White v. The Bridge Mental Health Agency

Filing 45

OPINION AND ORDER re: 22 MOTION to Dismiss the Amended Complaint in Part. filed by The Bridge Inc.. For the reasons given above, Defendant's motion is GRANTED in part and DENIED in part. Plaintiff'sage-discrimination claim s under federal, state, and local law are DISMISSED, as well as Plaintiff's claims under the FMLA. As Plaintiff has now had several opportunities to amend in the face of motions to dismiss and because she does not request the opportunity to furt her amend her complaint, these dismissals are with prejudice. See Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011) ("no court can be said to have erred in failing to grant a request that was not made"). Defendant's motion to dismiss the EPA claim is DENIED. This resolves docket entry 22. The Court will schedule a status conference by separate order. SO ORDERED. (Signed by Judge Alison J. Nathan on 9/30/2019) (kv)

r·-····-···
j

\f 1,"'" ,

I
I

·c-

I

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

,,.,
~~'

1

,.

c

. •

'<

\'

'

Jerrie White,
Plaintiff,
18-cv-1689 (AJN)

-vOPINION & ORDER
The Bridge Inc.,
Defendant.

ALISON J. NATHAN, District Judge:
Plaintiff brings suit against her former employer, Defendant, alleging discrimination
based on age, disability, and sex, under federal, state, and local law, as well as interference with
her leave under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et. seq.
Defendant moves to dismiss Plaintiffs claims under the Equal Pay Act ("EPA"), 29 U.S.C. 206,
et seq., all of Plaintiffs age-related claims, and Plaintiffs FMLA claims. For the reasons given
below, Defendant's motion is GRANTED in part and DENIED in part.

I.

BACKGROUND
The following facts are drawn from the allegations in Plaintiffs Second Amended

Complaint (the "Complaint"), which are taken as true at this stage of the litigation, as well
exhibits attached to the Complaint and documents incorporated by reference. McCarthy v. Dun

& Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007) (in resolving a motion to dismiss under
Rule 12(b)(6), review is generally limited to "the facts as asserted within the four corners of the
complaint, the documents attached to the complaint as exhibits, and any documents incorporated
in the complaint by reference"). Plaintiff is a 51-year-old woman and Bronx resident. Compl.
1

1 5. Defendant is an organization that provides a number of services to vulnerable New Yorkers,
including mental health and substance abuse treatment. Comp1. ,r 7.

A.

Vehicle Accident and Plaintifrs Injuries

Plaintiff began working at The Bridge in 2013. Compl. 117. Her job involved driving
Defendant's vehicles to transport clients. Id. On January 17, 2014, Plaintiff was involved in a
motor vehicle accident in which the car caught fire. Compl. 1 23. Plaintiff sustained permanent
injuries as a result of the accident. Compl.
intermittently on disability leave. Compl.

B.

,r 25.

Following the accident, Plaintiff was

,r 26.

Plaintifrs Age and Gender Discrimination Claims

Plaintiff alleges that she requested a raise in January 2016. Compl. 1 48. Defendant
denied this increase on the grounds "that she was not actually a social worker, but was a case
manager and did not have the credentials to be a social worker." Compl.

,r 50.

Plaintiff alleges,

however, that she was "originally hired as a social worker" and demoted without notification.
Compl. 1 51. Defendant justified its decision on the grounds that Plaintiff "d[id] not have any of
the required credentials ... to be classified as 'professional staff,"' because while she "d[id] have
a master's degree in mental health counseling, a license in mental health counseling is needed to
qualify as professional staff." Compl.

,r 52.

Plaintiff alleges that she was treated differently than other employees and points to three
specific former co-workers: a male co-worker, Rascover, who earned $5,000 a year more than
she "for the same work and experience"; a male co-worker, Albright, who made more than
Plaintiff despite having "less experience and education" and having been hired more recently;
and Luann, who was "hired as a mental health counselor without a limited permit but only a
master's degree in mental health counseling." Compl. 1144-46, 53. The complaint is devoid of

2

any allegations regarding the ages ofRascover, Albright, and Luann. Compl.

,r,r 44-47, 53.

Finally, Plaintiff alleges that "many of The Bridge's new hires in 2015-2017 were in their midtwenties to early thirties" and that after her termination from the Bridge, "she was replaced by
employees significantly younger than her." Compl.

