Flanagan v. Girl Scouts of Suffolk County, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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THOMAS FLANAGAN, RUSSELL THOMPSON, SARAH

MOFFATT, KYLE GRANT and CHRISTINE MEMORANDUM AND ORDER

FLANGAN, ADOPTING REPORT &

RECOMMENDATION AS

Plaintiffs, MODIFIED

21-cv-7153 (KAM)(ARL)

-against-

GIRL SCOUTS OF SUFFOLK COUNTY, INC.,

PAMELA MASTROTA, EMILY BROWN, TAMMY

SEVERINO, DONNA SMELAND, JACQUELINE

GORDON, DAWN LOTT, SARAH MCCANDLESS,

BRANDY SCOTT and JENNIFER FRIEDMAN,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiffs Thomas Flanagan, Russell Thompson, Sarah Moffatt,

Kyle Grant, and Christine Flanagan (collectively, “Plaintiffs”),

bring this action against Defendants Girl Scouts of Suffolk County,

Inc. (“GSSC”), Pamela Mastrota, Emily Brown, Tammy Severino, Donna

Smeland, Jacqueline Gordon, Dawn Lott, Sarah McCandless, Brandy

Scott and Jennifer Friedman (collectively “Defendants”), alleging

violations of the National Labor Relations Act (“NLRA”), the New

York State Labor Law (“NYLL”), the New York State Not-For-Profit

Corp. Law (“N-PCL”), 42 U.S.C. § 1981 (“Section 1981”), the New

York State Human Rights Law (“NYSHRL”), the Federal False Claims

Act (“FCA”) and the New York State False Claims Act (“NY FCA”).

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Defendants GSSC, Severino, Smeland, Gordon, Lott, McCandless,

Scott, and Friedman (the “Girl Scout Defendants”) and Defendants

Mastrota and Brown (the “Former Officer Defendants”) filed a motion

to dismiss the Amended Complaint (ECF No. 21 (“Am. Compl.”)) under

Fed. R. Civ. P. 12. On April 6, 2023, the Court referred both

motions to Magistrate Judge Arlene R. Lindsay for a report and

recommendation (“R&R”). (See 04/06/23 Dkt. Order.)

Before the Court are: (1) Magistrate Judge Lindsay’s R&R (ECF

No. 45 (“R&R”)), dated August 25, 2023, recommending that both

motions to dismiss be granted but granting Plaintiffs leave to

amend their NYSHRL and Section 1981 discrimination claims; (2) the

parties’ objections to the R&R; and (3) the parties’ respective

responses to those objections. For the reasons stated below, the

Court adopts Magistrate Judge Lindsay’s thorough, meticulous and

well-reasoned R&R in large part, with modifications as set forth

below.

BACKGROUND AND FACTS

The Court assumes the parties’ familiarity with the extensive

facts thoroughly recounted in the R&R. (See generally R&R.) For

present purposes, the Court discusses only the procedural

background and facts as necessary to address the parties’

objections.

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LEGAL STANDARD

When a party objects to an R&R, the Court must review de novo

those recommendations in the R&R to which the party objects. See

Fed. R. Civ. P. 72(b)(3); United States v. Male Juvenile, 121 F.3d

34, 38 (2d Cir. 1997). Where a party does not object to a portion

of the R&R, the Court “‘need only satisfy itself that there is no

clear error on the face of the record.’” Galvez v. Aspen Corp.,

967 F. Supp. 2d 615, 617 (E.D.N.Y. 2013) (quoting Reyes v.

Mantello, No. 00-cv-8936, 2003 WL 76997, at *1 (S.D.N.Y. Jan. 9,

2003)). The Court may “accept, reject, or modify the recommended

disposition; receive further evidence; or return the matter to the

magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3);

see also 28 U.S.C. § 636(b)(1).

Objections “must be specific and clearly aimed at particular

findings in the magistrate judge's proposal.” Green v. Dep’t of

Educ. of City of N.Y., No. 18-CV-10817 (AT)(GWG), 2020 WL 5814187,

at *2 (S.D.N.Y. Sept. 30, 2020) (quoting McDonaugh v. Astrue, 672

F. Supp. 2d 542, 547 (S.D.N.Y. 2009)); Barratt v. Joie, No. 96-

CV-0324, 2002 WL 335014, at *1 (S.D.N.Y. Mar. 4, 2002) (“Parties

filing objections to recommendations are required to ‘pinpoint

specific portions of the report and recommendations to which [they]

objec[t]. . . .’” (quoting Camardo v. Gen. Motors Hourly-Rate Emps.

Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992))). If “the

[objecting] party makes only frivolous, conclusory or general

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objections, or simply reiterates [the party’s] original arguments,

the Court reviews the report and recommendation only for clear

error.” Velez v. DNF Assocs., LLC, No. 19-CV-11138, 2020 WL

6946513, at *2 (S.D.N.Y. Nov. 25, 2020) (quoting Chen v. New Trend

Apparel, Inc., 8 F. Supp. 3d 406, 416 (S.D.N.Y. 2014)); see also

Colliton v. Donnelly, No. 07-CV-1922 (LAK), 2009 WL 2850497, at *1

(S.D.N.Y. Aug. 28, 2009), aff’d, 399 F. App'x 619 (2d Cir. 2010)

(summary order).

“[E]ven in a de novo review of a party’s specific objections,”

however, “the court will not consider ‘arguments, case law and/or

evidentiary material which could have been, but were not, presented

to the magistrate judge in the first instance.’” Brown v. Smith,

No. 09-CV-4522, 2012 WL 511581, at *1 (E.D.N.Y. Feb. 15, 2012)

(quoting Kennedy v. Adamo, No. 02-CV-1776, 2006 WL 3704784, at *1

(E.D.N.Y. Sept. 1, 2006)) (alterations omitted).

DISCUSSION

The Court addresses each of the asserted claims and objections

in turn.

I. Count One – NLRA Claim

Plaintiffs object that the R&R erred by not explicitly

considering the exceptions to the Garmon rule that the NLRB

possesses exclusive jurisdiction to consider claims based on

Sections 7 or 8 of the NLRA. (ECF No. 49 (“Pls. Objs.”) at 7-8);

see also San Diego Bldg Trades Counsel v. Garmon, 359 U.S. 236,

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242-45 (1959). On review, the Court finds Plaintiffs’

objection unavailing, and adopts the R&R’s recommendation that the

NLRA claim be dismissed without leave to amend.

Not only do Plaintiffs expressly assert an NLRA claim, but

their allegations make clear that their asserted activity is

“arguably subject to Section 7 or Section 8 of NLRA.” Accordingly,

“the States as well as the federal courts must defer to the

exclusive competence of the National Labor Relations Board if the

danger of state interference with national policy is to be

averted.” Figueroa-Torres v. Kleiner, No. 20-cv-4851 (KPF), 2022

WL 768483, at *6 (S.D.N.Y. Mar. 14, 2022) (citing Garmon, 359 U.S.

236 (1959) (cleaned up)).

The Amended Complaint asserts in part that Defendants

“engaged in unfair labor practices,” “terminat[ed] Plaintiffs in

retaliation for engaging in protected, concerted activity,” and

that Plaintiffs were “subjected to differential treatment . . .

based on their collective participation in a protected activity.”

(Am. Compl. ¶¶ 170, 174.) These allegations specifically track

the language set forth in Section 7 and 8 of the NLRA. Plaintiffs’

NLRA claim is therefore “identical to one that the aggrieved party

could bring . . . before the NLRB,” Kleiner, 2022 WL 768483, at

*6, especially considering that Plaintiffs explicitly assert an

NLRA claim. A standalone NLRA claim would obviously not touch on

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interests “deeply rooted in local feeling and responsibility” that

would make preemption inappropriate.

As Plaintiffs’ independent NLRA claim therefore does not

survive — nor even necessarily require — a Garmon preemption

analysis, the Court must then determine whether the claim is

collateral to another claim independently within the federal

court’s jurisdiction. See Husain v. Smarte Carte Inc., No. 10-

CV-1844 (KAM)(RML), 2011 WL 1642591, at *2 n.1 (E.D.N.Y. May 2,

2011) (“Federal courts may retain jurisdiction, however, when an

employee's NRLA claim is necessary to the resolution of a claim

that is independently within the court's jurisdiction, such as a

plaintiff's duty of fair representation claim against a union.”).

