The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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LUIS DOMINGUEZ et al.,
Plaintiffs, MEMORANDUM & ORDER
23-CV-1372 (EK)(PCG)
-against-
MEGA MART LLC, d/b/a CHESTNUT
SUPERMARKET et al.,
Defendants.
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ERIC KOMITEE, United States District Judge:
Plaintiffs are former employees of Chestnut
Supermarket in Brooklyn. They allege, among other things, that
the supermarket’s managers sexually harassed them, discriminated
against them based on race, and violated federal, state, and
city wage-and-hour laws. The market and its owner, defendant
Moshe Landau, have moved to dismiss the complaint in its
entirety. ECF No. 45. Two of the market’s managers —
defendants Joel Epstein and Menachem Abramowitz — joined that
motion. ECF No. 46.1 The moving defendants focus on plaintiffs’
federal claims, which are for (1) denial of overtime pay under
the Fair Labor Standards Act (“FLSA”); (2) racial discrimination
under 18 U.S.C. § 1981; (3) retaliation under Section 1981; and
(4) retaliation under the FLSA. They also argue that the Court
1 Defendant Yechezkel Noiman has not appeared.
should decline supplemental jurisdiction over the state- and
city-law claims.
For the following reasons, the motions to dismiss are
granted in part and denied in part.
Background
The Court draws the following allegations from the
second amended complaint. ECF No. 52. The allegations are
presumed true for purposes of this motion. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).2
A. The Parties
The plaintiffs are six former Chestnut employees: Luis
Dominguez, Teodoro Moreno, Francisca Orduna, Emmanuel Quintana,
Erasto Crisantos, and Flor Solis. They began working at the
store’s Myrtle Avenue location at various times between January
2013 and the “[s]ummer of 2021.” Compl. ¶¶ 38-43. The
plaintiffs are Hispanic and, except for Dominguez (who hails
from Ecuador), natives of Mexico. Id.
Chestnut Supermarket is a “thriving Kosher retail
chain supermarket” headquartered in Brooklyn. Id. ¶¶ 44-45, 51-
52. Defendant Landau is the market’s “[p]resident, founder,
owner, and principal,” while defendant Epstein is the store’s
general manager. Id. ¶¶ 58, 72. Defendant Noiman and defendant
2 Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits all citations, footnotes, and internal
quotation marks.
Laundau jointly own and operate a deli counter at the
supermarket. Id. ¶ 80. Landau, Epstein, and Noiman jointly
exercised “supervisory or managerial control” over the
plaintiffs. Id. ¶¶ 63, 73, 75, 85-86. The complaint implies
that defendant Abramowitz worked at Chestnut as a “[m]anager,”
see, e.g., id. ¶ 120, but never specifies his exact role or
powers.
B. The Challenged Conduct
The central incident in the complaint occurred on
April 5, 2022. The plaintiffs allege that Epstein locked three
employees — Quintana, Crisantos, and Orduna — in his office, id.
¶¶ 193, 210, falsely accused them of stealing from a customer,
id. ¶¶ 191, 197-98, 201-04, 209-11, forced them to take off
their clothes, id. ¶¶ 188, 199, and assaulted and battered them.
Id. ¶¶ 221-26. The allegations can be chronologically divided
into three parts: (1) allegations of workplace misconduct before
the April 5 incident; (2) the April 5 incident; and
(3) allegations of retaliation that occurred after the incident.
1. Pre-April 2022 Conduct: Wage-and-Hour
Allegations3
During their “entire tenure” at Chestnut, the
plaintiffs worked overtime: “Dominguez worked approximately 45
3 Dominguez left Chestnut in May 2022, so some of his allegations of
workplace misconduct extend beyond April 2022. For the sake of simplicity,
the Court addresses them in this section.
hours a week” and as many as 70 hours per week during Jewish
holidays, id. ¶¶ 114-15; “Moreno worked approximately 64 hours a
week” and as many as 70 hours a week during Jewish holidays, id.
¶ 137; “Orduna worked approximately 55 hours a week,” id. ¶ 148;4
Crisantos “approximately 40-50 hours,” id. ¶ 41; and Solis
“approximately 90-115 hours,” id. ¶ 105.5 They also allege that
they were never provided wage statements or wage notices. Id.
¶¶ 108, 116, 131, 139, 150. And at least one of them
(Dominguez) alleges that, rather than pay him in cash, Chestnut
paid him with checks that “customers tendered to Chestnut to pay
for their accounts . . . [and that] were not written to
Plaintiff Dominguez.” Id. ¶¶ 123-25.
2. Pre-April 2022 Conduct: Discrimination
Allegations
Furthermore, all plaintiffs claim that defendants adopted
racially discriminatory workplace practices. For example,
Dominguez, Quintana, and Crisantos allege that they were
required to eat their lunch in the basement, while non-Hispanic
employees were permitted to eat in the market itself. Id.
¶¶ 167, 169. Indeed, Dominguez alleges that when he tried to
eat in the market in the summer of 2021, an unnamed manager
4 Elsewhere, plaintiffs plead that Orduna worked “approximately 55-70
hours a week.” Compl. ¶ 40. Whether this too was during Jewish holidays
they do not say. Regardless, plaintiffs allege that she worked at least 55
hours per week throughout her tenure at Chestnut.
5 The complaint identifies most plaintiffs by two surnames, as is
common, but then defines each plaintiff’s name as indicated above. This
order follows the complaint’s nomenclature.
threw his food in the garbage and screamed at him to go to the
basement. Id. ¶ 169. Additionally, the complaint alleges that
Epstein enforced an “English Only rule” that applied only to
Hispanic employees, and once remarked to Orduna that he
“hate[d]” it when she spoke in Spanish. Id. ¶ 171.
Finally, plaintiffs allege that defendants sexually
harassed them. Epstein would allegedly “run his hands over
[Orduna’s and Solis’s] bottoms when passing them,” or ask them
to give him massages. Id. ¶¶ 172, 175. Epstein and Abramowitz
would also “make kissing gestures” toward Dominguez and grope
his backside. Id. ¶¶ 181-83. Solis alleges that this
harassment, combined with the alleged wage violations, resulted
in her constructive discharge in July 2021. Id. ¶ 111.
