United States District Court, E.D. New York
MEMORANDUM & ORDER
Donnelly United States District Judge
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 are futile.
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.
Standard of Review
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).
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.
Motion to Amend Standard
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).
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).
Federal and State Law Claims Against the Defendant as an
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.
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.
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. ¶¶ 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 ...