Opinion
21-CV-6889 (PGG) (OTW)
02-17-2023
CALWAYNE OGLETON, et. al., Plaintiffs, v. THE CITY OF NEW YORK, et al., Defendants.
REPORT & RECOMMENDATION TO THE HONORABLE PAUL G. GARDEPHE
ONA T. WANG, United States Magistrate Judge:
Plaintiff Calwayne Ogleton (“Plaintiff” or “Ogleton”) brought this class and collective action against Defendants City of New York (“City”), New York City Department of Buildings (“DOB”), and Commissioner of Buildings Melanie E. La Rocca (collectively, “Defendants”) alleging claims under the (1) Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (“FLSA”); (2) the New York Labor Law (“NYLL”); (3) the New York State Human Rights Law, New York Executive Law § 296 et seq. (“NYSHRL”); (4) and the New York City Human Rights Law, N.Y.C. Administrative Code § 8-101 et. seq. (“NYCHRL”). (See ECF 1, Complaint (“Compl.”)). On March 1, 2022, Defendants' Motion to Dismiss the Complaint in its entirety was referred to me for a Report and Recommendation. (ECF 45). For the reasons that follow, I recommend that Defendants' motion be GRANTED, with Plaintiff allowed leave to amend his Complaint.
This action was initially brought by two named plaintiffs, Calwayne Ogleton and Richard Whint. On February 17, 2023, I recommended that Whint be dismissed, and the parties apparently have no objections. (See ECF Nos. 54, 55).
The following facts are derived from Plaintiff's Complaint and are taken as true for the purpose of deciding Defendants' Motion to Dismiss.
Plaintiff Ogleton identifies as a Black male. (Compl. ¶ 9). On or about September 14, 2015, Defendants hired Ogleton to work as an Inspector. (Id. ¶ 28). In or about February 2019, Ogleton was promoted to the position of Supervisor. (Id. ¶ 29).
Ogleton alleges that throughout his employment as Supervisor, Defendants paid him $35.41 per hour. (Id. ¶ 30). Ogleton and other Supervisors would “clock in” and work, then “clock out” after finishing work each day. (Id. ¶ 30). Ogleton alleges that Defendants engaged in a policy of time-shaving, and pursuant to that policy, would not pay Ogleton and other Supervisors for all hours they worked, resulting in an average of one unpaid hour a day or five unpaid hours per week, including overtime hours. (Id.).
In or about December 2020, Ogleton informed his supervisors that he would no longer cooperate with the timeshaving policy. (Id. ¶ 33). Ogleton alleges that as a result, Defendants retaliated against him by creating a hostile work environment. Specifically, Ogleton alleges that Defendants required him, alone among Supervisors, to report to offices five days per week, while other Supervisor employees were permitted to work remotely. (Id. ¶ 35). Ogleton further alleges that although he was hired as a Supervisor for Defendants' Manhattan office, he was required to split time between Manhattan and Queens and was sometimes sent to work in the Bronx office, “at great inconvenience.” (Id. ¶ 37). Ogleton alleges that he was the only Supervisor required to comply with this directive. (Id.).
A. Class Allegations
The Complaint consists of several putative class actions.
Ogleton seeks a purported FLSA class action for Defendants' alleged failure to pay overtime. (Id. ¶¶ 18, 32). Ogleton seeks to represent two putative classes - (1) all non-exempt employees of Defendants with the title of Supervisor (id. ¶ 17) and (2) all non-exempt employees of Defendants from six years before the filing of the Complaint. (Id. ¶ 20). Ogleton additionally seeks a purported NYLL class action for Defendants' alleged failure to pay overtime and seeks to represent a putative class composed of all non-exempt employees of Defendants with the title of Supervisor. (Id. ¶¶ 17, 65).
Plaintiff additionally seeks a purported NYLL class action for Defendants' alleged failure to provide wage and hour notices or wage statements. (Id. ¶¶ 50, 69). Plaintiff seeks to represent a putative class composed of all non-exempt employees of Defendants from six years before the filing of the Complaint.
