-CV-8373 (GBD) (MHD), 2015 WL 3387218, at *31 (S.D.N.Y. May 21, 2015) (recommending sua sponte dismissal of claims of individual liability under federal discrimination statutes noting the “willingness shown by numerous courts” to do so) (collecting cases), report and recommendation adopted, 2015 WL 5307391 (S.D.N.Y. Sept. 10, 2015).

Similarly, under the NYSHRL, liability for employment discrimination lies with the employer alone, and corporate employees do not qualify as employers. See Nezaj v. PS450 Bar & Rest., No. 22-CV-8494 (PAE), 2024 WL 815996, at *7 (S.D.N.Y. Feb. 27, 2024) (collecting cases). However, the NYSHRL does permit individual liability for claims of retaliation. See Id. (“A]lthough the NYSHRL does not provide for direct liability for discrimination other than by an ‘employer,' it makes it unlawful for ‘any person' to retaliate.”) (citing N.Y. Exec. Law § 296(7)). I therefore respectfully recommend that the motion to dismiss the NYSHRL discrimination claim against Coulibaly-Doucoure be GRANTED.⁴

4 Defendants do not address whether Coulibaly-Doucoure can be held individually liable for Plaintiff's discrimination claim under the NYSHRL. I nevertheless recommend that Your Honor dismiss the discrimination claim under the NYSHRL sua sponte. See Perez, 2024 WL 898943, at *6.

Unlike the federal anti-discrimination laws and the NYSHRL, the NYCHRL permits individual liability for employees with supervisory authority for claims of both discrimination and retaliation. See Nezaj, 2024 WL 815996, at * 7 (explaining that the NYCHRL makes it unlawful “[f]or an employer or an employee or agent thereof . . . [t]o discriminate . . . in compensation or in terms, conditions or privileges of employment” (citing N.Y.C. Admin. Code § 8-107(1)(a)(3)); see also Russell v. New York Univ., No. 37, 2024 WL 1773218, at *7 (N.Y. Apr. 25, 2024). Plaintiff adequately pleads that Coulibaly-Doucoure had supervisory responsibility by alleging that Coulibaly-Doucoure is the owner of Baly Cleaning and that Coulibaly-Doucoure hired Plaintiff, scheduled Plaintiff's work, and otherwise controlled the terms of Plaintiff's employment. (See ECF 1, Compl. ¶¶ 26, 2958-61, 64, 82.) I therefore respectfully recommend that the motion to dismiss the NYCHRL discrimination claim against Coulibaly-Doucoure be DENIED.

B. Aiding and Abetting Liability Under the NYSHRL and NYCHRL

1. Legal Standard for Claims of Aiding and Abetting Claims

Plaintiff also brings claims against Defendant Coulibaly-Doucoure under a theory of aiding and abetting liability under the NYSHRL and the NYCHRL. “[T]he NYSHRL and NYCHRL each provide for aider-and-abettor liability.” Malena v. Victoria's Secret Direct, LLC, 886 F.Supp.2d 349, 367 (S.D.N.Y. 2012). “The language of both the NYSHRL and the NYCHRL is identical, providing that ‘it shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or attempt to do so.'” Farmer v. Shake Shack Enterprises, LLC, 473 F.Supp.3d 309, 337 (S.D.N.Y. 2020) (alteration omitted) (quoting N.Y. Exec. Law § 296(6) and N.Y.C. Admin Code § 8-107(6)). “To make out an aiding and abetting claim, the pleadings must allege that defendant actually participated in the conduct giving rise to a discrimination claim.” Id. (internal brackets and quotation marks omitted). “There is, however, a requirement that liability must first be established as to the employer/principal before accessorial liability can be found as to an alleged aider and abettor.” DeWitt v. Lieberman, 48 F.Supp.2d 280, 293 (S.D.N.Y. 1999).

2. Analysis of Coulibaly-Doucoure's Aiding and Abetting Liability

Defendants argue that Plaintiff's claims of individual aiding and abetting liability are insufficient because the Complaint pleads no valid predicate claims under the NYSHRL or the NYCHRL. (See ECF 22, Defs.' Memo. at 65.) Plaintiff contends that she has adequately pleaded that Coulibaly-Doucoure is subject to aiding and abetting liability based on alleged actual participation in the conduct giving rise to Plaintiff's discrimination claims against Baly Cleaning. (See ECF 27, Pl.'s Opp. at 29-30.) I conclude that Plaintiff is correct.

Plaintiff alleges that Coulibaly-Doucoure owns Baly Cleaning and hired Plaintiff to work providing janitorial services at NYCHA properties. (See ECF 1, Compl. ¶¶ 26, 29.) Plaintiff alleges that Coulibaly-Doucoure was her supervisor and that requests for shifts and for reasonable accommodation were made to Coulibaly-Doucoure. (See id. ¶¶ 26, 58-61, 64, 82.) For the reasons set forth below, see infra Section III, I believe that Plaintiff has sufficiently stated claims for discrimination and retaliation under the NYSHRL and NYCHRL against Baly Cleaning. Plaintiff has also sufficiently raised an inference that Coulibaly-Doucoure played a central role in the employment decisions by Baly Clearning that animate Plaintiff's claims. See Bueno v. Eurostars Hotel Co., S.L., No. 21-CV-535 (JGK), 2022 WL 95026, at *9 (S.D.N.Y. Jan. 10, 2022) (holding that the plaintiff had “pleaded facts sufficient to raise an inference that [the individual defendant] actually participated in plaintiff's termination”) (collecting cases). Accordingly, I respectfully recommend that Coulibaly-Doucoure's motion to dismiss Plaintiff's aiding and abetting claims under the NYSHRL and the NYCHRL should be DENIED.

III. The Adequacy of Plaintiff's Pleading

A. Plaintiff's Claims of Sex and Pregnancy Discrimination Under Title VII, the Pregnancy Discrimination Act, and State and City Law

1. Legal Standard for Claims of Sex Discrimination and Pregnancy Discrimination

Plaintiff brings claims for discrimination based on her sex and pregnancy under federal law (Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act (“PDA”)), the NYSHRL, and the NYCHRL. (See ECF 1, Compl. ¶¶ 136-85, 238-69.) Title VII forbids a covered employer to “discriminate against any individual with respect to . . . terms, conditions, or privileges of employment, because of such individual's . . . sex.” 42 U.S.C. § 2000e-2(a)(1). In 1978, Congress enacted the PDA, which specifies that Title VII's “ter[m] ‘because of sex' . . . include[s] . . . because of or on the basis of pregnancy, childbirth, or related medical conditions.” Young, 575 U.S. at 212 (citing 42 U.S.C. § 2000e(k)).

A plaintiff alleging employment discrimination under Title VII and the PDA “need not plead a prima facie case.” Munoz-Nagel v. Guess, Inc., No. 12-CV-1312 (ER), 2013 WL 1809772, at *4 (S.D.N.Y. Apr. 30, 2013). A plaintiff “need only give plausible support to a minimal inference of discriminatory motivation.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 84 (2d Cir. 2015) (holding that the district court had erred when it granted 12(c) dismissal because the plaintiff had not established a prima facie case of discrimination). However, the elements of the prima facie case “provide an outline of what is necessary to render a plaintiff's . . . claims for relief plausible.” Kassman v. KPMG LLP, 925 F.Supp.2d 453, 461 (S.D.N.Y. 2013) (internal quotation marks, citation, and alterations omitted).

Sex discrimination and pregnancy discrimination claims brought under the NYSHRL are “analytically identical” to Title VII claims. Deveaux v. Skechers USA, Inc., No. 19-CV-9734 (DLC), 2020 WL 1812741, at *3 (S.D.N.Y. Apr. 9, 2020) (citing Lenzi v. Systemax, Inc., 944 F.3d 97, 107 n.7 (2d Cir. 2019)). To state a discrimination claim under the NYCHRL, a plaintiff must allege merely “that she has been treated less well than other employees because of her gender.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 110 (2d Cir. 2013) (internal quotation marks and citation omitted).

The four elements of a prima facie case for employment discrimination are: (i) that Plaintiff is a member of a protected class; (ii) that Plaintiff was qualified for her position; (iii) that Plaintiff suffered an adverse employment action; and (iv) that Defendants acted with discriminatory intent. See Littlejohn v. City of New York, 795 F.3d 297, 307 (2d Cir. 2015). Defendants do not appear to dispute that Plaintiff is a member of a protected class by virtue of her pregnancy.

As set forth above, pregnancy and sex discrimination claims under federal and state law may be brought against the employer only and not against individual defendants. See supra Section II(A).

a. Qualified for Employment

To make the minimal showing required of her at the pleading stage a plaintiff "need only . . . [show] that she possesses the basic skills necessary for performance of the job.” Gregory v. Daly, 243 F.3d 687, 696 (2d Cir. 2001), as amended (Apr. 20, 2001) (internal quotation marks and citation omitted). When an employer “has already hired the employee into the job in question . . . the employer itself has already expressed a belief that she is minimally qualified.” Id. There is no need for the plaintiff to allege that “she was a perfect or even an average employee.” See Briggs v. Women in Need, Inc., 819 F.Supp.2d 119, 127 (E.D.N.Y. 2011) (citing Powell v. Syracuse Univ., 580 F.2d 1150, 1155 (2d Cir. 1978)).

b. Adverse Employment Action

To constitute an adverse employment action in the context of a discrimination claim, an action must cause “a materially adverse change in the terms and conditions of employment.” Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008) (internal quotation marks and emphasis omitted). The change in working conditions “must be more disruptive than a mere inconvenience or an alteration of job responsibilities.” Id. (quoting Sanders v. New York City Hum. Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004)) (internal quotation marks omitted). “Examples of such a change include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation.” Henry v. NYC Health & Hosp. Corp., 181 F.Supp.3d 396, 404 (S.D.N.Y. 2014) (quoting Mathirampuzha, 548 F.3d at 78) (internal quotation marks omitted).

