OPINION & ORDER
Plaintiff Aylin Gaughan, proceeding pro se, brings this action against her former employer, defendant Lee A. Rubenstein, alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq,, and New York Labor Law (“NYLL”). Gaughan seeks, inter alia, unpaid wages and liquidated damages. Gaughan brings this action despite having settled these same claims with Rubenstein on January 25, 2016. She argues that the Settlement Agreement (the “Agreement”) executed-between her and Rubinstein is not binding under Cheeks v. Freeport Pancake House, Inc.,
Two motions are pending. First, Gau-ghan seeks to amend her complaint, Dkt. 2 (“Complaint”), to add claims against Ru-benstein and a new defendant, Jennifer Radwan, whom Gaughan claims jointly employed her. with 'Rubenstein. Magistrate Judge Katharine Parker, in a Report & Recommendation to the Court, Dkt. 38 (“Report”), recommends that Gaughan’s motion be granted in part and denied in part. Gaughan objects to aspects of the Report, all involving its recommendation that Gaughan not be permitted to bring certain claims against Radwan. Second, Rubenstein moves to dismiss the Complaint against him, or, alternatively, for summary judgment, on the grounds that her claims against him were resolved and now are now barred by the Agreement.
For the reasons that follow, Ruben-stein’s motion to dismiss is granted. And, to the extent that it is not rendered moot by that dismissal, the Court, after a de novo review of the objected-to aspects of the Report, adopts the Report in its entirety, and therefore grants in part, and denies in part, Gaughan’s motion to amend.
I. Background
A. Factual Background
Before the parties formed the employer-employee relationship at issue, Gaughan retained Rubenstein, an attorney, to represent her, post-judgment, in a divorce action. Complaint ¶22. Later, in 2013, Ru-benstein hired Gaughan as a paralegal, to be paid at the agreed rate of $17.50 per hour, and the agreed overtime rate of $26.75 per hour. Id. ¶¶ 32, 37, 71. Gaughan claims, however, that contrary to their agreement, Rubenstein initially paid Gaughan at the rate of $3.57 per hour. Id. ¶ 37. In 2014, Gaughan alleges that Rubenstein increased her pay to $4,16 per hour, still well below the minimum wage. Id. ¶42. Gaughan also claims that she worked on federal holidays without compensation, id. ¶39, and that Rubenstein denied her requests for sick time and time off during certain holidays, id, ¶¶ 40-41.
In 2015, Rubenstein allegedly paid Gaughan at an hourly rate of $6.25, again below the minimum wage. Id. ¶ 44. In neither 2014 nor 2015 did Gaughan receive overtime pay. Id. ¶ 42, 44. Gaughan claims that, based on the rates to which the parties agree, she should have been paid a total of $78,890, id. ¶ 71, but. that she was instead paid a total of $20,600, id. ¶73. Gaughan also alleges that, during 2014 and 2015, Rubenstein’s payments to her (reflecting both wage and reimbursement of business expenses) were often untimely. Id. ¶¶ 45, 129, 167, 187.
Gaughan alleges that at no point during her employment did Rubenstein give her a contract that outlined the terms of her employment. Id. ¶ 54. Nor did Rubenstein give her an itemized statement detailing the portions of her paycheck withheld for taxes. Id, Instead, she alleges, Rubenstein “unilaterally imposed what he deemed to be the proper tax withholdings onto” Gaughan. Id. ¶65. In general during her employment, Gaughan claims, Rubenstein failed to give'her any statements or. records detailing, inter alia, the rate' of her pay, allowances (such as compensation for
Gaughan is a cancer patient who suffers from an autoimmune disease. Id. ¶93. These ailments make it difficult for Gaughan to perform strenuous tasks, especially in cold weather. Id. Gaughan claims that Rubenstein, on multiple occasions, nevertheless had her perform tasks for him in the midst of a snowstorm or “hurricane like” weather. Id. ¶ 94. Gaughan also alleges that Rubenstein is a chronic “hoarder,” and his accumulation of objects spawned a putrid “dead mouse smell” within the office, which, Gaughan claims, threatened her health. Id. ¶¶ 140, 142.
Gaughan further alleges that Rubenstein required her, during non-working hours, to assist his adult daughter transport her luggage from Grand Central Station to Ru-benstein’s office. Id. ¶ 89. Also during her free time, Gaughan, at Rubenstein’s behest, had to listen to CLE courses for him. Id. ¶ 83. Rubenstein also assigned Gau-ghan the task of serving process papers in an improper fashion and in neighborhoods that she viewed as dangerous, such as Sunset Park, Brooklyn. Id. ¶ 90. Gaughan-claims that she suffered from emotional distress as a result of such tasks. Id. ¶¶ 92, 142, 144.
Rubenstein also allegedly offered Gau-ghan’s services to other attorneys, who sometimes tasked Gaughan with delivering documents—services for which Gaughan was not compensated. Id. ¶98. At one point, Gaughan alleges, she told Ruben-stein that she would no longer work for him seven days per week, id. ¶ 102, yet Rubenstein called Gaughan on weekends and insisted that she come to the office immediately, id. Once Gaughan began to resist Rubenstein’s requests that threatened her health and safety, she alleges, Rubenstein responded by either withholding her paychecks or by writing post-dated paychecks that prevented her from cashing them at the time she received them. Id. ¶ 105.
On June 18, 2015, Gaughan and Ruben-stein engaged in an argument that concluded with Rubenstein firing her. Id. ¶¶214, 219. On June 31, 2015, Gaughan’s final day of employment, Gaughan claims that Rubenstein gave her two post-dated checks, but refused to give her a third, $600, check to repay her for out-of-pocket business expenses she had paid. Id. ¶ 249. These travails, Gaughan claims, jeopardized her “emotional and financial well-being” and led her to fear for her safety. Id. ¶ 92.
On August 25, 2015, Gaughan retained the law firm of Virginia & Ambinder, LLP (“V & A”) to help resolve her claims against Rubenstein. Dkt. 18 (“Gaughan Aff.”) ¶ 72.
After several months of negotiation between V & A and Rubenstein, the parties agreed to settle the claims for a total of $18,000. Dkt. 14, Ex. C (“Agreement”) ¶ 1.1. On January 25, 2016, Gaughan exe
Both Parties and their respective representatives, employees, agents, partners, heirs, successors, subrogees and assignees, do hereby completely and irrevocably release and forever discharge the other Party and their respective representatives, employees, agents, partners, heirs, successors, subrogees, and assigns (the “Representatives”) from any and all claims and rights of any nature whatsoever (including, without limitation, rights of set-off and recoupment, demands, actions, obligations, and causes of action of any and every kind, nature, and character, known and unknown) that' either could have asserted in any action, the Pre-existing Action and any and all other claims and rights arising out of or relating to the subject matter of any action (including, without limitation, rights of set-off and recoupment, demands, actions, obligations, and causes of action of any and every kind, nature, and character, known and unknown) that either may have or could have filed or caused to be filed in any court of law or before any administrative agency, state or federal, or any arbitral forum existing prior to the execution of this Agreement from the beginning of the world until the date of this release. The Parties and their Representatives further agree and promise that they will neither bring any further charge, complaint, cross-com: plaint, action, or cause of action, against the other and its representatives based in whole or in part upon any claims, rights, demands, causes of action, or damages released pursuant to this Agreement, nor aid, abet, induce, or encourage any such claims by any person or entity.
1⅛¶3.1,
Gaughan thus agreed to release any and all claims against Rubenstein, including any claims relating to her employment.
B. Procedural History
On October 18, 2016, Gaughan commenced this action, pro se, by filing the Complaint, which brought FLSA and NYLL claims. Construing the Complaint liberally, Gaughan appears to assert claims of unjust enrichment, negligence, breach of fiduciary duty, breach of contract, fraud, and discrimination on the basis of disability. Id. On January 24, 2017, Rubenstein moved for dismissal or, alternatively, for summary judgment as to all claims against him, on the grounds that all are precluded by the Agreement. Dkts. 11, 13. Rubenstein supported his motion with a memorandum of law. Dkt. 17 (“Def. Br.”). On February 8, 2017, Gaughan filed a memorandum of law, Dkt. 19 (“Pl. Br.”), and an affirmation, Dkt. 18 (“Gaughan Aff.”), in opposition to the motions'to dismiss and for summary judgment.-
On February 21, 2017, Gaughan moved to amend the Complaint to add claims against Rubenstein and to add Jennifer Radwan as a defendant, Dkt. 20, and filed a memorandum of law in support, Dkt. 21 (“Pl. Amend Br.”). On February 23, 2017, the Court issued an or fiér referring the case to Judge Parker. Dkt. 24. On February 24, 2017, Rubenstein filed a reply memorandum of Law in support of his motions. Dkt. 25 (“Def. Rep. Br.”). On March 10, 2017, Radwan, filed an affirmation in opposition to Gaughan’s motion to amend the Complaint to add Radwan, Dkt 27, and, on March 20, 2Q17, filed a second affirmation in, opposition to the same motion. Dkt. 29. On March 21, 2017, Gaughan filed yet another motion to amend, to add claims against Radwan and Rubenstein, Dkt. 33, and a memorandum of law in support, Dkt. 34.
