Opinion
1:20-CV-5528 (ENV) (PK)
2021-10-04
Elina KUGEL, Plaintiff, v. QUEENS NASSAU NURSING HOME INC., d/b/a/ Queens Nassau Rehabilitation and Nursing Center, Joshua Teitelbaum, in His Invididual and Official Capacities, John Does 1-10, and XYZ Corp. 1-10, Defendants.
Francine R. Foner, Ty Hyderally, Hyderally & Associates, P.C., Montclair, NJ, for Plaintiff. Keith J. Gutstein, Monique Robotham, Taimur Alamgir, Kaufman, Dolowich, Voluck & Gonzo, LLP, Woodbury, NY, Pietro Antonio Deserio, Jackson Lewis P.C., Melville, NY, for Defendants Queens Nassau Nursing Home Inc., Joshua Teitelbaum.
Francine R. Foner, Ty Hyderally, Hyderally & Associates, P.C., Montclair, NJ, for Plaintiff.
Keith J. Gutstein, Monique Robotham, Taimur Alamgir, Kaufman, Dolowich, Voluck & Gonzo, LLP, Woodbury, NY, Pietro Antonio Deserio, Jackson Lewis P.C., Melville, NY, for Defendants Queens Nassau Nursing Home Inc., Joshua Teitelbaum.
MEMORANDUM & ORDER
VITALIANO, D.J.
Plaintiff Elina Kugel commenced this action on November 13, 2020, against Queens Nassau Rehabilitation and Nursing Center ("QNRNC"), Joshua Teitelbaum, John Does 1-10, and XYZ Corp. 1-10. In her amended complaint, plaintiff claims that defendants engaged in disability discrimination in violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq. , the New York State Human Rights Law ("NYSHRL") and the New York City Human Rights Law ("NYCHRL") as well as gender, gender-plus, and religious discrimination claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2(a), NYSHRL, and NYCHRL. Plaintiff also interposes claims for retaliation, brought under ADA, Title VII, NYSHRL, along with a NYCHRL and a whistleblower claim, as provided by §§ 740 – 741 of the New York Labor Law ("NYLL").
Defendants now move to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, defendants’ motion is granted in part and denied in part.
Background
Located in Far Rockaway, QNRNC provides rehabilitative services for traumatic brain injuries in addition to skilled nursing care. Am. Compl. ¶¶ 10–11. In September 2016, Dr. Kugel was hired as the Director of Neuropsychology for QNRNC's Certified Traumatic Brain Injury Unit ("TBI"), working there continuously until her termination in April 2020. Id. ¶¶ 9, 21. She is a neuropsychologist with a Masters Degree in general and clinical psychology and a doctorate in clinical psychology. Id. ¶ 19. Throughout her employment, Dr. Kugel reported to Teitelbaum, an Administrator, and Faith Manuel, the TBI program coordinator for QNRNC. Id. ¶¶ 13–14. Her responsibilities included processing the results of patient testing, assigning patients therapy goals, and offering recommendations to the cognitive therapists working under her supervision, who are identified in the pleadings as Catherine Bihun and Andrew Fox. Id. ¶ 23.
Shortly after plaintiff began working at QNRNC, Teitelbaum learned that she was Jewish and informed her that all Jewish employees, including plaintiff, were required to utilize their paid vacation time to observe all Jewish high holy days, a requirement that did not extend to non-Jewish employees. Id. ¶ 140–41. Despite Dr. Kugel's initial protests against this policy, Teitelbaum reportedly told her that it was "not negotiable". Id. ¶ 142. In April 2019, Dr. Kugel once more complained to Teitelbaum about the "discriminatory nature" of the policy, as it applied only to QNRNC's Jewish staff and not to any of the facility's employees who were not Jewish. Id. ¶¶ 143, 145. According to plaintiff, Teitelbaum was unmoved and maintained the policy. Id. ¶ 144. Dr. Kugel does not allege whether or not she complied with this policy and used her paid vacation time as directed, or whether there was a comparable policy that applied to non-Jewish employees.
Teitelbaum's vacation policy was not the only source of friction with plaintiff. Tensions rose again when Dr. Kugel's work schedule began to interfere with caring for her young child. Id. ¶ 129. Sometime in late December 2019 or early January 2020, plaintiff approached Teitelbaum and Manuel to inquire about modifying her schedule from working five to four days per week due to her childcare responsibilities. Id. ¶ 27. Teitelbaum supposedly "grilled" her about why such an accommodation was necessary, but "begrudgingly" agreed to modify her schedule. Id. ¶¶ 28, 30. It was not the last word on this issue. Dr. Kugel claims that Teitelbaum's treatment of her changed for the worse shortly after she was granted the requested accommodation. Id. ¶ 31. On January 16, 2020, Dr. Kugel met with Teitelbaum, Manuel, and the director of nursing, Yvette Williams, to discuss the treatment of a suicidal patient. Id. ¶ 32. During the meeting, Teitelbaum allegedly yelled at Dr. Kugel and discussed her childcare issues in front of the group. Id. ¶ 34. Dr. Kugel maintains that Teitelbaum's treatment of her was consistent with his negative treatment of other women. Id. ¶ 38.
