Opinion
19-CV-9723 (VEC) (JLC)
06-25-2021
LAURA BERNHEIM, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION; ANNELISE FALZONE, Field Supervisor; JAMES QUAIL, Field Supervisor, Defendants.
To the Honorable Valerie E. Caproni, United States District Judge
REPORT & RECOMMENDATION
JEMES L. COTT UNITED STATES MAGISTRATE JUDGE
Laura Bernheim, proceeding pro se, brings this action against the New York City Department of Education (“DOE”) and two of her DOE supervisors, Annelise Falzone and James Quail. She alleges that she suffered discrimination, retaliation, and a hostile work environment in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), the Rehabilitation Act of 1973 (“Rehab Act”), the Americans with Disabilities Act of 1990 (“ADA”), the New York State Human Rights Law (“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”). She also alleges interference and retaliation under the Family and Medical Leave Act of 1993 (“FMLA”). The DOE has moved to dismiss the amended complaint in its entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons stated below, I recommend that the motion be granted except as to the ADA retaliation claim, but that Bernheim be given leave to file a second amended complaint.
The Court previously dismissed all of the claims against Falzone and Quail, leaving the DOE as the only remaining defendant. Dkt. No. 35.
I. BACKGROUND
A. Factual Background
The following facts are taken from the amended complaint and are accepted as true for the purposes of this motion. Because Bernheim is proceeding pro se, the Court also considers allegations made for the first time in her opposition brief. See, e.g., Saudagar v. Walgreens Co., No. 18-CV-437 (KPF), 2019 WL 498349, at *1 n.1 (S.D.N.Y. Feb. 8, 2019) (“A district court deciding a motion to dismiss may consider factual allegations made by a pro se party in his papers opposing the motion.” (quoting Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013)).
Bernheim is 51 years old and has been employed as an elementary school teacher with the DOE since September 1999. Dkt. No. 34, (“Amended Compl.”) at ¶¶ 1-2. Since 2014, she has been assigned to the Absent Teacher Reserve (“ATR”) pool, which rotates its teachers to different schools on a monthly basis. Id. ¶ 4. Bernheim has been assigned to P.S. 134 in the Bronx since September 2020. Id.
Bernheim suffers from severe Irritable Bowel Syndrome (“IBS”). Id. ¶ 3. As a result of her condition, she took a “six month medical sabbatical, ” which was approved by the DOE's doctors. Id. ¶ 3. In June and August of 2018, she requested FMLA leave for her severe IBS. Id. ¶ 5. Both requests were denied, but she took numerous intermittent absences due to her IBS. Id. In response to her absences, the DOE issued multiple discipline letters to her beginning in March 2018. Id. On December 19, 2019, Bernheim was served with New York Education Law Section 3020-a charges, seeking termination of her employment, which Bernheim alleges was in retaliation for requesting leave. Id. ¶ 6; see also N.Y. Educ. Law § 3020-a. Bernheim additionally alleges that “other senior teachers in the ATR pool [have] also been targeted with disciplinary letters and Section 3020-a charges.” Id. ¶ 7. In June 2020, a decision was rendered on the Section 3020-a charges, “resulting in a fine equivalent to a 90-day suspension without pay.” Id. ¶ 6.
B. Procedural Background
Bernheim filed a charge of discrimination with the EEOC “[o]n or about” January 10, 2019. Dkt. No. 2, at 6. On September 18, 2019, the EEOC issued a right to sue notice to Bernheim and she received the notice on September 20, 2019. Id. On October 18, 2019, using the Southern District's form complaint for pro se litigants raising employment discrimination claims, Bernheim commenced this suit against the DOE and Field Supervisors Annelise Falzone and James Quail. Id. at 1-3. In her original complaint, Bernheim alleged that she has been discriminated against on the basis of her age and disability, “severe IBS with diarrhea, ” in violation of the ADEA; the Rehab Act; the ADA; the FMLA; NYSHRL; and NYCHRL. Id. at 4.
On February 3, 2020, the DOE and Quail moved for partial dismissal of the complaint. Dkt. No. 12. On February 5, 2020, this case was referred to me for general pre-trial supervision and for a report and recommendation on Defendants' motion. Dkt. No. 17. On April 23, 2020, Falzone moved to dismiss the complaint as against her. Dkt. No. 25.
On July 9, 2020, I issued a report and recommendation on both motions, which was subsequently adopted in full on July 31, 2020. Dkt. Nos. 30-31. At that time, the Court dismissed: (1) the ADA, ADEA, and Rehab Act claims against Quail and Falzone without leave to amend; (2) the NYSHRL and NYCHRL claims against all Defendants with leave to amend; and (3) the FMLA claim against Quail and Falzone with leave to amend. Dkt. No. 31. The Court instructed Bernheim to file a notice of claim for her NYSHRL and NYCHRL claims based on her medical issues- but not on her age-no later than August 14, 2020 as well as an amended complaint no later than September 25, 2020. Id. The Court further instructed that the amended complaint “must allege whether [Bernheim] served a notice of claim on [the DOE] and whether [the DOE] provided her the requested relief within 30 days of such service.” Id. Bernheim filed a notice of the claim on or about August 12, 2020. Amended Compl. ¶ 8.
On October 23, 2020, Bernheim filed an amended complaint. See Dkt. No. 34. On October 29, 2020, the Court dismissed all remaining claims against Quail and Falzone with prejudice and declined to grant Bernheim further leave to amend her claims against them. Dkt. No. 35. As a result, the DOE is the only remaining defendant.
On November 6, 2020, the DOE moved to dismiss the amended complaint in its entirety. Defendant's Motion to Dismiss Amended Complaint, Dkt. No. 37; Defendant's Memorandum of Law in Support of its Motion to Dismiss (“Def. Mem.”), Dkt. No. 28. Bernheim submitted her opposition on December 29, 2020, and sought leave, if necessary, to file a second amended complaint. Plaintiff's Memorandum of Law in Opposition to Defendant's Motion to Dismiss (“Pl. Mem.”), Dkt. No. 43. Briefing was completed on January 12, 2021 with the DOE's reply. Defendant's Reply Memorandum of Law (“Def. Reply”). Dkt. No. 44.
II. DISCUSSION
A. Legal Standards
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint may be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion, a plaintiff must plead facts in her complaint that “state a claim to relief that is plausible on its face” and that satisfy Federal Rule of Civil Procedure 8(a)(2). Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Rule 8(a)(2) requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Id. (quoting Fed.R.Civ.P. 8(a)(2)). A claim is facially plausible when the plaintiff pleads “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 663 (citing Twombly, 550 U.S. at 556). Nevertheless, this standard still requires a plaintiff's pleadings to sufficiently “nudge[ ] [its] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. Furthermore, “[a] plaintiff's obligation to provide the grounds of [her] entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555. Therefore, “[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679; see also Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007) (complaint insufficient if it lacks factual allegations necessary “to give the defendant fair notice of what the claim is and the grounds upon which it rests”).
Because Bernheim is proceeding pro se, “the Court must construe [her] pleadings liberally and ‘interpret them to raise the strongest arguments that they suggest.'” Wang v. Palmisano, 157 F.Supp.3d 306, 317 (S.D.N.Y. 2016) (quoting Maisonet v. Metro. Hosp. & Health Hosp. Corp., 640 F.Supp.2d 345, 347 (S.D.N.Y. 2009)); Henriquez-Ford v. Council of Sch. Sup'rs & Adm'rs, No. 14-CV-2496 (JPO), 2015 WL 3867565, at *4 (S.D.N.Y. June 23, 2015) (“[T]he Court interprets the pro se Amended Complaint in this action with ‘special solicitude,' to raise the ‘strongest [claims] that [it] suggest[s].'” (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006)). “However, the liberal treatment afforded to pro se litigants does not excuse a pro se party ‘from compliance with relevant rules of procedural and substantive law.'” Wang, 157 F.Supp.3d at 317 (quoting Maisonet, 640 F.Supp.2d at 348). In other words, “while the Court must draw the most favorable inferences that a plaintiff's complaint supports, it cannot invent factual allegations that a plaintiff has not pled.” Daly v. Westchester Cty. Bd. of Legislators, No. 19-CV-4642 (PMH), 2021 WL 229672, at *4 (S.D.N.Y. Jan. 22, 2021) (alterations and quotations omitted) (quoting Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)).
