Li v. Oliver King Enterprises, Inc. et al

Filing 21

MEMORANDUM OPINION AND ORDER re: 11 MOTION to Dismiss Plaintiff's Complaint. filed by Oscar King, Oliver King Enterprises, Inc., Jian Guo Wang. For the foregoing reasons, Defendants' Motion to Dismiss Plaintiff's FLSA claim is GRANTED with prejudice; Defendants' Motion to Dismiss Plaintiff's NYLL claim is GRANTED without prejudice; and Plaintiff's request to amend his Complaint is DENIED. The Clerk of Court is respectfully directed to close all open motions and terminate the case. SO ORDERED. (As further set forth within this Order.) (Signed by Judge Valerie E. Caproni on 8/4/2015) (ajs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------- X
JIAN ZHONG LI,
:
:
:
Plaintiff,
:
:
-against:
:
OLIVER KING ENTERPRISES, INC. d/b/a
EMPIRE SZECHUAN VILLAGE, OSCAR KING :
a/k/a OSCAR I-HSIKING and JIAN GUO WANG, :
:
Defendants. :
-------------------------------------------------------------- X

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 8/04/2015

14-CV-9293 (VEC)
MEMORANDUM
OPINION AND ORDER

VALERIE CAPRONI, United States District Judge:
Plaintiff Jian Zhong Li (“Plaintiff”) brings this action against Defendants Oliver King
Enterprises, Inc. d/b/a Empire Szechuan Village (“Empire Szechuan”), Oscar King a/k/a Oscar IHsiking (“King”), and Jian Guo Wang (“Wang”) (collectively, the “Defendants”), alleging
violations of the anti-retaliation provisions of the Fair Labor Standards Act, 29 U.S.C. §
215(a)(3) (“FLSA”) and the New York Labor Law § 215 (“NYLL”). Defendants move to
dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Plaintiff opposes Defendants’ Motion to Dismiss and requests leave to amend his Complaint.
For the following reasons, Defendants’ Motion to Dismiss is GRANTED, and Plaintiff’s request
to amend the Complaint is DENIED.
BACKGROUND1
Defendant King is the Chief Executive Officer of Empire Szechuan, a Chinese restaurant
in lower Manhattan. Compl. ¶¶ 8-9. Plaintiff Li worked as a sushi chef at Empire Szechuan
from April 27, 2005 until September 30, 2013. Id. ¶ 12-13. Defendant Wang worked for King

1

All facts are taken from the Complaint except as otherwise indicated.

and Empire Szechuan as a deliveryman. Id. ¶ 11. On October 18, 2013, Plaintiff sued King and
Empire Szechuan alleging violations of the FLSA and NYLL. Id. ¶ 14; see also Complaint, Li v.
Oliver King Enterprises, Inc. et al., 13-CV-7372 (VEC) (S.D.N.Y. Oct. 18, 2013), Dkt. 1. More
than a year later, on November 11, 2014, Plaintiff received six or seven calls to his cellphone,
which he did not answer, and a series of text messages from Wang, to which he did not respond.
Compl. ¶¶ 17-21. Wang’s text messages stated that King had asked him to contact Plaintiff
about settling the FLSA lawsuit. Defs.’s Mem., Ex. A.2 Wang asked Li to make an offer, but
also stated: “If you do not want to settle privately, you can tell me. Just meet me once, I promise
you not interfering into this matter anymore.” Id. A second text message pleaded that “he
[Oscar King] wants me to intercede for him, and it is hard for me to say no to him. You just
meet me once, give me a figure, or tell me you do not want to settle privately. So I can pass just
this message to him.” Id. Wang’s second text also indicated that he would visit Plaintiff at his
home if Plaintiff did not answer his calls or text messages. Id. Plaintiff did not respond to
Wang’s communications, even to say that he did not wish to settle the FLSA lawsuit. Compl. ¶¶
17-21. At 5:30 p.m. that day, while Plaintiff was away from home, someone appeared outside of
Plaintiff’s home, took pictures, and talked with Plaintiff’s neighbors. Id. ¶¶ 25-26. There is no
allegation that the person knocked on the door or rang the bell or otherwise tried to make contact
with the occupants of Plaintiff’s home. Nevertheless, the visit of the unknown person, who
might have been Wang, frightened Plaintiff’s wife and daughter, who were home at the time. Id.
¶ 27.