In their memorandum opposing Defendants’ motions to dismiss,

(ECF No. 23 (“Pls. Opp.”) at 12), Plaintiffs argued that the Court

has jurisdiction over their NLRA claim because Plaintiffs are

“[a]sserting other federal causes of action in addition to a Cause

of Action for violating the NLRA” — namely, Section 1981 and FCA

claims — which therefore “provides this Court with federal

questions over which this Court has original jurisdiction.” Id.

The Court does not have jurisdiction, however, over an NLRA claim

simply because a plaintiff asserts some other federal claim, as is

the case here. Nowhere in Plaintiffs’ Amended Complaint, their

opposition, or their objections do Plaintiffs explain how their

alleged NLRA claim is collateral to their Section 1981 and FCA

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claims — Plaintiffs simply rely on the fact that they have asserted

these additional claims at all. Accordingly, the Court finds that

it does not have jurisdiction over Plaintiffs’ explicit NLRA claim

and dismisses Count One without prejudice per FRCP 12(b)(1), and

without leave to amend. Green v. Dep't of Educ. of City of New

York, 16 F.4th 1070, 1074 (2d Cir. 2021) (“Dismissals for lack of

subject matter jurisdiction “must be without prejudice, rather

than with prejudice.”). As the Court does not have subject matter

jurisdiction over this claim, any amendment would be futile. See

Husain, 2011 WL 1642591, at *4 (dismissing plaintiff’s NLRA claim

without leave to amend after finding that the court did not have

subject matter jurisdiction over the claim).

II. Count Two: New York Labor Law (“NYLL”) § 215

Plaintiffs object to the R&R’s recommendation that their NYLL

§ 215 retaliation claim be dismissed “for failure to allege a

violation of NYLL and a failure to allege a causal connection

between the protected activity and an adverse employment action.”

(Pls. Objs. at 11; see also R&R at 18.) On de novo review, the

Court finds Plaintiffs’ objection unavailing and dismisses

Plaintiffs’ NYLL § 215 claim with prejudice and without leave to

amend.

Plaintiffs argue that their Amended Complaint “was replete

with facts and paragraphs that, contrary to the R&R support the

Plaintiffs’ claim under NYLL 215.” (Pls. Objs. at 12.) To assert

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a violation of Section 215, Plaintiffs must make allegations about

Defendants’ conduct that could be reasonably construed as

violative of a substantive provision of the NYLL. Plaintiffs,

however, fail to do so. Section 215 specifically prohibits

retaliation for complaints made by an employee about an employer’s

violations of “this chapter, or any order issued by the

commissioner.” NYLL § 215. The referenced “chapter” is Chapter

31 of the Consolidated Laws of New York, in other words, the New

York Labor Law. Zhang v. Centene Mgmt. Co., LLC, No. 21-CV-5313

(DG)(CLP), 2023 WL 2969309, at *12 (E.D.N.Y. Feb. 2, 2023).

Therefore, to “support a claim of retaliatory discharge” pursuant

to § 215, a plaintiff must allege that “she complained about a

specific violation of the Labor Law” within the underlying employee

complaint. See, e.g., Epifani v. Johnson, 65 A.D.3d 224, 235 (2d

Dep’t 2009).

It is true that "[a]n employee complaint or other

communication need not make explicit reference to any section or

provision of this chapter to trigger the protections of this

section." Fox v. Starbucks Corp., No. 19-CV-4650 (AJN), 2021 WL

4155029, at *8 (S.D.N.Y. Sept. 13, 2021). This principle applies

to the underlying employee complaint or communication — that is,

the underlying complaint may describe a defendant’s conduct

without explicitly identifying what NYLL provision was violated.

This does not mean, however, that throughout litigation, a

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plaintiff’s § 215 claim can survive without a connection to some

separate, identifiable NYLL provision. See, e.g., Epifani, 65

A.D.3d at 225 (“A plaintiff must allege that he or she complained

about a specific violation of the Labor Law to support a claim of

retaliatory discharge pursuant to Labor Law § 215.”).

