Liang v. Cafe' Spice SB, Inc. et al

Filing 83

MEMORANDUM AND OPINION. For the reasons set forth herein, the Court grants defendants' motion for summary judgment with respect to all of plaintiff's claims, except for plaintiffs FLSA claim for unpaid wages and plaintiff's retaliation claim with respect to defendants' failure to re-hire her in violation of Title VII and the NYSHRL. Plaintiff's motion for sanctions is denied in its entirety. SO ORDERED. Ordered by Judge Joseph F. Bianco on 11/29/2012. (Samplin, Ilissa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 09-CV-1306 (JFB) (ETB)

_____________________

ZHENGFANG LIANG,
Plaintiff,
VERSUS

CAFÉ SPICE SB, INC., D/B/A JASMINE &
MR. VINEET KAPOOR,
Defendants.
___________________
MEMORANDUM AND ORDER
November 29, 2012
__________________

also alleges that Jasmine violated the EPA,
Title VII, the NYSHRL, Section 1981, and
the FLSA by denying her overtime pay on
the basis of her gender, race, and national
origin. Plaintiff further alleges that Jasmine
violated the EPA, Title VII, the NYSHRL,
Section 1981, and the FLSA by creating a
hostile work environment, including
condoning sexual harassment and firing
plaintiff in retaliation for attempting to
exercise her rights under those laws. As to
Jasmine’s alleged violations of Section 1981
and the NYSHRL, plaintiff claims that
Kapoor should be held individually liable.

JOSEPH F. BIANCO, District Judge:
Zenghfang Liang (“Liang” or “plaintiff”)
brought this action against Café Spice SB,
Inc., d/b/a/ Jasmine (“Jasmine”) and the
general manager of Jasmine, Vineet Kapoor
(“Kapoor”) (collectively, “defendants”),
alleging violations of Liang’s rights
pursuant to Title VII of the Civil Rights Act
of 1964 (“Title VII”), 42 U.S.C. § 1981
(“Section 1981”), the Fair Labor Standards
Act (“FLSA”), the Equal Pay Act (“EPA”),
the New York State Human Rights Law
(“NYSHRL”), and New York state common
law claims of negligent and intentional
infliction of emotional distress.

Plaintiff also alleges that Jasmine
violated the FLSA by paying her less than
the New York State minimum hourly wage.
Finally, plaintiff alleges that Jasmine both
negligently and intentionally inflicted
emotional distress on her in retaliation for
her complaints.

Specifically, plaintiff alleges that
Jasmine violated her rights under the EPA,
Title VII, the NYSHRL, and Section 1981
by paying her less than it paid both male
employees and employees of other races and
national origins for similar work. Plaintiff

1

Defendants now move for summary
judgment, pursuant to Rule 56 of the Federal
Rules of Civil Procedure, on all of plaintiff’s
claims. Plaintiff also moves for sanctions
against defendants. For the reasons set forth
below, the Court (1) grants defendants’
motion for summary judgment with respect
to the majority of plaintiff’s claims, but
denies summary judgment with respect to
plaintiff’s FLSA unpaid wages claim and
plaintiff’s retaliatory failure to re-hire claim;
and (2) denies plaintiff’s motion for
sanctions.

a motion for summary judgment, the Court
shall construe the facts in the light most
favorable to the non-moving party. See
Capobianco v. City of New York, 422 F.3d
47, 50 (2d Cir. 2005). Unless otherwise
noted, where a party’s 56.1 statement is
cited, that fact is undisputed or the opposing
party has not pointed to any evidence in the
record to contradict it.2
1. Plaintiff’s Employment at Jasmine
On August 22, 2005, Jasmine hired
plaintiff as a full-time dishwasher. (Defs.’
56.1 ¶ 13, July 13, 2010, ECF No. 17-4.)
Plaintiff claims that she was told she would
be paid $400 per week. (Affidavit of
Zhengfang Liang (“Zhengfang Aff.”) ¶ 10,
Aug. 24, 2011, ECF No. 67-1.) Plaintiff was
paid $375 per week until May 14, 2006, the
end of the 2006 spring semester. (Defs.’
56.1 ¶¶ 13-14.)

I. BACKGROUND
A. Factual Background
The Court has taken the facts set forth
below from the parties’ depositions,
affidavits, exhibits, and respective Rule 56.1
Statements of Facts.1 Upon consideration of
1

Plaintiff’s husband, Fuhua Yu, was the
dishwasher at Jasmine prior to plaintiff’s
employment. (Id. ¶ 11.) He was paid $400
per week in July 2005. (Id.) Rajesh
Bhardwaj, the Chief Operating Officer of
Jasmine, claims that Yu was not a
dishwasher, but a prep cook responsible for
washing and cutting vegetables. (Bhardwaj
Affidavit (“Bhardwaj Aff.”) ¶ 38, Sept. 9,
2011, ECF No. 77.) According to Bhardwaj,
Yu simply performed extra dishwashing
duties in the absence of a full-time
dishwasher, prior to plaintiff’s employment,
and as compensation for his dishwashing
work, Jasmine paid Yu an additional $25
over and above his $375 per week prep cook
salary. (Id.) Bhardwaj claims that Yu’s
dishwashing duties ceased once plaintiff was
hired as a full-time dishwasher, and, as a

Instead of filing an opposition to defendants’ 56.1
statement, plaintiff filed an opposition to defense
counsel’s affidavit (and also included a statement of
additional material facts to which plaintiff contends
there exists a genuine issue to be tried). Generally, a
party’s “‘failure to respond or contest the facts set
forth by the [moving party] in [its] Rule 56.1
statement as being undisputed constitutes an
admission of those facts, and those facts are accepted
as being undisputed.’” Jessamy v. City of New
Rochelle, 292 F. Supp. 2d 498, 504 (S.D.N.Y. 2003)
(quoting NAS Elecs., Inc. v. Transtech Elecs. PTE
Ltd., 262 F. Supp. 2d 134, 139 (S.D.N.Y. 2003)).
However, “[a] district court has broad discretion to
determine whether to overlook a party’s failure to
comply with local court rules.” Holtz v. Rockefeller
& Co., 258 F.3d 62, 73 (2d Cir. 2001) (citations
omitted); see also Gilani v. GNOC Corp., No. 04CV-2935 (ILG), 2006 WL 1120602, at *2 (E.D.N.Y.
Apr. 25, 2006) (exercising court’s discretion to
overlook the parties’ failure to submit statements
pursuant to Local Civil Rule 56.1). Accordingly, in
the exercise of its broad discretion and given
plaintiff’s pro se status, the Court will overlook this
defect and will deem admitted only those facts in
defendants’ Rule 56.1 statement that are supported by
admissible evidence and not controverted by other
admissible evidence in the record. See Jessamy, 292
F. Supp. 2d at 504.

2

In addition, although the parties’ Rule 56.1
statements contain specific citations to the record to
support their statements, the Court cites to the Rule
56.1 statements, rather than to the underlying
citations to the record.

2

asserts that she complained to Williams, a
manager at Jasmine, about the fact that she
was not receiving the $400 per week she had
been promised, and that she never received a
cash payment in addition to her weekly
paycheck. 3 (Id. ¶ 17.) Plaintiff claims that
Williams inquired with Kapoor, and was
told that plaintiff would receive an increase
in pay the next semester. (Id.) Plaintiff did
not begin receiving a $400 per week
paycheck until October 2006. (Id. ¶ 18.)

result, Yu stopped receiving the additional
$25 per week. (Id.)
Yu states that he began working at
Jasmine in August 2005 as a dishwasher,
(Fuhua Yu Affidavit (“Yu Aff.”) ¶ 3, Sept.
8, 2010, ECF No. 22-3), and that he was
paid $400 per week until plaintiff was hired,
at which point his salary was reduced to
$375 per week to work as a “cook helper,”
(id. ¶¶ 5-6; Defs.’ Ex. J, Zhengfang Liang
Deposition Transcript (“Zhengfang Dep.”)
at 28, July 13, 2010, ECF No. 18-4.) At her
deposition, plaintiff testified that when she
started working as a dishwasher, her
“husband was responsible for preparing the
food, the raw materials.” (Zhengfang Dep. at
28.) Yu ceased working at Jasmine by
November 13, 2005. (Defs.’ 56.1 ¶ 12.)

Plaintiff states that, in November 2006,
she learned that all Jasmine employees, with
the exception of her husband and herself,
received a cash payment in addition to their
paychecks. (Id. ¶ 21.) Upon learning this
information, plaintiff asserts that she
complained to Kapoor directly, and that he
promised her $105 in cash in addition to her
$400 paycheck each week. (Id.) According
to plaintiff, she received an additional $105
in cash each week in December 2006, but
she did not receive the cash payment in
January 2007. (Id. ¶ 22.)

Plaintiff states that, from approximately
August 2005 to May 2006, she worked from
11:00 a.m. to 9:00 p.m. Monday to Friday,
and from 1:00 p.m. to 9:00 p.m. on
Saturday. (Zhengfang Aff. ¶ 12.) She was
paid $375 per week during that time period,
through May 14, 2006, the end of the 2006
spring semester. (Defs.’ 56.1 ¶ 13.)
Plaintiff’s salary rose to $400 per week at
the start of the 2006 fall semester. (Defs.’
56.1 ¶ 15.) Plaintiff claims that she
continued to work fifty-eight hours per week
from October 2006 through March 2007.
(Zhengfang Aff. ¶ 19.)

Plaintiff states that she approached
Williams on three occasions in February
2007 to complain about no longer receiving
the cash payment. (Id. ¶ 23.) According to
plaintiff, Williams twice told plaintiff that
he would respond to her the next day, but on
the third occasion, he “was angry and loudly
spoke” to plaintiff. (Id.) Plaintiff claims that,
on this third occasion, Williams informed
plaintiff that she would never receive the
cash payment. Plaintiff also claims that
Kapoor came over and told her that

2. Plaintiff’s Concerns Regarding Pay
Plaintiff asserts that, in December 2005,
“a Hispanic co-worker” saw plaintiff’s
paycheck and informed plaintiff that she was
receiving the lowest pay of all Jasmine
employees. (Id. ¶ 16.)
Plaintiff further
asserts that said co-worker showed plaintiff
his payment for that week, which included a
check for $400 and an additional cash
payment of $60. (Id.) With the help of Mr.
Quan, a Chinese cook at Jasmine, plaintiff

3

In her affidavit, plaintiff refers to a “Mr. Andy
Williams (“Williams”), a manager at Jasmine.”
(Zhengfang Aff. ¶ 8.) The Court notes, however, that
plaintiff seems to indicate at her deposition that
“Andy” and “William” are separate people,
(Zhengfang Dep. at 26), and that defendants identify
“William” as Qingwei Quan, a chef at Jasmine, and
“Andy” as Arun Viswanathan, an assistant manager
at Jasmine, (Defs.’ 56.1 ¶ 27).

3

knock on the door to hurry me.
Being the only female employee
working in the kitchen, I was
embarrassed very much with such
situation. I ever [sic] reported these
situations to the managers on a
number
of
occasions;
this
notwithstanding, the situation was
not improved. For this reason, I
requested to be allowed to use a
neighboring lady room, which is at
the same floor as Jasmine and is very
close to Jasmine, but was denied.
Because
of
Defendants’
full
disregard
of
harassment
I
experienced as a woman, I had to
endure such embarrassment day after
day.

“[n]othing [Jasmine] did is unfair to
[plaintiff],” explaining, for example, that
there is no pay for employees during break
time, but that they never deducted plaintiff’s
break time from her hours worked. (Id.)
Plaintiff states that from January 2007
on, she complained to both Kapoor and
Williams on a “number of occasions” about
“the adverse treatment [she] suffered in
wages, in overtime pay, and in
accommodation.” (Id. ¶ 25.) Plaintiff claims
that, as a result, she was “placed under
close, constant surveillance,” and that her
bosses “unceasingly found faults with [her]
and made unwarranted criticism of [her]
work in front of other employees.” (Id.
¶ 26.)
3. Plaintiff’s Use of the Unisex Bathroom

(Zhengfang Aff. ¶ 24.) At her deposition,
plaintiff testified that Jasmine’s chef had
told her that workers may “only use the
bathroom inside.” (Zhengfang Dep. at 24.)
Recounting her experiences with this
bathroom, plaintiff testified that “three or
four times at least there was no response
when [she] knocked the door, but as soon as
[she] opened the door, there were people
inside. There were male workers inside, so
[she] was very embarrassed.” (Id. at 25.)
Plaintiff testified that when she told the chef
about these embarrassing instances, he told
her to use the bathroom outside. (Id.)

