Wu v. Good Samaritan Hospital Medical Center, et al

Filing 59

ORDER ADOPTING REPORT AND RECOMMENDATIONS - For the reasons set forth above, plaintiff's objections to the Report's findings relating to her retaliation claim under Section 215 of the NYLL are sustained and those findings are rejected; plai ntiff's objections are otherwise overruled and the remainder of the Report is accepted in its entirety; and, for the reasons set forth herein and in the Report, defendants' motions to dismiss plaintiff's claims against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure are granted and plaintiff's claims are dismissed in their entirety with prejudice. The Clerk of the Court shall enter judgment in accordance with this Order and close this case. SO Ordered by Judge Sandra J. Feuerstein on 7/2/2019. (Tirado, Chelsea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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SERENA WU,
Plaintiff,

FILED 
CLERK 

2:29 pm, Jul 02, 2019

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

ORDER
17-CV-4247 (SJF)(ARL)

-againstGOOD SAMARITAN HOSPITAL MEDICAL CENTER,
CATHOLIC HEALTH SERVICES OF LONG ISLAND,
MADONNA PERINATAL SERVICES, BENJAMIN
SCHWARTZ, and JONATHAN GOLDSTEIN,
Defendants.
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FEUERSTEIN, District Judge:

Pending before the Court are the objections of plaintiff Serena Wu (“plaintiff”) to so
much of the Report and Recommendation of the Honorable Arlene R. Lindsay, United States
Magistrate Judge, dated March 8, 2019 (“the Report”), as recommends granting the branches of
the motions of defendants Good Samaritan Hospital Medical Center (the “Hospital”), Catholic
Health Services of Long Island (“CHS”) and Benjamin Schwartz, M.D. (“Schwartz”)
(collectively, the “Hospital Defendants”), and defendants Madonna Perinatal Services
(“Madonna”) and Jonathan Gillen-Goldstein, M.D. (“Goldstein”) (collectively, the “Madonna
Defendants”), seeking dismissal of her claims under 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 Equal Pay Act
(“EPA”), 29 U.S.C. § 206, et seq.; the New York State Human Rights Law (“NYSHRL”), N.Y.
Exec. Law § 290, et seq.; and Sections 194 and 215 of the New York Labor Law (“NYLL”), and
for breach of the implied covenant of good faith and fair dealing, pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. For the reasons set forth below, plaintiff’s objections to the
Report’s findings relating to her retaliation claim under Section 215 of the NYLL are sustained

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and those findings are rejected; plaintiff’s retaliation claim under Section 215 of the NYLL is
nonetheless dismissed in its entirety with prejudice; and plaintiff’s objections are otherwise
overruled and the remainder of the Report is accepted in its entirety.

I.

Discussion
A.

Standard of Review

Any party may serve and file written objections to a report and recommendation of a
magistrate judge on a dispositive matter within fourteen (14) days after being served with a copy
thereof. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Any portion of such a report and
recommendation to which a timely objection has been made is reviewed de novo. 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72(b)(3). The court, however, is not required to review the factual
findings or legal conclusions of the magistrate judge as to which no proper objections are
interposed. See Thomas v. Arn, 474 U.S. 140, 150, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985). To
accept the report and recommendation of a magistrate judge to which no specific, timely
objection has been made, the district judge need only be satisfied that there is no clear error
apparent on the face of the record. See Fed. R. Civ. P. 72(b); Spence v. Superintendent, Great
Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000) (a court may review a report to which
no timely objection has been interposed to determine whether the magistrate judge committed
“plain error.”)
However, general objections, or “objections that are merely perfunctory responses argued
in an attempt to engage the district court in a rehashing of the same arguments set forth in the
original papers will not suffice to invoke de novo review.” Owusu v. New York State Ins., 655 F.
Supp. 2d 308, 312-13 (S.D.N.Y. 2009) (quotations, alterations and citation omitted); see also

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Trivedi v. New York State Unified Court Sys. Office of Court Admin., 818 F. Supp. 2d 712, 726
(S.D.N.Y. 2011), aff’d sub nom Seck v. Office of Court Admin., 582 F. App’x 47 (2d Cir. Nov. 6,
2014) (“[W]hen a party makes only conclusory or general objections [] the Court will review the
Report strictly for clear error.[] Objections to a Report must be specific and clearly aimed at
particular findings in the magistrate judge’s proposal.” (quotations, alterations and citation
omitted)). Any portion of a report and recommendation to which no specific timely objection is
made, or to which only general, conclusory or perfunctory objections are made, is reviewed only
for clear error. Owusu, 655 F. Supp. 2d at 312-13; see also Bassett v. Electronic Arts, Inc., 93 F.
Supp. 3d 95, 100-01 (E.D.N.Y. 2015).
Whether or not proper objections have been filed, the district judge may, after review,
accept, reject, or modify any of the magistrate judge’s findings or recommendations. 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72(b).

