ALEXIS HARVEY v. BUSINESS INTEGRITY COMMISSION (2025)

REPORT AND RECOMMENDATION

To the Honorable Jessica G. L. Clarke, United States District Judge:

Plaintiff Alexis Harvey (“Plaintiff”), proceeding pro se, brought this case against her former employers, the Business Integrity Commission (the “Commission”) and the City of New York, alleging that they interfered with her rights under the Family Medical Leave Act, failed to accommodate and discriminated against her in violation of the Americans with Disabilities Act, discriminated against her based on her caregiver and marital status in violation of state and city law, and retaliated against her for taking leave and for complaining of discrimination. Now Defendants move to dismiss the case under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. For the reasons described herein, the undersigned respectfully RECOMMENDS that Defendants’ motion be GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

A. FACTUAL BACKGROUND

Plaintiff began working for the Commission as a Community Associate in the Legal Unit in September 2019. Amended Complaint (“Am. Compl.”), Dkt. No. 25, ¶ 2. In early 2020, Plaintiff requested an accommodation to reduce the risk that her disabled child would contract COVID-19 from her, which was denied. Id. ¶ 11. Thereafter, all nonessential City employees, including Plaintiff, began working from home. Id. ¶ 12. During this period, all of the Commission's paralegals left their positions and Plaintiff was assigned their duties. Id. ¶¶ 13, 21. Because of these additional duties, Plaintiff's supervisor promised her a salary increase following upcoming performance evaluations. Id. ¶ 22.

In April 2021, Defendants planned for their employees to return to the office. Id. ¶ 15. Plaintiff requested leave under the Family Medical Leave Act (the “FMLA”), 29 U.S.C. §§ 2601 et seq., to care for her disabled son. Id ¶ 16. After encountering resistance to this request, Plaintiff complained through her union that Defendants were interfering with her FMLA leave. Id. ¶ 19. Plaintiff's request for FMLA leave was apparently granted at some point, for she alleges that she “returned to the office from FMLA leave” in September 2021. Id. ¶ 23.

After Plaintiff's return to the office, she suffered disparaging remarks, was not given sufficient work, and was excluded from team meetings. Id. ¶¶ 23–26. A new paralegal was hired and was assigned projects and other significant tasks, and was eventually given a promotion and a pay raise. Id. ¶ 27–28.

On August 1, 2022, Plaintiff complained to the Commission's Chief Diversity Officer. Dkt. No. 1 at 11. She filed further complaints on August 22 and September 6. Id. Plaintiff filed claims with the agency's Equal Opportunity Officer and Disciplinary Advocate, which she claims led to “increased scrutiny.”¹ Plaintiff's Opposition (“Pl. Opp.”), Dkt. No. 33 at 1. She ultimately resigned from her position on October 11, 2022. Dkt. No. 1 at 11.

On June 15, 2023, Plaintiff filed a charge with the New York State Division of Human Rights and the Equal Employment Opportunity Commission (“EEOC”). Dkt. No. 1 at 11. A right to sue notice was issued on November 9, 2023. Id.

B. PROCEDURAL HISTORY

Plaintiff filed her original complaint on February 6, 2024. Dkt. No. 1. After Defendants moved to dismiss, Dkt. No. 16, Plaintiff moved for leave to file an amended complaint, Dkt. No. 21, which was granted on September 13, 2025, thus mooting the motion to dismiss. Dkt. No. 22.

Plaintiff filed her amended complaint on October 25, 2024. Dkt. No. 25. Defendants then filed the instant motion to dismiss the amended complaint, Dkt. No. 28, supported by a memorandum of law (“Def. Mem.”), Dkt. No. 29. Plaintiff filed opposition papers on January 24, 2025, Dkt. No. 33 (“Pl. Op.”), and Defendants filed their reply brief (“Def. Reply”) on February 28, 2025, Dkt. No. 34.

