United States District Court, S.D. New York
February 2, 2015
JOHN MICILLO, Plaintiff,
NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant
For John Micillo, Plaintiff: Christine Ann Palmieri, Liddle & Robinson, LLP, New York, NY, USA.
For New York City Department of Education, Defendant: Daniel J. Larose, LEAD ATTORNEY, Nyc Law Dept., New York, NY, USA; Grace Diane Kim, LEAD ATTORNEY, New York City Law Department, New York, NY, USA.
REPORT AND RECOMMENDATION
GABRIEL W. GORENSTEIN, United States Magistrate Judge.
Plaintiff John Micillo brings this action alleging claims under 42 U.S.C. § 1983, the National Labor Relations Act, 29 U.S.C. § § 151 et seq. (" NLRA"), and New York State Civil Service Law § 75-b, arising out of the termination of his employment with the New York City Department of Education (" DOE"). The DOE now moves to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, this motion should be granted.
I. FACTS ALLEGED IN THE COMPLAINT
For purposes of deciding the DOE's motion to dismiss, the Court assumes the allegations in Micillo's amended complaint are true and draws all reasonable inferences in Micillo's favor. See, e.g., Steginsky v. Xcelera Inc., 741 F.3d 365, 368 (2d Cir. 2014).
Micillo began his employment with the DOE as a teacher in 1995 and subsequently received tenure. First Amended Complaint, filed Mar. 24, 2014 (Docket # 4) (" Compl."), ¶ 6. In 2002, Micillo " became an Assistant Principal and achieved tenure for that role in 2007." Id. Throughout his employment as an Assistant Principal, Micillo was " a member of Local 1 of the American Federation of School Administrators, known as the Council of Supervisors and Administrators of the City of New York ('CSA')." Id. ¶ 7.
On September 21, 2012, Micillo became " re-employed" by the DOE as an " Interim Acting Assistant Principal for The High School for Medical Professionals" at the Canarsie Educational Campus in Brooklyn, New York. Id. ¶ 8. " On October 25, 2012, Micillo was named the Athletic Director for the Campus." Id. ¶ 9. " One of Micillo's responsibilities in that role was to collect and submit payroll for the coaches." Id.
On November 16, 2012, Micillo received completed timecards and time sheets for three football coaches, including the head football coach, for the period ending November 15, 2012. See id. ¶ 11, 13. After reviewing the cards, Micillo noticed all three were identical. Id. ¶ 12. Micillo then reviewed the timecards for the three football coaches for the previous period ending October 31, 2012. See id. ¶ ¶ 10, 12. Micillo saw that those cards were also identical. Id. ¶ 12. " That same day, November 16, 2012, Micillo informed his Principal, Joseph Scarmato, and another Principal on the Campus, Adaleza Michalena, that he believed the football coaches were engaging in timecard fraud and that the head coach was punching in and out for all three coaches." Id. ¶ 13. Micillo was informed by Principal Michalena that " there had been a similar problem with the prior coach" but that he " should not do anything about his discovery other than speak to the coaches to institute new procedures that would make it more difficult for the fraud to occur in the future." Id. ¶ 14.
On Monday, November 19, 2012, Micillo " attended his second interview in the Regulation C-30 process, which governs the selection and appointment of principals and assistant principals." Id. ¶ 15. During this interview, in which Principals Scarmato and Michalena both participated, Micillo was treated " coldly" even though his first interview had gone well. Id. The following day, Micillo and Principal Scarmato met with the three football coaches to " explain the new timecard procedures." Id. at ¶ 16. The head coach responded hostilely. Id. The day after that, " Principal Scarmato demanded that Micillo submit the coaches' timecards and time sheets for the periods ending October 31 and November 15, 2012 so that they could be paid." Id. ¶ 17.