II. DISCUSSION
A. Status of Defendant DOB
Defendants argue that DOB is not a proper party to the action because as a New York City agency, DOB is a non-suable entity. (Defendants' Memorandum of Law in Support of Defendants' Motion to Dismiss the Complaint, 41) (“Motion”). Plaintiff does not respond to this specific argument in his Memorandum of Law in Opposition to Defendants' Motion (“Opposition”).
The New York City Charter provides that “[all] actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the [C]ity of New York and not in that of any agency, except where otherwise provided by law.” N.Y.C. CHARTER § 396. Accordingly, DOB is not a suable entity and Plaintiff's claims against it should be dismissed. See Sultan v. New York City Dep't of Bldgs., No. 99-CV-8615 (LAK), 2000 WL 262923, at *2 (S.D.N.Y. Mar. 7, 2000) (dismissing claims against DOB because of its status as a non-suable entity); Olabopo v. Gomes, No. 13-CV-5052 (RRM) (LB), 2016 WL 5477586, at *3 (E.D.N.Y. Sept. 29, 2016) (same).
B. Status of Defendant Commissioner La Rocca
Defendants argue that to the extent Plaintiff alleges NYSHRL or NYCHRL claims against Defendant Commissioner La Rocca (“La Rocca”), those claims must be dismissed for failure to allege personal involvement. (Motion at 9). Specifically, Defendants state that Plaintiff does not allege specific involvement by La Rocca, and therefore claims against her should be dismissed. Plaintiff responds that he has sufficiently pled that La Rocca is “an employer” of Plaintiff who maintained financial and operational control over Plaintiff. (Opposition at 12). Plaintiff additionally argues that any requirement that he allege personal involvement would create an “impossibly high bar for plaintiffs in the pleading stage.” (Id. at 12-13).
To make out a claim against an individual defendant under the NYSHRL or the NYCHRL, a plaintiff must either show “direct, personal involvement in discriminatory conduct, or that the defendant aided and abetted the discrimination or retaliation at issue.” Zambrano-Lamhaouhi v. New York City Bd. of Educ., 866 F.Supp.2d 147, 162-63 (E.D.N.Y. 2011) (internal citations and quotations omitted). Plaintiff does not identify any direct involvement of Defendant La Rocca in any alleged discriminatory or retaliatory conduct. Instead, Plaintiff alleges only that Defendant La Rocca had “control over the terms and conditions of [Plaintiff's] employment, and those of similarly situated employees,” and “maintained the authority to (1) hire and fire; (2) determine rate and method of pay; (3) adjust employee work schedules; (4) maintain employees' employment records; and (5) otherwise affect the quality of employment of Plaintiff, FLSA Collective Plaintiffs, and the Class members.” (Compl. ¶ 13). Plaintiff does not allege that Defendant La Rocca knew of or participated in the hostile work environment that he was allegedly subjected to, or that she discriminated or retaliated against him either on account of his race or for his refusal to participate in Defendants' “time-shaving policy.” Ocher v. Coler/Goldwater Mem'l Hosp., 450 F.Supp.2d 275, 286 (S.D.N.Y. 2006) (dismissing hostile work environment claim against plaintiff's supervisors where there was no allegation that supervisors had made discriminatory remarks, were or should have been aware of them, or failed to take remedial action). Accordingly, Plaintiff's NYSHRL and NYCHRL claims against Defendant La Rocca must be dismissed.
C. Defendants' Rule 12(b)(6) Motion
Defendants further argue that all of Plaintiff's claims must be dismissed under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Defendants argue that Plaintiff's FLSA claims fail to meet the FLSA's statutory requirements (id. at 11); that Defendants cannot be sued under the NYLL (id. at 12); that Plaintiff fails to state a plausible claim of discrimination under the NYSHRL and NYCHRL (id. at 13); that Plaintiff fails to plead the requisite facts necessary to allege a hostile work environment claim (id. at 16); and that Plaintiff fails to state a claim of retaliation. (Id. at 17).
1. Standard of Review
When presented with a motion to dismiss pursuant to Rule 12(b)(6), the court must accept as true all non-conclusory factual allegations in the plaintiff's complaint, together with the contents of any documents “integral” to the complaint and any matters of which the Court may take judicial notice, and draw all reasonable inferences in favor of the plaintiff. See Doe v. Columbia Univ., 831 F.3d 46, 48 (2d Cir. 2016); McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). While a complaint is not required to present “detailed factual allegations,” it must assert “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted).
