Marte v. Baywood Hotels-Canopy By Hilton, Ithaca et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
FRANCIS MARTE,
Plaintiff,
v. 	3:25-CV-0869
(GTS/DJS)
BAYWOOD HOTELS-CANOPY BY HILTON,
ITHACA; KATHY TAYLOR, in her individual
and official capacity; and TERI TARSHUS, in
her individual and official capacity,
Defendants.
_____________________________________________
APPEARANCES: 	OF COUNSEL:
FRANCIS MARTE
Plaintiff, Pro Se
320 West Buffalo Street, Apt. 113
Ithaca, NY 14850
BOND, SCHOENECK & KING, PLLC 	HOWARD M. MILLER, ESQ.
Counsel for Defendants 	SAMANTHA A. KNICE, ESQ.
68 South Service Road, Suite 400
Melville, NY 11747
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this employment civil rights action filed by Francis Marte
(“Plaintiff”) against Baywood Hotels-Canopy By Hilton, Ithaca (“Baywood”), Kathy Taylor, and
Teri Tarshus (collectively “Defendants”), is Defendants’ motion to dismiss Plaintiff’s Complaint
for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. Nos. 12, 13.) For the
reasons set forth below, Defendants’ motion is granted in part and denied in part.
I. 	RELEVANT BACKGROUND
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A. 	Plaintiff’s Complaint
Generally, in her Complaint, Plaintiff asserts seven claims: (1) claims of wage theft
pursuant to the Fair Labor Standards Act (“FLSA”) and, as the Court has liberally construed her
Complaint, the New York Labor Law; (2) claims for retaliation pursuant to both Title VII of the
Civil Rights Act of 1964 and the New York State Human Rights Law (“NYSHRL”) found at
N.Y. Exec. L. § 296; (3) claims for discrimination based on her sex, national origin, and injury
status pursuant to both Title VII and the NYSHRL; (3) claims for hostile work environment
based on her sex, national origin, and injury status pursuant to both Title VII and the NYSHRL;
(4) a claim for a violation of her constitutional rights pursuant to 42 U.S.C. § 1983; (5) claims for
whistleblower retaliation pursuant to N.Y. Lab. L. § 740; (6) claims for breach of
confidentiality/privacy pursuant to New York law; and (7) claims for wrongful termination
pursuant to New York law. (See generally Dkt. No. 1.)
B. 	Parties’ Briefing on Defendants’ Motion to Dismiss
1. 	Defendants’ Memorandum of Law
Generally, in their motion, Defendants make eight arguments. (Dkt. No. 16, Attach. 1.)
First, Defendants argue that Plaintiff has failed to state any claim of discrimination because (a)
she has not alleged any facts to render plausible her conclusory assertion that any discrimination
she experienced was because of her sex or ethnicity specifically, including no facts to plausibly
suggest that similarly situated coworkers of another sex or ethnicity were treated more favorably,
and (b) there is no cognizable cause of action for discrimination based on injury status at all
under Title VII and, as to the NYSHRL, the injury alleged here was only temporary and
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therefore could not qualify as a disability that would be entitled to protection under that statute.
(Id. at 13-18.)
Second, Defendants argue that Plaintiff’s NYSHRL claims fail because she has not
alleged that Defendants, as her employer, condoned or approved any of the alleged
discriminatory conduct engaged in by her coworkers or managers, and that such deficiency is
fatal because there is no vicarious liability based on a theory of respondeat superior permitted in
employment discrimination cases pursuant to the NYSHRL. (Id. at 18-20.)
Third, Defendants argue that Plaintiff’s hostile work environment claims must be
dismissed because (a) she has not provided sufficient allegations regarding the specific nature of
the alleged conduct, its frequency, or its duration, (b) she has not alleged, other than through
conclusory statements, that this conduct was because of her sex or ethnicity, and (c) as to her
NYSHRL claim, she has not alleged that she was treated less well than other employees through
the receipt of inferior terms, conditions, or privileges of employment. (Id. at 20-22.)
Fourth, Defendants argue that Plaintiff’s retaliation claims fail as a matter of law because
(a) causation is refuted by the fact that Defendants permitted Plaintiff to retract her notice of
resignation after she had already engaged in the alleged protected activity, (b) the four-month
gap between her protected activity of claiming worker’s compensation and her “demotion” is too
long to create a reasonable inference of retaliation, and (c) merely alleging that her employment
was terminated after she filed a grievance is, without more, insufficient to establish but-for
causation. (Id. at 23-25.)
Fifth, Defendants argue that Plaintiff has failed to state a claim for a violation of N.Y.
Labor Law § 740 because she has not alleged that any decisionmaker was actually aware of her
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alleged complaints or that the subject of her complaints was a violation that creates and presents
a substantial and specific danger to public health or safety as required by that statute. (Id. at 25-
27.)
Sixth, Defendants argue that Plaintiff’s claim pursuant to Section 1983 must be dismissed
because Defendants are not state actors and Plaintiff has not alleged (and cannot allege) that they
acted under the color of state law. (Id. at 27-28.)
Seventh, Defendants argue that Plaintiff’s wage theft claims must be dismissed because
her allegations are insufficiently detailed to meet the pleading requirements for an FLSA
violation, and Plaintiff has not alleged any violation of New York’s Wage Theft Protection Act
based on any failure to provide required wage notices. (Id. at 28-31.)
Eighth, Plaintiff’s claims pursuant to Title VII and N.Y. Labor Law § 740 must be
dismissed against the individual Defendants because those statutes do not provide for liability
against individuals. (Id. at 31.)
2. 	Plaintiff’s Opposition Memorandum of Law
Generally, in opposition to Defendants’ motion, Plaintiff makes six arguments. (Dkt. No.
20.) First, Plaintiff argues that her claims are supported by evidence including Defendants’ own
internal records, payroll statements, grievance results, and documented communications, and that
Defendants cannot merely assert that they cannot be held liable for the actions of their own
managers. (Id. at 3.)
Second, Plaintiff argues that evidence documents pay discrepancies, misclassification of
her job title, and a voided $6,000 paycheck, all of which substantiate a pattern of intentional
wage violations. (Id. at 5.)
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Third, Plaintiff argues that she has sufficiently alleged a causal connection between her
filing of a grievance on October 29, 2024, and her termination shortly after. (Id. at 6.)
Fourth, Plaintiff argues that she has stated a claim for hostile work environment and
gender discrimination because she has alleged that she experienced exclusion, intimidation, and
unequal treatment, and, while her complaints to management were ignored, male managers were
protected. (Id. at 7.)
Fifth, Plaintiff argues that her complaints on April 27, 2024, constitute protected activity
for the purposes of her whistleblower claim. (Id. at 8.)
Sixth, Plaintiff argues that, during the EEOC proceedings, Defendants made inconsistent
statements that constitute evidence of bad faith and an attempt to conceal discriminatory and
retaliatory conduct. (Id. at 9.)