The Court broadly interprets Bernheim's amended complaint as alleging nine causes of action under four federal statutes: the FMLA, the ADEA, the ADA, and the Rehab Act. Under the FMLA, she alleges interference and retaliation. Under the ADEA, she alleges age discrimination based on an adverse employment action, retaliation, and a hostile work environment. Under the ADA and Rehab Act, she alleges disability discrimination based on an adverse employment action, failure to accommodate her disability, retaliation, and a hostile work environment. Bernheim also alleges discrimination, retaliation, and hostile work environment claims based on her age and disability under the NYSHRL and NYCHRL.
All of Bernheim's claims-except for her FMLA interference claim and hostile work environment claims-are subject to the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which developed out of employment discrimination cases. See, e.g., Bey v. City of New York, No. 20-456, 2021 WL 2345249, at *5 (2d Cir. June 9, 2021) (ADA claims subject to McDonnell Douglas); Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010) (ADEA claims subject to McDonnell Douglas); Wein v. New York City Dep't of Educ., No. 18-CV-11141 (PAE), 2020 WL 4903997, at *17 (S.D.N.Y. Aug. 19, 2020) (ADA, Rehab Act, ADEA retaliation claims subject to McDonnell Douglas) (collecting cases); Maynard v. Montefiore Med. Ctr., No. 18-CV-8877 (LAP), 2021 WL 396700, at *4 n.5 (S.D.N.Y. Feb. 4, 2021) (FMLA retaliation claims but not FMLA interference claims subject to McDonnell Douglas (citing Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 424 (2d Cir. 2016)); Nazario v. Promed Pers. Servs. NY Inc., No. 15-CV-6989 (LGS), 2017 WL 2664202, at *6 (S.D.N.Y. June 19, 2017) (NYCHRL claims subject to McDonnell Douglas); Grant v. United Cerebral Palsy of New York City, Inc., No. 11-CV-18 (LGS), 2014 WL 902638, at *8 (S.D.N.Y. Mar. 7, 2014) (hostile work environment claims not subject to McDonnell Douglas). Under the first step of the McDonnell Douglas framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. 411 U.S. at 802. The burden then shifts to the employer to “articulate some legitimate, nondiscriminatory reason” for the adverse action. Id.
As the Second Circuit has explained, “[t]he purpose of this burden-shifting is to discourage dismissal of employment discrimination claims without an employer having to set forth a legitimate reason for the adverse action.” Kelleher v. Fred A. Cook, Inc., 939 F.3d 465, 468 (2d Cir. 2019) (citing Littlejohn v. City of New York, 795 F.3d 297, 306-08 (2d Cir. 2015). “Accordingly, a plaintiff's burden to establish an initial prima facie case is, by design, ‘minimal and de minimis.'” Id. (quoting Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005)). In pleading employment discrimination claims, “the complaint need not give plausible support to the ultimate question of whether the adverse employment action was attributable to discrimination, but rather, need only give plausible support to a minimal inference of discriminatory motivation.” Lopez v. New York City Dep't of Educ., No.17-CV-9205 (RA), 2020 WL 4340947, at *7 (S.D.N.Y. July 28, 2020) (internal quotation omitted) (quoting Littlejohn, 795 F.3d at 311).
“To survive a motion to dismiss, a complaint alleging workplace discrimination and retaliation need not allege specific facts establishing a prima facie case of discrimination under McDonnell Douglas.” Gonzalez v. Carestream Health, Inc., 520 Fed.Appx. 8, 9-10 (2d Cir. 2013) (citing Boykin v. KeyCorp, 521 F.3d 202, 213 (2d Cir. 2008)). Rather, “[a]t the pleading stage, [courts] consider only whether the complaint includes factual allegations sufficient ‘to raise a right to relief above the speculative level.'” Id. (quoting Twombly, 550 U.S. at 555); Loksen v. Columbia Univ., No. 12-CV-7701 (CM), 2013 WL 5549780, at *10 (S.D.N.Y. Oct. 4, 2013) (“On a motion to dismiss an employment discrimination claim a plaintiff need not plead the specific facts necessary to establish a prima facie case, [however, ] the claim must be facially plausible and must give fair notice to the defendants of the basis for the claim.” (internal quotations omitted) (quoting Mazurkiewicz v. New York City Health and Hospitals Corp., No. 09-CV-5962 (WHP), 2010 WL 3958852, at *4 (S.D.N.Y. Sept. 16, 2010)).
With these standards in mind, the Court will discuss each of Bernheim's claims in turn.
B. FMLA Claims
1. Interference
“The FMLA ‘gives eligible employees an entitlement to twelve work weeks per year of unpaid leave because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.'” Arroyo-Horne v. City of New York, 831 Fed.Appx. 536, 538-39 (2d Cir. 2020) (quoting Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 174 (2d Cir. 2006)). The FMLA makes it illegal for employers to: “(1) ‘interfere with, restrain, or deny the exercise of or the attempt to exercise, any right' provided under the FMLA; or (2) ‘discharge or in any manner discriminate against any individual for opposing any practice made unlawful' by the FMLA.” Daly, 2021 WL 229672, at *11 (quoting Prout v. Vladeck, 316 F.Supp.3d 784, 800 (S.D.N.Y. 2018)). “FMLA claims [thus] come in at least two varieties: interference and retaliation. An employee brings an ‘interference' claim when her employer has prevented or otherwise impeded the employee's ability to exercise rights under the FMLA, ” while a retaliation claim is “based on ‘actually exercising her rights or opposing perceived unlawful conduct under the FMLA and then being subjected to some adverse employment action by the employer.'” Wells v. Achievement Network, No. 18-CV-6588 (KPF), 2021 WL 810220, at *9 (S.D.N.Y. Mar. 2, 2021) (citing Woods v. START Treatment & Recovery Ctrs., Inc., 864 F.3d 158, 166 (2d Cir. 2017)).
“To succeed on a claim of FMLA interference, a plaintiff is required to plead: ‘[i] that she is an eligible employee under the FMLA; [ii] that defendant is an employer as defined by the FMLA; [iii] that she was entitled to leave under the FMLA; [iv] that she gave notice to the defendant of her intention to take leave; and [v] that she was denied benefits to which she was entitled under the FMLA.'” Wells, 2021 WL 810220, at *12 (quoting Ziccarelli v. N.Y. Univ. Hosps. Ctr., 247 F.Supp.3d 438, 447 (S.D.N.Y. 2017)). As for an FMLA retaliation claim, a plaintiff must plead the following: “(1) [s]he exercised rights protected under the FMLA; (2) [s]he was qualified for [her] position; (3) [s]he suffered an adverse employment action; and (4) the employment action occurred under circumstances giving rise to an inference of discriminatory intent.” Daly, 2021 WL 229672, at *11 (quoting Kastrati v. Progress of Peoples Mgmt. Corp., No. 18-CV-6731, 2020 WL 6940991, at *5 (E.D.N.Y. Nov. 24, 2020)). “A threshold issue for both FMLA interference claims and FMLA retaliation claims is whether an employee is eligible under the statute to claim its protections.” Arroyo-Horne, 831 Fed.Appx. at 539 (citing Graziadio, 817 F.3d at 424). The DOE argues that Bernheim failed to plead that she was an eligible employee under the FMLA. Def. Mem. at 5-6. The Court agrees.
