Durand v. Excelsior Care Group LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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MYRIAM DURAND, MARTINE THEOGENE,

NERLY GUERRIER, and KERNES PIERRE,

individually and on behalf of

others similarly situated,

Plaintiffs, MEMORANDUM & ORDER

19-CV-2810 (KAM)(SJB)

-against-

EXCELSIOR CARE GROUP LLC D/B/A

COLD SPRING HILLS CENTER FOR

NURSING AND REHABILITATION, and

YOSSI EMANUEL,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiffs Myriam Durand, Martine Theogene, Kernes

Pierre, and Nerly Guerrier (collectively, “plaintiffs”),

individually and on behalf of others similarly situated, bring

this action against Excelsior Care Group LLC d/b/a Cold Spring

Hills Center for Nursing and Rehabilitation (“Cold Spring”) and

Yossi Emmanuel (collectively, “defendants”), alleging violations

of plaintiffs’ employment rights under the Fair Labor Standards

Act, (“FLSA”), 29 U.S.C. § 201 et seq., New York Labor Laws,

N.Y. Labor Law §§ 190 et seq. and 650 et seq., Title VII of the

Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et

seq., the Equal Pay Act of 1963, 29 U.S.C. § 206(d), and the New

York Equal Pay Act, N.Y. Labor Law § 194. (See ECF No. 25,

Second Amended Complaint (“SAC”), at 12-21.)

Presently before the court is defendants’ partial

motion to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6) counts seven, eight, and nine of plaintiffs’ SAC. (See

ECF No. 29, Notice of Motion to Dismiss; ECF No. 31, Defendants’

Memorandum of Law in Support of the Motion to Dismiss (“Def.

Mem.”) at 31.) For the reasons set forth below, defendants’

partial motion to dismiss is GRANTED, and plaintiffs’ seventh,

eighth, and ninth causes of action in the SAC are DISMISSED

without prejudice.

BACKGROUND

The following facts -- drawn from the SAC and

documents that are incorporated by reference in, or integral to,

the SAC -- are assumed to be true for purposes of this

motion. See, e.g., DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104,

111 (2d Cir. 2010).

I. The Second Amended Complaint

A. The Parties

Plaintiffs represent a putative class of individuals

and those similarly situated persons, who work or have worked as

registered nurse supervisors for defendants. (SAC ¶ 23.)

Plaintiffs Durand, Theogene, and Guerrier are current employees

of defendants, who are employed as registered nurse supervisors

and are residents of New York. (Id. ¶¶ 11-13, 44-46.)

Plaintiff Pierre is a former employee of defendants, who was

employed as a registered nurse supervisor from August 2018 to

September 2019. (Id. ¶¶ 18, 47.) Defendants own, operate, or

control a nursing and rehabilitation center located at 378

Syosset-Woodbury Road, Woodbury, New York 11797, doing business

under the name Cold Spring Hills Center for Nursing and

Rehabilitation. (Id. ¶ 20-21.) Excelsior Care Group Cold

Spring Hills (d/b/a Cold Spring Hills Center for Nursing and

Rehabilitation) is a domestic corporation organized and existing

under the laws of the State of New York with its principal place

of business in New York. (Id. ¶ 21.) Defendant Emanual is an

administrator, officer, owner and or agent of Cold Spring. (Id.

¶ 22.)

B. Wage and Overtime Violations

Plaintiffs allege that defendants are liable under the

FLSA for, inter alia, failing to pay proper premium overtime

compensation for all hours worked in excess of 40 hours per

week. (SAC ¶¶ 24, 27.) Plaintiffs bring their New York Labor

Law claims under Rule 23 of the Federal Rules of Civil Procedure

on behalf of themselves and a class of person consisting of: all

persons who work or have worked as registered nurses for

defendants between 2013 and the date of the final judgment in

this matter. (Id. ¶ 28.)

C. Employment Discrimination

Plaintiffs also allege several causes of action

related to defendants’ purported discriminatory employment

practices. (Id. ¶ 1.) Specifically, plaintiffs allege that

defendants “maintained a policy and practice of knowingly and

willfully compensating black Registered Nurses[], Nurse managers

and Directors of Nursing less than their Caucasian colleagues.”

(Id. ¶ 2.) Plaintiffs are identified as current and former

“Registered Nurse Supervisor[s].” (Id. ¶¶ 44-47.) Moreover,

plaintiffs allege that black “Registered Nurses[], Nurse

managers and Directors of Nursing” were paid “less than their

American English-speaking colleagues.” (Id. ¶ 3.) In other

words, defendants allegedly engaged in national origin and race

discrimination in violation of Title VII by: (i) paying American

English-speaking employees more than their Haitian colleagues,

and (ii) paying their Caucasian employees more than non-

Caucasian employees. (See id. ¶¶ 126-39.) Moreover, plaintiffs

also allege that defendants violated the Equal Pay Act by paying

plaintiff Pierre, a male, less than his female co-workers even

though Pierre and his co-workers performed jobs requiring “equal

skill, effort and responsibility” and “under similar working

conditions.” (Id. ¶ 123.)