3. 	Defendants’ Reply Memorandum of Law
Generally, in reply, Defendants make six arguments. (Dkt. No. 21.) First, Defendants
argue that Plaintiff’s Complaint fails to state a cause of action for discrimination because (a) it
rests wholly on unsupported conclusions that the conduct against her was motivated by a
protected characteristic, and (b) as argued in their initial memorandum of law, injury status
(much less as to an injury of a temporary nature) is not a protected characteristic and Plaintiff has
not challenged that argument. (Id. at 3-5.)
Second, Defendants argue that the NYSHRL does not impose vicarious liability upon
employers, and Plaintiff has not alleged any facts plausibly suggesting that Defendants
condoned, encouraged, or approved of any of the allegedly discriminatory conduct. (Id. at 5-6.)
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Third, Defendants argue that Plaintiff’s Complaint fails to state a cause of action for
hostile work environment because (a) she has failed to allege the duration, frequency, and
severity of the alleged conduct, (b) the conduct she has alleged is insufficient to rise to the level
of a hostile work environment, and (c) she has failed to plausibly allege how any such conduct
was related to her sex or ethnicity. (Id. at 6-7.)
Fourth, Defendants argue that Plaintiff’s Complaint fails to state a cause of action for
retaliation because (a) simply pleading that an adverse action occurred after a protected activity
is insufficient to survive a motion to dismiss, (b) as to her whistleblower claim, she has failed to
allege that Defendants were aware of the adverse action or that her complaints related to any
specific danger to the public health and safety, and (c) Plaintiff has not opposed the argument
asserting that the Section 1983 claim must be dismissed on the basis that Defendants are not state
actors. (Id. at 7-8.)
Fifth, Defendants argue that Plaintiff’s Complaint fails to state any wage theft claim
because (a) she appears to rely upon “exhibits” that were never attached to the Complaint or her
opposition memorandum of law, and (b) her allegations do not plausibly allege any overtime
work for which she was not paid related to an FLSA claim or that she never received wage
statements as required by New York law. (Id. at 8.)
Sixth, Defendants argue that Plaintiff’s claims against the individual Defendants pursuant
to Title VII and N.Y. Labor Law § 740 must be dismissed because Plaintiff has failed to oppose
their argument that those statutes do not provide for liability against individuals. (Id. at 9.)
II. 	GOVERNING LEGAL STANDARD
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It has long been understood that a dismissal for failure to state a claim upon which relief
can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds:
(1) a challenge to the “sufficiency of the pleading” under Fed. R. Civ. P. 8(a)(2); or (2) a
challenge to the legal cognizability of the claim. Jackson v. Onondaga Cty., 549 F. Supp.2d 204,
211 nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J.) (adopting Report-Recommendation on de novo
review).
Because such dismissals are often based on the first ground, some elaboration regarding
that ground is appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a
pleading contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2) [emphasis added]. In the Court’s view, this tension between
permitting a “short and plain statement” and requiring that the statement “show[]” an entitlement
to relief is often at the heart of misunderstandings that occur regarding the pleading standard
established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the “short and plain”
pleading standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F.
Supp. 2d at 212 n.20 (citing Supreme Court case). On the other hand, the Supreme Court has
held that, by requiring the above-described “showing,” the pleading standard under Fed. R. Civ.
P. 8(a)(2) requires that the pleading contain a statement that “give[s] the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it rests.” Jackson, 549 F. Supp. 2d at
212 n.17 (citing Supreme Court cases) (emphasis added).
The Supreme Court has explained that such fair notice has the important purpose of
“enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision
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on the merits” by the court. Jackson, 549 F. Supp. 2d at 212 n.18 (citing Supreme Court cases);
Rusyniak v. Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing
Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal”
notice pleading standard “has its limits.” 2 Moore’s Federal Practice § 12.34[1][b] at 12-61 (3d
ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding
that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F. Supp.
2d at 213 n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an
appellate decision holding that a complaint had stated an actionable antitrust claim under 15
U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). In doing so, the Court
“retire[d]” the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),
that “a complaint should not be dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him
to relief.” Twombly, 127 S. Ct. at 560-61, 577. Rather than turn on the conceivability of an
actionable claim, the Court clarified, the “fair notice” standard turns on the plausibility of an
actionable claim. Id. at 555-70. The Court explained that, while this does not mean that a
pleading need “set out in detail the facts upon which [the claim is based],” it does mean that the
pleading must contain at least “some factual allegation[s].” Id. at 555. More specifically, the
“[f]actual allegations must be enough to raise a right to relief above the speculative level [to a
plausible level],” assuming (of course) that all the allegations in the complaint are true. Id.
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As for the nature of what is “plausible,” the Supreme Court explained that “[a] claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for
relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged–but it has not
show[n]–that the pleader is entitled to relief.” Iqbal, 129 S. Ct. at 1950 (internal quotation marks
and citations omitted). However, while the plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully,” id., it “does not impose a probability
requirement.” Twombly, 550 U.S. at 556.
Because of this requirement of factual allegations plausibly suggesting an entitlement to
relief, “the tenet that a court must accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949.
Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement”
will not suffice. Iqbal, 129 S. Ct. at 1949 (internal citations and alterations omitted). Rule 8
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.
Finally, a few words are appropriate regarding what documents are considered when a
dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal
pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following matters outside the
four corners of the complaint may be considered without triggering the standard governing a
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motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer,
(2) documents incorporated by reference in the complaint (and provided by the parties), (3)
documents that, although not incorporated by reference, are “integral” to the complaint, or (4)
any matter of which the court can take judicial notice for the factual background of the case.1
III. 	ANALYSIS
A. 	Whether Plaintiff Has Stated a Claim Pursuant to Section 1983
1 	See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit to a
pleading is a part thereof for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, No. 10-573,
2011 WL 2135734, at *1 (2d Cir. June 1, 2011) (explaining that conversion from a motion to
dismiss for failure to state a claim to a motion for summary judgment is not necessary under Fed.
R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of [1] documents attached to the
complaint or answer, [2] documents incorporated by reference in the complaint (and provided by
the parties), [3] documents that, although not incorporated by reference, are “integral” to the
complaint, or [4] any matter of which the court can take judicial notice for the factual
background of the case); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010)
(explaining that a district court considering a dismissal pursuant to Fed. R. Civ. 12(b)(6) “may
consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and
documents incorporated by reference in the complaint. . . . Where a document is not
incorporated by reference, the court may nevertheless consider it where the complaint relies
heavily upon its terms and effect, thereby rendering the document ‘integral’ to the complaint. . . .
However, even if a document is ‘integral’ to the complaint, it must be clear on the record that no
dispute exists regarding the authenticity or accuracy of the document. It must also be clear that
there exist no material disputed issues of fact regarding the relevance of the document.”)
[internal quotation marks and citations omitted]; Chambers v. Time Warner, Inc., 282 F.3d 147,
152 (2d Cir. 2009) (“The complaint is deemed to include any written instrument attached to it as
an exhibit or any statements or documents incorporated in it by reference.”) (internal quotation
marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72
(2d Cir.1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or
incorporate by reference a [document] upon which it solely relies and which is integral to the
complaint,” the court may nevertheless take the document into consideration in deciding [a]
defendant's motion to dismiss, without converting the proceeding to one for summary
judgment.”) (internal quotation marks and citation omitted).
