Pawlik v. Buffalo City School District et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DASSY D. PAWLIK,
Plaintiff,
v.
BUFFALO CITY SCHOOL DISTRICT
a/k/a BUFFALO PUBLIC SCHOOLS and
THE CITY OF BUFFALO BOARD OF
EDUCATION,
Defendants.
REPORT AND
RECOMMENDATION
Case No. 1:24-cv-978-JLS-JJM
Plaintiff Dassy Pawlik commenced this action asserting discrimination on the
basis of sex, age, and disability by defendants Buffalo City School District (a/k/a Buffalo Public
Schools) and the City of Buffalo Board of Education (together, “defendants”) under Title VII of
the Civil Rights Act, 42 U.S.C. §2000e et seq. (“Title VII”), the Age Discrimination in
Employment Act, 29 U.S.C. §§621-34 (“ADEA”), and the Americans with Disabilities Act of
1990, 42 U.S.C. §12101 et seq. (“ADA”). Complaint [1]1.
Before the court is defendants’ motion to dismiss [5] the Complaint pursuant to
Fed R. Civ. P. (“Rule”) 12(b)(6), which has been referred to me by District Judge John L.
Sinatra, Jr. for initial consideration [6]. Having reviewed the parties’ submissions [5, 8], for the
following reasons, I recommend that the motion be granted in part and denied in part.
1 	Bracketed references are to CM/ECF docket entries, and page references are to CM/ECF
pagination.
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BACKGROUND
Pawlik was hired by defendants in 2004 as a substitute teacher in the culinary arts
program at Emerson School of Hospitality. Complaint [1], ¶9. In October 2016, she was made a
full-time culinary instructor at the school, where she remained until September 2019, when she
was transferred to teach culinary arts at the Buffalo School of Culinary Arts and Hospitality
Management at 75 Huron Street in Buffalo, New York (“PS 355”). Id., ¶10. PS 355 operates a
restaurant, at which Pawlik worked in the “Front of the House”. Id., ¶¶10-11.
In May 2022, Pawlik scheduled medical leave to undergo bilateral knee
replacement surgery. Id., ¶¶11, 18. Her scheduled return date was November 28, 2022. Id., ¶12.
She expected to remain in her “Front of the House” position upon her return, and she had
discussed this with Kathleen Schuta, Principal of the Buffalo School of Culinary Arts and
Hospitality Management. Id., ¶11.
However, on November 15, 2022, Assistant Principal Daniel Bass called Pawlik
to inform her that she would not be returning to the Front of the House, but instead was being
moved to the kitchen to a position described as “Banquets, Catering and Prepared Foods”. Id.,
¶12. This reassignment came as a shock to Pawlik in light of her previous conversation with
Schuta, but Bass described the reassignment as “non-negotiable”. Id., ¶13. Schuta was, at the
time of the call, also on medical leave. Id., ¶11.
Pawlik’s job performance to this point was “highly rated”, and she was the senior
female member of the culinary staff. Id., ¶15. Neither Schuta nor Bass ever indicated otherwise.
Id., ¶¶24, 29. Rather, Bass told Pawlik that they “were going for a different look” at the
restaurant, which Pawlik interpreted to refer to her age (she was born 1960) and her sex. Id., ¶¶3,
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16. Bass repeated this comment “several times”. Id., ¶16. He replaced Pawlik in the Front of the
House with a younger, male teacher. Id.
The Banquets, Catering and Prepared Foods position was a much more physically
demanding job, involving the frequent lifting of heavy boxes, pots, and other equipment. Id.,
¶¶37-38. While Pawlik’s doctor had cleared her to return to her work in the Front of the House,
this type of work was not specifically contemplated. Id. Defendants gave no consideration to a
reasonable accommodation in light of her return from bilateral knee surgery and having had a
“difficult” rehabilitation. Id., ¶¶18, 40. Defendants engaged in no “interactive process” to discuss
her reassignment to a more physically demanding position. Id., ¶20. The Banquets, Catering and
Prepared Foods division was also “losing business” and “failing”. Id., ¶30.
Pawlik attempted to contact Schuta about the situation, but she did not respond.
Id., ¶25. She contacted her union, the Buffalo Teacher’s Federation, who advised her to get a
lawyer. Id. Rather than return to work as scheduled, Pawlik chose to retire. Id., ¶40.2 She asserts
that she genuinely loved teaching culinary students and would not have retired but for
defendants’ actions. Id., ¶¶39-40.