II. Defendants’ Partial Motion to Dismiss

On May 13, 2019, plaintiffs commenced the instant

action to recover monetary damages for defendants’ purported

violations of several labor laws including the FLSA. (See ECF

No. 1, Complaint.) Several months later, on December 2, 2019,

plaintiffs amended the initial complaint and asserted new claims

under the Equal Pay Act, Title VII, and the Age Discrimination

in Employment Act. (See ECF No. 21, First Amended Complaint.)

Plaintiffs filed the operative SAC on February 11, 2020. (ECF

No. 25.)

Presently before the court is defendants’ partial

motion to dismiss specific claims in the SAC pursuant to Federal

Rule of Civil Procedure 12(b)(6) for failure to state a claim.

(See ECF No. 29.) Specifically, defendants move to dismiss

plaintiffs’ seventh, eighth, and ninth causes of action for

failing to state a claim upon which relief may be granted.

(Def. Mem. at 1-2.) Plaintiffs’ seventh cause of action alleges

that defendants violated the Equal Pay Act when they paid

Plaintiff Pierre, a male, less than his female co-workers even

though Pierre and his co-workers performed jobs requiring “equal

skill, effort and responsibility” and “under similar working

conditions.” (SAC ¶¶ 120-25.) Plaintiffs’ eighth and ninth

causes of action assert that defendants violated Title VII by

allegedly engaging in national origin and race discrimination by

(i) paying American English-speaking employees more than their

Haitian colleagues, and (ii) paying Caucasian employees more

than non-Caucasian employees. (Id. ¶¶ 126-39.)

LEGAL STANDARD

In evaluating defendants’ motion to dismiss, the Court

must accept all facts set forth in the SAC as true and draw all

reasonable inferences in plaintiffs’ favor. See, e.g., Burch v.

Pioneer Credit Recovery, Inc., 551 F.3d 122, 124 (2d Cir. 2008)

(per curiam). A claim survives a Rule 12(b)(6) motion, however,

only if the plaintiff alleges facts sufficient “to state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). 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.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (citing Twombly, 550 U.S. at 556). A plaintiff

must show “more than a sheer possibility that a defendant has

acted unlawfully,” id., and cannot rely on mere “labels and

conclusions” to support a claim, Twombly, 550 U.S. at 555. If

the plaintiff’s pleadings “have not nudged [his or her] claims

across the line from conceivable to plausible, [the] complaint

must be dismissed.” Id. at 570. Significantly, where, as here,

a plaintiff brings an employment discrimination claim, “[t]he

facts required by Iqbal to be alleged in the complaint need not

give plausible support to the ultimate question of whether the

adverse employment action was attributable to discrimination.

They need only give plausible support to a minimal inference of

discriminatory motivation.” Littlejohn v. City of New York, 795

F.3d 297, 311 (2d Cir. 2015); accord Vega v. Hempstead Union

Free Sch. Dist., 801 F.3d 72, 86-87 (2d Cir. 2015).

District courts “must consider the complaint in its

entirety, as well as other sources courts ordinarily examine

when ruling on Rule 12(b)(6) motions to dismiss, in particular,

documents incorporated into the complaint by reference, and

matters of which a court may take judicial notice.” Tellabs,

Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

The court may also consider documents the plaintiff relied on in

bringing suit, and which are either in the plaintiff’s

possession, or that the plaintiff knew of when bringing suit.

Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002);

Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.

1993); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47–

48 (2d Cir. 1991), cert. denied, 503 U.S. 960 (1992); McKevitt

v. Mueller, 689 F. Supp. 2d 661, 665 (S.D.N.Y. 2010).

DISCUSSION

Plaintiffs seek relief for defendants’ alleged wage

discrimination in violation of the Equal Pay Act and Title VII,

amongst several other state and federal labor laws. Defendants

move to dismiss plaintiffs’ discrimination claims based on

disparate pay and unlawful national origin and race wage

discrimination. (See Def.’s Mem. at 1-2.) Defendants do not

move to dismiss plaintiffs’ FLSA wage and employment claims

regarding their overtime compensation. (Id.) The court will

begin its analysis with plaintiffs’ disparate pay claims under

the Equal Pay Act before turning to plaintiffs’ remaining claims

of national origin and race discrimination under Title

VII. Finally, the court will briefly address defendants’ motion

to dismiss several claims against defendant Emanuel in his

individual capacity and plaintiffs’ request to amend the SAC.