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After careful consideration, the Court answers this question in the negative for the
reasons stated in Defendants’ memoranda of law. See, supra, Parts I.B.1 and 3 of this Decision
and Order. To those reasons, the Court adds the following analysis.
“In order to state a claim under § 1983, a plaintiff must allege that he [or she] was injured
by either a state actor or a private party acting under the color of state law.” Ciambriello v. Cnty.
of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (citing Spear v. Town of West Hartford, 954 F.2d
63, 68 [2d Cir. 1992]). “A private actor may be liable under § 1983 only if there is a sufficiently
close nexus between the State and the challenged action that seemingly private behavior may be
fairly treated as that of the State itself.’” Sykes v. Bank of America, 723 F.3d 399, 406 (2d Cir.
2013) (quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295
[2001]).
Here, Plaintiff has not alleged that any of the Defendants were acting under the color of
state law when engaging in the relevant conduct against her, and there is nothing to suggest any
nexus between Defendants (who appear to consist of a private business and two of that
business’s employees) and a government entity related to any of the relevant conduct. Because
Plaintiff’s Complaint does not meet this core condition for stating a claim pursuant to Section
1983, such claim must be dismissed against all Defendants.
B. 	Whether Plaintiff Has Stated Claims for Discrimination and Hostile Work
Environment Based on Her Sex, National Origin, and/or Injury Status
After careful consideration, the Court answers this question in the negative for the
reasons stated in Defendants’ memoranda of law. See, supra, Parts I.B.1 and 3 of this Decision
and Order. To those reasons, the Court adds the following analysis.
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Where a plaintiff has asserted a discrimination (or hostile work environment) claim based
on a theory of disparate treatment (i.e., “where an employer has ‘treated a particular person less
favorably than others because of’ a protected trait”), he or she “must establish ‘that the defendant
had a discriminatory intent or motive’ for taking a job-related action.” Ricci v. DeStefano, 557
U.S. 557, 577 (2009) (quoting Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 985-86
[1988]). Specifically, on a motion to dismiss, a plaintiff must, as relevant here, allege facts to
plausibly suggest that the circumstances surrounding an alleged adverse action “give rise to an
inference of discrimination.” Banks v. Gen. Motors, LLC, 81 F.4th 242, 270 (2d Cir. 2023)
(quoting Weinstock v. Columbia Univ., 224 F.3d 33, 42 [2d Cir. 2000]).
As an initial matter, Defendants are correct that Plaintiff’s assertions that she was
discriminated against because of her “injury status” do not implicate a protected characteristic
under Title VII, which, by its explicit terms, prohibits discrimination based only on “race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). The NYSHRL does include
“disability” within its definition of protected characteristics, and that term is defined by the
statute as
(a) a physical, mental or medical impairment resulting from
anatomical, physiological, genetic or neurological conditions
which prevents the exercise of a normal bodily function or is
demonstrable by medically accepted clinical or laboratory
diagnostic techniques or (b) a record of such an impairment or (c) a
condition regarded by others as such an impairment, provided,
however, that in all provisions of this article dealing with
employment, the term shall be limited to disabilities which, upon
the provision of reasonable accommodations, do not prevent the
complainant from performing in a reasonable manner the activities
involved in the job or occupation sought or held.
N.Y. Exec. L. § 292(21).
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Other than having the above-quoted slightly more lenient definition of what constitutes a
disability, NYSHRL claims based on disability are generally subject to the same analysis as
claims pursuant to the Americans with Disabilities Act (“ADA”), which courts within this
Circuit have recognized was amended in 2008 to eliminate the duration requirement that an
impairment had to be “permanent or long term” to constitutes a disability, altering it to include
any qualifying impairment “lasting or expected to last less than six months.” Samuels v. Urban
Assembly Charter Sch. for Computer Sci., 23-CV-1379, 2024 WL 4008165, at *4-5 (S.D.N.Y.
Aug. 30, 2024) (quoting Hamilton v. Westchester Cnty., 3 F.4th 86, 92 [2d Cir. 2021]); see also
Crawford v. Bronx Cmty. College, 22-CV-1062, 2024 WL 3898361, at *13 (S.D.N.Y. Aug. 21,
2024) (finding no error in Magistrate Judge’s conclusion that the plaintiff’s temporary broken
ankle injury could qualify as a disability despite its short-term nature, including under the
NYSHRL); Staley v. Smart, 23-CV-3546, 2024 WL 3835518, at *10 (S.D.N.Y. July 30, 2024)
(noting that nothing in the definition of disability in the NYSHRL precludes it from including
impairments that are short-term and temporary). Indeed, the Second Circuit has affirmatively
stated that, pursuant to the ADA amendments, “a short-term injury can qualify as an actionable
disability under the ADA” as long as it meets the other requirements outlined in the relevant
definition of disability. Hamilton, 3 F.4th at 93-94.
Nevertheless, even if the seemingly temporary nature of Plaintiff’s injury is not an
outright bar for her discrimination and/or hostile work environment claims pursuant to the
NYSHRL, such claims ultimately fail here because Plaintiff’s Complaint contains no allegations
about the nature of her injury or its limiting effects from which it can be determined whether
such injury meets the definition of a disability pursuant to the NYSHRL, nor does it allege that
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any of the relevant discriminatory and/or harassing conduct occurred while she was still
suffering from the relevant injury. (See Dkt. No. 1, at 12 [alleging that the harassing conduct
began occurring after her recovery and after she returned to work from her medical leave].) In
the absence of such factual allegations about her alleged disability, her claim based on her
“injury” must be dismissed.
Plaintiff’s discrimination and hostile work environment claims based on her sex and
national origin pursuant to both Title VII and the NYSHRL also fail because Plaintiff has not
alleged facts plausibly suggesting that the allegedly discriminatory or harassing conduct was
taken against her for reasons related to her gender or ethnicity/national origin. As to her
ethnicity/national origin, the only relevant allegation that can be found in the Complaint is that
Plaintiff is Hispanic. (Dkt. No. 1, at 8.) However, there are no allegations to suggest the
ethnicities of the individuals who allegedly discriminated against her or that the treatment she
allegedly was subjected to was in any way motivated by the fact that she is Hispanic.
