Cangro v. NYC Dep't of Finance
Opinion
24-3004 Cangro v. NYC Dep't of Finance
1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 ------ 4 August Term, 2025 5 (Argued: October 24, 2025 Decided: July 24, 2026) 6 Docket No. 24-3004 7 _________________________________________________________ 8 EMIL CANGRO, 9 Plaintiff-Appellant, 10 - v. -
11 NEW YORK CITY DEPARTMENT OF FINANCE, and THE CITY OF 12 NEW YORK,
13 Defendants-Appellees.* 14 _________________________________________________________
* The Clerk of Court is instructed to amend the official caption to conform with the above.
1 Before: LOHIER, Chief Judge, KEARSE, and PARK, Circuit Judges. 2 Appeal by plaintiff from a judgment of the United States District Court 3 for the Southern District of New York, Loretta A. Preska, Judge, dismissing his action 4 complaining that his employer--defendants New York City and its Department of 5 Finance--discriminated against him because of, inter alia, his requesting a reasonable 6 accommodation for his disability, in violation of the Americans with Disabilities Act 7 ("ADA"), 42 U.S.C. § 12101 et seq., and the New York City Human Rights Law 8 ("NYCHRL"), N.Y.C. Admin. Code § 8-101 to 8-134. The district court granted 9 defendants' motion pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the Amended 10 Complaint for failure to state a claim, finding that it lacked plausible allegations of, 11 inter alia, an adverse employment action and plaintiff's ability to perform the essential 12 functions of his job with accommodation. The court denied plaintiff's request to file 13 a Proposed Second Amended Complaint ("PSAC"), ruling that the PSAC would not 14 remedy the defects the court had identified in the Amended Complaint, and that the 15 PSAC's attempts to add an ADA claim of retaliation were insufficient to state such a 16 claim. On appeal, plaintiff contends principally that the court erred in concluding 17 that the PSAC did not adequately state claims for discrimination and retaliation under 18 the ADA and claims for failure to accommodate under the ADA and the NYCHRL.
1 We conclude that the district court properly rejected Cangro's claims of 2 discrimination and retaliation, but that it erred in ruling that the Amended Complaint 3 and the PSAC failed to state claims on which relief can be granted for failure to 4 accommodate under the ADA and the NYCHRL. 5 Affirmed in part, vacated and remanded in part.
6 STEVEN J. HARFENIST, Lake Success, New York (Harfenist, 7 Kraut & Perlstein, Lake Success, New York, on the brief), for 8 Plaintiff-Appellant.
9 JANET L. ZALEON, Assistant Corporation Counsel, New York, 10 New York (Muriel Goode-Trufant, Corporation Counsel of 11 the City of New York, Richard Dearing, Ingrid R. 12 Gustafson, New York, New York, on the brief), for 13 Defendants-Appellees.
14 KEARSE, Circuit Judge: 15 Plaintiff Emil Cangro appeals from a judgment of the United States 16 District Court for the Southern District of New York, Loretta A. Preska, Judge, 17 dismissing his action complaining that his employer--defendants New York City 18 ("City") and its Department of Finance ("DOF" or "NYCDOF")--discriminated and 19 retaliated against him because of, inter alia, his requests for a reasonable 20 accommodation for his disability, in violation of the Americans with Disabilities Act
1 ("ADA"), 42 U.S.C. § 12101 et seq., and/or the New York City Human Rights Law 2 ("NYCHRL"), N.Y.C. Admin. Code § 8-101 to 8-134. The district court granted 3 defendants' motion pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the Amended 4 Complaint for failure to state a claim, finding that it lacked plausible allegations of, 5 inter alia, an adverse employment action and Cangro's ability to perform the essential 6 functions of his job with accommodation. The court denied Cangro's request to file 7 a Proposed Second Amended Complaint (or "PSAC"), ruling that the PSAC would not 8 remedy the defects that the court had identified in the Amended Complaint and that 9 the PSAC's allegations attempting to add an ADA claim of retaliation were 10 insufficient to state such a claim. On appeal, Cangro contends principally that the 11 district court erred in concluding that the PSAC did not adequately state (a) claims 12 for discrimination and retaliation under the ADA, and (b) claims for failure to 13 accommodate his disability under the ADA and the NYCHRL. For the reasons that 14 follow, we conclude that the district court properly rejected Cangro's claims of 15 discrimination and retaliation, but that it erred in ruling that the Amended Complaint 16 and the PSAC failed to state claims on which relief can be granted for failure to 17 accommodate under the ADA and the NYCHRL.
1 I. BACKGROUND
2 This action was commenced by Cangro on November 16, 2023, with the 3 filing of both a complaint and an Amended Complaint (or "FAC"). The Amended 4 Complaint included the following allegations.
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24-3004 Cangro v. NYC Dep't of Finance
1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 ------ 4 August Term, 2025 5 (Argued: October 24, 2025 Decided: July 24, 2026) 6 Docket No. 24-3004 7 _________________________________________________________ 8 EMIL CANGRO, 9 Plaintiff-Appellant, 10 - v. -
11 NEW YORK CITY DEPARTMENT OF FINANCE, and THE CITY OF 12 NEW YORK,
13 Defendants-Appellees.* 14 _________________________________________________________
* The Clerk of Court is instructed to amend the official caption to conform with the above.