A change in job duties may qualify as an adverse employment action if the change leaves a plaintiff “worse off” but not necessarily “significantly so ”; the harm need not be “economic or tangible.” Muldrow v. City of St. Louis, Missouri, 144 S.Ct. 967, 974 (2024) (noting that at the summary judgment stage it does not matter that a plaintiff's “rank and pay remained the same, or that she still could advance to other jobs” if “some injury” brought by the change in responsibilities is shown).

c. Discriminatory Intent

“The law in this Circuit is clear that the ‘sine qua non' of a Title VII discrimination claim is that ‘the discrimination must be because of [a protected characteristic].'” Henry, 181 F.Supp.3d at 407 (quoting Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007)). Discriminatory intent can be supported “either by pleading direct evidence of discrimination, including ‘comments indicating prejudice on account of a protected characteristic,' or by pleading facts showing that comparators outside the Plaintiff's group were treated better than Plaintiff.” Mitura v. Finco Servs., Inc., No. 23-CV-2879 (VEC), 2024 WL 232323, at *4 (S.D.N.Y. Jan. 22, 2024) (quoting Bautista v. PR Gramercy Square Condo., 642 F.Supp.3d 411, 428 (S.D.N.Y. 2022)). “At the pleadings stage, then, a plaintiff must allege that the employer took adverse action against her at least in part for a discriminatory reason, and she may do so by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination.” Vega, 801 F.3d at 87. Even in the absence of allegations of direct evidence of discrimination, a plaintiff may support an inference of discriminatory intent with a “‘mosaic' of intentional discrimination by identifying ‘bits and pieces of evidence' that together give rise to an inference of discrimination.” Id. (quoting Gallagher, 139 F.3d at 342). “An inference of discrimination can arise from circumstances including, but not limited to, “the sequence of events leading to the plaintiff's discharge.” Ojeda v. Schrager, No. 23-CV-8237 (JPO), 2024 WL 2138038, at *3 (S.D.N.Y. May 13, 2024) (citing Littlejohn, 795 F.3d at 311).

There are several cases from this District in which claims of pregnancy discrimination have survived a motion to dismiss on this basis. See, e.g., Farmer, 473 F.Supp.3d at 326; Bueno, 2022 WL 95026, at *8; Xiang, 2020 WL 248941, at *4.

2. Analysis of Plaintiff's Claims for Discrimination Based on Sex and Pregnancy

Defendants argue that Plaintiff has not sufficiently pleaded that she was qualified for the position, that she suffered an adverse employment action, or that Defendant acted with discriminatory intent. (See ECF 22, Defs.' Mem. in Supp. of Mot. To Dismiss at 26-34.) Plaintiff responds that she was qualified for the job based on her experience and training at the time that she was hired (see ECF 27, Pl.'s Opp. at 15 (citing ECF 1, Compl. ¶ 31)); that disclosing her pregnancy to Defendants resulted in adverse employment actions, including failure to accommodate her pregnancy, a reduction in hours and pay, and termination (see id.); and that the close temporal proximity between the adverse employment actions and Plaintiff's disclosure of her pregnancy, along with Defendants' conduct, are sufficient to plausibly allege an inference of discrimination. (See id.)

a. Plaintiff Alleges She Is Qualified for the Position

Defendants hired Plaintiff to perform custodial work. (See ECF 1, Compl. ¶¶ 28-29.) Defendants argue that Plaintiff was not qualified for her position because she did not complete some duties that were assigned to her and lacked the required skills for certain janitorial duties. (See ECF 22, Defs.' Mem. in Support at 26-27.) However, those arguments go to the adequacy of Plaintiff's performance rather than her qualification for the job. “[T]he asserted failure of an employee to meet requirements other than possession of the basic skills of the job is properly assessed when evaluating the employer's stated neutral reason for termination.” Calabro v. Westchester BMW, Inc., 398 F.Supp.2d 281, 290-91 (S.D.N.Y. 2005). Defendants' decision to hire Plaintiff is sufficient to satisfy the requirement that Plaintiff be qualified for the position. See, e.g., Farmer, 473 F.Supp.3d at 325.

b. Plaintiff Alleges Adverse Employment Actions

Plaintiff alleges that she suffered the following adverse employment actions: a reduction in hours and shifts (see ECF 1, Compl. ¶¶ 50, 53, 71); decreased wages (see id. ¶ 110); a change in work assignments (see id. ¶ 113); being assigned tasks that were incompatible with her pregnancy (see id. ¶¶ 41-43); and failure by Defendants to accommodate her pregnancy (see id. ¶¶ 41, 45-46, 58-61; ECF 27, Pl.'s Opp. at 15); and discharge (see ECF 1, Compl. ¶¶ 11, 14, 105).

Reduction in Hours and Shifts. Plaintiff has plausibly alleged a reduction in her hours and shifts in May and June 2022 (see id. ¶¶ 53, 71), which constituted an adverse work event. During the second week of May 2022, Plaintiff was assigned to work for four days; for the next several weeks she was assigned no work at all and was told by Coulibaly-Doucoure that none of the available work was suitable for her. (See id. ¶¶ 50-54, 58-59, 70-71.) In June 2022, Plaintiff was assigned to work at Brooklyn Outdoor Gardens, but she found that outdoor assignment to be too strenuous. (See id. ¶¶ 73-75.) Coulibaly-Doucoure apparently offered Plaintiff other assignments that she refused because they were less than full time or at a lower pay rate ($25.00 per hour) than the $39.36 per hour she had been promised. (See id. ¶¶ 80-81.) Around June 23, 2024, Plaintiff became aware of a placement available at NYCHA's Washington-Lexington House, where her assignments had previously been modified to accommodate her pregnancy; she was not offered that position or any other full-time positions. (See id. ¶¶ 39, 82, 113-14.)

Courts in this District have held that an employee suffers an adverse employment action if she is not assigned work when there is work available. See Hollington v. CDM Fed. Programs Corp., No. 22-CV-4940 (ER), 2023 WL 2457057, at *8 (S.D.N.Y. Mar. 10, 2023) (holding that failure to assign work when there was work available constituted an adverse employment action); Deveaux, No. 19-CV-9734 (DLC), 2020 WL 1812741, at *4 (S.D.N.Y. Apr. 9, 2020) (concluding that a pregnant worker's reduction in hours from full-time to part-time hourly work constituted an adverse employment action).

Reduction in Pay Rate. Plaintiff has plausibly alleged a reduction in her pay rate (see Id. ¶¶ 79-81), which constituted an adverse work event. Plaintiff alleges that in addition to failing to offer her full-time positions after she disclosed her pregnancy, Defendants failed to offer her positions at the expected hourly pay rate of $39.36 and instead offered her positions at an hourly rate of $25. (See ECF 1, Compl. ¶ 110.) Changes to an employee's rate of pay are an adverse work event that affects “the terms and conditions of employment.” Buon v. Spindler, 65 F.4th 64, 82 (2d Cir. 2023) (“[U]nder [Second Circuit] precedent, the denial of . . . an additional assignment can qualify as an adverse employment action if that . . . additional assignment . . . materially change[s] the terms and conditions of employment, such as by materially increasing the employee's pay ....”); see also Amador v. All Foods, Inc., No. 12-CV-1715 (SJF) (AKT), 2013 WL 1306305, at *4-5 (E.D.N.Y. Feb. 20, 2013) (concluding that shift changes that result in reductions in pay may constitute a cognizable adverse employment action) (collecting cases), report and recommendation adopted, 2013 WL 1282353 (E.D.N.Y. Mar. 27, 2013).

Work Responsibilities. Plaintiff argues that Defendants' assignment of tasks she could not complete because of her pregnancy constituted adverse work events. (See ECF 27, Pl.'s Opp. at 9.) However, she does not allege that her work responsibilities changed after she disclosed her pregnancy. Indeed, the gravamen of her discrimination claims is that Baly Cleaning failed to change her working conditions notwithstanding her pregnancy. (See ECF 1, Compl. ¶¶ 41-43.) Accordingly, the allegations that Defendants assigned her tasks she could not complete because of her pregnancy are properly analyzed in connection with Plaintiff's claim that Defendants failed to accommodate her pregnancy. See LaSalle v. City of New York, No. 13-CV-5109 (PAC), 2015 WL 1442376, at *4 (S.D.N.Y. Mar. 30, 2015) (analyzing the defendant's refusal to change working conditions as a failure to accommodate claim under the PDA).

Termination. Plaintiff alleges both that she was “terminated” (see ECF 1, Compl. ¶¶ 11, 14, 156, 158, 261-63) and that she was “constructively terminated” (id. ¶¶ 11, 105, 152). Plaintiff alleges that after informing Coulibaly-Doucoure of a doctor's letter around June 24, 2022 requesting reasonable accommodations for the pregnancy, Plaintiff complained about Coulibaly-Doucoure's calls to other employees to find out who had disclosed the opening at NYCHA's Washington-Lexington House and subsequently told Coulibaly-Doucoure that Plaintiff wanted to speak to an attorney about Coulibaly-Doucoure's unwillingness to accommodate her pregnancy. (See id. ¶¶ 87, 90-92.) Plaintiff further alleges that Coulibaly-Doucoure said she would “see [Plaintiff] in court,” at which time Plaintiff's coworkers would be called to testify against Plaintiff. (See id. ¶¶ 93-94.) Those allegations are sufficient to plead that Defendants actually terminated Plaintiff. Alternatively, they are sufficient to allege that Plaintiff was constructively terminated.