As to her sex, Plaintiff alleges that she is female and that, following her reports of a
workplace injury, her filing for worker’s compensation benefits, and her return from medical
leave related to that injury, male managers (particularly the kitchen manager and the bar
manager) began acting “uncomfortably” around her, and that male managers and “some
coworkers” subjected her to “increased hostility” by isolating her, reducing her shifts and
subjecting her to “unfair treatment.” (Dkt. No. 1, at 12-13.) In her opposition memorandum of
law, she further states that “[c]omplaints to management were ignored while male managers
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were protected.”2 (Dkt. No. 20, at 7.) However, the mere fact that the managers who engaged in
the alleged conduct against her happen to be male is insufficient to plausibly suggest that the
treatment was because of her sex. Moreover, to the extent Plaintiff appears to suggest that
discriminatory intent is shown by the fact that male managers were protected by Defendants
(who ignored her complaints), such allegations do not plausibly suggest discrimination based on
her sex because, in order to allege discrimination based on a theory of disparate treatment, a
plaintiff must generally allege that her employer “treated [her] less favorably than a similarly
situated employee outside [her] protected group.” Graham v. Long Island R.R., 230 F.3d 34, 39
(2d Cir. 2000). A similarly situated employee is one who is “similarly situated in all material
respects” to the plaintiff, which includes considerations such as whether that person and the
plaintiff worked in the same position, were supervised by the same manager, and engaged in
similar conduct. Graham, 230 F.3d at 39. There are no allegations to suggest that the relevant
male managers were similarly situated to Plaintiff; the fact that they were kitchen and bar
managers while Plaintiff was a “Housekeeping Supervisor” suggests that they are not. Plaintiff
also does not allege that any male employee made complaints similar to hers that were not
ignored by management. For these reasons, Plaintiff’s allegations are insufficient to state any
2 	Although a plaintiff is not typically permitted to amend his or her complaint through the
assertion of new facts in a responsive memorandum, the Court may consider such new
allegations in a situation where the plaintiff is pro se and those new allegations do not conflict
with or contradict the allegations in the Complaint. See Shih v. Broadway League, 23-CV-8035,
2024 WL 3928618, at *3 (S.D.N.Y. Aug. 20, 2024) (finding it appropriate to consider factual
assertions made in the pro se plaintiff’s opposition memorandum of law in light of the liberal
standard of construing a pro se litigant’s complaint); Braxton v. Nichols, 08-CV-8568, 2010 WL
1010001, at *1 & n.1 (S.D.N.Y. Mar. 18, 2010) (“[A]llegations made in a pro se plaintiff’s
memorandum of law, where they are consistent with those in the complaint, may also be
considered on a motion to dismiss.”) (collecting cases).
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claim that requires a showing that discrimination occurred specifically based on her sex (or, for
the reasons discussed previously, her ethnicity or national origin).
Moreover, as to Plaintiff’s hostile work environment claim pursuant to Title VII,
Plaintiff’s allegations in the Complaint fail to plausibly suggest that the conduct she was
allegedly subjected to was sufficiently severe or pervasive to create an objectively hostile work
environment (not merely one that she subjectively perceived to be hostile). Alfano v. Costello,
294 F.3d at 365, 373-74 (2d Cir. 2002). Specifically, Plaintiff alleges that the “hostile change in
the workplace environment” occurred after she returned from a medical leave related to an
injury,3 and that at that time male managers “acted uncomfortably” around her, that male
managers and “some coworkers” subjected her to “increased hostility,” such that she was
“isolated, given reduced shifts, and subjected to unfair treatment,” and the details of her
grievance about her harassment and wage issues were disclosed to her coworkers. (Dkt. No. 1, at
12-13.) She also alleges that she was not always paid at the hourly rate she was told when she
was hired (although it is not clear how often that occurred) and that she was “demoted” to a
lower pay rate of a dollar less per hour in October 2024 after she submitted a letter of resignation
that she later retracted. (Dkt. No. 1, at 12.) In her opposition memorandum of law, she
additionally alleges that she was subjected to “intimidation and unequal treatment.” (Dkt. No.
20, at 7.)
All of these allegations are simply too vague to plausibly suggest an objectively hostile
work environment. Apart from the fact that Plaintiff does not allege any specifics about what the
3 	Plaintiff alleges that she sustained the relevant injury on April 27, 2024, but does not
indicate when she returned to work. (Dkt. No. 1, at 12-13.)
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relevant conduct consisted of (i.e., what the relevant individuals actually did when they “acted
uncomfortably” or subjected her to “hostility” and “unfair treatment,” or in what way she was
isolated or excluded) apart from a reduction of her shifts, she also has not alleged anything about
the length of time this conduct occurred or how frequently. As was noted previously, it is not
clear when Plaintiff returned to work after her medical leave or how much time elapsed between
that return and when she complained about the conduct to Defendant Taylor on September 1,
2024. Although a Complaint need not be specific, it must provide enough factual detail
regarding the offensive conduct to plausibly suggest that she can state a claim.
For the above reasons, the Court finds that Plaintiff’s discrimination and hostile work
environment claims must be dismissed.
C. 	Whether Plaintiff Has Stated Retaliation Claims
After careful consideration, the Court answers this question in the affirmative as to
Plaintiff’s claims pursuant to Title VII and the NYSHRL for the reasons discussed below, but in
the negative as to her claim pursuant to N.Y. Lab. L. § 740 for the reasons stated in Defendants’
memoranda of law. See, supra, Parts I.B.1 and 3 of this Decision and Order. To those reasons,
the Court adds the following analysis.
1. 	Retaliation Claims Pursuant to Title VII and N.Y. Exec. L. § 296
Plaintiff’s retaliation claims pursuant to both Title VII and the NYSHRL are subject to
the same three-part burden-shifting standard. Summa v. Hofstra Univ., 708 F.3d 115, 125 (2d
Cir. 2013). However, in order to survive a motion to dismiss, a plaintiff need only state a prima
facie case. See Duplan v. City of New York, 888 F.3d 612, 625 (2d Cir. 2018) (noting that, “[a]t
the pleading stage, ‘the allegations in the complaint need only give plausible support to the
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reduced prima facie requirements that arise under McDonnell Douglas in the initial phase of a
Title VII litigation’”) (quoting Littlejohn v. City of New York, 795 F.3d 297, 315 [2d Cir. 2015]).
“To make out a prima facie case of retaliation, a plaintiff must make four showings: that ‘(1) she
engaged in a protected activity; (2) her employer was aware of this activity; (3) the employer
took adverse employment action against her; and (4) a causal connection exists between the
alleged adverse action and the protected activity.’” Summa, 708 F.3d at 125 (quoting Schiano v.
Quality Payroll Sys., Inc., 445 F.3d 597, 609 [2d Cir. 2006]); see also Vega v. Hempstead Union
Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015) (formulating the relevant standard at the motion
to dismiss stage as requiring a plaintiff to “plausibly allege that: (1) defendants discriminated––
or took an adverse employment action––against him, (2) because he has opposed any unlawful
employment practice”). Related to a prima facie case, causation between the protected activity
and the adverse action “may be shown by direct evidence of retaliatory animus or inferred
through temporal proximity to the protected activity.” Duplan, 888 F.3d at 625 (citing Vega, 801
F.3d at 90-91).
To the extent that Plaintiff appears to suggest that she was retaliated against for
requesting medical leave and filing for worker’s compensation benefits related to her injury in
April of 2024, it is not clear how much time elapsed between that conduct and any alleged
retaliatory conduct (which, according to the Complaint, appears to be in the form of an allegedly
hostile work environment), and the only date Plaintiff provides relative to that conduct is that she
complained about this harassment to Defendant Taylor on September 1, 2024. (Dkt. No. 1, at
12.) Under the circumstances, it is impossible to tell whether there was a sufficiently close
temporal connection to plausibly suggest retaliation related to her injury activities.
