Federman v. NYSARC, INC. - Jefferson County Chapter

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
GLENN FEDERMAN,
Plaintiff,
v.
NYSARC, INC. – JEFFERSON COUNTY
CHAPTER,
Defendant.
5:25-cv-152
(ECC/ML)
Glenn Federman, Pro Se Plaintiff
Nicholas P. Jacobson, Esq., for Defendant
Hon. Elizabeth C. Coombe, United States District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff Glenn Federman filed this pro se action alleging that Defendant NYSARC, Inc. –
Jefferson County Chapter (NYSARC) discriminated against him on the basis of disability in
violation of the Americans with Disabilities Act (ADA), retaliated against him in violation of the
ADA and Title VII of the Civil Rights Act of 1964 (Title VII), created a hostile work environment
in violation of the ADA and Title VII, wrongfully terminated him, and relied on procedural errors
by the Equal Employment Opportunity Commission (EEOC). Dkt. No. 1. Presently before the
Court is Defendant’s motion to dismiss the Complaint under Federal Rule of Civil Procedure
12(b)(6). 	Dkt. No. 7. 	The motion is fully briefed. 	Dkt. Nos. 8, 15, 18, 19. 	For the following
reasons, Defendant’s motion to dismiss is granted in part and denied in part.
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I. 	FACTS1
Defendant 	NYSARC 	hired 	Plaintiff 	Glenn 	Federman 	as 	a 	registered 	nurse 	on
approximately September 27, 2023. 	Complaint (Compl.) ¶ 13, Dkt. No. 1. 	During the hiring
process, Plaintiff disclosed that he had “severe autoimmune inflammatory arthritis,” “congestive
heart failure,” and “bilateral joint replacement surgeries.” Id. at ¶ 13. Defendant acknowledged
these conditions and informed Plaintiff that accommodations would be provided as needed. Id. at
¶ 14. Plaintiff’s typing speed was not addressed during the hiring process. Id. at ¶ 15.
Plaintiff, who filed lawsuits “against the town, school district, and other entities involv[ing]
individuals closely connected to Defendant,” before he began working for Defendant, was referred
to as “the infamous Glenn Federman” and mocked for his “physical limitations and alleged slow
typing speed.” Id. at ¶¶ 23, 24. On approximately October 9, 2023, Plaintiff requested a larger
keyboard to use with his laptop computer because of his large arthritic hands, and he did not receive
one. 	Compl. at 9.2 	On October 19, 2023, Plaintiff received a text message from the Nursing
Supervisor that all new RNs were “immediately provided with remote computer access.” Id. The
supervisor wrote, “I think I might have messed up the IT request when you started” and apologized
for Plaintiff’s lack of remote access. Id. Plaintiff received remote access the following day, and
that was almost one month after he received his computer. Id. at 10.
On December 12, 2023, Plaintiff “investigated and reported serious concerns about a
[patient] experiencing significant weight loss” based on an email from the patient’s family
1 These facts are drawn from the Complaint. 	Dkt. No. 1. 	The Court assumes the truth of, and
draws reasonable inferences from, the well-pleaded factual allegations, see Lynch v. City of New
York, 952 F.3d 67, 74–75 (2d Cir. 2020), but does not accept as true any legal conclusions, see
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
2 Page numbers refer to the pagination generated by ECF, unless otherwise noted.
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member, and Plaintiff also “investigated and reported medication shortages.” 	Compl. ¶ 18.
Plaintiff “documented his findings” and communicated them to the Residence Manager and
nursing supervisor by email. Id. at ¶ 19. The nursing supervisor then wrote “a critical email about
Plaintiff.” Id. at ¶ 20.
On December 13, 2023, Plaintiff “developed and implemented a comprehensive CPAP
[continuous positive airway pressure] training session at the residence for PWS [Persons We
Support]” outside of normal working hours. Compl. ¶¶ 4, 16 and page 12. The following day,
Plaintiff “was summoned to an abrupt termination meeting,” and he was terminated. Id. at ¶ 21.
