ATHENA JOHNSON v. EAC NETWORK NEW YORK STATE UNIFIED COURT SYSTEM OFFICE OF COURT ADMINISTRATION (2025)

REPORT AND RECOMMENDATION

Pro se Plaintiff Athena Johnson brings this action against Defendants EAC Network (“EAC”) and the New York State Unified Court System, Office of Court Administration (“OCA”) (collectively, “Defendants”) pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101. et seq. (“ADA”), and its amendments; Title VII of the Civil Rights Act of 1964, 40 U.S.C. § 2000e, et seq.; § 504 of the Rehabilitation Act (“§ 504” or “Section 504”), 29 U.S.C. § 794(a); the New York State Human Rights Law, N.Y. Executive Law § 290, et seq. (“NYSHRL”); and the New York City Human Rights Law, NYC Administrative Code, § 8-101 et seq. (“NYCHRL”). See Dkt. No. 8.

As set forth in the Amended Complaint, Plaintiff alleges that she was employed by EAC and assigned to the Brooklyn Screening and Treatment Enhancement (“STEP”) part of the Kings County Criminal Court, which was allegedly operated by OCA. See id. ¶¶ 6-8. Plaintiff claims that EAC failed to accommodate her disability and retaliated against her. See id. ¶¶ 66-99. Plaintiff's sole claim against OCA is that OCA, along with EAC, violated § 504 of the Rehabilitation Act in their treatment of Plaintiff. See id. ¶¶ 100-06.¹ Plaintiff seeks back pay, including lost wages and benefits; compensatory damages for emotional distress and mental anguish; punitive damages; attorneys’ fees and costs; injunctive and other equitable relief; and such other and further relief as the Court deems just and proper. See id. at 19-20.²

Before the undersigned is OCA's motion to dismiss the Amended Complaint, which has been referred to the undersigned for a report and recommendation by the Honorable Nina R. Morrison, United States District Judge. Dkt. No. 14; Order Referring Mot. dated Oct. 23, 2025. For the reasons set forth below, the undersigned respectfully recommends that OCA's motion to dismiss be granted in part and denied in part.

I. Factual Background

The following facts are taken from Plaintiff's Amended Complaint. See Dkt. No. 8. All facts alleged by Plaintiff are assumed to be true for purposes of deciding the motion to dismiss and are construed in the light most favorable to Plaintiff as the non-moving party. Gomez v. Nat'l Fin. Network, Inc., No. 20-CV-1968 (GRB) (AKT), 2021 WL 8084337, at *1 (E.D.N.Y. Aug. 2, 2021) (citing Tanvir v. Tanzin, 894 F.3d 449, 458 (2d Cir. 2018)).

A. Plaintiff's Job Description and Request for Reasonable Accommodation

This action arises out of alleged disability discrimination stemming from Plaintiff's employment as a Behavioral Health Case Manager from September 2021 through August 2023 at the STEP court, which is a specialized drug treatment court located in the Kings County Criminal Court in Brooklyn, New York. Dkt. No. 8 ¶¶ 7, 12, 60.³ In short, EAC, a not-for-profit social service agency, employed Plaintiff to manage a caseload in the STEP court. Dkt. No. 8 ¶ 8; Dkt. No. 14-2 at 5.⁴ OCA, in turn, administers the STEP court, and Plaintiff reported to several supervisors in STEP who were OCA employees. Dkt. No. 8 ¶¶ 7-8, 13; Dkt. No. 14-2 at 5-6. EAC ran programs that “work[ed] in tandem with the criminal justice system to help individuals suffering from mental health and/or substance abuse issues to obtain treatment,” and “provide[d] alternatives to incarceration to individuals dealing with alcohol and substance use disorders.” Dkt. No. 8 ¶ 12; Dkt. No. 14-2 at 5.

In 2016, while Plaintiff was in college, she was diagnosed with Major Depressive Disorder, Anxiety, Post-Traumatic Stress Disorder, Insomnia, Borderline Personality Disorder, and Substance Use Disorder. Dkt. No. 8 ¶ 9. Since the time she was diagnosed with each, Plaintiff has been receiving treatment for these illnesses. Id.

In May 2018, Plaintiff graduated with a Bachelor of Science in Behavior and Health from Boston University. Id. ¶ 10. Since 2019, Plaintiff has accumulated experience as a Behavioral Health Case Manager at various organizations. Id. ¶ 11.

In September 2021, EAC hired Plaintiff as a Behavioral Health Clinical Case Manager, and assigned her to STEP. Id. ¶¶ 12-13. Plaintiff's primary responsibilities included “managing a caseload of felony cases, ․ act[ing] as a liaison to the court, [and] ensuring that clients receive the necessary services and support.” Id. ¶ 14. Plaintiff's daily duties included “conducting assessments, arranging referrals to appropriate treatment programs, administering drug tests specifically for female clients, and ensuring compliance with program guidelines.” Id. The job description did not specify whether the job had to be performed completely on-site or in-person. Id. ¶ 15.

Two supervisors from OCA and one supervisor from EAC were in charge of Plaintiff. Id. ¶ 13; Dkt. No. 14-2 at 6 (“Ms. Santiago and Mr. Rivera were employed by Defendant OCA but Ms. Loredon was employed by EAC.”). As to the OCA managers, Plaintiff reported to Mia Santiago, the Project Director of STEP, and Robert Rivera, the STEP Program Court Liaison. Dkt. No. 8. ¶ 13. Claire Loredon serves as Plaintiff's sole supervisor from the EAC. Id. Ms. Santiago managed Plaintiff's performance, held weekly meetings with Plaintiff, mediated disputes within the office environment, and otherwise managed Plaintiff's work environment. Id. ¶¶ 21, 33-37. Importantly, Plaintiff submitted detailed progress reports and status updates directly to Mr. Rivera, an OCA supervisor, but only submitted timecards to Ms. Loredon, an EAC supervisor. Id. ¶¶ 14, 16. Mr. Rivera served as a supervisor for both OCA and EAC employees. Id. ¶ 16.⁵

EAC held an office inside the Kings County Criminal Court building. Id. EAC and OCA staff members shared the workspace together. Id.; Dkt. No. 14-2 at 6 (“Of those working in the shared workspace, there were approximately 3-4 EAC employed case managers and one EAC supervisor. The remaining staff members were OCA staff.”).

During her employment, Plaintiff's therapist recommended that she receive a higher level of care for her conditions, and referred her to the Center for Intensive Treatment of Personality Disorders (“CITPD”) at Mount Sinai West, an outpatient behavioral health program that offered specialized, intensive, and time-limited treatment for personality disorders and related concerns. Id. ¶ 17.

Around May 2022, CITPD accepted Plaintiff into the program. Id. ¶ 18. At CITPD, Plaintiff was scheduled to receive Core Group Therapy Mondays, Wednesdays, and Fridays from 5:00 p.m. to 6:15 p.m., virtual Dialectical Behavioral Therapy groups on Tuesdays and Thursdays from 1:30 p.m. to 2:15 p.m., individual therapy sessions on Wednesdays, and biweekly medication management on Fridays. Id. ¶ 19.

Before acceptance into CITPD, Plaintiff discussed her recommended level of treatment with an OCA supervisor, Ms. Santiago. Id. ¶ 20. Ms. Santiago directed Plaintiff to seek a workplace accommodation from EAC's Human Resources Department (“HR Department”). Id. ¶ 21.

Plaintiff and her therapist completed the necessary paperwork and, on April 28, 2022, Plaintiff submitted the relevant paperwork to the HR Department. Id. ¶¶ 22, 23. Shortly after submission, Ms. Santiago informed Plaintiff that EAC and OCA were considering Plaintiff for one day of remote work. Id. ¶ 23. Plaintiff informed her therapist. Id. Plaintiff's therapist provided an additional letter to the HR Department regarding Plaintiff's need or a higher level of treatment, and recommended that Plaintiff receive two remote workdays to accommodate Plaintiff's mental health treatment schedule. Id. ¶ 24.

On May 17, 2022, the HR Department approved Plaintiff's request for reasonable accommodations. Id. ¶ 25. Specifically, Plaintiff was permitted to work remotely for 1.5 days—on Wednesdays and Friday afternoons. Id. The accommodation also permitted Plaintiff to attend all of her required sessions at CITPD. Id. ¶ 27. These accommodations took effect on May 18, 2022 and were expected to be revisited August 1, 2022. Id. ¶ 25. On August 1, 2022, however, the review of Plaintiff's accommodations did not occur. Id. ¶ 26.

During the period Plaintiff received the accommodations, EAC's Data Analyst stated that Plaintiff had a high success rate, which was measured by how many clients had completed their treatment programs within the expected time frame and adhered to the court-mandated rules. Id. ¶ 28.

B. Plaintiff's Job Experience After Receiving Reasonable Accommodations

In July 2022, after two months of receiving accommodations, three OCA staff members who worked in the same office and program as Plaintiff—Teresa Good, Miriam Famania,⁶ and Shama Greenidge—purportedly began treating Plaintiff with “harassment and hostility.” Id. ¶ 29.

On or about August 9, 2022, when Plaintiff was speaking to a colleague, Ms. Famania allegedly “yelled across the room at Plaintiff, in an aggressive tone, and accused her of allowing a client to walk through the office into a restricted area.” Id. ¶ 30. Plaintiff felt shocked, humiliated, disrespected, and distressed, and felt that the event contributed to a negative and unprofessional work environment. Id.

On or about December 22, 2022, Ms. Good allegedly stood over Plaintiff's cubicle, and raised her voice and accused Plaintiff of not answering the door when the doorbell rang. Id. ¶ 31. Plaintiff explained that “whenever she expects a client, she answers the door.” Id. Ms. Good responded, “Athena, stop it; you don't ever answer the door.” Id. Plaintiff felt distressed from this encounter. Id.