On December 19, 2022, Pawlik filed a charge of employment discrimination
against defendants with the New York State Department of Human Rights and the United States
Equal Employment Opportunity Commission (“EEOC”). Id., ¶2. On July 24, 2024, the EEOC
sent Pawlik a Dismissal and Notice of Rights. Id. Pawlik filed the Complaint on October 11,
2024, in which she alleges discrimination based on sex, age, and disability. Id. at 1-9.
2 	According to documents adduced by defendants, Pawlik notified defendants of her intent to retire
on November 23, 2022, with an effective date of Monday November 28, 2022. See [5-2], [5-3] at 2.
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DISCUSSION
A. 	Dismissal Standard
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009); see Keiler v. Harlequin Enterprises Ltd., 751 F.3d 64, 68 (2d Cir.
2014). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. This “plausibility standard” requires that the plaintiff state “more than
labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In deciding a Rule 12(b)(6) motion, “the
Court must accept all factual allegations in the complaint as true, and draw inferences from those
allegations in the light most favorable to the plaintiff”. Alce v. Wise Foods, Inc., 2018 WL
1737750, *2 (S.D.N.Y. 2018).
B. 	Adverse Employment Action
Defendants argue that Pawlik fails to allege an adverse employment action as
required for a discrimination claim under the relevant statutes. Defendants’ Memorandum of
Law (“MOL”) [5-1] at 4-7. I disagree.
To state a claim of discrimination under Title VII and the ADEA, a plaintiff must
allege 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 District, 801 F.3d 72, 83 (2d Cir. 2015)
(Title VII discrimination); see Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 238 (2d Cir.
2007) (ADEA discrimination). Under the ADA, a plaintiff must allege that: “(1) the employer is
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subject to the ADA; (2) the plaintiff is disabled within the meaning of the ADA or perceived to
be so by her employer; (3) she was otherwise qualified to perform the essential functions of the
job with or without reasonable accommodation; (4) she suffered an adverse employment action;
and (5) the adverse action was imposed because of her disability”. Davis v. N.Y.C. Department
of Education, 804 F.3d 231, 235 (2d Cir. 2015).3 The definition of adverse employment action is
the same under all three regimes. See, e.g., Mitchell v. Planned Parenthood of Greater New York,
Inc., 745 F. Supp. 3d 68, 90 (S.D.N.Y. 2024).
The Second Circuit had long held that “[a] plaintiff sustains an adverse
employment action if he or she endures a materially adverse change in the terms and conditions
of employment”. Vega, 801 F.3d at 85. Under that rule, an adverse action “must be more
disruptive than a mere inconvenience or an alteration of job responsibilities”. Fox v. Costco
Wholesale Corp., 918 F.3d 65, 71 (2d Cir. 2019) (citation omitted). Such an action might include
“a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices unique to a particular situation”. Id.
(citation omitted). However, there was “no bright-line rule to determine whether a challenged
employment action is sufficiently significant to serve as the basis for a claim of discrimination”.
Davis, 804 F.3d at 235.
The “no bright-line rule” was dimmed even further by the Supreme Court’s
decision in Muldrow v. City of St. Louis, Missouri, 601 U.S. 346 (2024). There, the Court
rejected the proposition that the injury caused by an adverse employment action was required to
be “significant . . . serious, or substantial, or any similar adjective suggesting that the
disadvantage to the employee must exceed a heightened bar”. Id. at 355. Rather, a plaintiff “must
3 	These elements describe a different claim than Pawlik actually alleges, which is failure to
accommodate. See infra section C.
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[merely] show some harm respecting an identifiable term or condition of employment”. Id. The
Second Circuit has found, albeit in a Summary Order, that “Muldrow therefore overruled our
precedent, which required that the changes to a term or condition of employment be materially
adverse”. Back v. Hapoalim, 2024 WL 4746263, *2 (2d Cir. 2024).
The plaintiff in Muldrow, like Pawlik does here, alleged that she was transferred
to a worse position because of her membership in a protected class. 601 U.S. at 354. In that
context, the “[statutory] language requires [plaintiff] to show that her transfer brought about
some ‘disadvantageous’ change in an employment term or condition”. Id. That is, “[t]he transfer
must have left her worse off, but need not have left her significantly so”. Id. at 359. In that case
the court found the plaintiff’s allegations - i.e., that she was moved to a less prestigious division,
was assigned to more administrative work, was subject to a more irregular schedule, and lost the
use of an employer-provided car - to be plainly sufficient under that standard. Id.
