Estronza v. RJF Security & Investigations et al
Filing
54
MEMORANDUM AND ORDER. The Court Adopts in Part and Modifies in Part the R&R. Thus, RJF Defts. motion to dismiss is DENIED with respect to pltfs. race and age discrimination and hostile work environment claims, and pltfs other claims are DISMISSED. Ordered by Judge Nicholas G. Garaufis on 11/11/2014. (Greene, Donna)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------------------)(
CARLOS ESTRONZA,
MEMORANDUM & ORDER
Plaintiff,
-against-
12-CV-1444 (NGG) (JO)
RJF SECURITY & INVESTIGATIONS,
ROBERT FOGLIA, JOSEPH FOGLIA,
LINDSAY PARK HOUSING CORP., and
CORA D. AUSTIN,
FILED
IN CLERK'S OFFICE
US DISTRICT COURT E.D.N.Y.
*
Defendants.
------------------------------------------------------------------------)(
NOV112014
*
BROOKLYN OFFICE
NICHOLAS G. GARAUFIS, United States District Judge.
On May 31, 2013, Plaintiff Carlos Estronza filed his Second Amended Complaint
("SAC"), asserting claims of breach of contract, wrongful termination, retaliatory conduct,
hostile work environment, and race and age discrimination against Defendants RJF Security &
Investigations ("RJF"), Robert Foglia, and Joseph Foglia (collectively, "RJF Defendants"), and a
claim of tortious interference with contract against Defendants Lindsay Park Housing Corp.
("LPHC") and Cora D. Austin (collectively, "LPH Defendants"). (SAC (Dkt. 33).) All
Defendants moved to dismiss the SAC for failure to state a claim upon which relief can be
granted pursuant to Federal Rule of Civil Procedure 12(b)(6). (LPH Defs.' Mot. to Dismiss
("Mot.") (Dkt. 35); RJF Defs.' Mot. to Dismiss ("Mot.") (Dkt. 41).) Plaintiff opposed
Defendants' motions. (Opp'n to LPH Defs.' Mot. (Dkt. 39); Opp'n to RJF Defs.' Mot.
(Dkt. 44).) The court referred the motions to Magistrate Judge James Orenstein for a Report and
'
Recommendation ("R&R") pursuant to 28 U.S.C. § 636(b)(l)(B) and Federal Rule of Civil
Procedure 72(b)(I). (Apr. 10, 2014, Order (Dkt. 46); Aug. I, 2014, Order.)
On August 27, 2014, Judge Orenstein issued an R&R recommending that the court deny
RJF Defendants' motion to dismiss as to Plaintiff's race discrimination and hostile work
I
environment claims, but grant the motions in all other respects. 1 (R&R (Dkt. 48) at 1, 20.)
Plaintiff submitted objections to the R&R ("Plaintiff's Objection") on September 30, 2014. 2
(Pl.'s Obj. (Dkt. 51).) Plaintiff raised two objections to the R&R, arguing that Judge Orenstein
( 1) "misinterpreted the case law surrounding the contract of employment, absent a written
contract of employment," and (2) "improperly attributed Jack of temporal proximity between
specified events in evaluating the sufficiency" of Plaintiffs tortious interference and retaliatory
conduct claims. (Id. at 2.) No other objections to the R&R were filed. LPH Defendants filed a
response to Plaintiff's Objection on October 14, 2014. (LPH Defs.' Resp. (Dkt. 53).) For the
reasons explained below, Judge Orenstein's R&R is ADOPTED IN PART and MODIFIED IN
PART.
I.
BACKGROUND
A.
Procedural History
On February 17, 2012, Plaintiff Carlos Estronza filed a complaint (the "Initial
Complaint") in the Supreme Court of the State of New York, asserting breach of contract,
wrongful termination, retaliatory conduct, hostile work environment, race discrimination, and
age discrimination claims against RJF Defendants; a tortious interference with contract claim
against LPH Defendants; and a claim for punitive damages against all Defendants. (Initial
As discussed below, see infra Part Ill.D.2, Judge Orenstein's R&R i~ unclear regarding the recommended
disposition of Plaintiffs age discrimination and hostile work environment claims. (Compare R&R at 19-20
(concluding that dismissal was warranted on the merits), with id. at 13-15 (asserting that the court "can and should
deny" RJF Defendants' motion to dismiss these claims on grounds of affirmative waiver).) As explained below, the
court determines that RJF Defendants' affirmative waiver warrants the denial of their motion as to Plaintiffs age
discrimination and hostile work environment claims, and exercises its discretion to modify Judge Orenstein 's R&R
accordingly. In other words, the court denies RJF Defendants' motion to dismiss as to Plaintiff's race and age
discrimination and hostile work environment claims, and grants Defendants' motions in all other respects.
1
2
Judge Orenstein had granted Plaintiffs request for an extension of time to file objections until September 29,
2014. (Sept. 15, 2014, Order.) Contemporaneously with Plaintiffs Objection, tiled September 30, 2014, Plaintiffs
counsel submitted a letter in which he advised the court that Plaintiffs Objection had been finalized the prior day
but was not tiled due to technical issues, and requested that the court accept the September 30, 2014, filing as
timely. (Sept. 30, 2014, Ltr. (Dkt. 52).) The court hereby accepts Plaintiffs Objection as timely filed.
2
Comp!. (Not. of Removal (Dkt. 1), Ex. A).) On March 23, 2012, the LPH Defendants removed
the action to federal court on the basis of federal questionjurisdiction.3 (Not. of Removal.) The
LPH Defendants then moved to dismiss the claims asserted against them under Federal Rule of
Civil Procedure 12(b)(6) (LPH First Mot. to Dismiss (Dkt. 8)), and the RJF Defendants moved
for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) (RJF Mot. for J.
on the Pleadings (Dkt. 16)). Plaintiff opposed Defendants' motions. (Opp'n to LPH First Mot.
to Dismiss (Dkt. 14); Opp'n to RJF Mot. for J. on the Pleadings (Dkt. 20).)
The court dismissed Plaintiff's breach of contract, wrongful termination, retaliatory
conduct, and tortious interference with contract claims, and granted Plaintiff leave to amend the
Initial Complaint to address the pleading deficiencies with respect to those claims. (Mar. 5,
2013, Order (Dkt. 23).) The court denied RJF Defendants' motion to dismiss Plaintiff's age and
race discrimination and hostile work environment claims, on the grounds that RJF Defendants
conceded in their reply that "Plaintiff has pied an adequate discrimination claim based upon age
and national origin." (Id. at 6 (quoting RJF Reply in Supp. of Mot. for J. on the Pleadings
(Dkt. 21) at 4) (internal quotation marks omitted).) Plaintiff conceded that New York law does
not recognize an independent cause of action for punitive damages, and his claim for punitive
damages was deemed withdrawn. (IQ)
Subsequently, Plaintiff filed a First Amended Complaint ("FAC") on April 3, 2013.
