Tozzi v. Daleview Care Center et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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NICOLE TOZZI,
Plaintiff,
-against-
DALEVIEW CARE CENTER d/b/a MMR CARE
CORP.; SYLVIA BLACKMON; and MICHAEL
OSTREICHER,
Defendants.
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MEMORANDUM & ORDER
24-CV-3741 (EK)(ST)
ERIC KOMITEE, United States District Judge:
Plaintiff Nicole Tozzi worked as the Director of
Social Services at Daleview Care Center. 	She alleges that
Daleview and its leadership retaliated against her for
complaining about unsafe patient care practices in violation of
New York Labor Law Sections 740, 741, and 215. 	She also alleges
that she was demoted (and constructively terminated) because she
became pregnant.
Tozzi asserts three claims under Title VII of the
Civil Rights Act of 1964: for gender discrimination, pregnancy
discrimination, and retaliation. 	She also brings analogous
state-law claims, along with her Section 740, 741, and 215
claims and a state-law claim for unequal pay. 	Daleview now
moves to dismiss Tozzi’s unequal pay and Section 740, 741, and
215 claims. 	It does not seek to dismiss Tozzi’s federal claims.
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For the reasons outlined below, the motion to dismiss is granted
in part.
Background
The Court draws the following facts from the
complaint. 	They are presumed true for the purpose of this
order. 	Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
A. 	Tozzi Reports Allegedly Unsafe Practices
Tozzi began work at Daleview in November 2020. 	Compl.
¶ 40, ECF No. 1. 	Daleview is a “senior care facility” in
Farmingdale, New York. 	Id. ¶ 15. 	Tozzi’s role “entailed
listening to and effectively addressing patient and patient
family grievances.” 	Id. ¶ 51.
Shortly after she started work, Tozzi began receiving
complaints from patients’ families about unsafe patient
practices at Daleview. 	Id. ¶ 52. 	The complaints concerned,
among other things: (1) Daleview’s practice of “double
diapering” patients to minimize diaper changes; (2) employees’
failure to address chronic bedsores; (3) employees’ failure to
maintain safe bed positions for tube-fed patients; (4)
employees’ refusals to instruct patients about their medications
or care; and (5) delayed response times to patient alarms. 	Id.
¶¶ 54, 81. 	Tozzi observed some of these practices herself. 	Id.
¶ 54.
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Tozzi informed her supervisor — defendant Blackmon —
about these practices during her team’s morning meeting. 	Id.
¶¶ 55-56. 	Blackmon responded by “abruptly cutting her off and
dismissing her concerns.” 	Id. ¶ 57. 	Tozzi also informed
Daleview’s director of nursing (who is not a party to this
action) about these alleged practices, only for the director to
respond that “[s]ocial working doesn’t oversee nursing.” 	Id.
¶¶ 58-59. 	Tozzi continued to protest the allegedly unsafe
practices through at least December 2021. 	Id. ¶¶ 73, 80. 	At
that time, Blackmon “warned [her] to keep her mouth shut” and
said that if she did not like Daleview’s practices, she could
“use the door.” 	Id. ¶¶ 83-84.
Tozzi also expressed concerns about Daleview’s billing
practices. 	In March 2022, Blackmon and the facility’s owner
(defendant Ostreicher) asked Tozzi to “‘dumb down’ the
psychological test administered to patients to make it appear as
though the patients were depressed.” 	Id. ¶¶ 101, 104. 	This
would, according to Tozzi, have allowed Daleview to “bill
Medicare for services that patients did not even need.” 	Id.
¶ 105. 	Tozzi refused, at which point Ostreicher became
“increasingly cold and resentful towards her.” 	Id. ¶¶ 106, 109.
B. 	Tozzi Becomes Pregnant
When Tozzi initially interviewed with Daleview in
November 2020, she told Blackmon that she was “single and [did
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not] have any children.” 	Id. ¶ 38. 	This statement left
Blackmon “noticeably relieved.” 	Id. ¶ 39. 	However, several
months after joining, Tozzi told Blackmon that she planned to
become pregnant via a sperm donor. 	Id. ¶ 60. 	She eventually
became pregnant sometime in the fall of 2021. 	Id. ¶¶ 71, 73-74.
