Nambiar v. The Central Orthopedic Group, LLP et al
Filing
69
MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATION granting 53 Motion for Summary Judgment; denying 57 Motion for Reconsideration re 53 MOTION for Summary Judgment; adopting Report and Recommendation as to 66 Report and Recommendati on. For the stated reasons, IT IS HEREBY ORDERED that Plaintiff's objections (ECF No. 67) are OVERRULED, the R&R (ECF No. 66) is ADOPTED in its entirety, and Defendants' Motion for Summary Judgment (ECF No. 53) is GRANTED. It is FURTHER O RDERED that Plaintiff's motions: (1) to strike; and (2) for reconsideration (ECF No. 57) are DENIED. It is FURTHER ORDERED that the Court declines to exercise supplemental jurisdiction over Plaintiff's breach of contract claim. After judgment is entered in favor of Defendants, the Clerk of the Court is directed to mark this case CLOSED. So Ordered by Judge Joanna Seybert on 3/26/2024. (CV)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------X
SEEMA V. NAMBIAR, M.D.,
Plaintiff,
MEMORANDUM & ORDER
19-CV-0938 (JS)(ARL)
-againstTHE CENTRAL ORTHOPEDIC GROUP,
LLP; DAVID ZITNER, M.D.; SCOTT
SILVERBERG, M.D.; JORGE BAEZ,
M.D.; MITCHELL KESCHNER, M.D.;
JORDAN KERKER, M.D.; and FERNANDO
CHECO, M.D.,
Defendants.
--------------------------------X
APPEARANCES
For Plaintiff:
Christopher J. DelliCarpini, Esq.
Sullivan Papain Block McManus Coffinas
& Cannavo P.C.
1140 Franklin Avenue, Suite 200
Garden City, New York 11530
Frank V. Floriani, Esq.
Sullivan Papain Block McManus Coffinas
& Cannavo P.C.
120 Broadway, 27th Floor
New York, New York 10271
For Defendants:
Daniel S. Moretti, Esq.
Daniel Tarolli, Esq.
Jamar Quartrell Green, Esq.
Rebecca R. Embry, Esq.
Tina Bhatt, Esq.
Landman Corsi Ballaine & Ford P.C.
120 Broadway, 13th Floor
New York, New York 10271
Aryeh Roskies, Esq.
DTO Law
27 East 28th Street, Suite 15019
New York, New York 10016
SEYBERT, District Judge:
On February 15, 2019, Plaintiff Seema V. Nambiar, M.D.
(hereafter, “Plaintiff”) commenced this employment discrimination
action
against
Defendants
(hereafter,
“Central
Silverberg,
M.D.,
The
Central
Orthopedic”),
Jorge
Baez,
Orthopedic
David
M.D.,
Zitner,
Mitchell
Group,
LLP
M.D.,
Scott
Keschner,
M.D.,
Jordan Kerker, M.D., and Fernando Checo, M.D., (collectively, with
Central
Orthopedic,
“Defendants”),
alleging:
(1)
age
discrimination in violation of 29 U.S.C § 623 and N.Y. Executive
Law § 296(1);
U.S.C.
in
(2) sex
discrimination
in
violation
of
42
§ 2000e—2 and N.Y. Executive Law 296(1); (3) retaliation
violation
of
42 U.S.C. § 2000e—3
and
N.Y.
Executive
Law § 296(7); (4) breach of contract; and (5) aiding and abetting
discrimination and retaliation in violation of N.Y. Executive
Law § 296(6).
(See generally, Compl., ECF No 2.)
On February 1, 2024, Magistrate Judge Arlene R. Lindsay
(hereafter, “Judge Lindsay”) issued a Report and Recommendation
(hereafter,
“Report”
or
“R&R”)
recommending
the
Court
grant
Defendants’ Motion for Summary Judgement and deny Plaintiff’s
joint
Motion
Exhibits.
for
Reconsideration
(R&R, ECF No. 66, at 1.)
and
to
Strike
Defendants’
On February 9, 2024, Plaintiff
filed Objections to Judge Lindsay’s R&R, to which Defendants
responded on February 23, 2024.
2
(Objs., ECF No. 67; Reply to
Objs., ECF No. 68.)
For the reasons that follow, Plaintiff’s
Objections are OVERRULED, the R&R is ADOPTED, and Defendants’
Motion for Summary Judgment is GRANTED in its entirety.
The Court
declines to exercise supplemental jurisdiction over Plaintiff’s
breach of contract claim.