Oh'May 23, 2017, Judge Parker filed the Report, recommending that the Court deny Gaughan’s motion to amend as to all new claims’ against Rubenstein except a
II. Applicable Legal Standards
A.. Motion to Dismiss
To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v, Twombly,
In considering a motion to dismiss, a district court rpust “accept[] all factual claims in the complaint as true, and draw[] all reasonable inferences in the plaintiffs favor.” Lotes Co. v. Hon Hai Precision Indus. Co.,
A court must construe a pro se plaintiffs pleadings liberally. McEachin v. McGuinnis,
B. Summary Judgment
To prevail on a motion for summary judgment, the movant must “show[] that there is no genuine dispute as to any material fact and the movant is. entitled to judgment as a matter of law.” Fed. R, Civ. P. 56(a). The movant bears the burden of demonstrating the absence of a question of material fact. .In making this determination, the Court must view all facts “in the light most favorable” to the non-moving party. Celotex Corp. v. Catrett,
To survive a summary judgment motion, the opposing party must establish a genuine issue of fact .by “citing to particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(1); see also Wright v. Goord,
C. Motion to Amend
“A party may amend its pleading once as a matter of course within ... 21 days after serving it, or ... if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 16(a)(1). “In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). A party’s leave to amend should be granted “absent evidence of undue delay, bad faith or dilatory motive on the part of the mov-ant, undue prejudice to the opposing party, or futility.” Monahan v. N.Y.C. Dep’t of Corr.,
III. Discussion
A. Motion to Dismiss/Motion for Summary Judgment
1. Preclusive effect of the Agreement under Cheeks
The viability of Gaughan’s claims against Rubenstein turns on whether the Agreement between Gaughan and Rubenstein precludes these claims. Relying on the Second Circuit’s decision in Cheeks, Gau-ghan contends that FLSA claims resolved by a pre-litigation, out-of-court settlement agreement cannot bind the parties involved unless either the Department of Labor (“DOL”) or a court had approved the agreement’s terms. Gaughan therefore argues that, because the Agreement was never approved by the DOL or by a district -court, she is not bound by its terms. Rubenstein counters that Cheeks does not apply to the Agreement, because it was entered into before any litigation commenced and thus fall outside Of the purview of Federal Rule of Civil Procedure 41, which is the subject of the Cheeks decision.
For the reasons that follow, the Court agrees with Rubenstein, and holds that Cheeks does not apply to the Agreement. Its terms thus bind Gaughari and require dismissal of all her claims against Ruben-stein.
. Federal Rule of Civil Procedure 41, in relevant part, states that;, “Subject to ... any applicable federal statute, the plaintiff may dismiss an action without a court, order by filing: ... (ii) a stipulation of dismissal signed by all parties who have appeared.” Fed. R. Civ. P. 41(a)(1)(A)(ii) (emphasis added). In Cheeks, the Second Circuit held that “in light of the unique policy considerations underlying the
By its terms, Cheeks thus applies only to settlement agreements that occur within the context of Rule 41. And Rule 41, in turn, does not apply to settlement agreements entered into entirely outside the litigation context, like the Agreement at issue here. Rule 41 applies instead to dismissals, which, a fortiori, cannot occur unless and until an action is commenced in court. Fed. R. Civ. P. 41. Because the Agreement in this case was executed long before Gaughan brought claims in court against Rubenstein, Gaughan cannot rely on Cheeks as a basis to elude Rubenstein’s motion to dismiss.
The Second Circuit has not considered, outside of the context of Rule 41, whether an pre-litigation agreement to settle FLSA claims—or, as here, a broader settlement agreement that waives, among others, FLSA claims—can be binding in the absence of DOL or court approval. Out-of-circuit cases reflect different outcomes.
On the one hand, the Fifth Circuit held, in Martin v. Spring Break '82 Prods., LLC,
On the other hand, the Eleventh Circuit held in Lynn’s Food Stores, Inc. v. United States By & Through U.S. Dep’t of Labor, Employment Standards Admin., Wage & Hour Div.,
Although Martin and Lynn’s Food reach different bottom-line outcomes, the two cases can be reconciled on their vastly different facts, particularly relating to whether the employees had been ably represented at the time they entered into the settlement agreement, as the Second Circuit recognized in Cheeks. See Cheeks,
On these facts, the Fifth Circuit upheld summary judgment for the employer, holding that the employees’
FLSA rights were adhered to and addressed through the Settlement Agreement, not waived or bargained away ... [The] [employees’ union] did not waive FLSA claims, but instead [employees], with counsel, personally received and accepted compensation for the disputed hours. We reiterate that FLSA substantive rights may not be waived in the collective bargaining process, however, here, FLSA rights were not waived, but instead, validated through a settlement of a bona fide dispute, which [the employees] accepted and were compensated for.
Id. at 257. Thus, the Fifth Circuit recognized, given the fairly bargained-for resolution reached between able counsel, there was no basis to nullify the terms of the settlement agreement. The policies animating the FLSA—namely, neutralizing the employer-employee discrepancy in bargaining power and preventing the ignorant waivers of FLSA rights—were not undermined by honoring such an agreement. See id. at 257.
Lynn’s Food is consistent with the distinction Martin drew between bona fide settlement agreements entered into by counseled disputants and agreements arising out of exploitative, or potentially exploitative, arrangements. There, the DOL initiated an investigation that led it to conclude that the employer, Lynn’s Food Stores, Inc. (“Lynn’s”), had violated multiple FLSA provisions, including as to minimum wages and overtime pay.
Affirming the district court’s finding that the settlement agreement was invalid, the Eleventh Circuit emphasized that the employees had “seemed unaware that the [DOL] had determined that Lynn’s owed them back wages under the FLSA, or that they had any rights at all under the statute.” Id. at 1354. The Eleventh Circuit also noted that there was “no evidence that any of the employees [had] consulted an attorney before signing the agreements.” Id. In fact, the court noted, “[s]ome of the employees who signed the agreement could not speak English.” Id. As such, the Eleventh Circuit held, the settlement agreement between Lynn’s and its employees reflected “the sort of practices which the FLSA was intended to prohibit.” Id.
District courts in the Second Circuit have limited Martin to pre-litigation settlements. See Peralta v. Soundview at Glen Cove, Inc.,
[the] primary difference between the Lynn’s Food'and [Martin] standards is the timing of the judicial scrutiny. The Fifth'’Circuit scrutinized the agreement ... at some point after the parties entered it once a question arose over the settlement’s enforceability.- Thus, [Martin] stands for retrospective scrutiny to determine the agreement’s enforceability ex post. ... In contrast, the Lynn’s .Food standard is applied prospectively to approve the agreement ex ante.
Id.
A- key question here, then, is how this case aligns with these precedents. The Court’s assessment, upon due consideration, is that the circumstances of the agreement here are fairly analogous to those in Martin. As in Martin, the settlement agreement waiving rights under the FLSA in return for a significant sum of money was entered into entirely outside the context of litigation, with the employee represented by .counsel. Martin, in fact, distinguished Lynn’s Food on those grounds, emphasizing that (1) “the dispute in Lynn’s Food Stores had arisen as a result ,of a [DOL] investigation;” (2) the employees in Lynn’s Food had no- idea-they were owed wages pursuant to the FLSA; and (3) the employees never retained an attorney. Martin, 688 F.3d at n.10. And, as in Martin but unlike in Lynn’s Food, Gaughan was made aware of her FLSA rights. Indeed, her pre-settlement demand letter to Rubenstein, prepared by her counsel, sought the FLSA remedies of-back pay and liquidated damages. And the significant consideration obtained by Gaughan further refutes the concern expressed in Lynn’s Food that the employee relinquishing her FLSA rights have been exploited. Gaughan’s demand letter 'to Rubenstein sought $34,847.04, and, after months of negotiation, she agreed to accept $18,000 in exchange for releasing her claims. Gaughan Aff., Exs. H, R, N; Agreement ¶¶ 1.1, 8.1. Rubenstein also agreed to relinquish any claim she had against Gaughan for unpaid legal fees. Agreement ¶ 1.7. Far from being exploited, the counseled Gaughan thus obtained substantial value.
The Court therefore upholds as consistent with the FLSA Gaughan’s pre-litigation settlement agreement with Ruben-stein. There is no reason to view that agreement as the product of one-sided-bargaining. And to hold otherwise, given the procedural and substantive indicia of fairness present here, would inhibit productive settlements. It would effectively require that any parties, even ably counseled plaintiffs, wishing to settle an FLSA dispute out-of-court without bringing suit, obtain judicial or agency approval for their settlement. The Court is unawaré of no charter for -imposing such a requirement
2. Duress and Lack of Approval and Communication
In opposing Rubenstein’s motion to dismiss based on the settlement agreement,, Gaughan claims for the first time that she had been under “duress” when she signed the Agreement. She claims that her counsel, V & A, did not discuss the
Even taking these factual allegations as true, they fall short of the showing duress so as to warrant voiding the Agreement. See, e.g., McIntosh v. Consolidated Edison Co.,
one of three circumstances must be present: duress by physical compulsion, duress by threat, or duress by undue influence. Duress may not be found merely from the existence of a difficult bargaining position or the pressure of financial circumstances. To succeed on a theory that an agreement was procured by duress, a plaintiff must show that he was compelled to agree to its terms by way of wrongful and oppressive conduct that precluded the plaintiff from the exercise óf his own free will.