Plaintiff was 11 days from the end of his probationary period. Id. at ¶ 22.
Plaintiff filed a charge with the EEOC related to his termination, which was closed on
December 30, 2023. Compl. ¶¶ 26, 28. Plaintiff received a Notice of Right to Sue from the EEOC
on January 2, 2025. Id. at ¶ 29.
II. 	LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure,
“a complaint must provide ‘enough facts to state a claim to relief that is plausible on its face.’”
Mayor & City Council of Balt. v. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 	“Although a complaint need not contain
detailed factual allegations, it may not rest on mere labels, conclusions, or a formulaic recitation
of the elements of the cause of action, and the factual allegations ‘must be enough to raise a right
to relief above the speculative level.’” Lawtone-Bowles v. City of New York, No. 16-cv-4240, 2017
WL 4250513, at *2 (S.D.N.Y. Sept. 22, 2017) (quoting Twombly, 550 U.S. at 555). A court must
accept as true all well-pleaded factual allegations in the complaint and draw all reasonable
inferences in the plaintiff’s favor. 	See EEOC v. Port Auth., 768 F.3d 247, 253 (2d Cir. 2014)
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(citing ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)). However, “the
tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable
to legal conclusions.” Iqbal, 556 U.S. at 678.
When evaluating a discrimination claim at the motion to dismiss stage, courts are instructed
that “a discrimination complaint need not allege facts establishing each element of a prima facie
case of discrimination to survive a motion to dismiss;” but “it must at a minimum assert
nonconclusory factual matter sufficient to nudge its claims across the line from conceivable to
plausible to proceed.” EEOC, 768 F.3d at 254 (quoting Iqbal, 556 U.S. at 680) (cleaned up).
“‘Pro se complaints are held to less stringent standards than those drafted by attorneys,’”
and courts are “‘required to read [a] plaintiff’s pro se complaint liberally, interpreting it as raising
the strongest arguments it suggests.’” Green v. McKoy, No. 9:22-cv-44 (LEK), 2023 WL 2742143
at *9 (N.D.N.Y. Mar. 31, 2023) (quoting Johnson v. Darby, 142 F. Supp.3d 275, 277 (E.D.N.Y.
2015)). “However, while the special leniency afforded to pro se . . . litigants somewhat loosens
the procedural rules governing the form of pleadings, it does not completely relieve a pro se
plaintiff of the duty to satisfy the pleading standards set forth in the Federal Rules.” Id. (quoting
Vega v. Artus, 610 F. Supp. 2d 185, 195–96 (N.D.N.Y. 2009) (cleaned up)). Although “the Second
Circuit has repeatedly ‘said that a pro se litigant is entitled to ‘special solicitude’” but “it has also
indicated that [courts] cannot read into pro se submissions claims that are not ‘consistent’ with the
pro se litigant’s allegations or arguments that the submissions themselves do not ‘suggest.’”
Green, 2023 WL 2742143 at *9 (quoting Triestman v. Fed. Bur. Prisons, 470 F.3d 471, 477 (2d
Cir. 2006)).
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III. 	DISCUSSION
A. 	Claims
The Complaint alleges five claims: ADA disability discrimination, ADA and Title VII
retaliation, ADA and Title VII hostile work environment, “Wrongful Termination During
Probation,” and “Procedural Failures by the EEOC.” Compl. ¶¶ 31-35. The Complaint also asks
that the Court declare “Defendant’s actions unlawful under the ADA, Title VII, ADEA, and
NYSHRL.” 	Id. at 5. 	To the extent the Complaint can be read to assert a claim under the Age
Discrimination in Employment Act (ADEA), the Court will also address that claim. 	See
Defendant’s Motion to Dismiss (Def. Mot.) at 20, Dkt. No. 8; Plaintiff’s Response Memorandum
of Law (Pl. Resp.) at 11, Dkt. No. 15; Defendant’s Reply Memorandum of Law (Def. Reply) at 7-
8, Dkt. No. 18.