Accordingly, the Clerk of Court is
directed to mark this case CLOSED.
BACKGROUND
I.
Factual and Procedural Background
The
adopts,
and
Court
presumes
incorporates
the
parties’
herein,
the
background as set forth in the R&R.
familiarity
factual
and
(R&R at 1-26.)
with,
procedural
See generally
Sali v. Zwanger & Pesiri Radiology Grp., LLP, No. 19-CV-0275, 2022
WL 819178, at *1 (E.D.N.Y. Mar. 18, 2022) (where no party challenges
magistrate
background
judge’s
of
recitation
the
case,
upon
of
the
clear
factual
error
and
review,
procedural
adopting
and
incorporating same into court’s order).
II.
Plaintiff’s Objections to the R&R
Plaintiff
Lindsay’s
R&R.
asserts
In
four
particular,
primary
objections
Plaintiff
contends
to
Judge
the
R&R:
(1) ignored the fact that Plaintiff met the first three McDonnell
Douglas
criteria
for
making
a
prima
facie
showing
of
sex
discrimination and instead relied upon Plaintiff’s failure to meet
the fourth criteria when recommending summary judgment be granted;
(2) relied upon unauthenticated and inadmissible evidence, which
3
the
Court
should
have
stricken;
(3)
disregarded
Plaintiff’s
evidence indicating the reasons for Plaintiff’s termination were
a pretext for sex discrimination; and (4) failed to analyze
Plaintiff’s claims for aiding and abetting discrimination in light
of “the Court’s determination [to grant summary judgment as to]
the discrimination and retaliation claims.”
In
response,
(1) appropriately
focused
Defendants
on
the
(Objs. at 1-10.)1
argue
fourth
Judge
element
Lindsay:
of
sex
discrimination under the McDonnell Douglas framework; (2) properly
found the evidence submitted by Defendants could be authenticated
and was admissible; (3) correctly concluded that Plaintiff cannot
prove pretext; and (4) properly found Plaintiff’s aiding and
abetting claims should be dismissed based upon the dismissal of
the underlying sex discrimination claim.
(Reply to Objs. at 1-9.)
The Court finds Plaintiff’s Objections to be without
merit and addresses each, in turn, below.
Plaintiff does not object to Judge Lindsay’s recommendations to:
(1) grant Defendants’ Summary Judgment Motion with regard to
Plaintiff’s age discrimination claim; and (2) deny Plaintiff’s
motion for reconsideration of her retaliation claim. Accordingly,
Judge Lindsay’s recommendations as to those claims are reviewed
for clear error. Kruger v. Virgin Atl. Airways, Ltd., 976 F. Supp.
2d 290, 296 (E.D.N.Y. 2013), aff’d, 578 F. App’x 51 (2d Cir. 2014)
(“The Court reviews portions of the R&R to which a party makes no
objection for clear error”). Upon clear error review of Judge
Lindsay’s recommendations as to these claims, the Court finds none.
Judge Lindsay’s recommendations to dismiss Plaintiff’s age
discrimination claim and to deny Plaintiff’s motion for
reconsideration are therefore ADOPTED.
1
4
DISCUSSION
I.
Legal Standard
A. Report and Recommendation
A district court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1)(C); see also FED. R. CIV. P. 72(b)(3).
The
district
however,
judge
where
a
must
party
evaluate
“makes
proper
only
objections
conclusory
or
de
novo;
general
objections, or simply reiterates [the] original arguments, the
Court reviews the Report and Recommendation only for clear error.”
Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008)
(quoting Barratt v. Joie, No. 96–CV–0324, 2002 WL 335014, at *1
(S.D.N.Y. Mar. 4, 2002)); FED. R. CIV. P. 72(b)(3); see also U.S.
Small Bus. Admin. v. Ameritrans Holdings, LLC, No. 20-CV-1166, 2024
WL 704621, at *2 (E.D.N.Y. Feb. 21, 2024) (applying clear error review
where “[d]efendants’ regurgitation of their original arguments [was]
readily apparent when comparing their [underlying motion] to their
[o]bjections”).
Moreover, the Court need not review the findings
and conclusions to which no proper objection has been made. Thomas
v. Arn, 474 U.S. 140, 150 (1985).
5
B. Summary Judgment
The Court shall grant summary judgment under Rule 56(a)
when “the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.” FED. R. CIV. P. 56(a).
A fact is material for the purposes
of resolving a summary judgment motion “when it might affect the
outcome of the suit under the governing law.”
