Thompson v. Global Contact Services, LLC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------------------------------- STEPHANIE THOMPSON, on behalf of herself and others similarly situated,

Plaintiff, MEMORANDUM & ORDER

20-CV-651 (MKB) v.

GLOBAL CONTACT SERVICES, LLC, EUGENE OHEMENG, FRANK CAMP, ANTOINETTE CURRIE, and JAMIE HOFFMAN,

Defendants. --------------------------------------------------------------- MARGO K. BRODIE, United States District Judge:

Plaintiff Stephanie Thompson, on behalf of herself and others similarly situated, commenced the above-captioned action against Defendants Global Contact Services, LLC (“GCS”), Eugene Ohemeng, Frank Camp, Antoinette Currie, and Jamie Hoffman1 on February 5, 2020, asserting claims for recovery of unpaid wages, overtime wages, liquidated damages, interest, and reasonable attorneys’ fees and costs pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”) and the New York Labor Law (“NYLL”) against GCS and Individual Defendants, and claims for discrimination in violation of New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (the “NYSHRL”), and New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. (the “NYCHRL”) against all Defendants. (Compl.,

Docket Entry No. 1.)2 Plaintiff also asserted claims for battery and intentional infliction of emotional distress against Ohemeng.3 (Id. ¶¶ 123–135.)

On November 12, 2020, GCS and Individual Defendants collectively moved for partial judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure as to Plaintiff’s NYLL claim. (Defs.’ Mot. for J. on the Pleadings (“Defs.’ Mot.”), Docket Entry No. 32; Defs.’ Mem. in Supp. of Defs.’ Mot. (“Defs.’ Mem.”), Docket Entry No. 33.) Defendants argue that Plaintiff’s NYLL claim is barred by the final judgment and order entered in connection with a prior class action settlement. (Defs.’ Mem.) Plaintiff opposes Defendants’ motion. (Pl.’s Opp’n to Defs.’ Mot. (“Pl.’s Opp’n”), Docket Entry No. 35.) For the reasons set forth below, the Court grants Defendants’ motion.

I. Background

The Court assumes the truth of the factual allegations in the Complaint for the purposes of this Memorandum and Order.

a. Plaintiff’s employment GCS owns and operates a call center that “contracts with Access-A-Ride . . . a program [that] provides transportation services to individuals with disabilities or health problems” who cannot use public transportation. (Compl. ¶ 23.) Plaintiff was employed as a call center representative at GCS from January 7, 2019, until September of 2019, (id. ¶ 24), and was regularly required to work “in excess of [ten] hours per day and [forty] hours per week” without

b. GCS’s timekeeping and payroll policies Plaintiff contends that GCS’s “timekeeping and payroll policies” resulted in a reduction of her paid hours. (Id. ¶ 27.) “GCS uses two separate systems to track employees’ hours” — an “ADP” system and a system that tracks employees’ time through their phones.5 (Id. ¶ 28.) Any mismatch in time between the two systems is “resolved against workers.” (Id.) To log her hours each day on ADP, Plaintiff would “have to log in to both of these systems prior to having [her] time recorded for the day.” (Id.) The process of logging in to the timekeeping systems “would often take several minutes every day” for which Plaintiff was not compensated, (id. ¶ 29); logging in to ADP takes approximately three to four minutes, (id. ¶ 30). GCS employees were unable to log into ADP more “than [three] minutes before their shift was scheduled to begin” and if employees “did not complete the log-in process before [one] minute after their shift was scheduled to begin,” their supervisor would be notified. (Id.) When a supervisor was notified, the employee would not be paid for the first ten minutes of their shift, “and neither would the time the employee spent being reprimanded for their late log-in.” (Id.)

With respect to the phone tracking system, any time that employees “spent off the phone during their shift would not be counted,” even if the employees were in work-related meetings, “training, administrative tasks, bathroom breaks, or any other task.” (Id. ¶ 31.) Time spent on the phone might also not be counted if employees “took too long on a call, were on hold or getting a busy signal, or had a call drop or a customer hang up.” (Id.) These incidents also resulted in a disciplinary meeting with their supervisor, “which would result in further unpaid time.” (Id.) As a result of the complexities of logging into both systems, GCS’ policies, and defective equipment used for clocking in and out, Plaintiff was not paid for a “significant amount of time worked” per week. (Id. ¶¶ 29–33.) GCS did not record the unpaid time Plaintiff worked nor did they provide Plaintiff with “accurate wage notices and wage statements.” (Id. ¶¶ 34–35.) To date, GCS continues to employ these timekeeping measures and fails to provide employees with the required wages and preserve payroll records. (Id. ¶ 40.)

c. Sexual harassment allegations During Plaintiff’s employment at GCS, Plaintiff worked on the same floor as Ohemeng, another call center representative. (Id. ¶ 42.) Ohemeng frequently teased, made “sexual comments” toward, and made “physical contact . . . in a sexual manner” with Plaintiff. (Id. ¶¶ 42–48.) Plaintiff “pushed Ohemeng’s hand away and told him to stop, but Ohemeng repeated this behavior on several occasions in spite of Plaintiff’s protests.” (Id. ¶ 44.) Plaintiff complained to supervisors and management about Ohemeng’s comments and behavior and her supervisors accused her of being a “troublemaker and problematic employee.” (Id. ¶ 49.) As Ohemeng’s behavior continued, other co-workers were hostile toward Plaintiff for reporting Ohemeng. (Id. ¶ 50.)

