Keneston v. New York State Office of the State Comptroller

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
ERIN KENESTON,
Plaintiff,
1:24-CV-0136
v. 	(GTS/DJS)
NEW YORK STATE OFFICE OF THE STATE
COMPTROLLER; THOMAS P. DiNAPOLI,
New York State Comptroller; JAMIE MIZENER;
and JOAN GAGE,
Defendants.
__________________________________________
APPEARANCES: 	OF COUNSEL:
FINN LAW OFFICE 	RYAN M. FINN, ESQ.
Counsel for Plaintiff
12 Sheridan Avenue
Albany, NY 12207
HON. LETITIA JAMES 	ELIZABETH V. LOMBARDI, ESQ.
New York State Attorney General 	Assistant Attorney General
Counsel for Defendants
300 South State Street, Suite 300 	TIMOTHY P. MULVEY, ESQ.
Syracuse, NY 13202 	Assistant Attorney General
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this employment discrimination action brought by Erin
Keneston (“Plaintiff”) against the New York State Office of the State Comptroller (“OSC”), New
York State Comptroller Thomas P. DiNapoli, Jamie Mizener, and Joan Gage (collectively
“Defendants”), is Defendants’ motion for summary judgment pursuant to Fed. R. Civ. P. 56.
(Dkt. No. 29.) 	For the reasons set forth below, Defendants’ motion for summary judgment is
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granted.
I. 	RELEVANT BACKGROUND
A. 	Plaintiff’s Amended Complaint
Liberally construed, Plaintiff’s Amended Complaint asserts four claims: (1) a claim that
Defendant DiNapoli discriminated against her in the terms and conditions of her employment on
the basis of her disability in violation of the Americans with Disabilities Act (“ADA”) by failing
to engage in the interactive process and denying her a reasonable accommodation; (2) a claim
that all Defendants discriminated against her in her terms and conditions of her employment on
the basis of her disability in violation of Section 504 of the Rehabilitation Act of 1973; (3) a
claim that all Defendants retaliated against her for pursuing her rights under the law in violation
of Section 504 of the Rehabilitation Act of 1973; and (4) a claim that all Defendants retaliated
against her for pursuing her rights under the law in violation of the New York State Human
Rights Law (“NYSHRL”). 	(Dkt. No. 4.)
B. 	Undisputed Material Facts on Cross-Motions for Summary Judgment
Under N.D.N.Y. Local Rule 56.1, a party opposing summary judgment must file a
response to the moving party’s Statement of Material Facts that “shall mirror the movant’s
Statement of Material Facts by admitting and/or denying each of the movant’s assertions in a
short and concise statement, in matching numbered paragraphs,” supported by “a specific
citation to the record where the factual issue arises.” 	N.D.N.Y. L.R. 56.1(b). 	This requirement
is not a mere formality; rather “this and other local rules governing summary judgment are
essential tools intended to relieve the district court of the onerous task of hunting through
voluminous records without guidance from the parties.” 	LaFever v. Clarke, 17-CV-1206, 2021
WL 921688, at *6 (N.D.N.Y. Mar. 11, 2021) (Hurd, J.) (quoting Frantti v. New York, 414 F.
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Supp. 3d 257, 284 [N.D.N.Y. 2019] [Hurd, J.]). 	Indeed, “[a] proper response to a movant’s
statement of material facts streamlines the summary judgment analysis ‘by allocating
responsibility for flagging genuine factual disputes on the participants ostensibly in the best
position to do so: the litigants themselves.’” 	LaFever, 2021 WL 921688, at *7 (quoting Alke v.
Adams, 16-CV-0845, 2018 WL 5297809, at *2 [N.D.N.Y. Oct. 25, 2018] [Hurd, J.]). 	“The
Court may deem admitted any properly supported facts set forth in the Statement of Material
Facts that the opposing party does not specifically controvert.” 	N.D.N.Y. L.R. 56.1(b).
As an initial matter, the Court finds that Plaintiff’s response to Defendants’ Statement of
Material Facts does not wholly comply with the requirements of the Local Rules. 	Specifically,
Plaintiff has combined her supporting declaration with a Local Rule 56.1(b) response, thereby
simultaneously attempting to offer specific evidence while denying various assertions of fact
made by Defendants. 	(Dkt. No. 34, Attach. 1, at 3-10.) 	Such a dual-purpose Local Rule
56.1(b) response is entirely improper.1
1 	See Cusamano v. Sobek, 604 F. Supp. 2d 416, 432 (N.D.N.Y. 2009) (“[Plaintiff’s] . . . 40-
page, 139-paragraph, single-spaced, handwritten document that attempted to serve as the
following four things at the same time: (1) a partial Rule 7.1 Response (and counter-statement of
facts); (2) a Rule 7.1 Statement of Material Facts (in support of Plaintiff’s cross-motion for
summary judgment); (3) a declaration; and (4) a document containing legal arguments (including
ad hominem attacks on defense counsel). . . . Such a document is in flagrant violation of
numerous local rules. As a result, the document in question was, and is, properly disregarded by
the Court.”); Zimmerman v. Burge, 06-CV-0176, 2008 WL 850677, at *14 n.64 (N.D.N.Y. Mar.
28, 2008) (“I note that Plaintiff’s attachment of a (self-serving) affirmation at the end of his Rule
7.1 Statement, pursuant to 28 U.S.C. § 1746, is not sufficient to transform the factual assertions
therein into factual assertions supported by record citations, as required by Local Rule 7.1. . . .
As an initial matter, Local Rule 7.1 implicitly makes a distinction between a Statement of
Material Facts and the record. . . . Moreover, such a verification cannot serve as admissible
evidence in the event of trial because it fails to demonstrate how the affiant is competent to
testify to the facts he or she alleges . . . . Finally, such a verification cannot transform several of
Plaintiff’s factual assertions into evidence since they are devoid of necessary specifics.”)
(internal quotation marks and citations omitted).
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Granted, Plaintiff has also submitted a separate Local Rule 56.1(b) response. 	(Dkt. No.
34, Attach. 2.) 	However, this response appears to be nothing more than a copy of the relevant
content of her improper declaration-response, and indeed acknowledges at its beginning that
“Plaintiff as and for her response to the Statement of Material Facts claimed by defendants refer
to the Keneston Declaration, which provides a paragraph by paragraph response starting at
Section E, Paragraph 14 which states (in the first person and citing to that particular Section E as
Record proof) . . . . 	(Compare Dkt. No. 34, Attach. 2 with Dkt. No. 34, Attach. 1, at 3-10.) 	As
a result, this separate response (which the Court will liberally construe as her intended Local
Rule 56.1[b] response) lacks any of the “specific” citations to her declaration that are demanded
by Local Rule 56.1(b). 	See N.D.N.Y. L.R. 56.1(b) (“Each denial shall set forth a specific
citation to the record where the factual issue arises.”) (emphasis added).2 	The Court declines to
2 	See Robert H. Law, Inc. v. Woodbine Bus. Park, Inc., 13-CV-1393, 2018 WL 851382, at
*5 (N.D.N.Y. Feb. 12, 2018) (“[T]he Court does not accept this as an undisputed fact [because] .
. . Defendant cited generally to the entire affidavit of Derek Tarolli rather than to a specific
portion of that affidavit where its assertion is supported . . . .”); Alex v. Gen. Elec. Co., 149 F.
Supp. 3d 253, 280 (N.D.N.Y. 2016) (“[T]he Court draws the line at Plaintiff’s practice, in her
Rule 7.1 Response, of routinely citing a section of her deposition transcript spanning 196 pages,
and often adding references to one or more deposition transcripts in their entirety.”); Rizzo v.
Health Research, Inc., 12-CV-1397, 2016 WL 632546, at *2 (N.D.N.Y. Feb. 16, 2016) (“Of
these 136 denials, 117 denials do not contain a specific citation to the record. Therefore, the facts
‘denied’ by these paragraphs will be deemed admitted.”); Clark v. N.Y.S. Office of the State
Comptroller, 09-CV-0716, 2014 WL 823289, at *1, n. 8 (N.D.N.Y. Mar. 3, 2014) (“While Clark
responded, . . . she did not do so in compliance with Local Rule 7.1(a)(3). For instance, many of
Clark’s denials do not, as Rule 7.1 requires, set forth a specific citation to the record where the
factual issue arises, but instead accompany an instruction to ‘see record evidence’ or ‘see total
record evidence,’ contain no citation whatsoever, or generally cite an entire document–often, an
entire deposition transcript.”); Benson v. Otis Elevator Co., 10-CV-3246, 2012 WL 4044619, at
*1 n.1 (S.D.N.Y. Sept. 13, 2012) (deeming fact asserted by movant to be admitted by non-
movant where non-movant supported denial “only with non-specific citations to the entire
testimony of several witnesses”); Wang v. Swain, 09-CV-0306, 2011 WL 887815, at *1
(N.D.N.Y. Mar. 14, 2011) (“[A] simple citation to an ‘exhibit’ consisting of numerous
documents, or citation to a deposition without a pinpoint citation to where in the deposition
support for the denial is contained, is insufficient.”); Bronner v. Catholic Charities of Roman
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conduct a sua sponte review of this 11-page, single-spaced declaration. 	However, of course, the
Court will not turn a blind eye to any contradictory evidence that it comes across during its
ordinary review of the record (e.g., to determine if Defendants have met their threshold burden).
The Court also observes that Plaintiff’s intended Rule 56.1(b) response often cites, as
support for its various denials, Plaintiff’s unverified Amended Complaint. 	(Dkt. No. 34, Attach.
2, at ¶¶ 5, 10, 11, 14, 28, 51.) 	Of course, an unverified complaint may not be relied on by a
plaintiff as admissible record evidence when opposing a defendant’s motion for summary
judgment. 	See Gottlieb v. Cnty. of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (“[The non-moving
party on a motion for summary judgment] cannot defeat the motion by relying on the allegations
in [its] pleading . . . .”). 	However, a closer question is presented by Plaintiff’s attempt, in her
opposition to Defendants’ motion, to retroactively transform the factual allegations of her
unverified complaint into sworn assertions. 	(Dkt. No. 34, Attach. 1, at 1, 11 [“Pursuant to 28
U.S.C. § 1746, Erin Keneston being duly sworn, deposes and says: . . . I have reviewed the
Catholic Diocese of Syracuse, Inc., 08-CV-0015, 2010 WL 981959, at *1 (N.D.N.Y. Mar. 15,
2010) (“Plaintiff simply cites to the documents generally, i.e., a simple cite to the exhibit
number, and in many instances, cites to numerous exhibits to support a single proposition.
Apparently, Plaintiff or his attorneys expect the Court to wade through the mass of paper to find
whether or not the ‘cite’ supports a proposition made by Plaintiff . . . .”); Janneh v. Regal Entm’t,
07-CV-0079, 2009 WL 2922830, at *1 n.3 (N.D.N.Y. Sept. 8, 2009) (“In response . . . Janneh
filed a ‘Statement of Material Facts Not in Dispute.’ . . . The document consists of . . . a phrase at
the end of the document stating simply: ‘See Attached Exhibits.’ Janneh’s statement fails to
comply with the Local Rules which Janneh has repeatedly been advised about . . . .”); Mercer v.
Brunt, 299 F. Supp. 2d 21, 23 n.1 (D. Conn. 2004) (“The parties’ failure to appropriately cite to
the record has made the Court’s duty that much more difficult. When a party cites to a transcript,
not only must the page be cited, but also the lines relied upon. Counsel and pro se parties are
hereby notified that failure to provide specific citations to evidence in the record as required by
this Local Rule [Loc. R. Civ. P. 56] may result in sanctions . . . .”) (internal quotation marks
omitted); Univ. Calvary Church v. City of New York, 96-CV-4606, 2000 WL 1538019, at *2 n.6
(S.D.N.Y. Oct. 17, 2000) (“Despite the clear language of Rule 56 requiring specificity, Plaintiffs
rarely offers an exact cite in support of their version of the facts. . . . [A] vague cite to all of the
exhibits is simply unacceptable.”).
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Amended Complaint, and can confirm that the factual allegations asserted in that Complaint are
accurate and true based upon my personal knowledge. . . . 	I declare under penalty of perjury
that the foregoing is true and correct”].) 	Under the circumstances, the Court will consider this
attempted transformation successful. 	Cf. Gupta v. Green, 109 F. App'x 992, 993 (9th Cir. 2004)
(“Gupta's declaration under penalty of perjury merely swore that he did indeed incorporate the
statement of facts in his amended complaint, not that the statements in that unverified complaint
were true.”).
Applying the relevant legal standard here, the following facts have been asserted and
supported by record citations by Defendants, and either expressly admitted or denied without a
supporting record citation by Plaintiff.
1. 	Plaintiff is currently employed as a Grade-12 Employees’ Retirement System
Examiner 2 (“ERSE 2”) at the Office of the State Comptroller (“OSC”).
2. 	Plaintiff, in her position as an ERSE 2, currently directly reports to her immediate
supervisor, Defendant Mizener.
3. 	In 2023, Plaintiff was also employed as a Grade-12 ERSE 2 at the OSC.
4. 	In 2023, in her position as an ERSE 2, Plaintiff directly reported to her immediate
supervisor, Defendant Mizener.
