Opinion
23 Civ. 10031 (PAE)
07-26-2024
ELMORE MURRAY, Plaintiff, v. CITY OF NEW YORK and OFFICE OF THE BRONX DISTRICT ATTORNEY, Defendants.
OPINION & ORDER
PAUL A. ENGELMAYER, UNITED STATES DISTRICT JUDGE
Elmore Murray, an African American woman, brings this action against the Office of the Bronx District Attorney (the “DA's Office”), her employer between 2004 and 2023, and the City of New York. Murray's claims are brought under the Family and Medical Leave Act, 29 U.S.C. §§ 2612 et seq. (“FMLA”), the Fair Labor Standards Act, 29 U.S.C. §§ 206 et seq. (“FLSA”), Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-502(a) et seq. (“NYCHRL”).
At the core of Murray's First Amended Complaint (“FAC”) is a series of alleged discriminatory and retaliatory actions she faced throughout her tenure as a desk appearance ticket writer (a “DAT Writer”) at the DA's Office. She contends that defendants discriminated against her based on her race, failed to accommodate her disability (a chronic autoimmune skin condition called lichen planus), and retaliated against her for engaging in protected activities, including filing internal complaints, bringing an FLSA lawsuit, and requesting FMLA leave.
Pending now is defendants' motion to dismiss the FAC under Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Court grants the motion in part and denies it in part.
I. Background
A. Relevant Factual Background
These facts are drawn from the First Amended Complaint, Dkt. 14 (“FAC”). For the purpose of resolving the motion to dismiss, the Court assumes all well-pled facts in the FAC to be true and draws all reasonable inferences in favor of Murray. See Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012). The Court also considers Murray's settlement agreement with the City from an earlier lawsuit, which the FAC attaches as an exhibit. Dkt. 20, Ex. 1 (“Settlement Agreement”); see also DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 111 (2d Cir. 2010) (“In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint”).
1. The Parties
Murray, an African American woman, was employed by the DA's Office between July 2004 and September 2023. FAC ¶¶28,31,119. She most recently worked there as a DAT Writer in the Complaint Room. Id. ¶ 30. Murray suffers from lichen planus, a chronic inflammatory autoimmune skin condition that causes painful lesions primarily on her legs and feet, making it difficult for her to dress and walk. Id. ¶ 21.
At the DA's Office, Murray's direct supervisor was Concetta Petrillo (deputy bureau chief), who is white; Petrillo's two supervisors were Odalys Alonso (executive assistant district attorney) and Rene Aponte (bureau chief of the desk appearance unit), both of whom are Hispanic. Id. ¶¶ 32-34. Petrillo and Alonso are close friends who attended school together. Id. ¶ 36. The FAC alleges that Alonso and Aponte favor Hispanic and white employees over African American employees. Id. ¶ 38.
2. Murray's Employment from July 2020 to September 2023
To assist the reader in navigating the FAC's complex and at times overlapping factual allegations, the Court has distilled from the Complaint the following largely chronological overview of Murray's experiences at the DA's Office between July 2020 and her departure in September 2023-the period on which the FAC focuses.
a. First Race Discrimination Complaint (July 2020)
In July 2020, Murray filed an Equal Employment Opportunity (“EEO”) complaint with the DA's Office, alleging she had been denied a promotion based on her race. Id. ¶ 39. On January 28, 2021, an EEO Officer indicated to Murray that her claim was unsubstantiated, without explaining her right to appeal. Id. ¶¶ 40-41. Murray later obtained documents indicating that the stated reasons for denying her promotion were budget constraints and the lack of need for the position. Id. ¶ 42.
b. FLSA Lawsuit and Denial of Schedule Accommodation (July 2021)
On July 7, 2021, Murray filed a lawsuit in this District against defendants for unpaid overtime wages under the FLSA, which she served on July 13, 2021. Id. ¶¶ 50-51; see also id., Ex. B. The lawsuit contained one cause of action, seeking unpaid wages for the period of April 2020 through April 2021, in which Murray allegedly worked more than 40 hours a week due to the pressures of the COVID-19 pandemic. See Dkt. 1 ¶¶ 28-31, 42-47, Murray v. City of New York, 21 Civ. 5835 (ALC) (VF) (S.D.N.Y.) [hereinafter, “2021 Compl.”]. In February 2022, Murray and defendants settled the lawsuit, under a written Settlement Agreement, which was approved by the Court on May 19, 2022. FAC ¶ 63; see also id., Ex. C.
“On a motion to dismiss, a court may take judicial notice of related lawsuits, judicial decisions, and litigation filings.” Edwardo v. Roman Cath. Bishop, 579 F.Supp.3d 456, 465 n.7 (S.D.N.Y. 2022), aff'd, 66 F.4th 69 (2d Cir. 2023). The Court thus takes judicial notice of the filings in Murray's 2021 lawsuit, “not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings.” Actava TV, Inc. v. Joint Stock Co. “Channel One Russia Worldwide," No. 18 Civ. 6626 (ALC), 2023 WL 2529115, at *3 (S.D.N.Y. Mar. 15, 2023) (citation omitted).
The parties dispute whether the Settlement Agreement released defendants from all claims under the FLSA or only wage and hour claims. The Court resolves that dispute infra.
On July 16, 2021, Murray requested a 30-minute schedule change to accommodate her childcare obligations. Id. ¶ 53. Petrillo denied that request, despite Murray's having prevailed on a union grievance concerning the matter. Id. Defendants had previously approved two of her schedule change requests, in February 2018 and early-to-mid 2019, without requiring documentation or approval from human resources (“HR”) or EEO, id. ¶¶ 55-57, and Petrillo herself had previously approved schedule change requests for other employees, id. ¶ 54, including Tatiana Avila, a Hispanic coworker of Murray's, who received approval for a schedule change request to accommodate childcare obligations in August 2019, id. ¶ 58. A few months later, in October 2021, Petrillo approved a schedule change request for a white coworker of Murray's, Teressa Caiola, to accommodate her childcare obligations. Id. ¶¶ 59-60.
c. Denial of Promotion and Transfer of Duties (October 2021)
On October 6, 2021, Adalgisa Mena, a Hispanic woman, was transferred to the administrative supervisor role in the DAT Unit without an interview, contrary to the DA's Office's usual practices. Id. ¶ 43. Mena was transferred into the DAT Unit as a result of a substantiated internal EEO complaint that Mena had given preferential treatment to Hispanic employees. Id. ¶ 44. Murray claims she was more qualified for the position but was denied the opportunity to apply or interview for it because of her race. Id. ¶¶ 46-49. After Mena's transfer, some of Murray's duties and responsibilities were reassigned to Mena. Id. ¶ 45.
d. Second Racial Discrimination Complaint, Negative Performance Evaluation, Reduction in Workload and Denial of Training (January - December 2022)
On January 27, 2022, Murray filed a charge of discrimination based upon race with the Equal Employment Opportunity Commission (“EEOC”). Id. ¶¶ 61-62.
In July 2022, Murray received an annual evaluation for the period of May 1, 2021 to April 30, 2022, drafted by Petrillo. Id. ¶ 65. Murray's score of 85 points was 14 points lower than her previous evaluation, but she had not received any feedback about declining productivity or poor work performance. Id. ¶¶ 65-67.
Throughout 2022, Murray's caseload was reduced to two to six cases per week, compared to 15 to 18 for other employees. Id. ¶¶ 95-96. Beginning around June 2022, Murray's requests for training on case drafting were denied, while other employees received such training. Id. ¶¶ 97-98.
e. Denial of Medical Leave and Childcare Accommodation (January 2023)
In October 2022, Murray's chronic skin condition grew more severe, and her physician prescribed a new treatment regimen, with visits to the doctor's office required two to three times per week. Id. ¶ 70. In early January 2023, having ignored an email from Murray that requested authorization to leave work early, Petrillo threatened to discipline Murray for failing to obtain such authorization. Id. ¶ 71.
