Han v. Shang Noodle House, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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BAIGUANG HAN, on his own behalf and on

behalf of others similarly situated,

Plaintiff, MEMORANDUM & ORDER

20-CV-2266 (PKC) (VMS)

- against -

SHANG NOODLE HOUSE, INC. d/b/a Shang

Kitchen, ZHI ZHONG LIU a/k/a Zhizhong Liu,

and SUMMER ZHANG a/k/a Summer Liu,

Defendants.

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PAMELA K. CHEN, United States District Judge:

Plaintiff Baiguang Han brings this action against Defendants Shang Noodle House (“Shang

Kitchen”), Zhi Zhong Liu, and Summer Zhang (collectively, “Defendants”) for violations of the

Fair Labor Standards Act (“FLSA”), New York Labor Law (“NYLL”), and “spread of hours” and

overtime wage orders of the New York Commissioner of Labor, codified at N.Y. Comp. Codes R.

& Regs. tit. 12, § 146-1.6. Plaintiff further claims that Defendants retaliated against him for taking

legal action under the FLSA and NYLL. Currently before the Court is Defendants’ partial motion

to dismiss pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6). Defendants argue that

all of the claims against Defendant Liu must be dismissed because Liu was not Plaintiff’s

“employer” under the FLSA or NYLL, and that Plaintiff’s retaliation claims fail as a matter of law.

Defendants are wrong on both counts, as explained in detail below, and thus their motion is denied

in its entirety.

BACKGROUND

I. Factual Background1

A. Plaintiff’s Employment at Shang Kitchen

Plaintiff was hired to work as a chef at Shang Kitchen beginning on or around August 15,

2019. (Consolidated Complaint (“Compl.”), Dkt. 44, ¶ 21.) Defendants Liu and Zhang are

“officers directors, managers and/or majority shareholders or owners of [Shang Kitchen] and [are]

among the ten largest shareholders.” (Id. ¶ 16.) Defendant Liu is “known to [Plaintiff]” as the

“boss” and “a manager at [S]hang Kitchen.” (Id. ¶ 17.) Defendant Liu, “along with Summer

[Zhang], originally hired [Plaintiff] to work at Shang Kitchen, told [Plaintiff] what his salary would

be, supervised [Plaintiff] in his work at Shang Kitchen, and gave [Plaintiff] and other Shang

Kitchen employees their pay.” (Id.) Defendant Liu “is known to have had the power to hire and

fire employees, to have supervised and controlled employees’ work schedules and conditions of

employment, to have determined employees’ rates and methods of payment, and . . . maintained

employee records for Shang Kitchen.” (Id.)

“At the time he was hired, Summer [Zhang] had [Plaintiff] place his New York State driver

license on a metal table in Shang Kitchen, and took a picture of it.” (Id. ¶ 22.) Plaintiff worked at

Shang kitchen for 12 hours per day six days per week, and an additional 30 minutes four or five

days per week. (Id. ¶ 26.) Plaintiff’s primary work responsibilities included “preparing dishes,

including preparing raw and semi-prepared ingredients for use in dishes, cooking dishes, and

preparing sauces.” (Id. ¶ 28.) Defendants Liu and Zhang told Plaintiff he would be paid $6,000

1 The following facts are taken from Plaintiff’s Consolidated Complaint. (See Dkt. 44.)

The Court “accept[s] as true all factual allegations” in the Consolidated Complaint “and draw[s]

from them all reasonable inferences,” but does not “credit conclusory allegations or legal

conclusions couched as factual allegations.” Dane v. UnitedHealthcare Ins. Co., 974 F.3d 183,

188 (2d Cir. 2020) (internal quotation marks and ellipses omitted).

per month but did not explain how this amount accounted for his regular rate of pay, an overtime

rate for hours worked in excess of 40 per week, or spread-of-hours pay for days during which he

worked over 10 hours. (Id. ¶¶ 29–33.) Plaintiff left his employment with Defendants on or around

September 15, 2019. (Id. ¶ 21.) Plaintiff was paid $3,000 for the month of August 2019, and “not

paid anything for the month of September.” (Id. ¶¶ 17, 29.)

B. Allegations of Post-Employment Retaliation

At 2:22 p.m. on September 22, 2019—one week after Plaintiff left his employment at

Shang Kitchen—Plaintiff received a message via WeChat2 from Defendant Zhang containing the

photo of Plaintiff’s driver’s license that Zhang had taken when Plaintiff was hired, and a threat

that Zhang would “report [Plaintiff] to ICE[3] for working without authorization.” (Id. ¶ 41.)

