Fukelman et al v. Delta Airlines, Inc.
Filing
68
ORDER ADOPTING REPORT AND RECOMMENDATION: For the reasons stated in the attached Memorandum and Order, the Court adopts those portions of the 63 R&R that pertain to Plaintiffs' remaining claims of discrimination under Title VII, Section 1981, and the ADEA, and grants Defendant's 46 motion to dismiss those claims. The Clerk of Court is respectfully requested to enter judgment and close this case. Ordered by Judge Pamela K. Chen on 5/29/2020. (Marks, Miriam)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CYNTHIA FUKELMAN, TSIPORA KUBA,
YOUNG SOOK SANCHEZ, BRIAN
MILLER, JOHN SUAREZ, TRACEY ALLEN,
ARIEL DAVID, YARON GILINSKY,
TOMER BITON, and ANTHONY PANZA,
MEMORANDUM & ORDER
18-CV-00002 (PKC) (PK)
Plaintiffs,
- against DELTA AIR LINES, INC.,
Defendant.
-------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:
Plaintiffs Cynthia Fukelman, Tsipora Kuba, Young Sook Sanchez, Brian Miller, John
Suarez, Tracey Allen, Ariel David, Yaron Gilinsky, Tomer Biton, and Anthony Panza commenced
this action on January 2, 2018, alleging discrimination pursuant to Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981 (“Section 1981”); the Age
Discrimination in Employment Act of 1967 (the “ADEA”), 29 U.S.C. § 621 et seq.; the Family
Medical Leave Act of 1993 (the “FMLA”), 29 U.S.C. § 2601 et seq.; the Americans with
Disabilities Act (the “ADA”), 42 U.S.C. § 12101 et seq.; the New York State Human Rights Law,
and the New York City Human Rights Law. Plaintiffs thrice amended their complaint (Dkts. 37,
33, 24), with each amendment preceded by a pre-motion request by Defendant to file a motion to
dismiss, and a pre-motion conference being held by the Honorable Peggy Kuo, United States
Magistrate Judge (see Dec. 12, 2018 Minute Entry; Oct. 12, 2018 Minute Entry; Apr. 5, 2018
Minute Entry).
On March 29, 2019, Defendant moved to dismiss Plaintiffs’ third amended
complaint (“TAC”) pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. 46.) Defendant’s
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motion was referred to Judge Kuo for a Report and Recommendation (“R&R”) pursuant to 28
U.S.C. § 636(b) and Local Rule 72.1(d). (May 8, 2019 Order.) Judge Kuo recommended that
Defendant’s motion to dismiss be granted in its entirety. (R&R, Dkt. 63, at 51.) Plaintiffs timely
filed objections to the R&R on April 27, 2020 (Dkt. 64), and Defendant filed its opposition to
Plaintiffs’ objections on May 11, 2020 (Dkt. 67). Finding no merit to Plaintiffs’ objections and no
error in Judge Kuo’s recommendations, the Court adopts the R&R as to Plaintiffs’ remaining
claims 1 in its entirety and grants Defendant’s motion to dismiss those claims.
STANDARD OF REVIEW
A district court reviewing a magistrate judge’s recommended ruling “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). With respect to a magistrate judge’s recommendation on a dispositive
matter, the district court reviews for clear error those findings to which a party has not specifica lly
objected. See Bassett v. Elec. Arts, Inc., 93 F. Supp. 3d 95, 101 (E.D.N.Y. 2015) (“The district
court may adopt those portions of the recommended ruling to which no timely objections have
been made, provided no clear error is apparent from the face of the record.” (citing, inter alia, 28
U.S.C. § 636(b)(1)(C))). The district court reviews de novo those portions of an R&R to which a
party has specifically objected. See 28 U.S.C. § 636(b)(1)(C) (“A judge of the court shall make a
de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.”); Fed. R. Civ. P. 72(b)(3) (“The district judge must
determine de novo any part of the magistrate judge’s disposition that has been properly objected
to.”). However, “objections that are merely perfunctory responses argued in an attempt to engage
As part of their objections, Plaintiffs withdrew their ADA, FMLA, and New York state
law claims. (Plaintiffs’ Objections (“Pls.’ Objs.”), Dkt. 64, at ECF 14.)