On January 19, 2023, Murray requested to leave work early on February 1 and 8, 2023 for medical appointments. Id. ¶ 72. She also requested a shift change enabling her to leave 30 minutes early twice a week between January 24, 2023 and February 3, 2023 to attend school with her children. See id. ¶ 72. Petrillo initially approved the medical request but denied the schedule shift, referring Murray to HR and EEO. Id. ¶ 73. An EEO officer informed Murray that the DA's Office did not accommodate employees for school reasons, but that a manager could make the accommodation “in good faith.” Id. ¶ 75. In 2018 or 2019, a white coworker of Murray's, Netanya Pierrot, requested and received a schedule change to accommodate school attendance. Id. ¶ 74.
On January 24, 2023, Petrillo sent an email to Murray revoking her prior approval to leave work early for medical appointments, denying any other schedule change she requested, and suggesting Murray transfer to another unit. Id. ¶ 76. Petrillo, in contrast, frequently approved leave for other employees in Murray's unit. Id. ¶ 77. For example, Petrillo approved nine weeks of vacation in three-week intervals for Victor Toledo and Rosa Salcedo, both Hispanic coworkers of Murray's. Id. ¶ 78.
f. Disciplinary Actions and Transfer (February and March 2023)
On February 15, 2023, Murray filed a charge against defendants with the New York State Division of Human Rights (the “NYS Division of Human Rights”), alleging discrimination based upon familial status. Id. ¶ 79. Later that month, Murray received a notice reprimanding her for her excessive lateness based on events allegedly occurring in December 2022, which she was required to sign and return to Petrillo. Id. ¶ 80. On March 8, 2023, Murray entered Petrillo's office early in the morning to leave the signed warning, allegedly with Petrillo's consent. Id. ¶¶ 82-83. In March 2023, after a complaint by Petrillo about Murray having entered her office, Murray received a formal written warning. Id. ¶ 89. In April 2023, Murray was transferred to a different department with a demotion in duties, a lesser title (trial preparation assistant), and a changed work schedule that interfered with her childcare obligations. Id. ¶¶ 92-93, 99.
g. FMLA Leave Request, Alleged Interference, and Murray's Resignation (March to September 2023)
On March 22, 2023, Murray requested intermittent FMLA leave for the same treatment of her chronic skin condition. Id. ¶ 100. At first, HR approved Murray's eligibility to take FMLA leave. Id. ¶ 101. Murray provided the necessary documentation from her physician, plus information regarding future appointments. See id. ¶¶ 103,105. In one letter Murray provided, her physician wrote that her appointments would be scheduled based on availability and subject to change, “typically without prior notice,” id. ¶ 106, that the physician could provide Murray only with same-week appointment dates and times, and that such dates could “unexpectedly change,” id. ¶ 107. The DA's Office, however, continued to request that Murray submit the dates and times of all of her treatments six months in advance. Id. ¶ 106.
On May 11, 2023, defendants denied Murray's request for intermittent FMLA leave because of her failure to provide documentation as to the timing of future appointments. Id. ¶ 108. As a result, Murray was forced to use sick leave, personal leave, and leave without pay to obtain treatment, subjecting her to potential discipline, negative performance evaluations, loss of attendance bonuses, and a reduced pension. Id. ¶¶ 108-14.
Murray ultimately felt she had no choice but to resign from her employment at the DA's Office. On September 22, 2023, she resigned. Id. ¶¶ 118-19.
B. Relevant Procedural History
On November 14, 2023, Murray filed the Complaint. Dkt. 1. On February 13, 2024, defendants filed a motion to dismiss. Dkt. 12. That same day, the Court required Murray to either amend her complaint or oppose defendants' motion by March 5, 2024, warning Murray that “[n]o further opportunities to amend will ordinarily be granted.” Dkt. 13.
On March 4, 2024, Murray filed the FAC. Dkt. 14. On April 4, 2024, defendants again filed a motion to dismiss, and a memorandum of law in support. Dkt. 17 (“Def. Br.”). On May 16, 2024, Murray opposed the motion. Dkt. 21 (“Pl. Br.”). On June 17, 2024, defendants filed a reply brief. Dkt. 22 (“Def. Reply Br.”).
II. Applicable Legal Standards
To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint is properly dismissed where, as a matter of law, “the allegations in a complaint, however true, could not raise a claim of entitlement to relief.” Id. at 558. When resolving a motion to dismiss, the Court must assume all well-pleaded facts to be true, “drawing all reasonable inferences in favor of the plaintiff.” Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012).
III. Discussion
Defendants argue that the FAC's claims are procedurally barred and substantively deficient. The Court considers each argument in turn.
A. Procedural Bars Asserted by the Defense
Defendants contend that the FAC's (1) FLSA claims are barred by the Settlement Agreement that Murray and the City entered into to resolve her July 2021 lawsuit, and (2) Title VII, NYCHRL, and FMLA claims are untimely. These arguments largely fail.
1. The Settlement Agreement
Defendants argue that Murray's FLSA claims are at least partly barred by the parties' Settlement Agreement resolving Murray's July 2021 lawsuit. Def. Br. at 7. They rely on a clause in the “Payment and Distribution” section of the agreement, which reads, in pertinent part, “Defendants shall... pay or cause to be paid to Plaintiff $8,000.00 to resolve all claims for FLSA damages allegedly accruing from April 1, 2020 through the date the Court issues an order approving this settlement.” Settlement Agreement ¶ 2.1 (emphasis added). Because the court approved the settlement on May 19, 2022, FAC ¶ 63; see also Dkt. 21, Murray v. City of New York, 21 Civ. 5835 (ALC) (VF) (S.D.N.Y.), defendants argue that Murray is barred from asserting FLSA claims in this action, or at least those claims that accrued before that date.
That argument does not assist defendants. Insofar as the Settlement Agreement referred to “claims for FLSA damages,” that term must be understood in the context of the 2021 lawsuit from which it arose. In that lawsuit, Murray asserted one wage and hour claim under the FLSA, related to defendants' alleged failure to pay her overtime wages between April 2020 and April 2021, as the DA's Office dealt with the COVID-19 pandemic. See 2021 Compl. ¶¶ 42-47. And, in provisions other than the one defendants cite, the Settlement Agreement makes clear that it is limited to wage and hour claims. The agreement states that it covers “all wage and hour claims asserted in the Lawsuit, and all federal, state, and/or local statutory wage and hour claims that could have been asserted” over the relevant time period. Id. ¶ 3.1 (emphasis added). The agreement also refers to Murray's prior allegations of a “failure to pay overtime compensation” under the FLSA as the “Released Claims.” Id. ¶ 1.2.
In this separate and subsequent lawsuit, however, Murray does not bring wage and hour claims, including under the FLSA. The FAC's sole FLSA claim here, as noted, is a retaliation claim. It alleges that, after Murray filed her lawsuit on July 7, 2021, defendants retaliated against her in various ways: by denying her schedule accommodations on July 16, 2021; by reducing her caseload throughout 2022; by denying her request for training in June 2022; and by issuing a lower performance evaluation for her in July 2022 relative to the prior year. FAC ¶¶ 53, 65-67, 95-98. The Settlement Agreement cannot reasonably be read to reach those allegedly retaliatory acts. The agreement does not reference retaliation claims, even implicitly; the claims it references are those brought in the 2021 litigation, which did not include retaliation; and, in any event, some of the retaliatory acts that Murray alleges here post-date the period for which the Settlement Agreement affords coverage (up until May 19, 2022, when the court approved the settlement).