In the aftermath of this incident, on January 17, 2020, Dr. Kugel alleges that she filed a written complaint of gender and familial discrimination, presumably with QNRNC's human resources department, and as a result of that complaint Teitelbaum was compelled to apologize to her several days later. Id. ¶¶ 40–41. In February 2020, Teitelbaum began to "pressure" Dr. Kugel to return to working a five-day schedule. Id. ¶ 43. Dr. Kugel acquiesced and resumed working a five-day schedule by the end of February 2020 because she "feared retaliation if she failed to comply" with Teitelbaum's requests. Id. ¶ 44.
By late February 2020, COVID-19 had evolved from an occasional news story to a grim reality in New York City. On March 9, 2020, plaintiff notified Teitelbaum and Manuel in an email that she suffered from an underlying medical condition compromising her immune system and placing her at increased risk if she contracted COVID-19. Id. ¶ 45. In the email, Dr. Kugel specifically advised that she "had concerns about her exposure to COVID-19 at the facility" given her compromised health condition. Id. ¶ 46. Compounding Dr. Kugel's concerns was the fact that, as of March 7, 2020, one of the primary hospitals to which QNRNC sent its patients on a daily basis reported a case of COVID-19 and had placed twelve of its workers in quarantine. Id. ¶ 47. With these risks in mind, Dr. Kugel requested "interactive discussions" regarding a reasonable accommodation in the form of working remotely from her home, pegging her request to her own health issues, recommendations from her hematologist, and dire warnings given by New York State. Id. ¶¶ 47–48. Dr. Kugel also informed her supervisors that she could work using Skype or her telephone and asked to begin discussions to implement a plan to ensure the safety and continuation of care for patients in her designated unit. Id. ¶¶ 50–51.
On March 10, 2020, Manuel replied to Dr. Kugel's email stating that he could not resolve her request to work remotely without a letter from her physician, but noted that QNRNC did not normally let the staff work from home. Id. ¶ 52. Two days later, Dr. Kugel forwarded a medical note to Manuel signed by her hematologist, Dr. Doron Weiner. Id. ¶ 53. In the note, Dr. Weiner stated that Dr. Kugel suffers from a congenital factor XI deficiency, idiopathic thrombocytopenic purpura ("ITP"), which suppresses the immune system. Id. ¶ 54. Since, in his opinion, Dr. Kugel's condition put her at a higher risk of lethal infection if she were to contract COVID-19, Dr. Weiner recommended that plaintiff "work from home if possible." Id. The following day, March 13, 2020, Teitelbaum sent plaintiff a letter declining her request to work remotely from home. Id. ¶ 55. On March 17, 2020, as New York Governor Andrew M. Cuomo announced additional emergency measures in response to COVID-19, plaintiff pled her case in another email to Teitelbaum and Manuel, noting that her responsibilities (i.e. processing patient testing, assigning therapy goals for each patient, and giving recommendations to Fox and Bihun) could easily be performed remotely. Id. ¶¶ 57–58.
On March 19, 2020, plaintiff sent another email to Teitelbaum and Manuel asking QNRNC "to reconsider its blanket denial of [her] requested accommodation to work remotely" during the COVID-19 pandemic. Id. ¶ 61. She provided defendants with an additional note from Dr. Weiner reiterating the requested accommodation, that is, to be permitted to work from home for a 30-day period. Id. ¶ 64. Collaterally, Dr. Kugel also stated her objection to defendants’ decision to allow Fox and Bihun to process the testing and assigning of goals to patients, pointing out that they were not licensed to do so, which Dr. Kugel believed constituted a violation of QNRNC's medical standard of care to its patients. Id. ¶ 65.
Defendants promptly rejected Dr. Kugel's renewed request to work remotely from home. Id. ¶ 67. Dr. Kugel alleges that Teitelbaum fallaciously suggested that she had opted to discontinue working due to her health issues. Id. ¶ 68. Dr. Kugel says that she denied ever opting not to work and reiterated her willingness to continue her employment at QNRNC as long as her request for an appropriate accommodation was granted. Id. ¶ 70–71. Teitelbaum and Manuel never responded to plaintiff's rejoinder. Id. ¶ 72.
