OPINION AND ORDER Mary L. Harris, proceeding pro se, is a woman in her seventies who has worked at the New York City Human Resources Administration (“HRA”) for more than 35 years. She brought this action against the City of New York, the HRA, and Steven Banks, the Commissioner of the HRA, alleging violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act of 1967 (“ADEA”), the Americans with Disabilities Act of 1990 (“ADA”), the New York State Human Rights Law (“NYSHRL”), the New York City Human Rights Law (“NYCHRL”), and the New York Labor Law (“NYLL”). Before the Court is Defendants’ motion to dismiss the Second Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons stated below, the Court grants this motion, but grants Harris leave to file a third amended complaint. I. Background A. Factual Background The Court takes the following factual allegations from the Second Amended Complaint, Dkt. 12, and the Statement of Facts in Support of the Second Amended Complaint, Dkt. 12-1 (“Second Amended Complaint” or “SAC”). For purposes of this motion, the Court “accept[s] as true the factual allegations in the complaint and draw[s] all inferences in the plaintiff’s favor.” Biro v. Condé Nast, 807 F.3d 541, 544 (2d Cir. 2015). Harris began working at the HRA in 1984 as a case worker. SAC 3. In this position, she helped people obtain public assistance, arrange utility services, and solve various other problems. Id. In June 2004, she was promoted to the position of Supervisor III at a division of the HRA called the “Bronx CASA.”1 Id. 4. As a Supervisor III, she managed lower-level supervisors and oversaw certain units and services. Id. In September 2008, she began working at the Brooklyn CASA. Id. 6. Her experience at both CASA locations was “positive” for many years. Id. 5. In May 2014, Joyce Robinson-Steele became Harris’s supervisor. Id. 7. Their relationship initially was “cordial and professional.” Id. In 2016, Robinson-Steele gave Harris an “excellence card,” something that managers at CASA use to recognize good work. Id. Although problems soon began, Harris received three excellence cards from 2017 to 2018 as well. Id. 19. The trouble started in 2016. Robinson-Steele asked Harris to join an “audit team” because Harris had never violated any HRA rules or regulations. Id. 9. At several audit team meetings, Harris “raised the issue that certain employees were violating the code of conduct by running a private, unauthorized business selling food and drink and other items” at work. Id. The audit team did nothing about this, so in late 2016 Harris raised this issue to her supervisors and the HRA Inspector General. Id. 10. She explained that some employees were selling food and cosmetics at CASA during work hours. Id. When still nothing happened, Harris filed another complaint about these supposed violations with the Inspector General in late 2017. Id. Eventually in 2018, “executive management” determined that these activities constituted violations of the rules and shut them down. Id. 13. One of the supposed rule violators ran “a food business from his desk.” Id. 12. When Harris confronted him about it, he became “openly hostile.” Id. Robinson-Steele “never addressed his violations.” Id. In response to Harris’s complaints, Robinson-Steele said, “he gives me food, [and] I don’t have to pay for it.” Id. (internal quotation marks omitted). Harris says that this implied Robinson-Steele was “willing to look the other way” so as to not disrupt the underground sundry sales. Id. Shortly after Harris raised these complaints, Robinson-Steele “began to criticize [Harris's] performance without justification.” Id. 14. Specifically, she accused Harris of sleeping at work, consuming alcohol at work, and general insubordination. Id. Moreover, after Harris took a day off because of a doctor’s appointment, Robinson-Steele “falsely accused [her] of lying about the need for a medical absence and altering the medical absence letter.” Id. Robinson-Steele began to “constantly” write up Harris for “non-existent or petty infractions” of the rules. Id. At another point in 2017, Robinson-Steele accused Harris of not wearing a bra to work. Id. 16. Harris says this was not true and, apparently in an effort to prove this, she offered to accompany Robinson-Steele to the restroom, but Robinson-Steele declined the invitation. Id. Harris reported this incident to the Equal Employment Opportunity Commission (“EEOC”) in May 2017. Id. 17. The EEOC issued a right to sue letter, but Harris declined to pursue her grievance further. Id. Harris’s EEOC complaint “apparently enraged” Robinson-Steele. Id. 18. Soon after she caught wind of it, Robinson-Steele accused Harris of neglecting her duties and showing up to work late. Id. She also shifted some responsibilities away from Harris and reassigned some of Harris’s subordinates to other supervisors in an attempt to “isolate” Harris. Id. Robinson-Steele shared her criticisms of Harris with others as well in an effort to “humiliate and embarrass” Harris. Id. In 2017, Harris was the subject of a disciplinary hearing for what she characterizes as “trumped-up charges.” Id. 20. The Second Amended Complaint does not explain what the charges were. In any event, the administrative law judge that presided over the hearing dismissed some of the charges and recommended, evidently as punishment for others, that Harris be demoted by one level. Id. The HRA subsequently demoted Harris by two levels. Id. In June 2019, Harris