" On November 26, 2012, Micillo was informed that his employment would be terminated effective January 2, 2013, " and he received written confirmation of his termination the following day, November 27, 2012. Id. ¶ 18. No reason was provided for his termination and no one else had been selected to fill the position. Id. On November 28, 2012, Micillo " reported the timecard fraud and his retaliatory termination to his CSA representative, as well as to The Special Commissioner of Investigation for the New York City School District, which is a unit of the New York City Department of Investigations [sic]." Id. ¶ 19. Shortly thereafter, Micillo " was informed that he was no longer welcome in the school because he was not a team player. He was instead issued daily assignments outside of the school building as a mentor to schools in need of assistance." Id. In early December 2012, " the head football coach acknowledged he had punched the timecards of all three coaches, " during a meeting in the presence of Micillo, Principals Scarmato and Michalena, and others. Id. ¶ 20.
II. LAW GOVERNING MOTIONS TO DISMISS
A party may move to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) where the opposing party's pleading " fail[s] to state a claim upon which relief can be granted." While a court must accept as true all of the allegations contained in a complaint, that principle does not apply to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009);
Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (" [A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.") (citation, internal quotation marks, and brackets omitted). In other words, " [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, "
Iqbal, 556 U.S. at 678, and thus, a court's first task is to disregard any conclusory statements in a complaint, id. at 679.
Next, a court must determine if a complaint contains " sufficient factual matter" which, if accepted as true, states a claim that is " plausible on its face." Id. at 678 (citation and internal quotation marks omitted); accord
Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007) (" [A] complaint must allege facts that are not merely consistent with the conclusion that the defendant violated the law, but which actively and plausibly suggest that conclusion.") (citations omitted). " 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. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted). " [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, " a complaint is insufficient under Fed.R.Civ.P. 8(a) because it has merely " alleged" but not " 'show[n]'--'that the pleader is entitled to relief.'" Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).
A. First Amendment Retaliation Claim
Micillo alleges a violation of 42 U.S.C. § 1983. To establish a claim under section 1983, a plaintiff must show that there has been a denial of a right, privilege, or immunity secured by the Constitution or laws of the United States and that the deprivation of such right occurred under color of state law. See 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Section 1983 does not in and of itself create any substantive rights; rather, a plaintiff bringing a section 1983 claim must demonstrate a violation of an independent federal constitutional or statutory right. See Chapman v. Hous. Welfare Rights Org., 441 U.S. 600, 617-618, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979). Here, Micillo alleges that the DOE terminated his employment because he exercised his First Amendment rights. Compl. ¶ ¶ 30-31. To state a First Amendment retaliation claim, a public employee must allege " that he has engaged in protected First Amendment activity, he suffered an adverse employment action, and there was a causal connection between the protected activity and the adverse employment action." Anemone v. Metro. Transp. Auth., 629 F.3d 97, 114 (2d Cir. 2011) (quoting Dillon v. Morano, 497 F.3d 247, 251 (2d Cir. 2007)); accord Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 272 (2d Cir. 2011).
It is well settled that " public employees do not surrender all their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) (citations omitted). Thus, in order to determine whether the speech at issue is protected by the First Amendment, the court must determine, first, " whether the employee spoke as a citizen on a matter of public concern, " and if so, " whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public." Id. at 418 (citations omitted). " In Garcetti, the Court parsed the first of the above 'two inquiries' into separate questions as to (1) whether the subject of the employee's speech was a matter of public concern and (2) whether the employee spoke 'as a citizen' rather than solely as an employee." Jackler v. Byrne, 658 F.3d 225, 235 (2d Cir. 2011) (citing
Garcetti, 547 U.S. at 420-22, 424). Thus, if the employee " either did not speak as a citizen or did not speak on a matter of public concern, " he has no First Amendment retaliation claim against his employer.