1
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the district court in a rehashing of the same arguments set forth in the original papers will not
suffice to invoke de novo review.” Rafiy v. County of Nassau, No. 15-CV-6497 (SJF) (GRB),
2019 WL 7046560, at *1 (E.D.N.Y. Dec. 23, 2019) (quoting Owusu v. N.Y. State Ins., 655 F. Supp.
2d 308, 312–13 (S.D.N.Y. 2009)). “General or conclusory objections, or objections which merely
recite the same arguments presented to the magistrate judge, are reviewed for clear error.” Chime
v. Peak Sec. Plus, Inc., 137 F. Supp. 3d 183, 187 (E.D.N.Y. 2015) (internal quotation and citation
omitted).
DISCUSSION
Plaintiffs raise six objections, each of which argues that the R&R failed to consider some
set of Plaintiffs’ factual allegations related to their claims of discrimination based on ethnicity and
age. 2 Specifically, Plaintiffs’ objections argue that
(1) the R&R “applied a heightened and improper standard” in dismissing Plaintiffs’ claims
(Pls.’ Objs., Dkt. 64, at ECF 5–6);
(2) the R&R failed to consider Plaintiffs’ allegations that they were disciplined by
Defendant for policy violations they allegedly did not commit (id. at ECF 9);
(3) Plaintiffs’ hostile work environment claims are plausible because the anti-Semitic
comments were “objectively severe,” and “Plaintiffs subjectively found the
environment to be abusive” (id. at ECF 10–11);
(4) Plaintiffs’ associational claims are plausible because Plaintiffs “were the target of false
discipline” by Defendant, and the R&R did not adequately consider these allegatio ns
(id. at ECF 12–13);
(5) the R&R erred in dismissing Plaintiffs’ claims because “comparators are not a legal
requirement to survive a motion to dismiss” (id. at ECF 13); and
(6) Plaintiffs’ age discrimination claims are plausible (id. at ECF 14).
The Court assumes that Plaintiffs’ objections, which do not cite to any underlying statutes,
refer to their discrimination claims under Title VII, Section 1981, and the ADEA.
2
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The Court considers each objection in turn and reviews de novo the portions of the R&R to which
each objection pertains, unless otherwise noted.
As an initial matter, at the motion to dismiss stage the Court treats the elements of a prima
facie case as “an outline of what is necessary to render a plaintiff’s employment discrimina tio n
claims for relief plausible.” Barrett v. Forest Labs., Inc., 39 F. Supp. 3d 407, 429 (S.D.N.Y. 2014)
(internal quotations and citation omitted); see also Littlejohn v. City of New York, 795 F.3d 297,
308 (2d Cir. 2015) (noting that the standard for establishing the sufficiency of a plaintiff’s prima
facie case is not a pleading requirement but an evidentiary standard). Thus, in order for the Court
to deem a set of factual allegations plausible, and therefore adequate to defeat a motion to dismiss,
a plaintiff must allege facts that allow the Court, in substance, to infer the essential elements of a
prima facie case. See Sosa v. N.Y.C. Dep’t of Educ., 368 F. Supp. 3d 489, 495 (E.D.N.Y. 2019)
(citation omitted).
Here, the Court notes that the R&R sets out the correct prevailing legal
standards in examining Plaintiffs’ discrimination claims under Title VII, Section 1981, and the
ADEA. (See R&R, Dkt. 63, at 16–17 (Title VII), 28 (Section 1981), 29 (the ADEA).) 3
I.