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Plaintiff also alleges engaging in activity that is potentially protected in that she alleges
that she (a) reported harassment to Defendant Taylor on September 1, 2024, and (b) filed a
formal grievance concerning “wage theft, retaliation, and hostile work environment” on October
29, 2024. (Dkt. No. 1, at 12.) Related to the first of these allegations, Plaintiff alleges that she
was demoted to a lower rate of pay without explanation effective October 21, 2024, but, between
the time of her report of harassment and that action, she submitted a letter providing her “two-
week notice of resignation,” which Defendants permitted her to retract on September 2, 2024.
(Dkt. No. 1, at 12.) Plaintiff’s attempt to resign and Defendants’ allowing her to retract that
resignation and continue working is an intervening event that breaks any inference of causation
between her complaints and the later “demotion.” See Anderson v. City of New York, 712 F.
Supp. 3d 412, 428 (S.D.N.Y. 2024) (noting that “‘in this Circuit, an inference of causation is
defeated … if there was an intervening causal event that occurred between the protected activity
and the alleged retaliatory discharge’”) (quoting Yarde v. Good Samaritan Hosp., 360 F. Supp.
2d 552, 562 [S.D.N.Y. 2005]); see also Rumsey v. Northeast Health, Inc., 89 F. Supp. 3d 316,
336 (N.D.N.Y. 2015) (Sannes, J.) (noting that “an intervening event between the protected
activity and the adverse employment action may defeat the inference of causation where
temporal proximity might otherwise suffice to raise the inference”).
As to her formal grievance on October 29, 2024,4 Plaintiff alleges both that (a) at an
uncertain time during the grievance process, Defendants improperly disclosed confidential
information related to that grievance to her coworkers, and (b) they terminated her employment
effective November 23, 2024. (Dkt. No. 1, at 12.) Given that the termination occurred less than
4 	Defendants do not argue that they were unaware of this grievance.
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one month after her grievance without any apparent intervening events, the temporal proximity
here is sufficient to sustain the causation element of Plaintiff’s prima facie case for retaliation.
See Knox v. CRC Mgmt Co., LLC, 134 F.4th 39, 50 (2d Cir. 2025) (finding that “a rational jury
could infer a causal connection from the roughly one-month period between Knox’s protected
activity and her firing”); Wiley v. Plattsburgh, 407 F. Supp. 3d 119, 130 (N.D.N.Y. 2019)
(Sharpe, J.) (finding causal connection could be inferred from plaintiff’s removal from campus
less than one month after complaints and his termination two months after filing an EEOC
charge); Bowen-Hooks v. City of New York, 13 F. Supp. 3d 179, 230 (E.D.N.Y. 2014) (finding
that adverse actions occurring within one month of protected activity “are sufficiently close in
time to establish a prima facie causal connection”); accord Miller v. Great Lakes Med. Imaging,
LLC, 527 F. Supp. 3d 492, 498 (W.D.N.Y. 2021). In a half-hearted attempt to escape that
conclusion, Defendants argue only that “merely stating that Plaintiff engaged in a protected
activity and was laid off one month later is not enough to establish a but-for connection between
these events.” (Dkt. No. 16, Attach. 1, at 25.) While Defendants argument is correct related to
later stages in a litigation (such as on a summary judgment motion or at trial, where Plaintiff will
be required to prove more than just a prima facie case), the law of this Circuit is clear that the
standard of causation is much less burdensome on a motion to dismiss, requiring only that there
be a sufficiently close temporal proximity such that a plausible inference of a retaliatory motive
can be drawn from the circumstances. The cases upon which Defendants rely are clearly
factually distinguishable in that they involve much longer periods of time elapsing between the
protected activity and adverse action; and one of them actually supports a finding that the
temporal proximity in this case (which, again, was less than one month) is legally sufficient to
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21
support an inference of causation at the motion to dismiss stage. See Dechberry v. New York
City Fire Dept., 124 F. Supp. 3d 131, 155 (E.D.N.Y. 2015) (noting that “district courts within the
Second Circuit ‘have consistently held that a passage of more than two months between the
protected activity and the adverse employment action does not allow for an inference of
causation”).
Under these circumstances, the Court finds that Plaintiff has stated a plausible claim for
retaliation pursuant to Title VII and the NYSHRL5 based on her filing of a grievance and the
subsequent termination of her employment. Defendants’ motion to dismiss as to these claims is
therefore denied.
2. 	Retaliation Claim Pursuant to N.Y. Labor. L. § 740
As an initial matter, Defendants’ argument that a plaintiff alleging a Section 740 claim
must allege that their complaints pertained to an activity, policy, or practice that violated the law
and presented a substantial and specific danger to the public health or safety is inconsistent with
the prevailing law. Specifically, although the statute did previously include such a requirement,
5 	Defendants’ argument that the NYSHRL claim must be dismissed because Plaintiff has
not pleaded any liability beyond a theory of respondeat superior fails for two reasons: (1)
Plaintiff alleges that Defendant Baywood was responsible for, among other things, “personnel
decisions” which would include demotions and termination of her employment as relevant to her
retaliation claim and it has not been disputed that Defendant Baywood had knowledge of
Plaintiff’s complaints, particularly her grievance, through the knowledge of high-ranking
employees like Defendant Taylor and Defendant Tarshus; and (2) the NYSHRL permits liability
against individuals based on an “aider or abettor” theory where that person participated in the
relevant discriminatory conduct. Pellegrini v. Sovereign Hotels, Inc., 740 F. Supp. 2d 344, 356
(N.D.N.Y. 2010) (Sharpe, J.). Plaintiff has alleged that Defendant Taylor was the General
Manager of the Canopy By Hilton–Ithaca, her direct supervisor, and that she participated in or
directed many of the alleged actions, and that Defendant Tarshus was the Regional Supervisor
for Baywood Hotels, was involved in the grievance and layoff process, and participated in the
alleged actions. (Dkt. No. 1, at 11.)
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the relevant statute was amended in 2021 (which became effective in January 2022) and no
longer requires that any such public danger be alleged or shown to substantiate a violation of that
statute. See N.Y. Lab. L. § 740(2) (describing prohibited activity as retaliation where an
employee “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”) (emphasis added); see Callahan v. HSBC Secs. (USA) Inc.,
723 F. Supp. 3d 315, 325 (S.D.N.Y. 2024) (noting that, as a result of the 2021 amendment,
“Section 740 no longer has such a requirement” related to pleading that the relevant complaint
“reported ‘a substantial and specific danger to the public health or safety’”). The one case that
Defendants cite in support of their argument notably predates this amendment.