Zhang also called Plaintiff “arrogant,” and “pathetic” for “not being literate in English, and

threatened that ‘God would not let [him] free.’” (Id.) Plaintiff replied that Zhang had “hit him on

the job[.]” (Id. ¶ 42.) Plaintiff also “asked for his unpaid salary.” (Id.) In response, Defendant

Zhang “said she would ‘go to the government first,’ and threatened [Plaintiff] with a defamation

lawsuit.” (Id. ¶ 43.) At 8:38 p.m. that evening, Plaintiff received another message from Zhang’s

WeChat account stating that the messages had not been sent by her. (Id. ¶ 44.)

After leaving his employment at Shang Kitchen, Plaintiff was unable to find work until

December 2019, when he got a job as a stir-fry cook in a Chinese restaurant in Atlanta, Georgia,

earning $3,800 to $4,000 per month. (Id. ¶ 49.) Plaintiff was terminated in February 2020 from

that job due to the COVID-19 pandemic (id. ¶ 50), and filed this lawsuit against Defendants for

2 WeChat is an instant messaging, social media, and mobile payment app. See

WeChat.com.

3 The Court assumes that “ICE” is a reference to the United States Immigration & Customs

Enforcement agency.

alleged wage violations under the FLSA and NYLL three months later on May 19, 2020 (id. ¶ 45).

Plaintiff remained unemployed until October 2020, when he found work as a stir-fry cook in a

Chinese restaurant in Oklahoma City, Oklahoma, where he worked until December 30, 2020,

making $6,000 per month.4 (Id. ¶¶ 51–52.) Plaintiff was then unemployed again until January 29,

2021, when he found work at another Chinese restaurant in Oklahoma, earning $6,000 per month.

(Id. ¶¶ 53–54.)

On or around January 8, 2021—before securing his second job in Oklahoma—Plaintiff saw

a “slide show” video posted on TikTok5 consisting of four slides: “(1) a photograph of [Plaintiff’s]

face and shoulders that he used as his WeChat profile picture; (2) the photograph of [Plaintiff’s]

New York State driver license that [Defendant] Summer [Zhang] had taken [when he was hired];

(3) his WeChat profile picture again; and (4) the photograph of his New York State driver license

again.” (Id. ¶ 46.) Each slide “was overlaid” with text “in red Chinese characters” that translated

to: “Whoever owns restaurants in the United States, please do not hire this person. He worked for

a couple of days, found an excuse to get his pay, and then sued under the employment law, with

one Flushing attorney to cheat.” (Id. ¶ 47.) The video was also posted in a WeChat group message

by a user called “Small Bee.” (Id. ¶ 48.) The group message was titled “OKC Chinese Non-Profit

Group,”6 and the video was seen by Chinese restaurant operators and employers, some of whom

commented on the video. (Id.)

4 The Complaint does not explain why Plaintiff left his job in December 2020. (See

Compl., Dkt. 44, ¶ 52.)

5 TikTok is a video-focused social networking app that allows users to share or post short-

form videos. See TikTok.com.

6 Plaintiff believes this to be a “group that Chinese restaurant owners use to share

information.” (Compl., Dkt. 44, ¶ 48.)

Plaintiff filed his second lawsuit against Defendants alleging unlawful retaliation on July

5, 2021. Soon after, on or about July 11, 2021, Plaintiff was “constructively discharged” from his

job in Oklahoma City due to “his employer’s maintenance of a hostile and abusive work

environment.” (Id. ¶ 54.) That hostile environment began when Plaintiff’s employer saw the

video, and “denounced [Plaintiff] as a liar and untrustworthy in front of his coworkers.” (Id.)

The TikTok video has also made Plaintiff’s former co-workers at Shang Kitchen “hesitant”

to opt into the collective FLSA wage-and-hour lawsuit because they “fear suffering similar

repercussions as [Plaintiff].” (Id. ¶ 55.)

II. Procedural History

Plaintiff commenced this action on May 19, 2020, as a putative collective action against

Defendants, alleging minimum and overtime wage violations under the FLSA and the NYLL,

violations of the NYLL’s wage notice and wage statement provisions, and violations of NYLL’s

“spread of hours” provisions and overtime wage orders of the New York Commissioner of Labor.

(See Dkt. 1, at 2.) Defendants filed their answer on October 12, 2020. (See Dkt. 17.) Plaintiff

filed a motion to certify this lawsuit as a collective action under the FLSA on December 4, 2020.