To survive a motion to dismiss made under Rule 12(b)(6), the complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Thus, non-conclusory factual allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
In the context of claims of employment discrimination, at the initial stage of the litigation, a plaintiff does not need substantial evidence of discriminatory intent. Instead, it is enough for the plaintiff to show that (1) they are a member of a protected class; (2) they were qualified for the position they sought; (3) they suffered an adverse employment action; and (4) they can sustain a minimal burden of showing facts suggesting an inference of discriminatory motivation. Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015). Under this framework, plaintiffs do not need to give plausible support to the “ultimate question” of whether an alleged adverse employment action was attributable to discrimination, but only need to show “minimal support for the proposition that the employer was motivated by discriminatory intent.” Id.
2. Plaintiff's FLSA Claims (Count 1)
The FLSA requires that employees who work more than 40 hours per week be compensated for overtime work at a rate of one and one-half times their regular rate of pay. 29 U.S.C. § 207(a)(1). To state a claim under the FLSA, a plaintiff must sufficiently allege: (1) 40 hours of work in a given workweek, and (2) some uncompensated time in excess of the 40 hours. Lundy v. Cath. Health Sys. of Long Island Inc., 711 F.3d 106, 114 (2d Cir. 2013). General allegations that a plaintiff “typically,” “occasionally,” or “regularly” worked more than forty hours a week, without more, are insufficient to state a claim. Limauro v. Consol. Edison Co. of New York, Inc., No. 20-CV-03558 (CM), 2021 WL 1226872, at *2 (S.D.N.Y. Mar. 31, 2021). To survive a motion to dismiss, plaintiffs must “provide sufficient detail about the length and frequency of their unpaid work to support a reasonable inference that they worked more than forty hours in a given week.” Nakahata v. New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 201 (2d Cir. 2013). A plaintiff has not provided “sufficient detail” when “there is no way to identify from the allegations which weeks [the plaintiff] was required to work more than forty hours.” Limauro, 2021 WL 1226872 at *2.
Ogleton does not adequately allege either 40 hours of work in a given workweek, or sufficient facts demonstrating uncompensated overtime worked. Ogleton alleges that he would work an average of “one (1) unpaid hour per day, or five (5) unpaid hours per week, including overtime hours.” (Compl. ¶ 30). While Ogleton alleges that Defendants operated with a policy of not paying Ogleton for “all hours worked in excess of forty (40) hours per week” (id. ¶ 32), he does not identify any workweeks in which he was underpaid in violation of the FLSA, nor the specific number of hours he worked in excess in a given week. Indeed, the Complaint is devoid of any specific factual material regarding the nature and frequency of Ogleton's employment hours. Ogleton does not specify the time period of the alleged FLSA violations, point to a single specific week when he was required to work in excess of 40 hours, or even state that he worked, at minimum, 40 hours per work week. Such barebones allegations are insufficient to sustain a FLSA claim. See Thompson v. Urb. Recovery House, LLC, No. 20-CV-9581 (PGG) (JLC), 2022 WL 589957, at *5 (S.D.N.Y. Feb. 28, 2022), report and recommendation adopted sub nom. Thompson v. Elev8 Ctr. New York, LLC, No. 20-CV-9581 (PGG), 2022 WL 4547411 (S.D.N.Y. Sept. 29, 2022) (finding that FLSA claims were not sufficiently pleaded where plaintiffs did not allege a regular workweek schedule of more than 40 hours or allege a specific workweek in which they worked in excess of 40 hours); Amponin v. Olayan Am. Corp., No. 14-CV-2008 (TPG), 2015 WL 1190080, at *3 (S.D.N.Y. Mar. 16, 2015) (dismissing FLSA claims where plaintiff alleged “neither a specific week during which she worked more than forty hours, nor the specific number of hours she worked during any such week”). Ogleton has not pleaded sufficient details to allege plausible overtime claims under the FLSA, and his FLSA claims should therefore be dismissed.
