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v. NYC Dep't of Finance","paragraph_id":"para_2"},{"text":"1 UNITED STATES COURT OF APPEALS","paragraph_id":"para_3"},{"text":"2 FOR THE SECOND CIRCUIT","paragraph_id":"para_4"},{"text":"3 - - - - - -","paragraph_id":"para_5"},{"text":"4 August Term, 2025","paragraph_id":"para_6"},{"text":"5 (Argued: October 24, 2025 Decided: July 24, 2026)","paragraph_id":"para_7"},{"text":"6 Docket No. 24-3004","paragraph_id":"para_8"},{"text":"7 _________________________________________________________","paragraph_id":"para_9"},{"text":"8 EMIL CANGRO,","paragraph_id":"para_10"},{"text":"9 Plaintiff-Appellant,","paragraph_id":"para_11"},{"text":"10 - v. -","paragraph_id":"para_12"},{"text":"11 NEW YORK CITY DEPARTMENT OF FINANCE, and THE CITY OF","paragraph_id":"para_13"},{"text":"12 NEW YORK,","paragraph_id":"para_14"},{"text":"13 Defendants-Appellees.*","paragraph_id":"para_15"},{"text":"14 _________________________________________________________","paragraph_id":"para_16"},{"text":"* The Clerk of Court is instructed to amend the official caption to conform","paragraph_id":"para_17"},{"text":"with the above.","paragraph_id":"para_18"},{"text":"1 Before: LOHIER, Chief Judge, KEARSE, and PARK, Circuit Judges.","paragraph_id":"para_19"},{"text":"2 Appeal by plaintiff from a judgment of the United States District Court","paragraph_id":"para_20"},{"text":"3 for the Southern District of New York, Loretta A. Preska, Judge, dismissing his action","paragraph_id":"para_21"},{"text":"4 complaining that his employer--defendants New York City and its Department of","paragraph_id":"para_22"},{"text":"5 Finance--discriminated against him because of, inter alia, his requesting a reasonable","paragraph_id":"para_23"},{"text":"6 accommodation for his disability, in violation of the Americans with Disabilities Act","paragraph_id":"para_24"},{"text":"7 (\"ADA\"), 42 U.S.C. § 12101 et seq., and the New York City Human Rights Law","paragraph_id":"para_25"},{"text":"8 (\"NYCHRL\"), N.Y.C. Admin. Code § 8-101 to 8-134. The district court granted","paragraph_id":"para_26"},{"text":"9 defendants' motion pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the Amended","paragraph_id":"para_27"},{"text":"10 Complaint for failure to state a claim, finding that it lacked plausible allegations of,","paragraph_id":"para_28"},{"text":"11 inter alia, an adverse employment action and plaintiff's ability to perform the essential","paragraph_id":"para_29"},{"text":"12 functions of his job with accommodation. The court denied plaintiff's request to file","paragraph_id":"para_30"},{"text":"13 a Proposed Second Amended Complaint (\"PSAC\"), ruling that the PSAC would not","paragraph_id":"para_31"},{"text":"14 remedy the defects the court had identified in the Amended Complaint, and that the","paragraph_id":"para_32"},{"text":"15 PSAC's attempts to add an ADA claim of retaliation were insufficient to state such a","paragraph_id":"para_33"},{"text":"16 claim. On appeal, plaintiff contends principally that the court erred in concluding","paragraph_id":"para_34"},{"text":"17 that the PSAC did not adequately state claims for discrimination and retaliation under","paragraph_id":"para_35"},{"text":"18 the ADA and claims for failure to accommodate under the ADA and the NYCHRL.","paragraph_id":"para_36"},{"text":"-2-","paragraph_id":"para_37"},{"text":"1 We conclude that the district court properly rejected Cangro's claims of","paragraph_id":"para_38"},{"text":"2 discrimination and retaliation, but that it erred in ruling that the Amended Complaint","paragraph_id":"para_39"},{"text":"3 and the PSAC failed to state claims on which relief can be granted for failure to","paragraph_id":"para_40"},{"text":"4 accommodate under the ADA and the NYCHRL.","paragraph_id":"para_41"},{"text":"5 Affirmed in part, vacated and remanded in part.","paragraph_id":"para_42"},{"text":"6 STEVEN J. HARFENIST, Lake Success, New York (Harfenist,","paragraph_id":"para_43"},{"text":"7 Kraut & Perlstein, Lake Success, New York, on the brief), for","paragraph_id":"para_44"},{"text":"8 Plaintiff-Appellant.","paragraph_id":"para_45"},{"text":"9 JANET L. ZALEON, Assistant Corporation Counsel, New York,","paragraph_id":"para_46"},{"text":"10 New York (Muriel Goode-Trufant, Corporation Counsel of","paragraph_id":"para_47"},{"text":"11 the City of New York, Richard Dearing, Ingrid R.","paragraph_id":"para_48"},{"text":"12 Gustafson, New York, New York, on the brief), for","paragraph_id":"para_49"},{"text":"13 Defendants-Appellees.","paragraph_id":"para_50"},{"text":"14 KEARSE, Circuit Judge:","paragraph_id":"para_51"},{"text":"15 Plaintiff Emil Cangro appeals from a judgment of the United States","paragraph_id":"para_52"},{"text":"16 District Court for the Southern District of New York, Loretta A. Preska, Judge,","paragraph_id":"para_53"},{"text":"17 dismissing his action complaining that his employer--defendants New York City","paragraph_id":"para_54"},{"text":"18 (\"City\") and its Department of Finance (\"DOF\" or \"NYCDOF\")--discriminated and","paragraph_id":"para_55"},{"text":"19 retaliated against him because of, inter alia, his requests for a reasonable","paragraph_id":"para_56"},{"text":"20 accommodation for his disability, in violation of the Americans with Disabilities Act","paragraph_id":"para_57"},{"text":"-3-","paragraph_id":"para_58"},{"text":"1 (\"ADA\"), 42 U.S.C. § 12101 et seq., and/or the New York City Human Rights Law","paragraph_id":"para_59"},{"text":"2 (\"NYCHRL\"), N.Y.C. Admin. Code § 8-101 to 8-134. The district court granted","paragraph_id":"para_60"},{"text":"3 defendants' motion pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the Amended","paragraph_id":"para_61"},{"text":"4 Complaint for failure to state a claim, finding that it lacked plausible allegations of,","paragraph_id":"para_62"},{"text":"5 inter alia, an adverse employment action and Cangro's ability to perform the essential","paragraph_id":"para_63"},{"text":"6 functions of his job with accommodation. The court denied Cangro's request to file","paragraph_id":"para_64"},{"text":"7 a Proposed Second Amended Complaint (or \"PSAC\"), ruling that the PSAC would not","paragraph_id":"para_65"},{"text":"8 remedy the defects that the court had identified in the Amended Complaint and that","paragraph_id":"para_66"},{"text":"9 the PSAC's allegations attempting to add an ADA claim of retaliation were","paragraph_id":"para_67"},{"text":"10 insufficient to state such a claim. On appeal, Cangro contends principally that the","paragraph_id":"para_68"},{"text":"11 district court erred in concluding that the PSAC did not adequately state (a) claims","paragraph_id":"para_69"},{"text":"12 for discrimination and retaliation under the ADA, and (b) claims for failure to","paragraph_id":"para_70"},{"text":"13 accommodate his disability under the ADA and the NYCHRL. For the reasons that","paragraph_id":"para_71"},{"text":"14 follow, we conclude that the district court properly rejected Cangro's claims of","paragraph_id":"para_72"},{"text":"15 discrimination and retaliation, but that it erred in ruling that the Amended Complaint","paragraph_id":"para_73"},{"text":"16 and the PSAC failed to state claims on which relief can be granted for failure to","paragraph_id":"para_74"},{"text":"17 accommodate under the ADA and the NYCHRL.","paragraph_id":"para_75"},{"text":"-4-","paragraph_id":"para_76"},{"text":"1 I. BACKGROUND","paragraph_id":"para_77"},{"text":"2 This action was commenced by Cangro on November 16, 2023, with the","paragraph_id":"para_78"},{"text":"3 filing of both a complaint and an Amended Complaint (or \"FAC\"). The Amended","paragraph_id":"para_79"},{"text":"4 Complaint included the following allegations.","paragraph_id":"para_80"},{"text":"5 A. The Amended Complaint","paragraph_id":"para_81"},{"text":"6 Cangro, a resident of Staten Island, New York, was a longtime employee","paragraph_id":"para_82"},{"text":"7 of NYCDOF, the City's \"revenue service, taxation agency and recorder of deeds.\"","paragraph_id":"para_83"},{"text":"8 (FAC ¶¶ 1, 7-8.) He was a \"Principal Administrative Associate assigned to the","paragraph_id":"para_84"},{"text":"9 NYCDOF's External Affairs division.