ANDREW L. CARTER, JR., District Judge.
Plaintiff Jacqueline Caddick ("Plaintiff" or "Caddick") brings this pro se action for monetary damages against defendants Gail Golden Icahn ("Ms. Icahn"), the wife of investor and businessman Carl Icahn ("Mr. Icahn"), and Personnel Co. I LLC ("Personnel"), a company that employs the Icahns' household staff (collectively, the "Defendants"). This is primarily a discrimination suit arising out of Caddick's previous employment as a housekeeper for the Icahns. Plaintiff's Second Amended Complaint alleges national origin and gender discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"), the New York State Humans Rights Law ("NYSHRL"), the New York City Human Rights Law ("NYCHRL"), retaliation claims under the Fair Labor Standards Act ("FLSA") and New York Labor Law ("NYLL"), and common-law defamation. This Opinion resolves Defendants' Motion to Dismiss.
Caddick has failed to exhaust her administrative remedies with respect to her Title VII claims. In addition, because Plaintiff has failed to adequately allege participation in a protected activity known to defendant, as well as a causal connection between that activity and her termination, she fails to state a claim for FLSA retaliation. The Court declines to exercise jurisdiction over Plaintiff's remaining state law claims. Thus, for these reasons, and as set forth in greater detail below, the Motion to Dismiss is GRANTED.
The allegations in the Second Amended Complaint ("SAC") are assumed true only for purposes of the Motion to Dismiss.
Plaintiff is a 53-year-old woman, born in England. SAC ¶ 6. She is a dual citizen of the United States and the United Kingdom. From 1991 to 2005, Plaintiff worked in New York in the fashion industry before returning to the United Kingdom to care for her mother. SAC ¶¶ 20-21. In 2010, Plaintiff moved to New York and signed up with an employment agency called Pavilion Agency. SAC ¶ 23. Plaintiff's agent, Rosalie Aguilar ("Aguilar"), found a position for Plaintiff as a part-time personal assistant and house manager for a wealthy family in Brooklyn, and she worked there from 2011 to early 2015. SAC ¶¶ 23, 25.
In January 2015, Aguilar informed Plaintiff of an opening for a full-time house manager position for Mr. and Ms. Icahn, with whom Aguilar had previously worked. SAC ¶¶ 24, 26. On or about January 6, 2015, Plaintiff visited the Icahns' primary residence on 53
Plaintiff then attended an interview with Ms. Icahn. SAC ¶ 32. Ms. Icahn asked Plaintiff whether she could drive or cook, to which Plaintiff said that she could. SAC ¶ 34. After Ms. Icahn warned Plaintiff that Mr. Icahn could be "very difficult, and has people crying all the time," Plaintiff asked to meet Mr. Icahn. SAC ¶¶ 35-36. As they awaited Mr. Icahn's arrival, Ms. Icahn told Plaintiff that Mr. Icahn was "lucky" because Mr. Icahn had "a special thing about English people[.]" SAC ¶ 37. Plaintiff and Mr. Icahn met for approximately ten minutes during which Icahn asked about her English background. SAC ¶ 38.
Plaintiff commenced employment with the Icahns on a two-week, part-time trial basis. SAC ¶ 41. On January 23, 2015, Plaintiff signed an offer letter from the Icahns, agreeing to an annual salary of $95,000 with overtime pay of $68.52 per hour over 40 hours per week. SAC ¶¶ 42-44. On February 1, 2015, she commenced full-time employment, and received a list of duties including cooking breakfast for the Icahns, ordering and stocking food, and maintaining the kitchen and laundry. SAC ¶¶ 45-46.
In early February, Plaintiff drove Mr. Icahn to the Icahn offices and insisted that he wear a seatbelt. SAC ¶ 47. The next day at breakfast, Ms. Icahn said to Plaintiff in a nasty tone that she had "heard that you got [Mr. Icahn] to wear the seat belt, because you told him that the English have to wear them." SAC ¶ 48. Plaintiff responded that it had nothing to do with being English, but for his own safety. SAC ¶ 49.