Under the heading “Count IV: Wrongful Termination During Probation,” Plaintiff alleges
that “Defendant terminated Plaintiff 11 days before the end of his probationary period and 2 days
after he exposed serious patient safety issues, constituting wrongful termination.” Compl. ¶ 34.
Wrongful 	termination 	during 	probation 	is 	not 	an 	independent 	cause 	of 	action.
“New York has a well-established at-will employment doctrine: ‘[A]bsent an agreement
establishing a fixed duration, an employment relationship is presumed to be a hiring at will,
terminable at any time by either party.’” 	Albert v. Loksen, 239 F.3d 256, 264 (2d Cir. 2001)
(quoting Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 333 (1987)). 	In other words, both the
employer and employee may terminate the employment relationship at any time for any reason or
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for no reason whatsoever, unless otherwise prohibited by law. Termination during a probationary
period is not itself unlawful. Count IV is therefore dismissed.3
Under the heading “Count V: Procedural Failures by the EEOC,” Plaintiff states that
“Defendant relied on procedural errors by the EEOC to undermine Plaintiff’s ability to fully pursue
his claims, constituting a failure of administrative due process.” Compl. ¶ 35. The EEOC is not a
party to this lawsuit. In addition, the Complaint does not contain any factual allegations suggesting
that any procedural errors by the EEOC could be attributed to Defendant. Furthermore, there is
no cause of action for “procedural failures” by the EEOC where the EEOC is not a party. Count
V is therefore dismissed.
B. 	Discrimination Claims
Plaintiff alleges that “Defendant failed to provide reasonable accommodations and engaged
in discriminatory practices, in violation of the ADA.” Compl. ¶ 31. Defendant notes that while
the Complaint is “somewhat unclear,” it “could be read to allege both that [Plaintiff] was denied
reasonable accommodations and that [Plaintiff] was terminated from his employment due to his
disability in violation of the Americans with Disabilities Act.” Def. Mot. at 11.
1. 	ADA Discriminatory Termination
Plaintiff argues that his termination was “part of a broader discriminatory pattern” and
alleges that Defendants “engaged in discriminatory practices, in violation of the ADA.” Pl. Resp.
at 10; Compl. at ¶ 31. Defendant denies that Plaintiff was terminated for discriminatory reasons,
and relies on Plaintiff’s termination notice listing non-discriminatory reasons why Plaintiff was
terminated. Def. Mot. at 14-15; see also Compl. at 38.
3 To the extent that Plaintiff suggests that his termination was unlawful discrimination or
retaliation, that is addressed with the discrimination and retaliation claim analysis.
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The ADA prohibits discrimination “against a qualified individual on the basis of disability
in regard to . . . [the] discharge of employees,” as well as “other terms, conditions, and privileges
of employment.” 42 U.S.C. § 12112(a). A prima facie discrimination claim requires the plaintiff
to show that: “(1) the defendant is covered by the ADA; (2) plaintiff suffers from or is regarded as
suffering from a disability within the meaning of the ADA; (3) plaintiff was qualified to perform
the essential functions of the job, with or without reasonable accommodation; and (4) plaintiff
suffered an adverse employment action because of his disability or perceived disability.” Luka v.
Bard Coll., 263 F. Supp. 3d 478, 486 (S.D.N.Y. 2017) (quoting Capobianco v. City of New York,
422 F.3d 47, 56 (2d Cir. 2005)). 	A “plaintiff alleging disability discrimination ‘is not required to
plead a prima facie case . . . to defeat a motion to dismiss,’” and she “‘need only give plausible
support to a minimal inference of discriminatory motivation at the pleading stage.’” Id. at 486–87
(quoting Dooley v. JetBlue Airways Corp., 636 Fed. App’x 16, 21 (2d Cir. 2015) (summary
order)); see also Giambattista v. Am. Airlines, Inc., 584 F. App’x 23, 25 (2d Cir. 2014) (summary
order) (“To state a claim for discrimination under the ADA, a plaintiff must allege facts which
plausibly suggest, inter alia, that she suffered [an] adverse employment action because of [her]
disability.”).
