Blanchard v. Kiewit Power Constructors Co.

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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JASON BLANCHARD,
Plaintiff,
-v- 1:25-CV-423
KIEWIT POWER
CONSTRUCTORS CO.,
Defendant.
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APPEARANCES: OF COUNSEL:
PHILLIPS & ASSOCIATES, PLLC BRITTANY A. STEVENS, ESQ.
Attorneys for Plaintiff MORGAN L. MICKELSEN, ESQ.
45 Broadway, 28th Floor
New York, NY 10006
LEWIS BRISBOIS BISGAARD ERIN CAIN, ESQ.
& SMITH PETER T. SHAPIRO, ESQ.
Attorneys for Defendant
7 World Trade Center, 11th Floor
250 Greenwich Street
New York, NY 10007
DAVID N. HURD
United States District Judge
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DECISION and ORDER
I. INTRODUCTION
On April 4, 2025, Jason Blanchard (“plaintiff” or “Blanchard”) filed a six-
count action against his former employer Kiewit Power Constructors
Company (“Kiewit” or “defendant”), alleging discrimination, hostile work
environment, retaliation, and constructive discharge in violation of the
Americans With Disabilities Act of 1990 (“ADA”), the Uniformed Services
Employment and Reemployment Rights Act (“USERRA”), and the New York
State Human Rights Law (“NYSHRL”). Dkt. No. 1.
On July 8, 2025, Kiewit moved pursuant to Federal Rule of Civil
Procedure (“Rule”) 12(b)(6) to partially dismiss plaintiff’s complaint. That
motion has been fully briefed and will be considered on the basis of the
submissions and without oral argument. Dkt. Nos. 1, 12-1, 12-2, 13, 17.
II. BACKGROUND
A. Plaintiff’s Health
Blanchard, a resident of Columbia County, New York, enlisted in the
United States Army in 2000, where he was deployed to Iraq on multiple
occasions in 2003 and 2004. Compl. at ¶¶ 7–8. During these deployments,
plaintiff operated machine-gun equipment on transport vehicles and engaged
in active combat which caused him to suffer from nightmares and other
psychological symptoms. Id. ¶ 8–9. Blanchard’s symptoms affected his
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ability to perform his duties, and he was diagnosed with PTSD in April of
2005. Id. ¶¶ 9, 12. On December 5, 2005, plaintiff was discharged from
military service. Id. ¶ 10.
B. Plaintiff’s Employment
Kiewit is a foreign corporation with a principal place of business in
Nebraska. Compl. ¶ 17. On or about October 10, 2022, plaintiff was hired by
Kiewit as a Quality Manager I. Id. ¶ 20. Once hired, Blanchard was trained
in defendant’s district office in Lenexa, Kansas. Id. ¶ 21. During his
training, plaintiff was warned by Quality Manager Sarah Mahurin
(“Mahurin”) that another Kiewit employee, Quality Director Elbert Rojas
(“Rojas”), “was not a good manager.” Id. Mahurin instructed Blanchard to
call her if he ever felt compelled to quit his job. Id.
In December of 2022, plaintiff reported to Kiewit’s Albany, New York
office, where he met Rojas for the first time.1 Compl. ¶ 24–25. Plaintiff
contends that from his very first encounter with Rojas, he was discriminated
against when Rojas treated him as a nuisance and made clear attempts to
avoid speaking with him. Id. ¶¶ 25–26. Thereafter, in January of 2023,
plaintiff moved to New York “full time” to prepare for his first day working
for Kiewit in Albany. Id. ¶ 27. Around the same time, plaintiff alleges Rojas
1 Confusingly, plaintiff alleges he reported to the Albany office both in mid-October and
December of 2022. See Compl. ¶¶ 22, 24. It is unclear how much time plaintiff spent in Kiewit’s
training program in Kansas or precisely when he arrived in Albany based on the pleadings.
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ignored and refused to interact with him even though plaintiff was “about to
become his subordinate.” Id. ¶ 28. In late January, plaintiff started working
in Kiewit’s Albany office. Id. ¶ 29. On or around January 23, 2023, plaintiff’s
“job sponsor and [s]upervisor” Steven Mahoney (“Supervisor Mahoney”), who
also worked out of defendant’s Kansas location, visited the Albany office. Id.
¶ 30.
Plaintiff and Mahoney went to dinner in Albany, where they discussed
how Blanchard’s employment with Kiewit was going.2 Compl. ¶ 32. Plaintiff
told Mahoney that he was experiencing difficulties with Rojas and that Rojas
had “apparent hostilities” towards him. Id. ¶ 33. According to plaintiff,
Supervisor Mahoney indicated he had observed Rojas’ hostility towards
plaintiff firsthand, adding that Rojas spoke to plaintiff in “an aggressive and
dismissive way.” Id. ¶ 34. Plaintiff also alleges that Supervisor Mahoney
told him Rojas was “not a happy person[,]” “difficult to work for[,]” and
compared working for Rojas to playing a game. Id. ¶¶ 35–36. Mahoney
asked plaintiff if he could play that game, to which plaintiff replied that he
would "deal with Rojas’ behavior for as long as he could.” Id. ¶ 36.