Plaintiffs’ Objection to the R&R’s Motion to Dismiss Standard
Plaintiffs first object to the R&R on the grounds that the R&R “failed to consider all of
Plaintiffs’ allegations” and prematurely “applied a heightened standard” in dismissing Plaintiffs’
claims pursuant to Rule 12(b)(6). (Pls.’ Objs., Dkt. 64, at ECF 6.) This objection seems to pertain
To the extent Plaintiffs argue that the R&R applied an incorrectly heightened standard to
their Section 1981 claim, which they do not articulate in their objections, the Court concludes that
such an argument would be unavailing. In order to prevail on a Section 1981 claim, a plaintiff
must “initially plead and ultimately prove that, but for race, it would not have suffered the loss of
a legally protected right.” (R&R, Dkt. 63, at 28 (quoting Comcast Corp. v. Nat’l Assoc. of African
Am.-Owned Media, 140 S. Ct. 1009, 1019 (2020)).) The Court agrees with the R&R’s conclusio n
that, as Plaintiffs do not allege facts sufficient to give rise to an inference of discrimination under
Title VII, Plaintiffs have not plausibly alleged that “their ethnicity was a but-for cause of the
actions against them.” (See id.)
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to the R&R’s analysis of Plaintiffs’ ethnicity and age discrimination claims as a whole rather than
to any specific portion of that analysis. Because this objection is “[g]eneral or conclusory,” Chime,
137 F. Supp. 3d at 187 (internal quotation and citation omitted), the Court applies only clear error
review and finds none. The Court further notes that, contrary to Plaintiffs’ objection, the R&R did
not apply a “probability requirement” but, rather, properly applied the plausibility standard
established by Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corporation. v. Twombly,
550 U.S. 544 (2007).
Plaintiffs also argue in this objection that “[t]he combination of false discipline and hostile
work environment, push Plaintiffs’ claim[s] over the line from ‘merely possible’ to ‘plausible.’ ” 4
(Pls.’ Objs., Dkt. 64, at ECF 6 (emphasis in original) (citing Iqbal, 556 U.S. 662).) However,
Plaintiffs raised a prior iteration of this argument in their opposition to Defendant’s motion to
dismiss and, as they acknowledge therein, in an even earlier submission:
As discussed in Plaintiffs’ response to Defendant’s pre-motion letter, at this stage,
upon a motion to dismiss the combination of a known discriminatory work
environment infected with antisemitism, combined with specific instances of
discrimination towards Plaintiffs, as well as adverse employment actions, an
inference arises that antisemitic discrimination was the cause of these adverse
employment actions.
(Plaintiffs’ Opposition (“Pls.’ Opp’n”), Dkt. 56, at 12.) Thus, by Plaintiffs’ own admission, this
objection merely “rehash[es] the same arguments set forth in the original papers.” Sosa, 368 F.
Supp. 3d. at 495 (internal quotations and citations omitted). Affording de novo review to “[s]uch
objections would reduce the magistrate’s work to something akin to a meaningless dress
rehearsal.” Rolle v. Educ. Bus Transp., Inc., No. 13-CV-1729 (SJF) (AKT), 2014 WL 4662267,
at *1 (E.D.N.Y. Sept. 17, 2014) (internal quotation and citation omitted) (adopting in its entirety
As discussed infra, Plaintiffs seem to repeat variations of this argument in their second,
third, and fourth objections.
4
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R&R dismissing plaintiff’s employment discrimination claims). Accordingly, the Court reviews
this portion of the R&R only for clear error and again finds none.
The Court also generally observes that Plaintiffs’ approach to their claims, as exemplif ied
by their consistent refrain that the combination of false discipline and hostile work environme nt
provides sufficient grounds on which to rest their discrimination claims, essentially combines
every bad aspect of their employment—regardless of who was responsible for it, or where or when
it occurred—into a stew that they allege creates an aroma of discriminatory animus. But, as the
R&R correctly found, the law requires that there be a plausible inference of discrimination in the
causal connection between the adverse employment action and the alleged racial, ethnic, or
religious animus. It is not enough for Plaintiffs to allege that, over the course of years, a handful
of unnamed co-workers and supervisors have made offensive comments about certain racial,
ethnic, or religious groups; that Plaintiffs allege a stew of discriminatory animus does not impart
flavor to every disciplinary action taken against Plaintiffs and thereby transform those actions,
even if unjustified, into discriminatory adverse employment actions. As the R&R painstakingly
sorted out, the TAC simply fails to allege any facts from which to plausibly infer that any of the
disciplinary actions taken against Plaintiffs were motivated by racial, ethnic, or religious animus.