2. FMLA Eligibility
To be eligible for FMLA leave, an employee must have been employed for at least 12 months by the employer from whom she is requesting leave, and she must have worked at least 1, 250 hours with that employer in the 12 months prior to the beginning of her medical leave. 29 U.S.C. § 2611(2)(A). Bernheim alleges that she was denied FMLA leave in June and August 2018. Amended Compl. at ¶ 5. Although she pled that she has been a DOE employee since 1999, she does not plead how many hours she worked. Id. at ¶¶ 1-2. In her opposition papers, Bernheim argues that she is eligible for FMLA because she is a “full-time teacher.” Pl. Mem. at 5. However, “[i]t is well established that ‘[a] simple allegation that the employee was ‘employed full-time' by the employer is not enough to satisfy the 1, 250 hours prong of the test.'” Daly, 2021 WL 229672, at *11 (quoting Donahue v. Asia TV USA Ltd., 208 F.Supp.3d 505, 512 (S.D.N.Y. 2016)). Thus, to survive a motion to dismiss, Bernheim must plead that she worked at least 1, 250 hours before June 2018 and August 2018, i.e., 12 months before requesting FMLA leave.
3. FMLA Retaliation
The DOE further argues that even if she was eligible for FMLA leave, Bernheim cannot state an FMLA retaliation claim because such claims “involve an employee actually exercising her rights.” Def. Mem. at 6 (quoting Woods, 864 F.3d at 166). In its reply, the DOE reiterates its position that an FMLA retaliation claim “requires that the employee utilize FMLA leave, ” citing Woods again as well as the Circuit's decision in Hale v. Mann, 219 F.3d 61, 68 (2d Cir. 2000). Def. Reply at 4.However, neither of those decisions limits exercising one's rights under FMLA to actually receiving FMLA leave, and that reading is inconsistent with both the plain language of the statute and the Second Circuit's construction of its terms.
The plaintiff in Hale took FMLA leave and the Second Circuit determined there was no evidence that he was fired on this basis. 219 F.3d at 70. It is unclear why the DOE cites this case as it offers no support for its position here.
In Woods, the Second Circuit held that FMLA retaliation claims under Section 2615(a)(1) are actionable. 864 F.3d at 167 (citing 29 U.S.C. § 2615 (a)(1)). Specifically, it held that “FMLA retaliation claims like Woods's, i.e. terminations for exercising FMLA rights by, for example, taking legitimate FMLA leave, are actionable under § 2615(a)(1).” Id. (emphasis added). Section 2615(a)(1) defines the interference of the “exercise of rights” under the FMLA as “interfer[ing] with, restrain[ing], or deny[ing] the exercise of or the attempt to exercise, any right provided under this subchapter.” 29 U.S.C. § 2615 (a)(1) (emphasis added). If, for example, the DOE disciplined Bernheim for applying for FMLA leave, the Court does not see why that would not fall under the purview of § 2615(a)(1), assuming she was eligible for FMLA in the first place. See, e.g., Seitz v. New York State, No. 18-CV-4149 (PKC) (LB), 2019 WL 4805257, at *12 (E.D.N.Y. Sept. 30, 2019) (“Plaintiff exercised her rights under the FMLA when she applied for FMLA leave . . ., thereby satisfying the first element.”); Ladepo v. United Cerebral Palsy of New York City, Inc., No. 15-CV-7026 (VSB), 2018 WL 4356726, at *8 (S.D.N.Y. Sept. 12, 2018) (“Plaintiff has presented sufficient evidence to create a genuine issue of fact as to whether she exercised her FMLA rights by making a request for FMLA leave during the relevant time period.”).
The decision in Greenberg v. State University Hospital-Downstate Medical Center, No. 15-CV-2343 (PKC) (VMS), 2019 WL 4752018 (E.D.N.Y. Sept. 29, 2019) and the unpublished decision affirming it, 838 Fed.Appx. 603 (2d Cir. 2020), are illustrative. There the plaintiff, who was eligible for FMLA, had taken sick leave, not FMLA leave, and alleged both FMLA interference and FMLA retaliation claims after he was fired. 2019 WL 4752018, at *17. On a motion for summary judgment, the district court held that the claim was not cognizable as an FMLA interference claim but rather as an FMLA retaliation claim because he was approved for sick leave consistent with the FMLA. Id. The court then found that the retaliation claim failed because the record demonstrated that he had taken time off for reasons unrelated to his FMLA eligibility. Id. at *18. The fact that he never actually took FMLA leave was not part of its analysis, as the DOE's position would suggest it had to be. Moreover, in affirming the district court's decision, the Second Circuit found that the plaintiff failed to make out an FMLA retaliation claim because he failed to show that the defendants' reasons for firing him were pretextual. 838 Fed.Appx. at 606. Similarly, the Circuit did not take into consideration the fact that the plaintiff had not actually taken FLMA leave. The DOE's position that one must take FMLA leave in order to state an FMLA retaliation claim thus appears to be unfounded in the law, contrary to the terms of the statute, and inconsistent with the Second Circuit's application of the statute.
As Bernheim has not pled facts establishing plausibly that she was, in fact, an “eligible employee” under the FMLA, I recommend that her FMLA claims be dismissed. However, because it is possible that she could establish eligibility for FMLA purposes and may have a viable FMLA retaliation claim, I further recommend the Court grant Bernheim's request to file a second amended complaint and allow her to replead her FMLA claims. See, e.g., Rettino v. New York City Dep't of Educ., No. 19-CV-5326 (JGK), 2020 WL 4735299, at *6 (S.D.N.Y. Aug. 14, 2020) (“A court should grant a pro se plaintiff leave to replead [her] claims when it cannot ‘rule out any possibility, however unlikely it might be, that an amended complaint would succeed in stating a claim.'” (quoting Shomo v. City of New York, 579 F.3d 176, 184 (2d Cir. 2009))).
C. ADEA Claims
1. Disparate Treatment
As is relevant here, the ADEA prohibits employers from “discharg[ing] any individual or otherwise discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a)(1). To successfully claim age discrimination under the ADEA, Bernheim must establish that: (1) she is a member of a protected class; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) the adverse employment action gives rise to an inference of discriminatory intent. See, e.g., Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012). Moreover, “a plaintiff alleging age discrimination under the [ADEA] must allege that age was the ‘but-for' cause of the employer's adverse action.” Bockus v. Maple Pro, Inc., No. 20-2791-CV, 2021 WL 1054061, at *3 (2d Cir. Mar. 19, 2021) (summary order) (internal quotations omitted) (quoting Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015)).
There is no dispute that Bernheim, who was 48 years old at the time she requested leave in 2018, was within the protected age group when she received the disciplinary notices and Section 3021-a charges, which constitute an “adverse employment action.” See, e.g., Lopez, 2020 WL 4340947, at *7 (“[C]ourts in this Circuit have presumed that the imposition of Section 3020-a charges constitutes a materially adverse employment action for the purposes of an ADEA claim.” (collecting cases)). Moreover, Bernheim has been a DOE employee for 21 years (Amended Compl. ¶ 2) and the Court infers from this lengthy tenure that she was qualified for her position. See, e.g., Kunik v. New York City Dep't of Educ., 436 F.Supp.3d 684, 693 (S.D.N.Y. 2020) (finding “no basis . . . to conclude that [plaintiff] lacked the basic skills necessary to perform the job she had been performing for 20 years” (citing Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 92 (2d Cir. 2001)), aff'd, 842 Fed.Appx. 668 (2d Cir. 2021). The issue before the Court is therefore whether Bernheim has plausibly alleged that her age was a “but-for” cause of the disciplinary actions.