Defendants also argue that this claim is deficient because there are no allegations to
plausibly suggest that, with regard to the adverse actions alleged, any decision-makers were
aware of her complaints. (Dkt. No. 16, Attach. 1, at 25-26.) To state a claim pursuant to the
relevant statute, a plaintiff must allege that (a) “she disclosed or threatened to disclose to a
supervisor an activity, policy, or practice of the employer that the employee at least reasonably
believed was illegal,” and (b) “must then point to a retaliatory, adverse action taken by the
employer in response to that complaint.” Thacker v. HSBC Bank USA, N.A., 22-CV-7120, 2023
WL 3061336, at *6 (S.D.N.Y. Apr. 24, 2023) (citing N.Y. Lab. L. § 740(2)). Here, Plaintiff
alleges that she reported, among other things, wage theft (a practice that she could have
reasonably believed was illegal), and that approximately a month later her employment was
terminated (which, as discussed above, is a period that is short enough to raise an inference of
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causation). Therefore, the only remaining question is whether Plaintiff made her reports to a
“supervisor.”
Notably, a supervisor for the purposes of the statute is defined as “any individual within
an employer’s organization who has the authority to direct and control the work performance of
the affected employee; or who has managerial authority to take corrective action regarding the
violation of the law, rule or regulation of which the employee complains.” N.Y. Lab. L.
740(1)(f). Plaintiff does not allege who precisely she filed her “formal grievance” with
regarding the alleged violations, though she does note as part of her allegations that there was an
“internal grievance investigation,” which suggests that the grievance was filed with someone
within Defendant Baywood’s organization. (Dkt. No. 1, at 14.) However, because it is not clear
whether that unidentified individual would qualify as a supervisor under the applicable
definition, Plaintiff has not alleged facts to plausibly state her claim pursuant to N.Y. Lab. L. §
740.
That being said, in her Complaint, Plaintiff appears to assert this claim not related to her
grievance and termination, but rather related to her report of her workplace injury and the
subsequent hostile treatment she encountered when she returned to work after her medical leave.
(Dkt. No. 1, at 15.) However, such claim would fail for the reasons discussed earlier with regard
to her Title VII and NYSHRL retaliation claims: she has not provided sufficient context to
ascertain whether there is any sort of causal connection between her complaint and the treatment
she was subjected to (or even to ascertain that the treatment constituted an adverse action, which
is difficult to determine based on the vagueness of Plaintiff’s allegations related to that conduct).
For the above reasons, the Court grants Defendants’ motion to dismiss as to this claim.
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D. 	Whether Plaintiff Has Stated Wage Theft Claims
After careful consideration, the Court answers this question in the affirmative as to
Plaintiff’s claims pursuant to her claim for underpayment of “straight time” wages pursuant to
the New York Labor Law for the reasons discussed below, but in the negative as to her claims
for underpayment of overtime or misclassification pursuant to the FLSA and for any notification
claims pursuant to N.Y. Lab. L. § 195 for the reasons stated in Defendants’ memoranda of law.
See, supra, Parts I.B.1 and 3 of this Decision and Order. To those reasons, the Court adds the
following analysis.
Plaintiff asserts wage theft claims based on Defendants’ failure to pay her at her hourly
rate (i.e., underpayment), failure to pay her for overtime hours worked, and misclassification of
her job title on official payroll documents, all of which purportedly arise under the FLSA. (Dkt.
No. 1, at 14-15.) The Court notes as an initial matter that the FLSA does not provide a cause of
action for unpaid regular wages (i.e., a “gap time” claim) where the average rate of pay still
exceeds the minimum wage. See Coley v. Vannguard Urban Improvement Assoc., Inc., 12-CV-
5565, 2018 WL 1513628, at * 9-10 (E.D.N.Y. Mar. 27, 2018) (citing Lundy v. Catholic Health
Sys. of Long Island Inc., 711 F.3d 106, 115 [2d Cir. 2013]; Nakahata, v. New York-Presbyterian
Healthcare Sys., Inc., 723 F.3d 192, 201 [2d Cir. 2013]). Plaintiff notably has not alleged that
the reduced wage she was paid fell below the minimum wage and has therefore not pleaded any
such claim under the FLSA. A gap time claim can, however, be brought pursuant to N.Y. Lab.
L. § 191 and/or N.Y. Lab. L. § 663(1), so, because the Plaintiff is proceeding pro se in this
action, the Court will liberally construe her claim as arising under the New York Labor Law.
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As to her assertion that she was not paid for overtime hours worked, the Court agrees
with Defendants that her sparse and conclusory allegations as to that issue do not meet the
pleading standard outlined by the Second Circuit for such a claim. See generally Lundy, 711
F.3d at 113-15; Nakahata, 723 F.3d at 200-02; Dejesus v. HF Mgmt Servs., LLC, 726 F.3d 85,
88-90 (2d Cir. 2013). Specifically, Plaintiff has not “sufficiently allege[d] 40 hours of work in a
given workweek as well as some uncompensated time in excess of the 40 hours,” and does not
provide any estimate of her hours worked “in any or all weeks” or that any alleged
uncompensated time occurred during a week when she worked more than 40 hours. Dejesus,
726 F.3d at 88. Plaintiff’s FLSA claim must therefore be dismissed to the extent it asserts a
failure to compensate for overtime hours worked.
As to her assertion that Defendants misclassified her job title on certain pay documents,
Plaintiff has not stated any cognizable claim. Plaintiff notably does not allege that she was
misclassified as an independent contractor as opposed to an employee, or that she was classified
as an exempt employee as opposed to a non-exempt employee; and it is not at all clear how
merely listing her as a different position in certain documents resulted in any harm. Plaintiff
alleges that this misclassification affected overtime eligibility but does not provide any factual
allegations elaborating on what those effects were. To the extent that she alleges that this
misclassification “affected her . . . pay rate,” such issues are more appropriately part of her state
law claim regarding unpaid wages that will be discussed below (to the extent this
misclassification was the cause of her being paid the allegedly lower rate than she was
promised).
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As to Plaintiff’s assertions that she was sometimes paid at an hourly rate less than what
she was promised, the Second Circuit has indicated that such a claim may be construed as arising
under N.Y. Lab. L. § 663(1), which states in relevant part that “[i]f any employee is paid by his
or her employer less than the wage to which he or she is entitled under the provisions of this
article, he or she shall recover in a civil action the amount of any such underpayments” as well as
reasonable attorney’s fees, prejudgment interest, and potentially liquidated damages. N.Y. Lab.
L. § 663(1); Lundy, 711 F.3d at 118; Nakahata, 723 F.3d at 202. The Second Circuit has indeed
recognized that “an allegation of hours worked without compensation may give rise to a gap-
time claim” pursuant to that statute, despite the fact it addresses minimum wage specifically.
Nakahata, 723 F.3d at 202.
Some courts within this Circuit (particularly the Eastern District of New York) have also
recognized that “[w]here a non-exempt employee has an agreement with his or her employer to
be paid at a rate greater than the minimum wage, . . . the failure to pay the promised rate is a
violation of NYLL § 191, entitling the employee to damages under NYLL § 198,” concluding
that, although that statute specifically addresses the timing of payment of wages, it nevertheless
creates an entitlement to all wages that are due to an employee for work performed. Ferreira v.
Brooklyn’s Constructions & Designs Inc., 22-CV-3796, 2024 WL 5386542, at *10-11 (E.D.N.Y.
