Santi v. Hot In Here, Inc. et al
Filing
46
OPINION AND ORDER re: 31 MOTION for Leave to File Second Amended Complaint filed by Christina Santi. For the reasons stated above, Plaintiff's motion for leave to file her proposed third amended complaint is GRANTED. The Clerk of the Court is respectfully directed to terminate the motion, Doc. 31. It is SO ORDERED. (Signed by Judge Edgardo Ramos on 1/22/2019) (rro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CHRISTINA SANTI,
Plaintiff,
-against-
OPINION AND ORDER
18 Civ. 03028 (ER)
HOT IN HERE, INC., VLAD LYUBOVNY,
in his individual and professional capacities, and,
LATAYA EDWARDS, in her individual and
professional capacities,
Defendants.
Ramos, D.J.:
Christina Santi, a Black woman, brings this action against her former employer, a media
company named Hot in Here, Inc. (“VladTV”), and two of its executives, Vlad Lyubovny and
Lataya Edwards, alleging various federal and state employment law violations. Santi moves for
leave to file a third amended complaint. For the reasons set forth below. Santi’s motion is
GRANTED.
I.
Background
Hot in Here, Inc., owns VladTV.com, a hip-hop and popular culture website. Doc. 39, 5.
Lyubovny, VladTV’s Chief Executive Officer, and Edwards, its Director of Human Resources,
are married. Id. at 4. VladTV employed Santi from October 2011 until February 2018. Id. at 2–
3. Throughout this period, Santi worked approximately 50 hours a week. Id. at 5. She alleges
that she did not receive payment for a brief training period at the beginning of her employment,
but that her pay gradually increased from $150 per week in November 2011 to $750 per week in
June 2015. Id. In July 2015, she became a salaried employee, and her salary rose from $60,000
per year in July 2015 to $63,000 per year in March 2017. Id. at 5–6. With a few exceptions, she
claims that she did not receive overtime compensation. Id. at 5. Santi alleges that she was
constructively discharged on February 21, 2018. Id. at 15.
From 2011 to 2015, Santi, under the direction of a supervisor, performed research,
generated content and distributed a newsletter for VladTV. Id. at 5. From 2015 until her
termination, Santi, pursuant to Lyubovny’s instructions, shared VladTV’s content on different
social media platforms. Id. at 6.
Santi alleges that during her employment Defendants made racially and sexually
inappropriate comments to her. For example, on one occasion, Lyubovny asked Santi whether
she found an office chair uncomfortable and, after Santi told him that the chair did not fit
someone of her size, he allegedly responded by saying, “You should get ass shots, or whatever it
is women are putting into their behinds these days.” Id. at 7. In another instance, Lyubovny told
Santi, “As a woman, your only purpose in life is to have children.” Id. at 13. Santi does not
provide any context for this second comment. Additionally, Lyobovny purportedly directed
Santi to post stereotypical representations of Black people on VladTV on numerous occasions,
despite the fact that the content made her uncomfortable. Id. at 8. When Santi complained to
Edwards, she said, “the content on the website was not ‘for’ her, so she should not be offended
by it.” Id. at 8. Lyubovny made similar comments. Id.
Santi also alleges that Defendants treated her differently than a male colleague by giving
the male colleague credit for Santi’s work and by overlooking his shortcomings, such as his
tardiness and his refusal to complete assigned tasks, while at the same time reprimanding Santi
for not answering messages over the weekend. Id. at 7–8.
When Santi confronted Lyubovny about these comments and treatment, he told her,
“racism isn’t as bad anymore,” “interracial marriage is legal,” “Black people aren’t slaves
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anymore,” and the allegedly favored colleague “is a man, so the communication will always be
different.” Id.
In another allegation, Santi claims that she was subjected to sexually inappropriate
conduct by a man associated with a musician being interviewed by VladTV but that Defendants
failed to correct it. Specifically, in November 2017, Lyubovny interviewed a rapper for the
website and a member of the rapper’s entourage touched Santi’s stomach and breast
inappropriately and made sexual comments to another female employee. Id. at 11. Santi
complained about the man’s conduct to Lyubovny and he berated her. Id. at 12. Santi filed a
formal complaint and Lyubovny accused her of “talking back” and told her that she would be “in
for a rude awakening” when Edwards spoke with her about the complaint. Id. at 12. In response
to Santi’s complaint, Edwards told her not to “take it personally” and to “deal with it.” Id. at
12–13. Santi alleges that because Edwards was Lyubovny’s wife, she sought to suppress—not
legitimately address—complaints. Id. at 14.