B.

Objections

Initially, plaintiff’s general objection to the entire Report, which merely requests that this
Court “rely upon” her “previously filed Amended Complaint and Opposition to Defendants [sic]
Motion to Dismiss” to reject the Report, (Plaintiff’s Objections to the Report [“Plf. Obj.”] at 16),
is insufficient to invoke de novo review. See, e.g. Colvin v. Berryhill, 734 F. App’x 756, 758 (2d
Cir. May 18, 2018) (summary order) (holding that a general objection to a magistrate judge’s
report “merely referring the court to previously filed papers or arguments does not constitute an
adequate objection under [] Fed. R. Civ. P. 72(b).” (quotations, alterations and citations
omitted)); Benitez v. Parmer, 654 F. App’x 502, 503 (2d Cir. June 30, 2016) (summary order)
(holding that the plaintiff’s general objection to the magistrate judge’s report and

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recommendation, which merely asked the district court to review his opposition to the
defendants’ motion to dismiss, was insufficient to obtain de novo review). Accordingly, except
for the specific objections set forth below, the remainder of the Report is reviewed only for clear
error.
Upon de novo review of the findings and conclusions in the Report to which plaintiff
specifically objects, all motion papers and the entire record, and consideration of plaintiff’s
objections to the Report and the responses thereto of the Hospital Defendants and Madonna
Defendants (collectively, “defendants”), plaintiff’s objections to the Report’s findings relating to
her retaliation claim under Section 215 of the NYLL are sustained and those findings are
rejected; plaintiff’s retaliation claim under Section 215 of the NYLL is nonetheless dismissed in
its entirety with prejudice; and plaintiff’s objections are otherwise overruled and the remainder
of the Report is accepted in its entirety.

1. Objections Relating to the Timeliness of Plaintiff’s Title VII Claims
Plaintiff contends, inter alia, that Magistrate Judge Lindsay erred: (i) in finding that the
last allegedly discriminatory act of the Hospital Defendants was on May 16, 2015, i.e., the date
plaintiff received notice that her last day of work would be August 19, 2015, and purportedly
failing to acknowledge two (2) letters attached to the amended complaint, i.e., a letter, dated July
1, 2015 (the “July 1, 2015 Letter”), that the Hospital sent to third-party patients indicating that
plaintiff would continue to provide services to its Maternal Fetal Medicine (MFM”) unit, and a
letter, dated August 18, 2015 (the “August 18, 2015 Letter”), that the Hospital sent to plaintiff
“offering a one month extension to her employment if she would waive all claims of

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discrimination against [it],” (Plf. Obj. at 2-3) 1; (ii) in misapprehending the law regarding receipt
of a complaint by the EEOC, failing to give Chevron deference to the EEOC’s own
determination that her EEOC complaint was timely filed or to the EEOC’s regulation, 29 C.F.R.
1615.170(d)(2), and ignoring plaintiff’s factual allegation that the EEOC complaint was timely
filed via facsimile and mail, (Plf. Obj. at 4-6); and (iii) in finding, “with respect to the counts for
Failure to Hire[,] . . . that the last discussion regarding pay was August 6, 2015,” in light of the
August 18, 2015 Letter. (Id. at 15).
Magistrate Judge Lindsay correctly found that a charge of discrimination brought
pursuant to Title VII is filed with the EEOC on the date it is stamped “received,”
notwithstanding plaintiff’s allegation of an earlier date in the amended complaint. See, e.g. Osby
v. City of New York, 748 F. App’x 375, 377 n. 2 (2d Cir. Sept. 7, 2018) (summary order) (“The
District Court reasonably presumed that [the plaintiff’s] EEOC charge was filed and received in
December 2012, as reflected by the date stamp, not February 2011,” as alleged in the
complaint.); Allen v. New York City Dep’t of Envtl. Prot., 51 F. Supp. 3d 504, 510 n. 3 (S.D.N.Y.
2014) (“A charge is not considered to be filed with the EEOC until the EEOC receives the
charge and stamps it with the appropriate date.”); 29 C.F.R. § 1601.13(A)(4)(ii)(A) (“[T]he
charge is deemed to be filed with the Commission upon receipt of the document.”) Contrary to
plaintiff’s contention, 29 C.F.R. § 1615.170 is inapplicable to this case because that regulation
applies only to: (i) “allegations of discrimination on the basis of disability in programs or
activities conducted by the Commission in violation of section 504 [of the Rehabilitation Act of