5. 	An ERSE 2 processes the full range of determinations and customer inquiries in the
Customer Contact Center and processes requests for service credit modifications and benefit
payments for the New York State and Local Retirement System.3
3 	Plaintiff expressly admits only “part” of this asserted fact, but does not specify which part
of it she implicitly denies, does not cite any admissible record evidence in support of a partial
denial, and instead adds facts that do not directly address what is asserted in the presented fact.
(Dkt. No. 34, Attach. 2, at ¶ 4.) 	Because Plaintiff has not cited any evidence to support a denial
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6. 	Additionally, although Plaintiff denies being a supervisor, an ERSE 2 provides
technical supervision to ERSE 1s and office assistants, which includes reviewing calculations
and work completed by staff to ensure compliance with all policies, regulations, and laws.4
and because the purpose of a response is not to add facts, this asserted fact is deemed admitted.
See N.Y. Teamsters v. Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir. 2005) (upholding grant
of summary judgment where “[t]he district court, applying Rule 7.1[a][3] strictly, reasonably
deemed [movant’s] statement of facts to be admitted” because the non-movant submitted a
responsive Rule 7.1[a][3] statement that “offered mostly conclusory denials of [movant’s] factual
assertions and failed to include any record citations”); Yetman v. Capital Dis. Trans. Auth., 12-
CV-1670, 2015 WL 4508362, at *10 (N.D.N.Y. July 23, 2015) (citing authority for the point of
law that the summary judgment procedure involves the disputation of asserted facts, not the
disputation of implied facts); Nanos v. City of Stamford, 609 F. Supp. 2d 260, 263 (D. Conn.
2009) (“With regard to Nanos’s responses to Paragraphs 8, 13, 15, 17, 19, 20, and 26 of the
City’s Local Rule 56(a)1 Statement, the Court finds that Nanos does not actually deny the City’s
factual allegations, but simply adds commentary or analysis not related to the existence or non-
existence of the facts alleged by the City. Such commentary or analysis is not appropriate when
responding to a Local Rule Statement, and is best left to the discussion in Nanos’s memorandum
of law. Therefore, the Court deems admitted [these] Paragraphs . . . of the City’s Local Rule
56(a)1 Statement.”).
4 	Plaintiff denies this asserted fact, and states that she is “not a supervisor and did not have
supervisory authority over ERSE 1s or office assistants.” 	(Dkt. No. 34, Attach. 2, at ¶ 5.) 	In
support of this denial, Plaintiff cites a paragraph of her Amended Complaint and a portion of a
deposition transcript. 	(Id.) 	However, the cited paragraph of Plaintiff’s Amended Complaint
(even when treated as verified) merely states, “Plaintiff is not a supervisor.” 	(Dkt. No. 4, at ¶ 9.)
Neither Plaintiff’s Amended Complaint nor her Local Rule 56.1(b) response denies Defendants’
factual assertion that an ERSE 2’s duties “include[] reviewing calculations and work completed
by staff to ensure compliance with all policies, rules, regulations, and laws.” 	(Dkt. No. 4, at ¶ 9;
Dkt. No. 34, Attach. 1, at 3 ¶ 5.) 	In fact, Plaintiff expressly acknowledges that an ERSE 2 does
provide at least some “occasional peer assistance or quality checks . . . .” 	(Dkt. No. 34, Attach.
1, at 3 ¶ 5.) 	Moreover, the portion of the deposition transcript cited by Plaintiff (i.e., pages 7
through 9 of Defendant Jamie Mizener’s deposition transcript) does not controvert the fact
asserted by Defendants. 	(Dkt. No. 29, Attach. 6, at 7-9 [Ex. B to Lombardi Decl.].) 	Indeed, the
fact asserted by Defendants is clearly supported by the evidence presented by them, including a
Tentative Classification Standard expressly stating that the “illustrative duties” of an ERSE 2
include “function[ing] as a technical supervisor of Office Assistances and ERSE 1s” and
“review[ing] calculations and work completed by staff and ensure compliance with all relevant
policies, rules, regulations, and laws.” 	(Dkt. No. 29, Attach. 65, at 11.) 	Another document (an
Office of State Comptroller Duties Statement) defines a “functional” supervisor as one who
“reviews and approves the work of staff performing a specific activity, but not their overall work
behavior and assignments.” 	(Id. at 15.) 	For all of these reasons, Plaintiff’s general assertion
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Plaintiff’s Reasonable Accommodation Request
7. 	As of January 2021, Plaintiff had a diagnosis of unspecified anxiety disorder from her
primary care provider, Dr. Lettrick.
8. 	In July 2021, OSC’s Division of Diversity Management received a reasonable
accommodation request from Plaintiff to telecommute four days per week as needed to control
her general anxiety disorder and panic attacks.
9. 	In a letter dated August 11, 2021, Dr. Lettrick stated that the Plaintiff has been
diagnosed with anxiety and panic attacks. 	Her triggers were noted as “social situations and
crowded places,” and it was noted that “[s]he manages them with medication, removing herself
from the situation or avoiding the said situation.” 	Dr. Lettrick additionally noted that “[s]he had
been treated for these conditions for over 5 years.”
10. 	In September 2021, the Division of Diversity Management sent a Reasonable
Accommodation Determination to Plaintiff, offering an alternative accommodation to move
Plaintiff to a vacant cubicle distanced from other staff members, and indicating that stackers
were being placed in the cubicles in Plaintiff’s area the following month to provide additional
privacy.5
that she is “not a supervisor” is insufficient to create a genuine dispute of material fact as to this
specific factual assertion.
5 	Plaintiff expressly admits “DDM issued such a determination about cubicle placement”
but then, instead of expressly denying any portion of Defendants’ asserted fact, she improperly
attempts to add facts regarding her “condition’s triggers” (which were never mentioned in the
asserted fact). 	In any event, in support of this added fact, Plaintiff cites only a paragraph of her
Amended Complaint that does not actually support the added fact. 	(Compare Dkt. No. 34,
Attach. 2, at ¶ 10 with Dkt. No. 4, at ¶ 15.) 	The Court notes that, despite the fact that she
admitted in this response that the accommodation to relocate her cubicle occurred in response to
her 2021 request for accommodation, she testified at her deposition that this accommodation
occurred in response to her later 2023 request. 	(Dkt. No. 29, Attach. 4, at 133.) 	Not only is
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11. 	Plaintiff was also notified that, in addition to the reasonable accommodation
involving the location of her cubicle, the Determination stated that “you may request your
management’s approval to participate in the agency’s telecommuting program that allows
employees to work from home up to four days per pay period.”6
12. 	In November 2022, Dr. Lettrick stated that Plaintiff’s “[a]nxiety is under control on
sertraline, depression is in remission, will continue sertraline 100mg daily. 	Will try to get a
reasonable accommodation for patient to allow her to work from home.”
13. 	Beginning prior to 2023, the Office of the State Comptroller required employees to
fulfill at least 50% of their non-field duties at their work location.7
14. 	Plaintiff submitted another reasonable accommodation request to the Division of
Diversity Management on January 12, 2023, seeking the “flexibility to work from home full time
as needed.”
this deposition testimony directly contracted by her Local Rule 56.1(b) response, it is also
directly contradicted by the Reasonable Accommodation Determination letter dated September
2, 2021, in which it is noted that “DDM met with your management team and agreed to move
your workstation to a vacant cubicle distanced from other staff members,” as well as that
“stackers are being placed on the cubicles in your area by early October 2021,” which will
“provide additional privacy and protective shielding.” 	(Dkt. No. 29, Attach. 11, at 1.) 	Under
the circumstances, the Court finds that Plaintiff has effectively admitted the entirety of this
asserted fact.
6 	This asserted fact is deemed admitted in its entirety because, again, Plaintiff has not
expressly denied any portion of the asserted fact, but rather merely attempts to assert additional
facts. 	See, supra, Notes 3 and 5 of this Decision and Order.
7 	Plaintiff expressly denies only that in-office presence of at least 50% was constituted “an
essential function” of her position. 	(Dkt. No. 34, Attach. 2, at ¶ 13.) 	The Court agrees with this
partial denial to the extent that the evidence cited by Defendants does not establish that this
telecommute policy was considered an “essential function” of any position, merely that it is what
was the telecommute policy at the time. 	For these reasons, the Court has omitted the relevant
language regarding in-office presence of at least 50% as being an essential function of Plaintiff’s
position, and deemed the remainder of the asserted fact admitted.
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15. 	This request letter included notes from Dr. Lettrick dated January 13, 2023, which
stated that it was Dr. Lettrick’s opinion that Plaintiff ‘should be given an accommodation at work
to allow her to work 100% from home. 	She is more productive and reliable when working from
home, and this would significantly reduce her risk for serious illness due to her condition.”
16. 	Dr. Lettrick also stated in this documentation that Plaintiff has a long history of
anxiety with panic attacks, and “[h]er symptoms are significantly affected by going to work in
person for the Office of the State Comptroller. 	She gets anxious just getting ready to drive to
work, her symptoms accelerate on her drive to work and continue throughout the workday,
despite the offices [sic] effort to give her privacy while at work.”
17. 	The Division of Diversity Management was responsible for OSC’s reasonable
accommodation process in 2023.
18. 	On January 19, 2023, Thomas Green, an Equal Opportunity Specialist 1 with the
Division of Diversity Management, sent a fax to Dr. Lettrick’s office posing additional questions
about how Plaintiff’s medical condition affects her in the office as opposed to working from
home.
19. 	Those additional questions requested further information from Dr. Lettrick regarding
Plaintiff’s disability and in-office triggers.
20. 	That same day, Mr. Green called Plaintiff on her cell phone and informed her of the
additional questions being sent to her medical provider.
21. 	During that phone call, Plaintiff stated that she would follow up with Dr. Lettrick and
requested a copy of the additional questions.
22. 	Mr. Green emailed Plaintiff a copy of those additional questions.
23. 	Lettrick Family Medicine, PLLC sent a fax to the Division of Diversity Management
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on January 24, 2023, resubmitting the same medical documentation dated January 13, 2023.
24. 	None of the additional questions faxed by the Division of Diversity Management
were answered with this fax.
25. 	On January 26, 2023, Mr. Green and Deputy Comptroller for the Division of
Diversity Management Nancy Hernandez decided that they needed to determine the duration of
both Plaintiff’s medical condition and the recommended accommodation.8
26. 	On the same date, Mr. Green also had a conversation with Defendant Mizener and
Kim Zeto, the Director for the Bureau where Plaintiff worked.9
27. 	During the conversation with Defendant Mizener and Ms. Zeto, Defendant Mizener
confirmed that Plaintiff’s cubicle was in an aisle with only one other person, and that other
8 	Plaintiff expressly admits an unspecified “part” of this asserted fact and then, instead of
expressly denying any portion of the asserted fact, she disclaims personal knowledge of DDM’s
internal deliberations and improperly attempts to add facts. 	(Dkt. No. 32, Attach. 2, at ¶ 25.)
See also, supra, Note 3 of this Decision and Order. 	In any event, she provides no citation to
admissible record evidence in support of those improperly added facts. 	(Id.) 	As a result, this
fact is deemed admitted in its entirety. 	The Court adds only that a lack of knowledge is, of
course, not a basis for a denial. 	See Cornell Univ. v. Tompkins-Cortland Counties Building
Trades Council, Maintenance Div., 775 F. Supp. 3d 640, 643 n.2 (N.D.N.Y. 2025) (Hurd, J.)
(“[I]t is insufficient to deny a properly supported fact due to a ‘lack of knowledge.’”) (citing
Disability Rights N.Y. v. N.Y. State Dept. of Corrs. & Cmty. Supervision, 20-CV-1487, 2024 WL
184248, at *4 n.3 [N.D.N.Y. Jan 16. 2024] [Suddaby, J.]); Percoco v. Lowe’s Home Ctrs., LLC,
208 F. Supp. 3d 437, 440 n.2 (D. Conn. 2016) (“Plaintiff, at various points, fails to admit or deny
facts and instead states that she has ‘no knowledge.’ . . . The Court deems those facts admitted
because ‘no knowledge’ is a noncognizable response.”); In re Horowitz, No. 14-36884, 2016 WL
1039581, at *1 n.2 (Bankr. S.D.N.Y. Mar. 15, 2016) (“On a motion for summary judgment,
denials based on a lack of knowledge or information sufficient to form a belief are insufficient to
contest a disputed fact . . . .”); Davis v. City of Syracuse, 12-CV-0276, 2015 WL 1413362, at *2
(N.D.N.Y. Mar. 27, 2015) (“On a motion for summary judgment, denials of fact that are based
on a lack of personal knowledge, mere information or belief, and/or inadmissible evidence are
insufficient to create a genuine dispute.”).
9 	This asserted fact is deemed admitted for the reasons discussed above in Note 3 of this
Decision and Order.
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employees were several feet away from Plaintiff.10
28. 	When asked about Plaintiff’s essential job functions, Ms. Zino and Defendant
Mizener stated that, although Plaintiff is not a supervisor, she may serve as a “technical
supervisor” and look over the work of lower-level clerical staff and serve as a mentor to other
staff, and that this should be done in-office. 	They also advised that there could be other
instances where Plaintiff may be needed in-office for a special project or training.11
29. 	On January 27, 2023, Mr. Green called Lettrick Family Medicine, PLLC and left his
contact information with their receptionist.
