Suarez v. New York County District Attorney's Office

Background

Annabelle Suarez sued the New York County District Attorney’s Office (DANY) and DANY employees Nitin Savur, Nicole Ortsman-Dauer, George Argyros, and Ina Chen. She alleged discrimination and retaliation under Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), the New York State Human Rights Law (NYSHRL), and the New York City Human Rights Law (NYCHRL). She also alleged interference and retaliation under the Family and Medical Leave Act (FMLA) and brought a claim under the Whistleblower Protection Act.

Suarez alleged that she requested permission to work remotely because of respiratory and other health concerns during the COVID-19 period. She claimed that DANY instead required her to use paid leave on days she was scheduled to work in person, reduced her remote-work schedule, failed to respond to a later accommodation request, stopped paying her wages beginning October 1, 2021, and later ended her medical and health coverage. She filed complaints with the New York State Division of Human Rights in February and September 2021. She initially filed this federal case without a lawyer and later retained counsel.

Defendants moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Magistrate Judge Ona Wang recommended dismissing the complaint and allowing amendment only of the ADA disability-discrimination claim. No party objected. Judge Gardephe reviewed the recommendation for clear error and adopted it in part.

Rulings on the Claims

NYSHRL and NYCHRL claims. The court dismissed Suarez’s state and city discrimination claims without leave to amend. It held that the election-of-remedies doctrine barred them because Suarez had filed complaints concerning the same alleged conduct with the New York State Division of Human Rights. The court clarified that this bar is jurisdictional and therefore applies under Rule 12(b)(1), not Rule 12(b)(6). The agency’s findings of no probable cause did not fall within an exception to the bar.

ADA disability discrimination. The court dismissed this claim for failure to state a claim but granted leave to amend. The court found that Suarez had not adequately alleged an ADA disability—an impairment that substantially limits a major life activity. The court described her allegations about respiratory symptoms, hypertension, and the risk of severe COVID-19 illness as too vague and conclusory to establish that requirement. The court did not find amendment clearly futile, so Suarez may seek permission to file an amended complaint addressing this claim.

Title VII discrimination. The court dismissed Suarez’s Title VII discrimination claim for failure to state a claim. Although the complaint indicated that Suarez was female, it did not allege that DANY discriminated against her because of sex, race, color, religion, or national origin, which are characteristics protected by Title VII.

ADA retaliation. The court denied the motion to dismiss this claim. It held that Suarez plausibly alleged that her September 10, 2021 complaint to the Division of Human Rights, which asserted disability discrimination, was protected activity. The court also found that DANY knew about the complaint, that the loss of wages beginning October 1 could qualify as an adverse action, and that the three-week timing supported a possible causal connection. The court explained that a plaintiff may pursue ADA retaliation even without adequately pleading an actual ADA disability if she reasonably and in good faith believed she was opposing conduct prohibited by the ADA.

Title VII retaliation. The court dismissed this claim. Suarez did not allege that she complained about discrimination based on a characteristic protected by Title VII.

Whistleblower Protection Act. The court dismissed this claim because the Act applies only to federal employees, while Suarez was employed by DANY, a New York City municipal entity.

FMLA claims. The court dismissed Suarez’s FMLA interference and retaliation claims. It found that she did not allege that she sought to exercise rights under the FMLA. According to the court, her allegations showed that she objected to being forced to use leave instead of being allowed to work remotely, rather than that she requested FMLA leave that was denied or exercised FMLA rights and suffered retaliation.

Disposition

Judge Gardephe held that Defendants’ motion to dismiss was granted in part and denied in part. The motion was granted as to every claim except Suarez’s ADA retaliation claim, as to which the motion was denied. Suarez may seek leave to amend her ADA disability-discrimination claim, and any such motion was due by April 25, 2025. The order did not state that the dismissed claims were dismissed with prejudice, although it denied leave to amend the NYSHRL and NYCHRL claims and found amendment futile for several other claims.