3. The April 5 Incident
Come April 2022, every plaintiff except Solis was
still working at Chestnut. But the complaint alleges that on
April 5, 2022, an incident occurred that resulted in Epstein
firing Orduna and “constructively discharge[ing]” Crisantos,
Quintana, and Moreno. Id. ¶¶ 248-49, 253-55.
That afternoon, Abramowitz escorted Quintana to the
store’s management office, locking the door behind them. Id. ¶¶
186-88. Epstein then shouted at Quintana, “Where is the money
you stole?” id. ¶ 191, and demanded that Quintana strip off his
clothes and turn his pockets inside out. Id. ¶¶ 188, 190. A
store employee then brought in Crisantos, who received the same
treatment. Id. ¶¶ 197, 201. Epstein claimed that the two
employees had conspired to steal $1,400 that Epstein had given
to a female customer. Id. ¶ 203. According to Epstein, the
customer left the money in the bathroom by mistake, and security
footage showed that Cristanos and Quintana had been in the
bathroom after the customer left the store. Id. ¶ 204.
Landau’s son-in-law then escorted Orduna to the
management office. Id. ¶¶ 208-10. Epstein demanded to know
where the money was, and he ordered Orduna to undress in front
of her male supervisors and co-workers. Id. ¶¶ 211, 213-14.
Orduna refused, fearing she would “be beaten or raped.” Id.
¶ 214. Epstein said that if the three plaintiffs did not
cooperate, he could call the police or immigration authorities
and have them deported. Id. ¶¶ 215-17. Orduna tried to record
Epstein on her phone, but Epstein grabbed her wrist, pried the
phone from her hands, and handed it to a store manager. Id.
¶¶ 219-26.
After screaming that the three plaintiffs were
“nothing” and “rats,” Epstein unlocked the door and let them
leave. Id. ¶ 225. Orduna called the NYPD to report that “she
was assaulted and falsely imprisoned” by the defendants. Id.
¶ 231. Before uniformed police arrived, three men arrived who
identified themselves as police but were allegedly members of
the Shomrim (“a local neighborhood volunteer group”). Id. ¶¶ 9,
234. Landau’s son-in-law demanded that Orduna speak with the
Shomrim, though Moreno insisted that he “leave her alone.” Id.
¶¶ 239-41. Orduna eventually spoke with the Shomrim, who
demanded that she accept money in exchange for “shut[ting] her
mouth.” Id. ¶¶ 241-45.
Orduna refused to accept a payoff, and Epstein fired
her. Id. ¶¶ 249, 251. Epstein also screamed at Cristanos and
Quintana to return to work, which they did not do. Instead,
when NYPD officers arrived, all three former employees gathered
their belongings and left. Id. ¶ 251. The complaint alleges
that both Crisantos and Quintana were constructively discharged,
having been “falsely accused of crimes they did not commit,
imprisoned[,] and threatened with deportation” by Epstein. Id.
¶¶ 248, 251. Although Epstein did not take any immediate action
against Moreno, he too alleges he was constructively discharged
because his challenge to the Shomrim “made him a target for the
[d]efendants, and he knew that he was not safe at [Chestnut]
anymore.” Id. ¶ 253.
4. Retaliation After April 2022
Shortly after the incident, Epstein asked Dominguez —
the sole plaintiff to remain at Chestnut — if he would “support
the [s]tore” if its now-former employees filed a lawsuit. Id.
¶ 259. He responded that if “called to testify” he would say
that Epstein had touched Orduna in an aggressive way. Id.
¶¶ 263-67. He was fired a week later. Id. ¶ 265.
According to the complaint, this firing was one of
several retaliatory actions that defendants took to force the
plaintiffs to drop their police complaints and / or lawsuit:
In February 2023, plaintiffs’ counsel “received an email
from an attorney who held himself out to represent all
Defendants but never filed a notice of appearance in this
matter.” Id. ¶ 286. The sender allegedly threatened to
file “a complaint against Plaintiffs in retaliation for
filing the instant lawsuit.” Id.
Shortly after April 5, an “older Orthodox man who said he
was sent by . . . Epstein” offered Orduna $50,000 to
withdraw her police complaint. Id. ¶ 280. During the
remainder of April (and again in June), Orduna received
“several” telephone calls and texts from Landau and
Epstein asking to meet with her. Id. ¶ 280.
In March 2023, shortly after a New York Post article
about the filing of this lawsuit came out, Epstein told
the NYPD that Dominguez had engaged in sexual misconduct
in the store. Id. ¶¶ 291-92. The resulting criminal
case remains pending. Id. ¶ 291.
Epstein filed a similar sexual harassment complaint
against Crisantos, though the resulting case was
dismissed for lack of evidence. Id. ¶¶ 303-07.
In June 2023, Quintana was “repeatedly contacted by
individuals . . . offering him his job back plus $3,000
if he would drop the lawsuit.” Id. ¶¶ 294-97.
Legal Standard
To survive a motion to dismiss under Rule 12(b)(6), a
plaintiff must allege sufficient facts, accepted as true, to
“state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is
plausible if the plaintiff pleads supporting facts that “allow[]
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “A
formulaic recitation of the elements of a cause of action” will
not suffice, nor will “naked assertions devoid of further
factual enhancement.” Id. A reviewing court must “draw all
reasonable inferences in favor of the non-moving party.”
Vietnam Ass’n for Victims of Agent Orange v. Dow Chem. Co., 517
F.3d 104, 115 (2d Cir. 2008).
Discussion
The defendants train their arguments on the four
federal claims. The Court examines each in turn, before
addressing plaintiffs’ argument that it should decline
supplemental jurisdiction over the state- and city-law claims.
A. The FLSA Overtime Claim6
The defendants first move to dismiss the FLSA overtime
claims brought by Dominguez, Moreno, Orduna, and Solis. That
motion is denied, and the claims will proceed.
To bring an FLSA overtime claim, a plaintiff must
allege (1) “an employee-employer relationship,” (2) work
6 In their brief, plaintiffs state that their “FLSA claims arise under
29 U.S.C. §§ 206 and 207, which govern minimum wage and overtime
compensation.” Pls.’ Opp’n 8, ECF No. 48. But plaintiffs only pleaded a
claim under Section 207 (overtime), see Compl. ¶ 386, and they may not amend
their complaint in their opposition to the motion to dismiss. Wright v.
Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998).
“involv[ing] some kind of interstate activity,” and (3) “the
hours worked for which [overtime] wages were not received.”
Zhong v. August August Corp., 498 F. Supp. 2d 625, 628 (S.D.N.Y.
2007). The defendants argue that the second and third elements
have not been satisfied. The Court disagrees.
1. Plaintiffs Have Plausibly Alleged That Chestnut
Is Covered Under the FLSA
An enterprise is covered under the FLSA if it
satisfies two criteria. First, its “annual gross volume of
sales made or business done” must exceed $500,000, exclusive of
“excise taxes at the retail level that are separately stated.”
Jian Long Li v. Li Qin Zhao, 35 F. Supp. 3d 300, 305 (E.D.N.Y.
2014) (citing 29 U.S.C. § 203(s)(1)(A)). Second, it must have
“employees engaged in commerce or in the production of goods for
commerce, or . . . employees handling, selling, or otherwise
working on goods or materials that have been moved in or
produced for commerce by any person.” Id. This latter
criterion is “rarely difficult to establish,” because it
requires showing only that “two or more employees have
handled . . . materials that have moved in . . . [interstate]
commerce.” Jacobs v. N.Y. Foundling Hosp.., 577 F.3d 93, 99 n.7
(2d Cir. 2009). Indeed, “virtually every enterprise in the
nation . . . is covered by the FLSA.” Id.
Plaintiffs have alleged that Chestnut’s “annual gross
volume of sales made or business done” exceeded $500,000.
Compl. ¶ 51. This is enough at the pleading stage. See, e.g.,
Fermin v. Las Delicias Peruanas Rest., Inc., 93 F. Supp. 3d 19,
33 (E.D.N.Y. 2015) (allegation that volume of business exceeded
$500,000 sufficient even where complaint did not “provide[] any
additional facts”); Boutros v. JTC Painting and Decorating
Corp., 989 F. Supp. 2d 281, 285 (S.D.N.Y. 2013) (same);
Rodriguez v. Almighty Cleaning, Inc., 784 F. Supp. 2d 114, 121
(E.D.N.Y. 2011) (same).
Plaintiffs also plausibly plead that they handled
goods that moved in or were produced for interstate commerce.
They worked as stockers, cashiers, and / or deli counter
employees. Compl. ¶¶ 98, 103, 112, 134, 146, 157. The
conclusion readily follows that they “regularly handled” “food,
beverage[s], and other commercial products.” Id. ¶ 52. And the
store was a “thriving Kosher retail chain supermarket” with an
in-house deli and eating area. Id. ¶¶ 51, 80, 167. Courts in
this district have found that similar businesses plausibly used
goods that moved in interstate commerce. See, e.g., Cardoza v.
Mango King Farmers Mkt. Corp., No. 14-CV-3314, 2015 WL 5561033,
at *4 (E.D.N.Y. Sept. 1, 2015), report and recommendation
adopted, 2015 WL 5561180 (E.D.N.Y. Sept. 21, 2015) (“It is
logical to infer that a supermarket’s products and produce would
have originated outside of New York.”); Fermin, 93 F. Supp. 3d
at 33 (holding it was “reasonable to infer that the myriad goods
necessary to operate a Peruvian restaurant . . . do not
exclusively come from New York State”).
2. Plaintiffs Have Plausibly Alleged the Hours for
Which They Did Not Receive Overtime Wages
An FLSA plaintiff bringing an overtime claim must
“sufficiently allege [forty] hours of work in a given workweek
as well as some uncompensated time in excess of the [forty]
hours.” Lundy v. Cath. Health Sys. of Long Island Inc., 711
F.3d 106, 114 (2d Cir. 2013). One way a plaintiff can satisfy
this standard is by “alleg[ing] that their regularly scheduled
workweek for a given period of time included more than forty
hours of work, so that they were eligible for overtime during
every week in which they worked their regular schedule.”
Herrera v. Comme des Garcons, Ltd., 84 F.4th 110, 117 (2d Cir.
2023). By contrast, Lundy’s “pleading standard is unmet if all
that plaintiffs allege is that at some undefined period in their
employment they worked more than forty hours in a single week.”
Id. at 117-18.
Dominguez, Moreno, Orduna, and Solis each meet this
pleading standard. All allege that they worked “excess” hours
for which they did not receive overtime during their “entire
tenure” at Chestnut. Compl. ¶¶ 105, 114, 137, 148, Dominguez
worked “approximately 45-70 hours a week,” id. ¶¶ 38, 114-115;
Moreno worked “approximately 64-70 hours a week,” id. ¶¶ 39,
137; Orduna worked “approximately 55-70 hours a week,” id.
¶¶ 40, 148; and Solis worked “approximately 90-115 hours a
week,” id. ¶¶ 43, 105.
Defendants insist that plaintiffs must allege the
specific workweeks for which they were not paid overtime.
Chestnut & Landau Br. 3, ECF No. 45-4. The Second Circuit has
squarely held otherwise. It is certainly true that FLSA
plaintiffs cannot simply allege that they worked more than forty
hours “in some or all weeks,” Dejesus v. HF Mgmt. Servs., LLC,
726 F.3d 85, 89 (2d Cir. 2013), or that they “regularly worked
hours both under and in excess of forty per week,” Nakahata v.
New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 199-
201 (2d Cir. 2013). Such allegations do not “support a
reasonable inference that they worked more than forty hours in a
given week.” Id. at 201 (emphasis added). But here, the four
FLSA overtime plaintiffs allege that they worked a range of
hours in excess of forty during their entire tenure at Chestnut.
That is sufficient.
In sum, Dominguez, Moreno, Orduna, and Solis have
plausibly alleged FLSA overtime claims.
B. The Section 1981 Discrimination Claim
Plaintiffs advance two theories of race discrimination
under Section 1981: hostile work environment and disparate
treatment. See Littlejohn v. City of New York, 795 F.3d 297,
306 (2d Cir. 2015) (recognizing each theory under Section 1981).