I. Plaintiffs’ Seventh Claim for Disparate Pay in Violation of

the Equal Pay Act

Plaintiffs’ seventh cause of action asserts a claim

for disparate pay due to gender discrimination under the Equal

Pay Act. In relevant part, plaintiffs allege that:

Defendants failed to pay Plaintiff Pierre, and

all similarly situated employees, equally with

their female registered nurse supervisors

whose job performance of which requires equal

skill, effort and responsibility and which are

performed under similar working conditions, in

violation of § 1620.13 of the Equal Pay Act.

(SAC ¶ 123.) Plaintiffs allege that plaintiff Pierre was

employed as a registered nurse or nurse supervisor from August

26, 2018 to September 2019, and that both plaintiff Pierre and

his female comparators, nurses Christine Wolf and Nancy

Fitzgerald, performed the same job requiring equal skill,

effort, and responsibility. (Id. ¶¶ 70, 89.) Finally,

plaintiffs assert that defendants’ failure to pay plaintiff

Pierre was willful and resulted in plaintiff Pierre suffering

damages.1 (Id. ¶¶ 124-25.)

The Equal Pay Act “prohibits employers from

discriminating among employees on the basis of sex by paying

higher wages to employees of the opposite sex for ‘equal work on

jobs the performance of which requires equal skill, effort, and

responsibility, and which are performed under similar working

conditions.’” Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir.

1999) (quoting 29 U.S.C. § 206(d)(1)). To establish a violation

of the Equal Pay Act, a plaintiff must show (1) that the

employer paid different wages to employees of the opposite sex,

(2) that the different wages were for work performed under

similar conditions, and (3) that the work required the same

level of skill, effort, and responsibility. Frasier v. Gen.

Elec. Co., 930 F.2d 1004, 1007 (2d Cir. 1991) (citing Corning

Glass Works v. Brennan, 417 U.S. 188 (1974)). “New York’s Equal

Pay Act is analyzed under the same standards applicable to the

1 The court notes that plaintiffs also allege that defendant Emanuel

retaliated against plaintiff Pierre by “removing crucial job functions and

placing [Pierre] on a permanent placement in a known problem area for months”

after plaintiff Pierre brought up the wage disparity. (SAC ¶ 72.) Because

plaintiffs failed to plead a claim for retaliation, however, this specific

allegation is immaterial to plaintiffs’ seventh cause of action for violation

of the Equal Pay Act.

federal Equal Pay Act.” Lehman v. Bergmann Assocs., Inc., 11 F.

Supp. 3d 408, 420 n.6 (W.D.N.Y. 2014). A “plausible EPA claim

must include ‘sufficient factual matter, accepted as true’ to

permit ‘the reasonable inference’ that the relevant employees’

job content was ‘substantially equal.’” E.E.O.C. v. Port Auth.

of New York & New Jersey, 768 F.3d 247, 256 (2d Cir. 2014)

(quoting Iqbal, 556 U.S. at 678). Broad generalizations drawn

from job titles, and conclusory assertions of sex

discrimination, do not suffice. Id.

After reviewing the SAC, the court concludes that

plaintiffs failed to state an Equal Pay Act claim because the

SAC does not provide any factual allegations giving rise to an

“reasonable inference” that the employees “job content was

substantially equal.” Port Auth. of New York & New Jersey, 768

F.3d at 256; see Kairam v. W. Side GI, LLC, 793 F. App'x 23, 26

(2d Cir. 2019) (summary order) (affirming dismissal of

plaintiff’s Equal Pay Act claim where plaintiff failed to allege

that “her position was ‘substantially equal’” to the defendant’s

position); Rose v. Goldman. Sachs & Co., 163 F. Supp. 2d 238,

244 (S.D.N.Y. 2001) (finding that “nothing more than bald

assertions that [a plaintiff] and male employees . . . received

disparate wages for substantially equal jobs under similar

working conditions . . . are too conclusory to state a claim

under the Equal Pay Act”). Notably, the SAC fails to include

any facts describing the job duties, responsibilities, the skill

and effort required to execute the nursing positions, or the

conditions under which the work was performed. Instead,

plaintiffs' allegations are a formulaic recitation of the

language of the Equal Pay Act. See 29 U.S.C. § 206(d)(1)

(stating that employers must “pay[ ] wages to employees of the

opposite sex . . . for equal work on jobs the performance of

which requires equal skill, effort, and responsibility”).

Although the pleading standards are minimal at the motion to

dismiss stage, courts in this Circuit have dismissed complaints

where, as here, plaintiffs merely recite the Equal Pay Act

language without setting forth any factual allegations. See,

e.g., Abreu Suzuki v. State Univ. of New York Coll. at Old

Westbury, No. 08–cv–4569 (TCP), 2013 WL 2898135, at *4 (E.D.N.Y.