As the pandemic worsened, plaintiff emailed Teitelbaum a fifth time on March 23, 2020, asking him to grant her request to work remotely based upon the recommendations from her doctor and mandatory guidelines now being set by state and federal health authorities. Id. ¶ 73. The conditions at QNRNC also worsened, with Fox under quarantine after testing positive for COVID-19 on March 20, 2020, and Bihun under quarantine after displaying symptoms shortly thereafter. Id. ¶¶ 74–75.
This time, there was an immediate refusal from defendants. On the same day that plaintiff emailed Teitelbaum, Teitelbaum responded that the administration did not believe she could perform her work responsibilities from home. Id. ¶ 80. On April 10, 2020, plaintiff provided defendants with a revised note from Dr. Weiner to extend her request to work remotely for an additional 30 days in light of the ongoing pandemic. Id. ¶ 81. Dr. Kugel also reiterated her objection to what she viewed as defendants’ illegal decision to permit Fox and Bihun to feed patients, monitor them for aspiration/choking, and administer emergency protocols, which they were not qualified to do. Id. ¶ 82.
Dr. Kugel alleges that as a result of her complaints against her supervisors for their discriminatory behavior, their refusals to accommodate her health condition, and QNRNC's improper patient care, defendants retaliated against her by taking her off payroll on March 7, 2020, terminating her, and refusing to allow her to return to work. Id. ¶ 85. Dr. Kugel then sought redress by filing this action on November 13, 2020.
Legal Standard
In federal court, pleading rules require a plain statement of claims, but do not compel a litigant to supply "detailed factual allegations" in support of their claims. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S. Ct. 1955, 1964, 167 L. Ed. 2d 929 (2007) ; see also Fed. R. Civ. P. 8(a)(2). At the same time, the rules require "more than unadorned, the-defendant-unlawfully-harmed-me accusation[s]." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). Simply put, "[a] pleading that offers ‘labels and conclusions’ ... will not do." Id. (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ); see also In re NYSE Specialists Sec. Litig. , 503 F.3d 89, 95 (2d Cir. 2007). "Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (alteration in original) (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ). To survive a Rule 12(b)(6) motion, the complaint "must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). This "plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (citation and internal quotations omitted). However, courts must be mindful that these requirements are "reduced ... in the initial phase of a Title VII litigation" such that "[t]he facts required by Iqbal to be alleged in the complaint ... need only give plausible support to a minimal inference of discriminatory motivation." Littlejohn v. City of New York , 795 F.3d 297, 311 (2d Cir. 2015) (emphasis added).
Discussion
I. Disability Discrimination
a. ADA Claim
Defendants assert that, in pleading their alleged "failure to engage in the interactive process" as an independent claim, plaintiff states no cause of action. Dkt. 21-3 ("Defs’ Mem.") at 6–7. Whatever the merit of that defense, significantly, there is no question that the "interactive process" is a recognized term of art in employment discrimination cases. Specifically, under ADA, the interactive process is one "by which employers and employees work together to assess whether an employee's disability can be reasonably accommodated." Jackan v. N.Y.S. Dep't of Labor , 205 F.3d 562, 566 (2d Cir. 2000). Signs of an employer engaging in the interactive process may include "meeting with the employee who requests an accommodation, requesting information about the condition and what limitations the employee has, asking the employee what he or she specifically wants, showing some sign of having considered the employee's request, and offering and discussing available alternatives when the request is too burdensome." Lovejoy-Wilson v. NOCO Motor Fuel, Inc. , 263 F.3d 208, 219 (2d Cir. 2001).
Assessing the factual allegations in the complaint qua factual allegations uncoupled from the identifying classifications of any legal claims, it is clear that the pleadings factually allege that defendants did not take even modest steps in engaging with Dr. Kugel's accommodation requests. For instance, plaintiff claims that she made numerous attempts to inquire about working remotely from home in an effort to mitigate the risk of contracting COVID-19 in light of her compromised immune system, and that her overtures were either ignored or otherwise spurned. Notwithstanding these failures on the part of her employer, however, Second Circuit case law is clear that failure to engage in a good-faith interactive process under ADA is, at best, evidence tending to show disability discrimination, but does not state an independent cause of action. Frilando v. New York City Transit Authority , 513 F.Supp.3d 356, 365 (S.D.N.Y. 2021) ; Sheng v. M&T Bank Corp. , 848 F.3d 78, 86 (2d Cir. 2017) ; Noll v. Int'l Bus. Machines Corp. , 787 F.3d 89, 97–98 (2d Cir. 2015) ; McBride v. BIC Consumer Prod. Mfg. Co. , 583 F.3d 92, 101 (2d Cir. 2009). As a result, while Dr. Kugel's other ADA claims remain unscathed, her independent claim for failure to engage in the interactive process is dismissed.
b. NYSHRL Claim
A prima facie hostile work environment claim under NYSHRL requires that the complained of conduct "(1) be objectively severe or pervasive—that is, creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff's protected status." Patane v. Clark , 508 F.3d 106, 113 (2d Cir. 2007). For the complained of conduct to be sufficiently pervasive, it " ‘must be more than episodic; [it] must be sufficiently continuous and concerted.’ " Alfano v. Costello , 294 F.3d 365, 374 (2d Cir. 2002) (quoting Perry v. Ethan Allen, Inc. , 115 F.3d 143, 149 (2d Cir. 1997) ).