30. 	On January 30, 2023, Mr. Green spoke with Dr. Lettrick by telephone.
31. 	Dr. Lettrick opined that Plaintiff’s medical condition is lifelong, and that the
disability-related limitation in her workplace is that she faces “stimuli” in the office, including
“people causing commotions” or “being loud” which are not present when Plaintiff is at home.
32. 	Dr. Lettrick also stated during this conversation that exposure to COVID-19 could
exacerbate Plaintiff’s medical condition.
33. 	Further, Dr. Lettrick stated that Plaintiff has difficulty driving to work because the
10 	This asserted fact is deemed admitted for the reasons discussed in Note 3.
11 	Plaintiff denies the asserted fact, stating that she is “not a supervisor” and did “not have
ongoing ‘technical supervision’ responsibilities that would require in-person presence. 	Any
occasional mentoring or quality checks, when requested, have been handled via Teams and
electronic systems.” 	(Dkt. No. 34, Attach. 2, at ¶ 28.) 	As a threshold matter, the asserted fact
specifically regards only what Defendant Mizener and Ms. Zino told Mr. Green regarding
Plaintiff’s job duties, and nothing in Plaintiff’s response or cited evidence contradicts that
asserted fact. 	In any event, Plaintiff’s denial (which disavows “ongoing” supervisory duties and
acknowledges “occasional” such duties) is not supported by the record evidence she cites,
because that evidence does not indicate that there would never be a time when her technical
supervisory (or other) duties would need to be performed in-office. 	This asserted fact is
therefore deemed admitted.
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idea of going “into the world” or a crowded place exacerbates her condition.
34. 	Finally, when Mr. Green asked Dr. Lettrick if there were any alternatives, he stated
that giving Plaintiff a private office could serve as an alternative in-office accommodation.12
35. 	On February 1, 2023, Mr. Green had a meeting with Defendant Mizener and Michelle
Correll (who was at that time the Personnel Liaison for the Division of Retirement Services)
where they discussed the possibility of doing a 60% telecommuting schedule for Plaintiff with
the days being spread apart so that Plaintiff would not be doing back-to-back days in the office
because she had previously indicated having particular difficulty coming into the office on back-
to-back days.
36. 	During that meeting, Defendant Mizener stated that a different schedule would be
difficult as there would be different supervisors in-office when Plaintiff was in the office during
a 60% schedule.13
37. 	On February 2, 2023, Mr. Green, Ms. Hernandez, Defendant Mizener, Ms. Correll,
Ms. Zeto, and Defendant Gage had a meeting and again discussed the possibility of Plaintiff
working a 60% telecommuting schedule with the days being spread apart so that Plaintiff was
not working back-to-back days in the office.14
38. 	At this meeting, Plaintiff’s managers again discussed concerns about Plaintiff
working without direct supervision.15
12 	This asserted fact is deemed admitted for the reasons discussed in Note 8.
13 	Plaintiff denies personal knowledge of this asserted fact, which (again) is insufficient to
support a denial. 	See, supra, Note 8 of this Decision and Order.
14 	This asserted fact is deemed admitted for the reasons discussed in Note 8.
15 	Plaintiff denies this asserted fact, stating that her supervisors “did not have concerns
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14
39. 	On February 3, 2023, Ms. Hernandez and Mr. Green met with Plaintiff to discuss
management’s position regarding the essential functions of her job.
40. 	During this meeting, Plaintiff claimed that she did not train or mentor anyone, and
that her work was tracked so there should not be an issue with her working without direct
supervision.
41. 	Ms. Hernandez asked Plaintiff about the 60% telecommuting proposal.
42. 	Plaintiff stated that a 60% telecommuting schedule where she worked remotely every
other day could work.16
43. 	Plaintiff verbally agreed to the 60% telecommuting schedule as a reasonable
accommodation.17
about [her] working without direct in-person supervision.” 	(Dkt. No. 34, Attach. 2, at ¶ 38.)
This asserted fact is deemed admitted for reasons similar to those stated above in Note 11 of this
Decision and Order. 	As a threshold matter, the asserted fact specifically regards only the
concerns that were discussed at a meeting by Plaintiff’s managers (who included individuals in
addition to specifically Jamie Mizener); and nothing in Plaintiff’s response or cited evidence
contradicts that asserted fact. 	Rather, Plaintiff’s cited evidence (two pages of the transcript of
the deposition of Defendant Mizener) merely indicates that, independent of what concerns may
have been discussed at the meeting, Defendant Mizener did not “have a problem with her
working full-time from home.” 	(Dkt. No. 29, Attach. 6, at 11.) 	This fact is therefore deemed
admitted.
16 	This asserted fact is deemed admitted for the reasons discussed in Notes 3 and 8.
17 	Plaintiff denies the asserted fact “as characterized” then, without explaining what parts of
the asserted fact she is denying or admitting, improperly attempts to add facts regarding why she
agreed or whether the accommodation was “sufficient” or “final.” (Dkt. No. 34, Attach. 2, at ¶ 43
[adding that she “temporarily agreed to try the 60% schedule so [she] could continue working
and avoid exacerbating [her] condition; [she] did not agree that 60% was a sufficient or final
accommodation. [Her] request for 100% telework remained pending, with my commitment to
appear in person as necessary”].) 	However, the asserted fact expressly says nothing about why
she agreed or whether the accommodation was “sufficient” or “final”; and a Local Rule 56.1(b)
response is not a place to deny implications of fact. 	See, supra, Note 3 of this Decision and
Order. 	Furthermore, her denial lacks a supporting citation to admissible record evidence. 	To
the contrary, Defendants’ assertion is supported by Plaintiff’s own deposition transcript. 	(Dkt.
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15
44. 	After that meeting, Ms. Hernandez and Mr. Green met with Ms. Zeto so that
Plaintiff’s managers knew Plaintiff’s position regarding the proposed accommodation.
45. 	Ms. Zeto advised that she would speak with Defendant Mizener and Defendant Gage
the next business day to make sure the 60% telecommuting schedule worked for them.
46. 	On February 7, 2023, Ms. Zeto responded to an email from Mr. Green stating that
management was agreeable to the proposal of Plaintiff telecommuting 60% pursuant to the
previously discussed schedule.
47. 	On February 10, 2023, a reasonable accommodation memorandum was sent to
Plaintiff granting a 60% telecommuting schedule until May 10, 2023.
48. 	The telecommuting schedule as described in this memorandum was that Plaintiff
would telecommute on Mondays, Wednesdays, and Fridays, and she was required to be in the
office on Tuesdays and Thursdays.
49. 	Plaintiff began working this schedule immediately.
50. 	Three times during her deposition, Plaintiff referred to the process in which she
engaged with OSC as “interactive.”18
51. 	On February 16, 2023, Plaintiff filed a disability discrimination complaint with the
New York State Division of Human Rights (“NYSDHR”).
52. 	On March 30, 2023, NYSDHR served a letter along with Plaintiff’s discrimination
No. 29, Attach. 4, at 150; Dkt. No. 29, Attach. 5, at 1.) 	For these reasons, the Court finds that
Plaintiff’s denial is not properly supported and therefore deems the asserted fact to be admitted.
18 	(Dkt. No. 29, Attach. 2, at ¶ 51 [citing Dkt. No. 29, Attach. 4, at 133, 147-48, 165-66]
with Dkt. No. 34, Attach. 2, at ¶ 51 [denying the fact only “as characterized,” and in any event
citing only Paragraphs 20-22 and 47-48 of the Amended Complaint, which do not controvert the
above-stated fact].)
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complaint on Defendant OSC.
53. 	This letter was date-stamped as received by Defendant OSC’s mailroom on April 3,
2023.
54. 	Pursuant to NYSDHR’s own records, it first notified Defendant OSC of Plaintiff’s
discrimination complaint when it mailed the letter and complaint on March 30, 2023.
55. 	On April 26, 2023, legal counsel for Defendant OSC filed a letter with NYSDHR
responding to Plaintiff’s discrimination complaint.
56. 	On May 5, 2023, Dr. Lettrick wrote an addendum in Plaintiff’s medical records that
stated that her “condition restricts her ability to drive to work and causes her to be anxious and
distracted at work due to close proximity to other coworkers. 	She does not tolerate close
exposure to others, as well as noise and commotion around her workstation. 	She would have
difficulty driving to work, and would be able to work in the office if she had a private office with
a door, and was able to work with minimal distractions. 	Short of that, I would recommend she
work from home 100% of the time.”
57. 	NYSDHR drafted a Final Investigation Report and Basis for Determination dated
September 22, 2023, which was received by Defendant OSC pursuant to a FOIL request for
Plaintiff’s case file.
58. 	In a Determination and Order After Investigation dated September 27, 2023,
NYSDHR dismissed Plaintiff’s discrimination complaint on a finding of “No Probable Cause.”
Plaintiff’s Time Theft and Resulting Investigation
59. 	On or shortly before February 14, 2023, Defendant Gage and Defendant Mizener
discovered that Plaintiff had submitted more than 20 hours of overtime for the most recent week.
60. 	On February 14, 2023, Defendant Gage and Defendant Mizener met with Plaintiff to
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17
remind her that she could work only 20 hours of paid overtime per week.
61. 	On or shortly before February 23, 2023, Defendant Mizener discovered that Plaintiff
had recorded having worked overtime for several hours on February 18, 2023, until 7:30 p.m.,
even though the system Plaintiff used to conduct work was down for a period of several hours
beginning at 6:00.p.m.19
62. 	Defendant Mizener reported this to Defendant Gage on or about the same day.
63. 	On or shortly before February 23, 2023, there was a Teams call between Labor
Relations Representative Gillian Gersen and Defendant Gage about another employee having
been caught stealing time, and Defendant Gage mentioned that Plaintiff appeared to have stolen
time as well.
64. 	Defendant Gage explained to Ms. Gersen what Defendant Mizener had reported and
indicated to Ms. Gersen that there were longstanding concerns about Plaintiff potentially stealing
time.20
65. 	Defendant Gage asked Ms. Gersen if Defendant Mizener should begin gathering data
19 	Although Plaintiff purports to deny this fact, nothing in her response contradicts the
assertion that she (a) recorded overtime after 6:00 p.m. on the relevant date, or that (b)
subsequently Defendant Mizener discovered that the system was down after 6:00.p.m. that day
(regardless of whether Plaintiff worked on a case after that time and emailed Mizener the case
number so that he could see the time that it was closed). 	(Dkt. No. 34, Attach 2, at ¶ 62.) 	To
the contrary, Plaintiff’s response appears to acknowledge that the system went down that day.
(Id. [“Normally when the system goes down, it kicks you out of it.”].) 	Moreover, Plaintiff
expressly acknowledges that she emailed Defendant Mizener that she “would change the time to
6:00.” 	(Id. [“I emailed Jamie that I would change the time to 6:00.”].) 	As a result, this asserted
fact is deemed admitted for the reasons discussed in Notes 3 and 8.
20 	This asserted fact is deemed admitted for the reasons discussed in Note 3. 	The Court
adds that Plaintiff’s per-case production rate and absence of negative reviews have little, if any,
bearing on what Joan Gage told Gillian Gersen on or shortly before February 23, 2023, about the
above-stated longstanding concerns.
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18
about this, and Ms. Gersen stated not to do anything because she wanted to speak with her
supervisor.
66. 	On February 23, 2023, Defendant Gage received an email from Ms. Gersen that she
had spoken with her supervisor and that they should take no further action until Plaintiff
submitted the timesheet at issue.
67. 	Defendant Gage emailed Ms. Gersen that same date stating that Plaintiff had
submitted her telecommuting event for February 18, 2023, and that Plaintiff had represented that
she telecommuted until 7:30 p.m.
68. 	On or about March 2, 2023, Plaintiff submitted her timesheet that included her having
worked 1.5 hours of overtime between 6:00.p.m. and 7:30.p.m. on February 18, 2023.
69. 	Defendant Mizener returned the timesheet to Plaintiff shortly after and asked her to
change her hours worked to end at 6:00 p.m. because the system was down and she could not
have worked overtime beyond then.
70. 	Plaintiff updated the timesheet to reflect that she stopped working at 6:00.p.m., and
resubmitted the corrected timesheet to Defendant Mizener, who approved it.21
71. 	On March 14, 2023, Defendant Gage emailed Ms. Gersen stating that Plaintiff
submitted her timesheet incorrectly by claiming to have worked times when she did not work,
that Defendant Mizener returned the timesheet to Plaintiff and asked her to change the end time
to 6:00 p.m., and that Plaintiff did this.
21 	Plaintiff denies this asserted fact, but attempts to support that denial only with the words
“See 62.” 	(Dkt. No. 34, Attach. 2, at ¶ 71.) 	However, nothing in Paragraph 62 of Plaintiff’s
Local Rule 56.1(b) response controverts this asserted fact. 	(Id. at ¶ 62.) 	To the contrary, in
Paragraph 62, Plaintiff expressly states, “I emailed Jamie that I would change the time to 6:00.”
