Full opinion text
MEMORANDUM AND ORDER TRAGER, District Judge. Plaintiff Hillaire Woodard (“Woodard” or “plaintiff’). commenced this action against her former employer, defendant New York Health and Hospitals Corporation (“HHC” or “defendant”). Woodard seeks relief on two claims pursuant to the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4301 et seq. Woodard’s two causes of action under USERRA allege that HHC discriminated against her on the basis of her military service and denied her appropriate reemployment after her return from military duty. Woodard’s third cause of action alleges that HHC is overcharging her under the parties’ Military Pay Reimbursement Agreement (“the Agreement”). HHC has filed this motion for leave to amend its answer to add a counterclaim pursuant to Fed.R.Civ.P. 13(f), and for summary judgment on plaintiffs three claims and HHC’s own counterclaim pursuant to Fed.R.Civ.P. 56. For the following reasons, defendant is permitted to amend its answer to add a counterclaim. In addition, defendant’s motion for summary judgment is granted in its entirety. Factual and Procedural Background (1) Statement of Facts A. Woodard’s Employment in HHC’s Office of Accreditation and Regulatory Services HHC is a New York City-controlled corporation whose employees are considered City employees. HHC first hired Woodard as a Coordinating Manager in its Early Intervention program on March 13, 1995. Woodard Dep. Tr. at 31; Def.’s Ex. B (“Employee Record”). Plaintiff remained employed in the Early Intervention program until July 3, 2000, when she was hired by Dr. Van Dunn, M.D. (“Dunn”), Senior Vice President of Medical and Professional Affairs at HHC, for the position of Associate Director of Health Care Standards (“ADHCS”) in HHC’s Office of Accreditation and Regulatory Services (“OARS”). See Def.’s Ex. B. Woodard’s direct supervisor in this new position was Caroline Jacobs (“Jacobs”), Assistant Vice President of Accreditation and Regulatory Services. Woodard Dep. at 32. The position of ADHCS is categorized by HHC as a Group 11, or managerial, title. See Def.’s Ex. E (Letter from Caroline Jacobs to Hillaire Woodard (Jun. 21, 2000)). Woodard served as one of four managerial-level employees in OARS. Dunn Dep. at 13-14. Woodard testified at her deposition that, while employed as an associate director in OARS, she was responsible for conducting seasonal surveys of eleven hospitals, six diagnostic treatment centers and four long-term care facilities to evaluate their compliance with accreditation criteria and regulatory standards. Woodard Dep. at 32-34. This required Woodard to go to the facilities and determine whether the facility was in compliance with a checklist of regulatory requirements. Id. at 33. Surveys were performed one to three times per week during survey seasons. Id. at 34. In addition, Woodard was responsible for reviewing the Quality Assurance (“QA”) books prepared by each of the facilities for “upward and downward trends.” Id. at 38. Woodard would look through these books to “see how [her] hospitals were doing.” Id. at 37. This consisted of “highlighting] and addressing] any Quality Assurance issues or discrepancies,” and then providing a summary report to a supervisor. Id. at 37-39. Woodard attended the Quality Assurance meetings of the facilities to which she was assigned, although she did not speak at them. Id. at 34, 40. These meetings were conducted by HHC’s Quality Assurance board to monitor facilities for “issues or potential issues that would put the hospital at risk for liability.” Id. at 36. Woodard also prepared vendor contracts, composed a newsletter, and prepared PowerPoint presentations for board meetings, as well as other tasks focused on quality assurance and regulatory compliance. Woodard Dep. at 40-49. B. HHC Military Leave Procedures HHC Operating Procedure No. 20-26, which governs time and leave regulations, provides that all Group 11 employees in the armed forces are “entitled to a leave of absence while engaged in the performance of ‘ordered military duty,’ while going to and returning from such duty and where otherwise required by law.” See Def.’s Ex. H (“OP 20-26”) at 14. In addition, HHC has a separate Operating Procedure No. 20-15 which details the specific rules governing an employee’s leave of absence for military duty. See Def.’s Ex. X (“OP 20-15”) at 1. According to OP 20-15, “an HHC employee shall be paid his/her salary while engaged in ‘ordered military duty,’ and while going to and returning from such duty, not exceeding a total of thirty (30) calendar days or twenty-two (22) normally scheduled work days, whichever is greater, in one calendar year.” Id. at 1. The thirty calendar days are “computed and charged against the annual balance on a day-to-day basis. ” Id. at 4 (emphasis in original). However, when calculating the twenty-two workdays of military leave, “only those hours the employee is actually absent from the normal workday are to be charged against the [employee’s] hourly bank.” Id. Mondo Hall (“Hall”), Associate Director for Employee Benefits, testified that under this policy, employees on military leave receive their HHC salary and their military salary for the twenty-two workdays or thirty calendar days of leave. Hall Dep. at 14. According to OP 20-15, “ordered military duty shall be charged against the annual balances on both a calendar-day and workday basis until both the 30 calendar-day entitlement and the 22 normally scheduled workday entitlement have been exhausted.” Def.’s Ex. X at 4. After this paid military leave entitlement is exhausted, an employee can use other available leave time (such as vacation days) or unpaid days off for additional military leave. Hall Dep. at 15-17. C. Woodard’s Leaves of Absence Prior to September 2001 In November of 1986, prior to beginning her employment with HHC, Woodard joined the United States Army Reserves. Woodard Dep. at 21. She has attained the rank of major in the 1398th Deployment Support Brigade. Compl. ¶ 7. As a member of the Army Reserves, Woodard was required to participate in one weekend of military training per month, and a minimum of fourteen days of active duty each calendar year. Reservists can also be called upon at any time to perform military service in addition to their minimum requirements. Woodard Dep. at 60-62. Woodard performed her obligatory military service each year while employed by HHC. Id. at 59. The only other HHC employee Woodard could identify as a reservist was Dr. Consuelo Dungca (“Dung-ea”), the Senior Assistant Vice President of Clinical Affairs. Id. at 58. At the time that Woodard interviewed with Jacobs for the position of ADHCS, she informed Jacobs that she was a member of the Army Reserves and that “she had been ordered to military leave in July of 2000.” Jacobs Dep. at 10,19. Woodard was hired for the position on July 3, 2000. She took a three week leave of absence to perform military service that same month. In January of 2001, Woodard requested one week of military leave. At the time, Woodard was pregnant. Woodard testified that Jacobs seemed “confused” about Woodard going on military leave while pregnant. Woodard Dep. at 51. Jacobs testified that she was “trying to understand and get a better handle on the frequency with which [Woodard] might be called to leave.” Jacobs Dep. at 21. Jacobs stated that this leave did not cause problems or hardship in OARS. Id. at 22. On January 4, 