Puchalski v. FM Construction, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ARTUR PUCHALSKI and TERESA GADOMSKA, as

Executrix of the Estate of JAN GADOMSKI,

Plaintiffs,

OPINION & ORDER

-against- 18-CV-1596-SJB

FM CONSTRUCTION, INC., MARIC MECHANICAL,

INC., GERALD MARIC, LINDA ZAHN, and FRANK

MARIC,

Defendants.

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BULSARA, United States Magistrate Judge:

Plaintiffs Arthur Puchalski (“Puchalski”) and Jan Gadomski (“Gadomski”)

brought this action against Defendants FM Construction, Inc. (“FM Construction”),

Maric Mechanical, Inc. (“Maric Mechanical”), Gerald Maric, Linda Zahn, and Frank

Maric (collectively, “Defendants”) alleging breach of contract; breach of a collective

bargaining agreement in violation of section 301 of the Labor Management Relations

Act of 1947 (“LMRA”), 29 U.S.C. § 185; violations of the Fair Labor Standards Act of

1938 (“FLSA”), 29 U.S.C. §§ 203, et seq., the New York Labor Law (“NYLL”), and

associated wage orders codified at 12 N.Y.C.R.R. parts 137–43; and national origin

discrimination and constructive discharge in violation of Title VII of the Civil Rights Act

of 1964 (“Title VII”), the New York State Human Rights Law (“NYSHRL”), and the New

York City Human Rights Law (“NYCHRL”). (Am. Compl. dated Aug. 23, 2018 (“Am.

Compl.”), Dkt. No. 25 ¶¶ 2–5, 99–158).

On January 16, 2020, Defendants filed a motion to dismiss. (Defs.’ Mot. to

Dismiss Pls.’ Am. Compl. dated Jan. 16, 2020 (“Defs.’ Mot.”), Dkt. No. 68). On February

11, 2020, Teresa Gadomska (“Gadomska” or “Plaintiff”), as the executrix of the estate of

Gadomski, sought leave to file a Second Amended Complaint. (Pl.’s Mot. to Amend the

Compl. dated Feb. 7, 2020 (“Pl.’s Mot.”), Dkt. No. 75).

For the reasons stated below, Defendants’ motion to dismiss is granted in part

and denied in part. Plaintiff’s motion for leave to file a Second Amended Complaint is

granted in part and denied in part.

FACTUAL AND PROCEDURAL HISTORY

The facts, which the Court accepts as true for the purposes of considering a Rule

12(b)(6) motion to dismiss, see Laurant v. City of New York, No. 17-CV-5740, 2019 WL

1364230, at *1 & n.1 (E.D.N.Y. Mar. 26, 2019), appeal dismissed (June 17, 2019), are set

forth in the Amended Complaint as follows.

Defendants FM Construction and Maric Mechanical are both construction

businesses incorporated in New York with their principal place of business at 19-53 46th

Street, Astoria, New York. (Am. Compl. ¶¶ 10–11, 24, 29). The remaining defendants

and Puchalski are New York residents. (Id. ¶¶ 8, 12–14). Gadomski was a New York

resident, (id. ¶ 9), and Gadomska is a New York resident, (Second Am. Compl. ¶ 8). FM

Construction and Maric Mechanical are jointly operated and owned by Gerald Maric,

Linda Zahn, and Frank Maric. (Am. Compl. ¶¶ 15, 82–86).

FM Construction and Maric Mechanical employed Puchalski and Gadomski from

around 2012 through 2017, (id. ¶¶ 23, 30, 33). They “performed labor and services as

steam fitters on New York City Schools and New York City Housing Authority

buildings.” (Id. ¶ 23). As steam fitters they “assemble[d], install[ed] and maintain[ed]

steam and gas pipe systems, replace[d] boilers and water heaters, paint[ed], shovel[ed]

dirt, [and] assembled wood pieces in trenches.” (Id. ¶ 40). They “regularly worked in

excess of 40 hours per week but were only paid at [a] lower, misclassified laborer rate

for every hour they worked.” (Id. ¶ 28). Puchalski and Gadomski are Polish, while

Gerald Maric, Linda Zahn, and Frank Maric are Croatian. (Id. ¶ 25).

Puchalski and Gadomski were hired by a project supervisor, first name “Slobo,”

and entered into oral contracts with him, in which they agreed that they would be paid

steamfitter wages and benefits. (Id. ¶¶ 31, 34). However, they and “other non-Croat

Slavs were intentionally misclassified as laborers and required to accept the

misclassified lower rate for the work they provided to Defendants as steam fitters.” (Id.

¶ 35). As a result of this misclassification, they were paid lower wages. (See id.). And

furthermore, due to alleged discrimination, Puchalski and Gadomski were forced to join

other unions instead of the steamfitters union—the Enterprise Association of Steam,

Hot Water, Hydraulic, Sprinkler, Pneumatic Tube, Ice Machine and General Pipe Fitters

of New York and Vicinity, Local Union No. 638 (“Local 638”), (Enterprise Association-

Local Union 638 Working Agreement dated Aug. 28, 2017 (“CBA”), attached as Ex. F. to

Defs.’ Mot., Dkt. No. 68),—which only individuals of Croatian dissent were permitted to

join. (Am. Compl. ¶¶ 36–37, 55, 63). Puchalski and Gadomski asked to join Local 638

but were told they “would lose their jobs if they persisted in their requests.” (Id. ¶¶ 63–

65, 71). They believed it would be “futile” to lodge a complaint with Local 638 about

their misclassification. (Id. ¶ 68).

Puchalski and Gadomski commenced this action on March 14, 2018, (Compl.

dated Mar. 15, 2018 (“Compl.”), Dkt. No. 1), and amended their original Complaint on

August 23, 2018, (Am. Compl.). The Amended Complaint seeks relief for Defendants’

(1) breach of their oral employment contracts; (2) refusal to pay union wages in

violation of the collective bargaining agreement with Local 638 and of LMRA section

301; (3) failure to pay overtime wages, as required by FLSA; and (4) failure to pay

overtime wages under the NYLL and the wage orders promulgated thereunder. (Id.

¶¶ 98–116). Puchalski and Gadomski also allege claims of (5) national origin

discrimination in violation of Title VII; (6) national origin discrimination in violation of

the NYSHRL; (7) national origin discrimination in violation of the NYCHRL; (8)

constructive discharge in violation of Title VII; (9) constructive discharge in violation of

the NYSHRL; and (10) constructive discharge under the NYCHRL. (Id. ¶¶ 118–60).

Following the death of Gadomski on January 31, 2019, (Letters Testamentary

dated Apr. 19, 2019, attached to Letter of Appointment of Executor for Jan Gadomski’s

Estate dated July 22, 2019, Dkt. No. 53), the Court granted his estate’s motion to

substitute Gadomska, the executrix, as a plaintiff. (Order dated July 23, 2019; Mot. to

Substitute Party dated July 9, 2019, Dkt. No. 50). Puchalski and Defendants submitted

a joint motion for settlement on November 8, 2019, (Joint Mot. for Settlement Between

Pl. Artur Puchalski and All Defs. dated Nov. 8, 2019, Dkt. No. 61), which the Court

approved on November 25, 2019, (Order dated Nov. 25, 2019). The Court dismissed

Puchalski’s claims. (Stip. of Partial Dismissal with Prejudice dated Dec. 5, 2020

(“Puchalski Stip.”), Dkt. No. 64). Upon the Court’s instruction, the Defendants refiled

their Motion to Dismiss on January 16, 2020. (Defs.’ Mot.). On January 17, 2020,

Plaintiff and Defendants submitted a revised Rule 16 Discovery Plan, in which the

parties agreed the deadline to move to join new parties or amend the pleadings was

February 7, 2020. (Disc. Plan Worksheet dated Jan. 17, 2020, attached as Ex. A to

Letter to the Honorable Sanket J. Bulsara, Dkt. No. 72). On February 6, 2020, Plaintiff,

with consent of Defendants, requested an extension of this deadline to February 11,

2020, (Mot. for Extension of Time to Amend Pleadings dated Feb. 6, 2020, Dkt. No. 74),

which the Court granted, (Order dated Feb. 7, 2020). Thereafter, Plaintiff moved to file

a Second Amended Complaint on February 11, 2020, the deadline to which the parties

had agreed. (Pl.’s Mot.).