,r,r 71, 73.

On February 19, 2016, Plaintiff filed a complaint with the New York State Division of
Human Rights alleging discrimination on the basis of race and gender. Compl. ,r 56. Plaintiffs
complaint to the Division of Human Rights is mentioned in her Complaint, as are the facts that
formed the basis of that complaint, and neither party disputes that it is incorporated by reference.
Dkt. No. 24-1. On August 15, 2016, the Division of Human Rights determined that there was no
probable cause that Defendant had engaged in or was engaging in the alleged discrimination.

See Dkt. No. 24-2. This determination is not referenced in or attached to Plaintiffs Complaint; it
appears only in a declaration filed by Defendant. Id.

C.

Plaintiff's FMLA Claims

Plaintiff also brings claims for interference and discrimination under the FMLA. Plaintiff
was intermittently on "non FMLA work injury disability leave," including from April 2015 to
September 2015. Compl.

,r,r 26, 42-43.

She then "applied for FMLA benefits sometime in

2016." Compl. ,r 66. Plaintiff began another period of "non-FMLA leave" in April of 2016. Id.

,r 60.

On December 14, 2016, Plaintiff received a letter from Human Resources "that stated as a

follow up to the FMLA Designation Notice dated March 15, 2016, informing Plaintiff that her
request for leave under the FMLA was not approved." Compl.

,r 66.

The December letter and

the March Designation notice are mentioned expressly in the Complaint, their contents are
described, and Plaintiff does not challenge that they are incorporated by reference. Compl. ,r 66.
Subsequently, on April 18, 2017, Defendant informed Plaintiff that she would be terminated if

3

she did not return to work. Compl. 1 68. After Plaintiff informed Defendant that she was still
receiving treatment for her disability, she was terminated on April 25, 2017. Compl. 1169-70.
Plaintiff does not allege whether or not she returned to work between the time she began her
non-FMLA leave in April of 2016 and her termination in April of 2017.

II.

LEGAL STANDARD
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), the

complaint must "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). A claim achieves "facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plausibility is "not akin to a
'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted
unlawfully," id., and if plaintiffs cannot "nudge[] their claims across the line from conceivable to
plausible, their complaint must be dismissed," Twombly, 550 U.S. at 570. "Plausibility ...
depends on a host of considerations: the full factual picture presented by the complaint, the
particular cause of action and its elements, and the existence of alternative explanations so
obvious that they render plaintiffs inferences unreasonable." L-7 Designs, Inc. v. Old Navy,
LLC, 647 F.3d 419,430 (2d Cir. 2011). When considering a motion to dismiss under Rule

12(b)(6), "a court must accept as true all of the [factual] allegations contained in [the]
complaint[.]" Iqbal, 556 U.S. at 678. However, the court should not accept legal conclusions as
true: "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice." Id.

III.

DISCUSSION
Defendant moves to dismiss Plaintiffs EPA claim, her age discrimination claims, and her

4

FMLA claims. The Court addresses each in turn.

A.

Defendant's Motion to Dismiss Plaintiff's EPA Claim is Denied

Plaintiffs EPA claim alleges that she was discriminated against by being paid less than
similarly-situated male colleagues based on her gender. Compl.

11 95-104.

Defendant moves to

dismiss Plaintiffs claim under the EPA and argues that Plaintiffs claim is barred by the election
ofremedies doctrine and by collateral estoppel. For the reasons given below, this motion to
dismiss is denied.

1.

Plaintiff's Claim is Not Barred by Election of Remedies

First, Defendant contends that Plaintiffs EPA claim is barred by the election of remedies
doctrine. This is incorrect.
The NYSHRL and NYCHRL do not bar consideration of Plaintiffs federal claims in
federal court. Under the election of remedies doctrine of the State and City Human Rights Laws,
a suit must be dismissed "if the complainant lodge[d] a complaint with" the relevant State and
City agencies. Higgins v. NYP Holdings, Inc., 836 F. Supp. 2d 182, 187 (S.D.N.Y. 2011). "This
bar applies in federal as well as state court." Id. However, while these statutes can bar state and

city claims in federal court, it is well established that they do not-and cannot-bar federal
claims from being brought in federal court. As courts in this District have repeatedly explained,
these statutes "do[] not prevent a claimant from bringing a federal claim in federal court," as
state laws cannot limit the jurisdiction of federal courts over federal law. Bishop v. Henry