\" (Id. ¶ 13.) Since 2002, Cangro has suffered","paragraph_id":"para_85"},{"text":"10 from multiple respiratory conditions, including coughing, wheezing, chest tightness,","paragraph_id":"para_86"},{"text":"11 asthma, and diminished lung capacity; in or around 2016, he was diagnosed with","paragraph_id":"para_87"},{"text":"12 chronic obstructive pulmonary disease and bronchiectasis. (See id. ¶¶ 10-12.)","paragraph_id":"para_88"},{"text":"13 During the COVID-19 pandemic and continuing to mid-March 2022,","paragraph_id":"para_89"},{"text":"14 DOF permitted Cangro to work remotely from his home. On March 14, 2022, the","paragraph_id":"para_90"},{"text":"15 City, through its Equal Employment Opportunity Office (\"EEO\") \"issued a new","paragraph_id":"para_91"},{"text":"16 accommodation by which Mr. Cangro was permitted to work remotely three (3) days","paragraph_id":"para_92"},{"text":"-5-","paragraph_id":"para_93"},{"text":"1 per week and in the NYCDOF office at 1 Centre Street [in Manhattan], two (2) days","paragraph_id":"para_94"},{"text":"2 per week.\" (Id. ¶ 15.) Cangro promptly requested that he be allowed to work the two","paragraph_id":"para_95"},{"text":"3 in-office days in the City's Business Center in Staten Island (\"Staten Island office\" or","paragraph_id":"para_96"},{"text":"4 \"SIBC\"), both because he had difficulty breathing while commuting from Staten Island","paragraph_id":"para_97"},{"text":"5 to Centre Street on public transportation wearing a mask, \"which at the time was","paragraph_id":"para_98"},{"text":"6 required by the MTA\" (id. ¶ 17) (the \"MTA mask mandate\"), and because NYCDOF's","paragraph_id":"para_99"},{"text":"7 Centre Street office lacked ventilation and adequate temperature controls, causing","paragraph_id":"para_100"},{"text":"8 him to sit in a warm and dusty room, exacerbating his respiratory issues (see id.","paragraph_id":"para_101"},{"text":"9 ¶¶ 16-18).","paragraph_id":"para_102"},{"text":"10 Cangro's request was denied, and his administrative appeal was","paragraph_id":"para_103"},{"text":"11 unsuccessful. In rejecting that appeal, NYCDOF \"stat[ed] in pertinent part '[w]hile","paragraph_id":"para_104"},{"text":"12 reasonable accommodations may be provided to enable you to satisfy the essential","paragraph_id":"para_105"},{"text":"13 functions of your job, your commute to work is separate from your ability to perform","paragraph_id":"para_106"},{"text":"14 your essential duties.'\" (Id. ¶¶ 21-22.)","paragraph_id":"para_107"},{"text":"15 In June 2023 (sic; see Part I.C. below), again citing the ventilation and","paragraph_id":"para_108"},{"text":"16 climate-control issues at 1 Centre Street, and submitting \"medical documentation","paragraph_id":"para_109"},{"text":"17 from the World Trade Center health clinic at Bellevue Hospital\" including test results","paragraph_id":"para_110"},{"text":"18 showing that Cangro could not walk more than 10 feet without losing his breath and","paragraph_id":"para_111"},{"text":"-6-","paragraph_id":"para_112"},{"text":"1 needing a rescue inhaler, Cangro sought permission to work completely remotely","paragraph_id":"para_113"},{"text":"2 from home due to his medical conditions. (Id. ¶¶ 23-26.) When that request was","paragraph_id":"para_114"},{"text":"3 denied, he asked to be allowed to work three days from home and two days in the","paragraph_id":"para_115"},{"text":"4 Staten Island office; but \"[f]ollowing this amended submission, Mr. Cangro was","paragraph_id":"para_116"},{"text":"5 berated by\" a DOF investigator \"and there was no attempt at engaging in cooperative","paragraph_id":"para_117"},{"text":"6 dialogue as required by law.\" (Id. ¶¶ 27-28.)","paragraph_id":"para_118"},{"text":"7 Cangro's amended request was denied in August, and he was informed","paragraph_id":"para_119"},{"text":"8 that, effective immediately, he would be required to work at DOF's Centre Street","paragraph_id":"para_120"},{"text":"9 office five days a week. (See id. ¶¶ 29, 32-33.) Cangro again appealed, and this appeal","paragraph_id":"para_121"},{"text":"10 was partially successful, with a ruling that he was allowed to work from home two","paragraph_id":"para_122"},{"text":"11 days a week. However, the denial of his request to work part of the week at DOF's","paragraph_id":"para_123"},{"text":"12 Staten Island office rather than its Centre Street office was affirmed, with the","paragraph_id":"para_124"},{"text":"13 explanation \"that there is no 'reasonable accommodation that can be made as there","paragraph_id":"para_125"},{"text":"14 is no External Affairs office in the Staten Island Business Center and such a transfer","paragraph_id":"para_126"},{"text":"15 would not actually address your inability to walk more than 10 feet as you would still","paragraph_id":"para_127"},{"text":"16 have to walk more than that amount to access the building and the employee","paragraph_id":"para_128"},{"text":"17 cubicles/work area.'\" (Id. ¶ 36.) The Amended Complaint again stated that NYCDOF","paragraph_id":"para_129"},{"text":"18 did not engage in any interactive process or cooperative dialogue and that it \"refused","paragraph_id":"para_130"},{"text":"-7-","paragraph_id":"para_131"},{"text":"1 to consider or discuss Mr. Cangro's request to work from Staten Island.\" (Id. ¶ 37.)","paragraph_id":"para_132"},{"text":"2 Based on the above factual assertions, the Amended Complaint (filed","paragraph_id":"para_133"},{"text":"3 after Cangro had received a \"right to sue\" letter from the United States Equal","paragraph_id":"para_134"},{"text":"4 Employment Opportunity Commission (\"EEOC\")) asserted four causes of action: (1)","paragraph_id":"para_135"},{"text":"5 disparate treatment discrimination, in violation of the ADA, (2) failure to grant a","paragraph_id":"para_136"},{"text":"6 reasonable accommodation, in violation of the ADA, (3) failure to grant a reasonable","paragraph_id":"para_137"},{"text":"7 accommodation, in violation of the NYCHRL, and (4) failure to engage in a","paragraph_id":"para_138"},{"text":"8 cooperative dialogue, in violation of the NYCHRL.","paragraph_id":"para_139"},{"text":"9 B. Dismissal of the Amended Complaint for Failure To State a Claim","paragraph_id":"para_140"},{"text":"10 Defendants moved under Rule 12(b)(6) for dismissal of the Amended","paragraph_id":"para_141"},{"text":"11 Complaint for failure to state a claim upon which relief can be granted. They argued","paragraph_id":"para_142"},{"text":"12 principally that the ADA disparate treatment claim should be dismissed because the","paragraph_id":"para_143"},{"text":"13 FAC failed to allege that Cangro was subjected to an adverse employment action, and","paragraph_id":"para_144"},{"text":"14 that, even assuming an adequate allegation that there was such an action, the FAC","paragraph_id":"para_145"},{"text":"15 failed to allege that that action was motivated by Cangro's disability or his requests","paragraph_id":"para_146"},{"text":"16 for accommodation.","paragraph_id":"para_147"},{"text":"17 Defendants also contended that Cangro's ADA and NYCHRL failure-to-","paragraph_id":"para_148"},{"text":"-8-","paragraph_id":"para_149"},{"text":"1 accommodate claims should be dismissed because, while defendants did not grant","paragraph_id":"para_150"},{"text":"2 Cangro the exact accommodation he requested, the Amended Complaint itself","paragraph_id":"para_151"},{"text":"3 showed that they did attempt to accommodate him by granting him, inter alia, a","paragraph_id":"para_152"},{"text":"4 hybrid work schedule along with a separate office room, and that that was a","paragraph_id":"para_153"},{"text":"5 reasonable accommodation. Defendants contended that Cangro's NYCHRL claim","paragraph_id":"para_154"},{"text":"6 that they failed to engage in a cooperative dialogue should also be dismissed in light","paragraph_id":"para_155"},{"text":"7 of their numerous interactive exchanges with Cangro about his accommodation","paragraph_id":"para_156"},{"text":"8 requests.","paragraph_id":"para_157"},{"text":"9 In an Opinion and Order dated August 14, 2024, see Cangro v. New York","paragraph_id":"para_158"},{"text":"10 City Department of Finance, No. 23-CV-10097, 2024 WL 3833971 (Aug. 14, 2024)","paragraph_id":"para_159"},{"text":"11 (\"Cangro I\"), the district court concluded that the FAC failed to state any claim on","paragraph_id":"para_160"},{"text":"12 which relief can be granted. In accordance with Rule 12(b)(6) standards governing","paragraph_id":"para_161"},{"text":"13 assessment of the sufficiency of a complaint and the plausibility of the facts alleged","paragraph_id":"para_162"},{"text":"14 to permit \"the reasonable inference that the defendant is liable for the misconduct","paragraph_id":"para_163"},{"text":"15 alleged,\" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), the court accepted as true the","paragraph_id":"para_164"},{"text":"16 Amended Complaint's factual allegations and \"the reasonable inferences\" that could","paragraph_id":"para_165"},{"text":"17 be drawn from them, but did \"not . . . 