Bernheim's sole allegation on this score is that “other senior teachers in the ATR pool [] [have] also been targeted with disciplinary letters and Section 3020-a charges.” Amended Compl. ¶ 7; see also Pl. Mem. at 9-10. The Court construes this allegation as asserting a disparate treatment claim. However, “[i]n order to succeed on a disparate treatment claim, a plaintiff ‘must show [she] was similarly situated in all material respects to the individuals with whom [she] seeks to compare [herself].” Lopez, 2020 WL 4340947, at *8 (quoting Mandell v. Cty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003)). Without any facts about the other “senior teachers, ” the younger teachers, or the nature of their disciplinary records, Bernheim has not alleged enough details to adequately show that they were similarly situated or that age was a “but for” factor in the Section 3020-a charges. See, e.g., Siclari v. New York City Dep't of Educ., No. 19-CV-7611 (AJN), 2020 WL 7028870, at *7 (S.D.N.Y. Nov. 30, 2020) (“The amended complaint does allege that younger teachers did not receive poorly rated observations, but it provides no other facts to support even the inference that those teachers were similarly situated such that Plaintiff's contrary experience was due to or because of her age.”); Lopez, 2020 WL 4340947, at *9 (dismissing conclusory disparate treatment claim and noting plaintiff did “not include the ages of these other teachers in his Amended Complaint or opposition”); Fitzgerald v. Signature Flight Support Corp., No. 13-CV-4026 (VB), 2014 WL 3887217, at *4 (S.D.N.Y. Aug. 5, 2014) (“[T]he Court disregards plaintiff's unelaborated allegation that [defendant] ‘pushed out two other senior employees.'”). Because Bernheim has failed to allege a set of facts to support a claim that age was the “but-for” cause of any of the adverse employment actions, I recommend her claim for discrimination under the ADEA be dismissed. I further recommend that the Court grant Bernheim leave to amend to give her one final opportunity to allege the requisite facts, if they exist, to make her age discrimination claim cognizable.
2. Retaliation
Bernheim also alleges retaliation under the ADEA “based on [her] request for disability accommodations and [her] FMLA intermittent leave.” Amended Compl. ¶ 9; see also Pl. Mem. at 10-11. Under the ADEA, “[i]t shall be unlawful for an employer to discriminate against any of his employees . . . because such individual . . . has opposed any practice made unlawful by this section, or because such individual has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.” 29 U.S.C. § 623(d). “To state a claim for retaliation under the ADEA, a plaintiff must allege that (1) [she] was engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action.” Zoulas v. New York City Dep't of Educ., 400 F.Supp.3d 25, 56-57 (S.D.N.Y. 2019) (quoting Klein v. Brookhaven Health Care Facility, No. 17-CV-4841 (JSA) (KT), 2019 WL 1459258, at *7 (E.D.N.Y. Mar. 11, 2019)). “With respect to the first element, participation in protected activity, the plaintiff need not establish that the conduct she opposed was actually a violation of [the ADEA], but only that she possessed a good faith, reasonable belief that the underlying employment practice was unlawful under that statute.” Lawtone-Bowles v. City of New York, Dep't of Sanitation, 22 F.Supp.3d 341, 351 (S.D.N.Y. 2014) (quoting Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998)).
Because neither requesting an accommodation for a disability nor requesting FMLA leave involves Bernheim's age, the allegations do not demonstrate that Bernheim was engaged in any protected activity under the ADEA. See, e.g., Lopez, 2020 WL 4340947, at *10 (“Plaintiff has not plausibly alleged that he engaged in protected activity under the ADEA because he has not provided any facts demonstrating that he believed that ‘he was opposing an employment practice made unlawful by' the ADEA”). I therefore recommend that the Court dismiss her ADEA retaliation claim, I further recommend that the Court give Bernheim leave to amend in the event that additional facts could provide a sufficient predicate for an ADEA retaliation claim.
In Lopez, a pro se case, the court afforded the plaintiff a final attempt to amend his complaint as to this claim and others as well. 2020 WL 4340947, at *14.
D. The ADA and the Rehab Act
The ADA applies to state and local government employers along with private employers and prohibits employers from discriminating “against a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). The Rehab Act, which allows federal employees to raise claims of disability discrimination against the federal government, in turn prohibits “any program or activity receiving Federal financial assistance” from discriminating against an employee “solely by reason of her or his disability.” 29 U.S.C. § 794(a). “The same standard applies to disability discrimination claims under the Rehabilitation Act as under the ADA.” Smith v. New York City Dep't of Educ., No. 18-CV-8545 (PGG), 2019 WL 6307471, at *6 (S.D.N.Y. Nov. 25, 2019) (quotation omitted) (quoting Johnson v. NYS Office of Alcoholism, No. 16-CV-9769 (RJS), 2018 WL 1353258, at *4 (S.D.N.Y. Mar. 13, 2018)).
“Discrimination claims under the ADA may be brought under a theory of adverse employment action or [for] failure to provide reasonable accommodation.” Berger v. New York City Police Dep't, 304 F.Supp.3d 360, 368 (S.D.N.Y. 2018) (citing McMillan v. City of New York, 711 F.3d 120, 125-26 (2d Cir. 2013)); Pardo v. Nielsen, No. 19-CV-616 (MKV), 2021 WL 1143897, at *7 (S.D.N.Y. Mar. 24, 2021). Bernheim focuses primarily on the DOE's alleged failure to accommodate. However, in light of her pro se status, the Court will also determine whether she has made out a prima facie case of disability-based discrimination in her amended complaint.
To successfully establish a prima facie ADA case under a theory of adverse employment action, a plaintiff must show that: “(1) [her] employer is subject to the ADA; (2) [she] was disabled within the meaning of the ADA; (3) [she] was qualified to perform the essential functions of [her] job, with or without reasonable accommodation; and (4) [she] suffered adverse employment action because of [her] disability.” Jackson v. New York City Dep't of Educ., 768 Fed.Appx. 16, 17 (2d Cir. 2019) (quoting Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir. 2001)). To successfully plead a claim for a failure to accommodate, “a plaintiff must establish that (1) [she] is a person with a disability; (2) defendant had notice of [her] disability; (3) plaintiff could perform the essential functions of the job at issue with reasonable accommodation; and (4) defendant refused to make such accommodations.” Vega v. Dep't of Educ., No. 18-CV-6221 (ER), 2020 WL 1505564, at *8 (S.D.N.Y. Mar. 30, 2020) (quoting Kalola v. IBM, No. 13-CV-7339 (VB) (LMS), 2017 WL 3394115, at *14 (S.D.N.Y. Feb. 28, 2017)).
The DOE contends that Bernheim failed to plead that (1) the DOE is an employer under the ADA; (2) her disability is within the meaning of the ADA; and (3) she was qualified to perform the duties of her position with her requested accommodation. Def. Mem. at 8-9. Its first two arguments are relevant to both theories, while its third argument is only relevant to the failure to accommodate claim.