2

Although the Complaint stated that it attached as Exhibit A the offending text messages and translations of
them, Compl. ¶ 20, there was no Exhibit A to the Complaint. The Defendants attached copies of two text messages
and translations of those texts as exhibits to their Memorandum in Support of the Motion to Dismiss. In his
proposed Amended Complaint, ¶¶ 24-28, Plaintiff cited the same texts and translations from the Motion for a
Temporary Restraining Order that he filed on the docket in his related FLSA case. See Li v. Oliver King
Enterprises, 13-CV-7372 (VEC) (S.D.N.Y. Nov. 12, 2013), Dkt. 33.1.

2

On November 21, 2014, Plaintiff filed the instant Complaint alleging that Wang’s
unsolicited communications and visit to Plaintiff’s home constitute harassment amounting to
unlawful retaliation under the FLSA and NYLL.3 Id. ¶ 1. Defendants moved to dismiss the
Complaint on January 30, 2015. Plaintiff opposed Defendants’ Motion to Dismiss but also
sought leave to file an Amended Complaint (“Am. Compl.”).4
DISCUSSION
I.

Plaintiff Fails to State a Plausible Claim on Which Relief Could Be Granted
A. Standard of Review
“To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must allege

sufficient facts, taken as true, to state a plausible claim for relief.” Johnson v. Priceline.com,
Inc., 711 F.3d 217, 275 (2d Cir. 2013) (citing Bell Atl. Corp. v. Twombly, 500 U.S. 544, 555-56
(2007)). A plaintiff “must provide grounds upon which his claim rests through factual
allegations sufficient ‘to raise a right to relief above the speculative level.’” ATSI Commc’ns Inc.
v. The Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 555).
Courts must “accept all allegations in the complaint as true and draw all inferences in the nonmoving party’s favor.” L.C. v. LeFrak Org., Inc., 987 F. Supp. 2d 391, 398 (S.D.N.Y. 2013)
(quoting LaFaro v. New York Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009)).
Furthermore, courts are generally confined to “the four corners of the complaint” and must “look
only to the allegations contained therein.” Perez v. Westchester Foreign Autos, Inc., No. 11-CV-

Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion to Dismiss erroneously states that
Plaintiff filed his Complaint on December 31, 2014. Dkt. 16 at 2.

3

The Court’s Individual Rules provide that “[i]f a motion to dismiss is filed, the Plaintiff . . . has a right to
amend its pleadings within twenty-one days . . . . If the Plaintiff . . . elects not to amend its pleading, the motion will
proceed in the normal course . . . . Filing a response to [a motion to dismiss] will be treated as an election not to
amend the pleading.” Individual Rule 3.E. It is not clear why Plaintiff thought it was appropriate to both respond to
the motion to dismiss and seek leave to file an Amended Complaint.

4

3

6091(ER), 2013 WL 749497, at *5 (S.D.N.Y. Feb. 28, 2013) (citing Roth v. Jennings, 489 F.3d
499, 509 (2d Cir. 2007)).
B. Requirements for a Retaliation Claim Under the FLSA5
The FLSA anti-retaliation provision makes it unlawful for “any person” “to discharge or
in any other manner discriminate against any employee because such employee has filed any
complaint . . . under . . . this chapter, or has testified or is about to testify in any such proceeding
. . . .” 29 U.S.C. § 215(a)(3). In order to establish a prima facie case of retaliation, the plaintiff
must show “(1) participation in a protected activity known to the defendant, like the filing of a[n]
FLSA lawsuit; (2) an employment action disadvantaging the plaintiff; and (3) a causal
connection between the protected activity and the adverse employment action.” Mullins v. City
of New York, 626 F.3d 47, 53 (2d Cir. 2010) (citing the burden-shifting test of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973)). “[T]o allege a claim under the FLSA, a plaintiff
must plead facts showing a prima facie case of retaliation.” Wang v. Palmisano, 51 F. Supp. 3d
521, 538 (S.D.N.Y. 2014) (citations and internal quotation marks omitted). At the pleading
stage, however, “the Court does not specifically apply the McDonnell Douglas burden-shifting
test to determine whether Plaintiff has stated a retaliation claim, but rather generally assesses the
plausibility of Plaintiff's claim based on the facts alleged in the Complaint.” Brundidge v. Xerox
Corp., No. 12–CV–6157, 2014 WL 1323020(FPG), at *3 (W.D.N.Y. Mar. 31, 2014).