Under general principles of contract law, to which settlement agreements are subject, Collins v. Harrison-Bode, 303 F.3d 429, 433 (2d Cir. 2002), defendants' bid to block the FAC's claims based on the Settlement Agreement therefore must fail. “[A] release may not be read to cover matters which the parties did not desire or intend to dispose of.” Consol. Edison, Inc. v. Ne. Utilities, 332 F.Supp.2d 639, 647 (S.D.N.Y. 2004); see also Enock v. Nat'l Westminster Bankcorp, Inc., 641 N.Y.S.2d 27, 28 (1st Dep't 1996) (“[I]n the absence of a showing that a specified matter was in dispute at the time a general release was given, the release cannot be held to bar the releasor's rights as to such matter.”). Indeed, because releases in settlement agreements often contain recycled boilerplate language, “courts applying New York Law have more carefully scrutinized the context and language used in releases to ascertain whether a given dispute or transaction falls within a given release's scope.” Barshay v. Naithani, No. 20 Civ. 8579 (KPF), 2023 WL 2051170, at *9 (S.D.N.Y. Feb. 16, 2023), aff'd, No. 23-382, 2023 WL 8708424 (2d Cir. Dec. 18, 2023). “The scope of a release turns on the controversy being settled and the purpose for which the release was actually given.” ASI Sign Sys., Inc. v. Architectural Sys., Inc., No. 98 Civ. 4823 (SAS), 1999 WL 553825, at *5 (S.D.N.Y. July 29,1999). The scope of the controversy the Settlement Agreement resolved entails wage and hour claims spanning April 1, 2020 and May 5, 2022. See Settlement Agreement ¶ 1.2 (defining the “Released Claims” as plaintiffs “allegations .. . regarding an asserted failure to pay overtime compensation in compliance with the [FLSA]”). It did not purport to resolve retaliation claims, nor were retaliation claims ever at issue in that litigation. See id.; see also 2021 Compl. ¶¶ 4247. There is no overlap between the overtime claims at issue in the Settlement Agreement and the retaliation claims at issue here.
For much the same reasons, defendants' argument that the FLSA retaliation claims are precluded because they were not included in a carve-out clause in the Settlement Agreement entitled, “Release and Covenant Not to Sue,” fails. Def. Reply Br. at 2. That provision expressly excluded from coverage discrimination and retaliation claims under Title VII, the NYCHRL, and the NYSHRL. Settlement Agreement ¶ 3.1. That the agreement expressly excludes discrimination and retaliation claims under Title VII, the NYCHRL, and the NYSHRL, Settlement Agreement ¶ 3.1, does not imply that discrimination and retaliation claims under other statutes are included within its purview. That the clause does not reference the FLSA is not enough to negate Settlement Agreement's evident purpose: to settle Murray's wage and hour claims, and only those claims. Cf. Patos v. Long Island Living Ctr., LLC, 171 N.Y.S.3d 908, 908 (2d Dep't 2022) (release inapplicable to claim for unpaid wages, despite broad language covering “all actions ... whatsoever,” where agreement titled “release for personal injury claim,” and release related to personal injuries sustained by plaintiff); Mandal v. City of New York, No. 02 Civ. 1234 (WHP) (FM), 2008 WL 754666, at *3 (S.D.N.Y. Mar. 17, 2008) (release inapplicable to claim for particular arrest, despite broad language covering “all claims which were or could have been alleged ... in the aforementioned action arising out of the events alleged,” where earlier litigation related solely to earlier arrest); In re Actrade Fin. Techs., Ltd., 424 B.R. 59, 66-71 (Bankr. S.D.N.Y. 2009) (release inapplicable to claim for particular bond sales, despite broad language covering “any and all claims, demands, rights, actions or causes of action,” where release did not refer to those particular sales, and included no specific language as to a “general” or “global” release). Indeed, had the Settlement Agreement purported to resolve such claims, the court would have been required to reject it under Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199 (2d Cir. 2015), which requires judicial review of FLSA settlements. See Gurung v. White Way Threading LLC, 226 F.Supp.3d 226, 228 (S.D.N.Y. 2016) (“[I]n FLSA cases, courts in this District routinely reject release provisions that ‘waive practically any possible claim against the defendants, including unknown claims and claims that have no relationship whatsoever to wage-and-hour issues.'” (citation omitted)).
The Court thus rejects defendants' argument that the Settlement Agreement precludes Murray's FLSA retaliation claim.
2. Statutes of Limitations
Defendants next argue that Murray's claims are partly barred by the statutes of limitations under the NYCHRL, FMLA, and Title VIL Def. Br. at 7.
Neither the NYCHRL nor FMLA bar any of these claims. The statute of limitations for claims under the NYCHRL is three years. Herrington v. Metro-N Commuter R. Co., 988 N.Y.S.2d 581 (2014). Because Murray filed this action on November 14, 2023, any claims arising from conduct before November 14, 2020 would be barred. But the first adverse action the FAC alleges occurred in July 2021. See FAC ¶ 53 (July 16, 2021 denial of schedule change). As such, the NYCHRL's statute of limitation does not bar any NYCHRL claims.
So too for the FMLA. “To be timely, suits under the FMLA must be filed within two years of the last occurrence constituting an alleged violation of the act, unless the violation was ‘willful,' in which case the limitations period is extended to three years.” Higgins v. NYP Holdings, Inc., 836 F.Supp.2d 182, 191 (S.D.N.Y. 2011). Here, even assuming arguendo that the two-year limitations period applied, Murray's claims would be barred only to the extent they arose from conduct before November 14, 2021. But Murray first sought FMLA leave on March 22, 2023. See FAC ¶ 100. Her FMLA claim is thus also timely.
Title VII does impose a time limit on Murray's claims, but it permits claims based on certain alleged adverse actions to proceed. Before a plaintiff can file suit under Title VII, she “must file a complaint with the EEOC within 300 days of the alleged discriminatory act.” Fitchett v. City of New York, No. 18 Civ. 8144 (PAE), 2019 WL 3430726, at *5 (S.D.N.Y. July 30, 2019). Because Murray filed her charge of racial discrimination with the EEOC on January 27, 2022, defendants contend that her Title VII claim cannot cover any conduct after that date, or more than 300 days before (i.e., April 2, 2021). Def. Br. at 8. Murray agrees, but she represents that her Title VII claim solely focuses on the transfer of Mena into a position for which Murray was allegedly qualified, and on the ensuing shift in Murray's responsibilities, in October 2021. Pl. Br. at 8. Because that conduct occurred between April 2, 2021 and January 27,2022, claims based on it are not barred.
To be sure, the FAC includes allegations of other potentially discriminatory conduct that occurred after January 27, 2022. These allege a denial of schedule accommodations and leave to Murray in July 2021 and January 2023 which were granted to non-African American employees, FAC ¶¶ 53-60, 72, 74, 76, 78; a reduction of Murray's caseload relative to her peers “throughout 2022,” id. ¶¶ 95-96; and the denial of training granted to her peers beginning in June 2022, id. ¶¶ 97-98. But Murray concedes that these allegations cannot serve as predicate acts for her Title VII claim. Pl. Br. at 8. Insofar as such can still serve as “background evidence in support of [her] timely claim,” the Court so considers them in this decision, without prejudice to the parties' rights to argue, closer to trial, whether evidence of such allegations is properly admitted. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,113 (2002); see also Jute v. Hamilton Sundstrand Corp., 420 F.3d 166,176-77 (2d Cir. 2005) (“[R]elevant background evidence ... may be considered to assess liability on the timely alleged act.”).
Although this rule more often is invoked to enable consideration of allegations predating the limitations period, it “likewise permits reference to evidence of subsequent acts or practices.” Rathbun v. Autozone, Inc., 361 F.3d 62, 76 (1st Cir. 2004); see also Freeman v. Madison Metro. Sch. Dist., 231 F.3d 374, 382 (7th Cir. 2000) (“The last date of the allegedly discriminatory . conduct is not a bright line beyond which the conduct of the employer is no longer relevant in a discrimination case.”).