In January 2022, Tozzi learned that she was at risk of
a pregnancy complication called vasa previa. 	Id. ¶ 85. 	So, she
asked Blackmon to excuse her from “some of her physical job
functions, like assisting patient transfers by pushing the
wheelchairs.” 	Id. ¶¶ 88. 	She also informed Blackmon that “her
work might be somewhat impacted as she also could not be under
stress or perform activities that raised her blood pressure.”
Id. ¶ 89. 	Blackmon agreed to the requested accommodations. 	Id.
¶ 91.
However, Tozzi alleges that shortly after Blackmon
approved the work accommodations, she commenced a “campaign of
retaliation” against Tozzi. 	Id. ¶ 91. 	This “campaign” included
refusing to meet with Tozzi; “sarcastically call[ing] great
attention” to Tozzi’s pregnancy; inquiring about Tozzi’s health
in an “exaggerated, dramatic, and insincere tone”; “regularly
touch[ing]” Tozzi’s stomach; and “asking [Tozzi] what the big
deal was” in response to questions about maternity leave. 	Id.
¶¶ 92-102. 	Tozzi alleges similarly unwelcome behavior by other
Daleview employees. 	For example, she alleges that Blackmon’s
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assistant mimicked punching Tozzi’s stomach and joked (within
earshot of Blackmon) about pushing Tozzi down the stairs. 	Id.
¶¶ 114-19.
C. 	Tozzi Is Demoted and Eventually Resigns
On April 1, 2022, Blackmon told Tozzi that she would
be demoted upon returning from maternity leave, and that her
salary would be reduced one month after she returned from leave.
Id. ¶¶ 120, 125. 	Blackmon said that that Tozzi was an
“excellent and smart [s]ocial [w]orker who fought for the
residents,” but that she would nevertheless return as a “Staff
Social Worker” rather than the Director of Social Services. 	Id.
¶¶ 123-24. 	Blackmon also told Tozzi that she “could be telling
[her she was] fired,” but had opted for demotion instead. 	Id.
¶ 124. 	When Tozzi asked why she was being demoted, Blackmon
said Tozzi had made several unnamed coworkers feel
“uncomfortable.” 	Id. ¶ 128.
Blackmon provided a more detailed explanation in a May
26 follow-up email to Tozzi. 	Id. ¶ 132. 	There, she wrote that
Tozzi’s discussion of “personal and private business in the
workplace was . . . unprofessional.” 	Id. 	She added that there
were “several reasons” for Tozzi’s demotion, including “family
complaints, staff complaints, resident complaints, and the fact
that [Blackmon had] had to speak to [Tozzi] too many times
regarding [her] work performance.” 	Id. 	She closed by remarking
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that Tozzi was a “good [s]ocial [w]orker just not the right fit
for the [Social Work] Director position at Daleview.” 	Id.
Tozzi alleges that — by retroactively adding to her explanation
for Tozzi’s demotion — Blackmon was “trying to cover her
tracks.” 	Id. ¶ 133.
Tozzi received a letter confirming her demotion on
August 18, 2022. 	Id. ¶ 135. 	She resigned roughly one month
later, id. ¶ 136, and filed this action on May 23, 2024.
Legal Standard
To survive a motion to dismiss under Rule 12(b)(6), a
complaint must contain “sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).1 	The plaintiff must
show “more than a sheer possibility that a defendant has acted
unlawfully.” 	Id. 	Instead, the facts pleaded must “be enough to
raise a right to relief above the speculative level.” 	Twombly,
550 U.S. at 555. 	A pleading that offers “labels and
conclusions” or “a formulaic recitation of the elements of a
cause of action” is not sufficient. 	Iqbal, 556 U.S. at 678.
Discussion
The defendants move to dismiss four of Tozzi’s New
York Labor Law claims. 	These are her retaliation claims under
1 Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits all citations, footnotes, and internal
quotation marks.
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Sections 740, 741, and 215 of that law, as well as her pay-
discrimination claim under the New York Equal Pay Act (codified
at Section 194 of the Labor Law). 	We address each of those
claims in turn.
