Preview
(FILED: NEW YORK COUNTY CLERK 05/2272013) INDEX NO. 151482/2013
NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 05/22/2013
McElroy, Deutsch, Mulvaney & Carpenter, LLP
88 Pine Street, 24” Floor
New York, New York 10005
(212) 483-9490
Attorneys for Defendant,
RBC Capital Markets, LLC
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
BHAVYA SHAH,
Index No.: 151482/13
Plaintiff,
REPLY AFFIRMATION OF
Vv. MARGARET L. WATSON, ESQ.
RBC Capital Markets, LLC,
Defendant.
Margaret L, Watson, an attorney duly admitted to practice law in the State of New York,
affirms under penalties of perjury that:
1 Tam a member of the Bar of the State of New York and am Of Counsel to the law
firm, McElroy, Deutsch, Mulvaney & Carpenter, LLP, counsel for Defendant RBC Capital
Markets, LLC (“RBC”). As such, I am fully familiar with the facts, circumstances and
proceedings in this matter based upon the documents contained in my file. , I submit this Reply
Affirmation in further support of Defendant’s Motion to Dismiss the Complaint Pursuant to CPLR
321 1{a)(1), (a)(4) and (a)(7).
2, In opposition to Defendant’s motion, Plaintiffs counsel has filed a Memorandum of
Law in Opposition to Defendant’s Motion to Dismiss (“P1. Memo”) and an Affirmation of Counsel
(Affirmation of Michael G. O’Neill) attaching an Amended Verified Complaint. Although
Plaintiff's counsel did not provide a notice of cross-motion or fashion the Amended Verified
Complaint as “proposed,” his arguments in opposition to the instant motion include reliance on the
sufficiency of the pleading as amended. (See, Pl. Memo at 6). In an effort to avoid unnecessary
additional motion practice, Defendant will accept for purposes of this motion the Amended
Complaint as it if were properly filed. The Amended Complaint nonetheless does not cure the
defects in Plaintiff's pleading and accordingly Defendant’s motion to dismiss should be granted.
PRELIMINARY STATEMENT
3 Plaintiff's opposition papers misconstrue Defendant’s argument to indicate that a
claim for retaliation arising from Plaintiff's termination from employment is not a separate cause
of action. Defendant does not contend that Plaintiff could not assert a separate claim of retaliation
arising out of events relating to the termination of her employment. Rather, Defendant contends
that:
a. if Plaintiff had such a claim, she was required to bring it in the action that she
commenced before Justice Rakower;
that her attempt to bring that claim in a separate action violates the doctrine against
splitting causes of action, as the instant claim arises from the same underlying facts as
the retaliation claim pending before Justice Rakower; and
that Plaintiff has nonetheless failed to state a cognizable claim of retaliation by the
instant Complaint and now the proposed Amended Verified Complaint.
4 Accordingly, for the reasons set forth in Defendant’s moving papers, Defendant
respectfully submits that the Court should dismiss this action with prejudice or, in the alternative,
dismiss this action without prejudice so to permit Plaintiff the opportunity to seek leave to assert
her claim for retaliation arising out of the 2012 termination of her employment before Justice
Rakower, as Justice Rakower originally ordered in her September 11, 2012 Order.
2070082_1
STATEMENT OF FACTS
5 In his opposition papers, Plaintiff's counsel concedes a number of critical points,
First, he concedes that Plaintiff sought to raise the instant claim of alleged retaliatory discharge
before Justice Rakower against Defendant’s objections,' and that Justice Rakower directed
Plaintiff to proceed by notice of motion to amend. (PI. Memo at 2, 5 ). Plaintiff’s counsel also
admits Justice Rakower set a briefing schedule for that motion and Plaintiff freely chose (i) not to
comply with that briefing schedule and, indeed, (ii) not to seek to amend or to raise her claim of
retaliatory discharge — despite the opportunity to do so. (Id. at 5).