5

Both Plaintiff and Defendants have argued that the requirements of a prima facie case under the FLSA and
the NYLL are substantially the same. Pl.’s Opp. at 3; Defs.’ Mem. at 4. The language of NYLL § 215 (“discharge,
threaten, penalize, or in any other manner discriminate or retaliate against any employee”), is, however, somewhat
broader than that of the corresponding FLSA anti-retaliation provision, 29 U.S.C. § 215(a)(3) (“discharge or in any
other manner discriminate against any employee”). Because dismissing the claim that is brought under FLSA will
remove the basis for the Court’s subject matter jurisdiction and the Court will not exercise its discretion to retain
jurisdiction of the supplemental NYLL claim, it is not necessary to determine whether the standards for a prima
facie case of retaliation are substantively identical under the FLSA and NYLL.

4

In this case, Plaintiff has adequately alleged that he engaged in protected activity by
filing an FLSA lawsuit and that his protected activity caused the “retaliation” about which he
complains.6 The second prong is, however, more problematic. Considering all the facts alleged
in the Complaint and in the proposed Amended Complaint in the light most favorable to the
Plaintiff, he has not alleged facts that rise to the level of “an employment action disadvantaging
the [P]laintiff.” Mullins, 626 F.3d at 53.
Most cases involving the anti-retaliation provisions of the FLSA involve adverse
employment actions that occur while the plaintiff is still employed by the defendant. See, e.g.,
Mullins, 626 F.3d at 54 (police officers disadvantaged by internal affairs investigations after
participating in FLSA case); see also Defs.’ Mem. at 4-5. In the context of Title VII’s antiretaliation provision, the Supreme Court has held that the term “employees” also includes former
employees, as this interpretation serves “a primary purpose of anti-retaliation provisions:
Maintaining unfettered access to statutory remedial mechanisms.” Robinson v. Shell Oil Co.,
519 U.S. 337, 346 (1997) (citation omitted).7 More recently, the Supreme Court has held that the
scope of the Title VII anti-retaliation provision “extends beyond workplace-related or
employment-related retaliatory acts and harm.” Burlington N. & Santa Fe Ry. v. White, 548 U.S.
53, 67 (2006).
Robinson and Burlington Northern are relevant to this case because judicial
interpretations of Title VII’s anti-retaliation provision have influenced the way courts in this

Plaintiff argues that causation is adequately alleged because Wang’s communications explicitly
demonstrate a causal connection to Plaintiff’s filing of the FLSA lawsuit, a protected activity. Pl.’s Opp. at 4.
Because Wang would not have sent the messages or traveled to Plaintiff’s home but for Plaintiff’s lawsuit, a causal
connection exists.

6

7
Even before Robinson, the Second Circuit had allowed former employees to bring retaliation claims under
Title VII when the alleged retaliation involved harm to their future employment prospects. See, e.g., Pantchenko v.
C. B. Dolge Co., Inc., 581 F.2d 1052, 1055 (2d Cir. 1978) (plaintiff’s former employer denied letter of
recommendation and made disparaging comments about plaintiff to other employers).