In August of 2019, Plaintiff reported Ohemeng’s behavior to the human resources department of GCS. (Id. ¶ 51.) On or around August 21, 2019, Plaintiff had a meeting with Currie and Hoffman, two executives at GCS, among others. (Id. ¶¶ 12, 14, 51.) “Plaintiff discussed her abuse in detail, stated that she was fearful for her safety, and asked that she be allowed to move to a different floor away from Ohemeng and other co-workers with whom she no longer felt comfortable.” (Id. ¶ 52.) Plaintiff was told she could not be removed until human resources completed its investigation. (Id.) Human resources further informed Plaintiff that she was not to speak to anyone else regarding Ohemeng until after the investigation was complete. (Id.) After meeting with human resources, Plaintiff “felt increasingly threatened and uncomfortable around Ohemeng and others on her floor” and filed a report with the New York City Police Department. (Id. ¶ 53.) During one of her shifts after her meeting with human resources, Plaintiff was confronted at her desk by her supervisor and a co-worker who asked her why she was still there, “told her she needed to get out, and proceeded to pace behind [her] desk in an aggressive manner until she finished her work.” (Id. ¶ 54.)

d. Actions leading up to and Plaintiff’s termination On August 29, 2019, Plaintiff emailed the New York City Transit Authority, who contracted with GCS, to inform them that she did not feel comfortable going to work due to Ohemeng and her other co-workers’ behavior. (Id. ¶ 55.) Plaintiff “resolved to wait for a response to her . . . email before she returned to work.” (Id. ¶ 56.) On or around August 30, 2019, Hoffman called Plaintiff and told her she would be fired if she did not return to work at GCS. (Id. ¶ 57.) During the call, Hoffman stated that Ohemeng had been fired, but Plaintiff later learned Ohemeng was still employed with GCS. (Id.) “In or around early September, Plaintiff received a letter from Hoffman dated September 3, 2019.” (Id. ¶ 58.) The letter indicated receipt of Plaintiff’s August 29, 2019 email, stated that Plaintiff was “informed . . . to keep everything confidential, which [she] declined to do,” warned Plaintiff that she was not on approved leave and that “disciplinary action” would be taken if she failed to return to work, and “represented” that Plaintiff’s request to change floors away from Ohemeng and other co-workers had been approved. (Id. ¶¶ 58–60.) After learning from former coworkers that Ohemeng was still employed at GCS, Plaintiff never returned to work. (Id. ¶ 61.) Plaintiff alleges that she was employed at GCS “until her constructive termination in September [of] 2019.” (Id. ¶ 24.) GCS fired Ohemeng in September of 2019. (Id. ¶ 62.) Plaintiff contends that she was traumatized by her experiences at GCS and suffers from “extreme stress and depression” as a result. (Id. ¶ 63.)

e. Instant lawsuit On February 5, 2020, Plaintiff filed this suit in federal court. (Id.) Plaintiff seeks designation as representative of the FLSA collective plaintiffs, designation of this action as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure, designation of Plaintiff as representative of the class, unpaid wages, liquidated and punitive damages, statutory penalties, interest, attorneys’ fees and other costs related to this action, and any other relief the Court deems just and proper. (Id. at 24–25.)

f. Prior state court class action and settlement On October 1, 2019, a class action suit was filed in the New York Supreme Court, Kings County (the “State Court”) in which the plaintiffs sought to recover “unpaid spread-of-hours premium pay” and liquidated damages under the NYLL and supporting New York State Department of Labor regulations (the “State Court Class Action”). (State Court Compl. ¶ 29, annexed to Aff. of C.K. Lee in Supp. of Defs.’ Mot. (“Lee Aff.”) as Ex. 2, Docket Entry No. 36- 2.) The two named plaintiffs were employed by GCS from approximately from February 25, 2017, until on or around May 30, 2017, and from January 7, 2019, until on or around March 8, 2019. (Id. ¶¶ 7, 11.) While employed with GCS, the plaintiffs alleged that they were required to work over ten hours per shift and were not provided spread-of-hours premium pay. (Id. ¶¶ 19– 20, 22–23.) The State Court plaintiffs sought to bring a class claim pursuant to Article 9 of the New York Civil Practice Law and Rules (“CPLR”) and defined the class as including “[a]ll current and former hourly customer service employees who work or worked at GCS’s Long Island City location between March 1, 2017 through August 6, 2019.” (Id. ¶ 14.)

On August 6, 2019, the plaintiffs and GCS reached a settlement. (Notice of Settlement (“Notice”), annexed to Aff. of Aaron Warshaw in Supp. of Defs.’ Mot. (“Warshaw Aff.”) as Ex. B, at 13, Docket Entry No. 34.) On December 6, 2019, the State Court so ordered the notice of the class action settlement and fairness hearing (the “Order Notice”). (Order Notice ¶ 8, annexed to Warshaw Aff. as Ex. E, at 46.) The Order Notice stated that class members could opt out of the settlement or submit written objections to the settlement by sending a signed letter to GCS to be received by January 20, 2020. (Id. ¶¶ 7–8.) The Order Notice also stated that the fairness hearing regarding the settlement would be held on March 26, 2020. (Id. ¶ 9.)

On March 17, 2020, a fully executed settlement agreement (the “Settlement Agreement”) was filed with the State Court. (Settlement Agreement, annexed to Lee Aff. as Ex. 1, Docket Entry No. 36-1.) The Settlement Agreement defines the class as “all current and former customer service representatives who were employed by GCS” from March 1, 2017, through August 6, 2019, “who worked at least one shift of ten hours or more when paid at the minimum wage rate and who [did] not opt-out of the [l]itigation” (the “State Court Class”). (Id. ¶¶ 1.5, 1.25.)