6. Plaintiff also concedes that alleged retaliation outlined herein arises from the same
underlying events and claims of discrimination that underlie the prior action. (See Amended
Complaint at (99-10; 11, 13, 14, 15, 16, 23). In other words, to support a claim of unlawful
retaliation under either New York City or New York State law, Plaintiff must plead and ultimately
prove that she engaged in protected activity, namely that she complained of unlawful
discrimination, that she suffered an alleged adverse action or was treated in a manner that was
“reasonably likely to deter a person from engaging in a protected activity,” and that the protected
activity caused the adverse action, See Williams v. New York City Hous. Auth., 872 N.Y.S.2d
27, 34 (Ist Dep’t 2009). Here, although the evidence of retaliation differs, ¢.g., a retaliatory
discharge in January 2012 as opposed to alleged retaliatory failure to pay a bonus and advance the
Plaintiff's career in 2008 or 2009 or 2010, the allegations in both actions involve the same
elements of the underlying protected activity (namely the alleged complaint(s) of discrimination by
Steven Paskal) against the same defendant (RBC Capital Markets, LLC) and the same alleged
retaliatory animus (Amended Complaint at 423). Thus, Plaintiff concedes the essential points
' Because Plaintiff never moved to amend in the First Action, Defendant’s objections were never put before the
Court in that action. However, the objection in that action was based upon the same lack of evidence that has been
raised in the instant motion,
2070082_1
mandating dismissal: to permit a separate action would open up this case to potential contradicting
findings on whether the underlying claim of discrimination is sufficient and whether the Plaintiff
can prove discriminatory animus. Plaintiff's reliance on National Railroad Passenger Corp, v.
Morgan is misguided, as that case addresses the viability of a claim under the applicable statute of
limitations (536 U.S. 101, 111, 122 S. Ct. 2061, 2071 (2002)), and does not address the doctrine of
res judicata and the rule against splitting causes of action, underpinned by entirely separate
concerns of judicial economy and the desire for consistent outcomes.
7 Lastly, Plaintiff concedes that she has no facts to plead a causal connection between
the allegedly retaliatory action and the alleged protected activity or prior complaints of
discrimination by Plaintiff. Apparently acknowledging that, as a matter of Jaw, there is no
temporal connection between the termination of her employment in January 2012 and her prior
complaints of discrimination that could give rise to an inference or presumption of the requisite
retaliatory animus, in a futile attempt to plead facts sufficient for that connection, Plaintiff alleges
in the proposed Amended Complaint that the Defendant’s termination of her employment was
somehow tied to her production of documents in litigation. This is wrong, both as a matter of law
and fact. First, as a matter of law, producing documents is not “protected activity” that could give
rise to a claim of unlawful retaliation (nor is the keeping of the records like those produced).
Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 313, 819 N.Y.S.2d 382, 396 (2004) (defining
a protected activity as “opposing or complaining about unlawful discrimination” under both the
City and State Human Rights Laws and defining same as a required element of a claim), Because
an unlawful retaliation claim must include an allegation of recognized protected activity (which
this is not), the new allegation fails as a matter of law. Moreover, the allegation fails as a matter of
fact because the “documents which revealed that plaintiff had been keeping detailed notes of
2070082_1
|
|
defendant’s retaliatory actions” (Plaintiff's Memo at 7-8), BBS000175-297, were in fact produced
in the Plaintiff's original production in the Federal Action, in or around April 2011. Thus, the
allegation that this was newly-received information on January 23, 2012 is entirely without merit
and is contradicted by the procedural history of this case.
LEGAL ARGUMENTS
8 Knowing that Justice Rakower specifically granted her an opportunity to try to
plead her claim of retaliation arising from the termination of her employment in the First Action,
Plaintiff chose not to do so. She now argues that she can pursue her case under two separate
actions, mistaking the designation of a claim as timely for one that is in all regards properly
asserted. Plaintiff would have this Court believe that a plaintiff is always free to bring any
“portion” of her case as a separate action, so long as the statute of limitations has not run. This is
simply not the law. Respectfully, this Court should exercise its discretion to prevent judicial waste
and impermissible forum-shopping on claims arising out of the same set of facts already asserted
in a pending action. See Majer-Schule GMC, Inc. v. Gen, Motors Corp., 210 A.D.2d 963, 963,
620 N.Y.S.2d 684, 684-85 (2d Dep’t 1994) (“It is apparent that plaintiff clected to litigate its
causes of action in Federal court. It should not now be permitted to relitigate those causes of
action in State court [after an unfavorable decision was rendered by the Federal court].”); Colon v.