(FAC (Dkt. 24).) LPH Defendants requested a pre-motion conference in anticipation of filing a
motion to dismiss the FAC pursuant to Federal Rule of Civil Procedure 12(b)(6). (Mot. for PMC
(Dkt. 25).) After a pre-motion conference (see May 6, 2013, Min. Entry (Dkt. 26)) and a
subsequent telephone conference with Judge Orenstein (see May 14, 2013, Min. Entry
3
Plaintiff's Initial Complaint alleged, inter alia, that he was discriminated against on the basis of his age and race
"in violation of the laws of the State of New York, and of the United States of America." (Initial Campi.~~ 141,
149.) The SAC alleges the same. (SAC~~ 160, 164.)
3
(Dkt. 28)), Plaintiff filed the SAC on May 31, 2013 with Defendants' consent, with the intention
of adding factual allegations to address the alleged deficiencies in pleading. (See May 17, 2013,
Ltr. Mot. to Stay Disc. (Dkt. 29); May 14, 2013, Min. Entry (Dkt. 28).)
-B.
Factual Allegations
In evaluating Defendants' motions to dismiss, the court accepts as true the following
allegations from Plaintiff's SAC. 4
Defendants Robert and Joseph Foglia are, respectively, the President and Vice President
ofRJF, a security firm. (R&R at I.) Defendant Cora D. Austin is the Chairperson of the Board
ofLPHC, which engaged RJF to provide security services at its Mitchell-Lama housing
cooperative. (@ Plaintiff, who is Hispanic, was hired by RJF in March 2007, when he was
forty-four years old, as a licensed security guard. (Id. at 1-2; SAC if 16.) Plaintiff earned $8.75
per hour when he was first hired by RJF, and earned $9. 75 per hour at the time he was
terminated in September 2011. (SAC 11 68-69.)
I.
Allegations Relating to Employment Relationship
Plaintiff did not sign a written employment contract with RJF. (R&R at 2.) When he
was hired, RJF gave him a booklet entitled "RJF Security & Investigations Rules and
Procedures" (the "Rules"), which included a section entitled "Grounds for Termination.'' 5 (Id.;
SAC 1118-20, 22; see also Rules at 4.) Plaintiff was required to "thoroughly review" the Rules
and sign an acknowledgement that he had received the booklet. (R&R at 2; SAC 11 18-20.)
When given the Rules, Plaintiff was told "that this booklet would be his conduct bible, and that
he would never be fired as long as he followed its rules and procedures." (R&R at 2; SAC if 21.)
4
Additional factual detail can be found in Judge Orenstein's R&R. (See R&R at 1-4.)
' A copy of the Rules was attached to the SAC as Exhibit A thereto, although that exhibit appears not to have been
electronically filed along with the SAC at Dkt. 33. A copy of the Rules is filed electronically on the case docket as
Exhibit A to the Hardy Declaration (Dkt. 36-1, pages 20-27).
4
Based on that promise of job security conditioned on following the Rules, and RJF's promise to
accommodate his need for a daytime schedule in order to care for his elderly mother in the
evenings, Plaintiff resigned from his prior job, stopped seeking other employment, and began to
work for RJF. (R&R at 2; SAC ,, 24-31.)
2.
Allegations Relating to Discrimination and Hostile Work Environment
Claims
Joseph Foglia held "liquor, cocaine and sex filled parties" at the RJF office, which
managers and staff members attended while on duty. (R&R at 2 (quoting SAC, 33).) Joseph
Foglia provided the liquor and cocaine for these parties. (SAC, 34.) Plaintiff did not attend
these parties. (R&R at 2.) Plaintiff"expressed concerns" about these parties to Joseph and
Robert Foglia and Austin. (Id. (quoting SAC,, 41-42).)
Robert and Joseph Foglia have subjected Plaintiff to offensive and abusive treatment (see
SAC ,, 70-76), and Joseph Foglia has made the following specific remarks:
•
"What kind of spic are you[?] ... I thought all of you were the same" (R&R at 3
(quoting SAC, 73));
•
"Why can't you be more like Vasquez[?] ... He always does what I want, and the
spic knows he would not stick around long ifhe didn't play ball" (id. (quoting
SAC, 74)); and
•
"Are you too old and can't get it up any more? This would mean that you cannot
do your job properly around here" (id. (quoting SAC, 75)).
Joseph Foglia also told other employees to "make that spic[']s life miserable." (ill (quoting
After Joseph Foglia took over responsibility for running RJF, '"only the Caucasian
personnel ... [were] promoted and given raises,'" and "only those security guards who regularly
attended Joseph Foglia's parties were assigned overtime hours." (R&R at 3 (quoting SAC
, 77).) Plaintiff regularly volunteered for overtime work, but he was never assigned any. (R&R
5
at 2.) He was also never promoted, even though he was never found to have violated the Rules.
(IQ)
Some employees were not disciplined despite conduct that subjected them to immediate
suspension or termination under the Rules, such as sleeping on duty, being intoxicated on duty,
and being arrested; one such individual regularly attended the parties hosted by Joseph Foglia.
(R&R at 3; SAC ,, 57-6 I.) Other employees were hired despite a lack of qualifications. (R&R
at 3.)
3.
Allegations Relating to Retaliation and Tortious Interference Claims
Plaintiff's fiancee filed a lawsuit against LPH Defendants in approximately
October 20 I 0, alleging discrimination against her disabled son. (R&R at 3.) Defendants
incorrectly believed that Plaintiff had assisted his fiancee in gathering evidence for that lawsuit. 6
(Id.; SAC,, 80-81.) Shortly thereafter, Plaintiff was assigned to patrol a building "known to
have problems with drug dealing and prostitution"-a building to which he had rarely been
assigned previously-and employees ofRJF who regularly attended Joseph Foglia's parties
began to ignore Plaintiff. (R&R at 3; SAC,, 84-87.) Additionally, after the lawsuit was filed,
Austin filed a complaint with RJF, claiming (incorrectly) that Plaintiff had not been on duty in
his assigned building on an unspecified date, and shortly thereafter instructed Joseph Foglia to
fire Plaintiff. (R&R at 3; SAC,, 88-92.) In August 201 I, however, Joseph Foglia conducted a
performance evaluation of Plaintiff, and Plaintiff received a perfect score often out often in
each of seven performance categories. (R&R at 3.)
On September 19, 201 I, a barbecue took place on LPHC property, and was attended by
LPHC and RJF employees. (Id. at 4.) Plaintiff was not working that day, and he did not attend
the barbecue.