To the extent Defendants seek to dismiss claims asserted only by Puchalski, these

portions of Defendants’ motion to dismiss are moot in light of the settlement and

subsequent dismissal with respect to Puchalski. (Puchalski Stip.). Therefore, all that

remains for decision on Defendants’ motion to dismiss is whether the Amended

Complaint fails to state a claim with respect to the First, Second, Sixth and Seventh

Claims pursuant to Rule 12(b)(6) and whether the Second, Third, Fourth, Sixth, and

Seventh Claims can be maintained against Frank Maric.1

DISCUSSION

I. Defendants’ Motion to Dismiss

For a 12(b)(6) motion, the Court must accept the factual allegations set forth in a

complaint as true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56, (2007). Once the

Court construes the facts in the light most favorable to the plaintiff, to avoid dismissal,

there must be sufficient facts that allege a plausible claim. Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (“To survive a motion to dismiss [pursuant to Rule 12(b)(6)], a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” (quoting Twombly, 550 U.S. at 570)). “Threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements,

do not suffice.” Id. A complaint must contain more than “‘naked assertion[s]’ devoid of

‘further factual enhancement.’” Id. (alteration in original) (quoting Twombly, 550 U.S.

1 Defendants do not challenge the Third and Fourth Claims except as they pertain

to Frank Maric, and only Puchalski sought relief under the Fifth, Eighth, Ninth, and

Tenth Claims of the Amended Complaint.

at 557). In other words, a plausible claim contains “factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Id.; accord Fed. R. Civ. P. 8(a)(2). “Factual allegations must be enough to raise a right

to relief above the speculative level on the assumption that all the allegations in the

complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555 (footnote

omitted) (citation omitted). The determination of whether a plaintiff has alleged a

plausible claim is “a context-specific task that requires the reviewing court to draw on its

judicial experience and common sense.” Iqbal, 556 U.S. at 679.

When deciding a 12(b)(6) claim, a district court should not consider factual

allegations found in the parties’ briefing materials or attached affidavits. Friedl v. City

of New York, 210 F.3d 79, 83–84 (2d Cir. 2000) (“Thus, a district court errs when it

‘consider[s] affidavits and exhibits submitted by’ defendants, or relies on factual

allegations contained in legal briefs or memoranda in ruling on a 12(b)(6) motion to

dismiss.” (alteration in original) (citation omitted) (quoting Kopec v. Coughlin, 922 F.2d

152, 154 (2d Cir. 1991))). “In resolving a motion to dismiss, review is generally limited

to ‘the facts as asserted within the four corners of the complaint, the documents

attached to the complaint as exhibits, and any documents incorporated in the complaint

by reference.’” Santana v. Weill Cornell Med. Primary Care, No. 17-CV-7420, 2018 WL

4636988, at *3 (S.D.N.Y. Sept. 27, 2018) (quoting McCarthy v. Dun & Bradstreet Corp.,

482 F.3d 184, 191 (2d Cir. 2007)).

A. First Claim: Breach of Contract

Plaintiff’s first claim for breach of contract alleges FM Construction and Maric

Mechanical failed to pay Gadomski wages to which he was entitled under his

employment agreement. (Am. Compl. ¶ 103).2

Defendants argue that this contract claim must be dismissed because Plaintiff has

not sufficiently identified the oral contract allegedly breached. (Defs.’ Mem. of Law in

Supp. of Their Mot. to Dismiss Pls.’ Am. Compl. dated Sept. 24, 2018 (“Defs.’ Mem. in

Supp.”), attached to Defs.’ Mot., Dkt. No. 68 at 4–5). According to Defendants, Plaintiff

only offers “scant information” and no information about where the contract was

executed or who entered into the contract on behalf of Defendants. (Id. at 4). This

argument is without merit.

“Under New York law, ‘a plaintiff bringing a breach of contract claim must allege

(1) the existence of a contract, (2) performance by the party seeking recovery, (3) non-

performance by the other party, and (4) damages attributable to the breach.’” Naftali v.

N.Y. Deferred Exch. Corp., No. 15-CV-7152, 2017 WL 4325725, at *7 (E.D.N.Y. Aug. 15,

2017) (quoting Arroyo v. PHH Mortg. Corp., No. 13-CV-2335, 2014 WL 2048384, at *7

(E.D.N.Y. May 19, 2014)), report and recommendation adopted, 2017 WL 4286260

(Sept. 26, 2017). “A breach of contract claim will withstand a motion to dismiss only if

2 For their common law claims, the parties rely on New York law without

explaining their choice. As a result, and in the absence of any public policy to the

contrary, the Court applies New York law. Walter E. Heller & Co. v. Video Innovations,

Inc., 730 F.2d 50, 52 (2d Cir. 1984) (“[I]n the absence of a strong countervailing public

policy, the parties to litigation may consent by their conduct to the law to be applied.”);

e.g., Blodgett v. Siemens Indus., Inc., No. 13-CV-3194, 2018 WL 385477, at *5 (E.D.N.Y.

Jan. 11, 2018) (“Plaintiffs’ . . . citation solely to New York law in support of their . . .

claims in their prior submissions is deemed by this Court to constitute an implied

consent to use New York law, which settles the choice of law issue in favor of the

application of New York law.”)

plaintiff ‘allege[s] the essential terms of the parties’ purported contract in nonconclusory

language, including the specific provisions of the contract upon which liability is

predicated.’” Oberstein v. SunPower Corp., No. 07-CV-1155, 2010 WL 1705868, at *5

(E.D.N.Y. Apr. 28, 2010) (alteration in original) (quoting Sirohi v. Trs. of Columbia

Univ., 162 F.3d 1148, at *2 (2d Cir. 1998)); see also Goldblatt v. N.Y. Inst. of Tech., No.

18-CV-265, 2020 WL 5027150, at *7 (E.D.N.Y. Aug. 25, 2020) (same). “‘[B]efore the

power of law can be invoked to enforce a promise, it must be sufficiently certain and

specific so that what was promised can be ascertained.’ If an agreement is not

reasonably certain in its material terms, there can be no legally enforceable contract.”

Rosenbaum v. Premier Sydell, Ltd., 240 A.D.2d 556, 557 (2d Dep’t 1997) (alteration in

original) (quoting Joseph Martin, Jr., Delicatessen, Inc. v. Schumacher, 52 N.Y.2d 105,

109 (1981)). And unless barred by the statute of frauds, an oral contract is enforceable.

Advanced Marine Techs., Inc. v. Burnham Sec., Inc., 16 F. Supp. 2d 375, 380 (S.D.N.Y.

1998).

Plaintiff has sufficiently alleged the breach of contract claim. Plaintiff states that

around May 2012 a project supervisor named Slobo hired Gadomski as a steamfitter.