Bhardwaj states that, at Jasmine’s
location in the Wang Center at Stony Brook
University, there are at least four separate
male and female bathroom facilities.
(Bhardwaj Aff. ¶ 40.) Nevertheless, plaintiff
states the following about her experience:
[t]here is only one restroom in the
Jasmine dining area, which was
shared by male with female
employees. Like most of man’s room
[sic], there were always some graffiti
with sexual nature on the wall and
the partitions in the bathroom, which
were particularly offensive to and
intended to provoke me as a woman.
In addition, many male employees
did not lock the door when using the
bathroom, and when inquired about
if any body [sic] was in the
bathroom, they kept silence. As a
result, I always had to be confronted
with various awkward [sic] when
going to the bathroom; what is
worse, almost every time I used the
bathroom, there was an unceasing

Plaintiff testified that she started using
the outside bathroom in approximately
March 2007, (id. at 26), and that when her
boss discovered that she had done so, he
scolded her and told her to use the bathroom
downstairs instead, which, according to
plaintiff, takes longer to get to, (id. at 2627.)
4. Plaintiff’s Hospitalization
Plaintiff claims that, on March 21, 2007,
Kapoor “reprimanded [her] publicly for not

4

finishing work in time and taking too long
time break between two meals.” (Zhengfang
Aff. ¶ 27.) Plaintiff states that she was “so
agonized then and there as to feel
hyperventilation and severe chest pain, be
unable to speak and stand but have to bend
over the dishwasher machine.” (Id.) Plaintiff
further states that, following this incident,
managers at Jasmine called an ambulance
and plaintiff was taken to the Stony Brook
University Hospital emergency room. (Id.)
According to the attending doctor’s report,
while at the hospital, plaintiff was treated for
headache, back pain, and chest pain. (Defs.’
Ex. C, Attending Doctor’s Report and
Carrier/Employer Billing Form, July 13,
2010, ECF No. 18-1.) Plaintiff remained in
the hospital until March 23, 2007. Plaintiff
asserts that she then returned home to
continue to rest because of the University’s
spring break. (Zhengfang Aff. ¶ 28.)
Plaintiff was paid for the work period of
March 19, 2007 through April 1, 2007.
(Defs.’ 56.1 ¶¶ 6, 9.)

On April 9, 2007, plaintiff’s brother,
Jerome Liang (“Jerome”), sent defendants a
letter demanding payment of Liang’s
hospital bill. (Defs.’ 56.1 ¶ 33.) Jerome sent
a second letter to defendants, on June 7,
2007, complaining about defendants’ failure
to pay plaintiff’s hospital bill. (Id. ¶ 33.)

Plaintiff states that she “was informed on
the phone that [she] was required to return to
work on April 2, 2007, and that Jasmine
would pay the medical bill after [she] went
back to work.” 4 (Zhengfang Aff. ¶ 28.)
Bhardwaj attests that plaintiff’s hospital bill
for $13,888.70 was submitted to Jasmine’s
workman’s compensation insurance carrier,
but that the carrier declined coverage.
(Bhardwaj Aff. ¶ 17-18.) Defendants claim
that coverage was denied “on the ground of
lack of medical necessity.” (Pl.’s Ex. 2,
Defs.’ Resp. to Pl.’s Interrogs. at 4, Sept. 8,
2010, ECF No. 22-2.)

5. Termination of Plaintiff’s Employment

When plaintiff returned to work on April
2, 2007, her hours were reduced from fiftyeight hours per week to forty hours per
week. (Defs.’ Ex. K, Plaintiff’s Paystubs for
April-May 2007, July 13, 2010, ECF No.
18-4.) Bhardwaj states that plaintiff’s hours
were reduced because she “had been
recently rushed to the hospital from work
with chest pain, had stayed in the hospital
for three days, and had spent a week in
recovery at home.” (Bhardwaj Aff. ¶ 42.)
Plaintiff claims that in addition to learning
that her hours had been cut, she was also
told that she “would not be allowed to take
break and to be provided with free food.”
(Zhengfang Aff. ¶ 30.)

Plaintiff’s employment with Jasmine
terminated on May 18, 2007. (Defs.’ 56.1
¶¶ 10, 23.) Plaintiff claims that, on May 18,
2007, defendants requested that she report to
work on August 28, 2007, but that when she
arrived, she was told she would not be rehired. (Zhengfang Aff. ¶ 35.) Defendants
attest that plaintiff was not re-hired because
of “Jasmine’s projected budget and
insufficient sales estimates for the fall 2007
semester.” (Bhardwaj Aff. ¶¶ 23, 25.)
6. Jasmine’s Department of Labor
Investigation

4

According to defendants’ interrogatory responses,
submitted by plaintiff with respect to this motion,
defendants never promised to pay plaintiff’s hospital
bill. Rather, according to defendants, plaintiff “was
told that Jasmine would submit her hospital bills to
Jasmine’s workman’s compensation insurance
carrier.” (Pl’s. Ex. 2, Defs.’ Resp. to Pl.’s Interrogs.
at 4, Sept. 8, 2010, ECF No. 22-2.)

In August 2007, Jasmine was audited by
the United States Department of Labor
(“DOL”), following undisclosed complaints
from a number of Jasmine’s employees.
(Defs.’ 56.1 ¶ 1; Bhardwaj Aff. ¶ 28.) The

5

compel. On July 13, 2010, defendants filed a
motion for summary judgment. On
September 8, 2010, plaintiff filed an
opposition to defendants’ motion. On
September 22, 2010, defendants filed a reply
in support of their motion.

DOL found that Jasmine had underpaid
eighteen of its employees, employees of
various race and national origin and of both
genders. (Defs.’ 56.1 ¶ 2.) Jasmine signed an
agreement to pay the identified underpaid
employees the back wages owed them. (Id.
at ¶ 3.) Plaintiff received a check from
Jasmine, dated February 1, 2008, for unpaid
back wages and accrued interest in the
amount of $2,231.27, which she accepted
and cashed. (Id. at ¶ 4.)

On January 10, 2011, plaintiff moved for
sanctions against defendants on the
following grounds: (1) defendants’ reply
motion and associated filings misrepresented
plaintiff’s
deposition
testimony
and
plaintiff’s opposition papers; (2) defendants
improperly submitted an affidavit without
identifying the affiant as a witness, and two
documents without providing information
about those materials; (3) defendants
manipulated or forged documents; (4)
defendants made frivolous arguments
without any basis in law or fact; and (5)
defendants’ reply was filed in bad faith.
(Pl.’s Mot. for Sanctions, Jan. 10, 2011,
ECF No. 29.) On March 17, 2011, the Court
held a telephone conference and set a
briefing schedule with respect to plaintiff’s
motion for sanctions. The Court also
terminated defendants’ motion for summary
judgment without prejudice to renew once
the Court decided plaintiff’s pending motion
to compel.

7. Plaintiff’s Complaints to Administrative
Agencies
On January 2, 2008, plaintiff filed a
complaint against Jasmine with the New
York State Division of Human Rights
(“NYSDHR”),
alleging
gender
discrimination and seeking compensation for
(1) alleged overtime wages, (2) a $13,888.07
hospital bill, and (3) loss of employment
from May 18, 2007 to October 18, 2007.
(Defs.’ Ex. G, Verified Complaint to
NYSDHR, July 13, 2010, ECF No. 18-3.)
After reviewing the complaint, the
NYSDHR determined that there was no
probable cause to find that Jasmine engaged
in any unlawful discriminatory practices
with respect to plaintiff, and thereby
dismissed plaintiff’s complaint. (Defs.’ Ex.
H, NYSDHR Determination and Order After
Investigation, July 13, 2010, ECF No. 18-3.)
On January 5, 2009, the Equal Employment
Opportunity Commission (“EEOC”) closed
plaintiff’s file, adopting the findings of the
NYSDHR. (Defs.’ Ex. H, EEOC Dismissal
and Notice of Rights, July 13, 2010, ECF
No. 18-3) Plaintiff also received a notice of
her right to sue. (Id.)

On April 21, 2011, defendants’ filed
their opposition to plaintiff’s motion to
compel. On June 6, 2011, plaintiff filed a
motion to appoint counsel, and on June 8,
2011, filed a reply in support of her motion
for sanctions. On August 9, 2011, the Court
denied both plaintiff’s motion to compel and
plaintiff’s motion to appoint counsel.
On August 12, 2012, the Court issued an
Order directing plaintiff to submit any
additional evidence in support of her
opposition to defendants’ motion for
summary judgment, or to submit a letter
indicating that she plans to rely on the

B. Procedural Background
Plaintiff filed the complaint in the instant
action on March 27, 2009. Defendants
answered the complaint on July 9, 2009. On
May 26, 2010, plaintiff filed a motion to

6

Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)
(summary judgment is unwarranted “if the
evidence is such that a reasonable jury could
return a verdict for the nonmoving party”).

opposition she previously submitted on
September 8, 2010.
On August 24, 2011, plaintiff filed an
additional memorandum in opposition to
defendants’ motion for summary judgment.
On September 9, 2011, defendants filed a
supplemental reply affidavit in support of
their motion, as well as an additional
affidavit from the Chief Operating Officer of
Jasmine, Bhardwaj. The Court has fully
considered the submissions of the parties.

Once the moving party has met its
burden, the opposing party “must do more
than simply show that there is some
metaphysical doubt as to the material
facts. . . . The nonmoving party must come
forward with specific facts showing that
there is a genuine issue for trial.” Caldarola
v. Calabrese, 298 F.3d 156, 160 (2d Cir.
2002) (quoting Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986)). As the Supreme Court stated in
Anderson, “[i]f the evidence is merely
colorable, or is not significantly probative,
summary judgment may be granted.”
Anderson, 477 U.S. at 249-50 (citations
omitted). Indeed, “the mere existence of
some alleged factual dispute between the
parties” alone will not defeat a properly
supported motion for summary judgment.
Id. at 247-48. Thus, the nonmoving party
may not rest upon mere conclusory
allegations or denials but must set forth
“concrete particulars” showing that a trial is
needed. R.G. Group, Inc. v. Horn &
Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984)
(quoting SEC v. Research Automation
Corp., 585 F.2d 31, 33 (2d Cir. 1978)).
Accordingly, it is insufficient for a party
opposing summary judgment “merely to
assert a conclusion without supplying
supporting arguments or facts.” BellSouth
Telecomms., Inc. v. W.R. Grace & Co., 77
F.3d 603, 615 (2d Cir. 1996) (quoting
Research Automation Corp., 585 F.2d at
33).

II. STANDARD OF REVIEW
The standard for summary judgment is
well settled. Pursuant to Federal Rule of
Civil Procedure 56(a), a court may only
grant a motion for summary judgment if
“the movant shows that there is no genuine
dispute as to any material fact and the
movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The moving
party bears the burden of showing that he or
she is entitled to summary judgment.
Huminski v. Corsones, 396 F.3d 53, 69 (2d
Cir. 2004). “A party asserting that a fact
cannot be or is genuinely disputed must
support the assertion by: (A) citing to
particular parts of materials in the record,
including
depositions,
documents,
electronically stored information, affidavits
or declarations, stipulations (including those
made for purposes of the motion only),
admissions, interrogatory answers, or other
materials; or (B) showing that the materials
cited do not establish the absence or
presence of a genuine dispute, or that an
adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ.
P. 56(c)(1). The court “is not to weigh the
evidence but is instead required to view the
evidence in the light most favorable to the
party opposing summary judgment, to draw
all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.” Amnesty Am. v. Town of W.

