The following e-filed documents, listed by NYSCEF document number (Motion 001) 6, 7, 9, 10, 11, 12 were read on this motion to/for DISMISS. DECISION ORDER ON MOTION Upon the foregoing documents, The following read on defendant’s motion to dismiss, CPLR 3211(a)(7), failure to state a cause of action. Plaintiff’s complaint alleges wrongful termination in violation of New York State Labor Law (“NYLL”), along with emotional distress. Plaintiff began her employment with defendant on June 10, 2019 as a staff accountant. The complaint alleges plaintiff raised concerns to her manager about another employee on November 14, 2019. Plaintiff alleges a physical assault on November 18, 2019 when “she was pushed aside in (sic) violent manner.” Plaintiff reported the incident to Human Resources and was directed to leave work and work from home. Defendant terminated plaintiff’s employment on November 21, 2019. A summons and complaint were filed on January 17, 2020, a notice of appearance was submitted on February 11, 2020, and this motion to dismiss was filed on March 13, 2020. In determining a motion to dismiss pursuant to CPLR 3211(a)(7), the court’s role is ordinarily limited to determining whether the complaint states a cause of action (see Wilson v. Phoenix House, 978 NYS2d 748, 757 [NY Sup Ct 2013]). Defendant’s motion states, “[p]laintiff fails to identify which Section or Sections of the NYLL she alleges Defendant violated by terminating her employment. §§740 and 215 [of NYLL] appear to be the only Sections that may relate to Plaintiff’s allegations.” New York Labor Law §215(1) states in relevant part: No employer or his or her agent, or the officer or agent of any corporation, partnership, or limited liability company, or any other person shall discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee (i) because such employee has made a complaint to his or her employer, or to the commissioner or his or her authorized representative, or to the attorney general or any other person, that the employer has engaged in conduct that the employee, reasonably and in good faith, believes violates any provision of this chapter, or any order issued by the commissioner (ii) because such employer or person believes that such employee has made a complaint to his or her employer, or to the commissioner or his or her authorized representative, or to the attorney general, or to any other person that the employer has violated any provision of this chapter, or any order issued by the commissioner (iii) because such employee has caused to be instituted or is about to institute a proceeding under or related to this chapter, or (iv) because such employee has provided information to the commissioner or his or her authorized representative to the attorney general, or (v) because such employee has testified or is about to testify in an investigation or proceeding under this chapter, or (vi) because such employee has otherwise exercised rights protected under this chapter, or (vii) because the employer has received an adverse determination from the commissioner involving the employee. New York Labor Law §740(2) states in relevant part: Prohibitions. An employer shall not take any retaliatory personnel action against an employee because such employee does any of the following: (a) discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety, or which constitutes health care fraud; (b) provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any such violation of a law, rule or regulation by such employer; or (c) objects to, or refuses to participate in any such activity, policy or practice in violation of a law, rule or regulation. To establish a prima facie claim of retaliation under §215 of the NYLL, “a plaintiff must show: (1) participation in protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action” (see Kassman v. KPMG LLP, F. Supp. 2d 453, 472 [SDNY 2013]). The employee “must reasonably believe that the employer is violating the Labor Law,” and “must have stated a complaint…that violated the Labor Law” (see Flick v. American Financial Resources, Inc., 907 F. Supp. 2d 274, 279 [EDNY 2012]). Plaintiff states she engaged in a protected activity within the meaning of §215. “Plaintiff [pled] that she was terminated from her position with Defendant on November 21, 2019, without any prior notice. Since there is no dispute among the parties that termination constitutes an adverse employment action, there is no question that this prong was sufficiently [pled]. Specifically, Plaintiff [pled] that she was terminated because of her protected activity in the workplace. (Compl. 30). This is further evidenced by the temporal proximity between her complaints and her termination, which clearly indicates a causal connection. Defendant has not proffered an alternate legitimate reason for her termination” (see NYSCEF Doc. No. 10. Par. 32-33). Plaintiff highlights that “NYLL requires employers to maintain safe and reasonably secure working environments for their employees” (see NYSCEF Doc. No. 10. Par. 38). “The plaintiff must have complained about a specific violation to support a claim of retaliatory discharge under Labor Law §215. Thus, if the complaint made is not governed by any provision in the Labor Law, no §215 claim may be maintained” (see Grella v. St. Francis Hosp., 5 N.Y.S.3d 328 [N.Y. Sup. Ct. 2014]; aff’d 149 A.D.3d 1046; 1049 [N.Y. App. Div. 2017]). Plaintiff alleges a workplace assault and then the adverse employment of termination. “Plaintiff does not allege any facts to suggest that he was retaliated against because he disclosed or threatened to disclose an activity, policy or practice…which…present[ed] a substantial and specific danger to the public health or safety” (see Meadows v. Planet Aid, Inc., 676 F. Supp. 2d 83, 97 [E.D.N.Y. 2009]). “Employee failed to state a cause of action for a report of alleged workplace assault by immediate supervisor that required hospitalization because employee was not engaged in protected activity (see Horgan v. Whitaker, 57 A.D.3d 1345, 1347-48, [3rd Dept 2008]). The Court of Appeals decrees that “Labor Law §740(2), commonly referred to as the ‘whistleblower statute,’ provides, in relevant part, that ‘[a]n employer shall not take any retaliatory personnel action against an employee because such employee…discloses, or threatens to disclose to a supervisor…that is in violation of law, rule or regulation’ that either ‘creates and presents a substantial and specific danger to the public health or safety’ (see Webb-Weber v. Community Action for Human Servs., Inc., 23 N.Y.3d 448, 452 [ N.Y. 2014]. To state a claim under §740, the “complaint must identify the particular activities, policies or practices in which the employer allegedly engaged, so that the complaint provides the employer with notice of the alleged complained-of conduct” (see Frederick v. State, 232 F. Supp. 3d 326, 333 [W.D.N.Y. 2017]; Webb-Weber v. Cmty. Action for Hum. Servs., Inc., 23 N.Y.3d 448, 452 [2014]. Defendant contends “Plaintiff is attempting to turn an allegation that a female co-worker allegedly pushed her while walking past her into a full-blown whistle-blower claim. Plaintiff did not report an ‘actual violation’ of law that would entitle her to relief under NYLL’s whistleblower provision” (see NYSCEF Doc. No. 12). Defendant states, “with respect to §740, Plaintiff has not alleged that she reported an actual (as opposed to perceived or suspected) violation of a law, which is a necessary predicate to a whistleblower claim. She also has not alleged that she reported any violation that presented a substantial and specific danger to public health and safety. By proceeding under the NYLL, Plaintiff waived any claim for emotional distress damages. Plaintiff has not alleged any facts suggesting that Industrious Staffing engaged in ‘extreme or outrageous’ conduct that would entitle her to an award of emotional distress damages.” Based on the Court’s review of the four corners of plaintiff’s summons and complaint, same is simply devoid of stating a cause of action under the New York Labor Law. ORDERED that the motion to dismiss is granted. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION X GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: January 6, 2021