2 Once again, the timeline set forth in plaintiff’s pleadings is confusing. For some period of time
starting in October of 2022, Blanchard was being trained by the defendant in Kansas. Compl. ¶ 20.
Plaintiff’s first day in Kiewit’s Albany office was in late January. Compl. ¶ 29. However, while
plaintiff’s complaint details Supervisor Mahoney visiting Albany in both December 2022 and
January 2023, plaintiff apparently only discussed Rojas’ conduct with Supervisor Mahoney during
the December visit even though he did not start working in Albany until January. See Compl. ¶¶
30–33.
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In February 2023, plaintiff alleges Rojas’ conduct towards him escalated
when he started making jokes about plaintiff’s weight. Compl. ¶ 37. Plaintiff
contends there were multiple instances, including during staff meetings,
where Rojas remarked that plaintiff did not “miss meals” and “wouldn’t turn
[down] a buffet.” Id. ¶ 38. Plaintiff alleges these types of comments
regarding his weight became “so frequent and distressing” for him that he
sought medical intervention for his weight. Id. ¶ 39. Thereafter, Blanchard
lost sixty pounds and Rojas stopped making jokes about his weight. Id.
Around August of 2023, plaintiff alleges Rojas’ began to target his
struggles with mental health and “related disabilities.” Compl. ¶ 40.
Plaintiff contends that, in the summer of 2023, he was having a casual
conversation with Rojas in an office when the discussion turned to medication
and treatment of disease. Id. ¶ 41. Plaintiff disclosed to Rojas that he had
PTSD stemming from his time in the military and takes mediation to
alleviate his symptoms. Id. Plaintiff alleges that Rojas responded: “In my
family, we don’t do that, we ‘man up.’” Id. ¶ 42. Blanchard construed this to
mean that Rojas saw him as weak for taking medication to treat his PTSD.
Id. ¶ 43. After this incident, plaintiff claims Rojas continued making jokes
about his PTSD, mocking his need for medication, and jokingly warning co-
workers to be careful what they said to plaintiff because his PTSD could
make him a danger. Id. ¶ 44.
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In October of 2023, Blanchard alleges Rojas made further disparaging
remarks directed towards his status as a military veteran, including
comments mocking his work product and suggesting that college educated
individuals were more intelligent than people who, like plaintiff, served in
the military without attending college. Id. ¶ 45. According to plaintiff, Rojas
made these remarks on numerous occasions causing him emotional distress,
affecting his work performance, and putting him in fear of losing his job. Id.
¶ 46.
On or about February 1, 2024, plaintiff alleges Rojas began to “create an
audience” for his remarks about plaintiff’s mental health. Compl. ¶ 47.
During a meeting with plaintiff and his co-workers, Rojas allegedly stated
that if plaintiff were to not take medication for his PTSD, “you do not know
what kind of person you are going to get.” Id. That same day, plaintiff
contends Kiewit Quality Specialist Carol Zheng (“Zheng”) reported his
discriminatory comments to Human Resources (“HR”) Director Britney
Mackey (“HR Director Mackey”). Id. ¶ 49.
In response to Zheng’s report, HR Director Mackey asked plaintiff to meet
in her office in Albany the same day the report was filed. Compl. ¶ 50.
During this meeting, plaintiff told HR Director Mackey he believed Rojas was
trying to “overwork him in order to force him to quit.” Id. ¶ 51. According to
Blanchard, HR Director Mackey then asked about Rojas’ comments during
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the meeting early that day and whether plaintiff was upset or offended by
them. Id. ¶ 52. In response, plaintiff contends that he fully disclosed entire
history of Rojas’ remark directed towards his disability and military status.
Id. ¶ 53.
Although HR Director Mackey assured Blanchard she would speak to
Rojas, she provided no additional assistance or guidance. Compl. ¶ 54.
Concerned that his interaction with HR Director Mackey would not resolve
his issues, Blanchard then contacted Supervisor Mahoney to ask what could
be done regarding Rojas’ behavior. Id. ¶ 55. The only solution Supervisor
Mahoney suggested was to transfer Blanchard away from Rojas. Id. ¶ 56.