The ADA covers employers “engaged in an industry affecting commerce” who employ 15
or more employees. 42 U.S.C. § 12111(2), (5). Defendants do not dispute that Defendant is an
entity covered by the ADA. See Def. Mot. at 11-15. For purposes of the present motion, the Court
will assume that Defendant is a covered entity.
The ADA defines disability as “a physical or mental impairment that substantially limits
one or more major life activities,” “a record of such impairment,” or “being regarded as having
such an impairment.” 42 U.S.C. § 12102(1). Defendants argue that Plaintiff “failed to plausibly
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allege facts sufficient to plausibly demonstrate that he was substantially limited in a major life
activity, and his ADA claims must be dismissed.” Def. Mot. at 13.
To establish a disability, a plaintiff must: (1) ‘show that she suffers from a physical or
mental impairment’; (2) ‘identify the activity claimed to be impaired and establish that it
constitutes a major life activity’; and (3) ‘show that her impairment substantially limits the major
life activity previously identified.’” Norman v. NYU Langone Health Sys., 492 F. Supp. 3d 154,
163 (S.D.N.Y. 2020) (quoting Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 147 (2d
Cir. 2002)). 	A physical impairment is “[a]ny physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more body systems.” 4 29 C.F.R. § 1630.2(h)(1).
Major life activities are non-exclusively defined to include “caring for oneself, performing manual
tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing,
learning, reading, concentrating, thinking, communicating, and working,” in addition to “the
operation of a major bodily function.” 42 U.S.C. § 12102(2).
To qualify as a disability, an impairment must “substantially limit[] the ability of an
individual to perform a major life activity as compared to most people in the general population”;
but “need not prevent, or significantly or severely restrict, the individual from performing a major
life activity in order to be considered substantially limiting.” 29 C.F.R. § 1630.2(j)(1)(ii). “The
term ‘substantially limits’ shall be construed broadly in favor of expansive coverage” and “is not
meant to be a demanding standard.” Id. § 1630.2(j)(1)(i).
4 The EEOC regulations implementing the ADA and its subsequent amendments, 29 C.F.R. §
1630.1, “are not binding,” but “courts in the Second Circuit afford them significant deference.”
Norman, 492 F. Supp. 3d at 163 (citing Francis v. City of Meriden, 129 F.3d 281, 283 n.1 (2d Cir.
1997)).
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Plaintiff alleges that he has “autoimmune inflammatory arthritis, congestive heart failure
(CHF), and bilateral joint replacement surgeries.” 5 Compl. ¶ 13. In Exhibit C to the Complaint,
Plaintiff alleges that he requested a larger keyboard due to his “large arthritic hands.” Compl. at
9. 	Plaintiff has not alleged that congestive heart failure or joint replacement surgeries have
impacted any major life activities. Reading the Complaint to “rais[e] the strongest arguments it
suggests,” Plaintiff has plausibly alleged that arthritis in his hands is a physical impairment and
that this impairment substantially limits his ability to type. Green, 2023 WL 2742143 at *9. This
is sufficient to survive a motion to dismiss.6 See Woolf v. Strada, 949 F.3d 89, 94 (2d Cir. 2020)
Plaintiff alleges that he would have been capable of performing the essential functions of
the job with accommodations such as a larger keyboard and remote access. Compl. at ¶ 14 and
pages 9-10. 	Finally, termination is an adverse employment action. 	Feingold v. New York, 366
F.3d 138, 160 (2d Cir. 2004). Defendant does not dispute that a termination occurred, but argues
that it was not related to Plaintiff’s disability. Def. Mot. at 14-15. Plaintiff alleges that he was
terminated for reporting patient safety issues. 	Compl. at ¶ 34. 	Plaintiff also attached and
incorporated by reference the email from the nursing supervisor listing performance failures
unrelated to disability. 	Id. at 38. 	Finally, Plaintiff disclosed his medical conditions, including
5 Plaintiff also argues that he has bipolar disorder, Pl. Resp. at 5, but the Court may not consider
that argument because the Complaint does refer to bipolar disorder.