Even prior to Muldrow, this Circuit has held that “an internal transfer can be an
adverse employment action if ‘accompanied by a negative change in the terms and conditions of
employment’.” Terry v. Ashcroft, 336 F.3d 128, 144 (2d Cir. 2003). For example, “[t]he transfer
of an employee . . . to one that is ‘less prestigious with little opportunity for professional growth’
is sufficient to permit a jury to infer that the transfer was a materially adverse employment
action”. Lore v. City of Syracuse, 670 F.3d 127, 170 (2d Cir. 2012) (citations omitted). While
certainly not every transfer will qualify as adverse, a plausible allegation that the new position
was worse in some tangible way has generally sufficed. See, e.g., Brady v. Wal-Mart Stores, Inc.,
531 F.3d 127, 134 (2d Cir. 2008) (“Brady’s transfer from the pharmacy to the parking lot
constituted an adverse employment action”); de la Cruz v. New York City Human Resources
Administration Department of Social Services, 82 F.3d 16, 21 (2d Cir. 1996) (transfer from
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Adoption Unit to Foster Care Unit sufficient to state a prima facie adverse action); Rodriguez v.
Board of Education, 620 F.2d 362, 366 (2d Cir. 1980) (transfer of an art teacher from junior high
school to elementary school).
Unsurprisingly then, “[f]ollowing Muldrow . . . employment transfers to less
prestigious or commodious positions, even if employee compensation remains the same, may
constitute adverse employment actions”. Darwin v. Newburgh Operations, LLC, 2025 WL
104140, *7 (S.D.N.Y. 2025). Here, Pawlik alleges that she was involuntarily transferred to
another position that was much more physically demanding, less public-facing (and perhaps less
prestigious), and was in a department facing financial distress. See Complaint [1], ¶¶30, 37-38.
While perhaps not the most egregious example, these plausible and uncontroverted allegations
suffice to allege that her impending transfer to the Banquets and Catering department was
“disadvantageous” to the terms and conditions of her employment.
In the same section, defendants also challenge whether Pawlik’s allegation that
Bass stated they “were going for a new look” is sufficient to support an inference of
discrimination. [5-1] at 6. The two concepts do somewhat overlap, because “[i]f an employee’s
transfer to a different job is motivated by [unlawful] considerations, it is obviously a
discriminatory action affecting terms or conditions of employment”. Day v. Derwinski, 771 F.
Supp. 588, 592 (S.D.N.Y. 1991).
In any event, the plaintiff’s burden at the pleading stage is “minimal”, and she
need only plausibly allege facts that provide “at least minimal support for the proposition that the
employer was motivated by discriminatory intent”. Littlejohn v. City of New York, 795 F.3d
297, 311 (2d Cir. 2015). To that end, Pawlik alleges that Bass made the “new look” comment
“several times”, would not explain to her what he meant by that comment, and that he ultimately
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replaced her with a person who was younger and male. [1], ¶16, 33-34. Drawing all inferences in
favor of the plaintiff, those allegations suffice to raise a plausible allegation of discrimination.
See, e.g., Dabney v. Christmas Tree Shops, 958 F. Supp. 2d 439, 451 (S.D.N.Y. 2013) (“[i]t is
well-settled . . . that ‘the mere fact that a plaintiff was replaced by someone outside the protected
class will suffice’ to establish the required inference of discrimination at the prima facie stage”,
aff’d, 588 F. App’x 15 (2d Cir. 2014) (quoting Zimmermann v. Associates First Capital Corp.,
251 F.3d 376, 381 (2d Cir. 2001)).
C. 	Known disability or request for accommodation
In her Third Cause of Action, Pawlik alleges that her bilateral knee surgery left
her substantially limited in a major life activity, and that defendants refused or otherwise failed
to make reasonable accommodation or to engage in a meaningful dialogue regarding such
accommodation, thereby discriminating against her. Complaint [1], ¶¶11, 18, 52, 55, 56.
Defendants argue that Pawlik fails to allege that she had a known disability or that a reasonable
request for accommodation was denied. Defendants’ MOL [5-1] at 7-8. On this point, I agree
with defendants.
“To make out a prima facie disability discrimination case based upon a failure to
accommodate, a plaintiff must establish that: ‘(1) plaintiff is a person with a disability under the
meaning of the ADA; (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’.” Tafolla v. Heilig, 80 F.4th 111,
118 (2d Cir. 2023); see 42 U.S.C. §12112(b)(5)(A). The parties’ dispute relates to the second and
fourth elements.
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“[G]enerally, ‘it is the responsibility of the individual with a disability to inform
the employer that an accommodation is needed’.” Graves v. Finch Pruyn & Co., 457 F.3d 181,
184 (2d Cir. 2006). However, “an employer has a duty reasonably to accommodate an
employee’s disability if the disability is obvious - which is to say, if the employer knew or
reasonably should have known that the employee was disabled”. Brady v. Wal-Mart Stores, Inc.,
531 F.3d 127, 135 (2d Cir. 2008). In such a case, the “employer is required to act proactively and
engage in an interactive process to accommodate the disability of an employee even if the
employee does not request accommodation”. McElwee v. County of Orange, 700 F.3d 635, 642
(2d Cir. 2012) (citing 29 C.F.R. §1630.2(o)(3)).