Because Plaintiff's federal claims are deficiently pleaded and should be dismissed, the Court should decline to exercise supplemental jurisdiction over Plaintiff's remaining state law claims. Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 123 (2d Cir. 2006) (finding that district courts should decline to exercise supplemental jurisdiction “[i]n the absence of a federal interest”); Harris v. NYU Langone Med. Ctr., No. 12-CV-0454 (RA), 2014 WL 941821, at *2 (S.D.N.Y. Mar. 11, 2014), aff'd, 615 Fed.Appx. 49 (2d Cir. 2015) (declining to exercise jurisdiction over plaintiff's NYSHRL and NYCHRL claims where plaintiff's federal claims had been dismissed). However, in the event that the Court disagrees with my finding with respect to Plaintiff's FLSA claims, I analyze Plaintiff's state law claims below.
3. Plaintiff's NYLL Claims (Counts 2 and 3)
Plaintiff brings claims under NYLL § 195 against Defendant City of New York.(Compl. ¶¶ 67-71). The NYLL explicitly provides that “[t]he term ‘employer' shall not include a governmental agency.” N.Y. Lab. Law § 190. Based on this provision, courts have dismissed NYLL claims against the City of New York and New York City agencies. See Eng v. City of New York, No. 15-CV-1282 (DAB), 2017 WL 1287569, at *3 (S.D.N.Y. Mar. 29, 2017), aff'd, 715 Fed.Appx. 49 (2d Cir. 2017) (dismissing NYLL claims against City); D'Antonio v. Metro. Transp. Auth., No. 06-CV-4283 (KMW), 2008 WL 582354, at *5 (S.D.N.Y. Mar. 4, 2008) (dismissing NYLL claims against Metropolitan Transportation Authority and New York City Transit Authority). Because the City and DOB do not qualify as employers under the NYLL, claims against them must be dismissed as a matter of law. See McMillan v. Dep't of Bldgs., No. 12-CV-318 ENV, 2012 WL 1450407, at *2 (E.D.N.Y. Apr. 26, 2012) (stating that DOB is a city agency).
As discussed supra, Section II.A., I have recommended dismissal of Defendant DOB as a non-suable entity.
Plaintiff's NYLL claims against Defendant La Rocca, like his FLSA claims, are not pleaded with sufficient particularity. Because Plaintiff's FLSA claims should be dismissed, his NYLL claims against Defendant La Rocca should be dismissed as well. See Lewis v. Alert Ambulette Serv. Corp., No. 11-CV-442, 2012 WL 170049, at *5 (E.D.N.Y. Jan. 19, 2012) (“[T]he same elements are required to prove plaintiffs' claim under New York labor law as under federal law”).
4. Plaintiff's NYSHRL and NYCHRL Claims (Counts 4 and 5)
a) Discrimination Allegations Plaintiff makes generalized allegations stating that he was “subjected to a hostile work environment due to retaliation and discrimination” (Compl. ¶ 39), and asks the Court for relief from the Defendants' “discriminatory” practices. (Id. ¶ 89). Plaintiff self-identifies as a “[B]lack male.” (Compl. ¶ 9). Based on these allegations, the Court assumes that Plaintiff alleges disparate treatment claims based on his race under the NYSHRL and the NYCHRL.
NYSHRL § 296(1)(a) makes it “an unlawful discriminatory practice for an employer because of an individual's race to discriminate against such individual in compensation or in terms, conditions, or privileges of employment.” N.Y. Exec. Law § 296(1)(a) (brackets and ellipsis omitted). For allegedly discriminatory conduct occurring before October 11, 2019, the pleading standards for NYSHRL claims is the same as that for Title VII claims. See Syeed v. Bloomberg L.P., 568 F.Supp.3d 314, 321 (S.D.N.Y. 2021). Under this framework, “a plaintiff must plausibly allege that (1) the employer took adverse action against him and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015).