was transferred to the Brownsville CASA in Brooklyn. Id. 21. Harris alleges that she was “singled out for this hostile treatment” because she reported rule violations and filed a complaint with the EEOC, and even though others were “guilty of more serious violations of policies and rules,” they were not subjected to disciplinary charges. Id. 22; see also id. 24 (“[Robinson-Steele] was also much more lenient with younger workers who were regularly violating the code of conduct, issuing them no warnings when I was being issued warnings for non-existent and insignificant infractions.”). During this time, Robinson-Steele “pester[ed]” Harris about retiring. Id. 23. Harris says that her employer tried to “force” her to retire by “overwhelming [her] with an oppressive workload.” Id. 24. At the same time, she was assigned many “administrative-type responsibilities” that were too “rote or routine” for someone with her experience while “[y]ounger workers” received “more challenging and impactful assignments.” Id. Robinson-Steele told Harris on “many occasions” that the HRA was “too top-heavy with Supervisors,” which Harris says further “impl[ied] that [she] should retire.” Id. 25. Even so, in 2018, the HRA hired a new supervisor who was younger than Harris. Id. In 2018, Robinson-Steele positioned Harris’s workspace in an area of the office that was not adequately air-conditioned during the summer and had “oppressive” heat. Id. 26. Harris contends that this too was “an effort to force [her] out.” Id. Harris requested her workspace be moved to a new area and provided her employer with a medical letter that stated she suffered from “heat exhaustion.” Id. The HRA’s Labor Relations office directed Robinson-Steele to move Harris to a more ventilated area. Id. Robinson-Steele was “quite unhappy” with this and that same day issued Harris three “baseless warnings.” Id. Harris also has a “chronic and painful arthritic condition” in her knees that developed “[s]everal years ago.” Id. 28. She uses a cane, and her doctor told her that she should “stay off [her] feet whenever possible.” Id. Harris’s commute from her home in the Bronx to CASA in Brooklyn caused her knee pain. Id. 29. Harris told HRA managers about her condition, but never requested an accommodation for this. Id. However, she says that because CASA has many locations, her employer “could have provided an accommodation by relocating [her] closer to [her] home.” Id. Besides Robinson-Steele, Harris also had problems with other CASA employees. At some point in 2017 or 2018, one coworker used offensive language and called Harris “a man with two balls.” Id. 15 (internal quotation marks omitted). Another “constantly us[ed] the F-word and other offensive language” in an effort to “deliberately annoy” Harris. Id. Further, Harris’s desk was vandalized, and “intimidating notes” were left on it. Id. She reported these incidents to her supervisors, but they took no action. Id. Robinson-Steele specifically told Harris “not to bother her with this garbage.” Id. (internal quotation marks omitted). On July 26, 2019, Harris filed an EEOC complaint in which she alleged she had been subjected to discrimination and retaliation. Id. 30. The EEOC issued a right to sue letter on December 6, 2019. Id. B. Procedural History Harris initiated this suit on March 5, 2020 with the filing of a complaint. Dkt. 2. On April 30, 2020, she filed an amended complaint, Dkt. 7, and on July 27, 2020, she filed the Second Amended Complaint. Dkt. 12. Harris alleges that the City of New York, the HRA, and Banks violated Title VII, the ADEA, the ADA, the NYSHRL, the NYCHRL, and the NYLL. SAC 1. She requests damages for “emotional distress, pain and suffering, [and] humiliation,” as well as back pay to compensate her for her demotion. SAC at 6. Harris also seeks injunctive relief. See id. She asks the Court to enjoin the HRA and its employees from further retaliating against her, to direct the HRA to promote her back to the role of Supervisor III, and to require the HRA and its employees to provide her a reasonable accommodation for her disability. Id. This case was initially assigned to the Honorable Vernon S. Broderick and was reassigned to the undersigned on September 29, 2020. On September 30, 2020, Defendants filed a motion to dismiss, Dkt. 19, and a memorandum of law in support of their motion, Dkt. 20 (“Motion”). Harris filed an opposition brief on November 27, 2020. Dkt. 29 (“Opposition”). Defendants filed a reply on December 7, 2020. Dkt. 31 (“Reply”). II. Legal Standard To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A complaint’s “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Although the Court must “accept[] as true the factual allegations in the complaint and draw[] all inferences in the plaintiff’s favor,” Biro, 807 F.3d at 544, it need not “accept as true legal conclusions couched as factual allegations,” Lafaro v. N.Y. Cardiothoracic Grp., PLLC, 570 F.3d 471, 475-76 (2d Cir. 2009). The Court must construe pro se submissions “liberally” and interpret them “to raise the strongest arguments that they suggest.” Meadows v. United Servs., Inc., 963 F.3d 240, 243 (2d Cir. 2020) (per curiam) (internal quotation marks omitted). But a pro se complaint still “must state a plausible claim for relief.” Id. “Even in a pro se case…threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal quotation marks omitted).2 III. Discussion A. Timeliness “Before a plaintiff may assert claims under