Id. Gaughan, however, does not allege facts supporting that V & A placed her under duress. She does not claim that V & A physically compelled or threatened her to execute the Agreement or engaged in “wrongful and oppressive conduct” that prevented Gaughan from “the exercise of [her] own free will.” Rather, in vague and conclusory fashion, Gaughan states only that “she felt pressured to sign the documents.” Pl. Br. at 31. And Gaughan’s unremarkable correspondence with V & A also reveals no sign of improper compulsion.
Nall v. Mal-Motels, Inc.,
The Court therefore rejects Gaughan’s claim of duress because the facts on which it is based are legally insufficient to show duress.
3. Release Provision of the Agreement
Gaughan also asserts that the Agreement’s release provision is overly broad
In any event, the record reveals consideration for a broader release by Gaughan. Apart from having employed Gaughan, Rubenstein had served as her attorney in divorce proceedings. Under the Agreement, Rubenstein forewent claims against Gaughan for unpaid legal fees. That supplied consideration for a release by Gaughan of claims under than under the FLSA.
B. The Report
In reviewing a Report and Recommendation, a district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). When a party makes specific objections' to a magistrate’s findings, the district court must make a de novo determination as to those findings. Id. § 636(b)(1). However, if a party “makes only conclusory or general objections, or simply reiterates the original arguments, the Court will review the Report strictly for clear error.” Pinkney v. Progressive Home Health Servs., No. 06 Civ. 5023 (LTS) (JCF),
In her Objection, Gaughan objects to three of Judge Parker’s recommendations, namely, to deny Gaughan’s motion to amend her Complaint to add, against Rad-wan, (1) a claim for a hostile work environment under NYCHRL, (2) claims for disability discrimination under NYCHRL, NYSHRL, and the ADA, and (3) retaliation claims under NYCHRL and NYSHRL. Gaughan’s objections are largely conclusory, and arguably justify review only for clear error, see id. However, out of solicitude for Gaughan, the Court examines these objections under the more generous de novo standard. As to each, the Court finds Gaughan’s objections unpersuasive, and adopts Judge Parker’s Report in its entirety.
1. NYCHRL Hostile Work Environment Claim
Judge Parker denied Gaughan’s motion to add an NYCHRL hostile work environment claim against Radwan. To establish such a claim, the NYCHRL, unlike federal law, does not require the employer’s conduct to have been severe or pervasive; the plaintiff must instead demonstrate that she was treated “less well” than other employees on account of a protected characteristic. Williams v. N.Y.C. Hous. Auth.,
Gaughan objects to this recommendation on multiple grounds, largely based on new factual claims. Gaughan now asserts that Radwan told her that she was “superior” to Gaughan in every way but two: level of physical attractiveness and ability to inter-personally communicate. Objection at 2. Gaughan further now claims that Radwan often “made hostile overtures” toward Gaughan, “grabbed [Gaughan’s] personal belongings out of her hands,” and instilled discomfort in Gaughan by “dictating ... [to Gaughan] what to write regarding certain clients[’] state of mind when witnessing will signatures.” Id. Radwan acted this way, Gaughan now contends, while aware that Gaughan was in a vulnerable state as a result of her cancer, her autoimmune disease, and her abusive ex-husband. Id.
Gaughan also now claims that Radwan exploited her “physical attributes for [Rubenstein’s] and Radwan’s personal and business gains,” despite knowing that Gaughan had suffered from anorexia and body dysmorphia. Id. at 2-3. For example, Rad-wan had Gaughan call a “male administrative clerk at the Surrogates Court in New York County and ask how to serve papers on an incarcerated individual because [Radwan] believed that the clerk would respond to [Gaughan] because he found her attractive.” Id. at 5. Radwan also allegedly had Gaughan contact officers at Kings County Surrogate Court—whom Gaughan claims were physically attracted to Gau-ghan—to discover the marital status and age of a clerk to whom Radwan was attracted. Id. Gaughan also alleges that Rad-wan once called Gaughan in the middle of the night for several hours to reflect upon an affair Radwan was having. Id. at 4.
In her objections, Gaughan asserts that, as to male occupants of the office, Radwan never invaded their personal body spaces, acted aggressively towards them or instilled discomfort in them, or solicited them. Id. at 3, 5. In contrast, Gaughan now asserts, Radwan often berated Gaughan when she answered the phone by stating, “Lee Rubenstein’s office” without mentioning Radwan’s name. Id. at 3. Gaughan alleges that Radwan did not treat Ruben-stein’s son, who worked in the office as a receptionist, in this manner Id. Finally, Gaughan now states, Rubenstein acknowledged Radwan’s hostile behavior toward Gaughan, stating that Radwan had subjected Gaughan to Radwan’s “angry mood swings.” Id. at 4.
The Court declines to permit Gaughan to bring this claim against Radwan based on these post-Report factual allegations. Gaughan’s proposed Third Amended Complaint (“TAC”) had made no claim of discrimination on the basis of gender, or, for that matter, any other protected characteristic. The Court declines to credit these belated factual allegations as a basis to not heed Judge Parker’s Report. See, e.g., Frankel v. N.Y. State Office of Children & Family Servs.,
2. Disability Discrimination
A prima fade failure-to-accommodate claim under the NYSHRL and NYCHRL requires a plaintiff to show that:
Judge Parker recommended that Gau-ghan not be permitted to add NYSHRL and NYCHRL failure-to-accommodate disability discrimination claims against Rad-wan because “the TAC is silent as to whether [Gaughan’s] alleged disabilities affected her ability to move files in the office”—a task that was the foundation of Gaughan’s disability claims. Report at 22. Thus,,the Report stated, Gaughan “failed to plead facts establishing that she required a reasonable accommodation due to her disabilities in order to carry out the requested task.” Id. Furthermore, the Report noted, the TAC does not allege that Gaughan had requested from Radwan a disability accommodation or that Gaughan had required a disability accommodation to move files or boxes. Id. Instead, the TAC asserted only that Radwan had been aware of Gaughan’s severe medical state. Id. Finally, the Report noted, the TAC does not allege that Radwan ever denied any request for accommodation. Id.
As for Gaughan’s motion to add 'an ADA claim against Radwan, Judge Parker denied that motion because the ADA does not provide for individual liability. Id. at 11.
Gáüghan now objects to Judge Parker’s recommendation that she not be allowed to add claims of disability discrimination, claiming that Radwan knew of her medical conditions, yet “shrugged” when Gaughan complained to her regarding Rubenstein’s requests that Gfaughan clean out storage units and remove heavy boxes from Ru-benstein’s office. Objection at 6.
This objection does not carry the day, because it fails to cure a fatal defect that the Report noted in Gaughan’s proposed failure-to-accommodate claims under NYCHRL and NYSHRL, to wit, that Gau-ghan fails to adequately allege either a request or a need for accommodation from Radwan due to Gaughan’s alleged disabilities. On its de novo review of the Report, the Court is persuaded—for substantially the reasons set forth above* and in the Report—that Gaughan’s claims under the NYCHRL, the NYSHRL, and the ADA are futile and that Gaughan should not be permitted to add them here. The Court therefore adopts the Report as to these claims, and denies Gaughan’s motion to add failure-to-accommodate claims against Radwan under the NYCHRL, NYSHRL, and the ADA.
3. Retaliation Claims
To state a prima facie claim for retaliation under the NYSHRL, a plaintiff must demonstrate: “[i] participation in a protected activity known to defendant; [ii] an employment action disadvantaging the plaintiff; and [iii] a causal connection between the protected activity and the adverse employment action.” Anderson v. Davis Polk & Wardwell LLP,
Judge Parker recommended that Gau-ghan’s motion to ,add NYSHRL and NYCHRL retaliation claims against Rad-wan be denied, because, as pled, Gaughan
In objecting to these recommendations, Gaughan states that Radwan “would approach [Gaughan] menacingly” when Gau-ghan resisted requests that made her uncomfortable, such as asking Gaughan to use her feminine attributes for Radwan’s personal benefit. Objection at 8. And to fortify her claim of causation, Gaughan now asserts that “each time [she] complained directly to [Rubenstein] or other tenants in the suite, [her] pay was withheld and as this Court is aware, Radwan never compensated [her].” Id.
Reviewing the. issue de novo, the Court denies Gaughan’s motion to add retaliation claims against Radwan. Gaughan’s objections are ultimately unresponsive to Judge Parker’s sound legal conclusions. They also are largely based on new assertions of fact, improper at this stage. In any event, Gau-ghan has failed to allege participation in a protected activity, as defined under NYCHRL, or retaliation in response. Judge. Parker was also correct to note that, for much the same reasons, Gaughan .cannot sustain retaliation claims under the FLSA and NYLL. These claims, too, cannot proceed in the TAC.