Plaintiffs’ continued failure to identify anywhere in the

instant complaint or their submissions what underlying provision

of NYLL they believed Defendants’ conduct violated (and would,

therefore, be the basis for Plaintiffs’ § 215 claim) suggests that

Plaintiffs misunderstand § 215’s requirements. Zhang, 2023 WL

2969309, at *13 (finding that the plaintiff “has not alleged that

defendant’s conduct was in violation of the New York Labor Law”

and only “alleged conduct that she believes violated [statutory

provisions] not within” the NYLL); HC2, Inc. v. Delaney, 510 F.

Supp. 3d 86, 100 (S.D.N.Y. 2020) (“The complaint does not allege

that Delaney made a complaint about a violation of the New York

Labor Laws or an order of the Commissioner of Labor.”); Kassman v.

KPMG LLP, 925 F. Supp. 2d 453, 472 (S.D.N.Y. 2013) (collecting

cases); Nicholls v. Brookdale Univ. Hosp. Med. Ctr., No. 03-CV-

6233 (JBW), 2004 WL 1533831, at *5 (E.D.N.Y. July 9, 2004)

(“[P]laintiff has not pleaded with a level of specificity

sufficient to support a cause of action. The court cannot determine

what alleged violation of New York’s Labor Law triggered

plaintiff's claim under section 215.”) (emphasis added).

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Here, Plaintiffs have not sufficiently alleged facts

regarding what protected activity they engaged in, that their

protected activity was known to Defendants, and that Plaintiffs

suffered an adverse employment action with a causal connection to

their protected activity. Cortese v. Skanska Koch, Inc., 544 F.

Supp. 3d 456, 470 (S.D.N.Y. 2021) (quoting Mullins v. City of N.Y.,

626 F.3d 47, 53 (2d Cir. 2010)).

Moreover, Plaintiffs’ opposition to Defendants’ motions to

dismiss their § 215 claim failed to sufficiently illuminate

Plaintiffs’ basis for believing Defendants violated the NYLL (see

Pls. Opp. at 21), nor have Plaintiffs sufficiently alleged or

argued the existence of a causal connection between their protected

activity and an adverse employment action.

Accordingly, because Plaintiffs failed to address the

insufficiency of facts regarding the causation element, the Court

adopts the R&R’s dismissal of Plaintiffs’ § 215 claim for failure

to allege a violation of NYLL and a causal connection between the

protected activity and an adverse employment action. The Court

denies leave to amend the § 215 claim, given that Plaintiffs have

twice failed to plead sufficient facts to state this claim in their

Complaint and their Amended Complaint and did not address the

causation deficiency in their opposition to the motions to dismiss.

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III. Count Three: New York Not-for-Profit Corporation Law (“N-

PCL”) § 715-b

Plaintiffs object to the R&R’s recommendation that their N-

PCL Section 715-b claim be dismissed with prejudice. Although the

Court does not adopt the R&R’s specific basis for dismissing this

claim, the Court dismisses this claim with prejudice on other

grounds.

In Plaintiffs’ opposition memorandum, they argued that

Defendants’ contention is that a Section 715-b “private right of

action exists only where an entity does not have or complies with

their Whistle Blower policy.” (Pls. Opp. at 23.) This is not the

issue here. Girl Scouts Defendants specifically acknowledged in

their reply that “Joshi states that a private right of action

exists.” (ECF No. 33 (“GSSC Defs. Reply”) at 10); Joshi v.

Trustees of Columbia Univ. in City of New York, 515 F. Supp. 3d

200 (S.D.N.Y. 2021), aff'd, No. 21-418, 2022 WL 3205883 (2d Cir.

Aug. 9, 2022). Plaintiffs’ reliance on Joshi is misplaced.

In Joshi, the court granted summary judgment dismissing a

plaintiff’s Section 715-b claim because the record demonstrated

that “the defendants complied with the statute,” specifically,

that the defendants “did have the relevant policies to protect

whistleblowers and diligently implemented and adhered to those

policies.” Joshi, 515 F. Supp. at 224. What § 715-b mandates and

Joshi reiterates is that a covered entity must “adopt, and oversee

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the implementation of, and compliance with, a whistleblower

policy.” N-PCL § 715-b. Here, the Court need not permit this

claim to proceed because Plaintiffs readily admit that GSSC had a

Whistleblower policy in place, and their allegations make clear

that Defendants followed those policies.

Plaintiffs allege that their July 2020 letter to the Board of

Defendant GSSC was “drafted and delivered . . . under the

protection and promise of the Girl Scouts Whistle Blower policy.”