A. 	The Section 740 Claim
Section 740 provides that “[a]n employer shall not
take any retaliatory action against an employee” who “discloses,
or threatens to disclose to a supervisor or to a public body an
activity, policy or practice of the employer that the employee
reasonably believes is in violation of law, rule or regulation
or that the employee reasonably believes poses a substantial and
specific danger to the public health or safety.” 	N.Y. Lab. Law
§ 740(2)(a). 	As relevant here, a plaintiff bringing such a
claim must allege facts in support of three elements: (1) that
she disclosed or threatened to disclose to her supervisor; (2) a
policy or practice she reasonably believed posed a “substantial
and specific danger to the public health or safety”; and (3)
that she suffered an adverse employment action as a result.
Id.; Duarte v. St. Barnabas Hosp., 265 F. Supp. 3d 325, 353-54
(S.D.N.Y. 2017). 	Any such claim must be brought within two
years of the adverse employment action. 	N.Y. Lab. Law §
740(4)(a).
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1. 	Tozzi’s Section 740 Claim Is Timely
Daleview first argues that Tozzi’s Section 740 claim
is time-barred, because she has not plausibly alleged an adverse
employment action that occurred within two years of the filing
of this action. 	E.g., Ellul v. Congregation of Christian Bros.,
774 F.3d 791, 798 n.12 (2d Cir. 2014) (“[A] statute of
limitations defense may be decided on a Rule 12(b)(6) motion if
the defense appears on the face of the complaint.”). 	Tozzi
responds that her demotion and her “constructive termination”
both render the Section 740 claim timely. 	Pl.’s Br. in Opp’n 4,
ECF No. 16.2 	Tozzi is right, but only as to the alleged
constructive discharge.
We start with the demotion. 	A demotion accompanied by
a reduced salary is an adverse employment action. 	E.g., Lefort
v. Kingsbrook Jewish Med. Ctr., 203 A.D.3d 708, 710 (App. Div.
2d Dep’t 2022). 	Importantly, though, a Section 740 claim based
on a demotion accrues when the employer notifies the defendant
about the demotion, not when the demotion happens. 	See
Queensborough Comm. Coll. v. State Human Rights App. Bd., 363
N.E.2d 349, 350 (N.Y. 1977) (“The act of giving complainant
2 Tozzi does not appear to argue in her brief that any other workplace
incidents — such as her personality conflicts with Blackmon — amount to
adverse employment actions. 	Nor could she, given that that “[e]veryday
workplace grievances, disappointments, and setbacks do not constitute adverse
employment actions.” 	LaGrande v. DeCrescente Distrib. Co., 370 F. App’x 206,
211 (2d Cir. 2010). 	The same goes for “verbal abuse” and “negative or
otherwise insulting statements.” 	Scott v. City of N.Y. Dep’t of Correction,
641 F. Supp. 2d 211, 231 (S.D.N.Y. 2009) (collecting cases).
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notice that she would not be reappointed gave rise immediately
to a cause of action . . . and therefore started the running of
the limitation period.”); Dykstra v. Wyeth Pharms., Inc., 454 F.
App’x 20, 22-23 (2d Cir. 2012) (applying Queensborough to a
Section 740 claim). 	Here, Blackmon notified Tozzi about her
demotion on April 1, 2022 — more than two years before Tozzi
filed this action. 	Compl. ¶ 120. 	Accordingly, a Section 740
claim based on Tozzi’s demotion is time-barred.