4. The Remainder of the Report
With regard to the remainder of Judge Parker’s Report, to which Gaughan has not objected, review for “clear error” is appropriate. See Ruiz v. Citibank, N.A., No. 10 Civ. 5950 (KPF),
Careful review of Judge Parker’s thorough and well-reasoned Report reveals no facial error in its conclusions; therefore, the Report is adopted in its entirety. The Court recognizes that to the extent that the Report permits Gaughan to amend her Complaint to add claims against Ruben-stein—against whom the Court has dismissed Gaughan’s Complaint entirely based on the • settlement agreement—that aspect' of the Report is now moot. But, for the reasons set forth in the Report, the Court will allow Gaughan to pursue her claims against Radwan for: (i) unpaid-minimum wages; (ii) unpaid overtime wages; (iii) unpaid spread-of-hours compensation; (iv) failure to provide wage notices; and (v) untimely payment of wages.
CONCLUSION
For the foregoing reasons, the Court (1) dismisses Gaughan’s Complaint with prejudice as against Rubenstein, and (2) grants in part., and denies in part, Gaughan’s motion to amend the Complaint to add claims against Radwan.
The Court directs the Clerk to terminate the motions pending at docket numbers 11, 13, 20, and 33, and to mail -a copy
SO ORDERED..
OPINION, REPORT AND RECOMMENDATION
TO: THE HONORABLE PAUL A. EN-GELMAYER, United States District Judge
Plaintiff Aylin Gaughan, proceeding pro se, brings this action against Defendant Lee Rubenstein (“Rubenstein”) alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., and the New York Labor Law (“NYLL”), breach of contract, disability discrimination, and commission of various common law torts.
Plaintiff now moves for leave to amend the Complaint pursuant to Federal Rule of Civil Procedure 15. Plaintiffs Proposed Third Amended Complaint (“TAC”) adds a new defendant, Jennifer Radwan (“Rad-wan”) (collectively with Rubenstein, “Defendants”), and asserts additional facts and causes of action against both Defendants. Both Plaintiff and Radwan also ask the Court to strike certain portions of the record in this action. As set forth herein, this Court recommends that Plaintiffs motion for leave to amend be denied in part. Additionally, as stated below, this Court grants Plaintiffs motion to amend in part, denies Plaintiffs motion to strike, and grants Radwan’s request to strike in part.
BACKGROUND
A. Procedural History
On October 13, 2016, Plaintiff commenced this action against Rubenstein alleging a number of wage claims under the FLSA and NYLL. (Doc. No. 2.) When construed liberally in light of Plaintiffs pro se status, Plaintiffs 73-page Complaint also appears to assert claims for negligence, unjust enrichment, breach of fiduciary duty, breach of contract, fraud, and discrimination on the basis of disability against Rubenstein.
On January 24, 2017, Rubenstein filed a motion for summary judgment or, alternatively, to dismiss the Complaint in its entirety. (Doc. Nos. 11-17.) Rubenstein argues that Plaintiffs claims are barred by a prior settlement agreement in which Plaintiff released all claims against him and that the Complaint otherwise fails to state a claim. Plaintiff opposed Rubenstein’s motion on February 8, 2017. (Doc. Nos. 18-19.) This motion is currently pending.
On February 21, 2017, Plaintiff filed a motion for leave to amend the Complaint. (Doc. Nos. 20-21.) Plaintiffs Proposed Amended Complaint asserted new facts and causes of action against Rubenstein, and also sought to add a new defendant, Radwan. On March 10, 2017, Radwan submitted an affirmation in opposition to Plaintiffs motion for leave to amend. (Doc. No. 27; see also Doc. No. 29.) Radwan argues that Plaintiff should not be permitted to amend the Complaint to add her as a defendant because Plaintiff cannot state a federal cause of action against her. Therefore, Radwan contends, amendment would be futile. As an alternative, if amendment is allowed, Radwan asks the Court to strike certain irrelevant and personally embarrassing allegations recited in Plaintiffs Proposed Amended Complaint.
On March 21, 2017, Plaintiff filed a second motion for leave to amend the Complaint and proffered the TAC. (Doc. Nos. 33-34.) No second amended complaint was ever filed. Because the TAC represents the most recent proposed amended pleading, it supersedes the previously proffered pleading and is the pleading addressed in this decision.
• retaliation and hostile work environment in violation of Title VII, 42 U.S.C. § 2000e-2, against both Defendants;
• discrimination on the basis of disability in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., against Radwan;
• retaliation and hostile work environment in violation of the New York State Human Rights Law (“NYSHRL”) and New York City Human Rights Law (“NYCHRL”) against both Defendants;
• discrimination on the basis of disability in violation of the NYSHRL and NYCHRL against Radwan;
• intentional infliction of emotional distress against both Defendants;
• retaliation in violation of the FLSA and NYLL against both Defendants;
• violations of the FLSA and NYLL against Radwan, including for unpaid minimum wage, unpaid overtime compensation, unpaid spread-of-hours compensation, recordkeeping and notice violations, failure to make timely wage payments, and for holiday, sick, and vacation pay;
• fraud against Radwan; and
• tortious interference with contract against Rubenstein.
Plaintiffs March 21, 2017 motion also summarily requests that the Court strike all of Radwan’s submissions to the Court pursuant to Federal Rule of Civil Procedure 12(f). Neither Rubenstein nor Rad-wan filed an opposition to Plaintiffs March 21, 2017 motion for leave to amend, but this Court has considered points raised by Radwan in her March 10 submission in reaching its decisions herein.
B. Allegations In The TAC
Rubenstein is the “owner, principle and manager of The Law Office of Lee A. Rubenstein.” (TAC ¶ 12.) Plaintiff worked for Rubenstein in an administrative/paralegal capacity from approximately June or July 2013 to July 2015. (TAC ¶¶ 32, 243; see also Doc. No. 18, ¶ 4.) Rubenstein also served as Plaintiffs lawyer in connection with two legal proceedings. (TAC ¶¶22, 32.) Rubenstein and Radwan share an office suite, along with at least one other attorney. Radwan performs some work as an associate for Rubenstein’s law practice, but also maintains her own separate private practice. (TAC ¶¶ 305-06.) Radwan contributes to the rent for the office suite and other office expenses. (TAC ¶306.)
During the course of Plaintiffs employment, she worked for Rubenstein’s and Radwan’s joint practice, as well as for their separate private practices. For Ru-benstein, Plaintiffs work included: listening to CLE courses in the evenings (TAC ¶ 83), typing discovery requests (TAC ¶¶ 430-32), paying his bills (TAC ¶97), taking notes in court (TAC ¶ 270), escorting his children around New York City (TAC ¶¶ 164, 179, 181, 301), and a variety of other tasks. Plaintiff served subpoenas and delivered documents in inclement weather, at night, and under other dangerous circumstances. (TAC ¶¶ 90-94, 101, 119-20, 199-205.) Rubenstein did not ask his son, who worked in the office as a receptionist for a period of time, to perform similar tasks. (TAC ¶¶ 178-82, 425.)
Although Rubenstein told Plaintiff upon hire that she would be paid. $17.60 per hour (TAC ¶ 37; see also Doc. No. 2, Ex. A), she was only paid $3.67 per hour in 2013 (TAC ¶ 37); approximately $4.16 per hour in 2014 (TAC ¶42); and $6.25 per hour in 2016. (TAC ¶ 44.) At various times, Plaintiff worked for Defendants six or seven days per week and for 10- to 14-hours per day, which included late nights, weekends, and holidays. (TAC ¶¶ 38, 42, 89, 96, 102, 132, 169, 174-75, 287, 405, 421, 432.) Plaintiff contends she was “frequently not allowed to take a full 30-minute uninterrupted lunch break.” (TAC ¶ 96.) Plaintiff asserts she did not receive overtime pay, spread-of-hours compensation, holiday pay or other paid time off throughout the entirety of her employment. (TAC ¶¶ 38, 39, 45.) Rubenstein also allegedly failed to pay Plaintiff in a timely manner, .including by withholding her paychecks or forward-dating the checks so they, could not be immediately cashed. (TAC ¶¶ 45, 105, 128, 185-88, 191, 243-44, 408.)
Plaintiff complained to Radwan, Ruben-stein, and others about her unlawful wages and untimely paychecks, but her complaints were ignored. (TAC ¶ 444,128,185, 382.) Based upon the number of hours that Plaintiff worked and using the agreed-upon straight-time rate of $17.50 .per hour, Plaintiff claims she should have been paid $78,890, inclusive of overtime compensation, over the duration of her employment, but that she only was paid $20,600. (TAC ¶¶ 71, 73.)
Plaintiff also asserts that Defendants failed to provide her with wage notices or statements upon hire or at any other point during her employment, and failed to keep proper records regarding her employment. (TAC ¶¶ 47, 58, 60, 64, 241, 247.) According to Plaintiff, Defendants misclassified and misrepresented Plaintiffs employment to various governmental agencies, including the Internal Revenue Service and New. York Workers’ Compensation Board. (TAC ¶¶ 67-68, 477, 482, 484.) As a result, Plaintiff did not receive workers’ compensation, unemployment, or disability benéfits. (TAC ¶ 485.)