C. Plaintiff’s Alleged Discharge
The following day, after discussing Rojas’ behavior and plaintiff’s concerns
with Mahoney and Mackey, plaintiff’s job sponsor Paul Stewart (“Supervisor
Stewart”) called Blanchard to obtain more information about what had
transpired with Rojas.3 Compl. ¶ 57. Blanchard then detailed his
experiences with Rojas to Supervisor Stewart, who replied: “Sounds like
[Rojas].” Id. ¶ 59. Supervisor Stewart told plaintiff he was expected to stand
up to Rojas, which he construed as Supervisor Stewart “acquiescing to Rojas’
3 According to plaintiff, Supervisors Stewart and Mahoney were both job sponsors for plaintiff as
to his employment with Kiewit, and each had the authority to “hire, fire, discipline, or otherwise
affect the decision maker of the same” with respect to his employment. Compl. ¶¶ 57–58. It is far
less clear whether Rojas had the same authority over plaintiff.
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discriminatory behavior and putting the onus on [p]laintiff […] to resolve
Rojas’ pattern of offensive and discriminatory comments.” Id. ¶ 60. Plaintiff
claims Stewart proceeded to express his disappointment in Blanchard’s job
performance, indicating that “we had higher expectations” when he was
hired. Id. ¶ 61. Plaintiff contends this was the first time he was ever told of
any dissatisfaction with his performance. Id. ¶ 62. Stewart then told
Blanchard that Mahoney would work on getting him transferred “out of New
York[,]” but that it would be some time before anything would be done for
him regarding Rojas. Id. ¶ 63.
The following day, Mackey requested to meet with plaintiff again, where
Blanchard was told he would be transferred to Texas. Compl. ¶ 64. On
February 26, 2024, faced with the prospect of leaving his family in New York
simply for reporting Rojas’ workplace behavior, Blanchard decided to resign.
Id. ¶ 65.
On July 6, 2024, plaintiff filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”).4 Compl. ¶ 5. On January
10, 2025, the EEOC issued the notice of his right to sue. Id. Plaintiff now
4 Plaintiff only included a copy of the EEOC Dismissal and Notice of Rights with his complaint.
Dkt. No. 1-1. A copy of the Charge of Discrimination accompanies defendant’s motion. Dkt. No. 12-
2.
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seeks declaratory relief along with compensatory and punitive damages.
Compl. at 14.5
III. LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, the complaint’s factual
allegations must be enough to elevate the plaintiff’s right to relief above the
speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). So
while legal conclusions can provide a framework for the complaint, they must
be supported with meaningful allegations of fact. Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009). In short, a complaint must contain “enough facts to state a
claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
To assess this plausibility requirement, the court must accept as true all of
the factual allegations contained in the complaint and draw all reasonable
inferences in the non-movant’s favor. Erickson v. Pardus, 551 U.S. 89, 94
(2007). In doing so, the court generally confines itself to the facts alleged in
the pleading, any documents attached to the complaint or incorporated into it
by reference, and matters of which judicial notice may be taken. Goel v.
Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (quoting Concord Assocs., L.P.
v. Ent. Props. Tr., 817 F.3d 46, 51 n.2 (2d Cir. 2016)).
5 Pagination corresponds to CM/ECF headers.
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IV. DISCUSSION
Blanchard’s complaint brings claims for: discrimination and hostile work
environment in violation of the ADA (Count 1), retaliation in violation of the
ADA (Count 2), discrimination and hostile work environment in violation of
the USERRA (Count 3), retaliation in violation of the USERRA (Count 4),
discrimination and hostile work environment in violation of the NYSHRL
(Count 5), and retaliation in violation of the NYSHRL (Count 6). Compl. ¶¶
77–96. While not listed as separate causes of action in his complaint,
plaintiff also alleges he was constructively discharged by defendant in
violation of the ADA, USERRA, and the NYSHRL. Id. ¶¶ 1, 80, 90, 96.
Defendants have now moved to dismiss Counts 1 through 4 of plaintiff’s
complaint, along with any constructive discharge claims. Def.’s Mem., Dkt.
No. 12-1 at 3.
A. Discrimination under the ADA
Blanchard’s complaint alleges that defendant discriminated against him
on the basis of his PTSD. Compl. ¶ 68. Plaintiff contends that when Zheng
swiftly reported Rojas’ remarks to HR Director Mackey, he was informed the
following day that he would be transferred from New York to Texas, which
would have displaced him from his family and home. Id. ¶¶ 66–67.
“The ADA prohibits employment discrimination ‘against a qualified
individual on the basis of disability.’” Sharikov v. Philips Med. Sys. MR, Inc.,
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104 F.4th 159, 166 (2d Cir. 2024) (quoting Davis v. N.Y.C. Dep’t of Educ., 804
F.3d 231, 234–35 (2d Cir. 2015)) (per curiam) (quoting 42 U.S.C. § 12112(a)).
To bring a prima facie employment discrimination claim under the ADA, a
plaintiff must show that: “(1) the employer is subject to the ADA, (2) the
employee is disabled or is perceived to be disabled as defined by the ADA, (3)
the employee is qualified to perform the essential functions of the job, with or
without reasonable accommodations, and (4) the employee suffers an adverse
employment action because of his disability.” Sharikov, 103 F.4th at 166
(citing Davis, 804 F.3d at 835).