6 At a later stage of litigation, such as a summary judgment motion, additional facts would be
necessary to determine whether Plaintiff’s arthritis substantially limited his ability to work.
Compare Greenbaum v. New York City Transit Auth., No. 21-1777, 2022 WL 3347893 at *2 (2d
Cir. Aug. 15, 2022) (concluding that there was a genuine dispute of material fact as to whether
permanent wrist tendonitis restricting plaintiff from typing or clicking for more than 30 minutes at
a time and no more than four hours a day was a disability for purposes of the ADA) with Parker
v. Israel Disc. Bank of New York, Inc., No. 21-cv-7196, 2024 WL 455220 at *5-6 (S.D.N.Y. Feb.
6, 2024) (concluding as part of a summary judgment motion that a finger injury did not
substantially limit plaintiff’s ability to perform a wide range of jobs), aff'd in part, vacated in part,
remanded, No. 24-688-CV, 2025 WL 1779219 (2d Cir. June 27, 2025).
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arthritis, congestive heart failure, and bilateral joint replacement surgeries when he was hired. Id.
at ¶ 13.
Given that Defendant knew about Plaintiff’s disability when he was hired, and that was
approximately three months before his termination, this fact weighs significantly against any
inference of discrimination. See Browne v. CNN Am., Inc., No. 98-cv-1768, 1999 WL 1084236 at
*2 (S.D.N.Y. Dec. 1, 1999), aff'd, 229 F.3d 1135 (2d Cir. 2000) (“In assessing Browne’s claim
that his termination was based on his age and disability, it must be noted at the outset that both of
these factors were known to CNN when it hired him only sixteen months earlier. This fact
significantly undercuts any inference of discrimination.”). Plaintiff has therefore not introduced
sufficient factual allegations to support an inference that his termination was related to his
disability, and Defendant’s motion to dismiss Plaintiff’s discriminatory termination claim is
therefore granted.
2. 	ADA Failure to Accommodate
A prima facie failure-to-accommodate claim requires the plaintiff to show: “(1) [P]laintiff
is a person with a disability under the meaning of the ADA; (2) an employer covered by the statute
had notice of his disability; (3) with reasonable accommodation, plaintiff could perform the
essential functions of the job at issue; and (4) the employer has refused to make such
accommodations.” McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 97 (2d Cir. 2009)
(quotation omitted). 	“The ADA envisions an interactive process by which employers and
employees 	work 	together 	to 	assess 	whether 	an 	employee’s 	disability 	can 	be reasonably
accommodated,” but “the ADA imposes liability for, inter alia, discriminatory refusal to undertake
a feasible accommodation, not mere refusal to explore possible accommodations where, in the end,
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no accommodation was possible.” McBride, 583 F.3d at 99, 100 (cleaned up) (quoting Jackan v.
New York State Dep’t of Lab., 205 F.3d 562, 566 (2d Cir. 2000)) (additional quotations omitted).
As discussed above, Plaintiff has plausibly alleged that he is disabled and that Defendant
was aware of his disability. Plaintiff alleges that Defendant refused to provide him with remote
access, but that allegation is not supported by the Complaint. According to the Complaint, when
Plaintiff told the nursing supervisor that he did not have remote access, the nursing supervisor
responded, “I think I might have messed up the IT request when you started” and apologized for
Plaintiff’s lack of remote access. Compl. at 9. Plaintiff received remote access the following day.