1. Disability-based discrimination
a. Whether the DOE is subject to the ADA and Rehab Act
In order to be subject to the ADA and Rehab Act, an employer must be “engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.” 42 U.S.C. § 12111(5)(A). The DOE argues that Bernheim did not adequately plead that it is subject to the ADA and Rehab Act. Def. Mem. at 8. However, the DOE easily falls in this category, and contrary to its position here, it appears to be the DOE's normal practice to concede this point. See, e.g., Wein, 2020 WL 4903997, at *13 (“The parties do not appear to dispute . . . the DOE is covered by the ADA . . . .”); Jacobs v. New York City Dep't of Educ., No. 11-CV-5058 (MKB), 2018 WL 10125148, at *8 (E.D.N.Y. Mar. 31, 2018) (“Defendant acknowledges that it is subject to the ADA . . . .”), aff'd, 768 Fed.Appx. 86 (2d Cir. 2019); Wade v. New York City Dep't of Educ., No. 11-CV-05278 (LGS), 2014 WL 941754, at *11 (S.D.N.Y. Mar. 10, 2014) (“The employer does not dispute that it is subject to the ADA.”), aff'd, 667 Fed.Appx. 311 (2d Cir. 2016).
b. IBS as a Disability Under the ADA
An individual is disabled under the ADA if she: “(1) has ‘a physical or mental impairment that substantially limits one or more major life activities'; (2) has ‘a record of such an impairment'; or (3) is ‘regarded as having such an impairment.'” Lam v. New York City Dep't of Educ., No. 18-CV-2756 (PGG), 2019 WL 2327655, at *6 (S.D.N.Y. May 30, 2019) (quoting 42 U.S.C. § 12102(1)). “Not every impairment is a ‘disability' within the meaning of the ADA; rather, there are two requirements: the impairment must limit a major life activity and the limitation must be substantial.” Id. (quoting Capobianco v. City of N.Y., 422 F.3d 47, 56 (2d Cir. 2005)). “Major life activities are activities that are of central importance to daily life.” Id. (internal quotations omitted) (quoting Capobianco, 422 F.3d at 56). Major life activities include “working.” 42 U.S.C. § 12102(2)(A). They can also include “the operation of a major bodily function, including but not limited to, functions of the . . . bowel.” 42 U.S.C. § 12102(2)(B). “The ADA directs courts that ‘[t]he definition of disability in this Act shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter.'” Grullon v. Admin. for Children's Servs., No. 18-CV-3129 (LJL), 2021 WL 981848, at *12 (S.D.N.Y. Mar. 16, 2021) (quoting 42 U.S.C. § 12102(4)(A)). Thus, consistent with congressional intent, “the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis.” Glaser v. Gap Inc., 994 F.Supp.2d 569, 574 (S.D.N.Y. 2014) (citing Pub.L. 110-325, § 2(b)(5), 122 Stat. at 3553-54).
The DOE maintains that Bernheim did not adequately plead whether her “disability is one within the meaning of the ADA” because she “merely states that she has a ‘disability.'” Def. Mem. at 8. The Court disagrees. Bernheim contends that her severe IBS has substantially limited her ability to work. Pl. Mem. at 7. Specifically, she alleges that due to her severe IBS, she has had to “take a number of absences on an intermittent basis” and also points to a “six month medical sabbatical” she took for her condition. Amended Compl. ¶¶ 3-5; Pl. Mem. at 7. Moreover, her allegations suggest that her condition may also affect the “operation of a major bodily function, including but not limited to, functions of the . . . bowel.” 42 U.S.C. § 12102(2)(B). Bernheim has thus sufficiently alleged a disability under the ADA by pleading that the irregularity of her bowel functions, due to her “severe” IBS, limited her ability to attend her teaching job on an intermittent to long term basis. See, e.g., Simmons v. New York City Transit Auth., No. 08-4079-CV (L), 2009 WL 2588753, at *2 (2d Cir. Aug. 3, 2009) (noting that a jury could reasonably find IBS to be a disability under the ADA); Brown v. Humana Ins. Co., 942 F.Supp.2d 723, 731 (W.D. Ky. 2013) (considering IBS as a disability under the ADA for impeding one's ability to work); Britting v. Shineski, No. 08-CV-1747, 2010 WL 500442, at *6 (M.D. Pa. Feb. 5, 2010) (IBS can be a disability under the ADA if it is “severe” and long-term), aff'd sub nom. Britting v. Sec'y, Dep't Of Veterans Affs., 409 Fed.Appx. 566 (3d Cir. 2011); Dillbeck v. Whirlpool Corp., No. 306-CV-150 (RLY) (WG), 2008 WL 3819824, at *16 (S.D. Ind. July 24, 2008) (“Because Plaintiff has brought forth sufficient evidence for a jury to conclude that her IBS substantially limits the major life activities of caring for herself and waste elimination, Plaintiff has established for purposes of summary judgment that she is ‘disabled' under the ADA due to her IBS.”).
c. Qualified Individual
“A ‘qualified individual' under the ADA is ‘an individual with a disability who, with or without reasonable modifications to rules, policies or practices . . . meets the essential eligibility requirements for . . . participation in programs or activities provided by a public entity.” Hargrave v. Vermont, 340 F.3d 27, 35 (2d Cir. 2003) (quoting 42 U.S.C. § 12131(2)). As the Second Circuit has consistently explained, “the qualification necessary to shift the burden to defendant for an explanation of the adverse job action is minimal.” Slattery, 248 F.3d at 92; see also Beaton v. Metro. Transportation Auth. New York City Transit, No. 15-CV-8056 (ER), 2016 WL 3387301, at *6 (S.D.N.Y. June 15, 2016) (“ADA discrimination claims ‘require[ ] only a minimal showing of qualification to establish a prima facie claim,' and a plaintiff ‘only needs to demonstrate that she possesses the basic skills necessary for performance of [the] job.'” (quoting Sista, 445 F.3d at 171). As discussed previously in regard to her ADEA claim, the Court infers that Bernheim, who has been a teacher for more than 20 years, is qualified for the position. See, e.g., Wein, 2020 WL 4903997, at *13 (plaintiff “having held his teaching position for nearly two decades, was qualified for that post”).
d. Adverse Employment Action
“A plaintiff sustains an adverse employment action if he or she endures a ‘materially adverse change' in the terms and conditions of employment.” Beaton, 2016 WL 3387301, at *7 (quoting Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)). Bernheim alleges that she was served with Section 3020-a charges seeking “termination of [her] employment.” Amended Compl. ¶ 6. Bernheim additionally alleges that as a result of a hearing in June 2020 based on Section 3020-a charges, she received “a fine equivalent to a 90-day suspension without pay.” Id. Bernheim has thus sufficiently alleged that she suffered an adverse employment action. See, e.g., Lopez, 2020 WL 4340947, at *7 (Plaintiff plausibly alleged that disciplinary charges resulting in “15-day suspension without pay” was “materially adverse change” to his employment).
e. Inference of Discrimination Based on Disability
As with the ADEA, “under the ADA and Rehabilitation Act, a plaintiff must show that his or her disability was the ‘but-for' cause of the employer's conduct.” Wein, 2020 WL 4903997, at *12 (collecting cases). “A plaintiff may raise an inference of discrimination by alleging actions or remarks made by her employer that clearly reveal a discriminatory animus, or by showing that similarly situated employees received preferential treatment.” Vega, 2020 WL 1505564, at *7 (citing Littlejohn, 795 F.3d at 312); Murtha v. New York State Gaming Comm'n, No. 17-CV-10040 (NSR), 2019 WL 4450687, at *11 n.9 (S.D.N.Y. Sept. 17, 2019) (citing Natofsky v. City of New York, 921 F.3d 337, 348 (2d Cir. 2019)). Bernheim alleges that she was “being targeted based on [her] . . . disability.” Amended Compl. ¶ 9. However, she does not plead any facts to support this allegation and there is not enough information provided for the Court to infer that the disciplinary charges occurred because of her disability. To the extent Bernheim alleges that she was disciplined because she requested FMLA leave, that is more properly addressed as an ADA retaliation claim. See, e.g., Murtha, 2019 WL 4450687, at *11 (“[W]hile Plaintiff may properly allege that his termination constitutes improper retaliation for, inter alia, his reasonable accommodation requests, he does not state a claim for disability discrimination based on his protected engagement in such activities. Rather, Plaintiff is required to plausibly allege that he was terminated because he was an asthmatic.”).