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Although plaintiff broadly objects to the Report’s (i) purported failure to accept the factual allegations in the
complaint as true; and (ii) “determination that [her] factual allegations lack plausibility[,]” (Plf. Obj. at 3), such
general objections are insufficient to invoke de novo review of the entire Report. With respect to the issue of the
timeliness of her claims, plaintiff specifically objects only to the Report’s purported failure to consider the July 1,
2015 Letter, the August 18, 2015 Letter, and plaintiff’s allegation that the EEOC complaint was timely filed via
facsimile and mail.

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1973, as amended, 29 U.S.C. § 794, et seq.];” and (ii) “complaints alleging a violation of the
agency’s responsibility to procure electronic and information technology under section 508 [of
the Rehabilitation Act of 1973] whether filed by members of the public or EEOC employees or
applicants.” 29 C.F.R. § 1615.170(a).
Moreover, the EEOC’s acceptance of plaintiff’s charge is not dispositive on the issue of
timeliness because “[i]t is . . . for the Court to determine whether Plaintiff’s claims are, as a
matter of law, timely and within the statute of limitations.” Pressley v. City of New York, No. 11cv-3234, 2015 WL 13730699, at * 7 (E.D.N.Y. Aug. 27, 2015), report and recommendation
adopted, 2016 WL 1271480 (E.D.N.Y. Mar. 31, 2016), appeal dismissed, No. 16-1206 (2d Cir.
July 28, 2016); see also Briones v. Runyon, 101 F.3d 287, 290 (2d Cir. 1996) (affirming the
district court’s independent determination of the timeliness of an agency filing (citing Goldman
v. Sears, Roebuck & Co., 607 F.2d 1014, 1017 (1st Cir. 1979)). Nor is the EEOC’s alleged
determination of the timeliness of a charge entitled to Chevron deference.
Since, inter alia, all of the discriminatory and retaliatory acts alleged in the amended
complaint occurred prior to August 21, 2015, i.e., more than three hundred (300) days prior to
the date the EEOC stamped plaintiff’s charge as received, Magistrate Judge Lindsay correctly
concluded that plaintiff’s Title VII claims are untimely, even assuming, arguendo, that the
Hospital’s July 1, 2015 Letter and August 18, 2015 Letter constitute discrete discriminatory
and/or retaliatory acts. Accordingly, for the reasons set forth in the Report, the branches of
defendants’ motions seeking dismissal of plaintiff’s Title VII claims as untimely pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure are granted and plaintiff’s Title VII claims
(First, Fourth, Seventh, Tenth and Twelfth Causes of Action) are dismissed in their entirety with
prejudice as untimely.

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2. Objections Relating to Plausibility of Discrimination Claims
Plaintiff contends, inter alia, that Magistrate Judge Lindsay erred: (i) in failing to
properly apply the pleading standard for employment discrimination claims under Title VII and
Section 1981 set forth in Littlejohn v. City of New York, 795 F.3d 297, 310-12 (2d Cir. 2015),
(Plf. Obj. at 6-9), and, specifically, (A) in finding that the amended complaint does not state any
facts supporting an inference of discrimination with respect to the termination of plaintiff’s
employment in light of her allegation in the amended complaint that the Hospital “terminated
both[] the Plaintiff and her only female co-worker, to replace them with three male doctors, two
of whom were Caucasian and one of whom was African American[,]” (Amended Complaint
[“Am. Compl.”], ¶ 80), and (B) in dismissing plaintiff’s Section 1981 claim “because of an
alleged failure to plead a discriminatory animus[,]” (Plf. Obj. at 9); and (ii) in finding that the
amended complaint fails to state a plausible claim for wage discrimination, (id. at 10-11), and,
specifically, that “[c]onclusory allegations based upon information and belief are insufficient to
support a claim of wage discrimination.” (Report at 21) (See Plf. Obj. at 10-11).
Magistrate Judge Lindsay correctly found that plaintiff did not “set forth any facts which
state directly or by inference that any [of the alleged adverse employment] actions were taken by
the Hospital Defendants on the basis of her race, national origin or gender.” (Report at 18). Nor
are there any facts indicating directly or indirectly that any of the alleged adverse employment
actions were taken by the Madonna Defendants on the basis of plaintiff’s race, national origin or
gender.
Furthermore, since plaintiff has shown no plausible support for the proposition that the
Hospital was motivated by discriminatory intent in outsourcing its MFM unit to Madonna and
terminating the employment of all physicians providing those services, including plaintiff, the