6
(M!J Plaintiff's fiancee walked by the location where the barbecue was being
Plaintiff states that he did not assist his fiancee in this manner. (R&R at 3; SAC 1)1) 82-83.)
6
held, and an employee of LPHC named Marcello made an offensive sexual comment. (Id.; SAC
m/ JOO-IOI.) When Plaintiff heard about this comment, he went to the barbecue, but Marcello
was no longer there. (Ml) Plaintiff was attempting to locate another LPHC employee, one who
had witnessed the event, when the police were called. (!QJ Unable to locate the witness,
Plaintiff"simply, and quietly left the premises." (SAC 'lf 112.) He "never threatened,"
"confronted," or "yelled at anyone"; he "never became disorderly." (Id. 'lf'll 110-111.)
Plaintiff was on the public sidewalk when the police arrived. (R&R at 4.) While he was
speaking with the police, RJF supervisor Gregory Nesmith approached, and informed the police
that Plaintiff had been fired and was therefore no longer welcome on LPHC grounds because of
his altercation with Marcello. (Id.; SAC 'lf 116.) The police determined that Plaintiff had not had
an altercation with Marcello, and although RJF has since conceded that Plaintiff was not on duty
the day of the barbecue, Nesmith told Plaintiff that he had been fired because of his
insubordination that day. (R&R at 4; SAC 'lf 122.) On September 20, 2011, the following day,
Nesmith warned Plaintiff to "watch his back," and that he would be "dealt with." (R&R at 4;
SAC 'lf'll 123-23.) On September 23, 2011, LPHC sent Plaintiff a notice of eviction that falsely
stated that he was illegally living with his fiancee in her LPHC unit and that he had created a
disturbance, refused to leave the premises when requested, and threatened and attempted to
physically assault LPHC employees on September 19, the date of the barbecue. (Id.; SAC
irir 126-129.)
II.
STANDARD OF REVIEW
In reviewing a magistrate judge's R&R, the 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)(l). The court must make "a de novo determination of those portions of the report or
7
specified proposed findings or recommendations to which [timely] objection is made." Id. To
obtain this de novo review, an objecting party "must point out the specific portions of the report
and recommendation to which [that party] object[s]." U.S. Flour Com. v. Certified Bakery, Inc.,
No. IO-CV-2522 (JS), 2012 WL 728227, at *2 (E.D.N.Y. Mar. 6, 2012); see also Fed. R. Civ. P.
72(b)(2) ("[A] party may serve and file specific written objections to the [R&R]."). To adopt
portions of the R&R to which no objections have been made, "a district court need only satisfy
itself that there is no clear error on the face of the record." Harris v. Queens Cnty. Dist.
Attorney's Office, No. 08-CV-1703 (CBA), 2012 WL 832837, at *I (E.D.N.Y. Mar. 12, 2012)
(citation and internal quotation marks omitted).
III.
DISCUSSION
A.
Standard on Motion to Dismiss
To the extent de novo review is required, "[t]o survive a motion to dismiss, a claim must
contain sufficient factual matter, accepted as true, to 'state a claim for relief that is plausible on
its face."' Ashcroft v. Igbal, 556 U.S. 662, 678 (2009) (quoting Bell At!. Com. v. Twombly, 550
U.S. 544, 570 (2007)). Plausibility "is not akin to a probability requirement," but requires "more
than a sheer possibility that a defendant has acted unlawfully." Id. at 664 (internal quotation
marks omitted). "A claim has facial plausibility when the plaintiff pleads factual conduct that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged." Id. at 678. "[M]ere 'labels and conclusions' or 'formulaic recitation[s] of the elements
ofa cause of action will not do'; rather, the complaint's '[f]actual allegations must be enough to
raise a right to relief above the speculative level."' Arista Records. LLC v. Doe 3, 604 F.3d 110,
120 (2d Cir. 2010) (quoting Twombly, 550 U.S. at 555). In addition, in evaluating a motion to
8
dismiss, the court may consider the complaint and documents attached to, or integral to, the
complaint. See Chambers v. Time Warner. Inc., 282 F.3d 147, 152-53 (2d Cir. 2002).
8.
Plaintiff's First Objection: Contract Formation
Plaintiff concedes that he was not employed by RJF pursuant to a written employment
contract. (SAC 'I! 17; Opp'n to RJF Defs.' Mot. 'I( 21. 7) Plaintiff argues, however, that an
implied contract of employment of the type recognized by the New York Court of Appeals in
Weiner v. McGraw-Hill. Inc., 443 N.E.2d 441 (N.Y. 1982),8 was created by (1) the existence of
the Rules, (2) RJF's having required Plaintiff to review the Rules and telling him that he "would
never be fired as long as he followed them," and (3) Plaintiffs detrimental reliance on that
promise of job security. (See Opp'n to RJF Defs.' Mot. 'll'll 27-29; Pl. 's Obj. at 4-6.)
Judge Orenstein concluded that Plaintiff did not plead facts sufficient to fall within the
Weiner exception to New York's strong presumption of at-will employment because he did not
allege an express written limitation on RJF's right to terminate him; accordingly, he
recommended that Plaintiffs breach of contract, wrongful termination, and tortious interference
with contract claims be dismissed. 9 (See R&R at 7-9.) Plaintiff objects to this conclusion. He
7
Plaintiff submitted the same papers in opposition to both motions (compare Opp'n to LPH Defs.' Mot. (Dkt. 39),
with Opp'n to RJF Defs.' Mot. (Dkt. 44)), so the court will cite only to Plaintiff's Opposition to RJF Defendants'
Motion.
8
There is no dispute regarding the applicability of New York law to Plaintiff's state law claims.
9
Any so-called "wrongful tennination" claim would be co-extensive with a claim for breach of contract, as New
York does not recognize a tort for wrongful termination of an at-will employee. Mumhy v. Am. Home Prods. Com.,
448 N.E.2d 86, 87 (N.Y. 1983); see also Horn v. N.Y. Times, 790 N.E.2d 753, 755-56 (N.Y. 2003) (discussing
Mumhy); Lobosco v. N.Y. Tel. Co./NYNEX, 751N.E.2d462, 464 (N.Y. 2001).
Additionally, "the keystone of the tort of interference with contractual relations is the existence of a contract."
Dickstein v. Del Labs .. Inc., 535 N.Y.S.2d 92, 94 (App. Div. 1988) (quoting Papell v. Calogero,494 N.Y.S.2d 127,
129 (App. Div. 1985), aff'd as mod. on other grounds, 497 N.E.2d 676 (N.Y. 1986)) (internal quotation marks
omitted). Though there is support in New York case law for an at-will employee's ability to plead a claim of
tortious interference with employment or business relations, Plaintiff has not alleged such a claim, as explained in
Judge Orenstein's R&R (see R&R at I0-11) and Part III.C, infra.