808 F. App’x 14, 16 (2d Cir. 2020).
Adamson v. Miller,
“An issue of fact is ‘genuine’
if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”
Id. (quoting Jeffreys v. City
of N.Y., 426 F.3d. 549, 553 (2d Cir. 2005)).
“The
movant
bears
the
burden
of
‘demonstrating
absence of a genuine issue of material fact.’”
the
Nick’s Garage,
Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 114 (2d Cir. 2017)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). This
burden may be satisfied by either: (1) submitting evidence that
negates an essential element of the non-moving party’s claim; or
(2) by demonstrating that the non-moving party’s evidence is
insufficient to establish an essential element of the non-moving
party’s claim.
Id.
Once the moving party has met its burden, the
non-moving party must “do more than simply show that there is some
metaphysical doubt as to material facts and instead offer some
hard evidence showing that its version of events is not wholly
6
fanciful.”
Stein v. County of Nassau, 417 F. Supp. 3d 191, 197
(E.D.N.Y. 2019) (citations omitted).
“Summary judgment is inappropriate when the admissible
materials in the record make it arguable that the claim has merit.”
Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010)
(citations and quotation marks omitted).
In reviewing the record,
the Court “may not make credibility determinations or weigh the
evidence” as such determinations are to be made by the jury, not
the judge.
Id. (citing Reeves v. Sanderson Plumbing Prods. Inc.,
530 U.S. 133, 150 (2000)).
Accordingly, where an issue as to a
material fact cannot be resolved without weighing the credibility
of a witness, summary judgment is improper. Id.
Finally, courts employ “an extra measure of caution”
before “granting or affirming summary judgment in a discrimination
action because direct evidence of discriminatory intent is rare.”
Moll v. Telesector Res. Grp., Inc., No. 20-CV-3599, 2024 WL 820179,
at *4–5 (2d Cir. Feb. 28, 2024) (citing Holtz v. Rockefeller &
Co., Inc., 258 F.3d 62, 69 (2d Cir. 2001), abrogated in part on
other grounds by Gross v. FBL Financial Services, Inc., 557 U.S.
167 (2009)). “Thus, the court must scrutinize affidavits and
depositions
carefully
for
circumstantial
evidence
that,
if
credited by the factfinder, could reasonably be interpreted as
showing discrimination.”
appropriate
“even
in
Id.
However, summary judgment may be
discrimination
7
cases,”
as
“the
salutary
purposes of summary judgment — avoiding protracted, expensive and
harassing trials — apply no less to discrimination cases than to
other areas of litigation.”
Weinstock v. Columbia Univ., 224 F.3d
33, 41 (2d Cir. 2000) (quoting Meiri v. Dacon, 759 F2d 989, 998
(2d Cir. 1985) (alterations omitted)).
II.
Analysis
A. Plaintiff’s Objections Warrant Clear Error Review
Turning to Plaintiff’s objections, the Court finds them
to be “mere reiterations of the arguments in [the] original papers
that were fully considered, and rejected, by” Judge Lindsay.
of
the
Blue
Wholesale,
LLC
v.
Pac.
Am.
Fish
Co.,
Out
Inc.,
No. 19-CV-0254, 2020 WL 7488072, at *2 (E.D.N.Y. Dec. 21, 2020)
(quoting Rizzi v. Hilton Domestic Operating Co., Inc., No. 19-CV1127, 2020 WL 6243713, at *2 (E.D.N.Y. Oct. 23, 2020) (collecting
cases)).
Indeed,
Plaintiff’s
regurgitation
of
her
original
arguments is apparent when comparing her underlying opposition to
her objections.
(Compare Opp. Support Memo, ECF No. 55, at 6-7
(arguing Plaintiff “undisputedly meets the first three elements”
of the McDonnell Douglas standard and meets the fourth element
based upon Defendants’ hiring of a younger physician who was not
board-certified), 3-5 (arguing Defendants’ evidence should not be
considered because it either cannot be authenticated or is not
admissible), 12-16 (arguing certain comments made by Defendants
are circumstantial evidence of pretext), 16-17 (acknowledging
8
Defendants’ argument that the aiding and abetting claims should be
dismissed if there was “no discrimination in the first place,” and
stating such argument is insufficient on its own to require
dismissal), with Objs. 1-10 (same)). Thus, the Court reviews Judge
Lindsay’s Report for clear error.