The constructive discharge allegation, in contrast,
survives. 	To plausibly allege constructive discharge, the
plaintiff must allege that the defendant “intentionally” created
working conditions “so difficult or unpleasant that a reasonable
person in the employee’s shoes would have felt compelled to
resign.” 	Serricchio v. Wachovia Sec. LLC, 658 F.3d 169, 185 (2d
Cir. 2011). 	A demotion, “particularly one that is accompanied
by a significant loss of salary, prestige or responsibilities,”
can give rise to a plausible allegation of constructive
discharge. 	Bright-Asante v. Saks & Co., 242 F. Supp. 3d 229,
243 (S.D.N.Y. 2017); see also Penn. State Police v. Suders, 542
U.S. 129, 134 (2004) (plaintiff may claim constructive discharge
based on “employer-sanctioned adverse action officially changing
her employment status or situation,” including a “humiliating
demotion”). 	Here, Tozzi alleges that she was demoted from
supervising all social workers at Daleview to working as a staff
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social worker, that the demotion came with a loss of pay, and
that Blackmon impliedly threatened to fire her if she did not
accept the demotion. 	Compl. ¶¶ 120, 124-25, 132, 135. 	That is
enough to plausibly allege constructive discharge at this stage.
Because Tozzi has plausibly alleged constructive
discharge, the Section 740 claim is timely. 	A retaliation claim
based on constructive discharge accrues when the employee
notifies her employer that she intends to resign. 	Green v.
Brennan, 578 U.S. 547, 563 (2016); see also Flaherty v.
Metromail Corp., 235 F.3d 133, 138 (2d Cir. 2000) (“We think
that the date Flaherty’s claim accrued was the date when she
gave definite notice of her intention to retire, and the rule
should be the same in all cases of constructive discharge.”);
Kornmann v. City of N.Y. Bus. Integrity Comm’n, 467 F. Supp. 3d
54, 60 (E.D.N.Y. 2020) (“[W]hen the adverse employment action is
a constructive discharge, the employee holds the key to when his
claim accrues . . . .”). 	Tozzi told Daleview she would resign
on September 20, 2022, around twenty months before filing this
action. 	Compl. ¶ 136. 	Thus, her Section 740 claim is timely.
2. 	Tozzi Plausibly Alleges a Section 740 Claim
a. 	Tozzi Plausibly Reported Threats to Public Safety
On the merits, Daleview argues that Tozzi did not
disclose to Daleview any practices that she “reasonably
believe[d] pose[d] a substantial and specific danger to the
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public health or safety.” 	N.Y. Lab. Law § 740(2)(a). 	This
argument has two bases. 	First, Daleview suggests that Tozzi
lacked first-hand knowledge about the challenged practices, and
therefore cannot have reasonably believed that they threatened
public safety. 	Second, Daleview asserts that the challenged
practices only affected individual patients, not the public at
large.
The first argument fails on both the law and the
alleged facts. 	Section 740 does not require first-hand
knowledge about the challenged practices. 	Rodgers v. Lenox Hill
Hosp., 211 A.D.2d 248, 251-52 (App. Div. 1st Dep’t 1995). 	And
in any event, Tozzi alleges that she observed some of the
challenged practices. 	Compl. ¶ 54.
The second argument is also unavailing. 	Daleview is
right that, to fall within the scope of Section 740, a
challenged practice must threaten the safety of the “public at
large.” 	See Kern v. DePaul Mental Health Servs., Inc., 152
A.D.2d 957, 958 (App. Div. 4th Dep’t 1989). 	But a plaintiff
need not allege that the challenged misconduct was a “large-
scale threat” with “multiple potential or actual victims.”
Villarin v. Rabbi Haskel Lookstein Sch., 96 A.D.3d 1, 7 (App.
Div. 1st Dep’t 2012). 	Even where the plaintiff alleges “only
one mishap,” alleged misconduct is cognizable under Section 740
if it represents an “inherently dangerous practice” that “might
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recur” in the future. 	Id. at 6-8; see also Rodgers, 211 A.D.2d
at 253.
Here, Tozzi alleges that Daleview employees
consistently failed to address bedsores or to maintain tube-fed
patients in appropriate positions. 	E.g., Compl. ¶ 54. 	In other
words, she alleges patterns of “inherently dangerous” behavior
that could conceivably affect other patients in the future. 	So,
she has sufficiently alleged that she challenged practices
within the ambit of Section 740.3
b. 	Tozzi Plausibly Alleges Causation
Daleview finally argues that Tozzi has not plausibly
alleged a causal connection between her complaints about
Daleview’s workplace practices and any adverse employment
action. 	The Court disagrees.
