Centeno v. 75 Lenox Realty LLC

Filing 77

ORDER ADOPTING REPORT AND RECOMMENDATIONS --- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, upon due consideration and review, the objections to the detailed, thorough and very well reasoned Report and Recommendation (" R & R") issued by the Hon. Lois Bloom, U.S.M.J., on February 1, 2017, are overruled and the R&R is adopted in its entirety. Accordingly, it is hereby ORDERED that: (i) Defendant's Motion is granted to the extent that Plaintiff's clai ms for breach of contract and for claims arising under the FMLA and NYSHRL are dismissed, and (ii) Plaintiff's Cross-Motion is granted to the extent that J.K. Management is deemed a proper party to this action, J.K. Management and 75 Lenox are a single employer, and Defendants qualify as an "employer" under Title VII and ADEA. Pursuant to Federal Rule of Civil Procedure 60(a), the Clerk of the Court is directed to correct the docket sheet to reflect J.K. Management as a party in this action. J.K. Management shall file its answer to the Amended Complaint within 14 days of entry of this Memorandum & Order. The parties are ordered to contact Magistrate Judge Bloom's chambers within twenty-one (21) days of the date of this Memorandum & Order to schedule a settlement conference. If settlement discussions are unsuccessful, within thirty (30) days of the final settlement conference, the parties shall submit for the district judge's approval their Joint Pretrial Order. SO ORDERED by Chief Judge Dora Lizette Irizarry on 3/31/2017. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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BLANCA CENTENO,
:
:
Plaintiff,
:
:
:
75 LENOX REALTY LLC/
:
J.K. MANAGEMENT CORP.,
:
:
Defendants.
:
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DORA L. IRIZARRY, Chief Judge:

MEMORANDUM & ORDER
ADOPTING REPORT &
RECOMMENDATION
14-cv-1916 (DLI)(LB)

Before the Court are 75 Lenox Realty LLC’s (“75 Lenox”) and J.K. Management
Corporation’s (“J.K. Management,” and together with 75 Lenox, “Defendants”) Objections to the
Report and Recommendation issued by United States Magistrate Judge Lois Bloom on February
1, 2017 (the “Objections” to the “R&R”), recommending that (i) Defendants’ motion for summary
judgment (“Defendants’ Motion” or “Def. Mot.”) be granted, in part, and denied, in part; and
(ii) Blanca Centeno’s (“Plaintiff”) motion for summary judgment (“Plaintiff’s Cross-Motion” or
“Pl. Cross-Mot.”) be granted, in part, and denied, in part. For the reasons set forth below, the R&R
is adopted in its entirety.
BACKGROUND1
On March 25, 2014, Plaintiff initiated this action though which she alleges that Defendants
discriminated against her based on her age and gender, denied her certain rights under federal law,
and retaliated against her, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000(e), et seq. (“Title VII”), the Age Discrimination in Employment Act of 1967 (“ADEA”),
29 U.S.C. § 621, et seq., the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601,

1
The Court assumes familiarity with the facts of this case, which are set forth in greater detail in the R&R.
(R&R at 1-9.)

et seq., the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201, et seq., and the New
York State Human Rights Law (“NYSHRL”), N.Y. Exex. L. § 290, et seq. (Am. Compl., Dkt.
Entry No. 45.) Plaintiff also alleges Defendants breached an oral contract by failing to compensate
her for back vacation pay. (Id. at 9-10.)   
On February 15, 2016, Defendants served their motion for summary judgment, arguing
that: (i) J.K. Management is not a proper party; (ii) Plaintiff’s claims are precluded by an order of
the New York State Division of Human Rights (the “NYSDHR” and the “NYSDHR Order”);
(iii) Plaintiff was not discriminated against and her employment was terminated for good cause;
(iv) Plaintiff cannot establish a claim for retaliation; (v) Plaintiff fails to meet the requirements for
a claim under FMLA; and (vi) Plaintiff’s breach of contract claim is meritless. (Def. Mot., Dkt.
Entry Nos. 56-58; see Reply in Further Support of Def. Mot., Dkt Entry Nos. 71-72.) On March
28, 2016, Plaintiff served her opposition to Defendant’s Motion and her cross-motion for summary
judgment, arguing in the cross-motion, that:

(i) J.K. Management is a proper party, and

(ii) Defendants are employers covered by the federal and state employment laws at issue in this
action. (Pl. Cross-Mot., Dkt. Entry Nos. 59-70.)
After this Court referred the Defendant’s Motion and Plaintiff’s Cross-Motion to
Magistrate Judge Bloom for the preparation of the R&R, on February 1, 2017, the magistrate judge
issued the R&R, recommending that Defendants’ Motion be granted as to Plaintiff’s claims “for
FMLA retaliation, breach of contract, and claims arising under the NYSHRL.” (R&R at 39.) The
magistrate judge further recommended that Defendant’s Motion be denied and Plaintiff’s CrossMotion be granted “on the grounds that J.K. Management is a proper party, J.K. Management and
75 Lenox are a single-employer, and that defendants qualify as an ‘employer’ under Title VII and
the ADEA.” (Id.) The magistrate judge found disputed issues of material of fact existed as to

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“plaintiff’s discrimination claims under Title VII and the ADEA as well as plaintiff’s retaliation
claims under Title VII, the ADEA, and the FLSA.” (Id.)
With respect to the propriety of J.K. Management’s presence in this case and whether
Defendants, together, qualify as an “employer” under the applicable laws, the magistrate judge’s
findings of fact and conclusions of law consisted of the following: (i) neither Plaintiff’s failure to
name J.K. Management in her NYSDHR complaint, nor the manner in which Defendants were
named in the Amended Complaint allow J.K. Management to escape this action (R&R at 10-14);
(ii) NYSDHR Order does not preclude Plaintiff’s claims because, among other reasons, Plaintiff
appeared pro se during the NYSDHR proceedings (Id. at 14-17); (iii) J.K. Management and 75
Lenox should be considered a “single employer” pursuant to Murray v. Miner, 74, F.3d 402 (2d
Cir. 1996), and, therefore, their employee numbers can be aggregated to reach the minimum
thresholds required under the relevant laws (Id. at 17-21); (iv) based on the aggregated employee
numbers, Plaintiff meets the statutory minimum thresholds under Title VII, ADEA and NYSHRL
(Id. at 21-23).
As to Plaintiff’s allegations of discrimination under Title VII and ADEA, the magistrate
judge found that: (i) Plaintiff was a “qualified employee;” (ii) Plaintiff established a prima facie
case of discrimination; and (iii) while Defendants offer a legitimate, nondiscriminatory reason for
Plaintiff’s dismissal, factual disputes exist as to whether those reasons were pretextual. (R&R at
23-30.) Similarly, the magistrate judge found, with respect to Plaintiff’s retaliation claims under
Title VII, ADEA, and FLSA, that material issues of fact existed as to pretext. (Id. at 30-34.)
However, the magistrate judge recommended granting Defendant’s Motion with respect to
Plaintiff’s retaliation claim under the FMLA because Plaintiff has not shown she was eligible for
leave under the FMLA. (Id. at 34-36.)

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Finally, the magistrate judge concluded that: (i) Plaintiff’s breach of contract claim should
be dismissed because she had not submitted evidence to show she was entitled to the two weeks
of annual vacation that she alleges she was never paid (Id. at 37); and (ii) Plaintiff’s NYSHRL
claims are barred by the election of remedies doctrine (Id. at 37-39).
On February 14, 2017, Defendants timely filed the Objections, which, collectively, object
to all aspects of the R&R that recommend denying portions of Defendants’ Motion. (Objections,
Dkt. Entry No. 74.) Specifically, the Objections challenge the following findings:
1.

certain factual findings and/or omissions;

2.

that J.K. Management is a proper party;