Accordingly, the Court-with Murray's present consent-narrows the basis for the FAC's claim under Title VII to the denial of a promotion and shift in her responsibilities between April 2, 2021 and January 27, 2022, while considering its allegations as to later discriminatory conduct as germane to the adequacy of its pleading of discriminatory intent. Kurtanidze v. Mizuho Bank, Ltd., No. 23 Civ. 8716 (PAE), 2024 WL 1117180, at *11 (S.D.N.Y. Mar. 13, 2024).
B. Racial Discrimination Claims
The FAC asserts claims for racial discrimination under Title VII and the NYCHRL. The Court considers each claim in turn.
1. Title VII
a. Legal Principles
Discrimination claims under Title VII are analyzed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir. 2015). The plaintiff bears the initial burden of establishing a prima facie case of discrimination. See Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008). To do so, the plaintiff must show that “(1) he belonged to a protected class; (2) he was qualified for the position he held; (3) he suffered an adverse employment action; and (4). .. the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent.” Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012) (quoting Holcomb, 521 F.3d at 138). The burden of establishing a prima facie case in an employment discrimination case is “minimal.” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); see also Lenzi v. Systemax, Inc., 944 F.3d 97, 107 (2d Cir. 2019).
The Second Circuit has held that “while a discrimination complaint need not allege facts establishing each element of a prima facie case of discrimination to survive a motion to dismiss, it must at a minimum assert nonconclusory factual matter sufficient to nudge its claims across the line from conceivable to plausible to proceed.” EEOC v. Port Auth., 768 F.3d 247, 254 (2d Cir. 2013) (cleaned up). “[A]bsent direct evidence of discrimination, what must be plausibly supported by facts alleged in the complaint is that the plaintiff is a member of a protected class, was qualified, suffered an adverse employment action, and has at least minimal support for the proposition that the employer was motivated by discriminatory intent.” Littlejohn v. City of New York, 795 F.3d297, 311 (2d Cir. 2015).
b. Application
As narrowed by the statute of limitations, Murray's Title VII claim focuses solely on a discrete act in October 2021: the transfer into the DAT Unit of Mena, a Hispanic woman, as an administrative supervisor. FAC ¶¶ 43-48. The FAC alleges that (1) Murray was more qualified for this role than Mena, who did not have any experience in the DAT Unit, but that Murray was not given notice of the vacancy or an opportunity to apply for the role, and (2) Mena's transfer led to a reduction in Murray's responsibilities. Id. The FAC pleads that Petrillo was the decision maker for employment issues in the DAT Unit, subject to Alonso's supervision. Id. ¶ 35. The FAC alleges that Petrillo disfavors African American employees. Id. ¶ 38.
The first three elements of Murray's prima facie case are undisputed for purposes of this motion. Defendants do not dispute that Murray (1) is a member of a protected class as an African American, (2) was qualified for the promotion, and (3) suffered an adverse employment action when she was not promoted. See Treglia v. Town of Manilas, 313 F.3d 713, 720 (2d Cir. 2002) (recognizing discriminatory failure to promote as “within the core activities encompassed by the term adverse actions”).
Defendants make a narrow argument as to the fourth element of Murray's prima facie case-whether the facts support an inference of discriminatory intent. Because Petrillo made the relevant decision, defendants argue, the alleged racial animus of Alonso and Aponte is irrelevant. And, they argue, the FAC does not supply a reason to believe that Petrillo, who is white, had a discriminatory motive to prefer Mena, a Hispanic woman, over Murray, an African American woman. Def. Br. at 15-16.
At the pleading stage, that argument fails. Under Title VII, “[t]he necessary inference [of discrimination] may be derived from a variety of circumstances, including ‘the employer's criticism of the plaintiffs 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.*” Detouche v. JTR Transp. Corp., No. 17 Civ. 7719 (JCM), 2020 WL 7364116, at *10 (S.D.N.Y. Dec. 14, 2020) (quoting Leibowitz v. Cornell Univ., 584 F.3d 487, 502 (2d Cir. 2009)). Murray has sued her employer as an institution. Her FAC fairly pleads facts that are sufficient to give rise to an inference of discriminatory intent on her employer's part, insofar as the facts pled support that she was treated “less favorably than a similarly situated employee outside [her] protected group.” Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000). “An employer's choice of a less qualified employee not from the plaintiffs protected class raises an inference of discrimination sufficient to establish a prima facie case”-and sufficient to survive a motion to dismiss. Butts v. N.Y.C. Dep't of Hous. Pres. & Dev., No. 00 Civ. 6307 (KMK), 2007 WL 259937, at *9 (S.D.N.Y. Jan. 29, 2007), aff'd, 307 Fed.Appx. 596 (2d Cir. 2009). Here, the FAC pleads that Murray was more qualified than Mena for the Administrative Supervisor role, as a result of her lengthy tenure in the DAT Unit. The FAC thereby plausibly pleads discriminatory intent. See, e.g, Dobney v. Walt Disney Co., No. 23 Civ. 5380 (JPO), 2024 WL 325336, at *4 (S.D.N.Y. Jan. 29, 2024) (primafacie case pled based on allegation that plaintiff had greater seniority at employer than successful applicant); Allen v. N.Y.C. Dep'tof Env'tProt., 51 F.Supp.3d 504, 513 (S.D.N.Y. 2014) (prima facie case pled based on allegation that plaintiff had more years of experience than successful applicants); Butts, 2007 WL 259937, at *9 (prima facie case pled based on allegation that plaintiff was replaced by person “who had fewer qualifications and less experience”). That is so even putting aside the allegations of racial animus pled on the part of persons (Alonso and Aponte) not alleged to have made the promotion decision.
The Court thus denies defendants' motion to dismiss the FAC's Title VII claim.
2. NYCHRL
Insofar as the FAC pleads a plausible Title VII claim, it necessarily pleads a plausible claim under the NYCHRL. That is because, although the NYCHRL employs the same burden shifting framework as Title VII, it is subject, as to some elements, to more liberal pleading and proof standards, while not being more demanding as to any. See Deveaux v. Skechers USA, Inc,, No. 19 Civ. 9734 (DLC), 2020 WL 1812741, at *5 (S.D.N.Y. Apr. 9, 2020); see also Levy v. Legal Aid Soc 'y, 408 F.Supp.3d 209, 217 (E.D.N.Y. 2019) (“NYCHRL claims are to be reviewed more liberally than Title VII claims, and the provisions of the NYCHRL must be construed broadly in favor of plaintiffs alleging discrimination.” (quoting Johnson v. Andy Frain Servs., Inc., 638 Fed.Appx. 68, 71 (2d Cir. 2016)). Thus, because the FAC has pled a failure to promote claim based upon Murray's race under Title VII, its “similar claim under the broader NYCHRL also necessarily survives.” Farmer v. Shake Shack Enters., LLC, 473 F.Supp.3d 309, 327 (S.D.N.Y. 2020) (citing Levy, 408 F.Supp.3d at 217) .
Because NYCHRL claims are not subject to Title Vil's EEOC charge requirement, the FAC's factual allegations about events after October 2021 may serve as bases for liability under the NYCHRL. See Herrington, 988 N.Y.S.2d at 581. These include that defendants gave Murray a reduced caseload, denied her leave and schedule accommodations requests, denied her access to training, and constructively discharged her. See FAC ¶ 156.
The Court thus denies defendants' motion to dismiss the FAC's NYCHRL claim.
C. Retaliation, Interference, and Failure to Accommodate Claims
The FAC also brings claims for FMLA interference and retaliation, FLSA retaliation, and retaliation and failure to accommodate a disability under the NYCHRL.