Defendants move (unsuccessfully) to dismiss both claims.
1. Plaintiffs Have Alleged a Plausible Hostile Work
Environment Claim
To plead a hostile work environment under Section
1981, a plaintiff must show that the defendant’s conduct is (1)
“objectively severe and pervasive,” (2) “creates an environment
that the plaintiff subjectively perceives as hostile and
abusive,” and (3) “creates such an environment because of the
plaintiff’s [race].” Patane v. Clark, 508 F.3d 106, 113 (2d
Cir. 2007) (hostile work environment standard under Title VII);
see also Littlejohn, 795 F.3d at 320 (same standard under
Section 1981). The parties do not dispute the second element,
so we address only the first and third.
“[W]hether a particular work environment is
objectively hostile is necessarily a fact-intensive inquiry.”
Patane, 508 F.3d at 114. A court must “consider the totality of
the circumstances, including the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.”
Littlejohn, 795 F.3d at 321.
At this stage, the plaintiffs’ allegations are
sufficient. The complaint first alleges that defendants imposed
an “English-only” policy on Hispanic employees. Compl. ¶¶ 77,
171. To be sure, “the enforcement of an English-only policy, in
and of itself, does not constitute a hostile work environment on
the basis of race.” Barbosa v. Continuum Health Partners, Inc.,
716 F. Supp. 2d 210, 220 (S.D.N.Y. 2010).7 Here, however, the
complaint alleges that the English-only rule was “applied only
to Hispanics,” suggesting that other employees were permitted to
speak other languages. Compl. ¶ 171. This allegation may be
relatively sparse, given that the complaint does not identify
those other employees or other languages. But it suggests
hostility more plausibly when combined with the allegation that
Epstein told plaintiffs speaking Spanish that he “hate[d] that
shit.” Id.
7 Plaintiffs invoke Velasquez v. Goldwater Memorial Hospital, 88 F.
Supp. 2d 257 (S.D.N.Y. 2000) to argue that an English-only policy may give
rise to a hostile work environment claim if the employer instituted the
policy to discriminate against people of a specific national origin. Pl.’s
Supp. Br. 2-3, ECF No. 53. But Velasquez was a Title VII case. And while
Title VII proscribes national-origin discrimination, Section 1981 does not.
Amaya v. Ballyshear LLC, 295 F. Supp. 3d 204, 223 (E.D.N.Y. 2018). Thus,
Velasquez is inapposite. The plaintiffs also argue that policies prohibiting
employees from conducting personal matters in their own language during non-
working hours can give rise to a hostile work environment claim. Plaintiffs
are correct. See Levitant v. City of New York Human Res. Admin., 625 F.
Supp. 2d 85, 99 (E.D.N.Y. 2008). But this point is irrelevant as well,
because the complaint never alleges that the English-only policy was enforced
during non-working hours.
The hostile-work-environment allegations gain force
from the claim that defendants segregated the Chestnut lunch
hour, forcing Hispanic employees to eat in the basement while
permitting non-Hispanic employees to eat in the store itself.
Id. at ¶¶ 167-69. Unsurprisingly, courts have consistently held
that racially segregated workplace facilities will support a
hostile work environment claim. See, e.g., Johnson v. Angels,
125 F. Supp. 3d 562, 569 (M.D.N.C. 2015) (racially segregated
bathrooms); Firefighters Inst. for Racial Equality v. City of
St. Louis, 549 F.2d 506, 514-15 (8th Cir. 1977) (use of
firehouse kitchen by racially segregated “supper club” of on-
duty firefighters).8
Finally, plaintiffs allege that defendants threatened
Quintana, Crisantos, and Orduna with deportation “back to
Mexico” on at least one occasion (April 5). Compl. ¶¶ 7, 18,
215-17. These threats could have contributed to a work
atmosphere permeated by fear and distrust between non-Hispanic
employers and Hispanic employees. See Tenecora v. Ba-Kal
8 Regardless of whether it is pleaded as a hostile work environment
claim or some other claim under Section 1981 and / or Title VII, the
“establishment and use” of segregated facilities “is [clearly] prohibited
discrimination.” 2 EEOC Compl. Man. § 618.1 ¶ 3401 (discussing the
Commission’s view under Title VII); see also Hinds v. PSEG Long Island LLC,
No. 23-CV-08701, 2026 WL 266010, at *9 (E.D.N.Y. Feb. 2, 2026) (allegations
that plaintiff was forced to work outside in the heat and use a “distant
bathroom” while his “less senior, white, colleagues . . . were permitted to
work inside and use a nearby bathroom” supported disparate treatment claim).
Restaurant Grp., No. 18-CV-7311, 2021 WL 424364, at *4-5
(E.D.N.Y. Feb. 8, 2021).
Thus, at this stage — taking the complaint as a whole
— the plaintiffs have plausibly alleged racial harassment that
would lead a reasonable employee to “find the conditions of her
employment altered for the worse.” Patane, 508 F.3d at 113.9
2. Plaintiffs Have Alleged a Plausible Disparate
Treatment Claim
To plead a disparate treatment claim under Section
1981, a plaintiff must allege (1) “that she is a member of a
protected class,” (2) “that she was qualified for the position
she [held],” (3) “that she suffered an adverse employment
action,” and (4) [that she] can sustain [the] minimal burden of
showing facts suggesting an inference of discriminatory
motivation.” Littlejohn, 795 F.3d at 311-12. Defendants
challenge only the first and fourth elements.
Defendants first argue that plaintiffs have failed to
identify a “coherent protected class” of which they are members.
Chestnut & Landau Br. 14. Specifically, defendants point to
certain allegations of disparate treatment based on plaintiffs’
national origin and immigrant and non-Jewish identities. Id.
9 Plaintiffs cite Cruz v. Coach Stores, Inc., 202 F.3d 560 (2d Cir.
2000) for the proposition that defendants’ alleged sexual harassment should
also factor into the hostile work environment analysis. Pls.’ Br. 20-21, ECF
No. 48. But Cruz was a Title VII case. And Section 1981 does not apply to
sexual harassment. Amaya, 295 F. Supp. 3d at 223.