Dispositive motions in this case were previously referred to Magistrate Judge James L. Cott, Dkt. No. 7, and this reference was reassigned to the undersigned on August 28, 2024.

II. LEGAL STANDARDS

A. Motions to Dismiss Under Rule 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) allows for dismissal for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In considering a Rule 12(b)(6) motion, a court accepts all well-pleaded allegations in the complaint as true and draws all reasonable inferences in the plaintiff's favor. See, e.g., Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec. LLC, 568 F.3d 374, 381 (2d Cir. 2009). “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. (citation omitted). Mere “labels and conclusions” or a “formulaic recitation of the elements of a cause of action” are not enough to survive a motion to dismiss. Twombly, 550 U.S. at 555.

B. Standards for Pro Se Litigants

While pro se complaints are read liberally “to raise the strongest arguments they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (citation omitted), they still must state a plausible claim for relief. Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013). Thus, a district court should dismiss a pro se plaintiff's complaint if it “fail[s] to meet minimum pleading requirements.” Kinsey v. Bloomberg, No. 12-cv-8936 (PAE) (JCF), 2014 WL 630670, at *3 (S.D.N.Y. Feb. 18, 2014).

Submissions by pro se plaintiffs are held “to less stringent standards than formal pleadings drafted by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotations omitted); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (courts are “obligated to construe a pro se complaint liberally”). As a result, the Court may consider allegations that appear in a pro se plaintiff's motion papers or other filings as well as in his pleadings. See, e.g., Freud v. N.Y.C. Dep't of Educ., No. 21-cv-2281 (MKV), 2022 WL 889213, at *4 (S.D.N.Y. Mar. 25, 2022) (courts “may also consider factual statements made in the pro se Plaintiff's opposition to the motion to dismiss”) (citing Walker, 717 F.3d at 122 n.1). Nevertheless, pro se plaintiffs are not excused from the normal rules of pleading; “dismissal ․ is proper if the complaint lacks an allegation regarding an element necessary to obtain relief.” Geldzahler v. N.Y. Med. Coll., 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009) (cleaned up).

III. ANALYSIS

Plaintiff's amended complaint asserts two causes of action: (1) for discrimination in violation of the FMLA (Am. Compl. ¶¶ 29–32); and (2) for associational discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (“ADA”) (Am. Compl. ¶¶ 33–34). While they are not styled as separate causes of action at the end of the pleading, the Preliminary Statement of the amended complaint also asserts claims for failure to accommodate in violation of the ADA, for interference with the right to take leave under the FMLA, for discrimination based on marital status in violation of the New York State Human Rights Law, N.Y. Exec. Law § 296, et seq. (“NYSHRL”), for discrimination based on marital and caregiver status in violation of the New York City Human Rights Law, N.Y.C. Administrative Code 8-101, et seq. (“NYCHRL”), and for retaliation in violation of the FMLA, ADA, NYSHRL, and NYCHRL. Am. Compl. ¶¶ 1–2.

In her initial complaint, Plaintiff also asserted causes of action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., for discrimination based on race, color, and sex, as well as violation of New York State labor laws. Dkt. No. 1 at 2, 4. However, she did not bring these claims in the amended complaint or discuss them in her opposition papers, and the Court will deem them abandoned.

A. ADA Claims

Reading the amended complaint liberally, Plaintiff asserts two different ADA claims: (1) a claim that Defendants failed to provide a reasonable accommodation at the outset of the COVID-19 pandemic (Am. Compl. ¶ 2); and (2) a claim that Plaintiff was subjected to associational discrimination because of her son's disability. Id. ¶ 34. For the reasons described below, both claims should be dismissed.

1. Plaintiff's Failure to Accommodate Claim

To plead a claim for failure to accommodate under the ADA, a plaintiff must allege “(1) [she] is a person with a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of [her] disability; (3) with reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations.” McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 96–97 (2d Cir. 2009) (cleaned up).