(Am. Compl. ¶ 40; see also Pls. Opp. at 23.) Plaintiffs further

allege that they “relied upon the GSSC Employee Handbooks’

WhistleBlower policy as guidance and protection,” and cite

multiple excerpts from the policy. (Am. Compl. ¶ 100; see also

id. ¶ 101.) Plaintiffs further allege that, two days after their

July 2020 letter was submitted to the Board, they received

correspondence from Defendant Smeland “notifying Plaintiffs that

GSSC appointed the law firm of Guercio & Guercio, LLP to serve as

independent investigators of [Plaintiffs’] Complaints.” (Id. ¶

104.) Plaintiffs proceed to describe their individual interviews

with the investigators, as well as various document requests from

the investigators. (Id. ¶¶ 107, 110-11.) Plaintiffs’ allegations

also describe a November 2020 meeting with Defendant Smeland and

the Executive Committee Defendants “to discuss the Whistleblower

grievances.” (Id. ¶¶ 117-20.)

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Accordingly, Plaintiffs’ argument that they have stated a

claim under § 715-b because that provision provides a private right

of action is misplaced, regardless of whether such a private right

of action exists (and even assuming arguendo under Joshi that one

does). Instead, Plaintiffs fail to state a § 715-b claim because

their allegations demonstrate that Defendant GSSC had a

Whistleblower policy in place and that the policy was adhered to,

even if Plaintiffs were ultimately dissatisfied with the outcome

of the GSSC whistleblower investigation. See Joshi v. Trustees of

Columbia Univ. in City of New York, No. 21-418, 2022 WL 3205883,

at *2 (2d Cir. Aug. 9, 2022) (“Columbia has shown that it conducted

a thorough investigation of Joshi’s allegation of [] misconduct,

offered to protect him against retaliation, and then investigated

his claims that he was the subject of retaliation.”). Plaintiffs’

N-PCL § 715-b claim is therefore dismissed with prejudice and

without leave to amend, as the Court finds amendment would be

futile. See, e.g., Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.

2000) (“The problem with [plaintiff’s] causes of action is

substantive; better pleading will not cure it. Repleading would

thus be futile.”).

IV. Count IV: N-PCL § 720-a

Plaintiffs object to the R&R’s recommendation that their N-

PCL § 720-a claim be dismissed with prejudice. (Pls. Objs. at

18.) Plaintiffs argue that they can assert a private right of

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action under Section 720-a because Defendants’ alleged conduct

“constituted gross negligence or was intended to cause the

resulting harm to the person asserting such liability.” (Pls.

Objs. at 20); see also N-PCL § 720-a. Plaintiffs’ objection is

overruled.

The carve-out language above that Plaintiffs rely on does not

mean that allegations constituting gross negligence or an

intentional tort would thereby create a private right of action

under § 720-a. The carve-out language only means that a defendant

director or officer seeking to invoke the qualified immunity that

§ 720-a provides could not do so against allegations that their

conduct constituted gross negligence or an intentional tort. See

Meeker v. McLaughlin, No. 17-CV-5673 (SN), 2018 WL 3410014, at *12

(S.D.N.Y. July 13, 2018) (“[Section 720-a] does not create a

private right of action but rather immunizes certain non-profit

directors and officers for conduct in their official capacity,

unless such conduct constitutes gross negligence or an intentional

tort.”); see also Kamchi v. Weissman, 1.N.Y.S.3d 169 (2d Dep’t

2014) (in assessing a defendant’s motion to dismiss “premised on

the qualified immunity conferred,” noting that § 720-a “confers a

qualified immunity on uncompensated directors, officers, and

trustees of certain not-for-profit corporations”) (internal

quotation marks and citations omitted). Plaintiffs notably do not

cite, and the Court has not located, a single case holding that if

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a court were to find that allegations constituted gross negligence

or an intentional tort, a plaintiff would then be able to wield

this provision affirmatively as a cause of action.