Gold, 166 A.D.2d 406, 407, 560 N.Y.S.2d 470, 471 (2d Dep’t 1990) (dismissing under CPLR
3211{a)(4) on reversal because, “(t]he conduct of the plaintiffs counsel in indiscriminately
commencing multiple lawsuits emanating from the same underlying events will not be
condoned”); GSL Enters., Inc. v, Citibank, N.A., 155 A.D.2d 247, 546 N.Y.8.2d 857, 858 (ist
Dep’t 1989) (affirming dismissal pursuant to CPLR 3211(a)(4) because, “a pending action existed
2070082_1
between the same parties for essentially the same relief and involving the same actionable
wrong”).
9 Upon failing to move to amend in accordance with Justice Rakower’s deadline,
is admitted by the Plaintiff, the proper course of action would be to seek additional time before that
Court, and not to attempt to circumvent the order by initiating a second, duplicative action.
Notably Plaintiff cannot here state a cognizable claim of unlawful retaliation arising from the
January 2012 termination of her employment -- nor can she state such a claim before Justice
Rakower — because as a matter of law there is no relationship between that event and her earlier
complaints of discrimination. Accordingly, this Court should dismiss with prejudice the Plaintifi?s
claim, or, alternatively, dismiss the action with leave for Plaintiff to attempt to bring the claim
before Justice Rakower in the action where there has been discovery relating to all of Plaintiff's
prior complaints of discrimination, Defendant's knowledge of same, and Defendant’s reasons for
the various actions that it took with respect to the terms and conditions of Plaintiff's employment,
including her discharge.
10. Before concluding, Defendant further notes that Plaintiff's arguments in opposition
to the Motion to Dismiss also fail to comprehend the applicable pleading standard. While the
Defendant does not dispute that a broad standard is applicable under the City Code, a broad
standard does not mean NO standard. Even under the City Code, a plaintiff is required to set forth
the basic elements of a retaliation claim, namely: “(1) [the claimant] has engaged in protected
activity, (2) her employer was aware that she participated in such activity, (3) she suffered an
adverse employment action based upon her activity, and (4) there is a causal connection between
? The Defendant's motion to consolidate is currently pending before Justice Rakower. Although Defendant
concedes the newly-alleged retaliation claim is not barred under the statute of limitations, at this juncture, the i
Plaintiff will need to move to set aside the note of issue that Justice Rakower ordered must be filed before the return
date of this motion (on or before May 20, 2013).
2070082_1
the protected activity and the adverse action.” Forrest, , 3 N.Y.3d at 312-13, The cases cited by
Plaintiff in support of the fact that temporal proximity “is just one part of the circumstantial and
direct evidence a plaintiff may adduce” in order to prove the fourth element of causation (Pl.
Memo at 8) all include alternative means of proving causation (direct evidence of animus such as
verbal or written remarks and disparate treatment of fellow employees who engaged in conduct
similar to plaintiff) (Id.). Here, Plaintiff has provided nothing other than an attempt at showing
temporal proximity in order to establish causation, and the law is clear that the alleged termination
in 2012 based on complaints that began in 2008 is simply not close enough in time. See
Defendant’s Memorandum of Law in Support of Defendant’s Motion to Dismiss the Complaint
Pursuant to CPLR 3211(a)(1), (a)(4) AND (a){7) at 8-9. Plaintiff's attempt to close the temporal
gap on the basis of the production of her notes is unsupported by both the law and the facts. See
infra, 7.
WHEREFORE, Defendant respectfully requests that the Court enter an Order dismissing
the Complaint and the improperly-filed Verified Amended Complaint in this action in their
entirety, with prejudice, pursuant to CPLR 3211(a)(1), (a)(4) and (a)(7), and for such other and
further relief as this Court deems just and proper.