Under the Settlement Agreement, “released claims” included: “any and all claims, causes of actions, demands, debts, obligations, damages or liability pursuant to the New York Labor Law and the regulations of the New York State Department of Labor, as well as liquidated damages, interest, attorneys’ fees, expenses, and costs related to all such claims.” (Id. ¶ 1.24.) The release provision of the Settlement Agreement states that:

Upon the [f]inal [a]pproval [o]rder being issued, and except as to such rights or claims as may be specifically created by this Agreement, each [c]lass [m]ember who does not [o]pt-out of this Agreement, . . . fully releases and discharges Defendant and its affiliates, subsidiaries (including but not limited to any grandchild entities, great-grandchild entities, and so on), parents (including but not limited to any grandparent entities, great-grandparent entities, and so on), divisions, shareholders, members, predecessors, successors, and assigns, and each of their past and present officers, directors, trustees, fiduciaries, insurers, owners, investors, attorneys, administrators, employees, agents, representatives, shareholders, members, joint employers, predecessors, successors, and assigns, in their individual and official capacities, and all persons or entities acting by, though, under, or in concert with any of them . . . from any and all [r]eleased [c]laims.

(Settlement Agreement ¶ 4.1.) On May 27, 2020, the State Court granted the unopposed motion for settlement approval and dismissed the lawsuit with prejudice.6 (Order Granting Unopposed Mot. for Final Approval of Class Settlement (“Final Approval Order”) ¶¶ 1–2, annexed to Warshaw Aff. as Ex. G, at 82.)

II. Discussion

a. Standard of review In deciding a Rule 12(c) motion, courts apply “the same standard as that applicable to a motion under Rule 12(b)(6), accepting the allegations contained in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.” Pourkavoos v. Town of Avon, 823 F. App’x 53, 59 (2d Cir. 2020) (quoting Kass v. City of New York, 864 F.3d 200, 206 (2d Cir. 2017)); see also Bello v. Rockland County, 846 F. App’x 77, 78 (2d Cir. 2021) (stating that on a motion for judgment on the pleadings, the court accepts “the complaint’s factual allegations as true and draw[s] all reasonable inferences in the plaintiff’s favor”); Ezra v. Bristol- Myers Squibb Co., 784 F. App’x 48, 49 (2d Cir. 2019) (“The standard for addressing a Rule 12(c) motion for judgment on the pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim.” (alteration omitted) (quoting Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006))). “In determining a Rule 12(c) motion, the district court may consider ‘any written documents attached to’ the pleadings, ‘materials incorporated in [the complaint] by reference,’ and ‘documents that, although not incorporated by reference, are integral to the complaint.’” 28th Highline Assocs., L.L.C. v. Roache, 826 F. App’x 70, 72 (2d Cir. 2020) (alteration in original) (quoting L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011)). “To survive a Rule 12(c) motion, the complaint must contain sufficient factual matter to ‘state a claim to relief that is plausible on its face.’” Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir. 2012) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim is plausible ‘when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Matson, 631 F.3d at 63 (discussing Rule 12(b)(6)) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). However, the court need not accord “a legal conclusion couched as a factual allegation” the same presumption of truthfulness. N.J. Carpenters Health Fund v. Royal Bank of Scot. Grp., PLC, 709 F.3d 109, 120 (2d Cir. 2013) (quoting Iqbal, 556 U.S. at 678).

b. The Court considers the State Court Class Action Complaint, the Settlement

Agreement, the Notice, the Order Notice, and the related State Court orders Neither Defendants nor Plaintiff have addressed whether the Settlement Agreement and related filings in the State Court Class Action submitted in support of their moving papers can be properly considered on a motion for judgment on the pleadings. (See Defs.’ Mem.; Pl.’s Opp’n.) Attached to the three declarations filed in support of and in opposition to Defendants’ motion for judgment on the pleadings are documents that were filed in the State Court Class Action including the State Court Class Action Summons and Complaint, the Settlement Agreement, the State Court orders granting preliminary and final approval of the Settlement Agreement, the Notice, the Order Notice, and the motion papers and affidavits filed in support of the State Court approval motions. (See Warshaw Aff. ¶¶ 2–8; Lee Aff. ¶¶ 3–5; Decl. of Aaron Warshaw in Supp. of Defs.’ Reply (“Warshaw Reply Decl.”) ¶¶ 2–4, Docket Entry No. 38.)

In deciding motions pursuant to Rules 12(c) or 12(b)(6) of the Federal Rules of Civil Procedure, “the district court is normally required to look only to the allegations on the face of the complaint,” but “may consider documents that ‘are attached to the complaint,’ ‘incorporated in it by reference,’ ‘integral’ to the complaint, or the proper subject of judicial notice.” United States v. Strock, 982 F.3d 51, 63 (2d Cir. 2020) (quoting Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007)). A court may take judicial notice of “a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2); Dixon v. von Blanckensee, 994 F.3d 95, 102 (2d Cir. 2021) (“Under Federal Rule of Evidence 201, a ‘court may judicially notice a fact that is not subject to reasonable dispute.’ . . . ‘Such facts must either be (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.’” (first quoting Fed. R. Evid. 201(b); and then quoting Int’l Star Class Yacht Racing Ass’n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70–71 (2d Cir. 1998))). A court can take judicial notice of state court decisions on a motion to dismiss pursuant to Rule 12 of the Federal Rules of Civil Procedure. See Rates Tech. Inc. v. Speakeasy, Inc., 685 F.3d 163, 166 n.3 (2d Cir. 2012) (“We may ‘take judicial notice of a document filed in another court . . . to establish the fact of such litigation and related filings.’” (quoting Glob. Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006))). A court may take judicial notice of a document for its existence “but not for the truth of the matters asserted.” Roth, 489 F.3d at 509; see also Koger v. Richardson, --- F. App’x ---, ---, 2021 WL 2285226, at *1 n.2 (2d Cir. June 4, 2021) (“[C]ourts routinely take judicial notice of documents filed in other courts, . . . not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings.” (quoting Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991))).