Mar. 15, 2024) (citing Cavalotti v. Daddyo’s BBQ, Inc., 15-CV-6469, 2018 WL 5456654, at *13
[E.D.N.Y. Sept. 8, 2018]; Sanchez v. Hyper Structure Corp., 19-CV-4524, 2023 WL 281571, at
*8 [E.D.N.Y. Feb. 24, 2023]). Notably, at least one of these cases specifically found that an
employer’s payment of less than the agreed-upon hourly rate was a violation of Section 191. See
Cavalotti, 2018 WL 5456654, at *14 (finding the plaintiff had sufficiently alleged a violation of
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N.Y. Lab. L. § 191 for failure to pay earned wages in accordance with the terms of her
employment where she alleged that she had an oral agreement with the defendant that she would
be paid $11 per hour, but that defendant failed to pay her at that rate for the straight-time hours
that she worked).6 The Court finds that N.Y. Lab. L. § 191 provides the more likely avenue of
redress in this case, given that, while N.Y. Lab. L. § 663 appears to apply to wages that are “less
than the wage to which [a plaintiff] is entitled under the provisions of this article,” i.e., related to
the minimum wage, N.Y. Lab L. § 663(a) (emphasis added), N.Y. Lab. L. § 191 has been
interpreted to apply where the employer and employee have agreed upon a wage outside the
minimum wage or statutory framework.7
6 	In Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010), the Second Circuit stated generally
(albeit in a different context than the one presented here) that “Labor Law § 191 by its terms only
involves the timeliness of the wage payments, and does not appear to afford to plaintiffs any
substantive entitlement to a particular wage.” Myers, 624 F.2d at 545 (citing Jara v. Strong Steel
Door, Inc., 2008 WL 3823769, at *12 (N.Y. Sup. Ct., Kings Cnty. 2008). However, Myers does
not conflict with the above-discussed cases for two reasons. First, that case involved overtime
payments, which are covered by the FLSA, and the Second Circuit specifically noted that “New
York courts have suggested that plaintiffs may not use Labor Law § 191 to seek unpaid wages to
which they claim to be entitled under a statute,” such as the FLSA, but “rather § 191 guarantees
only that the wages the employer and employee have ‘agreed’ upon be paid in a ‘timely’ manner
again according to the terms of [the employee’s] employment.” Myers, 624 F.2d at 545 n.1.
Second, the case relied upon in Myers not only involved a situation in which the relevant wages
claimed were covered under a different provision of the New York Labor Law (§ 220), but also
involved the failure to pay the “prevailing” wage, not a wage agreed upon between the employer
and employee. Jara, 2008 WL 3823769, at *12; see N.Y. Lab. L. § 220(3)(a) (“The wages to be
paid for a legal day’s work, as hereinbefore defined, to laborers, workmen or mechanics upon
such public works, shall be not less than the prevailing rate of wages hereinafter defined.”). The
Court therefore agrees with the Eastern District of New York in Cavalotti that Myers does not
preclude the use of N.Y. Lab. L. § 191 related to the underpayment of agreed-upon “straight-
time” wages. Cavalotti, 2018 WL 5456654, at *13 n.12.
7 	The Court notes that, although whether Plaintiff is classified as a “manual worker” or a
“clerical or other worker” (which represents the catch-all provision for all workers not
encompassed by the other enumerated categories in the statute) may perhaps change whether
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Here, Plaintiff has alleged that she “was promised a wage of $20/hour with $30/hour
overtime by General Manager Kathy Taylor,” but that “[d]espite that promise, Plaintiff was paid
inconsistently, often receiving $18/hour or $19/hour.” (Dkt. No. 1, at 11-12.) For the purposes
of her non-overtime or “straight-time” hours, her allegation that she was paid less than the rate
promised for working those hours is sufficient to allege a plausible claim that she was underpaid
for work she performed. Although Plaintiff has not specified how many hours per week and/or
pay period she was paid at the wrong hourly rate, her allegations still provide more than
sufficient notice of the content of the claim against Defendants, especially in this case where
evidence of Plaintiff’s rate of pay for all the time she was employed with Defendants will
presumably show the precise extent of the underpayment and that evidence should reasonably
already be within Defendants’ possession for them to review. See Gregory v. Stewart’s Shops
Corp., 14-CV-0033, 2015 WL 893058, at *4 (N.D.N.Y. Mar. 2, 2015) (McAvoy, J.) (finding
allegations of gap-time to be sufficient related to allegation about performing a specific amount
of off-the-books work on a regular basis tied to specific, identifiable events, particularly as
“Defendant is able to defend against such claims as it is able to review its records and determine
the dates that each Plaintiff closed a store or was involved in a shift change”).
In their motion, Defendants notably do not make any arguments as to why Plaintiff does
not have a valid claim pursuant to N.Y. Lab. L. § 191 and/or § 663(1), but instead argue only that
Plaintiff has not alleged any violation of the WPTA related to a failure to provide certain written
N.Y. Lab L. § 191 could provide a method of recovery given that the language upon which the
courts’ interpretation that such a basis for recovery exists is present specifically in that catch-all
provision, Plaintiff’s allegation that she is a “Housekeeping Supervisor” is sufficient to plausibly
suggest at least for the purposes of this motion that she falls within the catch-all provision.
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wage notices. (Dkt. No. 16, Attach. 1, at 28-31.) To that end, pursuant to N.Y. Lab. L. § 195(2),
an employer is required to “‘notify his or her employees in writing of any changes to [the rate of
pay] at least seven calendar days prior to the time of such changes.’” Coley, 2018 WL 1513628,
at *9. However, this advance notice is not required if “such changes are reflected on the wage
statement furnished in accordance with subdivision three of this section.” N.Y. Lab. L. § 195(2).
As Defendants argue, Plaintiff does not appear to allege that she was not furnished with the wage
statements required under this section, or that such statements did not reflect alleged changes to
her pay rate (such as when she was “demoted” in October 2024). As a result, Plaintiff has not
stated a claim for any violation of N.Y. Lab. L. § 195.
For the above reasons, the Court finds that Plaintiff’s underpayment claim based on her
“straight time” wages has been sufficiently pleaded pursuant to the N.Y. Labor Law, although
any claim pursuant to the FLSA for underpayment of overtime wages or misclassification, or
pursuant to N.Y. Lab. L. § 195, must be dismissed.
E. 	Whether Plaintiff’s Title VII and Section 740 Claims Must Be Dismissed As a
Matter of Law Against the Individual Defendants
After careful consideration, the Court answers this question in the affirmative for the
reasons stated in Defendants’ memoranda of law. See, supra, Parts I.B.1 and 3 of this Decision
and Order. To those reasons, the Court adds the following analysis.
The Court agrees with Defendants that Plaintiff’s claims pursuant to Title VII against
Defendant Taylor and Defendant Tarshus must be dismissed because that statute does not
provide for liability against individuals. See Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206,
221 (2d Cir. 2004) (noting that ‘individuals are not subject to liability under Title VII’”) (quoting
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Wrighten v. Glowski, 232 F.3d 119, 120 [2d Cir. 2000]; citing Tomka v. Seiler Corp., 66 F.3d
1295, 1313 [2d Cir. 1995]).