(Am. Compl. ¶ 34). Gadomski entered into an oral contract with Slobo: Gadomski

would work as a steamfitter and, in exchange, would be paid at the same rate as other

steamfitters. (Id.). Plaintiff contends that Gadomski performed under the contract by

performing steamfitter work. (Id. ¶¶ 41, 101). Defendants allegedly breached the

contract by failing to pay Gadomski steamfitter wages. (Id. ¶¶ 57, 70, 102–03). Finally,

Gadomski suffered damages because he was paid at a lower rate than for which he

contracted. (Id. ¶ 104). In other words, in addition to alleging the four elements of a

breach of contract claim, the Amended Complaint contains sufficient details about the

oral agreement: the place and time of its execution; by an employee authorized by

Defendants to enter into such contracts (not disputed by them); and containing the

material terms of the employment agreement, namely the work to be done

(steamfitting) and the wage rate. These details, though somewhat sparse, are

sufficiently precise to survive a motion to dismiss. See, e.g., Fort Prods., Inc v. Men’s

Med. Clinic, LLC, No. 15-CV-376, 2016 WL 797577, at *3 (S.D.N.Y. Feb. 23, 2016)

(“[T]he Amended Complaint is sufficient because it states that Defendant retained

Plaintiff for marketing and advertising services and that Defendant would pay the ‘fair

and reasonable value’ for such services.”). Although the contract claim is styled as one

alleging breach of “agreements,” the Court interprets the claim as a single claim alleging

breach of the May 2012 agreement with Slobo.

Defendants’ reliance on eCommission Solutions, LLC v. CTS Holdings, Inc., No.

15-CV-2671, 2017 WL 985881 (S.D.N.Y. Mar. 13, 2017), and James v. Countrywide

Financial Corp., 849 F. Supp. 2d 296 (E.D.N.Y. 2012), is misplaced. (Defs.’ Reply Mem.

of Law in Supp. of their Mot. to Dismiss Pls.’ Compl. dated Sept. 24, 2018 (“Defs.’ Reply

Mem.”), Dkt. No. 71 at 2–3). eCommission is inapposite because there the court

converted a motion to dismiss into a summary judgment motion, and therefore had no

occasion to determine whether the oral agreement could survive a pleading challenge,

2017 WL 985881, at *11 & n.3, and also evaluated the claim under Texas, not New York,

law, id. at *11–12. And in James, the court found that “plaintiff ha[d] not specifically

identified the contract (or contracts) at issue and ha[d] not specified the terms of the

agreement that defendant purportedly breached, other than to assert that these certain

contracts set forth the commissions and other elements of compensation to be paid to

Plaintiff.” 849 F. Supp. 2d at 322 (quotations omitted). Here, however, Plaintiff has

sufficiently identified the contract to survive a motion to dismiss, including by stating

the approximate date the contract was formed, the parties present, and the terms of the

contract. (Am. Compl. ¶ 34).

Therefore, Defendants’ motion to dismiss with respect to the First Claim is

denied.

B. Second Claim: Third-Party Beneficiary Claim for Union Wages

Plaintiff’s second claim is a third-party beneficiary claim for union wages under

the collective bargaining agreement between Local 638 and Maric Mechanical (“CBA”)

and is brought pursuant to LMRA section 301. (CBA; Am. Compl. ¶¶ 105–09).3

Defendants raise a series of arguments in an attempt to dismiss this claim—the claim for

union wages is actually a claim for prevailing wages and is barred under federal law;

Gadomski is not a third-party beneficiary under the CBA; and the claim is barred by the

statute of limitations—but none have merit, as explained below.

“Section 301 of the LMRA, among other things, ‘governs actions by an employee

against an employer for breach of a collective bargaining agreement.’” Tand v. Solomon

Schechter Day Sch. of Nassau Cnty., 324 F. Supp. 2d 379, 382 (E.D.N.Y. 2004) (quoting

Dougherty v. Am. Tel. & Tel. Co., 902 F.2d 201, 203 (2d. Cir.1990)). “Suits arising

under section 301 include ‘those seeking to vindicate uniquely personal rights of

employees such as wages, hours, overtime pay, and wrongful discharge.’” Id. (quoting

3 Because the Amended Complaint references the CBA and both parties rely on

the CBA in arguing the motion to dismiss, the Court can review it in analyzing whether

the second claim should be dismissed. See Trump v. Vance, 977 F.3d 198, 210 n.8 (2d

Cir. 2020) (per curiam) (“We may properly consider the full contents of [a New York

Times] article because it is incorporated by reference into the SAC. Although the SAC

does not cite the specific passage of the article noted above, the SAC nevertheless makes

‘a clear, definite and substantial reference to’ the article.” (quoting Stolarik v. New York

Times Co., 323 F. Supp. 3d 523, 537 (S.D.N.Y. 2018))).

Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 562 (1976)). And section 301 is the

proper vehicle under which to bring CBA-related wage claims. See DelCostello v. Int’l

Brotherhood of Teamsters, 462 U.S. 151, 163 (1983) (“It has long been established that

an individual employee may bring suit against his employer for breach of a collective

bargaining agreement” under section 301); Vera v. Saks & Co., 335 F.3d 109, 114 (2d

Cir. 2003) (per curiam) (“The Supreme Court has interpreted section ‘301 [of the

LMRA] as a congressional mandate to the federal courts to fashion a body of federal

common law to be used to address disputes arising out of labor contracts.’” (quoting

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 209 (1985))).

Relying on Grochowski v. Phoenix Construction, 318 F.3d 80 (2d Cir. 2003),

Defendants contend that Plaintiff’s claim is barred under federal law. Defendants

misapprehend Grochowski. Plaintiff’s claim is based on the LMRA and a CBA between

a union and an employer—not a federal construction contract between the employer and

a third party which contained representations about the wages to be paid, as was the

case in Grochowski. (Am. Compl. ¶¶ 7, 37–38, 48, 106–09; id. at 25, ¶ 2); Grochowski,

318 F.3d at 83–84. Where there is a federal construction contract, the Davis-Bacon Act

requires employees to be paid a prevailing wage; however, an employee may not sue for

non-payment of such wages, because the Davis-Bacon Act contains no private right of

action. Grochowski, 318 F.3d at 85–86 (“[T]he present contracts between the

defendants and the NYCHA were federally funded and, as such, are governed by the

prevailing wage requirements set forth in the [Davis-Bacon Act][.]”). Nor may an

employee sue for unpaid wages under state law—say for breach of contract—based on

employer’s failure to adhere to the federal contract terms. Id. at 86 (“[N]o private right

of action exists under the [Davis-Bacon Act], the plaintiffs[’] efforts to bring their claims

as state common-law claims are clearly an impermissible ‘end run’ around the [Act].”).

These principles have no application here. Plaintiff’s second claim is not based

on a construction contract, but on the CBA between Local 638 and Defendants. Nor is it

appropriate to analogize the “prevailing wages” at issue Grochowski to the “union

wages” sought here. The Davis-Bacon Act is not the LMRA, and the CBA claim is based

on an agreement with a union. Plaintiff’s union wage claim is a plain-vanilla LMRA

claim that is routinely brought to enforce wage provisions of a CBA. See, e.g., Fagundes

v. Lane, No. 12-CV-1634, 2014 WL 1276373, at *3 (E.D.N.Y. Mar. 27, 2014) (holding that

a claim for breach of CBA for failure to pay union wages is properly brought under the

LMRA).

Defendants then contend that Plaintiff is not an intended third-party beneficiary

of the CBA, (Defs.’ Mem. in Supp. at 8–11), because as a “non-member[] of Local 638”

Gadomski could not have been covered by the CBA, (id. at 8).

Plaintiff qualifies as an intended beneficiary of the CBA. “The federal common

law and New York law both look to the Restatement (Second) of Contracts to determine

whether a party is a third-party beneficiary of a contract.” Silverman v. Miranda, 213 F.