The Second Circuit has provided
additional guidance regarding summary
judgment motions in discrimination cases:
7

summary judgment with respect to
plaintiff’s unpaid wages claim on the
grounds that: (1) plaintiff waived her right to
sue when she accepted the DOL’s payment,
and (2) plaintiff’s claims are barred by the
statute of limitations. Defendants move for
summary judgment with respect to
plaintiff’s retaliation claim on the ground
that plaintiff’s complaints cannot constitute
protected activity under the FLSA. For the
reasons set forth below, the Court denies
defendants’ motion with respect to
plaintiff’s unpaid overtime wages claim, and
grants defendants’ motion with respect to
plaintiff’s retaliation claim.

We have sometimes noted that an
extra measure of caution is merited
in affirming summary judgment in a
discrimination action because direct
evidence of discriminatory intent is
rare and such intent often must be
inferred
from
circumstantial
evidence found in affidavits and
depositions. See, e.g., Gallo v.
Prudential Residential Servs., 22
F.3d 1219, 1224 (2d Cir. 1994).
Nonetheless, “summary judgment
remains available for the dismissal of
discrimination claims in cases
lacking genuine issues of material
fact.” McLee v. Chrysler Corp., 109
F.3d 130, 135 (2d Cir. 1997); see
also Abdu-Brisson v. Delta Air
Lines, Inc., 239 F.3d 456, 466 (2d
Cir. 2001) (“It is now beyond cavil
that summary judgment may be
appropriate even in the fact-intensive
context of discrimination cases.”).

1. Plaintiff’s Unpaid Overtime Wages
Claim
Under the FLSA, employers engaged in
interstate commerce must pay overtime pay
to an employee working more than forty
hours per week “at a rate not less than one
and one-half times the regular rate at which
he is employed.” 29 U.S.C. § 207(a)(1). The
regular, minimum rates at which employees
must be paid are established by section 206
of the FLSA. 29 U.S.C. § 206(a). In
addition, the FLSA sets forth a broad civil
enforcement scheme, pursuant to which
“[a]ny employer who violates the provisions
of section 206 or section 207 of this title
shall be liable to the employee or employees
affected in the amount of their unpaid
minimum wages, or their unpaid overtime
compensation, as the case may be, and in an
additional equal amount as liquidated
damages.” 29 U.S.C. § 216(b). In an action
to recover unpaid overtime wages under
FLSA, a “plaintiff must show that: (1) he
was an employee who was eligible for
overtime ([i.e.,] not exempt from the Act’s
overtime pay requirements); and (2) that he
actually worked overtime hours for which he
was not compensated.” Hosking v. New
World Mortg., Inc., 602 F. Supp. 2d 441,
447 (E.D.N.Y. 2009).

Schiano v. Quality Payroll Sys., 445 F.3d
597, 603 (2d Cir. 2006) (quoting Holtz v.
Rockefeller & Co., 258 F.3d 62, 69 (2d Cir.
2001)).
III. DISCUSSION
A. Plaintiff’s FLSA Claims5
Plaintiff asserts that she has not been
fully compensated for her overtime wages
under the FLSA, and that she was
discharged in retaliation for her complaints
of underpayment. Defendants move for
5

In her supplemental opposition, plaintiff refers to
claims brought under the New York State Labor
Laws. (Pl.’s Supplemental Opp’n at 9, Aug. 24, 2011,
ECF No. 67.) However, plaintiff did not assert any
New York State Labor Law claims in her complaint.
If plaintiff wishes to bring claims against defendants
pursuant to the New York State Labor Laws, plaintiff
must make a formal motion to amend her complaint.

8

be satisfied independently.” Parada v.
Banco Indus. de Venezuela, C.A., No. 10
Civ. 0883(SHS), 2011 WL 519295, at *9
(S.D.N.Y. Feb. 15, 2011) (quoting Sneed v.
Sneed’s Shipbuilding, Inc., 545 F.2d 537,
539 (5th Cir. 1977) and citing Walton v.
United Consumers Club, Inc., 786 F.2d 303,
305 (7th Cir. 1986)). As the Seventh Circuit
noted in Walton,

Plaintiff alleges that she worked fiftyeight hours per week during her employment
at Jasmine, and that she was not
compensated for overtime work. The Court
notes that plaintiff was compensated for
some overtime wages after the DOL audit.
(Pl.’s Supplement Ex., DOL WH-60 and
Breakdown of Payment, Aug. 24, 2011, ECF
No. 67-2.) Plaintiff claims that she worked
additional hours that Jasmine’s payment
following the DOL audit did not compensate
her for. (Pl.’s Supplemental Opp’n at 8,
Aug. 24, 2011, ECF No. 67 (“In fact, the
back wages of $2,194.69 is not a payment in
full because it was obtained based on false
information that Jasmine provided to WHD
that Plaintiff worked 49 to 55 hours per
week.”).)

The
Department
apparently
distinguishes among settlements.
When it thinks it has achieved
“enough” for the employees–
something close to full payment of
the wages and overtime due–it sends
them agreements explicitly releasing
the right to sue, and it requests them
to sign these forms if they wish to
take the money. When the
Department thinks it has fallen far
short, it does not solicit these
signatures.

a. Waiver of Right to Sue under the FLSA
Under the FLSA,
[t]he Secretary is authorized to
supervise the payment of the unpaid
minimum wages or the unpaid
overtime compensation owing to any
employee or employees under
section 206 or section 207 of this
title, and the agreement of any
employee to accept such payment
shall upon payment in full constitute
a waiver by such employee of any
right he may have under subsection
(b) of this section to such unpaid
minimum wages or unpaid overtime
compensation and an additional
equal amount as liquidated damages.

786 F.2d at 306. The Court concluded that,
The Department of Labor did not
send out form agreements in this
case or ask the employees to
surrender any rights. [Defendant]
could have negotiated for a
settlement
under
which
the
Department would have solicited
such
agreements,
but
either
[defendant] did not ask or the
Department did not assent. The
employees’ cashing of the checks
they received therefore did not
release their full claims against
[defendant].

29 U.S.C. § 216(c). As one court within this
district has noted, and this Court agrees with
the analysis contained therein, “[a] valid
waiver of plaintiff’s right to sue requires:
‘(a) that the employee agree to accept
payment which the Secretary [of Labor]
determines to be due and (b) that there be
payment in full,’ . . . and both elements must

Id. at 307.
Thus, courts that have determined that a
plaintiff’s FLSA claims were waived
pursuant to a DOL settlement have found
that the waiver occurred pursuant to

9

plaintiff’s receipt of a WH-58 form, which
contains explicit waiver language, or a
similar form containing explicit waiver
language. 6 See, e.g., Blackwell v. United
Drywall Supply, 362 F. App’x 56, 58 (11th
Cir. 2010) (“We agree with the district court
that these [WH-58] forms unambiguously
informed Plaintiffs that, if they cashed the
checks provided with the forms, they would
be waiving their rights to sue for back
pay.”); Kaiser v. At the Beach, Inc., No. 08CV-586-TCK-FHM, 2010 WL 5114729, at
*10 (N.D. Okla. Dec. 9, 2010) (where
plaintiff’s payment from the DOL was
accompanied by a WH-58 form, plaintiff’s
action in cashing the check waived all
claims for back wages); Selz v. Investools,
Inc., No. 2:09-CV-1042 TS, 2010 WL
1451347, at *5 (D. Utah Apr. 8, 2010)
(where plaintiff received payment with
DOL’s “Receipt Form” containing explicit
waiver language, plaintiff’s action in
cashing check waived all FLSA claims); cf.

Jones v. Midlands Neurology & Pain
Assocs., P.A., No. 3:11-2623-CMC-SVH,
2012 WL 2913224, at *3 & n.5 (D.S.C. July
17,
2012)
(adopting
report
and
recommendation and denying summary
judgment where “[d]efendants merely
submitted evidence that shows payment of
the wages to Plaintiff, and not evidence that
she knowingly waived her FLSA rights by
accepting the payment” and plaintiff alleged
“that she was not aware she was potentially
relinquishing rights and that she did not
receive a Form WH-58 (Receipt for
Payment and Back Wages) to sign”).
In this case, defendants have not
produced evidence of plaintiff’s receipt of
any form containing explicit (or implicit)
waiver language. Also, the DOL’s WH-60
form that was mailed to plaintiff does not
contain a waiver of plaintiff’s right to sue
under the FLSA. Thus, although plaintiff
received payment from the DOL for back
wages, there is nothing to indicate that
plaintiff agreed to accept the payment and
waive any claims under 29 U.S.C. § 216(c).
As such, defendants’ motion for summary
judgment on the ground of waiver is denied.

6

Though the WH-58 form has not been submitted to
the Court as part of this case, other courts have noted
that the WH-58 form contains the following waiver
language:
NOTICE TO EMPLOYEE UNDER THE
FAIR LABOR STANDARDS ACT
(FLSA): Your acceptance of this payment of
wages and other compensation due under the
FLSA based on the findings of the Wage
and Hour Division means that you have
given up the right you have to bring suit on
your own behalf for the payment of such
unpaid wages or unpaid overtime
compensation for the period of time
indicated above and an equal amount in
liquidated damages, plus attorney’s fees and
court costs under Section 16(b) of the FLSA.
Generally, a 2-year statute of limitations
applies to the recovery of back wages. Do
not sign this receipt unless you have actually
received this payment in the amount
indicated above of the wages and other
compensation due you.

b. Statute of Limitations
Defendants contend that plaintiff’s
FLSA claims are barred by the applicable
two-year statute of limitations. (Defs.’ Mot.
for Summ. J. at 3, July 13, 2010, ECF No.
17-4.) Plaintiff filed her complaint on March
27, 2009. By plaintiff’s own admission, she
no longer worked over forty hours per week
after her March 21, 2007 hospitalization.
(Zhengfang Aff. ¶ 30.)
A suit under the FLSA must be
commenced within two years after the cause
of action has accrued, unless a plaintiff can
show that a defendant’s violation of the Act
was willful, in which case a three-year
statute of limitation applies. 29 U.S.C.

Victoria v. Alex Car, Inc., No. 11 C 9204, 2012 WL
1068759, at *2 (N.D. Ill. Mar. 29, 2012).

10

defendants’ alleged violation of the FLSA
was willful. See Moon v. Kwon, 248 F.
Supp. 2d 201, 231 (S.D.N.Y. 2002) (finding
willful violations where the evidence was
“clear that the defendants also flagrantly
violated basic recordkeeping requirements
and knowingly paid employees off-thebooks in cash without reporting those cash
payments to the tax authorities.”).

§ 255. For an employer’s actions to be
willful, the employer must have “either
[known] or showed reckless disregard as to
whether its conduct was prohibited by the
[FLSA].” McLaughlin v. Richland Shoe Co.,
486 U.S. 128, 133 (1988). Courts in this
Circuit have generally left the question of
willfulness to the trier of fact. See, e.g.,
Kaur v. Royal Arcadia Palace, Inc., 643 F.
Supp. 2d 276, 297 (E.D.N.Y. 2007)
(denying summary judgment as to
willfulness where plaintiffs had complained
to defendants about their pay); Damassia v.
Duane Reade, Inc., No. 04 Civ. 8819(GEL),
2005 WL 1214337, at *2-3 (S.D.N.Y. May
20, 2005) (denying motion to dismiss as to
willfulness
where
plaintiffs
alleged
defendants knew the requirements of FLSA
and deliberately misclassified them as
independent contractors); Vaicaitiene v.
Partners in Care, Inc., No. 04 Civ.
9125(RMB)(THK), 2005 WL 1593053, at
*7 (S.D.N.Y. July 6, 2005) (finding
willfulness to be a question for the trier of
fact); Davis v. Lenox Hill Hosp., No. 03 Civ.
3746 (DLC), 2004 WL 1926086, at *7
(S.D.N.Y. Aug. 31, 2004) (same).