(Dkt. 21.) Defendants opposed certification in a memorandum dated January 22, 2021. (Dkts. 28,

29.) On January 30, 2021, Plaintiff sought leave to file a reply memorandum in support of his

motion to certify (Dkt. 30), which included as an attachment a January 27, 2021 affidavit by

Plaintiff. (Affidavit of Baiguang Han in Support of Plaintiff’s Motion for Conditional Collective

Certification (“Han Aff.”), Dkt. 30-2.) That request was opposed by Defendants in a memorandum

filed on February 23, 2021. (Dkt. 33.) After appearing before Magistrate Judge Vera M. Scanlon

(see Dkt. 34), Defendants filed an amended answer with proposed counterclaims on May 25, 2021

(see Dkt. 35). (See 09/15/2021 Docket Order (granting Defendants’ motion for leave to file

amended answer).) Plaintiff answered on June 25, 2021. (See Dkt. 36.) On August 24, 2021,

Magistrate Judge Scanlon granted in part and denied in part Plaintiffs Motion to Certify the FLSA

Collective Action. (See Dkt. 37.)

On July 5, 2021, Plaintiff commenced a second action in this district, alleging that

Defendants engaged in unlawful retaliation against him for engaging in protected activity under

the FLSA and the NYLL, i.e., filing the May 2020 lawsuit. (See Complaint, Han v. Shang Noodle

House Inc., No. 21-CV-3771 (PKC) (VMS) (E.D.N.Y. July 5, 2021), Dkt 1, ¶¶ 1–2.) The Court

consolidated the two cases on September 13, 2021, and Plaintiff filed a consolidated complaint on

September 29, 2021. (See 09/13/2021 Docket Order; Dkt. 44.)

Defendants subsequently filed the present motion to dismiss pursuant to Rule 12(b)(6).

The motion is now fully briefed. For the reasons explained below, the motion is denied in its

entirety.

STANDARD OF REVIEW

To survive a motion to dismiss, “a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Vengalattore v. Cornell

Univ., 36 F.4th 87, 102 (2d Cir. 2022) (quoting Lynch v. City of New York, 952 F.3d 67, 74 (2d

Cir. 2020) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009))). A claim is plausible on its face

“when the plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id. (quoting Iqbal, 556 U.S. at 678). The

plausibility standard under Rule 12(b)(6) requires “more than a sheer possibility that a defendant

has acted unlawfully,” and determining whether a complaint meets this standard is “a context-

specific task that requires the reviewing court to draw on its judicial experience and common

sense.” Id. (quoting Iqbal, 556 U.S. at 678–79). For purposes of this analysis, the Court “accept[s]

as true all factual allegations and draw[s] from them all reasonable inferences; but [is] not required

to credit conclusory allegations or legal conclusions couched as factual allegations.” Hamilton v.

Westchester Cnty., 3 F.4th 86, 90–91 (2d Cir. 2021) (quoting Dane v. UnitedHealthcare Ins. Co.,

974 F.3d 183, 188 (2d Cir. 2020)).

DISCUSSION

I. Plaintiff Has Plausibly Alleged that Defendant Liu Was His Employer

A. Legal Standard

The FLSA defines “employer” as “any person acting directly or indirectly in the interest of

an employer in relation to an employee.” Fermin v. Las Delicias Peruanas Rest., Inc., 93 F. Supp.

3d 19, 37 (E.D.N.Y. 2015) (quoting 29 U.S.C. § 203(d)).7 “When it comes to ‘employer’ status

under the FLSA, control is key.” Gil v. Pizzarotti, LLC, No. 19-CV-3497 (MKV), 2021 WL

1178027, at *4 (S.D.N.Y. Mar. 29, 2021) (internal quotation marks omitted). Yet an individual

need not “continuous[ly] monitor[ ] . . . employees, looking over their shoulders at all times, or

[exert] any sort of absolute control” to be considered an employer. Herman v. RSR Sec. Servs.

Ltd., 172 F.3d 132, 139 (2d. Cir. 1999). “Indeed, ‘[c]ontrol may be restricted, or exercised only

occasionally, without removing the employment relationship from the protections of the FLSA [or

NYLL], since such limitations on control do not diminish [its] significance.’” Chica v. Shallu

Constr. Corp., No. 21-CV-869 (ARR) (SJB), 2022 WL 970744, at * 7 (E.D.N.Y. Mar. 31, 2022)

(quoting Herman, 172 F.3d at 139).