Supp. 3d 519, 524 (S.D.N.Y. 2016), aff’d sub nom. Silverman v. Teamster Loc. 210

Affiliated Health & Ins. Fund, 725 F. App’x 79 (2d Cir. 2018). “According to federal

common law, a third party must be an intended, rather than an incidental, beneficiary in

order to enforce a contract.” Kinek v. Gulf & W., Inc., 720 F. Supp. 275, 280 (S.D.N.Y.

1989), aff’d as amended on denial of reh’g sub nom. Kinek v. Paramount Commc’ns,

Inc., 22 F.3d 503 (2d Cir. 1994). “The test, which is derived from the Restatement, is

whether ‘[1] recognition of a right to performance in the beneficiary is appropriate to

effectuate the intention of the parties and . . . [2 whether] [sic] the circumstances

indicate that the promisee intends to give the beneficiary the benefit of the promised

performance.’” Id. (alterations in original) (quoting Davis v. United Air Lines, Inc., 575

F. Supp. 677, 680 (E.D.N.Y. 1983)).

Here, the CBA applies to both union-member and non-union-member employees

like Gadomski. It covers and protects employees based on their occupation, not by

whether they are members of the union. (See CBA at 9 r. XIV (“The duties of a

steamfitter shall be such as are described under the heading ‘Duties of a Steamfitter’ in

the Agreement[.]”), 16–17 (“Duties of a Steamfitter”)). The CBA’s wage provisions

outline the wage rates for “steamfitters” generally, suggesting “steamfitter” is inclusive

of union and non-union employees. (See, e.g., id. at 4, r. II, § I (“Regular time for a

steamfitter . . . shall be paid for at the following rates . . . .”)). Thus, employees working

as steamfitters—like Gadomski—are covered by the CBA, regardless of union status. It

is appropriate, therefore, to conclude that Gadomski was an intended third-party

beneficiary of this CBA and can bring a claim under the LMRA. E.g., cf. Hazen v. W.

Union Tel. Co., 518 F.2d 766, 769–70 (6th Cir. 1975) (“[A] retired person who is no

longer a member of a bargaining unit may either sue at common law under established

contract principles or pursue a federal remedy under Section 301 of the [LMRA] for

breach of contract.”).

Defendants’ final argument is that the Second Claim is time-barred. They

contend the Second Claim is a “hybrid” section 301 claim and thus is subject to a six-

month statute of limitations that expired before the Complaint was filed. (Defs.’ Mem.

in Supp. at 12–13). This argument is also without merit.

“There are two types of [section] 301 claims. A pure [section] 301 claim is one

that simply alleges that the employer breached the CBA.” Allen v. United Parcel Serv.,

Inc., 988 F. Supp. 2d 293, 298 (E.D.N.Y. 2013) (citing UAW v. Hoosier Cardinal Corp.,

383 U.S. 696, 705 n.7 (1966)). “Before bringing a pure [section] 301 claim, a party must

exhaust the grievance process required by the CBA.” Id. On the other hand, “[a] hybrid

[section] 301 claim pairs a claim that the employer breached the CBA with a claim that

the union’s breach of its duty to fairly represent the employee prevented the employee

from exhausting the grievance process.” Id. “The nature of the claim, and not who is

sued, determines whether a [section] 301 claim is considered pure or hybrid.” Id.

“Contrary to [Defendants’] contention, the current case is most properly

characterized as a pure section 301 action[.]” Tand, 324 F. Supp. 2d at 383. “Although

hybrid claims may be found in cases where the union is not a named defendant but

where the pleadings allege wrongdoing on the union’s behalf, here, the complaint does

not indicate that the union breached its duty of fair representation to” Gadomski. Id.

(citation omitted). Indeed, the Amended Complaint states that it was “futile” to involve

Local 638’s grievance process; it also does not allege wrongdoing on behalf of Local 638.

(Am. Compl. ¶ 68; see also generally id.). The Second Claim is most properly

characterized as a pure section 301 claim, and, as a result, a six-year statute of

limitations applies. Tand, 324 F. Supp. 2d at 383–84. Gadomski was hired around May

2012, and the action commenced in March 2018. (Am. Compl. ¶ 34; Compl.).

Therefore, even if the statute of limitations began to run the moment Gadomski was

hired, time would not have run by the time the original Complaint was filed.4 The

Second Claim is not time-barred.5

For the foregoing reasons, the motion to dismiss the Second Claim is denied.

C. Sixth and Seventh Claims: Discrimination Based on National Origin

Plaintiff’s Sixth and Seventh Claims are for discrimination based on national

origin in violation of the NYSHRL and NYCHRL, respectively, based on Gadomski’s

exclusion from Local 638 membership. Defendants contend that these claims must be

dismissed because Defendants did not prevent Gadomski from joining Local 638, and

he was free to join at any time. (Defs.’ Mem. in Supp. at 14). The basis for these

contentions is the affidavits of Gerald Maric and Linda Zahn.6 (See id.). On a motion to

dismiss, the Court cannot consider such information. Friedl, 210 F.3d at 83 (“[A]

district court errs when it consider[s] affidavits and exhibits submitted by defendants

4 Defendants also contend that “Plaintiffs’ claims still would be barred by virtue

of the CBA vesting in Defendants the discretion to determine the scope of their

steamfitter work.” (Defs.’ Mem. in Supp. at 11). The argument has no merit. That the

CBA allows Defendants to determine the scope of steamfitter work does not nullify other

rights given to employees, such as the right to be paid steamfitter wages.

5 Pure section 301 claims require exhaustion of a CBA’s administrative remedies

or grievance process prior to filing. Allen, 988 F. Supp. 2d at 298. Neither party

considers whether the CBA has a grievance process or discusses whether Gadomski

exhausted such a process.

6 Defendants do not argue—and Plaintiff does not explain—how it can be a

violation of either of these statutes for an employer to interfere with an employee’s

union membership, as opposed to employment with the employer itself, particularly

when there is no allegation that union membership is controlled by the employer. Such

an explanation is also lacking with respect to the allegations against the individual

defendants (infra), but the Court does make or address arguments not made by

Defendants.

[on a motion to dismiss].” (second alteration in original) (quotation omitted)).

Therefore, the motion to dismiss these claims is denied.7

D. Claims Against Defendant Frank Maric

Plaintiff brings five claims against all Defendants, including Frank Maric

(“Maric”): the Second, Third, Fourth, Sixth, and Seventh Claims. (Am. Compl. ¶¶ 106–

18, 128–41). Defendants argue that these claims should be dismissed as to Maric.8

(Defs.’ Mem. in Supp. at 19–22). The motion is granted in part and denied in part.

1. The Third and Fourth Claims: FLSA and NYLL

“[I]ndividual liability under the FLSA is premised upon personal responsibility

for making decisions about the conduct of the business that contributed to the violations

of the Act.” Mendoza v. Little Luke, Inc., No. 14-CV-3416, 2015 WL 998215, at *7

(E.D.N.Y. Mar. 6, 2015) (quoting Schear v. Food Scope Am., Inc., 297 F.R.D. 114, 134

(S.D.N.Y. 2014)). To hold an individual liable under FLSA, that person must be an

“employer.” Id.; Bravo v. Established Burger One LLC, No. 12-CV-9044, 2013 WL

5549495, at *5 (S.D.N.Y. Oct. 8, 2013). The FLSA defines an “employer” as “any person

acting directly or indirectly in the interest of an employer in relation to an employee.”

