# Rodriguez v. Metro Electrical Contractors, Inc.

> District Court, E.D. New York · March 5, 2021

URL: https://www.frixlaw.com/law-library/cases/10305780

## Case

- **Court:** District Court, E.D. New York
- **Decided:** March 5, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10305780

## How later opinions describe it (automated extraction)

- 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.
- stating that plaintiff's allegations must be accepted despite the answer's denial of their veracity

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10305780. Public record. Not legal advice.