The Court takes judicial notice of the State Court Class Action Complaint, Settlement Agreement, Notice, Order Notice, and State Court orders granting preliminary and final approval of the Settlement Agreement but declines to take judicial notice of the remaining documents submitted by the parties.7 The State Court Class Action Complaint, Notice, Order Notice, and

State Court orders granting preliminary and final approval of the Settlement Agreement can be considered on this motion because they are public court records routinely considered on motions to dismiss. See Williams v. N.Y.C. Hous. Auth., 816 F. App’x 532, 534 (2d Cir. 2020) (holding that the district court did not err in considering the plaintiff’s “Article 78 petition and state court decision because they were public records, and thus appropriate for judicial notice”); Blue Tree Hotels Inv. (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004) (noting that, in deciding a motion to dismiss for failure to state a claim, the court “may also look to public records, including complaints filed in state court”); Pierre v. Melrose Credit Union, No. 17-CV-2799, 2018 WL 3057686, at *1 (E.D.N.Y. June 19, 2018) (taking judicial notice of a state court complaint and related loan documents and stating that a court may take judicial notice of state court documents in considering a motion to dismiss); Maspeth Fed. Sav. & Loan Ass’n v. Fid. Info. Servs., LLC, 275 F. Supp. 3d 411, 413 n.1 (E.D.N.Y. 2017) (taking judicial notice of “relevant filings in the related class action lawsuit, including the amended class action complaint and stipulation of settlement”); Halstead v. City of New York, No. 13-CV-4874, 2015 WL 1506133, at *1 (E.D.N.Y. Mar. 31, 2015) (taking judicial notice of a “state court action and the decisions of the state court” because “the state court proceeding . . . is a public record” (footnote omitted)); White Plains Hous. Auth. v. Getty Props. Corp., No. 13- CV-6282, 2014 WL 7183991, at *2 (S.D.N.Y. Dec. 16, 2014) (“Courts in this circuit routinely take judicial notice of complaints and other publicly filed documents.” (citing Rothstein v. Balboa Ins. Co., No. 14-1112, 2014 WL 4179879, at *1 (2d Cir. June 25, 2014))); Deylii v. Novartis Pharms. Corp., No. 13-CV-6669, 2014 WL 2757470, at *4 (S.D.N.Y. June 16, 2014) (taking judicial notice of a class action settlement notice).

The Court also takes judicial notice of the State Court Settlement Agreement because it was filed on the public docket.8 Compare In re Nine W. LBO Sec. Litig., 505 F. Supp. 3d 292, 302 n.3 (S.D.N.Y. 2020) (“Settlement agreements are documents of which a court may take judicial notice in order to determine whether future claims are barred by a previous settlement.” (quoting Deylii, 2014 WL 2757470, at *4)); Deylii, 2014 WL 2757470, at *4 (taking judicial notice of class settlement agreement and settlement notice and stating that “[t]he [c]ourt may take judicial notice of ‘public documents on a motion to dismiss to determine whether claims are barred by prior litigation’” (quoting Cowan v. Codelia, No. 98-CV-5548, 2001 WL 856606 (S.D.N.Y. July 30, 2001))); Smith v. DADA Ent., LLC, No. 11-CV-7066, 2012 WL 4711414, at *2 (S.D.N.Y. Sept. 27, 2012) (taking judicial notice of a state court action and settlement filed in state court to determine whether the suit was barred by the settlement agreement); Wolson v. Reed Elsevier Inc., No. 09-CV-4040, 2010 WL 334919, at *1 (S.D.N.Y. Jan. 29, 2010) (taking judicial notice of settlement agreement filed in multi-district class action case in ruling on motion to dismiss); Lucky Brand Dungarees Inc. v. Ally Apparel Res. LLC, No. 05-CV-6757, 2006 WL 3771005, at *1 (S.D.N.Y. Dec. 20, 2006) (taking judicial notice of settlement agreement entered

However, the Court does not take judicial notice of the motion papers submitted in support of the motions for approval of the Settlement Agreement because they are not necessary to determine whether Plaintiff’s NYLL claim is barred. See Jones v. New Penn Fin., LLC, No. 19-CV-1493, 2021 WL 405888, at *3 n.4 (E.D.N.Y. Feb. 5, 2021) (“It was certainly well within [the magistrate judge’s] discretion to decline to take judicial notice of a document that was essentially immaterial.”). The Court also declines to consider any factual allegations in the affidavits submitted by the parties on this motion because these affidavits are outside of the pleadings in this case and are not subject to judicial notice. See Kaplan v. Wings of Hope Residence, Inc., No. 18-CV-2972, 2018 WL 6437069, at *4 (E.D.N.Y. Dec. 7, 2018) (declining to consider “additional factual assertions” in affidavits submitted on motion to dismiss when the affidavits “assert[ed] facts in greater detail than those in the complaint” and were not attached to the complaint, integral to the complaint, or material of which judicial notice can be taken (citing Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir. 2000))).

Accordingly, the Court considers the State Court Complaint, Settlement Agreement, Notice, Order Notice, and State Court orders granting preliminary and final approval of the Settlement Agreement on this motion.

c. Plaintiff’s NYLL claim is barred by res judicata Defendants argue that Plaintiff’s NYLL claim regarding Defendants’ alleged failure to pay Plaintiff the required regular, overtime, and spread-of-hours wages as well as Defendants’ failure to provide accurate wage statements is barred by the Settlement Agreement.9 (Defs.’