June 13, 2013) (dismissing Equal Pay Act claims where complaint

contained only single conclusory allegation that defendant paid

plaintiff “and other female professors less wages than they paid

to male employees although she performed equal, or superior,

work and had equal or better qualifications and experience”);

Eng v. City of New York, No. 15-cv-1282 (DAB), 2017 WL 1287569,

at *4 (S.D.N.Y. Mar. 29, 2017) (dismissing Equal Pay Act claim

where plaintiff “provide[d] no factual allegations that would

allow the Court to compare her job duties, skills and experience

with those of the comparators”); Von Maack v. Wyckoff Heights

Med. Ctr., No. 15-cv-3951 (ER), 2016 WL 3509338, at *11

(S.D.N.Y. June 21, 2016) (dismissing Equal Pay Act claim where

complaint was “devoid of any allegations going to whether

[plaintiff and her comparator] performed a ‘substantially

similar’ job”).

Plaintiffs contend that the mere identification of the

plaintiffs’ and comparators’ titles -- here, the title of

registered nurse supervisors -- is sufficient to state an Equal

Pay Act claim. (See ECF No. 33, Plaintiffs’ Memorandum in

Opposition (“Pl. Mem.”) at 5.) In other words, plaintiffs argue

that they have satisfied the minimal pleading standards for an

Equal Pay Act claim by simply noting that both plaintiff Pierre

and his female comparators possessed the title of registered

nurse supervisors. (Pl. Mem. at 5.) The Second Circuit and

district courts in this Circuit disagree. Reliance on “broad

generalizations drawn from job titles, classifications, or

divisions,” are routinely rejected when reviewing Equal Pay Act

claims on a motion to dismiss. See Stern v. State Univ. of New

York, No. 16-cv-5588 (NGG)(LB), 2018 WL 4863588, at *9 (E.D.N.Y.

Sept. 30, 2018) (noting that on a motion to dismiss, a plaintiff

may not “rest on broad generalizations drawn from job titles,

classifications, or divisions” (quoting Port Auth. of New York &

New Jersey, 768 F.3d at 257)); Eng, 2017 WL 1287569, at *3

(“[U]nder the EPA, a viable claim ‘depends on the comparison of

actual job content; broad generalizations drawn from job titles,

classifications, or divisions . . . cannot suffice.’”).

Accordingly, for these reasons, the court grants defendants’

motion to dismiss plaintiffs’ seventh cause of action under the

Equal Pay Act.

II. Plaintiffs’ Eighth and Ninth Claims for National Origin and

Race Discrimination in Violation of Title VII

Plaintiffs’ eighth and ninth causes of action assert

that defendants violated Title VII by allegedly engaging in

national origin and race discrimination by: (i) paying American

English-speaking employees more than their Haitian colleagues,

and (ii) paying Caucasian employees more than non-Caucasian

employees. (SAC ¶¶ 126-39.)

Title VII makes it unlawful for an employer “to fail

or refuse to hire or to discharge any individual, or otherwise

to discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual's race, color, religion, sex,

or national origin.” 42 U.S.C. § 2000e-2(a)(1). To state a

prima facie claim for race or national origin discrimination

under either Title VII, “a plaintiff must show that (1) he is a

member of a protected class; (2) he was qualified for the

position he held; (3) he suffered an adverse employment action;

and (4) the adverse action took place under circumstances giving

rise to the inference of discrimination.” Soloviev v.

Goldstein, 104 F. Supp. 3d 232, 247 (E.D.N.Y. 2015) (quoting

Salazar v. Ferrara Bros. Bldg. Materials Corp., No. 13-cv-3038,

2015 WL 1535698, at *5 (E.D.N.Y. Apr. 6, 2015)). At the

pleading stage, however, a plaintiff need not establish a prima

facie case of discrimination in his complaint; instead, he must

plausibly allege only 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, 801 F.3d at 87.

“[T]o avoid dismissal, a plaintiff must allege facts

supporting ‘a facially plausible inference that the

[d]efendants’ actions were motivated by [discriminatory]

animus.’” Jones v. City of New York, 14-cv-0826 (CBA) (RLM),

2015 WL 502227, at*4 (E.D.N.Y. 2015) (quoting De La Peña v.

Metro. Life Ins. Co., 953 F. Supp. 2d 393, 414 (E.D.N.Y. 2013),

aff'd, 552 F. App'x 98 (2d Cir. 2014) (summary order)); see also

Idlisan v. N. Shore-Lone Island Jewish Health Sys., Inc., No.