II.
Plaintiffs’ Allegations Regarding Discipline for Policy Violations
Plaintiffs’ next objection argues that the R&R failed to consider their allegations that
Defendant “repeatedly disciplined Plaintiffs for policy violations they did not commit” (Pls.’ Objs.,
Dkt. 64, at ECF 6 (citing R&R, Dkt. 63, at 24–25)), and that the R&R “incorrectly concluded that
Plaintiffs’ allegations do not raise a minimal inference of discrimination” (id. at ECF 7). In
support, Plaintiffs restate numerous allegations from the TAC pertaining to Defendant’s Travel
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Pass Policy (see id. at ECF 7–8) and maintain that these allegations are “strong circumstantia l
evidence” of discrimination (id. at ECF 9). The Court disagrees.
First, and to the extent Plaintiffs’ objection is “merely [a] perfunctory response[]” to the
R&R, the Court finds no clear error in the R&R’s analysis.
(internal quotation and citation omitted).
Rafiy, 2019 WL 7046560, at *1
Even affording de novo review, however, Plaintiffs’
objection plainly lacks merit. The R&R explicitly considered Plaintiffs’ allegations that they were
disciplined as a result of their purported violations of the Travel Pass Policy (see R&R, Dkt. 63, at
24–27), 5 and nevertheless found that Plaintiffs’ contention “d[id] not add to the inference of
discrimination” because Plaintiffs did not allege facts “sufficient to give ‘plausible support to a
minimal inference of discriminatory motivation’” (id. at 25 (quoting Littlejohn, 795 F.3d at 311)).
Plaintiffs’ objection newly relies on Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000),
to argue that their “allegations provide a minimal inference of discrimination” (Pls.’ Objs., Dkt.
64, at ECF 7) because they have alleged the “objective falsity of Delta’s explanations” (id. at ECF
8). However, not only was Reeves decided before the plausibility requirement established in Iqbal,
see 556 U.S. at 678, but the holding in Reeves—that “a plaintiff’s prima facie case, combined with
sufficient evidence to find that the employer’s asserted justification is false, may permit the trier
of fact to conclude that the employer unlawfully discriminated,” 530 U.S. at 148 (emphasis
added)—does not apply at the motion to dismiss stage. Moreover, even assuming that Plaintif fs
are correct that the Court must “accept[] as true that Delta’s reasons for discipline were baseless”
(Pls.’ Objs., Dkt. 64, at ECF 9), the result is the same because there still is no allegation in the
Indeed, the R&R states that “Plaintiffs’ allegations include extensive details to rebut
Delta’s purported reasons for suspending or terminating them, such as Plaintiffs’ longstand ing
relationships with their travel companions.” (R&R, Dkt. 63, at 24 (citing TAC, Dkt. 37, ¶¶ 99–
105, 141–43, 152, 153, 174–77, 194, 195, 213–15, 238, 239).)
5
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TAC from which this Court can plausibly infer that Plaintiffs’ unjustified or unfair treatment was
motivated by Plaintiffs’ race, ethnicity, or religion, or their association with or advocacy on behalf
of individuals of that race, ethnicity, or religion. See Littlejohn, 795 F.3d at 307 (holding that, in
order to survive a motion to dismiss under Title VII, a plaintiff must present “some minima l
evidence suggesting an inference that the employer acted with discriminatory motivatio n”).
Accordingly, the Court finds that the R&R properly considered Plaintiffs’ allegations of discipline
by Defendant.
III.