During the second week of February, Ms. Icahn asked Plaintiff to drive her to her daughter's apartment. SAC ¶ 50. When they arrived at her daughter's apartment, Plaintiff told Ms. Icahn, "I will pop the boot and take the luggage into the lobby for you," to which Icahn replied, "Pop the what? In America, it's called the trunk." SAC ¶¶ 51-52.
In the middle of February, Plaintiff was in the kitchen with Ms. Icahn's personal assistant, Leslie Lane ("Lane"), when Ms. Icahn entered the kitchen complaining that Mr. Icahn's bed had not been made properly, pointing at Plaintiff. SAC ¶¶ 54-55. Plaintiff pointed out that this was Lane's responsibility, to which Icahn responded: "[s]uck it up, you need to pay your rent." SAC ¶ 57. Icahn later told Plaintiff that making the bed was now her responsibility. SAC ¶ 58.
Around the end of February, Ms. Icahn asked Plaintiff to drive her to the Upper East Side. SAC ¶ 59. When Plaintiff got in the car, she spend a minute familiarizing herself with the car, causing Icahn to yell, "What the fuck are you doing, just drive." SAC ¶ 60. Icahn proceeded to complain about Plaintiff's slow driving, and, when Plaintiff asked for assistance with directions, Icahn told her to "[r]ead the fucking signs and make the light." SAC ¶¶ 62-63. When Plaintiff accelerated to make the light, Icahn complained, "[y]ou're going too fast." SAC ¶ 64. After Icahn told Plaintiff to "tailgate" the car in front and Plaintiff asked what that meant, Icahn said, "[y]ou need to learn how to drive this fucking car." SAC ¶¶ 65-66.
Around the end of March, when Plaintiff told Ms. Icahn that she would check to see if the chef had prepared a "pan of soup" for dinner, Icahn replied, "[i]t's a pot, not a pan. You and your stupid accent." SAC ¶¶ 67-68. Another time, when Plaintiff was dropping Ms. Icahn off, Icahn told her to not "tell Mr. Icahn you dropped me off here." SAC ¶ 69. Plaintiff responded that she did not want to lie to Mr. Icahn, to which Icahn replied that she "will do as you're told, fucking think of something." SAC ¶¶ 70-71.
In another incident, also around the same time, Ms. Icahn had asked Plaintiff to cook dinner for her guests, and asked her what she was good at cooking. SAC ¶ 72. After Plaintiff told Icahn that she only had difficulty cooking fish, Icahn told her to make fish. SAC ¶¶ 73-74. The next day, Icahn told Plaintiff, "English people are not known for cooking but apparently your food is better than a trained chef's. So from now on, you're going to be doing a lot more cooking." SAC ¶ 75.
At some point, Karen Bush ("Bush") was appointed as Ms. Icahn's personal assistant, and assumed the role of Plaintiff's supervisor. SAC ¶¶ 76-77. On or about June 10, 2015, Bush told Plaintiff that she had to sleep over at the 53
On or around June 11, 2015, Ms. Icahn went to the Hamptons for the summer. SAC ¶ 88. While she was there, she did not communicate directly with Plaintiff, but only through Bush. SAC ¶ 89. In July, Bush told Plaintiff that she had to stay overnight again, to which Plaintiff refused, citing the failure to pay overtime. SAC ¶¶ 90-91. Bush told Plaintiff she was being insubordinate and would "call HR." SAC ¶ 92. Bush called Loren Miller ("Miller") of Personnel, who told Bush that Plaintiff was not to do anything that was not part of her job description. SAC ¶¶ 94-95. Bush informed Ms. Icahn that Miller told her that Plaintiff was not to sleep over, to which Icahn became infuriated, yelling at Bush, "Who the fuck told you to go over my head and go to human resources, I am in charge of the house, not you." SAC ¶¶ 96-97.
Plaintiff was scheduled to take two weeks' leave in August 2015. SAC ¶ 99. Though Ms. Icahn had approved the leave, Bush told Plaintiff that when Bush reminded Ms. Icahn about the leave, she "went ballistic[,]" stating that if she had her way, Plaintiff would never get vacation. SAC ¶¶ 99-101. Bush told Plaintiff that Ms. Icahn "really ha[d] it in for [Plaintiff]." SAC ¶ 101.