13-cv-2345 (SJF) (GRB), 2014 WL 2157540, at *6-7 (E.D.N.Y. May

23, 2014) (dismissing discrimination claims because “the

complaint fails to plead any facts linking defendant's [actions]

to [plaintiff's] race [or] national origin”). “Naked assertions

of [] discrimination . . . without any specific allegation of a

causal link between the [d]efendants’ conduct and the

[p]laintiff’s [membership in a protected class], [are] too

conclusory to withstand a motion to dismiss.” Gaddy v.

Waterfront Comm'n, No. 13-cv-3322 (AT) (HBP), 2014 WL 4739890,

at *5 (S.D.N.Y. Sept. 19, 2014) (internal quotation marks and

citations omitted); see Jackson v. Cnty. of Rockland, 450 F.

App'x 15, 19 (2d Cir. 2011) (summary order) (“[B]ald assertions

of discrimination . . . unsupported by any comments, actions, or

examples . . . from which we could infer that the defendants

possessed a discriminatory . . . motive are . . . insufficient

to survive a motion to dismiss.”); Yusuf v. Vassar College, 35

F.3d 709, 713 (2d Cir. 1994) (naked assertions of racial

motivation will not suffice).

The court concludes that plaintiffs’ Title VII claims

against defendants for purported national origin and race

discrimination must be dismissed because plaintiffs failed to

allege that national origin or race were motivating factors

behind the alleged wage discrimination. Here, plaintiffs allege

that defendants “engaged in egregious acts of national origin

discrimination targeted at employees of Haitian ethnicity by

prohibiting them from communicating in their native tongue,

Haitian creole or French.” (SAC ¶ 84.) In support of this

claim, plaintiffs identify a statement made by defendant Emanual

prohibiting Creole to be spoken at Cold Spring and a flyer

prohibiting the use of Creole or French at defendants’

facilities. (Id. at 85-86.) Plaintiffs then identify two

“American English-speaking” nurses who were purportedly paid

more than plaintiffs. (Id. at 88-89.) As to the race-based

discrimination claims, plaintiffs allege that defendants

“willfully and intentionally pay Caucasian employees

substantially more, than they pay non-Caucasian employees who

perform the same job under similar circumstances, regardless of

experience or qualifications.” (Id. ¶ 93.) For the reasons

explained below, plaintiffs’ conclusory allegations are

insufficient to support an inference of national origin or race

discrimination under Title VII.

First, plaintiffs’ national origin discrimination

claim cannot withstand defendants’ motion to dismiss because

plaintiffs failed to: (1) identify their national origin, and

(2) plead facts giving rise to an inference that plaintiffs’

national origin was a motivating factor in defendants’ alleged

wage discrimination. As an initial matter, although plaintiffs

allege that defendants discriminated against Haitian nurses (see

SAC ¶¶ 53, 84, 87), plaintiffs failed to allege that they are of

Haitian national origin, and thus part of a protected class.

(See id. ¶¶ 44-74 (describing the individual plaintiffs but

failing to identify any plaintiff as Haitian).) It is well-

settled that “[w]here a plaintiff fails to allege that he is a

member of a protected class, he fails to allege a Title VII

claim.” Powell v. Lab Corp., No. 17-cv-3632(JMA)(GRB), 2018 WL

6814371, at *8 (E.D.N.Y. Dec. 27, 2018), aff'd, 789 F. App'x 237

(2d Cir. 2019); Connell v. City of New York, No. 00-cv-6306,

2002 WL 22033, at *3 (S.D.N.Y. Jan. 8, 2002) (dismissing Title

VII claim where plaintiff failed to allege that he was member of

a protected class). Accordingly, plaintiffs’ national origin

claim is insufficient for this reason.

Even assuming plaintiffs adequately pled that they

were of Haitian national origin, however, plaintiffs’ national

origin claim also fails because the SAC does not contain factual

allegations giving rise to an inference that national origin was

a motivating factor in the alleged wage discrimination. See

Smith v. Mercy Med. Ctr., No. 16-cv-1814 (SJF)(ARL), 2017 WL

3017194, at *5 (E.D.N.Y. June 6, 2017) (dismissing race and

national origin discrimination claims where plaintiff failed to

allege facts that support her allegation that “race or national

origin were motivating factors behind her termination”). As

discussed above, plaintiffs base their national origin

discrimination claims primarily on defendants’ alleged

statements prohibiting plaintiffs from speaking Creole or French

at work. (See SAC ¶ 84-86.) As the Second Circuit has

explained, however, Title VII does not expressly identify

language as a protected class. See Soberal–Perez v. Heckler,

717 F.2d 36, 41 (2d Cir. 1983) (stating that “[l]anguage, by

itself, does not identify members of a suspect class”); Brewster

v. City of Poughkeepsie, 447 F. Supp. 2d 342, 351 (S.D.N.Y.

