Nunez v. Metropolitan Learning Institute

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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STEVEN NUNEZ a.k.a. STEVEN CRUZ

MEMORANDUM AND ORDER

Plaintiff,

Case No. 1:18-cv-1757 (FB)(VMS)

-against-

METROPOLITAN LEARNING INSTITUTE,

INC., and BORIS DAVIDOFF, individually

Defendants.

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For the Plaintiff: For the Defendant:

THE LAW OFFICES OF MIRANDA SLONE SKLARIN

JACOB ARONAUER VERVENIOTIS LLP

Jacob Aronauer, Esq. Michael A. Miranda, Esq.

225 Broadway 240 Mineola Boulevard

New York, NY 10007 Mineola, New York 11501

BLOCK, Senior District Judge:

Plaintiff Steven Nunez brings this action for unpaid overtime and retaliation,

under the Fair Labor Standards Act (“FLSA”) and the New York Labor Law

(“NYLL”), against Metropolitan Learning Institute and Boris Davidoff. The

defendants move to dismiss plaintiff’s retaliation claims under Federal Rule of Civil

Procedure 12(b)(6). For the following reasons, the defendants’ motion is denied.

I.

For purposes of this motion, the Court must take as true all the allegations of

the complaint and must draw all inferences in plaintiff’s favor. See Weixel v. Board

of Educ., 287 F.3d 138, 145 (2d Cir. 2002). To survive a motion to dismiss, a

complaint “does not need detailed factual allegations,” but “a formulaic recitation of

the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007). The factual allegations must “to state a claim to relief that is

plausible on its face.” Twombly, 550 U.S. at 569 (emphasis added).

II. Discussion

The plaintiff was terminated by the defendants in January 2018. The plaintiff

filed this lawsuit on March 22, 2018 for unpaid overtime wages. The defendants

subsequently sued the plaintiff in state court on August 8, 2018 for breach of

contract, breach of fiduciary duties, and defamation. On October 1, 2018, plaintiff

amended his complaint to add retaliation claims citing the defendants’ state lawsuit.

In order to state a claim for retaliation, the plaintiff must establish: “(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 v. City of New York, 626 F.3d 47, 53 (2d Cir. 2010). The plaintiff filed the

instant lawsuit, a protected activity, of which the defendants are aware. See Torres

v. Gristede’s Operating Corp., 628 F.Supp.2d 447, 472 n.20 (E.D.N.Y. 2008).

III. Adverse Employment Action

The alleged adverse employment action here is the defendants’ state lawsuit.

An adverse employment action is one that may “dissuade a reasonable worker from

making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co.

v. White, 548 U.S. 53, 68 (2006).

Courts have held that the filing of a baseless lawsuit can be an adverse action.

See Romero v. Bestcare, Inc., No. 15-cv-7397(JS)(GRB), 2018 WL 1702001, at *5

(E.D.N.Y. Feb. 28, 2018) (citing cases). In Romero, the plaintiff alleged that the

defendant’s sole purpose for filing a counterclaim was to retaliate against the

plaintiff. Id. at *6. The Court found that allegation to be sufficient at the pleadings

stage to show the “[c]ounterclaim is baseless or would not have been pursued absent

a retaliatory motive.” Id.1

Similar to the Romero plaintiff, the plaintiff here alleged that the state lawsuit

was filed for “leverage” and was “designed to punish Nunez for engaging in [a]

1 The defendants argue that the plaintiff must allege harm to his career prospects,

citing Calderon and Klem. Calderon v. Mullarkey Realty, LLC, No. 14-cv-2616

(PKC)(RLM), 2018 WL 2871834 (E.D.N.Y. June 10, 2018); Klem v. Popular Ford

Sales, Inc., 975 F.Supp. 196 (E.D.N.Y. 1997). Klem was decided prior to the

Supreme Court’s decision in Burlington Northern, which “expanded the universe of

actionable retaliation.” Romero, 2018 WL 1702001, at *5 n.11. And, Calderon is

distinguishable. 2018 WL 2871834. It was a motion for summary judgment, so the

plaintiff had the benefit of discovery. Id. at *7. Additionally, the plaintiff did not

establish an adverse employment action as the defendants’ lawsuit against him was

“indisputably meritorious.” Id. at *16. In granting summary judgment, the Court

considered defendants’ meritorious lawsuit in conjunction with the lack of evidence

of harm to plaintiff’s career prospects. Id. Here, the plaintiff has not had the benefit

of discovery regarding any impact on his career prospects. And, it is not

“indisputable” that the defendants’ state lawsuit is meritorious as it was dismissed.