9
argues that Judge Orenstein "misinterpreted the case law surrounding the creation of a contract
of employment, absent a written contract of employment." (Pl.'s Obj. at 4.) Specifically,
Plaintiff contends that Judge Orenstein "place[d] entirely too much emphasis on the fact that [the
Rules] failed to include language which specifically stated termination would only be for just
cause, ... when [Plaintiff] was told when he was hired that he would never be fired as long as he
followed these Rules and Procedures." (ill) Although LPHC Defendants argue otherwise (see
LPH Defs.' Resp. at 4-6), the court will accept this objection as sufficiently specific to require de
novo review.
In New York, there is a strong presumption that employment for indefinite duration is at
will. Drake v. Delta Air Lines, Inc., No. 94-CV-5944 (FB), 1997 WL 397498, at *2 (E.D.N.Y.
July 10, 1997); see also. e.g., Sabetay v. Sterling Drug, Inc., 506 N.E.2d 919, 920 (N.Y. 1987).
The New York Court of Appeals has been reluctant to create exceptions to the employment-atwill doctrine, and has narrowly construed exceptions once created. See Hom v. N.Y. Times, 790
N.E.2d 753, 755 (N.Y. 2003); Mumhy v. Am. Home Prods. Coro., 448 N.E.2d 86, 89
(N. Y. 1983) ("Absent a constitutionally impermissible purpose, a statutory proscription, or an
express limitation in the individual contract of employment, an employer's right at any time to
terminate an employment at will remains unimpaired."). 10 The narrow limitation on the
employment-at-will doctrine at issue here is the express contractual limitation exception set forth
in Weiner v. McGraw-Hill, Inc., 443 N.E.2d 441 (N.Y. 1982), and its progeny.
In Weiner, reversing the dismissal below, the Court of Appeals held that an indefiniteduration employee had stated a cause of action for breach of contract when he pleaded facts
10
After Murohy, the New York Court of Appeals affirmed an additional exception to the employment-at-will
doctrine in Weider v. Skala. 609 N.E.2d 105 (N.Y. 1992), one which the same court has since declined to extend.
See Sullivan v. Harnisch, 969 N.Y.2d 758, 760-61 (N.Y. 2012); Horn, 790 N.E.2d at 758-59. The Weider
exception, which is inapplicable here, recognized an implied-in-law agreement between a law firm and its associate
to conduct the practice of law in accordance with the profession's ethical standards. 609 N.E.2d at 108-10.
10
sufficient to find that the employer had expressly limited its right to terminate the plaintiff for
any reason or no reason. Weiner, 443 N.E.2d at 443, 445-46. Specifically, the court concluded
that language in an employment manual stating that "[t]he company will resort to dismissal for
just and sufficient cause only, and only after all practical steps toward rehabilitation or salvage of
the employee had been taken and failed," combined with a reference to the manual in the
plaintiff's employment application, constituted an express agreement between the parties that
limited the employer's right to terminate the employee. Id. at 442. The Court of Appeals noted
that four factors had led to its determination that the employment manual and application created
this implied contract: (I) "[P]laintiffwas induced to leave [his former employer] with the
assurance that [the defendant-employer] would not discharge him without cause"; (2) "this
assurance was incorporated into the employment application"; (3) "plaintiff rejected other offers
of employment in reliance on the assurance"; and (4) plaintiff's supervisors had directed him to
treat his subordinates "in strict compliance with the handbook and policy manuals because
employees could be discharged only for just cause." Id. at 445; see also Sabetay. 506 N.E.2d at
921-22 (noting "significan[ce]" of Weiner factors and finding policy statement not actionable
absent expressly limiting language and satisfaction of other Weiner factors).
Plaintiff is correct that some federal case law indicates that these four factors are not the
only way a plaintiff may plead the existence of an agreement that expressly limits the employer's
right to terminate, and that a court should consider the totality of facts and circumstances in
determining whether to grant a motion to dismiss. See Gorrill v. Icelandair/Flugleidir, 761 F.2d
847, 852-53 (2d Cir. 1985); Gmora v. State Farm Mut. Auto. Ins. Co., 709 F. Supp. 337, 340
(E.D.N.Y.), aff'd, 888 F.2d 1376 (2d Cir. 1989). 11 However, to state a claim for an implied
11
See also O'Neill v. N.Y. Univ., 944 N.Y.S.2d 503, 512 (App. Div. 2012) ("(T]his court has previously noted that
'Weiner should not be interpreted as limiting its holding to its specific facts, especially in light of the court's
11
contract on the basis of an employment manual, an express written limitation of the employer's
right to terminate the plaintiff-employee for any reason or no reason at all must be present in that
manual. See Lobosco v. N.Y. Tel. Co./NYNEX, 751N.E.2d462, 465 (N.Y. 2001) ("Central to
the Weiner analysis was the written proviso, in the employee manual, that employees would not
be terminated without just and sufficient cause.").
The critical impediment to Plaintiff's claim is that the Rules do not contain an express
written policy limiting RJF' s right to terminate an employee. Plaintiff maintains that the Rules
do contain such a written policy; he appears to contend that Judge Orenstein erred in not
recognizing that an express limitation on the right to terminate need not use the specific words
''.just cause" or "sufficient cause." (See Pl.'s Obj. at 4-6.) 12 But the obstacle here is not that the
Rules do not contain the precise words "just cause" or "good cause." Rather, Plaintiff's claims
fail because there is no express limitation in the Rules by any formulation. The enumeration of
certain grounds for termination in the Rules does not constitute a promise by RJF that it will
terminate an employee solely for these reasons. Numerous New York cases hold that
enumerated grounds for termination do not amount to such an express limitation.
~'
Sabetay
v. Sterling Drug, Inc., 506 N.E.2d 919, 920 (N.Y. 1987) (rejecting plaintiff's argument that
formulation ofa 'totality of the circumstances' test.") (citations omitted). But see Dooley v. Metro. Jewish Health
Sys., No. 02-CV-4640 (JG), 2003 WL 22171876, at *5 (E.D.N.Y. July 30, 2003) (noting that subsequent decisions
by the New York Court of Appeals "have confirmed that it was the confluence of [the four] 'cumulative factors' and
the presence of an 'express written policy' that allowed Weiner to proceed to trial on his breach of contract claim").
Notably, it is also the law of New York and the Second Circuit that "[r]outinely issued employee manuals,
handbooks and policy statements should not lightly be converted into binding employment agreements." Lobosco v.