The ADA requires that individuals aggrieved by acts of discrimination file a charge with the EEOC within 180 days or, in states like New York that have local administrative mechanisms for pursuing discrimination claims, 300 days after the alleged discriminatory act. See Tewksbury v. Ottaway Newspapers, Inc., 192 F.3d 322, 325 (2d Cir. 1999) (quoting 42 U.S.C. § 2000e-5(e)(1)).

Plaintiff filed her charge with the EEOC on June 15, 2023. Dkt. No. 1 at 11. As result, any ADA claims based upon conduct that occurred before August 19, 2022, are timed-barred.² Although she does not provide an exact date of any alleged failure to accommodate, it must have occurred in early days of the COVID-19 pandemic, before Defendants’ employees began working remotely in March 2020. Am. Compl. ¶ 11 (describing how Plaintiff requested accommodation to protect her son from COVID-19, but was given a container of sanitizer wipes at her desk instead.). Because the alleged failure to accommodate occurred more than 300 days before her filing with the EEOC, this claim is time-barred.

Furthermore, while Plaintiff alleges that she “requested an accommodation to mitigate the risk and exposure of the COVID-19 virus to her child,” Am. Compl. ¶ 2, she does not allege that she, herself, was disabled. Thus, although Plaintiff alleges a failure to accommodate, she does not state a viable ADA claim for a failure to accommodate because she does not allege that she is “a person with a disability under the meaning of the ADA.” McBride, 583 F.3d at 96–97. To the extent Plaintiff asserts an ADA claim based on her son's disability, it is an associational discrimination claim, which is addressed below.

2. Associational Discrimination

Plaintiff expressly asserts a cause of action for associational discrimination under the ADA. Am. Compl. ¶¶ 33–34. The ADA prohibits “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” 42 U.S.C. § 12112(b)(4). To state a claim for associational discrimination, a plaintiff must allege “1) that she was qualified for the job at the time of an adverse employment action; 2) that she was subjected to adverse employment action; 3) that she was known at the time to have a relative or associate with a disability; and 4) that the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer's decision.” Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 432 (2d Cir. 2016).

As referenced above, an ADA claim is subject to a 300-day limitations period. Plaintiff filed her charge with the EEOC on June 15, 2023. Dkt. No. 1 at 11. The ADA bars bringing a case arising out of actions that occurred more than 300 days prior to filing with the EEOC—in this case, August 19, 2022. Because Plaintiff resigned on October 11, 2022, there is only a short period during which a timely ADA claim could have arisen.

All of the specific acts of discriminatory conduct alleged in the amended complaint occurred in 2021. Am. Compl. ¶¶ 23–27. To the extent Plaintiff brings associational discrimination claims based on these events, such claims are time-barred. Am. Compl. ¶¶ 23–27. While Plaintiff's initial complaint had alleged that “her treatment worsened” later in 2022 (Dkt. No. 1 at 6), the amended complaint does not repeat this allegation, nor does it include any factual allegations about the period between August 19 and October 11, 2022. Furthermore, even assuming that Plaintiff's vague assertion that she suffered “increased scrutiny” in the fall of 2022, Pl. Opp. at 1, sufficiently pleads adverse employment action, she has not provided enough detail to raise a reasonable inference that such adverse action occurred because of her association with her son.³

For these reasons, Plaintiff's ADA claims should be dismissed with leave to replead to cure the deficiencies identified herein.

B. FMLA Claims

Plaintiff asserts two separate FMLA claims: (1) that Defendants interfered with her FMLA leave (Am. Comp. ¶ 31); and (2) that Defendants retaliated against her for seeking and taking FMLA leave (Am. Comp. ¶ 2).