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amended complaint fails to state plausible discrimination claims against the Hospital Defendants
based upon the termination of her employment (First, Second and Third Causes of Action). See,
e.g. Le v. City of Wilmington, 480 F. App’x 678, 685 (3d Cir. Apr. 24, 2012) (unpublished
opinion) (affirming conclusion that the plaintiff failed to establish a prima facie case of
employment discrimination where the employer terminated the plaintiff’s employment upon
outsourcing the entire division to an independent contractor and had no influence on the
independent contractor’s hiring or selection of the team replacing the division); Mitchell v.
Worldwide Underwriters Ins. Co., 967 F.2d 565, 567 (11th Cir. 1992) (holding that an
employer’s replacement of an employee with an independent contractor corporation “does not, in
and of itself, make out a prima facie case” of discrimination); Singa v. Corizon Health, Inc., No.
17-cv-4482, 2018 WL 324884, at * 4 (E.D.N.Y. Jan. 8, 2018) (“The amended complaint makes
clear that plaintiff’s dismissal from defendant’s employ could not possibly have been on the
basis of her national origin—defendant’s contract with the Department of Corrections ended, and
everyone, of every national origin, was terminated. The amended complaint itself thereby
conclusively refutes any claim that her termination or anyone else’s could have been motivated
in any part by national-origin discrimination. . . . There could have been all kinds of reasons why
she was not hired by the new medical-care provider.”); U.S. E.E.O.C. v. Republic Servs., Inc.,
640 F. Supp. 2d 1267, 1308 (D. Nev. 2009) (holding that the EEOC failed to prove a prima facie
case of discrimination where all of the plaintiff’s duties were either outsourced to an independent
contractor or subsumed by new standardized software).
Since plaintiff has not sustained even her “minimal burden of showing facts suggesting
an inference of discriminatory motivation[,]” Littlejohn, 795 F.3d at 311 (emphasis omitted), the
amended complaint fails to state plausible discrimination claims against defendants.

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Accordingly, for the reasons set forth in the Report, the branches of defendants’ motions seeking
dismissal of plaintiff’s discrimination claims against them pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure are granted and plaintiff’s discrimination claims under Title
VII, Section 1981 and the NYSHRL (First, Second, Third, Seventh, Eighth, Ninth, Tenth,
Twelfth and Thirteenth Causes of Action) are dismissed in their entirety with prejudice for
failure to state a plausible claim for relief.
With respect to plaintiff’s claims of wage discrimination under the EPA and NYLL, “[a]
litigant cannot merely plop ‘upon information and belief’ in front of a conclusory allegation and
thereby render it non-conclusory. Those magic words will only make otherwise unsupported
claims plausible when ‘the facts are peculiarly within the possession and control of the defendant
or where the belief is based on factual information that makes the inference of culpability
plausible.’” Citizens United v. Schneiderman, 882 F.3d 374, 384-85 (2d Cir. 2018) (quoting
Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010)); see also Lankau v. Luxoft
Holding, Inc., 266 F. Supp. 3d 666, 673 (S.D.N.Y. 2017) (“While a plaintiff may plead facts
alleged upon information and belief where the belief is based on factual information that makes
the inference of culpability plausible, such allegations must be accompanied by a statement of
the facts upon which the belief is founded. . . . The pleadings . . . must contain something more
than [] a statement of facts that merely creates a suspicion of a legally cognizable right of
action.” (quotations, alterations and citations omitted)); Securities & Exch. Comm’n v.
Thompson, 238 F. Supp. 3d 575, 587-88 (S.D.N.Y. 2017) (“A plaintiff may plead facts alleged
upon information and belief where the facts are peculiarly within the possession and control of
the defendant[,] . . . [b]ut, if the Court can infer no more than the mere possibility of misconduct
from the factual averments– in other words, if the well-pled allegations of the complaint have not