Id. at 10. 	Given Plaintiff’s admission that he received remote access the day after he told the
nursing supervisor that he did not have it, the Complaint does not sufficiently allege failure to
accommodate on that basis.
Plaintiff alleges that he repeatedly asked for a larger keyboard, and Defendant did not
provide one. 	Compl. at 9. 	Although “[t]he job description for Plaintiff’s role did not include
typing speed or performance as an essential duty, and no testing or discussion of typing skills
occurred during the interview process,” id. at ¶ 15, the email recommending that Plaintiff be
terminated states, “Computer skills are severely lacking which leads to simple tasks taking an
extended period of time,” id. at 38. At this stage of the litigation, this is sufficient to support an
inference that computer skills, including typing, form an essential function of the job. 	The
Complaint therefore plausibly alleges that Plaintiff made a request for reasonable accommodation
to help Plaintiff perform the essential functions of the job and that Defendant refused to make this
accommodation. 	Defendant’s motion to dismiss Plaintiff’s ADA failure to accommodate claim
on the basis of the keyboard is denied.
3. 	ADEA Discrimination
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The Complaint may imply a claim that Plaintiff’s termination was discriminatory on the
basis of age. 	To establish an ADEA discrimination claim, a Plaintiff must show: “(1) that the
employee is a member of the protected class, (2) that the employee is qualified for the position,
(3) that the employee suffered adverse employment action, and (4) that the circumstances
surrounding the action give rise to an inference of age discrimination.” 	Abrahamson v. Bd. of
Educ. of Wappingers Falls Cent. Sch. Dist., 374 F.3d 66, 71 (2d Cir. 2004).
The parties do not dispute that Plaintiff is a member of the class protected by ADEA or
that Plaintiff suffered an adverse employment action when he was terminated. Def. Mot. at 20-21.
Even if Plaintiff were qualified for the position, however, the Complaint does not contain any
evidence supporting an inference of age discrimination.
When Plaintiff was hired, he was only three months younger than when he was terminated.
Compl. at ¶¶ 13, 21. Courts have held that termination shortly after hiring is a strong indication
that the termination was not on the basis of age because the initial hiring decision suggests that the
employer was willing to employ a person of that age. 	See Boyce v. Bank of New York, 226 F.
App’x 17, 19 (2d Cir. 2006) (“the fact that the supervisor who terminated [plaintiff] was the same
person who, less than two and half years earlier, had hired her further undermines [plaintiff’s]
claims of discrimination”); see also Browne, 1999 WL 1084236 at *2 (explaining that the fact that
the employer knew plaintiff’s age when he was hired 16 months before he was fired “significantly
undercuts any inference of discrimination”). 	Furthermore, the email articulating grounds for
Plaintiff’s termination does not mention Plaintiff’s age or any factors related to his age. Compl.
at 38. As a result, Plaintiff has not alleged sufficient facts to state a claim for ADEA discrimination
on the basis of age.
C. Retaliation
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Plaintiff alleges retaliation claims under both the ADA and Title VII. Compl. at ¶ 32. To
state a prima facie case of ADA retaliation, Plaintiff must allege that “(1) he engaged in an activity
protected by the ADA; (2) the employer was aware of this activity; (3) the employer took adverse
employment action against him; and (4) a causal connection exists between the alleged adverse
action and the protected activity.” Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002).
Title VII retaliation claims are similar, and Plaintiff must allege that “(1) he or she participated in
protected activity, (2) the defendant knew of the protected activity, (3) the plaintiff suffered an
adverse employment action, and (4) there was a causal connection between the protected activity
and adverse employment action.” 	Foy v. N.Y. State Unified Ct. Sys., 740 F.Supp.3d 136, 148
(E.D.N.Y. 2024) (citing Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 129 (2d Cir.