Plaintiffs’ Allegations of a Severe or Pervasive Hostile Work Environment
Plaintiffs next argue that the R&R failed to consider Plaintiffs’ allegations of a hostile work
environment, and that the R&R was “simply incorrect that the alleged anti-Semitic remarks are
not objectively offensive.” (Pls.’ Objs., Dkt. 64, at ECF 10.) In support, Plaintiffs restate various
allegations from the TAC and maintain that the allegedly anti-Semitic comments were “objective ly
severe” and that “Plaintiffs subjectively found the environment to be abusive.” (Id. at ECF 11.)
The Court again disagrees. First, and to the extent Plaintiffs argue that the R&R was “simply
incorrect” (id. at ECF 10), their objection is at best a perfunctory response to this portion of the
R&R that warrants only clear error review. 6 See Rafiy, 2019 WL 7046560, at *1. The Court finds
no such clear error.
The Court also notes that Plaintiffs mischaracterize the R&R as finding that the alleged
disparaging comments were not “objectively offensive.” (Pls.’ Objs., Dkt. 64, at ECF 10.) More
accurately, the R&R found that the comments were not “severe” or “pervasive” under the relevant
hostile work environment standards. (R&R, Dkt. 63, at 45–46.) However, to the extent the R&R
found that Plaintiffs did not allege that they were “subjectively offended” by the comments (id. at
46), the Court disregards that finding, as it is not necessary to resolve the motion with respect to
Plaintiffs’ hostile work environment claim. For the same reason, the Court declines to consider
Plaintiffs’ seemingly new argument that “it can also be inferred [from Plaintiffs’ other factual
allegations] that Plaintiffs subjectively found the environment to be abusive.” (Pls.’ Objs., Dkt.
64, at ECF 11). See Razzoli v. Fed. Bureau of Prisons, No. 12-CV-3774 (LAP) (KNF), 2014 WL
2440771, at *5 (S.D.N.Y. May 30, 2014) (finding that “new arguments and factual assertions
6
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Even applying de novo review to the relevant portion of the R&R, the Court finds that the
R&R explicitly considered all of the TAC’s factual allegations related to Plaintiffs’ hostile work
environment claims and properly concluded that Plaintiffs had not “allege[d] harassment of such
quality or quantity that a reasonable employee would find the conditions of their employme nt
altered for the worse.” (See R&R, Dkt. 63, at 43–46.)
Plaintiffs further add that the R&R “did not consider the totality of the circumstances for
the hostile work environment claim” and that the R&R did not include a discussion of “Delta’s
baseless discipline” in analyzing Plaintiffs’ hostile work environment claims. (Pls.’ Objs., Dkt.
64, at ECF 12.) While it is true that the R&R does not reiterate Plaintiffs’ various allegations of
purportedly baseless discipline by Defendant in the hostile work environment analysis, this is of
no consequence. The R&R reviewed the required elements for a hostile work environment claim
(see R&R, Dkt. 63, at 42–43) and correctly noted that Plaintiffs had failed to allege that the
allegedly discriminatory comments “were so severe or pervasive that they altered the terms of
Plaintiffs’ employment for the worse” (id. at 47; see also id. (“Plaintiffs do not allege how any of
these remarks altered the terms and conditions of their employment.”)).
Plaintiffs’ argument is
essentially a repackaging of their first objection, discussed supra. (See Pls.’ Objs., Dkt. 64, at ECF
6 (“The combination of false discipline and hostile work environment, push Plaintiffs’ claim[s]
over the line from merely possible to plausible.” (emphasis in original) (internal quotations and
citations omitted)).) However, and as discussed supra, because Plaintiffs raised this argument in
prior filings before Judge Kuo, the Court reviews this portion of the R&R only for clear error and
finds none.
cannot properly be raised for the first time in objections to the [R&R], and indeed may not be
deemed objections at all”).