In addition, Plaintiff complains that Defendants were often rude to her and mistreated her in a variety of other ways, including, inter alia:
• Rubenstein failed to maintain a sanitary office environment. As a result, Plaintiff, who suffers from a compromised immune system and other disabilities, was forced to endanger her health by working in a “toxic and hazardous environment” with a “constant dead mouse smelí.” (TAC ¶¶ 139-43, 23-24, 90, 93.) Plaintiff complained about this environment to Radwan, Rubenstein, and other tenants of the office suite (TAC ¶¶ 143, 444);
• In 2013, Rubenstein told Plaintiff that he was attracted to her during a phone call (TAC ¶ 264);
• Rubenstein told Plaintiff that , Rad-wan was ,the “smart one” whereas Plaintiff was the “pretty one,” and, as such, he relied on Plaintiff to use her looks to carry out certain tasks, , such as serving subpoenas, obtaining sealed files, or appearing with him incourt in front of male jurists (TAC ¶ 275);
• Rubenstein asked her to use her “feminine wiles” to obtain information from court personnel on numerous occasions (TAC ¶ 295);
• Rubenstein came to Plaintiffs home when she was sick and refused to leave, despite Plaintiff hinting that she wanted to rest (TAC ¶¶ 322-27);
• Radwan grabbed Plaintiffs cell phone out of Plaintiffs hand in court, which caused a fight between Rad-wan and Plaintiff (TAC ¶¶ 337-42);
• Radwan sometimes yelled for Plaintiff to come into her office rather than walk over to her to speak (TAC ¶¶ 353-55); and
• On one occasion, Radwan stepped into the office where Plaintiff was working, closed the door, and “aggressively invaded Plaintiffs space” to insist that they speak (TAC ¶¶ 361-68);
• Radwan complained that Ruben-stein’s files were encroaching her work space and told Plaintiff to move the heavy files, even though Radwan knew that Plaintiff suffered from physical limitations. (TAC ¶ 355.)
On June 18, 2015, Plaintiff and Ruben-stein got into an argument after Plaintiffs personal computer was damaged by a corrupt file Rubenstein had asked her to load. (TAC ¶¶ 214-18.) During this argument, Rubenstein told Plaintiff that he no longer trusted her and was terminating her employment. (TAC ¶219.) Rubenstein also said that he blamed Plaintiff for the fact that he was named as a third-party defendant in a legal malpractice suit. (TAC ¶447.) On Plaintiffs last day of employment, July 31, 2015, Rubenstein . paid Plaintiff in two checks, but instructed her that she could not cash them immediately and dated them for five days in the future. (TAC ¶243.) Rubenstein refused to give Plaintiff a third check for additional amounts owed. (TAC ¶¶ 243-44, 249-50, 452.)
After Plaintiffs termination, Ruben-stein approached Andrew Hoffman, an attorney who shared office space with Defendants and also represented Plaintiff in a malpractice action, for legal advice regarding Plaintiffs threatened wage-and-hour claims. (TAC ¶ 453.) Hoffman subsequently told Plaintiff that he could no longer represent her due to the tension created by Rubenstein approaching him in the office. (TAC ¶453.),Another attorney representing Plaintiff in a .legal malpractice action also withdrew as counsel after Rubenstein’s counsel contacted the attorney and told him that representing Plaintiff may result in a malpractice action against him. (TAC, ¶ 460.)
DISCUSSION
I. LEGAL STANDARD
A. Motion to Amend
Under Rule 15(a) of the Federal Rules of Civil Procedure, “a party may amend its pleading once as a matter of course within ... 21 days after serving' it, or .. if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed.' R. Civ. P. 15(a)(1). “In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). The Second Circuit has stated that “[t]his permissive standard is consistent with our strong preference for resolving disputes on the merits.” Williams v. Citigroup Inc.,
In assessing whether a plaintiff has stated a claim under Rule 12(b)(6), a court must accept all factual allegations in the complaint as true and draw all inferences in the plaintiffs favor. Cruz v. Beto,
This same pleading standard applies to both counseled and pro se complaints. See Legeno v. Corcoran Grp.,
B. Motion to Strike
Under Federal Rule of Civil Procedure 12(f), court may “strike from a pleading ... any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “Federal courts have discretion in deciding whether to grant motions to strike.” Orientview Techs. LLC v. Seven For All Mankind, LLC, No. 13-cv-0538 (PAE),
II. PLAINTIFF’S MOTION FOR LEAVE TO AMEND THE COMPLAINT
Plaintiff seeks leave to amend her Complaint to assert an array of new claims against Rubenstein, Radwan, or both Defendants jointly. Plaintiff argues that amendment should be permitted under the liberal Rule 15 standard because her request to amend was made in a timely manner, Defendants will not be prejudiced by amendment, and amendment is not futile. Defendants apparently concede that Plaintiffs proposed amendments are not untimely or prejudicial. And while Radwan summarily argues that amendment would be futile as to the federal claims that Plaintiff seeks to advance against her, Defendants have not meaningfully addressed whether the majority of the new claims asserted in the TAC'plausibly state a claim for relief. Nevertheless, because the Court has the inherent authority to dismiss mer-itless claims sua sponte, this Court has assessed whether amendpient would be futile as to each new claim that Plaintiff seeks to add in the TAC. Fitzgerald v. First E. Seventh St. Tenants Corp.,
A. Title VII And ADA Claims
The TAC seeks to add claims of retaliation and hostile work environment in violation of Title VII against both Defendants. The TAC also appears to assert a new claim for disability discrimination under the ADA against Radwan.
Plaintiff cannot state a claim against Defendants under either Title VII or the ADA because neither statute provides for individual liability. See, e.g., Tomka v. Seiler Corp.,
Radwan also argues that Plaintiff cannot state a claim under Title' VII or the ADA
Accordingly,-the Court recommends that Plaintiffs motion to amend the Complaint to add claims under Title VII and the ADA be denied with prejudice.
B. Hostile Work Environment Under The NYSHRL And NYCHRL Against Both Defendants
The TAC appears to allege that both Defendants subjected Plaintiff to a hostile work environment in violation of the NYSHRL and NYCHRL,
To state a claim for hostile work environment under the NYSHRL, a plaintiff must establish that “her workplace is permeated ' with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Lenart v. Coach, Inc.,
The standard for maintaining a hostile work environment claim is lower under the NYCHRL than under the NYSHRL and Title VII. This is because the NYCHRL was intended to be more protective than its state and federal analogs. Farrugia v. N. Shore Univ. Hosp.,
1. Plaintiff’s Hostile Work Environment Claims Against Rubenstein
In support of her hostile work environment claim against Rubenstein, Plaintiff alleges that he: (i) told Plaintiff that he was attracted to her on one occasion over the phone (TAC ¶ 264); (ii) stated that Radwan was the “smart one” and Plaintiff was the “pretty one” and, as such, relied on Plaintiff to perform tasks where she could use her appearance to gain an advantage, such as by accompanying Rubenstein to court when he was appearing in front of a male jurist (TAC ¶ 275); (iii) frequently asked Plaintiff to use her. “feminine wiles” to obtain information from court personnel (TAC ¶ 296); and (iv) came to her home uninvited to bring her food when she was sick and refused to leave, despite her hints that she wanted to rest. (TAC ¶¶ 322-24.) The TAC also alleges that Rubenstein demanded Plaintiff perform tasks that she deemed to be inappropriate, such as delivering and serving documents under potentially dangerous conditions, forcing her to work late nights, weekends and holidays, and requiring her to escort Rubenstein’s children around New York City. Plaintiff contends that Rubenstein did not ask his son, who also worked in the office during breaks from college, to perform these types of tasks. Plaintiff further alleges that Rubenstein was rude and yelled at her and others on numerous occasions.
These allegations are insufficient to support an inference that Plaintiff faced discriminatory harassment “of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse.” Patane v. Clark,
Only the four allegations summarized above—out of myriad allegations—could conceivably be, construed as touching upon Plaintiffs gender, and this Court finds that those allegations are insufficient to state a hostile work environment claim under the NYSHRL, First, none of the alleged incidents are -sufficiently severe to create an objectively hostile environment. See, e.g., Petrosino v. Bell Atl.,
Under the more lenient NYCHRL standard, however, Plaintiffs allegations are sufficient—though just barely—to plausibly state a claim for hostile work environment. Although Plaintiff does not explicitly allege that she was treated less well than other employees, she does qssert that Rubenstein demanded that she serve subpoenas and deliver documents under dangerous conditions, but that he did not ask a male employee who also worked in an assistant capacity—his son—to carry out similar tasks. (TAC ¶ 425.) This allegation, coupled with Rubenstein’s alleged remarks about Plaintiffs appearance and using her femininity to successfully carry out certain job responsibilities, creates a minimal inference that Plaintiff was subject to differential treatment on the basis of her gender. See Williams v. Rosenblatt Secs. Inc., No. 14-cv-4390 (JGK),
Accordingly, this Court recommends that Plaintiffs request to add a hostile work environment claim under the NYSHRL against Rubenstein be denied. This Court grants Plaintiffs motion to amend the Complaint to assert a hostile work environment claim in violation of the NYCHRL against Rubenstein.