The Second Circuit uses an “economic reality” test to determine when an individual

qualifies as an employer under the FLSA. Id. at *35 (citing Carter v. Dutchess Comty. Coll., 735

F.2d 8, 12 (2d Cir. 1984)). When applying the economic reality test, courts consider whether the

alleged employer: “(1) had the power to hire and fire the employees, (2) supervised and controlled

7 NYLL’s definition of “employer” is identical to the definition under the FLSA. Fermin,

93 F. Supp. 3d at 37 (“Courts have interpreted the definition of ‘employer’ under the [NYLL]

coextensively with the definition used by the FLSA.”).

employee work schedules or conditions of employment, (3) determined the rate and method of

payment, and (4) maintained employment records.” Id. (internal quotation marks omitted). None

of these factors is dispositive; courts weigh the totality of the circumstances to determine whether

an individual is an employer under the FLSA. Herman, 172 F.3d at 139; Irizarry v. Catsimatidis,

722 F.3d 99, 105 (2d Cir. 2013).

B. Application

The economic reality test weighs in favor of finding that Defendant Liu was Plaintiff’s

employer. As to the first factor, Plaintiff alleges that he was hired by both Defendants Zhang and

Liu, indicating that Liu did in fact have the power to hire employees. (See Compl., Dkt. 44, ¶ 17.)

Regarding the second factor, Plaintiff alleges that Defendant Liu is a “boss” and “manager” at

Shang Kitchen and that both Defendants Zhang and Liu “supervised his work,” but Plaintiff does

not provide specific examples of Liu’s supervision or control over his work schedule or conditions

of employment. (Id.) As to the third factor, Plaintiff alleges that both Defendants Zhang and Liu

“informed him of his salary” and “gave him and other employees their pay.” (Id.) Finally,

regarding the fourth factor, Plaintiff alleges, based on information and belief, that Defendant Liu

“maintained employee records for Shang Kitchen.” (Id.8) Plaintiff further alleges that Liu is an

“officer[], director[], manager[] and/or majority shareholder[] or owner[] of Shang Kitchen.” (Id.

¶ 16.)

8 Though that allegation is based on information and belief, it is sufficient here because

“information about record-keeping is likely solely within defendants’ knowledge.” Chica, 2022

WL 970744, at *7; see Barrett v. Forest Labs., Inc., 39 F. Supp. 3d 407, 431–32 (S.D.N.Y. 2014)

(“The Second Circuit has explained that the Twombly plausibility standard . . . does not prevent a

plaintiff from pleading facts alleged ‘upon information and belief’ where the facts are peculiarly

within the possession and control of the defendant.” (internal quotation marks omitted)).

While the Plaintiff’s allegations are weakest as to the second factor, no one factor is

dispositive under the economic reality test, see Herman, 172 F.3d at 139, and his allegations as to

the remaining factors are sufficient for the Court to infer that Defendant Liu had formal control

over Plaintiff’s employment. See Jaigua v. Kayafas Contracting Co., No. 18-CV-1941 (RDJ)

(SMG), 2019 WL 1115025, at *6 (E.D.N.Y. Mar. 11, 2019) (noting that while conclusory

allegations are insufficient to survive a motion to dismiss, “detailed, elaborate recitations of

specific facts are not required”); see also Severin v. Project OHR, Inc., No. 10-CV-9696 (DLC),

2011 WL 3902994, at *6 (S.D.N.Y. Sept. 2, 2011) (finding allegations that an alleged employer

“controlled personnel decisions, and had the power to hire and fire, set wages, and otherwise

control the terms and conditions of the plaintiffs’ employment” were sufficient to survive a motion

to dismiss); Michalek v. Amplify Sports & Entm’t LLC, No. 11-CV-508 (PGG), 2012 WL 2357414,

at *3 (S.D.N.Y. June 20, 2012) (finding allegations that an alleged employer “‘was the President

and Chairman of [the company],’ ‘had the authority to hire and fire employees,’ ‘had the authority

to supervise employees,’ ‘controlled employees’ schedules,’ and ‘determined the rate and method

of payment for employees’” were sufficient to join a defendant in an FLSA action).

Defendants also argue that the allegations in the Complaint about Defendant Liu are

inconsistent with Plaintiff’s statements in his January 2021 affidavit, which predates the

Consolidated Complaint, and thus are not plausible. (Defendants’ Motion to Dismiss (“Def.