3.

that JK Management and 75 Lenox are a single-employer;

4.

that aggregation under the single employer doctrine is permitted in the
Second Circuit, and in this particular case;

5.

that Defendants qualify as an “employer” under Title VII and the ADEA;

6.

not considering altogether whether Defendants’ workers qualify as
“employees” under Title VII and the ADEA, before granting summary
judgment to Plaintiff on the issue of statutory coverage;

7.

although acknowledging that Plaintiff’s discrimination claim under the
FMLA should be dismissed in the body of the R&R, by not explicitly or
clearly stating same in the Order or Conclusion of the R&R;

8.

that Plaintiff sufficiently established her prima facie case with respect to her
discrimination claims under Title VII and the ADEA, to withstand summary
judgment;

9.

that Plaintiff sufficiently established her prima facie case with respect to her
retaliation claims under Title VII, the ADEA, and the FLSA, to withstand
summary judgment.

(Objections at 2.)
On February 28, 2017, Plaintiff timely opposed Defendants’ objections. (Opp. to the
Objections at 1, Dkt. Entry No. 76.)

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DISCUSSION
When a party objects to an R&R, a district judge must make a de novo determination as to
those portions of the R & R to which a party objects. See FED. R. CIV. P. 72(b)(3); United States
v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). Pursuant to the standard often articulated by the
district courts of this Circuit, “[i]f a party simply relitigates his original arguments, the Court
reviews the Report and Recommendation only for clear error.” Antrobus v. New York City Dep’t
of Sanitation, 2016 WL 5390120, at * 1 (E.D.N.Y. Sept. 26, 2016) (citations and quotation marks
omitted); see also Rolle v. Educ. Bus Transp., Inc., 2014 WL 4662267, at *1 (E.D.N.Y. Sept. 17,
2014) (“[A] rehashing of the same arguments set forth in the original papers . . . would reduce the
magistrate’s work to something akin to a meaningless dress rehearsal.”) (citations and internal
quotation marks omitted). On the other hand, the Second Circuit Court of Appeals has suggested
that a clear error review may not be appropriate “where arguably ‘the only way for a party to raise
. . . arguments is to reiterate them.’” Moss v. Colvin, 845 F.3d 516, 520 n.2 (2d Cir. 2017) (quoting
Watson v. Geithner, 2013 WL 5441748, at *2 (S.D.N.Y. Sept. 27, 2013) (alteration added in Moss;
other alterations from Moss omitted). Nonetheless, a court will not “ordinarily . . . consider
arguments, case law and/or evidentiary material which could have been, but [were] not, presented
to the magistrate judge in the first instance.” Santiago v. City of New York, 2016 WL 5395837, at
*1 (E.D.N.Y. Sept. 26, 2016) (internal citation and quotation marks omitted). After its review, the
district court may then “accept, reject, or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with instructions.” FED. R. CIV. P. 72(b)(3);
see also 28 U.S.C. § 636(b)(1).

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The Court has reviewed the R&R de novo with respect to eight of Defendant’s objections
(Objection Nos. 1-6 and 8-9), and has reviewed the remainder of the R&R for clear error.2 For the
reasons set forth below, the Court adopts the detailed, thorough and very well reasoned R&R in
its entirety.
I.

Defendants Qualify as an Employer Under Title VII and the ADEA.
Defendants’ Objections Nos. 2 through 6 all challenge the magistrate judge’s findings

concerning her ultimate recommendation that Defendants, together, qualify as an “employer”
under Title VII and the ADEA. Having reviewed these findings in detail, the Court has concluded
that Objections to these portions of the R&R are meritless, and it adopts the reasoning of the
magistrate judge in full. Although some of Defendants’ many specific objections do not warrant
this Court’s attention as they present the same arguments that were soundly rejected by the
magistrate judge, the Court addresses below the legal challenges raised in the Objections, as well
as the Defendant’s disagreement with certain factual findings.
A. The Magistrate Judge Correctly Applied the “Identity of Interest” Exception.
Defendant’s first principal contention3 is that the magistrate judge erred in her application
of the “identity of interest” exception factors as set forth Cook v. Arrowsmith Shelburne, Inc., 69
F.3d 1235, 1241-42 (2d Cir. 1995). In Cook, the Second Circuit explained that a party’s omission
from an EEOC complaint does not warrant its dismissal if the unnamed parties have an identity of

