# Zaki v. OTG Management LLC

> District Court, E.D. New York · December 23, 2024

URL: https://www.frixlaw.com/law-library/cases/10770288

## Case

- **Court:** District Court, E.D. New York
- **Decided:** December 23, 2024
- **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/10770288

## How later opinions describe it (automated extraction)

- explaining that “a district judge will not consider new arguments raised in objections to a magistrate judge’s report and recommendation that could have been raised before the magistrate but were not”
- noting that “[e]ven after Twombly,” courts “remain obligated to construe a pro se complaint liberally”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

MAY ZAKI,

Plaintiff,
MEMORANDUM & ORDER
– against – 23-cv-08189 (NCM) (PK)
OTG MANAGEMENT LLC, OTG JFK
T5 VENTURE, LLC, LAUNDRY,
DISTRIBUTION, AND FOOD SERVICE
JOINT BOARD, WORKERS UNITED,

Defendants.

NATASHA C. MERLE, United States District Judge:
This Court has received the Report and Recommendation (“R&R”) on the instant
case dated October 23, 2024, from the Honorable Peggy Kuo, United States Magistrate
Judge. ECF No. 87. Plaintiff timely objected to the R&R. For the reasons stated below, the
Court overrules plaintiff’s objections and adopts the R&R in its entirety.
BACKGROUND
Plaintiff initially brought this action against her former employer for alleged
discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et
seq.; the Age Discrimination in Employment Act of 1967, 28 U.S.C. §§ 621 et seq.; and the
Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12112 et seq. Compl. 1–4, ECF No. 1.1
After three previous amendments naming additional defendants—including defendants
Laundry, Distribution and Food Service Joint Board (“LDFSJB”) and the affiliated

1 Throughout this Order, page numbers for docket filings refer to the page numbers
assigned in ECF filing headers.
international, Workers United (together with LDFSJB, the “Union Defendants”)—
plaintiff indicated that she wished to bring additional claims. See R&R 2 (citing Pls.’s Ltr.,
ECF No. 63). At the Magistrate Judge’s direction, plaintiff moved for leave to file a fourth
amended complaint, seeking to add (i) a claim for “discrimination on the basis of gender,
age, national origin, color, and race” against the Union Defendants and (ii) additional

allegations regarding her claim for breach of the duty of fair representation (“DFR”)
against the Union Defendants. See R&R 4; Mot. Amend 2–3, ECF No. 64 (the “Motion”).
The Union Defendants opposed plaintiff’s Motion on the basis that the amendments
would be futile. Mot. Amend Opp’n 5, ECF No. 65 (the “Opposition”).
By R&R, Magistrate Judge Kuo recommended that the Court deny plaintiff’s
Motion insofar as it seeks to add any claims of discrimination against the Union
Defendants or seal witness names and grant plaintiff’s Motion insofar it seeks to add
factual allegations regarding the existing DFR claim and correct an erroneous date in one
of plaintiff’s existing allegations. R&R 14. Plaintiff timely objected to the R&R. Obj., ECF
No. 89 (the “Objection”). Defendants did not file an opposition to plaintiff’s Objection.
STANDARD OF REVIEW

There remains a debate as to whether a “motion to amend is considered dispositive
or non-dispositive for purposes of whether a Magistrate Judge’s ruling” should be
reviewed pursuant to Federal Rule of Civil Procedure 72(a) or (b), which the Second
Circuit has yet to resolve. Covet & Mane, LLC v. Invisible Bead Extensions, LLC, No. 21-
cv-07740, 2023 WL 6066168, at *5 (S.D.N.Y. Sept. 18, 2023) (noting that “the Second
Circuit has suggested in dicta and non-precedential opinions that a motion to amend is
non-dispositive, [but] it has yet to explicitly hold so”). Many courts split the difference: a
ruling denying a motion to amend is reviewed as a dispositive order pursuant to Rule
72(b), while a ruling granting a motion to amend is reviewed as a non-dispositive order
pursuant to Rule 72(a). See, e.g., Ashford Locke Builders v. GM Contractors Plus Corp.,
No. 17-cv-03439, 2020 WL 6200169, at *1 (E.D.N.Y. Oct. 22, 2020) (noting that “unless
the magistrate judge’s decision effectively dismisses or precludes a claim, thereby
rendering the motion to amend dispositive, motions for leave to amend are subject to