2012)). 	“‘Protected 	activity 	is 	action 	taken 	to 	protest 	or 	oppose 	statutorily 	prohibited
discrimination.’” Shannon v. Credit Agricole Sec. (USA), Inc., No. 17-cv-667, 2021 WL 1063183,
at *9 (S.D.N.Y. Mar. 19, 2021) (quoting Natofsky v. City of New York, 921 F.3d 337, 354 (2d Cir
2019) (quotations omitted)).
Here, Plaintiff has not alleged that he engaged in activity protected by the ADA or Title
VII because he has not alleged that he took action “‘to protest or oppose statutorily prohibited
discrimination.’”7 Shannon, 2021 WL 1063183, at *9 (quoting Natofsky, 921 F.3d at 354)
(quotations omitted). Plaintiff alleges that Defendant retaliated against him because of lawsuits
that he previously filed. Compl. at ¶¶ 23-24. But he does not allege how those suits are protected
activity under the ADA or Title VII, their subject matter, or how they could be protected activity
when they were filed against entities that are not parties to this suit.
7 The Complaint does not allege or suggest that Plaintiff was terminated in retaliation for his
keyboard request. Compl. at ¶¶ 18-22.
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Plaintiff also alleges that Defendant retaliated against him because he investigated issues
with a patient’s weight loss and possible medication concerns. Id. at ¶ 18. However, that is not
“protected activity” under the ADA or Title VII. Given that Plaintiff has not plausibly alleged that
he engaged in protected activity under any applicable statute, Plaintiff’s retaliation claims are
dismissed.
D. Hostile Work Environment
Defendant argues that Plaintiff has failed to demonstrate a hostile work environment
beyond stray remarks. 	Def. Mot. at 19-20. 	Plaintiff responds that Defendant’s conduct
“establish[es] a pattern of discriminatory hostility, especially in light of Plaintiff’s known disability
and protected activity.” Pl. Resp. at 11.
To establish a hostile work environment claim under Title VII, Plaintiff must demonstrate
harassment on the basis of a protected characteristic, and “that [his] [] workplace was ‘so severely
permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of .
. . [his] employment were thereby altered.’” Agosto v. N.Y. City Dep’t of Educ., 982 F.3d 86, 101
(2d Cir. 2020) (quoting Desardouin v. City of Rochester, 708 F.3d 102, 105 (2d Cir. 2013)). The
hostile work environment standard includes “both objective and subjective components: the
conduct complained of must be severe or pervasive enough that a reasonable person would find it
hostile or abusive, and the victim must subjectively perceive the work environment to be abusive.”
Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir. 2014).
ADA hostile work environment claims require similar proof by a plaintiff: “(1) that the
harassment was ‘sufficiently severe or pervasive to alter the conditions of [his] employment and
create an abusive working environment,’ and (2) that a specific basis exists for imputing the
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objectionable conduct to the employer.” Fox v. Costco Wholesale Corp., 918 F.3d 65, 74 (2d Cir.
2019) (quoting Alfano v. Costello, 294 F.3d 365, 373 (2d Cir 2002) (additional quotations omitted).
To determine whether conduct is “severe or pervasive,” courts review “the totality of the
circumstances,” including “‘the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.’” Banks v. General Motors, LLC, 81 F.4th 242,
262 (2d Cir. 2023) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). 	“Isolated
incidents of harassment ordinarily do not rise to this level,” id. (quoting Cruz, 202 F.3d at 570)
(citation omitted), but the Second Circuit has “recognized that ‘a single act can create a hostile
work environment if it in fact ‘works a transformation of the plaintiff's workplace.’” Id. (quoting
Feingold v. New York, 366 F.3d 138, 150 (2d Cir. 2004) (quoting Perry v. Ethan Allen, Inc., 115
F.3d 143, 149 (2d Cir. 1997)) (alteration adopted)).
“Title VII does not impose ‘a general civility code for the American workplace.’”