N.Y. Tel. Co.fNYNEX, 751N.E.2d462, 465 (N.Y. 2001); Baron v. Port Auth. ofN.Y. and N.J., 271 F.3d 81, 85 (2d
Cir. 2001) (quoting Lobosco).
12
In support of this position, Plaintiff notes that the Second Circuit found in Gorrill v. lcelandair/Flugleidir. 761
F.2d 847 (2d Cir. 1985), that an operations manual stating that "seniority will be the sole factor for determining
demotions, transfers and terminationn amounted to an express limitation of the employer's right to terminate. (Pl. 's
Obj. at 6 (quoting Gorrill, 761 F.2d at 850).) Notably, however, the quoted language at issue in Gorrill did
specifically and expressly limit the employer's right to terminate, by the inclusion of the word "sole." The Second
Circuit held that under the totality of the circumstances, the employer should be bound by the clear language of the
manual. Gorrill, 761 F.2d at 852-53. No such express limitation can be found in the Rules.
12
"personnel manual, which enumerates seven grounds for termination, establishes an implied
promise that those are the only grounds for termination"); Bartenbach v. Bd. ofTrs. of Nassau
Librarv Sys., 657 N.Y.S.2d 200, 201 (App. Div. 1997) (personnel manual "enumerated several
reasons for dismissal" but "did not, however, limit the defendants' right to discharge an
employee at will to just and sufficient cause only"); Novinger v. Eden Park Health Servs .. Inc.,
563 N.Y.S.2d 219, 220-21 (App. Div. 1990) ("The grounds for termination are not exhaustive ..
. . Plaintiff's failure to establish an express limitation on defendants' right to discharge her is
fatal to her case."); Dickstein v. Del Labs .. Inc., 535 N.Y.S.2d 92, 93-94 (App. Div. 1988) ("The
personnel policy memorandum ... , while enumerating 12 reasons for an employee's dismissal,
does not limit the appellants' right to discharge to just and sufficient cause only. Thus, the
plaintiff's employment could have been terminated at will and, accordingly, her cause of action .
. . should have been dismissed."); see also Baron v. Port Auth. ofN.Y. and N.J., 271 F.3d 81, 85
(2d Cir. 200 I) (acknowledging the duty of the federal courts in this circuit to "eliminate [any]
divergence" between the New York state and federal courts' application of New York's
employment-at-will doctrine). 13
" See also Gmora v. State Farm Mui. Auto. Ins. Co., 709 F. Supp. 337, 341 (E.D.N.Y.) ("The mere reference to
certain grounds for termination does not translate into a finding that employees will be terminated for good cause
only or in any way set forth an express limitation on State Farm's right to terminate its at-will employees.")
(emphasis in original), aff'd, 888 F.2d 1376 (2d Cir. 1989); Cucchi v. N.Y.C. Off-Track Betting Corn., 818 F. Supp.
64 7, 650 (S.D.N .Y. 1993) (finding that language in employment manual listing "four types of separation
(resignation, discharge for cause, layoff and retirement) ... as a matter of law cannot be construed as excluding
other grounds for termination because it does not expressly do so"); McPherson v. U.S. Clearing Corn., 625
N.Y.S.2d 22, 22 (App. Div. 1995) (the limitation set forth in the employment manual must be express; limitation by
inference is not sufficient); Jagust v. Brookhaven Mem'l Ass'n Inc., 541N.Y.S.2d41, 42 (App. Div. 1989)
("[N]either the handbook nor the manual states that an employee will be discharged only for cause. The failure of
these documents to limit the Hospital's right to discharge the plaintiff only for just cause is fatal to the plaintiff's
claim.") (emphasis in original); Marvin v. Kent Nursing Home, 544 N.Y.S.2d 210, 211-12 (App. Div. 1989) ("While
the Policy and Procedures Manual and the disciplinary procedures list grounds for termination and procedures for
discipline, they do not state that termination is limited to the grounds stated or that the disciplinary procedures will
be followed in all cases.... This failure to establish an express limitation on [defendant's] right to discharge the
plaintiff at will is fatal to the plaintiff's case.").
The only New York case that the court has identified in support of the proposition that a limitation could be implied
by less-than-explicit language, Tirrano v. Sears. Roebuck and Co., 472 N.Y.S.2d 49, 50 (App. Div. 4th Dep't 1984),
13
Moreover, even if enumerated grounds for termination might, in an appropriate context,
be construed as an express promise not to terminate absent one of the enumerated grounds, the
"Grounds for Termination" section of the Rules could not be so construed. The "Grounds for
Termination" section of the Rules provides that employees will be terminated for (1) sleeping on
post; (2) abandonment of post; (3) failure to call in advance and failure to show for work; (4)
drunk or disorderly conduct; or (5) being arrested. (See Opp'n to RJF Defs.' Mot. ii 24; Rules at
4.) At face value, this section is not sufficiently thorough or exhaustive such that it would be
reasonable to construe as expressing a promise by RJF that employees would not be terminated
for any other reason. (See Rules at 4.)
And as explained in Plaintiffs own opposition and objection papers, other sections of the
Rules refer to additional grounds for termination, for example: (I) excessive sick days or
personal time without documented explanation (see Opp'n to RJF Defs.' Mot. ii 25(a); Pl.'s Obj.
at 5; Rules at 2); (2) an employee's family member(s) or friend(s) loitering in the lobby with the
employee (see Opp'n to RJF Defs.' Mot. ii 25(b); Pl.'s Obj. at 5; Rules at 4); and (3) aiding
residents in illegal activities (see Opp'n to RJF Defs.' Mot. ii 25(c); Pl.'s Obj. at 5; Rules at 7).
Plaintiff also appears to construe the Rules as providing that an employee may be terminated for
administering first aid when not certified, although the only provision in the Rules addressing
first aid does not specifically mention termination. (Compare Pl.'s Obj. at 5, with Rules at 4.)
Ultimately, even if the case law did not strongly support the conclusion that enumeration of
certain grounds for termination is, as a rule, insufficient to limit the employer's right to terminate
has since been implicitly repudiated by that court, Collins v. Hoselton Datsun. Inc., 503 N.Y.S.2d 203, 204 (App.
Div. 4th Dep't 1986), as recognized by the Second Circuit and other courts. See Wright v. Cayan, 817 F.2d 999,
1005 (2d Cir. 1987); Melnyk v. Adria Labs., 799 F. Supp. 301, 309 & n.I (W.D.N.Y. 1992); see also Harrison v.
Sears. Roebuck & Co., 546 N.E.2d 248, 254 (Ill. App. Ct. 1989).
14
for any or no reason, the enumerations at issue here could not plausibly be construed to
constitute such an express limitation.