Ms. Icahn had also told Plaintiff that she would be responsible for supervising construction at the 53
On or around September 9, 2015, Ms. Icahn returned from the Hamptons and began "harass[ing]" Plaintiff for complaining about being required to work overtime without pay. SAC ¶¶ 110-12. On September 9, 2015, Ms. Icahn criticized Plaintiff for coming to work early and for working late. SAC ¶¶ 113(a)-(b). On September 11, 2015, Ms. Icahn complained to Plaintiff that her "service last night was terrible, and the table setting was ugly and the napkins were hideous." SAC ¶ 113(c). She warned Plaintiff that she "better start to do a better job." Id. The same day, Ms. Icahn criticized Plaintiff for the way her bathroom had been cleaned-even though it was not Plaintiff's responsibility-saying: "[m]y bathroom is filthy, you didn't clean my bathroom properly." SAC ¶ 113(d). Icahn also accused Plaintiff of being a liar, saying to her: "You're always lying and trying to blame other people because you don't do your job properly. When I told you to clean my jewelry with ammonia, you did what you wanted." SAC ¶ 113(e).
On September 15, 2015, Ms. Icahn accused Plaintiff of being responsible for a missing 22 carat diamond ring that Ms. Icahn had placed in a shopping bag. SAC ¶ 114. She called Plaintiff an "idiot," told her that she was "in big trouble," and threatened to call the police commissioner. Id. Icahn later located her ring in a safe at the 53
On September 18, 2015, Ms. Icahn criticized Plaintiff for being late, even though she was early. SAC ¶ 117. Later that day, Ms. Icahn told Plaintiff that, "I have spoken with Mr. Icahn and Carl has decided you are overqualified for the job, and therefore highly unsuitable." SAC ¶ 118. She gave Plaintiff a separation letter and told her that she would give her a severance payment and a "great reference." SAC ¶ 123. She told Plaintiff that she "already called Pavilion and spoke to them. I told them you are so talented you would be able to run a household all by yourself, so you won't have a problem finding a job quickly." SAC ¶ 124. That day, Plaintiff spoke to Aguilar, who told Plaintiff that there was a job for Plaintiff and she would send along her resume. SAC ¶ 125. However, Aguilar never contacted Plaintiff about that job, and, from September 19, 2015, to December 2015, Pavilion did not contact Plaintiff about job opportunities (despite posting many applicable opportunities on their website). SAC ¶¶ 126-28.
In December 2015, Aguilar called Plaintiff and told her that the available jobs did not pay enough for her, and that Pavilion was waiting for something special for her. SAC ¶ 130. Since then, Aguilar has only sent Plaintiff to two interviews. SAC ¶ 131. One of those interviews was successful, but Pavilion ultimately opted to place another individual at that position. SAC ¶ 132. Plaintiff claims that Ms. Icahn made negative statements about Plaintiff to Pavilion and told Pavilion not to help Plaintiff obtain a new job, thus rendering her unable to find work. SAC ¶¶ 133-35.
On October 22, 2015, Plaintiff filed charges of discrimination with the New York State Division of Human Rights ("NYSDHR") and Equal Employment Opportunity Commission ("EEOC") regarding her treatment and termination (the "Charge"). SAC ¶ 129; see Declaration of Eli Freedberg ("Freedberg Decl."), Ex. A.