On or about December 29, 2022, Plaintiff answered the office doorbell, and Ms. Good stated, “Woooow [sic], look who's getting the door.” Id. ¶ 32. Ms. Greenidge contributed, by adding “I know, right.” Id. Plaintiff felt “embarrassed, belittled, and undermined.” Id.

On March 2, 2023, Plaintiff answered the office door to receive clients who were there to see Ms. Famania. Id. ¶ 41. Ms. Famania was sitting at her desk allegedly wearing headphones, and watching a television show on her electronic tablet. Id. Plaintiff called Ms. Famania's name a few times, but Ms. Famania did not respond. Id. Plaintiff asked the clients to wait by the door, so that she could get Ms. Famania's attention. Id. As Plaintiff approached her desk to call Ms. Famania on her desk phone, Ms. Good publicly accused Plaintiff of allowing clients into the treatment area without informing staff. Id. ¶ 42. Ms. Good purportedly called Plaintiff “childish.” Id. Plaintiff claims that Ms. Greenidge stated, “[y]eah, she is ridiculous,” and Ms. Famania also made a similar statement. Id. Overwhelmed by the incident, Plaintiff left the office in tears. Id.

C. Plaintiff's Report of Discrimination to the OCA Supervisor

Between June 28, 2022 and May 2, 2023, Plaintiff submitted verbal reports and eight written reports to Ms. Santiago and other supervisors. Id. ¶ 33; id. Ex. 3 (E-mail dated January 25, 2023 from Plaintiff to EAC's HR Generalist Nekia Arce); Ex. 4 (E-mail dated March 7, 2023 from Plaintiff to Ms. Santiago and Ms. Loredan).

Throughout this period, Ms. Santiago told Plaintiff that some OCA staff members were “unhappy” with Plaintiff's hybrid work arrangement, and the OCA staff members perceived the reasonable accommodations given as “special treatment.” Id. ¶ 34.

At some point, Plaintiff approached Ms. Santiago to seek solutions about the work environment. Id. ¶ 36. Ms. Santiago informed Plaintiff that she had spoken with Ms. Good, Ms. Famania, and Ms. Greenridge, but Plaintiff noticed no change in the conduct of her co-workers. Id.

During one of the weekly supervision meetings between Ms. Santiago and Plaintiff, Ms. Santiago suggested that if the office environment was “too much to handle,” Plaintiff should seek other employment or take a leave of absence. Id. ¶ 35. Plaintiff requested Ms. Santiago have a meeting with her colleagues to “try to clear the air,” and Ms. Santiago stated it would not be appropriate. Id. ¶ 37.

D. Formal Complaint of Discrimination and Investigation

On January 23, 2023, Plaintiff e-mailed EAC's HR Generalist Nekia Arce to report feelings of discrimination and harassment in the workplace due to her disability and accommodation needs. Id. ¶ 35; Ex. 3. Plaintiff informed the HR Department that she felt “intimidated and fearful” of her colleagues, and Ms. Santiago was “unwilling to address those issues.” Id. ¶ 35. EAC investigated Plaintiff's claims, and determined they were unfounded. Id. ¶ 38.

Around January or February 2023, CITPD recommended that Plaintiff continue treatment with them. Id. ¶ 39. Plaintiff conveyed this information to Ms. Santiago, who encouraged Plaintiff to submit a new request for reasonable accommodation. Id. On February 9, 2023, Plaintiff received a therapist note, recommending that Plaintiff continue treatment and receive reasonable accommodations. Id. ¶ 40. Plaintiff promptly submitted the note to the HR Department. Id. The HR Department, however, did not provide an immediate reply. Id.

On March, 7, 2023, Plaintiff submitted a discrimination complaint to the New York State Unified Court System Office of the Inspector General. Id. ¶ 43; id. Ex. 5. The Inspector General's Office initiated an investigation, interviewed Plaintiff, and took no action against any of the employees. Id. ¶ 43.

E. Repercussions from Plaintiff's Formal Complaint of Discrimination

On May 8, 2023, EAC's Chief of HR, Seth Azizollahoff e-mailed Plaintiff, stating that EAC is investigating Plaintiff's discrimination complaint, and that EAC “think[s] it's best that [Plaintiff] not report to work tomorrow until it's concluded.” Id. ¶ 44; Ex. 7. Plaintiff confirmed receipt of the e-mail. Id. ¶ 44. The next day, Mr. Azizollahoff e-mailed Plaintiff reiterating “do not report to work tomorrow.” Id. ¶ 45.

Prior to this date, Plaintiff had received no warnings or indication that her work performance was not acceptable. Id. ¶ 46.

On May 11, 2023, Plaintiff received a phone call from Ms. Arce “that court personnel stated that they did not want Plaintiff in the office,” and the HR Department was inquiring about the reasons for the decision. Id. ¶ 48. Ms. Arce further informed Plaintiff that she was placed on administrative paid leave until the matter was resolved. Id.

On May 26, 2023, Mr. Azizollahoff called Plaintiff and stated that, “EAC[’s] [ ] administration had been unable to receive any response from the Drug Treatment Court but that he had heard from two judges that they did not want to refer cases to Plaintiff.” Id. ¶ 49. Mr. Azizollahoff suggested that Plaintiff should consider looking for a transfer or collecting unemployment. Id.

In June 2023, Plaintiff filed a complaint with the U.S. Equal Employment Opportunity Commission (“EEOC”). Id. ¶ 50. On June 13, 2023, Mr. Azizollahoff informed Plaintiff that STEP had not provided a reason for its demand that Plaintiff not report to work; EAC would not deny unemployment benefits to Plaintiff; there are no other positions available for Plaintiff; and Plaintiff had to await further instructions. Id. ¶ 51.

Despite initial assurances, Mr. Azizollahoff informed Plaintiff that she would be placed on unpaid leave, and EAC “would no longer be able to accommodate her hybrid work schedule as [OCA] would need someone in the office Monday through Friday from 9:00 a.m. to 5:00 p.m.” Id. ¶ 52. Mr. Azizollahoff stated again that there are no other positions available. Id.

On or about July 3, 2023, Plaintiff amended her EEOC complaint. Id. ¶ 53; id. at Ex. 9. On July 5, 2023, Mr. Azizollahoff sent Plaintiff an e-mail, which stated

“[a]s we discussed, although you were granted a modified schedule as a reasonable accommodation, the Court, subsequently determined that staff must be physically present in the Courthouse from 9am – 5pm, Monday through Friday. As a result, we requested updated medical documentation to determine whether you can comply with the mandated schedule for the position.”

Id. ¶ 54; id. Ex. 10. Because of financial considerations, Plaintiff discontinued her mental health treatment to meet her employer's requirements. Id. ¶ 55. She submitted an updated letter from her treatment team to Mr. Azizollahoff so that she would be able to work full-time, in person, full time without accommodation. Id.; Ex. 10. After Plaintiff submitted the updated letter, Mr. Azizollahoff notified OCA that Plaintiff was eligible to return to work. Id.

On July 19, 2023, the court officers of the Kings County Criminal Court building denied Plaintiff entry. Id. ¶ 56. The court officers reported to Plaintiff that she was not to be allowed inside the building. Id. After Plaintiff stated that EAC had cleared her to report to work, the court officers stated they needed confirmation from Ms. Santiago. Id. Twenty minutes later, the court officers admitted Plaintiff into the courthouse. Id.

Around mid-August 2023, Plaintiff was called into a virtual meeting with Ms. Loredon and Mr. Azizollahoff. Id. ¶ 58. During the meeting Mr. Azizollahoff informed Plaintiff that she made an error in a client's progress report and expressed concerns about the unsatisfactory nature of Plaintiff's work since she returned from leave. Id. Plaintiff had previously possessed a successful performance record, and this was the only reported problem during her tenure. Id. ¶¶ 58, 62.

In mid-August 2023, Plaintiff felt emotionally drained, and requested unpaid leave under the Family and Medical Leave Act (“FMLA”). Id. ¶ 59. Mr. Azizollahoff orally granted the request without requesting any paperwork from Plaintiff, nor did he request any information as to how much leave she was seeking. Id.

During Plaintiff's FMLA leave and during the EEOC case, Plaintiff did not return to work, nor did she receive any paperwork from EAC that she was terminated from employment. Id. ¶ 60. Plaintiff received her last paycheck from EAC in August 2023. Id.

Plaintiff alleges emotional distress arising from the entire experience. Id. ¶¶ 61-63. On or about October 23, 2023, Plaintiff began employment at the Advanced Care Alliance, which had provided her with a full accommodation. Id. ¶ 64. The EEOC issued a right to sue letter, which Plaintiff received on July 2, 2024. Id. ¶ 65.

II. Procedural Background

On August 8, 2024, pro se Plaintiff commenced this action by filing a complaint and a motion for leave to proceed in forma pauperis. Dkt. Nos. 1,2. On October 28, 2024, the Court granted Plaintiff's in forma pauperis request, dismissed the complaint, for failure to state a claim, and allowed Plaintiff forty-five days to file an Amended Complaint. Dkt. No. 4.

After several extensions, pro se Plaintiff—now with the assistance of the City Bar Justice Center's Federal Pro Se Legal Assistance Project—filed a 20-page Amended Complaint with exhibits. Dkt. No. 8; see also Dkt. No. 4 at 5; Dkt. No. 8 at 1 n.1. On April 23, 2025, OCA filed a motion to dismiss the Amended Complaint. Dkt. Nos. 13-14.⁷ OCA argues that Plaintiff has failed to state a claim under the Rehabilitation Act; Plaintiff cannot recover damages from OCA; and Plaintiff is not entitled to the declaratory or injunctive relief sought. See Dkt. No. 14-2.