Absent an express written limitation on RJF's right to terminate Plaintiff at will, his claim
can only proceed if an oral promise that he would not be terminated so Jong as he followed the
Rules can itself create an implied contract of employment. Plaintiff argues that "being made to
review a manual that contains a fairly extensive list of grounds for termination, combined with
the oral assurance that you will not be fired as Jong as you follow these rules is the same as being
promised, both orally and in writing, that your employment will only be terminated for just
cause." (Pl. 's Obj. at 5-6.) But under New York law, these are not the same, and the oral
promise alleged by Plaintiff is not sufficient to tum the non-exclusive enumerations in the Rules
into a binding employment contract. See Soto v. Fed. Exp. Com .. No. 06-CV-5413 (SLT), 2008
WL 305017, at *6 (E.D.N.Y. Feb. 1, 2008) ("Plaintiff's reliance on alleged oral assurances of
continued employment does not create a contractual limitation because oral assurances of
employment only support an express written limitation but do not in and of themselves create
such a limitation."); Fieldhouse v. Stamford Hosp. Soc'y Inc., 649 N.Y.S.2d 527, 528 (App.
Div. 1996) ("Moreover, the fact that plaintiff alleges that she was given oral assurances that the
employee manual would apply to her and that her employment was secure does not raise a triable
question of fact in this matter."); Preston v. Champion Home Builders, 589 N.Y.S.2d 940, 94142 (App. Div. 1992) ("Plaintiff asserts that defendant's oral assurance that he would be covered
by the manual, coupled with the written policy set forth therein, constituted an implied contract
of employment .... Notably, for a manual ... to meet the requirements of Weiner ... , it must
contain an express limitation on the employer's right to terminate at will.") (citations omitted);
Diskin v. Consol. Edison Co. ofN.Y .. Inc., 522 N.Y.S.2d 888, 890 (App. Div. 1987) (oral
15
assurances that employee could only be discharged for cause did not limit employer's right to
terminate employees at will where the written employment manual contained no express
limitation on the employer's right to do so). 14
On the basis of this precedent, the court comes to the same conclusion as did Judge
Orenstein: Plaintiff was an at-will employee, and RJF was not bound by any employment
contract regarding Plaintiff. Therefore, Plaintiff's objection is overruled, this portion of the R&R
is adopted, and Plaintiff's breach of contract, wrongful termination, and tortious interference
with contract claims are dismissed.
C.
Plaintiff's Second Objection: Temporality
While finding that no employment contract bound RJF and thus no tortious interference
with contract claim could lie (see R&R at 9-10), Judge Orenstein recognized support in New
14
See also Hemraj v. Fed. Exp. Coro., No. 06-CV-5414 (CBA), 2007 WL 3124553, at *5 (E.D.N.Y. Oct. 25, 2007)
("[O]ral assurances do not create a limitation on an at will employer's right of termination absent additional
evidence that an employee had a contractual relationship with an employer."); Dooley v. Metro. Jewish Health Sys.,
No. 02-CV-4640 (JG), 2003 WL 22171876, at *5-6 (E.D.N.Y. July 30, 2003) (distinguishing cases cited by plaintiff
as "all involv[ing] ora) representations confirming express, written representations contained in an employer's
employment manuals or personnel handbooks"); Cucchi v. N.Y.C. Off-Track Betting Coro .. 818 F. Supp. 647, 65152 (S.D.N.Y. 1993) (while an "employer's oral assurances only to fire an employee for just cause are a significant
factor a court must take into consideration in determining whether the employer intended to alter the employee's atwill status, [such] oral assurances ... are not by themselves sufficient evidence of an express agreement to alter the
employee's at-will status"); Leahy v. Fed. Exp. Coro., 609 F. Supp. 668, 672 (E.D.N.Y. 1985) ("[E]ven an oral
representation that employees could not be fired without just cause, do not satisfy the panoply of requirements set
forth in Weiner.''); Fitzgerald v. Martin-Marie!!l!, 681N.Y.S.2d895, 897 (App. Div. 1998) (finding that
employment manual did not set express limitation on employer's right to terminate and that "oral assurances alleged
by plaintiff cannot of themselves give rise to a triable question of fact"); Paolucci v. Adult Retardates Ctr .. Inc., 582
N.Y.S.2d 452, 453 (App. Div. 1992) ("Neither oral assurances made to the plaintiff nor a general provision in an
employee manual were sufficient to limit the defendant's right to discharge the plaintiff at any time, for any
reason."); Patrowich v. Chem Bank, 470 N.Y.S.2d 599, 601-03 (App. Div. 1984) (finding no contract where
employment manual contained no "express limitation relating to job tenure" though plaintiff alleged an oral promise
by employer to abide by the manual).
To the extent that Ohanian v. Avis Rent A Car System. Inc .. 779 F.2d IOI (2d Cir. 1985), might be construed to
suggest that an oral promise not to terminate without just cause could constitute an enforceable employment contract
under New York law, several courts have held that Ohanian has been undercut by subsequent New York case law,
specifically by the Court of Appeals's decision in Sabetay v. Sterling Drug. Inc, 506 N.E.2d 919 (N.Y. 1987), and
by subsequent decisions of the Appellate Division, and therefore should not be relied upon. £.,&, Kempfv. Mitsui
Plastics. Inc .. No. 96-CV-1106 (HB), 1996 WL 673812, at *6 (S.D.N.Y. Nov. 20, 1996); Wanamaker v. Columbian
Rope Co., 907 F. Supp. 522, 539-40 (N.D.N.Y. 1995); Cucchi, 818 F. Supp. at 650; see also Burke v. Bevona, 866
F.2d 532 (2d Cir. 1989).
16
York law for the ability of an at-will employee to assert a cause of action for tortious interference
with employment or business relations (see id. at JO). With respect both to this type oftortious
interference claim and to Plaintiff's federal and state retaliatory conduct causes of action, Judge
Orenstein found that Plaintiff failed to sufficiently allege a causal connection between Plaintiff's
termination and Defendants' allegedly unlawful conduct or Plaintiff's allegedly protected
activity. Accordingly, Judge Orenstein recommended that the court grant Defendants' motions
to dismiss with respect to these claims. (Id. at 10-13.)
Plaintiff does not argue that Judge Orenstein was incorrect in finding causation to be a
required element of these causes of action, and this was not clearly erroneous. 15 Plaintiff
specifically objects to the finding that causation was Jacking, arguing that Judge Orenstein
"improperly attributed lack of temporal proximity between specified events in evaluating the
sufficiency" of these claims. (Pl.'s Obj. at 7.) Plaintiff's argument cites no authority for this
proposition (see ill), and the bulk of the objection unsuccessfully attempts to recharacterize the
timing of events as set forth in the SAC.