2001, Woodard submitted a request to HHC for child care leave under the Family and Medical Leave Act (“FMLA”) to Gloria Velez (“Velez”), Senior Director of Human Resources Services, for the period of February 21, 2001 through September 3, 2001. Def.’s Ex. K (Request for Leave Under the Family Medical Leave Act (Jan. 4, 2001)). This request was granted on March 6, 2001 by Hall. Def.’s Ex. L (Letter from Mondo Hall to Hillaire Woodard (Mar. 6, 2001)). Woodard returned to work from her six-month leave of absence on September 4, 2001. Def.’s Ex. B, D. Woodard’s Deployment After September 11, 2001 0'n September 11, 2001, one week after Woodard returned to work at HHC, the World Trade Center and the Pentagon were struck by acts of terrorism. That same day, Woodard volunteered for military service. Woodard Dep. at 65. On September 13, 2001, Woodard informed Jacobs that she had been put on alert, meaning that “we could leave at any minute.” Id. at 52. In response, Woodard testified that Jacobs “screamed at me [over the phone] that this is going to mess up her scheduling” of the surveys. Id. Jacobs also said to Woodard that “you just got back.” Id. at 53. Woodard never discussed the incident with Jacobs, but Woodard claimed that “it was clear how [Jacobs] felt,” and that Jacobs “was pissed off that I was leaving” because of Woodard’s military obligation. Id. at 56. At her deposition, Jacobs acknowledged that she was “shocked” to hear that Woodard was going off to war, because “[t]his is a lady who just had a baby, new family, going in to four years of unforeseen whatever. We didn’t know what was happening back then, so I don’t think any of us were particularly happy about that. I think it was kind of scary, to tell you the truth.” Jacobs Dep. at 35. Jacobs also said that the staff of OARS had grown accustomed to the extra workload that would result from Woodard’s military leave as a result of her six-month FMLA leave. Jacobs stated that “we had been, for quite some months, doing what we were doing and plodding along and we just plodded along some more. So it wasn’t any big difference between what we had just had to do when she was on FMLA.” Jacobs Dep. at 35. On October 22, 2001, plaintiff went on military leave. Def.’s Ex. B. E. Woodard’s 2001 Job Evaluation One of Jacobs’ responsibilities as Woodard’s direct supervisor was to complete an employee evaluation of Woodard’s performance as ADHCS. Jacobs Dep. at 15. The purpose of the evaluations is to provide employees with “an overall comprehensive picture of that person’s performance.” Id. at 24. HHC employee evaluations are typically prepared annually in July or August, and are based on the employee’s performance over the previous twelve months. Id. at 16. Woodard’s evaluation was filled out by Jacobs on September 28, 2001. Woodard’s evaluation only covered the period from July 5, 2000 to February 16, 2001, and did not include the time that she was on FMLA leave. Woodard went on military leave twice within the evaluation period. Jacobs Dep. at 19; Def.’s Ex. N (Managerial Performance Appraisal). Jacobs testified that Woodard received a six-month evaluation, rather than an annual evaluation, “because Hillaire had not been on active employment during the entire 12 month period, so there was a limited time frame in which we could do an evaluation for her work performance.” Jacobs Dep. at 18. Woodard received an overall evaluation rating of “satisfactory” from Jacobs. She received a “satisfactory” rating for each of her six major job responsibilities, and a “satisfactory” rating for all but one of the applicable “supervisory managerial abilities” and “personal attributes.” Woodard’s “initiative” was rated as “marginal” by Jacobs. Def.’s Ex. N at 2-8. In a handwritten note in the section entitled “Justification for Overall Rating,” Jacobs wrote the following: “Due to leaves (military and FMLA) Ms. Woodard could not complete a full year in her current position nor perform all tasks for which she would be evaluated. For this reason, we will reevaluate Ms. Woodard’s performance in six months at which time a more comprehensive appraisal should be possible.” Id. at 11. Jacobs testified that the purpose of the handwritten note was “to provide clarification for the time frame that the evaluation was written for, and to explain, to provide more information as to the overall rating.” Jacobs Dep. at 23. In her deposition, Jacobs denied that Woodard’s military service impacted the results of the evaluation, or Jacobs’ ability to evaluate Woodard. Id. at 24-25. Instead, Jacobs testified that the statement “merely states [ ] that there was a period of time that she was not in the department. For the time that she was in the department, her performance was rated based on what she delivered and based on what we observed.” Id. at 25. Woodard takes a very different view of the mention of her military service in the evaluation. Despite receiving a rating of “satisfactory” in all but one section, and an overall rating of “satisfactory,” Woodard claims that the mention of her military service was “a negative factor as far as they are blaming something on my military leave.” Woodard Dep. at 90. Woodard testified that the evaluation was “negative” because she was being “penalized for being on military leave.” Id. at 93. According to Woodard, “the military issue was an issue if it wasn’t it wouldn’t be there” in the evaluation. Id. at 91. Woodard asserts that the majority of her leave during the evaluation period was her family medical leave, and there was no reason for her military service to be raised in the evaluation. Id. at 93. In addition, Woodard testified that her military leave should not have been considered at all because military leave “is not counted. You are in the same position whether or not you are there.” Id. at 89-90. Woodard claims that Jacobs’ reference to Woodard’s military leave in the evaluation, combined with Jacobs’ comments regarding Woodard’s military duty and leave obligations, are evidence of bias against her military service. Id. at 56-57. Woodard also believes that Jacobs “had issues with [her] military service which she portrayed” to Dunn, and which had an impact on Dunn’s decision to deny Woodard a full 8% pay increase. Id. at 86. F. Woodard’s 2001 Pay Increase On September 20, 2001, HHC implemented Personnel Order HHC 01/15, which detailed the eligibility requirements for a salary increase. Def.’s Ex. O (Internal HHC Memorandum from Senior VP-Operations Frank J. Cirillo (Sept. 20, 2001)). The Order applied to Group 11 employees “who on the date of this order are in active pay status and who on June 30, 2001 were in active pay status in covered titles.” Id. The Order stated that qualified employees “whose FY 2001 performance is at least Satisfactory, shall receive a salary increase of 8.0 percent effective July 1, 2001, to be calculated on their June 30, 2001 salary. Network and Central Office Senior Vice Presidents may, at their discretion, reduce the percentage increases for their direct reports.” Id. The Order further provided that “an employee who was on authorized leave of absence without pay from a ‘covered title’ on June 30, 2001, or the date of this order is eligible to receive a salary increase effective on the date of the employee’s return to active pay status, in accordance with this order. Such employee shall not receive any increase for the period when the employee was on a leave