2. Plaintiff’s Hostile Work Environ- , ment Claims Against Radwan
Plaintiffs hostile work environment claims against Radwan are premised on allegations that Radwan: (i) grabbed Plaintiffs cellphone out of Plaintiffs hand and caused a scene in court (TAC ¶¶ 335-42); (ii) yelled for Plaintiff when she wanted her attention (TAC ¶¶ 353-55); (iii) “aggressively invaded Plaintiffs personal space” and insisted that they talk about a will signing that Plaintiff had witnessed (TAC ¶¶ 358-68); (iv) reworded Plaintiffs description of a testator’s state of mind as part of a note to file (TAC ¶¶ 386-87); and (v) got upset with Plaintiff or acted rudely towards her at various times.
These allegations are insufficient to plausibly state a claim for hostile work environment under the NYSHRL because Plaintiff fails to tie these actions to her gender or any other protected characteristic. The TAC does not set forth any basis upon which it even could be inferred that Radwan’s conduct was motivated by a discriminatory animus. See Feliciano v. City of New York, No. 14-cv-6751 (PAE),
For the same reason, Plaintiff has failed to plead a colorable claim for hostile work environment under the NYCHRL against Radwan. While the NYCHRL is more lenient than its state law counterpart, it “is not a general civility code, and a defendant is not liable if the plaintiff fails to prove the conduct is caused at least in part by discriminatory or retaliatory motives.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc.,
C. Retaliation Under The NYSHRL And NYCHRL Against Both Defendants
Plaintiff appears to allege in the TAC that Defendants retaliated against her in violation of the NYSHRL and NYCHRL. To state a prima facie retaliation claim under the NYSHRL, Plaintiff must show: “[i] participation in a protected activity known to the defendant; [ii] an employment action disadvantaging the plaintiff; and [iii] a causal connection between the protected activity and the adverse employment action.” Anderson v. Davis Polk & Wardwell LLP,
Under both the NYSHRL ‘ and NYCHRL, “protected activity” includes any “action taken to protest or oppose statutorily prohibited discrimination.” Fernandez v. Windmill Distrib. Co.,
The NYSHRL and NYCHRL also require that a plaintiff “plausibly plead a connection between the act and [her] , engagement in protected activity.” Vega v. Hempstead Union Free Sch. Dist.,
The TAC is unclear as to what Plaintiffs protected activity was. The TAC alleges that Defendants retaliated against' her after she complained to Radwan, Hoffman, and other occupants of the office suite about the unsanitary conditions of Rubenstein’s .office, which she claims compromised her health and safety. (TAC ¶¶ 444, 449.) Plaintiff also appears to allege that she complained to Rubenstein that the “toxic hoarding environment with the constant dead mouse smell” negatively affected her health and already-compromised immune system. (TAC ¶¶ 142-44.) But, “in order for a complaint to form the basis of a retaliation claim ... the employer must have understood, or could reasonably have understood, that the plaintiffs opposition was directed at conduct prohibited by the employment discrimination laws.” Mayers,
Even assuming, arguendo, that Plaintiffs complaints constitute protected activity, the TAC does not assert facts to establish a causal connection between her protected activity and any negative consequence. Plaintiff has not alleged any direct evidence of a retaliatory motive, nor has she recited any facts that would support an inference causation, such as by showing a close temporal proximity between the protected activity and Plaintiffs eventual termination.. See Feliciano,
D. Disability Discrimination Under The NYSHRL And NYCHRL Against Radwan
When broadly construed, the TAC arguably asserts a disability discrimination claim against Radwan for failure to -accommodate Plaintiffs disabilities, To establish a prima facie failure to accommodate claim under the NYCHRL and NYCHRL, a plaintiff must demonstrate that: “(1) plaintiff is a person with a disability under the meaning of [the relevant statute]; (2) an employer covered by the statute had notice of his disability; (3) with reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations.” Nieblas-Love v. N.Y.C. Hous. Auth,,
The only allegations Plaintiff makes in ostensible support of her failure-to-accommodate claim against Radwan. are that: (i) Radwan was aware of Plaintiffs disabilities, specifically, “Plaintiffs intolerance to the cold due to autoimmune disease and cancer and that at times Plaintiff became winded and exhausted due to not being able to get enough oxygen due to the severed vocal cord not moving” (TAC ¶315); and (ii) Radwan directed Plaintiff “to move [Rubenstein’s] heavy files despite Plaintiffs physical limitations and Ms, Radwan [being] more than capable of moving the files herself.” (TAC ¶ 355.)
These barebones assertions are insufficient to state a claim-for failure to accommodate under the NYSHRL or NYCHRL. First, the TAC is silent as to whether Plaintiffs alleged disabilities affected her ability to move files' in the office. In other words, Plaintiff has failed to plead facts establishing that she required a reasonable accommodation due to'her disabilities in order to carry out the requested task. Additionally, while the TAC states that Radwan was generally aware that Plaintiff suffered from certain medical conditions, Plaintiff does. .not allege that she ever asked Radwan for a disability accommodation or that Radwan otherwise knew Plaintiffs disabilities necessitated an accommodation in order for Plaintiff to move files. See MacEntee v. IBM,
E. Retaliation Under The FLSA And NYLL Against Both Defendants
Plaintiff next seeks to amend the Complaint to assert a claim for retaliation in violation of the FLSA and NYLL. The FLSA prohibits employers from discharging or otherwise discriminating against any employee “because such employee has filed any complaint ... under or related to this chapter.” 29 U.S.C. § 215(a)(3). The NYLL similarly provides that an employer shall not discharge, threaten, penalize or otherwise discriminate against an employee because she “has made a complaint to his or her employer ... that the employer has engaged in conduct that the employee, reasonably and in good faith, believes violates any provision” of the NYLL. N.Y. Lab. L. § 215(a)(1). Thus, to state a retaliation claim under the FLSA and NYLL, a plaintiff must plead: “(1) participation in protected activity known to the defendant ...; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action.” Mullins v. City of New York,
“[A] causal connection between an adverse action and a plaintiffs protected activity may be established” in either of two ways: “‘by showing that the protected activity was closely followed in time by the adverse action,’ ” Mullins,
Plaintiff alleges that she complained to Rubenstein, Radwan, and other tenants of the office suite about her wage claims, including that she was not paid minimum wage or overtime. (TAC ¶ 444; see also TAC ¶¶ 312-14, 328, 360.) Plaintiff also alleges that she complained to Rubenstein regarding his failure to pay her wages in a timely manner and about the uncompensated work she was performing for Rad-wan. (TAC ¶¶ 128, 185, 382.) These internal complaints about her wage claims are sufficient to establish that Plaintiff engaged in protected activity. See Greathouse v. JHS Sec. Inc.,
In support of the second element of a retaliation claim—an adverse employ
Plaintiffs claim also falters as to the third element of her retaliation claim because Plaintiff has failed to plead any facts plausibly supporting a causal nexus between her complaints about pay and the adverse employment actions she identifies. First, Plaintiff does not identify any direct evidence of a retaliatory motive on the part of Radwan or Rubenstein. While the TAC summarily asserts that Plaintiff believes she was terminated because she objected to Defendants’ pay practices, it is silent as to any factual underpinnings which would substantiate this belief. On the contrary, the TAC states that Ruben-stein terminated her employment after she and Rubenstein had an argument about damage done to Plaintiffs laptop. (TAC ¶¶ 214-23.) According to Plaintiff, during this dispute, Rubenstein told her that he did not want her to continue working for him because he “no longer trusted Plaintiff’ and he blamed her for causing him to become a third-party defendant in a legal malpractice action. (TAC ¶¶ 219, 447.) These stated reasons for firing Plaintiff have nothing to do with Plaintiffs wage complaints.
Plaintiff also cannot demonstrate an inference of retaliation by relying on the temporal proximity between her protected activity and the alleged adverse employment actions because the TAC does not specify when Plaintiff engaged in the alleged protected activity. Based on Plaintiffs vague allegations that she complained about alleged wage violations at some unspecified time during her two-year employment, this Court cannot plausibly conclude that the protected activity was followed closely in time by an adverse act. See Wang v. Palmisano,
For these reasons, the Court recommends that Plaintiffs motion to amend be denied insofar as it seeks to add a retaliation claim under the FLSA and NYLL against Defendants,
F. Wage Claims Under FLSA And NYLL Against Radwan
The TAC appears to seek recovery against Radwan for seven wage-and-hour claims: unpaid minimum wage; unpaid overtime; unpaid spread-of-hours compensation; recordkeeping violations; failure to provide wage notices; untimely payment of wages; and unpaid vacation,. sick; and holiday pay. All of these claims were asserted against Rubenstein in the initial Complaint, but Plaintiff now alleges that Radwan and Rubenstein are both liable for her wage claims because Radwan and Ru-benstein jointly employed her. For example, the TAC specifically asserts that Rad-wan directed Plaintiff to carry out work on behalf of her private practice, such as witnessing wills, delivering documents and performing other tasks, but Radwan did not compensate her for such work. (See e.g., TAC ¶¶ 310-12, 316, 415.)
