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Mohr v. United Cement Mason's Union Local 780

United States District Court, E.D. New York

March 30, 2017

DEBORAH A MOHR, Plaintiff,


          Ann M. Donnelly United States District Judge

         In a Report and Recommendation, Magistrate Judge Cheryl Pollak recommends that the Court grant in part and deny in part the plaintiffs motion to amend her Complaint. The plaintiff seeks to amend her Complaint to add an additional defendant, the United Cement Masons' Local 780 Joint Apprenticeship Training Program ("JATP"), and to add claims of discrimination under Title VII, the New York State Human Rights Law ("NYSHRL"), and the New York City Human Rights Law ("NYCHRL"), against JATP and the initial defendant, the United Cement Masons' Union Local 780 ("the Union" or "the defendant"). The Union objected to the Report & Recommendation on the grounds that the additional claims in the Amended Complaint[1] are futile.

         I have reviewed all post Report & Recommendation filings as part of my review of the full body of materials submitted to Magistrate Judge Pollak on the motion. Based on this review, I conclude, as Judge Pollak did, that the plaintiffs motion to amend her Complaint should be granted in part and denied in part. Accordingly, I adopt the Report and Recommendation in its entirety as supplemented here.


         I. Standard of Review

         Under Rule 72, the standard of review that district courts apply to magistrate judges' reports and recommendations depend on whether the matter addressed in the report is dispositive or non-dispositive of a party's claim or defense. Fed.R.Civ.P. 72. A magistrate judge's decision on a non-dispositive motion is reviewed for clear error and a decision on a dispositive motion is reviewed de novo. Id. As other courts in this district have noted, the proper classification as dispositive or non-dispositive of a motion for leave to amend a complaint is not settled within the Second Circuit. See Chariot v. Ecolab, Inc., 90 F.Supp.3d 40, 46 fh. 5 (E.D.N.Y. 2015) (noting that authority is divided and declining to take a position where the court would adopt the report under either standard); Dollar Phone Corp. v. St. Paul Fire, No. 09-CV-1640, 2011 WL 837793, at *1 (E.D.N.Y. Mar. 4, 2011) ("The proper standard of review to apply to objections to a magistrate's order denying leave to amend is not clearly settled in this Circuit.") Courts have suggested that where a magistrate judge's decision on a motion to amend a complaint effectively dismisses or precludes a claim, the motion to amend is rendered dispositive; while the grant of the same motion should be treated as non-dispositive. See Garcia v. Paris Maintenance, 15-CV-0663, 2016 WL 3093895, at *1 (E.D.N.Y.. June 1, 2016); Louis v. Metro. Transit Auth., No. 12-CV-6333, 2014 WL 5311455, at *1 (E.D.N.Y. Oct. 16, 2014).

         Accordingly, I review Judge Pollak's decision to dismiss the plaintiffs claims de novo and review the remaining claims for clear error. Additionally, district judges need not review the conclusions of the magistrate judge to which there was no objection so long as the decision was not "clearly erroneous." White v. W. Beef Properties, Inc., No. 07-cv-2345-RJD-JMA, 2011 WL 6140512, at *2 (E.D.N.Y. Dec. 9, 2011) (quoting United States v. Raddatz, 447 U.S. 667, 676 (1980)). The portions of the Report and Recommendation to which the defendant raises no objections are not clearly erroneous. I therefore decline to reiterate what Judge Pollak thoroughly and soundly analyzed.

         II. Motion to Amend Standard

         Rule 15 of the Federal Rules of Civil Procedure provides that when a party seeks to amend its pleading beyond the time period allowed for an amendment as a matter of course, that party "may amend its pleading only with the opposing party's written consent." Fed.R.Civ.P. 15(a)(2). If the opposing party does not consent, the party seeking to amend must obtain leave of the court. Id. The court should "freely give leave when justice so requires" but should deny leave to amend "for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party." Id; McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200-01 (2d Cir. 2007.) The opposing party bears the burden of demonstrating a good reason for denial. Speedfit, LLC v. Woodway USA, Inc., No 13-cv-1276, 2015 WL 6143697, at *3 (E.D.N.Y. Oct. 9, 2015).