In addition, Bernheim alleges that the DOE's “refusal to grant [her] intermittent leave based on [her] disability has led to the issuance of disciplinary letters against [her] due to attendance.” Amend. Comp. ¶ 5. The Second Circuit has found that “[f]ailure to consider the possibility of reasonable accommodation for [] disabilities, if it leads to discharge for performance inadequacies resulting from the disabilities, amounts to a discharge solely because of the disabilities.” Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 143 (2d Cir. 1995). However, whether the DOE failed to accommodate Bernheim's disabilities is a separate question, which the Court will address in the following subsection. Accordingly, to the extent Bernheim alleges that she suffered an adverse employment action because of her disability-separate from her retaliation claim and her claim for the DOE's failure to accommodate her disability-I recommend that the Court dismiss this claim. I further recommend that the Court grant Bernheim permission to replead the claim to the extent there are facts to support her more general claim that she was targeted because of her disability.
2. Failure to Accommodate
As previously mentioned, to make out a prima facie case for failure to accommodate under the ADA, Bernheim must plead that “(1) [she] is a person with a disability; (2) defendant had notice of [her] disability; (3) plaintiff could perform the essential functions of the job at issue with reasonable accommodation; and (4) defendant refused to make such accommodations.” Vega, 2020 WL 1505564, at *8 (citation omitted). The DOE argues that Bernheim failed to plead that she was “otherwise qualified to perform the duties of her position as a teacher with the requested intermittent medical leave, ” under the third prong. Def. Mem. at 8 (emphasis added). Bernheim counters that she has repeatedly asked for intermittent leave because of her severe IBS. Pl. Mem. at 7; Amend. Comp. ¶ 5. However, she does not explain how the requested accommodation would allow her to “perform the essential functions of the position.” Noll v. Int'l Bus. Machs. Corp., 787 F.3d 89, 94 (2d Cir. 2015) (quoting McBride v. BIC Consumer Prods. Mfg. Co., Inc., 583 F.3d 92, 97 (2d Cir. 2009)). “‘Essential functions' refers to the ‘fundamental' duties to be performed in the position in question.'” Lam, 2019 WL 2327655, at *7 (quoting Stone v. City of Mt. Vernon, 118 F.3d 92, 97 (2d Cir. 1997)). “The plaintiff bears the burdens of both production and persuasion as to the existence of some accommodation that would allow her to perform the essential functions of her employment.” Diaz v. Viagran, No. 16-CV-9106 (CM), 2018 WL 4360790, at *15 (S.D.N.Y. Aug. 29, 2018) (quoting McBride, 583 F.3d at 97); McMillan, 711 F.3d at 126. Without any more facts, the Court cannot determine that Bernheim would still be able to perform the essential duties of her job with the requested accommodations. See, e.g., Zabar v. New York City Dep't of Educ., No. 18-CV-6657 (PGG), 2020 WL 2423450, at *5 (S.D.N.Y. May 12, 2020) (dismissing ADA claim where teacher did not explain how she could perform the essential functions of her job with accommodations for her anxiety). However, I recommend that the Court grant Bernheim permission to replead her failure to accommodate claim because she may be able to properly plead that she is able to perform the essential functions of her job with intermittent leave, particularly in light of the Second Circuit's holding that “[p]hysical presence at or by a specific time is not, as a matter of law, an essential function of all employment.” McMillan, 711 F.3d at 126.
Moreover, as discussed in the next subsection, courts in the Second Circuit have repeatedly found that intermittent leave may be a reasonable accommodation under the ADA, suggesting that in certain contexts one may perform the essential functions of a job with intermittent leave.
3. Retaliation
The ADA also prohibits retaliation against any individual who has asserted her rights under the ADA. See 42 U.S.C. § 12203(a) (“No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.”). For an ADA retaliation claim to survive a motion to dismiss, a plaintiff must plead the following: “(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action.” Perez v. City of New York, 843 Fed.Appx. 406, 407 (2d Cir. 2021) (quoting Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010)). “To sufficiently plead causation, the plaintiff must plausibly allege a connection between the adverse action and participation in protected activity.” Garcia v. Kings Cty. Hosp. Ctr., No. 16-CV-3151 (ER), 2018 WL 389212, at *6 (S.D.N.Y. Jan. 11, 2018) (citing Riddle v. Citigroup, 640 F. App'x. 77, 79 (2d Cir. 2016)). “Furthermore, the plaintiff must allege that the retaliation was the ‘but-for' cause of the adverse action.” Id. (citing Riddle, 640 Fed.Appx. at 79)).
a. Protected Activity under the ADA
“Protected activity is action taken to protest or oppose statutorily prohibited discrimination.” Shannon v. Credit Agricole Sec. (USA), Inc., No. 17-CV-667 (AJN), 2021 WL 1063183, at *9 (S.D.N.Y. Mar. 19, 2021) (quoting Natofsky, 921 F.3d at 354). “Protected activities include requests for reasonable accommodations.” Wells, 2021 WL 810220, at *11 (citing Weixel v. Bd. of Educ. of City of N.Y., 287 F.3d 138, 148 (2d Cir. 2002)). The DOE argues that Bernheim failed to allege that she participated in an activity protected under the ADA because she only requested FMLA leave as an accommodation, which, in its view, is not an accommodation under the ADA. Def. Mem. at 9. The Court disagrees.
To begin, the cases that the DOE cites for the proposition that FMLA leave cannot be an accommodation under the ADA are unavailing. For example, the DOE cites Robles v. Medisys Health Network, Inc. (Def. Mem. at 9-10), but the full paragraph-that the DOE only excerpts-implies that FMLA leave may indeed constitute an accommodation:
In this case, Robles's alleged request for leave is not a plausible ADA-protected activity. Robles alleges that he requested leave on October 27, 2018. However, the First Amended Complaint describes this leave as “FMLA leave” and not as an accommodation under the ADA. Nor does Robles allege sufficient facts to allow me to conclude that this leave could have constituted an accommodation of a disability under the ADA, as many of the facts that enabled me to infer that he has a disability . . . did not arise until after October 27. Therefore, Robles does not allege that his request for leave on October 27 was a request for a reasonable accommodation of a disability or any other ADA-protected activity.
Robles v. Medisys Health Network, Inc., No. 19-CV-6651 (ARR) (RML), 2020 WL 3403191, at *12 (E.D.N.Y. June 19, 2020) (emphasis added) (internal citations to the complaint omitted). The issue in Robles was not that plaintiff requested FMLA leave, but that the requested FMLA leave was unrelated to his disability.
The second case the DOE cites (Def. Mem. at 10), Knight v. Cty. of Cayuga, No. 19-CV-712 (DNH), 2019 WL 5067901 (N.D.N.Y. Oct. 9, 2019), offers even less support. There, the court found that the plaintiff did not have a disability under the ADA and in finding that the plaintiff did not engage in ADA-protected activity, made no mention of the fact that she took FMLA leave. Id. at *11. On the other hand, the decision in Rodriguez v. Atria Sr. Living Grp., Inc.-in which the court found that requesting FMLA leave was protected activity under the ADA because it was tantamount to requesting an accommodation for a disability-is more relevant. 887 F.Supp.2d 503, 512 (S.D.N.Y. 2012) (agreeing with plaintiff that he “engaged in an ADA-protected activity by ‘request[ing] an extension of his [Second FMLA Leave]'”).