1. FLSA Retaliation
a. Legal Principles
The FLSA makes it unlawful to “discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under [the FLSA].” 29 U.S.C. § 215(a)(3). FLSA retaliation claims are subject to the McDonnell Douglas framework. See Dunn v. Sederakis, 143 F.Supp.3d 102,109 (S.D.N.Y. 2015). A prima facie case of retaliation is established by “(1) participation in protected activity known to the defendant, like the filing of a FLSA lawsuit; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action.” Mullins v. City of New York, 626 F.3d 47, 53 (2d Cir. 2010). “An employment action disadvantages an employee if it well might have dissuaded a reasonable worker from making or supporting similar charges.” Id. (cleaned up) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). “A plaintiff can establish a causal connection that suggests retaliation by showing that protected activity was close in time to the adverse action.” Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009) (citing Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 27374 (2001)).
b. Application
Murray filed her FLSA lawsuit on July 7, 2021, and the parties entered into a court-approved settlement on May 19, 2022. FAC ¶¶ 50, 63. Commencing a lawsuit is a protected activity under the FLSA, see Mullins, 626 F.3d at 47, and the FAC pleads that defendants knew of that lawsuit, FAC ¶ 62.
In moving to dismiss, defendants argue that the FAC does not plead a causal connection between the filing of her lawsuit and any later adverse employment action. Def. Br. at 12-13. As defendants note, the FAC does not identify any statement or writing by a defendant employee connecting these events. Murray therefore argues that an inference of causation instead arises from the temporal proximity of events. She contends that the adverse actions pled-the July 16, 2021 denial of her schedule change request; the reduction during 2022 of her caseload relative to other employees; the June 2022 denial of her request for training on case drafting; and her June 2022 underwhelming performance evaluation, FAC ¶¶ 53, 65-67, 95-98-all occurred close enough in time to her lawsuit's filing to give rise to an inference of causation. Pl. Br. at 17-18.
“The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be ‘very close.'” Breeden, 532 U.S. at 273. The Second Circuit “has not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action.” Gorman-Bakos v. Cornell Co-op Extension, 252 F.3d 545, 554 (2d Cir. 2001). Although “there is no bright-line rule on temporal proximity, [the Circuit] has held that a one to two month period between the protected activity and adverse employment action is generally sufficient to make a prima facie causation showing.” Rivera v. JP Morgan Chase, 815 Fed.Appx. 603, 608 (2d Cir. 2020) (summary order). “[C]ourts in this Circuit have [thus] consistently held that a passage of more than two months between the protected activity and the adverse employment action does not allow for an inference of causation.” Springs v. City of New York, No. 19 Civ. 11555 (AKH), 2020 WL 3488893, at *6 (S.D.N.Y. June 26, 2020) (citation omitted).
Applying those familiar principles, the FAC states a viable claim with respect to one adverse action. It alleges that, three days after being served with Murray's lawsuit on July 13, 2021, FAC ¶ 51, defendants denied her request for a 3 0-minute schedule change to accommodate her childcare needs, id. ¶ 53. Three days is easily within this Circuit's informal guidance as to temporal proximity, and defendants do not dispute that the denied schedule change was an adverse employment action. Cf White, 548 U.S. at 69 (“A schedule change in an employee s work schedule may make little difference to many workers, but may matter enormously to a young mother with school-age children.”). The FAC's FLSA retaliation claim, to the extent based on the denial of her request for a schedule change, therefore survives. See, e.g., Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845 (2d Cir. 2013) (three weeks between the protected activity and adverse action “sufficiently short to make a prima facie showing of causation indirectly through temporal proximity”); Reed v. A. W. Lawrence & Co., Inc., 95 F.3d 1170,1178 (2d Cir. 1996) (12 days between protected activity and adverse action sufficiently close to infer causation); Vogelfang v. Capra, 889 F.Supp.2d 489, 518 (S.D.N.Y. 2012) (three days between protected activity and adverse action sufficiently close to infer causation).
The FAC does not, however, plead temporal proximity as to the other adverse actions it alleges. All others, as alleged, occurred in 2022, more than six months after Murray filed her FLSA lawsuit. The Court thus narrows the FLSA retaliation claim to exclude these acts. See, e.g., Brown v. City of New York, No. 14 Civ. 2668 (PAE), 2014 WL 5861995, at *3 (S.D.N.Y. Nov. 12, 2014), aff'd, 622 Fed.Appx. 19 (2d Cir. 2015) (no inference of causation where adverse action occurred five months after protected activity); Williams v. City of New York, No. 11 Civ. 9679 (CM), 2012 WL 3245448, at *11 (S.D.N.Y. Aug. 8, 2012) (no inference of causation where adverse action occurred two months after protected activity); Mazurkiewicz v. N.Y.C. Health & Hosps. Corp., No. 09 Civ. 5962 (WHP), 2010 WL 3958852, at *6 (S.D.N.Y. Sept. 16, 2010) (no inference of causation where adverse action occurred 3.5 months after protected activity).
Murray attempts to salvage these aspects of her FLSA retaliation claim on the ground that she settled that claim in May 2022. But temporal proximity is based on the time “between an employer's knowledge of protected activity and an adverse employment action,” Breeden, 532 U.S. 268, at 273 (emphasis added), and the FAC does not allege that defendants acquired any additional knowledge of protected activity on Murray's part after her lawsuit was filed in July 2021. See Dotson v. City of Syracuse, 688 Fed.Appx. 69, 73 (2d Cir. 2017) (“[I]n order to find retaliation proven by temporal proximity, the ... relevant starting point is the time of the employee's protected activity-here the filing of the lawsuit, not its ultimate resolution.”); Williams v. Metro N. R.R. No. 16 Civ. 1141 (LAK) (JCF), 2016 WL 4400307, at *3 (S.D.N.Y. Aug. 17, 2016), report and recommendation adopted, 2016 WL 5390904 (S.D.N.Y. Sept. 26, 2016) (“[C]ourts generally measure temporal proximity from the filing of a complaint of discrimination to the time an adverse action is taken.”); see also Redd v. N. Y.S. Div. of Parole, 923 F.Supp.2d 371, 389 (E.D.N.Y. 2012) (“[T]he Court seriously doubts that every single activity a plaintiff conducts in connection with an ongoing litigation can constitute a separate ‘protected activity' that would restart the causation clock; if that were true, just about any adverse employment action taken during a lengthy discrimination case could be considered the result of retaliatory animus.”).
The Court thus grants in part and denies in part the motion to dismiss the FLSA retaliation claim. That claim is limited to the denial of Murray's July 16, 2021 request for a schedule change.
2. FMLA Interference
a. Legal Principles
The FMLA gives eligible employees the right to take up to 12 work weeks per year of unpaid leave due to a serious health condition that prevents the employee from performing her work function. 29 U.S.C. § 2612(a)(1). An employer cannot “interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under” the statute. Id. § 2615(a)(1). To this end, “[t]he FMLA ‘creates a private right of action to seek both equitable relief and money damages against any employer (including a public agency) in any Federal or State court of competent jurisdiction' should that employer ‘interfere with, restrain, or deny the exercise of FMLA rights.” Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161,174 (2d Cir. 2006) (quoting Nevada Dep't of Human Res. v. Hibbs, 538 U.S. 721, 724-25 (2003)).
“To succeed on a claim of FMLA interference, 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.” Pollard v. N.Y. Methodist Hosp., 861 F.3d 374, 378 (2d Cir. 2017) (citation omitted). “[E]ven when an employee can demonstrate interference with her FMLA rights, the Act provides no relief unless the employee has been prejudiced by the violation.” Nikolakopoulos v. Macy's Inc., No. 20 Civ. 1641 (KPF), 2022 WL 3903595, at *24 (S.D.N.Y. Aug. 30, 2022) (citation omitted).
b. Application
Defendants contest the latter three prongs of Murray's prima facie case: whether she was entitled to FMLA leave, gave notice to her employer, and was denied benefits to which she was ultimately owed. Def. Br. at 9-11. The FAC adequately pleads the first two elements, but not the third.
i. Entitlement to leave
Under the FMLA, an employee is entitled to a total of 12 workweeks of leave during a 12-month period when “a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). Defendants argue that the FAC does not plead facts showing that Murray has a “serious health condition” which prevents her from performing the essential functions of her position. Def. Br. at 10.