Mot.”), Dkt. 54-1, at 5–6, 16–17; see also Han Aff., Dkt. 30-2.) In response, Plaintiff argues that

the affidavit falls outside the scope of the Court’s 12(b)(6) analysis. (See Plaintiff’s Memorandum

in Opposition to Motion to Dismiss (“Pl. Opp.”), Dkt. 56, at 11.) Ordinarily district courts

considering a motion to dismiss under Rule 12(b)(6) are “required to look only to the allegations

on the face of the complaint.” United States v. Strock, 982 F.3d 51, 63 (2d Cir. 2020). But courts

may also consider

(1) documents attached as an exhibit to the complaint or answer, (2) documents

incorporated by reference in the complaint . . . , (3) documents that, although not

incorporated by reference, are ‘integral’ to the complaint, or (4) any matter of which

the court can take judicial notice for the factual background of the case.

Doroz v. DeIorio’s Foods, Inc., 437 F. Supp. 3d 140, 149 (N.D.N.Y. 2020) (collecting binding

authorities).

The Court will not address whether the affidavit fits into one of the exceptions above

because it finds that even if Plaintiff’s January 2021 affidavit were considered, his allegations with

respect to Defendant Liu are sufficient to survive the motion to dismiss. The affidavit was filed in

this case on January 30, 2021, as an attachment to Plaintiff’s motion for leave to file a reply

memorandum in support of his Motion for Conditional Collective Certification. (See Han Aff.,

Dkt. 30-2.) In the affidavit, Plaintiff states that he and all Shang Kitchen employees were “hired

by Defendant Summer [Zhang]” (id. ¶¶ 3, 10), and that “all kitchen workers other than the

dishwasher were fired by Summer [Zhang]” (id. ¶ 22). Plaintiff also states in the affidavit that

“both Summer Zhang and Zhi Zhong Liu determined and approved of payment of Shang Kitchen

employees,” that “it was . . . Summer Zhang and . . . Zhi Zhong Liu [who] determined and told

[Plaintiff his] monthly rate,” and that the assignment of work at Shang Kitchen was in the “sole

and exclusive control of Summer Zhang . . . and Zhi Zhong Liu.” (Id. ¶¶ 25–26, 33). Thus, if the

affidavit were considered here, it would weaken Plaintiff’s allegations as to the first economic

reality factor—whether Defendant Liu had the power to hire and fire the employees—but bolster

his allegations as to the second and third factors—whether Defendant Liu supervised and

controlled employee work schedules or conditions of employment, and whether Defendant Liu

determined the rate and method of payment, respectively. Considering the totality of the

circumstances and weighing the economic reality factors against the allegations in the Complaint

and Plaintiff’s January 2021 affidavit, the Court would still infer that Defendant Liu was Plaintiff’s

employer and thus subject to liability as an employer under the FLSA and NYLL.9

For the reasons explained above, the Court finds that Plaintiff has adequately alleged that

Liu was Plaintiff’s “employer” under the FLSA and NYLL. Accordingly, Defendants’ motion to

dismiss the claims against Liu for not being Plaintiff’s employer is denied.

II. Plaintiff Has Pleaded a Plausible Retaliation Claim

A. Legal Standard

Under the FLSA, it is “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 [the FLSA].” 29 U.S.C. § 215(a)(3). Similarly, under

the NYLL, an employer or his or her agent may not “discharge, threaten, penalize, or in any other

manner discriminate or retaliate against any employee [] because such employee has made a

complaint . . . [or] because such employee has caused to be instituted . . . a proceeding under or

related to this chapter.” N.Y. Lab. L. § 215.10 The requirements for pleading a claim for retaliation

9 Citing Zheng v. Liberty Apparel Co. Inc., 355 F.3d 61, 72 (2d Cir. 2003), Defendants also

argue that Plaintiff fails to plead facts alleging that Defendant Liu had functional control over

Plaintiff. (Defendants’ Memorandum of Law in Support of Partial Motion to Dismiss the

Consolidated Complaint (“Def. Mem.”), Dkt. 54-1, at 19). Having determined that Defendant Liu

had formal control over Plaintiff’s employment under the economic reality test, there is no need

to assess whether Defendant Zheng had functional control over Plaintiff. See Zheng, 255 F.3d at

72 (“These particular factors are relevant because, when they weigh in plaintiffs’ favor, they

indicate that an entity has functional control over workers even in the absence of the formal control

measured by the Carter factors.”).

10 Defendants argue that to successfully plead a retaliation claim under the NYLL, “‘a

plaintiff must adequately plead that while employed by the defendant,’ ‘he or she made a complaint

about the employer’s violation of New York Labor Law and was terminated or otherwise

penalized, discriminated against, or subjected to an adverse employment action as a result.’” (Def.

Mem., Dkt. 54-1, at 12 (quoting Laboy v. Office Equip. & Supply Corp., No. 15 Civ. 3321 (RA)

under both the FLSA and the NYLL “significantly overlap,” and thus are analyzed using the same

standard for retaliation under the FLSA. Salazar v. Bowne Realty Assocs., L.L.C., 796 F. Supp.