1 Before: LOHIER, Chief Judge, KEARSE, and PARK, Circuit Judges. 2 Appeal by plaintiff from a judgment of the United States District Court 3 for the Southern District of New York, Loretta A. Preska, Judge, dismissing his action 4 complaining that his employer--defendants New York City and its Department of 5 Finance--discriminated against him because of, inter alia, his requesting a reasonable 6 accommodation for his disability, in violation of the Americans with Disabilities Act 7 ("ADA"), 42 U.S.C. § 12101 et seq., and the New York City Human Rights Law 8 ("NYCHRL"), N.Y.C. Admin. Code § 8-101 to 8-134. The district court granted 9 defendants' motion pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the Amended 10 Complaint for failure to state a claim, finding that it lacked plausible allegations of, 11 inter alia, an adverse employment action and plaintiff's ability to perform the essential 12 functions of his job with accommodation. The court denied plaintiff's request to file 13 a Proposed Second Amended Complaint ("PSAC"), ruling that the PSAC would not 14 remedy the defects the court had identified in the Amended Complaint, and that the 15 PSAC's attempts to add an ADA claim of retaliation were insufficient to state such a 16 claim. On appeal, plaintiff contends principally that the court erred in concluding 17 that the PSAC did not adequately state claims for discrimination and retaliation under 18 the ADA and claims for failure to accommodate under the ADA and the NYCHRL.
1 We conclude that the district court properly rejected Cangro's claims of 2 discrimination and retaliation, but that it erred in ruling that the Amended Complaint 3 and the PSAC failed to state claims on which relief can be granted for failure to 4 accommodate under the ADA and the NYCHRL. 5 Affirmed in part, vacated and remanded in part.
6 STEVEN J. HARFENIST, Lake Success, New York (Harfenist, 7 Kraut & Perlstein, Lake Success, New York, on the brief), for 8 Plaintiff-Appellant.
9 JANET L. ZALEON, Assistant Corporation Counsel, New York, 10 New York (Muriel Goode-Trufant, Corporation Counsel of 11 the City of New York, Richard Dearing, Ingrid R. 12 Gustafson, New York, New York, on the brief), for 13 Defendants-Appellees.
14 KEARSE, Circuit Judge: 15 Plaintiff Emil Cangro appeals from a judgment of the United States 16 District Court for the Southern District of New York, Loretta A. Preska, Judge, 17 dismissing his action complaining that his employer--defendants New York City 18 ("City") and its Department of Finance ("DOF" or "NYCDOF")--discriminated and 19 retaliated against him because of, inter alia, his requests for a reasonable 20 accommodation for his disability, in violation of the Americans with Disabilities Act
1 ("ADA"), 42 U.S.C. § 12101 et seq., and/or the New York City Human Rights Law 2 ("NYCHRL"), N.Y.C. Admin. Code § 8-101 to 8-134. The district court granted 3 defendants' motion pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the Amended 4 Complaint for failure to state a claim, finding that it lacked plausible allegations of, 5 inter alia, an adverse employment action and Cangro's ability to perform the essential 6 functions of his job with accommodation. The court denied Cangro's request to file 7 a Proposed Second Amended Complaint (or "PSAC"), ruling that the PSAC would not 8 remedy the defects that the court had identified in the Amended Complaint and that 9 the PSAC's allegations attempting to add an ADA claim of retaliation were 10 insufficient to state such a claim. On appeal, Cangro contends principally that the 11 district court erred in concluding that the PSAC did not adequately state (a) claims 12 for discrimination and retaliation under the ADA, and (b) claims for failure to 13 accommodate his disability under the ADA and the NYCHRL. For the reasons that 14 follow, we conclude that the district court properly rejected Cangro's claims of 15 discrimination and retaliation, but that it erred in ruling that the Amended Complaint 16 and the PSAC failed to state claims on which relief can be granted for failure to 17 accommodate under the ADA and the NYCHRL.
1 I. BACKGROUND
2 This action was commenced by Cangro on November 16, 2023, with the 3 filing of both a complaint and an Amended Complaint (or "FAC"). The Amended 4 Complaint included the following allegations.
5 A. The Amended Complaint 6 Cangro, a resident of Staten Island, New York, was a longtime employee 7 of NYCDOF, the City's "revenue service, taxation agency and recorder of deeds." 8 (FAC ¶¶ 1, 7-8.) He was a "Principal Administrative Associate assigned to the 9 NYCDOF's External Affairs division." (Id. ¶ 13.) Since 2002, Cangro has suffered 10 from multiple respiratory conditions, including coughing, wheezing, chest tightness, 11 asthma, and diminished lung capacity; in or around 2016, he was diagnosed with 12 chronic obstructive pulmonary disease and bronchiectasis. (See id. ¶¶ 10-12.) 13 During the COVID-19 pandemic and continuing to mid-March 2022, 14 DOF permitted Cangro to work remotely from his home. On March 14, 2022, the 15 City, through its Equal Employment Opportunity Office ("EEO") "issued a new 16 accommodation by which Mr. Cangro was permitted to work remotely three (3) days
1 per week and in the NYCDOF office at 1 Centre Street [in Manhattan], two (2) days 2 per week." (Id. ¶ 15.) Cangro promptly requested that he be allowed to work the two 3 in-office days in the City's Business Center in Staten Island ("Staten Island office" or 4 "SIBC"), both because he had difficulty breathing while commuting from Staten Island 5 to Centre Street on public transportation wearing a mask, "which at the time was 6 required by the MTA" (id. ¶ 17) (the "MTA mask mandate"), and because NYCDOF's 7 Centre Street office lacked ventilation and adequate temperature controls, causing 8 him to sit in a warm and dusty room, exacerbating his respiratory issues (see id. 9 ¶¶ 16-18). 10 Cangro's request was denied, and his administrative appeal was 11 unsuccessful. In rejecting that appeal, NYCDOF "stat[ed] in pertinent part '[w]hile 12 reasonable accommodations may be provided to enable you to satisfy the essential 13 functions of your job, your commute to work is separate from your ability to perform 14 your essential duties.'" (Id. ¶¶ 21-22.) 15 In June 2023 (sic; see Part I.C. below), again citing the ventilation and 16 climate-control issues at 1 Centre Street, and submitting "medical documentation 17 from the World Trade Center health clinic at Bellevue Hospital" including test results 18 showing that Cangro could not walk more than 10 feet without losing his breath and