On May 5, 2025, Defendant EAC filed an answer. Dkt. No. 19. Plaintiff, with assistance from the City Bar Justice Center Federal Pro Se Legal Assistance Project, filed an opposition to OCA's motion to dismiss on June 18, 2025 (Dkt. No. 22), and OCA filed a reply on July 8, 2025 (Dkt. No. 23). Judge Morrison referred the fully briefed motion to the undersigned for a report and recommendation on October 23, 2025. Order Referring Mot. dated Oct. 23, 2025.

III. Standard of Review

“To survive a motion to dismiss, a complaint must 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.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678, (quoting Twombly, 550 U.S. at 556). A complaint's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.

Although “once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint,” id. at 563, and a plaintiff must allege “only enough facts to state a claim to relief that is plausible on its face,” id. at 570, if a plaintiff has not “nudged [its] claims across the line from conceivable to plausible, the[ ] complaint must be dismissed.” Id.; see also Lynch v. City of New York, 952 F.3d 67, 75 (2d Cir. 2020) (“[T]he court's task is to assess the legal feasibility of the complaint; it is not to assess the weight of the evidence that might be offered on either side.”); Marvin v. Allen, No. 23-CV-5947 (KMK), 2024 WL 4290722, at *3 (S.D.N.Y. Sept. 24, 2024) (same).

In evaluating a Rule 12(b)(6) motion, the court “must accept as true all of the factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), and “draw[ ] all reasonable inferences in favor of the plaintiff.” Daniel v. T & M Prot. Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012)). “Because a Rule 12(b)(6) motion challenges the complaint as presented by the plaintiff, taking no account of its basis in evidence, a court adjudicating such a motion may review only a narrow universe of materials. Generally, [courts] do not look beyond ‘facts stated on the face of the complaint, ․ documents appended to the complaint or incorporated in the complaint by reference, and ․ matters of which judicial notice may be taken.’ ” Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (quoting Concord Assocs., L.P. v. Entm't Props. Tr., 817 F.3d 46, 51 n.2 (2d Cir. 2016) (second and third alterations in original); Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (“In adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.”) (internal quotation marks omitted). Courts may take judicial notice of public records without converting the motion to dismiss to one for summary judgment. Munno v. Town of Orangetown, 391 F. Supp. 2d 263, 268 (S.D.N.Y. 2005).

The Second Circuit has held that a pro se litigant must be accorded “special solicitude”; that is “submissions of a pro se litigant must be construed liberally and interpreted ‘to raise the strongest arguments they suggest.’ ” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (citation omitted). “This policy of liberally construing pro se submissions is driven by the understand that ‘[i]mplicit in the right of self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training.’ ” Id. at 475 (alteration in original) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). The obligation to read a pro se litigant's pleadings leniently “applies with particular force when the plaintiff's civil rights are at issue.” King v. New York City Dep't of Educ., No. 23-CV-7622 (ER), 2025 WL 2083831, at *5 (S.D.N.Y. July 24, 2025) (quoting Jackson v. New York State Dep't of Lab., 790 F. Supp. 2d 218, 224 (S.D.N.Y. 2010)) (applying the principle to an employment discrimination case under the Rehabilitation Act).

IV. Discussion

A. Pertinent Legal Standards

Section 504 of the Rehabilitation Act provides that,

[n]o otherwise qualified individual with a disability ․ shall, solely by reason of her or his disability be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance․

Porter v. Dartmouth-Hitchcock Med. Ctr., 92 F.4th 129, 148 (2d Cir. 2024) (alteration in original) (quoting 29 U.S.C. § 794(a)). “[I]t is unquestionable that [ ] section [504] was intended to reach employment discrimination. Consol. Rail Corp. v. Darrone, 465 U.S. 624, 632 (1984). “A plaintiff may base her [Rehabilitation Act] discrimination claim on one of three theories of liability: disparate treatment, disparate impact, or failure to make a reasonable accommodation.” Timmer v. City Univ. of New York, No. 20-CV-2554 (PKC) (RLM), 2021 WL 3603465, at *10 (E.D.N.Y. Aug. 13, 2021); (quoting Davis v. Shah, 821 F.3d 231, 260 (2d Cir. 2016); Kleyman v. SUNY Downstate Med. Ctr., No. 18-CV-3137 (PKC) (ST), 2020 WL 5645218, at *12 (E.D.N.Y. Sept. 21, 2020) (“[F]ailure to accommodate may ․ be an element of an adverse-employment-action-based discrimination claim in addition to forming an independent cause of action.”)).

“In 1992, Congress amended the Rehabilitation Act to provide that, in employment discrimination cases alleging violations of the Rehabilitation Act, the standards of the [ADA] would apply for the purposes of ‘determin[ing] whether [the Rehabilitation Act] has been violated.’ ” Johnson v. New York Hosp., 897 F. Supp. 83, 86 (S.D.N.Y. 1995) (second and third alterations in original) (quoting 29 U.S.C. § 794(d)), aff'd, 96 F.3d 33 (2d Cir. 1996). “The legal standards and analysis for discrimination claims under the ADA, Rehabilitation Act, and NYSHRL, are the same.” Earl v. Good Samaritan Hosp. of Suffern NY, 625 F. Supp. 3d 292, 302 (S.D.N.Y. 2022) (citing Rodriguez v. City of New York, 197 F.3d 611, 618 (2d Cir. 1999)), aff'd, No. 22-2505-CV, 2023 WL 8708417 (2d Cir. Dec. 18, 2023).

“To state a prima facie violation of Section 504, a plaintiff must show that ‘(1) he is a disabled person under the Rehabilitation Act; (2) he is otherwise qualified for the program; (3) he is excluded from benefits solely because of his disability; and (4) the program or special service receives federal funding.’ ” A.H. v. New York City Dep't of Educ., No. 24-CV-4828 (JGLC), 2025 WL 2773252, at *12 (S.D.N.Y. Sept. 29, 2025) (quoting C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840–41 (2d Cir. 2014)); see also Castagna v. Driscoll, No. 1:22-CV-03503 (SDA), 2025 WL 2402615, at *5 (S.D.N.Y. Aug. 19, 2025) (“To establish a prima facie case of disability discrimination, a plaintiff must demonstrate that: (1) her employer is subject to the Rehabilitation Act, (2) she is a disabled person as defined by the Rehabilitation Act, (3) she is “otherwise qualified” for the position (meaning that she could perform the essential functions of her job with or without reasonable accommodation), and (4) she suffered an adverse employment action because of her disability.”).

“Rehabilitation Act claims are analyzed under the familiar [McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)] burden-shifting framework.” Adams v. New York State Dep't of Corr. & Cmty. Supervision, No. 23-CV-5524 (HG), 2025 WL 1677347, at *4 (E.D.N.Y. June 13, 2025) (citing Daly v. Westchester Cnty. Bd. of Legislators, No. 23-1220-cv, 2024 WL 3264125, at *1 (2d Cir. July 2, 2024) (disability discrimination); and then citing Dodd v. City Univ. of New York, 489 F. Supp. 3d 219, 246 (S.D.N.Y. 2020) (retaliation)). “That is, if the plaintiff establishes a prima facie claim of disability discrimination or retaliation, ‘the burden then shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the adverse employment decision.’ ” Id. at *4 (quoting Daly, 2024 WL 3264125, at *1). “If the defendant satisfies that burden, “the burden then shifts back to the plaintiff to provide some evidence that the defendant's proffered reasons are a pretext, and that discrimination was the real reason for the defendant's action.’ ” Id. (quoting Daly, 2024 WL 3264125, at *1).

At the pleading stage, the facts alleged must merely “give plausible support to the reduced requirements that arise under McDonnell Douglas in the initial phase” of the case. King, 2025 WL 2083831, at *7 (citing Littlejohn v. City of New York, 795 F.3d 297, 312 (2d Cir. 2015)). Thus, the question on a motion to dismiss is whether the plaintiff has adequately pleaded a prima facie case. Id.; see also Veras v. New York City Dep't of Educ., No. 24-1956-cv, 2025 WL 2824851, at *2 (2d Cir. Feb. 6, 2025) (first citing Littlejohn, 795 F.3d at 311 (Title VII); and then citing Shomo v. City of New York, 579 F.3d 176, 185 (2d Cir. 2009) (ADA and Rehabilitation Act”)).

B. The Employer-Employee Relationship

OCA notes that “[i]t is not clear if Plaintiff's Rehab[ilitation] Act claim as against OCA alleges discrimination based upon an adverse employment action or failure to accommodate. Dkt. No. 14-2 at 10. OCA argues that, regardless of the type, Plaintiff cannot support a claim under the Rehabilitation Act because “she was not an employee of OCA.” Id. at 10, 11; Dkt. No. 23. OCA contends that Plaintiff “was not employed by [ ] OCA and as such, [she] cannot establish an employment disability discrimination claim.” Dkt. No. 14-2 at 11.

Plaintiff responds by arguing that “the facts pleaded in the Amended Complaint make clear that Plaintiff's work for Defendant OCA additionally merits treatment as an employment relationship.” Dkt. No. 22 at 9.

The parties agree that the thirteen-factor test set forth in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) (“Reid”) applies to determine whether Plaintiff qualifies as an employee of the OCA, but they disagree as to how the Reid factors should be applied. Dkt. No. 14-2 at 8; Dkt. No. 22 at 9.