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Plaintiffs separately take issue with the R&R’s observation that, “if a harassing employee
is the victim’s co-worker, the employer is liable only if it was negligent in controlling working
conditions.” (R&R, Dkt. 63, at 43 (quoting Fenner v. News Corp., No. 09-CV-9832 (LGS), 2013
WL 6244156, at *13 (S.D.N.Y. Dec. 2, 2013)).) Plaintiffs maintain that “[w]hether manageme nt
was negligent in controlling the hostile work environment is an affirmative defense and not ripe
upon a motion to dismiss.” (Pls.’ Objs., Dkt. 64, at ECF 12 (citing Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742 (1998)).) But, in making this argument, Plaintiffs cite out of context one
portion of the R&R’s thorough application of the legal standard for hostile work environme nt
claims. As the R&R separately discusses, “[t]o avoid dismissal under FRCP 12(b)(6), a plaintiff
need only plead facts sufficient to support the conclusion that she was faced with harassment . . .
of such quality or quantity that a reasonable employee would find the conditions of her
employment altered for the worse.” (R&R, Dkt. 63, at 42 (quoting Patane v. Clark, 508 F.3d 106,
114 (2d Cir. 2007)).)
The R&R correctly applied this standard to Plaintiffs’ hostile work
environment claims and then noted that, “[e]ven if all three [] prongs for a hostile work environment
were met” to successfully state hostile work environment claims, which they were not, Plaintif fs
had not alleged facts “to support negligence by Delta in controlling the environment.” (Id. at 48.)
Read in conjunction with its preceding paragraphs, this observation merely highlights a deficienc y
in the TAC that was not otherwise dispositive in the R&R’s ultimate finding that Plaintiffs had
failed to state claims for hostile work environment, and its recommendation that Plaintiffs’ hostile
work environment claims be dismissed at this stage.
Accordingly, the Court finds Plaintiffs’ objection to the R&R’s analysis of their hostile
environment claims is not persuasive so as to warrant modification of this portion of the R&R.
The Court adopts the R&R’s recommendation that these claims be dismissed.
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IV.
Plaintiffs’ Allegations of Associational Discrimination
Plaintiffs’ next objection reiterates arguments from Plaintiffs’ second and third objections
but with respect to those Plaintiffs alleging associational discrimination. 7
Specifically, the
objection argues that those Plaintiffs “raised plausible discrimination and hostile work
environment claims because they were the target of false discipline.” (Pls.’ Objs., Dkt. 64, at ECF
12.) Plaintiffs further argue that the R&R erred where it found that “no allegations give rise to an
inference of discrimination based on [these] Plaintiffs’ association with Jewish, Israeli and
Hebrew-speaking passengers or co-workers.” (Id. at ECF 13 (quoting R&R, Dkt. 63, at 26).)
Plaintiffs’ arguments lack merit.
First, insofar as Plaintiffs simply argue that the R&R was
incorrect in finding that Plaintiffs’ allegations did not give rise to an inference of associationa l
discrimination, Plaintiffs again offer merely a perfunctory objection that warrants only clear error
review of this portion of the R&R. See Rafiy, 2019 WL 7046560, at *1. The Court finds no such
clear error.
Upon de novo review, Plaintiffs’ objection still lacks merit. The R&R correctly cited the
applicable legal standard, noting that “Plaintiffs whose claims are based on associationa l
discrimination must still meet the standards for alleging an inference of discrimination.” (R&R,
Dkt. 63, at 26 (citing Holcomb v. Iona Coll., 521 F.3d 130, 139 (2d Cir. 2008)).) The R&R then
reviewed Plaintiffs’ factual allegations related to their claims of associational discrimination and
correctly found that all of the alleged comments were about members of the protected class and
not those claiming an association with members of the protected class. (Id. at 26–27.) The R&R
observed that Plaintiffs did not allege the existence of similarly situated employees who did not
Plaintiffs Sanchez, Miller, Suarez, Allen, and Panza claimed ethnic discrimination based
on their association with Jewish friends or colleagues. (See R&R, Dkt. 63, at 25 (citing TAC
¶¶ 97, 130, 145, 148, 169, 189, 260).)