“Generally, to assert a constructive discharge claim, a plaintiff must show that rather than discharging [her] directly, [her] employer intentionally created a work atmosphere so intolerable that she was forced to quit involuntarily.” Bright-Asante v. Saks & Co., Inc., 242 F.Supp.3d 229, 243 (S.D.N.Y. 2017) (internal quotation marks and citation omitted), aff'd, 855 Fed.Appx. 40 (2d Cir. 2021). Coulibaly-Doucoure's failure to offer Plaintiff regular full-time work at her original pay rate is sufficient to plead that Defendants constructively terminated her. See, e.g., Halbrook v. Reichhold Chems., Inc., 735 F.Supp. 121, 126 (S.D.N.Y. 1990) (“[E]vidence of a reduction in job responsibilities to the point where an employee has nothing meaningful to do with her time can lead to an inference of constructive discharge.”); Timothy v. Our Lady of Mercy Med. Ctr., No. 03-CV-3556 (RCC), 2004 WL 503760, at *7 (S.D.N.Y. Mar. 12, 2004) (finding that the plaintiff had sufficiently pleaded her constructive discharge claim by alleging that she had been passed over for positions, placed in inferior positions below her skill level, and stripped of substantive responsibilities).

Either an “actual termination of the plaintiff's employment by the employer or a constructive' discharge” is cognizable as a discriminatory discharge. Fitzgerald v. Henderson, 251 F.3d 345, 357 (2d Cir. 2001). I believe that Plaintiff's allegations about her termination -whether viewed as actual or constructive - are sufficient to plead an adverse work event.

c. Plaintiff Alleges Discriminatory Intent

As evidence of Defendants' discriminatory intent, Plaintiff points to the temporal proximity between her announcement of her pregnancy and Defendants' reduction in her shifts and pay rate and eventually her termination: she announced her pregnancy in early March 2022 and began experiencing adverse work events (a decrease in the number of shifts offered, the length of the shifts, and the pay rate) in early May 2022, just over two months later; she was terminated or constructively terminated less than two months thereafter, in late June 2022. (See ECF 27, Pl.'s Opp. at 10; ECF 1, Compl. ¶ 89.) Courts in this District have held that temporal proximity may be sufficient at the pleading stage to establish an inference of discriminatory intent and that disclosure of the pregnancy followed by adverse work events within three or four months may be enough to show discriminatory intent. See, e.g., Farmer, 473 F.Supp.3d at 327 (noting that plausible inferences of causation are frequently found when an adverse employment action occurs within two months of the disclosure of a pregnancy) (collecting cases); Washington v. NYC Madison Ave. Med. P.C., No. 20-CV-03446 (LTS) (SN), 2023 WL 4980215, at *4 (S.D.N.Y. Aug. 3, 2023) (holding that a three-month gap between knowledge of pregnancy and an adverse employment action is sufficient to support an inference of discriminatory intent); Pellegrino v. Cnty. of Orange, 313 F.Supp.2d 303, 317 (S.D.N.Y. 2004) (holding that a four-month gap between knowledge of pregnancy and adverse employment action is “quite weak” evidence of discriminatory intent).

“[E]ven a weak temporal correlation gains in persuasiveness if there is other evidence tending to support an inference of discrimination.” Id. Here, in addition to temporal proximity,

Plaintiff alleges that Coulibaly-Doucoure demonstrated hostility towards the pregnancy by (1) embarrassing Plaintiff by requiring that her co-workers attend a mandatory meeting to discuss Plaintiff's pregnancy; (2) refusing initially to respond to Plaintiff's inquiries about reasonable accommodations; and, most significantly, (3) telling Plaintiff she should ask her boyfriend for money to make up for her reduction in hours. (See ECF 27, Pl.'s Opp. at 9 (citing ECF 1, Compl. ¶¶ 6, 40, 41, 44, 47, 52, 66).) The inference of discriminatory intent created by the two-month period between Plaintiff's disclosure of her pregnancy and the start of Defendants' alleged failures to offer her full-time work at her regular rate of pay is bolstered by these other incidents that tend to suggest that Defendants acted with discriminatory animus. See Farmer, 473 F.Supp.3d at 327 (holding that an inference of discriminatory intent based on temporal proximity of two months between disclosure of pregnancy and adverse work event was bolstered by the employer's questioning of the plaintiff's ability to continue working, reprimanding her for not disclosing her pregnancy sooner, expressing displeasure about her complaints of feeling overheated, and skepticism about her inability to lift inventory); Deveaux, 2020 WL 1812741, at *1-2 (ruling that the inference of discriminatory animus due to temporal proximity of four months between disclosure of pregnancy and adverse work event was enhanced by managers' repeated refusals to accommodate the plaintiff's pregnancy).

Defendants argue that Plaintiff has not adequately pleaded discriminatory animus, because the amount of work offered to Plaintiff and the pay rate for that work were driven by the nature of Baly Cleaning's business, particularly during the pandemic, and not by her pregnancy: “All BCS employees - whether male or female, pregnant or non-pregnant - are subject to reduced or variable pay rate and available work hours due to the nature of [Baly Cleaning's] work as a cleaning services provider and the contracted work requested by Defendants' client(s).” (ECF 22, Defs.' Mem. in Supp. of Mot. To Dismiss at 32-33.) Defendants go on to say that “no male or non-pregnant employee received . . . preferential treatment over Plaintiff” and that Plaintiff would have “seen reduction in hours because of the lack of available work for Defendants” even if she had not been pregnant. (Id.) However, Defendants' support for these arguments comes from extrinsic documents that may not be considered in connection with this Rule 12(b)(6) motion to dismiss. See, e.g., Sussman v. I.C. Sys., Inc., 928 F.Supp.2d 784, 794 (S.D.N.Y. 2013) (declining to consider extrinsic documents outside the scope of court's review on a motion to dismiss).

Defendants are correct that Plaintiff has not identified comparators who had a similar ability to work as she did but were treated better. (See ECF 22, Defs.' Memo. in Support at 32-33.) Comparators may be particularly important in pregnancy discrimination cases, because the PDA “expressly requires that [a plaintiff] show that other persons not so affected [by pregnancy] but similar in their ability or inability to work received better treatment.” E.E.O.C. v. Bloomberg L.P., 967 F.Supp.2d 816, 855-57 (S.D.N.Y. 2013) (internal quotation marks and citation omitted) (summary judgment decision). An inability by Plaintiff to identify appropriate comparators in discovery could well be dispositive after the pleading stage. See LaBarbera v. NYU Winthrop Hosp., 527 F.Supp.3d 275, 298 (E.D.N.Y. 2021) (holding on a summary judgment motion that “the PDA's text . . . instruct[s] PDA plaintiffs to find [comparators] and to await dismissal when they cannot”).

However, at this stage in the litigation, I believe that Plaintiff has supported an inference of discriminatory intent by alleging “bits and pieces of evidence that together give rise to an inference of discrimination.” Vega, 801 F.3d at 87 (internal quotation marks and citation omitted); see also Deveaux, 2020 WL 1812741, at *4 (holding that the pleading was sufficient without identifying comparators where a full-time hourly employee's hours were reduced after her scheduling accommodations were denied within two months of her disclosure of her pregnancy); Briggs, 819 F.Supp.2d at 122 (holding that comparators were not required where, within several months of plaintiff's return from leave, she was denied a desired shift, denied a transfer, and terminated); Zuckerman v. GW Acquisition LLC, No. 20-CV-8742 (VEC), 2021 WL 4267815, at *5 (S.D.N.Y. Sept. 20, 2021) (finding that comparators were not required in light of allegations of numerous offensive comments about the plaintiff's decision to pump breast milk at work being made in close temporal proximity to adverse employment actions).

* * *

For the foregoing reasons, I conclude that Plaintiff has adequately pleaded claims against Defendant Baly Cleaning for sex discrimination and pregnancy discrimination under Title VII and the PDA as well as the analytically identical NYSHRL based on a reduction in hours and pay rate and termination of her employment. Having adequately pleaded claims under those statutes, she has also stated a claim against Defendant Baly Cleaning under the more liberal standard of the NYCHRL. See, e.g., Farmer, 473 F.Supp.3d at 327 (“Because Farmer has adequately pled sex-discrimination claims under . . . [the] NYSHRL, her similar claim under the broader NYCHRL also necessarily survives.”).

I also conclude that Plaintiff sufficiently alleges Defendant Coulibaly-Doucoure's supervisory role and direct involvement in the events underlying Plaintiff's discrimination claims; accordingly, I believe that Plaintiff also states direct claims of sex discrimination and pregnancy discrimination against Coulibaly-Doucoure under the NYCHRL. See, e.g., Crawford v. Bronx Cmty. Coll., No. 22-CV-1062 (PGG) (SLC), 2023 WL 11862082, at *18 (S.D.N.Y. July 19, 2023) (holding that the plaintiff had sufficiently pleaded individual liability based on allegations of the individual defendants' direct involvement in the surviving discrimination claims).

I therefore respectfully recommend that Your Honor: DENY the motion to dismiss Plaintiff's sex discrimination and pregnancy discrimination claims against Defendant Baly Cleaning under Title VII, the PDA, the NYSHRL, and the NYCHRL; GRANT the motion to dismiss Plaintiff's sex discrimination and pregnancy discrimination claims against Defendant Coulibaly-Doucoure under Title VII, the PDA, and the NYSHRL; and DENY the motion to dismiss Plaintiff's sex discrimination and pregnancy discrimination claims against Defendant Coulibaly-Doucoure under the NYCHRL.