Meanwhile, on August 10, 2017, Santi told Lyubovny and Edwards that she was
pregnant. Id. at 9. According to Santi, the hostile work environment to which she had been
subjected only worsened. For example, while she was experiencing morning sickness in the
weeks after her announcement, Lyubovny accused her of “coming to work sick as a means to
receive a pay check without working” and ordered her to work from home. Edwards told Santi
that Defendants would reduce her hours and require her to work from home until her morning
sickness subsided. Id. at 9. On another occasion, he required her to come to work during a
snowstorm, despite her fear of falling and injuring her unborn child. Id. at 9–10. When Santi
protested, Edwards accused her of being “unprofessional.” Id. at 11. According to Santi, they
treated sick, non-pregnant employees better. Id.
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On February 12, 2018, Santi asked Edwards if she could work from home for the
remainder of her pregnancy because her hours and office temperature made her dizzy, nauseous,
and vulnerable to hypertension and cardiomyopathy. Id. at 14. Defendants denied her request
and, on February 21, 2018, constructively discharged her. Id. at 14–15.
Santi has filed three complaints in this case: The initial complaint, filed on April 5, 2018,
alleged violations under the Fair Labor Standards Act (“FLSA”), New York Labor Law
(“NYLL”), Family and Medical Leave Act (“FMLA”), New York State Human Rights Law
(“NYSHRL”), New York City Human Rights Law (“NYCHRL”), and 42 U.S.C. § 1981
(“Section 1981”) for overtime wage violations, gender discrimination, race discrimination,
pregnancy discrimination, and retaliation. Doc. 1, 15–26. On April 23, 2018, she filed a first
amended complaint as of right and dropped her FMLA claim. Doc. 17, 15–25. On December
11, 2018, she filed a second amended complaint, with Defendants’ consent, and added Title VII
claims, 42 U.S.C. §§ 2000e-2, 2000e-3, and Americans with Disabilities Act (“ADA”) claims for
race discrimination, gender discrimination, pregnancy discrimination, and retaliation. Doc. 32,
19–21. 1 Other than adding information about receiving a Notice of Right to Sue from the Equal
Employment Opportunity Commission, the factual allegations are the same in all three
complaints. Doc. 37-1, 4.
On May 8, 2018, Defendants answered Santi’s first amended complaint and brought
counterclaims. Doc. 22. Specifically, they allege that Santi made a negligent misrepresentation
1
The Second Amended Complaint asserts sixteen causes of action: (1) failure to pay overtime in violation of FLSA;
(2) failure to pay overtime in violation of NYLL; (3) race discrimination in violation of Section 1981; (4) retaliation
in violation of Section 1981; (5) race discrimination in violation of Title VII; (6) gender discrimination in violation
of Title VII; (7) retaliation in violation of Title VII; (8) denial of reasonable accommodations in violation of the
ADA; (9) denial of reasonable accommodations in violation of NYSHRL; (10) race discrimination in violation of
NYSHRL; (11) gender discrimination in violation of NYSHRL; (12) retaliation in violation of NYSHRL; (13)
denial of reasonable accommodations in violation of NYCHRL; (14) race discrimination in violation of NYCHRL;
(15) gender discrimination in violation of NYCHRL; and (16) retaliation in violation of NYCHRL.
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and breached her fiduciary duty to the company by submitting a job application to the company
under an alias, “Timothy Roberts,” and then by hiring herself under this name. Id. at 35–36. In
addition, they allege that Santi breached her contract with the company and misappropriated its
property by using its grammar correction service, Grammarly, outside of her employment. Id. at
36–37.
In the instant motion, Santi seeks to file a third amended complaint in order to add five
additional claims: two claims under FLSA and NYLL for retaliation based on the filing of
counterclaims by Defendants; and three additional claims under NYLL for not providing a pay
notice, for not furnishing pay statements, and for not paying a minimum wage.
II.
Discussion
Pursuant to Federal Rule of Civil Procedure 15(a)(1), a party may amend its pleading as a
matter of course 21 days after serving it, 21 days after service of a responsive pleading, or 21
days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. “In all other
cases, a party may amend its pleading only with the opposing party’s written consent or the
court’s leave” but “[t]he court should freely give leave when justice so requires.” Fed. R. Civ. P.
15(a)(2). As a general rule, leave to amend a complaint should be freely granted. Jin v. Metro.
Life Ins. Co., 310 F.3d 84, 101 (2d Cir. 2002). District courts have broad discretion in deciding
whether to grant leave to amend, id., and “it is rare that such leave should be denied,” Ricciuti v.
