Rodriguez v. Metro Electrical Contractors, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JUAN JOSÉ RODRIGUEZ and ROBERTO

COLON ORTIZ

MEMORANDUM AND ORDER

Plaintiffs,

18-cv-05140 (KAM)

-against-

METRO ELECTRICAL CONTRACTORS, INC.

and ISAAC [LAST NAME UNKNOWN],

RAFAEL [LAST NAME UNKNOWN], and

YOLY [LAST NAME UNKNOWN],

Defendants.

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MATSUMOTO, United States District Judge:

Plaintiffs Juan José Rodriguez and Roberto Colon Ortiz

(collectively, “Plaintiffs”) bring this action pursuant to Title

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

2000e et seq., the Americans with Disabilities Act (“ADA”), 42

U.S.C. §§ 12112 et seq., the Family and Medical Leave Act

(“FMLA”), 29 U.S.C. §§ 2601 et seq., the New York Labor Law

(“NYLL”), § 1 et seq., the New York State Human Rights Law

(“NYSHRL”), N.Y. Exec. Law § 296 et seq., and the New York City

Human Rights Law (“NYCHRL”), Admin. Code of the City of N.Y. §

8-107 et seq., against defendants Metro Electrical Contractors,

Inc. (“Metro”), Isaac [Last Name Unknown] (“Gumbo”) 1, Rafael

[Last Name Unknown] (“Rafael”), and Yoly [Last Name Unknown]

1 This Memorandum and Order will refer to this defendant as “Isaac Gumbo,” as

his last name was disclosed in Defendant Gumbo’s Motion for Judgment on the

Pleadings. (See generally ECF No. 33, Motion for Judgment on the Pleadings.)

(“Yoly”). Plaintiffs principally assert that they were

discriminated and retaliated against because of their race and

national origin, which created a hostile work environment, and

led to their wrongful termination. (See ECF No. 30, Amended

Complaint (“Am. Compl.”) (See Id.) Plaintiffs allege sixteen

of the twenty causes of action against Gumbo. (Id.) Presently

before this court is Gumbo’s Motion for Judgment on the

Pleadings pursuant to Federal Rules of Civil Procedure 12(c)

(“Rule 12(c)”). (ECF No. 33, Motion for Judgment on the

Pleadings.)

For the reasons stated herein, Defendant’s motion is

granted in part and denied in part.

BACKGROUND

I. Facts

In reviewing the plaintiffs’ motion for judgment on

the pleadings, a court must accept the complaint’s factual

allegations as true and draw all reasonable inferences in the

plaintiffs’ favor. Kirkendall v. Halliburton, 707 F.3d 173, 178

(2d Cir. 2013); see also L–7 Designs, Inc. v. Old Navy, LLC, 647

F.3d 419, 422 (2d Cir.2011) (In reviewing the plaintiff’s motion

for judgment on the pleadings, “we draw all facts—which we

assume to be true unless contradicted by more specific

allegations or documentary evidence—from the Complaint and from

the exhibits attached thereto.”) The following facts are taken

from the Amended Complaint and are assumed to be true for

purposes of Defendant’s motion for judgment on the pleadings.

Around February 2010, Metro hired Rodriguez as an

electrician at the company’s Brooklyn location, and around May

2015, Ortiz was hired by Metro as an electrician at the

company’s Brooklyn location. (Am. Compl. ¶¶ 12 and 52.) On

January 4, 2016, Metro hired Yoly as a floor supervisor at the

Brooklyn location. (Id. ¶ 14.) On Yoly’s first day of work, he

began calling employees names based off their respective racial

or physical characteristics. (Id. ¶¶ 15, 55.) Yoly used

discriminatory names such as “Gato” (“cat”), “Chihuahua,” and

“Esclavos” (“slaves”) to refer to Latino employees. (Id. ¶¶ 15-

16, 21, 55-57.) Specifically, Yoly began calling Rodriguez,

“Boricua,” a derogatory term used to refer to Puerto Ricans.

(Id. ¶ 15.) Yoly also told Ortiz that the Puerto Rican

employees were his “esclavos” (“slaves”). (Id. ¶ 21.)

On or about January 15, 2016, Rodriguez complained to

Yoly about the derogatory name calling and asked him to call him

“Juan or José” because “[i]t was offensive to call [him]

Boricua.” (Id. ¶ 17.) Yoly told Rodriguez not to “worry about

[the] name. [To] [w]orry about doing [his] job.” (Id.)