1. FMLA Interference Claim

In order “to prevail on a claim of interference with her FMLA rights, a plaintiff must establish: 1) that she is an eligible employee under the FMLA; 2) that the defendant is an employer as defined by the FMLA; 3) that she was entitled to take leave under the FMLA; 4) that she gave notice to the defendant of her intention to take leave; and 5) that she was denied benefits to which she was entitled under the FMLA.” Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 424 (2d Cir. 2016). Here, Plaintiff admits that she was allowed to take FMLA leave, and she does not identify any FMLA benefits that were denied. Am. Compl. ¶ 20. Accordingly, she fails to state a claim for FMLA interference, but should be permitted to replead to address this deficiency.

2. FMLA Retaliation

“FMLA claims are generally subject to a two-year statute of limitations, but that limitations period extends to three years when the violation is ‘willful.’ ” Offor v. Mercy Med. Ctr., 676 Fed. App'x 51 (2d Cir. 2017) (quoting Porter v. N.Y. Univ. Sch. of Law, 392 F.3d 530, 531 (2d Cir. 2004). To establish willfulness, Plaintiff must allege that “the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute․” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1987). “Willful conduct is ‘not merely negligent.’ ” Mejia v. Roma Cleaning, Inc., 2018 U.S. App. LEXIS 28235 at * 5, 2018 WL 4847199, at *1 (2d Cir. Oct. 5, 2018).

The Second Circuit has stated, when assessing a motion to dismiss, that “retaliating against an employee for exercising FMLA rights is almost by definition a ‘willful’ violation.” Offor v. Mercy Med. Ctr., 676 F. App'x 51, 55 n.2 (2d Cir. 2017). Accordingly, the Court will apply the three-year limitations period to Plaintiff's retaliation claim. Because all of the retaliation that Plaintiff alleges occurred within three years of filing this action, her FMLA retaliation claim is timely.

FMLA retaliation claims are subject to the burden-shifting test established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir. 2004) (per curiam). “To establish a prima faci[e] case of FMLA retaliation, a plaintiff must establish that 1) he exercised rights protected under the FMLA; 2) he was qualified for his position; 3) he suffered an adverse employment action; and 4) the adverse employment action occurred under circumstances giving rise to an inference of retaliatory intent.” Donnelly v. Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134, 147 (2d Cir. 2012) (internal quotation marks omitted).

Plaintiff alleges that she exercised her rights under the FMLA by seeking FMLA leave, “formally complaining of FMLA interference” (Am. Compl. ¶ 2), and ultimately taking leave. See Am. Compl. ¶¶ 16-20. She also alleges that she was qualified for her position. Am. Compl. ¶ 14. The amended complaint therefore satisfies the first two elements of the McDonnell Douglas analysis.

Plaintiff alleges that after returning from leave, she was excluded from meetings, ceased being given long-term projects, and was relieved of responsibility for managing violations. Am. Compl. ¶ 26. In contrast, she claims that a newly-hired paralegal was given complicated assignments and significant projects, which resulted in a pay raise and a promotion. Id. ¶¶ 27–28.

In her amended complaint, Plaintiff alleges that while she was working from home and performing the duties of a paralegal, her supervisor promised her a pay raise “in the coming months.” Id. ¶ 22. In her opposition, she adds that this promised pay raise was rescinded once she returned from FMLA leave. Pl. Opp. at 2. Defendants argue that the Court should not consider the denial of Plaintiff's raise because it was mentioned for the first time in Plaintiff's opposition. Def. Reply at 2–3. But “[a] district court deciding a motion to dismiss may consider factual allegations made by a pro se party in his papers opposing the motion.” Walker, 717 F.3d at 122, n.1. The Court can and should consider the denial of the pay raise, especially given that the promised pay raise was mentioned in the amended complaint. Am. Compl. ¶ 22.