         Here, the defendant objects to the plaintiffs Amended Complaint on the grounds that amendment would be futile. Futility is established where "the proposed amended complaint would fail to state a claim on which relief is granted." Perfect Pearl Co., Inc. v. Majestic Pearl & Stone, Inc., 889 F.Supp.2d 453, 459 (S.D.N.Y. 2012). A determination that a proposed claim is futile is made under the same standard that governs a motion to dismiss under Rule 12(b)(6). Ganthier v. North Shore-Long Island Jewish Health System, 298 F.Supp.2d 342, 349 (E.D.N.Y.2004.) Thus, a proposed amendment is futile if it does not "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009.) In determining whether the proposed amendment meets this test, courts accept all facts alleged by the party moving to amend the complaint as true, and construe any ambiguities in favor of the moving party. Konrad v. Epley, No. 12-cv-4021, 2013 WL 6200009, at * 20 (E.D.N.Y. Nov. 25, 2013).

         III. Federal and State Law Claims Against the Defendant as an Employer

         The defendant first argues that the plaintiff should be precluded from adding claims against the Union as an employer under Title VII, 42 U.S.C. § 2000e-2(a)(1), the NYSHRL, N.Y. Exec. Law § 296(1)(a), and the NYCHRL, N.Y. Admin. Code § 8-107(1)(a). Under Title VII, an employer is defined as "a person engaged in an industry affecting commerce who has fifteen or more employees." 42 U.S.C. § 2000-e. "In parsing out this 'rather elliptical statutory definition, ' the first inquiry is whether the plaintiff has received some form of remuneration from the defendant" Knight v. State University of New York at Stony Brook, No. 13-CV-048, 2013 WL 6002846, at *3 (E.D.N.Y.Nov. 12, 2013) (quoting York v. Ass'n of Bar of City of N.Y, 286 F.3d 122, 125-26 (2d Cir. 2002). Where the purported employee obtains no financial benefit from the employer, "no plausible employment relationship of any sort can be said to exist." O'Connor v. David, 126 F.3d 112, 115-116 (2d Cir. 1997). The second inquiry is to consider the thirteen factors articulated by the Supreme Court in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), which are considered indicia of an employment relationship. Knight, 2013 WL 6002846, at*3.

         Looking at the first requirement, the defendant argues that the Union never remunerated the plaintiff for the services she performed and therefore cannot be considered her employer. As the Report & Recommendation makes clear, this Circuit's understanding of "financial benefit is broad and need not come in the form of a monetary payment." Pietras v. Board of Fire Commn'rs of Farmingyille Fire Dist., 180 F.3d 468, 473 (2d Cir. 1999). For example, an employment relationship can exist where the purported employee receives no salary, "so long as he or she gets numerous job-related benefits" such as medical insurance, retirement pensions, life insurance, vacation time, sick pay or promises or any of the above. Id. The Report & Recommendation carefully examined the plaintiffs allegations about the financial benefits she received, and determined that the claims that she was hired by the Union, that the Union gave her a paid job opportunity, and that the Union provided her with on-the-job experience and the promise of future job assignments, were sufficient.

         The Union argues that Judge Pollak improperly relied on the Union's performance of the "ordinary duties of an apprenticeship program, " which has its own specific statutory provision under Title VII-43 U.S.C. 2000e-2(d)-separate and apart from the Title VII employer provision-43 U.S.C. § 2000e2(a)(1). This argument ignores a critical fact: that the plaintiff alleges that "the Defendants referred Plaintiff to a job" and "continued to fail to provide Plaintiff with job-site hours" after she graduated from the apprentice program. (Am. Compl. ΒΆΒΆ 30, 31.) When viewed in the light most favorable to the plaintiff, the Complaint alleges facts sufficient to demonstrate that the Union provided her with financial benefits in its employment capacity. As noted in the Report & Recommendation, to the extent that the defendant disputes that the plaintiff received certain financial benefits or the capacity ...

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