1 needing a rescue inhaler, Cangro sought permission to work completely remotely 2 from home due to his medical conditions. (Id. ¶¶ 23-26.) When that request was 3 denied, he asked to be allowed to work three days from home and two days in the 4 Staten Island office; but "[f]ollowing this amended submission, Mr. Cangro was 5 berated by" a DOF investigator "and there was no attempt at engaging in cooperative 6 dialogue as required by law." (Id. ¶¶ 27-28.) 7 Cangro's amended request was denied in August, and he was informed 8 that, effective immediately, he would be required to work at DOF's Centre Street 9 office five days a week. (See id. ¶¶ 29, 32-33.) Cangro again appealed, and this appeal 10 was partially successful, with a ruling that he was allowed to work from home two 11 days a week. However, the denial of his request to work part of the week at DOF's 12 Staten Island office rather than its Centre Street office was affirmed, with the 13 explanation "that there is no 'reasonable accommodation that can be made as there 14 is no External Affairs office in the Staten Island Business Center and such a transfer 15 would not actually address your inability to walk more than 10 feet as you would still 16 have to walk more than that amount to access the building and the employee 17 cubicles/work area.'" (Id. ¶ 36.) The Amended Complaint again stated that NYCDOF 18 did not engage in any interactive process or cooperative dialogue and that it "refused
1 to consider or discuss Mr. Cangro's request to work from Staten Island." (Id. ¶ 37.) 2 Based on the above factual assertions, the Amended Complaint (filed 3 after Cangro had received a "right to sue" letter from the United States Equal 4 Employment Opportunity Commission ("EEOC")) asserted four causes of action: (1) 5 disparate treatment discrimination, in violation of the ADA, (2) failure to grant a 6 reasonable accommodation, in violation of the ADA, (3) failure to grant a reasonable 7 accommodation, in violation of the NYCHRL, and (4) failure to engage in a 8 cooperative dialogue, in violation of the NYCHRL.
9 B. Dismissal of the Amended Complaint for Failure To State a Claim 10 Defendants moved under Rule 12(b)(6) for dismissal of the Amended 11 Complaint for failure to state a claim upon which relief can be granted. They argued 12 principally that the ADA disparate treatment claim should be dismissed because the 13 FAC failed to allege that Cangro was subjected to an adverse employment action, and 14 that, even assuming an adequate allegation that there was such an action, the FAC 15 failed to allege that that action was motivated by Cangro's disability or his requests 16 for accommodation. 17 Defendants also contended that Cangro's ADA and NYCHRL failure-to-
1 accommodate claims should be dismissed because, while defendants did not grant 2 Cangro the exact accommodation he requested, the Amended Complaint itself 3 showed that they did attempt to accommodate him by granting him, inter alia, a 4 hybrid work schedule along with a separate office room, and that that was a 5 reasonable accommodation. Defendants contended that Cangro's NYCHRL claim 6 that they failed to engage in a cooperative dialogue should also be dismissed in light 7 of their numerous interactive exchanges with Cangro about his accommodation 8 requests. 9 In an Opinion and Order dated August 14, 2024, see Cangro v. New York 10 City Department of Finance, No. 23-CV-10097, 2024 WL 3833971 (Aug. 14, 2024) 11 ("Cangro I"), the district court concluded that the FAC failed to state any claim on 12 which relief can be granted. In accordance with Rule 12(b)(6) standards governing 13 assessment of the sufficiency of a complaint and the plausibility of the facts alleged 14 to permit "the reasonable inference that the defendant is liable for the misconduct 15 alleged," Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), the court accepted as true the 16 Amended Complaint's factual allegations and "the reasonable inferences" that could 17 be drawn from them, but did "not . . . 'credit conclusory allegations or legal 18 conclusions couched as factual allegations,'" Cangro I, 2024 WL 3833971, at *2-*3
1 (quoting Dane v. UnitedHealthcare Ins. Co., 974 F.3d 183, 188 (2d Cir. 2020)). 2 The district court noted that the plausibility "standard is not akin to a 3 probability requirement, but it asks for more than a sheer possibility that a defendant 4 has acted unlawfully." Cangro I, 2024 WL 3833971, at *2 (internal quotation marks 5 omitted); see Iqbal, 556 U.S. at 678; Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 6 (2007). "Evaluating 'whether a complaint states a plausible claim for relief' is 'a 7 context-specific task that requires the reviewing court to draw on its judicial 8 experience and common sense.'" Cangro I, 2024 WL 3833971, at *2 (quoting Iqbal, 556 9 U.S. at 679). 10 As to the substantive law governing Cangro's claim of discrimination, the 11 district court noted that
12 [t]o state a plausible claim for discrimination under the ADA, a 13 plaintiff must adequately allege that: (1) his or her employer is 14 subject to the ADA; (2) he or she is disabled within the meaning 15 of the ADA or perceived to be disabled by his or her employer; (3) 16 he or she was otherwise qualified to perform the essential 17 functions of the job with or without reasonable accommodation; 18 (4) he or she suffered an adverse employment action; and (5) the 19 adverse action was imposed because of his or her disability.