2006)(noting that Title VII “does not protect against

discrimination on the basis of language”). Although the court

recognizes that under certain circumstances “evidence of

language discrimination may permit a jury finding of national

origin or race discrimination -- for example, when it is

accompanied by sufficient evidence more directly proving the

latter forms of discrimination,” Panjwani v. Jet Way Sec. &

Investigations, LLC, No. 13-cv-7186 (SLT) (VMS), 2016 WL

3675331, at *13 (E.D.N.Y. Feb. 26, 2016), report and

recommendation adopted, No. 13-cv-7186 (SLT)(VMS), 2016 WL

3702969 (E.D.N.Y. July 7, 2016), plaintiffs’ SAC provides no

additional factual allegations relating to the claim of national

origin discrimination, notwithstanding defendants’ language

preferences.2 Indeed, the SAC confirms that plaintiffs’ national

2 In assessing the “propriety of a language-restriction policy,” courts

consider “whether the employer's practices reflect an intent to discriminate

on the basis of the classifications protected by Title VII, including race

and national origin. . . [and] whether there is evidence that the employer,

in addition to adopting an English-only policy, has exhibited other forms of

racial or ethnic hostility.” Pacheco v. New York Presbyterian Hosp., 593 F.

Supp. 2d 599, 612 (S.D.N.Y. 2009) (collecting cases); see, e.g., Garcia v.

Spun Steak Co., 998 F.2d 1480, 1489 (9th Cir. 1993) (noting that English-only

policies in conjunction with other discriminatory conduct can “contribute[ ]

to an overall environment of discrimination”); Brewster, 447 F. Supp. 2d at

351 (holding that there was sufficient evidence of discrimination where

employer made comments, such as, “Speak English. Go back to your own country

if you want to speak Spanish. You're in our country.”); Velasquez v.

Goldwater Mem'l Hosp., 88 F. Supp. 2d 257, 262–63 (S.D.N.Y. 2000) (noting

that a “no-Spanish” policy “could be used to disguise a discriminatory

motive”). For instance, if plaintiffs “were able to present evidence that

other employees were permitted to speak in, for example, Chinese or

origin claim is based on defendants alleged “disdain for

Plaintiffs[’] linguistic characteristics, in violation of Title

VII.” (SAC ¶ 131 (emphasis added).) For the reasons explained

above, however, Title VII does not prohibit discrimination based

on language-preferences alone and, thus, plaintiffs’ national

origin claim fails on this basis. Accordingly, because the SAC

does not contain factual allegations supporting plaintiffs’

assertion that national origin was a motivating factor behind

the alleged wage discrimination, the court dismisses plaintiffs’

eighth cause of action for national origin discrimination under

Title VII.

Second, plaintiffs’ claim for race discrimination is

similarly deficient because the SAC fails to allege facts that

support an inference that plaintiffs’ race was a motivating

factor behind the alleged wage discrimination. Plaintiffs

assert that “Defendants’ failure to pay Plaintiffs and all

similarly situated employees, equally with their Caucasian

coworkers was based on the Defendants disdain for Plaintiffs’

skin color.” (SAC ¶ 138.) For a Title VII discrimination claim

to survive a motion to dismiss, plaintiff must plausibly allege

facts that indicate her race “was a motivating factor in the

employment decision.” Vega, 801 F.3d at 86. Where a plaintiff

Portugese, but not Spanish, such evidence could support an inference of

intentional discrimination on the basis of national origin.” Velasquez, 88

F. Supp. 2d at 263.

fails to provide facts supporting an inference that his or her

race was a “motivating factor” in the employment decision (here,

the alleged wage discrimination), courts in this Circuit have

dismissed the Title VII claims. See, e.g., Haynes v. Capital

One Bank, No. 14-cv-6551, 2015 WL 2213726, at *2 (E.D.N.Y. May

8, 2015) (dismissing race discrimination claim where, “aside

from one ambiguous remark made by her branch manager,” the

plaintiff “fail[ed] to allege any facts that suggest[ed] her

termination or any other adverse employment actions were

connected to her race”); Soloviev, 104 F. Supp. 3d at 249

(dismissing race discrimination claim where plaintiff “show[ed]

no connection between his termination and his” race). Here,

plaintiffs’ conclusory allegation that defendants failed to pay

plaintiffs and “all similarly situated employees, equally with

their Caucasian coworkers [] based on the Defendants[’] disdain

for Plaintiffs[’] skin color” is insufficient to state a Title

VII claim for race discrimination. See De La Pena v. Metro.

Life Ins. Co., 552 F. App'x 98, 100 (2d Cir. 2014) (summary

order) (affirming dismissal of employment discrimination claims

where “plaintiff's bald assertions of discrimination --

unsupported by any meaningful comments, actions, or examples of

similarly-situated persons outside of plaintiff's protected

class being treated differently -- were implausible and

insufficient to survive a motion to dismiss”); Samuel v.