“Courts generally apply the same legal standards when adjudicating claims arising under the ADA and ones arising under the Rehabilitation Act.” Bryant v. Steele, 25 F. Supp. 3d 233, 242 (E.D.N.Y. 2014) (citing Harris v. Mills, 572 F.3d 66, 73 (2d Cir. 2009)); see also Johnson, 897 F. Supp. at 85-86. The Second Circuit looks to the “common law of agency to determine who counts as an employee under the ADA.” Foresta v. Centerlight Capital Mgmt, LLC, 379 F. App'x 44, 46 (2d Cir. 2010) (citing Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 444-45 (2003)). In doing so, the Second Circuit applies the thirteen Reid factors:

[1] the hiring party's right to control the manner and means by which the product is accomplished ․ [;][2] the skill required; [3] the source of the instrumentalities and tools; [4] the location of the work; [5] the duration of the relationship between the parties; [6] whether the hiring party has the right to assign additional projects to the hired party; [7] the extent of the hired party's discretion over when and how long to work; [8] the method of payment; [9] the hired party's role in hiring and paying assistants; [10] whether the work is part of the regular business of the hiring party; [11] whether the hiring party is in business; [12] the provision of employee benefits; and [13] the tax treatment of the hired party.

Foresta, 379 F. App'x at 46 (alterations in original) (quoting Reid, 490 U.S. at 751-52). No single Reid factor is dispositive. See Eisenberg v. Adv. Relocation & Storage, Inc., 237 F.3d 111, 114 (2d Cir. 2000) (citing Reid, 490 U.S. at 752). And not every factor is given equal weight. Salamon v. Our Lady of Victory Hosp., 514 F.3d 217, 228 (2d Cir. 2008); Eisenberg, 237 F.3d at 114; Foresta, F. App'x at 46. The Second Circuit has held that “courts applying the Reid factors, ‘should not ordinarily place extra weight on the benefits and tax treatment factors ․ and should instead place special weight on the extent to which the hiring party controls the ‘manner and means’ by which the worker completes her assigned tasks.’ ” Foresta, 379 F. App'x at 46 (quoting Eisenberg, 237 F.3d at 117) (emphasis in original); see also Salamon, 514 F.3d at 228 (“The most important factor in determining the existence of an employment relationship is ‘that control or right of control by the employer which characterizes the relation of employer and employee and differentiates the employee or servant from the independent contractor’ ” (quoting Metcalf & Eddy v. Mitchell, 269 U.S. 514, 521 (1926))).

Finally, “[i]n balancing the Reid factors, a court must disregard those factors that, in light of the facts of a particular case, are (1) irrelevant or (2) of ‘indeterminate’ weight—that is, those factors that are essentially in equipoise and thus do not meaningfully cut in favor of either the conclusion that the worker is an employee or the conclusion that he or she is an independent contractor.” Eisenberg, 237 F.3d at 114.

Here, at the motion to dismiss stage, the Reid factors overwhelmingly weigh in favor of finding that Plaintiff is an employee of the OCA. See, e.g., Pilyavsky v. U.S. Dep't of Just., No. 05-CV-2920 (DC), 2006 WL 536635, at *6 (S.D.N.Y. Mar. 6, 2006) (“[The plaintiff] has alleged numerous specific and uncontroverted facts that, if true, could result in a finding that he was an employee. That is all he need do at this early stage of the litigation. Drawing all reasonable inferences in his favor, the motion must therefore be denied and [the plaintiff] should be given a chance to prove his allegations in discovery.” (footnote omitted)). As to the first factor, Plaintiff's cited case, Salamon v. Our Lady of Victory Hospital, 514 F.3d 217 (2d Cir. 2008), is instructive. Dkt. No. 22 at 10. In Salamon, the district court granted summary judgment on the grounds that the plaintiff, a physician who alleged sex discrimination, retained “ultimate control” over how to diagnose patients, and was thus not an employee of a hospital, but rather an independent contractor with hospital privileges. Salamon, 514 F.3d at 228. The Second Circuit reversed the district court's holding because the first Reid factor—the “manner and means” test—contains significant contested facts, making summary judgment inappropriate. Id. The court found the first factor satisfied where an organization exerts control over the “details and methods” of an employee's work, designate individuals as the employee's supervisors, mandate the performance and timing of certain procedures, and exercise “continuous” supervision over the employee. Id. at 229-30.

Here, like Salamon, the first, critically important Reid factor—the “manner and means” by which Plaintiff accomplishes her work—weighs in favor of finding that Plaintiff is an employee of the OCA. As Plaintiff alleges, the STEP court exerts control over the “details and methods” of Plaintiff's work, and mandate the performance and timing of certain procedures. Plaintiff's job entails the assurance of each client-defendant is compliant with the requirements of the STEP court, a component of OCA. Dkt. No. 8 ¶¶ 12, 14. Her duties included conducting assessments of STEP, arranging referrals appropriate to STEP's treatment programs, administering drug tests for client-defendants for STEP, and otherwise ensuring compliance with the STEP's program's guidelines. Id. ¶ 14. Per Plaintiff, an OCA supervisor, STEP Program Court Liaison Robert Rivera tracked the progress of each client-defendant. Id.

Further, STEP designated two OCA supervisors to continuously manage Plaintiff—Ms. Santiago and Mr. Rivera. Dkt. No. 8 ¶ 13. Ms. Santiago managed Plaintiff's performance, held weekly meetings with Plaintiff, mediated disputes within the office environment, and otherwise managed the conditions of Plaintiff's work environment. Id. ¶¶ 21, 33-37. Plaintiff submitted detailed progress reports and status updates as to the client-defendants of STEP to Mr. Rivera. Id. ¶ 14. By contrast, Plaintiff only submitted timesheets to her EAC supervisor, Claire Loredon. Id. Accordingly, the first and most important Reid factor is satisfied because STEP (i.e., OCA) determines the manners and means of Plaintiff's work by setting the requirement for each client-defendant, whose progress is tracked by an OCA supervisor. See Eisenberg, 237 F.3d at 11 (finding that the employer controlled the “manner and means” when he gave “orders” on “where ․ to go and what ․ to do”).

As to the second factor, Plaintiff's role as a Behavioral Health Clinical Case Manager does not require such specialized skill, such as an “architect, computer programmer, graphic artist, photographer, or treasurer,” such that she would be qualified as an independent contractor of the OCA. See Eisenberg, 237 F.3d 118; Dkt. No. 8 ¶¶ 12, 14. As to the third factor, the instrumentalities of Plaintiff's work are the cases of the STEP court, which Plaintiff manages her client-defendants’ progress. Dkt. No. 8 ¶¶ 12-14. As to the fourth factor, Plaintiff's office is located inside the Kings County Criminal Court building, and she shares the office space with OCA and EAC employees alike. Id. ¶ 16.

The fifth factor of duration of the relationship also weighs in Plaintiff's favor as Plaintiff worked at STEP for a period just shy of two years, which is greater than periods in other cases in which courts in this circuit have found the plaintiff to be an employee. See Rohn Padmore, Inc. v. LC Play Inc., 679 F. Supp. 2d 454, 467 (S.D.N.Y. 2010) (holding that a fixed period short of one year “was not for such a short duration as to indicate that [the plaintiff] was not an employee”); Yu v. New York City Housing Development Corp., No. 07-CV-5541 (GBD) (MHD), 2011 WL 2326892, at *28 (S.D.N.Y. Mar. 16, 2011) (quoting Rohn Padmore, 679 F. Supp. 2d at 467) (same), report and recommendation adopted, 2011 WL 2183181 (S.D.N.Y. June 3, 2011); see also Eisenberg, 237 F.3d at 117 (disregarding the short duration of 28-35 days because of independent factors that led to the closure of the plaintiff's employment).

Factors six and seven weighs heavily in Plaintiff's favor. Under factor six, Plaintiff's caseload comes exclusively from the client-defendants from the STEP court. Dkt. No. 8 ¶¶ 12, 14. As to factor seven, OCA controlled when and how long Plaintiff can work. Ms. Santiago managed the aspects of Plaintiff's work environment. Id. ¶¶ 21, 33-37. Moreover, Ms. Santiago can dictate whether Plaintiff can be admitted into the courthouse. Id. ¶ 56 (court officers admitting Plaintiff into the building after confirmation from Ms. Santiago). Moreover, OCA dictated to the HR Department whether Plaintiff was permitted to work, and OCA's requirement that Plaintiff be physically present at the job site caused Plaintiff to withdraw her accommodation request. See id. at ¶ 48 (Plaintiff receiving a phone call from Ms. Arce, who conveyed to Plaintiff that “court personnel stated that they did not want Plaintiff in the office”); ¶ 49 (Mr. Azizollahoff told Plaintiff that he had “heard from two judges that they did not want to refer cases to Plaintiff”); ¶ 54 & Ex. 10 (“As we discussed, although you were granted a modified schedule as a reasonable accommodation, the Court subsequently determined that staff must be physically present in the Courthouse ․”). Thus, factors six and seven weigh heavily in favor of Plaintiff as an employee.

As to factor ten, Plaintiff's work of managing the progress of client-defendants’ compliance with conditions set by STEP is the regular business of the STEP court. STEP is a specialized drug court whose mission is to assist those arrested to obtain mental health and substance abuse treatment as an alternative to incarceration. See Dkt. No. 8 ¶¶ 7-13; Screening Treatment & Enhancement Part (STEP) – Brooklyn, STEP Staff – Overview, https://www.nycourts.gov/courts/nyc/drug_treatment/step/index.shtml (last visited Nov. 4, 2025). Plaintiff works to ensure that those client-defendants are assessed, referred to treatment programs, administered drug tests, and otherwise ensuring compliance. Id. ¶¶ 14. Thus, factor ten favors Plaintiff as well.

Factor eleven of whether the party is in business is irrelevant in light of STEP's status as a specialized drug court. Dkt. No. 8 ¶ 13.