'credit conclusory allegations or legal","paragraph_id":"para_166"},{"text":"18 conclusions couched as factual allegations,'\" Cangro I, 2024 WL 3833971, at *2-*3","paragraph_id":"para_167"},{"text":"-9-","paragraph_id":"para_168"},{"text":"1 (quoting Dane v. UnitedHealthcare Ins. Co., 974 F.3d 183, 188 (2d Cir. 2020)).","paragraph_id":"para_169"},{"text":"2 The district court noted that the plausibility \"standard is not akin to a","paragraph_id":"para_170"},{"text":"3 probability requirement, but it asks for more than a sheer possibility that a defendant","paragraph_id":"para_171"},{"text":"4 has acted unlawfully.\" Cangro I, 2024 WL 3833971, at *2 (internal quotation marks","paragraph_id":"para_172"},{"text":"5 omitted); see Iqbal, 556 U.S. at 678; Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556","paragraph_id":"para_173"},{"text":"6 (2007). \"Evaluating 'whether a complaint states a plausible claim for relief' is 'a","paragraph_id":"para_174"},{"text":"7 context-specific task that requires the reviewing court to draw on its judicial","paragraph_id":"para_175"},{"text":"8 experience and common sense.'\" Cangro I, 2024 WL 3833971, at *2 (quoting Iqbal, 556","paragraph_id":"para_176"},{"text":"9 U.S. at 679).","paragraph_id":"para_177"},{"text":"10 As to the substantive law governing Cangro's claim of discrimination, the","paragraph_id":"para_178"},{"text":"11 district court noted that","paragraph_id":"para_179"},{"text":"12 [t]o state a plausible claim for discrimination under the ADA, a","paragraph_id":"para_180"},{"text":"13 plaintiff must adequately allege that: (1) his or her employer is","paragraph_id":"para_181"},{"text":"14 subject to the ADA; (2) he or she is disabled within the meaning","paragraph_id":"para_182"},{"text":"15 of the ADA or perceived to be disabled by his or her employer; (3)","paragraph_id":"para_183"},{"text":"16 he or she was otherwise qualified to perform the essential","paragraph_id":"para_184"},{"text":"17 functions of the job with or without reasonable accommodation;","paragraph_id":"para_185"},{"text":"18 (4) he or she suffered an adverse employment action; and (5) the","paragraph_id":"para_186"},{"text":"19 adverse action was imposed because of his or her disability.","paragraph_id":"para_187"},{"text":"20 Cangro I, 2024 WL 3833971, at *3 (emphasis added). The district court stated that in","paragraph_id":"para_188"},{"text":"21 order to \"qualify as an adverse employment action, the employer's action toward the","paragraph_id":"para_189"},{"text":"-10-","paragraph_id":"para_190"},{"text":"1 plaintiff must be 'materially adverse' with respect to 'the terms and conditions of","paragraph_id":"para_191"},{"text":"2 employment.'\" Id. (quoting Caskey v. County of Ontario, 560 F. App'x 57, 58-59 (2d Cir.","paragraph_id":"para_192"},{"text":"3 2014)). The court also stated that \"[t]his is the same analysis courts apply when faced","paragraph_id":"para_193"},{"text":"4 with a claim for discrimination under Title VII.\" Cangro I, 2024 WL 3833971, at *3 n.3.","paragraph_id":"para_194"},{"text":"5 (See also Part I.C.2. below.)","paragraph_id":"para_195"},{"text":"6 The district court stated that it was not entirely clear from the Amended","paragraph_id":"para_196"},{"text":"7 Complaint","paragraph_id":"para_197"},{"text":"8 what adverse employment action Plaintiff alleges as the basis of","paragraph_id":"para_198"},{"text":"9 his discrimination claim. Reading the Amended Complaint in the","paragraph_id":"para_199"},{"text":"10 light most favorable to Plaintiff, he appears to allege that the","paragraph_id":"para_200"},{"text":"11 adverse action Defendants imposed on him was requiring him","paragraph_id":"para_201"},{"text":"12 several times to work in-person either two or three days per week","paragraph_id":"para_202"},{"text":"13 at the 1 Centre Street location after accommodating his remote","paragraph_id":"para_203"},{"text":"14 work between March 2020 and March 2022. (See [F]AC ¶¶ 14-15,","paragraph_id":"para_204"},{"text":"15 21, 35, 44-48.) He then seems to allege that this materially affected","paragraph_id":"para_205"},{"text":"16 his working conditions by forcing him to work in an unhealthy","paragraph_id":"para_206"},{"text":"17 location, the 1 Centre Street office. (See id. ¶¶ 18, 26.) He also","paragraph_id":"para_207"},{"text":"18 notes his difficulty wearing a mask while commuting to the 1","paragraph_id":"para_208"},{"text":"19 Centre Street location, which was required at the time he","paragraph_id":"para_209"},{"text":"20 requested that accommodation. (See id. ¶ 17.) Finally, he makes","paragraph_id":"para_210"},{"text":"21 conclusory allegations stating that he suffered \"emotional","paragraph_id":"para_211"},{"text":"22 anguish,\" was \"humiliated,\" and \"demeaned,\" (see [F]AC ¶ 48),","paragraph_id":"para_212"},{"text":"23 but does not allege any facts to support these injuries.","paragraph_id":"para_213"},{"text":"24 Cangro I, 2024 WL 3833971, at *4. The court noted that Cangro \"appears to have","paragraph_id":"para_214"},{"text":"25 worked in the 1 Centre Street location five days a week prior to March 2020 and has","paragraph_id":"para_215"},{"text":"-11-","paragraph_id":"para_216"},{"text":"1 been doing so at a part-time rate since March 2022,\" and the requirement that he","paragraph_id":"para_217"},{"text":"2 return to that location--with no change to his salary, job benefits, and job","paragraph_id":"para_218"},{"text":"3 responsibilities--\"constitute[d] nothing more than an inconvenience that does not","paragraph_id":"para_219"},{"text":"4 qualify as a materially adverse employment action.\" Id.","paragraph_id":"para_220"},{"text":"5 The district court found that, as to Cangro's criticisms of the \"conditions","paragraph_id":"para_221"},{"text":"6 of his 1 Centre Street office, all [Cangro] alleges is that it 'lack[s] [] ventilation,' has","paragraph_id":"para_222"},{"text":"7 'poorly regulated' climate and temperature control, is an 'extremely warm and dusty","paragraph_id":"para_223"},{"text":"8 room,' and lacks windows that he can open.\" Id. (quoting FAC ¶¶ 18, 26.) The court","paragraph_id":"para_224"},{"text":"9 found those alleged conditions, along with the MTA mask mandate applicable to","paragraph_id":"para_225"},{"text":"10 Cangro's commute to that office via public transportation, differed significantly from","paragraph_id":"para_226"},{"text":"11 the circumstances in the main case relied on by Cangro, Diaz v. Viagran, No. 16-CV-","paragraph_id":"para_227"},{"text":"12 9106, 2018 WL 4360790 (S.D.N.Y. Aug. 29, 2018). Diaz's prior accommodations had","paragraph_id":"para_228"},{"text":"13 freed her from disability-related respiratory issues for three years; and the unilateral","paragraph_id":"para_229"},{"text":"14 revocation of one of those accommodations \"caused Diaz to suffer severe symptoms","paragraph_id":"para_230"},{"text":"15 at work, sending her to the hospital several times, and ultimately forcing her to take","paragraph_id":"para_231"},{"text":"16 medical leave and a reduced salary.