Defendants also argue that mere exclusion from meetings and failure to be given more interesting or complicating assignments do not constitute adverse employment actions because these changes had no material effect on her job. Def. Mem. at 8–9. They point to authority holding that exclusion from meetings, by itself, is not necessarily an adverse employment action. Id. See Betterson v HSBC Bank USA, N.A., 661 F App'x 87, 90 (2d Cir. 2016) (“Exclusion from certain meetings is not an adverse employment action; Betterson admits that she should still do her job and there is no evidence that she was disadvantaged by that exclusion.”) (emphasis added).

Here, however, applying the liberal pleading standard afforded to pro se litigants, Plaintiff has alleged adverse employment action. Despite her job title of Community Associate, Plaintiff allegedly performed the duties of a paralegal. Am. Compl. ¶ 14. Once she returned from leave, however, these additional duties were stripped away. Id. ¶¶ 26–27. This was a material adverse change in her work responsibilities, and not just a “bruised ego,” as Defendants suggest. See Brand v. New Rochelle City Sch. Dist., No. 19-cv-7263 (CS), 2022 WL 671077, at *9 (S.D.N.Y. Mar. 7, 2022). The newly-hired paralegal who received assignments similar to those Plaintiff once performed received a promotion and a raise. Am. Compl. ¶ 28. In contrast, Plaintiff never received the pay raise she was promised when she was performing these same duties. Id. ¶ 22; Pl. Opp. at 1; see also Fullwood, 08-cv-6739 (DAB), 2010 U.S. Dist. LEXIS 107713 (S.D.N.Y. Sept. 28, 2010) (recognizing that denial of a raise may be adverse employment action when the raise is “customary, expected, or warranted”). Taken together, this reduction in duties and denial of a promised pay raise constitute an adverse employment action. The third element of the McDonnel Douglas test is therefore met.

Finally, Plaintiff provides sufficient details for the Court reasonably to infer that these adverse employment actions occurred because she requested, advocated for, and took FMLA leave. First, the timing and sequence of events supports such an inference. Before taking FMLA leave, Plaintiff was given additional responsibilities and promised a raise. Immediately after her return from FMLA leave, these extra responsibilities were taken away and she was not given the pay raise, while a newer hire, who had not taken FMLA leave, took over these responsibilities and was subsequently promoted.

Two comments made by supervisors further support an inference of retaliation. In September 2021, one supervisor asked Plaintiff, “Did you enjoy your little vacation? It is sure nice to see you at work again, finally.” Am. Compl. ¶ 23. Another commented, “I know Feldman [another manager] would like to see you working.” Id. ¶ 24. Both of these comments suggest hostility toward Plaintiff because she took FMLA leave. Plaintiff has therefore met all four requirements to plead a valid cause of action for FMLA retaliation. Defendants’ motion to dismiss should be denied as to this cause of action.

C. Discrimination Claims

In additional to federal causes of action, Plaintiff alleges that she was discriminated against based on her caregiver and marital status in violation of both the NYSHRL and NYCHRL.

1. State and City Discrimination Claims

NYSHRL and NYCHRL claims are subject to a three-year statute of limitations. See Akhtab v. BCBG MaxArzia Grp. Inc., No. 11-cv-4567, 2011 U.S. Dist. LEXIS 118606 (S.D.N.Y. Oct. 13, 2011); N.Y. C.P.L.R. 214(2); N.Y.C. Admin. Code § 8-502(d). Because this case was filed on February 6, 2024, any NYSHRL or NYCHRL claims arising from actions before February 6, 2021 are time-barred. As all of the conduct alleged by Plaintiff as the basis for her state and city claims occurred after February 6, 2021, the statute of limitations does not bar these claims.

2. Pleading Discriminatory Intent

New York State law forbids discrimination based upon an individual's marital status, and New York City law forbids discrimination based on both marital and caregiver status. N.Y. Exec. Law § 296; N.Y.C. Admin. Code § 8-101.