Defendant contends that plaintiff has failed to make out a discrimination
claim under the ADA because he does not plausibly allege an adverse action.
Def.’s Mem., Dkt. No. 12-1 at 20–21. Specifically, defendant asserts that
plaintiff has not plausibly alleged that either: (1) his disability was the but-
for-cause of Kiewit’s decision to transfer him from New York to Texas; or (2)
he was ever constructively discharged. Id.
“To qualify as an adverse employment action, the employer’s action toward
the plaintiff must be ‘materially adverse’ with respect to ‘the terms and
conditions of employment.’” Guerrero v. Albany Med Health Sys., 2025 WL
2645540, at *6 (N.D.N.Y. Sept. 15, 2025) (quoting Davis v. N.Y.C. Dep’t of
Educ., 804 F.3d 231, 235 (2d Cir. 2015)) (cleaned up). In general, an adverse
employment action “must be more disruptive than a mere inconvenience or
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an alteration of job responsibilities.” Id. Termination, certain demotions,
loss of benefits, and decreased responsibilities have all been construed as
adverse employment actions. Id.
The Second Circuit has specified that, in the context of an ADA
discrimination claims, a plaintiff must prove but-for causation. Guerrero,
2025 WL 2645540 at *6 (citing Natofsky v. City of N.Y., 921 F.3d 337, 348 (2d
Cir. 2019)). Put differently, “plaintiff must prove that absent the defendant’s
discriminatory animus, the adverse action would not have occurred.”
Guerrero, 2025 WL 2645540, at *6. Thus, “at the pleading stage, plaintiff
must allege sufficient facts to support a finding of but-for causation.” Id.
As stated supra, plaintiff’s complaint alleges two adverse employment
actions: his transfer from New York to Texas and his constructive discharge
when he resigned after being told of the transfer. Compl. ¶¶ 64–67. One day
after Zheng reported Rojas’ remarks about plaintiff’s PTSD to HR, and after
plaintiff had discussed Rojas’ conduct with HR Director Mackey and
Supervisors Mahoney and Stewart, he was informed by HR that he would be
transferred from New York to Texas, requiring him to leave his home and
family. Id. ¶¶ 47–64.
While the Court finds defendant’s decision to transfer plaintiff to Texas to
be proximate in time to Zheng’s report, plaintiff’s complaint is nonetheless
devoid of any allegations to give even a minimal inference of discriminatory
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intent as to the decision to transfer him, i.e., he has not alleged that, but for
his PTSD, he would not have been transferred. Rather, plaintiff has alleged
being told he was being transferred in order to get him away from Rojas.
Compl. ¶ 56. Similarly, plaintiff’s decision to resign in the face of his transfer
does not include any non-conclusory allegations of defendant’s discriminatory
animus. Accordingly, plaintiff’s ADA discrimination claim will be dismissed
without prejudice.
B. Hostile Work Environment under the ADA
Next, plaintiff brings a hostile work environment claim under the ADA
arguing that defendant discriminated against him on the basis of his PTSD,
retaliated against him for complaining about the discrimination by
transferring him from New York to Texas, and constructively discharged him.
Compl. ¶ 77–80.
“Because the ADA echoes and expressly refers to Title VII [of the Civil
Rights Act of 1964], and because the two statutes have the same purpose—
the prohibition of illegal discrimination in employment—it follows that
disabled Americans should be able to assert hostile work environment claims
under the ADA.” Butrym v. Sarsick, 2021 WL 1927073, at *5 (N.D.N.Y. May
13, 2021) (quoting Fox v. Costco Wholesale Corp., 918 F.3d 65, 74 (2d Cir.
2019)). Plaintiffs bringing hostile work environment claims “must show (1)
that the harassment was sufficiently severe or pervasive to alter the
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conditions of her employment; and (2) a specific basis exists for imputing the
objectionable conduct to the employer.” Fox, 918 F.3d at 74.
Defendant now seeks the dismissal of plaintiff’s ADA hostile work
environment claim on two grounds: (1) plaintiff failed to exhaust his
administrative remedies with respect to his hostile work environment claims
under the ADA; and (2) plaintiff has failed to plausibly allege workplace
harassment that was severe or pervasive. Def.’s Mem., Dkt. No. 12-1 at 16.
In defendant’s view, while plaintiff’s EEOC charge alleges discrimination and
retaliation on the basis of his disability, it failed to allege, or make any
mention of, a hostile work environment. Id. at 16–17.
Prior to bringing an action in federal court alleging violations of the ADA,
“a plaintiff must first file a timely charge with the EEOC.” Basso, 577
F.Supp.3d at 83 (citing 42 U.S.C. § 12117). The ADA sets forth a 300-day
statute of limitations for filing a charge with the EEOC after the alleged
unlawful practice occurred. 42 U.S.C. § 12117(a) (citing 42 U.S.C. § 2000e-5).