Viewing the factual allegations of the complaint in totality and testing them in this framework, it appears to be, as defendants contend, that almost all of the patently hostile conduct alleged in the amended complaint occurred before Dr. Kugel informed defendants of her disability, and is therefore entirely irrelevant to her claim that she was subjected to a hostile work environment due to her disability. See, e.g. , Am. Compl. ¶¶ 34–35. More relevant to her disability claim, Dr. Kugel alleges that defendants were obstinate and insensitive in response to her repeated requests for accommodation in the face of the mounting COVID-19 crisis. Id. ¶¶ 45–82. Such behavior, however, only occurred intermittently through sporadic email correspondence in March 2020 and culminated with Dr. Kugel's April 2020 termination. The alleged discriminatory conduct persisted only for a few weeks, while Dr. Kugel had been working for QNRNC since September 2016. Such conduct occurred within a very short-lived period of time relative to Dr. Kugel's almost four-year employment at QNRNC. See Young v. City of Syracuse Department of Public Works , No. 5:04-CV-611, 2011 WL 13352809, at *2 (N.D.N.Y. Sept. 30, 2011) (five isolated incidents over the course of three years is insufficiently continuous and concerted to be considered pervasive). Given that defendants’ alleged discriminatory behavior occurred in episodes over a very small fraction of Dr. Kugel's employment, the conduct does not rise to the level of pervasiveness required to state a hostile work environment claim under NYSHRL.
Plaintiff may yet be able to seek damages for this purportedly hostile conduct, however, the basis for plaintiff's NYSHRL disability hostile work environment claim is largely duplicative of plaintiff's retaliation claims under ADA, NYSHRL, and NYCHRL. Plus, multiple awards for any damage resulting from the same conduct would not be permitted. See Indu Craft, Inc. v. Bank of Baroda, 47 F.3d 490, 497 (2d Cir. 1995) ("A plaintiff seeking compensation for the same injury under different legal theories is of course only entitled to one recovery.").
Not only does Dr. Kugel's hostile work environment claim fail on the pervasiveness prong, but the claimed hostile conduct is also insufficient to constitute a hostile work environment. For conduct to be adequately hostile and thus actionable under NYSHRL, a plaintiff's workplace must be "permeated with discriminatory intimidation, ridicule, and insult." Howley v. Town of Stratford , 217 F.3d 141, 153 (2d Cir. 2000). Although defendants may have been rude or ill-mannered in refusing her accommodation, Dr. Kugel fails to show how such refusals amounted to acts of intimidation, ridicule, or insult required under NYSHRL. Id. Plaintiff is, in other words, merely recycling her ADA failure to accommodate claim and unsuccessfully restating it as a hostile work environment claim. See Dkt. 21-7, ("Defs’ Reply") at 9. For that reason, the NYSHRL claim is dismissed.
c. NYCHRL Claim
NYCHRL makes it "an unlawful discriminatory practice for an employer or an agent thereof to ... discriminate against such person in compensation or in terms, conditions, or privileges of employment." N.Y.C. Admin Code § 8-107(1)(a)(3). While the analytical framework of Title VII, ADA and NYSHRL is applicable to NYCHRL claims, Muktadir v. Bevacco Inc. , No. 12-CV-2184, 2013 WL 4095411, at *1 (E.D.N.Y. Aug. 13, 2013), those claims must be reviewed "separately and independently" from any other claims and construed "broadly in favor of discrimination plaintiffs," Mihalik v. Credit Agricole Cheuvreux N. Am. Inc. , 715 F.3d 102, 109 (2d Cir. 2013). Unlike NYSHRL's more stringent standards, to make out a hostile work environment claim under NYCHRL, "the alleged conduct need not be severe or pervasive." Mihalik , 715 F.3d at 113. There need only be evidence of plaintiff having been treated "less well" than other employees because of her disability. Id. at 110.