On or about February 5, 2016, Yoly told Rafael,

another floor supervisor, that he wished to replace Latino

employees with “his people.” (Id. ¶ 18.) Yoly also told Rafael

that he wished to “fire the Latinos.” (Id. ¶ 59.) On or about

February 10, 2016, Yoly forced Rodriguez, Ortiz, and other

Latino workers, to work overtime and weekends without pay. (Id.

¶¶ 19 and 60.) Those who refused to work without pay would face

termination, and, as a result, Rodriguez and Ortiz worked the

unpaid time to avoid termination. (Id. at ¶¶ 20, 61.)

On or about February 17, 2016, Yoly threatened to fire

plaintiffs and replace them with “faster [working] people” as

there are “more Mexicans looking for a job.” (Id. at ¶¶ 23 and

62.) Yoly told Ortiz that he would fire him and hire “the

Mexicans” to work for “less money under-the-table.” (Id. at ¶

62.)

During their employment, Yoly continued to call

Rodriguez “Bori” and “Boricua,” despite Rodriguez asking Yoly to

stop referring to him by derogatory names. (Id. at ¶ 25.) Yoly

also continued to call Ortiz “Gato” (“cat”) because he was a

Latino with light-colored eyes, even though Ortiz asked Yoly to

stop. (Id. at ¶¶ 58, 63.) Ortiz complained to Gumbo, the

managing supervisor, about Yoly’s name-calling and other

discriminatory conduct. (Id. at ¶ 64.) Later that same month,

Rafael, the floor supervisor, also began calling Latino

employees “his Esclavos” (“my slaves”) (Id. at ¶ 65.) Ortiz

also noticed that Rafael indicated a preference towards hiring

younger, less experienced, non-Hispanic employees for higher

rates of pay. (Id.)

On or about September 20, 2016, Rodriguez was injured

on the job after insulation fell into his eyes. (Id. at ¶ 26.)

Rodriguez suffered vision impairment and extreme pain due to

this injury. (Id.) Doctors instructed Rodriguez to take one

week off from work. (Id. ¶ 27.) Yoly refused to give Rodriguez

a week off from work and ordered him to work or face

termination. (Id. at ¶¶ 28-29.) Rodriguez returned to work and

Yoly prevented Rodriguez from using accumulated FMLA or vacation

time to recover after his injury. (Id. at ¶¶ 29–30.) On or

about October 10, 2016, Rodriguez received the medical bill for

the September 20, 2016 work injury and gave it to Rafael so that

Metro could pay for the bill. (Id. at ¶ 32.) After several

months of reminders, Metro refused to pay the medical bill.

(Id. at ¶¶ 33-34.)

On or about October 15, 2016, Yoly’s discriminatory

treatment towards Plaintiffs increased. (Id. at ¶¶ 35, 66.)

Yoly continued to complain about Plaintiffs’ work performance

and forced them to work “even more overtime without pay.” (Id.)

On or about July 23, 2017, Plaintiffs were instructed to work

offsite under Yoly’s supervision. (Id. at ¶¶ 37, 67.)

Plaintiffs were not paid for the work offsite despite their

requests. (Id. at ¶¶ 38, 68.) On or about July 27, 2017, Yoly

requested for Plaintiffs to work overtime without pay. (Id. at

¶¶ 40–41; 68-69.) The Plaintiffs refused. (Id.) As a result,

Yoly terminated the Plaintiffs. (Id. at ¶¶ 41-42; 70.)

Rodriguez told Yoly that he would file for unemployment to which

Yoly responded, “you probably don’t even have [documentation]

papers to do that.” (Id. at ¶ 42.)

Based on the foregoing, Plaintiffs felt “humiliated,

degraded, victimized, and emotionally distressed.” (Id. at ¶¶

45, 71.) Plaintiffs suffered and continue to suffer “loss of

income, . . . salary, bonuses, benefits and other compensation.”

(Id. at ¶¶ 46, 72.) Plaintiffs also continue to suffer from

“severe emotional distress and physical distress.” (Id. at ¶¶

47, 71.)

II. Procedural History

On September 12, 2018, Plaintiffs filed their first

Complaint against Metro, Gumbo, Samuel Lebovitz (“Lebovitz”),

Rafael, and Yoly. (ECF No. 1, Complaint.) On November 21,

2018, Defendants, Metro, Gumbo, Yoly, and Lebovitz filed a

waiver of service. (ECF No. 5-6, Waivers of Service.)2 On

November 27, 2018, Defendants, Metro, Gumbo, and Lebovitz filed

2 Notably, Defendant, Yoly, never filed an answer to the Complaint nor the Amended Complaint. Separately, it is

unclear from the docket if Defendant, Rafael, was ever properly served. On December 13, 2018, plaintiffs’ counsel

filed a letter requesting an extension to effectuate service of process on Rafael. (ECF No. 12, Letter Motion for

Extension of Time.) The letter explains that plaintiffs made several attempts to effectuate service on Rafael, but

had been unsuccessful in personally serving the defendant. (Id.) The docket does not evidence whether proper

service was ever effectuated.

their Answer. (ECF No. 10, Answer to Complaint.) On the same

day, Defendants filed an Amended Answer. (ECF No. 11, Amended

Answer.)