That is wrong. The FMLA defines a “serious health condition” to include “an illness, injury, impairment, or physical or mental condition that involves ... continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). “Courts in this district have relied on Department of Labor [‘DOL'] regulations to determine whether a plaintiffs injury [or illness] satisfies the FMLA's definition of a ‘serious health condition.'” Banks v. McGlynn, Hays & Co., No. 21 Civ. 679 (JPO), 2022 WL 845752, at *2 (S.D.N.Y. Mar. 22, 2022) (citations omitted). Here, Murray argues that the following DOL regulation encompasses her condition of lichen planus:
(c) Chronic conditions. Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:
(1) Requires periodic visits (defined as at least twice a year) for treatment by a health care provider, or by a nurse under direct supervision of a health care provider;
(2) Continues over an extended period of time (including recurring episodes of a single underlying condition); and
(3) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).29 C.F.R. § 825.115(c). “Incapacity” is defined as “inability to work, attend school or perform other regular daily activities due to [a] serious health condition, treatment therefore, or recovery therefrom.” Id. § 825.113(b). Further, “[a]n employee who must be absent from work to receive medical treatment for a serious health condition is considered to be unable to perform the essential functions of the position during the absence for treatment.” Id. § 825.123(a).
As pled, lichen planus is “a chronic inflammatory autoimmune disorder” with “no known cure” which causes painful lesions on her legs and feet. FAC ¶¶ 20- 21. Beginning in October 2021, Murray's lichen planus became “more severe,” requiring recurring ultraviolet light treatment by her physician two to three times each week for at least three to six months. Id. ¶¶ 69-70,100-03. To make her appointments, Murray needed to leave work early, which prevented her from completing her assigned daily tasks. See id. ¶¶ 71-72, 100, 108, 115. In alleging these facts, the FAC plausibly pleads that Murray had a health condition that “[r]equire[d] periodic visits,” “[c]ontinue[d] over an extended period,” and “cause[d] episodic .. . incapacity.” 29 C.F.R. § 825.115(c). And defendants do not contend that the absences caused by Murray's need for medical treatment, as pled, were too trivial or insubstantial to interfere with work. On the contrary, as pled, Petrillo, before Murray's FMLA request, gave Murray a disciplinary warning for leaving work early for an appointment without authorization. FAC ¶ 71. That Murray was able to work at other times does not preclude her claim of entitlement to FMLA leave. See, e.g., Barnett v. Revere Smelting & Ref. Corp., 61 F.Supp.2d 378, 384 (S.D.N.Y. 1999) (plaintiff whose condition would “cause him to miss work on occasion” pled “serious health condition”); see also Jones v. C & D Techs., Inc., 684 F.3d 673, 677 (7th Cir. 2012) (“an employee who receives treatment for a serious health condition is automatically considered to be unable to perform the functions of her position” during treatments).
The FAC thus plausibly pleads that Murray had a serious health condition entitling her to leave under the FMLA.
ii. Notice
Defendants next argue that Murray, as pled, did not give defendants adequate notice of her intention to take FMLA leave, because she did not provide them with the dates and times of all her requested dates of leave. Def. Br. at 10 (citing FAC at¶¶ 106-07).
But the FMLA does not require such dates and times to constitute notice. An employee is required to “provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave.” 29 C.F.R. § 825.302(c); see also Coutard v. Mun. Credit Union, 848 F.3d 102, 109 (2d Cir. 2017) (regulations are binding as to “the proper timing and contents of the notice that an employee is required to give an employer in order to take [FMLA] leave”). But “notice need only be given one time,” and “the employee [is to] advise the employer as soon as practicable if dates of scheduled leave ... were initially unknown.” 29 C.F.R. § 825.302(a). Implicit in this standard is the notion that, to be adequate, an employee's notice need not set out every single appointment dates and time during the employee's requested leave. See Render v. FCA US, LLC, 53 F.4th 905, 915-16 (6th Cir. 2022), reh'g denied, No. 21-2851, 2022 WL 18431480 (6th Cir. Dec. 28, 2022) (employee need not “give formal ‘notice' each and every time he call[s] in to use his FMLA leave,” as “the regulation indicates that he [only] need[s] to meet the notice requirement when he first [seeks] approval for intermittent leave” (emphasis in original)).
Here, the FAC pleads that Murray requested intermittent FMLA leave on March 22, 2023, FAC ¶ 100, and provided defendants with medical records and “additional information regarding future appointments” from her physician, id. ¶¶ 103-04. On the facts pled, Murray thereby gave defendants sufficient information “to reasonably apprise [them] of [her] request to take time off for a serious health condition.” Miller v. Venator Grp., Inc., No, 00 Civ. 454 (HB), 2000 WL 648186, at *3 (S.D.N.Y. May 18, 2000); see also, e.g., Colombo v. E. Irondequoit Cent. Sch.,No. 07 Civ. 6270 (CJS), 2008 WL 4516235, at *2-3 (W.D.N.Y. Oct. 1, 2008) (complaint plausibly alleged notice where plaintiff gave employer doctor's note “indicating that she was unable to work”); Kamtaprassad v. Chase Manhattan Corp.,No. 00 Civ. 8834 (DLC), 2001 WL 1662071, at *6 (S.D.N.Y. Dec. 28, 2001) (complaint plausibly alleged notice where plaintiff gave employer note describing herself as “totally disabled” and included a “prediction” of date on which she could resume employment).
The FAC's allegations thus plausibly alleges that Murray gave adequate notice to defendants of her request for leave.
iii. Denial of benefits
Defendants finally argue that, as pled, Murray was not denied benefits owed to her under the FMLA. The FAC alleges that defendants denied Murray's FMLA request, forcing Murray to use sick leave, personal leave, and leave without pay to obtain treatment. FAC ¶ 108. It alleges that Murray's use of non-FMLA leave subjected her to potential discipline, negative performance evaluations, loss of attendance bonuses, and a reduced pension. Id. ¶¶ 109-14. Defendants argue that this fails to state a claim because the FAC does not plead that Murray ever experienced any of these harms, but merely identifies theoretical consequences. Def. Br. at 5.
On this point, defendants are correct. To adequately allege an interference claim, a complaint must plead not only that the plaintiffs request for FMLA leave was improperly denied, but that she was “harmed as a result of the violation. ” Smith v. Westchester County, 769 F.Supp.2d 448, 467 (S.D.N.Y. 2011); see also, e.g., Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002) (even where employer restrained employee's exercise of FMLA rights, the FMLA “provides no relief unless the employee has been prejudiced by the violation”). An interference claim will fail, for example, where an employee “received all the time she requested [as personal leave] and has not otherwise shown that her personal leave was somehow inferior to leave under the FMLA.” Blodgett v. 22 S. St. Operations, LLC, 828 Fed.Appx. 1, 5 (2d Cir. 2020). An employee can show that her personal leave was inferior to FMLA leave by alleging that the former triggered costs or consequences prohibited by the FMLA, such as disciplinary action. See, e.g, Katz, 2022 WL 1292262, at *4 (complaint adequately alleged harm where plaintiff was issued a disciplinary warning for talcing leave after improper denial of her FMLA request); Smith, 169 F.Supp.2d at 467 (complaint adequately alleged denial of benefits where (1) plaintiff's FMLA leave request was improperly denied, (2) he was placed on attendance review due to his absences, and (3) his work reinstatement was improperly blocked for failure to obtain medical clearance).