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Objection No. 7, regarding the purported lack of clarity of the R&R’s recommendation as to Plaintiff’s FMLA
claim, is rendered moot by Plaintiff’s acknowledgement that the claim is dismissed. (Opp. to Objections at 12.)
Objection No. 1, which states “certain factual findings and/or omissions,” is considered herein as to the factual
underpinnings of each of the R&R’s conclusions.
3

Although Defendants first takes issue with the magistrate judge’s analysis concerning the purportedly
deficient caption to the Amended Complaint, the Court need not address Defendants’ repeated arguments. The Court
adopts the magistrate judge’s reasoning on this point in full. (See R&R at 10-12.)

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interest with the named parties. Id. at 1241. In making this determination, a court is to consider
four factors:
1) whether the role of the unnamed party could through reasonable effort by the
complainant be ascertained at the time of the filing of the EEOC complaint;
2) whether, under the circumstances, the interests of a named [party] are so similar
as the unnamed party’s that for the purpose of obtaining voluntary conciliation and
compliance it would be unnecessary to include the unnamed party in the EEOC
proceedings; 3) whether its absence in the EEOC proceedings resulted in actual
prejudice to the interests of the unnamed party; and 4) whether the unnamed party
has in some way represented to the complainant that its relationship with the
complainant is to be through the named party.
Id. at 1241-42 (quoting Johnson v. Palma, 931 F.2d 203, 209-10 (2d Cir.1991)).
Defendants assert it is problematic that “[t]he R&R only contends that Plaintiff meets
[factors 2-4],” arguing that a trial was needed to determine whether the first factor was satisfied.
(Objections at 6-7.) The Court disagrees, as it is clear that a plaintiff need not satisfy each of the
factors to be eligible for the exception. Indeed, Defendants’ argument is refuted most clearly by
the court’s conclusion in Cook that “[a]lthough the first factor of the Johnson test weights against
[plaintiff]—it is arguable that she could easily have included [the party omitted from the
complaint] in the EEOC charge—factors two and three strongly favor allowing her to name [the
party] as a defendant in the instant suit.” Cook, 69 F.3d at 1242. Moreover, although Defendants
also take issue with the R&R’s findings as to the remaining three factors, their arguments fall flat
as they fail to refute any of the evidence cited by the magistrate judge to support her conclusions
that: (i) J.K. Management and 75 Lenox are identical; (ii) J.K. Management has not suffered any
prejudice; and (iii) “J.K. Management had represented to plaintiff that its relationship to plaintiff
was through 75 Lenox and not J.K. Management.” (Compare R&R at 13-14 with Objections at 67.) Finally, Defendants’ argument that the magistrate judge was required to assess whether an
agency-principal relationship existed between the two companies for jurisdictional purposes is a