As to the remaining factors, eight, nine, twelve and thirteen, OCA vigorously argues that these factors are in its favor. Dkt. No. 14-2 at 11 (“Plaintiff alleges that all of her timecards were submitted to and approved by EAC․ Plaintiff was paid directly by EAC․ Plaintiff further alleges that her accommodation requests were made directly to EAC․ Finally, it was EAC who would provide unemployment assistance to Plaintiff she so required.”); Dkt. No. 23 at 6 (arguing the Reid factors weigh in OCA's favor because Plaintiff “derives monetary compensation or incidental benefits from OCA”). While these “benefits and tax treatment factors” do weigh in OCA's favor, the Second Circuit held that the court “should not ordinarily place extra weight on the benefits and tax treatment factors ․ and should instead place special weight on the extent to which the hiring party controls the ‘manner and means’ by which the worker completes her assigned tasks.’ ” Foresta, 379 F. App'x at 46 (quoting Eisenberg, 237 F.3d at 117).

OCA's reliance on United States v. City of New York, 359 F. 3d 83 (2d Cir. 2004) misses the mark. Dkt. No. 23 at 6. Remuneration is a threshold question the court must ask before proceeding to balance the thirteen Reid factors. Id. at 92 (“Once plaintiff furnishes proof that her putative employer remunerated her for services she performed, we look to ‘the thirteen factors articulated by the Supreme Court in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) to determine whether an employment relationship exists.”). When viewed in the light most favorable to Plaintiff, Plaintiff was undoubtedly remunerated because she received compensation for her work as a Behavioral Health Case Manager. Cf. O'Connor v. Davis, 126 F.3d 112, 116 (2d Cir. 1997) (holding that a college student was not an employee where she spent a volunteer internship and she received no salary or wages, nor any other employee benefits). As discussed above, the analysis proceeds to the balancing of the Reid factors which heavily weigh in Plaintiff's favor as an employee of the OCA. Therefore, Plaintiff qualified as OCA's employee.

C. Plaintiff Plausibly Alleges Adverse Employment Actions by OCA

OCA argues that the Rehabilitation Act claim must be dismissed because “she did not suffer an adverse employment action at the hands of OCA” as the “OCA had no ability to fire or terminate Plaintiff and had no control over Plaintiff's employment relationship with EAC.” Dkt. No. 14-2 at 12; Dkt. No. 23 at 9. Plaintiff argues that she sufficiently pled adverse employment actions by OCA. Dkt. No. 22 at 13.

“Courts generally apply the same legal standards when adjudicating claims under the ADA and ones arising under the Rehabilitation Act.” Bryant v. Steele, 25 F. Supp. 3d 233, 242 (E.D.N.Y. 2014) (citing Harris v. Mills, 572 F.3d 66, 73 (2d Cir. 2009)); Johnson, 897 F. Supp. at 85-86. To establish a claim under the ADA, the plaintiff must show that: “(1) his employer is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) he suffered adverse employment action because of his disability.’ ” Adams v. Festival Fun Parks, LLC, 560 F. App'x 47, 48-49 (2d Cir. Mar. 21, 2014) (quoting McMillan v. City of New York, 711 F.3d 120, 125 (2d Cir. 2013)); see also Benson v. Westchester Med. Ctr., No. 20-CV-5076 (PMH), 2022 WL 2702544, at *10 (S.D.N.Y. July 12, 2022). “The Rehabilitation Act ‘requires a plaintiff alleging a claim of employment discrimination to prove that discrimination was the but-for cause of any adverse employment action.’ ” Timmer v. City Univ. of New York, No. 20-CV-2554 (PKC) (RLM), 2021 WL 3603465, at *12 (E.D.N.Y. Aug. 13, 2021) (citing Natofsky v. City of New York, 921 F.3d 337, 348 (2d Cir. 2019); see also; Benson, 2022 WL 2702544, at *10 (same as to both ADA and Rehabilitation Act).

In Muldrow v. City of St. Louis, the Supreme Court held that to allege an adverse employment action, the plaintiff “does not have to show ․ that the harm incurred was significant[ ] [o]r serious, or substantial or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.” Back v. Hapoalim, No.24-1064-CV, 2024 WL 4746263, at *2 (2d Cir. Nov. 12, 2024) (quoting Muldrow v. City of St. Louis, 601 U.S. 346, 355 (2024)). Rather, the plaintiff need only show “some harm respecting an identifiable term or condition of employment.” Id. (quoting Muldrow, 601 U.S. at 355) (emphasis by the Second Circuit in Back). In other words, the action must have left the plaintiff “worse off, but need not have left her significantly so.” Id. (quoting Muldrow, 601 U.S. at 359); Izuogu v. Credit Agricole Corp. & Inv. Bank, New York, No. 24-CV-4329 (DEH), 2025 WL 2806683, at *4 (S.D.N.Y. Oct. 2, 2025) (“Courts in this Circuit previously required a plaintiff to have endured some materially significant disadvantage with respect to the terms of the plaintiff's employment. But the landscape has changed with the Supreme Court's decision in Muldrow”) (citations and quotation marks omitted). Rather than requiring plaintiffs to allege “materially significant” employment actions, “employment discrimination plaintiffs need only allege “some harm respecting an identifiable term or condition of employment,” but that harm need not be “significant ․ [o]r serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar.” Id. (citation omitted).

Muldrow’s holding as to adverse employment actions applies to ADA claims. Mitchell, v. Planned Parenthood of Greater New York, Inc., 745 F. Supp. 3d 68, 91 (S.D.N.Y. 2024) (collecting cases); see also Adams, 560 F. App'x at 49 (holding that the standard for adverse employment action under the ADA and Title VII are the same); Sosa v. New York City Dep't of Educ., 368 F. Supp. 3d 489, 495 n.3 (S.D.N.Y. 2019) (citing Medcalf v. Thompson Hine LLP, 84 F. Supp. 3d 313, 329 n. 14 (S.D.N.Y. 2015)). Again, “[c]ourts generally apply the same legal standards when adjudicating claims under the ADA and ones arising under the Rehabilitation Act.” Bryant, 25 F. Supp. 3d at 242.

i. The Adverse Employment Action Occurred When Plaintiff was Suspended Without Pay

“Courts within this Circuit have found that suspensions without pay can be adverse employment actions.” Timmer, 2021 WL 3603465, at *5 (citing Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223-24) (2d Cir. 2001)).

In this case, OCA committed an adverse employment action when it took actions that resulted in Plaintiff being suspended without pay. On May 11, 2023, the HR Department notified Plaintiff that “court personnel stated they did not want Plaintiff in the office,” and placed Plaintiff on paid leave. Dkt. No. 8 ¶ 48 (emphasis added). On May 26, 2023, EAC's Chief of the HR Department notified Plaintiff that “two judges that they did not want to refer cases to Plaintiff,” and suggested Plaintiff should consider looking for a transfer or collect unemployment. Id. ¶ 49 (emphasis added). Sometime in June or July 2023, EAC placed Plaintiff on unpaid leave, and again, the decision came from OCA. Id. ¶ 52 (“Plaintiff was placed on unpaid leave from EAC. Mr. Azizollahoff informed Plaintiff they would no longer be able to accommodate her hybrid work schedule as the Unified Court Administration would need someone in the office Monday through from 9:00 a.m. to 5:00 p.m.” (emphasis added)). Therefore, at the motion to dismiss stage, Plaintiff suffered an adverse employment action when OCA suspended Plaintiff without pay.

ii. Plaintiff Suffered an Adverse Employment Action when OCA Constructively Discharged Her

A plaintiff can meet the adverse employment action prong if she was “constructively discharged.” Adams, 560 F. App'x at 49. “An employee is constructively discharged when [her] employer, rather than discharging [her] directly, intentionally creates a work atmosphere so intolerable that [s]he is forced to quit involuntarily.” Back, 2024 WL 4746263, at *3 (citing Terry v. Ashcroft, 336 F.3d 128, 151-52 (2d Cir. 2003)). “Case law generally focuses on two parts of this standard: the employer's intentional conduct and the intolerable level of the work conditions.” Petrosino v. Bell Atl., 385 F.3d 210, 229 (2d Cir. 2004); see also Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 275 (2d Cir. 2009) (holding that an intentional violation is required to recover under the Rehabilitation Act).

As to the first prong of intentional violation, the Second Circuit has held, “[t]he standard for intentional violations is ‘deliberate indifference to the strong likelihood [of] a violation.’ ” Loeffler, 582 F.3d at 275. This “deliberate indifference” is distinct from deliberate indifference in the Eighth Amendment context. Alexander v. State Univ. of New York at Buffalo, 932 F. Supp. 2d 437, 445 (W.D.N.Y. 2013) (citing Loeffler, 582 F.3d at 275-76). “In the context of the Rehabilitation Act, intentional discrimination against the disabled does not required personal animosity or ill will. Rather, intentional discrimination may be inferred when a ‘policymaker acted with at least deliberate indifference to the strong likelihood that a violation of federally protected rights will result from the implementation of the [challenged] policy ․ [or] custom.’ ” Loeffler, 582 F.3d at 275 (citation omitted). The deliberate indifference must be a “deliberate choice, rather than negligence or bureaucratic inaction.” Id. at 276; see also Adams, 560 F. App'x at 50 (citing Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 74 (2d Cir. 2000)) (“ ‘ineffective or even incompetent ․ handling of the matter,’ ․ ‘does not rise to the level of deliberate action.’ ”).

As to the second prong of “intolerable” work conditions, the standard is “whether a reasonable person subjected to the same conditions as the plaintiff would have felt compelled to step down.” Back, 2024 WL 4746263, at *3 (citing Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 90 (2d Cir. 1996)). Further, “a constructive discharge claim can be premised on the cumulative [e]ffect of a number of adverse conditions in the workplace.” Id. (citing Terry, 336 F.3d at 153 n.24)). In Back, the Second Circuit found the second prong met where a plaintiff, after filing a whistleblower complaint, her colleagues became “noticeably hostile,” plaintiff received a negative performance review, plaintiff was given a choice to be transferred or leave the workplace, and involuntarily transferred. 2024 WL 4746263, at *3.