Plaintiff's NYSHRL claim that she was treated differently because of her marital status is evaluated under the burden-shifting framework established in McDonnell Douglas. Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir. 2010). Under the McDonnell Douglas analysis, Plaintiff must establish a prima facie case of discrimination by alleging: (1) she is a member of a protected class; (2) she was performing her duties satisfactorily and was qualified for the employment position; (3) she suffered an adverse employment action; and (4) the adverse action occurred in circumstances giving rise to an inference of discriminatory intent. See McDonnell Douglas, 411 U.S. at 802; see also, e.g., Smith v. City of N.Y., No. 12-cv-3250 (JMF), 2013 U.S. Dist. LEXIS 65798 at 3 (S.D.N.Y. May 8, 2013). However, a complaint need not contain specific facts establishing a prima facie case of discrimination in order to survive a motion to dismiss. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508, 511–14, (2001).

The Second Circuit has ruled that “courts must analyze NYCHRL claims separately and independently from any federal and state law claims and emphasized that conduct not actionable under federal and state law may still be actionable under the broader New York City standards.” Uttarwar v. Lazard Asset Mgt. LLC, 2025 WL 704278, at *3 (2d Cir. Mar. 5, 2025). While Courts analyzing NYCHRL claims apply the McDonnell Douglas test, for the third element, it is sufficient for a plaintiff to plead “that she is treated ‘less well’—because of a discriminatory intent.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 114 (2d Cir. 2013).

As disused in Section III.B above, Plaintiff meets the first three elements of the McDonnel Douglas test on the face of her of amended complaint, without needing to apply the more liberal standard for NYCHRL claims. First, she alleges that she is a member of a protected class, as a caregiver and as a single mother, and second, she alleges that she was performing her duties satisfactorily and was qualified to perform the work for which she was hired. Am. Compl. ¶ 14. And third, the reduction in responsibilities and denial of a promised pay raise constitute adverse employment actions.

However, in contrast to her FMLA retaliation claim, Plaintiff does not plead facts supporting a reasonable inference that these adverse employment actions occurred because of her caregiver or marital status. Even under the liberal pleading standards of NYCHRL, “a defendant is not liable if the plaintiff fails to prove the conduct is caused at least in part by discriminatory or retaliatory motives.” Mihalik, 715 F.3d at 109.

With regard to caregiver status, Plaintiff disclosed that she is the caregiver of a disabled child in early 2020. Am. Compl. ¶¶ 9–10. After this disclosure, Plaintiff's job responsibilities were increased and she was promised a raise. Id. ¶¶ 13–14. Only more than a year and-a-half later, in September of 2021, did Plaintiff begin suffering the adverse employment actions alleged. Id. ¶¶ 24, 26–27. The temporal gap between when Defendants were made aware of Plaintiff's caregiver responsibilities and the alleged adverse action, and the fact that during the intervening period Plaintiff was provided career-advancing opportunities, limits any inference of discriminatory intent. This separation in time between Defendants’ knowledge of her caregiver status and the adverse employment actions stands in sharp contrast to her FMLA retaliation claim, where she alleges a change in treatment immediately upon return from her FMLA leave. Am. Compl. ¶ 24.

Furthermore, while the two comments discussed in Section III.B.2 indicate that Plaintiff's employer harbored animus against her for taking FMLA leave, they do not contain any reference to Plaintiff's caregiver responsibilities. Am. Compl. ¶¶ 23–24. The generic and conclusory allegation that she suffered “ongoing harassment related to Plaintiff's caregiving responsibility,” without elaboration, is insufficient to state a valid claim for discrimination. Pl. Opp. at 1; see Anderson v City of New York, 712 F. Supp. 3d 412, 436 (S.D.N.Y. 2024) (dismissing NYCHRL claims and holding “Plaintiff's conclusory assertion she was ‘subjected to these conditions based on [her] protected characteristics’ is insufficient to plausibly state the ‘campaign of intimidation’ she experienced was due her gender, race, religion, or perceived disability.”).