The FAC falls short of pleading actual harm. It instead speculates as to consequences Murray might have faced if she had stayed at the DA's Office. FAC ¶¶ 110-14. For example, the FAC states that using non-FMLA leave may subject employees to discipline or a lower performance rating, id. ¶¶ 110-11, but it does not allege that Murray ever experienced such consequences or was threatened with them. Likewise, it states that taking non-FMLA leave may negatively affect an employee's pension or attendance bonus, id. ¶¶ 112-13, it does not allege that Murray suffered such harms.
Because the FAC does not adequately plead prejudice from the denial of Murray's request for FMLA leave, the Court grants defendants' motion to dismiss its claim for FMLA interference. See Smith, 769 F.Supp.2d at 467 (dismissing FMLA claim due to failure to plead “specific harm” resulting from the denial of leave); see also Roberts v. Health Ass 'n, 308 Fed.Appx. 568, 570 (2d Cir. 2009) (upholding grant of summary judgment for defense because there [was] no evidence that the [FMLA] violation was prejudicial”).
3. FMLA Retaliation
a. Legal Principles
FMLA retaliation claims are also analyzed under the McDonnell Douglas burden-shifting framework. See Potenza v. City of New York, 365 F.3d 165, 167-68 (2d Cir. 2004). To establish a prima facie case, a plaintiff must establish that (1) she exercised rights protected under the FMLA; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of retaliatory intent. See id. at 168; Higgins, 836 F.Supp.2d at 194-95. A “materially adverse action” is “any action by the employer that is likely to dissuade a reasonable worker in the plaintiffs position from exercising his legal rights.” Millea v. Metro-North R.R. Co., 658 F.3d 154, 164 (2d Cir. 2011).
b. Application
Defendants argue that the FAC does not plead an adverse employment action resulting from Murray's request to take FMLA leave, as it alleges that she was ultimately granted non-FMLA leave without a materially adverse action being taken against her. Def. Br. at 12. Murray argues that the denial of her request, which forced her to use an alternative form of leave, was an adverse employment action, and that the FAC pleads that she was constructively discharged due to the “hardships” caused by using non-FMLA leave. Pl. Br. at 13.
For two reasons, Murray's argument fails. First, Murray “elides the distinction between an interference and a retaliation claim.” Prout v. Viadeck, 316 F.Supp.3d 784, 801 n.5 (S.D.N.Y. 2018). As the Second Circuit has explained:
In a general sense, an employee brings an “interference” claim when her employer has prevented or otherwise impeded the employee's ability to exercise rights under the FMLA. “Retaliation” claims, on the other hand, involve an employee actually exercising her rights or opposing perceived unlawful conduct under the FMLA and then being subjected to some adverse employment action by the employer. The two types of claims serve as ex ante and ex post protections for employees who seek to avail themselves of rights granted by the FMLA.Woods v. START Treatment & Recovery Ctrs., Inc., 864 F.3d 158,166, 168 (2d Cir. 2017) (cleaned up). Under this framework, the denial of Murray's request could give rise to an interference claim-insofar as it left Murray unable “to exercise [her] rights under the FMLA”- but not an “ex post” retaliation claim. Id. Murray does not cite authority for the proposition that the denial of an FMLA request for leave can be an adverse action taken in retaliation for the request itself.
Rivers v. New York City Housing Authority, 176 F.Supp.3d 229 (E.D.N.Y. 2016), is not to the contrary. That decision held that the denial of a request for FMLA leave can be an adverse employment action. See id. at 253. But it did not hold that the denial of leave can serve as an adverse action taken against the plaintiff for requesting leave in the first place. Rather, in Rivers, the complaint alleged that the plaintiffs request for FMLA leave had been denied in retaliation for separate First Amendment-protected activity. See id. at 234-39.
Second, the FAC fails to plead harm resulting from the denial of Murray's FMLA leave-the alleged retaliatory act. See Ragsdale, 535 U.S. at 89 (the FMLA “provides no relief unless the employee has been prejudiced by the violation”). As noted, even after defendants denied Murray's request for FMLA leave, Murray was able to rely on non-FMLA leave to attend her medical appointments, and the FAC does not plead concretely how Murray was harmed by having to use non-FMLA leave. The FAC thus fails to allege actions by defendants of a character “likely to dissuade a reasonable worker in the plaintiffs position from exercising his legal rights.” Millea, 658 F.3d at 164.
Accordingly, the Court dismisses the FAC's FMLA retaliation claim. See, e.g., Stanley v. City Univ. of N.Y,No. 18 Civ. 4844 (PAE), 2023 WL 2714181, at *23 (S.D.N.Y. Mar. 30, 2023), affd sub nom. Stanley v. Phelon, No. 23-731, 2024 WL 1453872 (2d Cir. Apr. 4, 2024) (dismissing for want of an adverse action where complaint pled only “petty slights [and] minor annoyances” as a result of protected activity, and did not make “specific, nonconclusory allegations” as to negative consequences for plaintiff for engaging in protected activity); cf. Kirkland-Hudson v. Mount Vernon City Sch. Disk, 665 F.Supp.3d 412, 470 (S.D.N.Y. 2023) (complaint pled adverse action where it alleged defendants came “onto [plaintiffs] property, knock[ed] on her door, le[ft] letters in her mailbox, [and] dr[ove] up and down the street in front of her home” to intimidate her).
The FAC conclusorily asserts that Murray was constructively discharged as a result of her request for FMLA leave, FAC ¶ 143, but it does not plead facts in support of this claim. Murray's brief opposing dismissal identifies hypothetical risks from taking non-FMLA leave, Pl. Br. at 15-16, but the FAC does not plead that any such risks came to pass.
4. NYCHRL Failure to Accommodate
a. Legal Principles
The NYCHRL forbids discrimination in the “terms, conditions or privileges of employment” because of an individual's “actual or perceived .. . disability.” N.Y.C. Admin. Code § 8-107(1)(a). To establish a prima facie claim for failure to accommodate under the NYCHRL, the plaintiff must show that she “(1) is a person with a disability under the meaning of the statute; (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.” Sivio v. Vill. Care Max, 436 F.Supp.3d 778, 790 (S.D.N.Y. 2020) (cleaned up). These provisions are to “be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws ... have been so construed.” Mihalikv. Credit Agricole Cheuvreux N. Am., 715 F.3d 102, 109 (2d Cir. 2013) (citation omitted).
b. Application
Murray argues that the denial of her FMLA request constituted a refusal to accommodate a disability under the NYCHRL.
This claim fails for the same reason her FMLA interference and retaliation claims fail: the FAC does not allege any adverse consequences to Murray as a result of having to take non-FMLA leave. FAC ¶¶ 110-14. Under the NYCHRL, employers have “discretion to choose among effective accommodations and [are] not required to provide a perfect accommodation, or even the accommodation most strongly preferred” by an employee. Wells v. Achievement Network, No. 18 Civ. 6588 (KPF), 2021 WL 810220, at *17 (S.D.N.Y. Mar. 2, 2021); see also Welch v. United Parcel Serv., Inc., 871 F.Supp.2d 164,188 (E.D.N.Y. 2012) (“[A]n employer need not accept the employee's preferred accommodation, even if reasonable, if another accommodation had already been made.”). Absent any allegation that Murray suffered harm as a result of being compelled to use non-FMLA leave, she cannot argue that the DA's Office failed to reasonably accommodate her disability. See, e.g., DiNapoli v. City of New York, No. 05 CIV. 10879 (WHP), 2008 WL 2695094, at *3 (S.D.N.Y. June 30, 2008) (defendant accommodated wheelchair-bound plaintiff as a matter of law by holding “the hearing in a wheelchair-accessible facility,” despite rejecting plaintiffs proposed accommodation of a “hearing by phone or mail”); Jaramillo v. Pro. Examination Serv., Inc., 544 F.Supp.2d 126, 131 (D. Conn. 2008) (defendant accommodated blind plaintiff as a matter of law by allowing her extended time on an examination and a live reader, despite rejecting plaintiffs proposed accommodation of a screen reader); Resnickv. 392 Cent. Park W. Condo., No. 07 Civ. 1988 (LBS), 2007 WL 2375750, at *2 (S.D.N.Y. Aug. 14, 2007) (defendant accommodated plaintiff who used a motorized scooter by ensuring access to property through an alternative route, despite rejecting plaintiff s proposed accommodation of a new automatic gate); see also Wendel v. New York, 574 F.Supp.2d 290, 305-06 (E.D.N.Y. 2008) (applying these precedents in the context of a motion to dismiss).