(Id.) 	As a result, this asserted fact is deemed admitted for the reasons discussed in Notes 3 and
19.
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19
72. 	After this, Defendant Gage spoke with Defendant Mizener and, consistent with the
guidance from Ms. Gersen, asked him to review Plaintiff’s production report and timesheet for
the period for January 29, 2023, through February 4, 2023.
73. 	On or shortly before March 27, 2023, Defendant Mizener provided Defendant Gage
with his review of this information, which showed perceived discrepancies between Plaintiff’s
production and time worked.22
74. 	On March 27, 2023, Defendant Gage emailed Ms. Gersen the information compiled
by Defendant Mizener.
75. 	Attached to the March 27, 2023, email from Defendant Gage was a summary from
Defendant Mizener stating that this situation began when Plaintiff worked more than the allowed
20 hours of overtime in one week, and, soon after, Plaintiff entered that she worked until 7:30
p.m. on February 18, 2023, when the system went down at 6:00 p.m.23
76. 	On April 4, 2023, Director of Human Resources Randy Hotaling was forwarded an
email from Plaintiff.
77. 	This forwarded email was an email from Defendant Mizener to Plaintiff, in which it
22 	Plaintiff denies this asserted fact, again attempting to improperly add explanatory facts.
Nothing in Plaintiff’s explanation controverts the fact asserted, which regards the review
provided by Defendant Mizener to Defendant Gage on or shortly before March 27, 2023. 	As a
result, this asserted fact is deemed admitted for the reasons discussed in Note 3. 	However,
accounting for the fact that the cited evidence shows that some of the time originally identified as
creating a discrepancy was later found to be valid, the Court has added the word “perceived” to
the asserted fact.
23 	This fact is deemed admitted for the reasons discussed in Notes 3 and 19 of this Decision
and Order. 	Plaintiff does not deny or dispute that (a) this is what the relevant email conveyed,
or (b) that this sequence of events happened, whether or not she disagrees with the assertion that
(at least for her personally) the system was actually down after 6:00 p.m. on the relevant day.
(Dkt. No. 34, Attach. 2, at ¶ 76.)
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20
was stated that, effective immediately, Plaintiff was no longer approved to work overtime, as
well as that Defendant OSC had reason to believe that there were inaccuracies in Plaintiff’s
production reports and timesheets.
78. 	In the forwarded email, Plaintiff stated that she was formally appealing the
withdrawal of approval to work overtime, and that she could explain any inaccuracies if she was
told what they were.
79. 	On April 13, 2023, Plaintiff sent Mr. Hotaling another email following up from her
previous email.
80. 	Mr. Hotaling replied to Plaintiff’s email on April 14, 2023, and stated that
“[c]onsistent with OSC policy on the authorization and distribution of overtime, management
retains the right to determine whether an employee is qualified and eligible to work overtime,
and the right to determine whether to authorize overtime work. 	OSC policy does not provide for
an appeal of this decision.”
81. 	Plaintiff contacted NYSDHR by telephone on April 18, 2023, and stated that she was
being retaliated against because she was told on April 4, 2023, that she was no longer allowed to
work overtime due to a discrepancy on her timesheet.
82. 	Plaintiff told NYSDHR that the retaliation was specifically because she filed a
complaint with the NYSDHR.
83. 	On April 18, 2023, Plaintiff was advised by NYSDHR that they would email her a
complaint form.
84. 	On April 18, 2023, Plaintiff was sent an email with a new complaint form by
NYSDHR for her retaliation complaint. 	Specifically, NYSDHR stated in that email to Plaintiff,
“[i]f you would like to file a retaliation complaint, please see the attached form and fill it out to
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21
reflect retaliation. 	Once we receive a filled out retaliation complaint, we will process the
complaint and investigate that matter separately from your current case.”24
85. 	Plaintiff did not file a NYSDHR complaint with regard to the alleged retaliation by
Defendant OSC.
86. 	On April 26, 2023, Ms. Gersen interrogated Plaintiff pursuant to the Collective
Bargaining Agreement governing Plaintiff’s employment.
87. 	The same day, Plaintiff was notified that she was being placed on administrative
leave with pay, until further notice, pending an investigation.
88. 	Labor Relations continued to investigate Plaintiff and interrogated her again on June
5, 2023.
89. 	That same day, Plaintiff received a notice of suspension without pay.
90. 	On June 16, 2023, Plaintiff received a Notice of Discipline with a Statement of
Charges against her.
91. 	The sixteen charges against Plaintiff included the following: four charges of
submitting fraudulent timesheets; two charges of insubordination; one charge for receiving
compensation for approximately 60 hours ($2000), including 23 hours of overtime for which she
did not work, during the three-month period from January to April 2023; one charge of
knowingly submitting false time records in violation of N.Y. Pen. L. § 175.35(1); six charges of
submitting a fraudulent production report; one charge for violating the Office of the State
Comptroller’s Employee Handbook; and one charge for violating Article 10.10(b) of the
24 	This asserted fact is deemed admitted for the reasons discussed in Note 3.
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22
State/CSEA Agreement.25
92. 	Labor Relations proposed terminating Plaintiff due to the breadth of her misconduct
in stealing over 60 hours of time in a three-month period and after considering her prior
discipline.
93. 	Labor Relations then compiled a document comprised of more than 500 pages titled
“Expedited Resolution for Erin Keneston” to support her discipline.
94. 	In response, Plaintiff and her union representative commenced a settlement
negotiation with Defendant OSC over her suspension and Notice of Discipline.
95. 	Plaintiff voluntarily settled this discipline matter on August 3, 2023, and entered into
a Settlement and Last Chance Agreement.
96. 	As part of this Agreement, Plaintiff voluntarily agreed to an eight-week unpaid
suspension, a last chance to stay employed at the OSC with immediate termination if she
engaged in similar behavior over the next year, and a prohibition on overtime and
telecommuting.
97. 	Plaintiff entered into this settlement while being fully represented by her union and
with the ability to instead go to disciplinary arbitration to prove her innocence.26
98. 	On August 4, 2025, Ms. Gersen sent a letter to Plaintiff notifying her that she could
return to work on August 7, 2023.
99. 	The investigation, Plaintiff’s suspension, and the penalty sought against Plaintiff were
consistent with other disciplinary matters that Ms. Gersen, or other members of Labor Relations,
25 	This asserted fact is deemed admitted for the reasons discussed in Note 3.
26 	This asserted fact is deemed admitted for the reasons discussed in Note 3.
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have handled.27
100. 	Labor Relations investigates time and attendance, telecommuting, and other
violations by employees of the OSC across the agency.
101. 	In 2023, Labor Relations opened eight other investigations into employees in the
Retirement Services unit.
102. 	Four of these investigations focused on time and attendance, three on submission of
a false instrument, and one on insubordination.
103. 	In a similar case in 2023, a Retirement Services employee who was found to have
falsified overtime was interrogated and promptly resigned.28
104. 	The prior year, a Retirement Services employee was found to have falsified
production reports by taking credit for other staff’s work. 	Their telecommuting privileges were
revoked, they were investigated and interrogated, and they too resigned in lieu of suspension and
discipline.
27 	Plaintiff denies the asserted fact, stating that “[a]nother employee in another unit, Mike
Olender, was counseled because he was unreachable on teams and missed teams unit meetings
and he had to come in office 100 percent for 6 months. I do not even believe it was elevated to a
level of an interrogation.” 	(Dkt. No. 34, Attach. 2, at ¶ 101.) 	She cites no admissible record
evidence for these statements. 	(Id.) 	Even if the Court were to take notice of page 9 of
Plaintiff’s Declaration (in which she reasserts these statements at Paragraph 14, Subparagraph
101), she does not adduce evidence sufficient to support a finding that she has personal
knowledge of the matter asserted, as required by Fed. R. Evid. 602. 	In any event, she cites only
to an example pertaining to an employee in a different unit from her, who was disciplined by
being required to return to the office full-time for six months due to being unreachable on
Microsoft Teams and missing virtual meetings, conduct which it is not clear is sufficiently
similar to that with which Plaintiff was charged. 	Moreover, Plaintiff’s lack of knowledge as to
whether that employee was interrogated cannot serve as evidence that that employee was treated
more favorably than her. See, supra, Note 8 of this Decision and Order.
28 	This asserted fact is deemed admitted for the reasons discussed in Note 3.
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105. 	The evidence contained in the Expedited Resolution supported Labor Relations’
finding that Plaintiff submitted fraudulent timesheets and fraudulent production reports,
committed time theft, and was insubordinate.
106. 	On September 20, 2023, Dr. Lettrick wrote a note stating that Plaintiff’s “anxiety is
getting worse, mostly due to work. 	She asked for accommodation to from home 100%, was
denied. 	When she appealed the decision, her supervisor gave her a bad review and is now
mandating that she work 100% in the office…FMLA paperwork filled out.”
107. 	Plaintiff did not request a reasonable accommodation or FMLA leave any time from
September 2023 through December 2023.29
108. 	On December 11, 2023, Ms. Gersen sent a letter to Plaintiff informing her that the
discrepancies in her reported time, which were being corrected on her time sheets by the
Division of Human Resources, resulted in an overpayment of approximately $2,172. 	This letter
further stated that Plaintiff had 30 days to dispute the recovery and the amount being recovered.
109. 	On December 21, 2023, Ms. Gersen received a letter from Plaintiff’s union, CSEA,
that disputed this recovery and stated that they would pursue all remedies to recoup any money
that was garnished from Plaintiff’s paycheck.
110. 	Defendant OSC has not recovered any of this overpayment as of this date.
111. 	On June 6, 2024, Dr. Lettrick noted that Plaintiff’s “[d]epression is under good
control on sertraline, will continue.”
112. 	Plaintiff did not request a reasonable accommodation or FMLA leave any time in
29 	This asserted fact is deemed admitted for the reasons discussed in Note 3. 	The Court
adds that Plaintiff’s response concedes that she “did not request FMLA for during [sic] the
period [she] was being punished.” 	(Dkt. No. 34, Attach. 1, at ¶ 109.)
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2024.30
113. 	On July 31, 2024, August 14, 2024, and January 15, 2025, Ms. Gersen sent Plaintiff
letters notifying her that her monitoring period, per the settlement and last chance agreement
with Defendant OSC, would be extended based on her leaves of absence.
Federal Funds Received by Defendant Office of the State Comptroller
114. 	Any federal funds that Defendant OSC received in 2023, 2024, or 2025 were received
on behalf of other New York State agencies and those funds were redistributed to those New
York State agencies that received those funds for their own programmatic purposes.
115. 	For the period between 2023 and 2025, Defendant OSC did not keep, receive, or
make use of any federal funds or financial assistance for any program of the OSC.
C. 	Parties’ Arguments on Defendants’ Motion for Summary Judgment
1. 	Defendants’ Memorandum of Law
Generally, in their motion, Defendants make three arguments. 	(Dkt. No. 29, Attach. 1.)
First, Defendants argue that Plaintiff’s claim for declaratory and injunctive relief under the ADA
should be dismissed because her requested accommodation of full-time telework was not a
reasonable accommodation given that it (a) eliminated essential functions of her job including
overseeing clerical staff, handling special projects, and assisting with training, and (b) prevented
effective supervision over her work and attendance. 	(Id. at 8-12.) 	Moreover, Defendants
argue, Plaintiff twice accepted a reasonable accommodation offered by Defendants after they
engaged in an interactive process with her: the first time in July 2021, when she accepted the
offered accommodation of moving her to a vacant cubicle distanced from other staff members,
30 	This asserted fact is deemed admitted for the reasons discussed in Note 3.
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with stackers for additional privacy, and did not express that the accommodation was
insufficient; and the second time in 2023, when she accepted the offered accommodation of a
60% telecommute schedule (i.e., three days per week) and did not express that the
accommodation was insufficient. 	(Id. at 12-18.) 	Further, Defendants argue that Plaintiff’s
request for injunctive relief is little more than a request for an order to “obey the law” that is not
proper, and that Plaintiff in any event cannot seek injunctive relief here because she has not
alleged any actual ongoing violation of federal law, but rather seeks to remedy a past violation.
(Id. at 18-19.)
Second, Defendants argue that Plaintiff’s claim for declaratory and injunctive relief
pursuant to the Rehabilitation Act should also be dismissed for the following reasons: (a)
Defendant OSC did not receive federal funds in the relevant year for any of its programs and
activities (but merely redistributed federal funds to other agencies) and therefore its sovereign
immunity has not been waived as to claims pursuant to the Rehabilitation Act; (b) in the
alternative, her failure-to-accommodate claim is deficient for the same reasons that her ADA
claim is deficient; and (c) also in the alternative, Plaintiff has failed to establish a prima facie
case of retaliation, because (i) Defendants began their investigation into her time-and-attendance
issues before they ever received notice that she had filed a NYSDHR complaint and she has
failed to show a causal connection between Defendants’ actions and that complaint, and (ii)
Defendants have established a non-retaliatory reason for any adverse action taken against
Plaintiff because they discovered that she had claimed to have worked overtime during a time
when she could not have been working and had otherwise stolen or attempted to steal time, and
Plaintiff cannot rebut this legitimate reason for the actions taken against her. 	(Id. at 19-29.)