\" Cangro I, 2024 WL 3833971, at *4; see Diaz v.","paragraph_id":"para_232"},{"text":"17 Viagran, 2018 WL 4360790, at *9.","paragraph_id":"para_233"},{"text":"18 Noting that the FAC did not allege that NYCDOF's March 2022","paragraph_id":"para_234"},{"text":"-12-","paragraph_id":"para_235"},{"text":"1 requirement that Cangro return to work at the Centre Street location resulted in such","paragraph_id":"para_236"},{"text":"2 events as emergency hospital visits, use of medical leave, or reduction in his salary","paragraph_id":"para_237"},{"text":"3 or benefits, the district court concluded that Cangro had not plausibly alleged that","paragraph_id":"para_238"},{"text":"4 NYCDOF's alteration of his prior--COVID-19-precautionary--accommodation","paragraph_id":"para_239"},{"text":"5 constituted an adverse employment action. See Cangro I, 2024 WL 3833971, at *4-*5;","paragraph_id":"para_240"},{"text":"6 id. at *3 (\"Because . . . Plaintiff has failed to plead sufficient facts creating a plausible","paragraph_id":"para_241"},{"text":"7 inference that he was subject to an adverse employment action, [the court] dismisses","paragraph_id":"para_242"},{"text":"8 Plaintiff's ADA discrimination claim.\").","paragraph_id":"para_243"},{"text":"9 As to Cangro's claims that NYCDOF violated the ADA and the NYCHRL","paragraph_id":"para_244"},{"text":"10 by failing to grant him a reasonable accommodation for his disability, the district","paragraph_id":"para_245"},{"text":"11 court found the FAC defective for failure to allege that his requested accommodation","paragraph_id":"para_246"},{"text":"12 would have permitted him to perform his job's essential functions. The court viewed","paragraph_id":"para_247"},{"text":"13 all of the Amended Complaint's allegations on this element as conclusory:","paragraph_id":"para_248"},{"text":"14 The Amended Complaint does not contain any well-pleaded","paragraph_id":"para_249"},{"text":"15 factual allegations that detail what the essential functions of","paragraph_id":"para_250"},{"text":"16 Plaintiff's job are or how he can accomplish them while working","paragraph_id":"para_251"},{"text":"17 completely remotely or on a hybrid schedule in which he works","paragraph_id":"para_252"},{"text":"18 from the SIBC some days of the week. The only allegations","paragraph_id":"para_253"},{"text":"19 Plaintiff makes that touch on this requirement are conclusory and","paragraph_id":"para_254"},{"text":"20 simple recitations of the pleading requirements. First, he alleges","paragraph_id":"para_255"},{"text":"21 he is a \"qualified individual with a disability who, with reasonable","paragraph_id":"para_256"},{"text":"22 accommodation, can perform the essential functions of his","paragraph_id":"para_257"},{"text":"-13-","paragraph_id":"para_258"},{"text":"1 employment position.\" (See [F]AC ¶ 43.) Second, he alleges","paragraph_id":"para_259"},{"text":"2 \"[w]ith a reasonable accommodation, [he] could perform the","paragraph_id":"para_260"},{"text":"3 essential function of his job[.]\" (See [F]AC ¶ 54.)","paragraph_id":"para_261"},{"text":"4 Cangro I, 2024 WL 3833971, at *6; see also id. at *3 (\"threadbare recitals of the elements","paragraph_id":"para_262"},{"text":"5 of a cause of action, supported by mere conclusory statements, do not suffice\"","paragraph_id":"para_263"},{"text":"6 (internal quotation marks omitted)).","paragraph_id":"para_264"},{"text":"7 In addition, the district court noted that Cangro's repeated assertions that","paragraph_id":"para_265"},{"text":"8 NYCDOF refused to consider his request to work at its Staten Island office, and failed","paragraph_id":"para_266"},{"text":"9 to engage in a cooperative dialogue as required by the NYCHRL, were \"render[ed] . . .","paragraph_id":"para_267"},{"text":"10 implausible\" by his other allegations that \"show Defendants did engage in a","paragraph_id":"para_268"},{"text":"11 cooperative dialogue.\" Id. at *7 (emphasis in original).","paragraph_id":"para_269"},{"text":"12 The district court accordingly granted defendants' motion to dismiss the","paragraph_id":"para_270"},{"text":"13 Amended Complaint for failure to state a claim under the ADA or the NYCHRL. The","paragraph_id":"para_271"},{"text":"14 court stated that the dismissal was without prejudice, to the extent that Cangro would","paragraph_id":"para_272"},{"text":"15 be allowed to propose a second amended complaint within 30 days. See id. at *8.","paragraph_id":"para_273"},{"text":"16 C. The Court's Rejection of the Proposed Second Amended Complaint","paragraph_id":"para_274"},{"text":"17 Cangro sent his Proposed Second Amended Complaint to the district","paragraph_id":"para_275"},{"text":"18 court in the form of a markup of the FAC, bearing \"redlines illustrating edits he made","paragraph_id":"para_276"},{"text":"-14-","paragraph_id":"para_277"},{"text":"1 to the [FAC],\" Cangro v. New York City Department of Finance, No. 23-CV-10097, 2024","paragraph_id":"para_278"},{"text":"2 WL 4582369, at *1 (Oct. 25, 2024) (\"Cangro II\"), along with a letter \"explain[ing] how\"","paragraph_id":"para_279"},{"text":"3 the PSAC \"would cure\" the defects the court had identified in the FAC (Letter from","paragraph_id":"para_280"},{"text":"4 Cangro's counsel to the district judge dated September 27, 2024, at 1.) The markups","paragraph_id":"para_281"},{"text":"5 principally made the following changes: The PSAC expressly abandoned Cangro's","paragraph_id":"para_282"},{"text":"6 claim that NYCDOF had violated the NYCHRL by failing to engage in a cooperative","paragraph_id":"para_283"},{"text":"7 dialogue; it added allegations meant to cure defects in the three remaining claims","paragraph_id":"para_284"},{"text":"8 asserted in the FAC; it changed the dates of the accommodation-request","paragraph_id":"para_285"},{"text":"9 communications between Cangro and NYCDOF, or between Cangro and the EEO,","paragraph_id":"para_286"},{"text":"10 that FAC ¶¶ 23, 27, 29, 34, and 35 alleged occurred in \"2023,\" to allege that they","paragraph_id":"para_287"},{"text":"11 occurred in 2022; and it introduced a new claim, alleging ADA-prohibited retaliation.","paragraph_id":"para_288"},{"text":"12 With respect to the discrimination and failure-to-accommodate claims","paragraph_id":"para_289"},{"text":"13 asserted in the FAC, the PSAC added allegations (a) that \"due to Mr. Cangro's","paragraph_id":"para_290"},{"text":"14 working conditions in a poorly ventilated dusty room at 1 Centre Street, he suffered","paragraph_id":"para_291"},{"text":"15 asthma[] attacks and shortness of breath while in the office and, on multiple","paragraph_id":"para_292"},{"text":"16 occasions, needed to leave to obtain immediate treatment to regain his ability to","paragraph_id":"para_293"},{"text":"17 breathe\" (PSAC ¶¶ 24 and 63); (b) that Cangro could perform the essential functions","paragraph_id":"para_294"},{"text":"18 of his job with his requested accommodation (see id. ¶¶ 14 and 18); and (c) that he had","paragraph_id":"para_295"},{"text":"-15-","paragraph_id":"para_296"},{"text":"1 suffered an adverse employment action when, because of his disability or his requests","paragraph_id":"para_297"},{"text":"2 for accommodation, NYCDOF denied him a promotion (see id. ¶¶ 48-52). In addition,","paragraph_id":"para_298"},{"text":"3 the PSAC, unlike the FAC, asserted an ADA claim for retaliation, alleging that","paragraph_id":"para_299"},{"text":"4 NYCDOF had threatened an investigation of Cangro and had denied him a","paragraph_id":"para_300"},{"text":"5 promotion in retaliation for his accommodation requests and for his complaining to","paragraph_id":"para_301"},{"text":"6 the EEOC that he was denied a reasonable accommodation.","paragraph_id":"para_302"},{"text":"7 In Cangro II, the district court--treating Cangro's letter as a motion to","paragraph_id":"para_303"},{"text":"8 amend the FAC--denied the motion, concluding that the PSAC's assertions failed to","paragraph_id":"para_304"},{"text":"9 state a plausible claim of retaliation and failed to cure all of the FAC's pleading","paragraph_id":"para_305"},{"text":"10 deficiencies.","paragraph_id":"para_306"},{"text":"11 1. The Proposed Claim of Retaliation","paragraph_id":"para_307"},{"text":"12 The PSAC alleged that, after Cangro complained to the EEOC, NYCDOF","paragraph_id":"para_308"},{"text":"13 retaliated against him (a) by telling him he was being investigated because of his","paragraph_id":"para_309"},{"text":"14 requests for disability accommodations, and (b) by denying him a promotion. The","paragraph_id":"para_310"},{"text":"15 district court found that the PSAC failed to plausibly allege that either action","paragraph_id":"para_311"},{"text":"16 attributed to NYCDOF constituted an action of retaliation for Cangro's complaint to","paragraph_id":"para_312"},{"text":"17 the EEOC or for his earlier accommodation requests.","paragraph_id":"para_313"},{"text":"-16-","paragraph_id":"para_314"},{"text":"1 In claiming that, in retaliation for Cangro's complaining to the EEOC,","paragraph_id":"para_315"},{"text":"2 NYCDOF sought to threaten or intimidate Cangro by saying that he was being","paragraph_id":"para_316"},{"text":"3 investigated, the PSAC alleged as follows:","paragraph_id":"para_317"},{"text":"4 43. On or about October 18, 2022, Scott Adlerberg, Mr.","paragraph_id":"para_318"},{"text":"5 Cangro's manager, notified him that he was under investigation","paragraph_id":"para_319"},{"text":"6 by the [City's] Department of Investigation (\"DOI\") because he","paragraph_id":"para_320"},{"text":"7 was seeking accommodations to work from home due to his","paragraph_id":"para_321"},{"text":"8 disability. This occurred just a few days prior to Mr. Cangro's","paragraph_id":"para_322"},{"text":"9 scheduled hearing with the EEOC.","paragraph_id":"para_323"},{"text":"10 44. There was no legitimate reason for DOI to conduct an","paragraph_id":"para_324"},{"text":"11 investigation. In fact, just a few days later, Mr. Adlerberg advised","paragraph_id":"para_325"},{"text":"12 Mr. Cangro that he was sorry for telling him that he was under an","paragraph_id":"para_326"},{"text":"13 investigation by DOI and it was apparently just a \"rumor\" that","paragraph_id":"para_327"},{"text":"14 wasn't true.","paragraph_id":"para_328"},{"text":"15 45. This incident confirmed that the threat of a DOI","paragraph_id":"para_329"},{"text":"16 investigation against Mr. Cangro was done to [sic] swiftly and","paragraph_id":"para_330"},{"text":"17 brutally to [sic] threaten, intimidate, hinder and coerce Mr. Cangro","paragraph_id":"para_331"},{"text":"18 and retaliate against him for filing a hearing request with the","paragraph_id":"para_332"},{"text":"19 EEOC.","paragraph_id":"para_333"},{"text":"20 46. Learning about this potential DOI investigation was","paragraph_id":"para_334"},{"text":"21 incredibly distressing to Mr. Cangro, as it would be to any","paragraph_id":"para_335"},{"text":"22 reasonable employee.","paragraph_id":"para_336"},{"text":"23 (PSAC ¶¶ 43-46.)","paragraph_id":"para_337"},{"text":"24 The court noted that \"[i]n retaliation cases, a plaintiff must plead","paragraph_id":"para_338"},{"text":"25 plausibly that (1) the plaintiff participated in a protected activity; (2) the defendant","paragraph_id":"para_339"},{"text":"-17-","paragraph_id":"para_340"},{"text":"1 knew of the protected activity; (3) the plaintiff suffered an adverse employment","paragraph_id":"para_341"},{"text":"2 action; and (4) there is a causal connection between the plaintiff's protected activity","paragraph_id":"para_342"},{"text":"3 and the adverse employment action she suffered.\" Cangro II, 2024 WL 4582369, at *4","paragraph_id":"para_343"},{"text":"4 (internal quotation marks omitted). It also noted that in a case","paragraph_id":"para_344"},{"text":"5 [w]here there is no direct evidence of discriminatory animus, the","paragraph_id":"para_345"},{"text":"6 Court may infer causation indirectly by temporal proximity","paragraph_id":"para_346"},{"text":"7 between the protected act and the retaliation. Littlejohn v. City of","paragraph_id":"para_347"},{"text":"8 New York, 795 F.3d 297, 319 (2d Cir. 2015). Although the Court","paragraph_id":"para_348"},{"text":"9 of Appeals has not precisely \"drawn a bright line for defining . . .","paragraph_id":"para_349"},{"text":"10 the outer limits beyond which a temporal relationship is too","paragraph_id":"para_350"},{"text":"11 attenuated to establish causation,\" it has held that \"five months\"","paragraph_id":"para_351"},{"text":"12 is near that outer limit. Gorzynski v. JetBlue Airways Corp., 596","paragraph_id":"para_352"},{"text":"13 F.3d 93, 110 (2d Cir. 2010) . . . .","paragraph_id":"para_353"},{"text":"14 Cangro II, 2024 WL 4582369, at *4.","paragraph_id":"para_354"},{"text":"15 The district court found that the PSAC did not plausibly plead a claim","paragraph_id":"para_355"},{"text":"16 for retaliation on the basis of a threatened investigation because it was \"undercut\" by","paragraph_id":"para_356"},{"text":"17 the factual allegations. Id. at *5. While the PSAC stated that hearing of the potential","paragraph_id":"para_357"},{"text":"18 DOI investigation was distressing to Cangro, and it \"assert[ed] this was done as a","paragraph_id":"para_358"},{"text":"19 threat to intimidate him,\" id., the court noted that Cangro","paragraph_id":"para_359"},{"text":"20 made no credible allegation to support that claim. His own","paragraph_id":"para_360"},{"text":"21 admission that the person who informed him of the purported","paragraph_id":"para_361"},{"text":"22 investigation quickly retracted that statement and apologized","paragraph_id":"para_362"},{"text":"23 within days reveals no threat or intimidation. And the innocuous","paragraph_id":"para_363"},{"text":"24 spreading of a rumor that Plaintiff alleges does not constitute the","paragraph_id":"para_364"},{"text":"-18-","paragraph_id":"para_365"},{"text":"1 type of materially adverse employment action necessary to sustain a","paragraph_id":"para_366"},{"text":"2 retaliation claim. Burlington N. & Santa Fe Ry. Co. v. White, 548","paragraph_id":"para_367"},{"text":"3 U.S. 53, 68 (2006).","paragraph_id":"para_368"},{"text":"4 Cangro II, 2024 WL 4582369, at *5 (emphases added).","paragraph_id":"para_369"},{"text":"5 The PSAC also alleged that NYCDOF had sought to retaliate against","paragraph_id":"para_370"},{"text":"6 Cangro for his accommodation requests by refusing to grant him a promotion he","paragraph_id":"para_371"},{"text":"7 sought. In this regard, the PSAC alleged as follows:","paragraph_id":"para_372"},{"text":"8 48. During the wake of the Covid 19 pandemic, Mr.","paragraph_id":"para_373"},{"text":"9 Cangro took a promotional exam and received a score of 100. He","paragraph_id":"para_374"},{"text":"10 was approximately number 25 in line for a promotion.","paragraph_id":"para_375"},{"text":"11 49. Despite Mr. Cangro's high score on the promotional","paragraph_id":"para_376"},{"text":"12 exam and exemplary performance, Mr. Adlerberg told him he","paragraph_id":"para_377"},{"text":"13 would not be selected for a promotion on or around July 17, 2024.","paragraph_id":"para_378"},{"text":"14 50. Mr. Adlerberg explained that there were budget","paragraph_id":"para_379"},{"text":"15 constraints and NYCDOF was unable to grant him a promotion.","paragraph_id":"para_380"},{"text":"16 The difference in pay for the position which Mr. Cangro was","paragraph_id":"para_381"},{"text":"17 seeking was comparable.","paragraph_id":"para_382"},{"text":"18 51. In fact, numerous other employees from Mr. Cangro's","paragraph_id":"para_383"},{"text":"19 division were promoted and were selected from the same","paragraph_id":"para_384"},{"text":"20 promotional list he was on.","paragraph_id":"para_385"},{"text":"21 52. Since it's clear that financial resources cannot be the","paragraph_id":"para_386"},{"text":"22 reason for the denial of Mr. Cangro's promotion, it was done to","paragraph_id":"para_387"},{"text":"23 [sic] and [sic] retaliate against him for filing an accommodation","paragraph_id":"para_388"},{"text":"24 request with the EEO.","paragraph_id":"para_389"},{"text":"25 (PSAC ¶¶ 48-52.)","paragraph_id":"para_390"},{"text":"-19-","paragraph_id":"para_391"},{"text":"1 Apparently seeing no PSAC factual allegations to show or imply that","paragraph_id":"para_392"},{"text":"2 NYCDOF had denied Cangro a promotion based on his disability or his requests for","paragraph_id":"para_393"},{"text":"3 accommodation, the district court considered whether an inference of discriminatory","paragraph_id":"para_394"},{"text":"4 intent could be reasonably drawn from the timing of the promotion denial, and","paragraph_id":"para_395"},{"text":"5 