Here, an adverse employment action existed because OCA constructively discharged Plaintiff. As to the first prong, OCA's conduct towards the Plaintiff was intentional as exhibited by Ms. Santiago's deliberate indifference to the strong likelihood of a violation. Before starting at the outpatient program at CITPD, Plaintiff discussed the recommended higher level of treatment to Ms. Santiago, the OCA manager in charge of managing Plaintiff's work environment. Dkt. No. 8 ¶ 20. In July 2022, after two months of receiving reasonable accommodations, three OCA staff members began treating Plaintiff with hostility. Id. ¶ 29. The OCA staff members yelling at her not answering the door, and when Plaintiff began answering the door, the OCA employees belittled her for letting clients into a restricted area. Id. ¶ 30 (August 9, 2022); ¶ 31 (December 22, 2022); ¶ 32 (December 29, 2022); ¶ 41 (March 2, 2022). Each incident left Plaintiff in significant distress, and during the last incident on March 2, 2022, Plaintiff left the office in tears. Id. ¶¶ 30-32, 42.

Plaintiff submitted numerous verbal and written reports to Ms. Santiago. Id. ¶ 33, Ex. 3 & 4. Ms. Santiago stated that some OCA staff members were “unhappy” with Plaintiff's hybrid work arrangement, and those staff members perceived Plaintiff's accommodations as “special treatment.” Id. ¶ 34. Despite Plaintiff's reports, Ms. Santiago stated that Plaintiff should find new employment or take a leave of absence if the office environment was “too much to handle.” Id. ¶ 35. After Plaintiff suggested that Ms. Santiago schedule a meeting with her colleagues “to try to clear the air,” Ms. Santiago replied it would not be appropriate. Id. ¶ 37. Because Ms. Santiago knew about Plaintiff's disability and accommodations, knew about the treatment of other OCA employees towards her reasonable accommodation, and deliberately chose not to act, OCA was deliberately indifferent towards the strong likelihood of violation towards Plaintiff's rights.

As to the second prong, here, as in Back, OCA created an objectively intolerable environment as evidenced cumulative effect of the adverse conditions in the workplace. After Ms. Santiago's inaction, Plaintiff filed formal complaints through the HR Department, and the New York State Unified Court System Office of the Inspector General to no avail. Id. ¶¶ 35-43. Afterwards, the HR Department placed Plaintiff on involuntary leave, informed Plaintiff “that court personnel stated they did not want Plaintiff in the office,” and “two judges did not want to refer cases to Plaintiff.” Id. ¶¶ 44-49.

After Plaintiff filed the EEOC complaint, the HR Department sent Plaintiff an e-mail, stating that “the Court, subsequently determined that staff must be physically present in the Courthouse from 9 a.m. – 5 p.m., Monday through Friday. Id. ¶ 54, Ex. 10. This caused Plaintiff to withdraw her request for reasonable accommodations. Id. ¶ 55. After Plaintiff's withdrawal, Plaintiff was barred from entering the courthouse, until court officers confirmed with Ms. Santiago that Plaintiff can enter. Id. ¶ 56. Plaintiff then received a negative evaluation for the first time. Id. ¶¶ 58, 62.

Feeling emotionally drained, Plaintiff requested unpaid leave under the FMLA. Id. ¶ 59. Tellingly, Plaintiff's leave request was approved without any paperwork nor with any discussion as to the length of leave. Defendants never notified Plaintiff that she was terminated, but rather EAC sent Plaintiff one final paycheck in August 2023. Id. ¶ 60.

Therefore, at the motion to dismiss stage, Plaintiff can demonstrate an adverse employment action because the OCA suspended Plaintiff without pay and constructively discharged her.

D. Plaintiff Plausibly Alleges a Failure to Accommodate Claim

OCA argues that Plaintiff cannot make a claim for failure to accommodate against OCA because “OCA was not her employer and had no decision-making responsibilities over Plaintiff's accommodation requests.” Dkt. No. 14-2 at 14; Dkt. No. 23 at 5. As established below, Plaintiff plausibly alleges that OCA was the ultimate decisionmaker over Plaintiff's reasonable accommodation requests.

To establish a prima facie case of discrimination based on an employer's failure to accommodate a disability, under either the ADA or the Rehabilitation Act, a plaintiff must demonstrate that “(1) [the plaintiff] is a person with a disability under the meaning of [the statute in question]; (2) an employer covered by the statute had notice of his disability; (3) with reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations.” Natofsky, 921 F.3d at 352 (citation omitted); see also Stanley v. Phelon, No. 23-731-CV, 2024 WL 1453872, at *5 (2d Cir. Apr. 4, 2024) (applying the same elements in a motion to dismiss); Timmer, 2021 WL 3603465, at *11 (same). In addition, “a plaintiff must show ‘the connections between (1) the failure to accommodate a disability, (2) the performance deficiencies, and (3) the adverse employment action.” Natofsky, 921 F.3d at 352 (emphasis original); Timmer, 2021 WL 3603465, at *11.

Here, Plaintiff has stated a claim for failure to accommodate. First, Plaintiff is disabled. Dkt. No. 8 ¶ 9; 17; Dkt. No. 14-2 at 10 (“For the purposes of this motion, it is undisputed that plaintiff is a qualified individual with a disability”); see also Timmer, 2021 WL 3603465, at *11 (defining disability under the Rehabilitation Act). Second, OCA had notice of her disability because she approached Ms. Santiago about the request for accommodation, and informed her that the request was based on a therapist's recommendation. Id. ¶ 20. Ms. Santiago instructed Plaintiff to obtain a workplace accommodation from the HR Department. Id. ¶ 21. Third, with reasonable accommodation, not only could Plaintiff perform the essential functions of the job at issue, but she had a “high success rate.” Dkt. No. 8 ¶¶ 25-28 (cleaned up). Fourth, while the employer initially granted the accommodation, EAC at OCA's direction later withdrew the accommodation. Dkt. No. 8 ¶¶ 52 (EAC's HR representative stating the request was from OCA), 54, 55; see also id. at ¶¶ 48-49. Last, between July 2023 and August 2023, Plaintiff received her first negative evaluation. Id. ¶ 58. Plaintiff then took FMLA leave, which was approved with the submission of no paperwork nor with any discussion about the length of leave. Id. ¶ 59. Defendants never notified Plaintiff that she was terminated; Plaintiff received her last paycheck from EAC in August 2023. Id. ¶ 60.

In sum, contrary to OCA's argument, and taking the facts in the light most favorable to Plaintiff, the Amended Complaint plausibly alleges that OCA was the ultimate decisionmaker over Plaintiff's reasonable accommodation requests. Dkt. No. 8 ¶ 48 (HR Department informing Plaintiff “that court personnel stated they did not want Plaintiff in the office,” and “two judges did not want to refer cases to Plaintiff” (emphasis added)); ¶ 54 (emphasis added), Ex. 10 (HR Department sent Plaintiff an e-mail, stating “the Court, subsequently determined that staff must be physically present in the Courthouse from 9 a.m. – 5 p.m., Monday through Friday.” (emphasis added)); ¶ 56 (After Plaintiff's withdrawal of reasonable accommodations, Plaintiff was barred from entering the courthouse, until court officers confirmed with Ms. Santiago that Plaintiff can enter). Furthermore, it was due to OCA's actions, communicated through the HR Department, that caused Plaintiff to discontinue mental health treatment to meet OCA's requirements. Dkt. No. 8 ¶ 55. Therefore, OCA was the ultimate decisionmaker over Plaintiff's reasonable accommodation requests.

E. Plaintiff Plausibly Alleges an Inference of Discrimination

OCA asserts that the Amended Complaint fails to establish that OCA acted with discriminatory animus. Dkt. No. 14-2; Dkt. No. 23 at 10-12. Plaintiff argues that OCA's “own employee admitted that mistreatment by Plaintiff's coworkers was caused by discriminatory animus.” Dkt. No. 22 at 15.

An inference of discrimination can arise from circumstances including, but not limited to, “the employer's criticism of the plaintiff's performance in ethnically degrading terms; or its invidious comments about others in the employee's protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff's discharge.” Littlejohn, 795 F.3d at 312; Veras, 2025 WL 2824851, at *2 (applying the Littlejohn standard to ADA and Rehabilitation Act). “Because writings directly supporting a claim of intentional discrimination are rarely, if ever, found among an employer's corporate papers, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.” Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). “The evidence necessary to satisfy the initial burden of establishing that an adverse employment action occurred under circumstances giving rise to an inference of discrimination is minimal.” Littlejohn, 795 F.3d at 313 (internal quotations and citations omitted).

In the present case, the Amended Complaint establishes an inference of discrimination because statements by Plaintiff's OCA supervisor, Ms. Santiago, directly supported a claim of intentional discrimination, and Ms. Santiago knew about Plaintiff's disability and reasonable accommodations. After receiving accommodations, several OCA employees became hostile towards Plaintiff. Dkt. No. 8 ¶ 29 Plaintiff submitted numerous verbal and written complaints to Ms. Santiago, who was the OCA supervisor in charge of Plaintiff's work environment. Id. ¶ 33; Ex. 3. Ms. Santiago knew that these OCA staff members were “unhappy” because they perceived Plaintiff's hybrid work arrangement as “special treatment. Id. ¶ 34. Moreover, Ms. Santiago herself was aware of Plaintiff's disability and reasonable accommodations request. Id. ¶ 20 (Plaintiff discussing requesting accommodations with Ms. Santiago). However, Ms. Santiago will not call a meeting with the OCA employees to mitigate issues, but rather stated that if the office environment was “too much to handle,” Plaintiff should seek other employment or take a leave of absence. Id. ¶ 35. Rather, the HR Department placed Plaintiff on involuntary leave, and repeatedly stated that it was either because “court personnel” did want Plaintiff in the office, “two judges” did not want to refer cases to Plaintiff, and “the Court” can no longer offer reasonable accommodations. Id. ¶¶ 44-55. Plaintiff withdrew her request for accommodations. Id. ¶ 55. The events reached a boiling point when Plaintiff was barred from entering the courthouse. Id. ¶ 56. She received a negative evaluation for the first time. Id. ¶ 58. Shortly thereafter, Plaintiff requested FMLA leave, which was approved with no documentation or discussion. Id. ¶ 59.