2d 378, 384 (E.D.N.Y. 2011); see also Brito v. Marina’s Bakery Corp., No. 19-CV-828 (KAM)

(MMH), 2022 WL 875099, at *12 (E.D.N.Y. Mar. 24, 2022). “FLSA retaliation claims are

analyzed under the three-step burden-shifting analysis established in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973).” Velasquez v. Yoh Servs., LLC, 803 F. App’x 515, 517 (2d Cir. 2020)

(summary order). A plaintiff alleging retaliation under the FLSA must first establish a prima facie

case of retaliation by demonstrating “(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.” Id. (internal

quotation marks omitted).

Once a prima facie case has been established, “the burden shifts to the defendant to

articulate a legitimate, nondiscriminatory reason for the [adverse] employment

action. If the defendant meets this burden, the plaintiff must produce sufficient

evidence to support a rational finding that the legitimate, nondiscriminatory reasons

proffered by the defendant were false, and that more likely than not discrimination

was the real reason for the [adverse] employment action.”

(AJP), 2016 WL 5462976, at *7 (E.D.N.Y. Sept. 29, 2016).) That is not true. While the NYLL

does cover current employees, courts in this circuit have held that the statute also applies to former

employees. See, e.g., Kreinik v. Showbran Photo, Inc., No. 02-CV-1172 (RMB) (DF), 2003 WL

22339268, at *9 (S.D.N.Y. Oct. 14, 2003) (holding that counterclaims filed by an employer against

a former employee “could lead a trier of fact to view the counterclaims as an adverse employment

action under Section 215 [of the NYLL]”); Liverpool v. Con-Way, Inc., No. 08-CV-4076 (JG)

(JO), 2009 WL 1362965, at *12 (E.D.N.Y. May 15, 2009) (“I construe Section 215 to prohibit

retaliatory discrimination against former employees.”); Oram v. SoulCycle LLC, 979 F. Supp. 2d

498, 510 (S.D.N.Y. 2013) (“To leave a discharged employee without remedy for retaliation

because of a failure to have complained during employment defeats the salutary purpose of

§ 215.”).

Calderon v. Mullarkey Realty, LLC, No. 14-CV-2616 (PKC) (RLM), 2018 WL 2871834, at *15

(E.D.N.Y. June 10, 2018) (quoting Mullins v. City of New York, 626 F.3d 47, 53–54 (2d Cir.

2010)).

At the pleading stage, “the Court does not specifically apply the McDonnell Douglas

burden-shifting test to determine whether [the] [p]laintiff has stated a retaliation claim, but rather

generally assesses [the] [p]lausibility of [the] [p]laintiff’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); Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 84 (2d Cir.

2015) (“[B]ecause a temporary presumption of discriminatory motivation is created under the first

prong of the McDonnell Douglas analysis, a plaintiff need only give plausible support to a minimal

inference of discriminatory motivation.” (internal quotation marks omitted)).

B. Application

It is undisputed that Plaintiff has sufficiently alleged that he engaged in protected activity

by filing his wage-and-hour suit under the FLSA, which Defendants knew of. Thus, Plaintiff has

satisfied the first prong of a prima facie case.

As to the second prong, an employment action disadvantages an employee if it may

dissuade a reasonable worker from engaging in such a protected activity. Mullins, 626 F.3d at 53.

Here, the events underlying Plaintiff’s retaliation claim arose after he left his employment at Shang

Kitchen. The Supreme Court has held, in the context of retaliation claims brought under Title VII

of the Civil Rights Act of 1964, that the term “employees” includes former employees. See

Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) (noting that including former employees

serves “a primary purpose of anti[-]retaliation provisions: [m]aintaining unfettered access to

statutory remedial mechanisms”).

Although the Second Circuit has not applied the reasoning of Robinson to FLSA retaliation

claims, district courts in this Circuit have done so, “finding that in some circumstances plaintiffs

can bring retaliation claims against former employers for post-employment conduct.” Li v. Oliver

King Enters., Inc., No. 14-CV-9293 (VEC), 2015 WL 4643145, at *3 (S.D.N.Y. Aug. 4, 2015)

(collecting cases). Disadvantageous post-employment conduct includes “blacklist[ing] the former

employee, wrongfully refus[ing] to write a recommendation to prospective employers, or

sull[ying] the plaintiff’s reputation.” Sherman v. Fivesky, LLC, No. 19-CV-8015 (LJL), 2020 WL

5105164, at *5 (S.D.N.Y. Aug. 31, 2020) (quoting Wanamaker v. Columbian Rope Co., 108 F.3d

462, 466 (2d Cir. 1997)).