7
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associate with Jewish, Israeli, and Hebrew-speaking passengers or co-workers.
(Id. at 27.)
Plaintiffs maintain that several Plaintiffs’ association with members of the protected classes at
issue, in conjunction with the discipline they received, require an inference of discriminatio n.
(Pls.’ Objs., Dkt. 64, at ECF 13 (“Here again, the Magistrate Judge gave Delta’s false reasons for
discipline no weight.”).)
But, again, Plaintiffs’ “combination” argument was raised in earlier
filings before Judge Kuo; the Court finds no clear error in the R&R’s analysis on this issue. Even
construing this iteration of Plaintiffs’ combination argument as different, in that it specifica lly
addresses claims of associational discrimination, the Court finds that Plaintiffs have still failed to
allege how their allegations of purportedly unwarranted discipline by Defendant could create an
inference of associational discrimination absent any comments directed at those Plaintiffs claiming
an association with members of the protected class. “A plaintiff must be able to show that the
adverse employment action resulted because the employer disapproved of the plaintiff’s
association with a member of the protected class.” (R&R, Dkt. 63, at 25–26 (citing Holcomb, 521
F.3d at 139).) The Court agrees with the R&R’s finding that Plaintiffs have not alleged suffic ie nt
facts to give rise to an inference of associational discrimination, even in light of their nonconclusory factual allegations concerning unjustified discipline by Defendant. Accordingly, the
Court adopts the portion of the R&R recommending dismissal of Plaintiffs’ associationa l
discrimination claims.
V.
Comparators as a Legal Requirement at the Motion to Dismiss Stage
Plaintiffs’ fifth objection, “[a]s cited in Plaintiffs’ prior brief,” maintains that “comparators
are not a legal requirement to survive a motion to dismiss.” (Pls.’ Objs., Dkt. 64, at 13 (citing
Barrett, 39 F. Supp. 3d at 407).) Plaintiffs’ restatement of this argument alone justifies only clear
error review. See Sosa, 368 F. Supp. 3d at 495. However, even applying de novo review, the
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Court finds that Plaintiffs are incorrect in characterizing the R&R as deeming comparators to be a
legal requirement. Rather, the R&R properly stated that
[w]hile Plaintiffs do not need to provide evidence of similarly situated comparators
at the motion to dismiss stage, they still bear the burden of pleading facts that they
were treated more harshly than those outside their protected class who were
similarly situated “in all material respects,” and that this different treatment is
related to their ethnicity.
(R&R, Dkt. 63, at 22 (emphasis in original) (quoting Olivier v. County of Rockland, No. 15-CV8337 (KMK), 2018 WL 401187, at *7 (S.D.N.Y. Jan. 11, 2018)).) As such, the Court is entirely
unpersuaded by Plaintiffs’ objection.
VI.
Allegations of Age Discrimination
Plaintiffs’ final objection maintains that Plaintiffs have alleged facts that, “considered
together, . . . are enough to make out a plausible claim that the stated reasons for [Defendant’s]
adverse employment actions were pretextual and age discrimination was the cause of Delta’s
discipline.” (Pls.’ Objs., Dkt. 64, at ECF 14.) This objection, without supporting case law or any
other citations, is a “[g]eneral or conclusory objection,” Chime, 137 F. Supp. 3d at 187 (interna l
quotation and citation omitted), and the Court accordingly reviews this portion of the R&R only
for clear error. Finding none, the Court adopts the portion of the R&R recommending dismissa l
of Plaintiffs’ age discrimination claims.
CONCLUSION
For the reasons stated above, the Court adopts those portions of the R&R that pertain to
Plaintiffs’ remaining claims of discrimination under Title VII, Section 1981, and the ADEA, and
grants Defendant’s motion to dismiss those claims. The Clerk of Court is respectfully requested
to enter judgment and close this case.
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SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: May 29, 2020
Brooklyn, New York
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