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nudged plaintiff’s claims across the line from conceivable to plausible– dismissal is appropriate.”
(quotations, alterations and citations omitted)). “Alleging something ‘upon information and
belief’ does not suffice to allege a fact under Iqbal and Twombly unless plaintiff can point to
some facts that make the allegations more than pure speculation.” Singa, 2018 WL 324884, at
*4. Since, inter alia, plaintiff has not alleged any facts upon which her beliefs are founded,
Magistrate Judge Lindsay correctly found that her conclusory allegations are insufficient to state
a plausible claim of wage discrimination under the EPA and NYLL.
Magistrate Judge Lindsay also correctly found that plaintiff has not plausibly alleged that
she was similarly situated in all material respects to the comparators alleged in the amended
complaint, i.e., Goldstein and unidentified Madonna employees, with respect to her wage
discrimination claims. Accordingly, for the reasons set forth in the Report, the branches of
defendants’ motions seeking dismissal of plaintiff’s wage discrimination claims against them
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure are granted and plaintiff’s
wage discrimination claims under the EPA and NYLL (Eleventh and Fourteenth Causes of
Action) are dismissed in their entirety with prejudice for failure to state a plausible claim for
relief.

3. Objections Relating to Retaliation Claims
Plaintiff contends, inter alia, that Magistrate Judge Lindsay erred: (i) in “analyz[ing] the
counts for retaliation in violation of Title VII and NYSHRL[,]” (Plf. Obj. at 11), by “incorrectly
characteriz[ing] the roles of the [Hospital] Defendants and Dr. Livoti[,]”(Plf. Obj. at 13); and (ii)
in mischaracterizing her retaliation claim under Section 215 of the NYLL by (A) “incorrectly
claim[ing] that Plaintiff failed to allege a specific provision of the NYLL that [the Hospital]

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Defendants violated[,]” when paragraph 126 of the amended complaint specifically cites Section
740 of the NYLL, 2 (Plf. Obj. at 14-15), (B) concluding that she “is complaining about
discrimination as the basis of her NYLL retaliation claim[,]” when she actually alleges “that she
was retaliated against because she complained that the actions of Dr. Livotti [sic] threatened
public health and safety[,]” (id. at 15), and (C) applying the statute of limitations for claims
under Section 740 of the NYLL to her claim under Section 215 of the NYLL. (Id.)
Magistrate Judge Lindsay correctly found that plaintiff’s alleged complaint about Dr.
Livoti, who is not alleged to be an employee of the Hospital, (see Am. Compl., ¶¶ 39, 49), does
not qualify as a protected activity because it does not oppose an employment practice of the
Hospital made unlawful by Title VII. Indeed, plaintiff asserts in her objections that “[she] is not
alleging that Dr. Livoti’s racist, sexist, discriminatory, and harassing comments themselves are
an ‘employment practice’ of Defendants. Rather, [she] challenges [the Hospital’s] actions after
her report [about Dr. Livoti’s comments] as violating Title VII.” (Plf. Obj. at 13). Although “[a]
plaintiff seeking to demonstrate that he engaged in protected activity need not show that the
behavior he opposed in fact violated Title VII; he must . . . show that he possessed a good faith,
reasonable belief . . . that the employer’s conduct qualified as an ‘unlawful employment practice’
under the statute.” Cooper v. New York State Dep’t of Labor, 819 F.3d 678, 680-81 (2d Cir.
2016) (emphasis added) (quotations and citations omitted). Accordingly, for the reasons set forth
in the Report, the branch of the Hospital Defendants’ motion seeking dismissal of plaintiff’s
Title VII and NYSHRL retaliation claims against them pursuant to Rule 12(b)(6) of the Federal

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Paragraph 126 of the amended complaint does not, in fact, say what plaintiff contends it does, i.e., that her NYLL
retaliation claim “arises from her reasonable belief that Dr. Livoti created a ‘substantial and specific danger’ to
public health or safety.” (Plf. Obj. at 14-15). Rather, that paragraph merely quotes the statutory language of Section
740(2)(a) of the NYLL. (Am. Compl., ¶ 126).