concluded that it could not:","paragraph_id":"para_396"},{"text":"6 Defendants' alleged decision not to promote Plaintiff creates no","paragraph_id":"para_397"},{"text":"7 inference of discriminatory intent because it occurred eleven","paragraph_id":"para_398"},{"text":"8 months after he obtained his right to sue letter from the EEOC and","paragraph_id":"para_399"},{"text":"9 twenty-two months after the NYCDOF rejected his","paragraph_id":"para_400"},{"text":"10 accommodation request for the final time, well beyond the \"outer","paragraph_id":"para_401"},{"text":"11 limit\" of temporal proximity. Gorzynski, 596 F.3d at 110.","paragraph_id":"para_402"},{"text":"12 Cangro II, 2024 WL 4582369, at *4.","paragraph_id":"para_403"},{"text":"13 2. The PSAC's Effect on the FAC's Claim of Disparate Treatment Discrimination","paragraph_id":"para_404"},{"text":"14 The district court in Cangro II concluded that the allegations in the PSAC","paragraph_id":"para_405"},{"text":"15 did not cure all of the flaws in the FAC's attempt to assert an ADA claim of disability","paragraph_id":"para_406"},{"text":"16 discrimination. It found that the PSAC failed to state a disability discrimination claim","paragraph_id":"para_407"},{"text":"17 premised on disparate treatment because it lacked sufficient factual allegations of","paragraph_id":"para_408"},{"text":"18 discriminatory intent and causation. The court acknowledged in Cangro II that in","paragraph_id":"para_409"},{"text":"19 Cangro I it had dismissed the discrimination claim for failure to plead plausibly that","paragraph_id":"para_410"},{"text":"-20-","paragraph_id":"para_411"},{"text":"1 Cangro had suffered a \"materially\" adverse employment action, e.g., Cangro I, 2024","paragraph_id":"para_412"},{"text":"2 WL 3833971, at *3; and it acknowledged that in so stating, it had observed that this","paragraph_id":"para_413"},{"text":"3 was the same standard used for Title VII claims, see id. at *3 & n.3. The court in","paragraph_id":"para_414"},{"text":"4 Cangro II noted that the Supreme Court's recent decision in Muldrow v. City of St.","paragraph_id":"para_415"},{"text":"5 Louis, 601 U.S. 346 (2024), had lowered the standard for what can constitute the","paragraph_id":"para_416"},{"text":"6 adverse-employment-action element in a Title VII action by a plaintiff alleging a","paragraph_id":"para_417"},{"text":"7 discriminatory job transfer. See Cangro II, 2024 WL 4582369, at *2. Muldrow held that","paragraph_id":"para_418"},{"text":"8 such a plaintiff \"need not show\" that the transfer caused her an employment","paragraph_id":"para_419"},{"text":"9 disadvantage that was \"significan[t]\"; instead, it is sufficient to show that she suffered","paragraph_id":"para_420"},{"text":"10 \"some harm\" resulting from an employment action. 601 U.S. at 350.","paragraph_id":"para_421"},{"text":"11 The district court in Cangro II acknowledged that the Muldrow standard","paragraph_id":"para_422"},{"text":"12 applied to Cangro's disability discrimination claim, but concluded that the PSAC","paragraph_id":"para_423"},{"text":"13 nonetheless did not rescue Cangro's claim from dismissal. As the court had set out","paragraph_id":"para_424"},{"text":"14 in Cangro I, in order \"[t]o state a plausible claim for discrimination under the ADA,","paragraph_id":"para_425"},{"text":"15 a plaintiff must adequately allege that,\" inter alia, the adverse action he suffered \"was","paragraph_id":"para_426"},{"text":"16 imposed because of his . . . disability.\" Cangro I, 2024 WL 3833971, at *3 (emphasis","paragraph_id":"para_427"},{"text":"17 added). Because the PSAC lacked adequate factual allegations from which a","paragraph_id":"para_428"},{"text":"18 factfinder could reasonably infer discriminatory intent and causation, the court in","paragraph_id":"para_429"},{"text":"-21-","paragraph_id":"para_430"},{"text":"1 Cangro II adhered to its dismissal of Cangro's discrimination claim for failure to state","paragraph_id":"para_431"},{"text":"2 a claim. See Cangro II, 2024 WL 4582369, at *2 (the PSAC's \"proposed changes\"","paragraph_id":"para_432"},{"text":"3 attempting to show an adverse employment action \"still would not resuscitate [t]his","paragraph_id":"para_433"},{"text":"4 claim\").","paragraph_id":"para_434"},{"text":"5 3. The Claims of Failure To Accommodate","paragraph_id":"para_435"},{"text":"6 The district court also adhered to its Cangro I ruling that the FAC's ADA","paragraph_id":"para_436"},{"text":"7 and NYCHRL failure-to-accommodate claims should be dismissed \"because Plaintiff","paragraph_id":"para_437"},{"text":"8 did not plausibly allege that his working from home or at the SIBC would permit him","paragraph_id":"para_438"},{"text":"9 to fulfill the essential functions of his job.\" Cangro II, 2024 WL 4582369, at *3. It found","paragraph_id":"para_439"},{"text":"10 that the new allegations in the PSAC did not cure that perceived defect:","paragraph_id":"para_440"},{"text":"11 Plaintiff now proposes allegations that his job requires him","paragraph_id":"para_441"},{"text":"12 to \"answer[] emails and hard mail correspondence from the","paragraph_id":"para_442"},{"text":"13 public, answer[] telephone inquiries, respond[] to Siebel Service","paragraph_id":"para_443"},{"text":"14 requests, and work[] on special projects for the Division of","paragraph_id":"para_444"},{"text":"15 External Affairs.\" (PSAC ¶ 14.) He states that Defendant","paragraph_id":"para_445"},{"text":"16 NYCDOF \"changed the procedures for responding to hard mail","paragraph_id":"para_446"},{"text":"17 correspondence\" during the COVID-19 Pandemic \"by allowing","paragraph_id":"para_447"},{"text":"18 employees to handle the correspondence from their homes,\" after","paragraph_id":"para_448"},{"text":"19 which NYCDOF would reimburse them. (Id. ¶ 15.) He also","paragraph_id":"para_449"},{"text":"20 inserts an allegation that, during the COVID-19 Pandemic,","paragraph_id":"para_450"},{"text":"21 NYCDOF stopped \"permit[ting] members of the public\" from","paragraph_id":"para_451"},{"text":"22 having \"in person meetings with representatives from NYCDOF.\"","paragraph_id":"para_452"},{"text":"23 (Id. ¶ 16.) Plaintiff's proposed edits would still fail to allege that he","paragraph_id":"para_453"},{"text":"-22-","paragraph_id":"para_454"},{"text":"1 could perform the essential functions of his job if granted his requested","paragraph_id":"para_455"},{"text":"2 accommodations.","paragraph_id":"para_456"},{"text":"3 First, taking as true Plaintiff's new allegations that","paragraph_id":"para_457"},{"text":"4 answering \"hard mail\" is an essential function of his job and that","paragraph_id":"para_458"},{"text":"5 the NYCDOF changed the policy for hard mail so that employees","paragraph_id":"para_459"},{"text":"6 could \"handle [such] correspondence from their homes [,]\" it still","paragraph_id":"para_460"},{"text":"7 would be insufficient to allege that Plaintiff could perform such a","paragraph_id":"para_461"},{"text":"8 task under the new procedure through the accommodation that","paragraph_id":"para_462"},{"text":"9 he actually requested. (Id. ¶¶ 14-15 (emphasis added).) That is","paragraph_id":"para_463"},{"text":"10 because the only aspect of Plaintiff's most recent accommodation","paragraph_id":"para_464"},{"text":"11 request that Defendants denied and over which he sues is his","paragraph_id":"para_465"},{"text":"12 request to work several days per week from an office in Staten","paragraph_id":"para_466"},{"text":"13 Island. (See id. ¶¶ 32, 40-42.) Plaintiff includes no new allegation","paragraph_id":"para_467"},{"text":"14 that NYCDOF's new purported policy permitting employees to","paragraph_id":"para_468"},{"text":"15 handle \"hard mail\" from their homes would enable him to","paragraph_id":"para_469"},{"text":"16 perform that task from the SIBC where he requested to work","paragraph_id":"para_470"},{"text":"17 several days per week. Accordingly, he has failed to allege that he","paragraph_id":"para_471"},{"text":"18 could perform the \"essential function\" of handling hard mail","paragraph_id":"para_472"},{"text":"19 correspondence if NYCDOF granted the specific accommodation","paragraph_id":"para_473"},{"text":"20 