The Court thus grants defendants' motion to dismiss the FAC's NYCHRL failure-to-accommodate claim.
5. NYCHRL Retaliation
a. Legal Principles
To state a claim for retaliation under the NYCHRL, a plaintiff must allege that “(1) she participated in a protected activity known to defendants; (2) defendants took an action that disadvantaged her; and (3) a causal connection exists between the protected activity and the adverse action,” Taylor v. City of New York, 207 F.Supp.3d 293, 308 (S.D.N.Y. 2016) (cleaned up); see also N.Y.C. Admin. Code § 8-107(7). Unlike Title VII and the FLSA, the NYCHRL “does not require a plaintiff to establish that she incurred an ‘adverse employment action' in order to support a retaliation claim; rather, it requires only a showing that the event was ‘reasonably likely to deter a person from engaging in protected activity.'” Dillon v. Ned Mgmt., Inc., 85 F.Supp.3d 639, 661 (E.D.N.Y. 2015) (citing Rozenfeld v. Dep't of Design & Const., 875 F.Supp.2d 189, 208 (E.D.N.Y. 2012)). An employer is liable under the NYCHRL “if [he] was motivated at least in part by an impermissible motive.” Brightman v. Prison Health Serv., Inc., 970 N.Y.S.2d 789, 792 (2d Dep't 2013); see also Malena v. Victoria's Secret Direct, LLC, 886 F.Supp.2d 349, 362 (S.D.N.Y. 2012) (cleaned up).
b. Application
The FAC alleges that Murray participated in two relevant protected activities. First, on January 27, 2022, Murray filed a charge of discrimination based on race with the EEOC. FAC ¶¶ 61-62. Second, on February 15, 2023, Murray filed a charge of discrimination based on familial status with the NYS Division of Human Rights. Id. ¶ 79. And the FAC alleges that defendants took several actions that disadvantaged Murray. In June 2022, Murray requested training on case drafting, but her request, unlike those of her coworkers, was denied. See Id. ¶¶ 97-98. In July 2022, Murray received a worse annual evaluation than previously. See id. ¶¶ 6568. In January 2023, defendants denied Murray's requests for leave and a scheduling accommodation. See id. ¶¶ 76-78. In March and April 2023, defendants issued a verbal warning to Murray and transferred her to a different department, which resulted in a demotion. See id. ¶¶ 82-94. And in May 2023, Murray's request for FMLA leave was denied. See Id. ¶¶ 107-14.
Murray's March 22, 2023 request for intermittent FMLA leave, FAC ¶ 100, does not qualify as a protected activity under the NYCHRL, as the NYCHRL protects those who have “requested a reasonable accommodation under this chapter J N.Y.C. Admin. Code § 8-107(7), as opposed to under federal law, see Fernandez v. Windmill Distrib. Co., 159 F.Supp.3d 351, 367 (S.D.N.Y. 2016) (“Taking FMLA leave is not a protected activity within the meaning of the NYCHRL.”); see also Fasanello v. United Nations Int'l Sch., No. 19 Civ. 5281 (GHW), 2022 WL 861555, at *15 (S.D.N.Y. Mar. 23, 2022) (collecting cases).
Citing Mello v. Siena College, No. 15 Civ. 13 (GTS) (ATB), 2017 WL 1013077 (N.D.N.Y. Mar. 14, 2017), defendants argue that “negative performance evaluations or written warnings, without an accompanying change in the terms and conditions of employment, will not rise to the level of an adverse employment action.” Def. Br. at 18. But defendants ignore the fact that Murray need not allege an adverse employment action. Instead, under the NYCHRL, she need only allege that defendants “took an action that disadvantaged her.” Taylor, 207 F.Supp.3d at 308. The FAC's allegation-that Murray received a worse performance review due to her protected activity-meets that bar. See, e.g., Augustine v. Cornell Univ., No.. 14 Civ. 7807 (JPO), 2016 WL 894533, at *4 (S.D.N.Y. Mar. 8, 2016) (complaint's allegation that plaintiff received “negative performance reviews” due to plaintiffs protected activity sufficient to state retaliation claim under NYCHRL).
The FAC adequately pleads causation as to some but not all these actions. It relies solely on temporal proximity as a basis for inferring causation. See Pl. Br. at 24-25 (conceding this). As to causation, “courts apply the same temporal-proximity analysis to NYCHRL and NYSHRL retaliation claims as they do to [federal] claims.” Kraiem v. Jones Trading Institutional Servs. LLC, 571 F.Supp.3d 53, 60 (S.D.N.Y. 2021). Thus, the Court uses the same rule of thumb as it would under federal law, under which “a one-to two-month period between the protected activity and adverse employment action is generally sufficient to make a prima facie causation showing,” Rivera, 815 Fed.Appx. at 608, but the passage of more than two months generally “does not allow for an inference of causation,” Springs, 2020 WL 3488893, at *6 (citation omitted).
Applying those standards, the FAC's allegations as to the adverse actions in March and April 2023 state a claim, but the others do not. The denial of training (in June 2022) and the negative evaluation (in July 2022) occurred more than four months after Murray took her first protected activity: her January 2022 filing of a charge with the EEOC. See FAC ¶¶ 61-62.That passage of time is too long, without more, to support an inference of causation. See Kraiem, 571 F.Supp.3d at 60-61. The same is true for the January 2023 denial of Murray's requests for leave and a scheduling accommodation. However, Murray thereafter engaged in a second protected activity-her February 2023 filing of a charge of discrimination with the NYS Division of Human Rights. That is close enough in time to permit an inference of causation to arise as to the adverse acts alleged to have occurred in March and April 2023. See FAC ¶¶ 89 (March 17, 2023 formal written warning), 92, 99 (April 3, 2023 transfer and demotion). But the May 2023 denial of her request for FMLA leave, see id. ¶ 107, occurred too late to alone support that inference. See Springs, 2020 WL 3488893, at *6.
The FAC does not allege when defendants received notice of Murray's EEOC charge. See FAC ¶ 62 (defendants received notice “no later than December 2022”). The EEOC is required to serve notice on an employer within 10 days of a charge's filing. 42 U.S.C. § 2000e-5(b). The Court thus infers that defendants became aware of Murray's charge 10 days after its filing: on February 7, 2022.
The Court thus grants in part and denies in part defendants' motion to dismiss Murray's NYCHRL retaliation claim. Murray may pursue that claim to the extent based on the adverse actions alleged to have occurred in March and April 2023 but not otherwise.
CONCLUSION
For the foregoing reasons, the Court grants defendants' motion to dismiss the FAC in part and denies it in part. The Court (1) narrows the Title VII claim to defendants' conduct between April 2,2021 and January 27, 2022; (2) narrows the FLSA retaliation claim to the denial of Murray's July 16, 2021 request for a schedule change; (3) dismisses the FMLA interference claim; (4) dismisses the FMLA retaliation claim; (5) dismisses the NYCHRL failure to accommodate claim; and (6) limits the NYCHRL retaliation claim to the adverse actions allegedly taken in March and April 2023.
Defendants must answer the FAC by August 9, 2024.
The Clerk of Court is respectfully directed to terminate all pending motions. By separate order, the Court will schedule a date for an initial pretrial conference.
SO ORDERED.