On September 20, 2016, Plaintiff filed this action pro se against Personnel. See Complaint (ECF No. 2). After the Court ordered that Plaintiff amend her complaint to adequately state claims for gender and national origin discrimination, Plaintiff filed an amended complaint on December 14, 2016. See Amended Complaint (ECF No. 5). After Personnel sought to file a motion to dismiss the Amended Complaint because Plaintiff failed to state a claim and because the Amended Complaint contained allegations outside of the scope of the Charge (see Pre-Motion Letter (ECF No. 17)), Plaintiff amended her complaint on July 21, 2017, adding Ms. Icahn as a defendant, and asserting the following claims: (1) national origin discrimination claims under Title VII, NYSHRL, and NYCHRL; (2) gender discrimination claims under Title VII, NYSHRL, and NYCHRL;
Specifically, Plaintiff claims that Ms. Icahn's statement that she was overqualified was pretextual, given that Icahn was aware of Plaintiff's qualifications at the time Plaintiff was hired. SAC ¶ 119; see SAC ¶ 33 (indicating Ms. Icahn had Plaintiff's resume during interview). Plaintiff further alleges that her termination was in retaliation for her complaining about her overtime, or, alternatively, on the basis of her national origin or gender. SAC ¶¶ 120-22. As evidence of national origin discrimination, Plaintiff cites to a number of Ms. Icahn's remarks regarding her English origin, e.g., SAC ¶¶ 48, 52. And, as evidence of gender discrimination, Plaintiff cites to, among other things, a New York Post article discussing Ms. Icahn's tendency to terminate female employees that are "younger" and "tech-savvy". SAC at 21.
On September 20, 2017, the Court granted Defendants leave to file a motion to dismiss Plaintiff's Second Amended Complaint and set a briefing schedule. See Order (ECF No. 32). The motion was fully briefed as of December 13, 2017, and this decision now follows.
To survive a motion to dismiss, a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The pleading "need not include detailed factual allegations, but must contain sufficient factual matter . . . to state a claim to relief that is plausible on its face." Corona Realty Holding, LLC v. Town of N. Hempstead, 382 F. App'x 70, 71 (2d Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (internal quotations omitted). Recital of the elements of a cause of action, "supported by mere conclusory statements," is insufficient to show plausibility. Id. at 72. And yet "[a] document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted) (internal quotations omitted). Indeed, "the pleadings of a pro se plaintiff . . . should be interpreted to raise the strongest arguments that they suggest." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (internal quotations omitted).
Defendants seek dismissal of Plaintiff's Title VII claims for failure to exhaust her administrative remedies before the EEOC. Plaintiff argues that the allegations of discrimination and hostile work environment in her Second Amended Complaint are reasonably related to the allegations in her administrative charge. Alternatively, she contends that the NYSDHR representative who assisted her in drafting her administrative charge erred in failing to include the full extent of her charges. Both arguments are unavailing.
"Exhaustion of administrative remedies through the EEOC is `an essential element' of the Title VII . . . statutory scheme[ ] and, as such, a precondition to bringing such claims in federal court." Francis v. City of New York, 235 F.3d 763, 768 (2d Cir. 2000). Prior to bringing an action pursuant to Title VII, a plaintiff is required to file a charge setting forth her claims with the EEOC within 300 days of the alleged acts of which she complains. See Williams v. N.Y.C. Housing Authority, 458 F.3d 67, 70 (2d Cir. 2006). "Claims not raised in an EEOC complaint . . . may be brought in federal court if they are `reasonably related' to the claim filed with the agency." Williams, 458 F.3d at 70. "There are three types of reasonably related claims: (1) claims that fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination; (2) claims that allege retaliation arising from the filing of an EEOC charge; and (3) claims that allege further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge." Roff v. Low Surgical & Med. Supply, Inc., No. CV033655 (SJF) (JMA), 2004 WL 5544995, at *2 (E.D.N.Y. May 11, 2004) (quoting Butts v. City of N.Y. Dep't of Hous. Preservation and Dev., 990 F.2d 1397, 1402-1403 (2d Cir. 1993)) (internal quotation marks omitted). It is beyond dispute that only the first category of claims is at issue here.
"[T]he burden of pleading and proving Title VII exhaustion lies with defendant and operates as an affirmative defense." Hardaway v. Hartford Pub. Works Dep't, 879 F.3d 486, 491 (2d Cir. 2018). When such an argument is asserted at the motion to dismiss stage, non-exhaustion must be clear from the face of the complaint (and incorporated documents). Jordan v. Forfeiture Support Assocs., 928 F.Supp.2d 588, 594 n.5 (E.D.N.Y. 2013) (citing, inter alia, McCoy v. Goord, 255 F.Supp.2d 233, 251 (S.D.N.Y. 2003)).