V. Counts Five and Six: 42 U.S.C. Section 1981; NYSHRL § 296

A. Section 1981 and NYSHRL Discrimination Claims

Both sets of Defendants object to the R&R’s recommendation

that Plaintiffs be granted one final opportunity to replead their

Section 1981 and NYSHRL discrimination claims. (ECF No. 47 (“GSSC

Defs. Objs.”) at 4-9; ECF No. 48 (“Former Officer Defs. Objs.”) at

7.”1) When “a motion to dismiss is granted, the usual practice is

to grant leave to amend the complaint.” Hayden v. Cnty. of Nassau,

180 F.3d 42, 53 (2d Cir. 1999). The Court acknowledges Defendants’

arguments, has considered the thoroughness of the R&R’s analysis

of Plaintiffs’ Section 1981 and NYSHRL claims and notes that

Plaintiffs have previously had an opportunity to amend.

Nonetheless, the Court finds it would be appropriate to grant

Plaintiffs leave to amend their 42 U.S.C. § 1981 and NYSHRL § 296

discrimination claims against Defendants GSSC, Mastrota, and Brown

one final time, as the Court gleans from the insufficient facts in

the Amended Complaint that there is a reasonable possibility that

Plaintiffs’ claims could be saved by a final amendment. See, e.g.,

Pinyuk v. CBE Grp., Inc., No. 17-cv-5753 (RRM)(CLP), 2019 WL

1 Pin citations to ECF No. 48 refer to the pagination assigned by the Court’s

ECF/CMF system, as Former Officer Defendants did not paginate their objections.

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1900985, at *2 (E.D.N.Y. Apr. 29, 2019) ("Rule 15 expresses a

strong presumption in favor of allowing amendment.").

B. NYSHRL Retaliation Claim

As to Plaintiffs’ NYSHRL retaliation claim, on de novo review

the Court agrees with Magistrate Judge Lindsay that Plaintiffs

failed to address or oppose the Girl Scout Defendants’ motion to

dismiss the NYSHRL retaliation claim on the ground that Plaintiffs

failed to allege facts establishing a causal connection between

their alleged protected activity and the adverse employment

action. (GSSC Defs. Mem. at 22-23; R&R at 30-31; see also ECF No.

39 (“Former Officer Defs. Mem.”) at 9-10.) Plaintiffs’ NYSHRL

retaliation claim is dismissed with prejudice because Plaintiffs

failed to allege sufficient facts and have abandoned the claim by

failing to oppose Defendants’ motions to dismiss the claim. See,

e.g., Lipton v. Cnty. of Orange, NY, 315 F. Supp. 2d 434, 446

(S.D.N.Y. 2004) (“[The] Court may, and generally will, deem a claim

abandoned when a plaintiff fails to respond to a defendant's

arguments that the claim should be dismissed.”); see also W. Bulk

Carriers KS v. Centauri Shipping Ltd., No. 11-cv-5952 (RJS), 2013

WL 1385212, at *3 n.4 (S.D.N.Y. Mar. 11, 2013) (same) (collecting

cases).

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C. Section 1981 Retaliation Claim; Hostile Work Environment

Claims

As to Plaintiffs’ purported Section 1981 retaliation and

hostile work environment claims, the R&R recommended against

dismissal because the Girl Scout Defendants’ motion “fails to

address pleading deficiencies” in both claims. (R&R at 21 n.3,

29.) The R&R also determined that Plaintiffs’ purported hostile

work environment claim under the NYSHRL should remain because

“Defendants have not moved to dismiss [the] claim.” (R&R at 31.)

Defendants objected to this determination partly on the grounds

that, based on the Amended Complaint, they did not have sufficient

notice that Plaintiffs were asserting these claims. (GSSC Defs.

Objs. at 11-12; Former Officer Defs. Objs. at 9-11.)

On de novo review, the Court finds that, even assuming

arguendo that Plaintiffs asserted these claims, they should be

dismissed with prejudice and without leave to amend.

i. Section 1981 Retaliation Claim

As to Plaintiffs’ purported Section 1981 retaliation claim,

the Court finds on de novo review that Plaintiffs have not and

cannot set forth a “causal connection between the protected

activity and the adverse employment action,” as required to state

this claim. Cardwell v. Davis Polk & Wardwell LLP, No. 1:19-CV-

10256-GHW, 2020 WL 6274826, at *30 (S.D.N.Y. Oct. 24, 2020) (citing

Shultz v. Congregation Shearith Israel of City of N.Y., 867 F.3d

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298, 309 (2d Cir. 2017) (citation omitted)). Specifically,

Plaintiffs’ allegations make clear that they were not terminated

until June 22, 2021, almost a year after sending their July 2020

letter to the GSSC Board and Executive Committee, the purported

protected activity. (Am. Compl. ¶¶ 40, 201.) It is well-settled

that “the passage of too much time between the protected activity

and the adverse employment activity negates any inference that the

latter was in retaliation for the former.” See Williams v. City

of New York, No. 11-cv-9679 (CM), 2012 WL 3245448, at *11 (S.D.N.Y.