of absence.” Id. All salary adjustments resulting from the Order were to take effect on the October 12, 2001 payroll. Id. In a memorandum dated September 27, 2001, Dunn informed Velez that “aside from her two leaves of absence, Ms. Woodard has only worked for six months in the Office of Accreditation and Regulatory Services, not providing adequate time to appropriately evaluate her performance. Thus, I am requesting that only a 4% increase is given to Ms. Hillarie [sic] Woodard. In six months we will re-evaluate the provision of the remaining 4% based upon the results of her one-year evaluation.” Def.’s Ex. P (Letter from Van Dunn to Gloria Velez (Sept. 27, 2001)). This salary increase raised Woodard’s annual salary from $75,750 to $77,740. Deck of John Yan, dated March 12, 2007 (“Yan Deck”) at ¶ 3. Dunn’s letter also specified that Jacobs was to inform Woodard of this decision. Jacobs did in fact inform Woodard that she would not receive the full 8% raise because Dunn believed that Woodard was not in her position for a year, and that she would receive the rest of the raise in six months after completing a full year of work. Woodard Dep. at 73. Woodard testified that she responded to Jacobs by informing her that she had served in her position for over a year, but that Jacobs said “no, you were not, you were on military leave and FMLA, so you were on child care leave, so you were not in that position for a year.” Id. Woodard responded that her military leave should not be held against her in calculating her length of employment with HHC. Id. at 73. Jacobs stated at her deposition that the decision to give Woodard a 4% raise was “purely up to Dr. Dunn” and that she played no role in making this decision. Jacobs testified that the only time she spoke to Dunn about Woodard’s raise, Dunn informed her of his decision but “did not go into detail” as to why Woodard would not receive 8%. Jacobs Dep. at 28. Dunn himself testified that the decision was made because Jacobs informed him that Woodard had not worked a full year due to her child care leave. Dunn Dep. at 18. He claimed that he found out about Woodard’s military leave only after the salary increase decision was made, when he received Woodard’s six-month evaluation referencing her absence due to military service. Id. at 17. Dunn also said at his deposition that Jacobs never previously mentioned to him that Woodard had been on military leave. Id. at 18. However, this testimony seems to be contradicted by Dunn’s September 27, 2001 memorandum, which referenced Woodard’s “two leaves of absences” when explaining her 4% pay increase. Def.’s Ex. P. Construing all inferences in favor of plaintiff, this reference to “two leaves of absences” suggests that Dunn was aware of both Woodard’s military and FMLA leaves when the pay decision was made. Woodard appealed Dunn’s decision to Beverly Lewin (“Lewin”), Deputy Directory of Human Resources Services for HHC. At their meeting, Woodard explained what Jacobs had told her regarding why she received only a 4% raise. Woodard also informed Lewin that she believed the real reason she received only 4% was her military leave, particularly her state of alert after September 11, and that Jacobs was angry at this fact and yelled at her. Woodard Dep. at 54. Lewin told Woodard that she did not receive the 8% increase because she was not in her position for a year due to her leaves of absence. Woodard Dep. at 78. G. Woodard’s Military Leave After September 11, 2001 After volunteering for active duty on September 11, 2001, Woodard was ordered to begin military duty on October 22, 2001. Her request for military leave was granted by HHC. Def.’s Ex. W (Letter from Gloria Velez to Caroline Jacobs (Oct. 18, 2001)). According to the then-current military leave policy, Woodard was only entitled to twenty-two workdays or thirty calendar days of paid military leave. If Woodard remained on leave beyond the paid entitlement period, she could use up her accrued annual leave to continue receiving a salary. Once her annual leave was used up, her time sheets were to be coded as “without pay.” See Def.’s Ex. X. HHC’s policy governing military leave underwent significant change on November 1, 2001. By memorandum on November 1, 2001, Nancy Doyle (“Doyle”), Assistant Vice President for Workforce Planning and Development, informed HHC Human Resources Directors that, effective September 11, 2001, HHC would be “granting additional benefits” to employees engaged in ordered military duty in connection with Operation Enduring Freedom. In addition to the paid military leave entitlement provided for in OP 20-15, these employees would “remain on payroll in active status for as long as they are on ordered military duty in connection with the events of September 11, 2001.” Defi’s Ex. Y (Nancy Doyle Memorandum (Nov. 1, 2001)) at 1. HHC’s “additional benefits” policy was part of New York City’s Extended Military Benefits Package (“EMBP”), enacted in October of 2001 as “a voluntary program that allows City reservists to continue to receive the City’s salary and benefits when they are called to active military duty for more than 30 calendar days or 22 working days.” Pl.’s Ex. 5 (New York City press release (Nov. 10, 2006)). In exchange for these additional benefits, the new policy provided that employees on ordered military service “will be required to remit to the Corporation an amount equal to the amount received in military pay for any days in excess of the statutory entitlement of thirty calendar days or twenty-two workdays.” Def.’s Ex. Y at 1-2. The amount of money owed to HHC was to be sent within thirty days after the completion of ordered military service. Id. at 2. In order to be eligible for these additional benefits, HHC required that the employee “agree, in writing, to this reimbursement” policy. Id. While serving ordered military duty, Woodard was informed of this change in HHC’s military leave policy. On November 19, 2001, Woodard executed her Military Pay Reimbursement Agreement (“the Agreement”). It provided that, “[i]n consideration of the payment to me by the Health and Hospitals Corporation of my full salary and benefits while I serve on ordered military duty ... in conjunction with the events of September 11, 2001, I agree that I shall remit to the New York City Health and Hospitals Corporation an amount equal to the amount I receive in military pay* or HHC salary, whichever is less, for any days in excess of the statutory entitlement of thirty calendar days or twenty-two work days within thirty days after the conclusion of ordered military leave.” Def.’s Ex. Z. On December 31, 2003, Nancy Doyle sent a memorandum to Human Resources Directors and Payroll Directors reminding them of the “additional benefits” granted to HHC employees serving on ordered military leave in connection with the events of September 11, 2001. The memorandum specified the three repayment options available to returning employee service-members. HHC employees who signed a Military Pay Reimbursement Agreement could repay the full amount owed through certified check or money order; repay through charges to their annual leave balance; or repay through payroll deductions (not to exceed 10% biweekly gross pay) over an extended period. Def.’s Ex. BB . (Nancy Doyle Memorandum (Dec. 31, 2003)). A similar memorandum specifying the three repayment options was sent By John K. Yan (“Yan”), Director of Corporate Payroll