Third, Defendants argue that Plaintiff’s NYSHRL claim should be dismissed for the
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following reasons: (a) if Plaintiff’s federal claims are being dismissed, the Court should decline
to exercise supplemental jurisdiction over Plaintiff’s NYSHRL claims; (b) this state law claim is
barred by sovereign immunity against Defendant OSC and the other Defendants in their official
capacities; (c) Defendant Gage and Defendant Mizener cannot be held liable under the NYSRL
because they are not Plaintiff’s employers; and (d) Plaintiff cannot establish a prima facie claim
of retaliation for all the same reasons previously discussed related to the federal claims. 	(Id. at
29-32.)
2. 	Plaintiff’s Opposition Memorandum of Law
Generally, in opposition to Defendants’ motion, Plaintiff makes two arguments. 	(Dkt.
No. 34.) 	First, Plaintiff argues that she has raised genuine disputes of material fact regarding
her claims for failure to accommodate and failure to engage in the interactive process,
specifically as to whether the accommodation she requested was reasonable and what the
essential functions of her job are. 	(Id. at 6-11.) 	More specifically, Plaintiff argues that
attendance is not a per se essential function of her position and she has provided evidence in the
form of her own declaration to show that her essential tasks were all computer based, and she
offered to attend any necessary in-person meetings regardless of her accommodations. 	(Id.)
Further, Plaintiff argues that whether the 60% telework schedule Defendants offered was
reasonable and whether Plaintiff can be said to have accepted that offer as a permanent solution
(rather than a temporary measure while the process remained ongoing) are questions for a jury to
resolve. 	(Id.) 	Relatedly, Plaintiff argues that Defendants failed to engage in a good-faith
interactive process because they did not consider other alternatives, they did not meaningfully
explain the rationale underlying the accommodation they ultimately offered her, and
management later admitted that full-time telework would not pose a problem. 	(Id.)
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Second, Plaintiff argues that an issue of fact precludes summary judgment on her
retaliation claim because Defendants’ actions occurred close in time after when she filed her
NYSDHR complaint (Id. at 11-12.)
3. 	Defendants’ Reply Memorandum of Law
Generally, in reply to Plaintiff’s opposition, Defendants make four arguments. 	(Dkt. No.
35.) 	First, Defendants argue that Plaintiff should be deemed to have admitted any disputed facts
for which she has failed to cite contrary admissible evidence, and that the Court should disregard
Plaintiff’s newly submitted declaration to the extent it contradicts her previous deposition
testimony. 	(Id. at 6-7.)
Second, Defendants argue as to Plaintiff’s ADA claim that (a) Plaintiff’s
acknowledgment that she would need to be in the office in person for certain meetings or tasks is
an admission that an accommodation for 100% telework would conflict with the essential
functions of her job and would impose an undue hardship by preventing Defendants from
effectively supervising Plaintiff, (b) Plaintiff’s arguments that Defendants failed to engage in the
interactive process are contradicted by evidence showing that Defendants offered her a
reasonable accommodation, which she accepted (regardless of whether it was her preferred
accommodation), and she did not notify Defendants after that acceptance that the
accommodation was inadequate or that the process needed to continue, and (c) Plaintiffs have
not responded to Defendants’ arguments that they are not currently failing to engage in the
interactive process and thus her demand for declaratory and injunctive relief is improper 	(Id. at
7-11.)
Third, Defendants argue as to Plaintiff’s Rehabilitation Act claim that (a) Plaintiff has not
challenged Defendants’ argument regarding sovereign immunity and has admitted that
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Defendant OSC was not the recipient of federal funds for the relevant years, (b) Plaintiff’s
request for declaratory and injunctive relief are deficient and abandoned for the same reasons as
those related to her ADA claim, (c) Plaintiff has not offered any evidence regarding a causal
connection that would sustain a prima facie case of retaliation, and (d) contrary to Plaintiff’s
assertion, there is no issue of fact regarding Defendants’ motive for the actions they took against
Plaintiff, which are all supported by evidence. 	(Id. at 12-14.)
Fourth, Defendants argue as to Plaintiff’s NYSHRL claim that (a) contrary to her
opposition memorandum of law, she cannot assert a claim for failure to accommodate here
because such a claim was dismissed as being without probable cause by the NYSDHR related to
her NYSDHR complaint, and she has not asserted any disability discrimination claim in the
Amended Complaint, but rather only a retaliation claim, (b) contrary to her argument, Plaintiff’s
request for reasonable accommodation is not a protected activity under the NYSHRL, (c)
Plaintiff has not opposed Defendants’ arguments regarding her NYSHRL retaliation claim, and
(d) the evidence shows that Plaintiff cannot establish a prima facie case of retaliation and she has
failed to offer any evidence to rebut Defendants’ evidence showing a non-retaliatory motive.
(Id. at 6, 14-15.)
II. 	LEGAL STANDARDS GOVERNING A MOTION FOR SUMMARY JUDGMENT
Under Fed. R. Civ. P. 56, summary judgment is warranted if “the movant shows that
there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as
a matter of law.” 	Fed. R. Civ. P. 56(a). 	A dispute of fact is “genuine” if “the [record] evidence
is such that a reasonable jury could return a verdict for the [non-movant].” 	Anderson v. Liberty
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Lobby, Inc., 477 U.S. 242, 248 (1986).31 	As for the materiality requirement, a dispute of fact is
"material" if it "might affect the outcome of the suit under the governing law . . . . Factual
disputes that are irrelevant or unnecessary will not be counted." 	Anderson, 477 U.S. at 248.
In determining whether a genuine issue of material fact exists, the Court must resolve all
ambiguities and draw all reasonable inferences against the movant. 	Anderson, 477 U.S. at 255.
In addition, “[the movant] bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the . . . [record] which it believes
demonstrate[s] the absence of any genuine issue of material fact.” 	Celotex v. Catrett, 477 U.S.
317, 323-24 (1986). 	However, when the movant has met its initial burden, the non-movant must
come forward with specific facts showing a genuine issue of material fact for trial. 	Fed. R. Civ.
P. 56(a), (c), (e).
Implied in the above-stated burden-shifting standard is the fact that, where a non-movant
willfully fails to respond to a motion for summary judgment, a district court has no duty to
perform an independent review of the record to find proof of a factual dispute.
Of course, when a non-movant willfully fails to respond to a motion for summary
judgment, “[t]he fact that there has been no [such] response . . . does not . . . [by itself] mean that
the motion is to be granted automatically.” 	Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
Rather, as indicated above, the Court must assure itself that, based on the undisputed material
facts, the law indeed warrants judgment for the movant. 	Champion, 76 F.3d at 486; Allen v.
31 	As a result, “[c]onclusory allegations, conjecture and speculation . . . are insufficient to
create a genuine issue of fact.” 	Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998)
[citation omitted]. 	As the Supreme Court has explained, “[The non-movant] must do more than
simply show that there is some metaphysical doubt as to the material facts.” 	Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
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Comprehensive Analytical Group, Inc., 140 F. Supp.2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.);
N.D.N.Y. L.R. 7.1(b)(3). 	What the non-movant's failure to respond to the motion does is
lighten the movant's burden.
For these reasons, this Court has often enforced Local Rule 56.1 by deeming facts set
forth in a movant's statement of material facts to be admitted, where (1) those facts are supported
by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that
statement.32
Similarly, in this District, where a non-movant has willfully failed to respond to a
movant’s properly filed and facially meritorious memorandum of law, the non-movant is deemed
to have “consented” to the legal arguments contained in that memorandum of law under Local
Rule 7.1(a)(3).33 	Stated another way, when a non-movant fails to oppose a legal argument
asserted by a movant, the movant may succeed on the argument by showing that the argument
possess facial merit, which has appropriately been characterized as a “modest” burden. 	See
N.D.N.Y. L.R. 7.1(a)(3) (“Where a properly filed motion is unopposed and the Court determined
that the moving party has met its burden to demonstrate entitlement to the relief requested
32 	Among other things, Local Rule 56.1(b) requires that the non-movant file a response to
the movant's Statement of Material Facts, which admits or denies each of the movant's factual
assertions in matching numbered paragraphs, and supports any denials with a specific citation to
the record where the factual issue arises. 	N.D.N.Y. L. R. 56.1(b).
33 	See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31
(N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff’s failure, in his opposition papers, to
oppose several arguments by defendants in their motion for summary judgment as consent by
plaintiff to the granting of summary judgment for defendants with regard to the claims that the
arguments regarded, under Local Rule 7.1[b][3]; Devito v. Smithkline Beecham Corp., 02-CV-
0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004) (McCurn, J.) (deeming plaintiff’s
failure to respond to “aspect” of defendant’s motion to exclude expert testimony as “a concession
by plaintiff that the court should exclude [the expert’s] testimony” on that ground).
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therein . . . .”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct.
30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009 WL
2473509, at *2 & n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases).
III. 	ANALYSIS
A. 	Whether Plaintiff’s Claims Pursuant to the Rehabilitation Act Must Be
Dismissed on Procedural Grounds
After careful consideration, the Court answers this question in the affirmative for the
reasons discussed in Defendants’ memoranda of law. 	See, supra, Part I.C.1 and 3 of this
Decision and Order. 	To those reasons, the Court adds the following analysis.
“The Eleventh Amendment of the United States Constitution provides that ‘[t]he Judicial
power of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of another State,’” which
has been interpreted to also include suits by citizens against their own states. 	T.W. v. New York
State Bd. of Law Examiners, 996 F.3d 87, 92 (2d Cir. 2021) (quoting U.S. Const. amend. XI; Bd.
of Trs. Of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363 [2001]). 	This immunity, however, is
“not absolute.” 	Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 108 (2d Cir.
2001). 	Section 504 of the Rehabilitation Act by its terms requires that “a state agree to waive its
sovereign immunity from suit in federal court” “as a condition of accepting” federal funds.
T.W., 996 F.3d at 92 (quoting Garcia, 280 F.3d at 113).34 	Crucial to this analysis is whether the
program or activity in question actually received federal funds; if it did not, then there is no
34 	See 29 U.S.C. § 794(a) (“No otherwise qualified individual with a disability…shall,
solely by reason of his or her disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity receiving Federal
financial assistance.”)
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waiver of immunity. 	T.W., 996 F.3d at 92-93.
The Second Circuit has specified that “[t]here are thus three ways by which a State entity
may waive its immunity to suit under Section 504”: (1) “the entity may directly request and
receive federal financial assistance that is conditioned on Section 504 coverage”; (2) “the entity
may be a ‘program or activity’ of a ‘department, agency, special purpose district, or other
instrumentality of a State or of a local government,’ ‘any part of which’ received federal aid”; or
(3) “the entity may indirectly receive federal financial assistance through another entity that
requests and receives the Federal financial assistance in the first instance and then extends that
money to the non-requesting entity.” 	T.W., 996 F.3d at 93 (emphasis in original).
None of the three above situations apply here. 	In her declaration, Melissa Clayton, who
currently serves as the Director of the Bureau of State Accounting Operations, states that (a)
“[a]s the chief financial officer for the State, the New York State Comptroller is responsible for
receiving federal funds on behalf of other New York State agencies that receive these funds for
their programmatic purposes”; (b) “[a]ny federal funds that OSC received in 2023, 2024, or 2025
was [sic] received on behalf of other New York State agencies, and these funds were re-
distributed to the New York State agencies that received those funds for their own programmatic
purpose”; and (c) “[f]or the period 2023-2025, OSC did not keep or receive or make use of any
federal funds or financial assistance for any OSC programs.” 	(Dkt. No. 29, Attach. 20, at ¶¶ 4-
6.) 	Plaintiff notably does not dispute that Defendant OSC does not itself use any of the federal
funds it receives on behalf of other New York State agencies.
The situation presented here is in fact highly similar to those found by the Second Circuit
in T.W. to be inconsistent with a waiver of immunity. 	The Second Circuit was persuaded in that
case by a decision rendered by the Eighth Circuit in which it was found that the Arkansas State
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Treasurer’s acceptance of federal funds on behalf of other agencies did not constitute a waiver of
immunity because the State Treasurer neither accepted the funds for itself nor used the funds, but
rather only held the funds for other agencies that had accepted those funds. 	T.W., 996 F.3d at
96. 	Likewise, the Second Circuit found in its own case that the Chief Administrator of the New
York State Unified Court System was “simply doing what he is bound to by state law” in
accepting funds on behalf of other requesting entities, and that he merely held and redistributed
those funds to the relevant agencies and did not use them himself. 	Id. at 96-97. 	Accepting and
holding funds to be distributed to other agencies is essentially what the undisputed facts show
Defendant OSC did here.
Plaintiff notably provides no response to Defendants’ argument that her claims pursuant
to the Rehabilitation Act are barred by sovereign immunity, and thus Defendants’ argument need
only have facial merit to succeed.35 	Because Plaintiff has also admitted that Defendant OSC did
not itself retain or use any of the federal funds that it received on behalf of and disbursed to other
New York State agencies, Defendants have met their burden here, and Plaintiff’s Rehabilitation
Act claims against Defendant OSC must therefore be dismissed.
