Flynn v. Bronx Parent Housing Network et al

Filing 64

MEMORANDUM AND ORDER granting 51 Motion to Dismiss. Accordingly, the City's motion to dismiss is granted in its entirety. The Clerk of Court is respectfully instructed to terminate the motion pending at ECF No. 51, enter judgment for the City, and close the case. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 5/22/2023) (mml) Transmission to Orders and Judgments Clerk for processing.

Case 1:21-cv-02871-NRB Document 64 Filed 05/22/23 Page 1 of 8

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------X
QIANA FLYNN,
Plaintiff,
- against -

MEMORANDUM AND ORDER
21 Civ. 2871 (NRB)

BRONX PARENT HOUSING NETWORK, VICTOR
RIVERA, and THE CITY OF NEW YORK,
Defendants.
---------------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
In 2021, counsel for plaintiff Qiana Flynn (“plaintiff” or
“Flynn”) filed this case and three substantially similar cases in
this District on behalf of former employees of Bronx Parent Housing
Network (“BPHN”), who were allegedly terminated after complaining
of sexual harassment and a hostile work environment at BPHN.

See

ECF No. 1 1; Byron v. Bronx Parent Hous. Network, No. 21 Civ. 2568
(MKV); Britton v. Bronx Parent Hous. Network, No. 21 Civ. 7079
(JPO); Taylor v. Bronx Parent Hous. Network, No. 21 Civ. 4890
(JLR).

All

four

cases

were

brought

against

the

same

three

defendants—BPHN; BPHN’s former director, Victor Rivera; and the
City of New York (the “City”), see id.—and asserted the same five
causes of action: (1) violations of Title VII of the Civil Rights

1

Unless otherwise noted, all ECF citations refer to Flynn v. Bronx Parent Hous.
Network, No. 21 Civ. 2871 (NRB).

1

Case 1:21-cv-02871-NRB Document 64 Filed 05/22/23 Page 2 of 8

Act of 1964 (“Title VII”); (2) violations of New York Labor Law
§ 201-g;

(3)

violations

of

New

York

City

Human

Rights

Law

(“NYCHRL”) § 8-107 2; (4) assorted New York state common law claims
for

“assault,

battery,

negligence,

prima

facie

tort,

sexual

assault, unlawful touching”; and (5) an unspecified claim that the
City had knowledge of the alleged misconduct at BPHN and continued
to provide funding to BPHN.

See First Amended Complaint (“FAC”)

¶¶ 2-4, 72-77, ECF No. 32; Byron v. Bronx Parent Hous. Network,
No. 21 Civ. 2568 (MKV), 2023 WL 2585824, at *1 (S.D.N.Y. Mar. 20,
2023); Britton v. Bronx Parent Hous. Network, No. 21 Civ. 7079
(JPO), 2022 WL 4332735, at *1 (S.D.N.Y. Sept. 19, 2022); Taylor,
No. 21 Civ. 4890 (JLR), ECF No. 35 ¶¶ 51-59. 3
All four plaintiffs reached settlements with BPHN and Rivera,
leaving the City as the only remaining defendant in all of the
cases.

See ECF Nos. 45, 48; Byron, No. 21 Civ. 2568 (MKV), ECF

Nos. 85, 94; Britton, No. 21 Civ. 7079 (JPO), ECF Nos. 42, 45;
Taylor, No. 21 Civ. 4890, ECF Nos. 51, 56.

Pursuant to Federal

Rule of Civil Procedure 12(b)(6), the City moved to dismiss all
four complaints on similar grounds.

See ECF No. 51; Byron, No. 21

Civ. 2568 (MKV), ECF No. 76; Britton, No. 21 Civ. 7079 (JPO), ECF

2

The FAC alleges a violation of New York City Administrative Code § 18-107,
which concerns the Department of Parks and Recreation. See FAC ¶ 74. Thus,
the Court assumes plaintiff intended to refer to Title 8, which includes the
NYCHRL. See ECF No. 52 at 9 n.1; Byron, 2023 WL 2585824, at *1 n.1.
3

Taylor also brings a sixth cause of action for failure to reimburse tuition
assistance. See No. 21 Civ. 4890, ECF No. 35 ¶ 59.

2

Case 1:21-cv-02871-NRB Document 64 Filed 05/22/23 Page 3 of 8

No. 16; Taylor, No. 21 Civ. 4890, ECF No. 58.

In its motion to

dismiss presently before this Court, the City informed this Court
that, on September 19, 2022 in Britton, Judge Oetken had granted
the City’s motion to dismiss in its entirety. See ECF No. 52 at
32-33 (citing Britton, 2022 WL 4332735, at *8).