Operations, to HHC Payroll Managers on January 9, 2004. Def.’s Ex. CC (John Yan Memorandum (Jan. 9, 2004)). H. Woodard’s Return to Work at HHC On February 29, 2004, after being on active duty for nearly two and a half years, Woodard sent a letter to HHC Human Resources to notify HHC that she had been discharged and to request a return to work. Woodard asked “to be returned to duty at NYC HHC, 93 Worth Street (Early Intervention) or NYC HHC 125 Worth Street” beginning on March 29, 2004. Def.’s Ex. DD (Letter from Hillaire Woodard to Beverly Lewin (Feb. 29, 2004)). The reference to “125 Worth Street” appears to refer to her old job at OARS, which was located at that address. Woodard testified that she was initially told to report to Meryl Weinberg (“Weinberg”) in HHC’s Health and Home Care program, although Woodard did not say who gave her this assignment or when she received it. Woodard Dep. at 98-100. Woodard says she contacted Weinberg before her start date to inquire about her duties and responsibilities, and that Weinberg said she would “be assigned to support staff,” and that her hours would be 9:00 a.m. to 5:00 p.m. Id. at 99. Woodard testified that she told Weinberg, “I am not a support staff, I am a manager.” Id. at 100. Woodard also told Weinberg that her hours had always been 8:00 a.m. to 4:00 p.m. Id. Woodard testified that Weinberg said she would be in touch with Woodard, but that she was never contacted by Weinberg again. Id. Instead, the record shows that on March 5, 2004, Human Resources Director Velez sent Woodard a letter approving her request to return to work, and instructing Woodard to return to her prior position as Associate Director of Health Care Standards in OARS. Defi’s Ex. EE (Letter from Gloria Velez to Hillaire Woodard (Mar. 5, 2004)). Jacobs also initially believed that Woodard would be returning to her old job, which had remained unfilled throughout Woodard’s military leave of absence because Woodard “was active.” Jacobs Dep. at 33. Jacobs had filled out internal paperwork to request that Woodard return to OARS. Id. at 36-37. Jacobs and other OARS employees also arranged for Woodard’s old office to be cleaned and looked into obtaining a new computer for her in preparation for her return. Id. However, an e-mail message from Dunn to Woodard on March 24, 2004, told Woodard instead to report to Dr. Dungca in the Quality Management and Clinical Affairs area (“QMCA”) of the Division of Medical and Professional Affairs. Def.’s Ex. FF (E-mail from Van Dunn to Hil-laire Woodard (Mar. 24, 2004)). QMCA is the division responsible for HHC’s Quality Assurance Committee (“QAC”). The QAC provides oversight to HHC facilities (including eleven hospitals, six diagnostic and treatment centers and long-term care facilities) by monitoring healthcare performance data, such as information about patient morbidity and mortality. Dunn Dep. at 23. In addition, the QMCA office is responsible for monitoring HHC’s clinical initiatives to improve the quality of care at its facilities. For example, QMCA is responsible for HHC task forces acting to reduce pulmonary emboli, deep vein thrombosis, bed sores and other patient care problems. Id. at 24. Dunn described Woodard’s new role in this office as “a very critical position for the corporation and for quality assurance.” Id. at 27. Dunn decided to send Woodard to QMCA because she was a qualified employee with experience in quality assurance issues, who could fill a crucial role in an understaffed office. See Dunn Dep. at 23 (“I have a very big division, and there were crucial needs in other divisions and I felt that her performance, that she could easily work in those divisions and make a valuable contribution.”). Dunn stated that Dungca “was down three [employees] and because we were on a very tight budget, we were not able to fill the positions, and so this gave me an opportunity to take a position and move it in to her division.” Id. at 24; see also Dungca Dep. at 8. In contrast, Jacobs had never asked Dunn to hire a replacement to fill Woodard’s spot, either on a permanent or temporary basis. Instead, the remaining employees in OARS had successfully managed to take care of Woodard’s responsibilities while she was on leave, without any complaints. Dunn Dep. at 14-15. Jacobs confirmed this account at her deposition. Jacobs testified that at the time Woodard was reinstated, HHC was “looking at head count very carefully and people were being moved around.” Jacobs Dep. at 37. Jacobs spoke to Dunn about his decision to move Woodard to QMCA, stating that “I wanted to know why she was being moved, and everyone — there were vacancies in the division, and it was his choice as the senior manager in the division to reallocate staff as he deemed necessary, and that’s what he deemed necessary.” Id. at 41. According to Jacobs, Woodard’s old position in OARS ceased to exist once Woodard began work at QMCA because it had been held open specifically for her. Id. at 88. I. Dispute Over Woodard’s New Job Responsibilities Woodard reported for work to Dr. Dungca in QMCA on March 29, 2004. She retained the title and managerial rank of Associate Director for Health Care Standards, now in the area of quality assurance rather than accreditation and regulatory services. Def.’s Ex. B; Woodard Dep. at 105. Woodard initially received the same salary of $77,740 per year that she received prior to her military service. Def.’s Ex. B. Before Woodard began her new job at QMCA, Dunn asked Dungca to compose a job description that identified Woodard’s duties and responsibilities. Dunn Dep. at 25. Dungca developed a “functional” job description of Woodard’s position and job responsibilities sometime in March of 2004 before Woodard reported for work. Dungca Dep. at 14-15. Some of the responsibilities listed included managing quality assurance information; attending the QAC meetings; managing attendance and the taping of presentations; organizing and transcribing the minutes of the QAC meetings; monitoring and submitting the minutes to supervisors and the facilities for review; creating the quarterly reports; preparing the Annual QAC Report for the HHC Board; communicating with facilities’ QA coordinators on report data; and managing the Child Health QA Reports. Def.’s Ex. GG. In addition to these quality assurance activities, the job included data management responsibilities such as extracting data on asthma and psychiatric readmissions for quarterly reports; collecting statistics on Child Health Centers; providing HHC-wide data trend analysis; presenting and aggregating data for presentations; and developing statistical reports as needed. Id. On March 29, 2004, the day Woodard returned to HHC, she reviewed and signed the Functional Job Responsibilities form. Id. Three individuals provided on-the-job training to Woodard: Dungca herself, Marilyn DeOcampo (“DeOcampo”), and Marlene Allison. Dungca Dep. at 12. Until 2002, DeOcampo served as an Executive Secretary in QMCA assisting Esther Schwartz (“Schwartz”). DeOcampo testified that Schwartz’s position was a “managerial” position, with a title of “senior management consultant,” and that Schwartz worked “right under” Dungca, the Senior Assistant Vice President of Clinical Affairs. DeOcampo Dep. at 11, 16-17. DeOcampo testified that Woodard replaced Schwartz when Woodard joined QMCA in March of 2004. Id. at 10. Dungca instructed DeOcampo to give Schwartz’s responsibilities