29 U.S.C. § 203(d); e.g., Gil v. Frantzis, No. 17-CV-1520, 2018 WL 4522094, at *5

(E.D.N.Y. Aug. 17, 2018), report and recommendation adopted in relevant part, 2018

7 Defendants do not argue—and thereby do not contest—either that Plaintiff, as

Gadomski’s wife, cannot prosecute claims on his behalf, or that Gadomski’s claims do

not survive his death. Nor does the Court address whether the section 301 wage claims

preempt the NYLL claims, another issue ignored by the parties.

8 The Court disregards Defendants’ contentions that Maric was not involved in

the operational control of the company since 2012, because they are based on factual

assertions not contained in the Amended Complaint. (See Defs.’ Mem. in Supp. at 19–

20).

WL 4299987 (Sept. 10, 2018). NYLL uses the same definition. Bravo, 2013 WL

5549495, at *5.

“The ‘overarching concern’ in determining whether an entity is an ‘employer’ is

whether the entity ‘possessed the power to control the workers in question, with an eye

to the economic reality presented by the facts of each case.’” Id. at *6 (quoting Lopez v.

Acme Am. Env’t Co., No. 12-CV-511, 2012 WL 6062501, at *3 (S.D.N.Y. Dec. 6, 2012)).

Under the “economic reality test,” a court considers, inter alia, “whether the alleged

employer (1) had the power to hire and fire the employees, (2) supervised and controlled

employee work schedules or conditions of employment, (3) determined the rate and

method of payment, and (4) maintained employment records.” Herman v. RSR Sec.

Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999) (quoting Carter v. Duchess Cmty. Coll., 735

F.2d 8, 12 (2d Cir. 1984)). “No one of the four factors standing alone is dispositive.

Instead, the ‘economic reality’ test encompasses the totality of circumstances[.]” Id.

(citation omitted); see also Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 422–23 (2d

Cir. 2016) (affirming Herman as test for individual liability under FLSA).

But a party cannot simply parrot the elements of the economic reality test to

establish that an individual is an “employer” under FLSA. Ayala v. Looks Great Servs.,

Inc., No. 14-CV-6035, 2016 WL 3541548, at *7 (E.D.N.Y. June 23, 2016) (“[T]he mere

recitation that an individual defendant satisfies the elements of the economic reality

test, without pleading any factual allegations supporting that claim, is similar to a legal

conclusion that does not ‘raise a right to relief above the speculative level.’ . . . [T]he

Plaintiff must plead facts which make it plausible to infer that the individual defendant

had authority to take actions that satisfy some of the factors set forth in the economic

reality test.” (quoting Twombly, 550 U.S. at 555)).

That is all Plaintiff has done here with respect to Maric. The Amended Complaint

only alleges Maric “had operational control of” FM Construction and Maric Mechanical,

“had ultimate power to hire and fire employees, including managers and [project]

supervisors,” supervised project sites, and was an “ultimate boss[].” (Am. Compl.

¶¶ 90–91). This mimicry of the elements of the economic reality test, devoid of any

other facts, is not sufficient to survive dismissal. These allegations contain no details

about Maric’s ability to manage conditions of employment or work schedules or his

ability to hire or fire employees, including for example, occasions on which he did so.

Though such allegations are not required in every case, it would assist in inferring that

Maric was Gadomski’s employer if Plaintiff alleged that Maric hired or supervised

Gadomski himself. But that is absent here, and the only alleged interaction between

Gadomski and Maric is that Maric misled Gadomski about union membership. (Id.

¶ 38). The other references to Maric—that he prevented Gadomski from joining Local

638, (id.), and that he learned that Maric had “connections” at Local 638, (id. ¶ 66)—

while perhaps pertinent to a discrimination claim (infra) are conclusory and add little, if

anything, to establish that Maric was Gadomski’s employer.

Therefore, the Third and Fourth Claims are dismissed as to Frank Maric. See,

e.g., Ayala, 2016 WL 3541548, at *7–8; Tracy v. NVR, Inc., 667 F. Supp. 2d 244, 247

(W.D.N.Y. 2009).

2. The Second Claim: LMRA Section 301

“Courts have . . . emphasized that section 301 litigants and defendants must be

party to the contract in question.” DeRay v. Larson, 283 F. Supp. 2d 706, 711 (D. Conn.

2003) (citing Abrams v. Carrier Corp., 434 F.2d 1234, 1248–50 (2d Cir. 1970)). Maric

is not a party to the CBA. (See CBA at 1). Plaintiff’s LMRA claim against him, therefore,

must be dismissed. See, e.g., DeRay, 283 F. Supp. 2d at 711.9

3. The Sixth and Seventh Claims: NYSHRL and NYCHRL

Plaintiff has sufficiently alleged discrimination by Maric under the NYSHRL and

NYCHRL.

Individual liability under the NYSHRL also turns on whether the person is a

“employer;” however, the test is different from that under FLSA and NYLL. “A

supervisor is an ‘employer’ for purposes of establishing liability under the NYSHRL if

that supervisor ‘actually participates in the conduct giving rise to [the] discrimination.’”

Gorman v. Covidien, LLC, 146 F. Supp. 3d 509, 522 (S.D.N.Y. 2015) (alteration in

original) (quoting Feingold v. New York, 366 F.3d 138, 157 (2d Cir. 2004)). An

individual may be also considered an employer under the NYSHRL if they have “an

ownership interest” in the employer. Id. at 521–22. Separately, “[t]he NYSHRL allows

for individual liability where a defendant aided and abetted the unlawful discriminatory

acts of others.” Rodriguez v. Nassau County, No. 16-CV-2648, 2019 WL 4674766, at

*12 (E.D.N.Y. Sept. 25, 2019), aff’d, 2020 WL 5948904 (2d Cir. Oct. 8, 2020).

9 Even if Maric were a signatory, that alone would not be sufficient to hold him

personally liable for the CBA’s obligations. “When determining whether an individual

intended to be held personally liable for unpaid CBA contributions owed pursuant to

ERISA obligations, the court looks to principles of state law.” Jacobson v. Citi-Wide

Elec. Corp., No. 03-CV-263, 2008 WL 4491374, at *2 (E.D.N.Y. Sept. 30, 2008)

(adopting report and recommendation in part) (citing Lerner v. Amalgamated Clothing

& Textile Workers Union, 938 F.2d 2, 5 (2d Cir. 1991)). And “[u]nder New York law, an

agent who signs an agreement on behalf of a disclosed principal will not be individually

bound to the terms of the agreement ‘unless there is clear and explicit evidence of the

agent’s intention to substitute or superadd his personal liability for, or to, that of his

principal.’” Finkel v. Detore Elec. Constr. Co., No. 11-CV-0814, 2012 WL 1077796, at *4

(E.D.N.Y. Mar. 6, 2012) (quoting Lerner, 938 F.2d at 5), report and recommendation

adopted, 2012 WL 1078470 (Mar. 30, 2012). There is no allegation or basis to infer that

Maric intended to be personally liable.

“The NYCHRL provides a broader basis for direct individual liability than the

NYSHRL.” Malena v. Victoria’s Secret Direct, LLC, 886 F. Supp. 2d 349, 366 (S.D.N.Y.

2012). It is unlawful

[f]or an employer or an employee or agent thereof, because of the actual or

perceived age, race, creed, color, national origin, gender, disability, marital

status, partnership status, caregiver status, sexual and reproductive health

decisions, sexual orientation, uniformed service or immigration or

citizenship status of any person . . . to discharge from employment such

person[] or [t]o discriminate against such person in compensation or in

terms, conditions or privileges of employment.