N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991). However, where the amendment would
be futile or would result in undue prejudice to the opposing party, denying leave to amend is
proper. Id. “An amendment to a pleading is futile if the proposed claim could not withstand a
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motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).” Lucente v. IBM, 310 F.3d 243, 258 (2d
Cir. 2002). The Court grants Santi’s motion to amend to add all five additional claims. 2
A.
FLSA and NYLL Retaliation
Santi claims that Defendants retaliated against her by filing counterclaims a little over a
month after she filed FLSA and NYLL claims against them. The FLSA forbids “any person”
from “discharg[ing] or in any other manner discriminat[ing] 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 . . . .” 29 U.S.C. § 215(a)(3). “FLSA retaliation claims are subject to the
three-step burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973).” Mullins v. City of New York, 626 F.3d 47, 53 (2d Cir. 2010). Under this
framework, “[t]he plaintiff has the initial burden to present a prima facie case of discrimination;”
“[t]hen, the defendant has a burden of production to articulate some legitimate,
nondiscriminatory reason for the adverse action;” and “[f]inally, the plaintiff has the burden of
persuasion to prove by a preponderance of the evidence that the improper reason was the true
reason.” Brock v. Casey Truck Sales, Inc., 839 F.2d 872, 876 (2d Cir. 1988) (citations and
quotation marks omitted). “[A] plaintiff is not required to plead a prima facie case under
McDonnell Douglas, at least as the test was originally formulated, to defeat a motion to dismiss.”
Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 84 (2d Cir. 2015). However, if a
plaintiff “alleges facts that would be sufficient to establish the other elements of
2
Defendants concede that Santi’s proposed NYLL claim for failure to pay minimum wage is not futile. Doc. 34, 6
n.1. They do, however, argue that Santi’s § 652 claim may not, as a matter of law, impose liability for violations
before 2012 because NYLL’s six-year statute of limitations would bar them. See N.Y. Lab. Law § 663
(“Notwithstanding any other provision of law, an action to recover upon a liability imposed by this article must be
commenced within six years.”). Because Santi alleges violations within the limitations period, the Court need not
resolve this issue.
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a prima facie case of retaliation, her allegations [are] more than sufficient to withstand [a] motion
to dismiss.” Littlejohn v. City of New York, 795 F.3d 297, 320 (2d Cir. 2015).
To make a prima facie case of retaliation under the FLSA, Santi must show “(1)
participation in protected activity known to the defendant, like the filing of a FLSA lawsuit; (2)
an employment action disadvantaging the plaintiff; and (3) a causal connection between the
protected activity and the adverse employment action.” Mullins, 626 F.3d at 53. “An
employment action disadvantages an employee if it well might have dissuaded a reasonable
worker from making or supporting [similar] charge[s].” Id. (internal quotation marks and
citation omitted). Like FLSA anti-retaliation claims, “[r]etaliation claims brought
under . . . NYLL are generally governed by the same McDonnell Douglas burden-shifting
framework as discrimination claims.” DeLuca v. Sirius XM Radio, Inc., No. 12 Civ. 8239 CM,
2017 WL 3671038, at *23 (S.D.N.Y. Aug. 7, 2017). See also Kassman v. KPMG LLP, 925 F.
Supp. 2d 453, 472 (S.D.N.Y. 2013) (applying the same standard for anti-retaliation claims
brought under FLSA and NYLL); Azeez v. Ramaiah, No. 14 Civ. 5623 PAE, 2015 WL 1637871,
at *8 (S.D.N.Y. Apr. 9, 2015) (describing FLSA’s anti-retaliation provision and NYLL’s antiretaliation provision as “closely analogous”).
Santi engaged in protected activity by filing her complaint. Mullins, 626 F.3d at 53
(describing the filing of a FLSA complaint as an example of protected activity). The Court finds
that Santi’s allegations also satisfy the second prong of the test. As a preliminary matter, in
Robinson v. Shell Oil Co., the Supreme Court “h[e]ld that former employees are included within”
Title VII’s protections. 519 U.S. 337, 346 (1997). Thus, for example, in Pantchenko v. C. B.
Dolge Co., the Second Circuit held that denying a former employee a post-employment reference
letter could harm her future employment prospects and, thus, could amount to retaliation under
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Title VII. 581 F.2d 1052, 1055 (2d Cir. 1978) (per curiam) (reversing a district court’s grant of
summary judgment on this issue). 3
The foregoing authorities have been applied by district courts in circumstances similar to
this case. Jian Zhong Li v. Oliver King Enterprises, Inc., No. 14-CV-9293 VEC, 2015 WL
4643145, at *3 (S.D.N.Y. Aug. 4, 2015) (“[D]istrict 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 postemployment conduct.”) (listing cases).