The Court therefore denies defendants’
motion for summary judgment with respect
to defendants’ claim that the statute of
limitations bars plaintiff’s claim of unpaid
overtime wages. A disputed issue of fact
exists as to whether the two or three year
statute of limitations applies. As such,
plaintiff’s FLSA claim relating to conduct
within the three year period prior to the
filing of this lawsuit survives defendants’
motion for summary judgment.7
7

Plaintiff argues that, “as a new immigrant speaking
no English, Plaintiff did not and had no reason to
know [about the FLSA].” (Pl.’s Supplemental Opp’n
at 9.) Plaintiff requests that the statute of limitations
be equitably tolled until February 2008, when she
first learned about both the FLSA and Jasmine’s
violation of the Act from the DOL investigation. (Id.
at 9-10.) Where a FLSA notice has not been posted,
and plaintiff is an immigrant with a limited ability to
learn of FLSA protections, a basis for equitable
tolling may exist. See Leon v. Pelleh Poultry Corp.,
No. 10 Civ. 4719(GAY), 2011 WL 4888861, at *3
(S.D.N.Y. Oct. 13, 2011) (“The required posted
notices could conceivably have been the only way
they would have become aware of their right to such
compensation under the FLSA. Moreover, plaintiffs,
according to their complaint, are immigrant Latino
manual workers routinely working longer than ten
hours per day and forty hours per week. Their ability
to learn of this and other legal rights under the
complex web of labor and social legislation that
governs the modern workplace is not great. . . . A
possible basis is therefore established for equitable
tolling.” (footnote, citation, and internal quotation
marks omitted)). The relevant question is whether a
reasonable plaintiff in her circumstances would have
been aware of her rights. Id. at *3. In this case,
defendants have produced evidence that plaintiff’s
brother, an employee of Stony Brook University’s

In support of her claim that a three-year
statute of limitations should apply, plaintiff
states that defendants did not post notices of
the FLSA or New York State Labor Laws,
(Zhengfang Aff. ¶ 38), and that defendants
did not provide plaintiff with a statement of
her work hours and her rate of pay along
with her paycheck, (Pl.’s Supplemental
Opp’n at 9.) Plaintiff also claims that
defendants made cash payments to other
employees to supplement their income.
(Zhengfang Aff. ¶¶ 21-22.) Additionally, the
Court notes that defendants have stated that
they were not using time cards for their
employees. (Pl.’s Supplement Ex., Letter
from Bhardwaj to N.Y. State Division of
Human Rights, Aug. 24, 2011, ECF No. 672.) Thus, at the very least, a disputed issue
of fact exists with respect to whether
11

Thus, plaintiff’s claim of unpaid
overtime wages within the three years prior
to the filing of her complaint survives
summary judgment.8

2. Plaintiff’s FLSA Retaliation Claim
The anti-retaliation provision of the
FLSA provides that it shall be unlawful for
any person:
to discharge or in any other manner
discriminate against any employee
because such employee has filed any
complaint or instituted or caused to
be instituted any proceeding under or
related to this chapter, or has
testified or is about to testify in any
such proceeding, or has served or is
about to serve on an industry
committee;

School of Medicine, sent them a letter on plaintiff’s
behalf in April 2007, referencing New York’s
minimum wage and overtime requirements, as well
as recent notes from the New York State Department
of Labor. (Defs.’ Ex. E, Apr. 9, 2007 Letter from
Jerome Liang to Café Spice, July 13, 2010, ECF No.
18-2 (“I shall emphasize the New York State
Department of Labor’s recent Notes (from Eliot
Spitzer, Governor and M. Patricia Smith,
Commissioner) that the New York State’s minimum
wage was increased to $7.15 per hour by January 1,
2007. This rate is based on forty hours per week. Any
time worked beyond forty hours in a week is to be
paid at time and a half. If your firm has not yet
compensated to Ms. Zhengfang Liang by this
minimum wage since January 1, 2007, you must do
so immediately and make retroactive payments to her
accordingly.”).) The Court finds that given this
evidence, a reasonable plaintiff in plaintiff’s situation
would have been aware of her rights under the FLSA,
and, as a result, no basis for equitable tolling exists.
8
The Court is aware that plaintiff has already been
compensated, with overtime pay, for forty-nine hours
of work per week in the spring of 2006, fifty-five
hours of work per week in the fall of 2006, and fiftytwo hours per week in the winter of 2007. (Pl.’s
Supplement Exhibit, DOL WH-60 and Breakdown of
Payment, Aug. 24, 2011, ECF No. 67-2.) Plaintiff
alleges, however, that she worked fifty-eight hours
per week during all three of these time periods. (See
Zhengfang Aff. ¶¶ 12, 19). The Court also notes that
neither party has introduced evidence regarding
unpaid break time, though it appears from plaintiff’s
affidavit that she was, in fact, given break time
during her employment. (See id. ¶ 30 (stating that, in
April 2007, she “was informed that [she] would not
be allowed to take break and to be provided with free
food”).) Thus, to the extent that defendants rely on
the argument that plaintiff has been fully
compensated under their payment to her following
the DOL audit, defendants have not pointed to
evidence showing that plaintiff has, in fact, been fully
compensated for her time worked. Summary
judgment is therefore inappropriate at this time.

29 U.S.C.A. § 215(a)(3). The Supreme
Court has held that:
To fall within the scope of the
antiretaliation provision, a complaint
must be sufficiently clear and
detailed for a reasonable employer to
understand it, in light of both content
and context, as an assertion of rights
protected by the statute and a call for
their protection. This standard can be
met, however, by oral complaints, as
well as by written ones.
Kasten v. Saint-Gobain Performance
Plastics Corp., 131 S. Ct. 1325, 1335
(2011). Moreover, according to the Second
Circuit, “The plain language of [the FLSA
provision] limits the cause of action to
retaliation
for
filing
formal
complaints . . . but does not encompass
complaints made to a supervisor.” Lambert
v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir.
1993), abrogated on other grounds by
Kasten, 131 S. Ct. at 1335; see also Hyunmi
Son v. Reina Bijoux, Inc. 823 F. Supp. 2d
238, 244 (S.D.N.Y. 2011) (holding that
Lambert’s holding that internal complaints
to employers, as opposed to government
authorities, are not protected by the anti12

of sex by paying wages to
employees . . . at a rate less than the
rate at which he pays wages to
employees of the opposite sex . . . for
equal work on jobs the performance
of which requires equal skill, effort,
and responsibility, and which are
performed under similar working
conditions, except where such
payment is made pursuant to (i) a
seniority system; (ii) a merit system;
(iii) a system which measures
earnings by quantity or quality of
production; or (iv) a differential
based on any other factor other than
sex . . . .

retaliation provision of the FLSA was not
altered by the Supreme Court’s ruling in
Kasten); Graves v. Deutsche Bank Secs.
Inc., No. 07 Civ. 5471 (BSJ), 2010 WL
997178, at *4 (S.D.N.Y. Mar. 18, 2010)
(“[T]he FLSA bars discrimination only
when the retaliation is in response to a
formal complaint lodged with the
Department of Labor.”).
Here, plaintiff has only produced
evidence of complaints that she made to her
employer during the relevant time period.
(See Zhengfang Aff. ¶ 17-18, 23, 25, 29, 32,
34.) Accordingly, because there is no
evidence that plaintiff lodged a complaint,
oral or written, to a proper government
authority prior to her termination, summary
judgment with respect to plaintiff’s
retaliation claim under the FLSA is granted
in defendants’ favor.

29 U.S.C. § 206(d)(1). “To prove a violation
of the EPA, a plaintiff must first establish a
prima facie case of discrimination by
showing: i) the employer pays different
wages to employees of the opposite sex; ii)
the employees perform equal work on jobs
requiring
equal
skill,
effort,
and
responsibility; and iii) the jobs are
performed
under
similar
working
conditions.” Belfi v. Prendergast, 191 F.3d
129, 135 (2d Cir. 1999) (internal quotation
marks and citation omitted).

B. Plaintiff’s EPA Claims
Defendants move for summary judgment
with respect to plaintiff’s EPA claims on the
following grounds: (1) plaintiff’s claims are
time barred by the statute of limitations; (2)
as to plaintiff’s disparate pay claim, plaintiff
cannot establish a prima facie case of
discrimination; and (3) plaintiff’s retaliation
claim must fail, as a matter of law, because
her complaints of wage discrimination made
to her employer fail to support such a claim.
For the reasons set forth below, the Court
grants defendants’ motion for summary
judgment with respect to plaintiff’s EPA
claims.

Once a plaintiff has made out a prima
facie case of discrimination under the EPA,
“the burden of persuasion shifts to the
defendant to show that the wage disparity is
justified by one of the affirmative defenses
provided under the Act: ‘(i) a seniority
system; (ii) a merit system; (iii) a system
which measures earnings by quantity or
quality of production; or (iv) a differential
based on any other factor other than sex.’”
Id. at 136 (quoting 29 U.S.C. § 206(d)(1)).
To successfully establish the last defense, a
“factor other than sex”, the employer “must
also demonstrate that it had a legitimate
business reason for implementing the
gender-neutral factor that brought about the
wage differential.” Id.

1. Plaintiff’s EPA Disparate Pay Claim
a. Applicable Law
Under the EPA,
[n]o employer . . . shall discriminate
. . . between employees on the basis

13

Once the employer has established one
of the enumerated affirmative defenses, the
plaintiff may counter the defense “by
producing evidence that the reasons the
defendant seeks to advance are actually a
pretext for sex discrimination.” Id.

listed, inter alia, the last paycheck amount
paid to its employees, the gender of those
employees, and the years of experience for
those employees. (Pl.’s Opp’n Exs. at 17-19,
DOL Documents, Sept. 8, 2010, ECF No.
22-2.) 10 Bhardwaj acknowledges that the
document provides the “name, gender, hire
date, job description, most recent weekly
salary or hourly rate the employee had
received to date, and the employee’s
restaurant industry experience prior to
employment
with
Jasmine.”
(Reply
Affidavit of Bhardwaj (“Bhardwaj Reply
Aff.”) ¶ 6, Sept. 22, 2010, ECF No. 26-2.)
Of the four employees listed as dishwashers,
two are male (M.C. and I.Z.) and two are
female (plaintiff and C.U.). All of the
dishwashers are listed as having received
$400 per week as their most recent weekly
salary to date. (Pl.’s Opp’n Exs. at 17-19.) It
is undisputed that plaintiff received $400 per
week after two semesters of work at
Jasmine. Thus, the only possible instance of
disparate pay is the $375 per week salary
plaintiff received during her first two
semesters of work.

A claim under the EPA “must be
commenced within two years of its accrual,
or three years if the violation is willful.”
Pollis v. New Sch. for Social Research, 132
F.3d 115, 118 (2d Cir. 1997).
b. Analysis
Defendants move for summary judgment
on the grounds that plaintiff has not
established a prima facie case of wage
discrimination because plaintiff premises her
claim on a comparison of her wages with
those of her husband, who had additional job
responsibilities. 9 (Affidavit of Darren H.
Fairlie in Reply and in Further Support of
Defs.’ Mot. for Summ. J. (“Fairlie Reply
Aff.”) ¶ 39-40, Sept. 9, 2011, ECF No. 76.)
Defendants argue that Yu was both a prep
cook and dishwasher, and that he was
therefore not similarly situated to plaintiff,
who worked only as a dishwasher. (Defs.’
Mot. for Summ. J. at 10). As discussed
supra, the exact nature of Yu’s job
responsibilities at Jasmine is disputed.
However, given the uncontroverted evidence
in the record, the Court finds that plaintiff
cannot establish that Jasmine pays different
wages to employees based on sex.

The uncontroverted evidence shows that,
of the two female dishwashers, C.U. was
paid $400 per week at the time of hire and
plaintiff was paid $375 per week at the time
of hire. Bhardwaj states that, at the time of
her hire, C.U. was paid $400 per week,
(Bhardwaj Reply Aff. ¶ 7), and defendants
produced a copy of Jasmine’s check register
reflecting C.U.’s weekly pay of $400.
(Defs.’ Ex. A, CompuPay Check Register,
Sept. 22, 2010, ECF No. 26-3.) As noted
supra, it is undisputed that plaintiff received
$375 at the time of her hire.