Therefore, at the motion to dismiss stage, the Amended Complaint plausibly alleges OCA's inference of discrimination.

F. OCA Received Federal Funds for Purposes of § 504

Although conceding that “OCA does not dispute that it receives federal funds, generally,” OCA, nonetheless, argues that Plaintiff failed to “alleg[e] facts supporting that the Drug Treatment Court [STEP] or OCA received federal funding specifically for Plaintiff's position, amounts to a ‘threadbare recital of an element of a cause of action.’ ” Dkt. No. 23 at 12 (citing Joy v. Crime Victims Treatment Center, No. 23-CV-11177 (MMG), 2025 WL 326521, at *7 (S.D.N.Y. Jan. 29, 2025)).

As an initial matter, since OCA raises this argument for the first time on a reply brief, the argument is waived. Gerena v. Neurological Surgery, P.C., No. 15-CV_4634 (JMA) (GRB), 2016 WL 3647782, at *4 n.4 (E.D.N.Y. June 9, 2016), report and recommendation adopted, 2016 WL 3647866 (E.D.N.Y. July 1, 2016).

Nevertheless, even if the argument were not waived, the case upon which OCA relies, Joy v. Crime Victims Treatment Center, discusses an inapposite statute, Title VI of the Civil Rights Act of 1964. Joy, 2025 WL 326521, at *7. Although § 504 borrows the “remedies, procedure and rights” from Title VI, there exists significant differences between Title VI and § 504 that counsel against borrowing broad holdings from Title VI and applying them to § 504. See Consol. Rail Corp., 465 U.S. at 631-32 (“Conrail relies particularly on § 604 of Title VI. This section limits the applicability of Title VI to ‘employment practice[s] ․ where a primary objective of the federal financial assistance is to provide employment.’ ․ It is clear that § 504 itself contains no such limitation” (emphasis original)).

By contrast, courts in this district have encountered this precise issue in the context of § 504 and have not granted motions to dismiss the complaint. For instance, in Cohn v. KeySpan Corp., 713 F. Supp. 2d 143, 159 (E.D.N.Y. 2010), the plaintiff alleged that “[u]pon information and belief, Defendants are the recipients of the federal financial funding,” which “does not justify dismissal of plaintiff's Rehabilitation Act claim for failure to state a claim for relief.” The court reasoned, “[w]hether or not any of the [ ] defendants receives federal funding is a fact peculiarly within the possession and control of those defendants, which plaintiff is entitled to discern during discovery.” Id. (citing Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010).

Likewise, in T.W. v. New York State Board of Law Examiners, No. 16-CV-3029 (RJD) (RLM), 2017 WL 4296731 at *4 (E.D.N.Y. Sept. 26, 2017), the defendant moved to dismiss on grounds that the district court lacked subject matter jurisdiction on sovereign immunity grounds, and Plaintiff argued that the defendant waived sovereign immunity because it accepted federal funds under § 504. The court deferred dismissing the complaint because “[w]hether or not․ [the New York State Board of Law Examiners] receives federal funding is a fact peculiarly within the possession and control of ․ defendants.” Id. (citing Cohn, 713 F. Supp. 2d at 159). Instead, the court directed the parties to engage in limited discovery as to defendant's federal funding. Id.

At this stage in the proceedings, Plaintiff has sufficiently alleged that “OCA is a recipient of federal funds, constituting a waiver of any immunity it may otherwise have under Section 504 of the Rehabilitation Act.” Dkt. No. 8 ¶ 7, see also id. at ¶ 102 (“Upon information and belief, Defendant OCA is a recipient of federal funds, and its continued acceptance of such funds under Section 504 constitutes a knowing waiver of any immunity the State agency may have otherwise possessed”). Like Cohn and T.W., these allegations are sufficient, and dismissal is improper at this juncture. Further, the Second Circuit has found that in previous years, specialized drug treatment courts in New York State received federal funds, which adds further reasons for why dismissal is inappropriate at this juncture. T.W. v. New York State Bd. of Law Examiners, 996 F.3d 87, 89, 96 (2d Cir. 2021). Therefore, Plaintiff adequately alleges that OCA received federal funds for the purposes of § 504.⁸

G. Plaintiff Can Recover Compensatory, but not Punitive and Emotional, Damages

OCA argues that Plaintiff cannot recover compensatory, punitive, or emotional damages. Dkt. No. 14-2 at 15-17, Dkt. No. 23 at 13. Plaintiff counters that she can recover compensatory damages because she “was forced to return full time, in person employment, causing her mental health to suffer, and resulting in having to paid unpaid leave,” and Plaintiff “lost not only wages, but medical benefits, and had her known mental health issues exacerbated by Defendant OCA's adverse actions. Dkt. No. 22 at 16.

The “remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964․ shall be available” for violations of § 504.” Barnes v. Gorman, 536 U.S. 181, 185 (2002) (citing 29 U.S.C. § 794a(a)(2)).⁹ The consideration of “whether a remedy qualifies as appropriate relief [under Title VI] must be informed by the way the Spending Clause ‘statutes operate’: by ‘conditioning an offer of federal funding on a promise by the recipient not to discriminate, in what amounts essentially to a contract between the Government and the recipient of funds.’ ” Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 219 (2022) (citation omitted). As the Supreme Court stated, “[f]ollowing the contract analogy set out in our Spending Clause cases, a federal funding recipient may be considered ‘on notice that is subject not only to those remedies explicitly provided in the relevant legislation, but also to those remedies traditionally available in suits for breach of contract’ ․ [The Supreme Court] identified two such remedies: compensatory damages and injunctions.” Id. at 220-21. Under the same contract analogy, neither punitive damages nor emotional damages are available in private actions under § 504 because neither remedy are “traditionally available in suits for breach of contract.” Cummings, 596 U.S. at 221-22 (citing Barnes, 536 U.S. at 187-88); Doherty v. Bice, 101 F.4th 169, 175 (2d Cir. 2024) (citing Barnes, 536 U.S. at 189; Cummings, 596 U.S. at 221) (dismissing punitive and emotional damages at the motion for judgment on the pleadings stage, which has the same standard as a motion to dismiss).

Continuing the analogy, courts have found that one type of compensatory damages available in § 504 cases is “expectation damages,” which are meant to provide the plaintiff “the benefit of the bargain that he or she made by awarding a sum of money that will place [him or her] in as good a position as he or she would have been had the contract been performed.” Fantasia v. Montefiore New Rochelle, No. 19-CV-11054 (VB), 2022 WL 20540940, at *2 (S.D.N.Y. June 16, 2022) (citing 24 Williston on Contracts § 64.3 (4th ed. 2022)).

Thus, a party's expectation damages are measured by “(a) the loss in the value to him of the other party's performance caused by its failure or deficiency, plus (b) any other loss, including incidental or consequential loss, caused by the breach, less (c) any cost or other loss that he has avoided by not having to perform.” Id. (citing Restatement (Second) of Contracts § 347).

In an employment discrimination suit under § 504, back pay serves as a form of compensatory damages. Consol. Rail Corp., 465 U.S. at 630; see also Dodd v. City Univ. of New York, 541 F. Supp. 3d 318, 323-24 (S.D.N.Y. 2021) (finding back pay under § 504 is compensatory damages to which the plaintiff is entitled to a right to a jury trial). Back pay is “the wages [the plaintiff] would have received but for defendants’ unlawful conduct.” Dodd, 541 F. Supp. 3d at 324. Further, Plaintiff can recover nominal damages for violations of the Rehabilitation Act. Fantasia, 2022 WL 20540940, at *4.

As an initial matter, to the extent OCA is re-hashing the same argument that “OCA had no control over EAC's decision not to pay plaintiff herself or provide paid leave to plaintiff,” (Dkt. No. 23 at 13), the discussion above demonstrates that OCA was the ultimate decisionmaker over Plaintiff's reasonable accommodation requests.

Turning to damages, neither punitive damages or emotional damages are available in private actions under § 504. See Doherty, 101 F.4th at 174-75 (citing Barnes, 536 U.S. at 189; Cummings, 596 U.S. at 221) (dismissing punitive and emotional damages at the motion for judgment on the pleadings stage, which has the same standard as a motion to dismiss); Ramrattan v. New York, No. 9:22-CV-00025 (AJB) (MJK), 2025 WL 2549075, at *9 (N.D.N.Y. July 9, 2025), report and recommendation adopted, 2025 WL 2315310 (N.D.N.Y. Aug. 12, 2025) (“Plaintiff cannot obtain emotional or punitive damages under the ADA or [the Rehabilitation Act) as a matter of law.”) (citations omitted). Therefore, the undersigned respectfully recommends that Plaintiff's claims for punitive and emotional damages against OCA be dismissed.

As for compensatory damages, the Amended Complaint, liberally construed, plausibly alleges a right to compensatory damages. Although Plaintiff found new employment, she seeks “[b]ack pay, including lost wages and benefits.” Compl. ¶ 64, 19. Under the relevant case law, she is entitled to back pay, as well as other compensatory damages, such as expectation damages so that Plaintiff can be placed in as “good a position as he or she would have been had” had OCA not violated § 504. Consol. Rail Corp., 465 U.S. at 630; Dodd, 541 F. Supp. 3d at 323-24; Fantasia, 2022 WL 20540940, at *2. She is also entitled to nominal damages. Fantasia, 2022 WL 20540940, at *4. Therefore, Plaintiff is entitled to seek compensatory damages and nominal damages against OCA, and the undersigned respectfully recommends OCA's motion to dismiss should be denied on this ground.