Plaintiff's claim of discrimination based on marital status has less support than her caregiver discrimination claim. She does not allege that Defendants were aware that she was unmarried in her filings, nor does she allege that any comments were made to her relating to her marital status. Without such allegations, it is not reasonable to infer that Plaintiff suffered adverse employment action because of her marital status.

For these reasons, Plaintiff's NYSHRL and NYCHRL claims should be dismissed, with leave to replead to cure the deficiencies identified herein.

D. Additional Retaliation Claims

Finally, Plaintiff alleges that Defendants retaliated against her for exercising her rights under the ADA, NYSHRL and NYCHRL. Am. Compl. ¶ 2; Pl. Opp. at 1. Under both the ADA and NYSHRL, “Plaintiff's pleading must plausibly suggest that: (i) she engaged in protected activity, (ii) the employer was aware of this activity, (iii) she was subjected to an adverse employment action, and (iv) a causal connection existed between the alleged adverse employment action and her protected activity.” Warmin v. N.Y.C. Dep't of Educ., No. 16-cv-8044 (KPF), 2019 U.S. Dist. LEXIS 125774 at *7 (S.D.N.Y. July 29, 2019). Under the NYCHRL, instead of alleging an adverse employment action as the third element, Plaintiff must plead that Defendants took an action that would “be reasonably likely to deter a person from engaging in protected activity.” Gonzalez v. City of New York, 377 F. Supp. 3d 273, 301 (S.D.N.Y. 2019).

Reading Plaintiff's filings liberally, she took three actions that potentially could qualify as protected activities. First, she requested an accommodation in early 2020. Am. Compl. ¶¶ 10–11. Second, she submitted a grievance to her union regarding Defendants’ failure to provide her with FMLA leave. Am. Compl. ¶¶ 19–20. Third, Plaintiff filed internal complaints at the Commission on August 1, 2022, August 22, 2022, and September 6, 2022. Dkt. No. 1 at 6, 11; Pl. Opp. ¶ 2. Each will be discussed in turn.

Although requesting an accommodation is a protected activity under the ADA, Plaintiff does not relate this request to an action that would deter engagement in a protected activity. Plaintiff requested an accommodation after the COVID-19 pandemic had begun but before government employees began working remotely in March 2020. Am. Compl. ¶ 11. To the contrary, after she requested an accommodation, Plaintiff was given additional responsibility and promised a pay raise. Id. ¶ 22. The actions said to constitute retaliation were the removal of these additional duties and the denial of the promised pay raise in or after September 2021. Id. ¶¶ 24–28. These actions – to reverse benefits conferred in the intervening period – cannot reasonably be viewed as retaliation for Plaintiff requesting an accommodation more than a year earlier. See, e.g., Shields v. NYC Health & Hosps. Corp., 489 F. Supp. 3d 155, 165 (E.D.N.Y. 2020) (“The court may infer a causal link where the adverse employment action occurred in a sufficiently close period of time that an inference of discrimination would be reasonable.”).

“Filing a union grievance regarding discriminatory treatment is a protected activity.” Washington v. Garage Mgmt. Corp., No. 11-cv-3420 (CM), WL 4336163, at *17 (S.D.N.Y. Sept. 20, 2012). However, “union grievances that do not complain of discrimination do not constitute a protected activity.” Melie v. EVCI/TCI Coll. Admin., 374 F. App'x 150, 153 n.* (2d Cir. 2010) (summary order); see also Chidume v. Greenburgh-North Castle Union Free Sch. Dist., No. 18-cv-01790 (PMH), 2020 WL 2131771, at *4 (S.D.N.Y. May 4, 2020) (“It is well settled that a union grievance can constitute protected activity if it concerns discrimination, but union grievances that complain of matters other than discrimination do not constitute protected activity for purposes of Title VII.”) (cleaned up).