First, the court rejects Plaintiff's attempt to recharacterize the sequence of events set forth
in the SAC. Plaintiff's objection (I) advocates for a reading of the SAC in which the sequence
" See. e.g., McHenry v. Lawrence. 886 N.Y.S.2d 492, 494 (App. Div. 2009) (an at-will employee asserting tortious
interference with employment must show "(I) the existence of a business relationship between the plaintiff and a
third party; (2) the defendants' interference with that business relationship; (3) that the defendants acted with the
sole purpose of harming plaintiff or used dishonest, unfair, improper or illegal means that amounted to a crime or an
independent tort; and (4) that such acts resulted in [plaintiff's termination]") (quoting Schorr v. Guardian Life Ins.
Co. of Am .. 843 N.Y.S.2d 24, 28 (App. Div. 2007) (internal quotation marks omitted); St. Juste v. Metro Plus
Health Plan, No. IO-CV-4729 (MKB), --- F. Supp. 2d ---, 2014 WL 1266306, at *25 (E.D.N.Y. Mar. 28, 2014) ("In
order to establish a prima facie case of retaliation [under federal or New York state law], a plaintiff must establish
'(!)she engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a
materially adverse employment action; and (4) there was a causal connection between the alleged adverse action and
the protected activity."') (quoting Kelly v. Howard I. Shapiro & Assocs. Consulting Eng'rs. P.C., 716 F.3d IO, 14
(2d Cir. 2013) (per curiam)); see also Dimitracopoulos v. City ofN.Y., No. 14-CV-674 (JBW), --- F. Supp. 2d ---,
2014 WL 2547586, at• 13 (E.D.N.Y. June 2, 2014) (elements ofretaliation claim under New York City Human
Rights Law are the same except that employer's actions "need not be 'materially adverse' to the plaintiff, but merely
'reasonably likely to deter a person from engaging in protected activity"') (quoting N.Y.C. Admin. Code§ 8107(7)).
17
and timing of certain events are unclear, and (2) adds a temporal assertion that is not found in the
SAC. (See Pl.'s Obj. at 7 ("It must be pointed out that the[ re] is no specific ti[m]e reference to
this statement from Cora Austin to Joseph Foglia, because the allegations state that Cora Austin
complained to RJF that Mr. Estronza was not on duty 'sometime after' the Padilla lawsuit was
filed."); id. ("Cora Austin directed Joseph Foglia to fire Mr. Estronza shortly after it was proven
that her claim that Mr. Estronza was not on duty was disproven by videotape evidence.").)
However, the chronology of events as set forth in the portion of the SAC at issue here is clear:
(1) In October 2010, Plaintiffs fiancee filed her lawsuit; (2) almost immediately, Plaintiff was
assigned to an undesirable building and some of Plaintiff's co-workers began to ignore him; (3)
next, Austin filed a complaint with RJF, falsely stating that Plaintiff had not been on duty in his
assigned building; (4) soon thereafter, Austin directed Joseph Foglia to fire Plaintiff; (5) later, in
approximately August 2011, Joseph Foglia gave Plaintiff a perfect performance evaluation; and
(6) finally, on September 19, 2011, the day of the barbecue, Plaintiffs employment was
terminated. (See SAC 'l!'l! 79-129.) Additionally, nothing in the SAC suggests that Austin
directed Joseph Foglia to terminate Plaintiff's employment after, or as a result of, viewing
security tapes that showed that Plaintiff had in fact been on duty in his assigned building, or that
Austin even viewed those tapes at all. Instead, the allegation in the SAC that security tapes
proved Austin's complaint about Plaintiff to be unfounded appears to be included simply to
indicate that Austin's assertion that Plaintiff had not been on duty was false, and perhaps an
intentional lie. (See SAC 'l!'l! 88, 91-92.) Thus, Plaintiff's proposed interpretation is strained, and
conflicts with a natural reading of the SAC.
Second, to the extent that Plaintiff contends that the temporal proximity or remoteness of
Plaintiff's termination to the allegedly wrongful interference with his employment (with respect
18
to Plaintiff's tortious interference claim) or to the allegedly protected activity (with respect to his
retaliation claim) should not be considered, the objection is overruled. See, e.g., Dayes v. Pace
Univ., 2 F. App'x 204, 208 (2d Cir. 2001) (summary order) (finding that lapse of seven months
between employee's filing of complaint and negative review defeated attempt to establish causal
connection between the two events); Myrick v. N.Y.C. Emps. Ret. Sys., No. 99-CV-4308, 2002
WL 868469, at *7 (S.D.N.Y. May 3, 2002) (Lynch, J.) (noting that temporal proximity between
protected activity and adverse employment action may support an inference of causation on a
motion to dismiss), aff'd, 56 F. App'x 70 (2d Cir. 2003). 16
Finally, to the extent that Plaintiff argues that Judge Orenstein's analysis simply placed
too much weight on temporal remoteness, disregarding allegations that might support an
inference of causation, this is also overruled. It is clear from the R&R that Judge Orenstein's
analysis did not depend solely, or even primarily, on the remoteness of the events. Instead,
Judge Orenstein considered temporality, intervening occurrences, and generally whether. the
alleged unlawful conduct or protected activity may have plausibly caused Plaintiff's termination
in light of the story told by the SAC, as a matter of"but for" causation. (See R&R at 10-13; see
also id. at 11 (citing tortious interference case requiring "but for" causation).) See also Sass v.
MTA Bus Co., No. 10-CV-4079 (MKB), --- F. Supp. 2d---, 2014 WL 3818663, at *4-6
(E.D.N.Y. Aug. 4, 2014) (with respect to retaliation claims under federal and New York state
law, causation must be proved according to traditional "but for" principles). Notably, the two
allegations in the SAC that are the most fatal to these claims are relatively unrelated to the
16
See also Dimitracopoulos v. Citv ofN.Y., No. 14-CV-674 (JBW), --- F. Supp. 2d ---, 2014 WL 2547586, at *13
(E.D.N.Y. June 2, 2014) (finding that plaintiff did not state plausible claim for retaliation under federal, state, or city
law in part due to lack of "temporal proximity between the 2009 lawsuit and the alleged adverse actions first
suffered by plaintiff in June 2012"); Harrison v. N. Shore Univ. Hosp., No. 04-CV-2033 (WOW), 2008 WL 656674,
at * 12 (E.D.N.Y. Mar. 6, 2008) (noting that "[w]hile there is no bright line marker, case law indicates that a gap of
up to one to two months between the protected activity and the adverse action may establish the requisite causal
connection" and that "[l]onger gaps ... have been found to be too attenuated").
19
temporal remoteness of Plaintiff's eventual termination to the filing of Plaintiff's fiancee' s
lawsuit and to Austin's alleged direction to RJF to terminate Plaintiff.