Under NYCHRL's more forgiving standard, defendants’ repeated refusals to accommodate her disability, which according to Dr. Kugel took the form of indifference and even outright disdain for her health concerns, Am. Compl. ¶ 60, raise a reasonable inference that she may have been treated less well because of her disability. Indeed, defendants appear to have intentionally offered Dr. Kugel a Hobson's choice of either continuing to work on-site despite the fatal risk associated with her contracting COVID-19, on the one hand, or being terminated, on the other. Dr. Kugel was therefore forced to protect her health over her livelihood, despite expressing her willingness to work remotely for QNRNC. Am Compl. ¶ 50. These allegations illustrate that Dr. Kugel was indeed treated less well than other employees because of her disability. As a result, the early-stage strike by defendants to dismiss Dr. Kugel's NYCHRL hostile work environment claim is denied.
II. Gender Discrimination
a. Title VII and NYSHRL Claims
Claims brought under NYSHRL are analytically identical to those brought under Title VII and are therefore addressed in tandem. Rojas v. R.C. Diocese of Rochester , 660 F.3d 98, 107 n.10 (2d Cir. 2011).
In an unhelpful fashion, Dr. Kugel fails to plead any facts demonstrating that the hostility she experienced at QNRNC was based upon her gender alone, as opposed to her gender in conjunction with being a mother. In her only reference to defendants’ purportedly gender-based discriminatory behavior, Dr. Kugel conclusorily alleges that Teitelbaum's negative treatment of her was consistent with his treatment of other female employees, and that she had witnessed numerous occasions on which Teitelbaum treated male employees in a preferential and deferential manner while acting in a disrespectful and condescending manner toward female employees. Am. Compl. ¶¶ 36–37.
Critically, Dr. Kugel fails to allege any facts, occurrences, or interactions that allow a reasonable inference to be drawn that defendant treated plaintiff or other female employees at QNRNC in a negative manner because of their gender. See Martin v. New York State Dept. of Mental Hygiene , 588 F.2d 371, 372 (2d Cir. 1978) (holding that a complaint consisting of no more than naked assertions and presenting no facts upon which a court could find a civil rights violation fails to state a claim under Rule 12(b)(6) ). Rather, the only instances of potentially discriminatory conduct related to Dr. Kugel's gender were specifically aimed at her status as a mother, such as Teitelbaum yelling about Dr. Kugel's childcare issues in front of other QNRNC employees. Am. Compl. ¶ 34. This is a distinct claim that is discussed separately in this Order. Accordingly, Dr. Kugel's Title VII and NYSHRL claims of gender discrimination/hostile work environment are dismissed.
b. NYCHRL Claim
Despite NYCHRL's more liberal standards, Dr. Kugel's claim of gender discrimination is legally insufficient for the same reasons as her federal and state claims. In order to show she was subjected to a hostile work environment under NYCHRL, a plaintiff need only demonstrate "that she has been treated less well than other employees because of her gender" or other protected status. Mihalik , 715 F.3d at 110 (emphasis added); see also Russo v. New York Presbyterian Hosp. , 972 F. Supp. 2d 429, 452 (E.D.N.Y. 2013) (finding that defendant yelling profanities at plaintiff is insufficient to state a NYCHRL hostile work environment claim because plaintiff failed to show defendant's conduct was due to her gender); Casalino v. N.Y.S. Catholic Health Plan, Inc. , 2012 WL 1079943, *8-9 (S.D.N.Y. March 30, 2012) (plaintiff's supervisor berating and frightening her failed to state a NYCHRL hostile work environment claim because she did not raise an inference that such conduct was because of her gender). The scatter-shot allegations in her complaint, again, fail to adequately demonstrate that any less favorable treatment she may have endured was because of her gender. As noted above, Teitelbaum yelling at plaintiff during their meeting on January 16, 2020, may indicate she was treated "less well", but it cannot be reasonably inferred that such treatment was motivated by Dr. Kugel's gender, as opposed to other reasons. Plaintiff's NYCHRL gender discrimination claim is, consequently, dismissed.
III. Gender-Plus/Familial Discrimination
a. Title VII and NYSHRL Claims
Gender-plus discrimination occurs when an individual is subjected to disparate treatment based on his or her gender "in conjunction with a second characteristic." Fisher v. Vassar Coll. , 70 F.3d 1420, 1433 (2d Cir. 1995). Plaintiff's Title VII and NYSHRL gender-plus hostile work environment claims are predicated upon her protected status as a woman with a child. More specifically, Dr. Kugel alleges that Teitelbaum's clear annoyance with her request to work four instead of five days per week due to her childcare responsibilities, along with the episode in which he belligerently aired these issues in front of her other QNRNC co-workers at their January 16, 2020 meeting, gives rise to her gender-plus discrimination claims.