Plaintiff argues that her claim is not barred because (1) her NYLL claim does not arise out of an identical factual predicate to the State Court Class Action, (2) the scope of release in the Settlement Agreement is disproportionately broad, and (3) claims arising under the Wage Theft Prevention Act (the “WTPA”)11 may not be released in a state court class action. (See Pl.’s Opp’n 2–5.) Plaintiff argues that her NYLL claim does not arise from an identical factual predicate because the State Court Class Action involved claims of “unpaid spread of hours” and this case involves “claims under the NYLL for Defendants’ failure to pay proper wages for off- the-clock work and failure to provide proper wage statements” as well as a claim for “unpaid spread of hours.” (Id. at 2–3.) Plaintiff contends that her NYLL claim is premised on the off- Rooker-Feldman does not bar Plaintiff’s claims because, while dismissals with prejudice arising from a settlement agreement appear to function as final judgments for Rooker-Feldman purposes, see Brake v. Slochowsky & Slochowsky, LLP, 504 F. Supp. 3d 103, 110 (E.D.N.Y. 2020) (“As a state court of record, a New York City Housing Court ‘stipulation of settlement’ with prejudice constitutes a state court judgment for Rooker-Feldman purposes.” (citing Reyes v. Fairfield Props., 661 F. Supp. 2d 249, 273 (E.D.N.Y. 2009))); Reyes, 661 F. Supp. 2d at 273 (“[A] settlement agreement may constitute a state court judgment for purposes of Rooker- Feldman.” (first citing Green v. City of New York, 438 F. Supp. 2d 111, 119 (E.D.N.Y. 2006); and then citing Lombard v. Lombard, No. 00-CV-6703, 2001 WL 548725, at *4 (S.D.N.Y. May 23, 2001))); Robinson v. Cusack, No. 05-CV-5318, 2007 WL 2028112, at *4 (E.D.N.Y. July 11, 2007) (“Courts . . . have treated settlement agreements as final judgments for the purpose of the Rooker-Feldman doctrine.” (citing Allianz Ins. Co. v. Cavagnuolo, No. 03-CV-1636, 2004 WL 1048243, at *6 (S.D.N.Y. May 7, 2004))), Plaintiff commenced this action on February 5, 2020, (see Compl.), prior to the State Court’s final approval of the Settlement Agreement and dismissal order on May 27, 2020, (see Final Approval Order). Accordingly, Rooker-Feldman does not bar Plaintiff’s claims. See Levin v. Barone, No. 14-CV-673, 2018 WL 1626526, at *3 (S.D.N.Y. Mar. 29, 2018) (“The Rooker-Feldman doctrine does not apply here because the state court judgment was not entered before this action commenced.”), aff’d, 771 F. App’x 39 (2d Cir. 2019).

Federal courts have “consistently accorded preclusive effect to issues decided by state courts.” Allen v. McCurry, 449 U.S. 90, 95 (1980). “Under the doctrine of res judicata, or claim preclusion, ‘[a] final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in [the previous] action . . . .’” Proctor v. LeClaire, 715 F.3d 402, 411 (2d Cir. 2013) (first alteration in original) (quoting SEC v. First Jersey Secs., Inc., 101 F.3d 1450, 1463 (2d Cir. 1996)); see also Brown Media Corp. v. K&L Gates, LLP, 854 F.3d 150, 157 (2d Cir. 2017); Worthy-Pugh v. Deutsche Bank Nat’l Tr. Co., 664 F. App’x 20, 22 (2d Cir. 2016) (affirming a district court’s decision granting a defendant’s motion to dismiss where the district court found that the plaintiff’s action was precluded by a prior state court foreclosure action).

“Congress has specifically required all federal courts to give preclusive effect to state- court judgments whenever the courts of the [s]tate from which the judgments emerged would do so . . . .” Allen, 449 U.S. at 96. To prove claim preclusion under New York law, a defendant must show that “(1) the previous action involved an adjudication on the merits; (2) the previous action involved the [same adverse parties] or those in privity with them; and (3) the claims asserted in the subsequent action were, or could have been raised, in the prior action.” Marcel Fashions Grp., Inc. v. Lucky Brand Dungarees, Inc., 779 F.3d 102, 108 (2d Cir. 2015) (alteration in original) (quoting TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 499 (2d Cir. 2014)); see also Simmons v. Trans Express Inc., 37 N.Y.3d 107, 111 (2021) (“One linchpin of res judicata is an identity of parties actually litigating successive actions against each other: the doctrine applies only when a claim between the parties has been previously ‘brought to a final conclusion’” (quoting City of New York v. Welsbach Elec. Corp., 9 N.Y.3d 124, 127 (2007))); Pawling Lake Prop. Owners Ass’n, Inc. v. Greiner, 897 N.Y.S.2d 729, 732 (App. Div. 2010) (noting that a stipulation of discontinuance with prejudice is subject to res judicata).

i. The State Court Settlement Agreement constitutes a final judgment on the merits The State Court Class Action resulted in a decision on the merits because the State Court dismissed the action with prejudice based on the Settlement Agreement.12 (See Final Approval Order ¶¶ 1–2 (granting final approval of the class action settlement and dismissing the litigation without prejudice)); Brake v. Slochowsky & Slochowsky, LLP, 504 F. Supp. 3d 103, 110 (E.D.N.Y. 2020) (“Under New York law, a stipulation with prejudice is accorded the same preclusive effect as a final judgment on the merits.” (citing Northshore-Long Island Jewish Health Sys., Inc. v. Aetna U.S., 811 N.Y.S.2d 424, 426 (App. Div. 2006))); Schwartz v. Schwartz, No. 16-CV-162743, 2017 WL 4023132, at *6 (E.D.N.Y. Aug. 28, 2017) (“The Second Circuit has confirmed that, ‘[i]t is clear that a dismissal, with prejudice, arising out of a settlement agreement operates as a final judgment for res judicata purposes.’” (alteration in original) (quoting Marvel Characters, Inc. v. Simon, 310 F.3d 280, 287 (2d Cir. 2002))), report and recommendation adopted, 2017 WL 4023129 (E.D.N.Y. Sept. 12, 2017); Rosado-Acha v. Red Bull Gmbh, No. 15-CV-7620, 2016 WL 3636672, at *11 (S.D.N.Y. June 29, 2016) (“With regard

ii. The parties are in privity with the State Court Class Action parties Defendants have satisfied the second factor — whether the previous action involved the same adverse parties or those in privity with them — because privity exists between the State Court Class Action plaintiffs and Plaintiff in the instant action.