MCELROY, DEUTSCH, MULVANEY &
CARPENTER, LLP
Attorneys for Defendant
RBC Capital Markets, LLC
Dated: May 22, 2013
New York, New York
2070082_1
Preview
(FILED: NEW YORK COUNTY CLERK 05/2272013) INDEX NO. 151482/2013 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 05/22/2013 McElroy, Deutsch, Mulvaney & Carpenter, LLP 88 Pine Street, 24” Floor New York, New York 10005 (212) 483-9490 Attorneys for Defendant, RBC Capital Markets, LLC SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK BHAVYA SHAH, Index No.: 151482/13 Plaintiff, REPLY AFFIRMATION OF Vv. MARGARET L. WATSON, ESQ. RBC Capital Markets, LLC, Defendant. Margaret L, Watson, an attorney duly admitted to practice law in the State of New York, affirms under penalties of perjury that: 1 Tam a member of the Bar of the State of New York and am Of Counsel to the law firm, McElroy, Deutsch, Mulvaney & Carpenter, LLP, counsel for Defendant RBC Capital Markets, LLC (“RBC”). As such, I am fully familiar with the facts, circumstances and proceedings in this matter based upon the documents contained in my file. , I submit this Reply Affirmation in further support of Defendant’s Motion to Dismiss the Complaint Pursuant to CPLR 321 1{a)(1), (a)(4) and (a)(7). 2, In opposition to Defendant’s motion, Plaintiffs counsel has filed a Memorandum of Law in Opposition to Defendant’s Motion to Dismiss (“P1. Memo”) and an Affirmation of Counsel (Affirmation of Michael G. O’Neill) attaching an Amended Verified Complaint. Although Plaintiff's counsel did not provide a notice of cross-motion or fashion the Amended Verified Complaint as “proposed,” his arguments in opposition to the instant motion include reliance on the sufficiency of the pleading as amended. (See, Pl. Memo at 6). In an effort to avoid unnecessary additional motion practice, Defendant will accept for purposes of this motion the Amended Complaint as it if were properly filed. The Amended Complaint nonetheless does not cure the defects in Plaintiff's pleading and accordingly Defendant’s motion to dismiss should be granted. PRELIMINARY STATEMENT 3 Plaintiff's opposition papers misconstrue Defendant’s argument to indicate that a claim for retaliation arising from Plaintiff's termination from employment is not a separate cause of action. Defendant does not contend that Plaintiff could not assert a separate claim of retaliation arising out of events relating to the termination of her employment. Rather, Defendant contends that: a. if Plaintiff had such a claim, she was required to bring it in the action that she commenced before Justice Rakower; that her attempt to bring that claim in a separate action violates the doctrine against splitting causes of action, as the instant claim arises from the same underlying facts as the retaliation claim pending before Justice Rakower; and that Plaintiff has nonetheless failed to state a cognizable claim of retaliation by the instant Complaint and now the proposed Amended Verified Complaint. 4 Accordingly, for the reasons set forth in Defendant’s moving papers, Defendant respectfully submits that the Court should dismiss this action with prejudice or, in the alternative, dismiss this action without prejudice so to permit Plaintiff the opportunity to seek leave to assert her claim for retaliation arising out of the 2012 termination of her employment before Justice Rakower, as Justice Rakower originally ordered in her September 11, 2012 Order. 2070082_1 STATEMENT OF FACTS 5 In his opposition papers, Plaintiff's counsel concedes a number of critical points, First, he concedes that Plaintiff sought to raise the instant claim of alleged retaliatory discharge before Justice Rakower against Defendant’s objections,' and that Justice Rakower directed Plaintiff to proceed by notice of motion to amend. (PI. Memo at 2, 5 ). Plaintiff’s counsel also admits Justice Rakower set a briefing schedule for that motion and Plaintiff freely chose (i) not to comply with that briefing schedule and, indeed, (ii) not to seek to amend or to raise her claim of retaliatory discharge — despite the opportunity to do so. (Id. at 5). 