In Byfield v. New York City Department of Education, 22 Civ. 5869 (KPF), 2023 WL 8435183 (S.D.N.Y. Dec. 5, 2023), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s claims of retaliation asserted under the Americans with Disabilities Act and the Rehabilitation Act.
From the decision:
As an initial matter, Plaintiff plausibly alleges the first three elements of a prima facie case. First, it is well-established that requesting a reasonable accommodation of a disability is a “protected activity” under the ADA. See Weixel, 287 F.3d at 149. This is true even if a plaintiff’s claim that she was entitled to a reasonable accommodation was mistaken, so long as it was made in good faith. See Conley v. United Parcel Service, 88 F. Supp. 2d 16, 20 (E.D.N.Y. 2000). Here, Plaintiff’s requests to work remotely constitute protected activity. While Plaintiff’s belief in her entitlement to such accommodation may have been mistaken, there is no evidence to suggest that Plaintiff did not subjectively believe the DOE’s actions were discriminatory. Second, Defendant had knowledge of Plaintiff’s requests as Plaintiff submitted her request to her supervisor and to the ODA. (TAC ¶¶ 105, 107). Third, Plaintiff adequately pleads an adverse employment action occurred. An adverse employment action in the retaliation context is “any action that ‘could well dissuade a reasonable worker from making or supporting a charge of discrimination.’ ” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015) (citation omitted); see also Hicks v. Baines, 593 F.3d 159, 169 (2d Cir. 2010). Here, Plaintiff’s allegations that the DOE launched a series of payroll deductions of $289.15 from Plaintiff’s paycheck every pay period following her requests to work remotely is sufficient to constitute an adverse employment action. See Vega, 801 F.3d at 91 (finding “temporary paycheck reduction” to constitute an adverse employment action).
Plaintiff’s prima facie case is weakest as to the fourth element, a causal connection between the protected activity and some adverse employment action. See Vega, 801 F.3d at 90. A causal connection may be shown either “[i] indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees [or union members] who engaged in similar conduct; or [ii] directly, through evidence of retaliatory animus directed against the plaintiff by the defendant.” Id. (internal quotation marks and citation omitted). Here, the Court finds that Plaintiff has pleaded a sufficiently close temporal relationship between her requests for an accommodation on April 22, 2021, and May 5, 2021, and the DOE’s alleged docking of her payments beginning May 28, 2021, to plead a causal connection. See Cifra v. General Electric Co., 252 F.3d 205, 217 (2d Cir. 2001) (“The causal connection needed for proof of a retaliation claim can be established indirectly by showing that the protected activity was closely followed in time by the adverse action.” (internal quotation marks omitted)); see also Salas v. N.Y.C. Dep’t of Inv., 298 F. Supp. 3d 676, 687 (S.D.N.Y. 2018) (finding that a two-month period “nudge[s]” plaintiff’s causation allegations “across the line from conceivable to plausible”).
Based on this, the court concluded that “while Defendant may well be able to articulate a legitimate, non-retaliatory reason for the employment actions taken against Plaintiff — and, indeed, this Court is skeptical that Plaintiff’s claim will survive a summary judgment motion — at this stage of pleading, Plaintiff has plausibly alleged enough facts to support a retaliation claim under the ADA and the Rehabilitation Act” and that, therefore, these claims may proceed to the discovery phase.
That said, the court did grant defendant’s motion to dismiss plaintiff’s claims of failure to accommodate disability and discrimination under Uniformed Services Employment and Reemployment Rights Act (USERRA).