After over a year of engaging in discovery and

unsuccessful settlement negotiations, on February 18, 2020,

counsel for Defendants, Metro, Gumbo, and Lebovitz, submitted a

letter to this court requesting a pre-motion conference. (ECF

No. 28, Letter Requesting a Pre-Motion Conference.) The letter

noted that the complaint was “devoid of a factual basis for

imposing liability against Gumbo.” (Id.) On February 21, 2020

Plaintiffs responded requesting that Defendants’ request for a

pre-motion conference and accompanying request to file a motion

to dismiss be denied. (ECF No. 29, Letter in Response to

Defendant’s Request.) In their letter, Plaintiffs asserted they

had made specific allegations against Gumbo in Paragraph 65 of

the Complaint3, but did not address the complaint’s lack of facts

against Lebovitz. (Id.) The court ordered Plaintiffs to amend

their Complaint in the absence of any allegations against

Lebovitz in their original Complaint. (Minute Entry and Order,

3/4/2020.) On March 25, 2020, Plaintiffs filed an Amended

Complaint, removing Lebovitz. (ECF No. 30, Amended Complaint

3 Plaintiffs’ letter incorrectly cites to Paragraph 65 in the Amended Complaint. The reference to Gumbo is made at

Paragraph 64 in the Amended Complaint. (Am. Compl. ¶ 64.)

(“Am. Compl.”).) The defendants did not file an answer to the

amended complaint.

On May 8, 2020, Gumbo filed a motion for judgment on

the pleadings pursuant to Rule 12(c) and an accompanying

affidavit by Gumbo. (ECF No. 33, Motion for Judgment on the

Pleadings; ECF No. 33-1, Affidavit in Support.) The other

defendants have not joined in Gumbo’s motion, nor filed a

separate motion for judgment on the pleadings. On June 5, 2020,

Plaintiffs filed their Memorandum of Law and Affirmation in

Opposition to Gumbo’s motion for judgment on the pleadings.

(ECF No. 33-4.) On June 18, 2020, Gumbo filed a Reply

Memorandum in Support of his motion. (ECF No. 33-5.) The only

pleading before the court for consideration of Defendant Gumbo’s

motion for judgment on the pleadings is the Amended Complaint.

LEGAL STANDARD

A complaint must plead “enough facts to state a claim

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

Twombly, 550 U.S. 544, 570 (2007), and “allow[] 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). At the pleading stage of the proceeding, the court must

assume the truth of “all well-pleaded, nonconclusory factual

allegations” in the complaint. Kiobel v. Royal Dutch Petroleum

Co., 621 F.3d 111, 124 (2d Cir. 2010) (citing Iqbal, 556 U.S. at

679). The court need not accept as true allegations that are

effectively legal conclusions. See Iqbal, 556 U.S. at 678.

In deciding a Rule 12(c) motion, the court applies the

“same standard applicable to dismissals pursuant to Fed. R. Civ.

P. 12(b)(6).” Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir.

2010) (quoting Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir.

2009)). In doing so, the court “accept[s] the allegations

contained in the complaint as true and draw[s] all reasonable

inferences in favor of the nonmoving party.” Kousnsky v.

Amazon.com, Inc., 631 F. App’x 22, 23 (2d Cir. 2015) (quoting

Johnson, 569 F.3d at 44). In order to survive a 12(c) motion,

the “complaint must contain sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its

face.’” Kousnsky, 631 F. App’x at 23 (quoting Johnson, 569 F.3d

at 44). The court need not assess the probability of the

allegations in the complaint. Lynch v. City of New York, 952

F.3d 67, 75 (2d Cir. 2020). Instead, the court need only

ascertain whether the complaint “‘calls for enough facts to

raise a reasonable expectation that discovery will reveal

evidence of illegal’” conduct. Lynch, 952 F.3d at 75 (quoting

Iqbal, 556 U.S. at 678). As such, “the court’s task is to

assess the legal feasibility of the complaint; it is not to

assess the weight of the evidence that might be offered on

either side.” Lynch, 952 F.3d at 75.