Model! & Co., No 08-cv-7541 (NRB), 2019 WL 3762119, *7 n.6 (S.D.N.Y. 2009) (citing
Griffith v. Bank ofNew York, 147 F.2d 899, 904 (2d Cir. 1945); Hunnewell v. Mfrs. Hanover Tr.
Co., 628 F. Supp. 759, 761 (S.D.N.Y. 1986) (same); see also Collette v. St. Luke's Roosevelt
Hosp., 132 F. Supp. 2d 256,273 (S.D.N.Y. 2001) (noting that a state law stripping a federal

5

court of jurisdiction over a federal claim would raise "constitutional doubts"). Defendant cites
no cases to the contrary, instead pointing only to cases applying election of remedies doctrine to
state or city claims. See McGuirkv. Swiss Re Fin. Servs., Corp., No. 14 CIV. 9516 (CM), 2016
WL 10683305, at *8-9 (S.D.N.Y. June 17, 2016), aff'd, 699 F. App'x 55 (2d Cir. 2017)
(discussing only whether state law claims were barred by election of remedies); Higgins v. NYP

Holdings, Inc., 836 F. Supp. 2d 182, 190 (S.D.N.Y. 2011) ("election of remedies provisions of
the NYSHRL and NYCHRL bar all of the claims [plaintiff] proposes to bring ... under those

statutes" (emphasis added)); Wiercinski v. Mangia 57, Inc., No. 09-CV-4413 (ILG), 2010 WL
2681168, at *3 (E.D.N.Y. July 2, 2010) (granting "Defendants' motion to dismiss ... as to
[plaintiffs] claims under New York State or New York City law"). Defendant's argument is
therefore unavailing.

2.

Plaintiff's Claim is Not Barred by Collateral Estoppel

Second, Defendant argues that Plaintiffs EPA claim is collaterally estopped by the
Division of Human Rights' no-probable-cause determination. This argument also fails.
As noted, the Division of Human Rights' determination is not included or mentioned in
Plaintiff's Complaint. But even assuming Defendant can rely upon the document at this stage of
litigation, the determination does not collaterally estop Plaintiff's claim. Collateral estoppel is an
affirmative defense, and as such it must be "clear from the face of the complaint" to warrant
dismissal on a motion under Rule 12(b)(6). Conopco, Inc. v. Roll Int'!., 231 F.3d 82, 86-87 (2d
Cir. 2000). A federal court will not grant preclusive effect to a Division of Human Rights noprobable-cause determination that was not appealed to state court if: "[t]he record does not make
clear what constituted [the Division's] 'investigation,"' "[t]here is no record of any discovery
being conducted, nor is there any record of any interviews of witnesses," "there is no record of

6

any type of hearing or conference being held between the parties," and the plaintiff proceeded

prose before the DHR. Kosakow v. New Rochelle Radiology Associates, 274 F.3d 706, 734-36
(2d Cir. 2001). Here, the Division of Human Rights' determination presented by Defendant does
not describe a hearing or discovery, nor does it offer a concrete description of the nature of its
investigation. Dkt. No. 24-2, at 2-5. And it is a reasonable inference from Plaintiffs
handwritten complaint to the Division that she was not represented by counsel at that time. Dkt.
No. 24-1, at 9-10. Finally, Defendant concedes that Plaintiff did not appeal this decision. Dkt.
No. 22, at 2. Accordingly, drawing all reasonable inferences in Plaintiffs favor, collateral
estoppel is not clear from the face of the Complaint.
For the reasons above, Defendant's motion to dismiss Plaintiffs claims under the EPA is
DENIED.

B.

Plaintiff's Age Discrimination Claims are Dismissed

Next, Defendant moves to dismiss Plaintiffs claims for (1) hostile work environment and
(2) age discrimination under the ADEA, the NYSHRL, and the NYCHRL. The Court addresses
these two types of claims in turn.
1.