B. Objection
Criteria
1:
Evaluation
of
the
McDonnell
Douglas
As her first objection, Plaintiff asserts the Magistrate
Judge erred by recommending the Court grant summary judgment
despite the fact that she “did not even consider the first three
McDonnell
Douglas
criteria,
but
rather . . .
based
her
recommendation on her finding that [Plaintiff] failed to meet her
burden on the fourth element.”
premised
upon
a
(Objs. at 3.)
misunderstanding
of
the
This objection is
McDonnell
Douglas
standard, and accordingly the Court declines to sustain it.
“Claims of sex-based discrimination under Title VII and
NYHRL are analyzed using the familiar burden-shifting framework
established in McDonnell Douglas Corp. v. Green.”
Clay v. County
of Suffolk, 404 F. Supp. 3d 737, 753 (E.D.N.Y. 2019); McDonnell
Douglas, 411 U.S. 792 (1973).
At the first step of the McDonnell Douglas
framework, the plaintiff must establish a
prima facie case of sex discrimination by
demonstrating that (1) she was within the
protected class; (2) she was qualified for the
position; (3) she was subject to an adverse
employment action; and (4) the adverse action
9
occurred under circumstances giving rise to an
inference of discrimination.
Id. (citing Walsh v. N.Y.C. Hous. Auth., 828 F.3d 70, 74-75 (2d
Cir. 2006)) (internal citations omitted) (emphasis added).
This
standard makes clear, in order to make a prima facie showing of
sex discrimination, a plaintiff must prove
elements outlined above.
each of the four
Thus, even assuming Plaintiff was able
to establish the first three elements of the McDonnell Douglas
framework, Plaintiff’s failure to meet the fourth criteria, i.e.,
failing to show the adverse action occurred under circumstances
giving rise to the inference of discrimination, is enough to grant
summary judgment in favor of Defendants.
See, e.g., Smith v. New
York & Presbyterian Hosp., 440 F. Supp. 3d 303, 334 (S.D.N.Y. 2020)
(granting
summary
judgment
in
defendants’
favor
upon
finding
purported “adverse actions” were not taken in circumstances giving
rise to an inference of discrimination); Chuang v. T.W. Wang Inc.,
647 F. Supp. 2d 221, 230 (E.D.N.Y. 2009) (granting summary judgment
in defendant’s favor where Plaintiff “failed to make a prima facie
showing that the circumstances surrounding his termination give
rise to an inference of discrimination”); Worrell v. N.Y.C. Dep’t
of
Educ.,
140
F.
Supp.
3d
231,
240
(E.D.N.Y.
2015)
(same).
Consequently, it was entirely appropriate for Judge Lindsay to
recommend Defendants’ Summary Judgment Motion be granted based
upon
Plaintiff’s
failure
to
establish
10
the
requisite
fourth
McDonnell Douglas element, that is, that an adverse action occurred
under circumstances giving rise to an inference of discrimination.
C. Objection
Evidence
2:
Authentication
and
Admissibility
of
1. Authentication
Plaintiff argues Judge Lindsay impermissibly relied upon
unauthenticated
documents
when
recommending
Defendants’ Summary Judgment Motion.
the
Court
(Objs. at 4.)
grant
Notably,
Plaintiff does not argue that the exhibits relied upon by Judge
Lindsay were inauthentic, but rather, that Defendants “likely will
never be able to authenticate” certain documents, while conceding
that “Defendants will be able to at least authenticate their own
statements.”
(Id.)
Plaintiff further asserts Defendants “made no
attempt to authenticate any of their exhibits,” despite the fact
that Defendants’ counsel, Rebecca Embry, swore under penalty of
perjury that such exhibits were “true and correct copies” of what
they purport to be.
objecting,
(Objs. at 4; Embry Decl., ECF No. 37.)
Plaintiff
misunderstands
the
law
In so
governing
authentication of documents.
As a general matter, “[t]o satisfy the requirement of
authenticating or identifying an item of evidence, the proponent”
need only “produce evidence sufficient to support a finding that
the item is what the proponent claims it is.”
FED.R. EVID 901(a).
District courts have “broad discretion to determine whether a piece
11
of evidence has been properly authenticated.”
United States v.
Tin Yat Chin, 371 F.3d 31, 37 (2d Cir. 2004).
Moreover where a
party submits exhibits to the Court, which are properly supported
by
an
attorney
declaration
swearing
as
to
the
exhibits’
authenticity, and where such documents were already produced by
parties through the course of discovery, the Court may conclude
the exhibits are “reasonably likely to be that which the defendants
claim [them] to be.”2
Hallett v. Stuart Dean Co., 517 F. Supp. 3d
260, 268 (S.D.N.Y. 2021); Jenkins v. Portfolio Recovery Assocs.,
LLC, No. 14-CV-3532, 2017 WL 1323798, at *4, n.4 (E.D.N.Y. Feb.