B. Plaintiff's Claims for Failure To Accommodate Under the Title VII, the PDA, and State and City Law

1. Legal Standard for Claims of Failure To Accommodate a Pregnancy

An employee alleging “a failure to accommodate her pregnancy” under Title VII and the PDA “must plead sufficient facts to show ‘[1] that she belongs to the protected class, [2] that she sought accommodation, [3] that the employer did not accommodate her, and [4] that the employer did accommodate others similar in their ability or inability to work.'” Xiang, 2020 WL 248941, at *4 (quoting Legg v. Ulster Cnty., 820 F.3d 67, 73 (2d Cir. 2016)). Identifying appropriate comparators has been held to be a requirement to state a claim for failure to accommodate under Title VII and the PDA.

While NYSHRL pregnancy and gender discrimination claims “are subject to Title VII standards,” NYSHRL claims for failure to accommodate a pregnancy-related condition and NYSHRL claims for disability discrimination are “governed by the same legal standards as govern federal [Americans with Disabilities Act (‘ADA')] claims.” Bethea v. Winfield Sec. Corp., No. 23-CV-0922 (AT), 2024 WL 2783753, at *2 (S.D.N.Y. May 29, 2024) (quoting Graves v. Finch Pruyn & Co., 457 F.3d 181, 184 n.3 (2d Cir. 2006)). Thus, to plead a claim under the NYSHRL based upon a failure to accommodate a pregnancy, a plaintiff must allege that: “(1) [she] is a person with a disability within the meaning of the relevant statute; (2) an employer covered by the statute had notice of [her] disability; (3) with reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations.” Bethea, 2024 WL 2783753, at *2 (quoting Tafolla v. Heilig, 80 F.4th 111, 118 (2d Cir. 2023) (internal quotation marks omitted).

The NYCHRL makes unlawful an employer's refusal to provide its employee with a reasonable accommodation for a pregnancy or related medical condition that would allow the employee to perform the essential requirements of her job. See N.Y.C. Admin. Code § 8107(22). To state a claim for failure to accommodate based on pregnancy under the NYCHRL, a plaintiff must allege that: “(1) her employer was aware of her pregnancy, (2) she requested a reasonable accommodation for pregnancy; and (3) her employer denied the request.” Bethea, 2024 WL 2783753, at *2.

Claims of failure to accommodate a pregnancy are a type of pregnancy and sex discrimination claim. See Young v. United Parcel Serv., Inc., 575 U.S. 206, 229 (2015) (holding that a plaintiff may allege a failure to accommodate claim pursuant to the PDA); N.Y. Exec. Law § 296(3) (codifying NYSHRL claim for failure to accommodate a disability or pregnancy-related condition); N.Y.C. Admin. Code § 8-107(22) (codifying NYCHRL claim for failure to accommodate a disability or pregnancy-related condition). As set forth above, pregnancy and sex discrimination claims under federal and state law may be brought against the employer only and not against individual defendants. See supra Section II(A).

2. Analysis of Claim of Failure To Accommodate

Plaintiff argues that Defendants failed to accommodate her pregnancy by denying her multiple requests that reasonable accommodations be made at job sites to which Plaintiff was or could have been assigned (see, e.g. ECF 1, Compl. ¶ 64); that Defendants denied Plaintiff an assignment at a job site where she was previously granted an accommodation for her pregnancy (see id. ¶ 82); and that Defendants decided without Plaintiff's input or engaging in a dialogue whether prospective work sites would have been suitable as an accommodation (see id. at ¶¶ 59-61). Defendants limit their opposition to the fourth element of a failure to accommodate claim under the PDA - whether the employer accommodated others with a similar ability to work as Plaintiff. (See ECF 36, Defs.' Reply Memo at 18.)

a. Under the PDA

A worker alleging employment discrimination under the PDA is a member of the protected class when she is “affected by pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k). Plaintiff alleges that she was pregnant, which satisfies the requirement. See Briggs, 819 F.Supp.2d at 126. Defendants do not challenge this aspect of Plaintiff's claim.

Plaintiff further alleges that, after disclosing her pregnancy to Coulibaly-Doucoure, Plaintiff's existing work assignment at the Washington-Lenox Houses was modified to accommodate her pregnancy by the superintendent at that site: her responsibilities were adjusted “to include duties such as cleaning and washing the elevators, the bathrooms, and other public areas.” (ECF 1, Compl. ¶ 34.) Plaintiff alleges that she subsequently requested that Defendants ask superintendents at other prospective worksites for similar accommodations. (See id. ¶¶ 45, 64.) At the pleading stage, these allegations are sufficient to plead that Plaintiff sought an accommodation. See LaSalle, 2015 WL 1442376, at *4 (holding that the pleading was sufficient where the defendant was alleged to have previously approved accommodations and then subsequently denied substantially similar accommodations). Defendants do not challenge this aspect of Plaintiff's claim.

Plaintiff contends that Defendants did not ask superintendents at her assigned work sites to accommodate her pregnancy and that Defendants did not offer her the option of working at the Washington-Lenox Houses, where she had previously been accommodated, even though there was available work there. (See ECF 1, Compl. ¶ 82.) These allegations are sufficient to plead that Defendants did not grant her accommodation request. See LaSalle, 2015 WL 1442376, at *4. Defendants do not challenge this aspect of Plaintiff's claim.

Where Plaintiff's claims of failure to accommodate under Title VII and the PDA flounder is at the final prong: the Complaint does not contain any concrete allegations that Defendants provided accommodations to others “similar in their ability or inability to work,” Xiang, 2020 WL 248941, at *4. Defendant argues that this absence is fatal to her failure to accommodate claims under Title VII and the PDA. (See ECF 36, Defs.' Reply Memo at 18.)⁵ I agree. Many Courts in this District have dismissed failure to accommodate claims under Title VII and the PDA for failure to allege a relevant comparator. See, e.g., Bethea v. Winfield Sec. Corp., No. 23-CV-0922 (AT), 2023 WL 8650004, at *4 (S.D.N.Y. Dec. 14, 2023) (dismissing Title VII/PDA failure to accommodate claim because the complaint did not allege comparators), reconsideration granted on other grounds, 2024 WL 2783753 (S.D.N.Y. May 29, 2024); Medina v. AAM 15 Mgmt., LLC, No. 21-CV-7492 (KMK), 2023 WL 2648299, at *7 (S.D.N.Y. Mar. 27, 2023) (dismissing claim for failure to accommodate under Title VII and the PDA where “Plaintiff . . . failed to allege that Defendant provided accommodations to other employees who were similar in their ability to work”) (collecting cases).

5 Defendants did not challenge the failure to accommodate claims in their opening brief in support of their motion to dismiss, raising the issue first in their reply brief. (See ECF 36, Defs.' Reply Mem. at 17-18.) “It is well established . . . that a court should not consider arguments that are raised for the first time in a reply brief.” Pryor v. Jaffe & Asher, LLP, 992 F.Supp.2d 252, 260 (S.D.N.Y. 2014) (internal quotation marks and citation omitted). “However, the Second Circuit has made it abundantly clear that a district court has discretion to consider a belatedly-raised argument.” Am. Hotel Int'l Grp., Inc. v. OneBeacon Ins. Co., 611 F.Supp.2d 373, 375 (S.D.N.Y. 2009), aff'd, 374 Fed.Appx. 71 (2d Cir. 2010). Courts sometimes exercise discretion to address late arguments when the opposing party (in this case Plaintiff) “has not asserted that the argument was waived.” Lozada v. TaskUs, Inc., No. 22-CV-1479 (JPC), 2024 WL 68571, at *12; see also Azzawi v. Int'l Ctr. for Dispute Resolution, No. 16-CV-0548 (KPF), 2016 WL 6775437, at *3 n.4 (S.D.N.Y. Nov. 14, 2016). Plaintiff never argues in her opposition to the motion to dismiss that Defendants waived any challenge to her failure to accommodate claims; to the contrary, she defends those claims on the merits. (See ECF 27, Pl.'s Opp. at 15.) Under the circumstances, I recommend that Your Honor exercise discretion to consider the arguments that Plaintiff has failed adequately to plead claims of failure to accommodate her pregnancy, even though the arguments were first raised by Defendants in the reply brief.

b. Under the NYSHRL and NYCHRL

I believe that the outcome is different for Plaintiff's accommodation claims under the NYSHRL and the NYCHRL. The NYSHRL prohibits employers from “refus[ing] to provide reasonable accommodations to the to the known disabilities, or pregnancy-related conditions, of an employee ....” N.Y. Exec. Law § 296(3). A pregnancy-related condition is defined to be “a medical condition related to pregnancy or childbirth that inhibits the exercise of a normal bodily function . . . which, upon the provision of reasonable accommodations, [does] not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held.” Id. § 292(21-f). The NYSHRL incorporates into its definition of a pregnancy-related condition nearly identical language used to that used to define disability. See id. § 292(21) (defining disability to be, among other things, “a physical, mental or medical impairment . . . which prevents the exercise of a normal bodily function ....”). Indeed, for purposes of the NYSHRL, “pregnancy-related conditions [are] treated as temporary disabilities.” Id. § 292(21-f); see also Coronado v. Weill Cornell Med. Coll., 114 N.Y.S.3d 193, 200 (N.Y. Sup. Ct. 2019) (concluding that a decreased ability to lift, stand, and bend constitute pregnancy-related conditions under the NYSHRL and NYCHRL).

