From Casarella v. New York State Department of Transportation, 2018 WL 4372674 (S.D.N.Y. Sept. 13, 2018):
Plaintiff has sufficiently alleged he is part of a protected class and that he was qualified for his position to satisfy the motion to dismiss standard. (Compl. ¶¶ 25–29.) However, whether Plaintiff sufficiently alleged that he was subject to an adverse employment action creating the inference of discrimination requires further analysis. An adverse employment action is a “ ‘materially adverse change’ in the terms and conditions of employment.” Sanders v. N. Y.C. Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004). Plaintiff’s termination is certainly an adverse employment action.4 In contrast, a counseling memorandum, without unfavorable consequences, is not an adverse employment action. See Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 570 (2d Cir. 2011); Staff v. Pall Corp., 233 F. Supp. 2d 516, 540 (S.D.N.Y. 2002) (holding that a plaintiffs employment review was not an adverse employment action because there was no “evidence demonstrating that it had unfavorable attendant consequences”). Plaintiff’s Complaint contains few facts about discrimination and harassment based on his national origin to support an inference that his termination was connected to his national origin. Plaintiff states that he is “of Italian origins” and that Defendants Cresno, Boranco, and other NYSDOT employees called him “Ginny” for approximately the first two weeks of his employment (Compl. ¶¶ 28, 32, 37.) Plaintiff was terminated approximately five months after he was last harassed based on his national origin. (Id. ¶ 86.) He identifies three5 other NYSDOT highway maintenance workers, like Plaintiff, who are “non-disabled and non-Italian” and “were treated better and more favorably than Plaintiff and “not taunted, ridiculed [and] called discriminatory names.” ” (Id. ¶¶ 88–90.) These facts, while likely insufficient to withstand a more rigorous standard than that of a motion to dismiss, plausibly establish minimal support for the inference that the NYSDOT was motivated by discriminatory intent in terminating Plaintiff.6 See Nguedi v. Fed Reserve Bank, 16-CV-0636(GHW), 2017 WL 5991757, at *6 (S.D.N.Y. Dec. 1, 2017) (holding that the plaintiff provided “minimal support” to suggest that the defendant acted with discriminatory intent by “alleging the existence of similarly situated comparable Caucasians who were treated better than he”). Defendants’ motion to dismiss Plaintiff’s national origin discrimination claims under Title VII against Defendant NYSDOT and under NYHRL against Defendants Cresno and Boranco is denied.