Plaintiff produced a document, which
was submitted to the DOL, in which Jasmine
9

To the extent defendants argue that plaintiff’s EPA
claim should be dismissed because she failed to
oppose defendants’ arguments in her initial
opposition, given plaintiff’s pro se status and the
unique procedural posture of defendants’ motion, the
Court declines to consider plaintiff’s EPA claims
waived by her failure to directly oppose defendants’
motion in the first instance.

10

Plaintiff’s exhibits to her opposition to defendants’
motion for summary judgment, filed on September 8,
2010, do not contain clear divisions. ECF page
numbers are therefore given.

14

$400 per week during the course of their
employment.11

The uncontroverted evidence also shows
that, of the two male dishwashers, M.C. was
paid $400 at the time of hire and I.Z. was
paid $300 at the time of hire. Bhardwaj
states that, at the time of his hire, M.C. was
paid $400 per week, (Bhardwaj Reply Aff.
¶ 8), and the Jasmine check register reflects
payment to M.C. in that amount. (Defs.’ Ex.
A, CompuPay Check Register.) Bhardwaj
states that, at the time of his hire, I.Z. was
paid $300 per week, (Bhardwaj Reply Aff.
¶ 8), and the Jasmine check register reflects
payment to I.Z. in the amount of $297.10.
(Defs.’ Ex. A, CompuPay Check Register.)
The Court notes that plaintiff contends that
Yu was paid $400 while he was working as
a dishwasher.

As such, the Court grants defendants’
motion with respect to plaintiff’s EPA
disparate pay claim. 12
2. Plaintiff’s EPA Retaliation Claim
“The EPA is an amendment to the
FLSA and is codified under the same
chapter; thus retaliation for filing EPA
complaints falls under § 215(a)(3).”
Lambert, 10 F.3d at 55. As such, “[t]he plain
language of this provision limits the cause of
action to retaliation for filing formal
complaints, instituting a proceeding, or
testifying, but does not encompass
complaints made to a supervisor.” Id.

As the Second Circuit has stated, “[t]he
problem with comparing plaintiff’s pay only
to that of a single male employee is that it
may create the impression of an Equal Pay
Act violation where no widespread gender
discrimination exists.” Lavin-McEleney v.
Marist Coll., 239 F.3d 476, 481 (2d Cir.
2001). Thus, plaintiff cannot only look to
Yu as her basis for comparison. Considering
all of the evidence in the record regarding
salaries paid by Jasmine to dishwashers, the
Court concludes that plaintiff has not
established the first element of her prima
facie case of wage discrimination – namely,
that the employer pays different wages to
employees of the opposite sex. Yu (male),
M.C. (male), and C.U. (female) were paid
$400 per week at the time of hire, plaintiff
(female) was paid $375 per week at the time
of hire, and I.Z (male) was paid $300 at the
time of hire. Thus, at one point in time, both
male and female dishwashers were paid
more than plaintiff, and plaintiff herself was
paid more than a similarly situated male
employee. Additionally, all dishwashers,
male and female alike, were eventually paid

Here, it is undisputed that while plaintiff
complained to management about her pay,
plaintiff did not file a formal complaint,
institute a proceeding, or testify regarding
her complaints. 13 Thus, summary judgment
11

Defendants also move for summary judgment on
the ground that the statute of limitations bars
plaintiff’s EPA claims. As stated supra, a three year
statute of limitations applies to willful violations of
the EPA. Even if plaintiff could establish a prima
facie case of wage discrimination under the EPA, the
only period of disparate pay would have occurred
during the short period of time from late March 2006
to May 2006, when plaintiff received $375. Given
plaintiff’s failure to establish a prima facie case of
wage discrimination, the Court declines to address
the statute of limitations issue.
12
To the extent plaintiff asserts in her complaint that
an EPA disparate pay claim stands because male
employees received overtime wages while she did
not, there is nothing in the record to support
plaintiff’s claim. Thus, summary judgment with
respect to this aspect of plaintiff’s claim is granted in
favor of defendants.
13
The Court is aware that plaintiff filed a complaint
with the NYSDHR on January 2, 2008, alleging
gender discrimination and seeking payment for (1)
alleged overtime wages, (2) a $13,888.07 hospital
bill, and (3) loss of employment from May 18, 2007
to October 18, 2007. (Defs.’ Ex. G, Verified

15

1. Plaintiff’s Disparate Treatment Claims

is granted with respect to plaintiff’s EPA
retaliation claim.14

a. Legal Standard
C. Plaintiff’s Employment Discrimination
Claims

Title VII prohibits discrimination against
an employee based on her gender, race, or
national origin. 15 See 42 U.S.C. § 2000e2(a). Here, plaintiff claims she has been
discriminated against by defendant on the
basis of her gender, race, and national
origin.

Plaintiff has asserted claims of gender
discrimination pursuant to both Title VII and
the NYSHRL, and claims of race and
national origin discrimination pursuant to
Title VII, the NYSHRL, and Section 1981.
Plaintiff
alleges
that
defendants
discriminated against her on the basis of her
gender when they (1) paid her less than they
paid her male counterparts, (2) denied her
overtime pay, (3) maintained a hostile work
environment, and (4) terminated her in
retaliation for her protected activities under
Title VII. Plaintiff alleges that defendants
discriminated against her on the basis of her
race or national origin when they (1) paid
her less than they paid employees of other
races and national origins, (2) denied her
overtime pay, (3) created a hostile work
environment, and (4) terminated her
employment in retaliation for her opposition
to defendants’ race discrimination.

The “ultimate issue” in any employment
discrimination case is whether the plaintiff
has met her burden of proving that the
adverse employment action was motivated,
at least in part, by an “impermissible
reason,” i.e., that there was discriminatory
intent. Fields v. N.Y. State Office of Mental
Retardation & Dev’l Disabilities, 115 F.3d
116, 119 (2d Cir. 1997). In the absence of
direct evidence of discrimination, a plaintiff
in an employment discrimination case must
satisfy the three step McDonnell Douglas
test. First, a plaintiff must establish a prima
facie case of unlawful discrimination by
showing that (1) she is a member of a
protected class (2) who performed her job
satisfactorily (3) but suffered an adverse
employment action (4) under circumstances
giving rise to an inference of discrimination
or retaliation. See McDonnell Douglas Corp.

Defendants move for summary judgment
on the ground that plaintiff cannot establish
a prima facie case of discrimination. For the
reasons set forth below, the Court grants
defendants’ motion for summary judgment
with respect to plaintiff’s disparate treatment
claims, hostile work environment claims,
and retaliatory hostile work environment
claims, and denies defendants’ motion with
respect to plaintiff’s retaliatory failure to rehire claim.

15

In addition to bringing claims under Title VII,
plaintiff alleges discrimination under both Section
1981 and the NYSHRL. Claims of discrimination
brought under Section 1981 or the NYSHRL are
analyzed using the same framework as claims
brought under Title VII, and the outcome in each
instance will be the same as the outcome under Title
VII. See Mavrommatis v. Carey Limousine
Westchester, Inc., 476 F. App’x 462, 464 (2d Cir.
2011) (noting that discrimination claims brought
pursuant to Section 1981 are analyzed under the same
McDonnell Douglas burden-shifting analysis that is
applied to claims brought pursuant to Title VII); Van
Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 71415 (2d Cir. 1996) (explaining that claims brought
pursuant to the NYSHRL are governed by the same
standards as claims brought under Title VII).

Complaint to NYSDHR.) However, this complaint
was filed after plaintiff’s termination, which occurred
on May 18, 2007, and therefore no retaliatory act by
defendants could be premised on that complaint.
14
To the extent plaintiff alleges that she was subject
to a retaliatory hostile work environment due to her
EPA complaints, summary judgment is appropriate
for the same reasons set forth above.

16

114, 118-19 (2d Cir. 1998) (plaintiff may
produce direct or circumstantial evidence of
discrimination). The key is whether there is
sufficient evidence in the record from which
a reasonable trier of fact could find in favor
of plaintiff on the ultimate issue, that is,
whether the record contains sufficient
evidence to support an inference of
discrimination. James, 233 F.3d at 152, 1547; Connell, 109 F. Supp. 2d at 207-08.

v. Green, 411 U.S. 792, 802 & n.13 (1973)
(noting that elements of prima facie case
vary depending on factual circumstances);
Stratton v. Dep’t for the Aging for N.Y., 132
F.3d 869, 879 (2d Cir. 1997).
Second, if the plaintiff establishes a
prima facie case, “a rebuttable presumption
of discrimination arises and the burden then
shifts to the defendant to articulate a
legitimate, non-discriminatory reason for the
employment decision.” Stratton, 132 F.3d at
879; see Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 142-43 (2000).
The purpose of this step is “to force the
defendant to give an explanation for its
conduct, in order to prevent employers from
simply remaining silent while the plaintiff
founders on the difficulty of proving
discriminatory intent.” Fisher v. Vassar
College, 114 F.3d 1332, 1335 (2d Cir. 1997)
(en banc), abrogated on other grounds by
Reeves, 530 U.S. 133.

As the Second Circuit observed in
James, “the way to tell whether a plaintiff’s
case is sufficient to sustain a verdict is to
analyze the particular evidence to determine
whether it reasonably supports an inference
of the facts plaintiff must prove –
particularly discrimination.” 233 F.3d at
157; see also Norton, 145 F.3d at 118 (“The
thick accretion of cases interpreting this
burden-shifting framework should not
obscure the simple principle that lies at the
core of anti-discrimination cases. In these, as
in most other cases, the plaintiff has the
ultimate burden of persuasion.”).

Third, if the employer articulates a
nondiscriminatory reason for its actions, the
presumption of discrimination is rebutted
and it “simply drops out of the picture.” St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
510-11 (1993) (citation omitted); see also
James v. N.Y. Racing Ass’n, 233 F.3d 149,
154 (2d Cir. 2000). The plaintiff must then
prove, by a preponderance of the evidence
and without the benefit of any presumptions,
that more likely than not the employer’s
proffered reason for its actions is merely a
pretext for unlawful discrimination. See
Brennan v. Metro. Opera Ass’n, 192 F.3d
310, 317 (2d Cir. 1999); Fields, 115 F.3d at
121; Connell v. Consol. Edison Co., 109 F.
Supp. 2d 202, 207-08 (S.D.N.Y. 2000).

b. Analysis
Plaintiff’s disparate treatment claims are
premised on plaintiff’s allegation that she
received unequal pay and no overtime pay
on the basis of her gender, race, and national
origin. “To establish a prima facie case of
disparate pay under Title VII, a plaintiff
must show: ‘(1) that he was a member of a
protected class; (2) that he was paid less
than similarly situated non-members of his
protected class; and (3) evidence of
discriminatory animus.’” Thomas v. iStar
Financial, Inc., 438 F. Supp. 2d 348, 367
(S.D.N.Y. 2006) (quoting Quarless v.
Bronx-Lebanon Hosp. Ctr., 228 F. Supp. 2d
377, 383 (S.D.N.Y. 2002), aff’d 75 F. App’x
846 (2d Cir. 2003)). As set forth below,
plaintiff fails to establish a prima facie case
of disparate pay or disparate overtime wages

To meet this burden, the plaintiff may
rely on evidence presented to establish her
prima facie case, as well as additional
evidence. See James, 233 F.3d at 154-57;
see also Norton v. Sam’s Club, 145 F.3d

17

based on gender, race, or national origin.16
Because plaintiff fails to establish a prima
facie case, the Court need not address the
second two steps of the McDonnell Douglas
test.