Hostile Work Environment

First, as to her hostile work environment claims, in the face of Defendant's motion to
dismiss, Plaintiff argued that only her NYCHRL claims survive. Accordingly, any hostile work
environment claims under the ADEA or the NYSHRL are abandoned. See Jackson v. Fed Exp.,
766 F.3d 189, 198 (2d Cir. 2014) ("[I]n the case of a counseled party, a court may, when
appropriate, infer from a party's partial opposition that relevant claims or defenses that are not
defended have been abandoned."). Furthermore, even if these claims were not abandoned, for
the reasons given below they would be dismissed for failing to meet even the less demanding

7

NYCHRL standard.
In order to state a claim for hostile work environment under the NYCHRL, "the alleged
hostile conduct need not be severe or pervasive." Boonmalert v. City of New York, 721 F. App'x
29, 34 (2d Cir. 2018) (citing Mihalik v. Credit Agricole Cheuvreux N Am., Inc., 715 F.3d 102,
109 (2d Cir. 2013)). New York courts have instructed that such a claim should be dismissed
only if it makes "a 'truly insubstantial case' in which defendant's behavior cannot be said to fall
within the broad range of conduct that falls between 'severe and pervasive' on the one hand and
a 'petty slight or trivial inconvenience' on the other." Hernandez v. Kaisman, 103 A.D.3d 106,
114-15 (2012) (quoting Williams v. New York City Hous. Auth., 61 A.D.3d 62, 80 (2009)).
Nonetheless, a plaintiff "must still allege that [her] age was the motivating factor behind any
workplace hostility." Boonmalert, 721 F. App'x at 34; Bermudez v. City of New York, 783 F.
Supp. 2d 560,596 (S.D.N.Y. 2011) ("Under the NYCHRL, the issue in a hostile work
environment claim based on harassment is whether the plaintiff has shown that she was 'treated
less well than other employees because of [a protected class]"' (quoting Williams, 61 A.D .3d at
78).
Even drawing all reasonable inferences in her favor, Plaintiff has failed to plausibly
allege that her age was a motivating factor behind any of the alleged workplace hostility. Even
under the NYCHRL, a plaintiff must provide some allegations from which a reasonable
inference of improper motivation could be drawn. Boonmalert, 721 F. App'x at 34. And this is
not a toothless standard; for example, even repeated questioning about retirement is insufficient
to plausibly allege discriminatory motivation. See Boonmalert, 2017 WL 1378274, at *4, 7.
Similarly, failure to allege the ages of other employees who are allegedly being treated more
favorably than the plaintiff will undermine an assertion of discriminatory motivation. See Moore

8

v. Verizon, No. 13-CV-6467 (RJS), 2016 WL 825001, at *9 (S.D.N.Y. Feb. 5, 2016).
Plaintiffs claim is based on the following allegations: after her return from disability
leave on April 23, 2014, she was told that she was behind on her work even though her work was
supposed to be covered by other staff during the time; she had been assigned new work during
her leave; her supervisor criticized her work; other staff made jokes about the vehicle fire and her
lawsuit against The Bridge; she was the only employee denied vacation for not completing her
work; she was accused of stealing Metrocards; she was assigned to a desk facing the wall,
despite her seniority; her request for a salary increase was denied while less-experienced
employees of unspecified ages earned a higher salary than her; and she "believes she was
replaced with employees significantly younger than her." Compl. ,r,r 30-50. Yet nowhere does
Plaintiff allege facts from which a reasonable inference could plausibly be drawn that this
conduct had anything to do with her age. Plaintiff does not allege the ages of the other
employees who were paid more than she. Nor does Plaintiff allege that any comments were
made that were in any way related to her age, much less comments that would support a
reasonable inference of improper motivation. All Plaintiff offers is a conclusory allegation that
she was subjected to the above treatment based on her age, and that is insufficient at this stage.

Iqbal, 556 U.S. at 678. Accordingly, even drawing all reasonable inferences in her favor, her
claim for hostile work environment is dismissed.

2.