Plaintiffs are entitled to judgment on the pleadings

only if they have established “that no material issue of fact

remains to be resolved and that [they are] entitled to judgment

as a matter of law.” 5 C. Wright & A. Miller, Federal Practice

and Procedure § 1368, at 690 (1969); see also MacDonald v. Du

Maurier, 144 F.2d 696, 700–01 (2d Cir. 1944) (stating that

plaintiff's allegations must be accepted despite the answer's

denial of their veracity); see also Juster Assocs. v. City of

Rutland, Vt., 901 F.2d 266, 269 (2d Cir. 1990).

Pursuant to Federal Rule of Civil Procedure 12(d)

(“Rule 12(d)”), if a motion under Rule 12(c) “matters outside

the pleadings are presented to and not excluded by the court,

the motion must be treated as one for summary judgment under

Rule 56.” Fed. R. Civ. P. 12(d). This Rule is applied to both

12(b)(6) and 12(c) motions. “Rule 12(d), therefore, presents

district courts with only two options: (1) the court may exclude

additional material and decide the motion on the complaint alone

or (2) it may convert the motion to one for summary judgment

under Fed. R. Civ. P. 56 and afford all parties the opportunity

to present supporting material.” Palin v. New York Times Co.,

940 F.3d 804, 810–11 (2d Cir. 2019) (quoting Kopec v. Coughlin,

922 F.2d 152, 154 (2d Cir. 1991).

DISCUSSION

Plaintiffs allege sixteen of the twenty causes of

action against Gumbo under various federal statutes, and state

and city law. The court will address each of the causes of

action in order as they appear in Plaintiffs’ Amended Complaint.

However, before addressing the facts and causes of action raised

in the Amended Complaint, the court will address the facts

presented in Gumbo’s Affidavit. (ECF No. 33-1, Affidavit in

Support.) Gumbo’s affidavit states that he has no recollection

of being told by plaintiffs about Yoly’s discriminatory comments

and acts. (Id.) Defendant Gumbo also states that he does not

speak any Spanish and has heard that Ortiz only speaks Spanish,

making it impossible for Ortiz to have effectively communicated

with Gumbo. (Id.)

In response, plaintiffs state that Ortiz does speak

English, as he has been communicating with counsel during the

litigation in English, and, the allegations raised by Gumbo are

outside of the pleadings and “thus improper to consider on a

motion for judgment on the pleadings.” (ECF No. 33-4,

Plaintiffs’ Opposition at 2-3.) The court agrees with the

plaintiffs that it may not properly consider Gumbo’s affidavit

in deciding Gumbo’s 12(c) motion. Here, defendant’s affidavit

is outside of the pleadings, and as such, the court will rule on

Gumbo’s 12(c) motion solely based on the facts presented in

plaintiffs’ amended complaint.

I. Plaintiffs’ Third Cause of Action under 42 U.S.C. § 1981

A claim of employment discrimination in violation of

42 U.S.C. § 1981, requires “[t]he same elements . . . as

constitute a claim under Title VII.” White v. Eastman Kodak

Co., 368 F. App’x (2d Ci. 2010). To establish a claim under §

1981, “a plaintiff must allege facts in support of the following

elements: (1) the plaintiff is a member of a racial minority;

(2) defendants’ intention to discriminate on the basis of race;

and (3) the discrimination concerned one of the activities

enumerated in the statute, such as the right to enforce a

contract, sue and be sued, give evidence, etc. . . .” Robledo

v. Bond No. 9, 965 F. Supp. 2d 470 (S.D.N.Y. 2013) (citing Brown

v. City of Oneonta, New York, 221 F.3d 329, 339 (2d Cir. 2000)).

Additionally, Section 1981 encompasses retaliation

claims in employment, CBOCS W., Inc. v. Humphries, 553 U.S. 442,

446 (2008), which are analyzed under the same standard as a

Title VII retaliation claim. Villavicencio v. Gure-Perez, 56 F.

Supp. 3d 178, 186 (E.D.N.Y. 2014) (citing Little v. N.E. Util.

Serv. Co., 299 F. App’x 50, 52 (2d Cir. 2008)). To state a

retaliation claim, a plaintiff must demonstrate (1) that he

engaged in protected activity, (2) of which the employer was

aware, and (3) that he suffered a materially adverse action,

which (4) was causally connected to the protected activity.

See, e.g., id. at 186-87 (quoting Kelly v. Howard I. Shapiro &

Assocs. Consulting Eng’rs, P.C., 716 F.3d 10, 14 (2d Cir.

2013)). Here, plaintiffs allege both discrimination and

retaliation claims in violation of plaintiffs’ Section 1981

rights. (Compl. ¶¶ 87-94.)

Unlike claims under Title VII, § 1981 claims

“provide[] for individual liability on the part of non-

employers. Gad-Todros v. Bessemer Venture Partners, 326 F.