Plaintiff has failed to produce evidence
that she was paid less than similarly situated
non-Asian or non-Chinese employees. In
fact, plaintiff’s only comparator is her
husband, and he is Chinese and was
allegedly paid more than plaintiff. Plaintiff
has not produced evidence of the races or
national origins of any of the other
dishwashers. Plaintiff has also failed to
produce evidence showing that similarlysituated
non-Asian
or
non-Chinese
employees were paid overtime wages while
plaintiff was not. In fact, Bhardwaj states
that the DOL found, pursuant to its
investigation of Jasmine, that Jasmine had
underpaid employees of various races and
national origins. 18 (Bhardwaj Aff. ¶ 29.)

i. Plaintiff’s Gender Discrimination Claims
With respect to plaintiff’s gender
discrimination claim, in addition to
establishing the first two elements of the
prima facie case, which are generally the
same requirements as those under the EPA,
a “Title VII plaintiff must also produce
evidence of discriminatory animus in order
to make out a prima facie case of intentional
sex-based salary discrimination.” Klinefelter
v. LaHood, No. 09-CV-299-S, 2011 WL
5979022, at *4 (W.D.N.Y. Nov. 27, 2011)
(quoting Belfi v. Prendergast, 191 F.3d 129,
139 (2d Cir. 1999)). As stated supra,
plaintiff cannot show that she was paid less
than similarly situated male employees.
Additionally, plaintiff has not shown that
similarly situated male employees were paid
overtime wages while plaintiff was not.
Plaintiff has therefore not established a
prima facie case with respect to her gender
discrimination claims of disparate pay and
unpaid overtime. As such, plaintiff’s Title
VII and NYSHRL claims of disparate
treatment based on gender must be
dismissed.17

In addition, plaintiff has not produced
any evidence of discriminatory animus by
Jasmine towards Asian or Chinese
employees. There is no evidence of racial or
national origin-related comments made or
actions taken by Jasmine during the course
of plaintiff’s employment. There is simply
nothing in the record to demonstrate any
discriminatory animus with respect to
plaintiff’s claims of disparate pay and
disparate overtime pay.19 As such, plaintiff’s
Title VII and NYSHRL claims of disparate
treatment based on race and national origin
must be dismissed.
18

Though plaintiff states that a Hispanic co-worker
informed plaintiff that her wages were the lowest of
any Jasmine employee, (Zhengfang Aff. ¶ 16), this
statement is hearsay and need not be considered by
the Court. See Raskin v. Wyatt Co., 125 F.3d 55, 66
(2d Cir. 1997) (“[O]nly admissible evidence need be
considered by the trial court in ruling on a motion for
summary judgment.”).
19
Plaintiff states that there were six Chinese
employees working for Jasmine, four of whom were
“discharged
or
constructively
discharged.”
(Zhengfang Aff. ¶ 37.) Plaintiff’s statement relates,
however, to discharge, not to disparate pay or
disparate overtime pay, and, in any event, is wholly
conclusory
and
insufficient
to
establish
discriminatory animus on the part of defendants.

ii. Plaintiff’s Race and National Origin
Discrimination Claims
16

To the extent plaintiff argues in her opposition
papers that she was discharged due to discrimination
based on gender, race and/or national origin, plaintiff
did not assert those claims in her complaint. Any
attempt by plaintiff to raise those claims must be
made through a formal motion to amend her
complaint. However, the Court notes that it appears
as though those claims have been exhausted, and
would not survive a motion to amend.
17
In addition, there is nothing in the record to
demonstrate any discriminatory animus by Jasmine
towards women with respect to pay.

18

2. Plaintiff’s Hostile Work Environment
Claims

and quotation marks omitted)). A plaintiff
must show not only that the conduct in
question was “severe or pervasive enough to
create an objectively hostile or abusive work
environment,” but also that “the victim . . .
subjectively perceive[d] that environment to
be abusive.” Feingold v. New York, 366
F.3d 138, 150 (2d Cir. 2004) (internal
citations and quotation marks omitted); see
also Terry, 336 F.3d at 148. In addition, a
plaintiff seeking to establish a hostile work
environment claim must demonstrate that “a
specific basis exists for imputing the
objectionable conduct to the employer.”
Alfano v. Costello, 294 F.3d 365, 373 (2d
Cir. 2002).

Plaintiff alleges that her use of the
unisex bathroom and the events that
occurred during her use of the bathroom
constituted a hostile work environment. For
the reasons set forth below, defendants’
motion for summary judgment is granted
with respect to this claim.
a. Applicable Law
To establish a hostile work environment
under Title VII, a plaintiff must show that
her workplace was “permeated with
‘discriminatory intimidation, ridicule, and
insult . . . that is sufficiently severe or
pervasive to alter the conditions of the
victim’s employment and create an abusive
working environment.’” 20 Howley v. Town
of Stratford, 217 F.3d 141, 153 (2d Cir.
2000) (quoting Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993)). “Isolated instances
of harassment ordinarily do not rise to this
level.” Cruz v. Coach Stores, Inc., 202 F.3d
560, 570 (2d Cir. 2000); see also Williams v.
Cnty. of Westchester, 171 F.3d 98, 100-01
(2d Cir. 1999) (“[P]laintiff must show more
than a few isolated incidents of racial
enmity” to establish a claim of a racially
hostile work environment (internal citations

Relevant factors to consider in
determining whether an environment is
sufficiently hostile include “the frequency of
the discriminatory conduct; its severity;
whether it is physically threatening or
humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with
an employee’s work performance.” Terry,
336 F.3d at 148. The Second Circuit has
noted, however, that “[w]hile the standard
for establishing a hostile work environment
is high, . . . . [t]he environment need not be
‘unendurable’ or ‘intolerable.’” Id. (quoting
Whidbee v. Garzarelli Food Specialties,
Inc., 223 F.3d 62, 70 (2d Cir. 2000)).
Moreover, although a hostile work
environment
generally
consists
of
“continuous and concerted” conduct, “a
single act can create a hostile work
environment if it in fact works a
transformation of the plaintiff’s workplace.”
Feingold, 366 F.3d at 150 (quotation marks
omitted).

20

Plaintiff also brings a hostile work environment
claim under the NYSHRL. Hostile work environment
claims brought under the NYSHRL are analyzed
using the same framework as hostile work
environment claims brought under Title VII, and the
outcome under state law will be the same as the
outcome under Title VII. See, e.g., Collier v.
Boymelgreen Developers, No. 06-CV-5425 (SJ),
2007 WL 1452915, at *4 (E.D.N.Y. May 17, 2007)
(explaining, in a case where plaintiffs brought hostile
work environment claims under both Title VII and
the NYSHRL, that “[t]he Court’s consideration of
claims brought under NYSHRL . . . parallels the
analysis used for Title VII claims”).

b. Analysis
Having reviewed the record, the Court
concludes that defendants’ motion for
summary judgment with respect to
plaintiff’s hostile work environment claim

19

McDonnell Douglas, 411 U.S. at 802-05.21
See Terry, 336 F.3d at 141. Under this
framework, “[a] plaintiff must establish a
prima facie case; the employer must offer
through the introduction of admissible
evidence a legitimate non-discriminatory
reason for the [adverse action]; and the
plaintiff must then produce evidence and
carry the burden of persuasion that the
proffered reason is a pretext” for retaliation.
Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161,
169 (2d Cir. 2006).

must be granted. In this case, it is undisputed
that (1) there were four separate male and
female bathroom facilities in the Wang
Center, (2) a chef informed plaintiff that she
could use the other bathrooms, and (3)
plaintiff did in fact use a bathroom other
than the unisex bathroom. Given that
plaintiff had alternatives to using the unisex
bathroom, the issues plaintiff raises
regarding her experiences while using the
unisex bathroom are not sufficiently severe
or pervasive enough to support a hostile
work environment claim. Thus, plaintiff’s
hostile work environment claim based on
gender must be dismissed.

To establish a prima facie case of
retaliation, a plaintiff must show that (1) she
engaged in a protected activity; (2)
defendant was aware of that activity; (3)
plaintiff suffered an adverse employment
action; and (4) there was a causal connection
between the protected activity and the
adverse employment action. Distasio v.
Perkin Elmer Corp., 157 F.3d 55, 66 (2d
Cir. 1998); see also Terry, 336 F.3d at 141.
An employment action is considered adverse
if it is “harmful to the point that [it] could
well dissuade a reasonable worker from
making or supporting a charge of
discrimination.” Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 57 (2006). In
determining whether a plaintiff has
established a prima facie case to survive a
summary judgment motion, “the court’s role
. . . is to determine only whether proffered
admissible evidence would be sufficient to
permit a rational finder of fact to infer a
retaliatory motive.” Jute v. Hamilton
Sunstrand Corp., 420 F.3d 166, 173 (2d Cir.
2005).

3. Plaintiff’s Retaliation Claims
Plaintiff alleges that she was retaliated
against for engaging in protected activities
with respect to her gender and race.
Specifically, plaintiff claims that she was
subjected to a retaliatory hostile work
environment and not re-hired in the fall
2007 semester in retaliation for her protected
activities. As set forth below, defendants’
motion for summary judgment is denied
with respect to plaintiff’s retaliatory failure
to re-hire claim, and granted with respect to
plaintiff’s
retaliatory
hostile
work
environment claims.
a. Applicable Law
Under Title VII, it is unlawful “for an
employer to discriminate against any of his
employees . . . because [the employee] has
opposed any practice made an unlawful
employment practice by [Title VII].” 42
U.S.C. § 2000e-3(a).

21

The McDonnell Douglas burden shifting analysis
also applies to plaintiff’s retaliation claims brought
under the NYSHRL. See Van Zant, 80 F.3d at 714-15
(“New York courts require the same standard of
proof for claims brought under the Human Rights
Law as those brought under Title VII.” (citation and
quotations omitted)).

A claim of retaliation brought under
Title VII is analyzed under the three-step
burden-shifting analysis laid out in

20

“Title VII is violated when ‘a retaliatory
motive plays a part in adverse employment
actions toward an employee, whether or not
it was the sole cause.’” Terry, 336 F.3d at
140-41 (quoting Cosgrove v. Sears, Roebuck
& Co., 9 F.3d 1033, 1039 (2d Cir. 1993)).
Likewise, if the employer was at all
motivated by retaliatory animus, the law is
violated even if there were objectively valid
grounds for the adverse employment action.
Sumner v. U.S. Postal Serv., 899 F.2d 203,
209 (2d Cir. 1990).

(quoting Harris v. Forklift Sys., Inc., 510
U.S. 17, 21 (1993)), and “[i]solated
instances of harassment ordinarily do not
rise to this level,” Cruz v. Coach Stores,
Inc., 202 F.3d 560, 570 (2d Cir. 2000).

In addition to relying on discrete
employment actions to prove retaliation, a
plaintiff can also try to prove that a
retaliatory hostile work environment existed.
In order to establish a retaliatory hostile
work environment, a plaintiff must satisfy
the same standard that governs hostile work
environment claims. See, e.g., Rasco v. BT
Radianz, No. 05 Civ. 7147 (BSJ), 2009 WL
690986, at *15 (S.D.N.Y. Mar. 17, 2009)
(“To establish that a retaliatory hostile work
environment constitutes a materially adverse
change that might dissuade a reasonable
worker from reporting activity prohibited by
Title VII, a plaintiff must satisfy the same
standard that governs hostile workplace
claims by showing that the incidents of
harassment following complaints were
sufficiently continuous and concerted to
have altered the conditions of his
employment.”); Faison v. Leonard St., LLC,
No. 08 Civ. 2192 (PKC), 2009 WL 636724,
at *4 (S.D.N.Y. Mar. 9, 2009) (same);
McWhite v. New York City Hous. Auth., No.
CV 0991(NG)(LB), 2008 WL 1699446, at
*13 (E.D.N.Y. Apr. 10, 2008). Thus, a
plaintiff must demonstrate that his
workplace
is
“permeated
with
‘discriminatory intimidation, ridicule, and
insult . . . that is sufficiently severe or
pervasive to alter the conditions of the
victim’s employment and create an abusive
working environment,’” Howley v. Town of
Stratford, 217 F.3d 141, 153 (2d Cir. 2000)

In her complaint, plaintiff asserts that
she was discharged in response to her
protected activity under Title VII and the
NYSHRL. (Pl’s. Compl. ¶ 26, Mar. 27,
2009, ECF No. 1.) Plaintiff states that,

b. Analysis
i. Plaintiff’s Retaliatory Failure to Re-Hire
Claim
(1) Plaintiff’s Prima Facie Case