The NYCHRL makes it “an unlawful discriminatory practice for an employer or an employee or agent thereof, because of the actual or perceived race national origin or immigration or citizenship status of any person to discriminate against such person in compensation or in terms, conditions or privileges of employment.” N.Y.C. Admin. Code § 8 107(1)(a) (brackets and ellipsis omitted). To plead a discrimination claim under the NYCHRL, a plaintiff must allege only that “she [was] treated ‘less well' ... because of a discriminatory intent.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 110 (2d Cir. 2013). The NYCHRL standard is generally more liberal than the pre-October 2019 NYSHRL standard. See Nguedi v. Fed. Rsrv. Bank of New York, No. 16-CV-636 (GHW), 2019 WL 1083966, at *10 (S.D.N.Y. Mar. 7, 2019), aff'd, 813 Fed.Appx. 616 (2d Cir. 2020) (stating that the “NYCHRL must be construed broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible” (internal citations and quotations omitted). At the same time, courts have taken care to point out that the NYCHRL “is not a general civility code.” Mihalik, 715 F.3d at 110 (internal citations omitted). “The plaintiff still bears the burden of showing that the conduct is caused by a discriminatory motive. It is not enough that a plaintiff has an overbearing or obnoxious boss. She must show that she has been treated less well at least in part because of [her protected characteristic].” Id. Accordingly, plaintiffs bringing claims under the NYCHRL must allege that “unlawful discrimination was one of the motivating factors, even if it was not the sole motivating factor, for an adverse employment decision.” Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 127, 946 N.Y.S.2d 27, 40 (2012).
Here, Plaintiff fails to allege a plausible claim of race discrimination under either the NYSHRL or the NYCHRL. The Complaint is wholly devoid of any factual allegations that Plaintiff faced discrimination based on his race. While Plaintiff self-identifies his race, he fails to allege any conduct by Defendants that would suggest a causal connection between his race and any alleged adverse employment action. For example, while Ogleton alleges that he was the only Supervisor who was required to report to the office instead of being allowed to telework, and that he was sent to distant office locations while other Supervisors were not (Compl. ¶¶ 35-36), he does not state whether other Supervisors were non-Black employees, nor even that this disparate treatment was a result of racial discrimination on the part of Defendants. Ultimately, Plaintiff's discrimination claims boil down to the recitation that he is: (1) Black; (2) suffered adverse employment actions; (3) and must have suffered those adverse employment actions because he is Black. This is not enough to state a claim of discrimination under either the NYSHRL or the NYCHRL. See Bermudez v. City of New York, 783 F.Supp.2d 560, 586 (S.D.N.Y. 2011) (dismissing race discrimination claim under NYSHRL because plaintiff failed to allege a connection between alleged adverse employment action and plaintiff's race); Gonzalez v. City of New York, 377 F.Supp.3d 273, 300 (S.D.N.Y. 2019) (dismissing race discrimination claim brought under NYCHRL where plaintiff did not allege Defendants' personal involvement in any discriminatory conduct). Accordingly, Plaintiff fails to state a claim for discrimination under either the NYSHRL or the NYCHRL.
b) Hostile Work Environment Allegations
Plaintiff also alleges that Defendants created a hostile work environment in retaliation in violation of the NYSHRL and the NYCHRL. (See generally, Compl. ¶¶ 23, 34-36, 74). Specifically, Ogleton alleges that after he announced to his supervisors that he would not cooperate with Defendants' alleged time-shaving policy, he was required to report to the office five days a week in person, while other employees were allowed to work remotely. (Id. ¶ 35). Additionally, Ogleton alleges that he was the only Manhattan Supervisor required to split his time between Manhattan, Queens, and the Bronx.
To state a claim for a hostile work environment under the NYSL, a plaintiff must plead facts plausibly demonstrating that “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [their] employment and create an abusive working environment.” Isbell v. City of New York, 316 F.Supp.3d 571, 591 (S.D.N.Y. 2018) (internal citations and quotations omitted). As part of this inquiry, a plaintiff must plausibly allege that “the hostile work environment was caused by animus towards her as a result of her membership in a protected class.” Id. See also Lloyd v. Holder, No. 11-CV-3154 (AT), 2013 WL 6667531, at *11 (S.D.N.Y. Dec. 17, 2013) (“It is axiomatic that mistreatment at work, whether through subjection to a hostile environment or through other means, is actionable ... only when it occurs because of an employee's protected characteristic, such as race or gender”) (internal citations and punctuation omitted).
As explained supra, Section II.D.4(a), the NYCHRL requires courts to apply a more lenient standard than the NYSHRL. See Mihalik, 715 F.3d at 109. However, plaintiffs bringing claims under the statute must still show some discriminatory motive. Id. at 110.