The court in Kastrati v. Progress of Peoples Management Corp. recently posited that “[a] request for FMLA leave, without more, cannot constitute a protected activity for the purposes of an ADA retaliation claim.” 2020 WL 6940991, at *5. However, it did not cite any case law to support that proposition, nor did it explain its view. In addition, the pro se plaintiff in that case did not clearly identify what activity he alleged was protected under the ADA. Id. Here, however, Bernheim clearly argues that she requested FMLA leave as an accommodation for her disability. See Pl. Mem. at 11 (“Plaintiff's FMLA requests for intermittent leave were also reasonable accommodation requests for her disability under the ADA . . . .”).
Moreover, the Second Circuit has suggested that “intermittent leave” more generally may be a reasonable accommodation under the ADA in certain contexts, though it has left the question open. See, e.g., Petrone v. Hampton Bays Union Free Sch. Dist., 568 Fed.Appx. 5, 7 n.2 (2d Cir. 2014) (“[W]e have never resolved the question of whether paid or unpaid leave can constitute a reasonable accommodation under the ADA.” (citation omitted)); Graves v. Finch Pruyn & Co., 457 F.3d 181, 185 n.5 (2d Cir. 2006) (“Most other circuits and the Equal Employment Opportunity Commission have concluded that, in some circumstances, an unpaid leave of absence can be a reasonable accommodation under the ADA.”). Notably, several courts in this Circuit have found that intermittent leave can constitute a reasonable accommodation in certain contexts. See, e.g., Smith v. N. Shore-Long Island Jewish Health Sys., 286 F.Supp.3d 501, 525 (E.D.N.Y. 2018) (“[T]he Court finds [plaintiff] to be qualified within the meaning of the ADA with the reasonable accommodation of intermittent leave.”); Green v. Cellco P'ship, 218 F.Supp.3d 157, 164 (D. Conn. 2016); Sobhi v. Sociedad Textil Lonia Corp., No. 13-CV-8073 (AT), 2014 WL 7474338, at *5 (S.D.N.Y. Dec. 30, 2014). Bernheim has thus adequately pled that she engaged in a protected activity under the ADA by requesting FMLA leave as an accommodation for her severe IBS.
b. Adverse Employment Action
The DOE further contends that even if Bernheim pled a protected activity under the ADA, her claim for the DOE's failure to accommodate her disability cannot be “bootstrapped into a viable disability retaliation claim.” Def. Mem. at 10 (quoting Missick v. City of New York, 707 F.Supp.2d 336, 356 (E.D.N.Y. 2010)). While that may be true, the DOE mischaracterizes Bernheim's allegations. Bernheim does not argue that the DOE's alleged failure to accommodate is the basis for her retaliation claim. Rather, Bernheim alleges that since she made her requests for leave, she has “been retaliated against as [she] was recently served Section 3020-a charges on December 19, 2019, seeking termination of [her] employment.” Amended Compl. ¶ 6. Thus, the adverse action alleged is not the failure to accommodate, but rather the disciplinary action taken against her. In this District, the standard for adverse employment actions in retaliation claims “can encompass negative performance evaluations and disciplinary letters.” Wein, 2020 WL 4903997, at *19 (collecting cases). Bernheim has thus sufficiently alleged an adverse action for her retaliation claim under the ADA.
c. Causation
Next, the Court must determine if Bernheim sufficiently pled a causal connection between her requesting accommodations for her severe IBS and the disciplinary charges against her. “A causal connection in retaliation claims can be shown 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.'” Natofsky, 921 F.3d at 353 (quoting Littlejohn, 795 F.3d at 319).
Bernheim argues that she has established a causal connection because of the “close timing” between her requests for FMLA leave in June and August of 2018 and her receiving Section 3020-a disciplinary charges four months later in December 2018. Pl. Mem. at 11. Although it is certainly a close question, the Second Circuit “has not drawn a bright line defining, for the purposes of a prima facie case, the outer limits beyond which a temporal relationship is too attenuated to establish causation, ” and “has previously held that five months is not too long to find the causal relationship.” Gorzynski, 596 F.3d at 110. The four months between Bernheim's protected activity and the DOE's adverse actions are thus sufficient at this pleading stage of the case. See, e.g., Rasmy v. Marriott Int'l, Inc., 952 F.3d 379, 391 (2d Cir. 2020) (“In some such circumstances, a five-month time frame for a decision to fire an employee may not be exceptional.”); Summa v. Hofstra Univ., 708 F.3d 115, 128 (2d Cir. 2013) (concluding that a “seven-month gap between [plaintiff's] filing of the instant lawsuit and the decision to terminate her employment privileges is not prohibitively remote”); Ibok v. Sec. Indus. Automation Corp., 369 Fed.Appx. 210, 213 (2d Cir. 2010) (“A temporal relationship between the protected activity and the adverse action-even when they are as much as five months apart-can establish a prima facie case of retaliation.” (citing Gorzynski, 596 F.3d at 110-11)); Gonzalez v. New York City Health & Hosp. Corp., No. 18-CV-2645 (JPO), 2019 WL 2435622, at *12 (S.D.N.Y. June 11, 2019) (“[T]he Court concludes that the gap of five months at the outmost between [plaintiff's] protected activity and the onset of the retaliatory conduct is not too long to establish indirect causation for the purposes of the prima facie case of retaliation at the pleading stage.”).
Other courts, however, have found four months to be too long to establish a temporal connection. See, e.g., Dawson v. City of New York, No. 09-CV-5348 (PGG), 2013 WL 4504620, at *17 (S.D.N.Y. Aug. 19, 2013) (collecting cases). As the Second Circuit has commented, the lack of a bright line “has allowed [courts] to exercise [their] judgment about the permissible inferences that can be drawn from temporal proximity in the context of particular cases.” Summa, 708 F.3d at 128 (quoting Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009)).
“To be sure, the proximity of events may not alone suffice to make out a prima facie case of retaliation at the summary judgment stage.” Wein, 2020 WL 4903997, at *10 (citing EEOC v. Bloomberg L.P., 967 F.Supp.2d 816, 855-56 (S.D.N.Y. 2013)); Tuccio Dev., Inc. v. Miller, 423 Fed.Appx. 26, 27 (2d Cir. 2011) (two-month gap between protected activity and an adverse employment action, without further evidence of causation, not enough to withstand summary judgment). At this stage, however, Bernheim has plausibly alleged retaliation for her requests for accommodations under the ADA.
E. NYSHRL and NYCHRL Claims
1. Notice of Claim Pleading Requirements
As discussed in my previous Report and Recommendation, Bernheim must comply with the state's notice-of-claim requirements in order to sue the DOE under her state and city claims. Dkt. No. 30 at 8-10. Specifically, the “New York Education Law provides that, as a precondition to suit ‘for any cause whatever' against a board of education or officer thereof, a plaintiff's complaint must allege that (i) ‘a written verified claim upon which such action . . . is founded was presented to the governing body of said district . . . within three months after the accrual of such claim' and (ii) the governing body of the district has failed or refused to ‘make an adjustment or payment thereof for thirty days after such presentment.'” Warmin v. New York City Dep't of Educ., No. 16-CV-8044 (KPF), 2018 WL 1441382, at *6 (S.D.N.Y. Mar. 22, 2018) (quoting N.Y. Educ. Law § 3813(1)).
In my previous Report and Recommendation, I recommended that the Court allow Bernheim to submit a late notice of claim to save her NYSHRL and NYCHRL claims to the extent they relate to her medical conditions (but not to the extent they relate to her age). Dkt. No. 30, at 20. The DOE did not submit any objections to my Report and Recommendation, and the Court adopted it in full, allowing Bernheim to file a notice of claim by August 14, 2020. Dkt. No. 31, at 3. On August 12, 2020, Bernheim filed a notice of claim against the DOE. See Amended Compl. ¶ 8. However, Bernheim was only granted leave to file a late notice of claim related to her medical condition, not her age, so the Court may only consider her disability-based claims under the NYSHRL and NYCHRL.