[b]elieving that the pay discrepancy
between [her] and [her] male
counterparts [was] based on [her]
gender, and that the disparity in pay
between [her] and employees of other
race[s] [was] motivated by [her] race and
national origin, from January 2007 on,
[she] complained on a number of
occasions to Mr. Williams and Mr.
Kapoor about the adverse treatment
[she] suffered in wages, in overtime pay,
and in accommodation.”
(Zhengfang Aff. ¶ 25.) Plaintiff also states
that, on May 18, 2007, she was terminated
like most employees at the end of the
season, but that she was told to return to
work in August 2007 for the fall semester.
(Id. ¶ 31.) Plaintiff claims that when she
reported to work on August 28, 2007, she
was told that she would not work at Jasmine
anymore.22 (Id. ¶ 35.) Plaintiff has therefore
22

Plaintiff also alleges that defendants’ failure to pay
her hospital bill, as well as defendants’ reduction of
her work hours following her hospitalization, were
actions taken against her in retaliation for her
complaints. (Zhengfang Aff. ¶¶ 29-30.) However,
plaintiff did not raise those claims in her complaint,

21

established the first three prongs of a prima
facie case of retaliation: plaintiff has shown
that (1) she engaged in protected activity, (2)
defendants were aware of her protected
activity, and (3) she was terminated from, or
not re-hired for, her job.23
Regarding the fourth element of
plaintiff’s prima facie case, a causal
connection between the protected activity
and the adverse employment action can be
shown either “(1) indirectly, by showing that
the protected activity was followed closely
by discriminatory treatment, or through
other circumstantial evidence such as
disparate treatment of fellow employees
who engaged in similar conduct; or (2)
directly, through evidence of retaliatory
animus directed against the plaintiff by the
defendant.” Gordon v. N.Y.C. Bd. of Educ.,
232 F.3d 111, 117 (2d Cir. 2000); see also
Cifra v. Gen. Elec. Co., 252 F.3d 205, 217
(2d Cir. 1991) (“[T]he causal connection
needed for proof of a retaliation claim ‘can
be established indirectly by showing that the
protected activity was closely followed in
time by the adverse action.’” (quoting Reed
v. A.W. Lawrence & Co., 95 F.3d 1170,
1178 (2d Cir. 1996))). Although the Second
Circuit “has not drawn a bright line to define
the outer limits beyond which a temporal

relationship is too attenuated to establish a
causal relationship between the exercise of a
federal constitutional right and an allegedly
retaliatory action[,]” Gorman-Bakos v.
Cornell Coop. Extension, 252 F.3d 545, 554
(2d Cir. 2001), “a passage of two months
between the protected activity and the
adverse employment action seems to be the
dividing line” for various district courts
within this Circuit, Cunningham v. Consol.
Edison Inc., No. CV-03-3522 (CPS), 2006
WL 842914, at *19 (E.D.N.Y. Mar. 28,
2006) (collecting cases). However, because
the Second Circuit has found periods well
beyond two months sufficient to suggest a
causal
relationship
under
certain
circumstances, courts must carefully
consider the time lapse in light of the entire
record. See, e.g., Grant v. Bethlehem Steel
Corp., 622 F.2d 43, 45-46 (2d Cir. 1980)
(holding that eight-month gap between
EEOC complaint and retaliatory action
suggested a causal relationship); see also
Richardson v. N.Y. State Dep’t of Corr.
Serv., 180 F.3d 426, 446-47 (2d Cir. 1999)
(holding that abusive acts within one month
of receipt of deposition notices may be
retaliation for initiation of lawsuit more than
one year earlier), abrogated on other
grounds by Burlington N. & Santa Fe Ry.
Co., 548 U.S. 53.

and they cannot be raised for the first time now. In
any event, based on the record before the Court, the
reduction of hours would have resulted in plaintiff
making more money per hour.
23
The Court has reviewed the letters submitted to
defendants by plaintiff’s brother, Jerome, on
plaintiff’s behalf, and concludes that the letters do not
constitute protected activity under Title VII or the
NYSHRL. In one letter, plaintiff’s brother complains
about defendants’ failure to pay plaintiff minimum
wage and informs defendants that he will forward
them plaintiff’s hospital bill. (Defs.’ Ex. E, Apr. 9,
2007 Letter from Jerome Liang to Café Spice.) In the
second letter, plaintiff’s brother demands payment for
plaintiff’s hospital bill. (Defs.’ Ex. F, June 7, 2007
Letter from Jerome Liang to Café Spice, July 13,
2010, ECF No. 18-2.)

Here, plaintiff alleges that, from January
2007 on, she complained to her supervisors
about the disparity in pay she experienced
due to her race, national origin, and gender.
(Zhengfang Aff. ¶ 25.) Plaintiff highlights
the fact that her brother, Jerome, complained
to defendants on her behalf, by letters dated
April 9, 2007 and June 7, 2007, about
defendants’ failure to pay plaintiff minimum
wage and overtime pay, and about
defendants’ failure to pay plaintiff’s hospital
bills. (Id. ¶¶ 29, 32.) Defendants argue that
there is no causal connection between
plaintiff’s alleged protected activity and
plaintiff’s termination because the failure to
22

marks omitted)). Therefore, the Court finds
that plaintiff has established a prima facie
case of retaliation.

re-hire plaintiff occurred in September 2007,
approximately five months after Jerome’s
first complaint letter was written. (Fairlie
Reply Aff. ¶ 32.)

(2) Defendants’ Proffered Reason for the
Termination

As an initial matter, plaintiff alleges that
she lodged complaints beginning in January
2007, and that she was informed that she
would not be re-hired in August 2007.
(Zhengfang Aff. ¶¶ 25, 35.) As the Second
Circuit has explained, the time frame to
establish a causal connection between
protected activity and an alleged retaliatory
act is not a bright line rule if there is a
reasonable explanation in the record for the
time gap. Here, because plaintiff was hired
on a semester-by-semester basis, drawing all
reasonable inferences in plaintiff’s favor,
defendants’ discharge and failure to re-hire
plaintiff is sufficiently close to establish an
inference of retaliation. See Martin v. State
Univ. of N.Y., 704 F. Supp. 2d 202, 230
(E.D.N.Y. 2010) (finding that a three-month
gap was “not too temporally remote for a
reasonable jury to infer causation” where,
“[d]ue to the timing of the annual cycle for
faculty promotions, [defendant’s] nonrecommendation in August represented her
very first opportunity to weigh in on
[plaintiff’s] application for promotion”);
Barnabas v. Bd. of Trustees of the Univ. of
D.C., 686 F. Supp. 2d 95, 105-06 (D.D.C.
2010) (“Generally, an approximately sevenmonth delay between protected activity and
an adverse employment action does not
suggest any causal connection between the
two. But especially where a defendant
retaliates at the first opportunity that is
presented, a plaintiff will not be foreclosed
from making out a prima facie case despite a
substantial gap in time. . . . A reasonable
jury could infer that [a] sudden change in a
previously-consistent schedule, issued at the
first opportunity the [defendant] had to
reduce [plaintiff’s] teaching load after she
filed an EEOC complaint, was the result of
retaliation.” (citations and internal quotation

Defendants argue that plaintiff was
terminated and not re-hired for a legitimate,
non-discriminatory reason – namely, that
plaintiff was terminated along with all
employees at the end of the spring 2007
semester consistent with past practices, and
that plaintiff was not re-hired for the fall
2007 semester due to projected budget and
insufficient sales estimates for the fall.
(Defs.’ Reply at 8, Sept. 22, 2010, ECF No.
26.) However, plaintiff states that the
dishwasher position that she previously held
at Jasmine was not eliminated, that Jasmine
looked for a new dishwasher, and that
Jasmine hired a new employee to fill
plaintiff’s position. (Zhengfang Aff. ¶ 36.)
Thus, there is a disputed issue of fact as to
whether defendants’ proffered reasons for
terminating and not re-hiring plaintiff are a
pretext for retaliation. As such, defendants’
motion for summary judgment as to
plaintiff’s retaliation claim regarding
defendants’ failure to re-hire her is denied.
ii. Plaintiff’s Retaliatory Hostile Work
Environment Claim
Plaintiff states that, after she complained
to her supervisors in January 2007, she was
placed under “close, constant surveillance,”
and that her supervisors “increasingly found
faults with [her] and made unwarranted
criticism of [her] work in front of other
employees.” (Zhengfang Aff. ¶ 26.)
However, at her deposition, plaintiff
testified that she received no criticism of her
work, and that her supervisors were “very
satisfied with [her] work.” (Zhengfang Dep.
at 31.) Where plaintiff’s sworn deposition
testimony clearly states that she received no

23

character, and so extreme in degree, as to go
beyond all possible bounds of decency, and
to be regarded as atrocious, and utterly
intolerable in a civilized society.’” Martin v.
Citibank, N.A., 762 F.2d 212, 220 (2d Cir.
1985) (quoting Fischer v. Maloney, 373
N.E.2d 1215, 1217 (N.Y. 1978)).

criticism of her work, the fact that plaintiff’s
later filed affidavit states the contrary does
not create a disputed issue of fact as to this
aspect of her retaliatory hostile work
environment claim. See Bickerstaff v. Vassar
Coll., 196 F.3d 435, 455 (2d Cir. 1999) (“It
is beyond cavil that a party may not create
an issue of fact by submitting an affidavit in
opposition to a summary judgment motion
that . . . contradicts the affiant’s previous
deposition testimony.” (internal quotation
marks omitted)). In addition, the other
conduct by defendants that plaintiff cites in
support of her retaliatory hostile work
environment claim does not rise to the level
of
a
workplace
“permeated
with
‘discriminatory intimidation, ridicule, and
insult . . . that is sufficiently severe or
pervasive to alter the conditions of the
victim’s employment and create an abusive
working environment.’” Howley, 217 F.3d at
153 (quoting Harris, 510 U.S. at 21). Thus,
there is nothing in the record to support
plaintiff’s
retaliatory
hostile
work
environment claim. As such, defendants’
motion for summary judgment with respect
to plaintiff’s hostile work environment claim
is granted.

In her complaint, plaintiff asserts that
defendants intentionally inflicted emotional
distress upon her by retaliating against her
after she complained to her supervisors
about her pay. (Pl’s. Compl. ¶¶ 14-15.) The
Court, taking the allegations in plaintiff’s
complaint and the allegations in plaintiff’s
affidavit together, construes plaintiff’s
argument to be that defendants criticized
her, 24 placed her under surveillance, and
terminated her in retaliation for her
complaints. 25 Even construing the facts
surrounding this alleged retaliatory conduct
in plaintiff’s favor, the Court concludes that
plaintiff has failed to sufficiently assert a
claim for intentional infliction of emotional
distress. Thus, based on the record before
the Court, plaintiff’s claim of intentional
infliction of emotional distress must be
dismissed. 26 See, e.g., Spence v. Md. Cas.
Co., 995 F.2d 1147, 1158 (2d Cir. 1993)
(“Defendants’ criticisms of [plaintiff’s] job
performance and their conditional threats of

D. Plaintiff’s Intentional Infliction of
Emotional Distress Claim
In order to assert a valid claim for
intentional infliction of emotional distress
under New York law, a plaintiff must
demonstrate “(1) extreme and outrageous
conduct, (2) intent to cause severe emotional
distress, (3) a causal connection between the
conduct and the injury, and (4) severe
emotional distress.” Bender v. City of New
York, 78 F.3d 787, 790 (2d Cir. 1996) (citing
Howell v. N .Y. Post Co., 612 N.E.2d 699,
702 (N.Y. 1993)). New York “sets a high
threshold for conduct that is ‘extreme and
outrageous’ enough to constitute intentional
infliction of emotional distress.” Id. The
conduct alleged must be “‘so outrageous in

24

As noted supra, plaintiff’s allegation in her
affidavit that her work was criticized is belied by her
deposition testimony and does not create a disputed
issue of fact on this point.
25
With respect to plaintiff’s claim that defendants
failed to pay her hospital bill in retaliation, such
conduct does not rise to the level required for a claim
of intentional infliction of emotional distress.
26
Though not raised by defendants, the Court notes
that plaintiff’s intentional infliction of emotional
distress claim is also barred by the one-year statute of
limitations for such a claim. See Sharabura v. Taylor,
No. 03 CV 1866 (JG), 2003 WL 22170601, at *3
(E.D.N.Y. Sept. 16, 2003) (“The statute of limitations
for a claim of intentional infliction of emotional
distress is one year.” (citing N.Y. C.P.L.R. § 215
(2003))).

