Ja Kao v. ONYX Renewable Partners L.P.
| Citation | 2022 NY Slip Op 34046 (U) |
| Decision Date | 28 November 2022 |
| Docket Number | Index No. 654411/2021,Motion Seq. No. 006 007 |
| Parties | JA KAO, Plaintiff, v. ONYX RENEWABLE PARTNERS L.P., ORP JOINT HOLDINGS GP LLC, BLACK ONYX INVESTMENTS, LLC, and BILAL KHAN, Defendants. |
| Court | United States State Supreme Court (New York) |
MOTION DATE 04/29/2022, 04/05/2022
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 006) 102,103,104,105, 107, 108, 109, 110, 111, 132 133, 134, 135, 136, 137, 138, 139 were read on this motion to/for DISMISSAL
The following e-filed documents, listed by NYSCEF document number (Motion 007) 115,116,117,118, 119, 120, 121, 130, 131, 140 141, 142, 143 were read on this motion to/for AMEND CAPTION/PLEADINGS
Defendants Onyx Renewable Partners, L.P. (Onyx), ORP Joint Holdings GP, LLC (ORP GP), and Bilal Khan (collectively, Onyx Defendants) move pursuant to CPLR 3211(a)(7) for an order dismissing the ninth cause of action against them for retaliation for failure to state a cause of action (motion seq. 006). Plaintiff opposes the motion. Plaintiff separately moves pursuant to CPLR 3205(b) and 1003 for leave to amend her complaint and to add previously dismissed defendant Jonathan Maxwell as a party (motion seq. 007).[1] Defendants and Maxwell oppose the motion.
Plaintiff is the former President and Chief Executive Officer (CEO) of Onyx, a limited partnership formed under the laws of Delaware with its principal place of business in New York City (NYSCEF # 1-Orignial Complaint, ¶¶ 6, 7, 18). Plaintiff became President on Onyx in 2015, and on July 1, 2015 plaintiff and Onyx entered into an Employment Agreement (id., ¶ 1), which is the focus of this action. In 2019, plaintiff became CEO of Onyx (id., ¶ 6).
ORP GP is Onyx's general partner, with authority to make decisions for Onyx except for those it delegates to others such as officers of Onyx (id., ¶ 8). Defendant Black Onyx Investments, LLC (Black Onyx) is one of Onyx's three limited partners (id., ¶ 9). The other two limited partners are non-party Blackstone Group, Inc. (Blackstone) and SDCL Energy Efficiency Income Trust PLC (SEEIT), which purchased 50% interest in Onyx from Blackstone in February 2021; this purchase is referred to as the Hemisphere Transaction (id., ¶¶ 9, 22-23). Jonathan Maxwell is an employee and owner of SEEIT and manages SEEIT's investment in Onyx (id., ¶ 11). In 2017, ORP GP delegated its authority to the board of directors of Onyx (Onyx BOD), which consisted of three Blackstone employees and three Onyx employees including plaintiff (id., ¶ 19). Khan, who is employed by Blackstone, manages Blackstone's investment in Onyx and was the chairman of Onyx BOD. In March 2021, Maxwell replaced Khan as chairman of Onyx BOD (id., ¶¶ 10'11).
Plaintiff alleges that following the Hemisphere Transaction, her discretion as CEO to make decisions "on the development project pipeline, the core of Onyx's business" was removed by the new Onyx BOD (id., ¶ 29). On April 23, 2021, citing her diminished role and lack of authority that adversely affected her duties as President and CEO, plaintiff submitted her notice of resignation (id., ¶¶ 31-33). On April 30, 2021, Onyx, acting at ORP GP's direction, forwarded plaintiff a proposed Transition and Separation Agreement and General Release in which Onyx sought to have plaintiff "waive substantial rights" that she identified in the notice of resignation (id., ¶¶ 42-49). Plaintiff claims that the proposed Transition and Separation Agreement "was substantially different than every other separation agreement offered to prior male employees who were separated from Onyx under similar circumstances" (id., ¶ 50).
On May 17, 2021, plaintiff sent an email to Khan alleging that defendants discriminated against her (id., ¶ 60). In his May 21, 2021 response to the email, Khan wrote "'[n]ow that you have announced your departure to the full staff, we believe it is in the best interests of the Company to have Onyx's CFO and COO immediate[ly] assume positions as Interim Co-CEOs, supported by the rest of the Leadership Team, to provide continuity of business operations and to signal a smooth transition to the remaining members of the Onyx team, while we conduct a search for a new CEO'" (id., ¶ 62). Thereafter, plaintiff alleges that her position was given to the male CFO and COO of Onyx as Interim Co-CEOs (id.)', she was removed from all management responsibilities and excluded her from meetings (id., ¶ 63). Defendants also allegedly facilitated other Onyx employees' interference with plaintiffs professional obligations to outside entities by granting them access to plaintiffs email account, such that they were able to cancel plaintiffs meetings without consulting her (id, ¶ 64). After Onyx confirmed that plaintiff had no further responsibilities, it was agreed through counsel that June 2, 2021 would be plaintiffs final day of employment at Onyx (id., ¶¶ 66, 68).