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Rules of Civil Procedure is granted and plaintiff’s Title VII and NYSHRL retaliation claims
(Fourth and Fifth Causes of Action) are dismissed in their entirety with prejudice for failure to
state a plausible claim for relief.
However, since the amended complaint cites the statutory language of Section 740(2)(a)
of the NYLL, (Am. Compl., ¶ 126), and alleges that while plaintiff was employed by the
Hospital, she complained, inter alia, “as a whistleblower with regard to another doctor’s
negligence and malpractice,” (id., ¶ 128), plaintiff’s first two (2) objections relating to her claim
under Section 215 of the NYLL are sustained and the Report’s findings that “Plaintiff does not
allege a specific provision of the NYLL she claims was violated,” (Report at 24), and, in essence,
that her complaint about “being treated unfairly as an Asian American female of Taiwanese
origin and as a whistleblower with regard to another doctor’s negligence and malpractice[,]”
(Am. Compl., ¶ 128), is a complaint solely “regarding discrimination” which is not actionable
under the NYLL, (Report at 24-25), are rejected. Moreover, since plaintiff affirmatively states
that she “is not suing Defendants under Section 740 of the NYLL[,]” (Plf. Obj. at 15), so much
of the Report as finds that any claim asserted pursuant to that statue would be untimely, (see
Report at 25-26), is also rejected.
Nonetheless, plaintiff’s citation to Section 740(2)(a) of the NYLL, (Am. Comp., ¶ 126),
and allegation that she was retaliated against while she was employed by the Hospital because
she complained “as a whistleblower with regard to another doctor’s negligence and
malpractice[,]” (id. at 128), are insufficient to show that plaintiff participated in a protected
activity known to the defendant and, thus, fail to state a plausible claim for relief under Section
215 of the NYLL. See Kassman v. KPMG LLP, 925 F. Supp. 2d 453, 472 (S.D.N.Y. 2013)
(holding that to establish a prima facie claim of retaliation under Section 215 of the NYLL, “a

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plaintiff must show: (1) participation in protected activity known to the defendant[;] . . . (2) an
employment action disadvantaging the plaintiff; and (3) a causal connection between the
protected activity and the adverse employment action.” (quotations and citation omitted)).
“[U]nder the New York Labor Law, Plaintiffs must show that they complained about a specific
violation of the Labor Law.” Id. (quotations and citation omitted); see also Robledo v. Number 9
Parfume Leasehold, No. 12-cv-3579, 2013 WL 1718917, at *7 (S.D.N.Y. 2013) (“[T]o establish
a claim under Section 215(l)(a), a plaintiff must show that she complained to her employer about
its violations of the Labor Law and that she was terminated because of her complaints.”
(quotations, alterations and citation omitted)). “An employee need not cite a specific statute, see
N.Y. Labor Law § 215(1)(a), but her complaint to the employer must be of a colorable violation
of the statute.” Kassman, 925 F. Supp. 2d at 473 (quotations, alterations and citation omitted);
see also Williams v. Preeminent Protective Servs., Inc., No. 14-cv-5333, 2017 WL 1592556, at *
6 (E.D.N.Y. Apr. 28, 2017) (“The employee’s complaint need not cite a specific provision of the
N.Y.L.L. alleged to be violated, but the employee must reasonably believe that the employer is
violating the Labor Law, and “must have stated a complaint ... about conduct that violates the
Labor Law.”)
Plaintiff’s complaint about Dr. Livoti’s alleged negligence and malpractice was not about
conduct that violates Section 740 of the NYLL. In other words, plaintiff did not complain to the
Hospital that Dr. Livoti violated Section 740(2)(a) of the NYLL; nor could she since, as relevant
here, that statute prohibits an employer from taking “any retaliatory personnel action against an
employee because such employee does any of the following: (a) discloses, or threatens to
disclose to a supervisor or to a public body an activity, policy or practice of the employer that is
in violation of law, rule or regulation which violation creates and presents a substantial and

