# Durand v. Excelsior Care Group LLC

> District Court, E.D. New York · December 9, 2020

URL: https://www.frixlaw.com/law-library/cases/10305354

## Case

- **Court:** District Court, E.D. New York
- **Decided:** December 9, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10305354

## How later opinions describe it (automated extraction)

- stating that “[l]anguage, by itself, does not identify members of a suspect class”
- 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.”
- noting that Title VII “does not protect against discrimination on the basis of language”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
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.
----------------------------------X
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10305354. Public record. Not legal advice.