See Weintraub v. Bd. of Educ. of City Sch. Dist. of City of New York, 593 F.3d 196, 201 (2d Cir. 2010) (internal quotation marks and citation omitted);
see also Castine v. Zurlo, 756 F.3d 171, 176 n.5 (2d Cir. 2014) (" [P]ublic employees cannot state a claim for First Amendment retaliation unless (among other requirements) they speak as citizens on matters of public importance.") (citation omitted). The Second Circuit has held that " [w]hether the employee spoke solely as an employee and not as a citizen is . . . largely a question of law for the court."
Jackler, 658 F.3d at 237; accord Connick v. Myers, 461 U.S. 138, 148 n.7, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (" The inquiry into the protected status of speech is one of law, not fact.") (citation omitted).
Garcetti held that " when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id. at 421. Speech is made " pursuant to" a public employee's job duties where that speech " owes its existence to a public employee's professional responsibilities." Id. at 421-22; accord Looney v. Black, 702 F.3d 701, 710 (2d Cir. 2012). As Garcetti noted, " [r]estricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen." 547 U.S. at 421-22.
The Second Circuit has elaborated:
The inquiry into whether a public employee is speaking pursuant to her official duties is not susceptible to a brightline rule. Courts must examine the nature of the plaintiff's job responsibilities, the nature of the speech, and the relationship between the two. Other contextual factors, such as whether the complaint was also conveyed to the public, may properly influence a court's decision.
Ross v. Breslin, 693 F.3d 300, 306 (2d Cir. 2012) (citations omitted). " The objective inquiry into whether a public employee spoke 'pursuant to' his or her official duties is 'a practical one, '"
Weintraub, 593 F.3d at 202 (quoting Garcetti, 547 U.S. at 424), and has " focused on whether the speech 'was part-and-parcel of his concerns about his ability to properly execute his duties, '"
Ross, 693 F.3d at 306 (quoting Weintraub, 593 F.3d at 203). However, the Court must be wary of construing the employee's official duties too narrowly -- " speech can be 'pursuant to' a public employee's official job duties even though it is not required by, or included in, the employee's job description, or in response to a request by the employer."
Weintraub, 593 F.3d at 203.
Micillo alleges that on October 25, 2012, he " was named the Athletic Director for the Campus. One of [his] responsibilities in that role was to collect and submit payroll for the coaches." Compl. ¶ 9. Micillo received timecards and time sheets for three football coaches for the periods ending October 31, 2012, and November 15, 2012. Id. ¶ ¶ 10-11. Upon review of these timecards, Micillo informed two principals that he believed the football coaches were engaging in timecard fraud. Id. ¶ ¶ 12-13. Micillo was told that he " should not do anything about his discovery other than speak to the coaches to institute new procedures that would make it more difficult for the fraud to occur in the future." Id. ¶ 14. On November 20, 2012, Micillo and Principal Scarmato " met with the football coaches to explain new timecard procedures. The head coach reacted hostilely." Id. ¶ 16. " The next day, Principal Scarmato demanded that Micillo submit the coaches' timecards and time sheets" for the two pay periods so that they could be paid. Id. ¶ 17. " On November 26, 2012, Micillo was informed that his employment would be terminated" and on November 27, 2012, " he received a letter confirming his termination" with no reason provided. Id. ¶ 18. Micillo's section 1983 claim alleges that he " exercised his First Amendment rights in reporting timecard fraud, " id. ¶ 30, and that the DOE " terminated Micillo's employment as a result of his exercise of his First Amendment rights, "
id. ¶ 31.
We have little trouble concluding that the speech alleged " owe[d] its existence" to Micillo's " professional responsibilities."