5

Circuit analyze FLSA retaliation claims. Although many courts have continued to use the phrase
“materially adverse employment action” in describing the requirements for a prima facie case of
retaliation under the FLSA, Mullins, 626 F.3d at 53 (emphasis added), district courts in this
Circuit have applied the Supreme Court’s reasoning in Robinson to FLSA retaliation claims,
finding that in some circumstances plaintiffs can bring retaliation claims against former
employers for post-employment conduct. See, e.g., Torres v. Gristede’s Operating Corp., 628 F.
Supp. 2d 447, 473 (S.D.N.Y. 2008); Flores v. Mamma Lombardis of Holbrook, Inc., 942 F.
Supp. 2d 274, 279 (E.D.N.Y. 2013). Additionally, the Second Circuit has applied the “might
have dissuaded” standard from Burlington Northern to FLSA retaliation claims. Mullins, 626
F.3d at 53.
For purposes of this motion, the Court assumes that the FLSA anti-retaliation provision
extends to an action taken by a prior employer if that action would have the effect of dissuading
a reasonable employee from pursuing FLSA relief. 8 The scope of post-employment conduct that
does not have a direct connection to the former employee’s employment prospects that has been
recognized in this Circuit as potential unlawful retaliation under FLSA is, nonetheless, relatively
narrow. Courts have held that instituting bad faith or groundless counterclaims or instituting bad
faith litigation against the employee constitutes actionable retaliation. Gristede’s, 628 F. Supp.
2d at 473; see also Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 740 (1983); Darveau
v. Detecon, Inc., 515 F.3d 334, 343 (4th Cir. 2008); Flores, 942 F. Supp. 2d at 279; Jacques v.
DiMarzio, 200 F. Supp. 2d 151, 162–63 (E.D.N.Y. 2002). “[B]aseless claims,” regardless of
their effect on a plaintiff’s employment, “are actionable retaliation precisely because of their in

Both Plaintiff and Defendants have assumed that a defendant’s conduct does not need to be employmentrelated to constitute retaliation under the FLSA. Defs.’ Mem. at 4; Pl.’s Opp. at 3 (citing Gristede’s, 628 F. Supp.
2d at 472 and Burlington N., 548 U.S. at 68).
8

6

terrorem effect.” Gristede’s, 628 F. Supp. 2d at 472-73. Similarly, in Centeno-Bernuy v. Perry,
302 F. Supp. 2d 128, 136 (W.D.N.Y. 2003), the plaintiffs claimed that defendant retaliated
against them for filing an FLSA action by reporting them to the Immigration and Naturalization
Service as terrorists. Because that sort of a claim to a government agency has potentially
significant adverse consequences, it would discourage a reasonable person from acting to protect
their FLSA rights and was held to be sufficient to state a claim for FLSA retaliation. Id. at 137.
Plaintiff has not cited a single post-employment retaliation case from this Circuit or
elsewhere that did not involve either employment-related harm or a threatened legal claim
against the plaintiff, and the Court has found none. Plaintiff’s allegations, therefore, do not fall
into a category of retaliation that has heretofore been recognized in this Circuit.
Even if the Court were to assume that any kind of harmful conduct could constitute
unlawful FLSA retaliation, the facts alleged by Plaintiff simply do not support his conclusory
statement that “[a] reasonable employee may have been dissuaded from filing a[n] FLSA charge
against his employer if he knew that he and his family would be harassed in this way.” Pl.’s
Opp. at 3.
Drawing all inferences in Plaintiff’s favor, Wang, at the instigation of King, made a
series of telephone calls and sent several text messages to Plaintiff before visiting the vicinity of
Plaintiff’s home without invitation. Wang’s stated purpose for these actions was to discuss a
settlement of Plaintiff’s FLSA claims. Plaintiff never responded to Wang or directed Wang not
to contact him, even though Wang’s text message explicitly said that if Li was not interested in
talking about a private settlement he should just say so. The Court has found no case – and the
Plaintiff has cited none – in the Title VII or FLSA context, in which the Court has found that
“harassment” is adequately alleged on facts as thin as these. While the Court does not condone
King’s decision to dispatch a deliveryman from the restaurant to approach his adversary in this
7