Plaintiff alleges that Baly Cleaning is a covered employer (see ECF 1, Compl. ¶ 25), which Defendants do not dispute. By highlighting her successful tenure at the Washington-Lenox Houses with modified assignments, Plaintiff adequately alleges that “with reasonable accommodation, plaintiff could perform the essential functions of the job at issue.” Bethea, 2024 WL 2783753, at *2. By alleging that Defendants did not ask superintendents at her other assigned work sites to accommodate her pregnancy and that Defendants did not offer her the option of working at the Washington-Lenox Houses, where she had previously been accommodated, even though there were vacancies (see ECF 1, Compl. ¶ 82), Plaintiff sufficiently pleads that Defendants refused to make the requested accommodations. See LaSalle, 2015 WL 1442376, at *4 (concluding that the plaintiff's allegations of having made multiple requests to the defendant for an accommodation, which requests were refused, even though similar accommodations had previously been granted, was sufficient to plead a failure to accommodate under the NYSHRL and NYCHRL).

Additionally, Plaintiff sufficiently alleges that Defendants ran afoul of the NYSHRL and the NYCHRL when Defendants unilaterally decided whether certain worksites were suitable for her without seeking her input (see ECF 1, Compl. ¶¶ 58-61). The New York Court of Appeals has interpreted the statutorily prescribed interactive dialogue in the NYSHRL to mean that “an employer cannot disadvantage a disabled employee based on a generalized sense that disabilities of the kind suffered by the employee can rarely be accommodated and that the employee is unlikely to be able to satisfy his or her employment responsibilities.” Jacobsen v. New York City Health & Hosps. Corp., 22 N.Y.3d 824, 836 (2014) (holding that an employer “normally cannot obtain summary judgment on a State HRL claim unless the record demonstrates that there is no triable issue of fact as to whether the employer duly considered the requested accommodation”). The pleading states, however, that Defendants eschewed the interactive process in deciding which, if any, job assignments could be suitable in light of Plaintiff's pregnancy. (See ECF 1, Compl. ¶¶ 58-61, 64.)

As to the failure to accommodate claim under the NYCHRL, as set forth above, see supra Section II(A), Plaintiff has made the requisite allegations - that her employer knew she was pregnant, that she requested a reasonable accommodation, and that her employer did not grant the request. See Bethea, 2024 WL 2783753, at *2.

***

For the foregoing reasons, I respectfully recommend that the motion to dismiss Plaintiff's claim of failure to accommodate her pregnancy under Title VII and the PDA be GRANTED; that the motion to dismiss her failure to accommodate claims under the NYSHRL be DENIED as to Defendant Baly Cleaning and GRANTED as to Defendant Coulibaly-Doucoure; and that the motion to dismiss Plaintiff's failure to accommodate claim under the NYCHRL be denied as to both Defendants. See, e.g., Crawford, 2023 WL 11862082, at *18.

C. Plaintiff's NYSHRL and NYCHRL Disability Discrimination Claims

1. Legal Standard for Disability Discrimination Claims Under the NYSHRL and the NYCHRL

“The elements that apply to an ADA claim apply to claims under the NYSHRL and NYCHRL[,]” but “the NYSHRL provides broader protection than the ADA, and the NYCHRL is broader still.” Pagan v. Morrisania Neighborhood Fam. Health Ctr., No. 12-CV-9047 (WHP), 2014 WL 464787, at *6 (S.D.N.Y. Jan. 22, 2014). An employee alleging disability discrimination under the NYSHRL or the NYCHRL “must show that (1) the defendant is a covered employer; (2) the plaintiff suffered from, or was regarded as suffering from, a disability within the meaning of the statute; (3) the plaintiff was qualified to perform the essential functions of the job, with or without a reasonable accommodation; and (4) she suffered an adverse employment action because of her disability or perceived disability.” Crosby v. Stew Leonard's Yonkers L.L.C., No. 22-CV-4907 (KMK), 2023 WL 6318524, at *8 (S.D.N.Y. Sept. 28, 2023) (quoting Dobbs v. N.Y.U. Langone Med. Ctr., No. 18-CV-1285, 2021 WL 1177767, at *5 (S.D.N.Y. Mar. 29, 2021). On a motion to dismiss, “[a] plaintiff must plead facts plausibly supporting that a ‘minimal inference of discriminatory motivation' existed in connection with the adverse employment action.” Id. (quoting Littlejohn, 795 F.3d at 311).

2. Analysis of Plaintiff's Disability Discrimination Claims Under the NYSHRL and the NYCHRL

Defendants argue that Plaintiff's NYSHRL claim for disability discrimination should be dismissed for the same reasons they say her Title VII discrimination claim should fail. (See ECF 22, Defs.' Mem. at 69-70.) As discussed above, I recommend denying the motion to dismiss Plaintiff's Title VII discrimination claim against Defendant Baly Cleaning, and so Defendants' reliance on the same arguments to defeat the NYSHRL claim for disability discrimination would not lead me to recommend dismissing the NYSHRL disability discrimination claim. Moreover, Title VII does not include disability among its protected characteristics. See Binder v. Pub. Serv. Enter. Grp., Inc., No. 19-CV-5787 (DRH) (ST), 2022 WL 307813, at *14 (E.D.N.Y. Feb. 2, 2022) (citing 42 U.S.C. § 2000e-2). As a result, Defendants' arguments in support of dismissing Plaintiff's NYSHRL disability discrimination claim are inapposite. And Defendants do not make any reference to disability discrimination in arguing that Plaintiff's NYCHRL claims should be dismissed.

Defendants did address whether Plaintiff adequately pleaded her ADA discrimination claim before Plaintiff abandoned that claim (see ECF 27, Pl.'s Opp. at 24-25). (See ECF 22, Defs.' 33 Mem. at 48-53.) The elements of ADA discrimination claims are the same as the elements of disability discrimination claims under the NYSHRL and the NYCHRL, although state and city law provide broader protection than federal law. See Pagan, 2014 WL 464787, at *6. For the sake of completeness, I apply Defendants' arguments about the sufficiency of Plaintiff's allegations of ADA discrimination to Plaintiff's NYSHRL and the NYCHRL disability discrimination claims. See Nezaj, 2024 WL 815996, at *7 (S.D.N.Y. Feb. 27, 2024) (applying the individual defendant's argument contesting individual liability under the NYSHRL to the plaintiff's NYCHRL claim).

In their argument contesting the sufficiency of Plaintiff's claim for ADA discrimination, Defendants assert that Plaintiff has not pleaded a qualifying disability, in that pregnancy and pregnancy-related symptoms are not generally considered to be disabilities under the ADA. (See ECF 22, Defs.' Mem. at 49-51.) But the disability discrimination protections provided by the NYSHRL and the NYCHRL are broader than those of the ADA: state and city law use a less stringent test than the ADA to determine whether a plaintiff is disabled. Under state and city law, a plaintiff need only allege that she has a “medically diagnosable impairment,” see Pagan, 2014 WL 464787, at *6 n. 4 (internal quotation marks and citation omitted), and pregnancy and pregnancy-related symptoms have been held to qualify as disabilities under the NYSHRL and the NYCHRL. See, e.g., LaSalle, 2015 WL 1442376, at *4.

Plaintiff has sufficiently alleged that Defendant Baly Cleaning is a covered employer under the statute. (See ECF 1, Compl. ¶ 25.) Plaintiff alleges pregnancy symptoms that included “morning sickness, increased fatigue, and swelling to her feet,” which required a reasonable accommodation. (See ECF 1, Compl. ¶¶ 151-52 at 20.)⁶Defendants do not deny that they were aware of these temporary conditions. (See ECF 22, Defs.' Mem. at 40, 50.) At this stage, Plaintiff has sufficiently alleged that she suffered from pregnancy-related conditions that qualify as disabilities under the NYSHRL. See Coronado, 114 N.Y.S.3d at 200 (N.Y. Sup. Ct. 2019) (concluding that issues with lifting, standing, and bending constituted pregnancy-related conditions under NYSHRL and NYCHRL.) As noted with respect to Plaintiff's failure to accommodate claims, Plaintiff has adequately pleaded that she was qualified to perform the essential functions of the job with a reasonable accommodation.

6 The paragraphs in the Complaint are not numbered sequentially throughout the entire document. (See ECF 1, Compl. at 20 (paragraph “164” is followed by paragraph “148”); id. at 20-25 (paragraphs are numbered 148-85); id. at 25 (paragraph “185” is followed by paragraph “229”).) To avoid confusion, I include in citations to the Complaint the page number when the cited paragraph has a number that is duplicative or non-sequential.

“[T]he denial of a reasonable accommodation satisfies the causation element where the failure to accommodate results in an adverse employment action” in a claim for disability discrimination under the NYSHRL. Kirkland-Hudson v. Mount Vernon City Sch. Dist., 665 F.Supp.3d 412, 457 (S.D.N.Y. 2023) (citing Parker v. Columbia Pictures Indus., 204 F.3d 326, 328 (2d Cir. 2000)). Here, Plaintiff plausibly alleges that adverse work events - not being staffed to work at available job sites and termination - resulted from Defendants' failure to accommodate her pregnancy. (See ECF 1, Compl. ¶¶ 11, 105, 152, 273.) Plaintiff has sufficiently pleaded a claim for disability discrimination under the NYSHRL. And, having pleaded a claim under NYSHRL, she has also sufficiently pleaded the analogous claim under the NYCHRL. See Pagan, 2014 WL 464787, at *6.