Garcetti, 547 U.S. at 421. Micillo acknowledges that one of his " responsibilities" in his role as an Athletic Director " was to collect and submit payroll for the coaches." Compl. ¶ 9. While Micillo argues that " [t]he extent of [his] responsibilities with regard to reviewing the payroll documents, identifying discrepancies, and reporting them, if any, is unknown and undeveloped at this stage of the litigation, " Pl. Mem. at 3, " [s]peech can be pursuant to a public employee's official job duties even though it is not required by, or included in, the employee's job description, or in response to a request by the employer, " Matthews v. City of New York, 957 F.Supp.2d 442, 462 (S.D.N.Y. 2013) (quoting
Weintraub, 593 F.3d at 203); accord Ross, 693 F.3d at 305. The complaint asserts almost in as many words that Micillo's reporting of timecard improprieties were " part-and-parcel of his concerns about his ability to properly execute his duties." Weintraub, 593 F.3d at 203 (citation and internal quotation marks omitted). More obviously, the alleged speech " owed its existence" to Micillo's employment and was made in furtherance of that employment inasmuch as Micillo learned of the timecard fraud during his employment while performing his employment responsibility of collecting payroll information, Compl. ¶ 9. See, e.g., Carter v. Inc. Vill. of Ocean Beach, 415 F.App'x 290, 293 (2d Cir. 2011) (report by police officers of misconduct committed by a supervisor not protected where the officers knew of the misconduct " only by virtue of their jobs as police officers");
Matthews, 957 F.Supp.2d at 462 (plaintiff's speech " 'owed its existence to' his employment" because he " gained the information he reported while doing his job.") (citations omitted); see also Looney, 702 F.3d at 712 (plaintiff's " statements owed their existence to his [employment]" because the " only sensible way to interpret [plaintiff's] allegations is that he spoke on these issues because he was in an official position that required, or at least allowed, him to do so") (emphasis in original);
Ross, 693 F.3d at 306 (report of financial malfeasance unprotected where reporting irregularities to a supervisor was one of plaintiff's job duties and where she learned of the information " in the ordinary course of performing her work"). It is of no moment that the reporting of the timecard fraud may not have been a formal requirement of Micillo's job.
See Williams v. Dall. Indep. Sch. Dist., 480 F.3d 689, 693-94 (5th Cir. 2007) (" Simply because [plaintiff] wrote memoranda, which were not demanded of him, does not mean he was not acting within the course of performing his job" as an Athletic Director, where the " [a]ctivities undertaken in the course of performing one's job are activities pursuant to official duties") (citation omitted); White v. City of New York, 2014 WL 4357466, at *10 (S.D.N.Y. Sept. 3, 2014) (rejecting " Plaintiff's argument that her speech was protected because it was not a required part of her job description or 'core function' . . . . [because] [s]peech that is not expressly required can still be 'pursuant to official duties, ' as long as the speech is in furtherance of those duties expressed") (citations omitted). What is important was that such reporting was ordinarily " within the scope of"
Micillo's duties, Lane v. Franks, 134 S.Ct. 2369, 2379, 189 L.Ed.2d 312 (2014), inasmuch as submitting timecard information was part of his job responsibilities.
Moreover, the alleged speech was " confined to internal channels."
Matthews, 957 F.Supp.2d at 463. Confinement to internal channels supports a finding that the speech was not made as a private citizen because " speech confined to internal channels tends to look less like citizen speech than does the paradigmatic letter to the editor." Id. (citations omitted);
see also Garcetti, 547 U.S. at 423 (" Employees who make public statements outside the course of performing their official duties retain some possibility of First Amendment protection because that is the kind of activity engaged in by citizens who do not work for the government."); Ross, 693 F.3d at 306 (" Other contextual factors, such as whether the complaint was also conveyed to the public, may properly influence a court's decision.") (citation omitted). Here, the speech at issue was made only to Principals Scarmato and Michalena, Compl. ¶ 13, and perhaps to the three football coaches while attempting to implement new timecard procedures, see id. ¶ 16. Micillo contends that a public employee does not forfeit his First Amendment protection by expressing his views privately rather than publicly. Pl. Mem. at 6 (citing
Matthews, 957 F.Supp.2d at 463). But this statement does not advance the analysis required by Garcetti as it does not address the question of whether the private speech that Micillo engaged in showed Micillo was speaking " as a citizen."