Plaintiff filed this action in July 2021, asserting claims for, inter alia, breach of various provisions of the Employment Agreement, gender discrimination and retaliation under New York State Human Rights Law (NYSHRL) and New York City Human Rights Law (NYCHRL).
Defendants answered the complaint (NY SCEF 21, 22), while Maxwell moved to dismiss for lack of personal jurisdiction and failure to state a cause of action on the sole claims asserted against him - retaliation and discrimination (NYSCEF tfs 23-27). Plaintiff opposed the motion (NYSCEF #'s 26-28). In its Decision and Order dated March 8, 2022 (March 8 Decision), the court rejected Maxwell's jurisdictional arguments but dismissed the complaint against him (NYSCEF # 98). As for the discrimination claim, the court found that Maxwell's alleged conduct was insufficient to constitute an adverse employment act or unlawful discrimination based on gender (id. at 6-7).
As for the retaliation claim, the court wrote:
Here, plaintiffs discrimination and retaliation claims are based on her May 17, 2021 response to defendants' April 30, 2021 Proposed Transition Agreement, and her April 23, 2021 resignation for good reason notice. The adverse employment action - the Proposed Transition Agreement which rejected her resignation for good reason - occurred on April 30, 2021, before her May 17, 2021 protected activity. In other words, the alleged retaliation occurred before and not because of her protected activity. Moreover, based on the allegations in the complaint, the April 23, 2021 notice of resignation did not complain of discrimination and thus does not constitute a "protected activity" (Borawski v Abulafia, 140 A.D.3d 817 [2d Dept 2016]). Accordingly, in the absence of a causal connection between any protected activity and the asserted adverse action, the retaliation claim must be dismissed [ ] (see Forrest, 3 N.Y.3d at 313).
(id. at 8).[2]
The court directed that the Clerk enter judgment dismissing the complaint against Maxwell and amending the caption to reflect the dismissal (id. at 8-9).
Onyx Defendants' Motion to Dismiss (006)
The Onyx Defendants move to dismiss the retaliation claim against them, arguing that as the court found in its March 8 Decision dismissing the claim against Maxwell, the complaint fails to adequately allege a connection between the asserted protective activity and the alleged adverse employee action.
Plaintiff opposes the motion, arguing that in addition to the Proposed Transition Agreement, defendants took adverse actions against her after she sent the May 17, 2021 email, including effectively terminating her without cause on May 21, 2021 (NYSCEF # 1, ¶ 61). Plaintiff argues that as the Onyx defendants fail to address these post-May 17, 2021 actions, their motion should be denied. Alternatively, plaintiff argues that the proposed First Amended Complaint (FAC) -which is the basis for her motion to amend - sufficiently pleads retaliation.
The original complaint does not state a claim for retaliation against the Onyx defendants because it does not allege a causal connection between the asserted adverse employment action-i.e., the April 30, 2021 Proposed Transition and Separation Agreement and the protected activity-i.e., plaintiffs May 17, 2021 email (NYSCEF #1, ¶ 121). That said, the issue remains as to whether the FAC corrects this deficiency.
Plaintiffs Motion To Amend (007)
Plaintiff seeks leave to amend the complaint to: (i) re-add Maxwell as a party based on additional allegations to support her discrimination and retaliation claims against him that were dismissed by the March 8 Decision,' (ii) include additional allegations as against defendants Onyx, ORP GP, Black Onyx and Khan (together, defendants) to support the retaliation claim; and (iii) add supplemental allegations concerning events that occurred after the filing of the original complaint.
Maxwell and defendants separately oppose the motion. Maxwell argues that the complaint cannot be amended to include new claims against him since the March 8 Decision dismissed the claims against him with prejudice, and that, in any event, the proposed amendments are futile since the new allegations do not state claims against him for either gender discrimination or retaliation including because Maxwell is not alleged to have participated in any asserted retaliation.
As for defendants, they argue that the motion to amend should be denied because plaintiff unduly delayed in filing the amended complaint and that they have been prejudiced as a result. Moreover, they argue that the proposed FAC fails to state a claim for retaliation against them. In this regard, they argue that neither allegations as to defendants' efforts to transition plaintiffs responsibilities following her...
To continue reading
Request your trial