***

For the foregoing reasons, I respectfully recommend that Defendants' motion to dismiss Plaintiff's claims of disability discrimination under the NYSHRL be DENIED as to Defendant Baly Cleaning and GRANTED as to Defendant Coulibaly-Doucoure; and that the motion to dismiss Plaintiff's disability discrimination claims under the NYCHRL be DENIED as to both Defendants.

D. Plaintiff's Claims for Hostile Work Environment Under Title VII, the PDA, the NYSHRL, and the NYCHRL

1. Legal Standard for Claims of Hostile Work Environment

The Second Circuit has explained that, to state a claim for a hostile work environment pursuant to Title VII, including the PDA, a plaintiff must plead facts tending to show that the conduct in question: “(1) ‘is 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 class].'” Trachtenberg v. Dep't of Educ. of City of N.Y., 937 F.Supp.2d 460, 472 (S.D.N.Y. 2013) (alteration in original) (quoting Patane, 508 F.3d at 113).

“[A] work environment's hostility should be assessed based on the ‘totality of the circumstances.'” Patane, 508 F.3d at 113 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). Factors that may be considered include: “(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is threatening and humiliating, or a mere offensive utterance; and (4) whether it unreasonably interferes with an employee's work performance.” Patane, 508 F.3d at 113 (internal quotation marks and citation omitted). “As a general rule, incidents must be more than ‘episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.” Feingold v. New York, 366 F.3d 138, 150 (2d Cir. 2004).

“Under the NYCHRL, there are not separate standards for ‘discrimination' and ‘harassment' claims; rather, ‘there is only the provision of the law that proscribes imposing different terms, conditions and privileges of employment based, inter alia, on gender.'” Clarke v. Intercontinental Hotels Groups, PLC, No. 12-CV-2671 (JPO), 2013 WL 2358596, at *12 (S.D.N.Y. May 30, 2013) (quoting Sotomayor v. City of New York, 862 F.Supp.2d 226, 261 (E.D.N.Y.2012)). As a result, “a plaintiff proceeding under the NYCHRL need not demonstrate either that her employer's conduct was ‘sever[e] and pervasive[ ],' nor even that she was subject to discrete, ‘tangible' adverse events.” Clarke, 2013 WL 2358596, at *11 (alteration in original) (quoting Mihalik, 715 F.3d at 110)). She merely needs to plausibly allege that she was treated less well than other employees due to her protected class membership. See Clarke, 2013 WL 2358596, at *11; see also Williams v. New York City Dep't of Educ., No. 19-CV-01353 (MKV), 2021 WL 1178118, at *13 (S.D.N.Y. Mar. 29, 2021) (explaining that a NYCHRL plaintiff must “plead facts tending to show that actions that created the hostile work environment were taken against him because of a prohibited factor”).

“The standard applicable to hostile work environment claims brought pursuant to the NYSHRL mirrored the federal standard until October 11, 2019, when amendments to the NYSHRL came into effect that eliminated the ‘severe and pervasive' standard.” See Mondelo v. Quinn, Emanuel, Urquhart & Sullivan, LLP, No. 21-CV-2512 (CM), 2022 WL 524551, at *9 (S.D.N.Y. Feb. 22, 2022) (citing N.Y. Exec. Law § 300). Harassment that subjects plaintiff to “inferior terms, conditions or privileges of employment because of the individual's membership in one or more . . . protected categories” is unlawful under the standard codified by that amendment, Mondelo, 2022 WL 524551, at *9, “regardless of whether such harassment would be considered severe or pervasive under precedent applied to harassment claims.” N.Y. Exec. Law § 296 (1)(h)). As recently acknowledged by the New York Court of Appeals, the NYSHRL and NYCHRL each “have provisions directing that they be liberally construed to accomplish the remedial purposes that they serve . . . . Courts must construe the Human Rights Laws broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.” Syeed v. Bloomberg L.P., 41 N.Y.3d 446, 451 (2024). Accordingly, I believe the hostile work environment standard under the NYSHRL to be analogous to the hostile work environment standard of the NYCHRL. See Mondelo, 2022 WL 524551, at *9 (concluding that the amended NYHSRL standard “is similar to the standard for stating a hostile work environment claim under the NYCHRL”).

As discussed above, there is no direct individual liability for hostile work environment claims arising under federal or state law.

2. Analysis of Plaintiff's Claims for Hostile Work Environment

Plaintiff alleges that Defendants' failure to inform site superintendents of her pregnancy meant that she was assigned tasks she could not complete, leading to tensions between her and her co-workers and therefore a hostile work environment. (See ECF 1, Compl. ¶¶ 41-44, 6465, 82-86, 88, 91-92.) Plaintiff also argues that the Zoom meeting held to discuss her pregnancy and Coulibaly-Doucoure's comment that Plaintiff “should ask her boyfriend for money” created a hostile work environment. (See id. ¶¶ 44, 66).

a. Hostile Work Environment Under Title VII and the PDA

For the reasons discussed below, I believe that Plaintiff fails adequately to plead a hostile work environment claim under Title VII and the PDA, because the Complaint does not detail facts showing that the alleged misconduct was objectively severe or pervasive.

Tensions with her co-workers, the Zoom meeting, and the comment that Plaintiff should ask her boyfriend for money are not, either individually or taken together, so “objectively severe or pervasive - that [they] . . . created an environment that a reasonable person would find hostile or abusive.” Trachtenberg, 937 F.Supp.2d at 472; see also Wilson v. JPMorgan Chase Bank, N.A., No. 20-CV-4558 (JMF), 2021 WL 918770 (S.D.N.Y. Mar. 10, 2021) (finding that the plaintiff had failed adequately to plead a hostile work environment because the negative conditions caused by the plaintiff's manager spreading false rumors about the plaintiff were not sufficiently severe and pervasive despite the plaintiff's hospitalization after months of tension with her colleagues); Melton v. Poughkeepsie City Sch. Dist., No. 16-CV-9701 (VB), 2017 WL 6502242 (S.D.N.Y. Dec. 18, 2017) (holding that allegations by the plaintiff, a teaching assistant, that she was uncomfortable due to her principal's behavior, including a memo from the principal to the plaintiff and a meeting to discuss the plaintiff's husband, were not severe enough to plead a hostile work environment).

Plaintiff directs the Court to Makhsudova v. City of New York for the proposition that “whether a work environment is sufficiently hostile to violate Title VII is one of fact” that should not be decided at the motion-to-dismiss stage. See 20-CV-10728 (KPF), 2022 WL 1571152, at *10 (S.D.N.Y. May 18, 2022) (internal quotation marks and citation omitted). Plaintiff misreads that case. It is true that the pleading stage may sometimes be too early to determine whether the alleged conduct is sufficiently severe or pervasive to support a Title VII hostile work environment claim. But the pleading stage is an appropriate time to dismiss allegations that are not “of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse.” Feingold, 366 F.3d at 150 (emphasis in original) (internal quotation marks and citation omitted).

In Makhsudova, the Court found that most of the events alleged did not support a claim of hostile work environment. See 2022 WL 1571152, at *10-11 (dismissing a hostile work environment claim to the extent it was based on allegations that the defendant was unwilling to modify the plaintiff's lunch break and that she was consistently forced to work with male officers who stared or commented about her inappropriately). Courts in this District routinely assess at the pleading stage whether facts supporting hostile work environment claims are sufficiently severe or pervasive to allow the claim to survive a 12(b)(6) motion to dismiss, see id., and the Makhsudova plaintiff's hostile work environment claim was permitted to proceed only to the extent that her supervisor's comments were “continuous and overtly hostile.” Id. at 11. Plaintiff here has no comparable allegations of frequent and obviously hostile comments.

a. Hostile Work Environment Under the NYCHRL and NYSHRL

Because the NYCHRL and NYSHRL do not distinguish between claims of discrimination or harassment but look only to whether a plaintiff has been treated less well than other employees due to membership in a protected class, I do not believe that Plaintiff's additional allegations of being told to ask her boyfriend to support her and of being subject to a mandatory meeting with colleagues to discuss her pregnancy are necessary to support her NYCHRL and NYSHRL claims. Nevertheless, for the sake of completeness, I note that holding a meeting to discuss Plaintiff's pregnancy and her inability to perform certain job functions allegedly caused Plaintiff embarrassment and unwanted attention, and so the meeting could plausibly be viewed as treating Plaintiff less well than her co-workers because of the pregnancy. Similarly, allegedly telling Plaintiff that she should ask her boyfriend to support her in response to Plaintiff's request to be accommoDated: her next job assignment could plausibly be viewed as treating Plaintiff less well than her co-workers because of her pregnancy. As such, those allegations provide additional support to Plaintiff's claim of violation of the NYCHRL against both Defendants and her claim of violation of the NYSHRL against Defendant Baly Cleaning.

***

For the foregoing reasons, I respectfully recommend that Your Honor GRANT Defendants' motion to dismiss Plaintiff's hostile work environment claims under Title VII and the PDA; DENY the motion to dismiss Plaintiff's hostile work environment claims under the NYCHRL; DENY the motion to dismiss Plaintiff's hostile work environment claims under the NYSHRL against Defendant Baly Cleaning; and GRANT the motion to dismiss Plaintiff's hostile work environment claims under the NYSHRL against Defendant Coulibaly-Doucoure.