Supp. 2d 417, 425 (E.D.N.Y. 2004). In order to make out a claim

for individual liability under § 1981, plaintiff must

demonstrate an “affirmative link to causally connect the actor

with the discriminatory action” and personal liability “‘must be

predicated on the actor's personal involvement.’” Patterson v.

County of Oneida, 375 F.3d 206, 229 (2d Cir. 2004) (quoting

Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75

(2d Cir. 1995)). “Personal involvement, within the meaning of

this concept, includes not only direct participation in the

alleged violation but also gross negligence in the supervision

of subordinates who committed the wrongful acts and failure to

take action upon receiving information that constitutional

violations are occurring.” Patterson, 375 F.3d at 229.

Here, Plaintiffs allege that Gumbo was the Plaintiffs’

managing supervisor at Metro’s Brooklyn location. (Am. Compl. ¶

9.) Plaintiffs’ only allegation against Gumbo is that Ortiz had

“complained to Defendants’ Managing Supervisor Isaac [Gumbo]

about Defendant’s Floor Supervisor Yoly’s racial misconduct” in

February of 2016. (Id. ¶ 64.) Ortiz told Gumbo that Yoly

consistently calling him “esclavo” (“slave”) and that he

indicated that he did not wish to work under Yoly’s supervision.

(Id.) Plaintiffs allege that by failing to act in response to

these complaints, Gumbo “acted with malice or reckless

indifference to the rights of [] Hispanic males.” (Am. Compl. ¶

93.)

In Gad-Todros v. Bessemer Venture Partners, the court

found the plaintiff’s allegations against the individual, non-

employer defendants to be sufficient under § 1981. Gad-Todros,

326 F. Supp. at 425. There, the plaintiff had complained to the

individual defendants about discriminatory conduct and the

individual defendants failed to remedy or prevent such conduct.

Id. Similarly, here, Plaintiffs allege that Gumbo, as managing

supervisor, failed to remedy or prevent the Yoly’s

discriminatory conduct. (Am. Compl. ¶¶ 9, 87–93;) See also

Zaidi v. Amerada Hess Corp., 723 F. Supp. 2d 506, 517 (E.D.N.Y.

2010)(plaintiff’s Section 1981 claim survived a motion to

dismiss where the complaint [to the supervisor] made explicit

reference to discrimination based on plaintiff’s race.)

Plaintiff’s discrimination claim under Section 1981 therefore

survives.

Plaintiffs’ retaliation claim under Section 1981 also

survives because “an internal complaint of discrimination to

management is a protected activity for purposes of a retaliation

claim under Title VII.” See Kotcher v. Rosa & Sullivan

Appliance Ctr., Inc., 957 F.2d 59, 65 (2nd Cir.1992).

Retaliation claims brought under Section 1981 are analyzed under

the same standards as Title VII. Whidbee v. Garzarelli Food

Specialties, Inc., 223 F.3d 62, 75 (2nd Cir.2000). Here, Ortiz

brought an internal complaint of race discrimination to Gumbo, a

supervisor. See Swierkiewicz v. Sorema N.A., 534 U.S. at 514–

15, 122 S.Ct. 992 (2002) (At this stage of the case, the

plaintiff is only required to give fair notice of the

retaliation claim and the grounds upon which it rests, in order

to defeat the present motion.) As such, defendant’s motion for

judgment on the pleadings with respect to plaintiffs’ Section

1981 discrimination and retaliation claims against Gumbo is

denied.

II. Plaintiff Rodriguez’s Sixth and Seventh Causes of Action

under the Family and Medical Leave Act (“FMLA”), 29

U.S.C. § 2601

The FMLA was enacted by Congress in 1993 “to balance

the demands of the workplace with the needs of families, to

promote the stability and economic security of families, and to

promote national interests in preserving family integrity.” 29

U.S.C. § 2601(b)(1). In order to bring a successful claim under

the FMLA, an employee-plaintiff must demonstrate “(1) that the

employer interfered with, restrained, or denied the rights

protected by the FMLA, and (2) that the employee has been

prejudiced by the violation.” Roberts v. Health Ass'n, 308 F.

App’x. 568, 569 (2d Cir. 2009) (citing Ragsdale v. Wolverine

World Wide, Inc., 535 U.S. 81, 89 (2002)).