Claims not raised in an EEOC charge may nonetheless be deemed exhausted
if they are “reasonably related to claims that were in fact raised in the
charge.” Basso, 577 F.Supp.3d at 83 (citing Mathirampuzha v. Potter, 548
F.3d 70, 76 (2d Cir. 2008) (cleaned up).
Claims are found to be reasonably related to the claims raised in the
charge where: “(1) the conduct complained of would fall within the scope of
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the EEOC investigation which can reasonably be expected to grow out of the
charge of discrimination; (2) the plaintiff is alleging retaliation by an
employer against an employee for filing an EEOC charge; or (3) a plaintiff
alleges further incidents of discrimination carried out in precisely the same
manner alleged in the EEOC charge.” Id. (cleaned up).
With respect to the first of these three categories, which is the sole
category relevant to plaintiff’s complaint, Courts “focus on the factual
allegations made in the EEOC charge” to determine whether the charge
“gave th[e] agency adequate notice to investigate discrimination on the
[newly alleged basis].” Basso, 577 F.Supp.3d at 83 (quoting Mathirampuzha,
548 F.3d at 76–77). In making this determination as to a newly alleged
hostile work environment claim, the Circuit has made clear that hostile work
environment claims are distinct from claims of discrete acts. Id. (quoting
Mathirampuzha, 548 F.3d at 77); see also Terry v. Ashcroft, 336 F.3d 128, 148
(2d Cir. 2003) (holding that “incidents must be more than episodic; they must
be sufficiently continuous and concerted in order to be deemed pervasive.”)
In addition, a plaintiff must show that the “workplace is permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of the victim's employment.” Harris v.
Forklift Sys., 510 U.S. 17, 21 (1993).
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With respect to defendant’s exhaustion of administrative remedies
argument, plaintiff indeed did not assert a hostile work environment claim in
his EEOC charge. In his EEOC charge, plaintiff alleges that, in the Summer
of 2023, he disclosed to Rojas that he suffered from PTSD and took
medication to alleviate the symptoms related to his PTSD. EEOC Charge,
Dkt. No. 12-2 at ¶ 35. According to plaintiff, Rojas responded to this
disclosure in a manner that plaintiff perceived to suggest he was weak for
taking medication to treat his PTSD symptoms. Id. at ¶¶ 36–37. After this
incident, plaintiff alleges Rojas continued to make jokes regarding his PTSD
including mocking his need for medication, jokingly warning co-workers to be
careful how they spoke to plaintiff, and suggesting that he could be “a
danger” due to this PTSD. Id. ¶ 38.
Plaintiff also alleged that on February 1, 2024, during a meeting with
Rojas and other co-workers, Rojas remarked that if plaintiff failed to take his
PTSD medication, “you do not know what kind of person you are going to
get.” EEOC Charge, Dkt. No. 12-2, at ¶ 41. As a result of this meeting, one
of plaintiff’s co-workers submitted a human resources complaint to Mackey.
Id. at ¶ 43. Upon review, the Court finds plaintiff’s allegations provided the
EEOC with sufficient notice to investigate a hostile work environment claim.
However, plaintiff has failed to plausibly allege a hostile work
environment claim under the ADA. In addition to the fact that a plaintiff
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must show that he “subjectively perceiv[ed] the conduct as abusive, the
misconduct shown also must be ‘severe or pervasive enough to create an
objectively hostile or abusive work environment.’” Fox, 918 F.3d at 74
(quoting Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002)) (cleaned up).
Accordingly, “[a] plaintiff bringing a hostile work environment claim under
the ADA […] ‘must demonstrate either that a single incident was
extraordinarily severe, or that a series of incidents were sufficiently
continuous and concerted to have altered the conditions of her working
environment.’” Fox, 918 F.3d at 74 (quoting Harris¸ 510 U.S. at 20). “Courts
look to the totality of the circumstances to determine whether a plaintiff has
met this burden, including proof of “the frequency of the discriminatory
conduct; its severity; whether it [was] physically threatening or humiliating,
or a mere offensive utterance; and whether it unreasonably interfere[d] with
[the plaintiff's] work performance.”
In sum, the plaintiff has alleged two separate and discrete incidents where
Rojas made offensive remarks on the basis of his disability. While these
alleged incidents may constitute “offensive utterances[,]” the Court does not
find that plaintiff has plausibly alleged that they were “extraordinarily
severe.” Further, given the infrequent nature of Rojas’ remarks as to
plaintiff’s disability, the Court does not find the comments to be sufficiently
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pervasive. Accordingly, plaintiff’s hostile work environment claim under the
ADA will be dismissed.