to Woodard, including attending the QA meetings; recording, transcribing, and reviewing the minutes; and preparing the quarterly board report. Id. at 12-14. Woodard acknowledges that OARS and QMCA have “similar” functions that “overlap.” Woodard Dep. at 106. However, Woodard claims that the new position was effectively a demotion from her former responsibilities. Woodard complained to Hall, the Benefits Coordinator for HCC, that managers do not take minutes, and that she was the “highest paid secretary in New York.” Id. at 107. Woodard, however, never complained about her responsibilities to Dungca directly. Id. at 108. There is also no evidence that Woodard complained to Dunn about her reassignment. Woodard alleges that her duties and responsibilities differed upon returning from military service because HHC, and Dr. Dunn in particular, wanted to “penalize” her for going on military leave by giving her work that was “beneath” her. Id. at 106. She testified that “I guess too that [HHC believed] I would quit after being bored by flipping cassettes and typing minutes or it was their way of forcing me out.” Id. Woodard acknowledged that Dunn himself never communicated to her that he was upset about her military leave, and that her belief was based upon her 2001 conversation with Jacobs regarding her 4% salary raise. Id. at 109. Nobody at HHC ever spoke to Woodard, about Dunn’s opinion of her or her military service. Id. at 110. Woodard also alleges that her marketability to potential employers was reduced by her change in responsibilities. She claims that if an employer asks her what tasks she performed at her previous job, and she responds that she was responsible for “typ[ing] the minutes [and] changing cassettes,” then she “will probably get an administrative assistant position” rather than a managerial position. Id. at 161. Woodard testified at her deposition that she had not looked for a new job since ending her employment with HHC. Id. She maintained that she was “too afraid to look for a job yet” because employers would “laugh [her] out of the marketplace” based on her responsibilities while in QMCA. Id. at 162. HHC disputes Woodard’s characterization of her role in QMCA. Dunn testified at length about the critical nature of Woodard’s position at QMCA: The [quality assurance committee meeting] minutes are not a word to word transcription of what is said. The reason why we have a professional transcribing the minutes is not because we need a word-for-word description of what happened. We want a synopsis of what were the issues, how did the facility respond, what are the follow-up actions that need to be made. So you have the person who is actually going to go through and listen to the minutes as a professional, because they got to be able to decipher what are quality issues, what are health care issues, what are utilization issues, and you can’t have a secretary do that. If you wanted a transcription where they had word-for-word, then you can have a secretary, but then you would have to have a professional then sit down and go through the word-for-word transcription of the meeting to then put it in a form that is actionable, and a secretary can’t do that.... So her job was critical from the standpoint of being a professional and being able to listen to an hour tape by medical directors, by department chiefs, by members of the board of directors and making sure that the minutes reflected what went on in the meeting, not a word-for-word account of what happened in the meeting. Dunn Dep. at 28-29. Although Woodard has complained that this job involved no analytical work, Dunn explained that an analytical background was necessary so that the person preparing the minutes could understand and respond to the substance of the quality assurance meetings. Id. at 32. Significantly, when Woodard left QMCA for another period of leave, Dunn filled the position with Dr. Charles Nocovich, a nurse with a Ph.D. degree. Id. at 27. Woodard’s co-workers at QMCA also attested to the managerial nature of this position. Dungca testified that Woodard’s position was a managerial position because “the work she is doing is highly confidential and only a manager can do it.” Dung-ca Dep. at 33. Dungca explained that Woodard was responsible for “doing the management part of processing quality management activities,” which included processing the Quality Assurance books, taping the meetings of the QA committee, and transcribing the minutes of the meetings. Id. at 8-9. Dungca testified that only managerial staff members were responsible for these activities. Dungca also noted that Woodard shared the responsibility for transcribing minutes with three other people, including Dungca herself, an assistant director from the QMCA office and a systems analyst. Id. at 10-11. See also DeOcampo Dep. at 15 (“Everybody was doing transcription.”). DeOcampo confirmed that preparing minutes from the QA meetings was a “managerial” task, and that attending the meetings was a managerial “privilege.” DeOcampo testified that the meetings are “confidential” because “you’re there with all the senior staff of the' corporation.” DeOcampo Dep. at 19. Although Woodard claimed that she was “sitting with the other secretaries taking minutes where I sat with the managers before” at the QAC meetings, Woodard Dep. at 98, DeOcampo indicated that “no secretaries attend those meetings,” DeOcampo Dep. at 18-19. J. Retroactive Pay Increase to 2001 Following Woodard’s return to HHC in March of 2004, she received a 4% raise from $77,740 to $80,850. Def.’s Ex. B. This 4% represented “the balance of the 8% raise.” Yan Deck at ¶ 4. The raise was implemented retroactive to September 4, 2001 — the date upon which Woodard returned to work after her family medical leave. Def.’s Ex. B. Woodard received this raise — the balance of the September 2001 salary increase — despite not receiving a one-year evaluation with a “satisfactory” rating. Dunn said at his deposition that he would have signed off on this pay increase. Dunn Dep. at 21. Woodard requested that she be paid the $8,266.38 in back pay she was owed in an e-mail to Hall on August 2, 2004. Def.’s Ex. QQ (E-mail from Hillaire Woodard to Mondo Hall (Aug. 2, 2004)). HHC’s pay records show that Woodard received the back pay she was owed. Yan Deck at ¶ 4 & Ex. 1. K. Dispute Over Repayment of Military Leave Pay On March 29, 2004, the day that Woodard returned to work following her extended military leave, she received a letter from HHC’s benefits department reminding her of the terms of the Agreement. Def.’s Ex. LL (Letter from Mondo Hall to Hillaire Woodard (Mar. 29, 2004)). The letter also informed Woodard of the three repayment options. Woodard does not deny that, pursuant to the Agreement, she owes HHC some money. Woodard Dep. at 145. However, Woodard and HHC disagree as to the amount owed. The conflict centers on the interpretation of the phrase “for any days” in the following statement: “I agree that I shall remit to the New York City Health and Hospitals Corporation an amount equal to the amount I receive in military pay or HHC salary, whichever is less, for any days in excess of the statutory entitlement of thirty calendar days or twenty-two work days within thirty days after the conclusion of ordered military duty.” Def.’s Ex. Z (emphasis added). Woodard maintains that she understood the word “days” to refer to “work days” (that is, a seven-hour day