“The FMLA entitles covered employees to take up to 12

weeks of leave per year to care for a spouse, parent, or child

that has a serious health condition, or for the employee's own

serious health condition that makes the employee unable to

perform the functions of his or her position.” Higgins v. NYP

Holdings, Inc., 836 F. Supp. 2d 182, 193 (S.D.N.Y. 2011) (citing

29 U.S.C. §§ 2612(a)(1)(C), (a)(1)(D), (b)). Upon return from

FMLA leave, an employer must restore an employee to her former

job or another position with equivalent pay, benefits, and

conditions of employment. 29 U.S.C. § 2614(a)(1). An employer

who fails to provide an eligible employee with FMLA leave may be

held liable for damages and may also be required to reemploy,

reinstate, or promote the employee. See 29 U.S.C. § 2617(a)(1).

Additionally, an individual can face personal liability under

the FMLA under certain circumstances. Personal liability under

the FMLA is appropriate only if the individual defendant is an

“employer” within the definition of the statute. See Graziadio

v. Culinary Inst. of Am., 817 F.3d 415, 422 (2d Cir. 2016). The

term “employer” in this context can include “any person who

acts, directly or indirectly, in the interest of an employer to

any of the employees of such employer.” 29 U.S.C. §

2611(4)(A)(ii)(I); see also 29 C.F.R. § 825.104(d). The Second

Circuit applies an “economic reality” test to evaluate whether

an individual qualifies as an “employer” for purposes of FMLA

liability. Graziadio, 817 F.3d at 422. A non-exhaustive list

of factors for whether an individual qualifies as an employer

includes:

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.

Id. “However, ‘[t]he economic reality test is a factual

inquiry that does not bear on the sufficiency of pleadings.’ Thus,

to survive a motion to dismiss, Plaintiff need not allege

sufficient facts to satisfy the economic reality test; instead, he

must simply ‘plead that the proposed [I]ndividual [D]efendants had

substantial control over the aspects of employment alleged to have

been violated.’” Smith v. Westchester Cty., 769 F. Supp. 2d 448,

475–76 (S.D.N.Y. 2011) (citing Augustine v. AXA Fin., Inc., No.

07–CV–8362, 2008 WL 5025017, at *3 (S.D.N.Y. Nov. 24, 2008).)

Here, Rodriguez does not allege any facts to support

the notion that Gumbo had “substantial control” over the alleged

FMLA violation and therefore, Gumbo’s motion for judgment on the

pleadings based on these claims is granted. See Noia v.

Orthopedic Assocs. of Long Island, 93 F. Supp. 3d 13, 17

(E.D.N.Y. 2015) (“Plaintiff fails to allege direct involvement

by Dr. Puopolo in the alleged FMLA violation . . . [t]his is

fatal to the Plaintiff's proposed FMLA claim against Dr.

Puopolo.”) The only allegation made against Gumbo is in

reference to the complaint made by plaintiff regarding Yoly’s

discriminatory conduct and comments. (Am. Compl. ¶ 64.) Even

further, the complaints made to Gumbo were made by Ortiz, not

Rodriguez, and only Rodriguez alleges an FMLA violation. (Id.)

Plaintiffs allege that Gumbo is a “managing supervisor,” (Id. ¶

9), but do not plead facts which would support Gumbo’s ability

to hire and fire employees, supervise the plaintiffs’ work

schedules, exhibit control over the plaintiffs’ work schedules,

or maintain the plaintiffs’ employment records. Accordingly,

Defendant Gumbo’s motion as to Rodriguez’s FLMA claim is

granted.

III. Plaintiffs’ Eighth, Ninth, Tenth, Eleventh, and Twelfth

Causes of Action under New York Labor Law (“NYLL”)

New York Labor Law (“NYLL”) governs a wide range of

labor disputes and “prohibit[s] the employment of a person in

certain work or under certain conditions [and] the employer

shall not permit such person to so work, with or without

compensation, and in a prosecution or action therefor[e] lack of

consent by the employer shall be no defense.” N.Y. Lab. Law §

3(McKinney 2021). Plaintiffs allege violations of various

sections of the NYLL concerning overtime wages, spread of hours,

notice and recordkeeping requirements, and failure to pay wages.

(Am. Compl. ¶¶ 112-130.) Once again, the only allegation made

by Plaintiffs against Gumbo is about the complaints made to him

regarding name-calling and other discriminatory conduct

exhibited by Yoly. (Am. Compl. ¶ 64.) Plaintiffs fail to

allege any specific facts indicating Plaintiff Gumbo is at all

responsible for any of the alleged NYLL violations and that he

had control over plaintiffs’ work schedules and pay. As such,

defendant Gumbo’s motion for judgment on the pleadings based on

the NYLL claims in the eighth, ninth, tenth, eleventh, and

twelfth causes of action is granted.