E. Plaintiff's Retaliation Claims

1. Legal Standard for Claims of Retaliation

Besides outlawing discrimination in the workplace, Title VII makes it unlawful for an employer to retaliate against an employee because that employee “has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). Federal anti-discrimination law therefore “prohibits an employer from taking ‘materially adverse' action against an employee because the employee opposed conduct” prohibited by the anti-discrimination laws or “the employee otherwise engaged in protected activity.” Tepperwien v. Entergy Nuclear Ops., Inc., 663 F.3d 556, 567 (2d Cir. 2011) (Title VII).⁷

7 The standard is the same under each of the potentially relevant federal anti discrimination statutes. See Vora v. N.Y. City Dep't of Educ., No. 22-CV-10891 (PGG) (SDA), 2024 WL 1421131, at *14 (S.D.N.Y. Jan. 24, 2024).

“The NYSHRL similarly makes it unlawful for an employer to retaliate or discriminate against an employee because she ‘has opposed any practices forbidden under this article or because . . . she has filed a complaint, testified or assisted in any proceeding under this article.'” Farmer, 473 F.Supp.3d at 333. The same standards govern retaliation under Title VII and the NYSHRL, id., as well as under the ADA. See Tafolla, 80 F.4th at 125 (noting the same prima facie elements are required for ADA and NYSHRL retaliation claims); Viruet v. City of N.Y., No. 16-CV-8327 (JGK), 2019 WL 1979325, at *16 (S.D.N.Y. May 3, 2019) (applying the same standards to a retaliation claim under the ADA and the NYSHRL). As to the NYCHRL, its “retaliation standard is similar to - but in part more permissive than - its federal and state analogues.” Farmer, 473 F.Supp.3d at 333.

Pleading a prima facie case of retaliation under either Title VII, the ADA, or the NYSHRL requires alleging facts showing that: (1) a plaintiff participated in an activity protected by antidiscrimination laws, (2) the employer knew of that participation, (3) the employer subjected the plaintiff to a materially adverse employment action after the protected activity, and (4) there was “a causal connection between the protected activity and the adverse employment action.” Tafolla, 80 F.4th at 125 (citing Natofsky v. City of N.Y., 921 F.3d 337, 353 (2d Cir. 2019) (ADA retaliation claim) and Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 234 (2d Cir. 2000) (NYSHRL retaliation claim).

A retaliation claim survives a motion to dismiss when “the plaintiff . . . plausibly allege[s] that: (1) defendants discriminated - or took an adverse employment action - against [her], (2) ‘because' [she] has opposed any unlawful employment practice.” Vega, 801 F.3d at 90.

a. Protected Activity

“In order for an employee's complaints to be a protected activity they must relate to an alleged violation of [anti-discrimination law].” Wong v. Blind Brook-Rye Union Free Sch. Dist., No. 20-CV-2718 (CS), 2022 WL 17586324, at *10 (S.D.N.Y. Dec. 12, 2022) (internal quotation marks and citation omitted). “‘Complaining about general unfairness, unaccompanied by any indication that plaintiff's protected class status caused the unfairness, does not qualify as protected activity.'” Id. at *10 (quoting Batiste v. City Univ. of N.Y., No. 16-CV-3358 (VEC), 2017 WL 2912525, at *10 (S.D.N.Y. July 7, 2017)).

b. Adverse Employment Action

A materially adverse employment action is one that “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Vega, 801 F.3d at 90 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006) (internal quotation marks omitted). “This definition covers a broader range of conduct than does the adverse-action standard for claims of discrimination under [federal anti-discrimination statutes]: ‘[T]he antiretaliation provision, unlike the substantive [discrimination] provision, is not limited to discriminatory actions that affect the terms and conditions of employment.'” Vega, 801 F.3d at 90 (quoting Burlington, 548 U.S. at 64).

c. Causation

A plaintiff may plead that an adverse work event was caused by the protected activity either “‘(1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant.'” Galimore v. City Univ. of N.Y. Bronx Comm. Coll., 641 F.Supp.2d 269, 288 (S.D.N.Y. 2009) (quoting Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000)).

“While the Second Circuit has articulated no ‘bright line' rule for when an alleged retaliatory action occurs too far in time from the exercise of a federal right to be considered causally connected, it is well settled that when ‘mere temporal proximity' is offered to demonstrate causation, the protected activity and the adverse action must occur ‘very close' together.'” Galimore, 641 F.Supp.2d at 288 (citations omitted); see also Sareen v. Port Auth. of N.Y. & N.J., No. 12-CV-2823 (PAE), 2013 WL 6588435, at *14 (S.D.N.Y. Dec. 16, 2013) (collecting cases).

2. Analysis of Plaintiff's Claims of Retaliation

Defendants deny that Plaintiff has sufficiently pleaded any of the four prima facie elements in the claim. Defendants' argument relies heavily on rebutting Plaintiffs' claims on the basis of facts that are neither pleaded nor relied upon by Plaintiff. To the limited extent that Defendants contest the sufficiency of the pleading itself, they argue that Plaintiff did not participate in any protected activity; that Defendants were not aware of it if she did; and that Plaintiff did not suffer a materially adverse employment action close enough time to plead causation. (See ECF 22, Defs.' Mem. at 34-47.) Plaintiff responds that she has alleged that she engaged in protected activity by complaining multiple times that she believed she was being discriminated against due to her pregnancy and experienced adverse work events shortly thereafter. (See ECF 27, Pl.'s Opp. at 26-28.)

a. Protected Activity

The alleged protected activity includes several informal complaints made by Plaintiff to Coulibaly-Doucoure. (See ECF 27, Pl.' Opp. at 21-22.) An employee's informal complaint to an employer may constitute protected activity, but such communication must be “sufficiently specific to make it clear that the employee is complaining about conduct prohibited by Title VII.” de Souza v. Planned Parenthood Fed'n of Am., Inc., No. 21-CV-5553 (LGS), 2022 WL 2047580, at *3 (S.D.N.Y. June 7, 2022); see also Int'l Healthcare Exch., Inc. v. Glob. Healthcare Exch., LLC, 470 F.Supp.2d 345, 357 (S.D.N.Y. 2007) (“[A]mbiguous complaints do not constitute protected activity.”). “The onus is on the speaker to clarify to the employer that [she] is complaining of unfair treatment due to [her] membership in a protected class and that [she] is not complaining merely of unfair treatment generally.” Butler v. City Sch. Dist. of New Rochelle, No. 19-CV-7395 (VB), 2020 WL 6639121, at *2 (S.D.N.Y. Nov. 12, 2020) (alteration in original and internal quotation marks and citation omitted). “An undisclosed belief of discriminatory treatment does not “convert an ordinary employment complaint into a protected activity.” Id. (internal quotation marks and citation omitted).

Some of Plaintiff's informal complaints, at least as described in the Complaint, do not appear to have made clear that Plaintiff was raising concerns about pregnancy discrimination as opposed to her general dissatisfaction with her hours and rate of pay. (See ECF 1, Compl. ¶ 51 (“rais[ing] a concern . . . about [Plaintiff's] lessening hours”); id. ¶ 56 (complaining “about the reduction in hours and the loss of pay” because Plaintiff “needed her income” as a “single and expectant mother”).)

However, the allegation that, around May 6, 2022, Plaintiff asked Coulibaly-Doucoure why she had not requested accommodations for Plaintiff from any superintendents other than the one at Washington-Lenox House (see ECF 1, Compl. ¶ 45) is fairly understood as protected activity. See Rodriguez v. Atria Sr. Living Grp., Inc., 887 F.Supp.2d 503, 512 (S.D.N.Y. 2012) (requests for a reasonable accommodation are protected activity under the ADA) (citing Weixel v. Board of Educ. of City of New York, 287 F.3d 138, 149 (2d Cir.2002)); Farmer, 473 F.Supp.3d at 331 (explaining that formal and informal requests for pregnancy accommodation may constitute protected activity under Title VII and the NYSHRL).

Similarly, Plaintiff's communication to Coulibaly-Doucoure on June 24, 2024 to say that Plaintiff's doctor had sent a letter requesting reasonable accommodations for her pregnancy (see ECF 1, Compl. ¶ 89) constituted protected activity. See Farmer, 473 F.Supp.3d at 331 . And Plaintiff's statement on June 24, 2024 that she “wanted to speak with attorneys because she was concerned that she was being discriminated against due to her pregnancy” (ECF 1, Compl. ¶ 92) was unquestionably protected activity. See Nieblas-Love v. N.Y.C. Hous. Auth., 165 F.Supp.3d 51, 70 (S.D.N.Y. 2016) (“[I]nformal complaints to supervisors about purportedly discriminatory activity are also protected activity.”).

Plaintiff has sufficiently alleged protected activity under Title VII, the PDA, the ADA. and the NYSHRL.⁸

8 Plaintiff's decision to abandon her ADA discrimination claim does not vitiate her ADA retaliation claim. A plaintiff may assert a retaliation claim “so long as [she] can establish that [she] possessed a good faith, reasonable belief that the underlying challenged actions of the employer violated [the] law.” Anderson v. City of New York, No. 22-CV-3990 (NSR), 2024 WL 183103, at *11 (S.D.N.Y. Jan. 17, 2024) (internal quotation marks omitted) (quoting Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002)). Even though she has abandoned the ADA discrimination claim, the Complaint contains allegations reflecting Plaintiff's good faith belief that her employers retaliated against her due to her protected activity. (See ECF 1, Compl. ¶¶ 45, 53, 71, 89, 110, 113.)

b. Adverse Employment Action

As noted above, Plaintiff has plausibly alleged a reduction in her hours and shifts in May and June 2022 (see id. ¶¶ 53, 71), which constituted an adverse work event. Plaintiff has also plausibly alleged a decrease in her pay rate (see id. ¶¶ 110, 113), which also constituted an adverse work event. And Plaintiff's allegations about her termination at the end of June 2022 (see id. ¶¶ 89, 93, 105-108) - whether the termination was actual or constructive - are sufficient to plead an adverse work event as well.

c. Causation

Defendants, relying on extrinsic documents, attribute Plaintiff's decrease in shifts and reduced wages to the nature of the business. (See ECF 22, Defs.' Mem. at 55-56.) But I do not believe it is appropriate to consider Defendants' extrinsic evidence. See, e.g., Briggs, 819 F.Supp.2d at 123 n.3. Defendants can use that evidence in the future to try to establish their defenses.