1. FLSA Enterprise Coverage
In opposition to Plaintiffs motion to amend, Radwan argues that Plaintiffs proposed FLSA claims against her are futile because Radwan’s law practice does not generate enough income to qualify as an “enterprise engaged in commerce” for purposes of triggering coverage under the FLSA. (Doc. No. 27, ¶ 7.) Contrary to Rad-wan’s characterization of the FLSA revenue requirement as “jurisdictional” (Doc. No. 27, ¶7), the prevailing view in this Circuit is that the question of whether enterprise coverage applies goes to the merits of an FLSA cause of action and is not jurisdictional. See, e.g., Li v. Ichiro Sushi, Inc., No. 14-cv-10242 (AJN),
2. Minimum Wage Claims Under The FLSA And NYLL
In the TAC, Plaintiff asserts that she was consistently paid below the federal and state minimum wages. The FLSA requires covered employers to pay employees a minimum wage of $7.26 per hour during the relevant time period. 29 U.S.C. § 206(a)(1). The New York State minimum wage ranged from $7.15 to $8.75 per hour
3. Overtime Claims Under The FLSA And NYLL
Under both the NYLL and FLSA, employers are required to compensate employees for overtime work—that is, work in excess of 40 hours per week—“at a rate not less than one and one-half times the regular rate at which [s]he is employed.” 29 U.S.C. § 207; see also NYCRR § 142-2.2; Dejesus v. HF Mgmt. Servs., LLC,
“[I]n order to state a plausible overtime claim, a plaintiff must sufficiently allege 40 hours of work in a given workweek as well as some uncompensated time in excess of the 40 hours,” which would then entitle the employee to time-and-a-half for excess hours over forty in a particular week. See Lundy v. Catholic Health Sys. of Long Island Inc.,
In Lundy v. Catholic Health Systems of Long Island Inc,, the Second Circuit held that a plaintiff must do more than merely plead that she worked “occasional” overtime to state a claim.
Next, in Nakahata v. N.Y. Presbyterian Healthcare Systems, Inc., the Second Circuit similarly affirmed a dismissal of FLSA and NYLL overtime claims where plaintiffs had pled that they “regularly worked hours both under and in excess of forty per week and were not paid for all of those hours.”
Finally, in Dejesus v. HF Management Services, LLC, the Second Circuit affirmed the dismissal of plaintiffs overtime claims, finding that complaint was “devoid of any numbers to consider beyond those plucked from the statute.”
Whether Plaintiff states a plausible overtime claim under the Lundy, Nakahata, and Dejesus trilogy is a close call, but this Court ultimately finds that Plaintiff has presented sufficient facts to support her claims. The TAC sets forth details about Plaintiff’s position and her hourly rates of pay. It also provides facts regarding Plaintiffs work responsibilities for both Defendants, including allegations about instances when Plaintiff was required to work late in the evening (TAC ¶ 191, 405, 421) and on weekends (TAC ¶¶ 102, 104, 122, 169, 174-75). Plaintiff also asserts that she was denied overtime compensation even though, at various points in her employment, she worked between 6 and 7 days per week, 10- to 14-hour days, and/or 60 hours per week. (See, e.g., TAC ¶¶ 42, 96, 132.) Although Plaintiff fails to identify any single specific week in which she worked more than 40 hours and was denied overtime compensation, the TAC recites a rough estimate of the wages Plaintiff claims to have earned during her employment with Defendants. Specifically, Plaintiff alleges that she was told she would be paid $17.50 per hour (TAC 11.37), meaning that her overtime rate for hours worked in excess of 40 in a week would be $26.25. The TAC further alleges that, based on the number of hours Plaintiff worked, she earned $78,890, but was only paid $20,600. (TAC ¶¶71, 73.) Based on Plaintiffs estimate of her earnings, her hourly rates, her dates of employment, and her allegation that she only took one week off during the course of her employment, this Court is able to calculate that Plaintiff claims to have worked an average of approximately 42.5 hours per week. Thus, accepting Plaintiffs allegations as true, the facts alleged in the TAC are sufficient to “support a reasonable inference that [Plaintiff] worked more than forty hours in a given week.” Nakahata,
4. Spread of Hours Claim Under The NYLL
Under the NYLL, eligible employees are entitled to spread-of-hours compensation, meaning “one hour’s pay at the basic minimum hourly wage rate, in addition to the minimum wage required” for any shift “in which the spread of hours exceeds 10 hours.” NYCRR § 142-2.4. The “spread of hours” refers to “the interval between the beginning and end of an employee’s workday.” NYCRR § 142-2.18. In other words, employers must pay employees for an extra hour of pay at the regular minimum wage for each day that employees work more than ten hours. Azeez v. Ramaiah, No. 14-ev-5623 (PAE),
Here, Plaintiff alleges that she: (i) earned less than the statutory minimum wage (TAC ¶¶ 37, 42, 44); (ii) worked more than 10 hours per day at various times during her employment (TAC ¶¶83, 96, 132); and (iii) she did not receive spread-of-hours pay. (TAC ¶¶ 38, 236.) While these factual assertions are sparse, this Court cannot say that Plaintiff has failed to state a claim for unpaid spread-of-hours compensation as a matter of law and, thus, this Court will allow Plaintiff to advance a claim for unpaid spread-of-hours-compensation against Radwan. See Humphrey v. Rav Investigative & See. Serovs. Ltd.,
The TAC also alleges that Defendants violated the FLSA by failing to maintain records regarding her employment. (TAC ¶47.) The FLSA requires employers to “make, keep, and preserve such records of the persons employed by him and of the wages, hours, and other conditions and practices of employment maintained by him.” 29 U.S.C. § 211(c). 29 U.S.C. § 215 makes it “unlawful” to violate this record-keeping provision of the FLSA. 29 U.S.C. § 215(a)(5). Nevertheless, courts “have repeatedly found that the FLSA does not authorize employees to bring a private action against an employer for failure to abide by the record-keeping requirements of Section 211(c).” Ayala v. Looks Great Servs., Inc., No. 14-cv-6035 (ADS) (SIL),
6. Wage Notice Claims Under The NYLL
Under the NYLL, “[ejvery employer” is required to provide each employee “at the time of hire” with written notice that includes her rate of pay, the basis for that pay rate, the regular pay day designated by the employer, and other related information. N.Y. LAB. L. § 195(1)(a). Employers also are required to provide notice “with every payment of wages” that includes the dates of work covered by that payment, rates of pay, and deductions, among other information. N.Y. LAB. L. § 195(3). Additionally, employers must provide written notice to any terminated employee of her exact date of termination within five days of such termination. N.Y. LAB. L. § 195(6).
The TAC alleges that Plaintiff was not given written wage notices upon hire or at any other time during her employment. (TAC ¶¶ 58-61, 64, 271.) Plaintiff also alleges that she was not given notice of her date of termination. (TAC ¶247.) While Plaintiffs allegations suggest that she believed Rubenstein was responsible for disseminating the notice, not Radwan, Plaintiffs allegations that Radwan and Ru-benstein operated as her joint employers are sufficient to state a claim for notice violations against Radwan at the pleading stage. See Mendez v. U.S. Nonwovens Corp.,
7.Untimely Payment Of Wages Under The FLSA And NYLL
The TAC also alleges that Defendants failed to pay Plaintiff her wages in a timely fashion. Under the NYLL, employers must pay the wages for clerical and other workers “in accordance with the agreed terms of employment, but not less frequently than semi-monthly, on regular pay days designated in advance by the employer.” N.Y. LAB. L. § 191(1)(d). Following an' employee’s termination, the employer must pay the employee’s owed wages “not later than the regular pay day for the pay period during which the termination occurred.” N.Y. LAB. L. § 191(3). While the FLSA does not statutorily prescribe a particular payment schedule, courts have consistently interpreted Section 206(a) of the FLSA to require the prompt payment of wages. See, e.g., Belizaire v. RAV Investigative & Sec. Servs. Ltd.,
Here, Plaintiff alleges that she was not paid in a timely manner and that Rubenstein withheld her paychecks on various occasions. (TAC ¶¶ 45, 105, 128, 185-88, 191, 243-44, 408.) She also alleges that, upon her termination on July 31, 2015, Rubenstein dated 'her paycheck for five days into the future, which precluded her from being able to immediately access her wages. (TAC ¶¶ 105, 243-44.) Accepting Plaintiffs allegations as true, including that Rubenstein and Radwan jointly employed Plaintiff, Defendants’ delay in paying Plaintiff her wages, either by failing to issue paychecks or by forward-dating her' paychecks, violates the prompt payment requirements of the FLSA and NYLL. See Belizaire,
8. Unpaid Vacation Time, Sick Time, And Holiday Pay
Plaintiff also appears to seek recovery for unpaid vacation time, sick time, and federal holiday pay against Radwan. Neither the FLSA nor the NYLL require an employer to provide paid vacation, sick leave or holiday pay. See Sosnowy v. A. Perri Farms, Inc.,
G. Intentional Infliction Of, Emotional Distress Against Both De- . fendants.
The TAC also purports to assert a claim for intentional infliction of emotional distress,. which is premised upon allegations that Defendants mistreated Plaintiff in various ways during the course of her employment.