To the extent that this sovereign immunity analysis does not apply to the Rehabilitation
35 	In this District, when a non-movant fails to oppose a legal argument asserted by a
movant, the movant’s burden with regard to that argument is lightened, such that, in order to
succeed on that argument, the movant need only show that the argument possesses facial merit,
which has appropriately been characterized as a “modest” burden. 	See N.D.N.Y. L.R. 7.1(a)(3)
(“Where a properly filed motion is unopposed and the Court determines that the moving party
has met to demonstrate entitlement to the relief requested therein, the non-moving party’s failure
to file or serve any papers as this Rule requires shall be deemed as consent to the granting or
denial of the motion, as the case may be, unless good cause is shown.”); Rusyniak v. Gensini, 07-
CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting
cases); Este-Green v. Astrue, 09-CV-0722, 2009 WL2473509, at *2 & nn.2, 3 (N.D.N.Y. Aug. 7,
2009) (Suddaby, J.) (collecting cases).
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Act claims as they are asserted against Defendant DiNapoli in his official capacity as New York
State Comptroller against whom Plaintiff has sought only declaratory and injunctive relief, the
Ex parte Young exception to sovereign immunity applies only where the declaratory or
injunctive relief sought is prospective as opposed to retrospective. 	See T.W., 110 F.4th at 91-92
(noting that “‘the Supreme Court has declined to extent the reasoning of Ex parte Young to
claims for retrospective relief’”) (quoting Ward v. Thomas, 207 F.3d 114, 119 [2d Cir. 2000]).
Here, although Plaintiff attempts to frame her requested relief as preventing further and ongoing
violations, they essentially seek to remedy the past failure to accommodate and retaliation that
are the basis of her claims in that the remedy sought is to order Defendant DiNapoli to force
Defendant OSC to reopen the interactive process and grant her an accommodation for 100%
telecommuting. 	(Dkt. No. 4, at ¶ 58.) 	Given that Plaintiff’s most recent request for
accommodation was in January 2023 and, as will be discussed below related to the merits of her
reasonable accommodation claims, it is undisputed that Defendants provided her with an
alternative accommodation in response to her request for accommodation, there is no basis in
either the Amended Complaint or the evidence to find that there is any ongoing violation
occurring; Plaintiff’s assertions that her 2023 request is still outstanding because Defendants did
not grant her the specific accommodation she requested is simply not consistent with the law or
the facts. 	As a result, Plaintiff’s Rehabilitation Act claims against Defendant DiNapoli in his
official capacity must also be dismissed.
Moreover, to the extent that Plaintiff has attempted to assert Rehabilitation Act claims
against Defendant Mizener or Defendant Gage, such claims must necessarily be dismissed
because that statute does not provide for liability against individuals. 	See Goe v. Zucker, 43
F.4th 19, 35 (2d Cir. 2022) (affirming dismissal of Rehabilitation Act claims against individual
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defendants because “the Rehabilitation Act does not provide for individual liability”) (citing
Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 [2d Cir. 2001]).
For all of these reasons, the Court grants Defendants’ motion for summary judgment as to
Plaintiff’s Rehabilitation Act claims against all Defendants.
B. 	Whether Plaintiff’s Reasonable Accommodation Claims Must Be Dismissed
After careful consideration, the Court answers this question in the affirmative for the
reasons stated in Defendants’ memoranda of law. 	See, supra, Part I.C.1 and 3 of this Decision
and Order. 	To those reasons, the Court adds the following analysis.
As an initial matter, Plaintiff’s ADA claim against Defendant DiNapoli (the only
Defendant against whom it is asserted) must be dismissed on the same procedural grounds
discussed above related to the Rehabilitation Act claims because she seeks the same
retrospective relief to remedy the perceived violations caused by the denial of her 2023 request
for reasonable accommodations: a reopening of the interactive process and granting her
requested accommodation for 100% telecommuting. 	Again, there is no evidence to substantiate
any ongoing violation in this case such that the relief sought can only be considered to be
retrospective. 	Nevertheless, the Court will also assess the merits of Plaintiff’s reasonable
accommodations claim (an analysis which would apply equally to her similar Rehabilitation Act
claim) as an alternative ground for granting Defendants’ motion for summary judgment.
“‘The ADA envisions an interactive process by which employers and employees work
together to assess whether an employee’s disability can be reasonably accommodated.’” 	Noll v.
Int’l Bus. Machs. Corp., 787 F.3d 89, 98 (2d Cir. 2015) (quoting Jackson v. N.Y.S. Dept. of
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Labor, 205 F.3d 562, 566 [2d Cir. 2000]).36 	“The point of engaging in an interactive process is
to ‘discover[] a means by which an employee’s disability could have been accommodated.’”
Noll, 787 F.3d at 98 (quoting McBride v. BIC Consumer Prods. Mfg. Co., Inc., 583 F.3d 92, 101
[2d Cir. 2009]). 	However, “the ADA imposes no liability for an employer’s failure to explore
alternative accommodations when the accommodations provided to the employee were plainly
reasonable.” 	Noll, 787 F.3d at 98. 	Although the question of whether an employer’s offered
accommodation is reasonable is generally highly fact-specific and therefore more suitable for
resolution by a factfinder, in cases where “the employer has already taken (or offered) measures
to accommodate the disability, the employer is entitled to summary judgment if, on the
undisputed record, the existing accommodation is ‘plainly reasonable.’” 	Noll, 787 F.3d at 98
(citing Wernick v. Fed. Reserve Bank of N.Y., 91 F.3d 379, 385 [2d Cir. 1996]); see also Durick
v. New York City Dept. of Educ., 202 F. Supp. 3d 277, 292 (E.D.N.Y. 2016) (noting that “[i]n
cases where a plaintiff claims she was offered or given an unreasonable alternative
accommodation, the court looks to the alternative accommodation to determine whether it was
plainly reasonable” rather than the more typical standard of needing to show that the specific
accommodation she requested was reasonable). 	“In other words, the plain reasonableness of the
existing accommodation ends the analysis[;] [t]here is no need to engage in further burden-
shifting to consider whether the employee’s requested accommodation would have been
36 	“An employer engages in an interactive process by, for example, ‘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.’” 	Sheng v. M&T Bank Corp., 848 F.3d 78, 87
n.3 (2d Cir. 2017) (quoting Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 218-19 [2d
Cir. 2001]).
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reasonable.” 	Noll, 787 F.3d at 98 (citing U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 400-02
[2002]; Borkowski v. Valley Centr. Sch. Dist., 63 F.3d 131, 137-38 [2d Cir. 1995]).
As an initial matter, the Court notes that this not a case in which Defendants denied a
request for reasonable accommodation altogether, but rather one in which they provided a
different accommodation than the one requested by Plaintiff.37 	As the case law shows, the
question is therefore not whether Plaintiff’s request for full-time telecommuting was reasonable
(and whether Defendants would experience any hardship by granting that request), but whether
the alternative accommodation that Defendants offered (and Plaintiff accepted) was plainly
reasonable.
Plaintiff appears to attempt to evade the fact that this standard (rather than the typical
burden-shifting standard) should be applied to her claim by asserting that, because she never
withdrew her request for full-time telecommuting, her acceptance of the offered accommodation
was “explicitly temporary and not a concession that 60% [telecommuting] met her medical
needs,” and therefore not an “acceptance” at all. 	(Dkt. No. 34, at 8-9.) 	But regardless of
whether she believed the offered accommodation failed to adequately meet her medical needs
37 	Although Plaintiff appears to suggest in her deposition that her request for
accommodation that she submitted in July 2021 was denied (Dkt. No. 29, Attach. 4, at 133), her
own Amended Complaint alleges that “[i]n July 2021, plaintiff submitted a request for
reasonable accommodations, allowing her to work from home four days per week. 	The
accommodation was granted and Plaintiff worked under this accommodation for approximately
one year.” 	(Dkt. No. 4, at ¶ 15.) 	Because Plaintiff’s own allegations outline the scope of her
claims, her inconsistent assertions in her deposition or any other form cannot provide a basis for
now asserting any claim premised on a denial of her 2021 request. 	Moreover, as was already
discussed above in Part I.B of this Decision and Order, Plaintiff admitted in response to
Defendants’ Statement of Material Facts that Defendants granted an alternative accommodation
related to this request, namely moving her to a cubicle farther away from other staff members
and placing stackers for additional separate of privacy for cubicles in the area where Plaintiff’s
was located.
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and told Defendants that she “didn’t agree with the sixty percent,” (Dkt. No. 29, Attach. 4, at
147), it is undisputed that Plaintiff nevertheless agreed to accept that accommodation, and that
she worked pursuant to that accommodation until she was placed on administrative leave in April
2023, after which time she did not request to renew that accommodation or submit any new
request for accommodation. 	Moreover, there is no admissible record evidence to support any
finding that Plaintiff informed Defendants that she viewed the 60% accommodation as a merely
temporary solution or that she wanted to continue to engage in the interactive process despite
accepting the offered accommodation, and, rather than continuing to attempt to pursue that
process, she instead filed a NYSDHR complaint soon after the accommodation was made
effective. 	Based on the current record, Plaintiff’s assertions that her January 2023 request for
accommodations had not been resolved are both contrary to the undisputed facts and insufficient
to suggest that the “plainly reasonable” standard should not be applied here. 	Defendants offered
an alternative accommodation and Plaintiff accepted it; those are the key facts that matter. 	That
she is seemingly not currently covered by an accommodation is not a reason to assess her claim
under the more typical burden-shifting analytical framework because, as already noted, the
undisputed evidence shows that Defendants granted her request for an accommodation (though
not the specific one she requested) and there is no evidence or even allegation that she has filed a
more recent request for accommodation that Defendants have either denied or failed to
appropriately address. 	As a result, the proper assessment here is whether the accommodation
offered by Defendant and accepted by Plaintiff was plainly reasonable.
In this case, there were two requests for accommodations made by Plaintiff, both of
which sought some degree of ability to telecommute: the request in July 2021 requesting to
telecommute four days per week as needed, and the request in January 2023 requesting full-time
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telecommuting as needed. 	Plaintiff’s Amended Complaint does not appear to challenge the
response to the June 2021 request, given that her allegations primarily pertain to the
circumstances of and response to the January 2023 request. 	(Dkt. No. 4, at ¶¶ 15-23.) 	Indeed,
Plaintiff could not properly challenge the result of the June 2021 request because “a plaintiff
must file a complaint with the Equal Employment Opportunity Commission (“EEOC”) or
NYSDHR within 300 days of the alleged discriminatory or retaliatory conduct,” such that
“[d]iscrete adverse events that occurred more than 300 days before that complaint are time-
barred and cannot constitute a basis for a plaintiff’s claim of discrimination or retaliation.”
Collings v. State Univ. of New York at Cortland, 24-CV-0534, 2025 WL 904649, at *8
(N.D.N.Y. Mar. 25, 2025) (Suddaby, J.) (citing King v. Aramark Servs. Inc., 96 F.4 th 546, 559
[2d Cir. 2024]; Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 78-79 [2d Cir. 2015]).
The determination on the June 2021 reasonable accommodation request was rendered on
September 2, 2021, a date that is more than 300 days from when she filed the NYSDHR
complaint on February 16, 2023. 	(Dkt. No. 4, at ¶ 26; Dkt. No. 29, Attach. 11, at 1.) 	As a
result, the only action at issue here is as to Defendants’ granting of the alternative
accommodation for 60% telecommuting in response to the January 2023 request for
accommodations.
Specifically, as outlined in the Statement of Undisputed Material Fact in Part I.B of this
Decision and Order, that accommodation permitted Plaintiff to work from home Mondays,
Wednesdays, and Fridays, and work in the office on Tuesdays and Thursdays. 	The undisputed
facts show that the accommodation was structured in this manner in order to ensure that Plaintiff
did not have to work two days in the office in a row, given that she had previously indicated to
Defendants that coming into the office on back-to-back days was a particular hardship for her
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related to her anxiety.
It is well established that the fact that a defendant declines to grant a plaintiff the specific
accommodation requested does not render the accommodation that it did grant unreasonable.
See Noll, 787 F.3d at 95 (noting that “employers are not required to provide a perfect
accommodation or the very accommodation most strongly preferred by the employee”). 	Rather,
“[a]ll that is required is effectiveness,” i.e., providing the plaintiff with ability to perform the
essential functions of his or her job. 	Id.
Plaintiff has not provided any evidence that she was unable to adequately perform the
essential functions of her job pursuant to the provided accommodation. 	Indeed, in her
deposition, she testified that she has been one of the most productive employees in her unit even
during times when she did not have accommodations to telecommute more than allowed by
Defendants’ standard policy. 	(See Dkt. No. 29, Attach. 4, at 104-05 [noting that, at the time of
her deposition, her work performance was “excellent” and testifying that “I have been and
currently am the highest producer in the unit”], 109 [describing her performance in 2024, 2023,
and 2022 as “excellent” and that her evaluations every year indicated that she was a “high
producer”].) 	Specifically, there is no evidence showing that Plaintiff was either unable to
perform or complete her work on the days when she was in the office or that her level of
productivity was significantly affected by her medical conditions when working the office two
non-consecutive days per week such that it made her ineffective at her job. 	Moreover, when
asked at her deposition whether, within the handful of days between when the accommodation
became effective and when she filed her NYSDHR complaint, she experienced any panic
attacks, whether those occurred while she was at the office or telecommuting, or whether her
anxiety or panic attacks worsened during that time period, Plaintiff was not able to provide any
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concrete answers, stating rather that she “can’t say” or “can’t recall.” 	(Dkt. No. 29, Attach. 5, at
9.) 	Plaintiff did testify that the number of panic attacks she experienced, both while at the office
and while telecommuting, remained approximately the same in January and February 2023.