Fei v. WestLB AG is particularly instructive. No. 07 Civ. 8785 (FM), 2008 WL 594768,
at *1 (S.D.N.Y. Mar. 5, 2008). There, the plaintiff sued his former employer for FLSA
violations and then, in a counterclaim, the former employer alleged that the plaintiff had
misappropriated highly confidential personnel information. Id. The plaintiff moved for leave to
amend his complaint to bring a retaliation claim based on these counterclaims. Id. The court
allowed the plaintiff to add the retaliation claim, finding that “[c]ounterclaims may not as a
matter of law fail to qualify as retaliatory” and further holding that “[l]awsuits in response to a
former employee’s attempt to vindicate his rights can constitute retaliation.” Id. at *3. See also
Yankelevitz v. Cornell Univ., No. 95 Civ. 4593 (PKL), 1996 WL 447749, at *4 (S.D.N.Y. Aug.
7, 1996) (holding, in the motion to strike context, that “the Court is unwilling to adopt a rule
stating that compulsory counterclaims, or any other legal cause of action, cannot, as a matter of
law, constitute retaliation in violation of the employment discrimination laws.”).
3
While Robinson and Pantchenko are Title VII cases, such cases often guide the Second Circuit’s decisions in
FLSA cases, including the interpretation of the anti-retaliation provision in the FLSA. For example, the Circuit
looked to Title VII in instructing district courts to follow the McDonnell Douglas burden-shifting framework in
FLSA retaliation cases. Mullins, 626 F.3d at 53. In addition, it referenced the FLSA in Pantchenko in holding that
the denial of a post-employment reference letter could amount to retaliation under Title VII. 581 F.2d at 1055.
Indeed, the standard for the very prong at issue here derives from a Title VII case, Burlington N. & Santa Fe Ry. Co.
v. White, 548 U.S. 53, 68 (2006). Mullins, 626 F.3d at 53.
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As the Supreme Court observed in a slightly different context when interpreting the
National Labor Relations Act’s prohibition on unfair labor practices, “A lawsuit no doubt may be
used by an employer as a powerful instrument of coercion or retaliation” because “by suing an
employee who files charges . . . , an employer can place its employees on notice that anyone who
engages in such conduct is subjecting himself to the possibility of a burdensome lawsuit” and
because “[r]egardless of how unmeritorious the employer’s suit is, the employee will most likely
have to retain counsel and incur substantial legal expenses to defend against it.” Bill Johnson’s
Restaurants, Inc. v. NLRB, 461 U.S. 731, 740–41 (1983).
In their counterclaims, Defendants allege that Santi lied to them and stole their property.
She alleges that this caused her significant, presumably reputational, harm. Doc. 31-1, 21
(FLSA), 26 (NYLL). These allegations and the possible financial burden they will impose might
well dissuade another worker from bringing similar claims against Defendants. As a result, the
Court finds that Defendants’ counterclaims disadvantage Santi and satisfy the second prong of
the prima facie test.
Santi’s proposed third amended complaint also satisfies the third prong of the prima facie
test. “[A] causal connection between an adverse action and a plaintiff’s protected activity may
be established through evidence of retaliatory animus directed against a plaintiff by the
defendant, or by showing that the protected activity was closely followed in time by the adverse
action.” Mullins, 626 F.3d at 53 (internal quotation marks and citations omitted). In the Title
VII context, 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 Co-op Extension of Schenectady Cty., 252 F.3d 545, 554 (2d Cir. 2001). In Grant v.
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Bethlehem Steel Corp., it held that an eight-month gap between an EEOC complaint and
retaliatory action suggested a causal relationship. 622 F.2d 43, 45–46 (2d Cir.1980).
In Richardson v. New York State Dep’t of Corr. Serv., it found that abusive acts within one
month of receipt of deposition notices may be retaliation for initiation of lawsuit more than one
year earlier. 180 F.3d 426, 446–47 (2d Cir.1999). And, in Quinn v. Green Tree Credit Corp., it
concluded that a termination less than two months after plaintiff filed a sexual harassment
complaint with management and ten days after filing a complaint with state human rights office
provided prima facie evidence of a causal connection between protected activity and retaliation.
159 F.3d 759, 769 (2d Cir.1998).
In the instant case, Santi filed her original complaint on April 5, 2018, and Defendants
filed their counterclaims on May 8, 2018. The temporal proximity between these two events
establishes a causal connection at the prima facie stage for FLSA and NYLL retaliation claims.