Aug. 8, 2012); De Figueroa v. New York, 403 F. Supp. 3d 133, 157

(E.D.N.Y. 2019) (noting that “most courts in the Second Circuit

have held that a lapse of time beyond two or three months will

break the causal inference”). Moreover, in March 2021, Plaintiffs

themselves requested that they were “seek[ing] to negotiate their

separation from” GSSC. (ECF No. 31-3 at 2-3 (Plaintiffs stating

they were “seek[ing] an amicable separation”).2) The Amended

Complaint makes clear that Plaintiffs and GSSC discussed

Plaintiffs’ separation and proposed settlement offer multiple

times and over the course of several months. (Am. Compl. ¶¶ 132,

2 Girl Scout Defendants properly attached Plaintiffs’ March 2021 letter to their

motion to dismiss. (ECF No. 31-3.) The Court finds that this letter is properly

incorporated into, and integral to, the Amended Complaint via reference by

Plaintiff (Am. Compl. ¶ 132), and thus, the Court may consider it when deciding

the instant motions to dismiss. Nicosia v. Amazon.com, Inc., 834 F.3d 220,

230–31 (2d Cir. 2016) (holding that courts may consider on a motion to dismiss

“any written instrument attached to [the complaint] as an exhibit or any

statements or documents incorporated in it by reference” and other documents

“integral” to the complaint).

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136-37.) Accordingly, Plaintiffs’ Section 1981 retaliation claim

is dismissed for failure to state a claim, with prejudice and

without leave to amend, as such amendment would be futile for the

reasons set forth herein. See, e.g., Cuoco v. Moritsugu, 222 F.3d

99, 112 (2d Cir. 2000) (“The problem with [plaintiff’s] causes of

action is substantive; better pleading will not cure it.

Repleading would thus be futile.”).

ii. Section 1981 and NYSHRL Hostile Work Environment Claims

To establish a hostile work environment claim under either

Section 1981 or the NYSHRL, “a plaintiff must allege facts

plausibly demonstrating that ‘the workplace is permeated with

discriminatory intimidation, ridicule, and insult that is

sufficiently severe or pervasive to alter the conditions of [his]

employment and create an abusive working environment.’” Morren v.

New York Univ., UCATS Local 3882, No. 20-cv-10802 (JPO)(OTW), 2022

WL 1666918, at *17 (S.D.N.Y. Apr. 29, 2022) (citing Littlejohn v.

City of New York, 795 F.3d 297, 320 (2d Cir. 2015)), report and

recommendation adopted, No. 20-CV-10802 (JPO), 2022 WL 1665013

(S.D.N.Y. May 25, 2022). Plaintiffs’ allegations, individually or

collectively, (see, e.g., ECF No. 52 (“Pls. Resp.”) at 10-11) do

not “support a finding of hostile work environment that is so

severe or pervasive as to have altered the conditions of

[plaintiffs’] employment.” See Littlejohn, 795 F.3d at 321.

Plaintiffs’ hostile work environment claims under § 1981 and the

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NYSHRL are accordingly dismissed with prejudice and without leave

to amend. The Court finds that any amendment would be futile,

particularly as it appears from the face of the Amended Complaint

that any underlying incidents were not “sufficiently continuous

and concerted in order to be deemed pervasive.” Id. Further,

“[h]ostile work environment claims are meant to protect

individuals from abuse and trauma that is severe. They are not

intended to promote or enforce civility, gentility or even

decency.” Morren, 2022 WL 1666918, at *17 (citation omitted).