Garcetti, 547 U.S. at 418. The only case cited by Micillo to support this argument that actually found protected speech involved a police officer who made complaints to the elected Mayor and an elected Trustee of his village.
See Pisano v. Mancone, 2011 WL 1097554, at *11 (S.D.N.Y. Mar. 18, 2011) (plaintiff " approached local, elected officials to discuss [an] issue of public concern").
Finally, we find it significant that Micillo's speech at issue lacks a " civilian analogue."
Jackler, 658 F.3d at 241-42. " Examples of speech with a civilian analogue include a letter to the local newspaper and complaints to elected officials or independent state agencies." Matthews,
957 F.Supp.2d at 464 (citing Garcetti, 547 U.S. at 423; Weintraub,
593 F.3d at 204; Freitag v. Ayers, 468 F.3d 528, 545 (9th Cir. 2006)) (internal citations omitted). " [E]xamples of speech lacking such an analogue include an official report made to a supervisor and an employee grievance filed in a forum unavailable to non-employees."
Matthews, 957 F.Supp.2d at 464 (citing Garcetti, 547 U.S. at 422-23;
Weintraub, 593 F.3d at 203) (internal citations omitted). Here, Micillo reported the incident to his two supervisors. See Compl. ¶ 13. He did not contact the police, elected officials, or the media prior to his termination. Micillo contends that his action had a civilian analogue because it was as if " a student, parent or school volunteer had observed the head football coach punching the timecards of multiple coaches and reported it to one of the campus principals, to whom Micillo would not have had superior access." Pl. Mem. at 6. In support, Micillo cites Matthews. But Matthews in fact supports the DOE's position. The police officer in Matthews, who had made complaints about policing policies implemented by supervisors, " was able to get the ear of his commanding officers more readily, more frequently, and more privately than could an average citizen." 957 F.Supp.2d at 465. Thus, Matthews found that the difference between the plaintiff's access and the average citizen's access to his superiors was " significant" and held that the police officer's speech was unprotected. Id. at 465. There is no reasonable inference from the current complaint that Micillo's access to his supervisor was equivalent to that of the general public.
See, e.g., Williams v. Cnty. of Nassau, 779 F.Supp.2d 276, 285 (E.D.N.Y. 2011) (" While citizens may write letters to, or request meetings with, the Deputy County Executive, none would have the kind of access to [the Deputy County Executive of Nassau County] that [plaintiff] had as Executive Director of the [Nassau County Civil Service Commission].") (citations omitted), aff'd, 581 F.App'x 56 (2d Cir. 2014). Micillo may be correct that any citizen could make a complaint to the principals. But it is obvious that an employee whose job responsibilities included the collection and submission of payroll would be able to access the principal to make complaints about this topic in a manner qualitatively different from the average citizen.
Micillo contends that " [a] public employee's speech may be protected by the First Amendment so long as it is not made pursuant to his primary official duties." Pl. Mem. at 2 (emphasis added). Micillo reasons that since the " extent of [his] responsibilities . . . is unknown and undeveloped at this stage of the litigation, as are his other responsibilities as both Athletic Director and Acting Assistant Principal, " id. at 3, then his " speech regarding alleged timecard fraud cannot be considered part of his core responsibilities, " id. at 5. He asserts that the collection of timecards from three coaches was a relatively small piece of some undetermined total number responsibilities as an Athletic Director and Assistant Principal, and therefore the collection and submission of timecards was not a " core" duty.
See id. at 4. We reject these arguments because the notion that speech that is not part of an employee's " primary" or " core" duties or responsibilities is necessarily protected under the First Amendment does not enjoy support in Supreme Court or Second Circuit case law. Micillo alleges that at least one of his job responsibilities " was to collect and submit payroll for the coaches." Compl. ¶ 9. That is sufficient to show that the complaints he made regarding the timecards were " pursuant to" his official duties.