24

between two meals,” (Zhengfang Aff. ¶ 27),
such conduct does not meet New York’s
high standard for a claim of intentional
infliction of emotional distress. Therefore,
the Court grants defendants’ motion for
summary judgment on this claim.27

termination . . . fall far short of the ‘extreme’
and ‘outrageous’ conduct that is actionable
as an intentional infliction of emotional
distress.”); Martin, 762 F.2d at 220 (holding
that allegations of being polygraphed on the
basis of race is not outrageous per se
“despite the unacceptability of racial
discrimination in civilized society”);
Sharabura, 2003 WL 22170601, at *3
(holding that plaintiff’s allegations that her
“employer criticized her unfairly, gave her
undesirable assignments and ultimately
terminated her” failed to meet “New York’s
high threshold for conduct that is actionable
under the tort of intentional infliction of
emotional distress”); Lydeatte v. Bronx
Overall Econ. Devel. Corp., No. 00CIV5433
(GBD), 2001 WL 180055, at *2 (S.D.N.Y.
Feb. 22, 2001) (“Plaintiff alleges that
defendant was biased against her based on
her race, that she was harassed and treated
poorly on the job, and that she was denied
the same benefits, opportunities and
conditions of employment as her Hispanic
co-workers until she was ultimately
wrongfully
terminated.
Additionally,
plaintiff alleges that defendant retaliated
against her . . . . While the alleged behavior
of which plaintiff complains may support an
employment discrimination lawsuit, it is not
the type of behavior that merits recovery for
intentional infliction of emotional distress as
established by the New York Courts.”);
Ruggiero v. Contemporary Shells, Inc., 160
A.D.2d 986, 987 (N.Y. App. Div. 1990)
(dismissing IIED claim where the defendant
allegedly
“harassed
and
ultimately
discharged the plaintiff due to her
pregnancy”).

E. Plaintiff’s Negligent Infliction of
Emotional Distress Claim
A claim of negligent infliction of
emotional distress “may only proceed where
the allegations of conduct are ‘so extreme in
degree and outrageous in character as to go
beyond all possible bounds of decency, so as
to be regarded as atrocious and utterly
intolerable in a civilized community.’”
Wilson v. City of N.Y., 294 A.D.2d 290, 295
(N.Y. App. Div. 2002) (quoting Wolkstein v.
Morgenstern, 275 A.D.2d 635, 636-37 (N.Y.
App. Div. 2000)). Moreover, “‘[i]n the
absence
of
contemporaneous
or
27

The Court notes that the fact that plaintiff did not
oppose defendants’ motion for summary judgment on
her claim of intentional infliction of emotional
distress is also adequate grounds for granting
summary judgment in defendants’ favor on this
claim. See Bellegar de Dussuau v. Blockbuster, Inc.,
No. 03 Civ. 6614 (WHP), 2006 WL 465374, at *7
(S.D.N.Y. Feb. 28, 2006) (granting summary
judgment in favor of defendants on plaintiff’s
pregnancy discrimination claim because plaintiff did
not oppose defendant’s motion for summary
judgment on the claim); Taylor v. City of New York,
269 F. Supp. 2d 68, 75 (E.D.N.Y. 2003) (“Federal
courts may deem a claim abandoned when a party
moves for summary judgment on one ground and the
party opposing summary judgment fails to address
the argument in any way.”); Arias v. NASDAQ/AMEX
Mkt. Grp., No. 00 Civ. 9827(MBM), 2003 WL
354978, at *13 (S.D.N.Y. Feb. 18, 2003) (dismissing
two of plaintiff’s claims as “abandoned” where
plaintiff’s opposition papers “neither refute[d] nor
even mention[ed]” defendant’s argument for
summary judgment on those claims); see also Local
Civ. R. 7.1 (“[A]ll oppositions thereto shall be
supported by a memorandum of law, setting forth the
points and authorities relied upon . . . in opposition to
the motion . . . . Willful failure to comply with this
rule may be deemed sufficient cause for the . . .
granting of a motion by default.”).

To the extent plaintiff asserts that the
confrontation in March 2007 that led to her
hospitalization
constituted
intentional
infliction of emotional distress, even
assuming
that
plaintiff
was
“reprimanded publicly . . . for not finishing
work in time and taking too long time break
25

consequential physical injury, courts have
been reluctant to permit recovery for
negligently caused psychological trauma,
with ensuing emotional harm alone.’”
Armstrong v. Brookdale Univ. Hosp. & Med.
Ctr., 425 F.3d 126, 137 (2d Cir. 2005)
(quoting Johnson v. State, 37 N.Y.2d 378,
381 (1975)).

Having reviewed plaintiff’s submissions and
defendants’
response
to
plaintiff’s
submissions, the Court finds that plaintiff’s
claims are without merit.
In considering a motion for sanctions
under Rule 11, this Court applies an
“objective standard of reasonableness.” See
MacDraw, Inc. v. CIT Grp. Equip. Fin., Inc.,
73 F.3d 1253, 1257 (2d Cir. 1996) (“In
evaluating whether the signer of a filing has
violated Rule 11, the district court applies an
objective standard of reasonableness,
examining whether, under the circumstances
of a given case, the signed has conducted a
‘reasonable inquiry’ into the basis of a
filing.”). “[R]ule 11 is violated only when it
is patently clear that a claim has absolutely
no chance of success.” Oliveri v. Thompson,
803 F.2d 1265, 1275 (2d Cir. 1986) (internal
quotation marks omitted). Additionally,
“[w]hen divining the point at which an
argument turns from merely losing to losing
and sanctionable, . . . courts [must] resolve
all doubts in favor of the signer” of the
pleading. Rodick v. City of Schenetady, 1
F.3d 1341, 1350 (2d Cir. 1993) (emphasis in
original) (internal quotation marks omitted).

Plaintiff
alleges
that
defendants
negligently inflicted emotional distress upon
her “in accommodation,” presumably a
reference to defendants’ unisex bathroom.
(Pl’s. Compl. ¶ 32.) As noted supra, none of
the alleged conduct by defendants rises to
the level required for a claim of emotional
distress. More specifically, the fact that
defendants maintained a unisex bathroom
with sexual drawings on the walls does not
rise to the level of outrageous conduct
required for a claim of emotional distress.
Therefore, summary judgment is granted
with respect to plaintiff’s negligent infliction
of emotional distress.28
IV. PLAINTIFF’S MOTION FOR
SANCTIONS
Plaintiff moves for sanctions pursuant to
Rule 11 of the Federal Rules of Civil
Procedure on the grounds that: (1)
defendants’ reply motion and associated
filings misrepresented plaintiff’s deposition
testimony and plaintiff’s opposition papers;
(2) defendants improperly submitted an
affidavit without identifying the affiant as a
witness, and two documents without
providing information about those materials;
(3) defendants manipulated or forged
documents; (4) defendants made frivolous
arguments without any basis in law or fact;
and (5) defendants’ reply was filed in bad
faith. (Pl.’s Mot. for Sanctions at 1-2.)

Rule 37 of the Federal Rules of Civil
Procedure provides that “[i]f a party . . . fails
to obey an order to provide or permit
discovery, . . . the court where the action is
pending may issue further just orders,”
including “striking [the disobeying party's]
pleadings in whole or in part.” Fed. R. Civ.
P. 37(b)(2)(A)(iii). Moreover, “[i]nstead of
or in addition to [the other sanctions
permitted], the court must order the
disobedient party . . . to pay the reasonable
expenses, including attorney's fees, caused
by the failure [to comply], unless the failure
was substantially justified or other
circumstances make an award of expenses
unjust.” Id. 37(b)(2)(C). Although Rule 37
does not set forth factors that courts should
consider in determining whether to sanction

28

Alternatively, as stated supra note 27, summary
judgment must be granted on the ground that plaintiff
did not oppose defendants’ motion with respect to
this claim.

26

Bhardwaj’s affidavit is inadmissible because
Bhardwaj was not listed as a potential
witness in defendants’ Rule 26(a) disclosure,
as the defendants have noted, Bhardwaj’s
affidavit concerns the business operations of
Jasmine, and not specific interactions with
plaintiff. (See Fairlie Reply Aff. ¶ 13.) In
addition, defendants note that Bhardwaj’s
identity was known to plaintiff through
defendants’ production of Jasmine’s letter in
response to plaintiff’s NYSDHR complaint,
which was signed by Bhardwaj. (Id. ¶ 19.)
Finally, plaintiff had a full opportunity to
respond to Bhardwaj’s contentions and
could have also sought to take Bhardwaj’s
deposition. Having considered all of these
relevant factors, the Court, in its discretion,
declines to strike the Bhardwaj affidavit.
Moreover, the Court, having considered
each of plaintiff’s arguments, finds that all
of plaintiff’s other purported grounds for
sanctions are similarly without merit, and
plaintiff’s motion for sanctions is thereby
denied in its entirety.

a noncompliant party, the Rule does instruct
“that the sanctions must be ‘just,’ Fed. R.
Civ. P. 37(b)(2)(A), meaning that ‘the
severity of the sanction must be
commensurate with the non-compliance.’”
Linde v. Arab Bank, PLC, 269 F.R.D. 186,
195
(E.D.N.Y.
2010)
(quoting
Shcherbakovskiy v. Da Capo Al Fine, Ltd.,
490 F.3d 130, 140 (2d Cir. 2007)).
In determining whether to “exercise [] its
broad discretion to order sanctions under
Rule 37,” a court may consider a number of
factors, “including: (1) the willfulness of the
non-compliant party or the reason for the
noncompliance; (2) the efficacy of lesser
sanctions; (3) the duration of the period of
noncompliance, and (4) whether the noncompliant party had been warned of the
consequences of his non-compliance.”
Nieves v. City of New York, 208 F.R.D. 531,
535 (S.D.N.Y. 2002). “[D]ismissal with
prejudice is a harsh remedy to be used only
in extreme situations and then only when a
court finds willfulness, bad faith, or any
fault on the part of the [noncompliant
party].” Bobal v. Rensselaer Polytechnic
Inst., 916 F.2d 759, 764 (2d Cir. 1990)
(internal citation and quotation marks
omitted). Noncompliance with a discovery
order is considered willful “when the court’s
orders have been clear, when the party has
understood them, and when the party's noncompliance is not due to factors beyond the
party’s control.” Davidson v. Dean, 204
F.R.D. 251, 255 (S.D.N.Y. 2001) (citation
omitted). Whether a party acted willfully, in
bad faith, or with fault are questions of fact
for the court. Agiwal v. Mid Island Mortg.
Corp., 555 F.3d 298, 302 (2d Cir. 2009).
As a preliminary matter, since plaintiff’s
motion for sanctions was filed, this Court
has ruled “that defendants have complied
with their discovery obligations” in all
respects. (Order, Aug. 12, 2011, ECF No.
65.) To the extent plaintiff alleges that
27

V. CONCLUSION
For the foregoing reasons, the Court
grants defendants’ motion for summary
judgment with respect to all of plaintiff’s
claims, except for plaintiff’s FLSA claim for
unpaid wages and plaintiff’s retaliation
claim with respect to defendants’ failure to
re-hire her in violation of Title VII and the
NYSHRL. Plaintiff’s motion for sanctions is
denied in its entirety.

SO ORDERED.

_______________________
JOSEPH F. BIANCO
United States District Judge
Dated: November 29, 2012
Central Islip, NY

***
Plaintiff is proceeding pro se. The attorney
for defendants is Darren H. Fairlie, Esq.,
Rider, Weiner & Frankel, P.C., 655 Little
Britain Road, New Windsor, NY 12553.

28