The DOE does not dispute that Bernheim filed the notice of claims on August 12, 2020, but contends that the Court should dismiss her state claims because she failed to plead whether the DOE provided her the requested relief within 30 days of such service, consistent with the Court's Order (Dkt. No. 31, at 3-4) and Section 3813(1) of the New York Education Law. Def. Mem. at 15. The Court agrees and recommends dismissing her state claims because she failed to plead whether the DOE failed to provide relief. See, e.g., Warmin, 2018 WL 1441382, at *6 (“Because compliance with § 3813(1) is a condition precedent to a suit against a board of education or its officers, a plaintiff's failure to plead compliance mandates dismissal of his claims.”). However, because she did file a notice of claim and the DOE has not contended that it provided her any relief, I recommend granting her leave to amend her complaint to comply with Section 3813(1)'s pleading requirement. See, e.g., Penniston v. City of New York, No. 13-CV-3572 (SLT) (CLP), 2017 WL 11507663, at *14 (E.D.N.Y. Dec. 15, 2017) (granting leave to amend where plaintiff complied with notice of claim requirement but did not plead whether the DOE refused or neglected the notice of claim).
If Bernheim chooses to replead her NYCHRL claims, she must allege that she was treated “less well” because of her disability and provide sufficient information to support such a claim. See Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013).
2. Statute of Limitations
The DOE further contends that Bernheim's claims are barred by the state's one-year statute of limitations, reiterating an argument that the Court already rejected. Specifically, the DOE, again, argues that the statute of limitations begins to run when the cause of action accrued-here, October 19, 2019-which would mean that the notice of claim would not cover claims that accrued before October 18, 2018. Def. Mem. at 16. As explained in my prior Report and Recommendation, “[i]n calculating the October 18, 2018 date, however, Defendants neglected to consider whether Bernheim's filing of the NYSDHR complaint or EEOC charge tolled the statute of limitations.” Dkt. No. 30, at 17. After discussing the relevant case law, I “conclude[d] that Bernheim's filing of the EEOC charge tolls the one-year statute of limitations in this case.” Id. at 18. Accordingly, only claims that accrued on or before February 9, 2018 are time-barred. Id. at 19. As noted, the DOE did not object to my Report and Recommendation, and the Court adopted it in full. In doing so, the Court allowed Bernheim to file a late notice of claim “to save her NYSHRL and NYCHRL claims to the extent that they relate to her medical condition and to the extent that they accrued after February 9, 2018.” Dkt. No. 31, at 3. Thus, this Court already ruled that Bernheim's claims related to her medical condition are not time-barred and the DOE may not relitigate the issue here. See, e.g., King v. City of New York, Dep't of Corr., 419 Fed.Appx. 25, 26-27 (2d Cir. 2011) (“A party's failure to timely object to a magistrate judge's report and recommendation may operate as a waiver of any further judicial review of the decision, as long as the parties receive clear notice of the consequences of their failure to object.” (quotation omitted)); Dkt. No. 30 at 23 (providing notice to the parties that “failure to file objections within fourteen (14) days will result in a waiver of objections and will preclude appellate review” in capital and bolded letters).
Despite the parties' briefing on the issue, Bernheim's NYSHRL and NYCHRL claims based on her age have already been dismissed because they are time-barred. Dkt. No. 31, at 3-4.
F. Hostile Work Environment Claims
Finally, hostile work environment claims under the ADA, ADEA, and NYSHRL are analyzed under the Title VII standard. Rivera v. Rochester Genesee Reg'l Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014). This standard requires a plaintiff to “produce enough evidence to show that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Sosa v. New York City Dep't of Educ., 819 Fed.Appx. 30, 35 (2d Cir. 2020) (quoting Rivera, 743 F.3d at 20). “In conducting this analysis, [courts] consider[]: ‘(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether the conduct was physically threatening or humiliating, or a mere offensive utterance; (4) whether the conduct unreasonably interfered with plaintiff's work; and (5) what psychological harm, if any, resulted.'” Id. (quoting Aulicino v. N.Y.C. Dep't of Homeless Servs., 580 F.3d 73, 82 (2d Cir. 2009).
“[T]he Second Circuit has not decided whether a hostile work environment claim is cognizable under the ADA. District courts within this Circuit, however, have recognized such claims, applying the same standard applicable to hostile work environment claims under Title VII.” Zabar, 2020 WL 2423450, at *5 (quoting Garcia, 2018 WL 389212, at *6); Robinson v. Dibble, 613 Fed.Appx. 9, 13 n.2 (2d Cir. 2015) (“We have not yet decided whether a hostile work environment claim is cognizable under the ADA.”).
Unlike the Title VII standard, “the NYCHRL allows liability to attach for harassing conduct that does not qualify as ‘severe or pervasive,' rather the primary issue for a trier of fact in harassment cases is whether the plaintiff has proven by a preponderance of the evidence that [s]he has been treated less well than other employees because of a protected characteristic.” South v. Cont'l Cas. Co., No. 15-CV-1627 (WHP), 2017 WL 782909, at *7 (S.D.N.Y. Feb. 28, 2017) (alterations omitted) (quoting Petrisch v. HSBC Bank USA, Inc., No. 07-CV-3303 (KAM), 2013 WL 1316712, at *17 (E.D.N.Y. Mar. 28, 2013)). However, because Bernheim has not sufficiently pled the notice of claim requirement for her NYSHRL and NYCHRL claims, the Court will only analyze her claims under the Title VII framework.
Bernheim argues that her allegations regarding the Section 3020-a charges “and the hostile events leading up to those charges, including disciplinary letters and poor observations, ” support her claim. Amended Compl. ¶ 12. However, even assuming that the “hostile events, ” amounted to a handful of events, Bernheim has not sufficiently pled that the events were “pervasive.” See, e.g., Littlejohn, 795 F.3d at 321 (plaintiff failed to allege hostile work environment based on allegations that her supervisor made negative comments about her, wrongfully reprimanded her, replaced her at meetings, and increased her reporting schedule); Varughese v. Mount Sinai Med. Ctr., No. 12-CV-8812 (CM) (JCF), 2015 WL 1499618, at *60 (S.D.N.Y. Mar. 27, 2015) (events “alleged to have occurred four times over the course of [plaintiff's] employment” by definition not “pervasive”), aff'd, 693 Fed.Appx. 41 (2d Cir. 2017). Nor has she pled how the alleged events were based on either her disability or age. See, e.g., Sealy v. State Univ. of New York at Stony Brook, 834 Fed.Appx. 611, 615 (2d Cir. 2020) (plaintiff “failed to allege that the allegedly hostile conduct ‘occurred because of a protected characteristic'” (quoting Tolbert v. Smith, 790 F.3d 427, 439 (2d Cir. 2015)). Accordingly, I recommend that the Court dismiss Bernheim's hostile work environment claims but grant her leave to further amend to give her one final opportunity to elaborate on the “hostile events” purportedly giving rise to these claims.
III. CONCLUSION
For the foregoing reasons, the Court recommends that all of Bernheim's claims-with the exception of her ADA retaliation claim-be dismissed. The Court further recommends that she be granted leave to file a second amended complaint and allege the requisite facts, to the extent they exist, to make her claims cognizable.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Valerie E. Caproni, United States Courthouse, 40 Foley Square, New York, NY 10007. Any requests for an extension of time for filing objections must be directed to Judge Caproni.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).
A copy of this Report and Recommendation was mailed by chambers and emailed to:
Laura Bernheim 6 Mt. Airy Road East Croton-on-Hudson, NY 10520 Lcbcroton 10520@gmail.com