Age-Based Discrimination

Turning now to Plaintiffs age-based discrimination claims, Plaintiff alleges that she was
paid less, denied promotions, and demoted based on her age. Different standards apply to
Plaintiffs age discrimination claims under the ADEA and the NYSHRL on the one hand, and the
NYCHRL on the other. Once again, since even drawing all reasonable inferences in her favor

9

Plaintiff fails to state a claim under the more forgiving NYCHRL standard, she has also failed to
state claims under the ADEA and the NYSHRL.
"To state a claim for discrimination under the NYCHRL, a plaintiff must only show
differential treatment of any degree based on a discriminatory motive." Boonmalert, 2017 WL
1378274, at *5. The intent requirement is lenient, as under the NYCHRL, "a plaintiff need
allege only that discrimination was a motivating factor for the adverse employment action."
Keles v. Yearwood, 254 F. Supp. 3d 466,473 (E.D.N.Y. 2017) (citing Twomey v.
Quad/Graphics, Inc., 2015 WL 5698002, at *8 (S.D.N.Y. Sept. 28, 2015)). However, a plaintiff
must still "plausibly allege that the [defendants] acted with discriminatory motive" or allege facts
that "permit an inference that younger similarly situated individuals received preferential
treatment." Boonmalert, 2017 WL 1378274, at *5; see also Moore, 2016 WL 825001, at *8
(plaintiff must still "allege facts giving rise to an inference of discrimination based on age to
prevail") (citing Gorzynski v. Jet Blue Airways Corp., 596 F.3d 93, 107 (2d Cir. 2010)).
Even drawing all reasonable inferences in her favor, Plaintiff has failed to plausibly
allege facts that would give rise to an inference that Plaintiffs age was a motivating factor for
any differential treatment. Plaintiffs claims center on allegations that she was paid less than two
less-experienced co-workers, Rascover and Albright, and that her co-worker Luann was given
the position of social worker that had been denied to Plaintiff, despite their having the same
qualifications. But nowhere does she allege that these three employees were younger than her.
See Moore, 2016 WL 825001, at *9 (dismissing NYCHRL age-discrimination claim in part
because complaint did not allege that comparator employees were younger than 40); see also
Ndremizara v. Swiss Re Am. Holding Corp., 93 F. Supp. 3d 301,316 (S.D.N.Y. 2015)
(dismissing ADEA and NYSHRL claims in part for failure to allege age of allegedly similarly-

10

situated employees and "whether Defendant knew [their] ages"); Maysonet v. Citi Grp., Inc., No.
10-cv-4616 (SAS), 2011 WL 476610, at *5 (S.D.N.Y. Feb. 9, 2011) (dismissing ADEA claim
partly based on failure to allege that plaintiff was "replaced ... with someone significantly
younger"). Without any allegations about Rascover, Albright, and Luann's ages, the fact that
they were treated more favorably than Plaintiff offers no support to Plaintiffs assertion of
discriminatory motivation.
None of Plaintiffs other allegations compensate for this inadequacy. Even drawing all
reasonable inferences in Plaintiffs favor, her general allegations that The Bridge hires many
individuals in their mid-twenties to early thirties does not plausibly suggest that any of these
individuals were similarly situated to her. See Boonmalert, 2017 WL 1378274, at *5; see also
Maysonet, 2011 WL 476610, at *5 ("Even construed liberally, the fact that [defendant] hires
many employees in their twenties does not give rise to an inference that Citi discriminated
against [plaintiff] based on her age."). Nor are Plaintiffs allegations on belief that some of these
unspecified younger employees went on to receive promotions sufficient since, again, she has
not alleged any facts making it plausible that these employees were similarly situated. See
Boonmalert, 2017 WL 13 7827 4, at *5; see also Ndremizara, 93 F. Supp. 3d at 315-16
(allegations that unspecified employees were hired to replace plaintiff are insufficient to give rise
to an inference of discrimination) (citing cases). Accordingly, even drawing all available
inferences in her favor, Plaintiff has failed to sufficiently allege circumstances giving rise to an
inference that her age was a motivating factor in any of the alleged differential treatment.
Accordingly, Plaintiffs age discrimination claims are DISMISSED.

C.

Plaintiff's FMLA Claims are Dismissed

Finally, Plaintiff raises two claims under the FMLA. Plaintiff alleges that (1) her 2016

11

request for FMLA leave was unlawfully denied on December 14, 2016, Compl. 1 66, and (2) that
she was then wrongfully terminated in retaliation for her attempt to exercise her rights under the
FMLA, id.

1 141.

For the reasons given below, both of Plaintiffs FMLA claims are dismissed.