In New York, claims for intentional infliction of emotional distress are subject to a one-year statute of limitations. See, e.g., Rentas v. Ruffin,
H. Fraud Against Radwan
The TAC also appears to advance a state law fraud claim against Radwan. To state a claim for fraud, a plaintiff must plead facts showing that: “(1) the defendant made a material false statement or omission; (2) the defendant intended to defraud the plaintiff; (3) the plaintiff reasonably relied on the representation or omission; and (4) the plaintiff suffered damage as a result of such reliance.” Mumin v. Uber Techs., Inc.,
Here, Plaintiff does not allege that Radwan made any false statements to Plaintiff directly. Instead, Plaintiff alleges that Defendants committed fraud on the government when they failed to properly classify Plaintiff as an employee, which further resulted in Plaintiff being deprived of workers’ compensation, disability and unemployment benefits that she otherwise would have been entitled to receive. (TAC ¶¶ 484-85.) The fraud claim fails as a matter of law because a plaintiff cannot “establish the reliance element of a fraud claim under New York law by showing that a third party relied on the defendant’s false statements.” Pasternack v. Lab. Corp. of Am. Holdings,
Even if Plaintiff were able to proceed based on third-party reliance, Plaintiff still must satisfy the heightened pleading standard for fraud claims pursuant to Rule 9(b) of the Federal Rules of Civil Procedure. Rule 9(b) requires a plaintiff to “(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent,” Kottler v. Deutsche Bank AG,
I. Tortious Inference Against Ruben-stein
The TAC also seeks to add a new claim of tortious interference with contract against Rubenstein. “The elements of a claim for tortious interference with a contract under New York law are the existence of a valid contract between the plaintiff and a third party, defendant’s knowledge of that contract, defendant’s intentional procurement of the third-party’s breach of the contract without justification, actual breach of the contract, and damages resulting therefrom.” Makhoul v. Watt, Tieder, Hoffar & Fitzgerald, L.L.P.,
Plaintiff accuses Rubenstein of interfering with her relationships with two attorneys who were representing her in different matters. She first claims that Ru-benstein approached Hoffman, who worked in Rubenstein’s office suite and who also was representing Plaintiff in a malpractice action, for advice about defending against Plaintiffs threatened wage claims. (TAC ¶ 453.) According to Plaintiff, Hoffman subsequently told Plaintiff that he could not vigorously represent her because of the tension created by Rubenstein approaching him in the office. (TAC ¶ 454.) Plaintiff further alleges another unspecified attorney filed a motion to withdraw as Plaintiffs counsel in a legal malpractice action after Rubenstein’s counsel told Plaintiffs counsel that Plaintiff was untrustworthy and might bring a malpractice claim against him. (TAC ¶ 460.)
These vague allegations appear to be little more than mere suspicions that are inadequate to support a claim for tortious interference. See Nadel v. Play-By-Play Toys & Novelties, Inc.,
III. REQUESTS TO STRIKE
There are also two requests to strike portions of the record pending before this Court—(1) Plaintiffs motion to strike all of Radwan’s filings, and (2) Radwan’s request to strike certain embarrassing and harassing portions of Plaintiffs proposed amended pleadings.
Beginning first with Plaintiffs request, Plaintiff summarily asserts that Radwan’s affirmation in opposition to Plaintiffs motion to amend and other filings are improper and unauthorized and, as such, should be stricken from the record. As a threshold matter, Rule 12(f) only pertains to the striking of pleadings, not to motion papers or other submissions. See Katz v. Mogus, No. 07-cv-8314 (PKC) (KNF),
Radwan asks the Court to strike certain allegations that are personal, embarrassing, inflammatory and irrelevant from any amended pleading. Radwan provided the Court with a redacted version of the Proposed Amended Complaint, which conceals the allegations that she deemed to be improper. The Court declines to adopt Rad-wan’s proposed redactions as a whole, however, because some of the requested redactions encompass allegations that are at least tangentially related to Plaintiffs claims in this litigation. See Schoolcraft,
IY. LEAVE TO AMEND
In accordance with the special solicitude afforded to pro se litigants, this Court recommends that Plaintiff be given the opportunity to further amend the TAC to correct the pleading deficiencies in the claims that this Court has recommended be dismissed. See Tracy,
In deciding whether to seek leave to file a Fourth Amended Complaint, Plaintiff should be mindful of the deficiencies in her claims, as identified above. To the extent that Plaintiff opts to file an amended pleading, she must ensure that the allegations stricken by the Court in the TAC do not appear in the Fourth Amended Complaint. This Court recommends that Plaintiff be required to seek leave to file a Fourth Amended Complaint, if any, within 30 days and that her failure to do so will preclude her from seeking leave to replead the claims found to be fqtile by this Court at a later time.
Further, before seeking leave to file a Fourth Amended Complaint, Plaintiff is strongly encouraged to consult a new legal clinic opened in this District to assist people who are parties in civil cases and do not have lawyers. The Clinic is run by a private organization called the New York Legal Assistance Group; it is not part of, or run by, the Court. The Clinic is located in the Thurgood Marshall United States Courthouse, 40 Centre Street, New York, New York, in Room LL-22, which is just inside the Pearl Street entrance to that Courthouse. The Clinic is open on weekdays from 10 a.m. to 4 p.m., except on days when the Court is closed. A party without legal representation can make an appointment in person or by calling 212-659-6190.
CONCLUSION
For the foregoing reasons, this Court respectfully recommends that Plaintiffs motion for leave to amend (Doc. No. 33) be
This Court grants Plaintiffs motion for leave to amend (Doc. No. 33) with respect to the following claims: (i) hostile work environment in violation of the NYCHRL against Rubenstein; (ii) unpaid minimum wage against Radwan; (iii) unpaid overtime against Radwan; (iv) unpaid spread-of-hours. compensation against Radwan; (v) failure to provide wage notices against Radwan; and (vi) untimely payment of wages against Radwan. The Court further denies Plaintiffs motion to strike (Doc. No. 33), and grants Radwan’s request to strike in part, as set forth above.
The Clerk of Court is also- directed to terminate Plaintiffs motion for leave to amend pending as Doc. No. 20 -as moot.
SO ORDERED.
Date: May 23,2017
Notes
. The facts related herein are drawn primarily from Gaughan's Complaint, Dkt, 2, DiFolco v. MSNBC Cable LLC,
. The Complaint does not mention the Settlement Agreement, but its terms.and existence are undisputed by the parties. The Court takes judicial notice of the Agreement for the purpose of resolving the pending motion to dismiss. For avoidance of doubt, had the Court held the Agreement non-cognizable on a motion to dismiss, the Court—for substantially the same reasons below—would have resolved these issues in defendant’s favor by a grant of summary judgment. '
. On the contrary; it appears that the deadline for signing recited in V & A's letter to Gaughan was extended, in that the Friday in V & A’s letter was January IS, 2016—10 days before Gaughan executed the Agreement. Gaughan Aff., Ex. P; Agreement ¶ 8.1.
. Given the length of the TAC, this Court only summarizes the allegations relevant to the new claims Plaintiff seeks to add to this action.
. When the allegations in Plaintiff's initial Complaint are read liberally in light of her pro se status, the Complaint can be reasonably construed as asserting a claim against Rubenstein for disability discrimination in violation of the ADA, the NYSHRL, and the NYCHRL. Accordingly, this Court does not address the merits of Plaintiff’s claims for discrimination on the basis of disability against Rubenstein in connection with the instant motion to amend except to note that the ADA does not recognize individual liability.
. To the extent Plaintiffs complaints about office sanitation are construed as requests for a reasonable accommodation for her compromised immune system, Plaintiff still has not stated a claim for retaliation because “a retaliation claim cannot be based on the same conduct that comprises a failure-to-accommodate claim.” Scott-Robinson v. City of New York, No. 15-cv-9703 (NRB),
. Plaintiff also suggests that Radwan’s filings in this case were retaliatory and that Ruben-stein likewise filed a motion to strike in another litigation in which Plaintiff and Ru-benstein are parties. (See TAC ¶¶ 462, 495.) Defendants’ motions, which were filed as part of their defenses in litigations commenced by Plaintiff, do not constitute an adverse action for purposes of stating a retaliation or discrimination claim. See generally U.S. v. N.Y.C. Trans. Auth.,
. Under the FLSA and NYLL, the test for determining whether an employee-employer , relationship exists—or whether an individual was jointly employed by more than one entity or individual—is a fact-sensitive analysis that considers the totality of the circumstances. See, e.g., Olvera v. Bareburger Grp. LLC,
. To the extent that Plaintiff's claim for untimely payment oí wages is premised upon her allegation that she was not compensated for the work she performed for Radwan, such a claim is only actionable as a claim for unpaid minimum wage and overtime compensation, ánd cannot be recast as a duplicative claim for untimely payment of wages. See, e.g., Kone v. Joy Construction Corp., No. 15-cv-1328 (LTS),