The privity inquiry turns on “whether, under the circumstances, the interests of the [defendant] were adequately represented in [the earlier action].” Akhenaten v. Najee, LLC, 544 F. Supp. 2d 320, 328 (S.D.N.Y. 2008) (alterations in original) (quoting Amalgamated Sugar Co. v. NL Indus., Inc., 825 F.2d 634, 640 (2d Cir. 1987)). New York law provides that privity extends to parties “who are successors to a property interest, those who control an action although not formal parties to it, those whose interests are represented by a party to the action, and possibly coparties to a prior action.” Yeiser v. GMAC Mortg. Corp., 535 F. Supp. 2d 413, 423 (S.D.N.Y. 2008) (quoting Watts v. Swiss Bank Corp., 27 N.Y.2d 270, 277 (1970)); see also Fequiere v. Tribeca Lending, No. 14-CV-812, 2016 WL 1057000, at *6 (E.D.N.Y. Mar. 11, 2016) (finding that the defendants, who were not named in a state court foreclosure action, were in privity with the state-court plaintiff because of their alleged interests in the federal plaintiff’s/state-court defendant’s mortgage); Graham v. Select Portfolio Servicing, Inc., 156 F. Supp. 3d 491, 509 (S.D.N.Y. 2016) (same); Swiatkowski v. Citibank, 745 F. Supp. 2d 150, 171 & n.11 (E.D.N.Y. 2010) (same). Identity of parties exists under New York law when plaintiffs were members of a previous class but failed to opt out of that class. See Siegel v. Competition Imports, Inc., 745 N.Y.S.2d 701, 702 (App. Div. 2002) (“[P]laintiffs were members of the class but failed to opt out. Therefore, they are bound by the [f]ederal judgment.”); see also Marin v. Comenity Bank, LLC, No. 16-CV-737, 2017 WL 3670030, at *4 (E.D.N.Y. July 11, 2017) (“[T]he litigants are the same parties: the defendant . . . is the defendant named in the [previous] class action lawsuit, . . . and the plaintiff, although not named, received notice of the settlement and did not opt out, thereby binding her as a member of the class.”).

While Plaintiff was not a named plaintiff in the State Court Class Action, the parties do not dispute that Plaintiff was a member of the State Court Class and failed to opt out of the class or object to the Settlement Agreement. (See Defs.’ Mem. 1 (stating that plaintiff “did not opt out of, nor did she object to the Settlement Agreement”); Pl.’s Opp’n 3–5 (arguing only that the scope of release is disproportionately broad and would be prejudicial to class members).) The State Court Class consisted of “all current and former customer service representatives who were employed by GCS at the Long Island City, New York call center located at 3300 Northern Boulevard, Long Island City, [New York]” from March 1, 2017, through August 6, 2019, “who worked at least one shift of ten hours or more when paid at the minimum wage rate . . . and who [did] not opt-out of the [l]itigation.” (Settlement Agreement ¶¶ 1.5, 1.25.) Plaintiff worked at GCS from January 7, 2019, until September of 2019 as a “call center representative[], handling calls from Access-A-Ride customers.” (Compl. ¶ 24.) Plaintiff routinely worked eleven hours per day for four days per week and earned $15 per hour. (Id. ¶¶ 24–25.) Because Plaintiff was a class member, Plaintiff’s interests were represented by the State Court Class Action plaintiffs and accordingly was in privity with them. See Marin, 2017 WL 3670030, at *4 (finding that the plaintiff was in privity with the class plaintiffs in a previous case when “the plaintiff, although not named, received notice of the settlement and did not opt out, thereby binding her as a member of the class”); Rosado-Acha, 2016 WL 3636672, at *16 (finding that the plaintiff was in privity with the class plaintiffs in the previous litigation because the plaintiff “was a member of the [previous] class and the [c]ourt identifie[d] no ground on which . . . [the] [p]laintiff’s interests were not aligned with those of the earlier [c]lass”); see also Vargas v. Cap. One Fin. Advisors, No. 12-CV-5728, 2013 WL 4407094, at *3 (S.D.N.Y. Aug. 15, 2013) (finding privity in the federal res judicata context when “[t]here is no dispute that [p]laintiff is within the definition of the [s]ettlement [c]lass as certified in the [previous] action and did not opt out of the settlement”), aff’d, 559 F. App’x 22 (2d Cir. 2014).

Similarly, Defendants are in privity with the State Court defendants. GCS was a defendant in the State Court Class Action. (See State Court Compl. 1.) Although the Individual Defendants were not defendants in the State Court Class Action, they were in privity with GCS as executives of GCS who “exercised operational control over GCS and the terms and conditions of [Plaintiff’s] employment.” (Compl. ¶¶ 10, 12, 14–15); see also Syllman v. Nissan, 794 N.Y.S.2d 351, 352 (2005) (finding privity between corporate defendant and its “board of directors, individual members, and attorneys” when the conduct arose “out of the same dispute that gave rise to the [previously litigated] claims”); Briggs v. Chapman, 863 N.Y.S.2d 97, 99 (App. Div. 2008) (finding privity between the corporate defendant and parties who are “officers, shareholders and/or owners of [d]efendant [c]orporation” (alterations in original) (quoting Specialty Restaurants Corp. v. Barry, 653 N.Y.S.2d 972 (App. Div. 1997))); Specialty Restaurants Corp., 653 N.Y.S.2d at 973 (finding privity when the defendant was the president, shareholder and director of the corporate defendant in the previous litigation); 37-01 31st Ave. Realty Corp. v. Safed, 861 N.Y.S.2d 561, 564 (Civ. Ct. 2008) (finding privity between the New York City Corporation Counsel on behalf of the New York Police Department and the District Attorney’s Office because “[b]oth the District Attorney’s office and the [c]orporation [c]ounsel are under the aegis of the government of the City of New York” and the “[c]orporation [c]ounsel was effectively working on behalf of the New York City Police Department”), aff’d, appeal dismissed sub nom. 37-01 31st Ave. Realty Corp. v. Mohammed, 906 N.Y.S.2d 679 (Sup. Ct. 2010).