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red herring. Indeed, Defendants have cited to no precedent that mandates such a requirement in
this context. (Objections at 5-7; see Opp. to Objections at 6.)
B. The Magistrate Judge Did Not Err in Finding J.K. Management and 75 Lenox are
a Single Employer for Purposes of Aggregating Employees Under Title VII and
the ADEA.
Defendants next take issue with the magistrate judge’s finding that J.K. Management and
75 Lenox may be considered a single employer for purposes of aggregating the number of
employees to meet the requirements of Title VII and the ADEA. (Objections at 7-12.) As an
initial matter, Defendants renew the argument made in their motion for summary judgment that
the single employer doctrine does not apply outside of a parent-subsidiary relationship, and,
therefore cannot apply to Defendants. (Objections at 8-9.) For the reasons set forth in the R&R,
including the magistrate judge’s analysis of Papa v. Katy Industries, Inc., 166 F.3d 937 (7th Cir.
1999), upon which Defendants relied to support this argument in their motion (but not in their
Objections), the Court concurs with the magistrate judge. (See R&R at 19-20.) Indeed, Defendants
have neither cited any authority that imposes such a restriction, nor presented a compelling
argument why one should be imposed. (Objections at 8.)4
Defendants also contend that, because Second Circuit never has explicitly approved of
aggregation under the single employer doctrine, it should not be permitted by this Court. The
parties and the magistrate judge all agree that this an issue not yet resolved by the Circuit Court.
(R&R at 20; Objections at 9; Opp. to Objections at 9; see Arculeo v. On-Site Sales & Mktg., LLC,
425 F.3d 193, 199 (2d Cir. 2005) (“[O]ur Circuit as yet taken no position on whether aggregation

4

The Court also is not swayed by Defendants’ contention that the R&R is inconsistent in finding that J.K.
Management and 75 Lenox can be considered a single employer whereas J.K. Management and all of the 16 buildings
it controls is not. (Id.) As explained in the R&R, the record was not developed sufficiently as to the relationship
between J.K. Management and the buildings, which is why the magistrate judge ultimately concluded Plaintiff could
not meet the statutory requirement under the FMLA. (R&R at 22.)

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is appropriate in either the single employer or the joint employer context for purposes of
determining whether the Title VII threshold is met.”).) Nevertheless, in Arculeo, the Court noted
that several “[d]istrict court opinions in this Circuit have allowed aggregation of all employees of
multiple entities under the single employer doctrine, based upon a finding that those nominally
distinct entities should be deemed a single integrated employer for purposes of Title VII.” Id. at
198 (emphasis in original); see R&R at 20-21 (quoting Ayala v. Metro One Sec. Systems, Inc.,
2011 WL 1486559, at *8 (E.D.N.Y. Apr. 19, 2011)). Moreover, as Plaintiff points out, at least
three circuit courts of appeals have held the same with respect to single employers or joint
employers. (Opp. to Objections at 9-10 (citing Anderson v. Pacific Maritime Ass’n, 336 F. 3d 924,
929 (9th Cir. 2003); Sanford v Main St. Baptist Church Manor, Inc., 449 Fed. Appx. 488, 491 (6th
Cir. 2011); Virgo v. Riviera Beach Assocs., Ltd., 30 F.3d 1350, 1360-61 (11th Cir. 1994)).) This
Court joins those district and circuit courts that have found aggregation of employees of “single
employers” is appropriate for purposes of determining whether thresholds are met under the
relevant statutes.
Finally, the Court notes that it finds no merit in Defendants’ final two arguments that:
(i) the magistrate judge failed to assess “[w]hether Defendants’ [w]orkers [c]onstitute
‘[e]mployees,’” under the relevant statutes, and to count accurately Defendants’ employees; or
(ii) Defendants are not engaged in an “industry affecting commerce.” (Objections at 9-12.) With
respect to the first argument, the magistrate judge plainly and correctly addressed both the number
of Defendants’ employees and their designation as employees. (R&R at 21-22, n.18, n.19.) In
any event, Plaintiff correctly points out that Defendants have cited no authority that contradicts
the magistrate judge’s findings. (Opp. to Objections at 10-11.) Similarly, Defendants cite nothing
to support the untenable claim that they are not in an “industry affecting commerce.” (Objections

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at 11-12.) The magistrate judge correctly observed that the United States Supreme Court squarely
has decided otherwise. (R&R at 21 n.17 (citing Russell v. U.S., 471 U.S. 868, 862 (1985)).)5
II.