After the present

motion was fully briefed on December 7, 2022, see ECF Nos. 51-56,
the City updated this Court by letter of March 22, 2023 that Judge
Vyskocil also granted the City’s motion to dismiss in Byron in its
entirety on March 20, 2023, see ECF No. 60 (citing Byron, 2023 WL
2585824, at *1).

The City’s motion to dismiss before Judge Rochon

in Taylor is still pending.

See Taylor, No. 21 Civ. 4890 (JLR).

Judge Vyskocil and Judge Oetken’s decisions in Byron and
Britton reached the same conclusions.

Both Judge Vyskocil and

Judge Oetken held that each plaintiff’s first cause of action
failed to state a claim because their complaint did not plausibly
allege an employment relationship with the City, as is required
under Title VII, and each plaintiff’s fifth cause of action did
not set forth sufficient factual information to provide the City
with fair notice of their claim.

See Byron, 2023 WL 2585824, at

*2-4; Britton, 2022 WL 4332735, at *2-4.

Judges Vyskocil and

Oetken also declined to exercise supplemental jurisdiction over
the remaining state and city law claims.

See Byron, 2023 WL

2585824, at *4; Britton, 2022 WL 4332735, at *4.

No appeal was

taken from Byron or Britton, and both cases have been closed on
3

Case 1:21-cv-02871-NRB Document 64 Filed 05/22/23 Page 4 of 8

the court’s dockets.

See Byron, No. 21 Civ. 2568 (MKV); Britton,

No. 21 Civ. 7079 (JPO).
In her opposition to the City’s present motion to dismiss,
Flynn had the opportunity to address Judge Oetken’s decision in
Britton, but instead merely stated that the decision is “not
binding” on this Court.

See ECF No. 54 ¶ 48.

In addition, after

receiving the City’s March 22, 2023 letter informing this Court of
Judge Vyskocil’s decision in Byron, see ECF No. 60, this Court
gave Flynn another opportunity to distinguish Byron, see ECF No.
61.

Rather than attempt to distinguish Byron from the present

case, however, Flynn’s counsel, who had not appealed Byron, merely
argued

that

Byron

was

wrongly

decided,

as

Judge

Vyskocil

incorrectly found that the facts alleged by Byron were legal
conclusions, see ECF No. 62.
This Court has independently reviewed the record in this case
and finds that there is no basis to depart from Judge Vyskocil and
Judge Oetken’s well-reasoned decisions in Byron and Britton, which
address many of the same issues presented here.

Even on the most

liberal reading of the complaint, 4 Flynn, like Byron and Britton,

4

The facts asserted in the complaint are accepted as true, taking all reasonable
inferences in Flynn’s favor. See McCarthy v. Dun & Bradstreet Corp., 482 F.3d
184, 191 (2d Cir. 2007); Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d
Cir. 1995). As was the case in Byron, however, Flynn’s complaint and opposition
reference various articles and sources that are not attached to the complaint.
FAC ¶¶ 5, 10, 15, 17, 38; ECF No. 54 ¶¶ 9, 25, 29, 35. As Judge Vyskocil found,
“evidence outside of a complaint cannot save a futile amended pleading.” Byron,
2023 WL 2585824, at *5 n.3 (citing Klinkowitz v. Jamaica Hosp. Med. Ctr., No.
20 Civ. 4440 (EK)(SJB), 2022 WL 818943, at *9 (E.D.N.Y. Mar. 17, 2022)).

4

Case 1:21-cv-02871-NRB Document 64 Filed 05/22/23 Page 5 of 8

fails to plausibly allege that the City is liable for the actions
of BPHN under Title VII using a formal employer, single employer,
or

joint

employer

theory.

See

42

U.S.C.

§

2000e-2(a)(1)

(prohibiting discrimination by “employer[s]”); Felder v. United
States Tennis Ass’n, 27 F.4th 834, 838, 844 (2d Cir. 2022) (“The
existence of an employer-employee relationship is a primary element
of Title VII claims.”); Byron, 2023 WL 2585824, at *2-4, Britton,
2022 WL 4332735, at *2-4.

Indeed, Flynn concedes that she was an

employee of BPHN, not the City, see FAC ¶¶ 5(B), 43, and does not
allege that she received remuneration from the City, as is required
to establish a formal employment relationship, see United States
v. City of New York, 359 F.3d 83, 91–92 (2d Cir. 2004). 5
And, in support of her argument that the City and BHPN are a
single

or

joint

employer,

conclusory allegations.