20 Cangro I, 2024 WL 3833971, at *3 (emphasis added). The district court stated that in 21 order to "qualify as an adverse employment action, the employer's action toward the
1 plaintiff must be 'materially adverse' with respect to 'the terms and conditions of 2 employment.'" Id. (quoting Caskey v. County of Ontario, 560 F. App'x 57, 58-59 (2d Cir. 3 2014)). The court also stated that "[t]his is the same analysis courts apply when faced 4 with a claim for discrimination under Title VII." Cangro I, 2024 WL 3833971, at *3 n.3. 5 (See also Part I.C.2. below.) 6 The district court stated that it was not entirely clear from the Amended 7 Complaint
8 what adverse employment action Plaintiff alleges as the basis of 9 his discrimination claim. Reading the Amended Complaint in the 10 light most favorable to Plaintiff, he appears to allege that the 11 adverse action Defendants imposed on him was requiring him 12 several times to work in-person either two or three days per week 13 at the 1 Centre Street location after accommodating his remote 14 work between March 2020 and March 2022. (See [F]AC ¶¶ 14-15, 15 21, 35, 44-48.) He then seems to allege that this materially affected 16 his working conditions by forcing him to work in an unhealthy 17 location, the 1 Centre Street office. (See id. ¶¶ 18, 26.) He also 18 notes his difficulty wearing a mask while commuting to the 1 19 Centre Street location, which was required at the time he 20 requested that accommodation. (See id. ¶ 17.) Finally, he makes 21 conclusory allegations stating that he suffered "emotional 22 anguish," was "humiliated," and "demeaned," (see [F]AC ¶ 48), 23 but does not allege any facts to support these injuries.
24 Cangro I, 2024 WL 3833971, at *4. The court noted that Cangro "appears to have 25 worked in the 1 Centre Street location five days a week prior to March 2020 and has
1 been doing so at a part-time rate since March 2022," and the requirement that he 2 return to that location--with no change to his salary, job benefits, and job 3 responsibilities--"constitute[d] nothing more than an inconvenience that does not 4 qualify as a materially adverse employment action." Id. 5 The district court found that, as to Cangro's criticisms of the "conditions 6 of his 1 Centre Street office, all [Cangro] alleges is that it 'lack[s] [] ventilation,' has 7 'poorly regulated' climate and temperature control, is an 'extremely warm and dusty 8 room,' and lacks windows that he can open." Id. (quoting FAC ¶¶ 18, 26.) The court 9 found those alleged conditions, along with the MTA mask mandate applicable to 10 Cangro's commute to that office via public transportation, differed significantly from 11 the circumstances in the main case relied on by Cangro, Diaz v. Viagran, No. 16-CV- 12 9106, 2018 WL 4360790 (S.D.N.Y. Aug. 29, 2018). Diaz's prior accommodations had 13 freed her from disability-related respiratory issues for three years; and the unilateral 14 revocation of one of those accommodations "caused Diaz to suffer severe symptoms 15 at work, sending her to the hospital several times, and ultimately forcing her to take 16 medical leave and a reduced salary." Cangro I, 2024 WL 3833971, at *4; see Diaz v. 17 Viagran, 2018 WL 4360790, at *9. 18 Noting that the FAC did not allege that NYCDOF's March 2022
1 requirement that Cangro return to work at the Centre Street location resulted in such 2 events as emergency hospital visits, use of medical leave, or reduction in his salary 3 or benefits, the district court concluded that Cangro had not plausibly alleged that 4 NYCDOF's alteration of his prior--COVID-19-precautionary--accommodation 5 constituted an adverse employment action. See Cangro I, 2024 WL 3833971, at *4-*5; 6 id. at *3 ("Because . . . Plaintiff has failed to plead sufficient facts creating a plausible 7 inference that he was subject to an adverse employment action, [the court] dismisses 8 Plaintiff's ADA discrimination claim."). 9 As to Cangro's claims that NYCDOF violated the ADA and the NYCHRL 10 by failing to grant him a reasonable accommodation for his disability, the district 11 court found the FAC defective for failure to allege that his requested accommodation 12 would have permitted him to perform his job's essential functions. The court viewed 13 all of the Amended Complaint's allegations on this element as conclusory:
14 The Amended Complaint does not contain any well-pleaded 15 factual allegations that detail what the essential functions of 16 Plaintiff's job are or how he can accomplish them while working 17 completely remotely or on a hybrid schedule in which he works 18 from the SIBC some days of the week. The only allegations 19 Plaintiff makes that touch on this requirement are conclusory and 20 simple recitations of the pleading requirements. First, he alleges 21 he is a "qualified individual with a disability who, with reasonable 22 accommodation, can perform the essential functions of his
1 employment position." (See [F]AC ¶ 43.) Second, he alleges 2 "[w]ith a reasonable accommodation, [he] could perform the 3 essential function of his job[.]" (See [F]AC ¶ 54.)
4 Cangro I, 2024 WL 3833971, at *6; see also id. at *3 ("threadbare recitals of the elements 5 of a cause of action, supported by mere conclusory statements, do not suffice" 6 (internal quotation marks omitted)). 7 In addition, the district court noted that Cangro's repeated assertions that 8 NYCDOF refused to consider his request to work at its Staten Island office, and failed 9 to engage in a cooperative dialogue as required by the NYCHRL, were "render[ed] . . . 10 implausible" by his other allegations that "show Defendants did engage in a 11 cooperative dialogue." Id. at *7 (emphasis in original). 12 The district court accordingly granted defendants' motion to dismiss the 13 Amended Complaint for failure to state a claim under the ADA or the NYCHRL. The 14 court stated that the dismissal was without prejudice, to the extent that Cangro would 15 be allowed to propose a second amended complaint within 30 days. See id. at *8.