Regardless, plaintiffs have also plausibly alleged that they are
members of a class protected under Section 1981 — people of
Hispanic ethnicity, Compl. ¶ 404; Vill. of Freeport v. Barrella,
814 F.3d 594, 617 (2d Cir. 2016) (Hispanic ethnicity cognizable
under Section 1981) — and that they faced discrimination on that
basis. See, e.g., Compl. ¶¶ 13 (Hispanic employees assumed to
be thieves), 77 (English-only rule applied only to Hispanic
employees), 167-69 (both Mexican and Ecuadorian — but no non-
Hispanic — employees sent to eat in basement).
Defendants also contend that plaintiffs have not
pleaded allegations sufficient to support an inference of
discriminatory intent because they have not provided sufficient
“detail to compare the treatment of plaintiffs to those outside
the protected class.” Chestnut & Landau Br. 17. They are
correct that a “plaintiff may demonstrate circumstances giving
rise to an inference of discrimination by alleging that he was
treated less favorably than similarly situated employees of
other races,” Brown v. Daikin Am. Inc., 756 F.3d 219, 229 (2d
Cir. 2014), and that — to do so — the plaintiff must “identify
at least one comparator.” Sosa v. New York City Dep’t of Educ.,
368 F. Supp. 3d 489, 514 (E.D.N.Y. 2019) (collecting cases).
Defendants are also correct that, here, plaintiffs do not
identify any specific comparator, instead offering conclusory
allegations that non-Hispanic employees were treated
differently. E.g., Compl. ¶ 117.
But an inference of discrimination does not
necessarily depend on allegations that employees outside the
protected group were treated more favorably. It can also “arise
from circumstances including, but not limited to, the employer’s
criticism of the plaintiff’s performance in ethnically degrading
terms; or its invidious comments about others in the employee’s
protected group; or the sequence of events leading to the
plaintiff’s discharge.” Littlejohn, 795 F. 3d at 312.
Here, plaintiffs “allege a continuous, escalating
pattern of conduct” that was “serious enough to constitute a
hostile work environment[,] and finally culminated in” more
concrete actions like certain plaintiffs being accused of theft
and (constructively) terminated. Gregory v. Daly, 243 F.3d 687,
697 (2d Cir. 2001), as amended (Apr. 20, 2001). They also
allege certain comments by Chestnut managers that could
plausibly be construed as ethnically degrading. For example,
while questioning plaintiffs Orduna, Quintana, and Crisantos
about the theft, Epstein told them, “You are rats!” — a “mantra”
that plaintiffs had allegedly “heard many times before
throughout their tenure.” Compl. ¶ 225. And Epstein not only
implemented an English-only policy that he only applied to
Hispanic employees; he also explicitly told them, “Don’t speak
Spanish. . . . I hate that shit.” Id. ¶ 77. All told, those
allegations are sufficient to meet the “minimal burden” at the
motion to dismiss stage. Littlejohn, 795 F.3d at 311-12.
C. The FLSA Retaliation Claim
Next, defendants move to dismiss plaintiffs’
retaliation claims under the FLSA. The Court concludes that the
claims should proceed as to Quintana, Crisantos, and Dominguez.
The remaining plaintiffs’ FLSA retaliation claims are dismissed.
To state a claim for FLSA retaliation, a plaintiff
must allege “(1) participation in a protected activity known to
the defendant; (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).
1. Participation in a Protected Activity
Under the FLSA, “protected activity” will be found in
an employee complaint “sufficiently clear and detailed for a
reasonable employer to understand it, in light of both content
and context, as an assertion of rights protected by the statute
and a call for their protection.” Greathouse v. JHS Sec. Inc.,
784 F.3d 105, 107 (2d Cir. 2015).
Here, the plaintiffs point to three potential
protected activities: the April 5 police report, Dominguez’s
stated intent to testify about the defendants’ alleged wage
theft, and the decision to file the instant lawsuit. See Compl.
¶ 231 (police complaint); ¶ 285 (Dominguez’s intent to testify);
¶ 288 (filing of lawsuit).
The filing of the April 5 police report does not
qualify as protected activity under the FLSA. The complaint
alleges no facts suggesting that Orduna mentioned any conduct
proscribed by the FLSA. Rather, Orduna allegedly reported that
she had been “assaulted and falsely imprisoned” by the
defendants. Id. ¶ 231. Bad behavior, to be sure, but not
protected activity: as alleged, no employer would reasonably
have understood this as an “assertion of rights protected by” or
“a call for [the] protection” of the FLSA, rather than the
criminal or common law. Greathouse, 784 F.3d at 107.
Plaintiffs find more purchase, however, in the other
two protected activities alleged. Filing an FLSA lawsuit — as
plaintiffs did here, Compl. ¶ 288 — is protected activity.
Mullins, 626 F.3d at 54. So is stating a clear intent to
testify in an FLSA proceeding. Id. ¶ 285 (“Defendants learned
for the first time that [Dominguez] would testify . . .
regarding wage theft.”); see Scalia v. Sarene Servs., Inc., 740
F. Supp. 3d 251, 290 (E.D.N.Y. 2024) (employees engage in
protected activity when they are “reasonably anticipated to
share information” with the Department of Labor as part of
ongoing FLSA litigation); cf. Uronis v. Cabot Oil & Gas Corp.,
49 F.4th 263, 275 (3d Cir. 2022) (employee was engaged in
protected activity when employer was aware he was a “putative
[FLSA] collective member”). Accordingly, every plaintiff has
alleged participation in at least one (and in Dominguez’s case,
two) protected activities under the FLSA.
2. FLSA-Driven Adverse Employment Action
A plaintiff bringing an FLSA retaliation claim must
also plead “an employment action disadvantaging the plaintiff;
and . . . 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 charges” under the FLSA. Id.