Caselaw, however, does not rework the definition of a hostile work environment merely because the discriminatory basis for the claim has changed. In particular, it remains true that a plaintiff must establish a prima facie case for a hostile work environment claim. Under Title VII and NYSHRL the complained of conduct must "(1) be objectively severe or pervasive—that is, creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff's protected status." Patane , 508 F.3d at 113. Again, "[a]s a general rule, incidents must be more than ‘episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.’ " Alfano v. Costello , 294 F.3d 365, 374 (2d Cir. 2002) (quoting Perry v. Ethan Allen, Inc. , 115 F.3d 143, 149 (2d Cir. 1997) ). Furthermore, "[i]solated acts, unless very serious, do not meet the threshold of severity or pervasiveness." Id. (quoting Brennan v. Metro. Opera Ass'n, Inc. , 192 F.3d 310, 318 (2d Cir. 1999) ).
Applying this standard, Dr. Kugel's gender-plus discrimination claim fairs better than her gender discrimination claim insofar as she can point to conduct related to her status as a mother, but it nonetheless comes up short. Dispositively, Dr. Kugel fails to raise an inference that defendants’ treatment of her amounts to the creation of a hostile work environment, as the alleged conduct was not sufficiently pervasive. Dr. Kugel claims that she first approached Teitelbaum in December 2019 or January 2020 requesting a four-day work schedule. Am. Compl. ¶ 27. Teitelbaum then brought up Dr. Kugel's childcare issues at their January 16 meeting, and subsequently "pressured" her to return to a five-day work schedule in February 2020. Id. ¶¶ 34, 43. Dr. Kugel was not subjected to daily, constant, or continuous patterns of hostile behavior; rather, Teitelbaum's alleged conduct, while boorish, was isolated and episodic. See Cristofaro v. Lake Shore Cent. School Dist. , 473 F. App'x 28, 30 (2d Cir. 2012) (ruling that limited, infrequent, mildly offensive conduct falls short of the severity and frequency required of a hostile work environment claim). These isolated events occurring during a three-month period over the course of her three-and-a-half-year tenure at QNRNC are insufficient to constitute a hostile work environment. See Dayes v. Pace University , 2 F. App'x. 204, 207 (2d Cir. 2001) (holding that defendant's handful of comments that were interspersed throughout a one-year period were insufficiently pervasive). As a result, plaintiff's Title VII and NYSHRL gender-plus discrimination claims are dismissed.
b. NYCHRL Claim
Not surprisingly, given the parallels to her NYCHRL claim based on disability discrimination, Dr. Kugel's NYCHRL gender-plus discrimination claim avoids the same fate as its federal and state counterparts, as a lack of pervasiveness is not fatal to a claim under the City Code. See also Hernandez v. Kaisman , 103 A.D.3d 106, 957 N.Y.S.2d 53, 58 (1st Dep't 2012) ("while we find that the complained-of incidents do not rise to the level of severe and pervasive for purposes of a claim pursuant to [NYSHRL], this does not dispose of the question of whether plaintiffs’ [NYCHRL] claim is still viable"). Dr. Kugel raises a reasonable inference that she was treated less well because of her familial status, as Teitelbaum's caustic discussion of Dr. Kugel's personal childcare issues in front of other QNRNC can support, at the pleading stage, the reasonable inference that she was treated less favorably because she has a child. See Sletten v. LiquidHub, Inc. , No. 13-CV-1146, 2014 WL 3388866, at *8 (S.D.N.Y. July 11, 2014) (coworkers and supervisors negatively discussing plaintiff's sexual orientation indicated that plaintiff was treated less well than other employees, thereby satisfying NYCHRL's hostile work environment standard). As a consequence, plaintiff's NYCHRL claim remains intact and the motion to dismiss is denied.
IV. Religious Discrimination
a. Title VII and NYSHRL Claims
To make out a case of religious discrimination under Title VII and NYSHRL, a plaintiff must show that: "(1) she is a member of a protected class; (2) she is qualified for her position; (3) she suffered an adverse employment action; and (4) the circumstances give rise to an inference of discrimination." Vega v. Hempstead Union Free School Dist. , 801 F.3d 72, 83 (2d Cir. 2015). Dr. Kugel's religious discrimination claims rest upon defendants’ alleged policy requiring her and other Jewish employees at QNRNC to use paid vacation time on Jewish high holy days, regardless of their personal preference, while no such policy applied to non-Jewish employees, who were free to use all of their vacation time as they saw fit. Am. Compl. ¶¶ 140–145. Dr. Kugel alleges that she did not necessarily wish to use a significant portion of her vacation time to observe these religious holidays, as she needed to budget time off for family events, school holidays, and the like. Id. ¶ 141.