way, Wang’s telephone calls were placed during the day, were unanswered and were not so
numerous as to be harassing. The text messages also fall short any reasonable definition of the
term “harassment.” They too were sent during the day, and they invited Li to say he was not
interested if he was not. While the Court accepts that Li found Wang’s persistence to be offputting, the anti-retaliation laws are not civility codes. Cf. Burlington N., 548 U.S. at 68 (“Title
VII . . . does not set forth a general civility code for the American workplace”) (internal
quotation marks omitted). Neither the content nor context of Wang’s texts was so harassing or
threatening that they constitute the basis for a retaliation claim.
Finally, as Defendants point out, a defendant’s eagerness to settle an FLSA claim for a
sum of money is more likely to encourage an employee to bring an FLSA case than dissuade him
from doing so. Defs.’ Mem. at 9. While Defendants’ attempts to settle Plaintiff’s FLSA claims
may have been overly aggressive, without more, Defendants’ actions do not qualify as retaliation
as that provision has been interpreted by courts in this Circuit.
Because the Court must apply the standard of what would dissuade a “reasonable worker
from making or supporting similar charges,” Plaintiff’s subjective reaction to Defendants’
conduct is not dispositive. Mullins, 626 F.3d at 53 (emphasis added). Even assuming that some
number of phone calls, text messages, and appearances outside a plaintiff’s home could be
sufficiently harassing to dissuade a reasonable employee from bringing an FLSA claim, the
Defendants’ conduct in this case does not even approach that level.
II.

Plaintiff’s Amendment of the Complaint Would Be Futile
As a general rule, a “court should freely give leave [to amend a Complaint] when justice

so requires.” Fed. R. Civ. P. 15(a)(2). “Notwithstanding the liberality of the general rule,
[w]hether to allow amendment is a decision that rests in the discretion of the district court.”
Lincoln v. Potter, 418 F. Supp. 2d 443, 454 (S.D.N.Y. 2006) (citations omitted) (internal
8

quotation marks omitted). One reason for denying leave to amend is the “futility of
amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962).
Plaintiff’s amendment to the Complaint would be futile. The proposed Amended
Complaint differs from the original complaint in only a few respects, none of which is material.
First, Plaintiff attempts to bolster his case against Wang by specifically alleging that Wang may
have been the individual who was in the vicinity of Plaintiff’s home on November 11, 2014.9
Am. Compl. ¶ 30. Second, the proposed Amended Complaint elaborates on the content of the
text messages sent by Wang and adds a state law cause of action for intentional infliction of
emotional distress. Id. ¶¶ 24-29, 43-46. With respect to his FLSA retaliation claim, Plaintiff has
set out essentially the same facts twice, and, as discussed supra, the facts are insufficient to state
a cause of action for retaliation under the FLSA.
Because Plaintiff has failed to state a federal cause of action under the FLSA, the Court
will not retain jurisdiction over Plaintiff’s state law claims, and those are also dismissed.
Furthermore, because the claims are dismissed, the Court need not consider the parties’
arguments regarding whether Section 215(a)(3) can be applied against Wang as an agent of
Plaintiff’s former employers.
CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss Plaintiff’s FLSA claim is
GRANTED with prejudice; Defendants’ Motion to Dismiss Plaintiff’s NYLL claim is

The Introduction to Plaintiff’s proposed Amended Complaint alleges violations of both the FLSA and
NYLL anti-retaliation provisions against Empire Szechuan and King but a violation of only NYLL § 215 against
Wang. Am. Compl. ¶¶ 1-2. In the First Claim For Relief, however, Plaintiff alleges that all three of the Defendants
violated FLSA § 215(a)(3), as does the original Complaint. Am. Compl. ¶¶ 35-37; Compl. ¶¶ 29-33. The Court
finds these inconsistencies irrelevant to the determination that Defendants’ alleged conduct did not violate Section
215(a)(3).
9

9

GRANTED without prejudice; and Plaintiff’s request to amend his Complaint is DENIED. The
Clerk of Court is respectfully directed to close all open motions and terminate the case.

SO ORDERED.
___________________________
__
_________________________________
VALERIE CAPRONI
I
United States District Judge

Date: August 4, 2015
New York, New York

10