6. Plaintiff also concedes that alleged retaliation outlined herein arises from the same underlying events and claims of discrimination that underlie the prior action. (See Amended Complaint at (99-10; 11, 13, 14, 15, 16, 23). In other words, to support a claim of unlawful retaliation under either New York City or New York State law, Plaintiff must plead and ultimately prove that she engaged in protected activity, namely that she complained of unlawful discrimination, that she suffered an alleged adverse action or was treated in a manner that was “reasonably likely to deter a person from engaging in a protected activity,” and that the protected activity caused the adverse action, See Williams v. New York City Hous. Auth., 872 N.Y.S.2d 27, 34 (Ist Dep’t 2009). Here, although the evidence of retaliation differs, ¢.g., a retaliatory discharge in January 2012 as opposed to alleged retaliatory failure to pay a bonus and advance the Plaintiff's career in 2008 or 2009 or 2010, the allegations in both actions involve the same elements of the underlying protected activity (namely the alleged complaint(s) of discrimination by Steven Paskal) against the same defendant (RBC Capital Markets, LLC) and the same alleged retaliatory animus (Amended Complaint at 423). Thus, Plaintiff concedes the essential points ' Because Plaintiff never moved to amend in the First Action, Defendant’s objections were never put before the Court in that action. However, the objection in that action was based upon the same lack of evidence that has been raised in the instant motion, 2070082_1 mandating dismissal: to permit a separate action would open up this case to potential contradicting findings on whether the underlying claim of discrimination is sufficient and whether the Plaintiff can prove discriminatory animus. Plaintiff's reliance on National Railroad Passenger Corp, v. Morgan is misguided, as that case addresses the viability of a claim under the applicable statute of limitations (536 U.S. 101, 111, 122 S. Ct. 2061, 2071 (2002)), and does not address the doctrine of res judicata and the rule against splitting causes of action, underpinned by entirely separate concerns of judicial economy and the desire for consistent outcomes. 7 Lastly, Plaintiff concedes that she has no facts to plead a causal connection between the allegedly retaliatory action and the alleged protected activity or prior complaints of discrimination by Plaintiff. Apparently acknowledging that, as a matter of Jaw, there is no temporal connection between the termination of her employment in January 2012 and her prior complaints of discrimination that could give rise to an inference or presumption of the requisite retaliatory animus, in a futile attempt to plead facts sufficient for that connection, Plaintiff alleges in the proposed Amended Complaint that the Defendant’s termination of her employment was somehow tied to her production of documents in litigation. This is wrong, both as a matter of law and fact. First, as a matter of law, producing documents is not “protected activity” that could give rise to a claim of unlawful retaliation (nor is the keeping of the records like those produced). Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 313, 819 N.Y.S.2d 382, 396 (2004) (defining a protected activity as “opposing or complaining about unlawful discrimination” under both the City and State Human Rights Laws and defining same as a required element of a claim), Because an unlawful retaliation claim must include an allegation of recognized protected activity (which this is not), the new allegation fails as a matter of law. Moreover, the allegation fails as a matter of fact because the “documents which revealed that plaintiff had been keeping detailed notes of 2070082_1 | | defendant’s retaliatory actions” (Plaintiff's Memo at 7-8), BBS000175-297, were in fact produced in the Plaintiff's original production in the Federal Action, in or around April 2011. Thus, the allegation that this was newly-received information on January 23, 2012 is entirely without merit and is contradicted by the procedural history of this case. LEGAL ARGUMENTS 8 Knowing that Justice Rakower specifically granted her an opportunity to try to plead her claim of retaliation arising from the termination of her employment in the First Action, Plaintiff chose not to do so. She now argues that she can pursue her case under two separate actions, mistaking the designation of a claim as timely for one that is in all regards properly asserted. Plaintiff would have this Court believe that a plaintiff is always free to bring any “portion” of her case as a separate action, so long as the statute of limitations has not run. This is simply not the law. Respectfully, this Court should exercise its discretion to prevent judicial waste and impermissible forum-shopping on claims arising out of the same set