Plaintiff Has Made a Prima Facie Case for Discrimination Under Title VII and the
ADEA, and Retaliation Under Title VII, the ADEA, and the FLSA.
Defendants’ discussion of Objections Nos. 8 and 9, which spans the majority of the

memorandum of law supporting their Objections, consists of a haphazard attack on the factual
findings supporting the magistrate judge’s conclusion that Plaintiff has satisfied her burden of
establishing a prima facie case for discrimination and retaliation. Having reviewed carefully these
portions of the R&R, and Defendant’s Objections thereto, the Court adopts the reasoning of the
magistrate judge in full.
A. Title VII and ADEA Discrimination
To establish a prima facie case of discrimination under Title VII or the ADEA, a plaintiff
must establish that: “(i) the plaintiff was a member of the protected class; (ii) plaintiff was
qualified for the job; (iii) plaintiff suffered an adverse employment action; and (iv) the adverse
employment action occurred under circumstances giving rise to an inference of discrimination.”
(R&R at 24 (citing Terry v. Ashcroft, 336 F.3d 128, 137-38).) Defendants agree this is the correct
standard, but assert that Plaintiff has not presented evidence sufficient to establish the second or
fourth criteria. (Objections at 13.) The Court disagrees.
First, as the magistrate judge recognized in the R&R, “Defendants’ allegation that plaintiff
lacked the qualifications for a job she held for over 20 years is belied by the record.” (R&R at 25.)
The magistrate judge further explained why no specific licenses were necessary under the law to

5

Defendants call Russell a “‘non-binding’ Seventh Circuit case” (Objections at 11 (emphasis in original)),
which clearly is false, Russell, 471 U.S. at 862 (affirming a Seventh Circuit decision and holding that, because
defendant “was renting his apartment building to tenants at the time he attempted to destroy it by fire[,] [t]he property
was therefore being used in an activity affecting commerce within the meaning of [18 U.S.C.] § 844(i)”).

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be considered a qualified employee. (R&R at 25-26 (citing Owens v. N.Y. City Hous. Auth., 934
F.2d 405, 409 (2d Cir. 1991).)

Moreover, Defendants’ attempt to attack Plaintiff’s job

performance (Objections at 14-15) does little to undermine the countervailing evidence cited by
the magistrate judge that “the building was kept in good condition until 2012.” (R&R at 26).
Second, given that a plaintiff’s burden to demonstrate an inference of discrimination is de
minimis, Zimmerman v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001), the Court
agrees with the magistrate judge that the evidence presented—in the form of Defendants’ office
manager’s statement that the demands of the job make it difficult “[f]or a woman to do”—is
sufficient to meet that element. (R&R at 27 (citing Deposition of Ludmila Esther Jenkelowitz
(“Jenkelowitz Dep.”), Declaration of Rebekah Diller (“Diller Decl.”) Ex. B at 60, Dkt. Entry No.
61).) Indeed, Defendants cite no comparable case law in support of their assertion that Plaintiff’s
evidence is not sufficient to meet the de minimis burden. (Objections at 16-17.) Moreover,
although not explicitly stated in this portion of the R&R, the Court agrees with Plaintiff that the
building manager’s alleged statements regarding Plaintiff’s age (see R&R at 6 (quoting Deposition
of Blanca Centeno, Diller Decl. Ex. E at 41)), combined with the fact that Plaintiff was replaced
by a younger employee (Jenkelowitz Dep. at 53 (indicating Plaintiff had been replaced by a man
in his “upper 40s”)), is a sufficient evidence to establish an inference of discrimination based on
the Plaintiff’s age and gender. (See generally Opp. to Objections at 16.)6

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Defendants also argue here that the NYSDHR Order had found “that Plaintiff’s age and gender were constant
throughout her 20 years of employment with Defendant.” (Objections at 17 (emphasis added).) Of course, this
assertion makes no sense, and it was not the conclusion of the NYSDHR Order. The Order, instead, made the point
that, in the year Plaintiff did not receive a Christmas bonus, she was relatively the same age from the year(s)
immediately prior, when she did receive one. (Declaration of Leon I. Behar Ex. D at 4, Dkt. Entry No. 58.) In any
event, the argument has no merit as Plaintiff does not tie her denial of a Christmas bonus directly to her age
discrimination allegations, but rather alleges that the bonus denial and subsequent firing were in retaliation of her
FLSA complaint and settlement. (R&R at 32.)