First, Plaintiff has not plausibly alleged that the was denied FMLA leave to which she
was entitled. Under the FMLA, "an eligible employee shall be entitled to a total of 12
workweeks of leave during any 12-month period for ... a serious health condition that makes the
employee unable to perform the functions of the position of such employee." 29 U.S.C.
§ 2612(a)(l). In addition, "collective bargaining agreements or employee benefits policies may
provide for other, non-FMLA leave that the employee could take instead of, in addition to, or
concurrently with FMLA leave." Donnellan v. New York City Transit Auth., No. 98-cv-1096
(BSJ), 1999 WL 527901, at *2-3 (S.D.N.Y. July 22, 1999) (citing 29 U.S.C. § 2652(a)).
Plaintiff alleges that she requested FMLA leave at some time in 2016, "went out on non-FMLA
leave" in April of 2016, and that she received a letter in December of that year informing her that
her request for FMLA leave had been denied. Compl. 1 60.
Yet Plaintiff does not allege that she had any FMLA leave remaining at the time she
requested it. Nor does Plaintiff allege facts from which it could plausibly be inferred that she
was entitled to FMLA leave. Plaintiff alleges that she took many months of leave during the
relevant time period, but does not explain how much, if any, of this leave was covered by the
FMLA. Nor does she explain the nature of what she characterizes as her non-FMLA leave or
how much of such leave she was entitled to take. As such, it is possible that Plaintiff had not
taken her twelve weeks ofFLMA leave when it was denied to her, but she does not "nudge[]
[her] claim[] across the line from conceivable to plausible," and accordingly her "complaint must

12

be dismissed." Twombly, 550 U.S. at 570. 1
Second, even drawing all reasonable inferences in Plaintiffs favor, her FMLA
discrimination/retaliation claim also fails. The FMLA makes it "unlawful for any employer to
discharge or in any other manner discriminate against any individual for opposing any practice
made unlawful by this subchapter [of the FMLA]." 29 U.S.C. § 2615(a)(2). Additionally,
regulations implementing the FMLA prohibit an employer from "discriminating or retaliating
against an employee ... for having exercised or attempted to exercise FMLA rights." 29 C.F.R.

§ 825 .220(c). Plaintiff alleges that she was fired because she "attempted to exercise her right to
take FMLA leave." Compl. 1141. Again, however, because Plaintiff has not alleged when she
attempted to take FMLA leave, how much of it she took, or whether at the time of her
termination she was still eligible for FMLA leave, she has failed to allege sufficient facts to
make it plausible that she was fired for attempting to exercise her rights under the FMLA.

IV.

CONCLUSION
For the reasons given above, Defendant's motion is GRANTED in part and DENIED in

part. Plaintiffs·age-discrimination claims under federal, state, and local law are DISMISSED, as
well as Plaintiffs claims under the FMLA. As Plaintiff has now had several opportunities to
amend in the face of motions to dismiss and because she does not request the opportunity to
further amend her complaint, these dismissals are with prejudice. See Gallop v. Cheney, 642
F.3d 364, 369 (2d Cir. 2011) ("no court can be said to have erred in failing to grant a request that

1

Defendants also point to the December 14, 2016 letter denying Plaintiffs FMLA request, which is incorporated by
reference. Dkt. No. 24-4, at 1. This letter states that Plaintiff had taken all of the leave that she was entitled to under
the relevant collective bargaining agreement as of September 2016 and subsequently used up all of her FMLA leave.
Id. However, while the Court can consider the December letter for the statements it contains, on a motion under
12(b)(6), the Court will not consider it for the truth of the matters asserted. Empire City Capital Corp. v. Citibank,
NA., No. 10-CV-2601 KMK, 2011 WL 4484453, at *1 (S.D.N.Y. Sept. 28, 2011) (citing Kramer v. Time Warner
Inc., 937 F.2d 767, 774 (2d Cir. 1991)). Accordingly, the truth of the contents of this letter play no role in this
Court's decision.

13

was not made"). Defendant's motion to dismiss the EPA claim is DENIED. This resolves
docket entry 22.
The Court will schedule a status conference by separate order.

SO ORDERED.
Dated: September~ Q, 2019
New York, New York
United States District Judge

14