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specific danger to the public health or safety, or which constitutes health care fraud.” N.Y. Labor
Law § 740(2). Thus, like Section 215 of the NYLL, Section 740(2)(a) prohibits an employer for
unlawfully retaliating against an employee, but for, inter alia, disclosing or threatening to
disclose that an unlawful employment practice of the employer creates “a substantial and specific
danger to the public health or safety,” N.Y. Labor Law § 740(2)(a), instead of for complaining
about a violation of the NYLL. See N.Y. Labor Law § 215; Warden v. E.R. Squibb & Sons, Inc.,
840 F. Supp. 203, 208 (E.D.N.Y. 1993) (“Under section 740 of New York Labor Law, an
employer is prohibited from retaliating against an employee for disclosing or threatening to
disclose a violation of law creating a substantial and specific danger to the public health or
safety, providing information or testifying regarding any such violation, or objecting to or
refusing to participate in any such activity in violation of a law. Under section 215, an employer
is prohibited from discharging, penalizing, or in any other manner discriminating against an
employee because the employee has complained to the employer or the Industrial Commissioner
about a violation of labor law. Both sections provide a right of action to an employee who has
been subjected to retaliation.”)
Since, inter alia, plaintiff’s complaint to the Hospital regarding Dr. Livoti was not about
conduct that violated Section 740 of the NYLL, or any other provision of the NYLL, the
amended complaint fails to state a plausible claim under Section 215 of the NYLL. Thus, the
branch of the Hospital Defendants’ motion seeking dismissal of plaintiff’s retaliation claim under
Section 215 of the NYLL (Sixth Cause of Action) pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure is granted and that claim is dismissed in its entirety with prejudice for failure
to state a plausible claim for relief.

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4. Objection Relating to Breach of Covenant of Good Faith and Fair Dealing
Claim
Plaintiff contends, inter alia, the Magistrate Judge Lindsay erred in recommending that
her claim for breach of the implied covenant of good faith and fair dealing be dismissed as
duplicative of her breach of contract claim because the Report also recommends dismissal of
plaintiff’s breach of contract claim and “[i]f one claim is dismissed, the other cannot be
redundant.” (Plf. Obj. at 16).
“New York law . . . does not recognize a separate cause of action for breach of the
implied covenant of good faith and fair dealing when a breach of contract claim, based upon the
same facts, is also pled.” Harris v. Provident Life & Accident Ins. Co., 310 F.3d 73, 81 (2d Cir.
2002); see also Cruz v. FXDirectDealer, LLC, 720 F.3d 115, 125 (2d Cir. 2013) (“Under New
York law, parties to an express contract are bound by an implied duty of good faith, but breach
of that duty is merely a breach of the underlying contract.” (quotations and citation omitted)).
Where, as here, “a complaint alleges both a breach of contract and a breach of the implied
covenant of good faith and fair dealing based on the same facts, the latter claim should be
dismissed as redundant[,]” Cruz, 720 F.3d at 125, even if the breach of contract claim is also
dismissed. See, e.g. Apogee Handcraft, Inc. v. Verragio, Ltd., 155 A.D.43d 494, 495-96, 65
N.Y.S.3d 27 (N.Y. App. Div. 2017), lv. denied, 31 N.Y.3d 903, 77 N.Y.S.3d 655, 102 N.E.3d
431 (N.Y. 2018) (affirming the dismissal of the defendant’s breach of contract claim and
dismissing the defendant’s counterclaim for breach of the implied covenant of good faith and fair
dealing as redundant). Accordingly, for the reasons set forth in the Report, plaintiff’s claim for
breach of the implied covenant of good faith and fair dealing (Sixteenth Cause of Action) is
dismissed in its entirety with prejudice for failure to state a plausible claim for relief.

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C. Remainder of Report
There being no clear error on the face of the Report with respect to the findings and
conclusions of Magistrate Judge Lindsay to which no specific objections are interposed, those
branches of the Report are accepted in their entirety.

II.

Conclusion
For the reasons set forth above, plaintiff’s objections to the Report’s findings relating to

her retaliation claim under Section 215 of the NYLL are sustained and those findings are
rejected; plaintiff’s objections are otherwise overruled and the remainder of the Report is
accepted in its entirety; and, for the reasons set forth herein and in the Report, defendants’
motions to dismiss plaintiff’s claims against them pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure are granted and plaintiff’s claims are dismissed in their entirety with
prejudice. The Clerk of the Court shall enter judgment in accordance with this Order and close
this case.

SO ORDERED.
_____________/s/______________
SANDRA J. FEUERSTEIN
United States District Judge
Dated: July 2, 2019
Central Islip, New York

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