Defendants’ alleged conduct underlying Plaintiff’s retaliation claims, which occurred after

he filed his Complaint alleging FLSA and NYLL claims, clearly constitutes disadvantageous post-

employment conduct. The TikTok video posted on the WeChat group message seen by Chinese

restaurant operators and employers featuring Plaintiff’s WeChat profile picture and a photograph

of his New York State driver license was overlaid with text specifically advising prospective

employers not to hire Plaintiff because “[h]e worked for a couple of days, found an excuse to get

his pay, and then sued under the employment law, with one Flushing attorney to cheat.” (Compl.,

Dkt. 44, ¶ 47.) Such post-employment conduct could be disadvantageous, if not disastrous, to

Plaintiff’s future employment prospects because it could result in him being blacklisted or his

reputation being sullied among Chinese restaurant operators and employers. See Wanamaker, 108

F.3d at 466 (“The terminated employee, however, may have tangible future employment

objectives, for which he must maintain a wholesome reputation.”). Indeed, Plaintiff alleges that

soon after the TikTok video was posted, Plaintiff was publicly denounced as a liar and

untrustworthy by his boss at a Chinese Restaurant in Oklahoma, subjected to a hostile work

environment, and constructively discharged from that job. (Compl., Dkt. 44, ¶ 54.)

As to the third prong, “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 omitted). A plaintiff

can demonstrate retaliatory animus “by showing other actions in that time frame that suggest a

retaliatory motive by defendants.” Nunez v. Metro. Learning Inst., Inc., No. 18-CV-1757 (FB)

(VMS), 2019 WL 5457731, at *2 (E.D.N.Y. Oct. 24, 2019); see Pakter v. New York City Dep’t of

Educ., No. 08-CIV-7673 (DAB), 2010 WL 1141128, at *8 (S.D.N.Y. Mar. 22, 2010) (“The

element of causal connection need not be based only—or even primarily—on temporal proximity

but may also rely on non-circumstantial evidence, such as written or verbal statements of

retaliatory intent.” (citing Patane v. Clark, 508 F.3d 106, 116–17 (2d Cir. 2007))). The TikTok

video posted on the WeChat group message, which specifically directed members of a group of

Chinese restaurant employers and operators not to hire Plaintiff because he had filed an FLSA

lawsuit, is plainly sufficient to support a plausible inference of retaliatory intent by Defendants.

Defendants argue that Plaintiff does not “affirmatively state” that the video was created or

distributed by Defendants and thus cannot establish the required causal connection prong.

(Defendants’ Memorandum of Law in Support of Partial Motion to Dismiss the Consolidated

Complaint (“Def. Mem.”), Dkt. 54-1, at 10.) However, Plaintiff alleges that the photograph of his

drivers’ license in the video is the same photograph that Defendant Zhang took when he was hired.

(Compl., Dkt. 44, ¶ 41.) Plaintiff further alleges that this photograph was the same photograph

that Defendant Zhang had sent to him in messages via WeChat on September 22, 2019, after he

had left his employment at Shang Kitchen, in which she threatened that she would “report him to

ICE for working without authorization,” and that “she would ‘go to the government first,’ and

threatened [Plaintiff] with a defamation lawsuit.” (Id. ¶¶ 41, 43.) Defendants are correct that the

September 2019 WeChat messages are not themselves evidence of retaliatory animus because

Plaintiff had not yet filed his FLSA and NYLL lawsuit, and Plaintiff does not plead facts that he

had told Defendants that he planned to file such a lawsuit. See Stephan v. W. Irondequoit Cent.

Sch. Dist., 450 F. App’x 77, 80 (2d Cir. 2011) (affirming the district court’s finding of no causal

connection between the plaintiff’s protected activity and her termination where the decision to fire

her had been made five days before her protected conduct). Nonetheless, it is reasonable to infer

that Defendant Zhang was involved in the creation or distribution of the TikTok video, posted after

Plaintiff filed his first lawsuit against Defendants, because the video contained the photograph of

Plaintiff’s drivers’ license that Defendant Zhang had allegedly taken and was later sent to Plaintiff

as part of a string of threatening messages from Defendant Zhang’s phone.