The term “employment action” is somewhat misleading,
however, because an employer can also be liable for retaliation
that occurs after a plaintiff’s employment has ended. The
Supreme Court has squarely held that Title VII’s antiretaliation
provision covers former employees. See Robinson v. Shell Oil
Co., 519 U.S. 337, 346 (1997). And because the Second Circuit
applies the same standard for retaliation under the FLSA as it
does under Title VII, see, e.g., Scalia, 740 F. Supp. 3d at 282
(citing Mullins, 626 F.3d at 53), courts in this circuit have
extended Robinson to the FLSA retaliation context. See, e.g.,
Li v. Oliver King Ents., Inc., No. 14-CV-9293, 2015 WL 4643145,
at *3 (S.D.N.Y. Aug. 4, 2015) (collecting cases).
But the “scope of [actionable] post-employment conduct
that does not have a direct connection to the former employee’s
employment prospects [is] . . . relatively narrow.” Id. at *3;
see also Alvarado v. GC Dealer Servs. Inc., 511 F. Supp. 3d 321,
359 (E.D.N.Y. 2021).10 Courts in this circuit have consistently
recognized only two other forms of actionable post-employment
retaliation under the FLSA: filing “bad faith litigation”
against former employees, and threatening to report former
employees to immigration authorities. Porter v. MooreGroup
Corp., No. 17-CV-7405, 2020 WL 32434, at *11 (E.D.N.Y. Jan. 2,
2020) (collecting cases).
a. Solis, Moreno, and Orduna Do Not Plausibly
Allege an Adverse Employment Action
Three plaintiffs allege either no retaliatory action,
or retaliatory actions that fall outside the “relatively narrow”
range of proscribed conduct. Solis and Moreno do not allege any
specific retaliatory action at all. Meanwhile, Orduna alleges
that she received “several unwanted and unanswered” calls from
10 The court in Alvarado was analyzing a retaliation claim under the
New York Labor Law (“NYLL”). But NYLL and FLSA claims “are analyzed using
the same standards at the pleading stage.” Rosenbaum v. Meir, 658 F. Supp.
3d 140, 150 (E.D.N.Y. 2023).
Epstein and Landau between April and June 2022, even after
plaintiffs’ counsel asked them to stop.11 Compl. ¶¶ 280-84.
The alleged phone calls do not qualify as adverse
employment actions. Orduna never alleges that the calls or
messages even mentioned the instant lawsuit. Thus, it is
unclear that the calls were connected to a protected activity
under the FLSA. But leaving that complication aside, Orduna
identifies no authority suggesting that repeated calls or text
messages — without more — qualify as actionable retaliation
under the FLSA. Nor does she distinguish cases that suggest
otherwise. See, e.g., Santos v. ET&K Foods, Inc.,
No. 16-CV-7107, 2017 WL 9256490, at *5 (E.D.N.Y. June 27, 2017)
(allegation that defendants called plaintiff ten times before
plaintiff filed her complaint insufficient to plead FLSA
retaliation); Jian Zhong Li, 2015 WL 4643145, at *4 (allegation
that defendant “made a series of telephone calls and sent
several text messages to Plaintiff before visiting the vicinity
of Plaintiff’s home without invitation” insufficient to plead
retaliation claim). Thus, the alleged unwanted calls and
messages to Orduna do not constitute adverse employment action
under the FLSA.
11 Orduna also alleges that an unnamed man offered her $50,000 to
withdraw her police complaint. See Compl. ¶ 280. But as already noted,
Orduna’s filing of the police complaint was not protected by the FLSA.
Finally, the complaint also makes two broad
allegations about adverse employment actions suffered by every
plaintiff, which are also insufficient. First, plaintiffs
allege that an attorney claiming to represent the defendants
emailed their counsel and said he would file a retaliatory
lawsuit if this lawsuit went ahead. Compl. ¶ 286. Plaintiffs’
counsel did not attach this email to the complaint, so the Court
cannot determine whether its language is “also susceptible of an
alternative [non-retaliatory] reading.” Khurana v. Wahed
Invest, LLC, No. 18-CV-233, 2019 WL 1430433, at *16 (S.D.N.Y.
Feb. 26, 2019), report and recommendation adopted, 2019 WL
1432589 (S.D.N.Y. Mar. 29, 2019) (declining to find email to
plaintiff’s counsel was plausibly retaliatory under NYLL where
full text not provided). More importantly, plaintiffs never
allege that defendants actually initiated retaliatory
litigation. Second, the complaint claims that every plaintiff
was “harass[ed] . . . in person, via phone, electronic
communication, [and] through intermediaries.” Compl. ¶ 412.
This allegation is insufficient for the reasons discussed above.
b. Dominguez, Crisantos, and Quintana Plausibly
Allege an Adverse Employment Action
Three other plaintiffs, however, do plead adverse
employment actions that support their FLSA retaliation claims.
Both Dominguez and Crisantos allege that the
defendants filed baseless police reports accusing them of sexual
harassment as retaliation for the instant lawsuit. Dominguez
alleges that in March 2023, three days after the New York Post
published an article about the initial complaint in this case,
the defendants called the NYPD and accused him of engaging in
“sexual misconduct” at the store beginning in June 2022. Id.
¶¶ 289-93. Similarly, Crisantos alleges that after he refused
to drop this lawsuit near the end of 2023, Epstein contacted the
NYPD and accused him of sexual assault. Id. at ¶¶ 301-03. The
criminal case against Crisantos has been dismissed for
insufficient evidence, while the case against Dominguez is still
pending. Id. at ¶¶ 291, 303.
As already noted, filing or initiating baseless legal
actions against a former employee can qualify as post-employment
retaliation. See Rodriguez v. Nat’l Golf Links of Am.,
No. 19-CV-7052, 2020 WL 3051559, at *4 (E.D.N.Y. June 8, 2020)
(collecting cases). “To sustain a claim of retaliation based on
the filing of a lawsuit or counterclaim, the plaintiff must
allege both that the lawsuit or counterclaim was
filed . . . with a retaliatory motive and that it was filed
without a reasonable basis in fact or law.” Kim v. Lee, 576 F.
Supp. 3d 14, 31 (S.D.N.Y. 2021).12
Dominguez’s allegations satisfy this two-part
standard. Dominguez alleges that Epstein contacted the police
mere days after the complaint in this case was filed, Compl. ¶¶
289-90, and that temporal nexus makes it plausible that the
complaint was filed with a retaliatory motive. Cf. Vega v.