16 C. The Court's Rejection of the Proposed Second Amended Complaint 17 Cangro sent his Proposed Second Amended Complaint to the district 18 court in the form of a markup of the FAC, bearing "redlines illustrating edits he made
1 to the [FAC]," Cangro v. New York City Department of Finance, No. 23-CV-10097, 2024 2 WL 4582369, at *1 (Oct. 25, 2024) ("Cangro II"), along with a letter "explain[ing] how" 3 the PSAC "would cure" the defects the court had identified in the FAC (Letter from 4 Cangro's counsel to the district judge dated September 27, 2024, at 1.) The markups 5 principally made the following changes: The PSAC expressly abandoned Cangro's 6 claim that NYCDOF had violated the NYCHRL by failing to engage in a cooperative 7 dialogue; it added allegations meant to cure defects in the three remaining claims 8 asserted in the FAC; it changed the dates of the accommodation-request 9 communications between Cangro and NYCDOF, or between Cangro and the EEO, 10 that FAC ¶¶ 23, 27, 29, 34, and 35 alleged occurred in "2023," to allege that they 11 occurred in 2022; and it introduced a new claim, alleging ADA-prohibited retaliation. 12 With respect to the discrimination and failure-to-accommodate claims 13 asserted in the FAC, the PSAC added allegations (a) that "due to Mr. Cangro's 14 working conditions in a poorly ventilated dusty room at 1 Centre Street, he suffered 15 asthma[] attacks and shortness of breath while in the office and, on multiple 16 occasions, needed to leave to obtain immediate treatment to regain his ability to 17 breathe" (PSAC ¶¶ 24 and 63); (b) that Cangro could perform the essential functions 18 of his job with his requested accommodation (see id. ¶¶ 14 and 18); and (c) that he had
1 suffered an adverse employment action when, because of his disability or his requests 2 for accommodation, NYCDOF denied him a promotion (see id. ¶¶ 48-52). In addition, 3 the PSAC, unlike the FAC, asserted an ADA claim for retaliation, alleging that 4 NYCDOF had threatened an investigation of Cangro and had denied him a 5 promotion in retaliation for his accommodation requests and for his complaining to 6 the EEOC that he was denied a reasonable accommodation. 7 In Cangro II, the district court--treating Cangro's letter as a motion to 8 amend the FAC--denied the motion, concluding that the PSAC's assertions failed to 9 state a plausible claim of retaliation and failed to cure all of the FAC's pleading 10 deficiencies.
11 1. The Proposed Claim of Retaliation 12 The PSAC alleged that, after Cangro complained to the EEOC, NYCDOF 13 retaliated against him (a) by telling him he was being investigated because of his 14 requests for disability accommodations, and (b) by denying him a promotion. The 15 district court found that the PSAC failed to plausibly allege that either action 16 attributed to NYCDOF constituted an action of retaliation for Cangro's complaint to 17 the EEOC or for his earlier accommodation requests.
1 In claiming that, in retaliation for Cangro's complaining to the EEOC, 2 NYCDOF sought to threaten or intimidate Cangro by saying that he was being 3 investigated, the PSAC alleged as follows:
4 43. On or about October 18, 2022, Scott Adlerberg, Mr. 5 Cangro's manager, notified him that he was under investigation 6 by the [City's] Department of Investigation ("DOI") because he 7 was seeking accommodations to work from home due to his 8 disability. This occurred just a few days prior to Mr. Cangro's 9 scheduled hearing with the EEOC.
10 44. There was no legitimate reason for DOI to conduct an 11 investigation. In fact, just a few days later, Mr. Adlerberg advised 12 Mr. Cangro that he was sorry for telling him that he was under an 13 investigation by DOI and it was apparently just a "rumor" that 14 wasn't true.
15 45. This incident confirmed that the threat of a DOI 16 investigation against Mr. Cangro was done to [sic] swiftly and 17 brutally to [sic] threaten, intimidate, hinder and coerce Mr. Cangro 18 and retaliate against him for filing a hearing request with the 19 EEOC.
20 46. Learning about this potential DOI investigation was 21 incredibly distressing to Mr. Cangro, as it would be to any 22 reasonable employee.
23 (PSAC ¶¶ 43-46.) 24 The court noted that "[i]n retaliation cases, a plaintiff must plead 25 plausibly that (1) the plaintiff participated in a protected activity; (2) the defendant
1 knew of the protected activity; (3) the plaintiff suffered an adverse employment 2 action; and (4) there is a causal connection between the plaintiff's protected activity 3 and the adverse employment action she suffered." Cangro II, 2024 WL 4582369, at *4 4 (internal quotation marks omitted). It also noted that in a case
5 [w]here there is no direct evidence of discriminatory animus, the 6 Court may infer causation indirectly by temporal proximity 7 between the protected act and the retaliation. Littlejohn v. City of 8 New York, 795 F.3d 297, 319 (2d Cir. 2015). Although the Court 9 of Appeals has not precisely "drawn a bright line for defining . . . 10 the outer limits beyond which a temporal relationship is too 11 attenuated to establish causation," it has held that "five months" 12 is near that outer limit. Gorzynski v. JetBlue Airways Corp., 596 13 F.3d 93, 110 (2d Cir. 2010) . . . .
14 Cangro II, 2024 WL 4582369, at *4. 15 The district court found that the PSAC did not plausibly plead a claim 16 for retaliation on the basis of a threatened investigation because it was "undercut" by 17 the factual allegations. Id. at *5. While the PSAC stated that hearing of the potential 18 DOI investigation was distressing to Cangro, and it "assert[ed] this was done as a 19 threat to intimidate him," id., the court noted that Cangro
20 made no credible allegation to support that claim. His own 21 admission that the person who informed him of the purported 22 investigation quickly retracted that statement and apologized 23 within days reveals no threat or intimidation. And the innocuous 24 spreading of a rumor that Plaintiff alleges does not constitute the
1 type of materially adverse employment action necessary to sustain a 2 retaliation claim. Burlington N. & Santa Fe Ry. Co. v. White, 548 3 U.S. 53, 68 (2006).