With respect to temporal proximity to the adverse employment action, 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.” Sirois v. Long Island R.R. Co., 797 F. App’x 56, 60

(2d Cir. 2020); see also Gorman-Bakos v. Cornell Co-op Extension of Schenectady Cty., 252 F.3d

545, 554 (2d Cir. 2001) (collecting cases). Thus, a court should “exercise its judgment about the

permissible inferences that can be drawn from temporal proximity in the context of particular

cases.” Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009). About eight months passed between

when Plaintiff filed his FLSA and NYLL lawsuit on May 19, 2020, and when he first saw the

TikTok video on January 8, 2021. The Second Circuit has held that eight months is not too

attenuated to establish a causal connection, see Grant v. Bethlehem Steel Corp., 622 F.2d 43, 46

(2d Cir. 1980), especially where, as here, there is other evidence of retaliatory animus, see Summa

v. Hofstra Univ., 708 F.3d 115, 128–29 (2d Cir. 2013); Sealy v. State Univ. of New York at Stony

Brook, 834 F. App’x 611, 614 (2d Cir. 2020); see also Ford v. New York City Bd. of Educ., No.

19-CV-6327 (JPC) (KHP), 2022 WL 1063036, at *10 (S.D.N.Y. Apr. 8, 2022) (“While

approximately five months passed between Plaintiff’s filing of the . . . complaint and Defendant’s

commencement of [a disciplinary] proceeding, Plaintiff also alleges other examples of retaliatory

conduct throughout that five-month period . . . .”). Moreover, although Plaintiff first saw the video

on January 8, 2021, the video could have been made and distributed any time after Plaintiff filed

his FLSA and NYLL lawsuit. Thus, drawing all reasonable inferences in Plaintiff’s favor, the

Court finds that Plaintiff has sufficiently alleged a causal connection.11 Plaintiff has thus

successfully pleaded enough facts to allege a prima facie case of retaliation under both FLSA and

the NYLL.12 Accordingly, Defendants’ motion to dismiss Plaintiff’s retaliation claim is denied.

11 Defendants argue that Plaintiff cannot establish a causal connection between

Defendants’ alleged retaliatory actions and Plaintiff’s “inability to find work or stay employed.”

(Def. Mem, Dkt. 54-1, at 11.) However, such a showing is not required at this stage because

Plaintiff “has not had the benefit of discovery regarding any impact on his career prospects.”

Nunez v. Metro Learning Inst., Inc., No. 18-CV-1757 (FB) (VMS), 2019 WL 5457731, at *1

(E.D.N.Y. Oct. 24, 2019). Moreover, as discussed, Plaintiff alleges that when his subsequent

employer saw the TikTok video, he “denounced [Plaintiff] as a liar and untrustworthy in front of

his coworkers” (Compl., Dkt. 44, ¶ 54), which strongly suggests that the TikTok video allegedly

created or distributed by Defendants had a negative impact on Plaintiff’s career prospects.

12 Defendants also argue that Plaintiff’s group pleading should be rejected by this court

because “Plaintiff has failed to set forth any factual details in the Complaint to establish how, and

in what way, each of the Defendants were involved in the hiring, firing, payment of wages,

supervision, or discipline of the Plaintiff.” (Def. Mem., Dkt. 54-1, at 20.) The Court declines to

do so for the following reasons. Under the FLSA and NYLL, a person employs an individual if

the person “suffer[s] or permit[s]” the individual to work, where “person” includes a corporation.

29 U.S.C.A. § 203; N.Y. Lab. L. § 2. It is undisputed that Plaintiff was an employee of Shang

Noodle House Inc., d/b/a Shang Kitchen, the corporate Defendant; therefore, Plaintiff has

sufficiently pleaded that Shang Kitchen was involved in the alleged wrongful conduct under the

FLSA and NYLL. Plaintiff has also sufficiently stated claims against Defendants Liu and Zhang,

the individual Defendants. First, as already explained, Plaintiff has plausibly alleged that

CONCLUSION

For the reasons explained above, Defendants partial motion to dismiss is denied in its

entirety.

SO ORDERED.

/s/ Pamela K. Chen

Pamela K. Chen

United States District Judge

Dated: September 12, 2022

Brooklyn, New York

Defendant Liu was his employer, and has thus sufficiently pleaded enough facts to state claims

against Defendant Liu. Second, as just described, Plaintiff has pleaded sufficient facts alleging

Defendant Zhang’s involvement in retaliatory conduct directed against Plaintiff. In fact,

Defendants do not dispute that Plaintiff’s retaliation claims were directed against Defendant

Zhang. (Def. Mem., Dkt. 54-1, at 1.) Therefore, Plaintiff has plausibly pleaded sufficient facts

alleging all three Defendants’ involvement in his FLSA and NYLL claims.