Defendants offer, essentially, a classic demurrer to attack this claim. Assuming everything Dr. Kugel alleges is true, they contend, she still fails to state a claim of religious discrimination under Title VII or NYSHRL because no adverse employment action occurred. A plaintiff suffers an adverse employment action if she "endures a materially adverse change in the terms and conditions of employment." Galabya v. N.Y.C. Bd. of Educ. , 202 F.3d 636, 640 (2d Cir. 2000). To qualify as materially adverse, a change in working conditions must be "more disruptive than a mere inconvenience or an alteration of job responsibilities." Id. For example, a materially adverse employment action may be a "termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, [or] significantly diminished material responsibilities." Feingold v. New York , 366 F.3d 138, 152 (2d Cir. 2004).
Because Dr. Kugel fails to show that she suffered a "material loss of benefits", Feingold , 366 F.3d at 152, her Title VII and NYSHRL claims lack this essential leg to stand on. Indeed, Dr. Kugel's amended complaint is silent as to whether she actually used her paid vacation time to observe Jewish high holy days, or, if she did not, whether she was disciplined for failing to do so. Since Dr. Kugel does not claim to have surrendered any of her accrued paid vacation time to observe any Jewish holidays, the Court cannot infer that she suffered a materially adverse action constituting religious discrimination. Moreover, it is not alleged that Dr. Kugel was terminated, demoted, or otherwise disciplined for ever failing to comply with defendants’ policy. See Kelly v. New York State Office of Mental Health , 200 F. Supp. 3d 378, 397 (E.D.N.Y. 2016) (holding that plaintiff did not suffer an adverse employment action because her complaint showed no consequences flowed from defendant's alleged discriminatory conduct). Therefore, plaintiff's Title VII and NYSHRL claims are dismissed.
Had plaintiff adequately pleaded that she suffered an adverse employment action as a result of QNRNC's policy—that is, had she alleged that she utilized paid vacation time to observe Jewish holidays that she would not otherwise have observed or was disciplined for failing to comply with QNRNC's policy—she would have sufficiently stated a material loss of benefits sufficient to state a claim for religious discrimination under Title VII and NYSHRL.
b. NYCHRL Claim
The pattern continues to hold, as the relaxed requirements under NYCHRL play in Dr. Kugel's favor yet again. As the Second Circuit held in Mihalik , "NYCHRL does not require materially adverse employment actions" for conduct to be actionable. Mihalik , 715 F.3d at 114 (quoting Williams v. N.Y.C. Hous. Auth. , 61 A.D.3d 62, 872 N.Y.S.2d 27, 34, 37–39 (1st Dep't 2009) ). As a result, Dr. Kugel need not demonstrate that she suffered an adverse employment action to prevail in her religious discrimination claim under NYCHRL. Instead, she need only show that she was treated less well than other employees because of her religion. Id. The analysis therefore begins and ends with Dr. Kugel's well-pleaded allegations that she was treated less well than non-Jewish employees at QNRNC because the facility's more restrictive vacation policy applied only to Jewish staff and did not apply to non-Jewish employees. Am. Compl. ¶ 145. Dr. Kugel's NYCHRL religious discrimination claim is sufficiently alleged.
V. Whistleblower and Retaliation Claims
Defendants do not otherwise move against Dr. Kugel's whistleblower claim under Rule 12.
a. Exclusivity of Whistleblower Claims
Defendants urge that plaintiff's retaliation claims under ADA and Title VII cannot be brought alongside her whistleblower claim under NYLL § 740, which purports, by its language, to constitute an exclusive remedy. The law provides in pertinent part that "the institution of an action in accordance with this section shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, law, rule or regulation under the common law." N.Y. Lab. Law § 740(7). Courts have observed that the most literal reading of § 740(7) "would seem to provide that when an employee brings a whistleblower suit, all concurrent or future lawsuits brought by that employee, in any capacity whatsoever, are waived." Collette v. St. Luke's Roosevelt Hosp. , 132 F. Supp. 2d 256, 262 (S.D.N.Y. 2001). In application, however, the waiver provision of § 740 is read more narrowly in order to avoid a chilling effect on plaintiffs seeking to bring whistleblower actions. See Catapano-Fox v. City of New York , No. 14-CV-8036, 2015 WL 3630725, at *8 (S.D.N.Y. June 11, 2015). The statute thus functions "to waive only other legal rights and remedies that protect against the same wrong the statute itself protects", so as not to provide duplicative recovery to plaintiffs. Menghini v. Neurological Surgery, P.C. , No. 15-CV-3534, 2016 WL 3034482, at *3 (E.D.N.Y. May 24, 2016) (quoting Barker v. Peconic Landing at Southold, Inc. , 885 F. Supp. 2d 564, 569 (E.D.N.Y. 2012) ).