Bellevue Hospital Center, 366 F. App'x 206, 207 (2d Cir. Feb.17,

2010) (summary order) (affirming dismissal of employment

discrimination claim due to the plaintiff's failure to “allege

sufficient facts to render plausible his conclusory assertion

that the defendants discriminated against him on the basis of

his membership in a protected class”). Contrary to plaintiffs’

assertion, it is not sufficient to simply allege that the named

plaintiffs are “black” and of “Haitian national origin.”3 (Pl.

Mem. at 7-8.) Accordingly, for the reasons stated above,

plaintiffs’ failure to allege facts that render plausible an

inference that plaintiffs’ race was motivating factor in the

alleged wage discrimination is fatal to plaintiffs’ claim.

Thus, the court also dismisses plaintiffs’ ninth cause of action

for race discrimination under Title VII.4

Finally, defendants argue that plaintiffs failed to

exhaust their administrative remedies by failing to obtain the

3 The court notes that the SAC does not contain any allegation that

plaintiffs are of “Haitian national[]” origin and declines to read facts into

the SAC. See Ann Wang v. Gov't Employees Ins. Co., No. 15-cv-1773 (JS)(ARL),

2016 WL 11469653, at *2 (E.D.N.Y. Mar. 31, 2016) (“Plaintiff impermissibly

makes several new allegations in her brief, so the Court will not consider

them.”).

4 The court also dismisses with prejudice plaintiffs’ eighth and ninth

causes of action against defendant Emanuel in his individual capacity. (See

Pl. Mem. at 12 (stipulating to dismissal of Title VII causes of action

against individual defendant Emanuel).) It is well-settled in this Circuit

that generally, “‘individuals are not subject to liability under Title VII.’”

Patterson v. Cty. of Oneida, New York, 375 F.3d 206, 221 (2d Cir. 2004)

(citing Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000)); see also

Arculeo v. On-Site Sales & Marketing, LLC, 425 F.3d 193, 196 n.2 (2d Cir.

2005) (noting that “Title VII, while imposing liability on employers, does

not impose liability on the supervisory personnel of employers”).

requisite right-to-sue letter from the U.S. Equal Employment

Opportunity Commission (“EEOC”) before filing the instant

federal suit. (Def. Mem. at 12-13.) The court concludes that

for the purpose of deciding defendants’ partial motion to

dismiss, plaintiffs’ procedural defect is cured because

plaintiffs attached the right-to-sue letter in opposition to

defendants’ motion. (See ECF No. 35 Blackburn Declaration, Ex.

1 (Notice of Right to Sue from EEOC); ECF No. 34, Defendant’s

Reply Memorandum in Response to Plaintiff’s Memorandum in

Opposition, at 8 n.7 (acknowledging that the court may cure

plaintiffs’ procedural defect now that plaintiffs provided a

right-to-sue letter).) Nonetheless, even if the court deemed

the procedural defect cured, the court concludes that

defendants’ partial motion to dismiss plaintiffs’ Equal Pay and

discrimination claims must be granted in its entirety for the

reasons set forth above.

III. Plaintiffs’ Request for Leave to Amend the SAC

Finally, plaintiffs request leave to amend the SAC in

the event that this court concludes that the allegations in the

SAC are insufficient to state a claim under the Equal Pay Act

and Title VII. (Pl. Mem. at 12-13.) District courts “ha[ve]

broad discretion in determining whether to grant leave to

amend,” Gurary v. Winehouse, 235 F.3d 793, 801 (2d Cir. 2000),

and “leave to amend should be freely granted when ‘justice so

requires.’” Pangburn v. Culbertson, 200 F.3d 65, 70 (2d Cir.

1999) (quoting Fed. R. Civ. P. 15(a)). “This permissive

standard is consistent with [the Second Circuit's] strong

preference for resolving disputes on the merits.” Williams v.

Citigroup Inc., 659 F.3d 208, 212–13 (2d Cir. 2011) (citation

omitted). “[T]he court should not dismiss without granting

leave to amend at least once when a liberal reading of the

complaint gives any indication that a valid claim might be

stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

But leave should be denied if repleading would be “futile.” Id.

Here, plaintiffs have filed three separate complaints.

(See ECF Nos. 1 (Complaint), 21 (First Amended Complaint), 25

(Second Amended Complaint).) Further, this court’s January 28,

2020 Minute Entry advised the plaintiffs that their Equal Pay

Act claim “may be lacking in factual allegations regarding

plaintiffs, their comparators, and the respective terms and

conditions of their employment.” (ECF Entry 1/28/2020.)