Hempstead Union Free Sch. Dist., 801 F.3d 72, 92 (2d Cir. 2015)
(plaintiff sufficiently alleged Title VII retaliation based on
two-month gap between protected conduct and alleged adverse
employment action). Moreover, Dominguez plausibly alleges that
Epstein’s complaint “lacked a reasonable basis in fact.” Kim,
576 F. Supp. 3d at 31. Epstein claims that Dominguez began
sexually harassing people in June 2022 — one month after
Dominguez was fired. See Compl. ¶¶ 38, 290. Thus, Dominguez
has plausibly alleged that Epstein’s police report — and the
criminal case it initiated — was both retaliatory and frivolous.
Crisantos’ allegations also satisfy the standard
outlined in Kim. The complaint against Crisantos was filed
12 Not all courts have adopted this two-part standard. They are split
on whether a retaliatory lawsuit must also be frivolous to fall within the
ambit of the FLSA’s anti-retaliation provision. See Soto v. Miss Laser Inc.,
No. 19-CV-4745, 2021 WL 7287304, at *5-6 (E.D.N.Y. Mar. 16, 2021) (collecting
cases on both sides). And the Second Circuit has not resolved this split.
Kim, 2023 WL 2317248, at *3 n.5. However, the allegations in this case are
sufficient even under the stricter two-part standard.
within weeks of him declining to drop this lawsuit. Again, this
temporal proximity makes it plausible that the complaint was
retaliatory. See Vega, 801 F.3d at 92. And the criminal case
against Crisantos was ultimately dropped for lack of evidence,
which makes it plausible that it lacked a reasonable basis in
fact or law. See Nunez v. Metro. Learning Inst., Inc., No. 18-
CV-1757, 2019 WL 5457731, at *2 (E.D.N.Y. Oct. 24, 2019) (“The
dismissal of [a] state court action, at the very least, makes it
plausible that the lawsuit was baseless.”).
As for Quintana, he alleges that four months after
this lawsuit was filed, both Epstein and men alleged to be his
agents approached him at his home and “pressured and threatened”
him to drop this suit. Compl. ¶¶ 297, 299. Though these
allegations are somewhat thin, the Court cannot say at this
stage that it is implausible that such behavior would dissuade a
reasonable employee in Quintana’s position from pursuing his
FLSA rights. Stih v. Rockaway Farmers Mkt., Inc., No. 22-CV-
3228, 2023 WL 2760492, at *6 (E.D.N.Y. Apr. 3, 2023).
In sum, the FLSA retaliation claims brought by
Dominguez, Crisantos, and Quintana may proceed, while the claims
brought by the remaining plaintiffs must be dismissed.
D. The Section 1981 Retaliation Claim
Defendants also move to dismiss plaintiffs’
retaliation claims under Section 1981. Here, the Court agrees,
except as to Crisantos.
The elements of a retaliation claim under Section 1981
are the same as those under the FLSA: “(1) participation in a
protected activity; (2) that the defendant knew of the protected
activity; (3) an adverse employment action; and (4) a causal
connection between the protected activity and the adverse
employment action.” Littlejohn, 795 F. 3d 297, 316; see also
id. at 315 (Section 1981 retaliation claims are “analyzed
pursuant to Title VII principles and the McDonnell Douglas
burden-shifting evidentiary framework.”). But whereas
retaliation is cognizable under the FLSA when it is in response
to a plaintiff’s attempt to seek the FLSA’s protections,
“retaliation claims are . . . cognizable under § 1981 where the
allegations provoking the retaliation involved racial
discrimination.” Moore v. Consol. Edison Co., 409 F.3d 506, 508
n.2 (2d Cir. 2005).
Plaintiffs never allege that they complained about
racial discrimination at any point before filing their first
amended complaint in August 2023. ECF No. 32; see Albert v.
Carovano, 851 F.2d 561, 571-72 (2d Cir. 1988) (Section 1981
applies only to racial discrimination). And the only
retaliatory action — as described in the preceding section —
that postdates the filing of the amended complaint is Epstein’s
complaint against Cristanos for sexual harassment.
Accordingly, Crisantos’ Section 1981 retaliation claim
may proceed, but the other plaintiffs’ claims are dismissed.
E. Supplemental Jurisdiction
Along with their four federal claims, the plaintiffs
have lodged twenty more claims under state and city law. Compl.
¶¶ 308-428. The Court may only exercise supplemental
jurisdiction over those claims if they share a “common nucleus
of operative fact” with the federal claims that remain part of
this action. United Mine Workers of Am. v. Gibbs, 383 U.S. 715,
725 (1966). To determine if this standard has been satisfied,
the Second Circuit asks “whether the facts underlying the
federal and state claims substantially overlapped . . . or the
federal claim necessarily brought the facts underlying the state
claim before the court.” Achtman v. Kirby, McInerney & Squire
LLP, 464 F.3d 328, 335 (2d Cir. 2006).
The Court will exercise supplemental jurisdiction over
most of the non-federal claims. Plaintiffs’ state labor law
claims and federal labor law claims “clearly derive from . . . a
common nucleus of operative fact.” Shahriar v. Smith &
Wollensky Rest. Grp., Inc., 659 F.3d 234, 245 (2d Cir. 2011);
but see Benitez v. Valentino U.S.A., Inc., No. 19-CV-11463, 2024
WL 5145564, at *2 (S.D.N.Y. Dec. 17, 2024) (“[C]ourts have
consistently held that there is no supplemental jurisdiction
over state law employment discrimination claims when the only
common nucleus with the FLSA claim is the existence of a common
employment relationship.” (emphasis added)). So too do their
state- and city-law claims for retaliation and malicious
prosecution. See, e.g., Dervisevic v. Wolfgang’s Steakhouse,
Inc., No. 19-CV-814, 2019 WL 6251197, at *4 (S.D.N.Y. Nov. 22,
2019) (“FLSA retaliation claim provides supplemental
jurisdiction for . . . state retaliation claims”). And their
state-law claims for race discrimination and retaliation, and
city-law claims for discrimination based on immigration status
and national origin share a common nucleus of operative fact
with their federal discrimination claims. McPherson v. NYP
Holdings, Inc., No. 03-CV-4517, 2005 WL 2129172, at *9 (E.D.N.Y.