[non-dispositive] review”). Here, Magistrate Judge Kuo recommended denial of the
Motion as to plaintiffs’ discrimination claim. Accordingly, the Court reviews the R&R as
a dispositive ruling pursuant to Rule 72(b).
Under Rule 72(b), the Court reviews “de novo any part of the magistrate judge’s
disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3).2 “[M]erely
referring the court to previously filed papers or arguments does not constitute an
adequate objection” pursuant to Rule 72(b). Miller v. Brightstar Asia, Ltd., 43 F.4th 112,
120 (2d Cir. 2022); see also New York City Dist. Council of Carpenters v. Allied Design
& Constr., LLC, 335 F. Supp. 3d 349, 351 (E.D.N.Y. 2018) (“[O]bjections that are merely
perfunctory responses argued in an attempt to engage the district court in a rehashing of
the same arguments set forth in the original petition will not suffice to invoke de novo

review of the magistrate[ judge]’s recommendations.”). Nor will a court consider any
arguments not previously raised, but which could have been raised, before the magistrate
judge. Carpenters, 335 F. Supp. 3d at 351.
A district court reviews “[p]ortions of a report and recommendation that are not
properly objected to” for any “clear error on the face of the record.” Park v. Kim, No. 20-
cv-02636, 2022 WL 3643966, at *2 (E.D.N.Y. Aug. 24, 2022), aff’d, 91 F.4th 610 (2d Cir.

2 Throughout this Opinion, the Court omits all internal quotation marks, footnotes,
and citations, and adopts all alterations, unless otherwise indicated.
2024); see also Sosa v. New York City Dep’t of Educ., 368 F. Supp. 3d 489, 494 (E.D.N.Y.
2019) (“General or conclusory objections, or objections which merely recite the same
arguments presented to the magistrate judge, are reviewed for clear error.”). Nonetheless,
the Court must liberally construe a “document filed pro se,” and a “pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal

pleadings drafted by lawyers.” Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008).
DISCUSSION
Magistrate Judge Kuo found that plaintiff’s proposed amended claims against the
Union Defendants would be futile. See R&R 9, 12. Specifically, Magistrate Judge Kuo
concluded that plaintiff failed to exhaust her administrative remedies relating to her
proposed federal discrimination claims, and any such administrative remedies are now
time barred. R&R 9. As for any potential state discrimination claims, Magistrate Judge
Kuo found that plaintiff’s proposed amended complaint failed to state a claim for relief
because it included only “conclusory” allegations of discrimination by the Union
Defendants. R&R 12. Magistrate Judge Kuo also rejected plaintiff’s request to seal the
names of her co-workers based on the public’s right to access judicial documents. R&R

13–14.
Plaintiff timely objected to the R&R on two grounds: (i) she discovered facts
supporting a claim against the Union Defendants after she filed a charge with the EEOC
against her former employer, defendant OTG3; and (ii) the Union Defendants had
knowledge of her protected characteristics, refused to communicate regarding her
employer’s termination process, and failed to investigate terminations of employees

3 OTG JFK T5 Venture, LLC and OTG Management LLC are collectively referred to
as “OTG” in this Opinion.
similarly situated. Obj. 1. For the reasons stated below, the Court rejects these objections
after de novo review. Plaintiff did not object to Magistrate Judge’s Kuo’s recommendation
to deny sealing of witness names, see R&R 13–14, and defendant did not object to the
recommendation to allow plaintiff to correct a date in the third amended complaint, see
R&R 14. The Court finds no clear error as to these recommendations. Accordingly, the

Court adopts the R&R in its entirety.
I. Objection: Administrative Exhaustion
Plaintiff objects to the R&R on the basis that her “out of time discovery of facts
starting in August 2022 . . . occurred AFTER [she] filed [an] EEOC charge.” Obj. 1.
Plaintiff contends that this delay “caused me to lose the ability to check the box for union
discrimination” when submitting the EEOC charge in December 2022. Obj. 1. Upon its de
novo review, the Court finds that plaintiff’s failure to exhaust her federal discrimination
claims is unexcused and therefore agrees with Magistrate Judge Kuo in denying the
Motion on this ground.
Plaintiffs, whether proceeding pro se or counseled, must “exhaust [their]
administrative remedies before filing suit in federal court.” Fowlkes v. Ironworkers Loc.

