In Brown v. Winston Staffing LLC, No. 159405/2025, 2026 WL 964813 (N.Y. Sup. Ct. Apr. 07, 2026), the court denied defendant’s motion to dismiss plaintiff’s claim of disability discrimination asserted under the New York State Human Rights Law.
From the decision:
Plaintiff has a long-term injury to her left foot which causes her to walk with a limp, but Plaintiff alleges the injury did not prevent her from completing her job duties, including delivering medicine. On June 28, 2023, Plaintiff allegedly fell down the steps in the NYU lobby which caused her to injure her left knee and shoulder. Plaintiff sought treatment on June 29, 2023 and advised her supervisor at NYU, Sinsook Ye. She also advised Jonathan Krangle, the senior staffing consultant employed through Winston Staffing who placed Plaintiff with NYU.
Plaintiff’s doctor advised she could return to work on July 3, 2023, but Plaintiff never heard from Ye or Krangle regarding additional shifts. When Plaintiff allegedly reached out to Krangle, she was advised not to come back to work, but Krangle advised Plaintiff he would find another assignment for her. However, despite numerous follow-ups, Plaintiff did not receive another assignment, which she alleges was due to her perceived disability. Plaintiff alleges that in December 2023, Defendants’ employees made a carbon-cut gingerbread man cookies for each employee, and on the cookie with Plaintiff’s name, the right foot of the cookie was torn apart and stapled back as a means of mocking Plaintiff’s foot injury. Plaintiff now sues for discrimination pursuant to the New York State Human Rights Law (“NYSHRL”).
Defendants move pre-answer to dismiss Plaintiffs Complaint. Plaintiff opposes. Defendants’ motions are denied. When reviewing a pre-answer motion to dismiss for failure to state a claim, the Court must give the Plaintiff the benefit of all favorable inferences which may be drawn from the pleadings (Sassi v Mobile Life Support Services, Inc., 37 NY3d 236, 239 [2021]). A motion to dismiss based on documentary evidence is appropriately granted when the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law (Goshen v Mutual Life Ins. Co. of New York, 98 NY2d 314 [2002]).
Here, accepting the facts alleged as true, Plaintiff adequately alleged that she was qualified to perform the essential functions of the job as she was able to adequately perform her job prior to her injury. However, while out of work on medical leave due to an injury, which constitutes a disability, Plaintiff was never again rescheduled for a shift (see Henriquez v City of New York, 2026 NY Slip Op 01460 at *1 [1st Dept 2026]). Therefore, Plaintiff has alleged she suffered a disability, and that disability caused her to suffer an adverse employment action – namely the loss of future shifts within the meaning of the NYSHRL (see Vig v New York Hairspray Co., L.P., 67 AD3d 140, 146 [1st Dept 2009]). For purposes of a pre-answer motion to dismiss, this is sufficient.
Moreover, Plaintiff adequately alleged facts that the adverse employment action took place under circumstances giving rise to an inference of discrimination. Specifically, she alleges that her disability was mocked at a holiday party where a gingerbread cookie with her name on it had its foot torn off and stapled back together. Further, the temporal proximity between Plaintiff’s injury and Plaintiff being removed from any shifts, for purposes of a pre-answer motion to dismiss, gives rise to an inference of discrimination.
(Cleaned up.)
The court also found that it was inappropriate, in the context of defendant’s pre-answer motion to dismiss, to resolve NYU’s “fact intensive argument that it cannot be considered a joint employer with Winston Staffing.” Specifically, the court found that the alleged facts created an issue of fact as to whether NYU can be considered a joint employer, noting that NYU set plaintiff’s hours and controlled the means and methods of her work at NYU.