Because Santi’s proposed complaint satisfies the three prongs of the prima facie test, the Court
finds that it would survive a motion to dismiss and therefore grants Santi’s request to add her
FLSA and NYLL retaliation claims.
Defendants argue that “[b]eing compulsory, the counterclaims cannot serve as the basis
for a retaliation claim” and that the counterclaims “are not ‘without merit’ or ‘totally baseless’
and, thus, the retaliation claims are futile.” Doc. 34, 9, 11. In cases with different procedural
postures, courts within this District have adopted the principle underlying this argument, namely
that compulsory and meritorious counterclaims do not qualify as retaliation. In Eng-Hatcher v.
Sprint Nextel Corp., a district court granted employers’ motion to amend its answer and add
counterclaims because the record before the Court did not establish that the counterclaims the
defendants sought to assert were “totally baseless.” No. 07 Civ. 7350 KNF, 2008 WL 4865194,
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at *1 (S.D.N.Y. Oct. 31, 2008). Similarly, in Schanfield v. Sojitz Corp. of America, another court
within this District partially granted an employer’s motion for summary judgment on an
employee’s retaliation claim because “I can see nothing in Title VII or any other antidiscrimination statute that should prevent an employer from bringing a legitimate claim against a
current or former employee simply because that employee has complained about what the
employee believes to be discriminatory behavior.” 663 F. Supp. 2d 305, 342 (S.D.N.Y. 2009)
(also noting, “I can conceive of cases in which being sued would qualify as an adverse
employment action”). Similarly, in Rosas v. Balter Sales Co. Inc., another court within this
District granted an employer’s motion for summary judgment because “[t]he filing of
counterclaims is only actionable as retaliation where the counterclaims are without any merit.”
No. 12 Civ. 6557 VSB, 2015 WL 12915807, at *1 (S.D.N.Y. Mar. 30, 2015). These cases do not
apply to this situation where Santi seeks leave to amend her complaint and, in any event, do not
stand for the proposition that compulsory counterclaims cannot, as a matter of law, constitute
retaliation. A counterclaim, like many adverse actions, may be meritorious or not, but that
determination cannot be made at the pleading stage without the benefit of discovery. At this
point, it suffices to say that the filing of counterclaims, even if compulsory, may constitute
retaliatory action. 4
B.
Pay Notice and Pay Statement
Santi alleges that Defendants failed to provide her with accurate pay notices and pay
statements. Doc. 33-1, 24 –25. NYLL requires employers to provide “at the time of hiring, a
notice containing the following information: the rate or rates of pay and basis thereof, . . .
allowances, if any, claimed as part of the minimum wage, [and] the regular pay day designated
4
Because the Court finds that even compulsory counterclaims may qualify as adverse employment actions, it need
not resolve the parties’ dispute about whether the counterclaims are compulsive or permissive.
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by the employer.” NYLL § 195(1)(a). It further mandates, “For all employees who are not
exempt from overtime compensation as established in the commissioner’s minimum wage orders
or otherwise provided by New York state law or regulation, the notice must state the regular
hourly rate and overtime rate of pay.” Id. NYLL also provides that “every employer
shall . . . furnish each employee with a statement with every payment of wages.” NYLL §
195(3). Santi alleges that she has not received either a pay notice or a pay statement. Doc. 33-2,
7–8.
Defendants challenge these amendments in two ways. First, they argue that Santi could
have asserted these claims in her original complaint and that, “the undue delay in bringing these
claims warrants the denial of the relief sought.” Doc. 34, 12. “Mere delay, however, absent a
showing of bad faith or undue prejudice, does not provide a basis for a district court to deny the
right to amend.” Block v. First Blood Assocs., 988 F.2d 344 (2d Cir. 1993) (internal quotation
marks and citation omitted). Defendants have not argued that Santi acted in bad faith or caused
Defendants undue prejudice. As a result, the Court denies this challenge.
Second, Defendants assert that Santi’s complaint lacks “any allegation that Santi was not
timely paid her wages” and argue that “[t]he absence of this allegation provides for an
affirmative defense under New York’s Labor Law and renders Plaintiff’s wage notice claims
futile.” Doc. 34, 13. For this argument, they rely on N.Y. Lab. Law § 198. That section
provides, “In any action . . . to recover damages for violation of [the pay notice and pay
statement requirements], it shall be an affirmative defense that (i) the employer made complete
and timely payment of all wages due pursuant to this article.” N.Y. Lab. Law § 198 (1-b)
(applying defense to pay notice claim, NYLL § 195(1)) (emphasis added); id. at (1-d) (applying
defense to pay statement claim, 9 NYLL § 195(3)) (emphasis added). As indicated by the
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