13, 2017) (dismissing plaintiff’s claims that the documents relied
upon for summary judgment had not been properly authenticated
where, inter alia, the documents were supported by a declaration
“under the penalty of perjury that [declarant] is an attorney
familiar with this case, and that the documents submitted as
exhibits to his declaration ‘are true and accurate copies of
documents referenced’” in the summary judgment motion); (see also
The Court further finds Plaintiff’s reliance upon Russo v. Estee
Lauder Corporation, 856 F.Supp.2d 437 (2012), to be misplaced. In
Russo, the undersigned granted plaintiff’s motion to strike a
document as inauthentic where there were several indicia of
unreliability. One such indicium was testimony from the purported
author of the document who testified he did not recognize the
document, did not believe the initials appearing on the document
to be his, and did not recall having knowledge sufficient to
support the statements made in the document. Id. at 446-47. Here,
no such testimony exists, and, as stated supra and noted by Judge
Lindsay, Plaintiff fails to dispute the authenticity of the
documents at issue. (R&R at n.1.)
2
12
Emry Decl. and accompanying exhibits (swearing under penalty of
perjury that the exhibits are “true and correct cop[ies]” of what
they purport to be and including exhibits bearing bates stamps)).
This is especially true where, as here, the party claiming the
documents cannot be authenticated “offers no specific reason to
doubt any document’s authenticity.”
Hallett, 517 F. Supp. at 268.
Furthermore, as Judge Lindsay aptly stated, “the Court
has
the
discretion
to
consider
unauthenticated
or
otherwise
objectionable evidence where it is apparent that the party may be
able to authenticate and establish the admissibility of those
documents at trial.”
(R&R at n.1 (citing Bhd. Mut. Ins. Co. v.
Ludwigsen, No. 16-CV-6369, 2018 WL 4211319, at *5 (S.D.N.Y. Sept.
4, 2018) (internal quotation marks omitted)).
Therefore, in light
of: (1) the Emry Declaration swearing to the authenticity of
Defendants’ exhibits; (2) Plaintiff’s failure to assert any reason
to doubt the exhibits’ authenticity; and (3) the Court’s finding
that it is apparent Defendants would be able to authenticate said
exhibits
at
considered
Accordingly,
trial,
the
Defendants’
Plaintiff’s
Court
finds
Judge
exhibits
in
objection
concerning
Lindsay
issuing
her
Judge
properly
Report.
Lindsay’s
reliance upon purportedly unauthenticated documents is overruled.
2. Admissibility
Plaintiff further avers that the exhibits relied upon by
Judge Lindsay in the R&R are inadmissible because they are hearsay
13
and not subject to the “state of mind” exception set forth in
Federal Rule of Evidence (“Rule”) 803(3).
However, Judge Lindsay
did not consider the purported hearsay evidence based upon the
hearsay exception provided in Rule 803(3) for statements of a
“declarant’s then-existing state of mind,” but rather, determined
the statements were not hearsay at all because they were not being
offered for the truth of the matter asserted.
(R&R at n.1.)
Indeed,
hearsay
“the
Federal
Rules
of
Evidence
define
as
a
declarant’s out-of-court statement offered in evidence to prove
the truth of the matter asserted in the statement.”
United States
v. Dupree, 706 F.3d 131, 136 (2d Cir. 2013) (citing FED. R. EVID.
801(C) (internal
quotations
and
alterations
omitted)).
The
exhibits in question which purportedly contain hearsay accounts of
complaints against Plaintiff were not offered for the truth;
rather, they were being offered to show they were received by
Defendants thereby prompting Defendants to believe there were
issues
with
Plaintiff’s
job
performance.
As
Judge
Lindsay
correctly concluded, the critical determination to be made by the
Court is not whether the work-related complaints made against a
plaintiff are true, but rather, the employer’s “state of mind”
when making employment decisions. See Poppito v. Northwell Health,
Inc., No. 15-CV-7431, 2019 WL 3767504, at *3 (E.D.N.Y. Aug. 9,
2019) (citing Kaur v. N.Y. City Health & Hosps. Corp., 688 F. Supp.
2d 317, 323 (S.D.N.Y. 2010)).
14
Because the exhibits considered by Judge Lindsay were
not being offered for the truth, but rather, were being offered as
evidence that Plaintiff’s termination was based upon legitimate,
non-discriminatory reasons, the Court finds these documents were
not “inadmissible hearsay.”