that he actually requested.","paragraph_id":"para_474"},{"text":"21 In addition, Plaintiff fails to specify what handling \"Siebel","paragraph_id":"para_475"},{"text":"22 Service requests\" entails or how he could accomplish that either","paragraph_id":"para_476"},{"text":"23 from his home or from the SIBC. The Proposed Second Amended","paragraph_id":"para_477"},{"text":"24 Complaint lacks any detail about how working anywhere other than his","paragraph_id":"para_478"},{"text":"25 office at the NYCDOF would enable him to perform this task. Similarly,","paragraph_id":"para_479"},{"text":"26 although Plaintiff now proposes to include that his job requires","paragraph_id":"para_480"},{"text":"27 him to \"work[] on special projects for the Division of External","paragraph_id":"para_481"},{"text":"28 Affairs[,]\" he does not allege with any particularity what those","paragraph_id":"para_482"},{"text":"29 \"special projects\" entail, including whether they require meeting","paragraph_id":"para_483"},{"text":"30 in-person with his colleagues at the NYCDOF or with employees","paragraph_id":"para_484"},{"text":"31 of other city agencies who do not work in Staten Island. (Id. ¶ 14.)","paragraph_id":"para_485"},{"text":"32 Thus, he again fails to specify how his requested accommodation","paragraph_id":"para_486"},{"text":"33 of working either from home or from the SIBC would permit him","paragraph_id":"para_487"},{"text":"-23-","paragraph_id":"para_488"},{"text":"1 to perform this function of his job.","paragraph_id":"para_489"},{"text":"2 Cangro II, 2024 WL 4582369, at *3-*4 (\"homes\" emphasized in original, other emphases","paragraph_id":"para_490"},{"text":"3 added).","paragraph_id":"para_491"},{"text":"4 Having found that the PSAC did not warrant resuscitation of any of","paragraph_id":"para_492"},{"text":"5 Cangro's claims, the district court dismissed the FAC \"with prejudice\" and directed","paragraph_id":"para_493"},{"text":"6 the Clerk of the Court to terminate the case. Id. at *1.","paragraph_id":"para_494"},{"text":"7 II. DISCUSSION","paragraph_id":"para_495"},{"text":"8 On appeal, Cangro contends that the district court erred in ruling that the","paragraph_id":"para_496"},{"text":"9 FAC did not state ADA claims on which relief can be granted, in concluding that his","paragraph_id":"para_497"},{"text":"10 PSAC did not cure the FAC defects the court had identified in Cangro I, and in","paragraph_id":"para_498"},{"text":"11 concluding that his PSAC's allegations of retaliation did not state a claim on which","paragraph_id":"para_499"},{"text":"12 relief can be granted. He contends that the court improperly dismissed his failure-to-","paragraph_id":"para_500"},{"text":"13 accommodate claims under the ADA and the NYCHRL. For the reasons that follow,","paragraph_id":"para_501"},{"text":"14 we find merit only in Cangro's challenge to the dismissal of his claims of failure to","paragraph_id":"para_502"},{"text":"15 accommodate.","paragraph_id":"para_503"},{"text":"-24-","paragraph_id":"para_504"},{"text":"1 A. The New Claim of Retaliation","paragraph_id":"para_505"},{"text":"2 We see no errors in the district court's conclusion that the PSAC lacks","paragraph_id":"para_506"},{"text":"3 sufficient factual allegations to state a plausible claim on which relief can be granted","paragraph_id":"para_507"},{"text":"4 on Cangro's newly advanced claim of retaliation. His challenges to that conclusion","paragraph_id":"para_508"},{"text":"5 do not require extended discussion. We agree, substantially for the reasons stated by","paragraph_id":"para_509"},{"text":"6 the district court that, given the factual allegations in the PSAC, Cangro's assertion","paragraph_id":"para_510"},{"text":"7 about the report of a DOI investigation, made by his manager and shortly thereafter","paragraph_id":"para_511"},{"text":"8 apologetically retracted as merely a rumor, does not constitute an adverse","paragraph_id":"para_512"},{"text":"9 employment action, even after Muldrow. See Cangro II, 2024 WL 4582369, at *5. We","paragraph_id":"para_513"},{"text":"10 note as well that Cangro's manager had supported Cangro's request for","paragraph_id":"para_514"},{"text":"11 accommodation--including his request that his in-office work for NYCDOF be at the","paragraph_id":"para_515"},{"text":"12 office in Staten Island. (See FAC ¶ 20; PSAC ¶¶ 26 and 43.)","paragraph_id":"para_516"},{"text":"13 We also agree with the district court that the intervals between the 2024","paragraph_id":"para_517"},{"text":"14 denial of a promotion for Cangro and the two acts of Cangro for which the PSAC","paragraph_id":"para_518"},{"text":"15 asserts NYCDOF was retaliating--i.e., 11 months after his receipt of a right-to-sue","paragraph_id":"para_519"},{"text":"16 letter and more than 22 months after his request for an accommodation--were too","paragraph_id":"para_520"},{"text":"17 long to support any reasonable inference that Cangro was denied a promotion in","paragraph_id":"para_521"},{"text":"18 retaliation for either of his acts. See Cangro II, 2024 WL 4582369, at *4.","paragraph_id":"para_522"},{"text":"-25-","paragraph_id":"para_523"},{"text":"1 We note further that the PSAC, for two reasons, seems to belie any","paragraph_id":"para_524"},{"text":"2 factual basis for a reasonable inference that Cangro was denied the promotion he","paragraph_id":"para_525"},{"text":"3 sought because of his disability or his requests for a disability accommodation. First,","paragraph_id":"para_526"},{"text":"4 the PSAC's assertion that it was \"clear that financial resources cannot be the reason","paragraph_id":"para_527"},{"text":"5 for the denial of Mr. Cangro's promotion\" (PSAC ¶ 52) is entirely unsubstantiated.","paragraph_id":"para_528"},{"text":"6 Indeed, while the PSAC refers to a \"difference in pay for the position which Mr.","paragraph_id":"para_529"},{"text":"7 Cangro was seeking,\" it merely says that that \"difference . . . was comparable\" (id.","paragraph_id":"para_530"},{"text":"8 ¶ 50), without saying comparable to what. Logically, it could not mean comparable","paragraph_id":"para_531"},{"text":"9 to the salaries Cangro and the \"other[s]\" were already earning, otherwise there would","paragraph_id":"para_532"},{"text":"10 have been no real \"difference\" (id. ¶¶ 50-51). And it is reasonable to infer as a matter","paragraph_id":"para_533"},{"text":"11 of common sense that the \"numerous other employees\" who were granted the","paragraph_id":"para_534"},{"text":"12 promotion were not seeking jobs that paid them salaries that were lower (id. ¶ 51);","paragraph_id":"para_535"},{"text":"13 thus, the PSAC's assertion that \"it's clear that financial resources cannot be the reason","paragraph_id":"para_536"},{"text":"14 for the denial of Mr. Cangro's promotion\" is unsupported by any fact found in that","paragraph_id":"para_537"},{"text":"15 pleading (id. ¶ 52); indeed, the assertion is contrary to the most plausible inferences","paragraph_id":"para_538"},{"text":"16 factually suggested.","paragraph_id":"para_539"},{"text":"17 Second, while the PSAC suggested that a discriminatory motive could","paragraph_id":"para_540"},{"text":"18 be inferred because, the PSAC alleged, \"numerous other employees from [his]","paragraph_id":"para_541"},{"text":"-26-","paragraph_id":"para_542"},{"text":"1 division were promoted . . . from the same promotional list he was on,\" (id. ¶ 51), the","paragraph_id":"para_543"},{"text":"2 mere mention of such numerosity does not, without other allegations, suggest an","paragraph_id":"para_544"},{"text":"3 unlawful motive. Here, for example, the PSAC also stated that Cangro was","paragraph_id":"para_545"},{"text":"4 \"approximately number 25\" on that list. (Id. ¶ 48.) And it did not allege that any of","paragraph_id":"para_546"},{"text":"5 those who were promoted did not rank higher on the list than Cangro.","paragraph_id":"para_547"},{"text":"6 In sum, we see no error in the district court's conclusion that the PSAC","paragraph_id":"para_548"},{"text":"7 failed to proffer a retaliation claim on which relief can be granted.","paragraph_id":"para_549"},{"text":"8 B. The ADA Claim of Disparate Treatment Discrimination","paragraph_id":"para_550"},{"text":"9 As described in Part I.C.2. above, the district court in Cangro II eschewed","paragraph_id":"para_551"},{"text":"10 its Cangro I rationale for dismissing Cangro's ADA claim of discrimination for lack of","paragraph_id":"para_552"},{"text":"11 plausible allegations of a \"materially adverse\" employment action, in light of the","paragraph_id":"para_553"},{"text":"12 Supreme Court's decision in the Muldrow ruling that a plaintiff pursuing a","paragraph_id":"para_554"},{"text":"13 discrimination claim under Title VII need not show that the adverse employment","paragraph_id":"para_555"},{"text":"14 action was \"significant.