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Finally, based on the conflicting evidence presented concerning whether Defendants had a
legitimate nondiscriminatory reason to terminate Plaintiff’s employment, the Court agrees with
the magistrate judge that a disputed issue of material fact exists on this point. (R&R at 27-30.)7
B. Title VII, ADEA and FLSA Retaliation
“To establish a prima facie case of retaliation [under Title VII, the ADEA or the FLSA],
a plaintiff must show that (1) she participated in a protected activity known to the defendant;
(2) she suffered an adverse employment action; and (3) a causal connection exists between the
protected activity and the adverse employment action.” (R&R at 30 (citing Richardson v. Comm’n
on Human Rights & Opportunities, 532 F.3d 114, 123 (2d Cir. 2008); Kessler v. Westchester Cnty.
Dep’t Social Servs., 461 F.3d 199, 205-06 (2d Cir. 2006)); see Objections at 22.) The Court agrees
with the magistrate judge that the Plaintiff’s oral complaints to the office manager suffice as
protected activities for purposes of her Title VII and ADEA claims, and her filing of an FLSA
complaint (and subsequent settlement) suffice as protected activities under the FLSA. (R&R at
31-34.) Defendants raise no persuasive arguments on this point. (See Objections at 23-24.)
Defendants also rehash the arguments from their motion concerning the “General Release”
Plaintiff executed with Defendants to settle her original FLSA complaint. (Objections at 24-25.)
As the magistrate judge observed, the retaliation alleged by Plaintiff here occurred after the
execution of the General Release. (R&R at 33-34.) As a result, it does not bar Plaintiff’s claims
here. (See R&R at 34 (“Construing it otherwise would risk conferring an indefinite prospective

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Defendants’ argument that the magistrate judge failed to consider the NYSDHR Order (Objections at 18-20)
is also without merit. To the contrary, the R&R included an extensive discussion concerning the effect of the order,
concluding that it did not bar Plaintiff’s claims because they were not actually litigated. (R&R at 14-17.) Defendants
do not support their assertion that the conclusions of the NYSDHR are to be afforded any deference in this action.

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immunity on the releasee[.]”) (quoting Info. Superhighway, Inc. v. Talk Am., Inc., 274 F. Supp. 2d
466, 471 (S.D.N.Y. 2003)).)
CONCLUSION
Upon due consideration and review, the objections are overruled, and the magistrate
judge’s detailed, thorough and very well reasoned R&R is adopted in its entirety. Accordingly, it
is hereby ORDERED that: (i) Defendant’s Motion is granted to the extent that Plaintiff’s claims
for breach of contract and for claims arising under the FMLA and NYSHRL are dismissed, and
(ii) Plaintiff’s Cross-Motion is granted to the extent that J.K. Management is deemed a proper
party to this action, J.K. Management and 75 Lenox are a single employer, and Defendants qualify
as an “employer” under Title VII and ADEA. Pursuant to Federal Rule of Civil Procedure 60(a),
the Clerk of the Court respectfully is directed to correct the docket sheet to reflect J.K.
Management as a party in this action. J.K. Management shall file its answer to the Amended
Complaint within 14 days of entry of this Memorandum & Order.
The parties are ordered to contact U.S. Magistrate Judge Lois Bloom’s chambers within
twenty-one (21) days of the date of this Memorandum & Order to schedule a settlement
conference. If settlement discussions are unsuccessful, within thirty (30) days of the final
settlement conference, the parties shall submit for the district judge’s approval their Joint Pretrial
Order.
SO ORDERED.
Dated: Brooklyn, New York
March 31, 2017
/s/
DORA L. IRIZARRY
Chief Judge

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