Defendants also argue that the temporal proximity of the adverse employment actions to the protected activity is too attenuated to adequately plead causation. (See id.) Plaintiff responds that she has adequately pleaded causation by alleging that her protected activity was followed closely by discriminatory treatment. (See ECF 27, Pl.'s Opp. at 27 (citing ECF 1, Compl. ¶¶ 10, 48, 52, 54, 83-87, 93-95).) I agree with Plaintiff.

Plaintiff began receiving fewer and shorter shifts around May 9, 2022, when Plaintiff was assigned four days of work. (See ECF 1, Compl. ¶ 50.) That was approximately three days after her first instance of protected activity, when she asked Coulibaly-Doucoure around May 6, 2022 why she had not requested accommodations for Plaintiff from any superintendents other than the one at Washington-Lenox House. (See id. ¶¶ 45, 47-48.) Plaintiff was not assigned any shifts during the week of May 16, 2022, which was 10 days after the first instance of protected activity. (See id. ¶ 53).

Plaintiff complained about the decrease in her pay on May 25, 2022 (see id. ¶ 56), which suggests that she began experiencing a reduction in compensation very shortly after her first instance of protected activity. The adverse work events of reductions in hours, assignments, and pay were sufficiently close in time - within a few weeks of the first instance of protected activity - that the timeline supports an inference that the decrease in hours and pay was because of the protected activity. See Farmer, 473 F.Supp.3d at 333-34 (holding that temporal proximity of three weeks between a request for accommodation and an adverse employment action supported causation); Feliciano v. City of N.Y., No. 14-CV-6751 (PAE), 2015 WL 4393163, at *10 (S.D.N.Y. July 15, 2015) (collecting cases requiring the adverse action to occur within approximately two months of the plaintiff's protected activity).

The adverse event of Plaintiff's termination on June 24, 2024 occurred within two months of her first instance of protected activity and on the same day as the protected activity of telling Defendants that she intended to speak to a lawyer about possible pregnancy discrimination. (See ECF 1, Compl. ¶¶ 89, 92.) As such, the termination was also sufficiently temporally proximate to the protected activity to support an inference of causation. See, e.g., Farmer, 473 F.Supp.3d at 333.

* * *

I believe that Plaintiff sufficiently pleads a retaliation claim under Title VII, the PDA, the ADA, the NYSHRL, and the NYCHRL against Defendant Baly Cleaning. I therefore respectfully recommend that the motion to dismiss those claims against Defendant Baly Cleaning be DENIED. I also conclude that Plaintiff sufficiently pleads a retaliation claim against Defendant Coulibaly-Doucoure under the NYSHRL and the NYCHRL. I therefore respectfully recommend that the motion to dismiss Plaintiff's claims for retaliation against Defendant Coulibaly-Doucoure under state and local law be DENIED.

III. Leave To Amend

Plaintiff does not request leave to amend, and the Court is not obligated to grant leave to amend sua sponte. See Trautenberg v. Paul, Weiss, Rifkind, Wharton & Garrison L.L.P., 351 Fed.Appx. 472, 474 (2d Cir. 2009) (holding, where the plaintiff did not seek leave to amend in opposition to the motion to dismiss, that the district court did not abuse its discretion by failing to grant him such leave sua sponte). Moreover, a “plaintiff need not be given leave to amend” where, as here, she “fails to specify . . . how amendment would cure the pleading deficiencies in its complaint.” Moniodes v. Autonomy Cap. (Jersey) LP, No. 20-CV-05648 (GHW), 2021 WL 3605385, at *8 (S.D.N.Y. Aug. 11, 2021).

However, “[i]n this circuit, ‘[i]t is the usual practice upon granting a motion to dismiss to allow leave to replead.'” Leneau v. Ponte, No. 16-CV-0776 (GHW), 2018 WL 566456, at *18 (S.D.N.Y. Jan. 25, 2018) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991)). Of course, “leave to amend a complaint may be denied when amendment would be futile.” Leneau, 2018 WL 566456, at *18 (quoting Tocker v. Philip Morris Cos., 470 F.3d 481, 491 (2d Cir. 2006) (internal quotation marks omitted); see also Moniodes, 2021 WL 3605385, at *8 (S.D.N.Y. Aug. 11, 2021).

I believe that granting Plaintiff leave to amend the Complaint would not necessarily be futile as to some of the claims that I recommend dismissing. Plaintiff has not yet had an opportunity to submit an amended complaint, and Plaintiff now has the benefit of the Court's analysis to cure the deficiencies identified in this report and recommendation. See Norman v. Experian Info. Sols., Inc., No. 23-CV-9245 (GHW), 2024 WL 1175201, at *3 (S.D.N.Y. Mar. 19, 2024) (“The pleading deficiencies identified in the R&R and this order may be corrected, so amendment is not necessarily futile.”). In particular, Plaintiff may be able to identify comparators who were similar to her in their inability to work but who were granted accommodations by Defendants and thereby could plead a claim for failure to accommodate under the Title VII and the PDA. Similarly, Plaintiff may be able to identify instances of sufficiently severe mistreatment - facts that demonstrate a pattern of harassment and disparate treatment “pervasive enough that reasonable people would consider their working conditions to be altered as a result” - to adequately plead hostile work environment claims under Title VII, the PDA, and the NYSHRL.

CONCLUSION

For the foregoing reasons, I respectfully recommend that Defendants' motion to dismiss be DENIED IN PART and GRANTED IN PART, as follows:

(1) The motion to dismiss Plaintiff's claims for pregnancy discrimination against Defendant Baly Cleaning under Title VII, the PDA, the NYSHRL, and the NYCHRL should be DENIED;

(2) The motion to dismiss Plaintiff's claims for pregnancy discrimination against Defendant Coulibaly-Doucoure under Title VII, the PDA, and the NYSHRL should be GRANTED with prejudice;

(3) The motion to dismiss Plaintiff's claims for pregnancy discrimination against Defendant Coulibaly-Doucoure under the NYCHRL should be DENIED;

(4) The motion to dismiss Plaintiff's claims against Defendant Baly Cleaning for failure to accommodate Plaintiff's pregnancy under Title VII and the PDA should be GRANTED without prejudice to repleading;

(5) The motion to dismiss Plaintiff's claims against Defendant Coulibaly-Doucoure for failure to accommodate Plaintiff's pregnancy under Title VII, the PDA, and the NYSHRL should be GRANTED with prejudice;

(6) The motion to dismiss Plaintiff's claims against Defendant Baly Cleaning for failure to accommodate Plaintiff's pregnancy under the NYSHRL and the NYCHRL should be DENIED;

(7) The motion to dismiss Plaintiff's claim against Defendant Coulibaly-Doucoure for failure to accommodate Plaintiff's pregnancy under the NYCHRL should be DENIED;

(8) The motion to dismiss Plaintiff's claims for disability discrimination against Defendant Baly Cleaning under the NYSHRL and the NYCHRL should be DENIED;

(9) The motion to dismiss Plaintiff's claim for disability discrimination against Defendant Coulibaly-Doucoure under the NYSHRL should be GRANTED with prejudice;

(10) The motion to dismiss Plaintiff's claim for disability discrimination against Defendant Coulibaly-Doucoure under the NYCHRL should be DENIED;

(11) The motion to dismiss Plaintiff's claims against Defendant Baly Cleaning for hostile work environment under Title VII and the PDA should be GRANTED without prejudice to repleading;

(12) The motion to dismiss Plaintiff's claims against Defendant Coulibaly-Doucoure for hostile work environment under Title VII, the PDA, and the NYSHRL should be GRANTED with prejudice;

(13) The motion to dismiss Plaintiff's claims against Defendant Baly Cleaning for hostile work environment under the NYCHRL and the NYSHRL should be DENIED;

(14) The motion to dismiss Plaintiff's claim against Defendant Coulibaly-Doucoure for hostile work environment under the NYCHRL should be DENIED;

(15) The motion to dismiss Plaintiff's claims for retaliation against Defendant Baly Cleaning under Title VII, the PDA, the ADA, the NYSHRL, and the NYCHRL should be DENIED;

(16) The motion to dismiss Plaintiff's claims for retaliation against Defendant Coulibaly-Doucoure under Title VII, the PDA, and the ADA should be GRANTED with prejudice;

(17) The motion to dismiss Plaintiff's claims for retaliation against Defendant Coulibaly-Doucoure under the NYSHRL and the NYCHRL should be DENIED; and

(18) The motion to dismiss Plaintiff's claims against Defendant Coulibaly-Doucoure for aiding and abetting under the NYSHRL and the NYCHRL should be DENIED.

If Your Honor adopts this recommendation, I further respectfully recommend that Plaintiff be given 30 days to file either an amended complaint or a letter on the docket indicating that she intends to stand on the existing complaint.

NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO REPORT AND RECOMMENDATION

The parties shall have fourteen days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure to this Report and recommendation. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Woods.

THE FAILURE TO OBJECT WITHIN FOURTEEN DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140 (1985).