C. Retaliation Under the ADA
Plaintiff also alleges that defendant retaliated against him for
complaining about Rojas’ discriminatory conduct when they told him they
were transferring him the day after Zheng filed a report and constructively
discharged him by displacing him from his family and home in order to
maintain his employment.
Under the ADA, employers may not “coerce, intimidate, threaten, or
interfere with any individual in the exercise or enjoyment of […] any right
granted or protected by this chapter.” Sharikov, 103 F.4th at 159 (citing
Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 222 (2d Cir. 2001)
(quoting 42 U.S.C. § 12203(b))). Employers are prohibited from taking
adverse action against an employee for engaging in a protected activity. Id.
(citing Tafolla v. Heiling, 80 F.4th 111, 125 (2d Cir. 2023)) (cleaned up). “An
employee can satisfy the protected activity requirement even if his condition
‘was not a disability under the ADA’ so long as ‘he can establish that he
possessed a good faith belief that the underlying challenged actions of the
employer’ violated the ADA.” Sharikov, 103 F.4th at 159. (quoting Sarno v.
Douglass Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999)
(cleaned up).
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“[T]he elements of a retaliation claim under […] the ADA are (i) a plaintiff
was engaged in protected activity; (ii) the alleged retaliator knew that
plaintiff was involved in protected activity; (iii) an adverse decision or course
of action was taken against plaintiff; and (iv) a causal connection exists
between the protected activity and the adverse action.” Natofsky, 921 F.3d at
353 (quoting Weixel v. Bd. of Educ. of City of N.Y., 287 F.3d 138, 148 (2d Cir.
2002) (cleaned up). “A causal connection in retaliation claims can be shown
either ‘(1) 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 who engaged in similar
conduct; or (2) directly, through evidence of retaliatory animus directed
against the plaintiff by the defendant.’” Id. (quoting Littlejohn v. City of N.Y.,
795 F.3d 297, 319 (2d Cir. 2015)) (cleaned up).
“An adverse action is ‘any action that could well dissuade a reasonable
worker from making a or supporting a charge of discrimination,” and “covers
a broader range of conduct than does the adverse-action standard for claims
of discrimination.’” Id. (quoting Vega v. Hempstead Union Free Sch. Dist.,
801 F.3d 72, 90 (2d Cir. 2015) (detailing the retaliation standard under Title
VII)); see also Sarno, 183 F.3d at 159 (setting forth that the ADA and Title
VII retaliation provisions are substantially the same).
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Defendant now seeks dismissal of plaintiff’s ADA retaliation claim (Count
Two). Def.’s Mem., Dkt. No. 12-1 at 22. Defendant asserts that plaintiff has
not plausibly alleged his participation in a protected activity because
Blanchard fails to plead that he opposed defendant’s discriminatory conduct.
Id. In defendant’s view, plaintiff has only made “general allegations of
mistreatment” that could not have put defendant on notice he was opposing
discriminatory conduct. Id. at 32.
Plaintiff has alleged that he was diagnosed with PTSD in 2005 and is
therefore disabled within the meaning of the ADA. Compl. ¶¶ 12–13.
Plaintiff contends that he engaged in a protected activity when, after being
the subject of discriminatory remarks directed at his disability on February
1, 2024, one of his co-workers complained on his behalf by reporting the
conduct to HR Director Mackey that same day. Id. ¶¶ 47–49. As a result of
this report, plaintiff engaged in a series of discussions the same day Zheng
reported Rojas’ conduct. First, plaintiff alleges HR Director Mackey
requested to speak with him about the report, where he fully disclosed all of
Rojas’ conduct towards him over the course of his employment with Kiewit.
Id. ¶¶ 50–53. Next, plaintiff had a discussion with Supervisor Mahoney, who
told him the only solution would be to transfer him away from Rojas. Id. ¶
56. Next, plaintiff discussed the incident with Supervisor Stewart, who
informed him defendant would seek to transfer him to a different work
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location. Id. ¶¶ 56–63. Plaintiff alleges that during this conversation,
Supervisor Stewart unexpectedly voiced dissatisfaction with his work
performance, something he had been no prior indication of. Id. ¶ 61–62.
Taking into account plaintiff spoke with multiple individuals employed by
defendant either in the HR department or with supervisory authority over
plaintiff, he has plausibly alleged that defendant knew that he engaged in a
protected activity.
The following day, plaintiff was told he would be transferred to Texas and
therefore was “faced with the prospect of leaving his family in New York
simply for reporting Rojas’ discrimination.” Compl. ¶ 65. Plaintiff has
alleged that this transfer would “[displace] him from his family and home”
and “was in clear violation of complaints of discrimination based on his
disability[.]” Compl. ¶ 67. Thus, plaintiff has plausibly alleged an adverse
action, i.e., his transfer, along with a causal connection between engaging in
a protected activity related to his disability and the adverse action. Put
differently, the prospect of being transferred out-of-state in response to
reporting discriminatory conduct in the workplace would dissuade a
reasonably worker from lodging a complaint. Upon review, defendant’s
motion to dismiss plaintiff’s retaliation claim will be denied.