A court evaluating a claim of non-exhaustion must consider whether "the factual allegations made in the administrative complaint can be fairly read to encompass the claims ultimately pleaded in a civil action." Mathirampuzha v. Potter, 548 F.3d 70, 77 (2d Cir. 2008). Thus, the focus should be on the factual allegations in the administrative complaint, rather than what formal labels are attributed to such allegations, or what boxes are checked. Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003).
In Plaintiff's Second Amended Complaint, she has asserted that she was discriminated against on the basis of her gender and national origin and subject to a hostile work environment. SAC ¶¶ 137, 140-41. However, Plaintiff did not assert such claims in her EEOC charge. See Freedberg Decl., Ex. A. Rather, her charge is based exclusively upon having been retaliated against for opposing discrimination, a different charge than discrimination itself. Roff, 2004 WL 5544995, at *3. In regards to her retaliation claim, the charge then goes on to describe the two instances of her refusing to stay overnight and attend to Mr. Icahn, which she claims caused Ms. Icahn to speak to her in a demeaning manner with foul language. Freedberg Decl., Ex. A. Then, the charge summarizes the September 14, 2015 incident when Ms. Icahn mistakenly accused Plaintiff of being responsible for her missing jewelry, which she claims resulted in her "being terminated." Id.
At no point, however, does Plaintiff describe the discriminatory conduct purportedly underlying the retaliation. Rather, the alleged retaliatory acts appear to arise predominantly from Plaintiff's complaints regarding having to work overtime and the jewelry incident, not from any complaints she made regarding national origin or gender discrimination. However, even had plaintiff properly alleged retaliation for complaining of discrimination, she would also be required to separately exhaust a claim for the underlying discrimination (which she has not done). Roff, 2004 WL 5544995, at *3.
As such, even drawing all reasonable inferences in favor of Plaintiff as required at this stage, Defendants have amply demonstrated Plaintiff's failure to exhaust her administrative remedies before the EEOC. Holding otherwise would frustrate the purpose of the notice provision, which is to encourage settlement by allowing administrative agencies "the opportunity to `investigate, mediate, and take remedial action . . .'" Dukes v. Steinman, Boynton, Gronquist & Birdsall, No. 93-CV-7044 (RO), 1994 WL 406090, at *1 (S.D.N.Y. July 29, 1994) (quoting Butts, 990 F.2d at 1401-02). As the NYSDHR decisions make clear, without an allegation that Plaintiff was a member of a protected class, or that there was a nexus between an adverse employment action and protected class membership, such a claim was impossible to investigate. See Freedberg Decl. Ex. B (suggesting that basis of opposed discrimination/retaliation was not subject to anti-discrimination provisions of NYSHRL); see also NYSDHR 12/19/17 Memo. at 2 (ECF No. 48-2) (elaborating on the basis of this conclusion).
However, Plaintiff alternatively claims that the representative at NYSDHR who assisted her with drafting her charge failed to properly include all of her allegations, including gender and national origin discrimination. Plaintiff attaches numerous exhibits to her opposition brief, including multiple pages of handwritten notes which she claims were given to the representative for the purpose of drafting her complaint. However, even if these submissions could be properly considered at this stage,
"When allegations are excluded from a charge of discrimination due to agency error, a court may find those allegations properly exhausted despite the fact that they were not included in the charge." Winston v. Mayfair Care Ctr., Inc., No. 09-CV-4792 (ARR) (LB), 2011 WL 10045251, at *9 (E.D.N.Y. Mar. 4, 2011) (citing, inter alia, Deravin, 335 F.3d at 203). Courts have thus considered documents such as intake questionnaires for the purposes of assessing a plaintiff's claim of administrative error to account for a failure to exhaust. Id. (surveying cases).