4 Cangro II, 2024 WL 4582369, at *5 (emphases added). 5 The PSAC also alleged that NYCDOF had sought to retaliate against 6 Cangro for his accommodation requests by refusing to grant him a promotion he 7 sought. In this regard, the PSAC alleged as follows:
8 48. During the wake of the Covid 19 pandemic, Mr. 9 Cangro took a promotional exam and received a score of 100. He 10 was approximately number 25 in line for a promotion.
11 49. Despite Mr. Cangro's high score on the promotional 12 exam and exemplary performance, Mr. Adlerberg told him he 13 would not be selected for a promotion on or around July 17, 2024.
14 50. Mr. Adlerberg explained that there were budget 15 constraints and NYCDOF was unable to grant him a promotion. 16 The difference in pay for the position which Mr. Cangro was 17 seeking was comparable.
18 51. In fact, numerous other employees from Mr. Cangro's 19 division were promoted and were selected from the same 20 promotional list he was on.
21 52. Since it's clear that financial resources cannot be the 22 reason for the denial of Mr. Cangro's promotion, it was done to 23 [sic] and [sic] retaliate against him for filing an accommodation 24 request with the EEO.
25 (PSAC ¶¶ 48-52.)
1 Apparently seeing no PSAC factual allegations to show or imply that 2 NYCDOF had denied Cangro a promotion based on his disability or his requests for 3 accommodation, the district court considered whether an inference of discriminatory 4 intent could be reasonably drawn from the timing of the promotion denial, and 5 concluded that it could not:
6 Defendants' alleged decision not to promote Plaintiff creates no 7 inference of discriminatory intent because it occurred eleven 8 months after he obtained his right to sue letter from the EEOC and 9 twenty-two months after the NYCDOF rejected his 10 accommodation request for the final time, well beyond the "outer 11 limit" of temporal proximity. Gorzynski, 596 F.3d at 110.
12 Cangro II, 2024 WL 4582369, at *4.
13 2. The PSAC's Effect on the FAC's Claim of Disparate Treatment Discrimination 14 The district court in Cangro II concluded that the allegations in the PSAC 15 did not cure all of the flaws in the FAC's attempt to assert an ADA claim of disability 16 discrimination. It found that the PSAC failed to state a disability discrimination claim 17 premised on disparate treatment because it lacked sufficient factual allegations of 18 discriminatory intent and causation. The court acknowledged in Cangro II that in 19 Cangro I it had dismissed the discrimination claim for failure to plead plausibly that
1 Cangro had suffered a "materially" adverse employment action, e.g., Cangro I, 2024 2 WL 3833971, at *3; and it acknowledged that in so stating, it had observed that this 3 was the same standard used for Title VII claims, see id. at *3 & n.3. The court in 4 Cangro II noted that the Supreme Court's recent decision in Muldrow v. City of St. 5 Louis, 601 U.S. 346 (2024), had lowered the standard for what can constitute the 6 adverse-employment-action element in a Title VII action by a plaintiff alleging a 7 discriminatory job transfer. See Cangro II, 2024 WL 4582369, at *2. Muldrow held that 8 such a plaintiff "need not show" that the transfer caused her an employment 9 disadvantage that was "significan[t]"; instead, it is sufficient to show that she suffered 10 "some harm" resulting from an employment action. 601 U.S. at 350. 11 The district court in Cangro II acknowledged that the Muldrow standard 12 applied to Cangro's disability discrimination claim, but concluded that the PSAC 13 nonetheless did not rescue Cangro's claim from dismissal. As the court had set out 14 in Cangro I, in order "[t]o state a plausible claim for discrimination under the ADA, 15 a plaintiff must adequately allege that," inter alia, the adverse action he suffered "was 16 imposed because of his . . . disability." Cangro I, 2024 WL 3833971, at *3 (emphasis 17 added). Because the PSAC lacked adequate factual allegations from which a 18 factfinder could reasonably infer discriminatory intent and causation, the court in
1 Cangro II adhered to its dismissal of Cangro's discrimination claim for failure to state 2 a claim. See Cangro II, 2024 WL 4582369, at *2 (the PSAC's "proposed changes" 3 attempting to show an adverse employment action "still would not resuscitate [t]his 4 claim").
5 3. The Claims of Failure To Accommodate 6 The district court also adhered to its Cangro I ruling that the FAC's ADA 7 and NYCHRL failure-to-accommodate claims should be dismissed "because Plaintiff 8 did not plausibly allege that his working from home or at the SIBC would permit him 9 to fulfill the essential functions of his job." Cangro II, 2024 WL 4582369, at *3. It found 10 that the new allegations in the PSAC did not cure that perceived defect:
11 Plaintiff now proposes allegations that his job requires him 12 to "answer[] emails and hard mail correspondence from the 13 public, answer[] telephone inquiries, respond[] to Siebel Service 14 requests, and work[] on special projects for the Division of 15 External Affairs." (PSAC ¶ 14.) He states that Defendant 16 NYCDOF "changed the procedures for responding to hard mail 17 correspondence" during the COVID-19 Pandemic "by allowing 18 employees to handle the correspondence from their homes," after 19 which NYCDOF would reimburse them. (Id. ¶ 15.) He also 20 inserts an allegation that, during the COVID-19 Pandemic, 21 NYCDOF stopped "permit[ting] members of the public" from 22 having "in person meetings with representatives from NYCDOF." 23 (Id. ¶ 16.) Plaintiff's proposed edits would still fail to allege that he
1 could perform the essential functions of his job if granted his requested 2 accommodations.