Plaintiff's hostile work environment claims suffer from the same defect as his discrimination claims - he does not allege that Defendants' conduct created a hostile work environment because of his race. These claims are deficiently pled and should be dismissed. See Bliss v. MXK Rest. Corp., 220 F.Supp.3d 419, 424 (S.D.N.Y. 2016) (dismissing NYSHRL and NYCHRL claims where plaintiff did not allege that defendants' conduct created a hostile work environment because of her protected status).
c) Retaliation Allegations
Retaliation under the NYSHRL is established by showing “1) that plaintiff was engaged in a protected activity, (2) that defendants knew of the protected activity, (3) that defendants took adverse employment actions against plaintiff, and (4) a causal connection between the protected activity and the adverse action.” Soloviev v. Goldstein, 104 F.Supp.3d 232, 250 (E.D.N.Y. 2015). To establish a claim for retaliation under the NYCHRL, a plaintiff “must show they took an action opposing the employer's discrimination, and that, as a result, the employer engaged in conduct that was reasonably likely to deter a person from engaging in such action.” Id. at 252. Both statutes therefore require plaintiffs to at least plead a causal connection between the plaintiff's protected activity and the employer's adverse action. Causal connections in retaliation claims “can be shown either (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant.” Levy v. Legal Aid Soc'y, 408 F.Supp.3d 209, 217 (E.D.N.Y. 2019).
Ogleton's two examples of retaliation for his protest of Defendants' alleged timeshaving policy are that 1) he was required to report to offices five days per week instead of being permitted to work remotely like other Supervisors; and 2) he was required to split his time between Manhattan and other boroughs, “at great inconvenience.” (Compl. ¶¶ 34-35). Ogleton does not establish that either of these activities directly followed his announcement of non-cooperation with Defendants' alleged time-shaving policy, or that he was the only Supervisor who protested the policy. Accordingly, Ogleton has not established the casual connection necessary to state a claim under the NYSHRL or NYCHRL. Levy, 408 F.Supp. at 217 (dismissing NYSHRL and NYCHRL retaliation claims where plaintiff did not establish that his suspension and termination were sufficiently close in time to infer a causal connection of retaliation).
5. Class Action Claims
“[O]nce the named plaintiffs' claims are dismissed, there is no one who has a justiciable claim that may be asserted.” Bowens v. Atl. Maint. Corp., 546 F.Supp.2d 55, 76 (E.D.N.Y. 2008). Because Plaintiff is unable to maintain his individual claims, the purported class actions based on his individual claims also fail and should be dismissed.
III. LEAVE TO AMEND
When a motion to dismiss is granted, “the usual practice is to grant leave to amend the complaint.” Ronzani v. Sanofi S.A., 899 F.2d 195, 198 (2d Cir. 1990). Here, I recommend that Plaintiff be granted leave to amend Counts 1, 4, and 5. In his amended complaint, Plaintiff should provide all relevant facts supporting his claims against Defendants.
Specifically, Plaintiff should state with particularity the following in his amended complaint:
• Sufficient facts and dates concerning his regular hours of work for his amended FLSA claim;
• sufficient facts establishing a causal connection between any alleged adverse employment action and a protected characteristic for his amended NYSHRL and NYCHRL claims.
If Plaintiff wishes to name Defendant La Rocca in his amended complaint, he must state facts specifying her personal involvement in any alleged unlawful conduct.
Defendants have also argued that Plaintiff's FLSA, NYSHRL, and NYCHRL claims are at least partially time-barred under the relevant statutes of limitations. (See Motion at 6-8). The Court should decide any potential statute of limitations issues after Plaintiff files an amended complaint, taking into account the reasons for dismissal identified in this Report and Recommendation.
IV. CONCLUSION AND OBJECTIONS
For the reasons stated above, I recommend that Defendants' Motion to Dismiss be GRANTED, with Plaintiff being given leave to amend Counts 1, 4, and 5 only. In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6 (allowing three (3) additional days for service by mail). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be addressed to the Hon. Paul G. Gardephe. Any requests for an extension of time for filing objections must be directed to Judge Gardephe.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
SO ORDERED.