Here, Plaintiff's submissions do not establish that she has exhausted her administrative remedies because they do not allege that Defendants mistreated Plaintiff or based any adverse employment action on her gender or national origin. Indeed, as Plaintiff's own opposition brief betrays, the bulk of her newly-submitted materials only serve to bolster the conclusion that her administrative claim was focused exclusively upon retaliation for her complaints about overtime, rather than discrimination. See Plaintiff's Memorandum of Law in Opposition of Defendants' Motion to Dismiss ("Pl's Mem.") at 4-7 (ECF No. 42) (arguing that supplemental materials establish Plaintiff was complaining about discrimination to NYSDHR, but failing to cite to a single example of allegation that Plaintiff was member of protected class, or discriminatory animus); see also Pl's Mem. Exs. A-I (pages of notes and correspondence describing the same incidents reflected in Plaintiff's charge, including incidents involving harassment and foul language, with only a few vague and passing references to "discrimination"). Thus, unlike the above-cited cases that have considered other materials to excuse a failure to exhaust, where some evidence has verified Plaintiff's claim to administrative error, here, Plaintiff's own documentation does not even substantiate her claim of having asserted discrimination to the NYSDHR investigator, but instead substantially mirrors the notice of charge that the NYSDHR investigator ultimately drafted. See, e.g., Deravin, 335 F.3d at 203 (noting that discrepancy between initial administrative complaint and EEOC notice of charge "verifie[d] Deravin's claim of administrative error" and would require court to make credibility determination inappropriate for Rule 12 stage).
Accordingly, the Court must dismiss any gender or national origin discrimination claim Plaintiff asserts in this action, and need not reach Defendants' alternative arguments.
With Plaintiff's Title VII claims dismissed, the only remaining federal claim is her FLSA cause of action. However, Plaintiff fails to allege a sufficient causal nexus to support a FLSA retaliation claim.
The anti-retaliation provision of the FLSA provides that it is unlawful "to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter." 29 U.S.C. § 215(a)(3). A complaint asserting an FLSA retaliation must allege facts demonstrating: "(1) participation in protected activity known to the defendant, like the filing of a FLSA lawsuit; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action." Kassman v. KPMG LLP, 925 F.Supp.2d 453, 472 (S.D.N.Y. 2013) (quoting Mullins v. City of New York, 626 F.3d 47, 53 (2d Cir. 2010)) (internal quotation marks omitted).
As to the causal connection element, Plaintiff may specifically allege a connection either "directly, by alleging facts of a retaliatory animus against him," or "indirectly, either by showing a temporal relationship in which the protected activity was followed closely in time by discriminatory treatment, or by other circumstantial evidence." McManamon v. Shinseki, No. 11-CV-7610 (PAE), 2013 WL 3466863, at *12 (S.D.N.Y. July 10, 2013). However, temporal proximity "must be very close" for the purposes of retaliation claim. Abrams v. Dep't of Pub. Safety, 764 F.3d 244, 254 (2d Cir. 2014). "[C]ourts in this Circuit have consistently held that the passage of two to three months between the protected activity and the adverse employment action does not allow for an inference of causation." Straebler v. NBC Universal, Inc., No. 11-CV-4131 (DAB), 2013 WL 541524, at *8 (S.D.N.Y. Feb. 11, 2013) (quoting Beachum v. AWISCO N.Y., 785 F.Supp.2d 84, 98 (S.D.N.Y. 2011)).
Here, Plaintiff has failed to adequately demonstrate causation. Plaintiff alleges that she twice complained about not being paid for her overtime, on June 10 and again "around the 2
Plaintiff's counterarguments that Ms. Icahn delayed in firing her because of her travel schedule is belied by her own pleadings, which describe how Ms. Icahn was still in close contact with her staff by telephone during her vacation and still making personnel decisions. SAC ¶¶ 81, 97. To be sure, Plaintiff does allege that, upon Ms. Icahn's return from her vacation in September, she received vague criticisms that appear to have been directed toward her complaints about the hours that she worked. See SAC ¶¶ 113(a)-(b).