Pawlik argues that her disability was obvious to defendants, in light of the fact
that she had taken approved leave from May to November of 2022 to undergo and recover from
having both her knees replaced. Pawlik MOL [8] at 13; Complaint [1], ¶11, 18, 52, 53. However,
the Second Circuit has held that the mere fact that a person was out on medical leave “is
insufficient to plausibly allege notice that those injuries constituted a disability under the Act”.
Costabile v. New York City Health and Hospitals Corp., 951 F.3d 77, 82 (2d Cir. 2020).
Pawlik’s Complaint makes a conclusory allegation that she “was regarded or perceived by the
defendants” as having a disability ([1], ¶53), but does not specify who, how, or when such person
came to regard or perceive her as such. Nor does she allege in which life activities or work-
related tasks she is “substantially limit[ed]” or restricted from performing. See 42 U.S.C.
§12102(1); Doall v. New York State Unified Court System, 2024 WL 3302376, *8 (E.D.N.Y.
2024). On the contrary, she specifically alleges that she had discussed with Schuta returning to
her previous duties at the conclusion of her medical leave, and that she had been cleared by her
doctor to return to work. Id., ¶¶23, 38.
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Under those facts, it seems reasonable for defendants to assume that Pawlik was
not under a disability upon her expected return to work. While Pawlik alleges that the proposed
new position was more physically strenuous than her previous position, there is no allegation that
her clearance to return work was subject to any relevant restrictions. See Costabile, 951 F.3d at
82 (“Defendants received ‘regular updates from [plaintiff’s] doctor on his condition and ability
to work’, [and] he alleged no facts about the content of those updates from which it could
plausibly be inferred that Plaintiff’s disability was ‘obvious’ to Defendants”). From defendants’
perspective, Pawlik was cleared to return to duty, and her allegations do not indicate that she
made any attempt to disabuse them of that notion. Therefore, Pawlik fails to state a claim for
disability discrimination under the ADA.
Although defendants seek dismissal with prejudice, “[i]t is the usual practice upon
granting a motion to dismiss to allow leave to replead”. Cortec Industries, Inc. v. Sum Holding
L.P., 949 F.2d 42, 48 (2d Cir. 1991). “Here, nothing in the record suggests the deficiencies with
the Complaint are substantive such that Plaintiff cannot overcome [them]. [Therefore], Plaintiff
should be granted leave to file an Amended Complaint addressing the deficiencies.” Freeman v.
Liberty Communications, Inc., 2023 WL 4303007, *2 (W.D.N.Y. 2023), adopted, 2023 WL
4303741 (W.D.N.Y. 2023) (Sinatra, J.) (citation omitted).
CONCLUSION
For these reasons, I recommend that defendants’ motion to dismiss [5] be granted
as to plaintiff’s Third Cause of Action for disability discrimination under the ADA without
prejudice, and otherwise denied. Unless otherwise ordered by District Judge Sinatra, any
objections to this Report and Recommendation must be filed with the clerk of this court by
October 14, 2025. Any requests for extension of this deadline must be made to Judge Sinatra. A
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party who “fails to object timely . . . waives any right to further judicial review of [this]
decision”. Wesolek v. Canadair Ltd., 838 F. 2d 55, 58 (2d Cir. 1988); Thomas v. Arn, 474 U.S.
140, 155 (1985).
Moreover, the district judge will ordinarily refuse to consider de novo arguments,
case law and/or evidentiary material which could have been, but were not, presented to the
magistrate judge in the first instance. Patterson-Leitch Co. v. Massachusetts Municipal
Wholesale Electric Co., 840 F. 2d 985, 990-91 (1st Cir. 1988).
The parties are reminded that, pursuant to Rule 72(b) and (c) of this Court’s Local
Rules of Civil Procedure, written objections shall “specifically identify the portions of the
proposed findings and recommendations to which objection is made and the basis for each
objection . . . supported by legal authority”, and must include “a written statement either
certifying that the objections do not raise new legal/factual arguments, or identifying the new
arguments and explaining why they were not raised to the Magistrate Judge”. Failure to comply
with these provisions may result in the district judge’s refusal to consider the objections.
Dated: September 29, 2025
/s/ Jeremiah J. McCarthy
JEREMIAH J. MCCARTHY
United States Magistrate Judge
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