A Section 740 plaintiff must allege a “causal
connection” between the disclosure of unsafe practices and the
adverse employment action. 	Klein v. Brookhaven Health Care
Facility, No. 23-CV-7771, 2024 WL 5074485, at *2 (2d Cir. Dec.
11, 2024), cert. denied, 145 S. Ct. 1971 (2025). 	The plaintiff
3 	Though the parties do not press this issue in their briefing, Section
740 also prohibits retaliation based on an employee’s refusal to participate
in an activity or practice that threatens public safety. 	N.Y. Lab. Law §
740(c). 	Tozzi appears to allege that she was retaliated against for
declining to participate in a Medicare fraud scheme. 	Compl. ¶¶ 104-08.
However, Tozzi’s refusal to participate in the alleged fraud cannot form the
basis of a Section 740 retaliation claim, because New York courts have
consistently held that a healthcare provider’s “financial wrongdoing” does
not threaten public safety within the meaning of that statute. 	See Duarte,
265 F. Supp. 3d at 355 (collecting cases).
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may allege such a connection “indirectly . . . by showing that
the protected activity was closely followed in time by the
adverse employment action.” 	Gorman-Bakos v. Cornell Co-op
Extension of Schenectady Cnty., 252 F.3d 545, 554 (2d Cir.
2001); see also Rackley v. Contellis, LLC, No. 22-CV-4066, 2024
WL 3498718, at *31 (S.D.N.Y. June 17, 2024) (applying this rule
in the Section 740 context and collecting similar cases).
Tozzi has sufficiently alleged a causal connection
here. 	She complained about Daleview’s practices until at least
December 2021. 	Compl. ¶¶ 73, 80; see also id. ¶¶ 55 (Tozzi
“regularly objected” to Daleview’s care practices). 	And she was
notified of her demotion and pay cut — the events that triggered
her alleged constructive discharge, see Compl. ¶ 136 — in April
2024. 	Id. ¶ 120. 	That is a four-month gap. 	Both federal and
New York courts have held that a four-month gap between
protected activity and adverse employment action can be
sufficient to plead causation. 	See, e.g., Summa v. Hofstra
Univ., 708 F.3d 115, 128 (2d Cir. 2013); Herskowitz v. State,
222 A.D.3d 587, 588 (1st Dep’t 2023).4
4 	The fact that Tozzi had lodged regular complaints, seemingly without
any retaliation by Daleview, does not change the outcome here. 	It is
plausible that Daleview simply waited for an “opportune time” — namely,
Tozzi’s impending departure for maternity leave — to “exact their
retaliation” and reshuffle the leadership of her team. 	See Espinal v. Goord,
558 F.3d 119, 129 (2d Cir. 2009); see also Carmody v. New York Univ., No. 21-
CV-8186, 2023 WL 5803432, at *8 (S.D.N.Y. Sept. 7, 2023) (justifying denial
of summary judgment on Title VII retaliation claim by noting that the
plaintiff’s “long-running” complaints did not “prevent a causal inference”).
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B. 	The Section 741 Claim
To state a retaliation claim under Section 741, a
plaintiff must allege (1) that they are a health care
“employee”; (2) that they disclosed or threatened to disclose an
activity, policy, or practice; and (3) that they reasonably
believed the activity, policy, or practice constituted “improper
quality of patient care.” 	Reddington v. Staten Island Univ.
Hosp., 893 N.E.2d 120, 89-90 (N.Y. 2008); see also N.Y. Lab. Law
§ 741(2).
Tozzi does not plausibly allege that she was the type
of employee covered by Section 741. 	“[T]o be subject to the
special protections of [S]ection 741, an employee of a health
care provider must perform health care services, which means to
actually supply health care services, not merely to coordinate
with those who do.” 	Reddington, 893 N.E.2d at 91. 	The
complaint states only that Tozzi “listen[ed] to and effectively
address[ed] patient and patient family grievances.” 	Id. ¶ 51.