Sept. 1, 2005) (state pay discrimination claims share common
nucleus of operative fact with Section 1981 claim); see also
Section III.B.1, supra (discussing allegations that might evince
race, immigration, and / or national-origin discrimination).
Even plaintiffs’ various tort claims and their claim under the
New York City Gender Motivated Violence Act share a common
nucleus of fact with the federal claims because they arise from
the events of April 5, 2022. Achtman, 464 F.3d at 335 (question
is whether the facts “substantially overlapped”).
But plaintiffs’ state-law claims for sexual harassment
(Claims 7 and 8) do not share a common nucleus of operative fact
with the federal claims.13 Section 1981 does not proscribe
discrimination based on sex. Minto v. Molloy Univ., 715 F.
Supp. 3d 422, 429 (E.D.N.Y. 2024). As for the FLSA claims, “it
is well-established that federal wage-and-hour claims . . . are,
in general, factually distinct from state discrimination
claims.” Dervisevic, 2019 WL 6251197, at *2 (collecting cases).
And the mere fact that the sexual harassment and wage-and-hour
claims arise out of the same employment relationship is
insufficient to justify supplemental jurisdiction. See Shibetti
v. Z Restaurant, Diner & Lounge, Inc., 478 F. Supp. 3d 403, 408-
11 (E.D.N.Y.) (employment relationship alone is insufficient to
establish common nucleus of fact between FLSA and state sexual
harassment claims); see also 13D Charles Wright & Arthur Miller,
Federal Practice & Procedure § 3567.1 (3d ed.) (similar).
Claims 7 and 8 are therefore dismissed.14
13 Plaintiffs also bring a claim for negligent hiring, training, and
supervision (Claim 9) against Chestnut. Plaintiffs may not proceed on that
claim to the extent that the allegedly negligent supervision relates to their
allegations of sexual harassment.
14 Defendants also argue, in passing, that the Court should exercise its
discretion under 28 U.S.C. § 1367(c)(2) to decline supplemental jurisdiction
over the state and local claims because they “predominate” over the federal
claims. Chestnut & Landau Br. 24-25. But as discussed above, many (if not
all) of the state- and local-law claims parallel plaintiffs’ federal claims,
meaning they do not predominate. Cf. Shahriar v. Smith & Wollensky Rest.
Grp., Inc., 659 F.3d 234, 247 (2d Cir. 2011) (where “the state law claims
essentially replicate the FLSA claims . . . they plainly do not
predominate”).
F. Wage Notice and Wage Statement Claims
No defendant has questioned plaintiffs’ standing to
bring their NYLL wage statement or wage notice claims. Because
the issue implicates its subject-matter jurisdiction, however,
the Court has an affirmative obligation to evaluate whether
standing exists as to each of plaintiffs’ claims. E.g.,
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340 (2006).
Numerous courts in the Second Circuit have concluded
that employees lacked standing to bring a NYLL wage statement
and wage notice claim when they failed to allege any concrete
injury traceable to such a violation. See Choi v. SD Tools,
Inc., No. 19-CV-2008, 2024 WL 4989224, at *16 (E.D.N.Y. Dec. 5,
2024) (collecting cases). “[T]echnical violations of the Labor
Law” are not enough; rather, a plaintiff “must allege actual
injuries suffered as a result of the alleged wage notice and
wage statement violation.” Guthrie v. Rainbow Fencing Inc., 113
F.4th 300, 305 (2d Cir. 2024). Accordingly, plaintiffs will be
ordered to show cause why these claims should not be dismissed
for lack of subject-matter jurisdiction.
G. Defendant Abramowitz
Abramowitz contends that, even if the motions to
dismiss are otherwise denied, he should be dismissed from this
action. Epstein & Abramowitz Br. 2, ECF No. 46-3. Abramowitz
argues that “[s]pecific alleged acts he committed are mentioned
only in connection with” the sexual harassment claims and claim
for intentional infliction of emotional distress (“IIED”) during
the April 5 incident. Id. The sexual harassment claims are
dismissed herein. See Section III.E, supra. And his alleged
involvement in the April 5 incident is limited to accompanying
Quintana to the manager’s office, where he was then detained.
Compl. ¶ 186. That allegation, on its own, is insufficient to
support a claim for IIED. See Novak v. Sisters of Heart of
Mary, 210 A.D.3d 1104, 1106 (2d Dep’t 2022) (“The elements of
intentional infliction of emotional distress are (1) extreme and
outrageous conduct; (2) the intent to cause, or the disregard of
a substantial likelihood of causing, severe emotional distress;
(3) causation; and (4) severe emotional distress.”).
Plaintiffs counter that Abramowitz is “directly
implicated in [their] FLSA overtime claims” because they allege
that Dominguez complained to Abramowitz and others about his
insufficient pay and they “would always say [they] couldn’t help
him.” Pls.’ Opp’n 2 n.3. But plaintiffs did not plead an FLSA
overtime claim against Abramowitz. See Compl. ¶¶ 384-87. They
do plead an FLSA retaliation claim against Abramowitz, but the
only possible factual allegation to support that claim is that
he was in the room while Epstein intimidated Dominguez. Id.
¶ 257. Accordingly, Abramowitz is dismissed from this action.
Conclusion
For the foregoing reasons, the motions to dismiss are
granted in part and denied in part. Only Crisantos’ claim for
retaliation under Section 1981 (Claim 21) and Cristanos,
Quintana, and Dominguez’s claims for retaliation under the FLSA
(Claim 23) may proceed. And the Court declines to exercise
supplemental jurisdiction over plaintiffs’ state-law sexual
harassment claims (Claims 7 and 8). Defendant Abramowitz is
also dismissed from this action entirely. The remaining claims
may proceed.
Plaintiffs are also ordered to show cause by April 15
why their NYLL wage notice and wage statement claims should not
be dismissed for lack of subject-matter jurisdiction.
Plaintiffs’ submission should not exceed 750 words.
SO ORDERED.
/s/ Eric Komitee
ERIC KOMITEE
United States District Judge
Dated: March 30, 2026
Brooklyn, New York