OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS (Doc. 7) Plaintiff Marsha Gayles (“Plaintiff”) brings this action against Defendant Roswell Park Cancer Institute Corporation, d/b/a Roswell Park Cancer Institute (“Defendant”), alleging that Defendant discriminated against her on the basis of her race and her status as a caregiver for a child with a disability by refusing to allow her to work remotely during the COVID-19 pandemic. Pending before the court is Defendant’s November 23, 2022 motion to dismiss Plaintiff’s Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 7.) Plaintiff opposed the motion on January 19, 2023 (Doc. 14), and Defendant replied on February 3, 2023. (Doc. 15.) The court held a hearing on the motion on April 24, 2023, at which time it took the motion under advisement. Plaintiff is represented by Kevin P. Wicka, Esq., and Nicholas Paul DeMarco, Esq. Defendant is represented by Amanda L. Lowe, Esq., Chloe J. Nowak, Esq., and Tara Marie Ward, Esq. I. Procedural Background. Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on or about September 14, 2020. The EEOC submitted a copy of the charge to the New York State Division of Human Rights. Following an investigation into Plaintiff’s allegations, the EEOC issued Plaintiff a Notice of Right to Sue dated July 6, 2022. On October 3, 2022, Plaintiff filed a Complaint in this court asserting six causes of action: race-based discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000(e) (Count I), the New York State Human Rights Law (“NYSHRL”), Executive Law §290 (Count II), and 42 U.S.C. §§1981 and 1983 (Counts III and IV), as well as disability discrimination in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §12201 (Count V), and the NYSHRL, Executive Law §290 (Count VI).1 Plaintiff seeks two million dollars in actual damages for loss of income, including back pay, front pay, reimbursement for lost and future pension payments, social security, and other past and future benefits; mental anguish, emotional distress, and embarrassment; compensatory damages; and punitive damages, as well as attorney’s fees and costs and any other and further relief the court deems proper. II. Allegations in the Complaint. Plaintiff is a resident of the State of New York. Defendant is a public corporation established by statute under New York law. See N.Y. Pub. Auth. Law §3553.1(a) (“There is hereby created a corporation to be known as the Roswell Park Cancer Institute corporation which shall be a body corporate and politic constituting a public corporation.”). At all times relevant to the Complaint, Defendant was an “employer” as defined by the ADA and the NYSHRL. Defendant is “self-funded” and “not under significant state control[,]” with the exception of the appointment of its directors by the government and elected New York State officials. (Doc. 1 at 3, 14.) As a legal conclusion, Plaintiff alleges that “New York is not liable for payment of any Roswell Par[k] bonds or notes” or “budget deficits”; “no New York statute indicates Roswell Park is structured in any other way than to be self-sustaining”; and no “provision of state law make[s] New York responsible for debts or other liabilities, such as judgments or budget deficits, incurred by Roswell Park either directly or indirectly.” Id. at 3-4,
15-16. Plaintiff began working for Defendant on October 26, 2017 as Dr. Willie Underwood III’s Executive Assistant in the Department of Urology and served in that position until April 20, 2019. When Plaintiff was hired, Dr. Underwood allegedly was the only African American urologist employed by Defendant and was engaged in a lawsuit against Defendant asserting race-based discrimination, hostile work environment, and retaliation claims under Title VII, 42 U.S.C. §1981, and 42 U.S.C. §1983. Plaintiff allegedly “experienced hostility from employees of Defendant as a result of her association with Dr. Underwood.” (Doc. 1 at 5, 27.) When Dr. Underwood’s employment with Defendant ended in 2019, Defendant transferred Plaintiff to its Case Management Department where she was the only African American employee, as well as the only person of color. In March 2020, at the beginning of the COVID-19 pandemic, Defendant offered some employees the opportunity to work remotely and “made accommodations for employees who were high risk or who had school[-]aged children” attending school remotely. Id. at 5-6, 30. Beginning on or about March 16, 2020, Plaintiff asked her supervisor, Patricia Czamara, if she could work remotely to care for her ten-year-old son, who was at “high[]risk” for COVID-19 due to his disability2 and whose school had moved to online instruction. Ms. Czamara responded that she “would give it some thought.” Id. at 6, 31 (internal quotation marks omitted). At the end of March 2020, other employees who had similar duties to Plaintiff’s were allowed to work remotely, including but not limited to an Executive Secretary in another department, who is “Caucasian[.]” Id. at 32. Plaintiff alleges that in late March or early April 2020, Ms. Czamara tasked her with coordinating with Defendant’s IT Department so that all employees in the Case Management Department could work remotely. The IT Department ordered a laptop for Plaintiff, but when Plaintiff asked Ms. Czamara about the laptop in or about mid-April 2020, Ms. Czamara replied that Plaintiff would not be allowed to work remotely due to the “needs of the department[.]” Id. at 34 (internal quotation marks omitted). Ms. Czamara denied Plaintiff’s request to work from home, told her that she was “not comfortable with Plaintiff working and answering calls from home,” and that Plaintiff could either take a “leave of absence” or use her accrued paid leave time. Id. at 35. According to Plaintiff, “[a]lmost all” of her “essential duties” were administrative and could have been performed remotely. (Doc. 1 at 7, 38.) Other Caucasian employees in Plaintiff’s department were permitted to work remotely and did so, as did other Caucasian administrative assistants employed by Defendant. Plaintiff alleges that she was not permitted to work remotely due to her race. Because she was not allowed to work remotely, beginning on or around May 1, 2020, Plaintiff worked in the office every Wednesday through Friday but otherwise “was required to utilize leave time.” Id. at 7, 41. Plaintiff asserts that she “was humiliated, embarrassed[,] and subjected to emotional distress by being forced to use all of her paid leave time, and then being forced to use unpaid leave time once her paid time had expired, while her Caucasian co-workers were allowed to work remotely and not use their leave time.” Id. at 43. Although she complained to Human Resources, she was told that the decision to approve or deny remote access was left to her supervisor’s discretion. Human Resources allegedly did not investigate Plaintiff’s complaints nor did it advise her to report her concerns to Defendant’s Department of Diversity and Inclusion. Plaintiff alleges that she felt “exhausted and frustrated” due to Defendant’s lack of response to her complaints and due to “covering for her department, the Social Work [D]epartment, and trying to meet the needs of her family, all the while worrying about being exposed to C[OVID]-19.” Id. at 8, 47. She had a close contact with a co-worker who had COVID-19 and was required to work at a station close to the tubing system through which Defendant sent COVID-19 tests. On several occasions, Plaintiff was advised by a case manager that a clinic staff member who had been processing COVID-19 tests had used Plaintiff’s desk and phone. Plaintiff allegedly “had to constantly disinfect her work area and phone[,]” and suffered “ extreme emotional distress” due to her concerns about exposing her high-risk son to COVID-19. Id. at