In addition, the Settlement Agreement explicitly barred claims by class members against GCS and its “divisions, shareholders, members, . . . employees, agents, representatives, shareholders, members, joint employers, predecessors, successors, and assigns, in their individual and official capacities, and all persons or entities acting by, [through], under, or in concert with any of them.” (Settlement Agreement ¶ 4.1(A).) Although the Individual Defendants were not explicitly named in the Settlement Agreement, Plaintiff alleges that they each were “an executive of GCS and/or otherwise an owner, member, officer, director, and/or manager of GCS,” (Compl. ¶¶ 10, 12, 14–15), thus as employees and agents of GCS, they were released from liability by the Settlement Agreement. See Alexandrou v. Fromkin, No. 11-CV- 5240, 2014 WL 3732742, at *4 (E.D.N.Y. July 25, 2014) (finding that the plaintiff unambiguously released its claims against the defendant when the release was executed in favor of a company’s “former and present shareholders, members, officers . . . , directors, agents, representatives, predecessors, successors, assigns, parent companies, affiliates, employees and attorneys” and the defendant was a former employee and president of the company); Barone v. Marone, No. 04-CV-2001, 2007 WL 4458118, at *4 (S.D.N.Y. Dec. 14, 2007) (finding a general release “unambiguous” when the releasees included “‘present and former’ agents and representatives” of a company and the defendant was an employee of that company). Such release suggests that the Individual Defendants were in contractual privity with GCS in the State Court Class Action. See Boguslavsky v. S. Richmond Sec., Inc., 225 F.3d 127, 130 (2d Cir. 2000) (per curiam) (stating that the issue of whether a settlement agreement precludes a subsequent suit is a question of “contractual privity, not of preclusion privity”); see also Esquire Trade & Fin., Inc. v. CBQ, Inc., 562 F.3d 516, 522 n.6 (2d Cir. 2009) (finding no privity when “[t]here is nothing in the present record to suggest that [the plaintiff] intended its releases of [the previous defendant] also to release [the subsequent defendant], a non-party to the [prior litigation]” (first citing Boguslavsky, 225 F.3d at 130; and then citing Zenith Radio Corp. v. Hazeltine Rsch., Inc., 401 U.S. 321, 347 (1971))); Korenblum v. Citigroup, Inc., No. 15-CV-3383, 2015 WL 6001275, at *2 (S.D.N.Y. Oct. 14, 2015) (“As the Second Circuit has squarely held, the issue of whether a settlement agreement between a plaintiff and one party bars suit against another party ‘is one of contractual privity, not of preclusion privity.’” (quoting Boguslavsky, 225 F.3d at 130)); Rocket Jewelry Box, Inc. v. Noble Gift Packaging, Inc., No. 95-CV-7900, 2001 WL 38285, at *2 (S.D.N.Y. Jan. 16, 2001) (finding no privity when the parties to the settlement agreement in the first suit did not intend to release the subsequent defendant).13

Accordingly, because there is privity between Plaintiff and Defendants in this action and in the State Court Class Action, Defendants satisfy the second res judicata factor.

iii. Plaintiff’s NYLL claim arose out of the same transaction as the State

Court Class Action Defendants also satisfy the third factor — whether the claims asserted in the subsequent action were, or could have been raised, in the prior action — because Plaintiff’s NYLL claim was among those contemplated in the Settlement Agreement.

“New York law has adopted a ‘transactional approach’ to [res judicata]. ‘[O]nce a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transaction are barred . . . .’” Buczek v. Tirone, 672 F. App’x 105, 106 (2d Cir. 2016) (alterations in original) (quoting McKithen v. Brown, 481 F.3d 89, 104 (2d Cir. 2007)); Simmons, 2020 N.Y. Slip Op. 65897 at 4, 2021 WL 2228828, at *2 (“We have consistently applied a ‘transactional analysis approach’ in determining whether an earlier judgment has claim preclusive effect, such that ‘once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy’” (quoting O’Brien v. City of Syracuse, 445 N.Y.S.2d 687 (1981))); Rosado- Acha, 2016 WL 3636672, at *12 (“Even if there are variations in the facts alleged or different relief is sought, if the actions are grounded on the same gravamen of the wrong res judicata applies.” (quoting Yeiser, 535 F. Supp. 2d at 422)).

Although New York state courts have not articulated a precise rule directing how to apply the transactional approach in the context of class action settlements, New York state cases giving res judicata effect to previously settled class actions based on the express terms of the prior settlement agreement are instructive. In People ex rel. Spitzer v. Applied Card Systems, Inc., the New York Court of Appeals held that res judicata effect should be given to a prior nationwide class action settlement and therefore that the New York Attorney General should be precluded from recovering certain restitution based on the previous class settlement. 11 N.Y.3d 105, 124 n.16 (2008). Although the decision centered on whether the New York Attorney General should be considered in privity with the class plaintiffs, the New York Court of Appeals instructed that New York courts “look simply to the judgment approving a class action settlement and the nature of the claims released therein to determine the extent to which [a] claim . . . is precluded.” Id. at 124 n.16. Similarly, in Wachovia Mortgage FSB v. Macwhinnie, the Appellate Division held that a counterclaim-plaintiff was “bound by the terms of the [previous] class action settlement” because the settlement “on its face, precluded him from asserting [his] counterclaims against the [counterclaim-defendant]” and the plaintiff did not opt out of the settlement or challenge adequacy of his representation in the previous suit. 108 N.Y.S.3d 183, 185 (App. Div. 2019).