8 N.Y.C.R.R. § 8-107(1)(a). And “the NYCHRL provides for individual liability of an

employee ‘regardless of ownership or decisionmaking power.’” Malena, 886 F. Supp. 2d

at 366 (quoting Banks v. Corr. Servs. Corp., 475 F. Supp. 2d 189, 200 (E.D.N.Y. 2007)

(“Section 8-107(1)(a) thus provides for the individual liability of employees regardless of

ownership or decision-making power.”)).

Plaintiff has adequately stated both a NYSHRL and NYCHRL claim against

Maric. The Complaint alleges that Maric himself engaged in discriminatory conduct

against Gadomski, by preventing his entry into Local 638, which is sufficient to state a

NYCHRL claim. (See Am. Compl. ¶ 38). And he is an owner of an entity that has

engaged in discrimination, (id. at ¶¶ 6, 15, 88), which is sufficient to state a NYSHRL

claim.

Therefore, the motion to dismiss the Sixth and Seventh Claims as to Frank Maric

is denied.

II. Plaintiff’s Motion to Amend the Complaint

Plaintiff seeks to file a Second Amended Complaint pursuant to Federal Rules of

Civil Procedure 15 and 21 to add Edward Puchalski as a new plaintiff and remove Artur

Puchalski. (Pl.’s Mot.). In the proposed Second Amended Complaint, Plaintiff and new

party Edward Puchalski assert claims for unpaid wages, unpaid overtime wages,

liquidated damages, and attorney’s fees and costs under FLSA, NYLL and wage orders

codified at 12 N.Y.C.R.R. §§ 137–43, and the common law of the State of New York;

national origin discrimination and constructive discharge in violation of NYSHRL and

NYCHRL; and failure to pay union wages pursuant to LMRA section 301. (Decl. of

Robert Wisniewski in Supp. of Pls.’ Mot. for Leave to Amend the Compl. dated Feb. 7,

2020 (“Wisniewski Decl.”), Dkt. No. 75-1 ¶¶ 3(i)–(iii)). Edward Puchalski asserts claims

for national origin discrimination and constructive discharge in violation of Title VII.

(Id. at ¶ 3(iv)). And he seeks to relate the proposed Second Amended Complaint back to

the date of filing of the original Complaint under Rule 15(c). (Pl.’s Mot.).

A. Leave to Amend the Complaint

Rule 15(a)(2) applies to Plaintiff’s motion because it is a second amendment.

“Rule 15(a)[(2)] . . . provides that in cases where a party cannot amend as a matter of

course, ‘a party may amend its pleading only with the opposing party’s written consent

or the court’s leave.’” CSX Transp., Inc. v. Emjay Env’t Recycling, Ltd., No. 12-CV-

1865, 2013 WL 12329546, at *2 (E.D.N.Y. Sept. 18, 2013) (quoting Fed. R. Civ. P.

15(a)(2)). Such leave shall be freely granted. Id.10

Federal Rule of Civil Procedure 16 also bears upon whether the Court should

grant leave to amend. Rule 16 requires the Court to issue a scheduling order in the case,

which “must limit the time to join other parties, amend the pleadings, complete

10 Because the motion adds new parties, it is also “governed by Rule 21, which

provides that ‘the court may at any time, on just terms, add or drop a party,’ . . . .

However, ‘the same standard of liberality applies under either Rule.’” Duling v.

Gristede’s Operating Corp., 265 F.R.D. 91, 96–97 (S.D.N.Y. 2010) (first quoting Fed. R.

Civ. P. 21; next quoting FTD Corp. v. Banker’s Tr. Co., 954 F. Supp. 106, 109 (S.D.N.Y.

1997)).

discovery, and file motions.” Fed. R. Civ. P. 16(b)(3)(A). “By limiting the time for

amendments, the rule is designed to offer a measure of certainty in pretrial proceedings,

ensuring that ‘at some point both the parties and the pleadings will be fixed.’” Parker v.

Columbia Pictures Indus., 204 F.3d 326, 339–40 (2d Cir. 2000) (quoting Fed. R. Civ. P.

16 advisory committee’s note to 1983 amendment). While Rule 16 sets the schedule for

amended pleadings to be filed, Rule 15 provides that leave to amend be “freely give[n].”

Fed. R. Civ. P. 15(a)(2). That is,

[i]n the absence of any apparent or declared reason—such as undue delay,

bad faith or dilatory motive on the part of the movant, repeated failure to

cure deficiencies by amendments previously allowed, undue prejudice to

the opposing party by virtue of allowance of the amendment, futility of

amendment, etc.—the leave sought should, as the rules require, be “freely

given.”

Foman v. Davis, 371 U.S. 178, 182 (1962); accord Burch v. Pioneer Credit Recovery,

Inc., 551 F.3d 122, 126 (2d Cir. 2008) (per curiam). “Delay alone, in the absence of bad

faith or prejudice, is not a sufficient reason for denying a motion to amend.” Duling,

265 F.R.D. at 97.

Defendants contend that leave to file should not be given because of undue delay,

prejudice to them, and the futility of the claims of Edward Puchalski. (See Defs.’ Mem.

of Law in Opp’n to Pls.’ Mot. to File and Serve a Second Am. Compl. and for Relation

Back of the Proposed Second Am Compl. dated Feb. 24, 2020 (“Defs.’ Mem. in Opp’n”),

Dkt. No. 77). The Court addresses Defendants’ arguments in turn.

1. Undue Delay

Where, as here, a scheduling order governs amendments to the complaint,

the Second Circuit has held that the lenient standard under Rule 15(a) or

Rule 21 must be balanced against the requirement under Rule 16(b) that the

Court’s scheduling order shall not be modified except upon a showing of

good cause.

Mason Tenders Dist. Council v. Phase Constr. Servs., Inc., 318 F.R.D. 28, 36 (S.D.N.Y.

2016) (citing Holmes v. Grubman, 568 F.3d 329, 334–35 (2d Cir. 2009)); see also Fed.

R. Civ. P. 16(b). In other words, “the Rule 16(b) standard controls any decisions to alter

a scheduling order for purposes of making pleading amendments and it must be

satisfied before determining whether an amendment should be permitted under Rule

15.” 6A Charles Alan Wright & Arthur R. Miller et al., Federal Practice & Procedure

§ 1522.2 (3d ed. 2020). That is, even if the Rule 16(b) deadline to file a motion to amend

has passed, courts may still grant the motion upon good cause shown.

Defendants contend that “Plaintiffs originally brought this action . . . nearly two

years ago, and have unduly delayed in bringing this proposed amendment, resulting in

prejudice to Defendants.” (Defs.’ Mem. in Opp’n at 5). They further contend that

Edward Puchalski could have been a party of the original Complaint and that Plaintiff

fails to explain the delay in adding him to the case. (Id. at 6). Despite this passage of

time, the deadline to file a motion to amend had not passed when the motion was filed.

After months of protracted settlement negotiations, the parties all agreed that the

deadline to amend was February 11, 2020. (Mot. for Extension of Time to Amend

Pleadings dated Feb. 6, 2020, Dkt. No. 74). Plaintiff met that deadline by filing the

motion on February 11. (See generally Pl.’s Mem. in Supp.; Pl.’s Mot.). Edward

Puchalski’s motion was filed by this mutually agreed-upon date. Therefore, there is no

undue delay. See, e.g., United Rentals (N. Am.) Inc. v. Conti Enters., Inc., No. 15-CV-

298, 2015 WL 7257864, at *3 (D. Conn. Nov. 17, 2015) (“United Rentals filed the Motion

to Amend on August 27, 2015, which was the deadline for filing motions to amend, as

set by the court in its Scheduling Order. Therefore, there was no undue delay in filing

the Motion to Amend.” (citation omitted)); Duffy v. Anitec Image Corp., No. 89-CV-

1115, 1991 WL 44834 (N.D.N.Y. Apr. 1, 1991) (finding no undue delay when defendant

moved to amend answer three days before the Rule 16 stipulated deadline for doing so).