Judge Lindsay
having
recommendation
to
the
Accordingly, there was no error in
relied upon the exhibits in making her
Court;
hence,
Plaintiff’s
objection
is
overruled.
D. Objection 3: Evidence of Pretext
As her third objection, Plaintiff asserts Judge Lindsay
disregarded Plaintiff’s evidence that “Defendants’ ‘onslaught of
complaints’ was a pretext” for discrimination. (Objs. at 6.) This
objection, however, is premised upon a purported finding that
Plaintiff established a prima facie case of sex discrimination in
the first instance, which she has not for the reasons discussed
supra Part II.B.
See Kirkland v. Cablevision Sys., 760 F.3d 223,
225 (2d Cir. 2014) (“Once an employee makes a prima facie case
of . . . discrimination . . ., the burden shifts to the employer
to give a legitimate, non-discriminatory reason for its actions.
If the employer does so, the burden then shifts back to the
plaintiff to show that the employer’s explanation is a pretext
for . . . discrimination”) (internal citations omitted).
Because
Plaintiff never made a prima facie showing of discrimination, the
burden never shifted to Defendants to prove a non-discriminatory
15
reason for its actions, nor did it shift back to Plaintiff to show
the reasons offered by Defendants were pretextual.
Id.
Moreover,
even if the burdens had so shifted, the R&R indicates Judge Lindsay
evaluated Plaintiff’s proffered evidence to support her pretext
argument, but found said evidence was insufficient “to convince a
reasonable
jury
that
[Central
Orthopedic]’s
legitimate
discriminatory reason for terminating her was a pretext.”
37.)
non-
(R&R at
The Court agrees and therefore overrules Plaintiff’s third
objection.
E. Objection 4: Aiding and Abetting Discrimination
Plaintiff contends Judge Lindsay erred in concluding,
“[g]iven the Court’s determination [recommending dismissal of] the
discrimination
and
retaliation
claims . . . the
abetting claim [should also] be dismissed.”
9-10.)
This objection is unavailing.
aiding
and
(R&R at 39; Objs. at
It is well-established, and
indeed logically follows, that to prove a person aided or abetted
in a discriminatory practice, one must first prove the existence
of the alleged underlying discriminatory practice.
See Pellegrini
v. Sovereign Hotels, Inc., 740 F. Supp. 2d 344, 356 (N.D.N.Y. 2010)
(“Importantly, since it is the employer’s participation in the
discriminatory practice which serves as the predicate for the
imposition of liability on others for aiding and abetting, a
plaintiff cannot prevail against an individual on her state [aiding
and abetting] claims unless she can first establish the liability
16
of her employer.”) (internal citations and alterations omitted);
see also Johnson v. Cnty. of Nassau, 82 F. Supp. 3d 533, 537
(E.D.N.Y. 2015) (same, but finding that such employer need not be
a party to the case); Dunson v. Tri-Maint. & Contractors, Inc.,
171 F. Supp. 2d 103, 114 (E.D.N.Y. 2001) (“Defendants’ argument
that [an individual defendant] cannot be held liable for aiding
and
abetting
presumes
[plaintiff]
has
[defendant
company]
laws.”).
failed
Thus,
in
a
determination
to
prove,
violated
light
of
as
any
a
by
this
matter
employment
this
Court’s
court
that
law,
that
of
discrimination
adoption
of
Judge
Lindsay’s recommendation that Defendants are entitled to summary
judgment as to Plaintiff’s sex and age discrimination claims, the
Court finds Defendants are also entitled to summary judgment as to
Plaintiff’s aiding and abetting claim.
Therefore, the Court
overrules Plaintiff’s objection as to her aiding and abetting
claim.
CONCLUSION
For
the
stated
reasons,
IT
IS
HEREBY
ORDERED
that
Plaintiff’s objections (ECF No. 67) are OVERRULED, the R&R (ECF
No. 66) is ADOPTED in its entirety, and Defendants’ Motion for
Summary Judgment (ECF No. 53) is GRANTED.
that
Plaintiff’s
motions:
(1)
to
reconsideration (ECF No. 57) are DENIED.
17
It is FURTHER ORDERED
strike;
and
(2)
for
It is FURTHER ORDERED that the Court declines to exercise
supplemental jurisdiction over Plaintiff’s breach of contract
claim. After judgment is entered in favor of Defendants, the Clerk
of the Court is directed to mark this case CLOSED.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: March 26, 2024
Central Islip, New York
18
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