McNamara v. County of Saratoga, 748 F. Supp. 3d 68, 89 (N.D.N.Y. Sept. 12, 2024) (quoting
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)); see also Russo v. New York
Presbyterian Hosp., 972 F. Supp. 2d 429, 447 (E.D.N.Y. Sept. 23, 2013) (“While ‘the central
statutory purpose [of Title VII was] eradicating discrimination in employment, Title VII does not
set forth a general civility code for the American workplace.’”) (quoting Redd v. New York Div. of
Parole, 678 F.3d 166, 176 (2d Cir. 2012)).
Neither of the two comments alleged in the Complaint—“[b]eing referred to as ‘the
infamous Glenn Federman,’ stigmatizing him due to his lawsuits,” or “[m]ocking his physical
limitations and alleged slow typing speed,” meet these standards even for purposes of a motion to
dismiss. Compl. at ¶ 24. The comment about Plaintiff’s “infamy” is not related to his disability
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or his sex, and is therefore not considered. 	See Serrano v. New York State Dep’t of Env’t
Conservation, No. 12-cv-1592 (MAD), 2017 WL 1194238, *3 (N.D.N.Y. Mar. 30, 2017), aff’d,
714 F. App’x 90 (2d Cir. 2018) (“‘[i]n evaluating a hostile work environment claim, a court may
not consider incidents unrelated to the plaintiff's protected characteristics.’”) (quoting Guerra v.
Murphy, No. 15–cv–1168, 2016 WL 7480405, *7 (N.D.N.Y. Dec. 29, 2016)). Even viewing the
“mocking” allegation in the Complaint as true and drawing all reasonable inferences in Plaintiff’s
favor, this allegation falls short of alleging “nonconclusory factual matter sufficient to nudge [his]
claims across the line from conceivable to plausible” for purposes of the “severe or pervasive”
standard. EEOC, 768 F.3d at 254 (quoting Iqbal, 556 U.S. at 680) (cleaned up); Alfano, 294 F.3d
at 379-80.
E. Leave to Amend
“‘Generally, leave to amend should be freely given, and a pro se litigant in particular should
be afforded every reasonable opportunity to demonstrate that he has a valid claim.’” Nielsen v.
Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (quoting Matima v. Celli, 228 F.3d 68, 81 (2d Cir.2000)).
“‘A pro se complaint should not be dismissed without the Court granting leave to amend at least
once when a liberal reading of the complaint gives any indication that a valid claim might be
stated.’” Id. (quoting Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir.2010)).
Here, Plaintiff may be able to allege additional facts to support the dismissed claims.
Plaintiff may file an amended complaint within thirty days. If Plaintiff fails to file an amended
complaint within the thirty-day deadline, the Clerk of the Court is respectfully directed to close
this case without further order from the Court. Any amended complaint will replace the existing
complaint; it must be a wholly integrated and complete pleading that does not rely upon or
incorporate by reference any pleading or document previously filed with the court. See Shields v.
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Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“[I]t is well established that an
amended complaint ordinarily supersedes the original, and renders it of no legal effect.”) (citation
omitted). If Plaintiff decides to file an amended complaint, he should consult Federal Rule of Civil
Procedure 15 and the Northern District of New York’s Local Rule 15.1.
IV. 	CONCLUSION
For these reasons, it is hereby
ORDERED that Defendant’s motion to dismiss under Rule 12(b)(6), Dkt. No. 7, is
GRANTED IN PART AND DENIED IN PART; and it is further
ORDERED that Plaintiff’s claims of discriminatory termination under the ADA,
retaliation under the ADA and Title VII, hostile work environment under the ADA and Title VII,
“wrongful 	termination 	during 	probation,” 	“procedural 	failures 	by 	the 	EEOC,” 	and 	any
discrimination claim arising under ADEA are DISMISSED without prejudice, and it is further
ORDERED that Defendant’s motion to dismiss under Rule 12(b)(6), Dkt. No. 7, is
DENIED as to Plaintiff’s claim of a failure to accommodate his disability under the ADA.
IT IS SO ORDERED.
Dated: March 16, 2026
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