VI. Count Seven: NYLL § 198

Plaintiffs object to the R&R’s recommendation that their NYLL

§ 198 claim be dismissed with prejudice, arguing that the R&R

omitted certain allegations in the Amended Complaint. (Pls. Objs.

at 26.) On de novo review, the Court agrees with and adopts

Magistrate Judge Lindsay’s recommendation. Plaintiffs rely

heavily on their allegation that Defendant GSSC failed to pay

Plaintiffs “their complete salaries for the pay cycle in which

Plaintiffs were terminated, despite a pattern or practice of paying

separated employees for the full ten (10) day pay cycle in which

they worked when terminated.” (Am. Compl. ¶ 151.) Nowhere in

their papers do Plaintiffs assert they were not paid for days or

time they actually worked. At best, Plaintiffs allege they were

terminated within a pay cycle and then were not paid for that

complete cycle, despite an alleged “pattern or practice” or “GSSC’s

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history of treating people” of paying terminated employees for a

complete pay cycle. (Am. Compl. ¶¶ 151-52.) Plaintiffs cite no

authority warranting a finding that this vague circumstance states

a viable claim under NYLL § 198, nor are there facts that could be

alleged that would salvage Plaintiffs’ claims to be paid for work

they did not perform during their last pay period. The Court

accordingly adopts the R&R’s recommendation that this claim be

dismissed with prejudice without leave to amend.

VII. Count Eight: Whistleblower Acts

Plaintiffs object to the R&R’s finding that they have failed

to state a retaliation claim under the Federal False Claims Act

(the “FCA”), 31 U.S.C. §§ 3729 et seq., and the New York False

Claims Act (the “NYFCA”), N.Y. State Fin. Law §§ 187 et seq. The

R&R recommended that these claims be dismissed with prejudice and

without leave to amend. Plaintiffs’ objections largely

regurgitate allegations in the Amended Complaint without providing

additional arguments or authority.

On de novo review, the Court adopts the R&R’s well-reasoned

findings and analysis dismissing with prejudice Plaintiffs’ claims

under the FCA and NYFCA. Plaintiffs have not alleged sufficient

facts to plausibly claim that the GSSC’s CARES Act application

contained false information. Moreover, Plaintiffs have not

alleged, nor does it appear they could allege, that their

activities were directed at exposing or deterring fraud on the

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government. Further, the Court adopts the R&R’s recommendation

that, to the extent Plaintiffs intended to assert their FCA and

NYFCA claims against any defendants besides Defendant GSSC, such

claims are dismissed with prejudice. Courts in this Circuit “have

repeatedly held that there is no individual liability under the

FCA and the New York FCA.” Krause v. Eihab Hum. Servs., Inc., No.

10-CV-898 (RJD)(SMG), 2015 WL 4645210, at *16 (E.D.N.Y. Aug. 4,

2015); see also McKoy v. Uliss, No. 17-CV-3398 (BMC), 2017 WL

2963456, at *2 (E.D.N.Y. July 11, 2017) (collecting cases).

CONCLUSION

Based on the foregoing reasons and upon de novo review

as necessary, the parties’ objections are overruled, and the Court

adopts Magistrate Judge Lindsay’s thorough and well-reasoned

recommendations as follows:

1. GRANTING Defendants’ motion to dismiss

Plaintiffs’ NLRA claim for lack of subject

matter jurisdiction, without prejudice, and

without leave to amend;

2. GRANTING Defendants’ motion to dismiss

Plaintiffs’ N-PCL claims with prejudice and

without leave to amend;

3. GRANTING Defendants’ motion to dismiss

Plaintiffs’ NYLL claims with prejudice and

without leave to amend;

4. GRANTING Defendants’ motion to dismiss

Plaintiffs’ Section 1981 and NYSHRL

discrimination claims, with leave to amend.

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5. GRANTING Defendants’ motion to dismiss

Plaintiffs’ FCA and NYFCA claims with

prejudice and without leave to amend.

The Court also makes the following modification to the R&R:

6. DISMISSING Plaintiffs’ retaliation and

hostile work environment claims under

Section 1981 and NYSHRL, with prejudice and

without leave to amend;

In light of this Memorandum & Order, Plaintiffs may file

a Second Amended Complaint in compliance with this Memorandum &

Order no later than Friday, October 13, 2023.

SO ORDERED.

oS

Spo

DATED: September 28, 2023 Hon. Kiyo A. Matsumoto

Brooklyn, New York United States District Judge

Eastern District of New York

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