First, as Judge Orenstein recognized, after both of these alleged occurrences, Plaintiff
received a perfect performance evaluation from RJF, scoring a grade often out often on each of
seven performance categories. (SAC if 93.) The fact that neither the filing of the lawsuit nor
Austin's alleged directive to Joseph Foglia caused Foglia to give Plaintiff a less-than-perfect
evaluation negates any inference that either of these events caused his termination a month later.
Second, the SAC provides an exceedingly plausible alternative cause of Plaintiff's terminationthe conflict that occurred during the September 19, 2011, barbecue-which prevents the court
from concluding that the SAC states a plausible causal relationship between the necessary
events. (See id.
iii! 94-119.)
See Amarsingh v. JetBlue Airways Com., 409 F. App'x 459, 461
(2d Cir. 2011) (summary order) (finding that employee's altercation with customer shortly
before termination was likely cause thereof, precluding an inference that termination was caused
by other, protected activities); Yarde v. Good Samaritan Hosp., 360 F. Supp. 2d 552, 562
(S.D.N.Y. 2005) (granting summary judgment and dismissing retaliation case where "a
reasonable fact-finder could only conclude that there were substantial intervening events
between the [protected] January complaint and both the April suspension and the June
discharge"); see also Savage v. Galaxy Media & Mktg. Com., No. I l-CV-6791 (NRB), 2012
WL 2681423, at *9 (S.D.N.Y. July 5, 2012) (holding that where plaintiff concedes reason for
breach of contract other than the alleged tortious interference, but-for causation cannot be
established). Accordingly, for substantially the same reasons set forth in Judge Orenstein's
R&R, the court finds that Plaintiff has insufficiently alleged causation with respect to his tortious
20
interference with employment or business relations and retaliatory conduct causes of action. The
court therefore adopts this portion of the R&R, and these claims are dismissed.
D.
Discrimination and Hostile Work Environment Claims
1.
Race-Based Claims
The RJF Defendants did not object to Judge Orenstein's recommendation that Plaintiff's
race discrimination and hostile work environment claims proceed, and the court finds no clear
error in this recommendation. Therefore, the R&R is adopted with respect to the analysis and
disposition thereof, and the RJF Defendants' motion to dismiss as to these claims is denied.
2.
Age-Based Claims
Although no objection has been raised thereto, the court finds Judge Orenstein's R&R
unclear with respect to the recommended disposition of Plaintiff's age discrimination and hostile
work environment claims. The ultimate recommendation appears to propose that these claims be
dismissed. (See R&R at 1, 20.) However, in the body of the R&R, Judge Orenstein concluded
that the court "can and should deny" RJF Defendants' motion to dismiss as to Plaintiff's age
discrimination and hostile work environment claims on the grounds that RJF Defendants
affirmatively waived their right to seek dismissal of these claims. (Id. at 13-15.) Judge
Orenstein then went on to conclude that dismissal of the age discrimination and hostile work
environment claims was warranted on the merits. (Id. at 19-20.) In making his ultimate
recommendation, Judge Orenstein did not address his affirmative waiver finding (see id. at 20);
indeed, nowhere in the R&R did he explain why that waiver should not be dispositive of the
outcome. The court hereby exercises its discretion to modify this portion of the R&R. 17
17
The court need not determine whether this lack of clarity constitutes clear error.
21
As Judge Orenstein explained, when litigating their Motion for Judgment on the
Pleadings, RJF Defendants argued at first that Plaintiff's Initial Complaint should be dismissed
in its entirety. (See RJF Mem. in Supp. of Mot. for J. on the Pleadings (Dkt. 18) at 14.) In their
reply, however, they conceded that "Plaintiff has pied an adequate discrimination claim based
upon age and national origin." (RJF Reply in Supp. of Mot. for J. on the Pleadings at 4.) On this
basis, the court denied their motion as to these claims (see Mar. 5, 2013, Order at 4), which RJF
Defendants acknowledge in their reply to the instant motion. (See RJF Reply (Dkt. 45) at 3
(acknowledging that "the denial of the prior motion was occasioned by Defendants' voluntary
abandonment of its pursuit to dismiss the discrimination causes of action").) Furthermore, RJF
Defendants again affirmatively conceded the viability of Plaintiff's age and race discrimination
and hostile work environment claims in a conference before Judge Orenstein, after the filing of
Plaintiffs FAC and in anticipation of the filing of the SAC and the motions to dismiss that are
the subject of this Memorandum and Order; and they expressed no intention to move to dismiss
with respect to those claims. (Tr. of May 6, 2013, PMC (Dkt. 47) at 17:2-13.)
Indeed, Judge Orenstein found that RJF Defendants knowingly waived their right to seek
Rule 12(b)(6) dismissal of any of Plaintiff's discrimination and hostile work environment claims
through this series of affirmative concessions. (R&R at 14-15.) The court finds Judge
Orenstein's discussion ofRJF Defendants' affirmative waiver to be persuasive, 18 and adopts
solely this portion of the R&R (id.) with respect to Plaintiff's age discrimination and hostile
work environment claims. In light of the court's March 5, 2013, Order, and RJF Defendants'
concessions, both before and after the entry of that Order, Plaintiff had no reason to add
additional factual allegations in support of these claims when amending his Initial Complaint
18
See R&R at 14 (distinguishing affirmative defenses from a pleading's facial inadequacy); id. at 15 (distinguishing
affirmative waiver ofa known right from mere forfeiture).
22
and/or FAC. Therefore, it would be patently unfair to dismiss Plaintiff's age-based claims at this
point, especially after RJF Defendants' repeated concessions. The court accordingly modifies
the R&R with respect to Judge Orenstein's discussion of the merits of and ultimate
recommendation as to Plaintiff's age discrimination claims, and denies RJF Defendants' motion
to dismiss with respect to these claims. If the evidence obtained in discovery does not
sufficiently support these claims, RJF Defendants may again seek to dispose of them on a motion
for summary judgment. 19
IV.
CONCLUSION
For the reasons discussed above, the court OVERRULES Plaintiff's objections to Judge
Orenstein's R&R. The court ADOPTS IN PART and MODIFIES IN PART the R&R. Thus,
RJF Defendants' motion to dismiss is DENIED with respect to Plaintiff's race and age
discrimination and hostile work environment claims, and Plaintiff's other claims are
DISMISSED.
SO ORDERED.
s/Nicholas G. Garaufis
NICHOLAS G. GARAUFIS
United States District Judge
Dated: Brooklyn, New York
November .!L 2014
19
As to all portions of the R&R not specifically addressed in Parts Ill.B-D, supra, the court finds no clear error and
adopts them accordingly.
23
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?