40, 790 F.3d 378, 384 (2d Cir. 2015). The exhaustion requirement is a non-jurisdictional
precondition subject to equitable defenses. Id.; see also Fort Bend Cnty., Texas v. Davis,
587 U.S. 541, 550 (2019) (“Title VII’s charge-filing requirement is not of jurisdictional
cast.”). In other words, plaintiffs who “failed to file any administrative charge” or “filed a
charge with the proper agency, but failed to include the additional federal claim in the
charge” may raise a defense explaining why it would be fair for the Court to excuse their
failure to do so. Casseus v. New York Coll. of Health Pros., No. 15-cv-01914, 2016 WL
7029157, at *11 (E.D.N.Y. Nov. 10, 2016), report and recommendation adopted, 2016 WL
7017364 (E.D.N.Y. Dec. 1, 2016).
Equitable defenses include “waiver, estoppel, and equitable tolling.” Casseus, 2016
WL 7029157, at *11. Most such defenses apply in circumstances where, like here, a
plaintiff filed an EEOC charge “but failed directly to address” the claim she now seeks to

raise. Tillman v. Luray’s Travel, 137 F. Supp. 3d 315, 326 n.9 (E.D.N.Y. 2015). A plaintiff
may be excused from failing to exhaust her administrative remedies “where the claims:
(1) concern conduct that falls within the scope of an EEOC investigation that can
reasonably be expected to grow out of the charge; (2) allege retaliation for filing the
charge; or (3) concern further incidents of discrimination carried out in precisely the
same manner alleged in the charge.” Id. (citing Terry v. Ashcroft, 336 F.3d 128, 151 (2d
Cir. 2003)); see also Friel v. Cnty. of Nassau, 947 F. Supp. 2d 239 (E.D.N.Y. 2013).
Plaintiff’s contention that she discovered facts relating to her EEOC claim after
filing the charge does not indicate that she was subjected to retaliation for filing the charge
(the second Terry factor) or that further discrimination occurred in the same manner
after she filed the charge (the third Terry factor). See Obj. 1. Nor does the Court find

support for those factors on a liberal reading of plaintiff’s proposed amended complaint.
The proposed amended complaint alleges that “after OTG received [the] EEOC notice, on
De[c] 27, 2022 they alleged that I’m still employed full time and they have evidences to
prove that.” Proposed Am. Compl. 2, ECF No. 64-1. While that could arguably support
continuing discrimination or possibly retaliation after the charge, it neither supports
plaintiff’s Motion to add a discrimination claim against the Union Defendants (rather
than OTG) nor suggests discrimination in “precisely the same manner” as the charge
against OTG. See Tillman, 137 F. Supp. 3d at 326 n.9. Accordingly, the second and third
Terry factors are inapplicable.
However, the Court liberally construes plaintiff’s Objection to raise an equitable
defense falling into the first of the three Terry categories. Nonetheless, plaintiff’s
objection on this ground fails for two reasons.

As an initial matter, plaintiff’s Motion did not raise this argument regarding facts
discovered after filing the EEOC charge, despite citing to the proposed amended
complaint—which was attached to the Motion—in support of her objection. Obj. 1 (noting
“please see the exhibit attached to my complaint”). Plaintiff therefore could have, but did
not, raise this argument before the Magistrate Judge. For that reason alone, the Court
could reject plaintiff’s argument on this basis. See Carpenters, 335 F. Supp. 3d at 351
(explaining that “a district judge will not consider new arguments raised in objections to
a magistrate judge’s report and recommendation that could have been raised before the
magistrate but were not”).
But even if plaintiff had properly raised this argument in her Motion, it would still
fail as a matter of law. Plaintiff’s allegations that the Union Defendants discriminated

against her based on gender, age, national origin, color, and race would not necessarily
grow out of the EEOC’s investigation of plaintiff’s employer for discrimination based on
those protected characteristics. As Magistrate Judge Kuo correctly determined, the EEOC
charge does not reference or otherwise implicate the Union Defendants. R&R 8–9
(finding plaintiff “has not demonstrated a sufficient ‘identity of interest’ between the
Union Defendants and OTG,” nor did she “allege what the Union Defendants did or did
not do to discriminate against her, and how those actions or omissions were motivated by
discrimination as proscribed by federal law” in the body of the EEOC charge). In fact,
plaintiff indicated in the EEOC charge that she “d[id not] know what the union is.”
Proposed Am. Compl. 31, ECF No. 64-1. This is similar to the circumstance in Thomas v.
Buffalo Club, in which a district court rejected plaintiff’s equitable defense in part because
he did not know of the proposed additional defendant prior to discovery in the civil
litigation. Thomas v. Buffalo Club, No. 17-cv-1050, 2021 WL 716703, at *3 (W.D.N.Y. Feb.