IV. Plaintiffs’ Thirteenth, Fourteenth, and Fifteenth Causes

of Action under New York State Human Rights Law

(“NYSHRL”)

Plaintiffs’ thirteenth, fourteenth, and fifteenth

causes of action allege violations of the NYSHRL codified at

N.Y. Exec. Law § 296 et seq. Plaintiffs allege violations of §§

296(1)(a), 296(6), and 296(7). Section 296 makes it unlawful

for an employer to discriminate on the basis of an “individual's

age, race, creed, color, national origin, sexual orientation,

gender identity or expression, military status, sex, disability,

predisposing genetic characteristics, familial status, marital

status, or status as a victim of domestic violence.” N.Y. Exec.

Law § 296(1)(a). Under § 296(6), it is “unlawful discriminatory

practice for any person to aid, abet, incite, compel or coerce

the doing of any of the acts forbidden under this article.”

N.Y. Exec. Law § 296. Specifically, a plaintiff may proceed

against an individual defendant under the direct liability

provision of NYSHRL, § 296(1)(a), if the defendant either,

first, has an ownership interest in the employer or, second, has

the power to hire and fire the plaintiff. See Tomka v. Seiler

Corp., 66 F.3d 1295, 1317 (2d Cir.1995); see also Russo–Lubrano

v. Brooklyn Fed. Sav. Bank, No. 06–CV–0672, 2007 WL 121431, at

*8 (E.D.N.Y. Jan. 12, 2007); see also Messer v. Fahnestock & Co.

Inc., No. 103CV-04989-ENV-JMA, 2008 WL 4934608, at *9 (E.D.N.Y.

Nov. 18, 2008). As a third option, a defendant who “actually

participates in the conduct giving rise to a discrimination

claim” may be found liable under NYSHRL's aiding and abetting

section, § 296(6). Tomka, 66 F.3d at 1317; see also Feingold,

366 F.3d at 157–58 & n. 19. See also Parra v. City of White

Plains, 48 F. Supp. 3d 542, 555 (“[a] supervisor's failure to

take adequate remedial measures” in response to a complaint of

discrimination has been deemed “actual participation” under

NYSHRL § 296(6).”) (quoting Lewis v. Triborough Bridge & Tunnel

Auth., 77 F. Supp. 3d 376, 381 (S.D.N.Y. 1999).)

Gumbo contends that he “has neither an ownership

interest, nor the capacity to determine personnel decisions,”

therefore, he cannot be liable under Section 296(1). This court

agrees. The amended complaint does not allege that Gumbo

possessed any ownership interest in Metro, nor does it allege

that Gumbo had the power to hire and fire the plaintiffs. The

amended complaint alleges only that Gumbo was plaintiffs’

supervisor and that Ortiz complained to Gumbo about Yoly’s name-

calling and discriminatory conduct. (Am. Compl. ¶¶ 9, 64.)

Hence, Defendant’s motion for judgment on the pleadings as to

this claim is granted.

By contrast, plaintiffs’ aiding and abetting claim

under Section 296(6) claim may proceed. Defendant contends that

“one offhand comment of, at best, a questionable chance of being

understood, without one further statement or one reminder,

simply does not constitute sufficient notice to hold Isaac

liable.” Defendant cites to Sloss-Sheffield Steel & Iron Co. v.

Foote, 231 Ala. 275, 276, 164 So. 379, 379 (1935) to support

this contention. First, this case from the Supreme Court of

Alabama and is inapplicable to, and not controlling in the case

at hand as the plaintiffs bring a New York State law claim.

Second, failure to investigate as a supervisor can

constitute “active participation” to support an “aiding and

abetting” claim. See Feingold v. New York, 366 F.3d 138, 157–

158 (2d Cir.2004) (summary judgment denied on § 296 claims where

defendants took no action to remedy such behavior of which they

were aware); Gallo v. Wonderly Co., Inc., 2014 WL 36628, *8

(N.D.N.Y.2014) (a person may be liable under § 296 for taking no

action to remedy discriminatory behavior); Lewis v. Triborough

Bridge and Tunnel Auth., 77 F.Supp.2d 376, 384 (S.D.N.Y.1999)

(“the case law establishes beyond cavil that a supervisor's

failure to take adequate remedial measures can rise to the level

of ‘actual participation’ under HRL § 296(6)”) accord Cid v. ASA

Institute of Business & Computer Technology, Inc., 2013 WL

1193056, *6 (E.D.N.Y.2013) (failure to investigate complaints of

discrimination provides sufficient basis for aiding and abetting

liability under New York City Human Rights law) (citations

omitted); cf. Morgan v. NYS Atty. Gen.'s Office, 2013 WL 491525,

*13 (S.D.N.Y. 2013) (recognizing that the failure to investigate

could constitute aiding and abetting liability, but finding this

plaintiff failed to allege that he ever brought the

discriminatory conduct to his superiors). Here, Gumbo was

plaintiffs’ supervisor and was aware of Yoly’s discriminatory

statements and conduct. Gumbo did nothing to investigate Yoly’s

conduct and, in turn, “aided and abetted” the discriminatory

conduct.

