LANDELL v. LIFE BRIDGE DENTAL PLLC (2025)

Order, Supreme Court, New York County (Dakota D. Ramseur, J.), entered March 12, 2024, which granted defendant Life Bridge Dental PLLC's motion to dismiss the complaint pursuant to CPLR 3211(a)(7), unanimously affirmed, without costs.

The motion court properly dismissed plaintiff's retaliation claims premised upon Labor Law §§ 740 and 741.  Retaliatory action is defined as “an adverse action taken by an employer or his or her agent to discharge, threaten, penalize, or in any other manner discriminate against any employee or former employee exercising his or her rights under [the Labor Law], including [ ] adverse employment actions or threats to take such adverse employment actions against an employee in the terms of conditions of employment including but not limited to discharge, suspension, or demotion” under Labor Law § 740(1)(e).  Labor Law § 741(1)(g) further defines retaliatory action to mean “the discharge, suspension, demotion, penalization or discrimination against an employee, or other adverse employment action taken against an employee in the terms and conditions of employment.”

Here, plaintiff only alleges she was transferred to a different office rather than the one she requested, singled out for hostile comments, recorded as having an “unexcused absence” when she took a sick day, and reprimanded for lateness and taking a personal call at work because she complained of unsanitary dental practices.  However, none of plaintiff's allegations constituted adverse employment actions (see Silvis v. City of New York, 95 A.D.3d 665, 665, 946 N.Y.S.2d 22 [1st Dept. 2012], lv denied 20 N.Y.3d 861, 2013 WL 1150296 [2013]).  Plaintiff does not allege that she suffered a reduction in pay, a change in the terms of her employment, or any other material harm or injury sufficient to plead that defendants retaliated against her because of her prior complaints (see id.;  Labor Law §§ 740[1][e], 741[1][g];  see also Antonmarchi v. Consolidated Edison Co. of New York, Inc., 2008 WL 4444609, *16–17, LEXIS U.S. Dist. 75458, *51-53 [S.D.N.Y., Sept. 29, 2008, No. 03 Civ. 7735 (LTS)(KNF)], affd 514 F.Appx. 33 [2d Cir. 2013], cert denied 571 U.S. 1098, 134 S.Ct. 790, 187 L.Ed.2d 601 [2013]).

Further, contrary to plaintiff's contention, the recent United States Supreme Court decision in (Muldrow v. City of St. Louis, Mo., 601 U.S. 346, 144 S.Ct. 967, 218 L.Ed.2d 322 [2024]), to the extent relevant, did not lower the threshold for retaliation claims to require only a showing of some harm.  In Muldrow, which involved a discrimination claim under Title VII, not a New York Labor Law whistleblower claim, the Court expressly declined to apply the standard plaintiff sets forth.  The Court found that it would be a “mismatch” to apply the same legal standard to both retaliation and discrimination claims under Title VII because the standard applicable to retaliation claims was adopted “for reasons peculiar to the retaliation context” (id. at 357, 144 S.Ct. 967).  The Muldrow Court found that no such reasoning was applicable to the discrimination claim before it and applied a standard that plaintiff need only allege some disadvantageous change in an employment term or condition (id. at 354, 357, 144 S.Ct. 967).  Here, plaintiff alleges retaliatory conduct which does not rise to the level of conduct defined by Labor Law §§ 740(1)(e) and 741(1)(g).

The motion court also properly dismissed plaintiff's constructive discharge claim.  The complaint fails to allege hostile working conditions so intolerable and pervasive that a reasonable person would have felt compelled to resign (see Murphy v. Department of Educ. of the City of N.Y., 155 A.D.3d 637, 640–641, 64 N.Y.S.3d 237 [2d Dept. 2017]).  Moreover, plaintiff failed to avail herself of a possible transfer to a different office location to seek redress for the allegedly hostile environment following her initial transfer.  Plaintiff's failure to do so further undermines her constructive discharge claim.

Motion to file a surreply granted and the attached surreply deemed filed.