24, 2021). Here, plaintiff contends that she learned of additional facts supporting a
discrimination claim against the Union Defendants sometime after she filed her EEOC
charge. Obj. 1. Yet plaintiff has not demonstrated that her claim against the Union
Defendants for discrimination would “fall[] within the scope of an EEOC investigation
that can reasonably be expected to grow out of the charge” she filed. Accordingly, her
failure to exhaust her administrative remedies is unexcused.
II. Objection: Allegations of Discrimination
Plaintiff also objects to the R&R’s recommendation regarding her potential state
or municipal discrimination claims against the Union Defendants. She implies that
Magistrate Judge Kuo failed to consider that her “union representative . . . has all my
information, including my name, race, national origin, gender, and age which is over 40”

and “has rejected [her] attempts to communicate with him regarding the shady
termination process as a Unionized employee.” Obj. 1. More specifically, plaintiff
contends that the “union often [does] not fight the layoffs or termination of those
employees or at least investigate their terminations.” Obj. 1. Because plaintiff provides no
basis to find that such arguments are based on factual allegations in the proposed
amended complaint, or that they would withstand a Rule 12 analysis, the Court rejects
plaintiff’s second basis for objecting to the R&R.
Magistrate Judge Kuo denied plaintiff’s Motion as to these claims on the basis that
she “has not alleged sufficient facts to avoid dismissal” of those claims and amendment
would therefore be “futile.” R&R 12. “Proposed amendments are futile if they would fail
to cure prior deficiencies or to state a claim under Rule 12(b)(6) of the Federal Rules of
Civil Procedure.” IBEW Loc. Union No. 58 Pension Tr. Fund & Annuity Fund v. Royal

Bank of Scotland Grp., PLC, 783 F.3d 383, 389 (2d Cir. 2015). As Magistrate Judge Kuo
correctly noted, “the standard for denying leave to amend based on futility is the same as
the standard for granting a motion to dismiss.” R&R 4 (citing IBEW, 783 F.3d at 389).
In order to survive a motion to dismiss, a plaintiff must state “a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A plaintiff pleads a plausible claim if she
alleges facts that allow the Court to reasonably infer that the defendant is legally
accountable for the actions described in the complaint. Matson v. Bd. of Educ. of City Sch.
Dist. of New York, 631 F.3d 57, 63 (2d Cir. 2011). The Court will not accept conclusory
statements, Iqbal, 556 U.S. at 678, but it will hold a pro se plaintiff’s pleadings “to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551

U.S. 89, 94 (2007) (per curiam); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009)
(noting that “[e]ven after Twombly,” courts “remain obligated to construe a pro se
complaint liberally”).
Here, plaintiff’s objection fails for two reasons. First, rather than put forth legal
arguments based on her proposed pleading, plaintiff’s Objection merely states new factual
allegations. Those allegations are absent from the proposed amended complaint. See R&R
10 (listing factual allegations in plaintiff’s proposed amended complaint). Second, even if
the Court were to construe plaintiff’s Objection as including proposed allegations—which
would be procedurally improper—the claims would still not survive the motion to dismiss
standard.
Even a liberal construal of plaintiff’s proposed amended complaint does not
support a discrimination claim against the Union Defendants. As Magistrate Judge Kuo
correctly reasoned, plaintiff’s allegations of discrimination present conclusory statements

that fail to “connect the Union Defendants’ action or inaction to illegal discrimination or
any discriminatory animus.” R&R 12. Plaintiff’s additional statements in the Objection do
not resolve that deficiency. Specifically, her allegations that the union representative
knew of her protected characteristics and rejected her communications, and that the
union does not investigate or defend layoffs for employees similarly situated, Obj. 1, are
again conclusory. That is, plaintiff’s proposed amended complaint, construed liberally to
include the statements contained in the Objection, does not provide a factual basis on
which the Court could find that the Union Defendants engaged in unlawful
discrimination. Accordingly, plaintiff’s proposed amendment fails to state a claim “that is
plausible on its face,” Iqbal, 556 U.S. at 678, and would therefore be futile.
CONCLUSION

For the reasons stated above, the Court adopts the R&R, in its entirety, as the
opinion of the Court pursuant to 28 U.S.C. § 636(b)(1). Plaintiff’s Motion is DENIED
insofar as plaintiff may not add any new claims of discrimination against the Union
Defendants or seal witness names and GRANTED insofar as she may amend the
operative complaint to include additional factual allegations concerning her claim against
the Union Defendants for breach of the duty of fair representation and correct the
erroneous date in paragraph 10 of the third amended complaint, ECF No. 37. Plaintiff
shall file an amended complaint in accordance with this Order by January 13, 2025.

SO ORDERED.

/s/ Natasha C. Merle
NATASHA C. MERLE
United States District Judge

Dated: December 23, 2024
Brooklyn, New York

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10770288. Public record. Not legal advice.