Nevertheless, the plaintiff alleged damages as a result of the state lawsuit, including

financial expenditures and that the lawsuit likely hurt his employment opportunities.

protected activity.” (Complt. ¶¶68, 69). In addition, the plaintiff provided the court

with Judge Butler’s dismissal of the defendants’ state court lawsuit in its entirety.2

See Blue TreeHotels Inv. (Canada), Ltd. V. Starwood Hotels & Resorts, 369

F.3d 212, 217 (2d Cir. 2004) (“[W]e may also look to public records . . . in deciding

a motion to dismiss.”). The dismissal of the state court action, at the very least, makes

it plausible that the lawsuit was baseless. As such, the plaintiff sufficiently alleged

an adverse employment action that disadvantaged him.

IV. Causal Connection

The plaintiff must also allege “a causal connection between the protected

activity and the adverse employment action.” Mullins, 626 F.3d at 53. A causal

connection may be established by temporal proximity, but can also be established

through evidence of retaliatory intent. See Gordon v. New York City Bd. Of Educ.,

232 F.3d 111, 117 (2d. Cir. 2000); Johnson v. Palma, 931 F.2d 203, 207 (2d

Cir.1991). Here, the defendants argue the plaintiff solely relies on temporal

proximity to establish casual connection and the lapse of time between this action

and the state lawsuit is too large to draw a causal inference.

2 This case is different from Khalid v. DJ Shirley 1 Inc., No. 15-cv-5926 (SJF)(GRB),

2019 WL 325127 (E.D.N.Y. Jan. 25, 2019), to which both parties cite. In Khalid,

the defendants’ state court suit had not been dismissed, so the Court found premature

the plaintiff’s motion to amend. Id. at *2.

Regarding temporal proximity, about four months elapsed between the filing

of this lawsuit and the filing of the state lawsuit. 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.” Gorman-Bakos v. Cornell Co-op

Extension of Schenectady Cty., 252 F.3d 545, 554 (2d Cir. 2001). At the pleadings

stage, four months is not too attenuated to find temporal proximity. See Id. (finding

a five-month gap sufficient)3; Santana v. Rent A Throne, Inc., No. 2:15-cv-

2563(DRH)(GRB), 2018 WL 1027667, at *8 (E.D.N.Y. Feb. 21, 2018) (five-month

gap sufficient even at the summary judgment stage).

Regarding retaliatory intent, “a plaintiff can plausibly plead a causal

connection by showing other actions in that time frame that suggest[ ] a retaliatory

motive by defendants.” Salazaar v. Bowne Realty Associates, L.L.C., 796 F.Supp.2d

378, 385 (E.D.N.Y. 2011) (internal quotations and citations omitted). First, the

plaintiff alleged that the defendants filed the state lawsuit two days after settlement

discussions fell apart in this case, despite being aware of the harassment allegations

against the plaintiff since January 2018. Also, the plaintiff noted that after the

dismissal of the state lawsuit, the defendants hurriedly filed another lawsuit against

3 The defendants argue that Gorman is inapposite because it involved first

amendment speech as the protected activity. The Court disagrees. See Farmer v. Dr.

Lucia Patino, Optometrist, P.C., No. 18-cv-1435(AMD)(LB), 2019 WL 110956, at

*4 (E.D.N.Y. Jan. 4, 2019) (citing to Gorman while analyzing temporal proximity

within NYLL and FLSA retaliation claims).

the plaintiff on parallel grounds. The plaintiff alleged retaliatory intent sufficient to

survive a motion to dismiss, even if temporal proximity is on the edge of attenuation.

V. Conclusion

Based on the four-month proximity and the actions of the defendants in

connection with the state court lawsuit, the Court finds it plausible that the

defendants retaliated against the plaintiff four months after he filed this complaint

by filing the state lawsuit. As such, the defendants’ motion to dismiss is denied.

IT IS SO ORDERED.

_/S/ Frederic Block___________

FREDERIC BLOCK

Senior United States District Judge

October 24, 2019

Brooklyn, New York