Flynn

asserts

almost

exclusively

See FAC ¶¶ 36-38; ECF No. 52 at 15-17;

Byron, 2023 WL 2585824, at *2-4; Toledo v. Unibud Restoration
Corp., No. 21 Civ. 882 (GBD) (SN), 2022 WL 171198, at *2 (S.D.N.Y.
Jan. 19, 2022) (“The Plaintiff’s complaint fails to plead the
requisite ‘immediate control’ needed to allege a joint employer
relationship.”).

The remaining factual allegations simply do not

5

“[A]t best, [Flynn] appears to allege that the City indirectly compensated
[Flynn] . . . [h]owever, ‘such an indirect source of funds cannot be the basis
for Title VII liability.’” Byron, 2023 WL 2585824, at *2 (citing Gulino v. New
York State Educ. Dep’t, 460 F.3d 361, 379 (2d Cir. 2006)); see FAC ¶ 36 (“Def.
BPHN as a 100 per cent funded by Def. NYC organization.”).

5

Case 1:21-cv-02871-NRB Document 64 Filed 05/22/23 Page 6 of 8

establish that the four-part single employer test has been met, 6
let alone the existence of either of the two corporate contexts to
which the single employer doctrine has been confined in this
Circuit: “first, where the plaintiff is an employee of a whollyowned

corporate

subsidiary

and

second,

where

the

plaintiff's

employment is subcontracted by one employer to another, formally
distinct, entity.”

Gulino, 460 F.3d at 378; see also Britton,

2022 WL 4332735, at *3 (“Courts in this Circuit have been wary of
extending the single-employer doctrine outside of these contexts,
especially where, as here, a government entity is involved.”).
Nor does Flynn sufficiently allege that the City, “an entity other
than the employee's formal employer, [BPHN], ha[d] power to pay
[Flynn’s] salary, hire, fire, or otherwise control [Flynn’s] daily
employment activities, such that we may properly conclude that a
constructive employer-employee relationship exists.”

Felder, 27

F.4th at 844; accord McHenry v. Fox News Network, LLC, 510 F. Supp.
3d 51, 82 (S.D.N.Y. 2020); Fried v. LVI Servs., Inc., No. 10 Civ.
9308 (JSR), 2011 WL 2119748, at *6-7 (S.D.N.Y. May 23, 2011).
Similarly, Flynn fails to provide the City with fair notice
of its fifth cause of action in its amended complaint. 7

See

6

The four parts of the single employer test are: “(1) interrelation of
operations, (2) centralized control of labor relations, (3) common management,
and (4) common ownership or financial control.” Cook v. Arrowsmith Shelburne,
Inc., 69 F.3d 1235, 1240 (2d Cir. 1995).
7

When the Court granted the City’s application for leave to file a motion to
dismiss plaintiff’s complaint on November 12, 2021, the Court also granted

6

Case 1:21-cv-02871-NRB Document 64 Filed 05/22/23 Page 7 of 8

Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (requiring
“fair notice of the claim asserted so as to enable him to answer
and prepare for trial”); Byron, 2023 WL 2585824, at *4, Britton,
2022 WL 4332735, at *4.

A “pleading must at least set forth

sufficient information for the court to determine whether some
recognized legal theory exists upon which relief could be accorded
the pleader.” Rodriguez v. Beechmont Bus Serv., Inc., 173 F. Supp.
2d 139, 145 (S.D.N.Y. 2001).

In Flynn’s fifth cause of action,

the Court cannot even discern a legal theory that could support a
claim to relief from Flynn’s amended complaint or briefing.
As

such,

dismissed

Flynn’s

with

supplemental

first

prejudice.

jurisdiction

and

fifth

This

Court

over

Flynn’s

causes

of

declines
remaining

action
to

are

exercise

claims

and

dismisses those claims without prejudice to their renewal in state
court.

See 28 U.S.C. § 1367(c)(3).

Accordingly, the City’s motion to dismiss is granted in its
entirety.

The Clerk of Court is respectfully instructed to

terminate the motion pending at ECF No. 51, enter judgment for the
City, and close the case.

plaintiff leave to file an amended complaint within two weeks. See ECF No.
27. On January 11, 2022, plaintiff filed an application for an additional
extension of time to file an amended complaint due to newly discovery facts
that allegedly supported plaintiff’s claims against the City. See ECF No.
29. The Court granted plaintiff's application on January 18, 2022, see ECF No.
30, and plaintiff’s amended complaint was filed on January 25, 2022, see FAC.

7

Case 1:21-cv-02871-NRB Document 64 Filed 05/22/23 Page 8 of 8

SO ORDERED.
Dated:

New York, New York
May 22, 2023
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____________________________
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

8