2. Prejudice

“Although prejudice to the opposing party . . . has been described as the most

important reason for denying a motion to amend, only undue prejudice warrants denial

of leave to amend[.]” Agerbrink v. Model Serv. LLC, 155 F. Supp. 3d 448, 454 (S.D.N.Y.

2016) (first alteration in original) (citations and quotations omitted). “In deciding

whether such prejudice exists, courts evaluate whether the amendment would

‘(i) require the opponent to expend significant additional resources to conduct discovery

and prepare for trial; (ii) significantly delay the resolution of the dispute; or (iii) prevent

the plaintiff from bringing a timely action in another jurisdiction.’” Id. at 454 (quoting

Monahan v. N.Y.C. Dep’t of Corr., 214 F.3d 275, 284 (2d Cir. 2000)) (finding that the

need for “additional, expanded discovery” is insufficient to show prejudice where

discovery was still ongoing and neither a schedule for summary judgment nor a trial

date had been set). “This inquiry involves a balancing process, weighing any potential

prejudice to the opposing party against the prejudice that the moving party would

experience if the amendment were denied. The non-moving party bears the burden of

demonstrating that substantial prejudice would result were the proposed amendment to

be granted.” Id. at 454 (quotations and citation omitted).

Defendants have not established prejudice that would warrant denial of Plaintiff’s

motion. Defendants contend that they “have engaged in costly and time-intensive

discovery, resulting in their production of over five thousand pages of documents

relevant to Plaintiffs’ claims,” (Defs.’ Mem. in Opp’n at 7), and they would “have to once

again expend considerable time, effort, and resources toward revisiting their records

and producing materials responsive to Puchalski’s allegations,” (id. at 8). That

Defendants would have to conduct additional discovery is not unduly prejudicial,

especially when both fact and expert discovery are still ongoing, pursuant to a joint

schedule agreed to by Defendants. M.E.S., Inc. v. Safeco Ins. Co., No. 10-CV-2798, 2014

WL 2931398, at *3 (E.D.N.Y. June 27, 2014) (“The continuation of discovery is not a

sufficient prejudice to [the defendant] to justify denying [the plaintiff]’s claims.”).

Furthermore, while the amendment results in the addition of a new plaintiff, Edward

Puchalski, he is asserting the same claims as Gadomski. And although there would be

additional damages discovery (based on the hours Edward Puchalski worked), there

would be significant discovery overlap on the discrimination and CBA claims, which are

based on an alleged common pattern of conduct: Defendants’ decision to discriminate

against Polish workers and to pay them non-union wages, instead of bargained-for

steamfitter wages. The Court concludes that the extra work and time attendant to the

discovery from the addition of a new plaintiff—which exists any time a new plaintiff is

added to a case—is insufficient prejudice to warrant denial of the amendment.

3. Futility

“A motion to amend will be considered futile if the Court determines, ‘as a matter

of law, that proposed amendments would fail to cure prior deficiencies or to state a

claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.’” Charlot v. Ecolab,

Inc., 97 F. Supp. 3d 57, 61 (E.D.N.Y. 2014) (report and recommendation) (quoting

Panther Partners Inc. v. Ikanos Commc’ns, Inc., 681 F.3d 114, 119 (2d Cir. 2012)),

report and recommendation adopted 97 F. Supp. 3d 40 (2015); Gayvoronskaya v.

Americare, Inc., No. 15-CV-6641, 2018 WL 4378162, at *1 (E.D.N.Y. Mar. 26, 2018)

(same).

Defendants make a number of arguments about futility. (Defs.’ Mem. in Opp’n at

2–5). None have merit.

First, Defendants incorporate the arguments in their motion to dismiss by

reference. (Id. at 2–3). As explained above, the motion to dismiss is denied, except to

Defendant Frank Maric, for whom the motion is granted in part and denied in part.

Second, Defendants contend that Edward Puchalski’s proposed Title VII claims

are futile for failure to exhaust administrative remedies, and as such, the Court lacks

subject-matter jurisdiction. (Id. at 3–4). This exhaustion argument misapprehends the

current state of the law. “Title VII directs that a ‘charge . . . shall be filed’ with the EEOC

‘by or on behalf of a person claiming to be aggrieved’ within 180 days ‘after the alleged

unlawful employment practice occur[s].’” Fort Bend County v. Davis, 139 S. Ct. 1843,

1846 (2019) (alterations in original) (quoting 42 U.S.C. § 2000e-5(b), (e)(1)). “Title

VII’s charge-filing requirement is not of jurisdictional cast. . . . Title VII’s charge-filing

requirement is a processing rule, albeit a mandatory one, not a jurisdictional

prescription delineating the adjudicatory authority of courts.” Id. at 1850–51. Thus,

exhaustion is an affirmative defense, not a pleading requirement, the burden of which

lies with Defendants. Quinones v. New York City, No. 19-CV-5400, 2020 WL 5665142,

at *4 (S.D.N.Y. Aug. 17, 2020) (report and recommendation) (same).11

Third, Defendants argue that Edward Puchalski’s NYSHRL and NYCHRL claims

are time-barred. (Defs.’ Mem. in Opp’n at 4–5). The statutes of limitations for NYSHRL

11 In any event, the Second Amended Complaint states that Edward Puchalski

subsequently exhausted his administrative remedies. He filed a charge of

discrimination with the EEOC and, at the time of filing (February 11, 2020), was

awaiting his right to sue letter. (Proposed Second Am. Compl. dated Feb. 5, 2020

(“Second Am. Compl.”), attached as Ex. 2 to Dkt. No. 75 ¶ 19; Pl.’s Mem. in Supp. at 4).

and NYCHRL claims are both three years. Sotomayor v. City of New York, 862 F. Supp.

2d 226, 248–49 (E.D.N.Y. 2012), aff’d, 713 F.3d 163 (2d Cir. 2013) (per curiam);

Livingston v. Roosevelt Union Free Sch. Dist., No. 17-CV-4189, 2020 WL 1172642, at *4

(E.D.N.Y. Jan. 15, 2020), report and recommendation adopted, 2020 WL 1166450

(Mar. 11, 2020). Edward Puchalski alleges he asked to join Local 638 in “late 2016” and

was not permitted to do so because of his national origin. (Second Am. Comp. ¶¶ 74,

77). Subsequently, he “repeated his requests to join Local 638 . . . on a number of

occasions” but was threatened with termination by FM Construction and the other

Defendants for these demands. (Id. ¶¶ 75–76). His employment ultimately ended in

2019. (Id. ¶ 82). While discovery may be necessary to determine when these other

“occasions” were, it is at least plausible that some act of discrimination took place within

the limitations period. And as a result, the Court cannot conclude, at this stage, that his

claims are barred as a matter of law. These claims are, therefore, not futile.

The Court, therefore, grants Plaintiff leave to amend and to file its Second

Amended Complaint.

B. Relation Back Under Rule 15(c)(1)(C)

The date on which the Second Amended Complaint is deemed filed affects the

damages obtainable for Edward Puchalski’s wage claims, and he seeks to relate the

Second Amended Complaint back to March 14, 2018, when the first Complaint was filed.

For the reasons stated below, the relation back is denied. The Second Amended

Complaint should be filed by November 23, 2020, and is deemed to relate back only to

February 11, 2020, which is the date on which the motion to amend was filed.