of facts already asserted in a pending action. See Majer-Schule GMC, Inc. v. Gen, Motors Corp., 210 A.D.2d 963, 963, 620 N.Y.S.2d 684, 684-85 (2d Dep’t 1994) (“It is apparent that plaintiff clected to litigate its causes of action in Federal court. It should not now be permitted to relitigate those causes of action in State court [after an unfavorable decision was rendered by the Federal court].”); Colon v. Gold, 166 A.D.2d 406, 407, 560 N.Y.S.2d 470, 471 (2d Dep’t 1990) (dismissing under CPLR 3211{a)(4) on reversal because, “(t]he conduct of the plaintiffs counsel in indiscriminately commencing multiple lawsuits emanating from the same underlying events will not be condoned”); GSL Enters., Inc. v, Citibank, N.A., 155 A.D.2d 247, 546 N.Y.8.2d 857, 858 (ist Dep’t 1989) (affirming dismissal pursuant to CPLR 3211(a)(4) because, “a pending action existed 2070082_1 between the same parties for essentially the same relief and involving the same actionable wrong”). 9 Upon failing to move to amend in accordance with Justice Rakower’s deadline, is admitted by the Plaintiff, the proper course of action would be to seek additional time before that Court, and not to attempt to circumvent the order by initiating a second, duplicative action. Notably Plaintiff cannot here state a cognizable claim of unlawful retaliation arising from the January 2012 termination of her employment -- nor can she state such a claim before Justice Rakower — because as a matter of law there is no relationship between that event and her earlier complaints of discrimination. Accordingly, this Court should dismiss with prejudice the Plaintifi?s claim, or, alternatively, dismiss the action with leave for Plaintiff to attempt to bring the claim before Justice Rakower in the action where there has been discovery relating to all of Plaintiff's prior complaints of discrimination, Defendant's knowledge of same, and Defendant’s reasons for the various actions that it took with respect to the terms and conditions of Plaintiff's employment, including her discharge. 10. Before concluding, Defendant further notes that Plaintiff's arguments in opposition to the Motion to Dismiss also fail to comprehend the applicable pleading standard. While the Defendant does not dispute that a broad standard is applicable under the City Code, a broad standard does not mean NO standard. Even under the City Code, a plaintiff is required to set forth the basic elements of a retaliation claim, namely: “(1) [the claimant] has engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between ? The Defendant's motion to consolidate is currently pending before Justice Rakower. Although Defendant concedes the newly-alleged retaliation claim is not barred under the statute of limitations, at this juncture, the i Plaintiff will need to move to set aside the note of issue that Justice Rakower ordered must be filed before the return date of this motion (on or before May 20, 2013). 2070082_1 the protected activity and the adverse action.” Forrest, , 3 N.Y.3d at 312-13, The cases cited by Plaintiff in support of the fact that temporal proximity “is just one part of the circumstantial and direct evidence a plaintiff may adduce” in order to prove the fourth element of causation (Pl. Memo at 8) all include alternative means of proving causation (direct evidence of animus such as verbal or written remarks and disparate treatment of fellow employees who engaged in conduct similar to plaintiff) (Id.). Here, Plaintiff has provided nothing other than an attempt at showing temporal proximity in order to establish causation, and the law is clear that the alleged termination in 2012 based on complaints that began in 2008 is simply not close enough in time. See Defendant’s Memorandum of Law in Support of Defendant’s Motion to Dismiss the Complaint Pursuant to CPLR 3211(a)(1), (a)(4) AND (a){7) at 8-9. Plaintiff's attempt to close the temporal gap on the basis of the production of her notes is unsupported by both the law and the facts. See infra, 7. WHEREFORE, Defendant respectfully requests that the Court enter an Order dismissing the Complaint and the improperly-filed Verified Amended Complaint in this action in their entirety, with prejudice, pursuant to CPLR 3211(a)(1), (a)(4) and (a)(7), and for such other and further relief as this Court deems just and proper. MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP Attorneys for Defendant RBC Capital Markets, LLC Dated: May 22, 2013 New York, New York 2070082_1