\" The court concluded in Cangro II that Cangro's claim of","paragraph_id":"para_556"},{"text":"15 disability discrimination nonetheless failed because the FAC and the PSAC lacked","paragraph_id":"para_557"},{"text":"16 sufficient allegations of discriminatory intent.","paragraph_id":"para_558"},{"text":"17 We affirm the dismissal of Cangro's disparate treatment claim because","paragraph_id":"para_559"},{"text":"-27-","paragraph_id":"para_560"},{"text":"1 we conclude that the PSAC fails to plausibly allege an adverse employment action.","paragraph_id":"para_561"},{"text":"2 Cangro contends that his allegations of physical and mental health harm stemming","paragraph_id":"para_562"},{"text":"3 from NYCDOF's denials of his various requests for accommodation satisfy the lower","paragraph_id":"para_563"},{"text":"4 harm threshold set forth in Muldrow. But Cangro has not alleged any harm with","paragraph_id":"para_564"},{"text":"5 respect to the terms and conditions of his employment. The PSAC refers to","paragraph_id":"para_565"},{"text":"6 \"emotional anguish and suffering\" and \"asthma attacks and shortness of breath\" that","paragraph_id":"para_566"},{"text":"7 \"on multiple occasions\" required Cangro to \"leave to obtain immediate treatment.\"","paragraph_id":"para_567"},{"text":"8 (PSAC ¶ 24.) These do not constitute \"injury . . . concern[ing] the terms and","paragraph_id":"para_568"},{"text":"9 conditions of [Cangro's] employment.\" Muldrow, 601 U.S. at 358 (emphasis added); see","paragraph_id":"para_569"},{"text":"10 Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009) (noting that \"disparate treatment\" and","paragraph_id":"para_570"},{"text":"11 \"failure to make a reasonable accommodation\" are distinct theories of discrimination).","paragraph_id":"para_571"},{"text":"12 C. The ADA and NYCHRL Claims of Failure To Accommodate","paragraph_id":"para_572"},{"text":"13 In contrast, we disagree with the district court's dismissal of Cangro's","paragraph_id":"para_573"},{"text":"14 ADA and NYCHRL failure-to-accommodate claims. The district court found that","paragraph_id":"para_574"},{"text":"15 both the FAC and the PSAC lacked sufficient detail to support the conclusory","paragraph_id":"para_575"},{"text":"16 assertions that Cangro could perform the essential functions of his job with the","paragraph_id":"para_576"},{"text":"17 requested accommodation. Rule 12(b)(6) does not require a plaintiff to plead","paragraph_id":"para_577"},{"text":"-28-","paragraph_id":"para_578"},{"text":"1 evidence; and the amount of detail suggested by the court was not necessary.","paragraph_id":"para_579"},{"text":"2 We see in the FAC and the PSAC at least three simple allegations of fact","paragraph_id":"para_580"},{"text":"3 that, taken together, make it plausible that Cangro would be able to perform the","paragraph_id":"para_581"},{"text":"4 essential functions of his job with his requested accommodation. First, it appears to","paragraph_id":"para_582"},{"text":"5 be undisputed that Cangro was able to perform those functions in working from his","paragraph_id":"para_583"},{"text":"6 home from March 2020 to March 2022. Second, even after other employees were","paragraph_id":"para_584"},{"text":"7 required to return to the office, Cangro was permitted \"to work from home two (2)","paragraph_id":"para_585"},{"text":"8 days a week,\" suggesting that he could perform functions of his job without going to","paragraph_id":"para_586"},{"text":"9 the Centre Street office even after pandemic-related policies were lifted. (FAC ¶ 35;","paragraph_id":"para_587"},{"text":"10 PSAC ¶ 40.) Third, the FAC and the PSAC allege that when Cangro requested the","paragraph_id":"para_588"},{"text":"11 accommodation of working some days from his home and some days in NYCDOF's","paragraph_id":"para_589"},{"text":"12 Staten Island office, \"Mr. Cangro's request was . . . supported by his manager at","paragraph_id":"para_590"},{"text":"13 NYCDOF.\" (FAC ¶ 20; PSAC ¶ 26.)","paragraph_id":"para_591"},{"text":"14 That said, the word \"supported\" itself, in this context, is somewhat","paragraph_id":"para_592"},{"text":"15 conclusory rather than factually descriptive. But at this early stage in the litigation,","paragraph_id":"para_593"},{"text":"16 drawing all inferences in Cangro's favor, a manifestation of support by Cangro's","paragraph_id":"para_594"},{"text":"17 manager for the requested accommodation supports the assertion that Cangro could,","paragraph_id":"para_595"},{"text":"18 with that accommodation, perform the requirements of his job. Taken together, these","paragraph_id":"para_596"},{"text":"-29-","paragraph_id":"para_597"},{"text":"1 factual allegations are enough to survive a motion to dismiss.","paragraph_id":"para_598"},{"text":"2 Accordingly, the district court erred in dismissing Cangro's ADA and","paragraph_id":"para_599"},{"text":"3 NYCHRL claims that he was denied a reasonable accommodation.","paragraph_id":"para_600"},{"text":"4 D. Other Matters","paragraph_id":"para_601"},{"text":"5 While we remand for consideration of Cangro's denial-of-","paragraph_id":"para_602"},{"text":"6 accommodation claim under the NYCHRL, we note that although the NYCHRL,","paragraph_id":"para_603"},{"text":"7 similarly to the ADA, defines disability discrimination to include failing to provide","paragraph_id":"para_604"},{"text":"8 \"a reasonable accommodation to enable a person with a disability to satisfy the","paragraph_id":"para_605"},{"text":"9 essential requisites of a job,\" N.Y.C. Admin. Code § 8-107(15)(a), the 2005","paragraph_id":"para_606"},{"text":"10 amendments to the NYCHRL in some respects afford an employee more rights than","paragraph_id":"para_607"},{"text":"11 the ADA. Thus courts are required to \"analyze NYCHRL claims separately and","paragraph_id":"para_608"},{"text":"12 independently from any federal and state law claims,\" Mihalik v. Credit Agricole","paragraph_id":"para_609"},{"text":"13 Cheuvreux North America, Inc., 715 F.3d 102, 109 (2d Cir. 2013); and in this case the","paragraph_id":"para_610"},{"text":"14 impact, if any, of those amendments remains to be explored on remand.","paragraph_id":"para_611"},{"text":"15 We also note that the district court--in light of the proper scope of a","paragraph_id":"para_612"},{"text":"16 motion to dismiss under Rule 12(b)(6)--did not address defendants' arguments that","paragraph_id":"para_613"},{"text":"17 they offered accommodations to Cangro that in fact were reasonable. Mindful that","paragraph_id":"para_614"},{"text":"-30-","paragraph_id":"para_615"},{"text":"1 \"[w]e are a court of review, not of first view,\" we express no opinion on this issue.","paragraph_id":"para_616"},{"text":"2 B.B. v. Hochul, 166 F.4th 259, 280 (2d Cir. 2026) (internal quotation marks omitted).","paragraph_id":"para_617"},{"text":"3 CONCLUSION","paragraph_id":"para_618"},{"text":"4 We have considered all of the parties' contentions on appeal that are","paragraph_id":"para_619"},{"text":"5 properly before us, and have found them to be without merit except to the extent","paragraph_id":"para_620"},{"text":"6 indicated above. We affirm so much of the judgment as (a) dismissed with prejudice","paragraph_id":"para_621"},{"text":"7 the Amended Complaint's claim of ADA discrimination, and (b) denied plaintiff's","paragraph_id":"para_622"},{"text":"8 motion to file a second amended complaint reasserting that claim and asserting a","paragraph_id":"para_623"},{"text":"9 claim of ADA retaliation. 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