Garcetti, 547 U.S. at 421.
The remaining cases Micillo cites are readily distinguishable. In Griffin v. City of New York, 880 F.Supp.2d 384 (E.D.N.Y. 2012), the court found that the plaintiff's reporting of another police officer's misconduct was not " part-and-parcel" of the plaintiff's job function, and therefore was not part of his job responsibilities as a police officer. See id. at 398. The court focused on the fact that the reported officer " was not plaintiff's partner and neither officer was assigned to the case in which the victim interview was botched. In short, [the reported officer's] alleged misconduct did not directly interfere with plaintiff's ability to perform his assigned duties as a police officer." Id. Here, by contrast, the coaches submitted their timecards directly to Micillo as part of his duties as an Athletic Director. In Dillon v. Suffolk County Department of Health Services, 917 F.Supp.2d 196 (E.D.N.Y. 2013), the court found that a doctor hired to perform medical duties for the inmate population was not speaking pursuant to her core employment duties when she complained to county officials of " systemic mistreatment and corruption extending outside of her own personal duties and affecting inmates with whom she had no personal or job connection." Id. at 210. In addition, her complaints " went far beyond the scope of just inadequate medical treatment by other physicians" as she also " expressed her concerns regarding the potential cover up of abuse by prison guards." Id. at 211. Here, by contrast, Micillo complained of a specific wrongdoing by specific individuals related to his official job responsibility as an Athletic Director to collect and submit payroll information.
In Taylor v. N.Y. City Dep't of Educ., 2012 WL 3890599 (S.D.N.Y. Sept. 6, 2012), a school teacher complained to a New York City Council Member, a New York State Senator, and the press about allegedly fraudulent grades being given to students, and was interviewed on a local television news channel. Id. at *1. The " medium" of speech was plainly a critical factor that caused the Taylor court to conclude that the complaint could be viewed as alleging that the teacher was speaking as a citizen rather than as an employee. Id. at *4. In Ramirez v. Hempstead Union Free Sch. Dist. Bd. of Educ., 2014 WL 3547374 (E.D.N.Y. July 16, 2014), the court found that the plaintiff's reporting of grade inflation was protected speech where plaintiff had alleged " that changing of grades and the policies related to that matter are not part of his job functions or in his job description." Id. at *11. Here, of course, Micillo alleges that one of his job responsibilities was to collect and submit payroll information for the coaches.
While Micillo's speech may have had " value to the public . . . . as a matter of law, Garcetti and its Second Circuit progeny teach that not all speech by public employees enjoys First Amendment protection."
Matthews, 957 F.Supp.2d at 465-66. For the reasons discussed above, the complaint does not permit the Court to draw a reasonable inference that Micillo was speaking in a capacity other than pursuant to his official job duties when he reported the timecard fraud to the principals. Thus, Micillo has failed to state a First Amendment retaliation claim.
B. Claims under Civil Service Law § 75-b and the National Labor Relations Act
The DOE argues Micillo's claim under Civil Service Law § 75-b should be dismissed because it is time-barred, Def. Mem. at 8-9, and that his claim under the National Labor Relations Act, 29 U.S.C. § § 151 et seq. should be dismissed because (1) the DOE is not an employer for purposes of the NLRA, (2) the claim is time-barred, and (3) Micillo failed to exhaust his contractual remedies, Def. Mem. at 10-13. Micillo does not respond to these arguments and indeed explicitly states that he " does not oppose the motion to the extent it seeks to dismiss" these claims. Pl. Mem. at 1 n.1. Accordingly, Micillo's claims under Civil Service Law § 75-b and 29 U.S.C. § § 151 et seq. should be dismissed.
For the foregoing reasons, the DOE's motion to dismiss (Docket # 14) should be granted.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days including weekends and holidays from service of this Report and Recommendation to serve and file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Lewis A. Kaplan at 500 Pearl Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Kaplan. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).