3 First, taking as true Plaintiff's new allegations that 4 answering "hard mail" is an essential function of his job and that 5 the NYCDOF changed the policy for hard mail so that employees 6 could "handle [such] correspondence from their homes [,]" it still 7 would be insufficient to allege that Plaintiff could perform such a 8 task under the new procedure through the accommodation that 9 he actually requested. (Id. ¶¶ 14-15 (emphasis added).) That is 10 because the only aspect of Plaintiff's most recent accommodation 11 request that Defendants denied and over which he sues is his 12 request to work several days per week from an office in Staten 13 Island. (See id. ¶¶ 32, 40-42.) Plaintiff includes no new allegation 14 that NYCDOF's new purported policy permitting employees to 15 handle "hard mail" from their homes would enable him to 16 perform that task from the SIBC where he requested to work 17 several days per week. Accordingly, he has failed to allege that he 18 could perform the "essential function" of handling hard mail 19 correspondence if NYCDOF granted the specific accommodation 20 that he actually requested.
21 In addition, Plaintiff fails to specify what handling "Siebel 22 Service requests" entails or how he could accomplish that either 23 from his home or from the SIBC. The Proposed Second Amended 24 Complaint lacks any detail about how working anywhere other than his 25 office at the NYCDOF would enable him to perform this task. Similarly, 26 although Plaintiff now proposes to include that his job requires 27 him to "work[] on special projects for the Division of External 28 Affairs[,]" he does not allege with any particularity what those 29 "special projects" entail, including whether they require meeting 30 in-person with his colleagues at the NYCDOF or with employees 31 of other city agencies who do not work in Staten Island. (Id. ¶ 14.) 32 Thus, he again fails to specify how his requested accommodation 33 of working either from home or from the SIBC would permit him
1 to perform this function of his job. 2 Cangro II, 2024 WL 4582369, at *3-*4 ("homes" emphasized in original, other emphases 3 added). 4 Having found that the PSAC did not warrant resuscitation of any of 5 Cangro's claims, the district court dismissed the FAC "with prejudice" and directed 6 the Clerk of the Court to terminate the case. Id. at *1.
7 II. DISCUSSION
8 On appeal, Cangro contends that the district court erred in ruling that the 9 FAC did not state ADA claims on which relief can be granted, in concluding that his 10 PSAC did not cure the FAC defects the court had identified in Cangro I, and in 11 concluding that his PSAC's allegations of retaliation did not state a claim on which 12 relief can be granted. He contends that the court improperly dismissed his failure-to- 13 accommodate claims under the ADA and the NYCHRL. For the reasons that follow, 14 we find merit only in Cangro's challenge to the dismissal of his claims of failure to 15 accommodate.
1 A. The New Claim of Retaliation 2 We see no errors in the district court's conclusion that the PSAC lacks 3 sufficient factual allegations to state a plausible claim on which relief can be granted 4 on Cangro's newly advanced claim of retaliation. His challenges to that conclusion 5 do not require extended discussion. We agree, substantially for the reasons stated by 6 the district court that, given the factual allegations in the PSAC, Cangro's assertion 7 about the report of a DOI investigation, made by his manager and shortly thereafter 8 apologetically retracted as merely a rumor, does not constitute an adverse 9 employment action, even after Muldrow. See Cangro II, 2024 WL 4582369, at *5. We 10 note as well that Cangro's manager had supported Cangro's request for 11 accommodation--including his request that his in-office work for NYCDOF be at the 12 office in Staten Island. (See FAC ¶ 20; PSAC ¶¶ 26 and 43.) 13 We also agree with the district court that the intervals between the 2024 14 denial of a promotion for Cangro and the two acts of Cangro for which the PSAC 15 asserts NYCDOF was retaliating--i.e., 11 months after his receipt of a right-to-sue 16 letter and more than 22 months after his request for an accommodation--were too 17 long to support any reasonable inference that Cangro was denied a promotion in 18 retaliation for either of his acts. See Cangro II, 2024 WL 4582369, at *4.
1 We note further that the PSAC, for two reasons, seems to belie any 2 factual basis for a reasonable inference that Cangro was denied the promotion he 3 sought because of his disability or his requests for a disability accommodation. First, 4 the PSAC's assertion that it was "clear that financial resources cannot be the reason 5 for the denial of Mr. Cangro's promotion" (PSAC ¶ 52) is entirely unsubstantiated. 6 Indeed, while the PSAC refers to a "difference in pay for the position which Mr. 7 Cangro was seeking," it merely says that that "difference . . . was comparable" (id. 8 ¶ 50), without saying comparable to what. Logically, it could not mean comparable 9 to the salaries Cangro and the "other[s]" were already earning, otherwise there would 10 have been no real "difference" (id. ¶¶ 50-51). And it is reasonable to infer as a matter 11 of common sense that the "numerous other employees" who were granted the 12 promotion were not seeking jobs that paid them salaries that were lower (id. ¶ 51); 13 thus, the PSAC's assertion that "it's clear that financial resources cannot be the reason 14 for the denial of Mr. Cangro's promotion" is unsupported by any fact found in that 15 pleading (id. ¶ 52); indeed, the assertion is contrary to the most plausible inferences 16 factually suggested. 17 Second, while the PSAC suggested that a discriminatory motive could 18 be inferred because, the PSAC alleged, "numerous other employees from [his]
1 division were promoted . . . from the same promotional list he was on," (id. ¶ 51), the 2 mere mention of such numerosity does not, without other allegations, suggest an 3 unlawful motive. Here, for example, the PSAC also stated that Cangro was 4 "approximately number 25" on that list. (Id. ¶ 48.) And it did not allege that any of 5 those who were promoted did not rank higher on the list than Cangro. 6 In sum, we see no error in the district court's conclusion that the PSAC 7 failed to proffer a retaliation claim on which relief can be granted.