Plaintiff does not allege that she contacted her union to complain of discrimination. Instead, it appears that she sought union assistance in receiving FMLA leave, which she ultimately obtained. Am. Compl. ¶¶ 19–20; Pl. Opp. at 1 (“Plaintiff submitted a complaint regarding interference with her leave to the [Union].”). Because Plaintiff does not claim that she filed a union grievance to complain of discrimination, this action does not constitute protected activity under the ADA, NYSHRL and NYCHRL.

In contrast, Plaintiff's August and September 2022 internal complaints do qualify as protected activity. While Defendants claim that Plaintiff does not explicitly allege that these complaints were about discriminatory conduct, Def. Mem. at 16–17, Plaintiff's filings support such an inference. See Charge of Discrimination, Dkt. No. 1. at 11 (“As the only African American mother serving the department then, I experienced exclusion from work, deprivation of opportunity, unfair compensation, and treatment. On August 1, 2022, I complained to the agency's Chief Diversity Officer ․”). Plaintiff pleads sufficient facts for the Court to infer that these complaints made in 2022 constitute protected activity.

However, these complaints were made less than two months before Plaintiff's resignation. Dkt. No. 1 at 11; Pl. Opp. at 2. The retaliatory conduct that Plaintiff alleges began nearly one year earlier, in September 2021. Am. Compl. ¶¶ 23–24. Plaintiff cannot claim that these adverse employment actions—the reduction in duties, rude comments from superiors, and the rescinded offer of a pay raise—constitute retaliation for a protected activity that had yet to occur. See Wang v. Palmisano, No. 13-cv-2186 (KMK), 157 F. Supp. 3d 306, 327 (S.D.N.Y. 2016) (“[T]he requisite causal connection will falter if the employer's complained of conduct began before the employee's corresponding protected activity.”).

The only alleged retaliation occurring after Plaintiff filed these 2022 internal complaints is that her “treatment worsened” and that she faced “increased scrutiny.” Dkt. No. 1 a 11; Pl. Opp. at 1. In contrast to the concrete actions that occurred before these complaints, vague assertations such as these do not constitute an adverse employment action.

Accordingly, Plaintiff's claims for retaliation for activity protected by the ADA, NYSHRL, and NYCHRL should be dismissed with leave to replead.

IV. CONCLUSION

For these reasons, I respectfully RECOMMEND that Defendants’ motion be GRANTED IN PART and DENIED IN PART. Defendants’ motion should be denied with regard to Plaintiff's claim for FMLA retaliation. The amended complaint adequately supports this claim and it is the legal theory that is the best fit for Plaintiff's factual allegations. On the other hand, Plaintiff's other legal claims do not quite fit her present allegations. Accordingly, Plaintiff's claims under the ADA, NYSHRL, and NYCHRL should be dismissed with leave to replead to cure the deficiencies identified herein. Plaintiff's claim for interference with her FMLA leave should also be dismissed with leave to replead.

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 have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See Fed. R. Civ. P. 6(a), (b), (d). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Jessica G.L. Clarke, United States Courthouse, 500 Pearl Street, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Clarke.

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).

SO ORDERED.

FOOTNOTES

1.   It is unclear whether these internal complaints to the Equal Opportunity Officer and Disciplinary Advocate referenced in Plaintiff's opposition are different from the August 1, August 22 and September 6 complaints referenced above.

2.   Defendants incorrectly contend that Plaintiff is barred from bringing any claims that arose before February 14, 2022. Def. Mem. at 4.

3.   Plaintiff disclosed her son's disability to her employer in early 2020. Am. Compl. ¶ 10. It was only in September 2021 that she began suffering adverse employment actions. Id. ¶ 23. In the intervening period, Plaintiff took on additional duties and was promised a raise. Id. ¶¶ 21–22. The time and positive treatment that stands between Defendants’ first knowledge of Plaintiff's association with a disabled person and the alleged adverse employment action undermine an inference of discrimination.

Henry J. Ricardo United States Magistrate Judge