Moreover, Section 740 states that “[a]n employer shall not take any retaliatory action
against an employee, whether or not within the scope of the employee’s job duties, because such
employee” engages in the enumerated conduct. N.Y. Lab. L. § 740(2). The statute defines an
“employer” as “any person, firm, partnership, institution, corporation, or association that
employs one or more employees.” N.Y. Lab. L. § 740(1)(b). In her Complaint, Plaintiff
specifically alleges that Defendant Baywood was her “employer at all relevant times,” while she
alleges that Defendant Taylor was a “General Manager” and her “direct supervisor,” and
Defendant Tarshus was a “Regional Supervisor” who was “involved in the grievance and layoff
process.” (Dkt. No. 1, at 10-11.) Under the circumstances, Plaintiff’s allegations plausibly
suggest that only Defendant Baywood was her employer for the purposes of Section 740, and
consequently, any Section 740 claim asserted against Defendant Taylor and Defendant Tarshus
(who were merely supervisory or management employees of Defendant Baywood) must be
dismissed as well.
F. 	Whether Plaintiff’s Remaining State Law Claims Must Be Dismissed
The Court answers the above question in the affirmative for the reasons that will be
discussed below.
As to Plaintiff’s assertions of breach of privacy and/or confidentiality related to the
details of her internal grievance, there does not appear to be any legal basis for this as a separate
legally cognizable claim. Other than alleging that her grievance was “meant to be confidential,”
Plaintiff has not alleged any facts regarding a right to privacy or confidentiality, and this bare
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allegation does not plausibly suggest the existence of a legally enforceable obligation regarding
privacy or confidentiality, such as a contractual promise. She further does not provide any
allegations related to the content of her grievance other than to state that it was “concerning wage
theft, retaliation, and hostile work environment.” New York notably does not recognize any
freestanding common law or statutory tort for breach of confidentiality, and the tort invasion of
privacy is limited to protection against appropriation of name or likeness related to use for
advertising or trade without the individual’s consent. Farrow v. Allstate Ins. Co., 53 A.D.3d
563, 563-64 (N.Y. App. Div. 2d Dept. 2008) (citing Ram v. Moritt, 205 A.D. 2d 516, 517 [N.Y.
App. Div. 2d Dept. 1994]; Cohen v. Herbal Concepts, 63 N.Y.2d 379 [N.Y. 1984]); see also
Cooper v. Mount Sinai Health Sys., Inc., 742 F. Supp. 3d 369, 379 n.8 (S.D.N.Y. 2024) (noting
that “New York law does not recognize a legal claim for invasion of privacy”). As a result,
Plaintiff has not asserted any legally cognizable separate claim related to the alleged disclosure
of information contained in her grievance.
As to Plaintiff’s assertion of a wrongful termination claim, “New York does not
recognize the tort of wrongful discharge for at-will employees.” Safranek v. Wegmans Food
Markets, Inc., 25-CV-5696, 2026 WL 554774, at *2 (S.D.N.Y. Feb. 27, 2026) (citing Rayskin v.
City of New York, 16-CV-2311, 2018WL 8201893, at *3 [S.D.N.Y. June 26, 2018]). Without a
separate basis for such a claim, Plaintiff’s assertions of wrongful termination are cognizable only
to the extent permitted through, for example, her Title VII or NYSHRL claims, which have
already been addressed above. She notably has not provided any reason to believe that there is a
contractual basis for any wrongful termination claim. 	As a result, Plaintiff has also not stated
any separate legally cognizable claim for wrongful termination.
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For the above reasons, to the extent Plaintiff has attempted to assert these additional state
law claims, they must be dismissed.
G. 	Whether Plaintiff Should Be Permitted an Opportunity to Amend Her
Complaint
After careful consideration, the Court answers the above question in the affirmative.
“‘Generally leave to amend should be freely given, and a pro se litigant in particular should be
afforded every reasonable opportunity to demonstrate that he has a valid claim.’” Samodovitz v.
Troutman, 797 F. Supp. 3d 1, 8-9 (N.D.N.Y. 2025) (Hurd, J.) (quoting Matima v. Celli, 228 F.3d
68, 81 [2d Cir. 2000]). Here, because the identified defects in the pleading of some of Plaintiff’s
claims relate to a mere failure to allege certain factual details as opposed to any fundamental
incurable ability to state a claim, the Court will permit Plaintiff to file a motion to amend the
Complaint specifically as to the following claims: (1) the discrimination and hostile work
environment claims pursuant to Title VII against Defendant Baywood and those pursuant to the
NYSHRL against all Defendants; (2) the claims pursuant to the FLSA related to overtime and
misclassification; (3) the wage statement notification claim pursuant to N.Y. Lab. L. § 195; and
(4) the retaliation claim pursuant to N.Y. Lab. L. § 740. As to her other claims that the Court has
dismissed, however, the Court finds that the defects related to those claims are substantive in
nature and therefore any opportunity to amend those claims would be futile and need not be
allowed. See Jeanty v. Sciortino, 669 F. Supp. 3d 96, 118 (N.D.N.Y. 2023) (Sannes, C.J.)
(noting that “a court can deny a request to amend as futile where the problem with the claim is
‘substantive’ and ‘better pleading would not cure it’”) (quoting Cuoco v. Moritsugu, 222 F.3d 99,
112 [2d Cir. 2000]).
ACCORDINGLY, it is
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ORDERED that Defendants’ motion to dismiss (Dkt. No. 16) is GRANTED in part and
DENIED in part; and it is further
ORDERED that the following claims are DISMISSED with prejudice:
(1) Plaintiff’s claims pursuant to 42 U.S.C. § 1983;
(2) Plaintiff’s claims pursuant to Title VII and N.Y. Lab. L. § 740 against
Defendant Taylor and Defendant Tarshus; and
(3) Plaintiff’s state law claims for wrongful termination and breach of privacy
and/or confidentiality; and it is further
ORDERED that the following claims are DISMISSED without prejudice to
amendment in this action upon a successful motion to amend under N.D.N.Y. L.R. 15.1 filed
within THIRTY (30) DAYS of the entry of this Decision and Order, and with prejudice upon
the failure to file such a successful motion to amend:
(1) Plaintiff’s discrimination and hostile work environment claims pursuant to
Title VII against Defendant Baywood and the NYSHRL against all
Defendants;
(2) Plaintiff’s claims pursuant to the FLSA related to overtime and
misclassification;
(3) Plaintiff’s wage statement notification claim pursuant to N.Y. Lab. L. § 195;
and
(4) Plaintiff’s retaliation claims pursuant to N.Y. Lab. L. § 740; and it is further
ORDERED that the following claims SURVIVE Defendants’ motion:
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(1) Plaintiff’s retaliation claims against Defendant Baywood pursuant to Title VII
and against all Defendants pursuant to the NYSHRL; and
(2) Plaintiff’s underpayment of “straight-time” wages claim pursuant to the New
York Labor Law.
Dated: May 1, 2026
Syracuse, New York
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