8 B. The ADA Claim of Disparate Treatment Discrimination 9 As described in Part I.C.2. above, the district court in Cangro II eschewed 10 its Cangro I rationale for dismissing Cangro's ADA claim of discrimination for lack of 11 plausible allegations of a "materially adverse" employment action, in light of the 12 Supreme Court's decision in the Muldrow ruling that a plaintiff pursuing a 13 discrimination claim under Title VII need not show that the adverse employment 14 action was "significant." The court concluded in Cangro II that Cangro's claim of 15 disability discrimination nonetheless failed because the FAC and the PSAC lacked 16 sufficient allegations of discriminatory intent. 17 We affirm the dismissal of Cangro's disparate treatment claim because
1 we conclude that the PSAC fails to plausibly allege an adverse employment action. 2 Cangro contends that his allegations of physical and mental health harm stemming 3 from NYCDOF's denials of his various requests for accommodation satisfy the lower 4 harm threshold set forth in Muldrow. But Cangro has not alleged any harm with 5 respect to the terms and conditions of his employment. The PSAC refers to 6 "emotional anguish and suffering" and "asthma attacks and shortness of breath" that 7 "on multiple occasions" required Cangro to "leave to obtain immediate treatment." 8 (PSAC ¶ 24.) These do not constitute "injury . . . concern[ing] the terms and 9 conditions of [Cangro's] employment." Muldrow, 601 U.S. at 358 (emphasis added); see 10 Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009) (noting that "disparate treatment" and 11 "failure to make a reasonable accommodation" are distinct theories of discrimination).
12 C. The ADA and NYCHRL Claims of Failure To Accommodate 13 In contrast, we disagree with the district court's dismissal of Cangro's 14 ADA and NYCHRL failure-to-accommodate claims. The district court found that 15 both the FAC and the PSAC lacked sufficient detail to support the conclusory 16 assertions that Cangro could perform the essential functions of his job with the 17 requested accommodation. Rule 12(b)(6) does not require a plaintiff to plead
1 evidence; and the amount of detail suggested by the court was not necessary. 2 We see in the FAC and the PSAC at least three simple allegations of fact 3 that, taken together, make it plausible that Cangro would be able to perform the 4 essential functions of his job with his requested accommodation. First, it appears to 5 be undisputed that Cangro was able to perform those functions in working from his 6 home from March 2020 to March 2022. Second, even after other employees were 7 required to return to the office, Cangro was permitted "to work from home two (2) 8 days a week," suggesting that he could perform functions of his job without going to 9 the Centre Street office even after pandemic-related policies were lifted. (FAC ¶ 35; 10 PSAC ¶ 40.) Third, the FAC and the PSAC allege that when Cangro requested the 11 accommodation of working some days from his home and some days in NYCDOF's 12 Staten Island office, "Mr. Cangro's request was . . . supported by his manager at 13 NYCDOF." (FAC ¶ 20; PSAC ¶ 26.) 14 That said, the word "supported" itself, in this context, is somewhat 15 conclusory rather than factually descriptive. But at this early stage in the litigation, 16 drawing all inferences in Cangro's favor, a manifestation of support by Cangro's 17 manager for the requested accommodation supports the assertion that Cangro could, 18 with that accommodation, perform the requirements of his job. Taken together, these
1 factual allegations are enough to survive a motion to dismiss. 2 Accordingly, the district court erred in dismissing Cangro's ADA and 3 NYCHRL claims that he was denied a reasonable accommodation.
4 D. Other Matters 5 While we remand for consideration of Cangro's denial-of- 6 accommodation claim under the NYCHRL, we note that although the NYCHRL, 7 similarly to the ADA, defines disability discrimination to include failing to provide 8 "a reasonable accommodation to enable a person with a disability to satisfy the 9 essential requisites of a job," N.Y.C. Admin. Code § 8-107(15)(a), the 2005 10 amendments to the NYCHRL in some respects afford an employee more rights than 11 the ADA. Thus courts are required to "analyze NYCHRL claims separately and 12 independently from any federal and state law claims," Mihalik v. Credit Agricole 13 Cheuvreux North America, Inc., 715 F.3d 102, 109 (2d Cir. 2013); and in this case the 14 impact, if any, of those amendments remains to be explored on remand. 15 We also note that the district court--in light of the proper scope of a 16 motion to dismiss under Rule 12(b)(6)--did not address defendants' arguments that 17 they offered accommodations to Cangro that in fact were reasonable. Mindful that
1 "[w]e are a court of review, not of first view," we express no opinion on this issue. 2 B.B. v. Hochul, 166 F.4th 259, 280 (2d Cir. 2026) (internal quotation marks omitted).
3 CONCLUSION
4 We have considered all of the parties' contentions on appeal that are 5 properly before us, and have found them to be without merit except to the extent 6 indicated above. We affirm so much of the judgment as (a) dismissed with prejudice 7 the Amended Complaint's claim of ADA discrimination, and (b) denied plaintiff's 8 motion to file a second amended complaint reasserting that claim and asserting a 9 claim of ADA retaliation. To the extent that the judgment dismissed plaintiff's claims 10 that defendants, in violation of the ADA and the NYCHRL, failed to grant plaintiff 11 a reasonable accommodation, the judgment is vacated, and the matter is remanded 12 for further proceedings consistent with this opinion. 13 No costs.
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