An amendment seeking to add a new party relates back to the date of the original

pleading only if Rule 15(c)(1)(C) is satisfied. See Levy v. U.S. Gen. Acct. Off., 175 F.3d

254, 255 (2d Cir. 1999) (per curiam); Charlot, 97 F. Supp. 3d at 83 (report and

recommendation) (collecting cases). A plaintiff must show (1) that the amendment

satisfies Rule 15(c)(1)(B), namely that “the amendment asserts a claim or defense that

arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—

in the original pleading,” Fed. R. Civ. P. 15(c)(1)(B), and “within the period provided by

Rule 4(m) for serving the summons and complaint;” (2) a defendant “received such

notice of the action that it will not be prejudiced in defending on the merits;” and (3)

“knew or should have known that the action would have been brought against it, but for

a mistake concerning the proper party’s identity,” id. r.15(c)(1)(C). See Levy v. U.S. Gen.

Acct. Off., No. 97-CV-4016, 1998 WL 193191, at *5 (S.D.N.Y. Apr. 22, 1998) (“In order

for an amendment which adds a new plaintiff to relate back to the original complaint,

the original plaintiff must demonstrate: 1) the new plaintiff’s claims arise out of the

same transaction or occurrence advanced in the original pleading; 2) the defendant

received adequate notice of the new plaintiff’s claims so as not to be prejudiced in

maintaining a defense on the merits; and 3) the defendant knew or should have known

that, but for a mistake concerning the new plaintiff’s identity, the action would have

been brought on that party’s behalf.”), aff’d, 175 F.3d 254 (2d Cir. 1999); In re Morgan

Stanley Mortg. Pass-Through Certificates Litig., 23 F. Supp. 3d 203, 208 (S.D.N.Y.

2014) (“[T]he relation back of claims by newly added parties is limited to circumstances

in which the failure to name the party in the first instance was the product of mistaken

identity[.]”); see also Charlot, 97 F. Supp. 3d at 84–86 (report and recommendation).

In evaluating relation back under Rule 15(c), “[c]ourts . . . inquire into whether

the opposing party has been put on notice regarding the claim or defense raised by the

amended pleading.” Charlot, 97 F. Supp. 3d at 71 (report and recommendation)

(quoting 6A Wright & Miller § 1497). “The rationale of Rule 15(c) is that a party who has

been notified of litigation concerning a particular occurrence has been given all the

notice that statutes of limitations were intended to provide.” Id. (quoting United States

v. Baylor Univ. Med. Ctr., 469 F.3d 263, 270 (2d Cir. 2006)). One component of the

notice is the “mistake requirement,” which asks “whether the defendant ‘knew or should

have known that it would have been named as a defendant but for an error.’”

Dominguez v. City of New York, No. 10-CV-2620, 2010 WL 3419677, at *2 (E.D.N.Y.

Aug. 27, 2010) (quoting Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 548 (2010)).

Because Edward Puchalski cannot satisfy the mistake requirement—i.e., Rule

15(c)(1)(C)’s requirement that Defendants “knew or should have known that the action

would have been brought . . . but for a mistake concerning the proper party’s identity,”

Fed. R. Civ. P. 15(c)(1)(C),—the Second Amended Complaint cannot relate back, e.g.,

Levy, 175 F.3d at 254 (“We also agree with the district court, for substantially the

reasons it stated, that the claims of the Roemer Appellants in the Levy Amended

Complaint do not relate back to Levy’s timely complaint. Levy did not seek to add the

Roemer Appellants as plaintiffs because of a mistake, as required by Fed. R. Civ. P.

15(c)[(1)(C)].”).

Although Plaintiff contends that courts are divided whether the “mistake”

requirement applies to amendments adding a new plaintiff, the Second Circuit has

resolved that issue. See Levy, 175 F.3d at 255; see also Reliance Ins. Co. v. PolyVision

Corp., 292 F. App’x 106, 108 (2d Cir. 2008) (“[T]he attitude taken in revised Rule 15(c)

toward change of defendants extends by analogy to amendments changing plaintiffs.”

(alteration in original) (quoting Fed. R. Civ. P. 15 advisory committee’s note on 1966

amendments)).

There was no mistake concerning Edward Puchalski, i.e., there is nothing to

indicate that Defendants knew or should have known they would be named in a lawsuit

to answer for Edward Puchalski’s claim. For example, the failure to previously add him

as a plaintiff is neither the result of some legal error, nor is it a case in which an

employee with identical claims was mistakenly named as a plaintiff in the original

Complaint. Such a mistake would have put Defendants on notice of Edward Puchalski’s

claim, because other than the mistaken name, they would have been apprised of another

employee having claims similar to Edward Puchalski and Gadomski. See, e.g., Allen v.

Nat’l R.R. Passenger Corp., No. 03-CV-3497, 2004 WL 2830629, at *10 (E.D. Pa. Dec.

7, 2004) (concluding that the mistake requirement was satisfied when new plaintiffs

were added and a charge of discrimination was filed with the EEOC on behalf of all

plaintiffs, including those to be added, but due to error only a single plaintiff’s name was

in the original case caption). But here, there was no mistake in identity or mistaken

exclusion of Edward Puchalski. There was no third employee named in the original

pleading who is being substituted for by Edward Puchalski. Instead, it appears that it

was a conscious decision by Edward Puchalski—not a mistake—to avoid entering this

lawsuit. He states that he was trying “tough it out” and not sue. (Pl.’s Reply Mem. at 5).

And the original Complaint refers to Edward Puchalski, (see Compl. ¶ 67 (“Individual

Defendant refused to let Plaintiffs, or Puchalski’s father, another Polish steam fitter join

Local 638.”)), but he is not included as a plaintiff, a posture that he maintained for over

two years before the motion to amend was filed. Therefore, Rule 15(c)(1)(C)(ii) is not

met and the Second Amended Complaint cannot relate back under Rule 15(c)(1)(C).12

See, e.g., Nelson v. County of Allegheny, 60 F.3d 1010, 1015 (3d Cir. 1995) (“Cocchi and

Beddingfield had ample time—the time dictated by the relevant statute plus the

generous period of time during which the statute was tolled—in which to file their

claims. It is not disputed that Cocchi and Beddingfield were aware of their right to bring

these claims. Nevertheless, they failed to add their names to the complaint until after

expiration of the statute of limitations. They have not demonstrated that this failure was

due to mistake.”).

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss is granted in part and

denied in part. The motion to dismiss is denied except with respect to individual

Defendant Frank Maric, for whom the motion to dismiss is granted in part and denied

in part. Plaintiff’s motion for leave to file the Second Amended Complaint is granted,

subject to the findings of Part I of this opinion, but the Second Amended Complaint

does not relate back to the original Complaint. Plaintiff shall file the Second Amended

Complaint by November 23, 2020. The Clerk of Court shall modify the case caption to

remove Artur Puchalski and add Edward Puchalski.

12 Relation back is also not appropriate under Rule 15(c)(1)(A). “[R]elation back

is appropriate when ‘the law that provides the applicable statute of limitations allows

relation back.’” Charlot, 97 F. Supp. 3d at 74 (report and recommendation) (quoting

Fed. R. Civ. P. 15(c)(1)(A)). “Under Rule 15(c)(1)(A), if the applicable statute of

limitations is determined by state law . . . courts should assess both the state and federal

relation back doctrines and apply whichever law is more generous.” Id. (alteration in

original) (quotation omitted). Because Plaintiff does not explain which law (state or

federal) permits relation back of Edward Puchalski’s claims to the original Complaint,

the Court does not address this cursory argument, raised for the first time in reply.

SO ORDERED.

/s/ Sanket J. Bulsara November 16, 2020

SANKET J. BULSARA

United States Magistrate Judge

Brooklyn, New York