(Dkt. No. 29, Attach. 5, at 10-11 [testifying that she had two or three panic attacks at the office in
January and “probably the same” in February, but also that she experienced three or four while
telecommuting in January and “the same” in February].) 	There is therefore no evidence to
suggest that a greater number of days telecommuting actually reduced Plaintiff’s panic attacks,
no evidence that Plaintiff was unable to work in the office on Tuesdays and Thursdays because
of her symptoms, and no evidence to suggest that those continued symptoms prevented Plaintiff
from performing her essential job duties or affected her overall work performance.
Plaintiff additionally testified that, rather than waiting to see if the 60% accommodation
would help her anxiety and panic attacks, she filed the NYSDHR complaint because “I read all
the information on reasonable accommodations and what I got out of it was if your employer
doesn’t have a hardship to give it to you, then ideally, they should give it to you.” 	(Dkt. No. 29,
Attach. 5, at 14.) 	But again, the fact that Defendants did not give Plaintiff the specific
accommodation she requested does not make the alternative accommodation unreasonable, and
based on the fact that Plaintiff’s incidence of panic attacks (which notably also occurred on days
when she telecommuted) was not decreased even when she was permitted additional days of
telework, there is nothing to suggest that Defendants’ offered (and accepted) accommodation
was unreasonable or that offering her full-time telework was the only reasonable solution to
accommodate her disability. 	Again, the question here is not whether Plaintiff’s request for full-
time telework was or was not reasonable, but rather whether the 60% telecommuting schedule
that Defendants provided as an accommodation was plainly reasonable in that it permitted her to
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perform the essential functions of her job. 	Under the undisputed facts and evidence presented
here, the Court finds that it was.38
Plaintiff also asserts that Defendants failed to engage in the interactive process related to
her requests for reasonable accommodations. 	Even setting aside the Second Circuit’s
pronouncement that there is no liability against an employer for a failure to engage in an
interactive process to explore other potential accommodations where the accommodation it has
offered is plainly reasonable (as the Court had found the 60% telecommute accommodation
offered here to be), the undisputed facts outlined previously in Part I.B of this Decision and
Order contradict Plaintiff’s assertion. 	Specifically, the following relevant undisputed (or not
properly disputed) facts show that Defendants did indeed engage in the interactive process: (1) in
July 2021, Plaintiff submitted a request for reasonable accommodation seeking permission to
telecommute four days per week as needed because of her general anxiety disorder and panic
attacks; (2) after receiving supporting documentation from Plaintiff’s physician, Defendants
offered Plaintiff an alternative accommodation in September 2021 consisting of moving her to a
vacant cubicle distanced from other staff members along with the addition of “stackers” between
the cubicles in Plaintiff’s area to provide greater privacy, as well as permitting Plaintiff to
38 	The Court notably rejects Defendants’ argument that working in person at the office was
an essential function of Plaintiff’s job, because that argument is not supported by any record
evidence. 	Specifically, the fact that proffered job descriptions show that an ERSE 2 functions as
a “technical supervisor” to ERSE 1s does not in any way lead to a reasonable conclusion that
such limited oversight requires performance of that supervision specifically in person. 	Such
supervisory responsibilities are characterized in the evidence as “review[ing] calculations and
work completed by staff and ensure compliance with all relevant policies, rules, regulations, and
laws” and “review[ing] and approv[ing] the work of staff performing a specific activity, but not
their overall work behavior and assignments.” 	(Dkt. No. 29, Attach. 65, at 11, 15.) 	Nothing in
these definitions precludes the fact that supervision might be possible remotely and Defendant
has provided no evidence to indicate that it was Defendant’s specific practice that such
supervision always be performed in person.
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request approval from her supervisor to telecommute up to four days per pay period consistent
with the agency’s telecommuting policy, an offer which Plaintiff accepted; (3) nearly a year and
a half later, in January 2023, Plaintiff submitted the relevant request for reasonable
accommodation seeking “flexibility to work from home full time as needed”; (4) within a week
after when this request was received, Defendants faxed additional questions to Plaintiff’s
physician related to her relevant medical conditions and later followed up regarding those
questions when the physician’s office did not provide answers; (5) on February 1, 2023, after
receiving the information from Plaintiff’s physician, Defendant Mizener (as Plaintiff’s
supervisor) and others discussed affording Plaintiff with a 60% telecommuting schedule where
she would work in the office every other day so that she would not need to be in the office two
days in a row; (6) when that proposal was presented to Plaintiff on February 3, 2023, she
verbally agreed to accept it; (7) that accommodation was memorialized in a reasonable
accommodation memorandum on February 7, 2023, and was approved to continue through May
10, 2023, after which it would be reviewed again; (8) Plaintiff immediately began working this
accommodation schedule; and (9) on February 16, 2023, Plaintiff filed a disability discrimination
complaint with the NYSHDR.
These undisputed facts substantiate a finding that, both times Plaintiff requested a
reasonable accommodation related to her anxiety disorder and panic attacks, Defendants engaged
in an interactive process that involved collecting evidence from Plaintiff’s physician and,
particularly related to the 2023 accommodation, discussing the proposed 60% telecommute
option with Plaintiff before it was formally adopted, and provided an accommodation that
Plaintiff herself accepted. 	Plaintiff argues that, because Defendants did not explain why her
original request for full-time telework was unreasonable or the basis for its proposed alternative
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of 60% telecommuting, they failed to engage in the interactive process. 	(Dkt. No. 4, at ¶ 21.)
This argument ignores the undisputed fact, supported by the admissible record evidence, that
Defendants met with Plaintiff before that proposed accommodation was adopted and asked her
about the feasibility of that proposed accommodation,39 and that Plaintiff herself stated that such
an accommodation could work for her and she verbally accepted that offered accommodation
without apparently voicing any concerns or requesting an explanation as to why Defendants had
chosen that particular accommodation.
For all of the above reasons, Defendants’ motion for summary judgment is granted as to
Plaintiff’s claims for failure to accommodate her disability.
C. 	Whether Plaintiff’s Retaliation Claims Must Be Dismissed
After careful consideration, the Court answers this question in the affirmative for the
reasons stated in Defendants’ memoranda of law. 	See, supra, Parts I.C.1 and 2 of this Decision
and Order. 	To those reasons, the Court adds the following analysis.
As an initial matter, the Court notes that, because Plaintiff’s Rehabilitation Act claim (to
the extent she has asserted a retaliation claim pursuant to that statute) has been dismissed on
procedural grounds as discussed above, the only retaliation claim that remains is that brought
pursuant to the NYSHRL.40 	Defendant OSC and Defendant DiNapoli (to the extent he has been
39 	Plaintiff notably testified at her deposition that this proposed accommodation was raised
during a twenty-minute conversation she had with the Diversity Management Group. 	(Dkt. No.
29, Attach. 4, at 145-46.)
40 	The Court notes, however, that its analysis related to the merits of the NYSHRL provides
an alternative ground for dismissing the Rehabilitation Act claim because a retaliation claim
pursuant to the Rehabilitation Act is subject to the same or more demanding standard than the
one applicable to a NYSHRL claim.
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sued in his official capacity) are considered to be “arms of the state,” and it is well established
that the “‘NYSHRL does not include a waiver of the State’s sovereign immunity to suit in
federal court.’” 	See Shaw v. New York State Off. for People with Developmental Disabilities,
25-CV-0066, 2026 WL 654168, at *10 (N.D.N.Y. Mar. 9, 2026) (Nardacci, J.) (noting that
“sovereign immunity extended to ‘arms of the state,’ such as OPDD, as well as to its officials
sued in their official capacities for money damages”). 	As a result, Plaintiff’s NYSHRL
retaliation must be dismissed as a matter of law against Defendant OSC as well as against
Defendant DiNapoli to the extent Plaintiff seeks monetary damages.41
Defendants also argue that the claims against Defendant Gage and Defendant Mizener
must be dismissed because they cannot be considered Plaintiff’s “employer” and the NYSHRL
imposes liability only on employers. 	(Dkt. No. 29, Attach. 1, at 30-31.) 	However, the
NYSHRL imposes liability not only on employers, but also on “an aider or abetter ‘if they
personally participate in the conduct giving rise to a discrimination claim.’” 	Petrie v. Off. of
Mental Health Cent. New York Psychiatric Ctr., 22-CV-0123, 2026 WL 161198, at *19
(N.D.N.Y. Jan. 21, 2026) (Coombe, J.). 	Because Defendants have not argued why aider or
abetter liability would be inappropriate against these Defendants, the Court will not conduct that
inquiry sua sponte, but rather will proceed to an analysis of the merits of Plaintiff’s claim.42
41 	Plaintiff does not appear to seek declaratory or injunctive relief related to her NYSHRL
claim. 	(Dkt. No. 4, at ¶¶ 59-62.)
42 	The Court notes that there is a split in this Circuit regarding whether the fact that
sovereign immunity bars a claim against a plaintiff’s employer means that an individual cannot
be held liable as an aider or abetter in light of the fact that “a coworker cannot aid and abet the
employer if the employer itself cannot be held liable.’” 	Petrie, 2026 WL 161198, at *19
(quoting Peck v. Cnty. of Onondaga, New York, 21-CV-0651, 2021 WL 3710546, at *14
[N.D.N.Y. Aug. 20, 2021]; citing Dawkins v. State Univ. of New York at Cortland, 23-CV-1163,
2024 WL 3377938, at *7 [N.D.N.Y. July 11, 2024] [Suddaby, J.]). 	For the reasons discussed in
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“‘The elements of a retaliation claim . . . 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 v. City of New York, 921
F.3d 337, 353 (2d Cir. 2019) (quoting Weizel v. Bd. of Edu. of City of New York, 287 F.3d 138,
148 [2d Cir. 2002]). 	This standard generally applies to claims brought under both the
Rehabilitation Act and the NYSHRL. 	See Dickson v. New York State Off. of Children and
Family Servs., 453 F. Supp. 3d 587, 593 (E.D.N.Y. 2020) (“The Court analyzes retaliation under
the Rehabilitation Act and NYSHRL together as the claims are analytically identical.”); Atherly v.
New York City Dept. of Edu., 23-CV-0383, 2024 WL 1345741, at *11 (S.D.N.Y. Mar. 29, 2024)
(noting that “[c]ourts analyze retaliation claims under Title VII, the ADA, Rehabilitation Act,
NYSHRL and NYCHRL pursuant to the McDonnell Douglas framework”).
There are two actions taken by Plaintiff in this case that could potentially be considered to
be protected activities: her requests for reasonable accommodation, and her filing of a
discrimination complaint with the NYSDHR. 	As to the first activity, there is some disagreement
in the decisions of federal courts as to whether a request for reasonable accommodations
constitutes a protected activity for a NYSHRL retaliation claim, but, as a decision from the
Southern District of New York recently recognized, New York’s intermediate appellate courts
have generally held that a request for a reasonable accommodation is not a protected activity.
Medina v. AAM 15 Mgmt. LLC, 21-CV-7492, 2025 WL 2658615, at *2 (S.D.N.Y. Sept. 17, 2025)
Dawkins, the Court declines to find that the dismissal of claims against Defendant OSC on the
basis of sovereign immunity should preclude any aider or abetter claim against Defendant Gage
and Defendant Mizener.
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(collecting cases).
Although Plaintiff does argue that requests for reasonable accommodations constitute
protected activity, the cases she cites in support of that argument are not directly applicable here.
See Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002) (finding protected activity in a
context where the plaintiff had complained to supervisors that he was being treated differently
because of his seizure disorder (not because he requested reasonable accommodations for that
disorder), a request for accommodation came only after the discrimination and retaliation had
already been occurring for some time, and the court noted that the relevant protected activities as
including “his alleged complaints to then-Sergeant Barry in November 1996, his ultimate filing of
federal and state administrative charges in April 1997, and his efforts with the NYDHR to
investigate his claims in February 1998”); Fox v. Costco Wholesale Corp., 918 F.3d 65, 72-73 (2d
Cir. 2019) (indicating that the relevant protected activity involved was filing a complaint with the
NYSDHR and also noting as part of the discussion of the plaintiff’s failure-to-accommodate
claim that the plaintiff “never asked for an accommodation while employed as a Greeter or as an
Assistant Cashier”). 	Because neither of the cases Plaintiff cites even suggest that a request for
accommodation constitutes a protected activity and the current state of New York law suggests
otherwise as to retaliation claims brought pursuant to the NYSHRL, the Court finds that
Plaintiff’s action of merely requesting reasonable accommodation does not constitute a protected
activity for the purposes of her NYSHRL claim. 	See Kiley v. AIM Servs. Inc., 24-CV-0869, 2025
WL 128365, at *6 (N.D.N.Y. May 2, 2025) (D’Agostino, J.) (noting that “a request for a
reasonable accommodation is not a protected activity under the NYSHRL”).