Plaintiff’s NYLL claim is encompassed in the Settlement Agreement release provision. The Settlement Agreement released any NYLL claims that Plaintiff, as a member of the State Court Class, had at the time the Settlement Agreement was approved, because the Settlement Agreement stated that “[u]pon the [f]inal [a]pproval [o]rder being issued,” members of the State Court Class who did not opt out of the agreement released “any and all claims, causes of actions, demands, debts, obligations, damages or liability pursuant to the New York Labor Law and the regulations of the New York State Department of Labor, as well as liquidated damages, interest, attorneys’ fees, expenses, and costs related to all such claims.” (Settlement Agreement ¶¶ 1.24, 4.1); see Loccenitt v. Pantea, No. 12-CV-1356, 2014 WL 7474232, at *3 (S.D.N.Y. Dec. 29, 2014) (finding a release “unambiguous” when the plaintiff “released the City of New York and its ‘past and present officials, employees, representatives, and agents’ from ‘any and all’ claims ‘that were . . . asserted, alleging a violation of [the plaintiff’s] civil rights . . . from the beginning of the world to the date of [the] [r]elease” and the defendant was an agent of the city as a medical provider to city inmates); Spanski Enters., Inc. v. Telewizja Polska, S.A., No. 10-CV-4933, 2013 WL 81263, at *4 (S.D.N.Y. Jan. 8, 2013) (“General releases usually cover all claims and demands due at the time of execution unless specified rights or claims are excluded.”). The Settlement Agreement was approved on May 27, 2020, (see Final Approval Order ¶¶ 1–2), and therefore Plaintiff released any and all NYLL claims until that date.14 Because Plaintiff’s claims are subsumed within the judgment as a result of the Settlement Agreement, Defendants also satisfy the third res judicata factor. See Scheinmann v. Dykstra, No. 16-CV-5446, 2017 WL 1422972, at *5 n.7 (S.D.N.Y. Apr. 21, 2017) (stating that “enforcement of the settlement also means that this lawsuit, and all of [the plaintiff’s] claims, are subsumed within the judgment, i.e., effectively dismissed with prejudice” and that res judicata bars the suit as well as the “contractual protection” in the settlement agreement); Silvar v. Comm’r of Lab. of State, 109 N.Y.S.3d 1, 5 (App. Div. 2019) (finding that a subsequent suit was barred by res judicata when the previous suit brought NYLL claims for failure to pay minimum and overtime wages and the

Plaintiff’s argument that her NYLL claim cannot be precluded because it is not based on the “identical factual predicate” as the NYLL claim presented in the State Court Class Action is unpersuasive. As a threshold matter, the Court notes that it is unclear whether New York courts require an identical factual predicate for a claim to be released in a class action settlement.15 See Matter of Empire State Bldg. Assoc., LLC, No. 654456/2013, 2014 N.Y. Misc. LEXIS 3246, at *9 & n.1 (N.Y. Sup. Ct. July 17, 2014) (“Plaintiffs rely heavily on the ‘identical factual predicate doctrine’ developed by the federal courts for the proposition that a class action release may not bar ‘a later claim that requires “proof of further facts” in addition to those at issue of in the settled action.’ This doctrine, applied in the Second Circuit and elsewhere but not New York

Because Defendants satisfy all three factors, Plaintiff’s NYLL claim is barred under res judicata.16 See Williams v. Marvin Windows & Doors, 790 N.Y.S.2d 66, 68 (2005) (finding that

The Court finds Plaintiff’s remaining argument challenging the validity of the Settlement Agreement to be meritless. Plaintiff argues that her WTPA claims may not be released in state court class actions because such claims are “considered penalties” and section 901(b) of the CPLR prohibits plaintiffs from maintaining class-wide penalties “unless a statute creating or imposing a penalty, . . . specifically authorizes the recovery thereof.” (Pl.’s Opp’n 5 (quoting CPLR § 901(b)).) However, without deciding whether New York law bars class actions premised on WTPA claims, the Court notes that New York courts have held that class plaintiffs may waive the pursuit of such penalties and proceed as a class action. See Chaney v. Hermes of Paris, Inc., No. 651279/2016, 2018 WL 6586997, at *3 (N.Y. Sup. Ct. Dec. 14, 2018) (“‘[A]lthough CPLR 901(b) bars a class action to recover a penalty or minimum damages imposed by statute, where, as here, the statute does not explicitly authorize a class recovery thereof, the named plaintiff in a class action may waive that relief and bring an action for actual damages only.’ . . . Such waiver may occur either in the complaint itself or in the motion for class certification.” (quoting Super Glue Corp. v. Avis Rent A Car Sys., 517 N.Y.S.2d 764, 767 (App. Div. 1987))). The Court is not aware of a case, and Plaintiff cites to none, that states that class action plaintiffs may not release future WTPA claims.

Accordingly, in the absence of Plaintiff demonstrating that the Settlement Agreement does not apply to her NYLL claim or that there is a due process violation giving reason to vitiate its effect, the Court finds no basis to decline to uphold the release of Plaintiff’s NYLL claim. See People ex rel. Spitzer v. Applied Card Sys., Inc., 11 N.Y.3d 105, 124–25 (2008) (“A similar respect for finality has informed our longstanding rule that — absent exceptional circumstances such as duress, illegality, fraud, or mutual mistake, a settlement must be enforced according to its terms.”); see also In re Am. Express Fin. Advisors Sec. Litig., 672 F.3d 113, 129 (2d Cir. 2011) a state order and judgment disposing of a class action in accordance with a settlement agreement “is res judicata on the plaintiffs’ claims in the instant action[,] and the plaintiffs have effected a general release of the appellants in accordance with the terms of the settlement agreement”). III. Conclusion

For the foregoing reasons, the Court grants Defendants’ motion for partial judgment on the pleadings and dismisses Plaintiff’s NYLL claim.

Dated: August 4, 2021

Brooklyn, New York

SO ORDERED: s/ MKB MARGO K. BRODIE United States District Judge

(“Absent a violation of due process or excusable neglect for failure to timely opt out, a class- action settlement agreement binds all class members who did not do so.”).