H. Plaintiff has Standing and This Action is Not Moot

OCA asserts that Plaintiff's “new employment that provides her with a full accommodation” demonstrate that Plaintiff lacks standing, and this action is moot. Dkt. No. 14-2 at 17. OCA further argues that Plaintiff's new employment render the court incapable of granting injunctive relief. Id. at 17-18. The undersigned will address both arguments in turn.

As a preliminary matter, Article III “requires that the court be able to afford relief through the exercise of its power, not through the persuasive or even awe-inspiring effect of the opinion explaining the exercise of its power.” Franklin v. Massachusetts, 505 U.S. 788, 825 (1992) (Scalia, J., concurring in part and concurring in the judgment). Article III standing consists of three “irreducible” elements: (1) injury-in-fact, which is a “concrete and particularized” harm to a “legally protected interest”; (2) causation in the form of a “fairly traceable” connection between the asserted injury-in-fact and the alleged actions of the defendant; and (3) redressability, or a non-speculative likelihood that the injury can be remedied by the requested relief. W.R. Huff Asset Mgmt. Co., LLC v. Deloitte & Touche LLP, 549 F.3d 100, 106–07 (2d Cir. 2008) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

In the employment discrimination context, the Second Circuit has repeatedly emphasized the importance of reinstatement as appropriate equitable relief. Reiter v. MTA New York City Transit Auth., 457 F.3d 224, 230 (2d Cir. 2006) (citing Brooks v. Travelers Ins. Co., 297 F.3d 167, 170 (2d Cir.2002) (noting that under Title VII reinstatement has been interpreted as the first choice); Allen v. Autauga County Bd. of Educ., 685 F.2d 1302, 1305 (11th Cir.1982) (reinstatement required “except in extraordinary cases”); Williams v. City of Valdosta, 689 F.2d 964, 977 (11th Cir.1982) (reinstatement is a remedy to which plaintiff “is normally entitled ․ absent special circumstances”); Jackson v. City of Albuquerque, 890 F.2d 225, 233 (10th Cir.1989) (reinstatement “is ordinarily to be granted”) (emphasis omitted)).

As to the first argument, OCA argues that Plaintiff lacks standing because Plaintiff's new employment make it impossible for the injury to be redressable. Dkt. No. 14-2 at 14. As discussed in the previous section, Plaintiff is entitled to compensatory and nominal damages. Therefore, Plaintiff has standing, and this action is not moot. See Fantasia, 2022 WL 20540940, at *5 (“A plaintiff who seeks nominal damages to remedy an injury has standing to pursue her claim in federal court; that is, her claim is not moot.”); see also Consol. Rail Corp., 465 U.S. at 630 (holding that the death of the plaintiff did not render the § 504 action moot because plaintiff's estate can recover the damages).

As to the second argument, the Court can clearly enter the appropriate injunctive relief, such as reinstatement. Reinstatement is the “best choice” “because this accomplishes the dual goals of providing make-whole relief for a prevailing plaintiff and deterring future unlawful conduct.” Reiter, 457 F.3d at 230 (citing Brooks, 297 F.3d at 170 (citing Selgas v. Amer. Airlines, 104 F.3d 9, 12 (1st Cir.1997))); see also Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 43 (1st Cir.2003) (“We have recognized that reinstatement is an important remedy because it most efficiently advances the goals of Title VII by making plaintiffs whole while also deterring future discriminatory conduct by employers.”) (internal quotation marks omitted)).

OCA's reliance on Doherty is misplaced. Dkt. No. 14-2 at 18. There, the plaintiff sued his university, seeking an expungement of no-contact orders under Title II of the ADA. Doherty, 101 F.4th at 172-73. The Second Circuit held that the plaintiff's claims were moot because the plaintiff graduated from the university, and the university expunged the no-contact orders. Id. Further, the plaintiff could not seek economic and nominal damages because “he expressly disavowed any claims for other damages.” Id. at 175. Here, unlike the plaintiff Doherty who could not seek reinstatement from a university from which he already graduated, Plaintiff can, indeed, seek the injunctive relief reinstatement in this employment discrimination case. Finally, Plaintiff has not disavowed any claims for compensatory damages.

In any event, “[v]ictims of employment discrimination are required to mitigate their damages.” Hopkins v. New England Health Care Emps. Welfare Fund, 985 F. Supp. 2d 240, 261 (D. Conn. 2013) (citing Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 53 (2d Cir. 1998)). This means that the plaintiff in an employment discrimination case is under a duty to “use reasonable diligence in finding other suitable employment.” Id. Therefore, it cannot be maintained that this action is moot merely because Plaintiff has found new employment. In sum, the undersigned respectfully requests that Plaintiff's request to dismiss this action on standing and mootness grounds be denied, and Plaintiff's request to dismiss injunctive relief be denied.

V. Conclusion

For the reasons set forth above, the undersigned respectfully recommends that OCA's motion to dismiss be granted in part and denied in part, to wit, OCA's request to dismiss Plaintiff's claims for punitive damages and emotional damages be granted, and OCA's motion to dismiss be denied in all other respects.

A copy of this Report and Recommendation is being electronically served on OCA's counsel. This Court directs OCA's counsel to serve a copy of this Report and Recommendation by overnight mail and e-mail to pro se Plaintiff and to file proof of service on ECF by November 5, 2025.

Copies shall be served at the following address and e-mail address:

Athena Johnson

1661 Nostrand Avenue #3F

Brooklyn, New York 11226

E-mail: Athena_johnson11@hotmail.com

Any objections to this Report and Recommendation must be filed within 14 days after service of this Report and Recommendation. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). See also Fed. R. Civ. P. 6(a) & (d) (addressing computation of days). Any requests for an extension of time for filing objections must be directed to Judge Morrison. Failure to file objections within this period designating the particular issues to be reviewed waives the right to appeal the district court's order. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010); Kotlyarsky v. United States Dep't of Just., No. 22-2750, 2023 WL 7648618 (2d Cir. 2023); see also Thomas v. Arn, 474 U.S. 140 (1985).

SO ORDERED.

FOOTNOTES

1.   Plaintiff's other claims are: (1) disability discrimination in violation of the ADA against EAC; (2) retaliation in violation of the ADA against EAC; (3) disability discrimination in violation of the NYSHRL against EAC; (4) harassment and retaliation under NYSHRL against EAC; (5) disability discrimination under NYCHRL against EAC; and (6) retaliation under NYCHRL against EAC. Dkt. No. 8 ¶¶ 66-99. EAC answered the amended complaint on May 5, 2025. See Dkt. No. 19.

2.   Page citations are to the ECF-stamped pages unless otherwise stated.

3.   According to the New York City courts website, “STEP is a special courtroom in the Brooklyn Criminal Court. It is a program for first time felony offenders arrested in Brooklyn, who face felony drug charges and who also abuse drugs. Instead of jail or probation, STEP will help [the defendant] enter and stay in a drug or alcohol treatment program. The STEP program includes regular court appearances and supervision by the STEP judge.” Screening Treatment & Enhancement Part (STEP) – Brooklyn, STEP Staff – Overview, see https://www.nycourts.gov/courts/nyc/drug_treatment/step/index.shtml (last visited Nov. 4, 2025).

4.   Plaintiff alleges that EAC is a “not-for-profit” social service agency. Dkt. No. 8 ¶ 6. OCA contends that EAC is a “non-profit.” EAC's answer admitted the allegations in Paragraph 6 of the Amended Complaint. Dkt. No. 19 ¶ 6. EAC's Form 990 reports that it is a tax exempt 501(c)(3) organization, which is a non-profit organization. EAC, Inc. – Form 990, https://eac-network.org/wp-content/uploads/2025/01/Form-990-2023.pdf (last visited Nov. 4, 2025). Ultimately, the difference is immaterial for the purposes of this motion.

5.   Court staff and EAC staff were all responsible for submitting their progress reports directly to Mr. Rivera. Id. ¶ 16.

6.   The Amended Complaint also spells this individual's name as “Miriam Famanina.” Dkt. No. 8 ¶¶ 29, 36. The STEP court's website confirms that “Miriam Famania” is the correct spelling. Screening Treatment & Enhancement Part (STEP) – Brooklyn, STEP Staff, https://www.nycourts.gov/courts/nyc/drug_treatment/step/staff.shtml (last visited Nov. 4, 2025)

7.   The first motion to dismiss (Dkt. No. 13) was filed in error, and is not considered.

8.   The parties have not raised whether the acceptance of federal funds constitutes a proper waiver of sovereign immunity on behalf of OCA. See Garcia v. S.U.N.Y. Health Ctr. of Brooklyn, 280 F.3d 98, 114 (2d Cir. 2001) (“we are unable to conclude that New York in fact waived its sovereign immunity against suit under § 504 when it accepted federal funds for SUNY.”); see also Marshall v. New York State Pub. High Sch. Athletic Ass'n, Inc., 374 F. Supp. 3d 276, 298 (W.D.N.Y. 2019) (citation omitted) (“New York, by accepting federal funds after the Garcia decision, has waived sovereign immunity for damage suits brought under section 504 of the Rehabilitation Act of 1973.”). The Court therefore does not address this issue at this time.

9.   By contrast, “[t]he remedies ․ set forth in ․ Title VII [of the Civil Rights Act of 1964] apply to federal employees seeking relief for disability discrimination under the Rehabilitation Act.” Colon v. Potter, 51 F. App'x 43, 46 (2d Cir. 2002) (citing 29 U.S.C. § 794a(a)(1)).

JOSEPH A. MARUTOLLO United States Magistrate Judge