Title VII or the ADEA in federal court, she must present the claims forming the basis of such a suit in a complaint to the EEOC.” Zoulas v. New York City Dep’t of Educ., 400 F. Supp. 3d 25, 49 (S.D.N.Y. 2019) (citing Littlejohn v. City of New York, 795 F.3d 297, 322 (2d Cir. 2015) (Title VII); McPherson v. New York City Dep’t of Educ., 457 F.3d 211, 213 (2d Cir. 2006) (ADEA)). The same is true of employment discrimination claims pursuant to the ADA. Clark v. Jewish Childcare Ass’n, Inc., 96 F. Supp. 3d 237, 258 (S.D.N.Y. 2015). A claim under each of these three statutes is time-barred if the plaintiff does not file a charge with the EEOC within 300 days of the alleged unlawful employment practice. Duplan v. City of New York, 888 F.3d 612, 621 (2d Cir. 2018) (Title VII); Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 112 (2d Cir. 2008) (ADEA); Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 325 (2d Cir. 1999) (ADA); see also 42 U.S.C. §2000e-5(e)(1); 29 U.S.C. §626(d)(1). “Where the plaintiff complains of discrete discriminatory or retaliatory acts such as ‘termination, failure to promote, denial of transfer, or refusal to hire,’ such claims are not actionable if they occurred prior to the 300-day period even though they may be related to acts that occurred within the permissible 300-day period.” Davis-Garett v. Urban Outfitters, Inc., 921 F.3d 30, 42 (2d Cir. 2019) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002)).3 Harris filed her complaint alleging discrimination and retaliation with the EEOC on July 26, 2019. SAC 30. Thus, any discrete discriminatory or retaliatory actions that occurred before September 28, 2018 are time barred.4 The majority of the allegedly discriminatory or retaliatory conduct that Harris alleges occurred prior to September 28, 2018. See id.
14-20. Only two incidents fall within the 300-day limitations period: (1) Harris’s demotion in October 2018 after the conclusion of the disciplinary hearing, id. 20,5 and (2) Harris’s transfer in June 2019 to another CASA location, id. 21. Harris points to the continuing violation doctrine and argues that “the entire series of discriminatory and retaliatory actions should be considered.” Opposition at 6. “The continuing violation doctrine provides that ‘[w]hen a plaintiff experiences a continuous practice and policy [that violates his or her rights],…the commencement of the statute of limitations period may be delayed until the last [violation].’” Flores v. United States, 885 F.3d 119, 122 (2d Cir. 2018) (alterations in original) (quoting Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir. 1994)). “To qualify as continuing, the claimed actions must not be discrete acts, but repeated conduct that occurs over a series of days or perhaps years.” Zoulas, 400 F. Supp. 3d at 49 (internal quotation marks omitted); accord Morgan, 536 U.S. at 114-15. As noted, the only two incidents that fall within the 300-day period are Harris’s demotion and transfer. Each of these is a “discrete act[],” Morgan, 536 U.S. at 114, and thus the continuing violation doctrine does not apply. See Zoulas, 400 F. Supp. 3d at 50 (“Examples of discrete acts, for the purposes of the continuing violation doctrine, include disparate disciplining, negative performance reviews, termination, failure to promote, and denial of a preferred job position.”). The Court therefore will not consider any acts that occurred prior to September 28, 2018 for purposes of Harris’s discrimination or retaliation claims. However, “[h]ostile environment claims are different in kind from discrete acts” because “[t]heir very nature involves repeated conduct.” Morgan, 536 U.S. at 115. “While discrete claims of discrimination and retaliation must be brought within the 300-day limitations period to be actionable, a different rule applies with regard to hostile work environment claims.” Zoulas, 400 F. Supp. 3d at 50 (quoting Spence v. Bukofzer, No. 15 Civ. 6167 (ER), 2017 WL 1194478, at *5 (S.D.N.Y. Mar. 30, 2017)). In Morgan, the Supreme Court made clear that “the incidents constituting a hostile work environment are part of one unlawful employment practice,” and thus the claim is timely so long as the plaintiff timely filed with the EEOC a complaint pertaining to any act that is part of the hostile work environment claim. 536 U.S. at 118. Because Harris’s EEOC complaint was filed within the 300-day period for at least some of the acts in question, she is not barred from arguing that actions that occurred prior to September 28, 2018 contributed to her hostile work environment claims. See Zoulas, 400 F. Supp. 3d at 51. In sum, the Court will not consider acts that occurred before September 28, 2018 for Harris’s discrimination and retaliation claims. But for Harris’s hostile work environment claims, it will. B. Sex, Age, and Disability Discrimination Under Title VII, the ADEA, and the ADA As a preliminary matter, Title VII prohibits an employer from discriminating on the basis of an individual’s “race, color, religion, sex, or national origin.” 42 U.S.C. §2000e-2(a)(1). Harris alleges that Defendants violated Title VII, but does not make clear the basis on which she alleges discrimination. She mentions nothing about her race (except for once noting that she is African American, SAC 2), color, religion, or national origin. The Court therefore assumes her Title VII claim is one of sex-based discrimination because Harris discusses several incidents that involved sexual topics. See id.