The complaint contains no allegation suggesting that Tozzi
provided those services herself. 	If anything, it implies
otherwise: Tozzi alleges that she responded to patient
complaints by “recommend[ing]” — not implementing — “solutions
to provide better care to . . . residents.” 	Id. ¶ 56. 	And it
offers specific examples of this dynamic. 	When faced with
complaints about medical care, Tozzi raised them with the
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director of nursing rather than ameliorating them herself. 	Id.
¶¶ 58-59. 	The director then “reminded” Tozzi that the Director
of Social Services did not “oversee nursing.” 	Id. ¶ 59.
In sum, the complaint suggests that Tozzi’s role was
to “coordinate with” employees who supplied medical care, not to
provide such care. 	Her Section 741 claim therefore must fail.
Reddington, 893 N.E.2d at 91.
C. 	The Section 215 Claim
To state a Section 215 retaliation claim, a plaintiff
must allege (1) that she complained to her employer; (2) about
conduct that she reasonably believed violated the New York Labor
Law or any order issued thereunder; and (3) suffered an adverse
employment action as a result. 	N.Y. Lab. Law § 215; see also
Kelly v. Xerox Corp., 256 A.D.2d 311, 312 (App. Div. 2d Dep’t
1998).
Tozzi has not stated a Section 215 claim, because she
does not allege a complaint falling within the scope of that
statute. 	Tozzi argues that she complained to Daleview about
potential violations of Sections 740 and 741 of the New York
Labor Law. 	Pl.’s Br. in Opp’n 12. 	But as detailed above,
Sections 740 and 741 prohibit retaliation by employers. 	Thus,
Tozzi could only have reasonably believed that those provisions
had been violated after the alleged retaliation had occurred.
Cf. Dinis v. New York City Dep't of Educ., No. 22-CV-7741, 2024
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WL 1208912, at *3 (S.D.N.Y. Mar. 21, 2024) (“It is axiomatic
that a retaliation claim cannot be based on an adverse action
taken before the protected activity.”). 	That means that the
earliest she could have complained about a violation of those
provisions was in April 2022, when she learned about her
impending demotion. 	Compl. ¶ 120. 	And nothing in the complaint
suggests that Tozzi objected to her demotion as retaliatory at
any point between April 2022 (when she learned about it) and
September 2022 (when she quit). 	So, the Section 215 claim must
be dismissed.
D. 	The Equal Pay Act Claim
To state a claim under the New York Equal Pay Act, a
plaintiff must allege that (1) “the employer pays different
wages to employees [outside the employee’s protected class]”;
(2) “the employees perform equal work on jobs requiring equal
skill, effort, and responsibility”; and (3) “the jobs are
performed under similar working conditions.” 	Ryduchowski v.
Port Auth. of New York & New Jersey, 203 F.3d 135, 142 (2d Cir.
2000); see also Rose v. Goldman, Sachs & Co., Inc., 163 F. Supp.
2d 238, 243 (S.D.N.Y. 2001) (state and federal equal-pay claims
are evaluated under the same standard).
Tozzi fails to state a claim under the Equal Pay Act,
because she does not allege that Daleview paid different wages
to non-pregnant employees who performed “equal work on jobs
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requiring equal skill, effort, and responsibility.” 	While she
alleges that Daleview never demoted or reduced the pay of “non-
pregnant co-workers who had not complained about unsafe /
unlawful employment practices,” Compl. ¶ 126, her complaint says
nothing about the skills or responsibilities of those non-
pregnant coworkers. 	And an Equal Pay Act claim is only
plausible if the plaintiff alleges “that the [comparator]
employees’ job content was substantially equal.” 	E.E.O.C. v.
Port Auth. of N.Y. & N.J., 768 F.3d 247, 254-55 (2d Cir. 2014).
Because Tozzi has not done so here, her Equal Pay Act claim is
dismissed.
Conclusion
For the foregoing reasons, the motion to dismiss is
granted in part and denied in part. 	Tozzi’s claim under Section
740 may proceed. 	The Section 741, Section 215, and Equal Pay
Act claims are dismissed without prejudice.
SO ORDERED.
/s/ Eric Komitee
ERIC KOMITEE
United States District Judge
Dated: 	January 27, 2026
Brooklyn, New York
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