during the five-day work week). She testified that she concluded that the word “days” meant “work days” because she was only “charged” work days when HHC calculated the length of her prior military leaves. Woodard Dep. at 138. She admits that she did not discuss the meaning of the Agreement with anyone prior to signing it. Id. at 140. On March 31, 2004, HR Director Velez sent a letter to Payroll Director Yan indicating that Woodard was interested in the payroll deduction repayment option. The letter also informed Yan that Woodard had some concerns regarding differences between her military pay and her HHC pay, and requested Yan’s “assistance in clarifying these questions/eoncerns.” Def.’s Ex. MM (Letter from Gloria Velez to John Yan (Mar. 31, 2004)). Attached to the letter were charts containing Woodard’s own calculation of the amount of military pay she owed HHC. Woodard’s calculations were based on her assumptions that (1) the military paid her to work twenty-four hours a day and seven days a week; (2) she could calculate her military salary as an hourly wage based on that 24/7 work schedule; and (3) she only needed to repay HHC for the wages she earned, based on that purported hourly wage, during her usual thirty-five hour work week. Based on this formula, Woodard concluded that she owed HHC $60,522.24. Id. Woodard later claimed that this figure should “be a lot less” because she was later informed that HHC would only seek to recoup base pay, not housing and food allowances. Woodard Dep. at 167. Yan responded by e-mail on May 3, 2004, stating that “HHC pay is based on calendar day. Each employee’s bi-weekly pay is based on his/her annual salary divided by 365 calendar days per year and then multiplied by 14 calendar days in pay status per period.” Def.’s Ex. NN. Yan’s email informed Velez that HHC’s own calculation of the amount owed by Woodard “will be calculated for all calendar days paid on and after 11/25/01,” when her paid military leave entitlement expired. Id. Woodard said at her deposition that she was unaware that her HHC salary was broken down by calendar days. Woodard Dep. at 142. On July 7, 2004, Yan informed Velez that he had calculated that Woodard owed $137,052.97 to HHC. Included with Yan’s letter was “a worksheet showing the monies in basic military pay received by Ms. Woodard during this period as compared with the HHC salary she received for the same period.” Def.’s Ex. OO. Yan’s figure did not include the amount Woodard owed for housing or food allowances. Id. Woodard initially suggested to Hall, who worked in HHC’s benefits department, that she wanted to repay HHC through the payroll deduction option. Woodard also indicated that she wanted to apply the $8,266.38 in back pay she was owed by HHC towards the $137,052.97 recoupment amount. Def.’s Ex. P (Status Sheet of Meeting Between Hall and Woodard (7/28/04)); Def.’s Ex. QQ (E-mail from Hil-laire Woodard to Mondo Hall (Aug. 2, 2004)). On August 23, 2004, Hall asked Yan to begin deducting 10% of Woodard’s biweekly gross salary. Def.’s Ex. RR (Letter from Mondo Hall to John Yan (Aug. 23, 2004)). That same day, Hall informed Woodard that, pursuant to the Agreement, he had given authorization to Corporate Payroll Operations to begin deducting 10% of her bi-weekly gross salary “for repayment towards extended military benefits [] received.” Hall also requested that Woodard “provide us with [a] decision on making additional payments through other options.” Hall included a copy of the Agreement in his correspondence to Woodard. Def.’s Ex. SS (Memorandum from Hall to Woodard (Aug. 23, 2004)). Woodard responded to Hall on August 26, 2004 by e-mail. Woodard stated that “I have concluded that I am not in agreement with the Corporation mentioned sum of $137K+. Therefore, I cannot give you a repayment plan.” Def.’s Ex. TT (E-mail from Hillaire Woodard to Mondo Hall (Aug. 26, 2004)). On August 27, 2004, Hall asked Woodard to provide HHC with “a detailed list of whatever discrepancies you have” with HHC’s calculation of the amount owed. Hall also reminded Woodard that, pursuant to the Agreement, Corporate Payroll was authorized to deduct 10% from her bi-weekly gross salary and to put it towards repayment. Def.’s Ex. TT (E-mail from Mondo Hall to Hillaire Woodard (Aug. 27, 2004)). As of June 17, 2005, the recalculated amount of money owed by Woodard to HHC, pursuant to the Agreement, totaled $146,771.32. This amount represents $144,141.98 in basic military pay that Woodard received while on military leave from November of 2001 through February of 2004, plus $6,213.25 “in extended military benefits overpaid” to Woodard, less $3,583.91 recouped through payroll deductions. Yan Deck at ¶ 5. The revised figure does not take into account Woodard’s housing or food allowances while on military leave. Id. at ¶ 6. L. Woodard Ends Employment With HHC After Woodard started the QMCA job on March 29, 2004, she took an additional military leave for the last week of June and the first week of July. Woodard also took two separate one-week military leaves in August of 2004. Woodard Dep. at 123-24. On August 28, 2004, Woodard went on FMLA leave for a hysterectomy. She remained on FMLA leave until November 7, 2004 but did not return to work on this date. Id. at 124. Instead, Woodard went on a 179-day tour of military duty in Alexandria, Virginia beginning on November 8, 2004. Id. at 125. Woodard was informed that while she was on military leave, she could take an extended military leave of absence without pay, or sign another Military Pay Reimbursement Agreement. PL’s Ex. UU (Letter from Mondo Hall to Hillaire Woodard (Nov. 3, 2004)). Woodard did not sign another Military Pay Reimbursement Agreement for this leave. Woodard Dep. at 171. Following this period of military service, Woodard never returned to work at HHC. Woodard says that she received a letter from HHC in July of 2005 informing her that her “services were no longer required.” Id. at 148. (2) Procedural History Woodard commenced this action on December 6, 2004, alleging three causes of action, the first two of which are grounded in USERRA. First, Woodard alleges that she was discriminated against by HHC based on her military service “in the form of reduced pay increases and negative personnel evaluations.” Compl. ¶ 17. Second, Woodard claims that, upon her return to HHC from two and a half years of military service, HHC “removed her from all her managerial functions and assigned her to secretarial functions.” She alleges that this “demotion in the nature of her duties” resulted in a loss of status which “has had and will continue to have a detrimental effect on Plaintiffs ability to be promoted by the Defendant,” and “reduced the Plaintiffs marketability for jobs outside of the Defendant’s agency.” Id. ¶¶ 30-31. Lastly, Woodard alleges that the term “any days” in the Agreement between her and HHC refers to “work days” and not “calendar days,” such that under the Agreement HHC is “only entitled to recoup the monies equal to work days paid and not to calendar days.” Id. ¶ 44. On November 27, 2006, after discovery between the parties, HHC filed a motion for summary judgment and for leave to amend its answer to add a counterclaim pursuant to Fed.R.Civ.P. 13(f). HHC’s counterclaim seeks to recoup the $146,771 it alleges that Woodard owes it under HHC’s interpretation of the Agreement. HHC seeks summary judgment on all three of Woodard’s claims and HHC’s own counterclaim pursuant to Fed.R.Civ.P. 56. These motions are currently before this court for disposition. Discussion (1) Legal Standards Under USERRA USERRA prohibits discrimination against persons based upon their military service. See 38 U.S.C. § 4301(a). It was enacted to protect service members from “disadvantages to their civilian careers as a result of such service.” Curby v. Archon, 216 F.3d 549, 556 (6th Cir.2000). The statute is applicable to both reservists and non-reservists. 