Plaintiff’s complaint to the NYSDHR is, however, undoubtedly a protected activity, and
Defendants do not appear to argue otherwise. 	The undisputed facts presented on this motion
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establish that, although Plaintiff filed her discrimination complaint with the NYSDHR on
February 16, 2023, Defendants did not seemingly become aware of that complaint until April 3,
2023, after the NYSDHR mailed a copy of that complaint to Defendant OSC on March 30, 2023.
Thus, related to the second element of a retaliation cause of action, Defendants cannot be said to
have had knowledge of Plaintiff’s protected activity until April 3, 2023 (or, at the earliest, March
30, 2023).
The relevant actions taken against Plaintiff, as reflected by the undisputed facts discussed
above, consist of (a) Defendant Mizener returning Plaintiff’s timesheet on March 2, 2023,
requesting that she remove overtime hours she represented working because those hours occurred
during a time when the system was down, (b) Defendant Mizener informing Plaintiff on April 4,
2023, that she was not longer approved to work overtime and that there was reason to believe
there were inaccuracies in her production reports and timesheets, (c) on April 26, 2023, after
being interrogated, her being placed on administrative leave with pay, which was later changed to
suspension without pay, (d) on June 5, 2023, her being interrogated again, (e) on June 16, 223, her
receiving a Notice of Discipline with a Statement of Charges with the proposed discipline of
termination, but the parties later entering into an agreement permitting Plaintiff to retain her
position subject to an eight-week unpaid suspension, probation terms, and a prohibition on
overtime and telecommuting, and (f) in December 2023, Defendant OSC also providing notice of
intent to garnish her wages to recover the amount of salary attributable to her stolen time, but her
union disputing that measure and Defendants did not attempt to collect that amount.
For the purposes of the third element, suspension without pay and the other terms of the
eventual settlement agreement certainly can be reasonably said to constitute adverse employment
actions sufficient to sustain a claim of retaliation. 	See Lee v. Saul, 19-CV-6553, 20-CV-2956,
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2022 WL 1051216, at *10 (S.D.N.Y. Feb. 10, 2022) (finding that suspension without pay could
constitute an adverse employment action for the purposes of a retaliation claim); accord
Bermudez v. Bon Secours Charity Health Sys., Inc., 19-CV-7836, 2020 WL 104992, at *4
(S.D.N.Y. Jan. 9, 2020); see also Lambert v. Trump Int’l Hotel and Tower, 304 F. Supp. 3d 405,
419 (S.D.N.Y. 2018) (noting that “[w]hile ‘a deprivation of the opportunity to earn overtime
hours can be considered a materially adverse employment action,’” there must be some “‘material
detriment as a result of being denied overtime, such as opportunities for career advancement’”)
(quoting Bowen-Hooks v. City of New York, 13 F. Supp. 3d 179, 217 [E.D.N.Y. 2014]; Henry v.
N.Y.C. Health & Hosp. Corp., 18, F. Supp. 3d 396, 406 [S.D.N.Y. 2014]); Lee v. City of Syracuse,
603 F. Supp. 2d 417, 433 (N.D.N.Y. 2009) (Hurd, J.) (noting that “the loss of an opportunity for a
higher salary” as a result of a denial of overtime can constitute a material detriment).
As to the fourth element, although Plaintiff is correct that the withdrawal of approval to
work overtime and the interrogations and investigation that led to her being suspended and then
subject to the Last Chance Agreement all occurred in fairly close proximity to when she filed her
NYSDHR complaint, it is notably undisputed that Defendant Mizener and others began having
suspicions about Plaintiff’s timekeeping practices in mid-to-late February of 2023 due to an
instance in which she worked more than 20 hours of overtime and another in which she claimed
to have worked during a time when the system was down, and that, after being instructed to
review Plaintiff’s timesheets, Defendant Mizener indicated by March 27, 2023, that there were
discrepancies between Plaintiff’s production logs and time worked. 	A few days later on April 4,
2023, Defendant Mizener withdrew Plaintiff’s permission to work overtime and a formal
investigation into the perceived discrepancies was conducted from April through June 2023,
ultimately leading to the conclusion that Plaintiff had stolen time and to the disciplinary measures
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imposed. 	As can be seen from this timeline, although the actions taken against Plaintiff occurred
after Defendant received notice of her NYSDHR complaint, the suspicions and early fact-
gathering efforts that led to those actions existed before such notice was received. 	However,
because no action was taken until after notice was received (and was in fact taken almost
immediately after the date Defendant OSC received the mailed NYSDHR complaint, resulting
first in the revocation of Plaintiff’s overtime privileges and then her suspension without pay only
about two months later), there is at the very least a genuine issue of material fact given that a
reasonable jury could conclude that Plaintiff’s NYSDHR complaint influenced Defendants’
choice to suspend her overtime privileges and launch a formal and extensive investigation into her
timekeeping practices, which ultimately led to disciplinary sanctions.43
However, even if Plaintiff has shown that there is at least a genuine question as to whether
she can establish a prima facie case of retaliation, Defendants have provided detailed evidence
showing a non-retaliatory reason for the actions they took against Plaintiff: multiple and repeated
discrepancies between her production logs and timesheets that suggested Plaintiff did not actually
perform any work during some of the hours for which she claimed (and received) compensation.
(See generally Dkt. Nos. 29, Attachs. 31-36.) 	See also Summa v. Hofstra Univ., 708 F.3d 115,
129 (2d Cir. 2013) (noting that, once a plaintiff establishes a prima facie case of retaliation, the
43 	The Court notes also that, because the Second Circuit has indicated that retaliation claims
pursuant to the NYSHRL are subject to a more liberal pleading standard (see, supra, Note 36 of
this Decision and Order), in order to state a prima facie case of retaliation under that standard, a
plaintiff need only “demonstrate that she took an action opposing her employer’s discrimination
and that, as a result, the employer engaged in conduct that was reasonably likely to deter a
person from engaging in such action.” 	Edelman v. NYU Langone Health Sys., 141 F.4th 28, 45
(2d Cir. 2025) (quoting Qorrolli v. Metro. Dental Assocs., 124 F.4th 115, 122 [2d Cir. 2024]).
For reasons discussed in the four-part analysis already conducted, specifically related to the
protected activity and adverse action elements, Plaintiff has met this more liberal standard.
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burden shifts to the defendant “to demonstrate that there were legitimate, non-retaliatory reasons”
for the adverse actions taken). 	Defendants have proffered a legitimate reason for the actions
taken against Plaintiff in the form of the evidence of time theft, and therefore the burden shifts to
Plaintiff to show that this reason is, in fact, a pretext for retaliation. 	See Summa, 708 F.3d at 129
(“Because legitimate non-retaliatory reasons can be offered for each of the adverse actions
complained of, the burden shifts back to [plaintiff] ‘to establish, through either direct or
circumstantial evidence, that the [defendant’s] action was, in fact, motivated by discrimination.’”)
(quoting Raniola v. Bratton, 243 F.3d 610, 625 [2d Cir. 2001]).
Plaintiff has not met that burden here. 	It is still a somewhat unanswered question in this
Circuit as to whether amendments to the NYSHRL in 2019 were intended to bring the assessment
of claims pursuant to that statute in line with the more lenient standard that is applicable to claims
brought under the New York City Human Rights Law, such that, rather than requiring a plaintiff
to show that retaliation was the but-for cause of the adverse employment actions (as is standard
when assessing retaliation claims based on federal statutes), a plaintiff must show only that “a
defendant’s legitimate reason for termination was pretextual or motivated at least in part by an
impermissible motive.”44 	Ebadi v. Diamond Standard Inc., 24-CV-0103, 2026 WL 591569, at
44 	The Second Circuit has affirmatively recognized that the 2019 amendments to the
NYSHRL mean that NYSHRL claims are subject to the more liberal pleading standard present
applied to claims pursuant to the NYCHRL related to the establishment of a prima facie case of
retaliation, but the court did not have reason to proceed to the pretext stage of the plaintiff’s
claim in that case because it found that the defendants had not shown legitimate nonretaliatory
reasons for its actions. 	Edelman, 141 F.4th at 45. 	The Second Circuit has indicated, in a
nonprecedential summary order, that” [t]he post-amendment NYSHRL standard for causation is
lower than Section 1981’s ‘but-for’ standard: it requires only that the retaliatory conduct was
undertaken ‘at least in part’ because of ‘retaliatory motives.’” 	Flanagan v. Girl Scouts of
Suffolk Cnty., Inc., 2025 WL 1501751, at *5 (2d Cir. May 27, 2025) (quoting Ya-Chen Chen v.
City Univ. of New York, 805 F.3d 59, 76 [2d Cir. 2015]).
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*12 (S.D.N.Y. Mar. 3, 2026) (quoting Livingston v. City of New York, 563 F. Supp. 201, 246
[S.D.N.Y. 2021]); Anderson v. Amazon.com, Inc., 23-CV-8347, 2025 WL 2780921, at *12
(S.D.N.Y. Sept. 30, 2025); Kekovic v. Titan Motor Gr. LLC, 22-CV-2142, 2025 WL 2173651, at
*14 (E.D.N.Y. July 31, 2025). 	In any event, even under the more lenient standard, temporal
proximity alone is insufficient to show causation or pretext at this stage. 	Ebadi, 2026 WL
591569, at *12 (collecting cases).
As a result, regardless of which standard applies here to Plaintiff’s NYSHRL retaliation
claim, the evidence does not create a genuine dispute of material fact as to whether the reasons
offered by Defendants were pretextual or that Defendants were motivated at least in part by a
desire to retaliate against Plaintiff. 	Indeed, there is little in the evidence presented here to
suggest retaliation other than the temporal proximity between when she filed her NYSDHR
complaint and when Defendants rescinded her approval to work overtime hours, suspended her
without pay, conducted their investigation, and ultimately provided her with the last chance
agreement as an alternative to termination of her employment.
As indicated above in Part I.B of this Decision and Order, in 2023, Defendants’ Labor
Relations department conducted investigations of eight other employees in the Retirement
Services unit where Plaintiff was employed, four of which were related to time and attendance
issues, three of which were related to submission of a false instrument, and one of which was
related to insubordination. 	In one case from 2023, a Retirement Services employee who was
found to have falsified overtime was subjected to interrogation, resulting in that employee
promptly resigning. 	In the prior year, a Retirement Services employee who was found to have
falsified production reports related to work performed was disciplined by having their
telecommuting privileges revoked and was subjected to investigation and interrogation, resulting
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in that employee resigning rather than facing suspension and discipline. 	This undisputed
evidence therefore shows that Defendants addressed violations of time recording policies
similarly to how they did related to the assessed misconduct by Plaintiff.
In response to Defendants’ assertion of a legitimate non-retaliatory reason for their
actions, Plaintiff offers little in the way of legal argument, asserting only, in a wholly conclusory
manner, that “[w]hether these actions were retaliatory gives rise to factual disputes about motive
and pretext, especially in light of the close temporal sequence and the assertedly selective nature
of the investigation.” 	(Dkt. No. 34, at 12.) 	But merely asserting that factual issues exist without
pointing to any evidence in support of that assertion is insufficient to meet Plaintiff’s burden, and,
as already noted, temporal proximity alone is insufficient to show a retaliatory motive beyond a
prima facie case. 	The undisputed evidence that other employees were investigated for similar
conduct contradicts Plaintiff’s bare assertion that the investigation against her was selective, and
the fact that those other employees chose to resign rather than face discipline does not change the
fact that Defendants conducted investigations against them just as they did when made aware of
discrepancies in Plaintiff’s timekeeping. 	Nor could Plaintiff’s explanations regarding what she
was doing during identified times when she was not logging work specifically into Defendants’
case system or when there were gaps in her production reports permit a reasonable factfinder to
conclude that Defendants’ actions against her were motivated in part by retaliation. 	Defendants
have provided a lengthy report detailing exactly where the discrepancies existed and their reasons
for finding that Plaintiff had falsely claimed to have worked during times when she was not
actually completing any work. 	It is not the role of the Court or the jury to second-guess
Defendants’ internal personnel decisions where Plaintiff has failed to adduce any evidence
beyond her own belief that Defendants’ failure to accept her explanations was motivated by a
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retaliatory intent as opposed to mere disbelief of or disagreement with her proffered explanations.
Where, as here, Plaintiff’s theory of causation appears to be based almost entirely on the fact of
temporal proximity, she cannot overcome Defendants’ provision of a legitimate non-retaliatory
reason for the actions taken against her.
For the above reasons, the Court grants summary judgment to Defendants on Plaintiff’s
retaliation claims.
ACCORDINGLY, it is
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 29) is
GRANTED; and it is further
ORDERED that Plaintiff’s Amended Complaint (Dkt. No. 4) is DISMISSED; and it is
further
ORDERED that the Clerk of Court is directed to issue a Judgment for Defendants and
close this action.
Dated: May 27, 2026
Syracuse, New York
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