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D. Constructive Discharge
Next, plaintiff alleges that he was constructively discharged by defendant.
Plaintiff contends that, after being told on February 2, 2024 that he was
being transferred to Texas, and “[f]aced with the prospect of leaving his
family in New York simply for reporting Rojas’ discrimination, he made the
decision to design.”
Constructive discharge is one type of adverse employment action which
occurs “when the employer, rather than acting directly, deliberately makes
an employee's working conditions so intolerable that the employee is forced
into an involuntary resignation.” Caskey v. Cnty. of Ontario, 560 F. App’x 57,
59 (2d Cir. 2014) (quoting Morris v. Schroder Capital Mgmt. Int'l, 481 F.3d
86, 88 (2d Cir.2007)) (cleaned up).
Upon review, plaintiff has not plausibly alleged that his working
conditions were so intolerable that he was left with no other choice but to
resign. While plaintiff has alleged that being transferred to Texas was an
undesirable outcome, he has offered no allegations to suggest his working
conditions were so intolerable that he was left with no choice besides
quitting. To the contrary, Blanchard has alleged that he made the decision to
resign. Compl. ¶ 65. Accordingly, defendant’s motion to dismiss plaintiff’s
constructive discharge claim will be granted.
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E. Plaintiff’s USERRA Claims
Plaintiff also brings claims for discrimination, hostile work environment,
retaliation, and constructive discharge under the USERRA. Compl. ¶¶ 85–
90. Confusingly, in support of his USERRA claims, plaintiff only contends
that defendant “engaged in unlawful employment practices in violation of the
ADA[, not the USERRA,] by discriminating against him on the basis of his
disability (PTSD), and retaliating against him due to his complaints of
discrimination by transferring him from New York to Texas, displacing him
from his family, and thus constructively discharging [him].” Compl. ¶ 90.
Kiewit has moved to dismiss each of Blanchard’s USERRA claims. Def.’s
Mem., Dkt. No. 12-1 at 8. In sum, defendant argues that while plaintiff is a
United States Army veteran protected under the USERRA, he has failed to
plausibly allege any connection between his status as a military veteran
veteran and the alleged harassment or adverse action. Id.
USERRA bars discrimination based on an individual’s military status.
Hughes v. City of N.Y., 2021 WL 7542440, at *6 (E.D.N.Y. Aug. 25, 2021)
(citing Serricchio v. Wachovia Sec. LLC, 658 F.3d 169, 174 (2d. Cir. 2011)).
The USERRA sets forth that “[a] person who is a member of […] a uniformed
service shall not be denied […] any benefit of employment by any employer on
the basis of that membership.” 38 U.S.C. § 4311(a). At the pre-answer stage,
a plaintiff must plausibly allege his military service was a substantial or
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motivating factor in the alleged discrimination. Hughes, 2021 WL 7542440,
at *6 (citing Hunt v. Klein, 2011 WL 651876, at *3 (S.D.N.Y. Feb. 10, 2011)
(cleaned up).
Although the law is not well-settled with respect to hostile work
environment claims under the USERRA, it “properly is read as recognizing
hostile work environment claims.” Hughes, 2021 WL 7542440, at *6. As with
ADA hostile work environment claims, USERRA hostile work environment
claims are evaluated using Title VII standards and case law.” Id. (citing
Kassel v. City of Middletown, 272 F.Supp.3d 516, 541 (S.D.N.Y. 2017))
(cleaned up). Finally, other courts have held that discrimination premised
upon a “service-related disability, as opposed to military status,” fails to give
rise to a cause of action under USERRA. Hughes, 2021 WL 7542440, at *6
(collecting cases); see also Rivera v. Cty. of Suffolk, 2023 WL 2403616, at *2
(holding that USERRA claims are unsuccessful where based “principally on
the assertion that defendant “perceived and/or regarded Plaintiff as suffering
from Post-Traumatic Stress Syndrome (PTSD), or paranoia, or anger
management issues, or another impairment or disability related in whole or
in part to Plaintiff's prior military service and veteran status.”). Finally,
USERRA claims, like ADA claims, are evaluated under Title VII standards.
Hughes, 2021 WL 7542440, at *6 (collecting cases).
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Defendant now moves to dismiss plaintiff’s USERRA claims contending
that plaintiff has failed to plausibly connect the alleged harassment and
adverse action to his protected status as a military veteran to make out a
sufficient USERRA discrimination claim. Def.’s Mem., Dkt. No. 12-1 at 8.