But even were the Court to credit that allegation as sufficient to establish causation despite the significant temporal gap, Plaintiff's claim fails for the wholly separate reason that she has not adequately alleged participation in protected activity known to the defendant. For an oral complaint regarding overtime pay to satisfy this standard, it must be "sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the [FLSA] and a call for their protection." Dunn v. Sederakis, 143 F.Supp.3d 102, 111 (S.D.N.Y. 2015) (quoting Greathouse v. JHS Sec. Inc., 784 F.3d 105, 107 (2d Cir. 2015)). Some courts in this Circuit have suggested that, short of an express invocation of the FLSA, the oral complaint must be "framed in terms of potential illegality" in order to be considered protected activity. Id. (surveying cases). Others have applied a more lenient standard, suggesting that, at a minimum, the complaint must provide a "clear articulation of facts indicative of illegality[,]" as opposed to "mere `abstract grumblings[.]'" Id. (citing Valerio v. Putnam Assocs., Inc., 173 F.3d 35, 44 (1st Cir. 1999)).
Even applying the latter standard, Plaintiff's allegations do not pass muster. At the outset, there is there no allegation that Plaintiff invoked the FLSA or accused Defendants of illegality. Moreover, Plaintiff's June complaint mostly conveys concern over being less qualified than a nurse to work "overtime" to care for Mr. Icahn. Her general inquiry about whether she would receive "overtime pay" and why she had to work overtime shifts that others did not can hardly be distinguished from a complaint about Defendants' failure to follow internal policy or her contractual rights, rather than an illegality pursuant to the FLSA. SAC ¶ 82; see Dunn, 143 F. Supp. 3d at 113-14 (drawing similar distinction). Plaintiff's July complaint fares no better, as, again, it appears to have been directed solely toward internal policies, rather than an illegality. See SAC ¶ 91 (complaining that staying overnight, presumably to care for Mr. Icahn, was in Bush's job description, not Plaintiff's). As such, Plaintiff pleadings, even read in a light most favorably to her, do not suggest that a "finder of fact could . . . find . . . that her words were `sufficiently clear and detailed . . . in light of both content and context' to convey that [Plaintiff] was asserting her legal rights under the FLSA." Dunn, 143 F. Supp. 3d at 114 (quoting Greathouse, 784 F.3d at 107) (emphasis added).
For these reasons, Plaintiff's FLSA claim is dismissed.
This Court's subject matter jurisdiction arises from federal question jurisdiction under 28 U.S.C. § 1331. See SAC at 3. Since this Court has dismissed Plaintiff's federal law claims, it must next consider whether it is appropriate to exercise supplemental jurisdiction over the state and local law claims that remain.
Under 28 U.S.C. § 1367(a), district courts have "supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." Claims "form a part of the same case or controversy" if they "derive from a common nucleus of operative fact." Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 308 (2d Cir. 2004). Here, Plaintiff's state, city, and federal claims arise from a common nucleus of operative facts regarding Plaintiff's employment relationship with Defendants.
"The exercise of supplemental jurisdiction is left to the discretion of the district court." First Capital Asset Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159, 182 (2d Cir. 2004). A court balances "several factors, including considerations of judicial economy, convenience, and fairness to litigants." Id. at 183 (quoting Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir. 1994)). When "all federal-law claims are eliminated before trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the remaining state-law claims." Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d Cir. 2003) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)).
Here, this Court has dismissed the federal claims well before trial. Accordingly, this Court exercises its discretion, in the interests of judicial economy, convenience, and fairness, to decline to exercise supplemental jurisdiction over Plaintiff's state and city law claims. See, e.g., Heard v. MTA Metro-N. Commuter R. Co., No. 02-CV-7565 (JGK), 2003 WL 22176008, at *5 (S.D.N.Y. Sept. 22, 2003) (declining to exercise supplemental jurisdiction over state law claims after dismissing discrimination claims at motion to dismiss stage).
For the aforementioned reasons, Defendants' Motion to Dismiss is GRANTED. The Clerk of Court is respectfully directed to terminate all pending motions and close this case.
In addition, the Court finds, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 445 (1962).