Despite the court’s advisement, plaintiffs’ SAC failed to remedy

the pleading defects and, therefore, fails to state an Equal Pay

Act claim for the reasons discussed above. In addition,

plaintiffs’ Title VII claims for national origin and race

discrimination also fail to state a plausible claim for relief,

as discussed above. Nonetheless, given the “permissive

standard” permitting leave to amend under Rule 15, Williams, 659

F.3d at 212–13, the court concludes that plaintiffs shall be

granted limited leave to amend the SAC as follows.

First, as to plaintiffs’ Equal Pay Act claim, the

court concludes that the factual allegations in the SAC are

insufficient to state a plausible claim for relief because

plaintiffs failed to set forth facts alleging that plaintiffs

held the same job duties and responsibilities as the comparators

and in the same conditions of employment. See supra Discussion

Section I (citing authority describing pleading requirements for

Equal Pay Act claims). Thus, plaintiffs may amend the SAC to

assert an Equal Pay Act claim against defendants by providing

factual allegations that would permit a “reasonable inference”

that the relevant employees’ “job content was substantially

equal.” See Port Auth. of New York & New Jersey, 768 F.3d at

256. Such relevant allegations may include facts describing

plaintiffs’ and the comparator’s job duties, responsibilities,

the skill and effort required to execute the supervisory nursing

duties, and the conditions under which the work was performed.

See supra Discussion Section I; see also Port Auth. of New York

& New Jersey, 768 F.3d at 256 (“At the pleading stage, then, a

plausible EPA claim must include ‘sufficient factual matter,

accepted as true’ to permit ‘the reasonable inference’ that the

relevant employees’ job content was ‘substantially equal.’”).

Second, the SAC clearly seeks to allege that

defendants violated plaintiffs’ rights protected by Title VII by

engaging in wage discrimination based on national origin and

race. It appears to the court that such claims may be viable,

if plaintiffs amend the SAC to allege that plaintiffs belong to

a protected class. Further, plaintiffs Title VII claims may be

viable if plaintiffs allege facts supporting an inference of

discrimination, i.e., a causal connection between plaintiffs’

national origin and race and defendants’ alleged wage

discrimination.

The court therefore grants plaintiffs leave to amend

the SAC, but only to a limited extent. Plaintiffs may amend the

SAC to assert claims against defendants (except for defendant

Emanual, for the reasons set forth above) under Title VII by

asserting factual allegations giving rise to an inference that

plaintiffs’ national origin and race were “motivating factor[s]”

in the employment decision (here, the alleged wage

discrimination). See Vega, 801 F.3d at 86. Accordingly,

plaintiffs may set forth sufficient facts supporting their

assertion that: (1) defendants’ alleged wage discrimination

between Haitian and non-Haitian employees was motivated by

plaintiffs’ national origin, and (2) the same wage

discrimination between Caucasian and non-Caucasian employees was

also motivated by plaintiffs’ race.

For the reasons stated above, plaintiffs are denied

leave to amend their national origin claim based on defendants’

alleged discrimination against the Creole or French language. A

national origin claim premised on treatment of “linguistic

characteristics” at the workplace is likely insufficient to

state a claim for national origin discrimination under Title VII

without further allegations supporting an inference of

discrimination on the basis of national origin. See supra

Discussion Section II (discussing authority addressing language-

based preferences as relevant to Title VII claims). Thus, a

national origin claim solely based on the employer’s language

preferences would be futile, and any further effort to replead a

claim under that legal theory, without additional factual

allegations supporting an inference of discrimination, would be

dismissed. See Cuoco, 222 F.3d at 112 (concluding that a futile

request to re-plead should be denied). Finally, plaintiffs are

denied leave to amend the SAC to state Title VII claims against

defendant Emanuel for the reasons stated above.

In granting plaintiffs leave to amend the SAC, the

court also concludes that defendants are not prejudiced by such

amendment because the instant motion represents defendants’

first motion to dismiss. Accordingly, should plaintiffs fail to

remedy the pleading defects in the SAC as identified in this

Memorandum and Order, defendants may seek leave to move again to

dismiss the third amended complaint.

CONCLUSION

For the reasons set forth above, defendants’ partial

motion to dismiss pursuant to Fed. R. Civ. Pro. 12(b)(6) is

granted in its entirety. Plaintiffs’ seventh, eighth, and ninth

causes of action in the SAC are dismissed without prejudice.

Plaintiffs’ eighth and ninth causes of action against defendant

Yossi Emanuel are dismissed with prejudice. Plaintiffs may

amend the SAC to allege sufficient facts to state valid claims

under the Equal Pay Act and Title VII in accordance with this

Memorandum and Order. Plaintiffs are granted leave to file a

third amended complaint within thirty (30) days of this

Memorandum and Order.

SO ORDERED.

/s/

KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York

Dated: December 9, 2020

Brooklyn, New York