Defendant asserts that Blanchard fails to plausibly allege a hostile work
environment under the USERRA because he has not described any conduct
that was severe or pervasive. Def.’s Mem., Dkt. No. 12-1 at 9. In defendant’s
view, plaintiff has alleged conduct which amounts to infrequent teasing by a
“generally insensitive manager” who exhibited neither animus towards
veterans nor took any adverse action against plaintiff. Id. Although plaintiff
has alleged one remark Rojas made regarding the “intellectual disparity”
between college-educated individuals and those, like plaintiff, who served in
the military without receiving a college education, defendant asserts that a
single statement does not give rise to a finding of severe or pervasive conduct.
Id. at 10.
Upon review, the Court finds plaintiff’s USERRA claims to be based on
comments Rojas made either ridiculing his PTSD or mocking his work
product and making statements suggesting college educated individuals were
more intelligent than people like plaintiff that served in the military without
going to college. Compl. ¶¶ 44–45. Blanchard alleges Rojas made these
remarks numerous times causing him emotional distress, affecting his work
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performance, and putting him in fear of losing his employment. Id. ¶ 46. As
an initial matter, Plaintiff’s cannot bring a USERRA claim on the basis of
disability discrimination. Hughes, 2021 WL 7542440, at *6. In addition,
plaintiff has failed to plausibly allege that he was discriminated against on
the basis of his military status. Even viewing plaintiff’s claims in a light
most favorable, the single statement regarding the intellectual disparity
between a college graduate and plaintiff does not constitute a discrete act
that would give rise to a finding of “severe or pervasive” harassment. The
allegation that Rojas unfavorably compared Blanchard’s education to that of
a college graduate, taken as a single discrete incident, is also not
“extraordinarily severe.” Fox, 918 F.3d at 74. Nor has plaintiff alleged in
non-conclusory terms how this statement was materially adverse. Further,
plaintiff has not alleged any connection between this statement and any
adverse action that followed. Accordingly, each of plaintiff’s USERRA claims
will be dismissed.
D. NYSHRL Claims
Plaintiff also brings claims for discrimination, hostile work environment,
retaliation, and constructive discharge on the basis of disability
discrimination in violation of the NYSHRL. Compl. ¶¶ 91–96. A claim of
disability discrimination under the [NYSHRL] is governed by the same legal
standards as govern federal ADA claims. Graves v. Finch Pruyn & Co., Inc.,
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457 F.3d 181 (2d Cir. 2006) (citing Parker v. Columbia Pictures Indus., 204
F.3d 326, 332 n. 1 (2d Cir. 2000). Insofar as a plaintiff “brings a state-law
disability-discrimination claim, it survives or fails on the same basis as his
ADA claim.” Id.
Defendant has not moved to dismiss plaintiff’s NYSHRL claims on the
merits, instead only requesting that the Court decline to exercise
supplemental jurisdiction over these claims in the event that his ADA and
USERRA claims are dismissed. Given that plaintiff’s retaliation claim under
the ADA survives this motion to dismiss for the reasons stated supra, his
NYSHRL claim will also survive. Consistent with this standard, plaintiff’s
remaining NYSHRL claims for discrimination, hostile work environment, and
constructive discharge on the basis of his disability must be dismissed for the
same reasons his ADA claims for discrimination, hostile work environment,
and constructive discharge claims fail as discussed supra.
V. CONCLUSION
Defendant’s motion to dismiss plaintiff’s ADA claims for disability
discrimination and hostile work environment (Count I), his USERRA claim
for discrimination and hostile work environment (Count III), his USERRA
claim for retaliation (Count IV), and his NYSHRL claim for discrimination
and hostile work environment (Count V) will be GRANTED. In addition,
Kiewit’s motion to dismiss plaintiff’s constructive discharge claims, which
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were not identified as separate causes of action, will be GRANTED.
However, defendant’s motion to dismiss plaintiff’s retaliation claims under
the ADA and NYSHRL (Counts II and VI) will be DENIED.
Therefore, it is
ORDERED that
1. Defendant’s partial motion to dismiss (Dkt. No. 12) is GRANTED in
part and DENIED in part;
2. Plaintiff’s ADA claims for discrimination, hostile work environment,
and constructive discharge (Count I) are dismissed;
3. Plaintiff’s USERRA claims for discrimination, hostile work
environment, constructive discharge, and retaliation (Counts III and IV) are
dismissed;
4. Plaintiff’s NYSHRL claims for discrimination, hostile work
environment and constructive discharge (Count V) are dismissed;
5. Defendant’s motion to dismiss plaintiff’s retaliation claims under the
ADA and NYSHRL (Counts II and VI) is DENIED; and
6. Defendant has until March 17, 2026 to file an answer to plaintiff’s
surviving ADA and NYSHRL retaliation claims.
The Clerk of the Court is directed to terminate the pending motion and set
deadlines accordingly.
IT IS SO ORDERED.
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Dated: March 3, 2026
Utica, New York.
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