Fatal to defendants’ attempt to jettison Dr. Kugel's ADA and Title VII claims under the waiver provision, it is well-settled that § 740(7) applies only to state law causes of action arising out of alleged retaliation for whistleblowing activities. Morales v. New York City Transit Authority , No. 05-CV-04097, 2008 WL 11433211, at *7 (E.D.N.Y. March 10, 2008) (emphasis added); see also Reddington v. Staten Island Univ. Hosp. , 511 F.3d 126, 134 (2d Cir. 2007) ("[F]ederal courts have interpreted the provision not to waive or otherwise affect rights arising under federal law"). As a result, Dr. Kugel's federal retaliation claims under ADA and Title VII are not barred as a matter of law by NYLL § 740(7).
Defendants also argue that plaintiff's NYSHRL and NYCHRL retaliation claims are barred as a matter of law under the waiver provision of § 740(7). Defs.’ Mem. at 15–16. A plaintiff is permitted to pursue a retaliation claim even after bringing a claim under § 740 if both claims happen to have overlapping as facts or are based on the same underlying retaliatory action. Cabrera v. Fresh Direct, LLC , No. 12-CV-6200, 2013 WL 4525659, at *2 (E.D.N.Y. Aug. 27, 2013) (quoting Collette , 132 F. Supp. 2d at 274 ). It is only when claims are based on identical facts to those giving rise to claims brought under § 740 are they barred as a matter of law. Feinman v. Morgan Stanley Dean Witter , 193 Misc. 2d, 496, 497, 752 N.Y.S.2d 229, 231 (N.Y. Sup. Ct. 2002) (emphasis added).
Dr. Kugel's NYSHRL and NYCHRL retaliation claims are predicated on defendants’ allegedly retaliatory behavior after Dr. Kugel made complaints of gender, religious, and familial discrimination. Am. Compl. ¶¶ 86–87. By contrast, Dr. Kugel's whistleblower claim under § 740 is premised upon defendants’ alleged retaliation against her for making complaints about their failure to follow established medical protocols and to abide by government orders regarding the COVID-19 pandemic. Dkt. 21-4 at 21. Dr. Kugel's whistleblower complaints thus constitute a separate protected activity from the requests underlying her civil rights claims under NYSHRL and NYCHRL. See Cabrera , 2013 WL 4525659, at *3 ("anti-discrimination statutes such as NYCHRL ‘protect against wrongs completely separate from those sought to be protected by Section 740 ’ and are not waived even when predicated on the same retaliatory action") (quoting Barker , 885 F. Supp. 2d at 569 ).
While it may be true that QNRNC's lackluster COVID-19 precautions bear at least some resemblance to Dr. Kugel's accommodation requests based on her disability, the underlying facts of the whistleblower and retaliation claims are nonetheless distinguishable. The whistleblower claim is predicated upon QNRNC's general misconduct in coordinating patient care and responding to guidance and regulations issued by state and federal authorities in their efforts to confront the pandemic. By contrast, the disability retaliation claims concern defendants’ alleged mishandling of Dr. Kugel's specific request for accommodation. Because each claim protects against separate wrongs, id. at *3, and arises under overlapping rather than identical facts, Feinman , 752 N.Y.S.2d at 231, the NYSHRL and NYCHRL retaliation claims are not barred as a matter of law by Dr. Kugel's concurrent pursuit of a state whistleblower claim.
Conclusion
In line with the foregoing, defendants’ motion to dismiss is granted with respect to the challenged federal claims, namely, plaintiff's ADA "failure to engage in the interactive dialogue" claim, Title VII gender and gender-plus discrimination claims, and Title VII religious discrimination claim. Plaintiff's other claims under ADA, which defendants do not challenge at this stage, remain intact as a basis for the Court's continued subject-matter jurisdiction.
Plaintiff's disability, gender, gender-plus, and religious discrimination claims under NYSHRL are likewise dismissed, along with the gender discrimination claim under NYCHRL. Defendants’ motion to dismiss the balance of plaintiff's state law claims is denied.
While leave to amend is generally freely given, see TechnoMarine SA v. Giftports, Inc. , 758 F.3d 493, 505 (2d Cir. 2014), "a district court need not grant leave to amend when doing so would be futile." Azkour v. Bowery Residents’ Comm., Inc. , 646 F. App'x 40 (2d Cir. 2016). The Court concludes that amendment would be futile with respect to the dismissed claims, and they are dismissed with prejudice, with the exception of plaintiff's religious discrimination claims under Title VII and NYSHRL. Plaintiff is granted 30 days from the docket entry of this Order to amend her religious discrimination claims with plausible factual allegations that address the shortcomings found by the Court, including any adverse employment action suffered by Dr. Kugel and whether any similar rule acted to restrict the vacation time taken by non-Jewish employees at QNRNC.
So Ordered.