Separately, plaintiffs’ State retaliation claim under

§ 296(7) may proceed. Section 296(7) provides that it is

“unlawful discriminatory practice for any person engaged in any

activity to . . . retaliate or discriminate against any person

because he or she has opposed any practices forbidden under this

article or because he or she has filed a complaint, testified or

assisted in any proceeding under this article. N.Y. Exec. Law §

296(7). To state a claim for retaliation under § 296(7), a

plaintiff must establish that “(1) she has engaged in protected

activity, (2) her employer was aware that she participated in

such activity, (3) she suffered an adverse employment action

based upon her activity, and (4) there is a causal connection

between the protected activity and the adverse action.” Delisi

v. Nat'l Ass'n of Prof'l Women, Inc., 48 F. Supp. 3d 492, 495

(E.D.N.Y. 2014) (citing Forrest v. Jewish Guild for the Blind, 3

N.Y.3d 295, 312, 786 N.Y.S.2d 382, 819 N.E.2d 998 (2004)). This

Court has already ruled that the Plaintiff successfully stated a

claim for retaliation based, inter alia, on race and ethnicity

pursuant to § 1981. As the Plaintiff's retaliation claim based

on the NYSHRL also includes race-based workplace retaliation,

the Court finds that the Plaintiff has successfully alleged such

a claim. See Amaya v. Ballyshear LLC, 295 F. Supp. 3d 204, 228

(E.D.N.Y. 2018) (holding that the plaintiff’s NYSHRL § 296(7)

retaliation claim survived a motion to dismiss since the Court

had already determined that the plaintiff’s retaliation claim

under § 1981 had merit.)

Accordingly, for the reasons stated above, Defendant

Gumbo’s motion for judgment on the pleadings as to NYHRL Section

296(1)(a) is granted. Defendant’s motion for judgment on the

pleadings as to NYHRL Sections 296(6) and 296(7) against

plaintiffs is denied.

B. Plaintiffs’ Sixteenth, Seventeenth, Eighteenth,

Nineteenth, and Twentieth Causes of Action under the New York

City Human Rights Law (“NYCHRL”)

The NYHRL and NYCHRL make it unlawful "for any person

to aid, abet, incite, compel or coerce the doing of any of the

acts forbidden under this [provision], or to attempt to do so."

N.Y. Exec. Law § 296(6); Admin. Code N.Y.C. § 8-107(6). The

NYCHRL permits claims against individual defendants:

“Individual[][defendants] can be found liable under both the

NYHRL and the NYCHRL for aiding and abetting conduct that

violates the law.” Brown v. Montefiore Med. Ctr., No. 18-cv-

03861, 2019 U.S. Dist. LEXIS 78915, at *36–37 (S.D.N.Y. 2019).

Furthermore, New York State courts have recognized that the “New

York City Human Rights Law was intended to be more protective

than the state and federal counterpart.” Farrugia v. N. Shore

Univ. Hosp., 820 N.Y.S.2d 718, 724 (N.Y. Sup. Ct. 2006).

As Plaintiffs’ NYHRL claim under Sections 296(6) and

296(7) have survived for the reasons listed above, Plaintiffs’

NYCHRL claims also survive. Under the more lenient NYCHRL

standard and analyzing Plaintiffs’ allegations in the light most

favorable to Plaintiffs, there are sufficient allegations to

state a claim under NYCHRL.

CONCULSION

For the foregoing reasons, Defendant Gumbo’s motion is

DENIED with respect to Plaintiff’s race-based Section 1981

claims, NYSHRL Sections 296(6) and 296(7) claims, and the NYCHRL

claims. Defendant Gumbo’s motion is GRANTED with respect to the

FMLA claims, the NYLL claims, and the NYSHRL 296(1) claim. To

summarize, plaintiffs’ Claims 3, 14, 15, 16, 17, 18, 19, and 20

remain as to defendant Gumbo. The other defendants have failed

to answer the Amended Complaint and must do so within (1) week

of this Memorandum and Order by March 12, 2021, or face default.

Separately, plaintiffs are ordered to submit proof of service as

to defendant Rafael by March 12, 2021. SO ORDERED.

Dated: March 5, 2021

Brooklyn, New York

___________/s/_______________

Kiyo A. Matsumoto

United States District Judge