38 U.S.C. § 4303(13); Warren v. International Business Machines Corp., 358 F.Supp.2d 301, 309 (S.D.N.Y.2005). Congress passed USER-RA in 1994 to “clarify, simplify, and, where necessary, strengthen the existing veterans’ employment and reemployment rights provisions.” Gummo v. Vill. of Depew, 75 F.3d 98, 105 (2d Cir.1996). As with its predecessor, the Veterans Readjustment Assistance Act (VRAA) of 1974, USERRA is to be “broadly construed in favor of its military beneficiaries.” Hill v. Michelin North America, Inc., 252 F.3d 307, 312-3 (4th Cir.2001); see also McGuire v. United Parcel Service, 152 F.3d 673, 676 (7th Cir.1998). A. Anti-Discrimination Protections (Section 4311) USERRA’s anti-discrimination provision is found in § 4311, which provides: “A person who is a member of ... a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by any employer on the basis of that membership.” 38 U.S.C. § 4311(a). USERRA defines “benefit of employment” broadly as “any advantage, profit, privilege, gain, status, account, or interest (other than wages or salary for work performed) that accrues by reason of an employment contract or agreement.” 38 U.S.C. § 4303(2). See also Maxfield v. Cintas Corp. No. 2, 427 F.3d 544, 551 (8th Cir.2005). For the purposes of USERRA, a loss of a benefit of employment under § 4311(a) constitutes an adverse employment action, so long as the loss is material. See Schmauch v. Honda of America Man ufacturing, Inc., 295 F.Supp.2d 823, 839 (S.D.Ohio 2003); Grosjean v. FirstEnergy, 481 F.Supp.2d 878, 884 (N.D.Ohio 2007). An employer engages in a prohibited act under § 4311 “if the person’s membership ... in the uniformed services is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such membership.” U.S.C. § 4311(c)(1). Section 4311(c) was enacted in response to the Supreme Court’s ruling in Monroe v. Standard Oil Co., 452 U.S. 549, 101 S.Ct. 2510, 69 L.Ed.2d 226 (1981), in which the Court held that under the VRRA, allegations of discrimination in employment based upon military service could be proven only if the employee could establish that the discrimination was “motivated solely by reserve status.” Monroe, 452 U.S. at 559, 101 S.Ct. 2510 (emphasis added). USERRA liberalized this requirement by providing that a violation could be established if the individual’s military service was a “motivating factor” in the discriminatory action, even if it was not the only factor. Sheehan v. Dep’t of Navy, 240 F.3d 1009, 1012-13 (Fed.Cir.2001); Gummo, 75 F.3d at 106-7. In doing so, Congress “intended to lessen, but not eliminate, a veteran’s obligation to show that the employer’s adverse decision was related to his or her service in the armed forces.” Curby, 216 F.3d at 557. The appropriate framework for analyzing USERRA claims is the two-pronged burden-shifting analysis of NLRB v. Transportation Management Corp., 462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983). See Fink v. City of New York, 129 F.Supp.2d 511, 520 (E.D.N.Y.2001) (citing Gummo, 75 F.3d at 106). Under this framework, the employee alleging discrimination “bear[s] the initial burden of showing by a preponderance of the evidence that the employee’s military service was ‘a substantial or motivating factor’ in the adverse employment action.” Sheehan, 240 F.3d at 1013 (quoting NLRB, 462 U.S. at 400-01, 103 S.Ct. 2469). See also Gummo, 75 F.3d at 106. “Military status is a motivating factor if the defendant relied on, took into account, considered, or conditioned its decision on that consideration.” Fink, 129 F.Supp.2d at 520 (quoting Robinson v. Morris Moore Chevrolet-Buick, Inc., 974 F.Supp. 571, 576 (E.D.Tex.1997)). “The term ‘motivating factor’ means that if the employer was asked at the moment of the decision what its reasons were and if it gave a truthful response, one of those reasons would be the employee’s military position or related obligations.” Robinson, 974 F.Supp. at 576. Discriminatory motivation may be proven through direct or circumstantial evidence, including but not limited to proximity in time between the employee’s military activity and the adverse employment action, inconsistencies between the proffered reason and other actions of the employer, an employer’s expressed hostility towards members protected by the statute together with knowledge of the employee’s military activity, and disparate treatment of certain employees compared to other employees with similar work records or offenses. Sheehan, 240 F.3d at 1014. Once the employee proves that his military status served as a motivating factor in the employer’s adverse decision, “the employer may nonetheless escape liability by showing, as an affirmative defense, that it would have made the same decision without regard to the employee’s protected status.” Fink, 129 F.Supp.2d at 520 (quoting Gummo, 75 F.3d at 106). See also Sheehan, 240 F.3d at 1014. Both the burden of production and the burden of persuasion shift to the employer under this framework. Maxfield, 427 F.3d at 551. Thus, the employer cannot merely point to other grounds upon which its adverse action would have been justified. Rather, the employer must prove, as an affirmative defense, that it would have taken the same action based on the other reasons alone, without regard to the employee’s protected status. See Leisek v. Brightwood Corp., 278 F.3d 895, 899 (9th Cir.2002); Sheehan, 240 F.3d at 1013; Gummo, 75 F.3d at 106. B. Reemployment Protections (Sections 4312 and 4313) In addition to its anti-discrimination protections, USERRA also creates an entitlement to reemployment upon return from military service. USERRA provides that an individual who returns from a period of service greater than 90 days shall be promptly reemployed “in the position of employment which the person would have been employed if the continuous employment of such person with the employer had not been interrupted by such service or a position of like seniority, status, and pay, the duties of which the person is qualified to perform.” 38 U.S.C. § 4313(a)(2)(A). See also Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 305 (4th Cir.2006). Section 4313(a) (2)(A) defines the rights provided by § 4312 to service members returning to their previous employer. See Francis, 452 F.3d 299, 305. In combination, the two sections of USERRA serve to alert service members and employers alike that, so long as members of the military meet § 4312’s three criteria, they are entitled to their previous position of employment or a position of like seniority, status and pay upon completing their military duties. See Francis, 452 F.3d at 304. Courts have interpreted both § 4312 and § 4313 as providing service members with only a right to immediate reemployment; they do not prohibit an employer from taking subsequent adverse employment actions, which would be addressed by other sections of the Act. See Francis, 452 F.3d at 305 (holding that “ § 4312 applies to protect a covered individual only as to the act of rehiring”); Jordan v. Air Products and Chemicals, Inc., 225 F.Supp.2d 1206, 1208 (C.D.Cal.2002). The entitlement to reemployment created by § 4312 does not require a returning employee to show any evidence of discrimination. See Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 304 (4th Cir.2006) (finding that section 4312 “guarantee[s] service persons’ reemployment without question as to the employer’s intent” (quoting Jordan v. Air Prods. & Chems., Inc., 225 F.Supp.2d 1206, 1208 (C.D.Cal.2002))); Wrigglesworth v. Brumbaugh, 121 F.Supp.2d 1126, 1132 (D.Mich.2000) (holding that section 4312 creates an entitlement of reemployment that does not require proof of discrimination); 20 CFR § 1002.33 (2006) (“The employee is not required to prove that the employer discriminated against him or her because of the employee’s uniformed service in order to be eligible for reemployment.”). (2) Leave to Amend to Add Counterclaim Rule 13(f) of the Federal Rules of Civil Procedure provides that a party may amend its pleadings to add a counterclaim if the pleader failed to assert the claim in his original pleading due to “oversight, inadvertence, or excusable neglect, or when justice so requires.” Fed. R.Civ.P. 13(f). This rule must be read in conjunction with the liberal standard of Rule 15(a) of the Federal Rules of Civil Procedure, which states that leave to amend “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). See Banco Para El Comercio Exterior De Cuba v. First Nat’l. City Bank, 744 F.2d 237, 243 (2d Cir.1984); Pfeffer v. Mark, No. 98-CV-6771, 2000 WL 516891, at *1 (E.D.N.Y., Mar. 16, 2000). Leave to amend should be denied only if there is a good reason such as undue delay, bad faith or dilatory motive on the part of the mov-ant, a futile claim, or undue prejudice to the opposing party. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Min Jin v. Metro. Life Ins. Co., 310 F.3d 84, 101 (2d Cir.2002); Rachman Bag Company v. Liberty Mutual Ins. Co., 46 F.3d 230, 234 (2d Cir.1994). HHC seeks to add a counterclaim to recoup $146,771 owed by Woodard pursuant to the Agreement. HHC asserts that granting leave to amend would serve “the goals of economy of the court and the parties” because resolution of Woodard’s own contract claim requires the court to calculate the amount HHC is due. Mem. Of Law in Supp. Of Def.’s Mot. For Leave to Amend Its Answer and for Summ. J. (“Def.’s Mem.”) at 3. In opposing this motion, Woodard charges that HHC unduly delayed in filing this claim by “sitting on its hands” until the “eve of trial,” and that Woodard herself would suffer prejudice if leave to amend is granted. Pl.’s Mem. Of Law in Opp. To Def.’s Mot. For Partial Summ. J. (“Pl.’s Mem.”) at 14. However, it is recognized law in the Second Circuit that delay alone, without some evidence of bad faith or prejudice to the other party, is generally not enough to warrant denial of a motion to amend. See Rachman, 46 F.3d at 234-5; State Teachers Retirement Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir.1981); UMG Recordings, Inc. v. Lindor, No. 05-CV1095, 2006 WL 3335048, at *3 (E.D.N.Y., Nov. 9, 2006). Because Woodard has offered no evidence of bad faith or prejudice, leave to amend should be granted. Woodard claims that the court should abstain from hearing HHC’s proposed claim because over two years passed between the filing of Woodard’s complaint and HHC’s motion to add the counterclaim. But HHC correctly points out that the counterclaim was unnecessary at the time of the complaint, because Woodard was an HHC employee at the time, and HHC had the ability to seek repayment without resort to legal channels. Woodard has offered no evidence to suggest that HHC’s subsequent delay in amending to add this counterclaim was motivated by any form of bad faith. Woodard also fails to show that she would suffer any prejudice from the timing of the amendment. When evaluating whether a party would suffer prejudice as the result of the assertion of a new claim, a trial court must determine whether the new claim will “(i) require the opponent to expend significant additional resources to conduct discovery and prepare for trial; (ii) significantly delay the resolution of the dispute; or (iii) prevent the plaintiff from bringing a timely action in another jurisdiction.” UMG Recordings, 2006 WL 3335048, at *4 (quoting Block v. First Blood Associates, 988 F.2d 344, 350 (2d Cir.1993)). Woodard, however, fails to submit any particularized evidence, other than general pronouncements that she "will be unduly prejudiced, of how she would suffer as a result of permitting HHC to amend its answer. HHC contends, and Woodard does not refute, that no additional discovery is required for resolution of its claim, as Woodard’s own claim will likely yield a determination of the merits of HHC’s proposed counterclaim. Nor is there any evidence that granting leave to amend will delay the resolution of this dispute. Therefore, leave to amend should be granted. Woodard also raises the affirmative defense of laches against HHC’s proposed counterclaim. Laches is premised not merely on the passage of time, but upon changes in the relationships or conditions of the parties that occurred during the period of delay. To successfully assert laches as a defense against a proposed claim, a party must prove that the claimant unreasonably delayed in raising the claim, and that the opposing party would suffer prejudice as a result. See Merrill Lynch Investment Managers v. Optibase, Ltd., 337 F.3d 125, 132 (2d Cir.2003); Robins Island Preservation Fund, Inc., v. Southold Dev. Corp., 959 F.2d 409, 423 (2d Cir.1992). Under the doctrine of laches, a party suffers prejudice when it would be inequitable, in light of a change in the party’s position, to allow the claim to proceed, or where the delay makes it difficult to garner evidence to vindicate the party’s rights. Robins Island, 959 F.2d at 424. Woodard’s laches argument fails because she has failed to even allege that she has suffered any prejudice as a result of the delay. Of course, such allegations would be baseless, because the parties have in fact been litigating their dispute over the repayment agreement throughout these proceedings. The proposed counterclaim does not raise any new issues, but merely represents an attempt by HHC to collect the money it claims to be owed. Accordingly, Woodard’s laches defense has no merit. (3) First Cause of Action: Discrimination Claim Woodard’s first cause of action alleges that HHC discriminated against her in the form of a “reduced pay increase” that was inconsistent with a raise “awarded to similarly situated non-military employees.” Compl. ¶ 19. She claims that this decision was made “as a result of’ the “negative evaluation” she received from Jacobs. Id. Plaintiff seeks the balance of the raise, retroactive to the day it went into effect, plus interest she lost out on and any other “appropriate statutory penalties.” Id. ¶ 21. In order to succeed on this claim, Woodard must prove that the “reduced pay increase” constituted an adverse employment action, and that her military service was a “motivating factor” in HHC’s decision not to award her an 8% raise. See 38 U.S.C. § 4311(c); Fink, 129 F.Supp.2d at 520. Woodard has raised a material question of fact about whether HHC would have taken the same actions if it had not considered her military leave. But HHC should, nonetheless, b